Whether evidence relating to discovery becomes inadmissible if statement made by accused is not recorded?

Mr. Apte, the learned Counsel for the accused thereafter placed his reliance on the decision of the Supreme Court in the case of Niranjan Panja Vs. State of West Bengal reported in MANU/SC/0386/2010 : (2010) 6 SCC 525. Mr. Apte pointed out that in the said decision, it has been stated that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only that part of the statement which is not incriminating and leads to discovery which becomes admissible. In the said case, the recovery was not relied upon because the weapon which was allegedly produced by the accused was never produced before the Court and the prosecution has also not given any explanation whatsoever about the disappearance of this weapon. On carefully going through this decision, we find that again it deals with the aspect as to what part of statement made by the accused is admissible and the ratio in this decision is that only the part of the statement which is not incriminating and leads to discovery becomes admissible. The ratio of this decision does not appear to be that if a statement made by the accused is not recorded, evidence relating to the discovery becomes inadmissible. Mr. Apte also relied upon two judgments delivered by the Supreme Court namely (1) Aher Raja Khima Vs. State of Saurashtra reported in MANU/SC/0040/1955 : AIR 1956 SC 217 and (2) Vijender Vs. State of Delhi reported in MANU/SC/1224/1997 : (1997) 6 SCC 171. The said two decisions also deal with Section 27 of the Indian Evidence Act and the fact of discovery at the instance of accused.

28. It is well settled that the observations in a judgment cannot be de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the ratio in that regard is well settled by catena of decisions of the Apex Court. This has been clearly explained in different decisions of the Apex court including in the matter of Union of India & Ors. Vs. Dhanwanti Devi & Ors. reported in MANU/SC/1272/1996 : (1996) 6 SCC 44. It has clearly ruled therein that the decision is what it decides and not what follows from it.

29. In the decisions in the case of Prabho (supra) and Niranjan Panja (supra), the question did not arise specifically for consideration as to whether failure to record the information given by the accused would render the evidence relating to discovery by the accused inadmissible. However, this question arose directly for consideration before the Supreme Court in the case of Mohd. Arif alias Ashfaq Vs. State (NCT of Delhi) reported in MANU/SC/0919/2011 : (2011) 13 SCC 621 on which the learned APP has placed reliance. In the said case, the same question as in the present case specifically arose for consideration which can be seen from paragraph 169 of the judgment which reads thus:--

"Now coming to the second argument of failure to record the information, it must be held that it is not always necessary. What is really important is the credibility of the evidence of the investigating agency about getting information/statement regarding the information from the accused. If the evidence of the investigating officer is found to be credible then even in the absence of a recorded statement, the evidence can be accepted and it could be held that it was the accused who provided the information on the basis of which a subsequent discovery was made. The question is that of credibility and not the formality of recording the statement. The essence of the proof of a discovery under Section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the Court but if the Court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon."

30. In Suresh Chandra Bahri Vs. State of Bihar reported in 1955 Supp (1) SCC 80, no discovery statement was recorded by the investigating officer of the information supplied by the accused to him. Further no public witness was examined by the prosecution to support the theory that such an information was given by the accused to him in pursuance of which some material discovery was made. The Supreme Court, however, in spite of these two alleged defects, accepted the evidence of discovery against the accused on the basis of the evidence of the police officer. In the present case, we find the evidence of police officer PW-15 Bhimrao Waghmare to be wholly credible and reliable. He has not at all been shaken in his cross-examination. In such circumstances, we have no hesitation in relying on his evidence which shows that the spot where the dead body of the victim girl was buried was shown by the accused in presence of PW-8, the panch witness. In our view the decisions cited by the learned Counsel for the accused are of no help to him.

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

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