If independent witnesses are available and the police does not make them witnesses then the evidence of recovery of the weapon at the instance of the accused cannot be accepted as reliable.

Section 27 of the Indian Evidence Act 1872 provides that if any discovery of fact (recovery of weapon or other evidence ) is made allegedly on the basis of information received from an accused who is in the custody of police then only such information that relates distinctly to the fact/evidence thereby discovered, may be proved and is relevant and any other statement of the accused allegedly made to the police officials would not be relevant.

Further if during the process of recovery of the weapon / evidence (or discovery of fact) independent witnesses were available and police / prosecution fail to make witnesses, then the recovery of the weapon/evidence (or discovery of fact) at the instance of the accused cannot be accepted as reliable. The Supreme Court has dealt with a similar issue in the case titled KRISHAN VERSUS STATE OF HARYANA (CRIMINAL APPEAL No. 2351 / 2011) .

The relevant paragraphs of the aforesaid judgment have been reproduced below:

“8. More than one factor renders the prosecution theory regarding recovery very suspicious and

doubtful. The first factor is that the recovery was allegedly made one month and four days after the

occurrence. Secondly, the recovery was made from open space in a garden. Thus, the place was easily

accessible to many. Thirdly, neither PW-15 nor PW-20 have stated that the weapon and cartridges were

buried underground and were recovered only after digging. Lastly, though independent witnesses were

available, they were not made witnesses to the Panchnama made pursuant to the alleged statement

made by the appellant. As the recovery of the weapon at the appellant’s instance cannot be believed, the decisions relied upon by the learned counsel for the respondent are not significant at all. She relied upon the decisions which hold that in certain cases, a conviction can be based on the recovery of the weapon of offence at the instance of the accused.

11. For all the aforesaid reasons, the evidence of recovery of the weapon at the instance of the appellant cannot be accepted as reliable. Moreover, the findings we have recorded above create a serious doubt about the truthfulness of the prosecution case. Therefore, in any case, the benefit of the doubt must be extended to the appellant. It can also be said that once the evidence of recovery is disbelieved, it was a case of no evidence as the eyewitnesses did not support the prosecution.”