Issue no.

3 appellant side

Can conviction be based merely on recovery under section 27 of Indus Evidence Act, in the absence
of any forensic evidence and recovery of dead body?

We devided issue 3 in three parts

1. Can conviction be based merely on recovery under section 27 of Indus Evidence Act

No conviction cannot be based merely on recovery under section 27 of Indus Evidence Act in the
present case as police officer has not compliance with the mandatory provision of recovery under
section 100 subsection 4 and 5 of CrPC, Police Officer has not noted the statement of accused,
prepared the memorandum of recovery of murder weapon in the presence of independent witness
and not prepared panchmana inforont of panch witness

Section 100 (4) and (5) in The Code Of Criminal Procedure, 1973 read a
100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more
independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other
locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and
witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the
places in which they are respectively found shall be prepared by such officer or other person and signed by such
witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the
search unless specially summoned by it.

In case of Boby versus State of Kerala held as under

83. The first and the basic infirmity in the evidence of all the
aforesaid prosecution witnesses is that none of them have deposed the
exact statement said to have been made by the appellant herein which
ultimately led to the discovery of a fact relevant under Section 27 of the
Evidence Act.
84. If, it is say of the investigating officer that the accused appellant
while in custody on his own free will and volition made a statement that he
would lead to the place where he had hidden the weapon of offence, the
site of burial of the dead body, clothes etc., then the first thing that
the investigating officer should have done was to call for two independent
witnesses at the police station itself. Once the two independent witnesses
arrive at the police station thereafter in their presence the accused should
be asked to make an appropriate statement as he may desire in regard to
pointing out the place where he is said to have hidden the weapon of offence
etc. When the accused while in custody makes such statement before the two
independent witnesses (panchwitnesses) the exact statement or rather the
exact words uttered by the accused should be incorporated in the first part
of the panchnama that the investigating officer may draw in accordance
with law. This first part of the panchnama for the purpose of Section 27 of
the Evidence Act is always drawn at the police station in the presence of
the independent witnesses so as to lend credence that a particular
statement was made by the accused expressing his willingness on his own
free will and volition to point out the place where the weapon of offence or
any other article used in the commission of the offence had been hidden.
 Once the first part of the panchnama is completed thereafter the police party
along with the accused and the two independent witnesses (panch witnesses)
would proceed to the particular place as may be led by the accused. If from
that particular place anything like the weapon of offence or blood stained
clothes or any other article is discovered then that part of the entire
process would form the second part of the panchnama. This is how the law
expects the investigating officer to draw the discovery panchnama as
contemplated under Section 27 of the Evidence Act. If we read the entire oral
evidence of the investigating officer then it is clear that the same is deficient
in all the aforesaid relevant aspects of the matter.”

2. Can conviction be based merely on in the absence of any forensic evidence.

Forensic Evidence very important circumstantial evidence which help the court to reach the
decision of conviction on report of D.N.A , its absence lead to doubt in prosecution story no
conviction can be done on the bases reasonable doubt.
In Case Of Indrajit Das Vs The state of Tripura

3. Can conviction be based merely on absence of recovery of dead body?

In the present case is of absence corpus delicti cannot be accused is convicted and if

convicted and subsequently the corpus appears as alive, someone may have

been convicted and sentenced and suffered incarceration for no crime

committed by him.

In case Indrajit Das V. The State Of Tripura, AIR 2023,SC held

“……..As such the entire case of the prosecution proceeds on presumption that Kaushik
Sarkar has died. The principle of corpus delicti has judgments on both sides stating that
conviction can be recorded in the absence of the recovery of the corpus and the other view
that no conviction could be recorded in the absence of recovery of the corpus. The later view
is for the reason that if subsequently the corpus appears as alive, someone may have been
convicted and sentenced and suffered incarceration for no crime committed by him. We are
not going into the law on the point. However, we have just recorded this fact and it may have
some relevance or bearing while considering the other links of the chain of circumstances.”