Theory of confirmation by subsequent facts: Section 27 of the Indian Evidence Act, 1872

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In the matter of: Navaneethakrishnan V/s The State by Inspector of Police, Criminal Appeal No. 1134/2013 (Supreme court of India, Date of Decision: 16.04.2018, Coram: A.K. Sikri & R.K. Agrawal, JJ.) it was held that, Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts, that is, statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Discovery statements made under Section 27 of the Indian Evidence Act, 1872 can be described as those which furnish a link in the chain of evidence needed for a successful prosecution.

Section 27 of the Indian Evidence Act, 1872 reads as follows:

How much of information received from accused may be proved- Provided 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 permits derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3) of the Constitution of India, 1950.

Law as regards Section 27 of the Indian Evidence Act, 1872 can be summarised as follows:

(i)    Information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Indian Evidence Act, 1872.

(ii)   Section 27 of the Indian Evidence Act, 1872 provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to discovery of an unknown fact.

(iii)  The rationale of Sections 25 and 26 of the Indian Evidence Act, 1872 is that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act, 1872 is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 of the Indian Evidence Act, 1872, is limited “…as relates distinctly to the fact thereby discovered…

(iv)  The rationale behind Section 27 of the Indian Evidence Act, 1872 is that facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 of the Indian Evidence Act, 1872 has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the of the Indian Evidence Act, 1872.

(v)   So far as Section 27 of the Indian Evidence Act, 1872 is concerned, in the absence of any connecting link between the crime and the things recovered, the recovery of things at the behest of accused will not have any material bearing on the facts of the case.

When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In the matter of: State Govt. of NCT of Delhi V/s Sunil & Anr, (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there is no requirement, either under Section 27 of the Indian Evidence Act, 1872 or under Section 161 of the Code of Criminal Procedure, 1973 to obtain signatures of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.

In sum and substance, Section 27 of the Indian Evidence Act, 1872 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (1) The information must be such as the accused has caused discovery of the fact, that is, the fact must be the consequence, and the information the cause of its discovery; and, (2) The information must ‘relate distinctly’ to the fact discovered.

The quintessential requirements of Section 27 of the Indian Evidence Act, 1872 have been succinctly summed up in the matter of: Anter Singh V/s State of Rajasthan, (2004) 10 SCC 657 in the following words:

…16. The various requirements of the section can be summed up as follows:

(1)   The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2)   The fact must have been discovered.

(3)   The discovery must have been in consequence of some information received from the accused and not by the own act of the accused.

(4)   The person giving the information must be accused of any offence.

(5)   He must be in the custody of a police officer.

(6)   The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7)   Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible…

In the landmark case of: Pulukuri Kottaya V/s King-Emperor, AIR 1947 PC 67, the Privy Council has laid down the test for relevance of information received from the accused for the purpose of Section 27 of the Indian Evidence Act, 1872. The relevant extract from the judgment is as under:

“…10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems 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 can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate…

In the matter of: Raju Manjhi V/s State of Bihar, Criminal Appeal No. 1333/2009 (Supreme Court of India, Date of Decision: 02.08.2018, Coram: N.V. Ramana & S. Abdul Nazeer, JJ.) it was held that:

a.  It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him.

b.  Test identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure, 1973 which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Test identification parades do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure, 1973. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

Section 27 of the Indian Evidence Act, 1872 and the dictum in the matter of: Selvi & Ors V/s State of Karnataka, (2010) 7 SCC 263:

In the matter of Selvi (Supra) it was held that:

…264. In the light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques (Lie Detector Test, Polygraph Test, Narco-Analysis Test and Brain Mapping Test) in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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