Can’t Discard Evidence Merely On Account Of Panch Witnesses Turning Hostile If Recovery Is Proved Through Investigating Officer: Supreme Court
The Supreme Court was considering an appeal directed against the final judgment of the Madhya Pradesh High Court.
Justice Pankaj Mithal, Justice Prasanna B. Varale, Supreme Court
While upholding the conviction of a convict in a case of the murder of four members of one family, the Supreme Court has reiterated that merely on account of the panch witnesses turning hostile cannot be a ground to discard an important piece of evidence, if the recovery is proved through the Investigating Officer.
The Apex Court was considering an appeal directed against the final judgment of the Madhya Pradesh High Court in a Criminal Appeal, upholding the conviction of the accused appellant.
The Division Bench of Justice Pankaj Mithal and Justice Prasanna B. Varale held, “Scene of the offence panchnama show that the syringes were found near the toilet seats. 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. On the backdrop of this fact, perusal of the record shows that the recovery at the instance of the present appellant is proved through the testimony of the investigating officer Arun Singh/PW 24.”
AOR Merusagar Samantaray represented the Appellant, while AOR Mrinal Gopal Elker represented the Respondent.
Factual Background
The case dates back to the year 2002, when information was received by the informant that he could not reach his cousin brother, Rajesh Shukla. Upon visiting his brother’s house, the informant discovered Rajesh Shukla, his wife Madhu Shukla, his son Prabhanshu Shukla and his sister Vinita Shukla lying dead with injuries on their bodies (deceased persons). An FIR was registered under Section 302 of the Indian Penal Code, 1860 (IPC). On lodgement of the FIR, the criminal machinery was set into motion, and the investigating agency proceeded to collect the evidence. In the process of investigation, it was further revealed that the accused Devendra Singh, neighbour of the deceased, had an evil eye on the deceased’s sister, Vinita, who was also found dead.
In the investigation, it was revealed that the accused persons, namely Devendra Singh, Upendra Khare, Gyanchand @ Chunni, Neeraj Kumar, Babua @ Abhishek Singh, all together entered the house of the deceased armed with a country-made pistol, cartridges etc. Initially, the accused persons administered calmpose injections to the deceased and caused their death by causing injuries to them. The arrest of the accused persons was effected by drawing an arrest panchnama. The Trial Court convicted the appellant under Section 302 IPC on four counts as there were four deceased persons read with Section 149 IPC, and sentenced him to life imprisonment. The Trial Court, however, acquitted the appellant under Sections 382 and 404 read with Section 149 IPC, giving the benefit of doubt. The Madhya Pradesh High Court sustained the conviction. Aggrieved thereby, the appellant approached the Apex Court.
Reasoning
The Bench took note of the fact that the case of the prosecution was resting on circumstantial evidence. The Bench noted that it was the case of the prosecution that the accused Devendra Singh was having an evil eye over the deceased Vinita. The appellant, Upendra Khare, used to be in the company of the accused Devendra.
The Bench noted that an article and the clothes worn by him, as well as a rope, were recovered at the instance of the appellant. The Bench also found that, as per the postmortem report, the cause of death was shock due to external and internal injuries to the vital parts, and excessive blood loss, which had caused the death of the deceased person within 24 to 36 hours.
Considering the fact that the recovery at the instance of the appellant was proved through the testimony of the investigating officer, the Bench reiterated the settled principle that recovery is not vitiated merely because the panch witnesses have turned hostile.
Throwing light on the fact that the investigation in the present matter was not up to the mark, and it was expected of the investigating agency to conduct the investigation with more sensitivity as it was the case of four persons losing their lives, the Bench stated, “But merely the fact that the investigation was not up to the mark cannot be the reason for this Court to discard the other material evidence brought by the prosecution in support of its case, particularly, the evidence against the present appellant in the form of recovery of the phial of the injection at the instance of the present appellant supported by the postmortem report duly proved by substantial evidence of Dr. B.L. Gupta.”
Finding that the judgment of the Trial Court holding the appellant guilty and awarding the sentence as upheld and maintained by the High Court was based on a just and proper appreciation of evidence, the Bench dismissed the appeal.
Cause Title: Uperndra Khare v. The State of Madhya Pradesh (Case No.: Criminal Appeal 1937 of 2013)
Appearance
Appellant: AOR Merusagar Samantaray
Respondent: AOR Mrinal Gopal Elker, Advocate Silpi S Swain