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

Q.31 What is the test for making “conduct” admissible under Section 8 of the Evidence Act ?

Ans. In order to be admissible under Section 8 of the Evidence Act, the conduct of the accused should have a close nexus with the “fact in issue” or “relevant fact”. Explanation 1 to Section 8 makes the position clear. (Vide paras 205 and 206 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.32 Is it permissible to dissect the information furnished by the accused so as to admit only that much information of the nature mentioned in Section 27 ?

Ans. Yes. The last portion of Section 27 makes it clear that it is not the confessional part that is admissible but it is only such information or part of it which relates distinctly to the fact discovered which is admissible. (Vide paras 121, 143, 125, 128 and 138 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ).

See also para 16 of Pulukuri Kotayya (Supra – AIR 1947 PC 67); para 14 of Mohammad Inayatullah v. State of Maharashtra AIR 1976 SC 483 = (1976) 1 SCC 828 – P. N. Bhagwati, R. S. Sarkaria – JJ; Para 58 of Rijo v. State of Kerala 2009 KHC 1145 = 2010 Cri.L.J. 1315 (Kerala DB) – K. Balakrishan Nair, P. Bhavadasan – JJ).

See also Section 167 of the Evidence Act.

Q.33 Will not any “illegality” or “irregularity” in obtaining evidence affect the admissibility of such evidence ?

Ans. No. Even if evidence was obtained illegally, it will still be admissible in evidence. Of course, the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. (Vide paras 153 and 154 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.34 What are the twin tests to be applied to evaluate a “confession” ?

Ans. The twin tests are (1) whether the confession was perfectly voluntary and (2) if so, whether it is true and trustworthy. If the first test is not satisfied, then the question of applying the second test does not arise. (Vide para 36 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.35 Whether delay or inconsistency in the ground on which “confession” is retracted or disowned, would affect the “confession” so as to make it inadmissible ?

Ans. No. In the absence of abnormal delay in retracting the confession, mere delay or inconsistency in the ground of retraction will not improbabilise the confession. (Vide para 187 and 188 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ.)