CHAPTER-V RELEVANCE OF INFORMATION OF ACCUSED

Transcription

1 CHAPTER-V RELEVANCE OF INFORMATION OF ACCUSED 5.1 Introduction A part of a confession hit by Sections 25 and 26 of Evidence Act may still be proved against the accused if it distinctly leads to discovery of any fact during the course of investigation by virtue of section 27. The provision is couched in the form of a proviso, an exception, though it is not clear from its terms as to which provisions it qualifies. Fortunately, the controversy has been set at rest by judicial pronouncements and it is accepted that the section qualifies only Section 25 and 26 and not section 24, as shall be seen later in this chapter. First, we examine the nature of and reasons for creating this all important exception to the rule of total exclusion of custodial confessions. Section 27 enacts the English doctrine of confirmation by subsequent facts. The two broad reasons based on which the total exclusion rule in Section 25 and 26 has been justified are: a. Confession made to police or in the presence of the police may be false and could have been made by the accused as the only way to escape police torture. b. Even if true, admitting such confession in evidence will encourage the illegal and inhuman atrocities committed by the police. If a part of a statement made by the accused when he is in police custody directly and distinctly leads to discovery of a fact relevant to the investigation, the veracity of the said part gets confirmed. This makes at least reason cited at (a) above not applicable so far as that particular part of the statement is concerned. As regards reason (b), its absence is ensured by the Supreme Court in the Landmark judgement delivered by a bench of eleven

2 163 judges hold that the provision of section 27 is constitutionally valid subject to the condition that the information has not been obtained by compulsion. 1 Thus, a statement of an accused or part thereof as made admissible in evidence by section 27 assumes a great significance both because it provides for a well justified relaxation to the total exclusion rule in case of confirmation of the statement be subsequent facts and also may, more so, because this is one provision which is susceptible to the most blatant misuse by the police. Discoveries can be planted on the accused. They can also be made by way of an illegal search and shall be admissible in evidence ever if illegality is proved, because of the absence in the Indian Constitution, of a right akin to the IV amendment to the U.S. Constitution. 2 It has been specifically held by the Indian Supreme Court that an evidence obtained by illegal search and seizure is nevertheless admissible Conditions necessary for application of Section 27 The conditions necessary for application of this provision are: (i) The fact of which evidence is sought to be given must be relevant to the issue; (ii) The fact must have been discovered in consequence of some information received from the accused whether the said information amounts to a confession or not; (iii) The person giving the information must be accused of any offence; (iv) (v) He must be in custody of a police officer; The discovery of a fact in consequence of information received from an accused in custody must be deposed; State of Bombay v. Kathi Kalu, AIR 1961 S.C Ratan Lal & Dhiraj Lal : The law of Evidence, p. 198, (Edi 21, 2005). Vijay Singh v. State of M.P., 2005 Cr. L.J. 299 (M. P. High Court).

3 164 (vi) That portion only of the information which relates distinctly to the fact discovered can be proved. 5.3 The Facts Discovered The fact discovered in consequence of information must be a relevant fact. The fact must be the consequence and the information, the cause of its discovery. The information and the fact should be connected with each other as cause and effect. If any portion of the information does not satisfy this test, it should be excluded. 4 Therefore, it is the connection of the thing discovered with the offence which renders it is a relevant fact. 5 The mere pointing out of places by the accused where the occurrence took place without any material thing having been found there would not be included within the term fact discovered under Section Similarly, a discovery of a person who afterwards comes to rank as a co-accused does not come within the term fact as postulated in section The fact discovered may be the stolen property, the instrument of crime, the corpse of the person murdered or any other material thing; or may be a material thing in relation to the place or the locality where it is found. 8 Fact as defined in Section 3 of the Evidence Act includes both physical and psychological facts. But it appears that discovery of any fact referred to in Section 27 of the act does not include mental or psychological facts, for example, the mental acts of becoming aware of something or intention. The word fact is used in the sense of physical fact which can be perceived by the sense and discovery of such facts alone can eliminate the fear Rajender Kumar v. State of Rajasthan, 2003 Cri. L.J (S.C.) Ayyappan v. State of Kerala, 2005 Cri. L.J. 57 (Kerla High Court). Charat alias Sunda v. State of Haryana, 2005, Cri. L.J (Punjab & Haryana High Court). R.V. Babulal (1884)6 All 509. Surjit Singh v. State of Punjab, 2005 Cri. L.J (Punjab & Haryana High Court).

4 165 of confession being extracted by improper inducement and confirm the truth of the information received from the accused. It is laid down that normally the section is brought into operation when a person in police custody produced form some place of concealment some object such as a dead body, a weapon or ornaments said to be connected with the crime of which the information is the accused. 9 The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this. In Udai Bhan v. The State of Uttar Pradesh, 10 the facts and the decision thereon were as follows: The complainant went out for a short while by locking his shop. On his return after about 3/4 th of an hour he found his shop broken open and above containing Rs. 2,000/- and clothes and another box from the pond containing Rs. 200/- stolen. During the investigation on being interrogated the accused while in police custody brought a box from the pond near his field and handed it over to the police. The accused also handed over to the police the key which fitted the lock and said that he had opened the lock of the shop of the complainant with that key. Recovery memos were prepared in which the police had stated those matter relating to discovery. It was held that the evidence in regard to the discovery of the key as well as the box was admissible in evidence under section 27 of the evidence Act. The handing over of the key was not a confessional statement but the confession made in fact is that with that key the shop of the complainant was opened and therefore that portion was inadmissible in evidence and only that portion was admissible which distinctly related to the fact discovered, i.e., the finding of the key. Similarly, the recovery of the box was provable because there was no 9 10 Bharat v. State of M.P., 2003 Cri L.J S.C. AIR 1962, SC 1116.

5 166 statement of a confessional nature in the recovery memo relating to it. It was also observed that a discovery of a fact includes the object found, the place form which it is produced and the knowledge of the accused as to its existence. 5.4 Information must be Received form a Person Accused of any Offence The expression accused person in section 24 and the expression person accused of any offence in Section 25 have the same connotation, and describes the person against whom evidence is sought to be led in a criminal proceeding. The expression accused of any offence in Section 27 as in Section 25, is also descriptive of the person concerned against whom evidence relating to information alleged to be given by him is made provably by section 27 of the evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved as a condition of its applicability Information should come from Accused himself When information under Section 27, Evidence Act, is sought to be admitted, the condition imposed is that it should be an information coming form a person accused of any offence in the custody of a police officer. This information must, therefore, come from an accused himself, and not from anybody else, and this must lead to the discovery of some relevant fact. The discovery of the dead body had been made by the accused himself but the information that the dead body lay at a certain place before the accused had discovered it, was given by somebody else, and it was therefore, held that this information could not be admitted in evidence. 12 On accused s statement, while in police custody, the police officer went to the house of one Bhupat Singh. The property was not found in Bhupat Singh s house but in evidence State of U.P. v. Deoman Upadhyay, AIR 1960 S.C In re Addanki Vankadu, AIR 1939 Mad. 266.

6 167 Bhupat Singh had stated that the accused had brought a bandle to his house and buried it in a room there. He had also stated that later one Dilipat Singh, brother of the accused, had asked him to make over the property to Ram Piarey, and he had accordingly handed it over to him. The property was ultimately recovered from Ram Piarey who deposed in court that Bhupat Singh had given him certain properties and that he gave them to the subinspector. The court held that it was the information of Bhupat Singh and Ram Piarey that led to the discovery and not the information of the accused and therefore, what they had stated in this connection was not admissible in evidence under section 27 Evidence Act. 13 In fact when there has to be a further inquiry of an independent nature before the discovery is made one cannot say that it is distinctly related to the information, and so the information is not admissible under the Section. 14 The accused made a statement that the box which he stole was lying concealed under his fodder and that he would produce it. On a search, the accused failed to find the box. Thereupon, he stated that perhaps his mother had placed the box somewhere. The box was discovered as a result of the information furnished by the mother. The court held that none of the statements of the accused has lead to any discovery. The knowledge of the stolen property could not be attributed to the accused Information Emanating from more than one Accused For information to be admissible under Section 27, should proceed from a person accused of any offence. It is not un-often that there are more than one such person, and the information that is given by one may be known to others also who are similarly conditions. But where one such person had Kartar Singh v. State, AIR 1952 A.P. 42. Ponu Pilli v. State, 1955 Kerala Law Times 214. Bala v. State, 1955 Rajasthan Law Weekly 314.

7 168 made a statement which leads to the discovery of the incriminating article, a similar statement by another person would be of no avail to the police because the police already knows where the incriminating article is, and it would be merely repeating things if others are also asked about it. The High Court of Kutch held that if the whereabouts of the stolen articles were discovered from the statement of one accused then the statements of the other accused would not be admissible as they do not lead to discovery. 16 Once property has been discovered in consequence of information received from a suspected person, it cannot be re-discovered in consequence of information received from another suspected person, and therefore, it is only the information that was given by the first person and which led to the actual discovery which may be proved under the terms of Section Even where the information which leads to the discovery of the incriminating articles comes from one person, but the actual discovery is made by the other, anything which this person might have said in the matter is not admissible in evidence under Section 27. It is clear that where the case of the prosecution is that discovery was made in consequence of information coming from two persons, evidence must be led to indicate as to which of them first made the statement which led to the discovery. It is the statement made by the first individual which can be admitted under Section 27, as against him. The statement made by the other cannot be used in evidence. But where the prosecution is not in a position to establish in a case of joint statement as to who made the first statement that led to the discovery, the evidence under the section would not be admissible to establish the guilt of either of the accused and therefore, the evidence is to be discarded altogether Mala Bijal v. State, AIR 1954 Kutch 22. Budh v. Emperor, AIR 1922 Lah. Gurubaru v. The King, AIR 1949 Orr; Abdul Qudir v. Emperor, AIR 1946 Cal. 452.

8 169 The statement attributed to the accused Choteylal was I and Hirachand have kept (them) hidden at mile No. 313 in the jungle near the railway line-2 bales in the nala and 2 bales in the bushes. I can go and point for which I shall go and point out. Hirachand, the second accused had made the statement. All these five bales were kept hidden on the same day in the night before sunrise. I am prepared to go and point out. I may be excused. Both the accused were stated to have given the statement in the, presence of each other, but the discovery was made at the instance of individual accused, three bales by one accused and tow bales by the other accused. The prosecution did not lead evidence as to which accused had made the statement first. The court held that it was clear enough that the sub-inspector had made Hirachand to discover two bales and Chhoteylal to discover three bales not because Hirachand or Chhoteylal was individually not in a position to discover all the five bales, but to establish the fact that both accused persons knew the places where the bales were kept. That simultaneous statements were per se inadmissible in evidence but since in the case discoveries had been made by individual accused which afforded a guarantee about the truth of the statements and therefore, these simultaneous or joint statements were admissible and could be considered against each of the accused. 19 It therefore, follows that if the statement is jointly recorded or the statement attributed to different accused is of the same pattern that would constitute but one composite statement that would not serve to faster the individual guilt, for there would be no knowing on whose information the material fact was discovered. 20 However, each case will have to be judged on its own facts but the underlying principle seems to be that the information is State of M.P. v. Chhoteylal, AIR 1955 Nag. 71. Karappa Vallayan v. State, AIR 1960 Kerla 238.

9 170 such information as cannot be said to be already in the possession of the police and the discovery is made in consequence of that information and further that the discovery is not re-discovery of something already discovered Consequential discoveries must from Confessions to Police Under the Evidence Act, there are two situations in which confessions to police are admitted in evidence. One is when the statement is made in the immediate presence of a Magistrate, and the second, when the statement leads to the discovery of a fact connected with the crime. The discovery assures the truth of the statement and makes it reliable even if it was extorted. This is so provided in Section 27. In order to assure genuineness of recoveries, it has become a matter of practice that recoveries should be effected in the presence of witnesses. The Supreme Court has pointed out that there is no such practice that where recoveries have to be effected form different places, different sets of persons should be called to witness them. The fact that the witnesses to recoveries are the neighbours of the deceased and, therefore, sympathetic to him, is not material. 22 The section is quite apparently laid out as a proviso or an exception to the preceding section which deal with confessions in police custody and other involuntary confessions. Thus it seems that the intention of the legislation that Nathu v. State, AIR 1958 All 467. Khujji v. State of M.P., AIR 1991 SC 1853, following Himachal Pradesh Admn. v. Om Prakash, (1972)2 SCR 765 : AIR 1972 SC 975. But see Banifas Samad v. State, Cr. L.J (Orissa), statements of witnesses not recorded, nor any witness to testify as to what information was given by the accused, evidence ruled out. Relying upon Madan Singh v. State of Rajasthan, AIR 1978 SC 1511, where the facts were similar; also of the same kind Bhago Gowda v. State, (1988)1 GCR 400. Khalaksingh v. State of M.P., 1992 Cr. L.J (MP) respectable residents of the locality not joined as witnesses to recovery and whatever witnesses were there, their signatures were obtained at police station, recovery not admissible. Recovery was that of a shirt belonging to the victim, recovery after 3 months, not good evidence. Ram Singh v. State of Punjab, 1992 Cr LJ 805 (P & H), recovery witness, related to accused, also resident of a distant village, unnatural, evidence of recovery rejected. R. v. Keeman. (1989)1 All ER 598 recording of a statement leading to a recovery some six weeks after the arrest of the accused would require a statement of the reasons for the delay. R. v. Delaney, (1989)88 Cr. App. R. 338 at by failing to make a contemporaneous note as soon as practicable, the police officers deprive the court of a cogent piece of evidence.

10 171 all objections to the validity of that part of the statement are washing which leads to the discovery of an article connected with the crime finding of articles in consequence of the confession appears to the trustworthy that part which relates to them. 23 Whether such a states are proceeds out of inducements, threats or torture are absolutely immaterial Statements made by the accused in connection with an investigation in the other case which lead to the discovery of a fact are also relevant. 24 That is of an involuntary confession confirmed by the discovery of real evidence admissible because the truth of the statement is established by that evidence. 5.8 Sections 26 and 27 Compared Though the section is in the form of a proviso to Sec. 26, these sections do not deal with evidence of the same character. Section 26 of the confession to police altogether, but S. 27 lets in a statement which leads or crucial discovery whether it amounts to confession or not. Under Section 27 a confession made in the presence of a Magistrate is wholly provable, whereas Cockels cases and statutes on evidence, 199 (11 th ed, by G.D. Nokes, 1970, based on R. v. Gould, (1840) 9 C. & P. 364 : 173 E.R See Narayan Singh v. State of M.P., AIR 1985 SC 1678: (1985) 4 SCC 26, where it is observed that evidence regarding recoveries affords a guarantee to the truth of the prosecution case. Thus in State of Maharashtra v. P.K. Pathak, AIR 1980 S.C. 1224, the conviction of a person on the basis of recoveries if smuggled goods affected as indicated by him was sustained. Anber Singh v. State of Rajasthan, AIR 2004 SC 2865 : (2004) 10 SCC 657 requirements of the section restate many irregularities found in the process of recovery. The words : so much of such information as related directly to the fact thereby discovered refers to that part of the information supplied by the accused which is the direct and immediate cause o the discovery. This affords some guarantee of the truth of the statement and makes it admissible and this is not true of the other parts of the statement which are indirectly or remotely connected with discovery. The Court also remarked that recovery from an open place does not always render it vulnerable. The recovery was of a pistol from an open place accessible and visible to all, credibility of prosecution version affected. The evidence was not to be rejected because the non-official witnesses was not supporting the recovery. State of M.P. v. Kriparam, (2003) 12 SCC 675, recoveries by themselves do not take the prosecution case any further where the eye-witnesses are not acceptable. The Allahabad High Court held in Safi Mohd. Husain v. State of U.P., 1992 Cr. L.J (All.). That if the statement does not amount to a confession, it would be barred by S. 162 Cr. P.C. But the language of the section is quite clear, it says whether the statement amounts to a confession or not. State of Rajasthan v. Bhup Singh, (1997)10 S.C.C. 675.

11 172 Section 27 permits only that part of the statement which leads to the discovery of fact. 25 The scope of the section was explained by the Privy Council in Pulukuri Kottaya v. Emperor. 26 A number of accused persons were prosecuted for rioting and murder. Some of them were sentenced to death and some transportation for life. They appealed to the Privy Council on grounds among others, that the statements of some of them were admitted is violation of Sections 26 and 27. The statement of one of them was About 14 days ago I, Kottaya, and people of my party lay in wait for Sivayya and others We all beat Sivayya and Subayya to death. Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the trick of my village. I will show if you come. We did all this at the instance of Pulukuri Kottaya. Another accused said : I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place. The relevant articles were produced from their respective places of hiding. The High Court of Madras admitted the whole of the above statement. Proceeding against the weight of Indian authority, the High Court held that unless the whole of the statement is admitted, it would be difficult to connect the articles produced with the offence, the only connecting link being the confessional statement. The court followed its own earlier Full Bench decision in Athappa Goundan v. Emperor. 27 In that case the court had to deal with a confession of murder made by a person in police custody, and the court State of U.P., v. Deoman Upadhaya, AIR 1960 S.C at p AIR 1947 PC 67. ILR 1937 Mad. 695 : AIR 1937 Mad. 618 : 171 I.C. 245 (F.B.)

12 173 admitted the confession because in the last sentence (readily separable from the rest) there was offer to produce two bottles, a rope and a cloth bag, which, according to the confession, had been used in the commission of the murder, and the objects were in fact produced. The court was impressed by the consideration that as the objects produced were not in themselves of incriminating nature their production would be irrelevant unless they were shown to be connected with the murder and there was no evidence so to connect them apart from the confession. Sir John Beaumont, who delivered the judgement of the Privy Council, at once pointed out that the case was wrongly decided and was against the trend of Indian authority. 28 The result of the decision was to read in Section 27 something which is not there and admit in evidence a confession barred by Section 26. Explaining the relationship between Sections 26 and 27 and the ban imposed by Section 26, their Lordships said: That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26 added by Section 27 should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the fact discovered as equivalent to the object produced; the fact 28 It was against the decision of the Bombay and Lahore High Courts in Sukhan v. Emperor. ILR (1929) 10 Lah. 283 : AIR 1929 Lah. 344 : 115 I.C. 6 (F.B.); Ganu Chandra v. Emperor, ILR (1932)56 Bom. 172 AIR 1932 Bom. 286 : 137 IC 174.

13 174 discovered embraces the place from which the object is produced and the knowledge of accused as to this, and the information given must relate distinctly to this fact. Information as to the past use of the object produced is not related to its discovery. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words are added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. 29 Explaining the scope of the section in general terms, their Lordships observed: Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to the proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be 29 AIR 1947 PC 67 at p. 70. This was reiterated by the Supreme Court in State of U.P. v. Jogeshwar, (1983)2 SCC 305 : AIR 1983 SC 349 Cr. L.J. 686 : 1983 All L.J. 231, that fact discovered means the authorship of concealment, and not the guns and daggers used in the crime. Conduct and concealment are incriminating circumstances. This conduct substantiated by discoveries constitutes evidence.

14 175 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 accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. 30 Referring to the facts of the case their Lordships held that the whole of statement except the passage, I hid it (a spear) and my stick in the trick in the village. I will show if you come is inadmissible. Referring to the statement of the other accused, that I stabbed Sivayya with a spear. I hid the spear in a yard of my village. I will show you the place, their Lordships held that the first sentence must be omitted. Only the information that definitely relates to the facts discovered is admissible. But the information should not be truncated in such manner as to make it insensible. The information must be recorded. Where it is not recorded, the exact information must be adduced through evidence. 31 In a case involving robbery and murder, one of the accused persons told: I am wearing the pant which I washed after the commission of the offence. The other accused said I can recover the looted property. The property was then recovered at his instance from the place of hiding. An AIR 1947 PC 67 at p. 70. This ruling was endorsed in Jaffar Hussain Dastagir v. State of Maharashtra, AIR 1970 SC 1934 : (1969)2 SCC 872 : K. Chinnapaswamy Reddy v. State of A.P., AIR 1962 SC 1788 and Shamshul Kanwar v. State of U.P. (1995)4 S.C.C. 430 : 1995 AIR SCW 274. Inculpatory statements are relevant if they are connected with the discovery of facts. Bodh Raj v. State of J. & K. AIR 2002 S C

15 176 objection to the admissibility of these statements was overruled. The words did not implicate the accused persons with the commission of the crime. They referred only to the articles connected with the crime. 32 Where the accused took the investigation officer and panchas to the dealer from whom he purchased the weapon of murder, the information was held to be inadmissible under S. 27. It was, however, admissible under S. 8 as showing the conduct of the accused person. 33 It is necessary that the person in question should be accused of some offence. Where without any accusation a person was brought to the police station for interrogation, his statement and consequential discovery of a fact were held to be not relevant under S Where the accused disclosed: I have kept the firearm concerned behind the old house under a heap of wood. The same was recovered from that place. The court said that the fact discovered was not the gun but the fact that the accused had concealed it at the place from where it was found according to his disclosure. 35 Discovery of fact means something more than the thing produced. The discovery of the fact arises by reason of the fact that the information given by the accused exhibited his knowledge or mental Sanay v. State (NCT of Delhi), AIR 2001 S.C The brother of the deceased was taken as a witness to the process of recovery. The Court said that he served the purpose of an independent witness. The articles were identified by the daughter of the deceased. That was also held to be the most natural evidence. Golakonda Venkateswara Rao v. State of A.P., AIR 2003 SC recovery of skeletal remains of the deceased from a well as indicated by the accused. Conviction on that basis alone was found to be proper. State of Karnataka v. David Rozario, AIR 2002 SC 3272, the articles proved to have been stolen by the accused were of very small value, articles of higher value remained untouched in the house of the deceased, whether this could be exculpatory circumstance in a charge of murder with robbery, or whether such evidence could be sole basis of conviction, question left unanswered. H.P. Administration v. Om Prakash, AIR 1972 SC 975. Manoranjan Singh v. State of Delhi, (1998)3 SCC 523. Pandurang Kalu Patil v. State of Maharashtra, AIR 2002 SC 733.

16 177 consciousness. Only the information which distinctly related to the discovery is provable. The rest of the information has to be excluded. The word distinctly means indirectly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of provable information. The phrase refers to that part of the information which is the direct and immediate cause of the discovery. Only such information is admissible whether it amounts to confession or not. 36 The fact discovered on the basis of information supplied may qualify for relevancy if it is the immediate and proximate cause of the information. It is not necessary that the accused should be taken to the spot to point to the place of hiding, through this fact may be taken into account for evaluation of evidentiary value. 37 The fact that the disclosure statement was signed by the accused does not detract it from its admissibility. 38 A joint and simultaneous disclosure is also relevant. But such a thing being rare, it will be one of factors to go towards evaluation. 39 The information which brings about discoveries is relevant only against the accused who furnished such information and not against other accused. Where the discovery was due to the knowledge gained by the police from other sources, the statement of the accused was not relevant under Section 27. But his conduct in pointing out the shop and its proprietor was relevant under Section State (NCT) of Delhi v. Navjot Sandhu, (2005)11 S.C.C. 600; Murugan v. State of T.N., AIR 2008 S.C. 2876, blood stained clothes recovered on the basis of confessional statement of accused, relevant. Ibid. Ibid. State (NCT) of Delhi v. Navjot Sandhu, (2005) 11 S.C.C. 600.

17 Constitutional Validity Upheld The principles thus laid down were affirmed by the Supreme Court in a number of cases leading among them being State of U.P. v. Deoman Upadhaya, 40 which also involved an extensive discussion of the constitutionality of section 27. Deoman, the accused, was married to one Dulari. Dulari s parents had died in her infancy and she was brought up by her cousin, Sukhdei. Skhdei gifted a part of her own inherited lands to Dulari, and the whole of the land was being cultivated by Deoman s uncle, Mahabir, Deoman and Mahabir were negotiating sale of some of the lands, but Sukhdei protested. Deoman slapped her and threatened to smash her face. Early in the next morning Sukhdei was lying dead on her bed with a number of wounds and a pool of blood below the cot. Deoman was missing. When he was apprehended some two days later he told the police that he attacked Sukhdei with a gandasa which he had earlier borrowed from another and killed her on the spot and thereafter threw the gandasa into the village tank, washed himself and absconded. In the presence of the investigating officer and certain witnesses, he waded into the tank and took out the gandasa. A serologist examined it and testified that it was stained with human blood. Thus its connection with the murder was clearly established. The statement of the accused to the police and consequential discovery of the gandasa when seen in the background of his anger with Sukhdei, the borrowing of gandasa, some persons having seen him running towards the tank, taking bath in it and his disappearance, left no doubt that he was guilty and the Sessions Judge accordingly convicted him. 40 AIR 1960 SC 1125.

18 179 He appealed to the High Court, among others on the ground that S. 27 was violative of the Constitution of India. The High Court declared S. 27 to be unconstitutional. The High Court excluded statement of the accused and without it there being not much evidence, acquitted the accused. The State appealed to the Supreme Court, where by a majority, acquitted the accused. The State appealed to the Supreme Court, where by a majority, the section was declared to be constitutional and the conviction of Deoman was restored. The Supreme Court held that, that part of the statement of the accused by which he said that he had killed Sukhdei was not relevant. This should be excluded, but the rest was relevant and even then there was sufficient proof of his guilt. The discussion in the Supreme Court centered round the constitutional validity of section 27, Shah, J., (afterwards C.J.), with whom majority agreed, pointed out that the expression accused of any offence is descriptive of the person against whom the information is provable under section 27. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as condition of its applicability. 41 The Court rejected the suggestion that the provisions of section 161 of the Criminal Procedure Code and those of section 27 of the Evidence Act were discriminatory and, therefore, violative of Article 14 of the Constitution. Under the Criminal Procedure Code if a person not in police custody has given some information to the police in consequence of which something connected with a crime is discovered, the information is not provable against him if he is subsequently prosecuted for the crime; but if he were in police custody at the time that he gave the information, it would have become provable against him. 41 AIR 1960 S.C at p On the authority of Pakala Narayan Swami v. Emperor, 66 Ind. App. 66 : AIR 1939 PC 47.

19 180 Thus the classification is between persons not in custody and those in custody. The Supreme Court held the classification to be reasonable. This distinction between persons in custody and persons not in custody, in the context of admissibility of statement made by them concerning the offence charged cannot be called arbitrary, artificial or evasive : the legislature has made a real distinction between these two classes, and has enacted distinct rules about admissibility of statements confessional or otherwise made by them. 42 The reason for the classification is to encourage people not in custody to give information about crimes Recovery During Illegal Remand to Police Confessional statements made in police custody led to recovery of incriminating articles. The Court said that such evidence could not be excluded on the ground that the statement was obtained while the accused was under an illegal order of remand to police custody Some Examples In Mohan Lal v. Ajit Singh, 44 the accused was arrested within four days of the fact of murder and robbery. He immediately indicated the place where he had hidden the stolen articles; and a gold ring and currency notes which bore his finger impressions were recovered within six days. On these facts the Supreme Court observed that, it must be concluded that the incriminating articles were acquired by the respondent at one and the same time and that it AIR 1960 SC 1125 at p State v. NMT Joy Immoculate, AIR 2004 S.C AIR 1978 SC 1183 at p Evidence of recovery even when relevant may fade in importance where there is direct evidence. Pradumaninh Kaubha v. State of Gujarat, 1992 Cr. L.J : AIR 1992 S.C. 881; Swamy Shraddonanda v. State of Karnataka, AIR 2007 S.C : (2007) 12 S.C.C. 288, husband prosecuted for murder of wife, buried in a big courtyard, he pointed out the exact place of burial, had marked that place, skeleton exhumed from the marked place. This portion of confessional statement before the police, held admissible.

20 proper. 47 Recovery of a weapon of offence which has no nexus with the type of 181 was he and no one else who had robbed the deceased of the money and the ring and had hidden them at a place and in a manner which was known to him. Where the police had already recovered the dead body, the statement of the accused persons as to where they had thrown off the dead body was held to be not relevant. 45 Recovery of bushirt, pant and a gold ring at the instance of the accused person was not accepted as a good piece of evidence because it was not probable that he should have taken away the clothings also and buried them alongwith the gold ring in the courtyard of his house. 46 Two axes were recovered on the basis of the statements. The blood on one of them was found to be of human origin. The rejected of the evidence of recovery was not injuries found on the person of the victim was held to be inadmissible Vijender v. State of Delhi, (1997)6 S.C. C.171 Inspector of Police v. Bala Prasanna, (2008) 11 S.C.C. 645 : 2008 Cri. L.J belated confession made after five months, creates doubts about authenticity and voluntariness. Shambhu Dayal v. Subhash Chandra, AIR 1998 S.C ; Deva v. State of Rajasthan 1999 Cri. L.. 265, merely because of the alleged recovery of knife at the instance of the accused, it could not be said that be was perpetrator of the crime of murder. State of Rajasthan v. Teja Ram, 1999 Cri. L.J See also Lal Singh v. State of Gujarat AIR 2001 SC 746, arms and ammunition which had to be recovered from hiding of terrorists being huge, a raid had to be organised and they had to be kept at police head quarters after recovery, held, these two factors had not reduced the evidentiary value of the recovery. State of Maharashtra v. Suresh, (2001) 1 S.C.C. 471, dead body discovered on guidance provided by the accused, the circumstances of concealment were such that there were three possibilities, viz., the accused himself might have done the concealment, might have seen another to do it or might have been told of it by others. Excluding other possibilities, the Court believed that it was the work of the accused. State of M.P. v. Palun Mallah, AIR 2005 S.C. 733, in his disclosure statement, the accused said that he concealed the country made pistol himself, it was recovered at his instance, accompanied with extra-judicial confession, relevant ballistic expert verified recovery from the body pellets fired from country made pistol. State of Rajasthan v. Kashi Ram, AIR 2007 S.C. 144, doubtful recovery of waist chord used for strangulation, not even produced before the court, evidence not proper. Ponnusamy v. State of T.N., (2008)5 S.C.C. 587 : AIR 2008 S.C. 2110, extra-judicial confession led to the discovery of dead body in a canal and jewellery worn by the woman who was identified as murdered wife of the accused, held, confession voluntary and truthful. Bishnu Prasad Sinha v. State of Assam, AIR 2007 S.C. 848, confession not retracted even at the later stages of the trial, it was also accepted by the accused in examination under S. 313, Cr. P.C. can be fully relied upon. Keshav v. State of Maharashtra, (2007)13 S.C.C. 284.

21 Place of Hiding In a matter before the Supreme Court, 49 the accused stated : I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August. It was held that only the first part of the statement, namely, I will tell the place of deposit of the three chemical drums was relevant because only this part was the immediate and direct cause of the fact discovered. The rest of the statement was a pure and simple confession which led to no discovery. The facts of the case also demonstrated the advantage to the accused of this kind of editing of his statement. The place indicated by him was a railway platform and the drums were recovered from there. Since it was a public place and not a place of hiding, anyone could have put them there and the accused might have only knowledge of that fact, he was given benefit of the doubt, whereas if the whole of his statement had been admitted he would undoubtedly have been held guilty. 50 Recovery of dead Mohd. Inayatullah v. State of Maharashtra, AIR 1976 S.C See also Earabhadrappa v. State of Karnataka, AIR 1983 S.C. 446 involving recovery of stolen articles. It has been held by the Supreme Court that recovery at the instance of the accused is not in itself a proof of the fact that the accused wielded the weapon. In Dudh Nath Pandey v. State of U.P., (1981)2 S.C.C. 116 : AIR 1981 S.C. 911 : 1981 Cr. L.JU. 618 : 1981 All. L.J. 228, the Supreme Court has also pointed out that the mere failure on the part of the police to interrogate the person at whose instance recovery has been effected cannot in itself lead to the conclusion that the recovery was false. Abdul Sattar v. Union Territory Chandigarh, (1985) Supp. S.C.C. 599 : AIR 1986 S.C. 1438, articles recovered from an open place. The evidentiary value of the articles recovered does not suffer only because they are market-place articles, State of Kerala v. Thomas, (1986)2 S.C.C In a case of cross-free only two cartridges were recovered and those also the next day after the preparation of the cite map, held not relevant because circumstances indicated planting of the cartridges. Awadhesh v. State of M.P., (1988)2 S.C.C. 557 : AIR 1988 S.C. 1158; Recovery of something unconnected with the charge is not relevant, Vishnudeo Kumar v. State of Bihar, 1986 S.C.C Where there was nothing to show how the recovered articles were connected with the deceased or how they incriminated anybody, the Supreme Court rejected the evidence. Basanti v. State of H.P., (1987) 3 S.C.C. 227: AIR 1987 S.C See also State of Punjab v. Gurnam Singh, AIR 1984 SC 1791 : 1984 Supp. S.C.C. 502, where the Supreme Court pointed out that the alleged recoveries which were not witnessed or corroborated by any witness deserved to be rejected entitling the accused to benefit of doubt. Mohd. Abdul Hafeez v. State of A.P., AIR 1983 S.C. 367 : 1983 Cr. L.J. 689 : (1983) 1 S.C.C. 143, where in the case of several accused it was not shown who made the statement leading to discoveries, the statement was rejected, or as in Pohalya Motya Valvi v. State of Maharashtra, (1980)1 S.C.C. 530, there being no evidence as to who had concealed the things; AIR 1979 S.C : 1979 Cr. L.J. 1310; Recoveries unaccompanied by any proof of the statement by which they were effected, Bahadul v. State of Orissa, (1979)4 S.C.C. 346 : 1979 Cr. L.J Another case where recovery was effected from a public place which was open and accessible to all and, therefore, rejected, was Puran Lal v. State of U.P., 1997 Cr. L.J (All.)

22 183 bodies after three months from an open field which was surrounded by other fields would not bring the matter under this section because an open field is not such a place of concealment of which it could be said that only the accused had exclusive knowledge. 51 Recovery of a knife and gloves in the presence of the accused lying open in a paddy field was held to be not sufficient to connect the accused with the crime. Where the recovery was effected at the instance of the accused from the house of one C, the Court said that the recovery could not be said to be from a place to which the accused alone had the exclusive access. The possibility could not be ruled out that the weapon was always there at C s place. Much importance could not be attached to a recovery of this nature. 52 The accused had also denied having made any such statement which was supposed to have led to the discovery. 53 But where looted articles were recovered at the instance of the accused concealed under a stone under a bridge, that was held to be a place of hiding which was not accessible to all. 54 The Supreme Court has given a new meaning to the expression place of hiding. Certain articles connected with the murder of the wife of the accused were found from places at the bidding of the accused. The court said: 55 It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others to would vitiate the evidence. An object can be concealed in places which are open or Makhan Singh v. State of Punjab, AIR 1988 S.C : 1988 Supp S.C.C State of M.P. v. Ghudan, AIR 2004 S.C. 797 : (2003) 12 S.C.C Varghese v. State of Kerala, (1998) S.C.C. (Cri.) 890. Lacchman Ram v. State of Orissa, AIR 1985 S.C. 486 ; articles recovered from places where they were thrown by the running accused on being chased, held relevant. State of Rajasthan v. Sukhpal Singh, (1983)1 S.C.C. 393 : 1983 S.C.C. (Cri.) 213. Kabul v. State of Rajasthan 1992 Cr. L.J (Raj) recovery of narcotic drugs from an open public place. Khalaksingh v. State of M.P., 1992 Cr. L.J (M.P.) aricles brought out from home by the brother of the accused, not relevant under S. 27; Brij Mohan v. State of Rajasthan, AIR 1994 S.C. an unnatural hiding place. Peerappa v. State of Karnataka, (2005) 12 S.C.C. 461, there was no blood on the weapon found and it was also produced from a place of public access, the statement was recorded after recovery, all these things demolished relevancy. State of H.P. v. Jeet Singh, (S.C.) at p., 2030 : AIR 1999 S.C Another similar ruling of the Supreme Court is in Limbaji v. State of Maharashtra, AIR 2002 S.C. 491, stolen articles concealed under earth in the field of a third party which acts open and accessible to all. The accused led the I.O. to the place. Relevant under Section 27 and also under Section 114 as showing recent possession. The articles were ornaments belonging to the deceased.

23 184 accessible to others. For example, if an article is buried on a main road side of it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others but whether it was ordinarily visible to others. If it is not, then it is immaterial that the place of concealment is accessible to others. The discovery of the instrument of murder at the instance of the accused from a place of concealment under a heap of soil was held to be a discovery from a secret place of hiding though that place was in an abandoned dilapidated building. The Court observed that it could not be said that the thing was found from an open place accessible to all. Nor it was found from a public place. 56 The recovery of hand grenades and detonators from a place of a burial under a tree was held to be the discovery of a fact for the purposes of the section. 57 In a case arising out of child sacrifice, the statement of the accused was that the dead body of the child was carried on a motor cycle up to a particular spot. A broken piece of glass which was a part of the tail lamp of the motor cycle was found at that place. That was held to be the discovery of a fact making the information given by the accused leading to that discovery was Mahbub Samsuddin Malak v. State of Gujarat, (1996) 10 S.C.C. 480; Mani v. State of Tamil Nadu, AIR 2008 S.C. 1021, discovery from an open ground after more than 10 days of the incident and about 300 feet away from dead body, not believable that unguarded articles remained there for so many days, discovery farcicle. Surjit Singh v. Haryana, (1996)10 S.C.C Handing over of the stolen articles to others under sale or otehrwsie from whom they were recovered is the discovery of a fact connected with the crime, Shankar Gajanan Kalar v. State of Maharashtra, (1996) 11 S.C.C. 151.

24 185 relevant. The recovery of a brass pitcher (kalash) used for collecting the blood of children also provided a useful missing link in the chain of circumstances. 58 Where one of the articles connected with the murder was discovered lying in tall grass and others were found to be buried there, the Supreme Court held that they were out of the visibility of others in normal circumstances and were, therefore, relevant under S Evidence only Against Maker of Statement The Calcutta High Court laid down in Satish Chandra Seal v. Emperor, 60 that statement admissible under S. 27 are not admissible against persons other than the maker of the statement. Following this, the Patna High Court did not allow the evidence of the discovery of the dead body in consequence of the statement of one of the accused persons to be used against others. 61 Where in a case of murder, the first accused made a confession to the Circle Inspector which led to the discovery of certain jewels of the murdered woman, and also a blood-stained brick which, the first accused stated, the second accused had used to beat her with and in consequence of which beating she died, it was held that the statement of the first accused so far as it related to the discovery of the jewels was admissible under this section, and that it could not be taken into consideration as against the second accused under S State of Maharashtra v. Damu Gopinath Shinde, 2000 Cri. L.J (S.C) : AIR 2000 S.C : 2000 AIR SCW 1617 : (2000)6 S.C.C State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 S.C. 16. AIR 1943 Cal. 137 : (1945)46 Cri. L.J Even as against the maker the evidence was taken to be very weak when neither his thumb impression nor signature were taken on the statement, nor the panch witnesses were examined, Jackaran Singh v. State of Punjab, (1995) Cri L.J (S.C.) Surendra Prasad v. State of Bihar, 1992 Cri. L.J (Pat.) Abdul Basha Sahib, Re, (1940) Mad : AIR 1941 Mad. 316.