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

Q.36 Whether an “extra-judicial confession” made by the accused to TV and press reporters in an interview arranged by the police while the accused was in the immediate presence of the police or in police custody, is admissible?

Ans. No, such “extra-judicial confession” will be hit by Section 26 of the Evidence Act. If the statement was made to a police officer, it will be inadmissible in view of Section 25 of the Evidence Act and Section 162 Cr.P.C. (Vide para 176 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ).

Q.37 Whether the conduct of the accused in pointing out to the police the “shops” from where the incriminating objects where purchased, would fall under Section 27 of the Evidence Act if the police already knew the names and addresses of those shops from the packets of seized articles?

Ans. No. It will not fall under Section 27 of the Evidence Act. But the conduct of pointing out the shop would be relevant under Section 8 of the Evidence Act. (Vide paras 204 and 220 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ.)

Q.38 How to evaluate the “confession of a co-accused” under Section 30 of the Evidence Act?

Ans. The Court should not start with the confession of a co-accused. The Court should begin with the other evidence and marshal such other evidence against the co-accused first after excluding the confession altogether from consideration. If from such evidence a conviction could safely be based independently of the confession, then it is not necessary to call the confession into aid. But cases may arise where the Judge is not prepared to act on the other evidence as its stands even though the other evidence, if believed, would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself. From the expression used in Section 30 of the Evidence Act which reads “the Court may take into consideration such confession” what is implied is that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. (Vide paras 39 and 40 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ – Case law discussed.)

Q.39 The father of the accused hands over the bloodstained clothes of his son (accused in a murder case) to the police stating that his son was found wearing the same when he came home one night. The police officer takes the clothes into custody under a mahazar which is attested by 2 witnesses. During the trial of the case the father of the accused turns hostile to the prosecution. Thereupon the Public Prosecutor examines a witness to the recovery mahazar to prove the factum of recovery of the bloodstained clothes. The defense objects to it. Whether the objection is sustainable?

Ans. Yes. What is prohibited under Section 162 Cr.P.C cannot be indirectly achieved by such a disingenuous method. (Vide James @ Chacko v. State 1994 (1) KLJ 871 K.T. Thomas, K. J. Joseph - JJ. See also Prabhoo v. State of U.P. AIR 1963 SC 1113 = (1963) 2 Cri.L.J. 182 – 3 Judges - S. K. Das, A. K. Sarkar, M. Hidayatullah - JJ).

Q.40 In a murder case, the dead body of the deceased is recovered from a canal. During the course of investigation the accused gave a statement to the Investigating Officer that the dead body of the person was carried on a motor cycle upto a particular spot. A broken piece of the tail lamp of the motor cycle is recovered from that spot. Whether the statement which is non-inculpatory in nature, will fall under Section 27 ?

Ans. Yes. The information may be confessional or non-inculpatory. But, if it results in the discovery of a fact, it is reliable information. If nothing more was recovered pursuant to the information, then there is no discovery of a fact. (Vide paras 36 and 38 of State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1691 - K. T. Thomas, D. P. Mohapatra – JJ; Para 17 of Mehboob Ali v. State of Rajasthan (2016) 14 SCC 640 - H. L. Dattu – CJ, Arun Mishra - JJ.)