Recovery Under Section 27 Evidence Act Vitiated If Police Already Present At Spot Before Arrival Of Panch Witnesses: Bombay High Court

"If the police and the photographer were already present at the spot, before the panch witness reaches there, the entire process of the recovery to a large extent becomes questionable. The testimony of this witness, therefore cannot be relied upon or accepted," Bombay High Court, in a significant judgment, has held that a discovery made under Section 27 of the Indian Evidence Act is rendered doubtful and legally unsustainable if the police are already present at the spot before the arrival of the panch witnesses.

A bench comprising Justice A. S. Gadkari and Justice Ranjitsinha Raja Bhonsale observed that such a scenario "hits the very foundation of the prosecution case" and vitiates the recovery of incriminating material, including the body of a deceased person.

The case involved the kidnapping and murder of a nine-year-old boy in Pune. The prosecution alleged that the Appellant (Accused No. 2), along with his family members, kidnapped the child, attempted sexual assault, and subsequently murdered him, disposing of the body in Bopdeo Ghat. The Trial Court had convicted the Appellant under Sections 302 and 363 of the IPC based on circumstantial evidence, while acquitting him of charges under Section 377 and the POCSO Act.

The primary question before the court was whether the prosecution had established a complete and unbroken chain of circumstantial evidence to sustain the conviction. Specifically, the court was called upon to determine if the recovery of the deceased's body at the instance of the accused was validly proved under Section 27 of the Evidence Act, given that the police reached the spot before the independent witnesses.

Standard Of Proof In Circumstantial Evidence Cases

The court began by emphasizing the "Panchsheel" or the five golden principles governing cases based on circumstantial evidence. It noted that in such trials, the possibility of conviction being based on surmises or conjectures is a "lurking possibility" that must be guarded against. Referring to the landmark Sharad Birdhichand Sarda case, the bench reiterated that the prosecution must stand on its own legs and every link in the chain must be cogently established.

Police Presence At Discovery Spot Vitiates Recovery

The bench scrutinized the testimony of PW-3, the panch witness who was present during the recovery of the victim's body from Bopdeo Ghat. During cross-examination, the witness admitted that when he reached the spot, the police and a photographer were already present there. The court found this admission fatal to the prosecution's claim of a valid discovery at the instance of the accused.

"This part of the evidence is crucial and hits the very foundation of the prosecution case and questions the very recovery of the body of the deceased. If the police and the photographer were already present at the spot, before the panch witness reaches there, the entire process of the recovery to a large extent becomes questionable."

Absence Of Motive Weakens Circumstantial Chain

The court observed that while motive may not be relevant in cases of direct evidence, it plays a "crucial connecting link" in cases dependent on circumstantial evidence. In the present case, the court found the alleged motive—a dispute over a torn rickshaw roof—to be based on mere suspicion and hearsay. The bench noted that the prosecution failed to attribute any specific or concrete motive to the Appellant.

"The absence of motive, in a case which depends on circumstantial evidence, is more favorable to the accused. In our opinion, the very fact that motive is absent or not proved, is one which would lean in favour of the accused."

Failure To Produce CCTV Footage Leads To Adverse Inference

The bench also took exception to the non-production of CCTV footage that could have tracked the movement of the auto-rickshaw allegedly used to transport the body. Although the Investigating Officer (PW-9) admitted in her testimony that scientific assistance was sought, the relevant footage was not brought on record. The court held that the movement of the rickshaw was not proved, warranting an adverse inference against the prosecution.

"The CCTV footage though available was not brought by the investigating officer on record, therefore the movement of the rickshaw is not proved. The said non-production of the CCTV footage, could possibly lead to drawing an adverse inference against the prosecution."

Inconsistencies In Witness Testimony Regarding Building Layout

The court further identified material variances in the testimony of PW-1 and PW-4 regarding the layout of the building and the location of windows. While PW-4 claimed to have seen the accused pushing a rickshaw from her kitchen window at 4:30 AM, her description of the building layout was materially different from that of PW-1. This variance "demolishes the circumstance" that the witness could have actually seen the act.

"Considering the contradiction in the dispositions of the witnesses, it becomes doubtful as to whether the PW No.4 even witnessed the Accused No.1 and the Appellant pushing the rickshaw. This circumstance in fact becomes doubtful."

The High Court concluded that the circumstances from which the conclusion of guilt was sought to be drawn were not fully established and the chain of evidence remained incomplete. Holding that the evidence created significant doubt, the bench extended the benefit of doubt to the Appellant. The court quashed the conviction and ordered the immediate release of the Appellant.

Date of Decision: 09 June 2026