Hostile Panch Witnesses Cannot Vitiate Recovery Proved by Investigating Officer, Supreme Court Holds

A bench of Justices Pankaj Mithal and Prasanna B. Varale dismisses a murder appeal, holding that recovery evidence stands when proved through the investigating officer alone.

The Supreme Court on 25 May 2026 dismissed the criminal appeal of Upendra Khare, who had been convicted under Section 302 of the Indian Penal Code, 1860 for the murder of four members of the Shukla family in Satna, Madhya Pradesh in July 2002. The Court, comprising Justices Pankaj Mithal and Prasanna B. Varale, upheld concurrent findings of the First Additional Sessions Judge, Satna and the Division Bench of the High Court of Madhya Pradesh. The central question was whether the prosecution's case, built entirely on circumstantial evidence, could survive when the independent witnesses to the recovery panchnama had turned hostile. The Court held that it could, provided the recovery was proved through the testimony of the investigating officer.

The Quadruple Murder and the Path to the Supreme Court

On the morning of 20 July 2002, one Anupam Shukla informed the City Kotwali police station at Satna that he had been unable to contact his cousin Rajesh Shukla since 18 July 2002. On visiting Rajesh Shukla's house, Anupam found the back door open and discovered four members of the family — Rajesh Shukla, his wife Madhu Shukla, his son Prabhanshu Shukla, and his sister Vinita Shukla — lying dead with injuries on their bodies. FIR Case No. 515/2002 was registered under Section 302 IPC.

The postmortem report, proved by Dr. B.L. Gupta (PW-17), recorded multiple penetrative wounds on the bodies and concluded that death was caused by shock due to external and internal injuries on vital parts and excessive blood loss, occurring within 24 to 36 hours. The viscera report, Exhibit P-52, confirmed the presence of diazepam in the samples, consistent with the prosecution's case that the accused had first administered calmpose injections to incapacitate the victims before attacking them with sharp weapons. Empty phials of calmpose injections were found near the toilet seats at the scene.

Investigation revealed that accused Devendra Singh, a neighbour, had an obsession with deceased Vinita and had been seen throwing liquor bottles at her door. Upendra Khare was found to have been regularly in Devendra Singh's company. The prosecution alleged that five accused persons, including Devendra Singh and Upendra Khare, entered the house together on 18 July 2002, armed with a country-made pistol, cartridges, and a gupti. Jewellery belonging to the deceased was also found to have been stolen, leading to the addition of offences under Sections 382 and 404 IPC.

Upendra Khare was arrested on 21 September 2002, approximately two months after the incident. At his instance, the investigating officer recovered empty phials of calmpose injection, clothes worn by him, and a cotton rope. Sessions Case No. 405/2002 was committed to the Sessions Court on 19 December 2002. The Trial Court convicted Khare on 15 October 2007 under Section 302 read with Section 149 IPC on four counts, sentencing him to life imprisonment with a fine of Rs. 1,000/- and, in default, rigorous imprisonment for one year. He was acquitted under Sections 382 and 404 IPC. The High Court dismissed his appeal on 21 June 2012, clarifying that the sentences on all four counts would run concurrently. Khare then approached the Supreme Court in Criminal Appeal No. 1937 of 2013.

Arguments Before the Supreme Court

Counsel for the appellant, Mr. Amit Singh, raised several challenges. First, he argued that the chain of circumstantial evidence was incomplete and did not establish guilt beyond reasonable doubt, particularly since the lower courts themselves had acknowledged that the investigation was faulty. Second, he contended that no motive was attributable to Khare personally; the alleged motive — Devendra Singh's obsession with Vinita — belonged to a co-accused. Third, no stolen property or weapon of offence was recovered from Khare, which, counsel argued, showed he shared no common object with the other accused.

On the recovery evidence, counsel pointed to three specific infirmities: both independent witnesses named in the property seizure memo had turned hostile; the recovery was made two months after the offence, which was highly improbable; and the recovery was allegedly procured through force, with the record showing that a co-accused had suffered a fractured leg in police custody. Counsel argued that the recoveries were inadmissible under Section 27 of the Indian Evidence Act, 1872, and relied on this Court's judgment in Prabhu v. State of U.P. (Criminal Appeal No. 50 of 1962) as well as Boby v. State of Kerala and Ashish Batham v. State of Madhya Pradesh.

Counsel also attacked the specific items recovered. The FSL report, Exhibit P-42, had examined only the phials found at the crime scene, not those recovered from Khare, and those crime-scene phials had not tested positive for diazepam. The blood-like stains on the recovered clothes could not be confirmed as human blood, let alone matched to any deceased. The High Court itself had recorded that the blood-stained clothes could not be used against Khare because they were not put to him in his statement under Section 313 of the Code of Criminal Procedure. The rope recovered from him found no corroboration in the postmortem reports, none of which recorded strangulation or marks on the necks of the deceased.

Finally, counsel argued that conviction under Section 302 read with Section 149 IPC was legally unsustainable because fewer than five persons had ultimately been convicted, failing to constitute an “unlawful assembly” as required by law. In the alternative, counsel submitted that Khare had already served a substantial period of incarceration without any criminal antecedents and sought reduction of sentence to the period already undergone.

For the State, Mr. Bhupendra Pratap Singh, Deputy Advocate General, argued that the prosecution had placed overwhelming circumstantial evidence on record, accepted by both courts below. He relied on the Full Bench judgment in Goverdhan & Anr. v. State of Chhattisgarh for the proposition that hostile panch witnesses do not by themselves prove that no seizure was effected, particularly when the investigating officer had proved the seizure memos.

The Court's Reasoning on Recovery Evidence

The Court identified the recovery of articles at the instance of Upendra Khare as the most important piece of evidence against him. The prosecution's case was that the accused group had first administered calmpose injections to the four victims and then attacked them with sharp weapons. The postmortem evidence, proved by Dr. B.L. Gupta, confirmed death by shock from external and internal injuries and excessive blood loss. The viscera report confirmed the presence of diazepam. The syringes found near the toilet seats at the scene corroborated the injection theory. Against this backdrop, the recovery of empty calmpose phials at Khare's instance directly connected him to the method of killing.

On the hostile panch witnesses, the Court declined to accept the appellant's submission. It held that the recovery at Khare's instance was proved through the testimony of Investigating Officer Arun Singh (PW-24), and that the settled principle of law was that recovery is not vitiated merely because panch witnesses turn hostile, provided the investigating officer's evidence is convincing and not shown to suffer from any infirmity.

The Court quoted from its earlier decision in Rameshbhai Mohanbhai Koli v. State of Gujarat, which had itself reiterated the position from Modan Singh v. State of Rajasthan, Mohd. Aslam v. State of Maharashtra, and Anter Singh v. State of Rajasthan: “even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.” The Court also referred to Mallikarjun v. State of Karnataka, which had reiterated that the investigating officer's evidence can be relied upon to prove recovery even when panch witnesses turn hostile.

The Court acknowledged that the investigation was not up to the mark and that a more sensitive investigation was expected in a case involving four deaths. However, it held that an imperfect investigation is not a ground to discard other material evidence that the prosecution has brought on record. The recovery of the calmpose phials at Khare's instance, supported by the postmortem report and Dr. Gupta's testimony, was sufficient to connect him to the crime.

The Acquittal on Theft Charges and the Section 149 Question

The Court noted that the Trial Court had acquitted Khare under Sections 382 and 404 IPC by assigning justifiable reasons on appreciation of evidence, and found it unnecessary to revisit that aspect. The Court did not separately address the appellant's argument that fewer than five convictions rendered the Section 149 IPC charge legally unsustainable, nor did it address the alternative prayer for reduction of sentence to the period already undergone. The Court found the judgments of both courts below to be based on just and proper appreciation of evidence and saw no reason to interfere.

Outcome

Criminal Appeal No. 1937 of 2013 was dismissed. The conviction of Upendra Khare under Section 302 read with Section 149 IPC on four counts, and the sentence of life imprisonment with a fine of Rs. 1,000/- (with rigorous imprisonment of one year in default), as upheld by the High Court of Madhya Pradesh, stands. The High Court's direction that the sentences on all four counts run concurrently also stands.