Whether court should convict accused on basis of recovery evidence if link between fact discovered with crime is not proved?

The second circumstance relied upon by the prosecution is the
evidence of recovery. Under Section 27 of the Indian Evidence Act, it
is not the discovery of every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing but the
connection or the link between the facts discovered with the crime.
The recovery of the motorcycle is sought to be relied upon as a
circumstance against the appellants. There is nothing on record to
show that the motorcycle recovered at the instance of appellant No.1, belongs to him. PW-13, IO, in his cross-examination admits that he
does not know whether the appellant No.1 is the owner of the
motorcycle. He further admits that no attempts were made by him to
enquire about the owner of the vehicle.
30. Testimony of PWs 4 and 5 is also unreliable since it contradicts
that of PW-10. As per PW-10, herself and Anita had seen the bodies of
the deceased at 3 a.m. She did not see the assailants and does not
mention anything about the motorcycle. Hence, there is no occasion
for the assailants of the deceased to remain in the house and hence
the motorcycle would not be outside the house of the deceased at 4
p.m. PWs 4 and 5 contradict each other. While PW-4 states that the
motorcycle was of Bajaj Company, PW-5 mentions it as a motorcycle
from Hero Honda Company. PW-5 in his examination-in-chief says
that he had moved the motorcycle to allow the tractor to pass.
However, in his cross-examination, he says that he did not move the
motorcycle and it was PW-4, who moved it. PW-5 does not even state
the day or month when he saw the motorcycle.
31. PW-2 was the witness to the seizure of the motorcycle. According
to him, the motorcycle was red in colour. However, as per the seizure
memo, the recovered motorcycle was black in colour. This makes the
recovery of the motorcycle unreliable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 428-430 OF 2019
(Arising out of S.L.P. (Crl.) Nos.5530-5532 of 2015)

DIGAMBER VAISHNAV Vs STATE OF CHHATTISGARH 

S.ABDUL NAZEER, J.
Dated:March 5, 2019.

Print Page

Whether prosecution case can be doubted on ground of non recovery of weapon of offence?

The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746].
Reportable

Supreme Court of India

Yogesh Singh vs Mahabeer Singh & Ors on 20 October, 2016

Bench: Pinaki Chandra Ghose, Amitava Roy

Print Page

Whether recovery Evidence can be disbelieved on ground that accused was handcuffed at that time?

 Mr. Apte, thereafter would contend that when the alleged discovery of the spot of rape, the spot of burial of the dead body and the spot of concealment of slack of deceased was discovered at the instance of the accused, he was handcuffed and therefore the said discovery cannot be relied upon in the eyes of law. We are unable to accept the said submission for the reasons that, there can be no doubt when the accused was handcuffed he may not be free from fear of the police or duress or pressure. But, that itself cannot be a reason to discard the recovery of weapon if it was otherwise found to be supported by evidence of the panch witnesses and the Investigating Officer. That handcuffing of a person by itself cannot be a reason to generalize the hypothesis that such a discovery cannot be reliable. That each case will have to be examined in its own peculiar circumstances. We are fortified in taking this view by the judgment delivered by the Division Bench of this Court in the case of Putalabai Bhimashankar Pattan Vs. State of Maharashtra reported in 2010 ALL MR (Cri) 2084. 

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015

Decided On: 14.03.2016

 The State of Maharashtra
Vs.
 Vitthal Tukaram Atugade

Hon'ble Judges/Coram:V.K. Tahilramani and A.S. Gadkari, JJ.

Citation: 2017 ALLMR(CRI)1274

Print Page

Whether recovery Evidence can be doubted on ground that there was paper sealing of recovered weapons?

All recovery panchanamas by which weapons were recovered at the instance of appellant/accused shows that P.W.15 P.I. Suryawanshi, P.W.13-A.P.I. Bhalsing and P.W.12-A.P.I. Vibhandik have used paper seals while sealing bloodstained weapons recovered at the instance of appellants. Cross-examination of P.W.15-P.I. Suryawanshi throws light on this aspect. It makes it clear that those weapons were separately wrapped in separate papers and then labels under signatures of panchas and investigating officers were affixed on those bundles. This procedure is sought to be criticized by placing reliance on the judgment of this Court in the matter of Malhari Gopal Bhoval & Ors. (Supra). It is observed in the said case that non-sealing of articles at the spot is a serious infirmity because possibility of tampering with said articles cannot be ruled out. However, in the case in hand, it cannot be said that recovered weapons were not sealed. In-fact, perusal of contents of duly proved recovery panchanamas as well as the evidence coming on record from cross-examination of P.W.15-P.I. Suryawanshi goes to show that weapons were separately wrapped in papers and paper seals containing signatures of Investigating Officers and panch witnesses were affixed to those bundles. There is no cross-examination of official witnesses seizing those weapons to demonstrate that when those weapons were sent for chemical analysis, paper seals were in broken condition. On the contrary, C.A. reports (Exh. 162, 163, 164, 165, 166, 167, 168, 169 and 170) shows that the Forensic Science Laboratory has received sealed packets with seals intact. There is no rule of law that sealing must be done by wax seal and sealing by paper seal is not permissible. Ultimately, there should be a reasonable doubt about tampering of seized bloodstained articles/weapons. Such doubt cannot be an imaginary, trivial or merely possible doubt. It should be a fair doubt based upon reason and common sense. When C.A. report shows that seized articles were received by the Forensic Science Laboratory in sealed condition with seals in-tact, then it cannot be said that there was possibility of tampering with seized articles/weapons. We, therefore, are unable to accept arguments of learned Counsel for appellants that because of non-sealing of articles/weapons by a wax seal, seized weapons were susceptible to tampering and therefore C.A. Reports are of no use to infer guilt of appellants.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal Nos. 109 and 110 of 2011

Decided On: 10.01.2017

 Pravin Dhondiram Chorge and Ors.
Vs.
 The State of Maharashtra

Hon'ble Judges/Coram:V.K. Tahilramani and A.M. Badar, JJ.

Citation: 2017 ALLMR(CRI)1196

Print Page

Whether court can rely on recovery evidence even if seized property was not sealed?

 In our considered opinion, this entire evidence is more than
sufficient to prove the involvement of the Accused in the commission of
the offence. However, according to learned counsel for the Accused, the
recovery evidence, in the instant case, is not convincing and reliable as
none of the witnesses have stated that the articles like the gold ornaments
seized from possession of the Accused or at their instance were sealed.
Moreover, even if they were sealed at the time of recovery, as the
evidence of PW-1 Chetan proves that he was shown those ornaments and
articles for the purpose of identification, and there is no evidence to prove

that subsequent thereto, they were again sealed. To substantiate his
submission, the learned counsel for the Accused has relied upon the two
authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of
Maharashtra, 2000 CRI.L.J. 1566, and Amarjit Singh alias Babbu Vs.
State of Punjab, 1995 Supp. (3) SCC 217.
39. In our considered opinion, however, none of these authorities can
be made applicable to the facts of the present case, because, in the first
authority, issue was relating to human blood found on the recovered
articles, whereas, in the second authority the revolver found on the spot
was not sealed, hence it was held that the possibility of tampering could
not be ruled out. In the instant case, the articles seized are the gold
ornaments. Therefore, there was neither the possibility of tampering nor
that of the ornaments changing their character or colour in any way, even if they were not sealed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2005

Futarmal Kapurji Borana   V  The State of Maharashtra 

CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 17TH DECEMBER, 2015
Citation; 2016 ALLMR(CRI)901

Print Page