- The Chhattisgarh High Court has ruled that recovering any incriminating article from a public or visible location taints the evidence under Section 27 of the Evidence Act.
- It should be noted that the following conditions must be met for Section 27 of the Evidence Act to be applicable:
- Fact discovery as a result of information obtained from the accused;
- The discovery of the fact to be deposed to;
- The accused must be in police custody when he provided information; and
- Only information that is clearly related to the fact thereby discovered is admissible.
- Julan (wife) of the deceased (Sohna) allegedly eloped with the appellant/accused and began to live in the mountains. Dhani Ram (PW3) informed the deceased that his wife was with the accused in the nearby forest mountains.
- Following that, both the deceased and Dhaniram went to the location where they were both present and staying.
- The deceased requested that his wife accompany him, but the accused / appellant stated that he would take her and drive her to the village.
- When he arrived, he discovered the deceased dead on the floor and stated that the gunshot injury was caused by the appellant herein. The Trial Court found him guilty under Section 302 of the IPC, as well as Sections 25(1B) and 27 of Arms Act.
- The Court noted at the outset that the prosecution had failed to explain why the FIR was registered three days late and why Dhaniram did not file a report despite the fact that his son-in-law was shot dead and despite the fact that he had allegedly seen appellant firing the gunshot.
- The Court also noted that during his (PW3) examination before the Court, the appellant did not confront or contradict Dhaniram's statement under Section 161 CrPC.
- The Court noted that the incident occurred on September 25, 2008, whereas the pistol was recovered on August 19, 2009 (11 months after the incident), and that too from the dense forest and accessible to all, and it was not clear whether it was visible to all, but it remained in dense forest for more than 11 months.
- In this regard, the Court cited the Supreme Court's decisions in Trimbak v. The State of Madhya Pradesh and Bijender alias Mandaar v. State of Haryana, observing that in order to sustain an accused's guilt, the recovery must be unimpeachable and free of doubt.
- Finally, the Court noted that the prosecution failed to establish that the appellant used a countrymade pistol to shoot deceased Sohna.
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