• Should the ‘Object’ Necessarily be ‘Recovered‘ (from the Concealed Place) to attract Sec. 27?
• Answer – No.

Saji Koduvath, Advocate, Kottayam & Jojy George Koduvath.

Abstract

• 1. Sec. 27 says Only as to Discovery; Not Recovery.
• 2. Sec. 27 – Discovery Embraces (i) Place from where the Object Produced and (ii) Knowledge of Accused.
• 3. No Witnesses needed for Recording Accused’s Statement u/s 27. Contra-Observation is laid down in Boby v. State of Kerala, 2023-1 Ker LT 543 (SC).

Section 27 of the Evidence Act

Section 27 of the Evidence Act reads-

• “27. How much of information received from accused may be proved. 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 thereby discovered, may be proved.”

Section 27 is Not Artistically Worded

The Privy Council, in Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, the ‘Best Known and Most Authoritative Decision’ in this subject, as shown below, observed that the Section 27 was not artistically worded. It is because of the hardheadedness of the following words in this Section, and they raise the following questions:

• 1. “Any fact is deposed to” – Who has to depose; and where?
• 2. “As discovered” (in consequence of information from accused) – Who discovered; and from where?
• 3. “Fact discovered” – What are the facts embraced (or that may be attracted)?

Who has to “depose” – It is by the Police Officer, Before the Court; What is to be Deposed – It is the fact he Discovered as Disclosed by the Accused.

“Fact .. Deposed“

• In Sunil @ Chunnan v. State of Kerala, 2019-2 Crimes 1, after quoting Sec. 27, Evd. Act, it was observed as under:

• “Therefore what is substantive evidence is the disclosure statement deposed to by the investigating officer in court and not what he had extracted in the seizure mahazar.”

“As Discovered” (in consequence of information from accused)

• It is the Fact Deposed to*^* by the Police Officer before the Court. It should have been ‘discovered’ from the “Place of Concealment” mentioned below.
  • *^{*as disclosed by the accused.}

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, made it clear, as regards the concealment of a knife, as under-

• “In their Lordships’ view 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. If the statement of the accused contains the words ‘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.”

Pulukuri  Kottaya – Locus Classicus (Best Known and Most Authoritative) Decision

In Anter Singh v. State of Rajasthan, 2004-10 SCC 657, Supreme Court of India pointed out that the scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri  Kottaya v. Emperor; and that it has become locus classicus on this subject. (See also: Amitsingh Bhikamsing Thakur v. State of Maharashtra, AIR 2007 SC  676; Ramanand@ Nandlal Bharti v. State of Uttar Pradesh, AIR 2022 SC 5273.)

Pulukuri Kotayya v. King ­Emperor – Analysed

Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, on analysis, states the following-

• It is fallacious to treat the “fact discovered” as equivalent to the object produced.
• The fact discovered embraces the place from which the object is produced _{(Note – Not ‘recovered’)} and the knowledge of the accused as to this.
• The information given must relate distinctly to this fact (place from which the object is produced and the knowledge of the accused as to this).
• 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; _(because) knives were discovered many years ago.
• ^{(Nevertheless)} 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 _{(in Court)} to have been used in the commission of the offence, the fact discovered is very relevant.

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King ­Emperor

• It is clear –
  • even if the knife was discovered many years ago,
  • if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
  • it is relelvent and admissible under Sec. 27 Evd. Act.

How the “Discovery” under Sec. 27 Proved?

Sec. 27 substantially directs-

• The ‘information‘ (or disclosure) from the accused that led to “discovery” may “be proved“.

How the substantial part be introduced in court is stated in the first portion of Sec. 27. It says-

• What is to be proved by Sec. 27 is the fact deposed by the IO in court; and
• it must be as to the discovery on ‘information‘ (or disclosure) from the accused.

Pulukuri Kotayya v. King ­Emperor, says what are the facts to be deposed by the IO and what are to be Discovered or Proved under Sec. 27.

• They are-
  • (a) place (Place of concealment of object – a tangible matter) and
  • (b) knowledge (knowledge of accused as to concealment– an intangible matter.)

“Discovery” under Sec. 27 is to be Proved (primarily) by the Deposition of IO

• ‘Information‘ (given by the accused) and the ‘fact‘ (of discovery) required under Sec. 27 are to be proved in a court (primarily) by the deposition of the IO, before the court–
  • (a) as to the information given by the accused to him (IO) and
  • (b) as to discovery of the (i) place, (ii) object and (iii) knowledge of the accused,
• supported by-
  • (1) disclosure statement of accused (written by IO) and
  • (2) proof as to two tangible things –
    • (i) place (by mahazar prepared in presence of witnesses) and
    • (ii) object (recovery of original object or other proper evidence).

The Object Need Not be Recovered from “Concealed–place“, under Law in India

Sec. 27 says that “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“. Going by the section, the following are not a necessary components to bring-in Sec. 27-

• ‘recovery’,
• ‘concealment’ and
• ‘information from an “accused who faces trial”.

No doubt, true, Sec. 27 is laid down as an exemption to Sec. 25 and 26, which states as to ‘confession to police’; and Sec. 27 says as to “how much of information received from accused may be proved”. Still, from the words employed in Sec. 27, it is definite that this section will be attracted even if the “person accused of“ the offence is (i) found innocent and set-free without being charge sheeted in that case and (ii) he “deposed” the “fact” while he was in custody in another case.

It must also be taken note of the fact that the leading section of Chapter II of the Evidence Act (wherein Sec. 27 falls), viz., Sec. 5, lays down as to matters on which ‘evidence may be given’. Merely because evidence under Sec. 27 is relevant, it could not be taken as ‘binding’. The probative value thereof will be a matter for the court to determine. In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed as regards admissibility of document as under:

• “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Sec. 5 Evidence Act reads as under:

• “Evidence may be given of facts in issue and relevant facts. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”

From Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, it is clear that the words,

• “the fact discovered embraces the place from which the object is produced” (as used in Pulukuri Kotayya v. King)

cannot be equated, always, as-

• “the fact discovered embraces the place from which the object is recovered“.

True, in most cases where Sec. 27 is attracted, the relevant place may be the “concealed-place” from which the object is recovered. Referring Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, it is seen observed in State of Himachal Pradesh v. Jeet Singh, AIR 1999 SC 1293, as under:

• “It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it.” (quoted in State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 SC 16.)

In Anter Singh v. State of Rajasthan, 2004-10 SCC 657, it is observed as under:

• “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, 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, as noted in Palukuri Kotayya’s case (supra) and in Udai Bhan v. State of Uttar Pradesh (AIR 1962 SC 1116).” (Quoted in Amitsingh Bhikamsing Thakur v. State of Maharashtra, AIR 2007 SC  676.)

The proposition that ‘the object (as such) must have been recovered from the place where the accused concealed it’ is against the law accepted in India. That is, there may be cases where the place of recovery of the object and the place relevant under Sec. 27 may be different.

It can be demonstrated by the following Illustrations–

First illustration–

• An accused buried and hided certain material objects in a place.
• Some how or other (say, because of the acts of certain animal) those articles were taken out and placed in a far away ‘public place’. The investigating officer ‘recovers’ it.
• After arrest of the accused, thereafter, the accused reveals, to the I.O, the place the material objects were actually concealed by him.
• The I.O. caused to make a scientific examination. It is proved (discovered) that the material objects were buried in the place, as ‘disclosed’ by the accused.
• In such a circumstance, the fact discovered (Place and Knowledge of the accused) falls under Sec. 27 (though no material object as such, is “recovered” from that place).

Second illustration (no concealment or hiding of a fact)-

• An accused pushed down a victim into water from a bridge. The dead body is recovered from some distance away, from the bank of the river. The investigating officer ‘recovers’ it.
• After arrest of the accused, some time thereafter, the accused reveals, to the I.O, the place of pushing down the victim from the bridge.
• The I.O. caused to make a scientific examination. It is proved (discovered) that the the accused and the victim had a scuffle at the bridge, as ‘disclosed’ by the accused.
• In such a circumstance, the fact discovered (Place and Knowledge of the accused) falls under Sec. 27 (though no material object as such, is “recovered” from that place).

Third illustration (not an accused and no concealment)-

• ‘A person accused of an offence, in the custody of a police officer‘ reveals, to the I.O, that the shop where he sold the gold ornaments he “found in a lost/abandoned state” (actually involved in theft case); and he informed the IO that he could identify the ‘sales-man’ to whom he had ‘sold’ the ornaments.
• It is proved (discovered) that he ‘sold’ the gold ornaments to the ‘sales-man’ in the said jewellery.
• In such a circumstance, the fact discovered (Place and Knowledge of the accused) falls under Sec. 27 (though (i) the person was subsequently set-free from that case without framing a ‘charge’ against him and (ii) no material object as such, was “recovered”).

Pulukuri Kotayya v. King Emperor is Consistently Considered as the Authority

In State of Himachal Pradesh v. Jeet Singh, AIR 1999 SC 1293, it was pointed out that the principles in Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, was followed in-

• K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788,
• Jaffar Hussain Dastagir v. State of Maharashtra, (1969)2 SCC 872,
• Earabhadrappa @ Krishnappa v. State of Karnataka, (1983) 2 SCC 330,
• Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430,
• State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675.

Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, is the most read and mot valuable decision on Sec. 27, Evd. Act. It is consistently considered as the authority in this subject, as revealed from the following Apex Court decisions also-

• Boby v. State of Kerala, 2023-1 Ker LT 543 (SC),
• Jafarudheen v. State of Kerala, AIR 2022 SC 3627
• Venkatesh v. State of Karnataka, (SC), 2022 April, 19
• Kusal Topo v. State of Jharkhand,2019-13 SCC 676,
• Asar Mohammed v. State of UP, AIR 2018 SC 5264,
• Charandas Swami v. State of Gujrat, AIR 2017 SC 1761,
• Vasanth Sampath State of Maharashtra, 2015-1 SCC 253,
• C. Muniappan v. State of TN, AIR 2010 SC 3718,
• Limbaji v. State of Maharashtra, AIR 2002 SC 491

Sec. 27 is an Exception to Sec. 25 and 26

Sec. 27 is an exception to the two preceding sections, Sec. 25 and 26. They are as to-

• No confession made to a Police officer shall be proved as against a person accused of any offence (Sec. 25).
• No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person (Sec. 26).

Sec. 162 CrPC is also relevant here. It says as to-

• No statement made by any person to a police-officer in the course of an investigation be used for any purpose at any inquiry or trial (except for contradiction under Sec. 145 Evd. Act).

If “place” already known, and not exclusively in knowledge of Accused, No Sec. 27 Recovery

It is trite law, as shown in recent decisions of our Apex Court, Subramanya v. State of Karnataka, AIR 2022 SC 5110,  and Boby v. State of Kerala, 2023-1 Ker LT 543, that Sec. 27 would not be attracted if the recovery was from a place which was already known and not exclusively within the knowledge of accused.

“Any object can be ‘concealed’ in places which are open or accessible to others”

In State of Himachal Pradesh v. Jeet Singh, AIR 1999 SC 1293, it is pointed out that it may be possible to hide articles in a place ‘open or accessible to others’. It is said, “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.” (Quoted in- Ibrahim Musa Chauhan v. State of Maharashtra, 2013-13 SCC 689; Lochan Shrivas v. State of Chhattisgarh, AIR 2022 SC 252.)

Credibility of the Investigating Officer, Important

But, in several cases it is emphasised that the credibility of the evidence of the investigating officer was really important (See- Mohd. Arif @ Ashfaq v. State (NCT) of Delhi, (2011) 13 SCC 621, Himachal Pradesh Administration v. Om Prakash, AIR 1972 SC 975.)

Failure to Record Information of the Accused, Not Fatal

It was pointed out in Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, that failure to record the information given by the accused and failure to examine public witnesses, are not fatal to the prosecution.

Exact Statement of the Accused must be deposed by the Police Officer

Courts in India insists (unduly?) that the exact disclosure statement of the accused should be stated by the police officer, in the “Recovery Mahazar” and before the court. In Subramanya v. State of Karnataka, AIR 2022 SC 5110, it is observed as under:

• “83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.

Disclosure Statement under Sec. 27 Need Not be in Presence of Witnesses

In Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199, our Apex Court held that Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses. It reads-

• “21. Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses. Normally in cases where the evidence led by the prosecution as to a fact depends solely on the Police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus it is only a rule of prudence which makes the court to seek corroboration from independent source, in such cases while assessing the evidence of Police. But in cases where the court is satisfied that the evidence of the Police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case nothing is brought on record to show why evidence of PW-33 I.O. should be disbelieved in regard to the statement made by the accused as per Ex. P-35. Therefore, the argument that statement of the appellant as per Ex.P-35 should be rejected because the same is not made in the presence of independent witness has to be rejected.”
• Also see- State of Himachal Pradesh v. Jeet Singh: AIR 1999 SC 1293.

In Nisar Khan @ Guddu v. State of Uttaranchal, (2006) 9 SCC 386, it was held that the discovery statement and the recovery memo need not bear the signature of the accused.

Subramanya v. State – Witnesses needed for Accused’s Information, Only Obiter

Subramanya v. State of Karnataka, AIR 2022 SC 5110, reads as under:

• 84. 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, the site of burial of the dead body, clothes etc., 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 would 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 etc. 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 Section 27 of the Evidence Act 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 Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” (It is quoted and followed by the Apex Court in Boby v. State of Kerala, 2023-1 Ker LT 543).
  • Note: In Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199, our Apex Court held that Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses.

In any case, the observation in Subramanya v. State of Karnataka, AIR 2022 SC 5110 – ‘when the accused while in custody makes such statement before the two independent witnesses (panch-­witnesses)’, is only obiter; in view of the earlier observation in the judgment, which reads as under:

• “The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.”

Sec. 27 is a Most Misused Provision

Sec. 27 is an effective instrumentality to prove the truth in criminal cases before the courts, though it is inappropriately said by some persons that it is the most misused provision. No doubt, the critics are undeniably wrong; for, it is not a great Indian hypocrisy in criminal-investigation. All who handle matters in Court and Police know the truth.

Law Commission of India

But, the Law Commission of India has qualified it as a ‘malady’ and recommended in its 152^nd Report (Report On Custodial Crimes), dated 26-8-1994, as under:

• “If information spoken of in section 27 is not forthcoming voluntarily, the police may have recourse to procuring the same by other means. This is not to say that in every case the information is compelled to be given. But it cannot be gainsaid that the very existence of the section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the section is pressed into service in situations never intended by the legislature. We are convinced that the section needs an amendment, if not repeal, in order to completely ward off the tendency mentioned above.
• In order to meet the malady two courses are open. Section 27 may be repealed in toto and that is our first reference. But if that course is not acceptable, the minimum that can be done is to revise the section so as to confine it to make admissible the fact discovered but not the information. Therefore, if the milder alternative of merely amending Section 27 (and not its total repeal) is to be adopted, we would recommend that Section-27 may be replaced by the following Section-
  • ’27. Discovery of facts at the instance of the accused– When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not’.”

Supreme Court of India

In Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, our Supreme Court said as follows:

• “As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse.”
• It is quoted in-
  • Jafarudheen v. State of Kerala, AIR 2022 SC 3627;
  • Mukesh v. State of Delhi, (Nirbhaya Case) 2017-6 SCC 1;
  • Kusal Toppo v. State of Jharkhand, (2019) 13 SCC 676.)

Conclusion

Law must be specific and accurate. Otherwise, those who enforce it may be free to handle it according to their understanding, if not speculation.

It is really disgraceful to continue Section 27 of the Evidence Act, in its present tough-and-rough form, without change, in spite of the observation of the Privy Council, in Pulukuri Kotayya v. King ­Emperor as early as in 1947, that it was not artistically worded; and after the resounding recommendation of the Law Commission of India that Section-27 should be repealed in toto.

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