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10. Learned counsel for the appellant also contends that the recovery of the part of the weapon of offence is highly unreliable and not beyond suspicion for two reasons: firstly, for the reason that the recovery has been made from an open area and visible with naked eye and secondly, as the testimonies of three witnesses to the recovery are full of contradictions, as PW-10 has testified that there was a chowkidar inside the kabristan while PW-27 has deposed that no chowkidar was present at the kabristan. With regard to the height of the wall which was scaled, PW-10 has stated that the height of the wall was 7 or 7½ ft., while PW-21 has testified that the height of the wall was 5 or 5½ ft., whereas PW-27 goes on to testify that the height of the wall was 4 or 4½ ft.

13. In support of the submission that the recovery was hit by Section 27 of the Indian Evidence Act, reliance is placed on the Headnote of Shiv Narayan & Anr v. State (NCT of Delhi), 2002 (61) DRJ 734 (DB). The relevant Headnote reads as under:

"Section 27 - Recovery of articles and weapon of offence -

Knife - Recovery of at the instance of accused - No public witness - Recovery of knife from open space visible to naked eyes - Not hidden - Murder took place 4.1.1996 - Knife recovered on 23.1.1996 - Open and accessible to others - Admissibility of evidence of accused - Held, weapon was ordinarily visible and not concealed rather lying on ground accessible to all - Recovery is hit by section 27 - Accused statement in admissible in evidence - Conviction and sentence set-aside - Appeal allowed."

16. Learned APP for the State also submits that darati, i.e. the weapon of offence, was recovered at the instance of the appellant in the presence of Rahul Tyagi (PW-10), SI Anish Sharma (PW-21) and Insp. Ranbir Singh Khatri (IO) (PW-27). He submits that the recovery was not made from an open space, as the kabristan was gated and once the gate has been affixed, it cannot be termed as an open space. He further submitted that the same was hidden in the roots of a tree and thus not visible to the naked eye. The contradictions with regard to the height of the wall do not go to the root of the matter and would not make the recoveries doubtful. It is contended that the blood stained clothes were also recovered and even though, the FSL could not ascertain the blood group, still it found human blood.

"19. As regard the recovery of knife at the instance of accused persons admittedly knife was recovered from an open plot adjacent to the factories. The knife was not buried or concealed under the earth or inside the bushes. Nor it was kept hidden under the wall. The alleged incriminating article as per the prosecution's version was found lying in the open on the ground near the wall on an open plot visible to naked eyes. As per Insp. Kali Ram Malik PW-30 there were lights in that plot and even at night time they could see the knife. The knife was visible because of lights. Therefore, the recovery of the alleged knife from an open space visible to naked eyes not hidden anywhere cannot be said to be a recovery admissible under Section 27 of the Evidence Act. What is admissible under Section 27 of the Evidence Act is not merely knowledge of the accused regarding the place of concealment of the material object but the fact that the accused himself had concealed it there to the exclusion of the knowledge of others. What is not covered cannot be discovered. The weapon found in open space near the wall not hidden in that circumstance the statement of the accused cannot said to distinctly lead to discovery of that weapon. In fact the murder in this case took place between 1st January, 1996 to the to the morning of 4th January, 1996 because the dead body was recovered on 4th January, 1996 at 9.40 AM whereas the weapon of offence was recovered on 23rd January, 1996 from an open space. In such circumstance the recovery of knife from an open space visible to naked eyes from open space accessible to all and made after almost 23 days of the occurrence cannot be of any avail to the prosecution. Moreover, at the time of alleged recovery Insp. Kali Ram Malik PW-30 did not associate any independent witness though according to him there were number people collected at the time of recovery of the knife. It is a settled proposition of law that on the information furnished by the accused to the police officers which led to the recovery of the weapon is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence reliable. Admittedly there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is "open or accessible to others".