Whether a joint statement made by several accused persons leading to the discovery is admissible in evidence?

Ans: It has been clearly held by Hon’ble Apex Court in case of STATE (N C T OF DELHI) V/S NAVJOT SANDHU @ AFSAN GURU – reported in 2005 AIR(SC) 3820 that ………..

“Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording “a person” excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. ‘A person accused’ need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time.

In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.

In Mohd. Abdul Hafeez V/s. State of Andhra Pradesh [AIR 1983 SC 367], the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the I.O. that the ring (MO 1) was sold to the jeweller PW 3 in whose possession the ring was. PW 3 deposed that four accused persons whom he identified in the Court came to his shop and they sold the ring for Rs.325/- and some days later, the Police Inspector accompanied by accused 1, 2 and 3 came to his shop and the said accused asked PW 3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court:

“Does this evidence make any sense? He says that accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person”.

There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law. (Para-145)

On relying upon the Judgment in the case of MOHD. ABDUL HAFEEZ VS. STATE OF ANDHRA PRADESH [AIR 1983 SC 367], Hon’ble Gujarat High Court in case of DAHYABHAI REVABHAI CHAMAR V/S STATE OF GUJARAT – reported in 2009 (1) GLH 245 has held that. ….

“The evidence of discovery weapons is not at all useful to the prosecution. When we scrutinize this evidence, we find that six accused out of seven accused made disclosure before the police officers jointly, in presence of panchas. This panchnama was drawn on 18.12.1997 at 14.15 hours and panch Mahammad bhai Hanif bhai Dhaga examined as P.W.6 at Ex.31 also supports that all the accused jointly made disclosure before the police officers about the weapons and weapons were discovered in pursuance of this information by the accused jointly from open place. Learned advocate Mr. Y. V. Brahmbhatt for the appellants has relied upon the decision of the Apex Court in the matter of MOHD. ABDUL HAFEEZ V. STALE OF ANDRA PRADESH, 1983 AIR(SC) 367, wherein the Apex Court observed that joint discovery on joint statements of the accused would not incriminate the accused. We have also noted that the way regarding joint statement of the accused which leads to discover, is most unsatisfactory because if the evidence otherwise confessional in character is admissible under Section 27 of the Evidence Act, it is obligatory upon Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. In this panchnama at Ex.32, it is recorded that all the six accused in the presence of panchas voluntarily stated that they were prepared to discover the weapons, they had used by which they had beaten the opposite party on 17.12.1997 and upon this information jointly received from the accused, Investigating Officer and the panchas took the accused to search the discovery. Therefore, this is most unsatisfactory mode of proving important piece of evidence permissible under Section 27 of the Evidence Act. In addition to this, it may be noted that all the discovery by each accused is from an open place. Therefore, the evidence of discovery is not at all satisfactory and, therefore, the evidence of Forensic Science Laboratory about the blood group of the deceased on two muddamal axes, is also of no use to the prosecution.”

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