Instruct IOs To Ensure Compliance Of Mandatory Safeguards Concerning Recoveries U/S 27 Evidence Act: Allahabad HC To UP DGP

Expressing concerns over courts frequently discarding prosecution cases due to IOs' lapses in following legal procedures during evidence recovery, a bench of Justice Ashwani Kumar Mishra and Justice Dr. Gautam Chowdhary underscored that failure to adhere to these safeguards could not be dismissed as a minor flaw in the investigation, as it directly impacts the admissibility of crucial evidence.

“It is often the tendency of Police is to implicate an accused by extracting his confession and by showing recovery, etc., at the instance of the accused. It is to safeguard the accused from such procured confession/recovery that the higher Constitutional Courts have evolved the safeguards for effecting recovery under Section 27 of the Evidence Act if they are to be read in evidence,” the Court noted in its 25-page judgment.

The Court also referred to Supreme Court judgments, including those in Pulukuri Kottaya vs King-Emperor 1946, Subramanya v. State of Karnataka 2022 LiveLaw (SC) 887, Boby vs State of Kerala LiveLaw (SC) 50 2023, Babu Sahebagouda Rudragoudar and others v. State of Karnataka 2024 LiveLaw (SC) 316, and Ravishankar Tandon And Ors vs State Of Chhattisgarh 2024 LiveLaw (SC) 296, wherein the top court has laid down clear guidelines for conducting recoveries to ensure the evidence is legally acceptable.

For context, in these cases, the Top Court has given primary importance to recording the accused's disclosure statement in the presence of two independent persons and drawing of the discovery panchnama as per Section 27.

Importantly, in the Subhramanya Case, the Apex Court has explained how a discovery panchnama under S. 27 must be typically drawn in two parts.

The Top Court has elaborated that the first part of the same should be prepared at the police station, in the presence of independent witnesses, so that the accused's voluntary statement, expressing his willingness to reveal the weapon's location or other articles related to the crime, must be documented.

After this, the Top Court explains that the police, along with the accused and the independent witnesses, should proceed to the indicated location and therein, if any evidence, such as the weapon or blood-stained clothes, is recovered, the same would form the second part of the panchnama.

The Allahabad High Court was essentially with a criminal appeal filed by an accused challenging the judgment passed by the Special Judge (SC/ST Act), Banda, convicting him under Section 302, 377 IPC read with Section 3(2)(v) SC/ST Act and sentencing him to rigorous life imprisonment.

He had been found guilty by Sessions Court of committing an unnatural offence with a 13-year-old boy and, after that, murdering him.

Hearing his appeal, the Court noted that there was no other reliable evidence to show that the dead body was recovered from the house of the accused-appellant and in fact, the evidence lacked on the aspect relating to recovery being made from the home of the appellant itself.

The Court further observed that none of the procedural safeguards emphasised by the Top Court had been adhered to since neither a disclosure statement had been recorded in the presence of the two independent persons nor a panchnama had been drawn regarding the recovery of the dead body.

“The manner in which recovery of the dead body is sought to be proved from the house of the accused appellant, therefore, leaves much to be desired. In the absence of there being any recording of disclosure statement in the manner specified in the law, as well as absence of any memo of recovery of dead body, duly exhibited and proved, we are not persuaded to accept the prosecution case that recovery of the dead body of the deceased was on the basis of any disclosure statement made by the accused leading to recovery of the dead body of the deceased,” the Court remarked.

The Court added that to prove that the recovery of the dead body was from the house of the appellant, the prosecution needed to prove that the house from where the dead body was recovered belonged to the accused-appellant; however, the IO made no effort to collect evidence about ownership of the house from where the dead body was recovered.

In view of this, finding that the prosecution has failed to prove beyond reasonable doubt that the dead body was recovered from the house of the accused-appellant, the Court acquitted the accused by giving him the benefit of the doubt.

However, before parting with the case, the Court that it is high time that the Investigating Agencies be made alive to the requirement of law in the matter of effecting recovery under Section 27 of the Evidence Act, as is settled by the Supreme Court in case of Pulukuri Kotayya (supra) and referred to and reiterated in Subramanya (supra), Boby (supra), Babu Sahebagouda Rudragoudar (supra) and Ravishankar Tandon (supra).

Thus, the Court instructed the Additional Chief Secretary (Home), Principal Secretary (Law) and Director General of Police to direct the investigating agencies to ensure compliance with the mandatory safeguards relating to recovery to be read in evidence under Section 27 of the Evidence Act.

Case title - Daya Prasad @ Vyas Ji vs. State of U.P.

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