Evidence Act, 1872 – s.27 – “in the custody of a police officer” – Interpretation – Case based on circumstantial evidence – Appellant was taken into custody during the course of investigation for the murder of his Uncle – However, he made a disclosure statement – Appellant along with other co-accused had murdered his uncle’s son-deceased (appellant’s cousin) who was missing for months and his body was first dumped in the sump tank and later retrieved, cut into two parts, put in sack bags, and thrown in the river/canal – Appellant subsequently arrested in the present case – On the basis of the disclosure statement, parts of the dead body and sack bags were recovered – Other articles were also recovered – Appellant’s conviction and sentence u/ss. 302 and 201, Penal Code, 1860, challenged:

Held: The pre-requisite of police custody, within the meaning of s.27, ought to be read pragmatically and not formalistically or euphemistically – “custody” u/s.27 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 – Words “person accused of an offence” and “in the custody of a police officer” in s.27 are separated by a comma and thus, have to be read distinctively – The wide and pragmatic interpretation of the term “police custody” is supported by the fact that if a narrow or technical view is taken, it will be very easy for the police to delay the time of filing the FIR and arrest, and thereby evade the contours of ss. 25 to 27 – A person giving word of mouth information to police, which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer – In the present case, the disclosure statement was made by the appellant when he was detained in another case relating to the murder of his Uncle– He was subsequently arrested in the present case – Body parts of the deceased were recovered on the pointing out of appellant in his disclosure statement – Deceased had been missing for months and was untraceable – His whereabouts were unknown– The perpetrator(s) were also unknown – It is only consequent to the disclosure statement by the appellant that the police came to know that the Deceased had been murdered – The homicidal death of Deceased, the disclosure statement and the consequent recoveries of the motorcycle and other belongings at the behest of the appellant proved beyond doubt – These facts, in the absence of any other material to doubt them, establish that the appellant committed murder of Deceased – The presence of motive, inter se family property disputes, reinforces the said conclusion – Conviction of the appellant upheld. [Paras 25, 28, 29, 31, 41]

Evidence Act, 1872 – ss. 25-27 – s.27, an exception to ss. 25, 26 – Doctrine of confirmation by subsequent events:

Held: s.27 is an exception to ss. 25 and 26 – s.27 makes that part of the statement which distinctly leads to discovery of a fact in consequence of the information received from a person accused of an offence, to the extent it distinctly relates to the fact thereby discovered, admissible in evidence against the accused – The fact which is discovered as a consequence of the information given is admissible in evidence – Further, the fact discovered must lead to recovery of a physical object and only that information which distinctly relates to that discovery can be proved – s.27 is based on the doctrine of confirmation by subsequent events- a fact is actually discovered in consequence of the information given, which results in recovery of a physical object – The facts discovered and the recovery is an assurance that the information given by a person accused of the offence can be relied – However, s.27 does not lay down the principle that discovery of a fact is to be equated to the object produced or found. [Paras 19, 22]  

Evidence Act, 1872 – s.27 – Conditions necessary for bringing s.27 into operation, discussed – Facts proved by the prosecution – Duty of the Court – Evidence produced in terms of s.27 – Evidentiary value:

Held: The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, (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 – The 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 – s.27 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 s.27 must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence – Evidentiary value to be attached on evidence produced before the court in terms of s.27 cannot be codified or put in a straightjacket formula – It depends upon the facts and circumstances of the case – A holistic and inferential appreciation of evidence is required to be adopted in a case of circumstantial evidence. [Paras 23, 24]

Evidence Act, 1872– ss. 24-27 – “accused person”, “a person accused of any offence”:

Held: The bar u/s.25 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 – 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 s.24 and the expression “a person accused of any offence” in ss. 26 and 27 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. [Para 26] 

Criminal Law – Appellant was accused of the murder of his Uncle and his son – Acquitted in the case relating to the murder of Uncle – Judgment of acquittal – Evidentiary value, if any:

Held: Except for the fact that the appellant was taken into custody during the course of investigation for the murder of his Uncle and thereupon his disclosure statement (Exhibit P-37) was recorded, there is no connection between the two offences – Murders were committed on two different dates – Murder trial of his Uncle was primarily based upon an entirely different set of evidence – Conviction of the appellant is sustainable in view of the evidence placed on record in the present case – The judgment of acquittal would not qualify as relevant and of evidentiary value so as to acquit the appellant in the present case. [Para 42]

Evidence Act, 1872 – s.27 – Disclosure statement (Exhibit P-37) made by the appellant, convicted – Acquittal of the co-accused – Application of s.27:

Held: Acquittal of the co-accused was for want of evidence against them – At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P-37) made by the appellant – s.27 of the Evidence Act could not have been applied to the other co-accused as the provision pertains to information that distinctly relates to the discovery of a ‘fact’ that was previously unknown, as opposed to fact already disclosed or known – Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co-accused who is in custody – s.27 does apply to joint disclosures, but this is not one such case – This was precisely the reason given by the trial court to acquit the co-accused – Further, even if Section 8 of the Evidence Act was to apply, it would not have been possible to convict the co-accused – The trial court rightly held other co-accused not guilty. [Para 43]

Evidence – Case based on circumstantial evidence – Five golden principles to be satisfied as laid down in Sharad Birdhichand Sarda v. State of Maharashtra [1985] 1 SCR 88 – Conditions to be fulfilled before the false explanation or a false defence can be used by the Court as an additional link to lend an assurance to the court, stated – A distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and the defence or explanation given by the accused is found to be false, in which event the said falsehood is added to reinforce the conclusion of the court. [Paras 37, 38]

Evidence Act, 1872 – s.106 – Code of Criminal Procedure, 1973 – s.313:

Held: Appellant in his statement u/s.313 denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered – The failure of the appellant to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle u/s.106 of the Evidence Act thus forming an additional link in the chain of circumstances – The additional link further affirms the conclusion of guilt as indicated by the prosecution evidence. [Para 40]

Words and Phrases – ‘distinctly’ in s.27, Evidence Act, 1872:

Held: The word ‘distinctly’ is used to limit and define the scope of the information and means ‘directly’, ‘indubitably’, ‘strictly’ or ‘unmistakably’ – Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible. [Para 22]