Supreme Court explains pre-requisite for proving recovery panchnama as per S 27 of Evidence Act

 77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the Appellant herein which ultimately led to the discovery of a fact relevant Under Section 27 of the Evidence Act.

78. If, it is say of the investigating officer that the Appellant-Accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the Accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the Accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the Accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 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 expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other Article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the Accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the Accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other Article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated Under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.

21.A cautious appraisal of the above extract from the evidence of the Investigating Officer(PW-27) would reveal that he did not depose the exact words as narrated by the Accused Thammaraya(A-2) and Accused Basappa(A-3) in their disclosure statements. In fact, he even did not care to exhibit the disclosure statements of which he was the scribe in his deposition. He also did not depose in clear words that the Accused persons had led him to the place mentioned in the disclosure statements and got the articles recovered. No connection between the Accused and the particular articles recovered is visible from the testimony of the Investigating Officer(PW-27). The Investigating Officer(PW-27) also failed to exhibit the recovery memorandums. There is no indication in the deposition of the Investigating Officer(PW-27) that he sealed the recovery articles or got the same subjected to test identification at the hands of the relatives of the deceased Shrishail. 

4. Therefore, this material omission on part of the Investigating Officer(PW-27) in not conducting a Test Identification Parade(TIP) of the recovered articles, more particularly when the case of prosecution is based solely upon recoveries of these articles, has created holes in the fabric of the prosecution story, which are impossible to mend.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 649 of 2013 

Decided On: 22.01.2025

Thammaraya and Ors. Vs. The State of Karnataka 

Hon'ble Judges/Coram:

Vikram Nath, , Sanjay Karol,  and Sandeep Mehta, , JJ.

Author: Sandeep Mehta, J.

Citation: MANU/SC/0110/2025.

Read full judgment here: Click here.

Print Page