Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
5.1 Introduction
A part of a confession hit by Sections 25 and 26 of Evidence Act may
still be proved against the accused if it distinctly leads to discovery of any fact
during the course of investigation by virtue of section 27. The provision is
couched in the form of a proviso, an exception, though it is not clear from its
terms as to which provisions it qualifies. Fortunately, the controversy has been
set at rest by judicial pronouncements and it is accepted that the section
qualifies only Section 25 and 26 and not section 24, as shall be seen later in
this chapter. First, we examine the nature of and reasons for creating this all
important exception to the rule of total exclusion of custodial confessions.
Section 27 enacts the English doctrine of confirmation by subsequent
facts. The two broad reasons based on which the total exclusion rule in Section
25 and 26 has been justified are:
a. Confession made to police or in the presence of the police may be false
and could have been made by the accused as the only way to escape
police torture.
b. Even if true, admitting such confession in evidence will encourage the
illegal and inhuman atrocities committed by the police.
If a part of a statement made by the accused when he is in police
custody directly and distinctly leads to discovery of a fact relevant to the
investigation, the veracity of the said part gets confirmed. This makes at least
reason cited at (a) above not applicable so far as that particular part of the
statement is concerned. As regards reason (b), its absence is ensured by the
Supreme Court in the Landmark judgement delivered by a bench of eleven
163
4
Rajender Kumar v. State of Rajasthan, 2003 Cri. L.J. 4344 (S.C.)
5
Ayyappan v. State of Kerala, 2005 Cri. L.J. 57 (Kerla High Court).
6
Charat alias Sunda v. State of Haryana, 2005, Cri. L.J. 1523 (Punjab & Haryana High
Court).
7
R.V. Babulal (1884)6 All 509.
8
Surjit Singh v. State of Punjab, 2005 Cri. L.J. 1176 (Punjab & Haryana High Court).
165
9
Bharat v. State of M.P., 2003 Cri L.J. 1297 S.C.
10
AIR 1962, SC 1116.
166
11
State of U.P. v. Deoman Upadhyay, AIR 1960 S.C. 1125.
12
In re Addanki Vankadu, AIR 1939 Mad. 266.
167
Bhupat Singh had stated that the accused had brought a bandle to his house
and buried it in a room there. He had also stated that later one Dilipat Singh,
brother of the accused, had asked him to make over the property to Ram
Piarey, and he had accordingly handed it over to him. The property was
ultimately recovered from Ram Piarey who deposed in court that Bhupat
Singh had given him certain properties and that he gave them to the sub-
inspector. The court held that it was the information of Bhupat Singh and Ram
Piarey that led to the discovery and not the information of the accused and
therefore, what they had stated in this connection was not admissible in
evidence under section 27 Evidence Act.13 In fact when there has to be a
further inquiry of an independent nature before the discovery is made one
cannot say that it is ‘distinctly’ related to the information, and so the
information is not admissible under the Section.14 The accused made a
statement that the box which he stole was lying concealed under his fodder
and that he would produce it. On a search, the accused failed to find the box.
Thereupon, he stated that perhaps his mother had placed the box somewhere.
The box was discovered as a result of the information furnished by the mother.
The court held that none of the statements of the accused has lead to any
discovery. The knowledge of the stolen property could not be attributed to the
accused.15
5.6 Information Emanating from more than one Accused
For information to be admissible under Section 27, should proceed
from a person accused of any offence. It is not un-often that there are more
than one such person, and the information that is given by one may be known
to others also who are similarly conditions. But where one such person had
13
Kartar Singh v. State, AIR 1952 A.P. 42.
14
Ponu Pilli v. State, 1955 Kerala Law Times 214.
15
Bala v. State, 1955 Rajasthan Law Weekly 314.
168
16
Mala Bijal v. State, AIR 1954 Kutch 22.
17
Budh v. Emperor, AIR 1922 Lah.
18
Gurubaru v. The King, AIR 1949 Orr; Abdul Qudir v. Emperor, AIR 1946 Cal. 452.
169
19
State of M.P. v. Chhoteylal, AIR 1955 Nag. 71.
20
Karappa Vallayan v. State, AIR 1960 Kerla 238.
170
21
Nathu v. State, AIR 1958 All 467.
22
Khujji v. State of M.P., AIR 1991 SC 1853, following Himachal Pradesh Admn. v. Om
Prakash, (1972)2 SCR 765 : AIR 1972 SC 975. But see Banifas Samad v. State, 1992.
Cr. L.J. 2271 (Orissa), statements of witnesses not recorded, nor any witness to testify as
to what information was given by the accused, evidence ruled out. Relying upon Madan
Singh v. State of Rajasthan, AIR 1978 SC 1511, where the facts were similar; also of the
same kind Bhago Gowda v. State, (1988)1 GCR 400. Khalaksingh v. State of M.P., 1992
Cr. L.J. 1150 (MP) respectable residents of the locality not joined as witnesses to
recovery and whatever witnesses were there, their signatures were obtained at police
station, recovery not admissible. Recovery was that of a shirt belonging to the victim,
recovery after 3 months, not good evidence. Ram Singh v. State of Punjab, 1992 Cr LJ
805 (P & H), recovery witness, related to accused, also resident of a distant village,
unnatural, evidence of recovery rejected. R. v. Keeman. (1989)1 All ER 598 recording of
a statement leading to a recovery some six weeks after the arrest of the accused would
require a statement of the reasons for the delay. R. v. Delaney, (1989)88 Cr. App. R. 338
at 341-342 by failing to make a contemporaneous note as soon as practicable, the police
officers deprive the court of a cogent piece of evidence.
171
all objections to the validity of that part of the statement are washing which
leads to the discovery of an article connected with the crime finding of articles
in consequence of the confession appears to the trustworthy that part which
relates to them.”23 Whether such a states are proceeds out of inducements,
threats or torture are absolutely immaterial Statements made by the accused in
connection with an investigation in the other case which lead to the discovery
of a fact are also relevant.24 That is of an involuntary confession confirmed by
the discovery of real evidence admissible because the truth of the statement is
established by that evidence.
5.8 Sections 26 and 27 Compared
Though the section is in the form of a proviso to Sec. 26, these sections
do not deal with evidence of the same character. Section 26 of the confession
to police altogether, but S. 27 lets in a statement which leads or crucial
discovery whether it amounts to confession or not. Under Section 27 a
confession made in the presence of a Magistrate is wholly provable, whereas
23
Cockels cases and statutes on evidence, 199 (11th ed, by G.D. Nokes, 1970, based on R. v.
Gould, (1840) 9 C. & P. 364 : 173 E.R. 870. See Narayan Singh v. State of M.P., AIR
1985 SC 1678: (1985) 4 SCC 26, where it is observed that evidence regarding recoveries
affords a guarantee to the truth of the prosecution case. Thus in State of Maharashtra v.
P.K. Pathak, AIR 1980 S.C. 1224, the conviction of a person on the basis of recoveries if
smuggled goods affected as indicated by him was sustained. Anber Singh v. State of
Rajasthan, AIR 2004 SC 2865 : (2004) 10 SCC 657 requirements of the section restate
many irregularities found in the process of recovery. The words : “so much of such
information as related directly to the fact thereby discovered” refers to that part of the
information supplied by the accused which is the direct and immediate cause o the
discovery. This affords some guarantee of the truth of the statement and makes it
admissible and this is not true of the other parts of the statement which are indirectly or
remotely connected with discovery. The Court also remarked that recovery from an open
place does not always render it vulnerable. The recovery was of a pistol from an open
place accessible and visible to all, credibility of prosecution version affected. The
evidence was not to be rejected because the non-official witnesses was not supporting the
recovery. State of M.P. v. Kriparam, (2003) 12 SCC 675, recoveries by themselves do
not take the prosecution case any further where the eye-witnesses are not acceptable. The
Allahabad High Court held in Safi Mohd. Husain v. State of U.P., 1992 Cr. L.J. 1755
(All.). That if the statement does not amount to a confession, it would be barred by S. 162
Cr. P.C. But the language of the section is quite clear, it says whether the statement
“amounts to a confession or not”.
24
State of Rajasthan v. Bhup Singh, (1997)10 S.C.C. 675.
172
Section 27 permits only that part of the statement which leads to the discovery
of fact.25 The scope of the section was explained by the Privy Council in
Pulukuri Kottaya v. Emperor.26
A number of accused persons were prosecuted for rioting and
murder. Some of them were sentenced to death and some
transportation for life. They appealed to the Privy Council on
grounds among others, that the statements of some of them were
admitted is violation of Sections 26 and 27. The statement of
one of them was “About 14 days ago I, Kottaya, and people of
my party lay in wait for Sivayya and others… We all beat
Sivayya and Subayya to death. Ramayya who was in our party
received blows on his hands. He had a spear in his hands. He
gave it to me then. I hid it and my stick in the trick of my
village. I will show if you come. We did all this at the instance
of Pulukuri Kottaya”. Another accused said : “I stabbed Sivayya
with a spear. I hid the spear in a yard in my village. I will show
you the place”. The relevant articles were produced from their
respective places of hiding.
The High Court of Madras admitted the whole of the above statement.
Proceeding against the weight of Indian authority, the High Court held that
unless the whole of the statement is admitted, it would be difficult to connect
the articles produced with the offence, the only connecting link being the
confessional statement. The court followed its own earlier Full Bench decision
in Athappa Goundan v. Emperor.27 In that case the court had to deal with a
confession of murder made by a person in police custody, and the court
25
State of U.P., v. Deoman Upadhaya, AIR 1960 S.C. 1125 at p. 1129.
26
AIR 1947 PC 67.
27
ILR 1937 Mad. 695 : AIR 1937 Mad. 618 : 171 I.C. 245 (F.B.)
173
admitted the confession because in the last sentence (readily separable from
the rest) there was offer to produce two bottles, a rope and a cloth bag, which,
according to the confession, had been used in the commission of the murder,
and the objects were in fact produced. The court was impressed by the
consideration that as the objects produced were not in themselves of
incriminating nature their production would be irrelevant unless they were
shown to be connected with the murder and there was no evidence so to
connect them apart from the confession.
Sir John Beaumont, who delivered the judgement of the Privy Council,
at once pointed out that the case was wrongly decided and was against the
trend of Indian authority.28 The result of the decision was to read in Section 27
something which is not there and admit in evidence a confession barred by
Section 26.
Explaining the relationship between Sections 26 and 27 and the ban
imposed by Section 26, their Lordships said:
That ban was presumably inspired by the fear of the
Legislature that a person under police influence might be
induced to confess by the exercise of undue pressure. But if all
that is required to lift the ban be the inclusion in the confession
of information relating to an object subsequently produced, the
ban will lose its effect. On normal principles of construction
their Lordships think that the proviso to Section 26 added by
Section 27 should not be held to nullify the substance of the
section. In their Lordships’ view it is fallacious to treat the “fact
discovered” as equivalent to the object produced; the fact
28
It was against the decision of the Bombay and Lahore High Courts in Sukhan v. Emperor.
ILR (1929) 10 Lah. 283 : AIR 1929 Lah. 344 : 115 I.C. 6 (F.B.); Ganu Chandra v.
Emperor, ILR (1932)56 Bom. 172 AIR 1932 Bom. 286 : 137 IC 174.
174
30
AIR 1947 PC 67 at p. 70. This ruling was endorsed in Jaffar Hussain Dastagir v. State of
Maharashtra, AIR 1970 SC 1934 : (1969)2 SCC 872 : K. Chinnapaswamy Reddy v. State
of A.P., AIR 1962 SC 1788 and Shamshul Kanwar v. State of U.P. (1995)4 S.C.C. 430 :
1995 AIR SCW 274. Inculpatory statements are relevant if they are connected with the
discovery of facts.
31
Bodh Raj v. State of J. & K. AIR 2002 S C. 3164.
176
objection to the admissibility of these statements was overruled. The words did
not implicate the accused persons with the commission of the crime. They
referred only to the articles connected with the crime.32
Where the accused took the investigation officer and panchas to the
dealer from whom he purchased the weapon of murder, the information was
held to be inadmissible under S. 27. It was, however, admissible under S. 8 as
showing the conduct of the accused person.33
It is necessary that the person in question should be accused of some
offence. Where without any accusation a person was brought to the police
station for interrogation, his statement and consequential discovery of a fact
were held to be not relevant under S. 27.34
Where the accused disclosed: “I have kept the firearm concerned
behind the old house under a heap of wood”. The same was recovered from
that place. The court said that the fact discovered was not the gun but the fact
that the accused had concealed it at the place from where it was found
the thing produced. The discovery of the fact arises by reason of the fact that
32
Sanay v. State (NCT of Delhi), AIR 2001 S.C. 979. The brother of the deceased was
taken as a witness to the process of recovery. The Court said that he served the purpose of
an independent witness. The articles were identified by the daughter of the deceased.
That was also held to be the most natural evidence. Golakonda Venkateswara Rao v.
State of A.P., AIR 2003 SC 2546. recovery of skeletal remains of the deceased from a
well as indicated by the accused. Conviction on that basis alone was found to be proper.
State of Karnataka v. David Rozario, AIR 2002 SC 3272, the articles proved to have
been stolen by the accused were of very small value, articles of higher value remained
untouched in the house of the deceased, whether this could be exculpatory circumstance
in a charge of murder with robbery, or whether such evidence could be sole basis of
conviction, question left unanswered.
33
H.P. Administration v. Om Prakash, AIR 1972 SC 975.
34
Manoranjan Singh v. State of Delhi, (1998)3 SCC 523.
35
Pandurang Kalu Patil v. State of Maharashtra, AIR 2002 SC 733.
177
word has been advisedly used to limit and define the scope of provable
information. The phrase refers to that part of the information which is the
is not necessary that the accused should be taken to the spot to point to the
place of hiding, through this fact may be taken into account for evaluation of
evidentiary value.37 The fact that the disclosure statement was signed by the
accused does not detract it from its admissibility.38 A joint and simultaneous
disclosure is also relevant. But such a thing being rare, it will be one of factors
relevant only against the accused who furnished such information and not
against other accused. Where the discovery was due to the knowledge gained
by the police from other sources, the statement of the accused was not relevant
under Section 27. But his conduct in pointing out the shop and its proprietor
36
State (NCT) of Delhi v. Navjot Sandhu, (2005)11 S.C.C. 600; Murugan v. State of T.N.,
AIR 2008 S.C. 2876, blood–stained clothes recovered on the basis of confessional
statement of accused, relevant.
37
Ibid.
38
Ibid.
39
State (NCT) of Delhi v. Navjot Sandhu, (2005) 11 S.C.C. 600.
178
40
AIR 1960 SC 1125.
179
41
AIR 1960 S.C. 1125 at p. 1132. On the authority of Pakala Narayan Swami v. Emperor,
66 Ind. App. 66 : AIR 1939 PC 47.
180
Thus the classification is between persons not in custody and those in custody.
The Supreme Court held the classification to be reasonable. “This distinction
between persons in custody and persons not in custody, in the context of
admissibility of statement made by them concerning the offence charged
cannot be called arbitrary, artificial or evasive : the legislature has made a real
distinction between these two classes, and has enacted distinct rules about
admissibility of statements confessional or otherwise made by them.42 The
reason for the classification is to encourage people not in custody to give
information about crimes.
5.10 Recovery During Illegal Remand to Police
Confessional statements made in police custody led to recovery of
incriminating articles. The Court said that such evidence could not be excluded
on the ground that the statement was obtained while the accused was under an
illegal order of remand to police custody.43
42
AIR 1960 SC 1125 at p. 1130.
43
State v. NMT Joy Immoculate, AIR 2004 S.C. 2282.
44
AIR 1978 SC 1183 at p. 1196. Evidence of recovery even when relevant may fade in
importance where there is direct evidence. Pradumaninh Kaubha v. State of Gujarat,
1992 Cr. L.J. 1111 : AIR 1992 S.C. 881; Swamy Shraddonanda v. State of Karnataka,
AIR 2007 S.C. 2531 : (2007) 12 S.C.C. 288, husband prosecuted for murder of wife,
buried in a big courtyard, he pointed out the exact place of burial, had marked that place,
skeleton exhumed from the marked place. This portion of confessional statement before
the police, held admissible.
181
was he and no one else who had robbed the deceased of the money and the
ring and had hidden them at a place and in a manner which was known to him.
Where the police had already recovered the dead body, the statement of the
accused persons as to where they had thrown off the dead body was held to be
not relevant.45 Recovery of bushirt, pant and a gold ring at the instance of the
accused person was not accepted as a good piece of evidence because it was
not probable that he should have taken away the clothings also and buried
them alongwith the gold ring in the courtyard of his house.46 Two axes were
recovered on the basis of the statements. The blood on one of them was found
to be of human origin. The rejected of the evidence of recovery was not
proper.47
Recovery of a weapon of offence which has no nexus with the type of
injuries found on the person of the victim was held to be inadmissible.48
45
Vijender v. State of Delhi, (1997)6 S.C. C.171 Inspector of Police v. Bala Prasanna,
(2008) 11 S.C.C. 645 : 2008 Cri. L.J. 4332 belated confession made after five months,
creates doubts about authenticity and voluntariness.
46
Shambhu Dayal v. Subhash Chandra, AIR 1998 S.C. 1732 ; Deva v. State of Rajasthan
1999 Cri. L.. 265, merely because of the alleged recovery of knife at the instance of the
accused, it could not be said that be was perpetrator of the crime of murder.
47
State of Rajasthan v. Teja Ram, 1999 Cri. L.J. 2588. See also Lal Singh v. State of
Gujarat AIR 2001 SC 746, arms and ammunition which had to be recovered from hiding
of terrorists being huge, a raid had to be organised and they had to be kept at police head
quarters after recovery, held, these two factors had not reduced the evidentiary value of
the recovery. State of Maharashtra v. Suresh, (2001) 1 S.C.C. 471, dead body discovered
on guidance provided by the accused, the circumstances of concealment were such that
there were three possibilities, viz., the accused himself might have done the concealment,
might have seen another to do it or might have been told of it by others. Excluding other
possibilities, the Court believed that it was the work of the accused. State of M.P. v.
Palun Mallah, AIR 2005 S.C. 733, in his disclosure statement, the accused said that he
concealed the country made pistol himself, it was recovered at his instance, accompanied
with extra-judicial confession, relevant ballistic expert verified recovery from the body
pellets fired from country made pistol. State of Rajasthan v. Kashi Ram, AIR 2007 S.C.
144, doubtful recovery of waist chord used for strangulation, not even produced before
the court, evidence not proper. Ponnusamy v. State of T.N., (2008)5 S.C.C. 587 : AIR
2008 S.C. 2110, extra-judicial confession led to the discovery of dead body in a canal and
jewellery worn by the woman who was identified as murdered wife of the accused, held,
confession voluntary and truthful. Bishnu Prasad Sinha v. State of Assam, AIR 2007 S.C.
848, confession not retracted even at the later stages of the trial, it was also accepted by
the accused in examination under S. 313, Cr. P.C. can be fully relied upon.
48
Keshav v. State of Maharashtra, (2007)13 S.C.C. 284.
182
49
Mohd. Inayatullah v. State of Maharashtra, AIR 1976 S.C. 483. See also Earabhadrappa
v. State of Karnataka, AIR 1983 S.C. 446 involving recovery of stolen articles. It has
been held by the Supreme Court that recovery at the instance of the accused is not in
itself a proof of the fact that the accused wielded the weapon. In Dudh Nath Pandey v.
State of U.P., (1981)2 S.C.C. 116 : AIR 1981 S.C. 911 : 1981 Cr. L.JU. 618 : 1981 All.
L.J. 228, the Supreme Court has also pointed out that the mere failure on the part of the
police to interrogate the person at whose instance recovery has been effected cannot in
itself lead to the conclusion that the recovery was false. Abdul Sattar v. Union Territory
Chandigarh, (1985) Supp. S.C.C. 599 : AIR 1986 S.C. 1438, articles recovered from an
open place. The evidentiary value of the articles recovered does not suffer only because
they are market-place articles, State of Kerala v. Thomas, (1986)2 S.C.C. 411. In a case
of cross-free only two cartridges were recovered and those also the next day after the
preparation of the cite map, held not relevant because circumstances indicated planting of
the cartridges. Awadhesh v. State of M.P., (1988)2 S.C.C. 557 : AIR 1988 S.C. 1158;
Recovery of something unconnected with the charge is not relevant, Vishnudeo Kumar v.
State of Bihar, 1986 S.C.C. 656.
50
Where there was nothing to show how the recovered articles were connected with the
deceased or how they incriminated anybody, the Supreme Court rejected the evidence.
Basanti v. State of H.P., (1987) 3 S.C.C. 227: AIR 1987 S.C. 1572. See also State of
Punjab v. Gurnam Singh, AIR 1984 SC 1791 : 1984 Supp. S.C.C. 502, where the
Supreme Court pointed out that the alleged recoveries which were not witnessed or
corroborated by any witness deserved to be rejected entitling the accused to benefit of
doubt. Mohd. Abdul Hafeez v. State of A.P., AIR 1983 S.C. 367 : 1983 Cr. L.J. 689 :
(1983) 1 S.C.C. 143, where in the case of several accused it was not shown who made
the statement leading to discoveries, the statement was rejected, or as in Pohalya Motya
Valvi v. State of Maharashtra, (1980)1 S.C.C. 530, there being no evidence as to who
had concealed the things; AIR 1979 S.C. 1949 : 1979 Cr. L.J. 1310; Recoveries
unaccompanied by any proof of the statement by which they were effected, Bahadul v.
State of Orissa, (1979)4 S.C.C. 346 : 1979 Cr. L.J. 1075. Another case where recovery
was effected from a public place which was open and accessible to all and, therefore,
rejected, was Puran Lal v. State of U.P., 1997 Cr. L.J. 3813 (All.)
183
bodies after three months from an open field which was surrounded by other
fields would not bring the matter under this section because an open field is
not such a place of concealment of which it could be said that only the accused
had exclusive knowledge.51 Recovery of a knife and gloves in the presence of
the accused lying open in a paddy field was held to be not sufficient to connect
the accused with the crime. Where the recovery was effected at the instance of
the accused from the house of one C, the Court said that the recovery could not
be said to be from a place to which the accused alone had the exclusive access.
The possibility could not be ruled out that the weapon was always there at C’s
place. Much importance could not be attached to a recovery of this nature.52
The accused had also denied having made any such statement which was
supposed to have led to the discovery.53 But where looted articles were
recovered at the instance of the accused concealed under a stone under a
bridge, that was held to be a place of hiding which was not accessible to all.54
The Supreme Court has given a new meaning to the expression place of
hiding. Certain articles connected with the murder of the wife of the accused
were found from places at the bidding of the accused. The court said:55
“It is a fallacious notion that when recovery of any incriminating article
was made from a place which is open or accessible to others to would vitiate
the evidence. An object can be concealed in places which are open or
51
Makhan Singh v. State of Punjab, AIR 1988 S.C. 1705 : 1988 Supp S.C.C. 526.
52
State of M.P. v. Ghudan, AIR 2004 S.C. 797 : (2003) 12 S.C.C. 485.
53
Varghese v. State of Kerala, (1998) S.C.C. (Cri.) 890.
54
Lacchman Ram v. State of Orissa, AIR 1985 S.C. 486 ; articles recovered from places
where they were thrown by the running accused on being chased, held relevant. State of
Rajasthan v. Sukhpal Singh, (1983)1 S.C.C. 393 : 1983 S.C.C. (Cri.) 213. Kabul v. State
of Rajasthan 1992 Cr. L.J. 1491 (Raj) recovery of narcotic drugs from an open public
place. Khalaksingh v. State of M.P., 1992 Cr. L.J. 1150 (M.P.) aricles brought out from
home by the brother of the accused, not relevant under S. 27; Brij Mohan v. State of
Rajasthan, AIR 1994 S.C. an unnatural hiding place. Peerappa v. State of Karnataka,
(2005) 12 S.C.C. 461, there was no blood on the weapon found and it was also produced
from a place of public access, the statement was recorded after recovery, all these things
demolished relevancy.
55
State of H.P. v. Jeet Singh, 1999 2025 (S.C.) at p., 2030 : AIR 1999 S.C. 1283. Another
similar ruling of the Supreme Court is in Limbaji v. State of Maharashtra, AIR 2002 S.C.
491, stolen articles concealed under earth in the field of a third party which acts open and
accessible to all. The accused led the I.O. to the place. Relevant under Section 27 and
also under Section 114 as showing recent possession. The articles were ornaments
belonging to the deceased.
184
56
Mahbub Samsuddin Malak v. State of Gujarat, (1996) 10 S.C.C. 480; Mani v. State of
Tamil Nadu, AIR 2008 S.C. 1021, discovery from an open ground after more than 10
days of the incident and about 300 feet away from dead body, not believable that
unguarded articles remained there for so many days, discovery farcicle.
57
Surjit Singh v. Haryana, (1996)10 S.C.C. 281. Handing over of the stolen articles to
others under sale or otehrwsie from whom they were recovered is the discovery of a fact
connected with the crime, Shankar Gajanan Kalar v. State of Maharashtra, (1996) 11
S.C.C. 151.
185
relevant. The recovery of a brass pitcher (kalash) used for collecting the blood
of children also provided a useful missing link in the chain of circumstances.58
Where one of the articles connected with the murder was discovered
lying in tall grass and others were found to be buried there, the Supreme Court
held that they were out of the visibility of others in normal circumstances and
persons other than the maker of the statement. Following this, the Patna High
Court did not allow the evidence of the discovery of the dead body in
others.61
Circle Inspector which led to the discovery of certain jewels of the murdered
woman, and also a blood-stained brick which, the first accused stated, the
second accused had used to beat her with and in consequence of which beating
she died, it was held that the statement of the first accused so far as it related to
the discovery of the jewels was admissible under this section, and that it could
not be taken into consideration as against the second accused under S. 30.62
58
State of Maharashtra v. Damu Gopinath Shinde, 2000 Cri. L.J. 2301 (S.C) : AIR 2000
S.C. 1691 : 2000 AIR SCW 1617 : (2000)6 S.C.C. 269.
59
State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 S.C. 16.
60
AIR 1943 Cal. 137 : (1945)46 Cri. L.J. 580. Even as against the maker the evidence was
taken to be very weak when neither his thumb impression nor signature were taken on the
statement, nor the panch witnesses were examined, Jackaran Singh v. State of Punjab,
(1995) Cri L.J. 3992 (S.C.)
61
Surendra Prasad v. State of Bihar, 1992 Cri. L.J. 2190 (Pat.)
62
Abdul Basha Sahib, Re, (1940) Mad. 1028 : AIR 1941 Mad. 316.
186
63
Bhimappa Jinnappa Naganur v. State of Karnataka, AIR 1993 SC 1469.
64
Baladevkihes v. State of Orissa, 1992 Cr. L.J. 2059 (Orissa), citing Bhaga Godwa v.
State, 1983 OCR 400; Bahadul v. State of Orissa, AIR 1979 S.C. 1262 : 1979 Cr. L.J.
1075, recovery from under the cot of the accused without any statement: Followed in
Pandru Khadia v. State of Orissa, 1992 Cr. L.J. 762 (Orissa), weapon of offence
recovered without any statement. Sukhvinder Singh v. State of Punjab, (1994)5 S.C.C.
152, dead body discovered at the instance of one accused, obtaining similar information
from other accused persons would constitute no evidence against them.
65
Suresh Chand Bahri v. State of Bihar, AIR 1994 S.C. 2420. The court distinguished Nari
Santa v. Emperor, AIR 1945 Pat. 161 where the accused produced the stolen things and
then disclosed the place of hiding and the same was held to be not relevant Dhananjay v.
State of W.B., (1994)2 S.C.C. 220; “fact discovered” includes the object found, the place
from where found and the accused’s knowledge of that place. Bodh Raj v. State of J.&
K., AIR 2002 S.C. 3164, in information must be recorded. Where it is not recorded, the
exact information must be adduced through evidence.
66
State of Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 S.C. 409, the panch
witness had proved the recovery, a different version given by the accused some 2 months
after first statement which led to recovery not to be given credit.
187
67
Praveen Kumar v. State of Karnataka, (2003) 12 S.C.C. 199.
68
State of Haryana v. Ram Singh, AIR 2002 S.C. 620.
69
Praveen Kumar v. State of Karnataka, (2003)12 S.C.C. 199.
70
State of Haryana v. Ram Singh, AIR 2002 S.C. 620.
188
presence of the police inspector with the IO was also doubtful, recovery and
seizures made were held to be not relevant.71
5.20 Identification of Recovered Articles
There was recovery of ornaments from the house of the accused which
were supposed to belong to the deceased. They were not of any particular
design and were available in the market. Almost every family of the village
had similar ornaments. They could not, therefore, be properly identified as
belonging to the deceased. Signatures of recovery witnesses were taken on
dotted lines as the recovery memo and the thumb impression of the accused
was also similarly managed. The Court, therefore, said that no reliance could
be placed upon the testimony of the police officer as to the fact of recovery.72
Where the articles recovered at the instance of the accused were gold bangles
of the deceased and they were identified as belonging to the deceased by the
goldsmith who had made and who had put his marks on them and they were
also identified by the husband of the deceased and neighbours, the court said
that their identity was fully established and much importance could not be
attached to the fact that they were not sealed at the time of recovery.73
5.21 Delay in Discovery
Where blood-stained clothes and a knife were recovered at the instance
of the accused but the recovery was delayed having been effected after the
second remand of the accused, the Supreme Court said that this circumstances
cast a serious doubt on the reliability factor of the evidence produced.74 There
71
Lakhwinder Singh v. State of Punjab, AIR 2003 S.C. 2577 : Mousam Singha Roy v. State
of W.B., (2003) 12 S.C.C. 377, panch witnesses did not see the actual recovery, only the
I.O. went in and brought out articles and obtained signatures of panch witnesses. This
will held to be not proper.
72
Bharat v. State of M.P. AIR 2003 S.C. 1433.
73
Rajendra Kumar v. State of Rajasthan, AIR 2003 S.C. 3190.
74
Ashish Batham v. State of M.P., AIR 2002 S.C. 3206.
189
75
Praveen Kumar v. State of Karnataka, (2003)12 S.C.C. 199.
76
Rajidner v. State of Haryana, AIR 2004 S.C. 4352.
77
See, for example, Venkata Narayan v. Emperor, (1938) Mad. W.N. 24; Bhagirathi v.
State of M.P., AIR 1950 M.P. 17.
190
can be included in evidence if it is relevant under any other section and then it
will not be marked that it was the result of some inducement, threat or
promise. This has been pointed out by the Supreme Court in a case in which a
truck operator admitted to the Customs Officers that his truck was carrying
contraband but he did not know how it came there. The statement being not a
confession in the real sense of the word was not hit by S. 24 and was
receivable as an admission.78
5.24 S. 29. Confession otherwise relevant not to become irrelevant because
of promise of secrecy, etc.
If such a confession is otherwise relevant it does not become irrelevant
merely because it was made under a promise of secrecy, or in consequence of
a deception practiced on the accused person for the purpose of obtaining it, or
when he was drunk or because it was made in answer to questions which he
need not have answered, whatever may have been the form of those questions,
or because he was not warned that he was not bound to make such confession
and that evidence of it might be given against him.
5.25 Confession made under Promise of Secrecy etc.
A confession, unlike an admission, is relevant even if it is made under
promise of secrecy. In addition to this, Section 29 provides for many other
things also. The effect of the section is that a confession is relevant even if it is
obtained under the following circumstances.
1. By making a promise to the accused that it will be kept secret, or that
evidence of it shall not be given against him. It may be recalled that an
admission made in a civil case under promise that evidence of it shall not be
given is not relevant,79 the policy being that litigants should be encouraged to
78
Veera Ibrahim v. State of Maharashtra, (1976)2 S.C.C. 302.
79
S. 23, English law is the same. See R. v. Thomas, (1836)7 C & P. 345; R. v. Shaw, (1834)
6 C. & P. 372.
191
80
R. v. Maqsud Ali, also cited as Ali and Hussain, (1966)1 Q.B. 688, C.C.A. ; Kuldip Singh
v. State of Punjab, (1996) 10 S.C.C. 659, it was recognised as a rule that evidence must
be relevant; it is irrelevant as to how it was obtained. In this case, a confession made to
police officer was received in evidence in a disciplinary proceeding where it is believed
that strict rules of evidence are not applicable. The Supreme Court refused to go into the
finding of the High Court that the confession was voluntary.
81
R. v. Payne, (1963) 1 W.L.R. 637 C.C.A.
82
(1962) Crime L.R. 697.
83
(1963)1 W.L.R. 637 at p. 638.
84
(1955) A.C. 197 at p. 203.
192
85
R. v. Derrington, (1826)2 C. & P. 418.
86
R. v. Salisbury, (1835)7 S. and P. 187.
87
So held in Emperor v. Janna Singh, AIR 1947 Pat. 305.
88
AIR 1964 S.C. 358.
193
wish to do so but what you say may be put into writing and given in
evidence.”89
S. 30. Consideration of proved confession affecting person making it and
others jointly under trial for same offence. When more persons than one
are being tried jointly for the same offence and a confession made by one of
such persons affecting himself and some other of such persons is proved, the
court may take into consideration such confession as against such other person
as well as against the person who makes such confession.
This statement may not be taken into consideration by the court against
A as B is not being jointly tried.
5.26 Misuse of Section 27
Section 27, Evidence Act being in the nature of a proviso to the total
exclusion rule has an could be expected, become a floodgate for letting in not
only compulsive extorted confessions, but also confessions fabricated by
police officers.
89
See Practice Note (Judge’s Rules), Court of Criminal Appeal), (1964) 1 W.L.R. 152;
Admissibility of Evidence procured through Illegal Searches and Seizures, in Cowen and
Center, Essays on the Law of Evidence, 72.
194
90
Rama Chandran v. G. Fundamental Rights and Constitutional Remedies, vol. 1, 1964
p. 1.
91
319 U.S. 624.
196
92
AIR 1978 Supreme Court 597.
93
Pranjape, N. V. Studies in Jurisprudence and legal theory 1994 Edition.
197
and development in democratic society. The accused person also being the
citizen in the Indian polity are also protected under umbrella of such liberties.
They in such a capacity as makes of extra-judicial confession enjoy some of
fundamental rights.
5.29 Fundamental Rights for Accused Persons
Out of part III of the Constitution 3 Article viz. Article 20, 21 and 22
are of direct relevance for the accused persons bestowing some rights on
them96 therefore these articles require dome dealing.
Article 20
The Article placed after the one dealing with the freedom of citizen
reads: “20 Protection in respect of conviction for offences:-”
(i) No person shall be convicted of any offence except for violation of
law in force at the time of the commission of the act charged as an
offence, he be subjected to penalty greater than that which might
have been inflicted under the law in force at the time of the
commission of the offence.
(ii) No person shall be prosecuted and punished for the same offence
mese than once.
(iii) No person accused of any offence shall be compelled to be a
witness against himself: our constitution in Article 20 and 22
provides certain safeguard to the persons accused of crimes. The
protection secured by this article may conveniently be considered
under the heading of
(1) Ex post facto laws
(2) Double jeopardy
(3) Prohibition jeopardy against self incrimination
96
Dr. J.N. Pandey, Constitutional Law of India.
200
97
Hathising Manufacturing Company v. Union of India, AIR 960, S.C. 923.
98
Spaeth, Harold J & Smith Edwied conceal, the Constitution of the United State, 1991.
201
99
Case of 1937.
202
100
Case of 1947.
101
AIR 954 S.C. 300, also see : Raja Narayan Lal v. M.P. Mistri, AIR 1961 S.C. 29.
203
102
AIR 1976 S.C. 1167.
103
(1991)4 S.C. C. 406.
204
104
Willies Constitutional Law 1936.
105
1956 U.S. Case.
106
1957 U.S. Case.
205
107
1972 U.S. Case.
108
1956 U.S. Case.
109
1956 U.S. Case.
110
State of U.P. v. Boota Singh (1979)1 SCC 31 : AIR 1978 S.C. 1770.
206
held that Article 20(3) does not apply at all to a case where the confession is
made by an accused without any inducement threat or promise. Similarly,
retracted confessions, although they have very little probative value, are not
repugnant to this clause.
To bring the evidence within the inhibition of Article 20(3) it must be
shown that the accused was compelled to make the statement having a material
bearing on the criminality of the maker.111 Compulsion here means what in
law is called ‘duress’, which is explained follows:
‘Duress is where a man is compelled to do an act by injury,
beating or unlawful imprisonment (sometimes called ‘duress’ in
strict sense) or by the teat of being killed, suffering some
grievous bodily harm or being unlawfully imprisoned
(sometimes called menace or ‘duress’ per mines). ‘duress’ also
includes threatening, beating or imprisoning of the wife, parent
or child of a person.”112
In Mohd. Dastagir v. State of Madras,113 the appellant had gone to the
bungalow of the Dy. Superintendent of Police to offer him a bribe contained in
a closed envelope. The police office threw the envelope at the appellant who
took it up. Soon thereafter, he was asked by the police to produce the envelope
and he tool out from his pocket some currency notes which were seized by the
police. The appellant pleaded that the currency notes which were seized by the
police should not be allowed to be produced as that would amount to the
admission of compelled evidence. The Court held that clause (3) did not apply
firstly because no compulsion or duress was exercise against the accused and
secondly because at the time the currency not were seized he was no an
111
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
112
Id at p. 1816.
113
AIR 1960 SC 756.
207
114
R.M. Malkanni v. State of Maharashtra (1973)1 SCC 471 : AIR 1973 SC 157.
115
(1970)2 SCC 71 : AIR SC 2346.
116
Gobinda Reddy, Re AIR 1958 Mys. 150; Fettya v. State, AIR 1955 Raj. 147.
117
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
208
statement. In Pershadi v. U.P. State,118 the Supreme Court held that where in
murder charge the accused has stated to the police officer that he would give
the clothes of the deceased which he had placed in a pit and took out the
clothes which were identified as the clothes belonging to the deceased the
statement of the appellant was held to be admissible. But if the police has
obtained the statement by employing third degree methods, the statement
would be barred under clause (3).119
5.31 Life and Personal Liberty
The words of article 21 says “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” Though
couched in negative language, confers on every person the fundamental right
to life and personal liberty. The two rights have been given paramount position
by our Courts. The right to life which is the most fundamental of all is also the
most difficult to define. Certainly it cannot be confined to a guarantee against
the taking away of life; it must have a wider application. With reference to a
corresponding provision in the 5th and 14th amendments of the U.S.
Constitution, which says that no person shall be deprived of his “life, liberty or
property without due process of law”, in Munn v. Illinois,120 field, J. spoke of
the right to life in the following words:
“By the term ‘life’ as here used something more is meant that
mere animal existence. The inhibition against its deprivation
extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by
the amputation of an arm or leg, or the putting out of an eye, or
118
AIR 1952 SC 211.
119
Ghazi v. State AIR 1966 All 142.
120
94 U.S. 113.
209
the destruction of any other organ of the body through which the
soul communicates with the outer world.”
Supreme Court, has been further expanded in Francis Coralie v. Union
Territory of Delhi,121 by the statement “that any act which damages or injures
or interferes with the use of any limb or faculty of a person, either permanently
or even temporarily, would be within the inhibition of Article 21”. In the same
case Bhagwati, J. held:
“we think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings.”122
Again, relying on Fracnis Coralie, in Bandhua Mukti Morcha v. Union of
India,123 where the question of bondage and rehabilitation of some laborers
was involved, Bhagwati, J. held:
“It is the fundamental right of everyone in this country…. to live
with human dignity, free from exploitation. This right to live
with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Article 41 and
42 and at least, therefore, it must include protection of the health
and strength of the workers men and women, and of the tender
age of children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of
121
(1981) SCC 608 : AIR SC 746.
122
Francis Corale v. Union Territory of Delhi (1981) SCC 608.
123
(1984)3 SCC 161 : AIR SC 802.
210
124
AIR 1951 SC 27.
125
Maneka Gandhi v. Union of India (1978)1 SCC 248.
126
AIR 1963 SC 1295.
211
visits at night periodical inquiries about the person, an eye on his movements,
etc. the in Article 19(1) (d) and ‘personal liberty’ in Article 21. For
determining the claim of the petitioner the Court, apart from defining the
scope of Article 19(1) (d), had to define the scope of ‘personal liberty’ in
Article 21.
He also held that “the right to privacy is not a guaranteed right under
our Constitution and therefore the attempt to ascertain the movement of an
individual which is merely a manner in which privacy is invaded is not and
infringement of a fundamental right guaranteed by Part III”. For the minority
Subba Rao, J. held:
“No doubt the expression ‘personal liberty’ is a comprehensive
one and the right to move freely is an attribute of personal
liberty. It is said that the freedom to move freely is carved out of
personal liberty and, therefore, the expression ‘personal liberty’
in Article 21 excludes that attribute. In our view, this is not a
correct approach. Both are independent fundamental rights,
though there is overlapping there is no question of tone being
carved out of another. The fundamental rightly of life and
personal liberty have many attributes and some of them are
found in Article 19, if a person’s fundamental right under
Article 21 is infringed, the State can rely upon a law to sustain
the action; but that cannot be a complete answer unless the said
law satisfies the test laid down in Article 19(2) so far as the
attributes covered by Article 19(1) are concerned.”
He held that right to privacy “is an essential ingredient of personal
liberty” and that the right to personal liberty is “a right of an individual to be
free from restrictions or encroachments are directly imposed or indirectly
212
brought about by calculated measures”. Applying that test he found the entire
regulation violative of Article 21, and also of Article 19(1)(a) and (d).
Reviewing the foregoing and some other decisions and agreeing with the
approach of the minority in Kharak Singh Bhagwati, J. in Maneka Gandhi v.
Union of India,127 concluded :
“The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
the personal liberty of, an and some of them have been raised to
the status of distinct fundamental rights and given additional
protection under Article 19.”
Upholding the right of the petitioner to have interviews with her family
members, friends and lawyer during her preventive detention, in Francis
Coralie v. Union Territory of Delhi Bhagwati, J. quoting his above mentioned
statement in Maneka Gandhi held that personal liberty includes right to socialize
with family members and friends as well as to have interview with the lawyer.
5.32 Procedure Established by Law
The expression ‘procedure established by law means procedure laid
down by statute or procedure prescribed by the law of the State. Accordingly,
first, there must be a law justifying interference with the person’s life or
personal liberty, and secondly, the law should be a valid law, and thirdly, the
procedure laid down by the law should have been strictly followed. The
executive in the absence of any procedure prescribed by the law sustaining the
deprivation of personal liberty shall act in violation of Article 21 if It interferes
with the life or personal liberty of the individual.
In A.K. Gopalan v. State of Madras,128 it was held that the expression
‘procedure established by law’ means procedure enacted by a law made by the
127
(1978)SCC 248 : AIR 1978 SC 597, 622.
128
AIR 1950 SC 27.
213
state. The Supreme Court, by a majority, rejected the argument that the ‘law’
in Article 21 is used in the sense of jus and lex, and that it means the principles
of natural justice oh the analogy of ‘due process of law’ as interpreted by the
American Supreme Court. That in effect amounted to holding that Article 21
A.D.M., Jabalpur v. Shivakant Shukla,129 where the Supreme Court held that
Article 21 was the sole repository of the right to life and personal liberty
against its illegal deprivation by executive and in case enforcement of Article
21 was suspended by a presidential order under Article 359, the Court could
not enquire whether the executive action depriving a person of his life or
personal liberty was authorized by law.
Maneka Gandhi Bhagwati, J, who delivered the leading opinion in
Maneka Gandhi, held that the law must now be taken to be well settled that
Article 21 does not exclude Article 19 and a law prescribing a procedure for
depriving a person of ‘personal liberty’ will have to meet the requirement of
Article 21 and also of Article 19 as well as of Article 14. In his exposition of
the concept of ‘procedure’ in Article 21 Bhagwati, J. was inspired by the great
equalizing principle enunciated in Article 14.
It was explained that the principle that the principle of reasonableness,
which is an essential element of equality or non-arbitrariness pervading Article
14, must also apply with equal force to the ‘procedure contemplated by Article
21, that is, the procedure must be ‘right, just and fair’ and not arbitrary,
fanciful or oppressive’. In order that the ‘procedure’ is ‘right, just and fair’, it
should confirm to the principle of ‘natural justice’, that is, ‘fair-play in action’.
5.33 From ‘Procedure Established by Law’ to ‘Due Process of Law’
While Bhagwati J. in Maneka Gandhi case, established the requirement
of reasonableness of procedure in Article 21 through Article 14, some of the
129
(1976)2 SCC 521 : AIR 1976 SC 1207.
214
judges in that case and in some other subsequent cases have read it in Article
21 itself and particularly in this word ‘law’ into ‘due process of law’ in the
American sense which the Constitution makers had intended to avoid by
replacing the latter expression by the former. This in Maneka Gandhi,
Chandrachud, J. said that the procedure in Article 21 “has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary” and Krishna Iyer, J. said that
‘law’ in Article 21 is reasonable law, not any enacted piece.
Again in Sunil Batra v. Delhi Administration,130 Krishna Iyer, J. said,
“true our Constitution has no ‘due process’ clause… but…after Cooper … and
Maneka Gandhi …., the consequence is the same and added the Article 21 is
the counterpart of the procedural due process in the United States, in the same
case speaking for the rest of the Court Desai, J. said:
“The word ‘law in the expression ‘procedure established by law’
in Article 21 has been interpreted to mean in Maneka Gandhi
case…that the law must be right, just and fair, and not arbitrary,
fanciful or oppressive.”
In Mithu v. State of Punjab,131 a constitutional bench, for the first time
and unanimously invalidated a substantive law…. Section 303 of the Indian
Penal Code … which provided for the mandatory data sentence for murder
committed by a life convict. Quoting fro Maneka, Sunil Batra and Bachan
Singh the Court observed:
“These decisions have expanded the scope of Article 21 in a significant way
and it is now too late in the day to contend that it is for the legislature to
prescribe the procedure and for the Courts to follows it; that it is for the
legislature to provide the punishment and for the Courts to impose it … the
last word on question of justice and fairness does not rest with the legislature.
130
((1978)4 SCC 494 : AIR 1978 SC 1675.
131
(1983)2 SCC 277 : AIR 1983 SC 473.
215
The two requirements of clause (1) of Article 22 are meant to afford the
and also to know exactly what the accusation against him is, so that he can
choice and to be defended by him. Clause (2) of Article 22 provides the next
and most material safeguard that the arrested person must be produced before
exercising judicial powers may without delay apply its mind to his case. The
303, but Constitution makers were anxious to make these safeguards and
integral part of the fundamental rights. Thus, once it is shown that the arrests
made by the police officers were illegal, it is necessary for the State to
establish that at the stage of remand the magistrate directed detention in jail
The Fundamental Rights as read from the bar provision under Article
20, 21, 22 of the constitution of India and the interpretation given by the SC of
India we find that it answer and ensures that an accused person or a suspect
a right to speedy trail a well as right to legal and as a part of his right to life; he
cannot be detained for ling without judicial permission. The laws in order to
ensure all this must be fair regardable in their substance and with the study of
under the Evidence Act were recall that the very purpose of admissibility of
217
---- o ----