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

Q.21 At the time of his arrest the accused was seen wearing the same blood stained shirt which he was wearing 2 or 3 days ago when the murder was committed. The defence argues that it was unlikely that the accused would continue to wear the same shirt. Whether the defence argument can be accepted in all cases ?.

Ans. No, especially if the bloodstain had become dull.

In paragraph 19 of Balbir Singh v. State of Punjab AIR 1957 SC 216 = 1957 Cri.L.J. 481 – 4 Judges – N. H. Bhagwati, Syed Jafer Imam, S. K. Das, P. Govinda Menon – JJ, it is observed as follows:-

“With regard, to the blood stained shirt (Ex.P5), the learned Sessions Judge disbelieved the very clear evidence on the record merely on the ground that a person who had committed a murder would not continue to put on a blood stained shirt for two or three days. The learned Sessions Judge forgot that the marks of blood found on Ex. P5 were very faint marks, and the appellant when he changed his pyjama, as he said in his confession, might not have noticed that some faint marks of blood remained on the shirt. It was argued before us that the appellant did not go into the room where the two boys were killed, and therefore there could not be stains of blood on his shirt. It is clear, however, from the confession of the appellant that he did go into the room where the two boys were killed. When the appellant was examined under S.342, Criminal Procedure Code, he denied that the shirt belonged to him. There was the evidence of a number of witnesses who proved that the shirt with faint stains of blood was taken from the person of the appellant on the 21st Feb.”

Q.22 Whether from the mere recovery of the incriminating object the Court can convict the accused for the offence alleged?

Ans. No. Mere recovery of dead body either pointed out by the accused or recovered as a result of the disclosure statement made by him, would not necessarily lead to the conclusion that he committed murder. There should be other substantive evidence or corroborative circumstances from which the Court can raise a presumption that the accused was the offender. (Vide para 9 of Kanbi Karsan Jadav v. State of Gujarat AIR 1966 SC 821 = 1966 Cri.L.J. 605 – J. L. Kapur, Raghubar Dayal – JJ.)

The celebrated Pulukuri Kottaya v. Emporer AIR 1947 PC 67 – Lord Wright, Lord Simonds, Lord Uthwatt and Sir John Beaumont, itself contains the answer to this question. Towards the end of paragraph 11 this is what the Privy Council observed:-

“Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in a manner allowed by law.”

Again towards the end of paragraph 10, the Privy Council has observed as follows:-

“Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife. Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the wife of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovere is very relevant.”

In paragraph 21 of Manoj Kumar Soni v. The State of Madhya Pradesh (Criminal Appeal No: 1030/2023) decided on 11-08-2023 by S. Ravindra Bhat, Dipankar Datta – JJ, it is observed as follows:-

“21. A doubt looms: Can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.”

“22. The law on the evidentiary value of disclosure statements under Section 27, Evidence Act made by the accused himself seems to be well established. The decision of the Privy Council in Pulukuri Kotayya and others vs. King-Emperor holds the field even today wherein it was held that the provided information must be directly relevant to the discovered fact, including details about the physical object, its place of origin, and the accused person's awareness of these aspects. The Privy Council observed:

The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into s. 27 something which is not there, and admitting in evidence a confession barred by s. 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.”

NOTES BY THE AUTHOR: But, a stray observation made in paragraph 16 of Bijinder@Mandar v. State of Haryana AIR 2022 SC 466 = (2020) 1 SCC 92 – 3 Judges – N. V. Ramana – CJI, Surya Kant, Hima Kohli – JJ, has created some uncertainty in legal circles. The said observation is as follows:-

“It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material.”

The above observation was unwarranted in the facts and circumstances of that case. It was a case of “robbery and murder” in which a few packets of currency notes allegedly extorted by the accused were recovered on the strength of disclosure statements made by some of the accused. Over and above such recovery evidence, there was identifying evidence adduced to show that the red clothe etc. used for wrapping the packets of currency notes belonged to the victims in that case. There was thus other corroborative evidence to confirm the identity of the assailants. In the backdrop of such a factual scenario, an observation as aforesaid by a 3 Judge Bench of the Supreme Court without explaining as to how “recovery evidence” can form the sole basis for a conviction, is highly misleading. In fact, the law journals have highlighted the above passage which is likely to be misleading in the factual setting in which that case was decided. The above observation may perhaps hold good only in those cases where mere “possession” of the incriminating object may itself constitute an offence.

Q.23 Is it not necessary that each and every circumstance mentioned in the “confession” regarding the complicity of the accused should be separately and independently corroborated?

Ans. No. It is not necessary that each and every circumstance mentioned in the “confession” regarding the complicity of the accused should be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the “confession” was made. It would be sufficient if the general trend of the “confession” is substantiated by some evidence which would tally with what is contained in the “confession”. (Vide para 52 of Mohd. Naushad v. State (Govt. of NCT of Delhi) 2023 SCC OnLine SC 784 = 2023 KHC 6684 – 3 Judges – B. R. Gavai, Vikram Nath, Sanjay Karol – JJ. (Balbir Singh v. State of Punjab AIR 1957 SC 216 – 3 Judges, Subramania Goundan v. State of Madras AIR 1958 SC 66 – 3 Judges, Shankaria v. State of Rajasthan (1978) 3 SCC 453 – 3 Judges, relied on).

Q.24 Whether a recovery under Section 27 of the Evidence Act can be relied upon in the absence of a “written record” of the disclosure statement of the accused?

Ans. As per the decision in Boby v. State of Kerala decided on 20-01-2023 Live Law (SC) 50 – B. R. Gavai, M. M. Sundresh – JJ, the recovery cannot be relied on in the absence of a written record of the disclosure statement.

NOTES BY THE AUTHOR: The above view does not appear to be correct. Neither Section 27 of the Evidence Act nor its interpretation in Pulikuri Kottaya insists that there should be a written record of the disclosure statement made by the accused. In fact, what is necessary is the exact words of the accused (Ipsissima verba) in the disclosure statement should be deposed to. This is usually done by the investigating officer to whom the disclosure statement was made, or any other witness who was present. There is nothing wrong if the investigating officer while preparing a panchanama or mahazar or recovery memo, if any, had made a contemporaneous extract of the exact words spoken to by the accused and then repeat the said words while giving evidence by refreshing his memory under Section 159 of the Evidence Act.

It is not necessary to formally record the information given by the accused. If the evidence of the Investigating Officer in this behalf is found to be credible, then even in the absence of any recorded statement, his evidence can be accepted. (Vide paras 169, 170 and 174 of Mohd. Arif @ Ashfaq v. State of NCT of Delhi 2011 (13) SCC 621 = 2011 KHC 4680 - V. S. Sirpurkar, T. S. Thakur - JJ.)

In para 13 of Bodhraj v. State of J & K AIR 2002 SC 3164 = (2002) 8 SCC 45 - Ruma Pal, Arijit Pasayat – JJ, it is observed as follows:-

“What is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence.”

Q.25 What is the relationship between “admission” and “confession”?

Ans. An “admission” as defined in Section 17 of the Evidence Act is a statement, oral or documentary which enables the Court to draw an inference as to any “fact in issue” or “relevant fact”. A “confession” which is a term used in criminal law is a species of “admission”. A confession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not by itself a confession. While every confession must necessarily be an admission, but every admission does not necessarily amount to a confession. (Vide paras 27 to 29 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 – P. Venkatarama Reddy, P. P. Naolekar - JJ.)