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Are Two Attesting Witnesses Necessary for Recovery Under Section 27 of the Indian Evidence Act?
In criminal trials, Section 27 of the Indian Evidence Act, 1872 plays a pivotal role by carving out an exception to the general prohibition on confessions made to police officers. It allows the admissibility of facts discovered based on information given by an accused in custody. But a common query arises: Whether two attesting witnesses are necessary for recovery under Section 27 of the Indian Evidence Act? This question often stems from confusion with document attestation rules, particularly for wills. This post clarifies the requirements, drawing from judicial precedents, to help understand when such recoveries hold evidentiary value.
Understanding Section 27: The Discovery Exception
Section 27 states: Provided that, when any fact is 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.
Key elements include:
- The accused must be in police custody.
- Information must lead to discovery of a fact (e.g., recovery of a weapon or stolen articles).
- Only the portion of information distinctly related to the discovery is admissible—not the entire confession. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
The Supreme Court in State of Bombay v. Kathi Kalu Oghad emphasized that the fact discovered includes both the object and the accused's knowledge of its concealment. Pointing out the object isn't always mandatory; recovery based on the accused's information suffices if verified. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
Role of Witnesses in Section 27 Recoveries
Unlike attesting witnesses for wills (under Sections 63 of the Indian Succession Act and 68 of the Evidence Act), Section 27 doesn't mandate two attesting witnesses. Instead:
- A disclosure statement (mahazar or memo) records the accused's information.
- The recovery memo (panchnama) details the seizure, typically in the presence of independent panch witnesses (usually two, as per best practices).
Courts have held that while witnesses lend credibility, their hostility doesn't automatically invalidate recovery if the investigating officer's testimony corroborates it. However, procedural lapses can render evidence suspect. Sidhartha Vashisht @ Manu Sharma VS State (NCT of Delhi) - 2010 3 Supreme 190
- In Mohd. Afzal v. State, the court clarified: There is no inextricable link between the alleged informations furnished... and the facts discovered. None of the investigating officers deposed... that on the basis of information... any incriminating articles were recovered. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
- Recoveries from open places or without exclusive knowledge don't qualify. SUBHASH VS STATE OF U. P. - 2013 Supreme(All) 924
Distinguishing Attesting Witnesses: Wills vs. Recoveries
Attesting witnesses are specific to document execution, especially wills:
- Section 63, Indian Succession Act: A will must be signed by the testator in the presence of two attesting witnesses, who sign in his presence and each other's.
- Section 68, Evidence Act: Proof requires at least one attesting witness; if they deny or forget, other evidence under Section 71 may suffice—but strict compliance is needed. H. Venkatachala Iyengar VS B. N. Thimmajamma - 1958 Supreme(SC) 149 JAGDISH CHAND SHARMA VS NARAIN SINGH SAINI (DEAD) THROUGH HIS LRs. - 2015 4 Supreme 96
The Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma outlined: A Will has to be proved like any other document... but since Section 63 requires attestation... one attesting witness at least has been called. Suspicious circumstances demand higher proof. H. Venkatachala Iyengar VS B. N. Thimmajamma - 1958 Supreme(SC) 149
In contrast, Section 27 recoveries aren't documents requiring attestation like wills. They involve physical discovery, documented via:
- Memo of disclosure and recovery panchnama.
- Panch witnesses (often two) attest the process, but courts focus on whether the discovery flows from the accused's information. Thirunagaru Sravan Kumar @ Sravan S/o Venkata Rangaiah VS State of Telangana - 2024 Supreme(Telangana) 191
No fixed requirement for exactly two attesting witnesses exists under Section 27. Best practice (from CrPC guidelines and D.K. Basu rules) recommends independent witnesses for transparency, but admissibility hinges on judicial satisfaction of voluntariness and discovery nexus. D. K. Basu: Ashok K. Johari VS State Of W. B. : State Of U. P. - 1996 8 Supreme 581
Procedural Safeguards for Valid Recoveries
To ensure admissibility:
1. Record disclosure promptly in a memo, signed by accused and witnesses.
2. Independent witnesses (panchas) should witness recovery; their non-examination weakens but doesn't destroy evidence if IO testifies reliably. Jaison vs State Of Kerala, Represented By The Circle Inspector Of Police - 2025 Supreme(Ker) 2810
3. Avoid contamination: Recovery from open areas or known places fails the exclusive knowledge test. Boby VS State Of Kerala - 2023 1 Supreme 275
4. Medical/forensic link: Corroborate with expert opinion (e.g., ballistics). Sidhartha Vashisht @ Manu Sharma VS State (NCT of Delhi) - 2010 3 Supreme 190
In State of Rajasthan v. Teja Ram, lapses like no recovery memo led to exclusion. State Of Bihar VS Manoj Kumar Singh - 2009 Supreme(Pat) 375
Judicial Precedents on Witnesses and Admissibility
Courts repeatedly stress substance over form:
- Hostile witnesses: In Manu Sharma case, recoveries held valid despite issues, as chain was complete. Sidhartha Vashisht @ Manu Sharma VS State (NCT of Delhi) - 2010 3 Supreme 190
- No memo fatal?: Oral evidence of IO can suffice if credible, superior to flawed Section 27 memo. Mekail Mondal vs State of West Bengal - 2025 Supreme(Cal) 944
- Panchas turning hostile: Common; doesn't vitiate if IO proves discovery. But absence undermines. Ranvirsinh Kayamsinh Bhadoria VS State Of Gujarat - 2025 Supreme(SC) 1608
The Supreme Court in Abdul Wahid v. State of Rajasthan noted: Recoveries need procedural safeguards; first IO must follow Section 27 strictly. Mekail Mondal vs State of West Bengal - 2025 Supreme(Cal) 944
In Parliament attack case: The very idea of... pointing out a material object... is a necessary concomitant of Section 27. But witness testimony is key. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
Common Pitfalls and Challenges
- Custody timing: Information must be in police custody; prior knowledge invalidates. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
- Co-accused confessions: Not substantive against others; Section 27 limited to maker. State (N. C. T. Of Delhi) VS Navjot Sandhu @ Afsan Guru - 2005 5 Supreme 414
- Delay in recovery: Raises fabrication doubts. STATE vs GEHRI LAL and ORS
Prosecution must prove complete chain in circumstantial cases; isolated recovery insufficient. Shiv Sharan And Another Vs. State Of U.P. And Another - 2024 Supreme(Online)(ALL) 2722
Key Takeaways
- No, two attesting witnesses are not necessary for Section 27 recoveries, unlike wills. Focus is on discovery from accused's information, documented with panch witnesses.
- Best practice: Use two independent witnesses for memo/panchnama to bolster credibility.
- Admissibility test: Voluntariness, distinct discovery link, and corroboration.
- Judicial caution: Lapses invite benefit of doubt; prosecution bears burden.
This analysis generally reflects precedents; outcomes vary by facts. Consult a legal expert for case-specific advice—this is informational only.
Disclaimer: This post provides general insights based on case law and is not legal advice. Laws evolve; seek professional counsel for your situation.
Search Results for "Two Attesting Witnesses Needed for Section 27 Recovery?"
1997 9 Supreme 279 • India - Supreme Court
D.P.WADHWA, SUJATA V.MANOHAR
When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions ... appellants are manufacturer of bottle-Preliminary evidence does not substantiate the allegation-Name of appellant not mentioned ... when the complaint and the preliminary evidence recorded makes out no case against them. ... Since no argument was addressed before us on the violation of #HL_ST....
1983 0 Supreme(SC) 190 • India - Supreme Court
M.P.THAKKAR, S.MURTAZA FAZAL ALI, A.V.VARADARAJAN
was with Mohinder Singh at any point of time proximate to the point of time of the offence-Two eye witnesses against Mohinder Singh-Case ... Though we do not see any infirmity in the evidence of P. W. Amar Singh, and P.W. ... of Kerosene lantern-Village not electrified, people accustomed to such light-Accused known to witnesses in long standing family ... We have already evaluated the evidence of ....
1996 8 Supreme 581 • India - Supreme Court
KULDIP SINGH, A.S.ANAND
to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest ... welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting ... The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted ... in police custdoy and suggested incorporation of #HL_S....
1996 3 Supreme 511 • India - Supreme Court
B.P.JEEVAN REDDY, K.S.PARIPOORNAN
Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. ... ... Held : Though the copies of the statements of two witnesses (Kaur ... of non-furnishing of copies of statement of witnesses and documents-A list of documents/ witnesses was furnished to respondent before ... Kaur Singh, and also gathered ne....
1958 0 Supreme(SC) 149 • India - Supreme Court
P.B.GAJENDRAGADKAR, T.L.VENKATARAMA AYYAR, A.K.SARKAR
by Section 68 of the Evidence Act, one attesting witness at least has been called for ... attestation prescribed by Section 63 of the Indian Succession Act. ... and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other ... attesting witnesses. ... attestati....
2015 4 Supreme 96 • India - Supreme Court
KURIAN JOSEPH, AMITAVA ROY
mind in presence of two attesting witnesses. ... 68 – Applies when the attesting witnesses either deny or do not recollect the execution of the Will – In such situation section ... (Para 27, 28) ... (c) Indian Evidence Act, 1872 ... The High Court also dismissed the plea based on Section 71 of the Act, 1872 noting that the ....
2025 7 Supreme 204 • India - Supreme Court
ARAVIND KUMAR, SANDEEP MEHTA
(Paras 18 and 19) (D) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Proof ... two witnesses, and either of two attesting witnesses have to be examined by Propounder of Will – Mere fact that Will was registered ... (Paras 17, 27, 31 and 35) (C) Powers of Attorney #HL_START....
2015 0 Supreme(Gau) 140 • India - Gauhati
SUMAN SHYAM
evidence available on record more particularly testimony of PW1, PW 4 and PW 5, it can be seen that attesting witnesses had in fact ... duly acknowledged by and on behalf of executants - It is also not in dispute that there were two attesting witnesses who had signed ... clearly stated that they had put their signature in presence of executants and that signature of attesting witnesses#H....
1970 0 Supreme(P&H) 208 • India - Punjab and Haryana
D.S.TEWATIA
of Section 63 of the Indian Succession Act have been complied with. ... The Court also held that the Will was valid as it was duly attested by two attesting witnesses, including the Sub-Registrar. ... CUSTOMARY LAW - ANCESTRAL PROPERTY - WILL - VALIDITY - ATTESTATION - SECTION 63 OF THE INDIAN SUCCESSION ACT - INTERPRETATION. ... sufficient compliance with the provisions #HL_STAR....
1940 0 Supreme(Mad) 63 • India - Madras
KING
Issues: The admissibility of the confession under Section 27 of the Indian Evidence Act and the sufficiency of evidence for ... Finding of the Court: The court found the evidence of the confession inadmissible under Section 26 of the Indian Evidence ... Ratio Decidendi: The court held that the confession ....
2025 0 Supreme(SC) 1608 • India - Supreme Court
M. M. SUNDRESH, RAJESH BINDAL
In the case at hand, one cannot rely upon the statement tendered under Section 27 of the Indian EVIDENCE ACT , 1872. Witnesses who had given testimony attesting to the recovery being made have turned hostile. ... The witnesses to the inquest report have not been examined. Insofar as the recovery under Section 27 of the Indian EVIDENCE #HL_STA....
2025 0 Supreme(Ker) 2810 • India - IN THE HIGH COURT OF KERALA AT ERNAKULAM
Johnson John
all reliable and the same does not satisfy the requirements of Section 27 of the Indian Evidence Act and hence, cannot be accepted as legal evidence against the accused persons. ... This first part of the panchnama for the purpose of S.27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused e....
• India - High Court of Rajasthan - Rajasthan High Court Principal Seat Jodhpur
though a disclosure as per Section 27 of the Indian Evidence note that the attesting witnesses pertaining to the recoveries witnesses, their signatures were obtained on recovery memos Act was made by him relating to an amount of Rs.12,000/- said to be looted during the course of crime. ... This recovery too was made after lapse of about 11 months.
2023 Supreme(Online)(HP) 14685 • India - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
TARLOK SINGH CHAUHAN, J, SATYEN VAIDYA,J
(1997) 10 SCC 675 while dealing with conditions in Section 27 of the Indian EVIDENCE ACT held as under:- 14. ... Therefore, Section 27 is an exception to Sections 24 to 26 of the Indian EVIDENCE ACT meant for a specific purpose and thus can be construed as a proviso. ... David Rozario , (2002) 7 SCC 728, the Hon’ble Supreme Court while dealing with Section 27 of the In....
2024 0 Supreme(Telangana) 191 • India - Telangana
K. SUJANA
Section 27 (3) of the Indian Arms Act, 1959. ... The prosecution asserted that MO.6 – Mobile Phone was discovered in the confession statement of accused No. 1, which is admissible as per Section 27 of the Indian Evidence Act. ... This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act#HL_....
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