Incriminating Article's Recovery From Open Place/Visible To Others Vitiates Evidence U/S 27 Of Evidence Act: Chhattisgarh High Court

The Chhattisgarh High Court has observed that when recovery of any incriminating article is made from a place that is open or visible to others, it would vitiate the evidence under Section 27 of the Evidence Act.

It may be noted that the conditions necessary for the applicability of Section 27 of the Evidence Act [How much of information received from accused may be proved] are:

(1) Discovery of fact in consequence of information received from the accused;

(2) Discovery of such fact to be deposed to;

(3) The accused must be in police custody when he gave information and

(4) So much of information as relates distinctly to the fact thereby discovered is admissible.

Noting that the discovery in the instant case had vitiated evidence under section Section 27 of the Evidence Act, the Bench of Justice Sanjay K. Agrawal and Justice Sanjay S. Agrawal observed thus as it set aside the conviction and sentence of one Ramvriksh under Section 302 of the IPC and Section 27 of the Arms Act.

The Court acquitted the accused as it noted that the recovery of the country­made pistol (with which the accused allegedly murdered the deceased) was made after the period of 11 months from the date of offence and that too from dense forest, which was accessible to all.

Therefore, the Court found it difficult to accept that the country­made pistol was in exclusive possession of the appellant/accused as it was seized from forest accessible and visible to all and thus, recovery became doubtful.

The facts in brief

The wife of the deceased (Sohna) namely Julan (wife) allegedly eloped with the appellant/accused and they started to reside in the mountains. One Dhani Ram (PW­3) informed the deceased that his wife was with the accused in mountains nearby forest.

Thereafter, the deceased and Dhaniram both went to the spot where both of them were present and staying therein. The deceased asked his wife to accompany him, but the accused / appellant said that he will take her & reach to village.

Thereafter, all four proceeded to return to their village. On the way, Dhaniram (PW­3) stayed for answering the call of nature and the deceased proceeded further to his village and thereafter, Dhaniram heard the noise of a gun­shot injury.

When he reached the spot, he found the deceased lying dead on the floor and stated that the said gunshot injury was made by the appellant herein. 

The Trial Court convicted him under Section 302 of the IPC and Sections 25(1­B) and 27 of the Arms Act and sentenced him to undergo imprisonment for life, against which, the instant appeal was preferred by the appellant.

Court's observations

At the outset, the Court observed that the prosecution had failed to explain why a delay of 3 days had occurred in registering the FIR and as to why Dhaniram did not lodge a report despite the fact that his son-­in­-law was shot dead despite the fact that he had allegedly seen appellant firing the gunshot.

The Court further noted that the appellant had not confronted or contradicted Dhaniram's statement under Section 161 CrPC when he (PW­3) was examined before the Court.

Regarding the recovery of the pistol, the Court noted that the incident took place on September 25, 2008, whereas the recovery of the pistol was made on August 19, 2009 (after 11 months after the incident), and that too from the dense forest and accessible to all and it was not clear that whether it was visible to all, but it remained in dense forest for more than 11 months.

In this regard, the Court referred to the Apex Court's rulings in the case of Trimbak v. The State of Madhya Pradesh AIR 1954 SC 39, State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, and Bijender alias Mandaar v. State of Haryana (2022) 1 SCC 92 to observe that in order to sustain the guilt of an accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.

"The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles," the Court further observed.

Lastly, the Court also noted that the prosecution could not establish that it is the appellant who used countrymade pistol in shooting deceased Sohna.

In view of this, the Court set aside the conviction awarded for offence under Section 27 of the Arms Act, however, the Court affirmed the conviction and sentence of the appellant for offence under Section 25(1­B) of the Arms Act.

Lastly, since the appellant was in jail since August 19, 2009, the Court ordered for his release forthwith.

Case title - Ramvriksh v. State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 53

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