Recovery Of Weapon On Information Provided By Accused Can't Be Sole Basis For Conviction: Kerala High Court Reiterates

The Kerala High Court has reiterated that while recovery of weapon of crime on information provided by the accused is a crucial piece of evidence, the same cannot be the sole basis of evidence for it requires corroboration with other evidence.

The Court was considering a Criminal Revision Petition challenging the conviction and sentence rendered against the Petitioner under Sections 457 and 380 read with Section 34 of the Indian Penal Code. 

The Bench of Justice P.V. Balakrishnan observed, "...recently in the decision in Abdul Jabbar v State of Kerala [2025 KHC OnLine 901], this Court has again held that while recovery under Section 27 can be a crucial piece of evidence, it cannot be the sole basis for conviction since, it is not a substantive evidence and needs to be corroborated by other evidence. If so, in the light of the afore discussions, I am of the view that the conviction and sentence rendered against the revision petitioner/2nd accused cannot be sustained."

The Petitioner was represented by Advocate Saijo Hassan, while the Respondent was represented by the Public Prosecutor U. Jayakrishnan.

Facts of the Case

The prosecution's case was that in 2011, the accused in furtherance of their common intention to commit theft, broke into the Beverages Corporation situated at Menonpara and thereafter, committed theft of 52.750 litres of Indian Made Foreign Liquor, worth ₹24,515/-.

The prosecution heavily relied upon the recovery effected, based upon the confession given by the accused to rope him in this case.

Reasoning By Court

The Court, at the outset, stated that in order to rely upon a recovery effected under Section 27 of the Indian Evidence Act, the prosecution is duty bound to prove the alleged information received from the accused while in custody, which led to the recovery.

"....The evidence of PW4 would go to show that on 15.03.2011 he had arrested all the three accused and has questioned them. His evidence in to the effect that on the basis of Ext.P7(a) confession he has recovered 83 bottles of Indian Made Foreign Liquor. But it is very pertinent to note that PW4 not deposed the exact information, he had allegedly received from the accused and which led to the recovery. The information deposed by PW4 do not tally with Ext.P7(a) information which he has allegedly recorded......It is a settled law as held by the Apex Court in the decision in Bodh Raj vs. State of Jammu Kashmir (AIR 2002 SC 3164) that in order to rely upon a recovery effected under Section 27 of the Indian Evidence Act, the prosecution is duty bound to prove the alleged information received from the accused while in custody, which led to the recovery. The investigating officer must record the information and prove it or if not recorded, prove the exact information he had received from the accused by deposing in the Court. In the instant case, in the absence of the prosecution proving the alleged information received from the accused, I have no doubt in my mind that no value can be attached to the recovery evidence..", the Court observed.

It stressed on another important aspect which was the impossibility of the fact that all the three accused together have given information.

"....It is quite impossible to believe that all these accused have spoken simultaneously and in one voice. As held by the Hon'ble Apex Court in the decision in Mohd. Abdul Hafeez v. State of A.P. (1983 KHC 413), if evidence otherwise confessional in character is admissible under S.27 of the Indian Evidence Act, it is obligatory upon the investigating officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person. In the instant case, the version of PW4 is that when he questioned all the three accused, he received the very same information ie; Ext.P7(a) and the exact information given by each of the accused has neither been recorded nor proved. If so, the information allegedly received from all the accused cannot be used to connect the 2nd accused", the Court observed.

The Petition was accordingly allowed.

Cause Title: Selvan v. State of Kerala (2025:KER:74410)

Appearances:

Petitioner- Advocate Saijo Hassan, Advocate Benoj C. Augustin, Advocate U.M. Hassan, Advocate P. Parvathy, Advocate Rafeek V.K., Advocate Vishnu Bhuvenandran 

Respondent- Public Prosecutor U. Jayakrishnan

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