Law of Evidence

By Nizam Azeez Sait,

MODULE No. 10

RELEVANCY OF INFORMATION AND DISCOVERY UNDER THE PROVISO TO SECTION 23 OF THE BHARATIYA SAKSHYA ADHINIYAM (SECTION 27 OF THE EVIDENCE ACT)

This is the 10th Module on the subject ‘Law of Evidence’, in this module we will discuss Relevancy of Information and Discovery under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act).

As we have seen in the previous module, Section 23(1) of the Bharatiya Sakshya Adhiniyam (S. 25 of the Evidence Act) bars proof of a confession made to a police officer and Section 23(2) (S.26 of the Evidence Act) goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate.

MODULE INDEX

  1. Proviso is An Exception to the Provisions in Sections 23
  1. Doctrine of Confirmation by Subsequent Events
  1. The essential elements of the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act)
  1. Pulikuri Kottaya v. Emperor – Landmark Case
  1. Meanings of Phrases used in the section – ‘Fact Discovered’- ‘So Much of Such Information’ – ‘As relates Distinctly’ to the ‘fact thereby discovered’
  1. Entire Confessional Statement to the Police Should not be Exhibited in Evidence
  1. The Meaning of the Phrases ‘Accused of any Offence’ and ‘Custody of a Police Officer’ in the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 Evidence Act)
  1. A Practical Analysis of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act)
  1. Pointing out the Place where Stolen Articles or weapons are hidden is also Relevant as Conduct under Section 6 of the Bharatiya Sakshya Adhiniyam) (section 8 of the Evidence Act)
  1. Whether Authorship of Concealment is ‘Sine Qua Non’ for Admissibility of the Statement of the Accused under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act).
  1. Discovery from an Open Place; Evidentiary Value
  1. Simultaneous Information by two or more Accused Leading to Discovery
  1. Now we will see another aspect :- Whether Absence of any disclosure statement, pointing out memo of the place of recovery and lack of public witness to the alleged recovery whether would be fatal– in the facts of the case it was held not fatal.
  1. Whether accompanying the Police and Pointing out the material object is necessary to attract the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27of the Evidence Act).
  2. Procedure for Recording and Proving the Information
  1. Whether Recovery Evidence by Itself Would be Substantial Enough to Fix the Guilt of the Accused
  1. Evidence under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) Needs to be Evaluated Meticulously and Scope for Misuse to be Averted
  1. Facts Contemplated by the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) – Whether are Physical Facts, or Psychological Facts
  1. Constitutionality of S.27 of the Evidence Act
  1. Summing Up

1. Proviso is An Exception to the Provisions in Sections 23

Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act) carves out an exception to the above Section 23.

The Proviso to S 23 reads as follows:

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

The proviso to Section 23 (section 27 of the Evidence Act) is of utmost importance in criminal trials.

The Section seems to be 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 allowed to be given in evidence.

2. Doctrine of Confirmation by Subsequent Events

Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act) is based on the doctrine of confirmation by subsequent events. When the accused gives information to the Police Officer that a particular object is kept concealed at a particular place or given to a particular person and either points out that place wherefrom the said object is recovered by the Police or is produced by the accused or he points out the person who produces the object, recovery of the object confirms truth of the information given by the accused.

The Police Officer will depose before the court as to the discovery of fact and statement/information given by the accused which distinctly led to such discovery of fact. It is to be noted that only so much of such information, which relates distinctly to the fact discovered is relevant and can be proved.

3. The essential elements of the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act)

  1. There must be a person accused of an offence.
  2. He must have been in ‘custody’ of the Police.
  3. He must have given some information (whether amounting to confession or not) to the Police.
  4. In consequence to the information there should be discovery of fact and that should be deposed before the Court.

Then, so much of the information that relates distinctly to the fact thereby discovered is relevant and can be proved.

4. Pulikuri Kottaya v. Emperor – Landmark Case

In the landmark judgment Pulukuri Kotayya v. Emperor, AIR 1947 PC 67, the term “fact discovered” has been interpreted that they embrace the place from which the object was discovered, the knowledge of the accused as to it; the information given must relate distinctly to that fact.

In this case Kottaya and some others were tried for the murder of Sivayya and Subbaiah. The 3rd accused in the case made the following statement to the police while in custody:

“I stabbed Sivayya with a spear. I hide this spear in a yard in my village, If I am taken there I will show you the spear”

The 6th accused made the statement to the police in the following terms:

Myself, Kotaiah and people of our party lay in wait Sivayya and Subbaiah at about the sunset and when Sivayya and Subbaiah came, we beat them to death. Ramayya gave me the stick with which they were beaten. I hid the stick in the rick of one Mr.Venkatanarasu. We all did this at the instigation of Kotaiah.

The Madras High Court admitted the entire statement as relevant under Section 27 (corresponding to the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam).

But in appeal the Privy Council discarded the portions of the statement “I stabbed Sivayya with a spear” “We beat them to death”. The Court held that the portions of the statement – “I hide this spear in a yard in my village, if I am taken there I will show you the spear” and “I hid the stick in the rick of one Mr.Venkatanarasu” are only admissible as they only distinctly relate to the facts discovered.

It was held that what is discovered is the fact that the spar is concealed in the yard in the village to the knowledge of the accused.

In Ajayan alias Baby v. State of Kerala, reported in 2011 (1) KLT 8, a full bench of the High Court of Kerala, explained the decision in “PulukuriKotayya”, the full bench of the High Court observed:

The Privy Council in “Pulukuri Kottaya” held:

‘……….. it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 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; knives were discovered many years ago. It leads to the discovery of the 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. …………’.

Ajayan alias Baby v. State of Kerala, reported in 2011 (1) KLT 8, a full bench of the High Court of Kerala, explained the above passage in “Pulukuri Kottaya” as under:

“The expression that ‘knives were discovered many years ago’ was used not in the sense that in the reported case knives involved in the incident were discovered earlier. Their Lordships were pointing out that discovery of knives was not in consequence to the information given by the accused that ‘I will produce a knife concealed in the roof of my house’, because, even before the accused gave that information, knives had been discovered and were in vogue. What was discovered by the information given by the accused was that a knife was concealed in the roof of house of the informant to his knowledge. If the knife was proved to have been used in the commission of the crime the fact discovered was very relevant. In otherwords, the fact discovered was not merely the object but also the place where it was kept concealed and the knowledge of the accused as to such concealment. Their Lordships held that 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 a Police Officer must be deposed to by the Police Officer and thereupon so much of the information as relates distinctly to the fact thereby discovered is admissible in evidence against the accused whether it amounted to a confession or not. The decision in PulukuriKottaya was accepted with approval by the Apex Court in various decisions”

 The Supreme Court in State of Rajasthan v. Bhup Singh, reported in 1997 (10) SCC 675: pointed out that the ratio in PulukuriKottaya ‘has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth’.

5. Meanings of Phrases used in the section – ‘Fact Discovered’- ‘So Much of Such Information’ – ‘As relates Distinctly’ to the ‘fact thereby discovered’

Now Let us again evaluate the significant phrases used in the section ‘Fact Discovered’- ‘So Much of Such Information’ – ‘as relates Distinctly’ to the ‘fact thereby discovered’

The section declares that the information given by the accused while in police custody distinctly leading to the discovery of incriminating material would be admissible irrespective of the fact whether such information amounts to confession or not.

So much of the Information that ‘distinctly’ relates to the fact thereby discovered only is relevant and admissible.

‘So Much of Such Information’ ‘as relates distinctly …. ’

As per Section 27 of the Evidence Act (proviso to S 23 of the Bharatiya Sakshya Adhiniyam) ‘so much’ of such information as relates ‘distinctly’ to the fact thereby discovered, may be proved therefore in the case recovery of a knife, the statement relating to the purchase of the knife and the sharpening the same are irrelevant and not admissible as it did not lead/relates distinctly to the discovery of any physical fact.

Likewise, the statement relating to the killing by stabbing with the knife is only a statement as to the past user/history and is in no way related to the discovery of facts and hence is to be discarded and should not be allowed to be proved.

The expression “Distinctly” is used in Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) to limit and define the scope of information admissible in evidence. It refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The expression ‘distinctly’ is used to show ‘exclusivity’ of the information acquired by the Police Officer from the accused and leading to the discovery of the fact.

The entire information will not become relevant; only that part which distinctly leads to the discovery is relevant. “Distinctly” connotes ‘directly’, ‘clearly’, ‘positively’, ‘indubitably’, ‘strictly’, ‘unmistakably’. For example the statement ‘If I am taken to my house I will produce the knife concealed by me in the roof of my house’

Facts discovered

Many a times, it has been reiterated by the Supreme Court that the expression “fact discovered” includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this (See Anter Singh v. State of Rajasthan, AIR 2004 SC 2865, : H.P Administration v. Om Prakesh, AIR 1972 SC 975, Mohd. Inayatullah v. State of Maharashtra, 1976 (1) SCC 828, State v. Navjot Sandhu alias Afsan Guru, 2005(11) SCC 600)

“Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S.27 of the Evidence Act (proviso to S 23 of the Bharatiya Sakshya Adhiniyam) is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true”. (Ramand @ Nandalal Bharathu v State of UP 2022 SCC OnLine SC 1396: AIR 2022 SC 5273 (Uday U. Lalit, C. J.; S. Ravindra Bhat; *J. B. Pardiwala, JJ.)

In Ramakishan Mithanlal Sharma and Others v. State of Bombay, reported in AIR 1955 SC 104 the Supreme Court held that on a reading of S.27 of the Evidence Act (Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam), it appeared that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. It was held:

‘The evidence of the Police Officer would no doubt go to show that accused knew of existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith.”

6. Entire Confessional Statement to the Police Should not be Exhibited in Evidence

In Rahul v State of Delhi Ministry of Home Affairs 2022 SCC OnLine SC 1532 : AIR OnLine 2022 SC 841 (Uday U. Lalit, C. J. ; S. Ravindra Bhat; Bela M. Trivedi, JJ), the Supreme Court reiterated:

…If a confession is made by the accused before the police, and a portion of such confession leads to the recovery of any incriminating material, such portion alone would be admissible under S.27 of the Evidence Act (proviso to S 23 of the Bharatiya Sakshya Adhiniyam), and not the entire confessional statements. In the instant case, therefore the Trial Court had committed gross error in exhibiting the entire disclosure statements of the accused, for being read in evidence. Though, the information furnished to the Investigating Officer leading to the discovery of the place of the offence would be admissible to the extent indicated in S.27 read with S.8 of the Evidence Act (proviso to S 23 read with S 6 of the Bharatiya Sakshya Adhiniyam , but not the entire disclosure statement in the nature of confession recorded by the police officer.

7. The Meaning of the Phrases ‘Accused of any Offence’ and ‘Custody of a Police Officer’ in the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 Evidence Act)

The two essential requirements for the application of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act) are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody.

The Phrase “person accused of any offence” is only descriptive. The Person need not be a formal accused at the time when the statement was made, or his name need not be there in the FIR. In State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 a five judges bench of the Supreme Court reiterated that:

“The expression, “accused of any offence” in S.27, (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) as in S.25 (S.23(1) of the Bharatiya Sakshya Adhiniyam), is also descriptive of the person concerned, i.e., against a person who is accused of an offence, S.27 renders provable certain statements made by him while he was in the custody of a police officer.”

The word ‘custody’ in the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) does not necessarily mean physical custody by formal arrest.

In State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 it was further held that when a person, not in custody, approaches a Police Officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police and may be deemed to be in the “custody” of Police Officer within the meaning of S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).

In Rajesh & Anr. v. State of Madhya Pradesh 2023 SCC OnLine SC 1202 a 3 judges bench without noticing ‘State of U.P. v. Deoman Upadhyaya’ held that formal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).

In Perumal Raja @ Perumal vs State Rep. By The Inspector Of Police, (Justice Sanjiv Khann, and Justice Dipankar Datta -decided on 3 January, 2024), the Supreme Court held that Rajesh & Anr. v. State of Madhya Pradesh is not binding as it is not in tune with the 5 judges bench in ‘Deoman Upadhyaya’, the court observed:

The pre-requisite of police custody, within the meaning of Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam), ought to be read pragmatically and not formalistically or euphemistically…. The expression “custody” under Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police.

Reference is made to a recent decision of this Court in Rajesh & Anr. v. State of Madhya Pradesh 2023 SCC OnLine SC 1202, which held that formal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). In our opinion, we need not dilate on the legal proposition as we are bound by the law and ratio as laid down by the decision of a Constitution Bench of this Court in State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14. The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.This Court in Deoman Upadhyay (supra) observed that the bar under Section 25 of the Evidence Act (S 23 (1) of the Bharatiya Sakshya Adhiniyam) applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was in custody at the time of making the confession. Further, for the ban to be effective the person need not have been accused of an offence when he made the confession. The reason is that the expression “accused person” in Section 24 (S.22 of the Bharatiya Sakshya Adhiniyam) and the expression “a person accused of any offence” in Sections 26 (23 of the Bharatiya Sakshya Adhiniyam) have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. The adjectival clause “accused of any offence” is, therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement.

8. A Practical Analysis of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act)

Now let us have a Practical analysis of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act). To understand the intricacies of the provision an imaginary fact situation may be analysed, an accused charged with the murder of his wife gives the following statement to the investigating officer while in custody:

“……..I purchased the knife on the previous day from the shop of Rakesh Sharma, situated at Chandni chouk. I had the knife sharpened by a blacksmith by name Krishna, at his house situated at Nizamudeen, Then I reached home, I saw my wife sitting in the dining room, I led her to the bathroom and stabbed her to death with the said knife, there after I washed off all the blood stains in the bathroom then I carried the body in a gunny bag to the back yard of the house where I disposed the body in the garbage pit and filled the same with mud. There after I went out with the knife I hide the knife in the bushes at the bottom of a tree near the back gate of St. Stephen’s College. I will show the places if I am taken there.”

The Investigating officer and the police party took the accused to Rakesh Sharma’s shop and Krishna’s house and verified the truth of the statement regarding the purchase of the knife and its sharpening and recorded their statements also. The police also recovered the dead body and knife from the places respectively pointed out by the accused.

The investigation officer deposed before the Court regarding the discoveries and the statement of the accused leading to the discoveries.

In the above fact scenario the admissible part of the statement/information are only the following portions: “I disposed the body in the garbage pit and filled the same with mud…….I hide the knife in the bushes at the bottom of a tree near the back gate of St. Stephen’s  College. I will show the places if I am taken there” as the above portion ‘distinctly’ relates/led to the discovery of physical facts ie the recovery of the dead body and the knife. All other information in the statement of the accused is irrelevant and cannot be allowed to be proved.

Here the facts regarding the purchase of the knife from the shop of Rakesh Sharma, getting it sharpened by the blacksmith named Krishna, the user of the knife to kill etc are not discovered or proved pursuant to the information.

What is discovered here is that the knife was concealed in the bushes at the bottom of a tree near the back gate of St. Stephen’s College to the knowledge of the accused, and nothing more.

This would not necessarily show his direct connection with the offence. It would of course be an important link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith.

9. Pointing out the Place where Stolen Articles or weapons are hidden is also Relevant as Conduct under Section 6 of the Bharatiya Sakshya Adhiniyam) (section 8 of the Evidence Act)

In Prakesh Chand v. State, reported in AIR 1972 SC 975, Supreme Court observed as follows:

“There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under S.8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by S.162 Criminal Procedure Code. What is excluded by S.162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen Articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under S.8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of S.27 of the Evidence Act (vide Himachal Pradesh Administration v. Om Prakash (AIR 1972 SC 975).”

10. Whether Authorship of Concealment is ‘Sine Qua Non’ for Admissibility of the Statement of the Accused under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act).

Now let us move on to another aspect that is whether Authorship of Concealment is ‘Sine Qua Non’ for Admissibility of the Statement of the Accused underthe proviso to S 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act).

The issue is whether the statement/information passed by the accused to the Police should contain a phrase like “I have concealed ….” Or “I have given it to….” , to bring the statement / information with in the ambit of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act). Whether his knowledge about the object should emerge from the admission that he himself has concealed it there with the exclusion of the knowledge of others……

In Ajayan alias Baby v. State of Kerala, reported in 2011 (1) KLT 8, a full bench of the High Court of Kerala, considered the issue upon reference, in view of the conflicting views of two division benches of the Kerala High Court on this aspect. Information given by the accused which led to the discovery of fact as deposed to by the Investigating Officer did not contain authorship of concealment of the objects. After analysing the section and various judgements, the full bench held:

“Authorship of concealment is not sine qua non to make information received from a person accused of an offence while in the custody of the Police Officer admissible under S.27 of the Act(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) and that if the information as deposed to by the Investigating Officer is otherwise admissible in evidence it would not become inadmissible solely for the reason that the information deposed by the Police Officer does not reveal authorship of concealment.”

The full bench of the High Court referred and explained many Judgments including Jaffer Husain Dastagir and Pohalya Motya Valvi v. State of Maharashtra:

In Jaffer Husain Dastagir v. The State of Maharashtra, reported in AIR 1970 SC 1934, Supreme Court had observed:

‘In order that the Section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the Police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused.’

The Court further observed in Jaffer Husain Dastagir:

‘…………..If an accused charged with a theft of articles or receiving stolen articles, within the meaning of S.411 IPC (S.317 Bharatiya Nyaya Sanhita) states to the police, ‘I will show you the articles at the place where I have kept them’ and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i.e., keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.’

In this regard, the full bench of the High Court of Kerala, in Ajayan alias Baby opined:

“The said observation was made with reference to the special facts of that case where information given by the accused contained authorship of concealment also and hence the discovery extended to the fact that it was the accused who had kept the articles at the particular place. Nowhere did the learned Judges in that decision observe that authorship of concealment is sine qua non for admissibility of the statement.”

In Pohalya Motya Valvi v. State of Maharashtra reported in AIR 1978 SC 1949, the admissible portion of the information given by the accused did not contain authorship of concealment. The Supreme Court held:

‘The recovery of a bloodstained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. …… To make such a circumstance incriminating it must be shown that the appellant himself had concealed the blood stained spear which was the weapon of offence……’

In this regard the full bench of the High Court of Kerala in ‘Ajayan alias Baby’ opined:

“The above observation only indicated that if authorship of concealment of the weapon which is proved to be involved in the crime is disclosed by the accused, that is an incriminating circumstance against him.

It was also held in “Pohalya Motya Valvi” that where the information given by one of the accused leading to the discovery of murder weapon was capable of two interpretations, i.e., (1) he was the person who concealed the weapon, or (2) that he had the knowledge of the place where it was hidden, the accused could not be convicted for murder on the basis of such information.

In this regard the full bench of the High Court in ‘Ajayan alias Baby’ opined:

That was because the connecting link between the object recovered and the accused was not proved by the prosecution and when the information given by the accused was capable of two interpretations the one beneficial to the accused had to be adopted. Not only that the said decision is no authority for the proposition that authorship of concealment is sine qua non for admissibility of information given by the accused, it is authority that even when the information given by the accused did not contain authorship of concealment, information leading to the discovery of fact is admissible in evidence but in the absence of other evidence, such evidence may not be sufficient to convict the accused.’

In Golden Satheeshan @ Satheeshan and others v State of Kerala  2012 KHC 25 (V. Ramkumar; P. Q. Barkath Ali, JJ), the High Court of Kerala explained ‘Ajayan alias Baby’ as under:

Now coming to  the recovery of the weapons and the dress at the instance of some of the accused persons also, it is worthwhile to note that in none of the confessional statements recorded by PW 25 is there the authorship of concealment so as to induce this Court to accept the recovery as one falling under S.27 of the Evidence Act(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) and thereby connect the respective accused persons with the crime. No doubt, as held by a Full Bench of this Court in Ajayan v. State of Kerala, 2011 (1) KLT 8 (FB) : ILR 2011 (1) Ker. 1, authorship of concealment is not a sine qua non for the admissibility of the statement under S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). But while evaluating the probative value of the recovery, the said fact certainly looms large and in the absence of any statement by the respective accused that it was they themselves who concealed the weapons or the dress, as the case may be the element of criminality tending to connect the accused with the crime cannot be readily inferred. It only shows that the accused knew that the dress were concealed at the places disclosed. (Vide para 16 of Mahabir Biswas and Another v. State of West Bengal, 1995 (2) SCC 25: 1995 (2) SCC 25 : (3 Judges) Para 15 of Pohalya Motya Valvi v. State of Maharashtra, 1980 (1) SCC 530 : AIR 1979 SC 1949 : 1979 CriLJ 1310 Para 15 of Dudh Nath Pandey v. State of U.P, AIR 1981 SC 911 : 1981 (2) SCC 166 : and para 6 of State of Uttar Pradesh v. Jageshwar and Others, 1983 (2) SCC 305 : AIR 1983 SC 349.

In, Ramand @ Nandalal Bharathu v State of UP 2022 SCC OnLine SC 1396: AIR 2022 SC 5273 (Uday U. Lalit, C. J.; S. Ravindra Bhat; *J. B. Pardiwala, JJ.), a three judges bench observed:

“What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, “I may get discovered the murder weapon used in the incident”. This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.”

Perumal Raja @ Perumal vs State Rep. By The Inspector Of Police, (Justice Sanjiv Khann, and Justice Dipankar Datta -decided on 3 January, 2024), the Supreme Court observed:

“The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place.  second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case.”

11. Discovery from an Open Place; Evidentiary Value

If the fact was already known to the police from other sources, the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27 Evidence Act( will not apply as there is no “discovery” on the information given by the accused. Recovery of the object from an open place not in a concealed/hidden situation is of no worth.

Regarding the evidentiary value of recovery from open and accessible place, in State of Himachal Pradesh v. Jeet Singh ,  AIR 1999 SC,  Justice K. T. Thomas speaking for the 2 Judge Bench of the Supreme Court  observed:

‘There is nothing in S.27 of the Evidence Act(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ‘open or accessible to others’. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under S.27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if 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. Until such article is disinterred its hidden state would remain unhampered. 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 or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.’

12. Simultaneous Information by two or more Accused Leading to Discovery

Now Lets Us See the legal Implication of Simultaneous information by two or more accused leading to discovery. A joint statement made by the accused is not per se inadmissible but it is extremely weak evidence to place reliance on it since it would be difficult to come to the conclusion which of the accused persons gave any specific and definite information leading to the discovery. (Meghji Godadji Thakore v. State of Gujarat, 1993 Cr.LJ 730(Guj).

In Abdul Hafeez v. State of A.P AIR SC 367, the Supreme Court deprecated the practice of recording simultaneous statement of the accused persons to implicate all of them under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam ( S 27of the Evidence Act), in this regard the Court observed:

“Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person.”

In, State v. Navjot Sandhu alias Afsan Guru, 2005(11) SCC 600, Supreme Court held that, disclosure statements by two or more accused persons while they are in custody do not go out of purview of Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). The Court observed

“If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of S.27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects.”

13. Now we will see another aspect :- Whether Absence of any disclosure statement, pointing out memo of the place of recovery and lack of public witness to the alleged recovery whether would be fatal– in the facts of the case it was held not fatal.

Now we will see another aspect: – Whether Absence of any disclosure statement, pointing out memo of the place of recovery and lack of public witness to the alleged recovery whether would be fatal

In Suresh Chandra Bahri v. State of Bihar, reported in AIR 1994 SC 2420, in the facts of the case it was held not fatal the issue was relating to the legality of the recovery under section 27. Court observed:

“Rajeshwar Singh, PW 59, Station House Officer deposed that during the course of investigation Gurbachan Singh led him to Khadgraha Hillock along with Inspector Rangnath Singh and on pointing out the place by Gurbachan Singh he got that place unearthed by labourers where a piece of blanket, pieces of saree and Rassi were found which were seized as per seizure memo.”

The legality was challenged on the ground that that the alleged recovery of blanket, piece of saree and rope said to have been made by the Investigating Agency at the instance of the appellant Gurbachan Singh, in the absence of recording of any disclosure statement and without any pointing out memo of the place of recovery and without the public witness to the alleged recovery, could not be treated as valid recovery in the eye of law within meaning of S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). The Supreme Court negated the contention and held the evidence of investigating officer as credible, the Court observed:

“…in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing Khudgraha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles.”

In State Government of NCT of Delhi v. Sunil, 2001 (1) SCC 652 : 2000 AIR SCW 4398 : 2001 CriLJ 504 the Supreme Court with respect to Recovery of article (bloodstained knickers of deceased) on the basis of statement made by accused before police and the seizure memo was  not attested by any independent witness it was held that mere absence of independent witness when investigating officer recorded is not sufficient ground to discard the evidence, the Evidence of police officer regarding the recovery at the instance of the accused should ordinarily be believed  and It is for the accused to show that such evidence is unreliable.

The Hon’ble Supreme Court further observed: –

“But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

14. Whether accompanying the Police and Pointing out the material object is necessary to attract the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (Section 27of the Evidence Act).

Now let us see, whether accompanying the Police and Pointing out the material object is necessary to attract Section 27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).

In State v. Navjot Sandhu alias Afsan Guru, 2005(11) SCC 600, the Supreme Court held that such a course is not a necessity from the point of view of relevancy, but may be a factor in the evaluation of credibility of the evidence, the Court observed:

“There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 2(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam)7. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of S.27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under S.27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam), though it may be one of the aspects that goes into evaluation of that particular piece of evidence.”

15. Procedure for Recording and Proving the Information

Now we will deal with the procedure for recording and proving the information leading to discovery u/s 27 of the Evidence Act(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).

C.D.Field on Law of Evidence (13th Edition) states the procedure in the matter of recording and proving information leading to discovery in the following words:

“Procedure in the matter of recording and proving information.– The manner of recording and proving information given by the accused leading to the discovery of fact or facts has been the subject – matter of comment in some cases and it would be proper and useful, to briefly indicate the procedure which should be adopted in the matter of recording and proving information as referred in S.27 of the Evidence Act(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).

(1) Whenever Police Officer is intimated that the accused proposes to give information leading to discovery he should proceed to record it as far as possible in the language spoken by the accused and in the first person.

(2) Although as a matter of law the presence of motbir (independent)witnesses at the time of recording information is not necessary but as a matter of prudence the Police Officer should secure the presence of motbir witnesses, if such witnesses are available without much inconvenience or difficulty.

(3) As regards the proving of such information, ordinarily the Police Officer or motbir witness should state in Court from memory what information was given by the accused and if such a witness is in a position to give the precise information, he should do so without referring to the written memo – containing the information.

(4) If the Police Officer or the motbir witness on account of lapse of time or otherwise, is not in a position to state with the help of memory what the information was thus makes out a case for referring to the memo, for refreshing his memory, he is entitled to do so. But, even then he should not merely remain content by proving his signatures on the information memo, but should reproduce in Court the information given.”

In, Ramand @ Nandalal Bharathu v State of UP 2022 SCC OnLine SC 1396: AIR 2022 SC 5273 (Uday U. Lalit, C. J.; S. Ravindra Bhat; J. B. Pardiwala, JJ.), a three judges bench in para 53 observed:

 “If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood-stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam).”

But immediately in para 54 the court further observed:

We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.

 It appears that in each case the credibility of the recovery evidence has to be judged on its own merits.

16. Whether Recovery Evidence by Itself Would be Substantial Enough to Fix the Guilt of the Accused

Generally accepted view is that except in cases were the possession of a contraband article itself would constitute offence, like that under NDPS Act or Arms Act recovery evidence under the proviso to section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act), would not perse be enough to fix the guilt of the accused.

But generally, it would be a significant link in the chain of circumstances which together with other clinging circumstances could establish the guilt of the accused.

In this regard, in the landmark judgment Pulukuri Kotayya v. Emperor, AIR 1947 PC 67, it was observed:

“Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.”

In Ramakishan Mithanlal Sharma and Others v. State of Bombay, AIR 1955 SC 104 the Supreme Court observed:

‘The evidence of the Police Officer would no doubt go to show that accused knew of existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith.”

Kanbi Karsan Jadav v State of Gujarat AIR 1966 SC 821 (J. L. Kapur; Raghubar Dayal, JJ), the Supreme Court observed:

“The mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. But there are other circumstances which have to be considered. The discovery of the buttons with bloodstains at the instance of the appellant is a circumstance which may raise the presumption of the participation of the appellant in the murder.”

In Wasim Khan v. The State of Uttar Pradesh (1956) SCR 191, it was held that the recent and unexplained possession of stolen property would be presumptive evidence against a prisoner on a charge of robbery as also of a charge of murder. But it must depend upon the circumstances of each case.

In Mani v State of Tamil Nadu, AIR 2008 SC 1021 (P. P. Naolekar; V. S. Sirpurkar, JJ), in a murder case were the recovery statement panchanama witnesses turned hostile, the Court observed:

The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case.

In Manoj Kumar Soni v State of Madhya Pradesh (Justices Dipankar Dutta and Ravindra Bhat) decided on decided on 11.8.2023, the Supreme Court categorically observed:

A doubt looms: can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.

17. Evidence under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) Needs to be Evaluated Meticulously and Scope for Misuse to be Averted

In Saifudeen v. State, 2012 KHC 39, High Court of Kerala speaking through Basant J, noted a mark of caution and observed:

“Law does not approve admission of confessions made before police officers by persons in custody. Law’s attitude on this aspect is evident from S.24 to 26 of the Evidence Act (Sections 22 and 23). S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam), which starts with the words ‘Provided that’ is an exception to S.24 to 26 of the Evidence Act. It accepts the principle of ‘confirmation by subsequent event’ and makes such information given by a person accused of an offence in the custody of the police officer admissible if a fact is discovered in consequence of the information,…”

“The evidence of such information and discovery in consequence of the information will certainly have to be approached with great care and caution. Such is the gross misuse of this safety valve provision under the Indian Evidence Act by the police that a trained and experienced adjudicator is always very cautious and careful before such information admitted in evidence is accepted. There is a long distance between admissibility and acceptability and that entire distance will have to be traversed by an adjudicator armed with the wealth of his prudence, knowledge, experience and sagacity. If evidence of recovery under S.27 (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) is inspiring, that can certainly go a long way to help the Court in the adjudication of guilt. The question is whether such discovery inspires confidence; to decide which, a Court will have to take note of all the attendant circumstances.”

In Perumal Raja @ Perumal vs State Rep. By The Inspector Of Police, (Justice Sanjiv Khann, and Justice Dipankar Datta -decided on 3 January, 2024), the Supreme Court observed:

Section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) is frequently used by the police, and the courts must be vigilant about its application to ensure credibility of evidence, as the provision is vulnerable to abuse. However, this does not mean that in every case invocation of Section 27 of the Evidence Act must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence.”

18. Facts Contemplated by the Proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) – Whether are Physical Facts, or Psychological Facts

Now let us see whether the facts contemplated by S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) are physical facts, or the mental/Psychological facts of which the accused giving the information could be said to be aware of.

In H.P Administration v. Om Prakesh, AIR 1972 SC 975, on the basis of information furnished by the accused to the police officer that he had purchased the weapon from a witness (PW 11) and that he would take the police to him, the police went to the thari of PW 11 where the accused pointed out PW 11 to the police. It was contended on behalf of the accused that the information that he purchased the dagger from PW 11 followed by his leading the police to the thari and pointing him out was inadmissible under S.27 of the Evidence Act (Proviso to S 23 of the Bharatiya Sakshya Adhiniyam). This argument was accepted. Jaganmohan Reddy, J. speaking for the Court observed thus:

“In our view there is force in this contention. A fact discovered within the meaning of S.27 must refer to a material fact to which the information directly relates.”

In H.P Administration v. Om Prakesh, Supreme Court enunciated that a fact discovered within the meaning of Section 27 must refer to a ‘material fact’ to which the information directly relates and not to a mental/ psychological fact. The Court stated as under:

“In the Full Bench Judgment of Seven Judges in Sukhan v.The Crown, ILR 10 Lah. 283 = (AIR 1929 Lah. 344) (FB) which was approved by the Privy Council in PulukuriKotaya’s case, 74 Ind App 65 = (AIR 1947 PC 67) ShaidLal C.J, speaking for the majority pointed out that the expression ‘fact’ as defined by S.3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect.’ That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under S.27 (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) and cannot be proved. As explained by this Court as well as by the Privy Council, normally S.27 (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused.”

Learned Chief Justice ShadiLal, C. J. in Sukhan v. Emperor, AIR 1929 Lahore 344, had opined that the fact discovered may be stolen property, the instrument of crime (weapon), the corps of the person murdered or any material thing; or, it may be a material thing in relation of the place or locality where it was found.

In H.P Administration v. Om Prakesh, what was sought to be admissible was pure and simple mental fact, which was not allowed by the Court.

It was reiterated in State v. Navjot Sandhu alias Afsan Guru, 2005(11) SCC 600 that the “discovery of fact” was not held to comprehend a pure and simple mental fact or state of mind relating to a physical object dissociated from the recovery of the physical object.”

But later, the Supreme Court in Mohd. Inayatullah v. State of Maharashtra, 1976 (1) SCC 828. The Supreme Court referred to but did not endorse/accept the proposition in Sukhan v. Emperor, the Supreme Court observed:

“At one time it was held that the expression ‘fact discovered’ in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact [see Sukhan v. Emperor (AIR 1929 Lah344 : 30 CriLJ 414 (FB));Ganu Chandra v. Emperor (AIR 1932 Bom 286 : 33 CriLJ 396))]. Now it is fairly settled that the expression ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this.”

In State of Maharashtra v. Damu, reported in 2000 (6) SCC 269 the Supreme Court without any gloss or qualification reiterated the proposition in “PulukuriKotaya” that the fact discovered “embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact”.

In that case, Accused No. 3 disclosed to the investigating officer that “Dipak’s dead body was carried by me and Guruji (A 2) on his motorcycle and thrown in the canal”. The said statement of A 3 was not found admissible in evidence by the High Court as the dead body was not recovered pursuant to the disclosure made. The Supreme Court however took a different view and held that the said statement was admissible under S.27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam). It was held so in the light of the facts: when an offer was made by A 3 that he would point out the spot, he was taken to the spot and there the IO found a broken piece of glass lying on the ground which was picked up by him. A motorcycle was recovered from the house of A 2 and its tail lamp was found broken. The broken glass piece recovered from the spot matched with and fitted into the broken tail lamp.

The Court has reached the following conclusion in para 37:

“How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A 2 Guruji, it can safely be held that the investigating officer discovered the fact that A 2 Guruji had carried the dead body on that particular motorcycle up to the spot.”

It seems that in Damu’s case the Supreme Court has gone beyond the scope of section 27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam) as far as the proof of statement of the accused based on the recovery of the piece of the tail lamp.

Perumal Raja @ Perumal vs State Rep. By The Inspector Of Police,(Justice Sanjiv Khann, and Justice Dipankar Datta -decided on 3 January, 2024), the Supreme Court observed:

 …….the fact discovered within the meaning of Section 27 of the Evidence Act must be some concrete fact to which the information directly relates. Further, the fact discovered should refer to a material/physical object and not to a pure mental fact relating to a physical object disassociated from the recovery of the physical object.

So, as discernible from a series of Judgments it could be summed up that the phrase “facts discovered” covers both physical fact as well as psychological/mental fact. But for attracting section 27 of the Evidence, there should be recovery of a material object.

“Discovery of fact” does not comprehend a pure and simple mental fact or state of mind relating to a physical object dissociated from the recovery of that physical object.

“fact” embraces within its fold both the physical object as well as the mental element in relation thereto. In other words, ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this and nothing more.

19. Constitutionality of S.27 of the Evidence Act

In State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 (5 judges bench) , the Supreme Court scrutinized the constitutional validity of S.27. The challenge was that the provision makes discrimination between persons in police custody and persons outside police custody and therefore infringes Article 14.

The majority judgment (S. K. Das; J. L. Kapur; M. Hidayatullah; J. C. Shah, JJ.) held that such distinction in the context of admissibility of evidence is not arbitrary and does not infringe Article 14 of the Constitution.

Justice K. SubbaRao in his dissenting judgment however held that the ‘differentia are not intelligible or germane to the object sought to be achieved’ and thus opined that S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam)is unconstitutional.

Again in State of Bombay v. KathiKalu, reported in A I R.1961 SC 1808 at 1815 and 1816, the Supreme Court considered the constitutional validity of S.27(the proviso to S 23 of the Bharatiya Sakshya Adhiniyam), this time in the context of the ‘Doctrine of Testimonial Compulsion’ enshrined under Art.20 (3) of the Constitution which reads as “No person accused of an offence shall be compelled to be a witness against himself”. The Court rejected the challenge and held as under:

“If the self incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of Cl. (3) of Art.20 of the Constitution for the reason that there has been no compulsion. It must therefore be held that the provisions of S.27 of the Evidence Act (the proviso to S 23 of the Bharatiya Sakshya Adhiniyam)are not within the prohibition aforesaid, unless compulsion had been used in obtaining the information”.

The above proposition surely implies that where compulsion has been used, the prohibition in Art.20 (3) is attracted.

20. Summing Up

Before parting we will sum up the essential elements of the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act), once again:

  1. There must be a person accused of an offence.
  2. He must have been in custody of the Police.
  3. He must have given some information (whether amounting to confession or not) to the Police.
  4. In consequence to the information there should be discovery of fact and that should be deposed before the Court.
  5. Then, so much of the information that relates distinctly to the fact thereby discovered is relevant and can be proved.

In the next module we will deal with Confession of the Co-Accused under Section 24 of the Bharatiya Sakshya Adhiniyam (section 30 of the Evidence Act) and Accomplice’s Evidence under Section 138 of the Bharatiya Sakshya Adhiniyam  (Section 133 of the Evidence Act).

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful. See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Are all confessional statements made by an accused person to a police officer inadmissible, is there any exception to the above rule, if so, explain the extent to which the exception may operate, State the law in the light of judicial precedents?
  2. What is the exact “Information” provided by the accused in his statement while in ‘police custody’ which relates “distinctly” to the “fact discovered”? What is the “fact” discovered as a consequence of the information provided by the accused, as contemplated under the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Indian Evidence Act)?
  3. Narrate the essential elements of the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Indian Evidence Act?
  4. “The ratio in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67 has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth”. Comment.
  5. Explain the legal Meaning of the Phrases ‘Accused of any Offence’ and ‘Custody of a Police Officer’ in the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act)?
  6. Explain the evidentiary value of a joint statement made by the more than one accused leading to discovery under the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (Section 27 of the Evidence Act)?
  7. Whether Authorship of Concealment is ‘Sine Qua Non’ for Admissibility of the Statement of the Accused under the proviso to Section 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act)?