Section 27 Recovery Must Satisfy Court's Conscience; Prosecution May At Times Take Advantage Of Custody Of Accused By Other Means : Supreme Court

"Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso," the Court said.

The bench of Justices SK Kaul and MM Sundresh further said that, "The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act."

Section 27 of Evidence Act, 1872 which deals with How much of information received from accused may be proved says that, "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."

Here, the Court noted that the some of the mahazar witnesses of Section 27 recoveries as regards Accused 10 to 13 were affiliated to the CPI(M) and were improbable witnesses.Some mahazar witnesses turned hostile. A blood stained dress was said to be recovered after 10 days. "It is improbable that the accused would wear the same dress for more than 10 days with blood stains...", the Court observed. Also, the blood stained dress of another accused was recovered from the hospital. But there was no explanation as to how the dress reached the hospital.

Submission Of Counsels

Counsel for the accused(s) A-2, A-4, A-5, A-8, and A-9 (whose conviction was affirmed by the High Court) submitted that the FIR was an afterthought created subsequently and was thus ante dated. It was further contended that though the FIR was sent after its registration at about 11.00 p.m., it did reach the jurisdictional Magistrate only at about 4.15 p.m. the next day. Counsel further averred that this delay had not been examined. It was further contended that the witnesses were either interested or chance and, therefore, the courts ought to have rejected their testimonies.

Appearing for accused A 10 to A 13 (whose acquittal was reversed by the High Court) Senior Advocate R Basant while referring to the judgement in Mohan @ Srinivas @ Seena @Tailor Seena v. State of Karnataka, 2021 SCC OnLine SC 1233 contended that when after due examination and review of evidence, the Trial Court has passed an order of acquittal, the exercise of the power of the High Court as imposed by the code must be with circumspect. It was also contended by Senior Counsel that High Court had committed an error in placing reliance upon recoveries and that it did not go into the manner in which the recoveries have been made.

Counsel for the State contended that in the absence of any apparent illegality, the concurrent decisions rendered by the courts did not warrant any interference. It was also contended that both the Courts below considered all the evidence, eye-witnesses, material objects and recoveries while also taking into account the scientific evidence.

Supreme Court's Analysis

The bench in the judgement authored by Justice MM Sundresh to adjudicate on the issue firstly dealt with the scope of the appeal filed against acquittal.

Appellate Court Has To Be Relatively Slow In Reversing Order Of Trial Court Rendering Acquittal

Referring to Section 378 of CrPC, 1973 and the precedents laid down in Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233], N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] said,

"While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

Mere Delay To Send FIR To Jurisdictional Magistrate Cannot Be Sole Factor To Reject Prosecution's Case Arrived After Due Investigation

Emphasising on the role played by Jurisdictional Magistrate during the investigation process, bench said,

"The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the Court concerned to take a call. Such a view is expected to be taken after considering the relevant materials."

Long Unexplained Delay In Sending Investigation Report To Jurisdictional Magistrate Would Give Room For Suspicion

Remarking that Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense, bench said,

"An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared.

29. Similarly, a statement recorded, as in the present case, the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion."

Pursuant to the aforesaid discussion, the Top Court restored the acquittal by the Trial Court with regards to A10- A13 and dismissed the criminal appeal assailing the conviction of A-2, A-4, A-5, A-8, and A-9.

Case Title: Jafarudheen & Ors. v State of Kerala| Criminal Appeal No 430 of 2015

Citation : 2022 LiveLaw (SC) 403

Coram: Justices SK Kaul and MM Sundresh

Headnotes

Indian Evidence Act 1872- Section 27 -Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso (Paragraph 31)

Indian Evidence Act 1872- Section 27 -  The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act. (Paragraph 32)

Code of Criminal Procedure 1973 - Section 378 - Appeal against acquittal - While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters (Para 25)

Code of Criminal Procedure 1973 - Section 159- Mere delay to send FIR to jurisdictional magistrate cannot be sole factor to reject prosecution's case  (Para 26, 27)

Criminal Investigation - Delay in recording Section 161 CrPC Statement -An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared. Similarly, a statement recorded, as in the present case, the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion (Para 28)