Authorship of concealment is not essential for admissibility of the statement of the accused under Sec. 27 of the Act.

Thomas P.Joseph, J.

"Is authorship of concealment sine qua non to make information received from a person accused of any offence in the custody of a Police Officer admissible under Section 27 of the Evidence Act (for short, "the Act")? Will such information which is otherwise admissible become inadmissible solely for the reason that such information does not reveal authorship of concealment?"

This is the question referred to us for a decision in view of the conflicting decisions of the Division Benches of this Court.

2. The question arose in two criminal appeals arising from conviction of appellants for offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code and sentence to undergo imprisonment for life and payment of fine. The case is that on 03.04.2002 at or by about 9.15 p.m. appellants along with another (who was acquitted by the trial court) in furtherance of their common intention caused death of one Rajan. Prosecution relied on circumstantial evidence to bring home guilt of the appellants. One of the circumstances was the alleged recovery of weapons said to be used by the appellants for commission of the crime and the blood stained clothes of one of the appellants on the information given by them. Information given by the appellants to the Investigating Officer is said to have led him to the place wherefrom the incriminating objects were allegedly recovered. The Investigating Officer prepared mahazars for recovery of the said objects and in the course of evidence deposed to the fact discovered and the information given by the appellants. Information given by the appellants which led to the discovery of fact as deposed to by the Investigating Officer did not contain authorship of concealment of the objects. Learned counsel for appellants contended before the Division Bench that evidence of the Investigating Officer regarding recovery of incriminating objects cannot be admitted in evidence under Sec.27 of the Act since authorship of concealment of the incriminating object is not deposed to. Learned Public Prosecutor contended that authorship of concealment is not sine qua non for admissibility of the evidence regarding recovery under Sec.27 of the Act.

3. Both sides relied on various decisions on the point. The Division Bench though, was of the opinion that authorship of concealment is not sine qua non for admissibility of evidence under Sec. 27 of the Act found apparent conflict between decisions of this Court on the question and felt that the question has to be decided by a larger bench. Accordingly the Division Bench by order dated March 30, 2010 has referred the question for a decision.

4. Learned counsel for appellants contended that authorship of concealment is sine qua non to bring the information given by the accused within the mischief of Sec.27 of the Act. Learned counsel relied on the decisions in Jaffer Husain Dastagir v. The State of Maharashtra (AIR 1970 SC 1934), Pohalya Motya Valvi v. State of Maharashtra (AIR 1979 SC 1949), Dudh Nath Pandey v. State of U.P. (AIR 1981 SC 911), State of U.P. v. Jageshwar and others (AIR 1983 SC 349) , Fr. George Cherian and others v. State of Kerala (ILR 1989 (2) Kerala 95), George v. State (2005 (3) KLJ 593), Sankara Narayanan v. State of Kerala (2006 (3) KLT 429), Radhakrishnan v. Circle Inspector of Police (2009 (1) KLD 690) and Rijo v. State of Kerala (ILR 2009 (4) Kerala 730).

5. Learned Public Prosecutor on the other hand argued that authorship of concealment is not an absolute necessity to bring the information given by the accused within the scope of Sec. 27 of the Act . He cited the decisions in State of Maharashtra v. Suresh ([2000] 1 SCC 471), State of Karnataka v. David Rozario (2002 SCC (Cri) 1852), Amitsingh Bhikamsingh Thakur v. State of Maharashtra ((2007) 2 SCC 310) and V.Venugopal v. State of Kerala (2007 (2) KHC 649).

6. In Fr. George Cherian and others v. State of Kerala (ILR 1989 (2) Kerala 95) the accused had stated to t