Admissibility of the evidence concerning discovery of fact due to disclosure made by an accused in custody

Admissibility of the evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 concerning the discovery of fact

Admissibility of the evidence concerning discovery of fact pursuant disclosure made by an accused in custody, reliance Could be placed on Jafar Hussain Dastagir Vs. State of Maharashtra, (1969) 2 SCC 872 and State of UP vs. Jageshwar and Ors, (1983) 2 SCC 305 to argue that since the police was already in possession of the pistol, it having been seized from the possession of Sanjay @ Sanju @ Khatta, the facts concerning the said evidence could not be treated as one discovered pursuant to disclosure by the appellant Sonveer @ Pinku (A-3). In this context, reference was also made to the view taken by this court in Chandrakant Jha Vs. State (GNCT) of Delhi, Crl. Appeal No.655/2013 and death reference no.3/2013, decided on 27.01.2016.

 Section 25 of the Evidence Act prohibits evidence to be led as to confession made by an accused to a police officer, its object being to ensure that no one is induced by any threat, coercion or force to make a confessional statement about complicity in crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor. in as much as to do so would be in breach of the fundamental right against self-incrimination as guaranteed by Article 20(3) of the Constitution of IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more. Section 26 of the Evidence Act expands the said prohibition by stipulating that a confession made in the custody of police shall not be proved against the marker unless it is made in the immediate presence of a Magistrate.

Section 27 of the Evidence Act, however, carves out an exception to the general rule and partially lifts the inhibition contained in Section 25 and 26, the provision reading thus :-

“27. How much of information received from accused may be proved:

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

Since the expression “fact” is crucial to Section 27 of Evidence Act, its meaning as given in Section 3 also needs to be noted as under :-

“Fact” – “Fact” means and includes-

(1) any thing, state of things, or relation of things, capable of being perceived by the sense;

(2) any mental condition of which any person is conscious.

165. In Rakesh Vs. State, GNCT of Delhi, (2016) 227 DLT 92 (DB), a division bench of this court of which one of us (R.K. Gauba, J.) was a party had the occasion to take note of the development of law concerning interpretation of Section 27 of Evidence Act. The following paragraphs from the judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) in the said case may be extracted :-

“40. The provision contained in Section 27 of the Evidence Act has been the subject-matter of a series of authoritative and illuminating pronouncements, the earliest landmark decision being one reported as Pulukuri Kotayya vs. EmperorAIR 1947 PC 67, the exposition of law therein in the following words having ever since been treated as locus classicus:-

“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 his 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 the 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. But if to the statement the words be added ‘with which stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

41. In Mohd. Inayatullah vs. The State of Maharashtra, (1976) 1 SCC 828, it was held 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 the same. Interpreting the words “so much of such information …. as relates distinctly to the fact thereby discovered “, the court held that the word “distinctly” means “directly”, “indubitably”, “strictly” or “unmistakably”. The word has been advisedly used to limit and define the scope of provable information. The phrase “distinctly” relates “to the fact thereby discovered”. The phrase refers to that part of the information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded.

42. In State of Maharashtra vs. Damu Gopinath Shinde and others, (2000) 6 SCC 269, the law was summarised thus:-

“35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in 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. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 74 IA 65] is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.

36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability…”

43. In State vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 while examining the issue as to whether discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery should be in respect of his mental state or knowledge in relation to certain things – concrete or non-concrete, the Supreme Court traced the jurisprudential development on the subject and observed that:-

“125. We are of the view that Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is an authority for the proposition that “discovery of fact” cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place”.

44. Pertinently, this decision also refers to ambit and scope of Section 8 of the Evidence Act and quotes with approval the following passage from Prakash Chand vs. State (Delhi Administration) AIR 1979 Sc 400, in two paragraphs extracted as under :

“190. ……It would be admissible under Section 8 of the Evidence Act as a piece of evidence relating to the conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand v. State (Delhi Admn.): (SCC p. 95, para 8) “There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 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 investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. which is hit by Section 162, Criminal Procedure Code. What is excluded by Section 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 Section 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 Section 27 of the Evidence Act (vide H.P. Admn. v. Om Prakash).”

206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit bySection 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as “conduct” under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) “[E]ven apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused…”

166. Taking note of certain other cases – (Ranjeet Kumar Ram @ Ranjeet Kumar Das vs. State of Bihar, 2015 SCC Online SC 500; AIR 2015 SC (suppl) 1374 and Mehboob Ali vs. State of Rajasthan, 2015 SCC Online SC 1043; 2015 AIR SCW 6123; and Anuj Kumar Gupta vs. State of Bihar, (2013) 12 SCC 383 – this court summarised the legal position in Rakesh Vs. State (supra) as under :-

51. It is well settled that the bar against admissibility of what is prohibited by Sections 25 and 26 of the Evidence Act is partially lifted by Section 27 in respect of such information given by accused to the police as relates distinctly to the discovery of a “fact” thus far unknown; this, subject to the riders of the information being immediate and proximate cause of discovery and the discovered fact being relevant to prove his complicity through confirmation by subsequent events. We have also quoted observations of the Supreme Court in Navjot Sandhu (supra) referring to Section 8 of the Evidence Act. The contours of the said provision are wider. It is sufficient if the information given by the accused provides the lead to the Investigating Officer to unravel facts and material which were not known to him and which could not have been known but for such information coming from the accused. Further, in a given case when established the relevant facts discovered consequent to the information given by the accused may not lead to recovery directly from the person or the place towards which the information given by the accused pointed. The fact that there was an intermediate person respecting whom the accused made the disclosure and who, in turn, leads to the discovery and recovery does not disrupt the elements of immediacy and proximity; this, so long as the special knowledge of the accused with regard to the fact eventually discovered can be gathered from the circumstances, since that is what provides the requisite confirmation of what was initially disclosed…”