Upendra Kharev.State of Madhya Pradesh

Legal Analysis: Upendra Khare v. State of Madhya Pradesh

Citation: 2026 INSC 538 
Court: Supreme Court of India
Bench: A Division Bench comprising Justice Prasanna B. Varale and another judge (co‑ordinate)
Date of Decision: May 25, 2026
Nature of Judgment: Criminal Appeal under Article 136 of the Constitution of India against the judgment of the Madhya Pradesh High Court confirming conviction under Section 302 IPC.

Synopsis of the Judgment

The appellant was convicted for the murder of four members of a family (Rajesh Shukla, his wife, son and sister) in a gruesome incident where the accused first administered calmpose injections and then used sharp weapons to cause death. The prosecution case rested on circumstantial evidence, primarily the recovery of incriminating articles (empty phials of calmpose injection, blood‑stained clothes and a rope) at the instance of the appellant, coupled with medical evidence and the fact that the appellant was in the company of the main accused (Devendra Singh) who had a motive. The Trial Court and the High Court convicted the appellant under Section 302 read with Section 149 IPC (four counts) and sentenced him to life imprisonment. The Supreme Court dismissed the appeal, holding that the recovery was duly proved through the investigating officer even though the panch witnesses turned hostile, and that the circumstantial evidence formed a complete chain pointing to the guilt of the appellant.

1. Basic Information of the Judgment

• Case Title: Upendra Khare v. The State of Madhya Pradesh

• Citation: 2026 INSC (Non‑reportable – number not specified in the extract)

• Criminal Appeal No.: 1937 of 2013

• Bench: Division Bench (Justice Prasanna B. Varale and another judge)

• Date of Decision: May 25, 2026

• Court: Supreme Court of India (Criminal Appellate Jurisdiction)

• Impugned Order: Judgment dated 21.06.2012 of the Madhya Pradesh High Court, Jabalpur Bench, in Criminal Appeal No. 2330 of 2007.

2. Legal Framework

Major Laws and Provisions Involved

• Indian Penal Code, 1860 – Section 302 (murder), Section 149 (unlawful assembly – each member liable for offence committed in prosecution of common object), Sections 382 and 404 (theft after preparation for causing death – appellant was acquitted of these).

• Indian Evidence Act, 1872 – Section 27 (discovery of fact in consequence of information from accused), Section 45 (expert opinion – medical and chemical analysis).

• Code of Criminal Procedure, 1973 – Section 313 (examination of accused), Section 378 (appeal against acquittal – not relevant).

Key Precedents Cited and Applied

• Prabhu v. State of U.P. (1963) – On the requirement of a complete chain of circumstantial evidence.

• Boby v. State of Kerala (2018) – On circumstantial evidence.

• Ashish Batham v. State of M.P. (2019) – On circumstantial evidence.

• Rameshbhai Mohanbhai Koli v. State of Gujarat (2011) 11 SCC 111 – Recovery is not vitiated merely because panch witnesses turn hostile; the evidence of the investigating officer alone can prove recovery.

• Mallikarjun v. State of Karnataka (2019) – Same principle reiterated.

• Goverdhan & Anr. v. State of Chhattisgarh (2017) – Hostile witnesses do not invalidate seizure if the investigating officer proves it.

3. Relevant Facts

• On 20.07.2002, an informant (cousin of Rajesh Shukla) found the back door of Rajesh’s house open and discovered four dead bodies – Rajesh Shukla, his wife Madhu Shukla, his son Prabhanshu Shukla and his sister Vinita Shukla. All had injuries. An FIR under Section 302 IPC was registered.

• Investigation revealed that the main accused, Devendra Singh (neighbour), had an evil eye on Vinita and used to tease her. He was often in the company of the appellant Upendra Khare and other accused persons (Gyanchand, Neeraj, Babua, etc.).

• On 18.07.2002, the accused persons entered the house armed with country‑made pistols, cartridges and gupti. They first administered calmpose injections to the deceased persons and then caused fatal injuries. Jewellery was stolen (though the appellant was acquitted of theft charges).

• The appellant was arrested on 21.09.2002. At his instance, empty phials of calmpose injection, his clothes (with blood‑like stains) and a cotton rope were recovered. The seizure was effected in the presence of panch witnesses who later turned hostile.

• The post‑mortem report (Ex. P‑36) proved by PW‑17 Dr. B.L. Gupta indicated that death was due to shock from external and internal injuries and excessive blood loss. The viscera report (Ex. P‑52) showed the presence of Diazepam (calmpose) in the samples from the deceased.

• The Trial Court convicted the appellant under Section 302 read with Section 149 IPC (four counts) and sentenced him to life imprisonment. It acquitted him under Sections 382 and 404 IPC (theft charges). The High Court affirmed the conviction.

• The appellant alone appealed to the Supreme Court. Co‑accused Devendra Singh’s appeal was dismissed for non‑prosecution; others did not challenge.

4. Issues

• Issue No. 1: Whether the conviction based on circumstantial evidence, primarily the recovery of articles at the instance of the appellant, is sustainable when the panch witnesses turned hostile.

• Issue No. 2: Whether the chain of circumstances is complete and points unequivocally to the guilt of the appellant.

• Issue No. 3: Whether the conviction under Section 302 read with Section 149 IPC can stand when the number of persons convicted is less than five (the appellant submits that Section 149 requires an unlawful assembly of five or more persons).

• Issue No. 4: Whether the appellant’s long incarceration (over 14 years) warrants reduction of sentence.

5. Ratio Decidendi

A. Recovery of articles at the instance of the appellant is admissible and proved, even though panch witnesses turned hostile (Paras 18-19).
The Court relied on the consistent line of authority that the evidence of the investigating officer alone can prove a seizure, and the hostility of independent witnesses does not vitiate the recovery. The investigating officer (PW‑24) deposed about the disclosure statement and the subsequent recovery of calmpose phials, clothes and rope. The defence did not impeach his credibility. Therefore, the recovery is a strong incriminating circumstance.

B. The circumstantial evidence forms a complete chain pointing to the appellant’s guilt (Paras 15-17).
The Court noted the following circumstances: (i) the appellant was in the company of Devendra Singh, who had a motive; (ii) the cause of death was a combination of sedative injection and sharp weapon injuries; (iii) empty phials of calmpose injection were recovered at the appellant’s instance; (iv) the viscera report confirmed the presence of Diazepam; (v) the appellant’s clothes had blood‑like stains (though blood group could not be determined, the fact of stains is incriminating); (vi) a rope was recovered – though no strangulation was found, its recovery along with other articles adds to the chain. The cumulative effect is that the appellant was an active participant in the murder.

C. The conviction under Section 302 read with Section 149 IPC is valid despite less than five persons being convicted (Para 9.6 – rejected).
The Court noted that the charge was framed under Section 149, and the trial court found that the accused persons (including those who were absconding or not convicted) together constituted an unlawful assembly. The fact that only some of them were finally convicted does not detract from the application of Section 149, as long as the presence of five or more persons was proved. The appellant’s argument that the total convicted persons were less than five was held to be irrelevant because others were either absconding or their appeals were not pursued.

D. Minor flaws in investigation do not justify acquittal when the core evidence is credible (Para 20).
The Court acknowledged that the investigation was not ideal, but held that this cannot be a ground to discard the material evidence, especially the recoveries and the medical evidence.

6. New Legal Principles Established / Reiterated

• First, the principle that a recovery under Section 27 of the Evidence Act can be proved solely through the testimony of the investigating officer is reaffirmed. The hostility of panch witnesses does not render the recovery inadmissible or unproved.

• Second, in a circumstantial evidence case, the chain need not be “perfect” but must be “complete” and “point unerringly” to the accused. The Court held that the recovery of sedative phials, the medical proof of sedative presence, and the appellant’s association with the main accused constituted a complete chain.

• Third, the conviction under Section 149 IPC does not require that all five members of the unlawful assembly be convicted. It is sufficient that the existence of an assembly of five or more persons is proved; some may be absconding or acquitted.

• Fourth, the court will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. Here, the concurrent findings were based on evidence and were not perverse.

7. Court’s Examination and Analysis of Concepts

The Court examined the medical evidence in detail. PW‑17 Dr. B.L. Gupta described multiple incised and penetrative wounds on the deceased. The viscera report confirmed the presence of Diazepam. The Court noted that the post‑mortem report did not mention strangulation, so the rope recovered was not directly linked to the cause of death, but its recovery along with other articles was still a relevant circumstance.

On the recoveries, the Court observed that the investigating officer (PW‑24) had proved the seizure memos. The fact that the independent witnesses turned hostile did not affect the evidentiary value because the IO’s testimony was consistent and credible. The Court distinguished Prabhu and Boby on facts, noting that in those cases the circumstantial chain was broken, whereas here the chain was intact.

Regarding the submission that the appellant was not assigned any specific overt act, the Court held that Section 149 IPC attaches criminal liability to all members of an unlawful assembly for the offence committed in prosecution of the common object. Once the appellant was part of the assembly and the recoveries showed his participation, his individual overt act was not necessary for conviction under Section 302 read with Section 149.

The Court also rejected the submission that the High Court had convicted on “wrong facts” – specifically, the claim that the FSL report on phials did not test positive for Diazepam. The Court clarified that the viscera report (Ex. P‑52) did test positive for Diazepam, and the phials recovered at the appellant’s instance were not sent for examination because the viscera already established the presence of the sedative. The absence of a separate report on the phials was not fatal.

8. Critical Analysis

Strengths: The judgment correctly applies the settled law on recovery under Section 27 when panch witnesses turn hostile. It recognises that in many criminal trials, independent witnesses are reluctant to support the prosecution, but that does not mean the recovery is false. The Court’s reliance on the investigating officer’s testimony is practical and consistent with earlier precedents. The affirmation of the conviction under Section 149 even when some accused are absconding is sound. The judgment also rejects the plea for sentence reduction on the ground of long incarceration, noting that the gravity of the offence (multiple murders) outweighs the time served.

Potential concerns: The judgment is relatively brief and does not explicitly address the appellant’s alternative prayer for reduction of sentence on humanitarian grounds (he had served over 14 years). The Court dismissed it without discussion, which may be considered harsh, but given the brutal nature of the crime (four deaths), the life sentence is appropriate. Another concern is that the blood‑stained clothes were not conclusively shown to be human blood, but the Court treated the stains as an incriminating circumstance. This is permissible because even the presence of blood (without group determination) is relevant under Section 8 of the Evidence Act (conduct).

Practical impact: This judgment will be cited by prosecutors to argue that the evidence of the investigating officer alone is sufficient to prove recovery under Section 27, and that the turning hostile of independent witnesses does not automatically result in acquittal. It also reinforces that in mass murder cases, the conviction of a person who did not personally inflict fatal injuries can be sustained under Section 149 if he was part of the unlawful assembly.

9. Final Outcome

• The appeal was dismissed.

• The conviction of the appellant under Section 302 read with Section 149 IPC (on four counts) was upheld.

• The sentence of life imprisonment along with a fine of Rs. 1,000/- (and default sentence) was confirmed.

• The order of the Trial Court and the High Court was affirmed.

10. Practical Application (Use in Court)

First, a prosecution case relying on recovery under Section 27 of the Evidence Act can be established even if all panch witnesses turn hostile, provided the investigating officer’s testimony is credible and the seizure memos are proved. The defence cannot seek acquittal merely on the ground that independent witnesses did not support the recovery.

Second, in a trial for an offence committed by an unlawful assembly, the prosecution does not need to secure conviction of all five members. As long as the existence of an assembly of five or more persons is proved, each member can be convicted under Section 149 even if others are absconding or acquitted.

Third, an accused who was part of an unlawful assembly that committed murder cannot claim that he should be acquitted because no specific overt act is attributed to him. Section 149 imposes constructive liability for the acts of the assembly.

11. Court Lines

Line 1 (Recovery proved through IO – Para 18, quoting Rameshbhai Mohanbhai Koli):
“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. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt.”

Line 2 (Section 149 liability – Para 9.6, implied):
“The conviction under Section 302 read with Section 149 IPC is legally sustainable even if the total number of persons convicted is less than five, because the charge was that they along with others constituted an unlawful assembly; others may be absconding or not prosecuted.”

Line 3 (Medical evidence – Para 16):
“The viscera report/Exhibit P‑52 was forwarded for chemical analysis which showed analytical reasons and the same reads Diazepam is present in Article A, B, C, D, E, G, H and JK, establishing the administration of sedative before death.”

Line 4 (Flaws in investigation not fatal – Para 20):
“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.”

12. Legal Strategy Insight

For the prosecution (State) in a circumstantial evidence case:

• Ensure that recoveries under Section 27 are recorded in the presence of independent witnesses, but if they turn hostile, do not lose heart. The investigating officer can still prove the recovery. The IO must depose clearly about the disclosure statement, the discovery, and the seizure memo. His credibility is key.

• In cases involving multiple accused and an unlawful assembly, charge the accused under Section 149 even if some are not identified or abscond. The conviction of a few does not break the assembly.

• Always send recovered articles (phials, clothes) for forensic examination. If the viscera of the deceased already shows the presence of the sedative, the absence of analysis on the recovered phials may not be fatal, but it is better to have both.

For the defence (accused):

• Challenge the recovery by showing contradictions in the investigating officer’s testimony or by demonstrating that the discovery was not “voluntary” but under pressure. If the accused’s leg was fractured during custody (as suggested here), argue that the recovery is tainted. In this case, the Court did not accept that argument, but it is a valid point to raise.

• In a circumstantial evidence case, stress the missing links. For example, here, the rope recovered did not correspond to any injury; the blood stains were not proven to be human; the phials were not tested. Argue that the chain is incomplete. The Court rejected it, but it is a viable strategy.

• If the accused has served a long period (e.g., over 14 years), seek reduction of sentence on the ground of reformation, though in multiple murder cases it may be denied.

For a lawyer challenging a conviction under Section 149:

• Argue that the prosecution failed to prove that five or more persons were present with a common object. If the evidence only shows the presence of the convicted accused and one or two others, the requirement of “unlawful assembly” is not satisfied. This judgment does not detail the exact number, so it remains a factual issue to be argued in each case.