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

Q.56 Supposing, in the above question “police custody” of the accused is wrongly obtained from the Court and while so, a recovery falling under Section 27 of the Evidence Act is effected. Is the recovery evidence admissible?

Ans. Yes. Such a confession is not liable to be excluded merely on the ground that it was obtained under an illegal order of remand. (Vide State v. N.M.T Joy Immaculate – (2004) 5 SCC 729 = AIR 2004 SC 2282 - S. Rajendra Babu, C. J.I, Dr. AR. Lakshmanan; G. P. Mathur – JJ). This is similar to the admissibility of the evidence procured illegally or obtained in a sting operation.

In M.N.Sreedharan v. State of Kerala 1980 KLT 829 = 1981 Cri.LJ 119 (U.L.Bhat-J) it was held that if the accused while on bail told the Court in clear and unambiguous manner that they had no knowledge or information regarding the existence or the whereabouts of the material objects sought to be recovered from them, then it would be unlikely that they would tell the police about the whereabouts of those articles unless the police adopt means of interrogation not approved by law. Remanding the accused to police custody in such a case would be improper.

In Divides v. State of Kerala 1979 KLT 642 = ILR 1979 (2) Kerala 497 (Khalid –J) it was held that the Court has no right to direct an accused person who is on bail be committed to police custody for the purpose of securing information under Section 27 of the Evidence Act.

In Fr. Benedict v. State of Kerala 1967 KLT 466 = ILR 1967 (2) Kerala 21 (P.T. Raman Nair & V.P. Gopalan Nambiar-JJ) it was held that if the accused had maintained his innocence before the Magistrate and contends that the subsequent confession was made under police torture, then the confession and recovery of the articles would naturally be hit by testimonial compulsion offending Article 20 (3) of the Constitution of India.

In Kochuvarkey v. The Circle Inspector of Police 1985 KLT 1156 = ILR 1985 (2) Kerala 574 (M.M.Pareeth Pillai-J) it was held that the right of the police to question the accused during investigation and discover relevant facts cannot be pre-empted or defeated by a declaration by the accused before the Magistrate that he has nothing to confess to the police. Notwithstanding his protest the Magistrate can remand him to police custody for the purpose of recovery of the weapon.

NOTES BY THE AUTHOR: As a Sessions Judge I used to find the above verdict in Kochuvarkey rendered by Justice M. M. Pareeth Pillai (as he then was before becoming Chief Justice) to be more useful and practicable.

Q.57 It is argued by the defense that Section 27 of the Indian Evidence Act is violative of Article 14 of the Constitution of India since “persons in custody” and “persons not in custody” are treated differently. Is it not a sound argument?

Ans. No. In the normal course, it is unlikely that a person not in custody will go to the police and make a confession of the offence. “Custody” has already been understood to include surveillance. The question of a person in custody and a person not in custody being differently treated is only a theoretical or artificial possibility. If a person not in custody were to go to the police and make a clean breast of himself, there is no reason to suspect his bona fides. This aspect of the matter was considered by the Constitution Bench of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya - AIR 1960 SC 1125 - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah – JJ, where the majority speaking through J.C. Shah –J held in para 12 that -

“When a person not in custody approaches a police officer and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken into custody. Submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer within the meaning of Section 27 of the Indian Evidence Act”.

Q.58 Whether “recovery evidence” by itself is substantive evidence?

Ans. The answer to this question can be in the “negative” in the majority of cases and “positive” in certain limited category of cases. 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. Supposing the accused is having in his possession or is concealing in his room an “unlicensed firearm” or some “narcotic substance”, that by itself is an offence under the relevant penal statutes. Hence, a recovery of any such object or substance on the basis of the disclosure statement of the accused from a place where he has hidden them, would itself establish his complicity. Nothing further need be proved to corroborate the said recovery. But, that is not the position in the majority of cases where the accused merely reveals the place of concealment of the incriminating object. Supposing what he has concealed is only a “dagger”, then the recovery evidence only proves that the accused had hidden the dagger at a secret place. From that alone, it cannot be straightaway concluded that he is the murderer or the culprit. The prosecution will have to further prove that the dagger recovered on the basis of the disclosure statement of the accused, was used by the accused for the commission of the offence. This proof can either be by direct evidence or by circumstantial evidence.

Now let us examine the relevant passage in Pulukuri Kottaya. 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 of Pulukuri Kottaya, 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 house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.”

This is the reason why the Supreme Court of India has also made the following pertinent observations:-

1. 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).
2. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. (Vide para 21 of Mani v. State of Tamil Nadu AIR 2008 SC 1021 – P.P. Naolekar, V. S. Sirpurkar – JJ ).
3. In paragraph 22 of a recent verdict rendered by the Supreme Court on 11-08-2023 in Manoj Kumar Soni v. The State of Madhya Pradesh (Criminal Appeal No: 1030/2023) by S. Ravindra Bhat, Dipankar Datta – JJ, the aforementioned passage in Pulukuri Kottaya has been quoted. In paragraph 21 it is observed as follows:-

“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.”

But unfortunately there is a statement in paragraph 16 of Bijinder @ Mandar v. State of Haryana AIR 2022 SC 466 = (2022) 1 SCC 92 – 3 Judges (N. V. Ramana - C.J.I, Surya Kant, Hima Kohli – JJ) 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”.

That was a case of robbery and murder in which a few packets of “currency notes” allegedly extorted by the accused, a “red-cloth” on which the name “Kamala” was embroidered and used for wrapping the currency notes, a “pass book” etc. were recovered on the strength of the disclosure statements of some of the accused. Besides such recovery, there was further evidence adduced giving corroboration to the effect that the materials recovered belonged to the first informant. In the backdrop of such a factual scenario, an observation as aforesaid by a three Judge Bench of the Supreme Court without explaining as to how “recovery evidence” can form the sole basis for a conviction, was unwarranted besides misleading. In fact, the law journals have highlighted the above passage which is likely to be misunderstood and can even result in an unmerited conviction based on mere recovery evidence without any corroborative evidence. As mentioned earlier, it is only in those cases where the mere “possession” or “concealment” of the subject-matter of the offence by itself is an offence and such possession or concealment is proved by the recovery evidence, can there be a conviction without any further corroborative evidence.

It is to highlight the above distinction that I have taken pains to pen this article so that unmerited acquittals do not take place for want of corroborative evidence besides the recovery evidence in cases where the recovery evidence by itself cannot constitute the sole basis for a conviction.

But if the “disclosure statement” is in respect of an object like an “unlicensed firearm” or a “narcotic drug” the possession of which itself is an offence, the “disclosure statement” can be treated as substantive evidence and a conviction can be based solely on such “disclosure statement”.

Q.59 From the recovery of a “briefcase” and “wristwatch” (allegedly belonging to the deceased) consequent on the “disclosure statement” of the accused, is it not possible to presume that the “murder and robbery” were committed by the accused?

Ans. Not always. From the mere recovery of such common articles which are not of much value, it may not be safe to draw an inference that the accused had committed murder and robbery. (Vide paras 11 to 14 of Dhan Raj v. State of Haryana (2014) 6 SCC 745 = 2014 Cri.L.J. 2778 - C. K. Prasad, Pinaki Chandra Ghose - JJ.)

(Even under Illustration (a) to Section 114 of the Evidence Act, a person who is in possession of stolen goods soon after the theft can only be presumed to be either the thief or receiver of goods knowing them to be stolen).

NOTES BY THE AUTHOR: But there can be cases where gold ornaments stolen or forcibly extracted from the victim and sold by the culprit to a third person like a jeweller who may melt the ornaments and convert the same into gold ingots or new ornaments. In such cases it may not be possible to recover the stolen ornaments pursuant to the disclosure statement of the accused. In cases where such third person or jeweller admits having purchased the gold ornaments from the culprit, that by itself may be sufficient to bring the case under Section 27. What is relevant is the admission by the jeweller etc. about the factum of purchase of the broken gold bangles brought for sale by the accused. This satisfies the requirement of Section 27 of the Evidence Act. But, if the jeweller had turned hostile to the prosecution, the position would have been different. (In paragraph 9 of State of Karnataka v. Deja K. Shetty 1993 Supp. (1) SCC 14 = 1993 SCC (Cri) 242, 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. That was a case in which “robbery and murder” were committed as an integral part of the same transaction attracting the application of Illustration (a) to Section 114 of the Evidence Act. In such cases the “recovery evidence” goes a long way to prove the culpability of the accused. Other cases in which the above presumption operates are –

• Tulsiram Kanu v. State AIR 1954 SC 1 – 3 Judges - M. H. Kania CJI, M. Patanjali Sastri, S. R. Das – JJ.
• Sunderlal v. State of M.P. AIR 1954 SC 28 – Mehr Chand Mahajan, N. H. Bhagwati – JJ.
• Wasim Khan v. State of U.P AIR 1956 SC 400 – 3 Judges – B. P. Sinha, S. J. Imam, N. Chandrasekhara Aiyar – JJ.
• Alisher v. State of U.P. AIR 1974 SC 1830 – 3 Judges – H. R. Khanna, V. R. Krishna Iyer, R. S. Sarkaria – JJ.
• Baiju v. State of M.P. AIR 1978 SC 522 – S. Murthaza Fazal Ali, P. N. Shingal – JJ.
• Mohan lal v. Ajit Singh AIR 1978 SC 1183 – P. N. Shingal, D. A Desai – JJ.
• Earabhadrappa @ Krishnappa v. State of Karnataka AIR 1983 SC 843 - A. P. Sen, E. S. Venkataramiah – JJ.
• Gulab Chand v. State of M.P AIR 1995 SC 1598 – G. N. Ray, Faizan Uddin – JJ.
• Mukund @ Kundu Mishra v. State of M.P. AIR 1997 SC 2622 – M. K. Mukherjee, S. Saghir Ahmad – JJ.
• Ronny @ Ronald James Alwaris v. State of Maharashtra AIR 1998 SC 1251 – M. K. Mukherjee, S. S. M. Quadri – JJ.
• State of Maharashtra v. Damu AIR 2000 SC 1691 – K. T. Thomas, D. P. Mohapatra – JJ.
• Sanjay @ Kaka v. State (NCT of Delhi) AIR 2001 SC 979 – K. T. Thomas, R. P. Sethi – JJ.
• Amitsingh Bhikamsingh Thakur v. State of Maharashtra AIR 2007 SC 676 – Arijit Pasayat, Lokkeshwar Singh Panta – JJ.
• Geejaganda Somaiah v. State of Karnataka AIR 2007 SC 1355 – Arijit Pasayat, Lokeshwar Singh Panta – JJ.

Q.60 An accused person is granted Anticipatory Bail in respect of a cognizable and non-bailable offence. One of the conditions for bail is that he shall make himself available for interrogation including recovery, if any, under Section 27 of the Evidence Act. He is subsequently arrested and released on bail. 33 days after his release the Investigating Officer obtains his custody in the light of the bail condition and effects a recovery falling under Section 27 of the Evidence Act. Is not the recovery bad and liable to be eschewed from consideration since the recovery was long after 15 days of his arrest?

Ans. No. First of all, the question of 15 days has no application in this case. This is because he has not been ordered to be detained in Police or Judicial custody for 15 days or more under Section 167 (2) Cr.P.C. Secondly, there can be a bail condition for facilitating such recovery while granting anticipatory bail. In paragraph 19 of Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 = AIR 1980 SC 1632 – 5 Judges - Y. V. Chandrachud – CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy - JJ, the Constitution Bench observed as follows:-

“While granting relief under S.438 (1), appropriate conditions can be imposed under S.438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under S.27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of S.27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya, 1961 (1) SCR 14 at p. 26: ( AIR 1960 SC 1125 ) to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that S.46 of the Cr. P. C. does not contemplate any formality before a person can be said to be taken in custody submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under S.167 (2) of the Code is made out by the investigating agency.”

The above view was again followed in para 92 of Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1 = AIR 2020 SC 831 – 5 Judges - Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, S. Ravindra Bhat - JJ.