What is the evidentiary value of ‘Discovery’? Whether conviction can be based solely upon the evidence of ‘Discovery’?

Ans: The evidence of discovery is always a question of fact and therefore, its appreciation always depends upon the facts and circumstances of each particular case. It may defer case to case and fact to fact.

In case of MANI V/S STATE OF TAMIL NADU- reported  in 2008 AIR(SC) 1021, Hon’ble Apex Court has held that……….

“Same and similar is the story regarding the alleged discovery. Both the witnesses namely P.W. 8 Dilip Kumar and P.W.9 Loganathan had turned hostile. They completely disowned the prosecution case that the appellant was examined by the Inspector and during that examination, Mani was enquired, and he gave confessional statement and that he would show the hidden clothes which he worn at the time of the incident and also the koduval which was used at the time of the incident. They only accepted that they had signed the said statement. Now, when we consider the evidence regarding the discovery, a very important circumstance was missed by both the Trial Court as well as by the High Court about the place where the articles were found. P.W. 15 Govindan who was the Investigating Officer in respect of this discovery deposed that the accused Mani had made voluntary confession statement which he had recorded in presence of the two witnesses namely P.W. 8- Dilip Kumar and Loganathan. It is already seen that both the witnesses had completely disowned the stouts. There is no cross examination worth the name to these witnesses by the public prosecutor. Both these witnesses were chance witnesses, they are being the regular visitors to the police station, and it appears that they were merely used by the investigating agency. In fact, there is no explanation on how these two witnesses reached the police station at all. P.W. 15 Govindan did assert that he recovered one blood stained rose colour full sleeve shirt, blood-stained green colored sweater, blood-stained lungi having green, red and black stripes and one blood stained Koduval with human hair produced by the accused at 11.30 a.m. near the sloppy rock on the way to Chinnammal Coffee Estate in Salaipara village.

Accordingly, the witness asserts that he recovered M.Os 15, 16, 17 and 18 under Exhibit P.26 Mahazar. Now, unfortunately, the High Court has missed a very important of evidence in his cross examination where the witness very specifically admitted that the material objects said to have been produced by Accused No. 1 and Accused No. 2 were recovered about 300 feet away from the dead body of Sivakumar. Now, it is nobody\’s case that at the time the discovery was made by accused no. 1, accused no. 2 also made certain discoveries. Therefore, the witness was not certain as to who made the discovery. This is apart from the fact that discovery admittedly was made from 300 feet away from the dead body of Sivakumar and after Sivakumar\’s body was inspected by P.W.14 as early as on 25.11.1996. It would be impossible to believe that the inspector did not search the nearby Spots and that all the articles would remain in open unguarded till 6th December, 1996 when the discovery had allegedly been made. This was nothing but a farce of discovery and could never have been accepted particularly because all the discovered articles were lying bare open barely 300 feet away from the body of the deceased Siva kumar. Even this witness had to admit that he never Inquired as to in whose name the house of Mani stand. He claims that P.W.14 had done the same whereas P.W.14 is completely silent about such investigation. It is, therefore, obvious this discovery could have never been accepted by both the courts below & both the courts have completely ignored this vital admission. It need not be stated that where the discovery of the relevant articles have been made from the open ground though under the bush, that too after more than 10 days of the incident, such discovery would be without any credence. It does not stand to any reasons that the concerned investigating officer did not even bother to look hither and thither when the dead body was found. We are, therefore, not prepared to accept such kind of farcical discovery which has been relied by the courts below without even taking into consideration the vital facts which we have shown above.

In case of IMAMUDDIN V/S STATE OF U P – reported in 2009 Cr.L 4477, Hon\’ble Allahabad High Court has held that……….

“It is clear from the above that apart from other ingredients the prosecution has to prove that the discovery was made in consequence of some information received from the accused and it was not the recovery by the accused\’s own act. It is further required that the discovery of a fact in consequence of information must be deposed to. In the present case the investigating officer Pradyumna Singh (PW-6) has nowhere stated that after taking police remand of accused Imamuddin under the orders of a Magistrate, the accused Imamuddin made any disclosure statement. What PW 6 says is that the prayer for police remand on accused Imamuddin was accepted by the Chief Judicial Magistrate and at the instance of the accused a pistol of 303 Bore which was used in the commission of crime was recovered and that the accused himself had procured the pistol after digging the earth from the place which was about 100 meters from the house of accused Imamuddin. Thereafter a memo Ext. 3 was prepared. The learned A.G.A. argued that in the recovery memo it has specifically been mentioned that before the recovery of pistol the accused Imamuddin in the presence of witnesses Mushtak Ahmad and Akik Ahmad had stated that the pistol with which he had opened fire upon Nabi Sarvar and about which he has already told he had concealed the same beneath the earth and is now giving to the investigating officer. Thereafter digging the earth took out a pistol and gave it to the investigating officer. The learned A.G.A. wants that this statement recorded in the recovery memo may be believed although the same has not been repeated in the statement of the investigating officer Pradyumna Singh. We feel that the argument is misplaced statement as recorded in the recovery memo cannot be taken into consideration until  unless the same would have been deposed to by investigating officer in his statement on oath. Since the recovery of the pistol has not been made pursuant to any disclosure statement the same cannot be relied upon.

It is also important to notice that although two independent witnesses namely Mushtak Ahmad and Akik Ahmad were allegedly present at the time of recovery, none of them has been examined. In the absence of any corroboration from independent witnesses it is not safe to rely upon the evidence of the investigating officer who naturally is interested in the success of the case. It is also difficult to believe that the accused Imamuddin after being taken on police remand, without having any conversation with the investigating officer will take them directly to the place where the pistol was allegedly concealed and will hand it over to the investigating officer after digging the earth just to create evidence against himself. Thus, the alleged recovery of pistol is highly doubtful. Hence, conviction cannot be based solely upon such evidence.

In case of SATTATIYA @ SATISH RAJANNA KARTALLA V/S STATE OF MAHARASHTRA- reported in 2008 (3) SCC 210, Hon’ble Apex Court has held that……….

“The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the appellant and the half blade, allegedly used for commission of crime, is credible and could be relied on for proving the charge of culpable homicide against the appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the appellant expressing his desire to facilitate recovery of the clothes and half blade. The prosecution case that the accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994. Room No.45 of “Ganesh Bhuvan” from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by anyone. The prosecution could not explain as to how the room allegedly belonging to the appellant could be without any lock. The absence of any habitation in the room also cast serious doubt on the genuineness and bonafides of recovery of clothes. The recovery of half blade from the roadside beneath the wooden board in front of “Ganesh Bhuvan” is also not convincing.

Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the Chemical Examiner’s Report the blood stains found on the shirt, pant and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human blood stains on the cloths of the accused and half blade were sufficient to link him with the murder.”

In the case of STATE (N C T OF DELHI) V/S NAVJOT SANDHU @ AFSAN GURVU- reported in 2005 AIR(SC) 3820, Hon’ble Apex Court has held that…….

“The trial Court convicted her of the offence under Section 123 IPC imputing her the knowledge of conspiracy and concealing the evidence of design to wage war by reason of her illegal omission to inform the police. The High Court acquitted her of the charge. We are of the view that the High Court is fully justified in doing so. The prosecution case against this accused, who is the wife of Shaukat Hussain, is weak, especially, in the light of the exclusion of confessional statements of co-accused Shaukat and Afzal. The High Court held the confessions inadmissible against the co-accused and we have expressed the same view. Incidentally, we may mention that even the confessions of co-accused do not attribute to her in clear terms the role of conspirator, though on the basis of confessions it could perhaps be held that she was in the know of things well before the planned attack on the Parliament. In fact, there was no earthly reason for inviting her to join the conspiracy. She was pregnant by then.

Then it is to be noted that no recoveries were effected at her instance coming within the purview of Section 27 of the Evidence Act as interpreted by us and the High Court.

Practically there is no evidence left to bring her within the purview of Section 123 IPC much less within the net of conspiracy to wage war and to commit terrorist act. Indisputably, no positive or participatory role has been attributed to her and as rightly observed by the High Court, “she provided no logistics; she procured no hideouts; she procured no arms and ammunition; she was not even a motivator.” She could have had some knowledge of the suspicious movements of her husband with Afzal who is his cousin and a surrendered militant. Of course, she was aware of the fact that Shaukat accompanied by Afzal left in her truck on the day of Parliament attack in post-haste; but, the involvement of Afzal, direct or indirect, and the attitude of her husband in relation to the Parliament attack could have come to her knowledge after the attack when they abruptly left for Srinagar in the truck.

The prosecution sought to rely on her disclosure memo Ex.PW 66/14 but nothing was recovered as a direct result of the information given by her. Of course, as far as passing on the information regarding the truck by which Shaukat left for Srinagar, there is no dispute. But the recovery of laptop etc. from the truck is not distinctly relatable to the information contained in the alleged disclosure statement. The articles in the truck were recovered at the instance of Afzal and Shaukat when it was intercepted at Srinagar. We find no link between the disclosure and the recoveries as a cause and effect.” In case of MUSTKEEM @ SIRAJUDEEN V/S STATE OF RAJASTHAN- reported in 2011 (11) SCC 724, Hon’ble Apex Court has held that…..

“With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. In the light of the aforesaid well settled principles of law by several authorities of this Court, we are of the opinion that the judgment and order of conviction as recorded by Trial Court and confirmed by High Court in Appellants appeals cannot be sustained in law. The same are, therefore, hereby set aside and quashed.”

In case of GOPAL SAH V/S STATE OF BIHAR – reported in 2008 (17) SCC 128, Hon\’ble Apex Court has held that……….

The statement of the investigating officer with respect to the place where the two murder weapons had been allegedly thrown makes the recovery itself tenuous. Moreover, as the sickle allegedly in the hands of Gopal Sah had been recovered from a pond three months after the murder, no evidentiary value whatsoever can be attached to this circumstance as well.

But in case of NINGAPPA YALLAPPA HOSAMANI V/S STATE OF KARNATAKA- reported in 2009 (14) SCC 582, the evidence of discovery was found perfect by Hon\’ble Apex Court and held that……..

“The accused Nos. 1, 2 and 4 to 7 were seen by Bommanabudni bus stand at about 8.00 p.m. of 30.1.2005 by P.W.10 Vishnu Tulasigeri. The evidence of P.W.16 Laxmappa Mullurur shows that the accused Nos. 2 to 7 were seen at 11.00 p.m. on that day on the motor cycle. That witness also saw the accused Nos. 1 and 6 on another motorcycle along with other. His evidence further shows that the accused No. 7 was riding the motorcycle along with the accused No. 2 on that motorcycle and another motorcycle was driven by the accused No. 6-Hanamant Ramappa Kivudi on which the accused No. 1-Ningappa Yallappa Hosamani was sitting with a gunny bag. When he inquired from the accused No.1, about the gunny bag, the accused No. 1 is stated to have replied that it contained jaggery block, which was to be given to his relative’s house. It is submitted by the appellants that even if this is accepted as true, there was nothing wrong in Ningappa Yallappa Hosamani (accused No. 1) taking a jaggery block to his relative’s house and that cannot fasten the liability of transporting the gunny bag containing dead body.

The time on which this incident is stated to have happened is at about 11 p.m. on 30.1.2005 and later the same persons were seen near the canal with both the motorcycles. Therefore the story of gunny bag containing the jaggery block is not believable. As held by the Courts below it must have contained the dead body of Namadev. Taking into consideration this factor, we find that the prosecution has conclusively proved that the accused Nos. 1, 2, 6 and 7 had disposed of the dead body of Namadev by putting it in a gunny bag and burying it at a place near the canal, which was detected in furtherance of the voluntary information’ – furnished by accused No. 1 and 2. It is also proved that the motorcycle of Namadev was drowned in the river by the accused, which was later recovered in furtherance of the voluntary information furnished by accused No. 6. As regards accused Nos. 1 and 2, since the dead body of Namadev was recovered in furtherance of the voluntary information furnished by them, the natural presumption, in the absence of explanation by them is that it was those two persons, who had murdered Namadev and had buried the dead body.”

On relying upon the aforesaid evidence in respect of the discovery, Hon’ble Apex Court has further held that………….

“Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without setting that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well- justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.”

In case of VINUGIRI MOTIGIRI V. STATE OF GUJARAT reported in 2002 (1) GLH 176 Hon\’ble Gujarat High court has held…

“It was submitted that since the panch witnesses have turned hostile, the Court cannot rely on the evidence of discovery. This submission is erroneous, because, as held by the Supreme Court in Modan Singh v. State of Rajasthan, if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In a recent decision of the Supreme Court in State Government of NCT of Delhi v. Sunil, while considering the provisions of Section 27 of the Evidence Act, and Section 114 thereof, the Supreme Court has held that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Criminal Procedure Code to obtain signature of independent witnesses on the record in which statement of an accused is written. The obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. It was held that it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. It was held that if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. The Court observed that, it is an archaic notion that actions of the police officer should be approached with initial distrust and that it is not a legally approvable procedure to presume the police action as unreliable to start with, and to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. It was held that when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. In the present case also, we find that the version given by the police officer about the discovery of the weapons at the instance of the accused persons is reliable and re-assures the evidence of the prosecution witnesses who have deposed as to the participation of the accused persons in the crime. Even without these discovery panchnamas, as noted by us hereinabove, there is reliable evidence to connect all these accused with the crime, and, their evidence is sufficient to hold that these accused persons had formed an unlawful assembly and with a view to achieve their common object of intentionally causing death of deceased Hareshbhai they had on 15-9-1992 around 9.30 in the morning, attacked him with knives and a gupti and caused eighteen incised wounds which resulted in his death.”

In a recent decision, Hon\’ble Gujarat High Court in case of RAMESHBHAI HAJABHAI CHACHIYA V/S. STATE OF GUJARAT – Criminal Appeal No. 643/2007 decided on 13/07/2012 (Coram: Honourable The Acting Chief Justice Mr. Bhaskar Bhattacharya and Honourable Mr. Justice J.B.Pardiwala) have held that………..

“Discovery evidence, by itself, is subsidiary and cannot sustain a conviction but where there is plenty of other evidence to sustain the prosecution case, discovery evidence may be treated as a valuable piece of corroborative evidence.”