“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-II]

Q.11 Whether a statement by the accused that the weapon discovered was (“the weapon with which he committed murder”), will fall under Section 27 which contains the words “whether it amounts to a confession or not” ?.

Ans. No. The bracketed portion of the statement is not admissible in evidence. In para 10 of Pulukuri Kottaya v. Emperor AIR 1947 PC 67 – Sir John Beaumont, it is observed that while an “information” supplied by a person in custody that “I will produce a knife concealed in the roof of my house” will fall under Section 27 but, if to the above statement regarding the “knife” the words be added “with which I stabbed A” those words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. In para 18 of Venkatesh @ Chandra v. State of Karnataka 2022 SCC OnLine SC 765 = 2022 KHC 6440 – Uday U. Lalit, Pamidighantam Sri Narasimha - JJ, it was observed as follows:-

Coming to the instant case and going by the principle and the illustration highlighted by the Privy Council, out of the statement of accused No.1, only the following portion except the words printed in "italics" would be admissible and can be marked in evidence:

"…..If I am taken there, I will show the spot where we committed murder, and we will show the place where we have thrown the knife and the rod. And we will show the shop in which we sold the jewelleries."

The expression "where we committed murder" must not come on record.”

Such a statement does not lead upto the production of the property because the information should relate distinctly to the fact thereby discovered. (Vide –

• Prabhoo v. State of U.P. AIR 1963 SC 1113 = 1963 (2) Cri.L.J. 182 – 3 Judges - S. K. Das, A. K. Sarkar, M. Hidayatullah - JJ – (Para 9 – Held that the statement by the accused that the axe was one with which the murder was committed was not a statement which lead to any discovery of a fact within the meaning of Section 27 of the Evidence Act.);
• Bhika v. R. AIR 1943 Bombay 458 – Sir John Beaumont who took the same view in Pulikuri Kottaya – AIR 1947 P.C. 67).

The words “whether it amounts to a confession or not” in Section 27 can only take in those cases where the “possession” or “concealment” of an object, itself constitute the gist of the offence charged. (Vide end of para 11 of Pulikuri Kottaya.)

Eg:- Cases where the offender admits “possession” or “concealment” of a “prohibited firearm” or “explosive” or “narcotic drug”, may itself amount to an offence if the said admission is inseparable from the rest of the admissible portion of the disclosure statement.

The inculpatory parts of the statement are also admissible provided only that they distinctly relate to the fact discovered. (Vide State of H.P. v. Jeet Singh (1999) 4 SCC 370 = AIR 1999 SC 1293 - K. T. Thomas, S. S. Mohammed Quadri - JJ.)

Merely because the property is described as “looted property” in the confessional statement, it would not render the statement inadmissible. (vide para 14 of Sanjay @ Kaka v. State (NCT of Delhi) (2001) 3 SCC 190 = AIR 2001 SC 979 - K. T. Thomas, R. P. Sethi - JJ.)

In the light of the above decision in Sanjay @ Kaka the observation in para 9 of Joseph v. State of Kerala 1997 KHC 297 = 1997 Cri.L.J. 4289 - N. Dhinakar – J, that the information by the accused “if I am taken to the place I will show the man to whom I had given the necklace” which merely explains the material thing discovered is not admissible, does not lay down the law correctly.

NOTES BY THE AUTHOR: In Ayyappan v. State of Kerala 2004 (3) KLT 254 = 2005 Cri.L.J. 57, Justice Basant had held that Joseph (Supra – 1997 Cri.L.J. 4289) was wrongly decided since it was contrary to the verdict of the Division Bench in Raveendran v. State of Kerala 1989 (2) KLJ 534 – S. Padmanabhan, P. K. Shamsuddin – JJ.

Q.12 The accused in a theft case while in the custody of the police gives the following statement:-

“I sold the gold chain and gold ear studs which I had stolen from the house of Ajit Varma of Karol Bhag Delhi at Zaveri Jewellery, Chandni Chouk. If I am taken there I will show the person to whom the above ornaments were sold”.

Pursuant to the said statement the accused leads the police party to the above jewellery shop from where the ornaments are recovered. Whether or not the above confession made by the accused is admissible in its entirety under Sec. 27 of the Evidence Act in view of the subsequent recovery of the ornaments ?.

Ans. No. That part of the statement which says that those ornaments were stolen by the accused is not admissible under Sec. 27. The statement can be split up into its components in order to separate the admissible portion from the inadmissible portion. (Vide para 16 of Pulukuri Kottaya v. Emperor AIR 1947 PC 67 - Wright, Simonds, Uthwatt, John Beaumont – JJ - In that case the Privy Council remitted the case to the High Court of Madras to consider whether, after discarding the evidence objected to and wrongly admitted, there was sufficient admissible evidence to justify the conviction or whether discharging the accused or ordering a new trial would be the better option.)

In para 13 of Mohammed Inayatullah v. The State of Maharashtra – (1976) 1 SCC 828 = AIR 1976 SC 483 - P. N. Bhagwati, R. S. Sarkaria - JJ, it was held that an outright confession of theft, was inadmissible. By referring to Section 167 of the Evidence Act, it was held that it is the duty of the Court to apply its mind to the question whether after splitting up the statement and excluding the inadmissible portion therefrom by discarding the evidence improperly admitted, there is something left to justify a conviction). See para 14 of Mohammed Inayatullah v. The State of Maharashtra – (1976) 1 SCC 828 = AIR 1976 SC 483 - P. N. Bhagwati, R. S. Sarkaria - JJ. The Court, instead of eschewing the whole statement from consideration can exclude the inculpatory portion alone from the statement. (Vide para 58 of Rijo v. State of Kerala 2009 KHC 1145 = 2010 Cri.L.J. 1315 (DB) – K. Balakrishnan Nair, P. Bhavadasan - JJ).

Q.13 What is the impact of Sections 25 and 26 of the Evidence Act on a “disclosure statement” (regarding the place of concealment of the incriminating object) falling under Section 27 of the Evidence Act ?.

Ans. There will be no impact. This is because if the “disclosure statement” is regarding the “place of concealment” of any incriminating object, it does not involve any “confession” so as to attract the bar under Sections 25 and 26. Even in cases where such “disclosure statement” wrongly contains a “confession”, such a “confession” is not admissible in evidence and will have to be excluded from the rest of the “disclosure statement”. The only other situation where a “disclosure statement” by itself may involve a “confession” is in cases where the “possession” or “concealment” of the object itself amounts to an offence as in the case of an unlicensed firearm or a contraband substance like an explosive or a narcotic drug. Even in such cases, Section 27 being a proviso to the preceding Sections 25 and 26, the confession is not liable to be excluded as indicated in Section 27 itself. All such “disclosure statements” falling under Section 27 not only do not attract the bar under the preceding Sections 25 and 26, they are not interdicted by the bar under Section 162 (1) Cr.P.C. as well in view of the saving under sub-section (2) of Section 162 Cr.P.C.

Q.14 Pursuant to the “disclosure statement” of the accused to the effect that he has sold the gold chain (which the deceased woman was wearing) in a jewellery shop at Koduvally in Kozhikode District, the accused leads the police party to the particular shop. The shop keeper admits that the accused had brought for sale the gold chain but he had melted the same and he produces only “gold ingots” instead of the gold chain. Will it fall under Section 27 of the Evidence Act, in the absence of “confirmation by subsequent event” ?.

Ans. Yes. (In paragraph 9 of State of Karnataka v. Deja K. Shetty 1993 Supp. (1) SCC 14 = 1993 SCC (Cri) 242 = 1993 KHC 999 (SC) - Kuldip Singh, B. P. Jeevan Reddy - JJ, reversing the acquittal passed by the High Court, the Supreme Court taking note of the fact that the gold ingots produced were after melting the ornaments brought for sale, accepted the evidence of the jeweller that he had purchased the gold ornaments from the accused and that it would fall under Section 27 of the Evidence Act.

NOTES BY THE AUTHOR :- With the admission by the jeweller that he had purchased the particular gold chain from the accused, the requirement of Section 27 is satisfied. The change of identity of the gold chain due to melting, is not very relevant as long as the jeweller admits the purchase. But, the position may be different if the jeweller has turned hostile to the prosecution.

Q.15 The statement by the accused is that –

“The “dagger” (with which I committed murder) has been hidden by me below the tiles of the cowshed of my house. I will show you the place and the dagger”. Whether or not the above statement in its entirety will fall under Section 27 which contains the words “whether it amounts to a confession or not” ?.

Ans. No. The bracketed portion of the statement is clearly inadmissible. Such a bracketed portion of the statement does not lead to the production the property because that portion of the information does not relate distincltly to the fact thereby discovered. (Vide Bhika v. R. AIR 1943 Bombay 458 – Beaumont – CJ, who took the same view in para 10 of Pulikuri Kottaya – AIR 1947 P.C. 67 – Lord Wright, Lord Simonds, Lord Uthwatt, Sir John Beaumont - JJ).

The inculpatory parts of the statement will be admissible only if they distinctly relate to the fact discovered. (Vide State of H.P. v. Jeet Singh (1999) 4 SCC 370 = AIR 1999 SC 1293 - K. T. Thomas, S. S. Mohammed Quadri - JJ.)

Supposing the accused says “the dead body along with the dagger (which I had thrust deep into his left chest), has been concealed by me at …………………”

[ഞാൻ ഇടതു നെഞ്ചിൽ കുത്തിയിറക്കിയ ] കഠാരയോട് കൂടി മരിച്ച ആളുടെ ശരീരം ………. എന്ന സ്ഥലത്തു ഒളിപ്പിച്ചു വെച്ചിട്ടുണ്ട്.

In this composite statement, the bracketed portion is a confession which does not distinctly relate to the weapon recovered and will have to be eschewed from consideration.

In para 12 of Himachal Pradesh Administration v. Om Prakash AIR 1972 SC 975 – P. Jaganmohan Reddy, D.G. Palekar – JJ, it was held that “fact discovered” was not the “dagger” but “the dagger hidden by the accused under a stone and which fact was not known to the police”.

In para 15 of Pandurang Kalu Patil v. State of Maharashtra AIR 2002 SC 733 = (2002) 2 SCC 490 – K. T. Thomas, S. N. Phukan – JJ, it was held that the “fact discovered” was certainly not the “gun” but “the gun consealed by A2 behind the old house under a heap of wood”.

The only situation where the confessional part (inculpatory portion) of the statement would also be admissible in evidence, is when the mere “possession” or “concealment” of the object itself amounts to an offence. For example, if the accused were to say that he has in his possession or has concealed the “unlicenced firearm” or the “contraband narcotic substance” at a place revealed by him. Here, the mere possession by the accused of the “firearm” or “contraband substance” amounts to an offence. It is in such rare situations that a confession by the accused is admissible in evidence under Section 27, provided there is confirmation by subsequent event.