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Section 27 Of Evidence Act Is Attracted Even If Accused Isn’t Arrested But Only Interrogated By Police: Allahabad High Court

Aditi Rai ,
  30 November 2022       Share Bookmark

Court :
High Court of Allahabad
Brief :

Citation :
CRIMINAL APPEAL NO. 3333 of 1984

Vidya Devi v. State of UP

24 November 2022

Mayank Kumar Jain, J.
Arvind Kumar Mishra, J.

Appellant-Vidya Devi
Respondent- State of UP


The Hon’ble High Court of Allahabad in the present case dealt with the evidences that fall within the purview of section 27 of Evidence Act and what exactly would constitute ’custody’ for the purposes of this section. The court also touched upon the nature of circumstantial evidences and under what circumstances can such evidences form the sole basis of conviction.



  • section 27- provides that if any fact is discovered pursuant to any information furnished by the accused in the custody of the police, such part of the confession as relates distinctly to the fact so discovered can be proved.
  • section 106- when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him.


  • The appellant, along with her son and husband (who died during the pendency of the appeal), was accused of murdering her daughter-in-law Asha Devi.
  • It was submitted by the deceased’s father that she was ill-treated in her matrimonial home on account of dowry demands.
  • The deceased’s in laws had argued that she was mentally ill. They also made an attempt to get the deceased’s husband married to her sister, a demand which was refused by the complainant.
  • One day, the complainant learnt about the report of his daughter missing.On an investigation of the same, the appellant had confessed to killing the deceased in collusion with her husband and son.
  • It was on the basis of the information furnished by the appellant to the police that the dead body of the deceased was recovered from a nearby well.
  • On the basis of the findings, the trial Court sentenced the accused persons undergo to life imprisonment under section 302/34 IPC and rigorous imprisonment of 3 years along with fine of Rs. 2000.
  • It is against this judgement, that an appeal was preferred before the present court.


  • It was contended by the learned counsel of the appellant that the information relating to the discovery of the body of the deceased, as furnished by the appellant during the course of investigation, can not be considered to be the information as provided under section 27.
  • The learned counsel based his contention on the ground that the appellant had not been taken into custody when the alleged statements were made by her.


  • That there exist sufficient evidence to show that the accused persons had a motive to kill the deceased.
  • The confession made by Vidya Devi further corroborates the offence alleged to have been committed.


  • The Court noted that the case of the prosecution rested solely on circumstantial evidence.
  • The Hon’ble Court went on to cite a myriad of judgements highlighting the settled laws on the matter in dispute.
  • A reference was made to the decision of the Apex Court in Md. Younus Ali Tarafdar v. State of West Bengal[AIR 2020 SC 1057]; Pattu Rajan v. State of Tamil Nadu [(2019) 4 SCC 771], wherein the nature of circumstantial evidence was observed.
  • The Hon’ble Court also highlighted the five golden principle, referred by the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra[(1984) 4 SCC 116] ‘as the panchsheel of the proof of a case based on circumstantial evidence.’ They are-
  1. the circumstances from which the conclusion is drawn must be fully established.
  2. the facts so established should be consistent only with the hypothesis of the guilt of the accused
  3. the circumstances should be of a conclusive nature and tendency
  4. they should exclude every possible hypothesis except the one to be proved
  5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused
  • The Court observed that the present case was based on following circumstances:-
  1. Motive- The appellants had a motive to kill Asha Devi as they were unhappy with her and wanted to get her husband re married.
  2. Causing Disappearance of Evidence by the accused- One of the villagers claimed that he saw the accused persons heading towards the drainage from where the body if the deceased was discovered. He also informed that one of the accused persons was carrying a gunny bag over his head.
  3. Recovery of the dead body on the basis of the information furnished by Vidya Devi- It was on the basis of information furnished by Vidya Devi that they killed the deceased, tied her body with a rope, put it in a gunny bag and threw it in a well nearby.

The investigating officer has proved the recovery memo of the dead body of the deceased.

While dealing with the contention advanced by the learned counsel for the appellant, the court made a reference to the case of Sangam Lal v. State of UP. The issue of what amounts to a custody was dealt with in this case and the following observations were made.

“ The law is, therefore, well settled that in order to attract section 27 of the Evidence Act, it is not necessary that the accused should have been under arrest and it is enough if he has come into the hands of a police officer or is under some sort of surveillance or restriction.”

4. Consistency of Medical Evidence- The medical report laid asphyxia caused due to strangulation as the reason of Asha Devi’s death. Thus, Vidya Devi’s confession that they strangulated the deceased stands corroborated by the medical results.

  • The Court further observed that since the death of the deceased occurred in the house of the appellant, a burden lies upon the appellant to explain the circumstances under which Asha Devi died.
  • The Court relied the above observation on the judgement of the Apex Court in the Sudru v. State of Chhattisgarh [(2019) 8 SCC 333]. The Apex Court held that once it is proved that the deceased and the accused were alone in a room and the next day the dead body of the deceased is found, the burden to explain as to what happened and as to how the death of the deceased occurred shifts on the accused. This burden is cast upon the accused u/s 106 of Evidence Act.


In light of the above observations, the Court concluded that all the circumstances clearly indicate that the accused with other co-accused persons committed the murder of Asha Devi.

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