2001 Supreme(SC) 227

2001(1) Supreme 692
SUPREME COURT OF INDIA
(From Tada Court (D.C. II), Delhi)
K.T. Thomas & R.P. Sethi, JJ.
Sanjay @ Kaka etc etc. -Appellants
versus
The State ((N.C.C.T. of Delhi) -Respondent
Criminal Appeal No.664 of 2000
With
Criminal Appeal No.682 of 2000
With
Criminal Appeal No.683 of 2000
Decided on 7-2-2001
Counsel for the Parties :
For the Appearing Parties : R.K. Jain, Sushil Kumar, Anoop Choudhary, Sr. Advocates, Ajay Bhalla, Ms. Abha R. Sharma, (V. Ramasubramanian) Advocate (AC), Shakeel Ahmed, Ms. Sunita Sharma, B.V. Balaram Das, Advocates.

IMPORTANT POINT
Disclosure of statement made by an accused cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Indian Evidence Act. Besides section 27, the courts can draw presumptions under Section 114, Illustrations (a) and section 106 of the Evidence Act.

Headnote:Indian Penal Code, 1860-Sections 392, 397 and 302-Murder and robbery-Conviction for-Circumstantial evidence-Disclosure statement of accused on next day of commission of crime-Recovery of blood stained shirt, weapon used for offence and stolen articles from accused-Extra-judicial confession to PW5, a friend of accused-Evidence of PW5 did not suffer from any contradiction-He had no for axe to grind with accused-Letting accused to go on night of interrogation without arresting him immediately-Omission on part of police cannot be made basis for discrediting testimony of PW5-Disclosure statement proved-Motive for crime proved-Conviction justified. (Paras 8 to 17)

       (ii) Indian Evidence Act, 1872-Section 27-Disclosure statement of accused-Admissible in evidence-Section 27 is in the nature of provision to Sections 25 and 26-An exception to Sections 25 and 26-Disclosure statement can be allowed to be proved-State cannot be discarded on ground it was made ti Police Officer during investigation-Court can draw presumption under Section 114, Illustration (a) and Section 106.

       Section 25 mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Indian Evidence Act. Besides section 27, the courts can draw presumptions under Section 114. Illustrations (a) and section 106 of the Evidence Act. (Paras 17, 18 & 26)

       (iii) Indian Penal Code, 1860-Section 392 r/w Section-Conviction for robbery-Co-accused committed murder-Stolen jwellery and other properties-Accused persons in question part of group committed robbery-Murder and robbery in same transaction-Recovery of Jewellery and other properties from possession of accused persons consequent to disclosure statement made on very next day of incident-No explanation regarding possession of stolen property-Presumption could safety be drawn at least guilt of accused persons of robbery punishable under Section 392-Conviction justified.

       Learned counsel appearing for the appellants Sanjay and Nawabuddin, then submitted that even if the disclosure statements and the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411 of IPC. We do not agree with this submission as well as in view of the facts that the murder and robbery in the instance case were not of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused person were atleast guilty of the offence of robbery punishable under Section 392 IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod Appeallant being armed with daggar. The trial Court was, therefore, justified in holding that the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons in so far as in offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstances on the very next day of the incident, which clearly goes to show that the accused persons had joined hands to commit the offence of robbery." The Court also rightly held that "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (Para 30)