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

I N T R O D U C T I O N

Any discussion on Section 27 of the Indian Evidence Act, 1872 will be incomplete without reference to Sections 25 and 26 of the Evidence Act. Section 25 prohibits proof of “confession” made directly to a “police officer” by an accused person. Section 26 interdicts proof of a “confession” made by an accused person while he is in the custody of a “police officer”. Section 27 is an unusual Section which is couched in the form of a “proviso”. This section has always been understood as a “proviso” to the preceding Sections 25 and 26. (Vide para 433 of Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 – 3 Judges – Dipak Misra, R. Banumathi, Ashok Bhushan - JJ.) But, in para 10 of Pulukuri Kotayya v. Emperor AIR 1947 PC 67 – Sir John Beaumont, it has been observed that Section 27 is a proviso to the preceding section, intending thereby Section 26 only.

Section 27 reads as follows:-

“ 27: How much of information received from accused may be

proved. -- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

2. The words of this Section were bodily taken from R. v. Lockhart (1785) 1 Leach 386 = 168 ER 295. (Vide para 65 of the Judgment of M. Hidayatullah – J in State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ.)

Section starting as a “proviso”

3. It is only very rarely that a Section itself starts as a “proviso”. Section 108 of the Evidence Act is another Section which starts as a “proviso” to the previous Section 107. Yet another Section which starts as a “proviso” is Section 2 of the Fatal Accidents Act, 1855.

4. Section 27 is considered to be a proviso to Section 26. In para 10 of the celebrated decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 – Lord Wright , Lord Simonds, Lord Uthwatt, Sir John Beaumont – JJ, it is observed as follows:-

“Section 27 provides an exception to the prohibition imposed by the preceding section”……………. “the proviso to section 26 added by section 27 should not be held to nullify the substance of the section.”.

Section 27 is an exception to the preceding provisions particularly Sections 25 and 26. (Vide para 14 of Anter Singh v. State of Rajasthan (2004) 10 SCC 657 = AIR 2004 SC 2865 - Doraiswamy Raju, Arijit Pasayat - J; Para 7 of Delhi Admn. V. Bal Krishan AIR 1972 SC 3 = (1972) 4 SCC 659 – A. N. Ray, D. G. Palekar – JJ; Para 17 of Mohd. Inayatullah v. State of Maharashtra (1976) 1 SCC 828 – P. N. Bagwati, R. S. Sarkaria – JJ; Para 17 of Sanjay v. State (NCT of Delhi) AIR 2001 SC 979 = (2001) 3 SCC 190 – K. T. Thomas, R. P. Sethi – JJ; Para 7 of State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 – S. K. Das, J. L. Kapur, K. Subba Rao, Hidayatullah, J. C. Shah – JJ.) (In para 65 observes that Section 27 is not merely an exception to Section 26 but is an exception to Sections 24 to 26 of the Evidence Act - This view has been reiterated in Jafarudheen v. State of Kerala AIR 2022 SC 3627 = (2022) 8 SCC 440 – Sanjay Kishan Kaul, M. M. Sundresh – JJ.)

The ingredients of the Section are the following :-

a) The accused is in the custody of a police officer.

b) While so, he provides an information.

c) A fact is deposed to as discovered in consequence of such information.

d) So much of such information as relates distinctly to the fact thereby discovered, may be proved; and

e) This is irrespective of whether such information amounts to a confession or not.

Q.1 What is the basic idea or doctrine embedded in Section 27 of the Evidence Act ?

Ans. The basic idea embedded in Sec. 27 is the “doctrine of confirmation by subsequent events”. (Vide –

• Bodhraj v. State of Jammu and Kashmir – AIR 2002 SC 3164 - Ruma Pal, Arijit Pasayat - JJ;
• State of Karnataka v. David Rozario – 2002 (7) SCC 728 - U. C. Banerjee, Arijit Pasayat – JJ;
• Reveendran and others v. State 1989 (2) KLJ 534 - S. Padmanabhan, P. K. Shamsuddin - JJ;
• H. P. Administration v. Om Prakash 1972 (1) SCC 249 :1972 SCC (Cri) 88 : AIR 1972 SC 975 - P. Jaganmohan Reddy, D. G. Palekar - JJ;
• State of Maharashtra v. Damu (2000) 6 SCC 269 - K. T. Thomas, D. P. Mohapatra – JJ;
• Pawan Kumar v. State of U.P. (2015) 7 SCC 148 = AIR 2015 SC 2050 - S. J. Mukhopadhaya, N. V. Ramana - JJ;
• Raja v. State of Haryana (2015) 11 SCC 43 - Dipak Misra, N. V. Ramana - JJ.)

Q.2 The words “fact discovered” in Section 27 of the Evidence Act embrace what all aspects ?.

Ans. The word “fact discovered” embraces –

• the “place” from where the object is produced

and

• the “knowledge” of the accused as to this.

Information as to the past user or past history of the object produced is not related to its discovery in the setting in which it is discovered. (Vide –

• Pulikuri Kottayya v. Emperor – AIR 1947 P.C. 67 - Wright, Simonds, Uthwatt, John Beaumont – JJ – Para 10;
• Ramkishan Mithanlal Sharma v. State of Bombay AIR 1955 SC 105 – N. H. Bhagwati, Natwarlal H;
• K. Chinnaswami Reddy v. State of A.P AIR 1962 SC 1788 – 3 judges - B. P. Sinha – CJI, K. N. Wanchoo, J. C. Shah - JJ;
• Prabhoo v. State of U.P AIR 1963 SC 1113 – 3 Judges - S. K. Das, A. K. Sarkar, M. Hidayatullah – JJ;
• Jaffar Hussain Dstagir v. State of Maharashtra - 1969 (2) SCC 872 = AIR 1970 SC 1934 – 3 Judges (The principle has been lucidly explained in this decision) - Sikri, Mitter, Reddy - JJ;
• Paras 12 & 13 of Himachal Pradesh Administration v. Shri. Om Prakash – AIR 1972 SC 975 (Held that the “fact discovered” is not the dagger but the dagger hidden under a stone which was not known to the Police) - P. Jaganmohan Reddy, D. G. Palekar - JJ;
• Mohd Inayatullah v. State of Maharashtra – AIR 1976 SC 483 - P. N. Bhagwati, R. S. Sarkaria - JJ;
• Dhananjoy Chatterjee v. State of W.B (1994) 2 SCC 220 - Dr A. S. Anand, N. P. Singh – JJ;
• Shamshuk Kanwar v. State of U.P. - 1995 (4) SCC 430 - M. M. Punchhi, K. Jayachandra Reddy - JJ;
• State of Maharashtra v. Damu (2000) 6 SCC 269 - K. T. Thomas, D. P. Mohapatra - JJ;
• Panduranj Kalu Patil v. State of Maharashtra AIR 2002 SC 733 = (2002) 2 SCC 490 – K. T. Thomas, S. N. Phukan – JJ – Case law discussed. Also held, quoting Justice M. C. Chagla that decisions of the Privy Council, as long as they have not been disapproved by the Supreme Court, are binding on all Courts in India.
• Bodhraj v. State of J&K AIR 2002 SC 3164 = (2002) 8 SCC 45 – Ruma Pal, Arijit Pasayat – JJ;
• State of Karnataka v. David Rozario AIR 2002 SC 3272 = (2002) 7 SCC 728 – U. C. Banerjee, Arijit Pasayat – JJ – Case law discussed.
• Salim Akhtar v. State of U. P. AIR 2003 SC 4076 = (2003) 5 SCC 499 – S. Rajendra Babu, G. P. Mathur – JJ;
• Anter Singh v. State of Rajasthan - (2004) 10 SCC 657 = AIR 2004 SC 2865 - Doraiswamy Raju, Arijit Pasayat – JJ – Case law discussed;
• Swamy Shradhananda v. State of Karnataka - AIR 2007 S.C. 2531 - Markandey Katju, S. B. Sinha - JJ;
• Amitsingh Bhikamsingh Thakur v. State of Maharashtra - (2007) 2 SCC 310 - Arijit Pasayat, Lokeshwar Singh Panta - JJ;
• Mustkeem v. State of Rajasthan (2011) 11 SCC 724 - Asok Kumar Ganguly, Deepak Verma - JJ.
• Sk. Yusuf v. State of W. B. AIR 2011 SC 2283 = (2011) 11 SCC 754 – Dr. B. S. Chauhan, Swatenter Kumar – JJ.
• Para 30 of Pawan Kumar v. State of U.P. (2015) 7 SCC 148 = AIR 2015 SC 2050 - S. J. Mukhopadhaya, N. V. Ramana - JJ.).

Q.3 Should the disclosure statement be made in the presence of or be overheard by the witnesses to the recovery ?

Ans. No. It is not necessary that witnesses should be present when the accused is interrogated by the investigating officer (Vide State of H.P v. Jeet Singh (1999) 4 SCC 370 = AIR 1999 SC 1293 - K. T. Thomas, S. S. Mohammed Quadri - JJ; Praveen Kumar v. State of Karnataka (2003) 12 SCC 199 - N. Santosh Hegde, B. P. Singh - JJ.)

Q.4 On the basis of an oral disclosure statement which is not reduced into writing the police officer in a murder case recovers the gold ornaments of the deceased. No public witness is also examined by the prosecution. Can the recovery be justified under Sec. 27 ?.

Ans. Yes. See S.C. Bahri v. State of Bihar – AIR 1994 SC 2420 – Dr. A. S. Anand, Faizan Uddin - JJ. Paras 70 and 72; Failure to record the information is not fatal to the prosecution. What is really important is the credibility of the evidence of the investigating officer. Para 69 of Mohd. Arif @ Ashfaq v. State of NCT of Delhi - 2011 (8) SCALE 328 = (2011) 12 SCC 621 – V. S. Sirpurkar, T.S Thakur – JJ. See also para 9 of H. P. Admn. V. Om Prakash AIR 1972 SC 975 = (1972) 1 SCC 249 – P. Jaganmohan Reddy, D. G. Palekar – JJ.)

Even when the panch witnesses turned hostile, the evidence of the investigating officer can be relied upon to prove the recovery. (Vide Mallikarjun v. State of Karnataka (2019) 8 SCC 359 = 2019 KHC 6780 (SC) – R. Bhanumathi, A. S. Bopanna – JJ.)

It is enough if the investigating officer deposes before Court the exact information obtained by him from the accused ipsissima verba i.e. in the exact words of the accused himself.

“motbir witness” presumably a Persian word which means “independent disinterested witness”. (Vide Sidhan @ Sidharthan v. State of Kerala - 2014 (2) KLT 893 - Hariprasad - J.)

Q.5 Is a disclosure statement made by an accused, in the absence of independent witnesses, inadmissible under Section 27?

Ans. No. Sec. 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses (Vide Praveen Kumar v. State of Karnataka - (2003) 12 SCC 199 - N. Santosh Hegde, B. P. Singh - JJ.)

Disclosure statement need not be made in the presence of witnesses who need not also overhear the same. (Vide State of H.P. v. Jeet Singh- (1999) 4 SCC 370 = AIR 1999 SC 1293 - K. T. Thomas, S. S. Mohammed Quadri - JJ.)

Even when the general public refuses to join as witnesses, the discovery evidence cannot be faulted (Vide Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 - V. S. Sirpurkar, T. S. Thakur - JJ).