S. 27 Evidence Act | Recovery Based On Statement By Accused Before Recording Of S.27 Disclosure Not Admissible : Supreme Court

The Supreme Court held that an alleged recovery of incriminating materials based on a statement given by the accused en route the police station before the recording of the statement under Section 27 of the Indian Evidence Act at the police station is not admissible.

The Court set aside the conviction of an accused in a murder case after noting that the discovery of the incriminating circumstances against the accused was not based on the disclosure statements made under Section 27 of the Evidence Act, 1872 (“Act”), but based on the statement recorded by the police when he was en route to the police station.

The Court cautioned against making a simple case of chance recovery as a disclosure under Section 27, as the provision would be prone to misuse providing “a chance to the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact to attract the provisions of Section 27 of the Evidence Act.” [Refer to Geejaganda Somaiah vs. State of Karnataka (2007)]

The bench comprising Justice JB Pardiwala and Justice Manoj Misra heard the criminal appeal filed by the accused challenging his conviction on the ground that the discovery of the incriminating evidence against him was done before the recording of his disclosure statements under Section 27 of the Act.

The appellant-accused argued that the incriminating material was collected by the police when he was en route to the police station. He contended that the said disclosure statement was inadmissible as it did not lead to discovery because the recovery was made from the place pointed out by the accused applicants even before their disclosure statement was recorded at the police station under Section 27 of the Act.

Finding force in the appellant's contention, the judgment authored by Justice Misra observed that:

“the disclosure statement (Exb. Ka18) was not admissible in evidence because the alleged discovery was not made pursuant to that statement. Disclosure statement was recorded at the police station whereas recovery was made from the place pointed out by the accused enroute to the police station. It was, therefore, a case of recovery from the place allegedly pointed out by the accused and not based on a disclosure statement.”

“Recovery made on 6.2.1997 is a chance recovery because by then there was no disclosure statement on record. Notably, as per evidence on record, accused appellants were on their way to the police station when they allegedly pointed out the place where they had assaulted the deceased before dragging him to the field. In such circumstances, it is quite unlikely that PW-8 would be present at the spot to be available as a witness of the recovery. For this very reason, during cross-examination, suggestion was given to the investigating officer (PW-10) that recoveries were bogus, and documents were prepared at one go while sitting at the police station. Similarly, PW-8 was cross-examined about his presence at the time of recovery. PW-8, initially, responded by stating that he had not accompanied the police, though he happened to be present at that time. On further query, PW-8 stated that the police must have arrived between 11 and 12. Later, PW-8 stated that the accused were arrested in the evening of 6.2.1997. This indicates that he is not sure as to when the recovery took place. Further, distance of PW-8's village from Madhkhetla is 2 km. All these circumstances create a serious doubt about the presence of the witness at the time and place of the alleged recovery. Besides that, the site plan of the place from where recovery was made on 6.2.1997 was not prepared until 9.2.1997. This makes us wonder whether papers in connection therewith were prepared at one go as suggested by the defense. Unfortunately, the High Court did not at all advert to these circumstances and relied on the disclosure statement/discovery/recovery without carefully weighing the evidence on record.”, the court observed.

Since, the case was entirely based on circumstantial evidence, and the entire chain of events was not supplemented or proved by the prosecution, therefore, the court gave the benefit of the doubt to the appellants-accused and set aside their conviction.

Appearance:

For Appellant(s) Ms. Nidhi, AOR Mr. Syed Saifullah, Adv.

For Respondent(s) Ms. Anubha Dhulia, Adv. Ms. Suveni Bhagat, AOR

Case Title: SURESH CHANDRA TIWARI & ANR. VERSUS STATE OF UTTARAKHAND

Citation : 2024 LiveLaw (SC) 932
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