S.27 Evidence Act Can't Aid Prosecution If Recovery Isn't Proved To Be Based On Disclosure Of Accused : Supreme Court

The Supreme Court recently (on February 24), while acquitting two persons convicted for the offence of murder, observed that the circumstance leading to the deceased's body discovery was not proved beyond all reasonable doubt as against the appellant. The observation was made in regard to Section 27 of the Evidence Act, which talks about information received from the accused which may be proved.

If the discovery was not proved to be in furtherance of the confessional statement, then the confessional statement cannot be accepted as per Section 27 of the Evidence Act.

“If that be the position, not only the chain of circumstantial evidence is not complete, all the circumstances put forth by the prosecution to prove the guilt of the appellant cannot be accepted as having been proved as valid pieces of evidence. Therefore, the appellant deserves to be given the benefit of doubt and is entitled to an acquittal on this count.,” the Bench of Justices Abhay S. Oka and Ujjal Bhuyan said.

Section 27 provides 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.

In the present case, a FIR was lodged by the deceased's father against the appellant for kidnapping his minor daughter. He alleged that though the appellant's mother and his bother-in-law had assured him that their marriage would be arranged, there was no trace of the deceased for about four days. Thus, the FIR was lodged. The appellant was arrested and in the course of the investigation, the deceased's body was found.

The Trial Court convicted the appellant for criminal charges including murder. When challenged, the High Court affirmed the charge of murder. Pertinently, the prosecution's case was based on three circumstances. First, the appellant and the victim were last seen together; Second, the extrajudicial confession made by the appellant before prosecution witnesses; Third, the fact of recovery of the dead body following these confessional statements.

The High Court had discarded these extrajudicial confessions on the ground that the same were made in the presence of the police. However, it convicted the appellant based on the other two circumstances. Against this background, the matter came before the Apex Court.

At the outset, the Court observed that Section 26 of the Evidence Act, which deals with confession made by an accused while in police custody, should be discussed conjointly with Section 27. For convenience, Section 27 reads as:

“27. How much of information received from accused may be proved. – 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.”

Taking a cue from this, the Court referred to several cases pertaining to Section 27, including Pulukuri Kottaya Vs. King-Emperor. Therein, it was observed that the discovery of fact under Section 27 of the Evidence Act arises because the information given by the accused exhibited his knowledge or mental awareness as to its existence at a particular place.

In furtherance of this, the Court also examined the statements of prosecution witnesses. Highlighting the discrepancies, the Court pointed out how one witness had stated that the appellant confessed his guilt at the police station and told him about the deceased's body. However, he later contradicted himself by saying that he instead saw the deceased's body in the police station.

“From the above, it is clear that except PW-6 none of the aforesaid witnesses have stated that they were present at the place from where the dead body was recovered by the police on being shown by the accused persons. They had only seen the dead body in the police station.,” the Court said. However, it pointed out certain loopholes in the testimony of pw-6, who stated that it was the other accused who had confessed to the killing and not the appellant.

In view of this, the Court concluded that it cannot be said that the deceased's body was recovered at the appellant's instance. Thus, Section 27 of the Act cannot support the prosecution's case.

"After analysing the evidence on record, it is difficult to accept the prosecution case that the dead body of Marjina was recovered from the concealed place near the Pandu railway track at the instance of the appellant. Therefore, Section 27 of the Evidence Act cannot come to the aid of the prosecution."

Cementing this background, the Court said that the chain of circumstantial evidence was not completed and the High Court erred in convicting the accused.

“When one of the three circumstances was disbelieved and discarded by the High Court, then the chain of circumstantial evidence could not have been held to be complete and proved and on that basis to hold the accused guilty of the offence. Each and every circumstance forming the chain of circumstantial evidence has to be proved.”

To support the Court relied on a recent case of Ramu Appa Mahapatar Vs. State of Maharashtra. The Court had observed that extrajudicial confession is one of the other instances of circumstantial evidence, including the accused's guilt after the incident, recovery of evidence, and others. Thus, in cases where reliance is placed solely on circumstantial evidence, a conviction can only occur when all circumstances point towards the accused's guilt.

On the issue of the appellant and the victim being last seen together, the Court pointed out the testimony of PW-2 who had stated that the appellant had forcefully taken the deceased. However, at the same time, she also deposed that the appellant and the deceased were in love. Further, the deceased had gone with the appellant on her own accord and did not raise any hue and cry. Also, the dead body was recovered only five days after this alleged act. After relying on a thread of precedents, including Kanhaiya Lal Vs. State of Rajasthan (2014) 4 SCC 715, the Court included:

“Applying the legal principles culled out from the above decisions to the evidence of PW-2 and PW-3, it is clear that there was considerable time gap between the time the appellant and the deceased were last seen together alive and recovery of the dead body. Therefore, it cannot be said with any degree of certainty that it was the appellant and the appellant alone who had committed the offence.”

Before parting, the Court also brought one glaring lacuna into light. It observed that though the appellant's mother and brother-in-law said that they would arrange the deceased's marriage with the appellant, they were not produced as prosecution witnesses. Thus, the concerned persons being material witnesses, their non-examination of such material witness dented the prosecution's case. Based on this and the above evidence, the Court concluded that motive was absent on the appellant's part.

“It has come on record that the appellant and the deceased were in love. Mother of the appellant along with his brother-in-law had told PW-1, father of the deceased, that they would arrange the marriage of the two. Therefore there could not have been any motive for the appellant to cause the death of Marjina.”

Lastly, to bolster these findings the Court also relied on Shivaji Chintappa Patil Vs. State of Maharashtra, wherein it was observed that in a case of circumstantial evidence, motive plays an important link in completing the chain of circumstances.

As a result, the court, while allowing the appeal, acquitted the accused. When the prosecution failed to prove each of the circumstances against the appellant, the courts below were not justified in convicting the appellant., the Court said.

Case Name: MD. BANI ALAM MAZID @ DHAN v. STATE OF ASSAM., CRIMINAL APPEAL NO. 1649 OF 2011

Citation : 2025 LiveLaw (SC) 251

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