S.27 Evidence Act | Discovery Not Vitiated Merely If Material 'Openly Accessible', Unless It Is Visible To 'Bare Eyes' Of People: Orissa High Court

The Orissa High Court has reiterated that the statement of an accused leading to discovery of an object/material is not vitiated if the same is 'openly accessible', rather it can said to be tainted when it is visible to the 'bare eyes' of the people passing through the area.

Clarifying the position of law, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash observed –

“It is more than important to clarify that merely because an object is openly accessible to public, the same would not vitiate the evidence under section 27. The real test is not to ascertain whether the object/material is 'openly accessible', rather it is to see whether the same was visible to the bare eyes of the common people passing through the said accessible place.”

Brief Background

The appellant was accused of pouring kerosene on her husband and setting him ablaze, which ultimately led to his death. After the incident, the FIR was lodged and basing upon the statement of the appellant, a kerosene jerrycan was discovered from near a heap of bricks.

After taking into account evidence on record, the trial Court came to the conclusion that the appellant committed the murder of the deceased. The Court took 'jealousy' as a motive behind commission of the crime as the deceased-husband had married for the second time and was sleeping with the second wife in the night of incident as well.

Further, the conduct of the appellant appealed to the judicial conscience of the Court that even though the deceased was fatally serious, still the appellant did not attend him at any time. Thus, it held her guilty for commission of murder of the deceased.

Court's Observations

Apart from analyzing other evidence on record, the Court examined the statement of the appellant recorded under Section 27 of the Evidence Act. The appellant had given a statement under the aforesaid provision leading to discovery of a jerrycan of kerosene from the backside of her house from near a heap of bricks.

The Court, however, opined that the said object cannot be said to be in a 'hidden state'. When the seizure was made, the jerrycan was lying in an openly accessible space and the same was within the visibility of others. Thus, it held, it cannot be said that the whereabouts of the said object was within the 'exclusive knowledge' of the appellant.

“…It is very clear that discovery of a fact/ a material object must be preceded by the supply of information by the accused person. In other words, to attract the provision under section 27 of the Evidence Act, it is necessary that the police must have discovered something as per the information provided by the accused person. If something is quite easily discoverable, even without the assistance of the accused, the same can hardly be called as an 'information' admissible under the section,” the Court added.

The Court also stressed that only because an object is openly accessible, it does not vitiate the leading to discovery evidence under Section 27, rather when the same is easily visible to the 'bare eyes' of people, it cannot be said to be within the 'exclusive knowledge' of the accused.

In the instant case, as there was no evidence that the jerrycan was not openly accessible nor there is any material to show that it was out of visibility of the general public, the Court discarded the leading to discovery statement of the appellant.

Resultantly, taking into account the above aspect vis-à-vis other evidence, the Court doubted the prosecution case and deemed it proper to give benefit of doubt to the appellant. Accordingly, the appellant was acquitted of the charge of murder.

Case Title: Sunita Mundari v. State of Odisha

Case No: JCRLA No. 12 of 2014

Date of Judgment: July 04, 2024

Counsel for the Appellant: Mr. Biswajit Nayak, Advocate

Counsel for the State: Mr. Rajesh Tripathy, Addl. Standing Counsel

Citation: 2024 LiveLaw (Ori) 55

Click Here To Read/Download Order