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

Q.41 The accused in a murder case when arrested by the police makes the following statement:-

“That knife is concealed beneath the tiles of the cowshed of my neighbor Antony. If I am taken there I can take out the same and produce before you”

Does not the above statement contain the element of criminality tending to connect the accused with the crime ?

Ans. No. The above statement only shows that the accused is only aware of the place of concealment of the weapon. When he mentions about the place of concealment of the weapon, there could be 3 possibilities, namely,

i) He himself would have concealed the weapon, or

ii) He would have seen somebody concealing it, or

iii) He would have been told by another that the weapon was concealed there.

(Vide – Para 21 of 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; Para 26 of State of Maharashtra v. Suresh (2000) 1 SCC 471 – K. T. Thomas, R. P. Sethi – JJ.)

In Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra 2022 SCC OnLine SC 883 = 2022 KHC 6709 – Surya Kant, J. B. Pardiwala – JJ, it was observed in para 45 as follows:-

“What emerges from the evidence of the PW - 4 & PW - 10 is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle”. This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.”

But, if the accused declines to tell the Police or the Court his knowledge about the concealment of the weapon, the Court may presume that he himself had concealed it. This is because, the matter having been within his exclusive knowledge, should have been revealed by him. (Vide-

• State of Maharastra v. Suresh (2000) 1 SCC 471 = 2000 SCC Cri. 263 - G. T. Nanavati, K. T. Thomas - JJ;
• Para 9 of Dharmendra v. State of U.P. AIR 2017 SC 566 = 2017 Cri.L.J. 1551 – A. K. Sikri, Amitava Roy – JJ – Even though the disclosure statement of Dharmendra (one of the 3 accused persons) did not disclose the authorship of concealment of the weapons of crime, from the statement of the witnesses to the effect that after committing the crime the 3 accused persons fled away in the same direction, the Supreme Court inferred authorship of concealment in the appellant, Dharmendra.)

NOTES BY THE AUTHOR: In Suresh (Supra – (2000) 1 SCC 471) the accused did not say that he had himself hidden the weapon there. Unless the authorship of concealment could be attributed to the accused it would be unsafe to connect the accused with the crime. Recovery of the weapon becomes incriminating not because of its recovery at the instance of the accused but because of the element of criminality tending to connect the accused with the crime being founded on the authorship of concealment, namely, that the accused who gave the information leading to its discovery was himself the person who concealed the weapon. See Pohalya Motya Valvi v. State of Maharashtra - 1980 (1) SCC 530 - D. A. Desai, R. S. Pathak - JJ. See also –

• Jaffer Husain Dastagir v. The State of Maharashtra – AIR 1970 SC 1934 (3 Judges) - Sikri, Mitter, Reddy - JJ;
• State of Uttar Pradesh v. Jageshwar and Others 1983 (2) SCC 305 - Y. V. Chandrachud - CJI, V. D. Tulzapurkar - J;
• Dudh Nath Pandey v. State of U.P. - AIR 1981 SC 911 - Y. V. Chandrachud - CJI, A. P. Sen - J and
• Sankara Narayanan v. State of Kerala - 2006 (3) KLT 429 = 2006 (2) ILR 603 (Kerala) - V. K. Bali – CJI, J. B. Koshy – J;
• Mahabir Biswas and Another v. State of West Bengal - 1995 (2) SCC 25 (3 Judges) – M. M. Punchhi, M. K. Mukherjee, K. Jayachandra Reddy - JJ.
• Paras 67 and 68 of Ramanand @ Nandlal Bharti 2022 SCC OnLine SC 1396 - Uday Umesh Lalit, S. Ravindra Bhat, Bela M. Trivedi - JJ.

In George @ Kunju v. State – 2005 (4) KLT (SN) 85 (Page 62) – K. Padmanabhan Nair, V. Ramkumar – JJ, a Division Bench of the Kerala High Court chose to follow the three Judges' decisions in the above cases in preference to the two Judges' Bench decision of the Supreme Court in State of Maharashtra v. Suresh - 2000 SCC Crl. 263 - G. T. Nanavati, K. T. Thomas - JJ, wherein the burden to explain the source of his information was cast on the accused. George @ Kunju was followed by another Division Bench of the Kerala High Court in Sankara Narayanan v. State of Kerala - 2006 (3) KLT 429 - V. K. Bali - C. J., J. B. Koshy - JJ.

The duty of the Court to elicit from the investigating officer while deposing before Court the authorship of concealment in cases where the investigating officer fails to state and the Public Prosecutor fails to elicit the relevant statement of the accused, has been highlighted in Ramachandran v. State of Kerala - 2008 (4) KLT 464 - Thomas P. Joseph - J.

But see Ajayan v. State of Kerala - 2011 (1) KLT 8 - (FB) - J. Chelameswar - CJ, Thomas P. Joseph, P. R. Ramachandra Menon - JJ, where it is held by a Full Bench of the Kerala High Court that “authorship of concealment” is not a sine qua non to make an information received from the accused admissible under Sec. 27 of the Evidence Act. Ajayan's case was distinguished in Golden Satheesan & Others v. State of Kerala - 2012 (1) KHC (SN) 27 (DB) - V. Ramkumar, P. Q. Barkath Ali – JJ, to hold that even if “authorship of concealment” is not necessary to bring a case under Section 27 of the Evidence Act, it will be of great significance in evaluating the disclosure statement if it shows that the accused himself was the person who had hidden the incriminating object.

Q.42 The accused told the Investigating Officer that he had buried the ornaments of the deceased at a particular place mentioned by him. The ornaments are subsequently recovered from the place pointed out by the accused. The defence argues that the words of the accused only show his “knowledge” about the place and not that he retains “possession” of the ornaments and hence Section 27 is not attracted. Is it not correct?

Ans. No. Such a distinction cannot be made. The recovery of the ornaments from the place mentioned by the accused is a circumstance which connected him with the crime. (Vide Balbir Singh v. State of Punjab AIR 1957 SC 216 – 4 Judges – N. H. Bhagwati, S. J. Imam, S. K. Das, P. Govinda Menon - JJ.)

Q.43 In a counterfeiting case, on the statement of the accused persons that they got the fake notes from the “co-accused” who was also dealing in fake notes, the co-accused was shown and identified by the accused and was nabbed by the Police and forged currency notes were recovered from the co-accused also. Does the disclosure of the “name” of the co-accused and his identification by the accused, constitute “fact discovered” within the meaning of Section 27?

Ans. Yes. (Vide paras 17 and 20 of Mehboob Ali v. State of Rajasthan (2016) 14 SCC 640 = 2015 KHC 4724 – H. L. Dattu, Arun Mishra – JJ; Paras 2914 to 2916 of Yakub Abdul Razak Memon v. State of Mahasrashtra (2013) 13 SCC 1 – P. Sathasivam, Dr. B.S. Chauhan – JJ.)

Q.44 The accused in a murder case while in police custody without making any statement to the police takes the police to a distant place and points out the weapon of offence hidden there. Whether it will fall under Section 27 of the Evidence Act? Can it be relied on for any purpose?

Ans. It does not fall under Section 27 of the Evidence Act. (Vide Bahadul v. State of Orissa - AIR 1979 SC 1262 - S. Murtaza Fazl Ali, A. D. Koshal - JJ.) But it amounts to a conduct falling under Sec. 8 of the Evidence Act and is therefore admissible. Reveendran & Others v. State - 1989 (2) KLJ 534 - S. Padmanabhan, P. K. Shamsuddin - JJ). The conduct of the accused in pointing out the place where stolen articles were hidden or where the weapon used for commission of the offence was concealed, would be admissible irrespective of the fact whether an antecedent or contemporaneous statement admissible under Section 27, was made or not. (Vide –

• Prakash Chand v. State - (Delhi Administration) - AIR 1979 SC 400 - R. S. Sarkaria, O. Chinnappa Reddy - JJ;
• Zwinglee Ariel v. State of M.P AIR 1954 SC 15 – 3 Judges - Mehr Chand Mahajan, S. R. Das, N. H. Bhagwati - JJ;
• Rao Shiv Bahadur Singh v. State of Vindya Pradesh AIR 1954 SC 322 - 3 Judges - N. H. Bhagwati, B. Jagannadhadas, T. L. Venkatarama Ayyar - JJ;
• State of Madras v. VaidyanathaIyer AIR 1958 SC 61 – 3 Judges - B. P. Sinha, P. Govinda Menon, J. L. Kapur, JJ;
• State, Govt. of NCT of Delhi Vs. Sunil and Another - 2001 Cri.L.J. 504, 2000 (7) SCALE 692 - K. T. Thomas, R. P. Sethi - 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;
• Ghanashyam Das v. State of Assam (2005) 13 SCC 387 - P. Venkatarama Reddi, D. M. Dharmadhikari - JJ.

Q.45 A, B and C are the accused persons in a murder case. All the three are arrested by the Investigating Officer. When A was questioned he gave a confessional statement to the officer to the effect that himself and the other two accused persons concealed the weapon at a particular spot revealed by him. Thereafter B and C also gave a similar statement. Thereafter the weapon is recovered from the spot mentioned by them. Whether this evidence will fall under Section 27 of the Evidence Act?

Ans. The disclosure statement made first in point of time alone is admissible, and that too against its maker only. Re-discovery of a fact already discovered is not contemplated by law. (See Sukhvinder Singh and Others v. State of Punjab - (1994) 5 SCC 152 - A. S. Anand, Faizan Uddin - JJ.)

“Joint discovery” i.e. discovery made in consequence of information given by more than one accused person is unknown to law. It is only the information which is first given which is admissible. Where it cannot be ascertained which of the accused first gave the information, the alleged discovery cannot be proved against any one of the accused. (Vide Thampi Sebastian v. State of Kerala – 1988 (1) KLT 247 - U. L. Bhat, Shamsuddin - JJ.)

Joint or simultaneous disclosures though improbable are not per se inadmissible under Sec. 27. Whether and to what extent simultaneous disclosure could be relied upon by Court is really a matter of evaluation of evidence. (Vide State (NCT of Delhi) v. Navjot Sandhu 2005 Crl.L.J. 3950 = 2005 (11) SCC 600 (Parliament attack case- Paras 145 to 147 = AIR 2005 SC 3820) - P. Venkatarama Reddi, P. P. Naolekar - JJ.) Joint/simultaneous disclosure, per se, are not inadmissible under Section 27. Here the accused persons were interrogated separately but simultaneously. (Vide Kishore Bhadke v. State of Maharashtra (2017) 3 SCC 760 = Para 20 of AIR 2017 SC 279 – 3 Judges - J. S. Khehar, Arun Mishra, A. M. Khanwilkar - JJ.)

In case where several accused stated that the deadbody of the deceased was thrown in a nullah but only one of the accused took the police to the nullah and pointed out that the trunk of the dead body, it was held that the evidence of the particular accused who pointed out the trunk alone was admissible under Sec. 27. (Vide Lachman Singh v. State - AIR 1952 SC 167 - Saiyid Fazl Ali, Vivian Bose - JJ.)