“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-XI]

Q.51 The culprit husband who is subsequently made an accused voluntarily goes to the police station soon after committing brutal murder of his wife and tells the Sub Inspector who is the SHO that he butchered his wife to death and reveals the place where he has concealed the chopper. The Head Constable is sent to the place mentioned by the person. The Head Constable finds the chopper at the spot mentioned and recovers it under a mahazar. Whether it is discovery of a fact provable under Section 27 of the Evidence Act?

Ans. Yes. Such a person who offers to furnish information which may be used against him, submits himself to “police custody”. Hence, the requirement that he should be in the “custody” of a police officer is satisfied. As for the requirement that he should be “accused of an offence”, there need not be a formal accusation against him at the time when he gives the statement. It is enough if he is subsequently made an accused. See State of Uttar Pradesh v. Deoman Upadhyaya - AIR 1960 SC 1125 (C.B). - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ. paras 12 and 18). A person can be deemed to have surrendered to the police when he offers to give information leading to discovery under Sec. 27. [Vide –

• Gurbaksh Singh v. State of Punjab - (1980) 2 SCC 565 = AIR 1980 SC 1632 (5 Judges) - Y. V. Chandrachud - C. J. I., P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ;
• Gujaganda Somaian v. State of Karnataka - AIR 2007 SC 1355 - Arijit Pasayat, Lokeshwar Singh Panta - JJ.].

There is absolutely nothing in Section 27 to indicate that the person who discovers the incriminating fact should be the identical person who received the information. (Vide para 34 of Sekharan v. State of Kerala 1979 KLT 337 = 1980 Cri.L.J. 31 – Narayana Pillai, Kaader – JJ and para 57 of Rijo v. State of Kerala; Para 57 of Rijo v. State of Kerala 2009 KHC 1145 = 2010 Cri.L.J. 1315 (DB) – K Balakrishnan Nair, P. Bhavadasan - JJ).

Q.52 In paragraph 8 of the decision rendered on 25-4-1995 by the Supreme Court of India in Jackaran Singh v. State of Punjab - AIR 1995 SC 2345 = 1995 Crl.L.J. 3992 it is observed as follows:-

“So far as the conscious possession of the weapon Ext. MO/4 is concerned, the disclosure statement, Ex. P9 inspires no confidence. Firstly ,because none of the two panch witnesses, Yash Pal and Sukhdev Singh ASI, have been examined at the trial and secondly because the disclosure statement does not bear the signatures or the thumb impression of the appellant. Even, the recovery memo of the revolver and the cartridges, Ext.P-9/A, which is also attested by Yash Pal and Sukhdev Singh, ASI does not bear either the signatures or the thumb impression of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Sec. 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement”.

Do the following statements in the above observation, reflect the correct position of law for supporting the acquittal, namely –

(a) The disclosure statement does not bear the signatures or the thumb impression of the appellant (accused).

(b) The absence of the signatures or the thumb impressions of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.

(c) None of the two panch witnesses, Yash Pal and Sukhdev Singh ASI, have been examined at the trial.

(d) Even the recovery memo of the revolver and the cartridges, Exhibit P-9/A which is also attested by Yash Pal and Sukhdev Singh ASI, does not bear either the signatures or the thumb impressions of the accused.

(e) Has the above observation made by the Apex Court, resulted in any injustice ?

Ans. (a) The observation made by the Supreme Court is that the disclosure statement by the accused does not contain the “signatures” or “thumb impressions” of the accused. The above observation overlooked the fact that under Sec. 162 (1) Cr.P.C. there is an interdict against obtaining the signatures of persons interrogated in their statements. When Section 162 (1) Cr.P.C. prohibits the police officer recording the statement from taking the signatures of the persons interrogated by him, the Supreme Court is finding fault with the prosecution in not obtaining the signatures and thumb impressions of the accused in the disclosure statement. This is an observation clearly overlooking the interdict under Section 162 (1) Cr.P.C.

The prohibition contained in Section 162 (1) Cr.P.C. against obtaining the signature, is not applicable to any proceedings under Section 27 of the Evidence Act. (Vide para 29 of State of Rajasthan v. Teja Ram AIR 1999 SC 1776 = (1999) 3 SCC 507 – K. T. Thomas, D. P. Mohapatra – JJ.)

The prohibition against the taking of signature is more a direction to the Investigating Officer than to the Court because the police underlying the rule is to keep the witness free to testify in Court unhampered that which the police claim to have elicited from the witness. (Vide Tahsildar Singh v. The State of U.P. AIR 1959 SC 1012 – 6 Judges - K. Subba Rao.); Razik Ram v. Jaswant Singh AIR 1975 SC 667; Para 28 of State of Rajasthan v. Teja Ram AIR 1999 SC 1776 = (1999) 3 SCC 507 – K. T. Thomas, D. P. Mohapatra – JJ.)

The investigating officer is not obliged to obtain the signature of the accused in any statement attributed to him while preparing the seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. Even if any signature has been obtained, that by itself will not vitiate the evidence regarding the recovery. (Vide para 30 of State of Rajasthan v. Teja Ram AIR 1999 SC 1776 = (1999) 3 SCC 507 – K. T. Thomas, D. P. Mohapatra – JJ.) See also paras 37 to 40 of Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 = 2012 Cri.L.J. 4657 – Dr. B. S. Chauhan, F. M. Ibrahim Kalifulla – JJ.)

The practice of the police taking signatures of the accused and witnesses in inquest reports and Sec. 161 statements has been deprecated as unwholesome and unwarranted (See Kuruvila Joseph v. State - 1952 KLT 216 = AIR 1952 T.C. 300 – K. T. Koshi - CJ).

But the mere fact that the police have taken signed statements from the witnesses is no ground to reject their testimony in Court if the same is otherwise credible. (See –

• Kesavan Sreedharan v. State of Kerala - 1960 KLT (SN) 10 – M. P. Menon - J;
• State of Kerala v. Samuel - 1960 KLT 666 (FB) = ILR 1960 Kerala 783 (FB) – 3 Judges – M.A. Ansari – CJ, Anna Chandy, P. Govinda Menon – JJ;
• Para 95 of Razik Ram v. Jaswant Singh Chouhan (1975) 4 SCC 769 = AIR 1975 SC 667 – A. Alagiriswamy, R. S. Sarkaria – JJ – (Behind Section 162 (1) Cr.P.C. is a wholesome rule of public policy that witnesses at the trial should be free to tell the truth unhampered by anything they might have been made to say to the police (see Tahsildar Singh v. The State of U.P., 1959 Supp (2) SCR 875 = (AIR 1959 SC 1012).
• Para 11 of Gurnam Kaur v. Bakshish Singh AIR 1981 SC 631 – R. S. Sarkaria, O. Chinnappa Reddy – JJ (Referring to the defence contention that finger impressions of the eye witnesses taken by the police on the statements made at the time of inquest, it was argued that the above fact showed that the police were not quite confident about the reliability of the eye-witnesses to the occurrence, it is observed as follows:-

“We are unable to agree with the submission of Shri. Anthony. It is not axiomatic that whenever the police take the signatures of witnesses to their statements despite the ban under Section 162 Cr.P.C., it must be presumed that the witnesses were not considered reliable by the police. It is a question of fact to be determined in the light of the circumstances of each case.”;

• State of U. P. v. M. K. Anthony AIR 1985 SC 48 – D. A. Desai – J. (Obtaining signature of the witness on his statement under Section 161 Cr.P.C. recorded by the police, would not render the evidence of the witness inadmissible. But, the Court will evaluate the evidence more carefully in such case.);
• Para 13 of Abraham v. Supdt. of Police 1988 (1) KLT 379 – S. Padmanabhan - J – Evidence of a witness given in Court does not become inadmissible merely for the reason that his signature was obtained in the statement recorded during investigation.);
• Paras 28 to 30 of State of Rajasthan v. Teja Ram and Others - AIR 1999 SC 1776 – K. T. Thomas – J – Held that recovery of axe pursuant to statement made by the accused under Section 27 of the Evidence Act and obtaining the signature of the accused on the seizure memo, does not vitiate the seizure or the testimony of the witness in Court. That apart, the prohibition under Section 162 (1) Cr.P.C. is not applicable to any proceedings made under Section 27 of the Evidence Act in view of the exception under section 162 (2) Cr.P.C.);

The fact that the signature of the accused Afzal Guru was obtained on the disclosure statement does not, however, detract from its admissibility to the extent it is relevant under Section 27 of the Evidence Act.(Vide Para 207 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 – Parliament Attack Case – P. Venkatarama Reddy - J).

• Para 11 of State of Rajasthan v. Wakteng – (2007) 14 SCC 550 = AIR 2007 SC 2020 – Arijit Pasayat – J – Merely because a statement is recorded by the police personal and the thumb impression of the deceased was affixed to it, it cannot be straightaway rejected.)

(b) This observation contains two parts. The first part deals with the absence of the signatures and thumb impressions of the accused on the disclosure statement. This has been dealt with under answer (a) above.

The second part of the observation refers to “disclosure statement recorded under Section 27 of the Evidence Act”. The basic assumption made in the observation that the disclosure statement is recorded under Section 27 of the Evidence Act, is erroneous. Whatever statement, whether of a witness or an accused, is recorded by an investigating police officer by recourse to his power under Section 161 Cr.P.C. The words “any person supposed to be acquainted with the facts and circumstances of the case” occurring in Section 161 (1) Cr.P.C. has been held to include “an accused person” as well. (Vide –

• Syamo Maha Patro v. Emperor AIR 1932 Mad. 391 (FB), which was approved by the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47 – Lord Atkin - J;
• Para 3 of Velu Viswanathan v. State - 1971 KLT 80 (DB) – T. C. Raghavan - J;
• Para 4 of Mathew Zacharia v. State of Kerala - 1974 KLT 42 (DB) – V. P. Gopalan Nambiyar, George Vadakkel – JJ;
• Para 39 of Mahabir Mandal and Others v. State of Bihar – (1972) 1 SCC 748 = AIR 1972 SC 1331 - 3 Judges – J. M. Shelat, R. Khanna, G. K. Mitter - JJ;
• Paras 32 and 33 of Nandini Satpathy v. P.L. Dani and Another - (1978) 2 SCC 424 = AIR 1978 SC 1025 – 3 Judges – V. R. Krishna Iyer, Jaswant Singh, V. D. Tulzapurkar – JJ ).

(c) Yet another observation made by the Apex Court was that the panch witnesses (mahazar witnesses) were not examined. The law on the point is that non-recording of the disclosure statement or non-examination of public witnesses to justify the recovery cannot be fatal to the prosecution case. (See para 70 of S.C. Bahri v. State of Bihar - AIR 1994 SC 2420 – Dr. A. S. Anand, Faizan Uddin - JJ.). Section 27 does not lay down that the statement made by the accused to a Police Officer should be in the presence of independent witnesses…………Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the Courts generally seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the Court to seek corroboration from an independent source in such cases while assessing the evidence of the police officer. But, in cases where the Court is satisfied that the evidence of the police can be independently relied upon, then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. (See para 21 of Praveen Kumar v. State of Karnataka - (2003) 12 SCC 199 – N. Santosh Hegde, B. P. Singh - JJ.). It is equally well settled that a recovery can be proved by the solitary evidence of the investigating officer if his evidence is otherwise trustworthy. (See para 9 of Himachal Pradesh Administration v. Om Prakash - AIR 1972 SC 975 = 1972 SCC (Crl) 88 – P. Jaganmohan Reddy, D. G. Palekar - JJ.)

NOTES BY THE AUTHOR: Thus, the law does not envisage that the disclosure statement should be taken in the presence of any independent witnesses or that such a disclosure statement should even be recorded or that a mahazar or a panchanama should be prepared evidencing the disclosure statement made by the accused or evidencing the recovery of the incriminating object. Investigating police officers usually prepare mahazars in the presence of independent witnesses evidencing the recovery to ensure credibility and transparency of their actions and as a measure of making a contemporaneous record of the particular act of investigation conducted by them. It is humanly impossible for an investigating police officer to recollect each and every step of investigation conducted by him in each and every case investigated by him. When he has prepared contemporaneous records of investigation, he can, while testifying before Court, refresh his memory by recourse to Section 159 of the Evidence Act and correctly depose before Court regarding the various steps of investigation taken by him. When the law does not insist on any independent witnesses to witness the recovery, non-examination of any such witness called by the investigating officer, also cannot be fatal to the prosecution. Under Section 27 of the Evidence Act what is admissible as primary evidence of the disclosure statement is what the investigating police officer has “deposed” in the Court as indicated by the Section itself. The police officer while giving evidence should depose in terms of the disclosure statements in first hand and in the words of the accused himself. (“Ipsissima verba” – in the very words of the accused) (See my article tilted “The Mode of Bringing on Record “the fact discovered” Under Section 27 of the Evidence Act” – published in 2022 (1) KHC journal 13).

(d) Absence of the signatures and thumb impression of the accused on the recovery memo regarding the revolver and the cartridges is also not a failure on the part of the prosecution. This has been discussed under point (a) above. Obtaining the signature of the accused in a recovery mahazar can really lead to anomalous consequences.

If the signature of the accused is obtained only to indicate that the presence of the accused is noted and so expressed in the mahazar, or to indicate that the accused is informed about the recovery of the articles mentioned in the recovery memo, then the recovery memo will not be inadmissible for the reason that it is hit by Section 162 (1) Cr.P.C. (Vide State v. Satwant Singh 1987 (1) Crimes 257 (FB) (Delhi) – S. Ranganathan, B. N. Kripal, M. K. Chawla – JJ – Held that the recovery memo is only in the nature of a receipt and the signature is only an acknowledgment that the police have informed him that they have recovered from him the article mentioned therein. The memo can be viewed as nothing more than a record by the police officers of what they recovered from him and the signature of the arrested person can be viewed only as a token of his having been informed about it. It cannot be given a higher status than an admission by the accused that the documents mentioned in the memo have been recovered from him. It does not become inadmissible because it is got signed by the witness.)

But, if the signature of the accused is taken at the foot of the seizure mahazar, it can amount to pinning down the accused to whatever is stated in the mahazar including the confessional part. This may prejudicially affect him in his defence.

In paragraph 5 of Narayan Rao v. State of A. P. AIR 1957 SC 737 – 3 Judges – B. P. Sinha, Syed Jafer Imam, J. L. Kapur – JJ, it has been observed as follows :-

“The prosecution also proved, as EX. P-5, the panchnama prepared the same day and signed not only by the panchas but purporting to have been signed also by the accused persons. This document is a record which is a complete confession of the crime from the beginning to the end, by all the accused persons.

This was highly irregular, but fortunately, it was not a jury trial and has not, therefore, done much harm to the accused persons, but certainly the provisions of the Evidence Act and of the Code of Criminal Procedure, have not been observed.”

At any rate absence of the signature of thumb impression of the accused in the recovery mahazar is not so serious a defect as to justify an acquittal.

It has been held that a confessional FIR by the accused is hit by Section 25 of the Evidence Act save and except as provided by Section 27. (Vide Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119 – 3 Judges – K. Subba Rao, Raghubar Dayal, R. S. Bachawat – JJ; Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 – Dr. A. S. Anand, Faizan Uddin - JJ.)

(e) The law as wrongly laid down above resulted in unmerited acquittals throughout the length and breadth of the country. Noticing that an error of law had crept into the judgment, the Supreme Court itself on 25-4-1996 suo motu reviewed the judgment in Jackaran Singh's Case and deleted the above objectionable passage from the judgment and issued a corrigendum which was reported only in 1998 Judicial Vision (1) Kerala - Page 1. (Published by the Kerala Judicial Academy). None of the law journals including the AIR and Cri.L.J. which had reported the original judgment in Jackaran Singh, reported the review order passed suo motu by the Supreme Court. The review order was referred to in a decision of the Division Bench of the Kerala High Court in para 48 of Saidu Mohammed v. State of Kerala - 2005 (4) KLT (SN) 62 = 2006 Crl.L.J. 413 – K. Padmanabhan Nair & V. Ramkumar - JJ. A Division Bench of the Madras High Court speaking through Justice Karpagavinayagam, had occasion to note the report in the Kerala Judicial Vision and had expressed anguish over the failure on the part of the leading Law Journals in not reporting the review order of the Supreme Court. (See Natarajan v. Union Territory of Pondicherry - 2003 Crl.L.J. 2372 = 2003 KHC 2450 (Madras) (DB) - M. Karpagavinayagam, A. K. Rajan - JJ.) In para 41 of the above Madras ruling, the text of the review order of the Supreme Court is extracted. All these aspects have been adverted to in detail in Saidu Mohammed (Supra – 2006 KHC 2107 (Kerala – DB) – K. Padmanabhan Nair, V. Ramkumar – JJ and also in Paulose K. K. @ Samkutty v. State of Kerala (2015) 3 KLJ 10 (Kerala – DB) – K. T. Sankaran, B. Sudheendra Kumar – JJ.)

Interestingly, in the year 2003, the Supreme Court itself in para 14 of Golakonda Venketeswara Rao v. State of Andhra Pradesh- AIR 2003 SC 2846 – H. K. Sema – J, attempted to distinguish the original judgment in Jackaran Singh without knowing or being informed that the Supreme Court itself had suo motu reviewed Jackaran Singh on 25-04-1996. Again in paras 24 to 26 of Sunil Clifford Daniel v. State of Punjab – (2012) 11 SCC 205 – Dr. B. S. Chauhan – J, the Supreme Court once again distinguished Jackaran Singh without adverting to the suo motu review which was undertaken by the same Court. Referring to Teja Ram (Supra – AIR 1999 SC 1776) and Golakonda Venkateswara Rao (Supra – AIR 2003 SC 2846) it was held that the investigating officer is not obliged to obtain the signatures of the accused in any statement attributed to the accused while preparing seizure memo for recovery of any article covered by Section 27 of the Evidence Act and even if any signature is obtained, there is nothing wrong or illegal about it. Even recently a three Judge Bench of the Supreme Court has once again referred to Jackaran Singh's case prior to the suo motu review and has attempted to distinguish the same. (Vide Para 23 of Kishore Bhadke v. State of Maharashtra – (2017) 3 SCC 760 = AIR 2017 SC 279 - 3 Judges – J. S. Khekar, Arun Mishra, A. M. Khanwilkar – JJ ).

Still more interesting is the fact that the original text of Jackaran Singh's case was published in the year 1997 by a law journal after the date of the suo motu review of the judgment by the Supreme Court. (Vide Jackaran Singh v. State of Punjab 1997 SCC (Crl) 651 – Dr. A. S. Anand, M. K. Mukharjee – JJ ).

ORIGINAL JUDGMENT OF JACKARAN SINGH FOLLOWED IN THE UNDERMENTIONED REPORTED CASES

1. Para 10 of Fellix – Joannas v. State of Karnataka – (Karnataka DB) – Kumar Rajaratnam and M. P. Chinnappa – JJ – accused was acquitted following Jackaran Singh without noticing the suo motu review by the Supreme Court.
2. Tejram v. State of Chhattisgarh (Chhattisgarh High Court – DB) 2003 Cri.L.J. 4529 = 2003 KHC 2926 – L. C. Bhadoo – J – accused was acquitted following Jackaran Singh without noticing the suo motu review.
3. Para 9 and 10 of Nurjahan Khatoon v. Jharkhand 2004 Cri.L.J. 3022 = 2004 KHC 2678 (Jharkhand – DB) – Lakshman Uraon – J – applied Jackaran Singh to support the acquittal by holding that the accused and the witnesses had signed in the recovery memos.
4. Jagtar Singh v. State of Punjab 2005 Cri.L.J. 4400 = 2005 KHC 3124 – P and H (DB) – Pritam Pal – J - the conviction of the accused was confirmed following Jackaran Singh to hold that the disclosure statement contained the thumb impression of the accused.
5. Smarty Machra v. State 2007 Cri.L.J. 4341 = 2007 KHC 6724 (Delhi) – Badar Durrez Ahmed – J, order framing charge was confirmed directing the trial court to consider during trial the non-signing of the disclosure statement also.

There are ever so many unreported decisions by various Courts in the country at all levels, recording unmerited acquittals by relying on the pre-revised original judgment in Jackaran Singh's case.

ORIGINAL JUDGMENT OF JACKARAN SINGH NOT FOLLOWED IN THE UNDERMENTIONED REPORTED CASES

1. Para 19 of Ibrahim K. M. @ Bava v. State of Karnataka 2000 Cri.L.J 197 = 2000 KHC 1972 (Karnataka – DB) – M. F. Saldanha – J – Jackaran Singh distinguished but without knowing about the suo motu review by the Supreme Court.
2. Para 9 of Vishwambhar v. State of Maharashtra (Bombay – DB) – D. H. Marlaballe – J – Jackaran Singh was distinguished holding that in Jackaran Singh both the panch witnesses were not examined. Suo motu review of Jackaran Singh was not noticed.
3. Golakonda Venketeswara Rao v. State of Andhra Pradesh- AIR 2003 SC 2846 – H. K. Sema – J – Jackaran Singh was distinguished without knowing the suo motu review of Jackaran Singh by the Supreme Court itself.
4. Natarajan v. Union Territory of Pondicherry - 2003 Crl.L.J. 2372 = 2003 KHC 2450 (Madras) (DB) – M. Karpagavinayagam – J – suo motu review of Jackaran Singh, as published in 1998 Judicial vision (1) (Kerala) – Page 1 noted and the original verdict in Jackaran Singh was not followed.
5. Para 13 of Anwar Khan v. State of M. P. 2004 Cri.L.J. 1653 = 2004 KHC 2398 – (Chhattisgarh High Court - DB) – L. C. Bhadoo – J – Jackaran Singh was distinguished holding that in Jackaran Singh the panch witnesses were not examined whereas in this case they were examined. Suo motu review of Jackaran Singh was not noticed. (It is pertinent to note that this very same Judge had applied Jackaran Singh to acquit the accused in Tejram v. State of Chhattisgarh (Chhattisgarh High Court - DB) 2003 Cri.L.J. 4529 = 2003 KHC 2926 – L. C. Bhadoo – J.
6. Saidu Mohammed v. State of Kerala - 2005 (4) KLT (SN) 62 = 2006 Crl.L.J. 413 – K. Padmanabhan Nair & V. Ramkumar – JJ – Original Jackaran Singh verdict was not followed in view of the suo motu review published in 1998 Judicial vision (1) (Kerala) – Page 1. Also noted Natarajan v. Union Territory of Pondicherry - 2003 Crl.L.J. 2372 = 2003 KHC 2450 (Madras) (DB) – M. Karpagavinayagam – J.
7. Paras 24 to 26 of Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 – Dr. B. S. Chauhan – J – Jackaran Singh was distinguished without noticing the suo motu review by the Supreme Court itself.
8. Para 170 of Ibrahim Musa Chauhan @ Baba Chauhan v. State of Maharashtra (2013) 13 SCC 1 = 2013 KHC 4215 – P. Sathasivam & Dr. B. S. Chauhan – JJ – Jackaran Singh was distinguished without noticing the suo motu review by the Supreme Court itself.
9. Paulose K. K. @ Samkutty v. State of Kerala (2015) 3 KLJ 10 (Kerala – DB) – K. T. Sankaran, B. Sudheendra Kumar – JJ – suo motu review of Jackaran Singh and the anguish expressed by Karpakavinayagam – J of Madras High Court in Natarajan's case 2003 Crl.L.J. 2372 etc. referred to.

Q.53 In a murder case it is proved that the weapon was kept concealed in a bush by the side of a public road which was accessible to all and sundry. Will the recovery of the weapon pursuant to the disclosure statement of the accused, fall under Sec. 27 of the Evidence Act ?

Ans. Yes. It is not the openness of the place or the public nature of the place that is decisive. Even in a public place an object could be concealed with the knowledge of concealment exclusively remaining with the accused and no one else.

(Vide --

• Kunjan Nadar Radhakrishnan v. State of Kerala - 1989 (1) KLT 806 – U. L. Bhat, Ramakrishnan – JJ - para 23 overruling State of Kerala v. Joseph - 1963 KLT 992 - Anna Chandy - J;
• Damodaran Damu v. State of Kerala - 1990 (1) KLT 305 = ILR 1990 (3) Kerala 873 - Padmanabhan, Rajasekharan – JJ;
• Mathew v. State of Kerala - 1990 (2) KLT 564 = AIR 1999 SC 1293 - K. T. Thomas, S. S. Mohammed Quadri – JJ;
• State of Maharashtra v. Bharat Fakira Dhiwar - 2002 (1) SCC 622 - K. T. Thomas, S. N. Variava - JJ.)

But if the recovery at the instance of the accused, is from an open place accessible to all, it may not be possible to hold that the accused was in possession of the revolver and the cartridges recovered. (Vide Aslam Parwez v. Govt. (NCT of Delhi) (2003) 9 SCC 141 = AIR 2003 SC 3547 - S. Rajendra Babu, G. P. Mathur - JJ.)

See also the following case :-

Krishan Mohar Singh Dugal v. State of Goa AIR 1999 SC 3842 = (1999) 8 SCC 552 – G. T. Nanavati, R. P. Sethi - JJ

Q.54 Pursuant to the “disclosure statement” made by the accused to the Circle Inspector of Police, the weapon of offence is recovered by the Head Constable of Police. Whether the recovery will fall under Sec. 27 of the Evidence Act.

Ans. Yes. There is nothing in Sec. 27 to indicate that the person who recovers the incriminating fact should be the identical person who received the information. In order to fall under Sec. 27 it is sufficient if the discovery by whomsoever it be made, is made consequent on the information given by the accused. (Vide para 34 of Sekharan v. State of Kerala - 1979 KLT 337 = 1979 (1) ILR (Kerala) 156 = 1980 Cri.L.J. 31 - Narayana Pillai, Kader - JJ and para 57 of Rijo v. State of Kerala - 2009 (2) KLD 803 - Para 57 - K. Balakrishnan Nair, P. Bhavadasan - JJ.)

Q.55 The accused in a murder case is in judicial custody for 65 days. On the 66^th day the Investigating Officer, with the permission of the Court questions the accused who is in the Sub Jail. Pursuant to the disclosure statement of the accused, the investigating officer recovers the weapon of offence from the place of concealment revealed by the accused. Is it not admissible under Sec. 27 of the Evidence Act ?

Ans. The answer to this question is not easy. One way of looking at the problem is that the accused is in judicial custody which is not the custody contemplated by Section 27 under which the custody should be police custody. Hence Section 27 will have no application to a person who is in judicial custody. Even if it were to be assumed that at the time of actual interrogation the accused is within the ken of surveillance (as was held in State of A.P. v. Gangula (1997) 1 SCC 272 - A. S. Anand, K. T. Thomas - JJ.) still the position will not be any better. After the first 15 days of detention of custody, the accused cannot be given to police custody in view of the interpretation placed on Sec. 167 (2) Cr.P.C. in C.B.I. Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni - AIR 1992 SC 1768 - A. M. Ahmadi, K. Jayachandra Reddy – JJ and Budh Singh v. State of Punjab - (2000) 9 SCC 266 - A. S. Anand, R. C. Lahoti, S. N. Variava - JJ. If so, what the police cannot do directly, cannot be achieved indirectly by resorting to such a procedure. What Sec. 27 of the Evidence Act contemplates is police custody and interrogation of the accused while in judicial custody cannot convert his judicial custody into police custody, particularly after the first spell of 15 days of judicial custody.