Section 27 Evidence Act -Recovery Cannot Be Relied Upon When Statement Of Accused Is Not Recorded : Supreme Court

The Supreme Court observed that the recovery cannot be relied on under Section 27 of the Evidence Act in the absence of record of the statement of accused.

The bench of Justices B R Gavai and  M M Sundresh acquitted a murder accused who was concurrently convicted by the Trial Court and the High Court.

Boby, along with other accused, were convicted for the offences punishable under Sections 395, 365, 364, 201, 380, 302 and 302 read with Section 34 of the IPC. In appeal, the contention raised on Boby's behalf was that a Memorandum under Section 27 of the Indian Evidence Act, 1872 is required in cases of recovery initiated at the instance of an accused person, based on the statements made before the Police. Neither such Memorandum was prepared at the time of the recovery of the body of deceased Vishwanathan, nor were signatures of independent or panch witnesses taken at the time of said recovery, it was contended.

The Apex Court bench noted that the trial court has relied on the following circumstances: (i) Last seen together with the deceased; (ii) Recovery of the stolen material including jewellery from accused No.3­Boby; (iii) Recovery of spade from accused No. 1­Shibu @ Shibu Singh; (iv) Recovery of the dead body at the instance of accused No. 3­ Boby;

Regarding the circumstance (iv), the bench noted that, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby, the bench said.

"In the present case, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein)"

While setting aside the concurrent conviction, the court made the following observations regarding Section 27:

Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. (Chandran v. State of Tamil Nadu (1978) 4 SCC 90 ; State of Karnataka v. David Rozario (2002) 7 SCC 728 )

IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act.   Subramanya v. State of Karnataka (2022 SCC OnLine SC 1400 : 2022 LiveLaw (SC) 887)

Two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. The Court held that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence (Suresh Chandra Bahri v. State of Bihar 1995 Supp. (1) SCC 80)

Case details

Boby vs State of Kerala | 2023 LiveLaw (SC) 50 | CrA 1439 OF 2009 | 12 Jan 2023 | Justices B R Gavai and M M Sundresh

For Appellant(s) Mr. R. Basant, Sr. Adv. Mr. Abdulla Naseeh V.T., Adv. Meena K. Poulose, Adv. Mr. Akshay, Adv. Mr. Ashok Basoya, Adv. Ms. Shruti Jose, Adv. Mr. P. S. Sudheer, AOR

For Respondent(s) Mr. K.N. Balgopal, Sr. Adv. Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Ms. Ashly Harshad, Adv. 

Headnotes

Indian Evidence Act , 1872 ; Section 27 - There is no statement of accused recorded under Section 27 of the Evidence Act - The prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of the accused - Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery - Referred to Pulukuri Kotayya and Others v. King­Emperor 1946 SCC OnLine PC 47 ; Chandran v. State of Tamil Nadu (1978) 4 SCC 90 and State of Karnataka v. David Rozario (2002) 7 SCC 728  (Para 20 -26)

Indian Evidence Act , 1872 ; Section 27 -  Two essential requirements for the application of Section 27 - (1) the person giving information must be an accused of any offence and (2) he must also be in police custody - The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence - Referred to Suresh Chandra Bahri v. State of Bihar 1995 Supp. (1) SCC 80 (Para 31-33)

Indian Evidence Act , 1872 ; Section 27 - The law expects the IO to draw the discovery panchnama as contemplated under Section 27- Referred to Subramanya v. State of Karnataka 2022 LiveLaw (SC) 887. (Para 25-26)

Criminal Trial - Last Seen Theory -  Last­ seen theory comes into play where the time­gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out - Solely on the basis of last seen theory, the conviction could not have been recorded. - Referred to State of U.P. v. Satish (2005) 3 SCC 114.  (Para 16,17,29)

Criminal Trial - Circumstantial Evidence - Golden principles with regard to conviction in a case which rests entirely on circumstantial evidence - It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established - The accused ‘must be’ and not merely ‘may be’ guilty before a court can convict the accused - There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved" - The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty - The circumstances should be such that they exclude every possible hypothesis except the one to be proved - There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused - Referred to Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116. (Para 9-10)

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