Whether prosecution can prove recovery panchnama through evidence of investigating officer?

  As already stated, on 1st February 1967 the coat, sweater, shoes and socks of the accused and a blanket of the deceased were recovered in the presence of P.W. 2, P.W. 5, P.W. 8 and P.W. 28. After this they proceeded to the place indicated by the accused and recovered the blood stained dagger from under a stone, which was witnessed by them. P.W, 2 did not accompany the party as according to him he had to go to make arrangements for the funeral of the deceased. On the way to the place from where the dagger was to be recovered the party met one Bhag Singh P.W. 12 who also accompanied them to the place of recovery and in the presence of Roshan Lal (who was not examined) Amar Chand, P.W. 8, Bhag Singh, P.W. 12, and P.W. 28, the dagger was recovered and a Memo Ex. P. 28 was prepared and attested by the aforesaid witnesses. The High Court rejected the evidence of these recoveries under Ex. P. 6/A and P. 28 because P.W. 2, P.W. 8, P.W. 13 and Roshan Lal the driver of P.W. 2, were all connected with the deceased and are not therefore independent or impartial witnesses. It thought that the Investigating. Officer should have called independent and impartial witnesses preferably, and if possible, from the locality, as it could not be said that they were not available or if available would not be willing to be witnesses and that in any case calling of the same persons to witness several searches or recoveries, is objectionable, and would render the search or the recovery doubtful and suspect, if not invalid. {Para 8}

9. Further having held this it nonetheless said that there was no injunction against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. In our view the evidence relating to recoveries is not similar to that contemplated under Section 103 of the Criminal Procedure Code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under Section 157 the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed. We cannot as a matter of law or practice lay down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them. In this case P.W. 2 and P.W, 8 who worked with the deceased were the proper persons 'to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a continuous process. At any rate P.W. 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger.

IN THE SUPREME COURT OF INDIA Criminal Appeal No. 67 of 1969 Decided On: 07.12.1971 Himachal Pradesh Administration Vs. Om Prakash

Hon'ble Judges/Coram: D.G. Palekar and P. Jaganmohan Reddy, JJ.

Citation: MANU/SC/0118/1971,1972 AIR 975, 1972 SCR (2) 765

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