Pranav B Prem

The Kerala High Court has clarified that when there are multiple accused in a criminal case, the information leading to discovery received from one accused cannot be used to connect all accused persons to the alleged offence. Justice P.V. Balakrishnan, while allowing a criminal revision petition, observed that it is impossible to believe that all the accused spoke simultaneously and in one voice when giving information that allegedly led to the discovery of incriminating materials.

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Background of the Case

The revision petitioner, Selvan, was the second accused in a case registered under Sections 457 and 380 read with Section 34 of the Indian Penal Code (IPC), alleging that three accused broke into a Kerala State Beverages Corporation outlet at Menonpara and stole 52.75 litres of Indian Made Foreign Liquor valued at ₹24,515. The Judicial First Class Magistrate Court, Chittur, convicted the second and third accused, sentencing them to three years of simple imprisonment and a fine of ₹1,000 each. The conviction was upheld by the Additional Sessions Court-IV, Palakkad, in appeal. Aggrieved, the petitioner approached the High Court in revision.

Prosecution’s Case and Evidence

The prosecution relied heavily on a recovery of liquor bottles allegedly made on the basis of Exhibit P7(a), which contained a confessional statement attributed to all three accused. The investigating officer, PW4, deposed that the recovery of 83 bottles of Indian Made Foreign Liquor was made based on the said confession. However, the Court noted that PW4 had not recorded or deposed the exact information received from each accused. The evidence given by him also did not tally with the content of Exhibit P7(a).

Referring to the Supreme Court’s ruling in Bodh Raj v. State of Jammu & Kashmir (AIR 2002 SC 3164), Justice Balakrishnan held that when relying on a recovery made under Section 27 of the Indian Evidence Act, the prosecution is duty-bound to prove the exact information received from the accused which led to such discovery. The Court further observed that the investigating officer must record or depose the precise words used by each accused to establish which accused gave the information that led to the recovery.

Court’s Observations

The Bench held that in the present case, it was impossible to believe that all three accused gave the same information together and in identical words. Justice Balakrishnan remarked: “It is quite impossible to believe that all these accused have spoken simultaneously and in one voice.” Relying on the precedent in Mohd. Abdul Hafeez v. State of A.P. (1983 KHC 413), the Court reiterated that:“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.”

Recovery Alone Insufficient for Conviction

The Court noted that the petitioner’s conviction was based solely on the recovery evidence without any eyewitness testimony linking him to the theft. It referred to a series of judicial precedents, including Manoj Kumar Soni v. State of M.P. [2023 SCC OnLine SC 984], Varkey C.V. v. State of Kerala [2024 KHC 7096], and Abdul Jabbar v. State of Kerala [2025 KHC OnLine 901], to reaffirm that recovery under Section 27 cannot, by itself, form the sole basis for conviction and must be corroborated by other evidence. Justice Balakrishnan emphasized that a disclosure statement is not a substantive piece of evidence and, without supporting material, cannot establish guilt beyond reasonable doubt.

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Finding that the conviction was founded solely on an unreliable recovery and that the prosecution had failed to record or prove the exact information provided by each accused, the High Court held that the conviction was unsustainable. Accordingly, the Court set aside the conviction and sentence imposed on the petitioner under Sections 457 and 380 read with 34 IPC, and directed that he be set at liberty.

Appearance

Counsel for the petitioner: Sangeeth, Saijo Hassan, Benoj C. Augustin, U.M. Hassan, P. Parvathy, Rafeek V.K., Vishnu Bhuvanendran

Counsel for the respondent: U. Jayakrishnan – Public Prosecutor

Cause Title: Selvan v. State of Kerala

Neutral Citation :2025:KER:74410

Case No: Crl.Rev.Pet. No. 1438 of 2017

Coram: Justice P.V. Balakrishnan