Holding

The prosecution failed to establish that the recovered pistol was the murder weapon and did not satisfy the requirements of Section 27, so the appellant is entitled to acquittal.

Summary

Anter Singh was convicted for the murder of Hansraj based largely on a pistol and empty cartridges recovered after he, while in police custody, disclosed their location. The prosecution relied on Section 27 of the Indian Evidence Act to admit the recovered items, asserting they were the murder weapon. On appeal, the Supreme Court examined the chain of custody, sealing of evidence, and whether the recovered pistol could be linked to the crime, finding numerous discrepancies and a failure to satisfy the strict requirements of Section 27. The Court held that the prosecution had not proved beyond reasonable doubt that the pistol was the weapon used, nor established proper custody of the cartridges and bullets. Consequently, the conviction was set aside and the appellant was acquitted.

Issues considered

The admissibility of evidence recovered under Section 27 of the Indian Evidence Act.
Whether the prosecution proved that the recovered pistol was the weapon used in the murder.
Whether the chain of custody and sealing of the pistol, cartridges and bullets were properly established.
Whether the requirements of Section 27 (fact discovered, information from accused in custody, etc.) were satisfied.
Whether the trial court's conviction could be sustained on the evidence presented.

Legislation cited

Subjects

murderSection 27evidence admissibilitychain of custodyforensic evidenceacquittalIndian Evidence ActArms Actcriminal procedure

Judgment

ANTER SINGH A
v.
STATE OF RAJASTHAN

.. FEBRUARY 5, 2004

[DORAISWAMY RAJU AND ARIJIT PASA Y AT, JJ.] B

Penal Code, 1860-Seclion 302-Appel/ant along with other accused
tried for murder-Upon information of appellant while in custody, search
made and a pistol recovered-Empty cartridges also found near the dead C
body-Appellant found guilty of murdering deceased while other accused were
acquitted-Held, there are several discrepancies and shortcomings in evidence
which considerably corrode credibility of the prosecution version-Prosecution
not being able to show that the pistol recovered was the one which was used
for commission of the offence-Custody of empty cartridges purported to have
been recoveredfrom the spot, not established-Conflicting evidence of witnesses D
as to the sealing ofpistol, empty cartridges, etc. found al the spot be.fore being
sent to the expert for examination--Appella11l held entitled lo acquittal.

Evidence- Appreciation of

RecoveJ)J from an open space-Credibility of-Recove1J1 of pislol upon E

- in.formation by accused in cus1ody~Reco"ve1y having been made ji"om an open
space accessible and visible from the place where tfie..dead body was lying
and al close proximity-Held, it is improbable that the police official could
have missed the weapon and would wait.for about 3 wJeks when the purported
information was given by the accused. Further, when the M!itnesses who were
supposed to have witnessed recovery have turned hostile, tl~e evidence relating F
to alleged recovery is of really on consequence.

Indian Evidence Act. 1872-Section 27-Scope and ambit of. discussed.

Deceased was found lying dead in the premises of a Government
College. On information by a witness, a cas.e was registered under Section G
302 IPC. During investigation, some empty cartridges and moulds of
footprints found near the dead body, were collected. four accused persons
were arrested. While in custody, accused-appellant gave information about
a gun, whkh was treated to be information in terms of Section 27 of the
123 H
124 SUPREME COURT REPORTS [2004] 2 S.C.R.

A Indian Evidence Act, 1872. Search was made in presence of accused and
a pistol was recovered. The empty cartridges and pistol were sent for
forensic examination. During post-mortem of the deceased, bullets were
recovered which were also sent for such examination. Trial Court found
accused-appellant guilty of offences punishable under Section 302 IPC and
B Sections 25 and 27 of the Arms Act. The other accused persons were found
not guilty. High Court affirmed the conviction and sentence. Hence, the
present appeal.

On behalf of the appellant, it was contended that the prosecution case
is based solely on evidence relating to alleged recovery purportedly on the
C basis of information given by the accused while in custody; that the
recovery was made from an open space accessible and visible to anyone
passing by; and that the prosecution had failed to establish its case and
presented a fabricated and improper case to falsely implicate the accused.

Allowing the appeal, the Court
D
HELD: I. I. There are several discrepancies and shortcomings in
e\'idence which considerably corrode credibility of the prosecution version.
The prosecution has not established the accusations against the accused-
appcllant beyond a reasonable doubt and consequently he is entitled to
be acquitt~d. 1132-GI
E
1.2. The crucial question which needs to be considered in this case
is whether the prosecution has been able to show that the pistol recovered
was the one which was used for commission of the offence. There are
-
several circumstances which affect credibility of the prosecution version.
Firstly, the so-called information was recorded by the 10, and he does not
F even indicate that the gun to which reference was allegedly made was the
weapon of assault. Further, the custody of empty cartridges purported to
have been recovered from the spot has not been established. In fact, the
claim is that on 11.4.1979 empty cartridges were recovered. They were
sent to the .forensic science laboratory on 12.5.1979. It has not been
G explained as to where the empty cartridges were till then lying and with
whom. Similar is the situation with the two bullets claimed to have been
extracted from the dead body by the doctor. Significantly, though the
witnesses claimed that the moulds; chappals found at the spot, the empty
cartridges, the two bullets extracted during post mortem examination and
. the pistol were sealed before being sent to the expert for examination and
H that they were sealed on the date they were recovered. But the witness
ANTER SINGH v. STATE OF RAJASTHAN 125

who claimed to have taken the parcel to the laboratory categorically A
admitted that the packets were sealed in the Kotwali in his presence on
the date he had taken for deposit with the laboratory and, in fact, the

.. articles were deposited on the next day after that. Though the witness
stated that different seals were used, a bare perusal of the materials on
record clearly shows that only one seal was used. Additionally one of the
witnesses who took major part in the investigation had categorically
B

admitted that the particular type of pistol which was allegedly seized could
not have ejected any empty cartridges till all the six shots were fired.
(128-D-H; 129-A)

2. Though recovery from an open space may not always render it C
vulnerable, it would depend upon factual situation in a given case and the
truthful~ess or otherwise of such claim. In the case at hand the recovery
was made from an open space visible from the place where the dead body
was lying and at a close proximity. It is not clear from evidence that it
was hidden in such a way so as to make it difficult to be noticed. The
evidence tendered is totally silent as to in whose custody were the bullets, D
empty cartridges and the pistol from the date of recovery till they were
sent to forensic laboratory. Non-explanation in this regard raises much
suspicion. (129-C, DI

Santa Singh v. State of Punjab, AIR (1956) SC 526, relied on.
E
........... Modan Singh v. State o.f Rajasthan, (1978) 4 SCC 435 and Mohd Aslam
v. State of Maharashtra, (2001) 9 SCC 362, referred to.

3. The various requirements of Section 27 of the Evidence Act can
be summed up as follows: I) The fact of which evidence is sought to be
given must be relevant to the issue. It must be borne in mind that the F
provision has nothing to do with 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 admissibie; 2) The fact must have been
discovered; 3) The discovery must have been in consequence of some G
i1.1formation received from the accused and not by accused's own act; 4)
The persons 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 H
126 SUPREME COURT REPORTS [2004] 2 S.C.R.

A is ina· i m issiblc. The expression "fact discovered" includes not only the
physical object produced, but also the place from which it is produced and
the knowledge of the accused at to this. 1132-A-E; 131-HI

Pulukuri Kotayya v. Emperor, AIR (1947) PC 67; Probhoo v. State of
Uttar Pradesh, AIR (1963) SC 1113; Mohammed Jnayuttillah v. The State of
B Maharashtra, AIR (1976) SC 483; Udai Bhan v. State of Uttar Pradesh, AIR
(1962) SC 1116 and K. Chinnaswamy Reedy v. State of Andhra Pradesh and
Anr., AIR (1962) SC 1788, referred to.
\
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
C 1105 of 1997.
From the Judgment and Order dated 27.5.97 of the Rajasthan High
Court in D.B.Crl. A.No. 286 of 1980.

Sushi I Kumar, Rajesh K. Sharma, Amrit Singh, N.M. Popli and Goodwill
D lndeevar for the Appellant.
V.N. Raghupathy and Mrs. Bharati Upadhyaya for the Respondent.

The Judgment of the Court was delivered by

ARIJ IT PASAYA T, J. This appeal has been preferred by accused
E
-
Anter Singh (hereinafter referred to as 'the accused') who faced trial along
with.~ others for allegedly. having committed homicidal death of one Hansraj
(hereinafter referred to as 'the deceased'). While accused-appellant was
charged for alleged commission of offence punishable under Sections 302,
302 read with Section 34 of the Indian Penal Code, 1860 (in short 'the !PC')
and Section 25(1 )(a) and 27 of the Arms Act, 1959 (for short 'the Arms
F
Act'), the other three accused were charged for commission of offence
punishable under Sections 302 and 302 read with Section 34 !PC.

Trial Court found that the accused-appellant was guilty of the alleged
offences punishable under Section 302 IPC and Sections 25 and '1.7 of the
G A.rms Act. Life imprisonment~ one year and three years .Sentences respectively
were imposed for the three offences.· The. other accused persons were found
to be not guilty. The High Court affirmed the conviction and sentence.

· Prosecution version as unfolded during trial is as follows:

H On 11.4.1979, Ram Kumar (PW-21) found a crowd on the ground of
ANTER SINGH v. STATE Of RAJASTHAN [PAS.A. YAT . .I.] ) 27

Government college, Ganganagar at about 6.30 a.m. On reaching close to the A
spot, lie found that a person was lying dead. While returning to his shop he
found a police Constable whom he told aboui the dead body. The Constahle
Bhagwan Singh gave information to Hari Singh ASI and being satisfied that
this was a murder,' a case was registered under Section 302 IPC. Near the
dead body some empty cartridges were found. Moulds of the footprints found B
nearby and the empty cartridges were collected. During Investigation four
accused persons were arrested. lhe accused appellant while in custody gave
information about a gun, which was treated to be information in terms of
Section 27 of the Indian Evidence Act, 1872 (for short 'the Evidence Act').
·- Search was made in the presence of accused and a pistol was recovered. The
empty cartridges and the pistol were sent for forensic examination. During C
post-mortem of the dead body of the deceased bullets were recovered which
were also sent for such examination. On completion of investigation, charge
•
sheet was placed. The accused persons pleaded innocence.

37 witnesses were examined to substantiate the prosecution version. D
The Trial Court found that the evidence was not sufficient to fasten guilt on
the co-accused, while holding appellant guilty as above noted. ,i\ppeal to the
High Court did not bring any relief.

Jn support of the appeal, learned senior counsel for the appellant
submitted that the fate of the case depends upon the acceptability of evidence E
relating to recovery purportedly on the basis of information given by the
accused while in custody. He pointed out that there are several circumstances
which show that th~ prosecution has tried to create evidence.

In essence it is submitted that the prosecution has failed to establish its
case and has presented a fabricated and improper case to falsely implicate the F
accused.

When the witnesses who are supposed to have witnessed recovery have
turned hostile, the evidence relating to alleged recovery is of really no
consequence. The alleged recovery was· made from an open space accessible
and visible to anyone passing by. It was a place which was very close to.the G
place where dead body was found. It is improbable that the police official
could have missed the weapon and would wait for about 3 weeks when the
purported information was given by the accused clearly not believable.

In response, Mr. V.N. Raghupathy, learned counsel for the State H
submitted that the Trial Court and the High Court have considered the material
128 SUPREME COURT REPORTS (2004] 2 S.C.R.

A on record and have found the evidence to be cogent and credible. Merely
because the witnesses did not support the prosecution version so far as the
recovery is concerned, that will not affect the credibility of the evidence
tendered by PW-36.

Merely because the gun was found in the open space that does not
B affect the evidence relating to recovery.
We shall first deal with the plea as to whether evidence relating to
recovery is acceptable when non-official witnesses did not support the recovery
and made departure from the statements made during investig~tion. In Modan
Singh v. State of Rajsathan, [ 1978] 4 SCC 435 it was observed that where
C 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 did not support the prosecution version. Similar view
was taken in Mohd. Aslam v. State of Maharashtra, [2001] 9 SCC 362. It was
held even if panch witnesses turn hostile, which happens very otten in criminal
D cases, the evidence of the person who effected the recovery would not stand
vitiated. But the crucial question which needs to be considered in this case
is whether the prosecution has been able to show that the pistol recovered
was the one which was used for commission of the offence. As rightly
contended by learned counsel for the appellant there are several circumstances
which affects credibility of the prosecution version. Firstly, the so-called
E information was recorded by the IO (PW-16), and he does not even indicate
that the gun to which reference was allegedly made was the weapon of
assault. Further the custody of empty cartridges purported 1o have been
-
recovered from the spot has not been established. In fact, the claim is that on
11.4.1979 empty cartridges were recovered. They were sent to the forensic
F science laboratory on 12.5.1979. It has not been explained as to where the
empty cartridges were till then lying and with whom. Similar is the s.ituation
with the two bullets claimed to have been extracted from the dead body by
the doctor. It has been accepted by PW-36 that the empty cartridges and the
bullets were not deposited with the ballistic expert prior to the recovery of
the pistol claimed to have been made on 29.4.1979. Significantly, though the
G witnesses claimed that the moulds, chappals found at the spot, the empty
cartridges, the two bullets extracted and the pistol were sealed before being
sent to the expert for examination and that they were sealed on the date they
were recovered, but PW-23 who claimed to have taken the parcel to the
laboratory categorically admitted that the packets were sealed in the Kotwali
H in his presence on the date he had taken for deposit with the laboratory i.e.
ANTER SINGH v. STATE OF RAJASTHAN [PASAYAT, J.] 129

11.5.1979 and, in fact, the articles were deposited on 12.5.1979. Though the A
witness stated that different seals were used, a bare perusal of the materials
on record clearly shows that only one seal was used. Additionally, PW-31
who·took major part in the investigation had categorically admitted that the
pa11icular type of pistol which was allegedly seized could not have ejected
any empty cartridges till all the six shots were fired and otherwise it could B
not be possible. In Exhibits 51 and 51 A i.e. the spot map and the circumstances
memo reference is made to the moulds. This was not possible because Exhibits
51 and SIA were prepared at about 9.30 a.m., while admittedly the moulds
were taken much after as stated by the witnesses. Significantly in neither
Exhibits 51 and 51 A, reference is made to the recovery of any empty cartridges
which was supposed to have been found near the dead body though reference C
was made to the moulds which were yet to come into existence. There was
no evidence led as to when the bullets were handed over to the police by the
doctor or where they were kept and in what condition. Though recovery from
an open space may not always render it vulnerable, it would depend upon
factual situation in a given case and the truthfulness or otherwise of such
claim. In the case at hand the recovery was made from an open space visible D
from the place where the dead body was lying and at a close proximity. It
is not clear from evidence that it was hidden in such a way so as making it
difficult to be noticed. The evidence tendered is totally silent as to in whose
cu~wdy were the bullets, empty cartridges and the pistol. The effect of such
non-explanation was considered by this Court in Santa Singh v. State of E
Punjab AIR (1956) SC 526. The Constitution Bench, inter alia, observed as
follows:

"There is another element in the case which creates even greater
difficulty. An empty cartridge case is alleged to have been recovered
from the place of occurrence by the police on the 10th of September F
when they went there for investigation after receipt of the first
information from Uttam Singh (P.W. 16); so also some blood~stained
earth.

They were carefully packed and sealed in two separate packets
and dispatched to the Police Station. The sealed parcel of the earth G
was sent to the Chemical Examiner at Kasauli on the 11th October,
1954, and the sealed parcel of the empty cartridge case was sent to
Dr. Goyle as late as the 27th October, 1954.

Even if we accept the explanation given by the Sub-Inspector of·
Police that the empty cartridge case had to be kept at the police H
130 SUPREME COURT REPORTS f2004] 2 S.C.R.

A station till the rifle used was recovered so that both might be sent to
the expert for his opinion, nothing has been stated why after the rifle v~·
was recovered on the 28th September, 1954, along with 24 cartridges
from the house of the accused, it was incumbent fr- the Police to
retain the parcels ·of rifle and empty cartridge case with them till the
11th October, 1954.
B
Naturally this inordinate delay raises much susp1c1on and has
given rise to the suggestion on the part of the accused made in the
course of the cross-examination of the Sub-Inspector that the empty
cartridge case ultimately sent to the expert relates to a cartridge that
was fired by them at the Police Station and is not the one recovered
c at the spot."

The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kotayya v. Emperor, AIR (1947) PC 67 in
the following words, which have become locus classicus: ,.

D It is fallacious lo treat the 'fact discovered' within the section as
equivalent ~o the object produced; the fact discovered embraces the
place from which the object is produced and the knowledge of the
accused as to this and the information given must relate distinctly to
this fact. Information as to past user or the past history, of the object
E produced is not related to its discovery in the setting in which it is
discovered. Information supplied by a person in custody that 'I will
produce a knife concealed in the roof of my house' does not lead to
the discovery of a knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is concealed in the
house of the information to his knowledge, and if the knife is proved
F to have been used in the commission of the offence, the fact discovered
is very relevant. But if to the statement the words be added 'with
which stabbed A.', these words are inadmissible since they do not
related to the discovery of the knife in the house of the informant."
(p. 77)
G The. atoresald ·position was again highlighted ·in Prabhoo v. State of
Uttar Pradesh, AIR (1963) SC 1113.

Although the interpretation and scope of Section 27 has been the subject
of several authoritative pronouncements, its application to concrete cases in
H the background events proved therein is not always free from difficulty. It
ANTER SINGH v. ST ATE OF RAJASTHAN [PASA YAT, J.] 131
- will, therefore, be worthwhile at tile outset, to have a short and swift glance A
at Section 27 and be reminded of its requirements. The Section says :

"Provided that, when any fact is deposed to as discovered in
consequence of infonnation received froru 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 B
fact thereby discovered may be proved."

The expression "provided that" together with the phrase "whether it
amounts to a confession or not" show that the section is in the nature of an
exception to the preceding provisions particularly Section 25 and 26. It is not
necessary in this case to consider if this Section qualifies, to any extent, C
Section 24, also. It will be seen that the first condition necessary for bringing
this Section into operation is the discovery of a fact, albeit a relevant fact, in
consequence of the information received from a person accused of an offence.
The second is that the discovery of such fact must be deposed to. The third
is that at the time of the receipt of the information the accused must be in D
police custody. The last but the most important condition is that only "so
much of the information" as relates distinctly to the fact thereby discovered
is admissible. The rest of the information has to be excluded. The word
"dist; ·>rtly" means "directly", "indubitably", "strictly'', "unmistakably". The
word 11as been advisedly used to limit and define the scope of the provable
infonnation. The phrase "distinctly" relates "to the fact thereby discovered" E
and is the linchpin of the provision. This phrase refers to that patt of the
information supplied by the accused which is the direct and immediate cause
of the discovery. The reason behind this partial lifting of the ban against
confessions and statements made to the police, is th.at if a fact is actually
discovered in consequence of information given by the accused, it a!fords F
some guarantee of truth of that part, and that part only, of the information
which was the clear, immediate and proximate cause of the discovery. No
such guarantee or assurance attaches to the rest of the statement which may
be indirectly or remote:: related to the fact discovered. (See Mohammed ·
lnayultillah v. The State of Maharashtra, AIR (1976) SC 483.
G
At one time it was held that the expression "fact discovered" in th.e
section is restricted to a physical or material fact which can be perceived by
the sense,s, and that it does not include a mental fact, now it is fairly settled
that the expression "fact discovered" includes not only the physical object
produced, but also the place from which it is produced and the knowledge of
the accused as to this, as noted in Palukuri Kotayya's case (supra) and in H
132 SUPREME COURT REPORTS [2004] 2 S.C.R.

A Udai Bhan v. State of Uttar Pradesh AIR ( 196'2) SC I I f6.
The various requirements of the Section can be summed up as follows:

(1). The f~ct 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
B with 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.
c
(3) The discovery must have been in consequence of son~e information
received from the accused and not by accused's own act.

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

D (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
E distinctly or strictly to the fact discovered can be proved. The rest is
inadmissible.

As observed in Palukuri Kot?Jyya 's case (supra) it can seldom happen
that information leading to the discovery of a fact forms the foundation of the
prosecution case. It is one link in the chain of proof and the other links must
F be forged in manner·allowed by law. To similar effect was the view expressed
in K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr.., (1962) SC
1788.

The several discrepancies and shortcomings in evidence as noticed
(supra) considerably corrode credibility of the prosecution version. That being
G so, the inevitable cond1.1sion is that the prosecution has not established the
accusations against the accused-appellant beyond reasonable doubt and .
consequently he is entitled to be acquitted. Since he is on bail, the bail bonds
be discharged. The appeal is allowed.

M.P. Appeal allowed.
H