Investigating Agencies Must Ensure Appropriate Compliance Of Procedure For Effecting Recovery U/S. 27 Evidence Act: Allahabad HC

The Division Bench comprising Justice Ashwani Kumar Mishra and Justice Dr. Gautam Chowdhary said, “We are repeatedly coming across cases in which this Court is compelled to discard the prosecution case only because safeguards in respect of recovery, for it to be read in evidence under Section 27 of Evidence Act, are not adhered to. This is high time that the Investigating Agencies be made alive to the requirement of law in the matter of effecting recovery under Section 27 of the Evidence Act…”

Advocate Gunjan Sharma represented the Appellant while the Government Advocate represented the Respondent-State.

The High Court was considering a criminal appeal directed against the order of conviction passed by the Special Judge (SC/ST Act) arising out of a case whereby the accused appellant was convicted and sentenced to rigorous life imprisonment under Section 302 I.P.C. read with Section 3(2)(v) SC/ST Act; ten years rigorous imprisonment under Section 377 I.P.C. and five years rigorous imprisonment alongwith fine, each, under Section 201 IPC.

The Informant-father of the deceased made a written report stating that his 13-yr-old son went missing. After 3 days, his family was informed via a telephone call that the missing boy had been found cut in pieces on the railway track. The caller intimated the informant that Daya Prasad Tiwari @ Vyas Ji ( accused) had actually made the phone call from his number and had given information that the deceased had died in a train accident. The accused had confessed that the brother-in-law of the deceased had met him at the station and asked him to return the deceased to his house. The accused, thereafter, took the deceased to his village, committed unnatural offence on him and thereafter murdered him. He also disclosed that the dead body was buried in his house.

The Bench noted that the injuries had been proved through the postmortem report and the death was found to be homicidal. However, the Bench stated that for the confessional statement there was no other corroborative evidence on record to implicate the accused appellant. This confessional statement was allegedly made at two stages.Firstly, it was made before the informant and his son, while the second disclosure was made by the accused appellant before the Police. “So far as making of the confessional statement before the Police is concerned, it is well settled that such confession would not be admissible in view of the Section 25 and 26 of the Evidence Act”, the Bench said while referring to the judgment in Aghnoo Nagesia v. State of Bihar, 1965 SCC OnLine SC 109.

The High Court found that no disclosure statement existed on record of the accused appellant, nor any independent person had been associated while recording the confessional statement of the accused. The Bench also didn’t rely on the extrajudicial confession made by the accused before the informant for the simple reason that extrajudicial confession by its very nature is a weak piece of evidence and unless there are strong evidence to corroborate it, not much reliance can be placed upon it.

Moreover, there was no other reliable evidence to show that the dead body was recovered from the house of the accused appellant. The Bench further added, “Even the FSL report does not connect the accused with the offence inasmuch as the bloodstains or the semen found on the recovered articles are not proved to be of the accused.”

“The evidence on record of the present case clearly goes to show that none of the procedural safeguards emphasised by the court have been adhered to, inasmuch as, neither any disclosure statement had been recorded in the presence of the two independent persons, nor any panchayatnama has been drawn in respect of the recovery of the dead body. The manner in which recovery of the dead body is sought to be proved from the house of the accused appellant, therefore, leaves much to be desired”, it said. The Bench thus concluded that the accused appellant was entitled to benefit of doubt as the prosecution had failed to establish its case beyond reasonable doubt against the accused appellant.

Noting the fact that the investigation/prosecution is routinely flouting compliance of such provisions, the Bench held, “The Investigating agencies be instructed to ensure appropriate compliance of the procedure established in law for effecting recovery under Section 27 of the Evidence Act or else material evidence may loose its evidentiary value in the court of law. The failure to adhere to the procedural safeguards cannot be brushed aside as mere flaw in the investigation when the consequence is that the evidence relating to recovery is itself held inadmissible in law.”

“Accordingly, we direct the Registry to forward a copy of this judgment to Additional Chief Secretary (Home), Principal Secretary (Law) and Director General of Police for its necessary circulation to all concerned so that henceforth the Investigating authorities ensure compliance of the mandatory safeguards relating to recovery to be read in evidence under Section 27 of the Evidence Act”, the Bench further ordered.

Cause Title:Daya Prasad @ Vyas Ji v. State of U.P. [Neutral Citation: 2024:AHC:171384-DB]

Appearance:

Appellant: Advocate Gunjan Sharma

Respondent: Govt. Advocate

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