S.27 Evidence Act | Panch Witness Turning Hostile Not Fatal If Recovery Proved By Other Evidence: Supreme Court

The Supreme Court recently upheld the murder conviction, noting that mere turning hostile of the panch witness would not be fatal to the prosecution's case to create doubt over the recovery evidence based on the accused's disclosure statements under Section 27 of the Evidence Act when the recovery evidence was proved otherwise by other corroborative evidence.

A bench of Justice Pankaj Mithal and Justice Prasanna B. Varale affirmed the concurrent findings of the Madhya Pradesh High Court and Sessions Court, which had convicted the Appellant for an offence of murder, after finding that the alleged recovery based on the disclosure statements of the accused was sufficiently proved by the Investigating officer's testimony alone, despite the panch witnesses turning hostile.

“Though an attempt is made by the learned counsel for the appellant to submit before this Court that the recovery at the instance of the present appellant is not proved because the panch witnesses to the recovery panchnama turned hostile. We are unable to accept this submission of the learned counsel for the simple reason that this Court had consistently taken a view that merely on account of the panch witnesses turning hostile cannot be a ground to discard this important piece of evidence, if the recovery is proved through the investigating officer.”, the court observed.

The prosecution's case was that the Appellant, along with other persons, had entered the house of the deceased, armed with country-made pistols, cartridges, and guptis (a sharp weapon). They allegedly administered calmpose injections to the victims before causing their deaths by inflicting multiple injuries.

The seizure of various articles found on the scene of offence such as blood-stained clothes, bedsheet and empty phials of calmpose injections from the toilet seats was made and these articles were sealed. The post mortem report revealed the cause of death is excessive haemorrhage due to injuries caused by the sharp object/weapon. Further, the report also traced the remains of calmpose injection in the body.

Aggrieved by the Sessions Court and High Court decision to convict the Appellant, led to the filing of a criminal appeal before the Supreme Court.

Before the Supreme Court, the appellant contended that since the panch witnesses turned hostile, the recovery was made based on the disclosure statements of the Appellant, despite being duly corroborated by the investigating officer, would not be enough to sustain the conviction.

Rejecting the Appellant's contention, the judgment authored by Justice Varale sustained the conviction, noting that recovery would not be vitiated merely because the panch witnesses have turned hostile. [See Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111]

“This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone.”, the court observed in Rameshbhai Mohanbhai Koli (supra).

Reliance was placed on Mallikarjun v. State of Karnataka, (2019) 8 SCC 359, where the Court observed:

“There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile…..”

In view of the aforesaid, the appeal was dismissed.

Headnote

Criminal Procedure – Evidence Act, 1872 – Section 27 – Recovery of Incriminating Articles – Hostile Panch/Seizure Witnesses – Value of Investigating Officer's Testimony - Appeal against the dismissal of a criminal appeal by the Madhya Pradesh High Court, which upheld the Trial Court's order convicting the appellant under Section 302 read with Section 149 of the IPC for the murder of four family members - The appellant challenged the conviction, arguing inter alia that the recovery of the incriminating articles (empty phials of Calmpose injection, clothes, and rope) under Section 27 of the Evidence Act was unreliable because the independent panch/seizure witnesses turned hostile – Held that dismissing the appeal, the Supreme Court ruled that it is a well-settled principle of law that a recovery under Section 27 of the Evidence Act cannot be discarded or vitiated merely because the panch witnesses turned hostile, provided that the recovery is otherwise convincingly proved through the testimony of the Investigating Officer - The prosecution successfully proved the recovery at the instance of the appellant through the credible testimony of the Investigating Officer (PW 24), which was further corroborated by the postmortem and viscera reports showing traces of "Diazepham" (Calmpose).

Faulty Investigation – Impact on Prosecution Case - Supreme Court further observed that while the investigating agency was expected to act with greater sensitivity given that it was a case of multiple murders, a faulty or sub-standard investigation cannot be a sole ground to discard other reliable, substantial material evidence brought on record by the prosecution - The concurrent findings of the Trial Court and the High Court were based on a proper appreciation of circumstantial evidence and called for no interference. [Relied on Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111; Modan Singh v. State of Rajasthan, (1978) 4 SCC 435; Anter Singh v. State of Rajasthan, (2004) 10 SCC 657; Mallikarjun v. State of Karnataka, (2019) 8 SCC 359; Paras 12-20]

Cause Title: UPERNDRA KHARE VERSUS THE STATE OF MADHYA PRADESH

Citation : 2026 LiveLaw (SC) 607

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Appearance:

For Appellant(s) Mr. Amit Singh, Adv. (argued by) Mr. Merusagar Samantaray, AOR

For Respondent(s) Mr. Bhupenra Pratap Singh, D.A.G. (argued by) Ms. Mrinal Gopal Elker, AOR Mr. Raghvendra Shukla, Adv. Mr. Nakul Nirwan, Adv. Mr. Rishabh Singh, Adv. Ms. Chhavi Khandelwal, Adv.