Conviction Based On Disclosure Statement Can Be Sustained Only When Resultant Recovery Is Unimpeachable: Supreme Court

The Supreme Court observed that to convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material, the recovery should be unimpeachable and not be shrouded with elements of doubt.

In this case, the High Court of Punjab and Haryana had upheld the Trial Court judgment which convicted an accused ­Bijender @ Mandar under Sections 392 and 397 of the Indian Penal Code. The issue considered by the Apex court in appeal was whether the conviction on the strength of the purported disclosure statement and the recovery memo in the absence of any corroborative evidence, can sustain?

The court noted that the Trial Court and the High Court have shifted the burden on the accused to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. The bench of CJI NV Ramana, Justices Surya Kant and Hima Kohli made the following observations:

1. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt.1 We may hasten to add that circumstances such as (i) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (Para 16)
2. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent". (Para 17)

The court also noted that the High Court and the Trial Court have been swayed by irrelevant considerations, such as the rise in the incidents of dacoity. It said:

It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons. The burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence. It is the bounden duty of the prosecution in cases where material witnesses are likely to be slippery, either to get their statements recorded at the earliest under Section 164 Cr.P.C. or collect such other cogent evidence that its case does not entirely depend upon oral testimonies. (Para 18)

The bench took note of the following facts to allow the appeal and set aside conviction of the accused:

Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of  ASI Rajinder Kumar (PW­14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local Page | 11 witnesses. The only independent witness to the recovery was Raldu (PW­8) who was admittedly a companion of the Complainant. Secondly, the Complainant (PW­4) as well as Raldu (PW­8), have unambiguously refuted that neither the passbook, nor the 'red cloth' was recovered from the possession of the Appellant, as claimed in his disclosure statement. Thirdly, while the Complainant (PW­4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW­8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement. Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the 'red cloth' with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW­14), can also be easily available in market. Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant. Page | 12 Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

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