Expressing concern over courts frequently dismissing prosecution cases due to omissions by IOs following legal procedures during recovery of evidence, a bench of Justice Ashwani Kumar Mishra and Justice Dr. Gautam Chowdhary pointed out that failure to comply with these safeguards cannot be dismissed as a minor flaw in the investigation as it has a direct impact on the admissibility of essential evidence.

“Often the police tend to implicate an accused by extracting his confession and showing sobriety, etc., at the accused’s trial. To protect the accused from such elicited confession/recovery, the superior Constitutional Courts have developed safeguards for making recovery under Section 27 of the Evidence Act, if they are to be read into evidence.“, the Court noted in its 25-page ruling.

The Court also referred to the decisions of the Supreme Court, including those of Pulukuri Kottaya vs King-Emperor 1946, Subramanya v. State of Karnataka 2022 LiveLaw (SC) 887, Boby vs State of Kerala LiveLaw (SC) 50 2023, Babu Sahebagouda Rudragoudar and others v State of Karnataka 2024 LiveLaw (SC) 316and Ravishankar Tandon and Ors vs State of Chhattisgarh 2024 LiveLaw (SC) 296in which the apex court laid down clear guidelines for making recoveries to ensure that evidence is legally admissible.

For context, in these cases, the Supreme Court has given prime importance to the recording of the disclosure statement of the accused in the presence of two independent persons and the taking of discovery. panchnama under section 27.

Important, in The Subhramanya caseThe Apex Court explained how a discovery panchnama under S. 27 must usually be drawn in two parts.

The trial court specified that the first part of it should be prepared at the police headquarters, in the presence of independent witnesses, so that the voluntary statement of the defendant, expressing his desire to reveal the location of the weapon or other articles related to the crime, must be documented.

After this, the Supreme Court explains that the police along with the accused and independent witnesses should proceed to the indicated place and there, if any evidence is recovered like the weapon or blood stained clothes, the same would form. the second part of panchnama.

The Allahabad High Court was essentially dealing with a criminal appeal filed by an accused challenging the judgment passed by the Special Judge (SC/ST Act), Banda, convicting him under Section 302, 377 IPC read with Section 3(2) (v) SC. /ST Act and sentencing him to rigorous imprisonment for life.

He was found guilty by the Sessions Court of committing an unnatural crime with a 13-year-old boy and subsequently killing him.

Examining his appeal, the Court held that there was no other reliable evidence to show that the body was recovered from the accused-appellant’s home and, in fact, the evidence was lacking on the aspect that the body was recovered from the defendant’s home. the recurrence itself.

The Court further observed that none of the procedural safeguards highlighted by the Supreme Court were followed as no disclosure statement was recorded in the presence of the two independent persons and no panchnama was prepared regarding the recovery of the dead body.

“The manner in which the recovery of the body from the house of the accused appellant is sought to be proved, therefore, leaves much to be desired. In the absence of a record of the disclosure statement in the manner prescribed by law, as well as any memorandum of recovery of the body, duly exhibited and proved, we are not persuaded to accept the prosecution case that the recovery of the body. the body of the deceased was on the basis of any disclosure statement made by the accused leading to the recovery of the body of the deceased“, noted the Court.

The court added that in order to prove that the body was recovered from the appellant’s home, the prosecution had to prove that the home from which the body was recovered belonged to the accused-appellant; however, the IO made no effort to collect evidence regarding the ownership of the house from where the body was recovered.

Against this, finding that the prosecution failed to prove beyond reasonable doubt that the body was recovered from the accused-appellant’s home, the Court acquitted the accused giving him the benefit of the doubt.

However, before parting with the case, the Court said that it is high time that the investigating agencies were brought to life with the requirements of law in the matter of making recovery under Section 27 of the Evidence Act as settled by the Supreme Court in case. of Pulukuri Kotayya (supra) and mentioned and reiterated in Subramanya (supra), Boby (supra), Babu Sahebagouda Rudragoudar (supra) and Ravishankar Tandon (supra).

Thus, the Court instructed Additional Chief Secretary (Home), Principal Secretary (Law) and Director General of Police to direct the investigating agencies to ensure compliance with the mandatory safeguards relating to recovery to be read into evidence under section 27 of the Evidence Act.

Case Title – Daya Prasad @ Vyas Ji Vs. State of UP

Case Citation:

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