Section 27 Evidence Act- Discovery Of Weapon At The Instance Of Accused By Itself Does Not Prove That He Had Concealed Or Used It : Supreme Court

• The bench observed thus while considering an appeal filed by a homicide convict, whose conviction under Section 302 IPC was maintained by the Bombay High Court. The Supreme Court observed that merely because the revelation of the weapon was at the instance of the accused, it does not mean he had concealed or used it.
• One of the arguments raised by the appellant was that the eye witnesses of the case are unreliable witnesses.
• In appeal, the Apex court bench held that both the courts appropriately believed the two eyewitnesses. Although,it noticed a serious infirmity in the reasonings assigned by the trial court as asserted by the High Court so far as the position of law in relation to the discovery of weapon of offence under Section 27 of the Act is concerned.
• Therefore, the bench proceeded to elucidate the correct position of law and how to appreciate the evidence of discovery in accordance with the provisions of the Section 27 of the Act.
• The court noted that essential conditions for the applicability of Section 27 of the Act are broadly as under

1. Discovery of fact in consequence of an information received from accused;
2. Discovery of such fact to be deposed to
3. The accused must be under police custody when he gave informations and
4. So much of information as thereby discovered is admissible on two conditions for application – (1) information must be such that it has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered.

• What emerges from the evidence of the PW-4 & PW-10 reply is that the appellant stated before the panch witnesses "I will show you the weapon concealed adjacent the shoe shop at Parle". This assertion does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who found the weapon.
• He might have inferred information of the existence of that weapon at that place through some other source as well. He could have even seen somebody concealing the weapon, and, therefore, it cannot be presumed that because a person discovered the weapon, he was the person who had concealed it, at the least it can be presumed that he used it. Therefore, even if discovery by the appellant is acknowledged, what emerges from the substantive evidence as regards the discovery of the weapon is that the appellant disclosed that he would show the weapon utilised in the commission of offence.
• The court also noted that in the examination-in-chief of the Panch does not show that he was read over the panchnama before it was exhibited. The bench, referring to Murli and another v. State of Rajasthan (2009) observed:

The Court has consistently put forth the need of perusing the panchnama which can be utilised as a piece of corroborative evidence. Despite this, it is lamentable that the learned trial judge didn't make careful arrangements to see that the panchnama was read to the panch before it was shown. Also, before it is read, the panch must be found out if that part of the panchnama is right or not and whatever reply he gives must be recorded.

In the event that he answers in the affirmative, only that part of the panchnama can be added into evidence to corroborate the substantive evidence of the panch. In the event that he answers in the negative, that piece of the panchnama can't be read in evidence. It is, subsequently, vital that care is taken by the public prosecutor who leads the trial that such a system is followed while looking at the panch at the trial. It is likewise necessary that the learned preliminary judge also sees that the panchnama is read over the panch and from there on the panchnama is exhibited subsequent to following the system as demonstrated above.