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

Q.46 A weapon is recovered on the basis of the statement made by the accused during the investigation of another case. Whether it is admissible under Section 27?

Ans. Yes. (See –

• State of Rajasthan v. Bhup Singh – 1997 (10) SCC 675 - A. S. Anand, K. T. Thomas – JJ ;

• Para 37 of Mohan Lal v. State of Rajasthan (2015) 6 SCC 222 = AIR 2015 SC 2098 - Dipak Misra, S. A. Bobde - JJ.)

Q.47 The ornaments of the deceased and recovered at the instance of the accused were of common use and available to all and sundry. They were produced for identification in Court during recording of evidence. The neighbours of the deceased and the witnesses to the recovery and also the jeweller to whom the ornaments were allegedly sold, turned hostile to the prosecution. Whether the accused can escape a conviction?

Ans. Yes. When no attempt was made by the Police to identify the ornaments which were produced in Court only at the time of trial and the witnesses concerned turned hostile to the prosecution, it cannot be said that the recovery evidence can be believed. (Vide para 20 of Bharama Parasram Kudhachkar v. State of Karanataka (2014) 14 SCC 431 = AIR 2012 SC 570 - H. S. Bedi, Gyan Sudha Misra - JJ.)

NOTES BY THE AUTHOR:- In cases where the jeweller or the receiver of the ornaments, do not turn hostile to the prosecution and the case is one of “robbery and murder” committed as an integral part of the same transaction, besides the recovery evidence under Section 27 of the Evidence Act, the Court can also press into service the presumption under Section 114 of the Evidence Act to infer that it was the accused who was both the robber and the murderer. See the following cases:-

(i) Tulsiram Kanu v. State AIR 1954 SC 1 – 3 Judges - M. H. Kania CJI, M. Patanjali Sastri, S. R. Das – JJ.

(ii) Sunderlal v. State of M.P. AIR 1954 SC 28 – Mehr Chand Mahajan, N. H. Bhagwati – JJ.

(iii) Wasim Khan v. State of U.P AIR 1956 SC 400 – 3 Judges – B. P. Sinha, S. J. Imam, N. Chandrasekhara Aiyar – JJ.

(iv) Alisher v. State of U.P. AIR 1974 SC 1830 – 3 Judges – H. R. Khanna, V. R. Krishna Iyer, R. S. Sarkaria – JJ.

(v) Baiju v. State of M.P. AIR 1978 SC 522 – S. Murthaza Fazal Ali, P. N. Shingal – JJ.

(vi) Mohan lal v. Ajit Singh AIR 1978 SC 1183 – P. N. Shingal, D. A Desai – JJ.

(vii) Earabhadrappa @ Krishnappa v. State of Karnataka AIR 1983 SC 843 - A. P. Sen, E. S. Venkataramiah – JJ.

(viii) Gulab Chand v. State of M.P AIR 1995 SC 1598 – G. N. Ray, Faizan Uddin – JJ.

(ix) Mukund @ Kundu Mishra v. State of M.P. AIR 1997 SC 2622 – M. K. Mukherjee, S. Saghir Ahmad – JJ.

(x) Ronny @ Ronald James Alwaris v. State of Maharashtra AIR 1998 SC 1251 – M. K. Mukherjee, S. S. M. Quadri – JJ.

(xi) State of Maharashtra v. Damu AIR 2000 SC 1691 – K. T. Thomas, D. P. Mohapatra – JJ.

(xii) Sanjay @ Kaka v. State (NCT of Delhi) AIR 2001 SC 979 – K. T. Thomas, R. P. Sethi – JJ.

(xiii) Amitsingh Bhikamsingh Thakur v. State of Maharashtra AIR 2007 SC 676 – Arijit Pasayat, Lokkeshwar Singh Panta – JJ.

(xiv) Geejaganda Somaiah v. State of Karnataka AIR 2007 SC 1355 – Arijit Pasayat, Lokeshwar Singh Panta – JJ.

Q.48 The witnesses to the recovery of a weapon consequent on the disclosure statement of the accused are not “independent and respectable inhabitants of the locality” as enjoined by Section 100 (4) Cr.P.C. Whether the evidence of recovery admissible under Sec. 27 ?

Ans. Yes. Recovery of a thing constituting the discovery of a fact within the meaning of Sec. 27 is not similar to a “search” contemplated under Sec. 100 (4) Cr.P.C. (See State (NCT of Delhi) v. Sunil (2001) 1 SCC 652 = 2001 Crl.L.J. 504 (SC) - K. T. Thomas, R. P. Sethi - JJ; Paras 50 to 54 of Musheer Khan v. State of m. P. AIR 2010 SC 762 = (2010) 2 SCC 748 – G. S. Singhvi, A. K. Ganguly – JJ.) In an investigation under Sec. 157 Cr.P.C. a recovery can be proved even by the solitary evidence of the investigating officer if his evidence is otherwise trustworthy. (Vide H.P. Adminsitration v. Om Prakash - 1972 SCC Crl.88 = AIR 1972 SC 975 – Para 9 - P. Jaganmohan Reddy, D. G. Palekar - JJ.)

Q.49 Consequent on the “disclosure statement” made by the accused to the police officer the police party proceeds to the exact spot mentioned by the accused but only to find that the weapon is not there. In the course of investigation it is revealed that a small boy had obtained the weapon from that spot and had thrown it into a pond. After draining the water from the pond the weapon is recovered. Is the “disclosure statement” which does not result in “confirmation by subsequent event”, admissible under Sec. 27 of the Evidence Act?

Ans. Yes. The subsequent investigation revealed that the place of concealment disclosed by the accused to the police officer turned out to be true eventhough the weapon could not be recovered from that spot. See –

• Vasudevan Pillai and Another v. State of Kerala - ILR 1968 (2) Kerala 303 = 1968 Crl.L.J. 1362 – T.C. Raghavan, M. U. Issac – JJ (Here, consequent on the disclosure statement by the accused to the effect that he had thrown the knife near a pond, the Police Officer made a futile search near the pond. While so, a small girl told the police party that she had picked up the knife from the vicinity of the pond and given to a person. The police party finally recovered the knife from that person. It was held that the disclosure statement given by the accused did fall under Section 27 of the Evidence Act. In re Ravupalli Ramamurthy, AIR 1941 Mad 290 and Kapur Singh v. Emperor, 50 Ind Cas 481 : (AIR 1919 Lah 181) Rel. on.;

• Reveendran & Others v. State - 1989 (2) KLJ 534 - S. Padmanabhan, P. K. Shamsuddin - JJ.

NOTES BY THE AUTHOR: But the observation in Raveendran and Others v. State 1989 (2) KLJ 534 to the effect that even if nothing is recovered pursuant to the disclosure statement, it will nonetheless fall under Section 27 of the Evidence Act appears to be an overstatement of the law. There should be recovery of a fact (which includes the physical objects produced) pursuant to the statement. (Vide

• Para 38 of State of Mahrashtra v. Damu Gopinath Shinde AIR 2000 SC 1691 - K.T. Thomas, D.P. Mohapatra - JJ
• Para 13 of H.P.Admn. v. Om Prakash (1972) 1 SCC 249 = AIR 1972 SC 975 – P. Jaganmohan Reddy, D. G. Palekar – JJ.

When there is no recovery of any incriminating material, the statement should be excluded (Vide Mahabir Mandal v. State of Bihar AIR 1972 SC 1331 – J. M. Shelat, H. R. Khanna, G. K. Mitter - JJ). But, if nothing is recovered pursuant to the disclosure statement, the conduct of the accused in pointing out a particular place will constitute a guilty conduct admissible under Section 8. (Vide Himachal Pradesh Admn. v. Om Prakash (1972) 1 SCC 249 = AIR 1972 SC 975 - P. Jaganmohan Reddy, D. G. Palekar - JJ.)

Q.50 Is it legal to produce and mark as an exhibit the entire confessional statement of the accused?

Ans. No. Only that part of the statement leading to the recovery of dead body or crime articles or articles of the victim, alone would be admissible. (Vide Aloke Nath Dutta v. State of W.B (2007) 12 SCC 230 - S. B. Sinha, Dalveer Bhandari - JJ; Para 70 of C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567 – G. S. Singhvi, Dr. B. S. Chauhan - JJ.)

But if there is other incriminating evidence against the accused, it was held that the full exhibition of the confessional statement has not prejudiced the accused and the wholesale marking of the entire confessional statement, may not vitiate the trial. (Vide paras 72 and 77 of C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567 - G. S. Singhvi, Dr. B. S. Chauhan - JJ.)

(See also the answer to Q. No: 17 above)

NOTES BY THE AUTHOR: Even in a case where an inadmissible inculpatory statement of the accused has been wrongly marked in evidence, it is open to the Court to separate and exclude the inadmissible portion from the admissible portion. (Vide para 16 of Pulukuri Kotayya v. Emperor AIR 1947 PC 67 – Lord Wright, Lord Simonds, Lord Uthwatt, Sir John Beaumont - JJ para 14 of Mohd Inayatullah v. State of Maharashtra – AIR 1976 SC 483 - P. N. Bhagwati, R. S. Sarkaria - JJ; Rijo v. State of Kerala 2009 KHC 1145 = 2010 Cri.L.J. 1315 (DB) – K Balakrishnan Nair, P. Bhavadasan - JJ).