Shankar Versus The State of Maharashtra
Shankar Versus The State of Maharashtra
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 954 of 2011
Shankar
…Appellant (s)
Versus
The State of Maharashtra …Respondents
With
Criminal Appeal No.955 of 2011
J U D G M E N T
C.T. RAVIKUMAR, J.
1. The captioned appeals, by lifers, are directed against the
self-same judgment and order dated 12.08.2009 passed by the High
Court of Judicature at Bombay, Bench at Nagpur in Criminal Appeal
No.7 of 2004. The former appeal was filed by the second and third
appellants therein who were accused Nos.2 and 3 in Sessions Trial
No.80 of 2002 on the file of Additional Sessions Judge, Bhandara.
The sole appellant in the latter appeal was the first appellant in
Criminal Appeal No.7 of 2004 and he was the first accused in
Sessions Trial No.80 of 2002. During the pendency of the trial,
the fourth accused breathed his last and the first appellant in the
former appeal viz., Sri Hiralal died during its pendency. Hence,
qua him the former appeal stands abated. As per the judgment of
the Trial Court the appellants were convicted under Sections 302
read with Section 34 of the Indian Penal Code, 1860 (hereinafter,
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‘the IPC’) for having committed murder of one Rahul Pundlik Meshram
(hereafter referred to as ‘the deceased’). They were sentenced to
suffer imprisonment for life besides imposing a fine of Rs.500/-
and in default of payment of fine they are to suffer rigorous
imprisonment for one month each. As per the impugned judgment the
conviction and sentences thus imposed by the Trial Court were
confirmed. Hence, these appeals.
2. The prosecution case, in nutshell, is as follows: -
On 12.12.2001 at about 5.00 pm, the deceased along with a
friend went to Indira Gandhi Ward at Bandhara where the house of
Chintaman Giddu Gatey (PW-8) situates. After parking his Luna
Moped the deceased went inside of the house of Chintaman Giddu
Gatey (PW-8), leaving his friend near the vehicle. Deceased and
Chintaman Giddu Gatey (PW-8) smoked ganja and while so the deceased
accused No.4 (Raju Pande), Hiralal, the first appellant in the
former appeal who is no more and accused Nos.1 and 3, who are the
surviving convicts (hereinafter referred to as ‘the appellants’),
came there on two motorcycles and they too, went inside the house
of Chintaman Giddu Gatey (PW-8). All of them smoked ganja. While
so, appellant in the latter appeal viz., accused No.1 questioned
the deceased as to why he along with his friend Parag Sukhdeve
assaulted his brother. It is worthy to note at this juncture that
according to the prosecution, on 29.09.2001, the deceased along
with his friend Parag Sukhdeve assaulted the brother of the
appellant in the latter appeal. Though, the deceased denied assault
on his brother, the appellant in the latter appeal (the first
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accused) continued to say that the deceased did dishonesty and
assaulted his brother. Though, the friend of the deceased who was
waiting outside came inside and asked him to come out the deceased
remained there and thereupon his friend left the place. Later, the
first accused invited the deceased for drinks and all of them,
including the deceased, left the house of Chintaman Giddu Gatey
(PW-8) on two motorcycles by about 6 p.m. After about an hour,
the dead body of the deceased was found by one Manoj Goswami, a
resident of Paladi. The case is that upon being informed by the
villagers, Manoj Goswami (PW1) went to the spot and on finding the
dead body he went to Bhandara Police Station and lodged a report.
As per the prosecution, the deceased was taken by the accused on
one of the motorcycles through National Highway No.6 towards
Lakhani town. To the north of the said National Highway and at a
distance of about 10 kilometers from Bhandara there was another
road leading to village Paladi and on the side of the said
Bhandara-Paladi road, at about by one kilometer from National
Highway No.6, they stopped their motorcycles and started assaulting
the deceased using sharp weapons. The deceased sustained 22 antemortem injuries, all over his body and met with instantaneous
death.
3. Admittedly, there was no eye-witness in this case. Based on
the circumstantial evidence, the Trial Court found the appellants
guilty and convicted and sentenced them, as mentioned above.
Aggrieved by the conviction and consequent sentence, the surviving
accused viz., accused Nos. 1 to 3 in the said Sessions Trial
preferred appeal before the High Court. After considering the
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circumstances relied on by the Trial Court and despite its
reservation against some of the procedures followed the High Court
confirmed the conviction and sentence imposed on appellants by the
Trial Court holding that certain proven circumstances are material
circumstances and would complete the requisite chain.
4. The appellants in the captioned appeals challenge the findings
of conviction and consequential imposition of sentence raising
various grounds. But, before considering the contentions against
the concurrent findings raised by the appellants, we find it only
appropriate to refer to the following decisions on the law relating
circumstantial evidence.
5. In the decision in Sarbir Singh v. State of Punjab1, this Court
observed and held thus: -
“5. …But in a case based on circumstantial evidence
neither the accused nor the manner of occurrence is known
to the persons connected with the victim. The first
information report is lodged only disclosing the offence,
leaving to the investigating agency to find out the
offender.
6. It is said that men lie but circumstances do not. Under
the circumstances prevailing in the society today, it is
not true in many cases. Sometimes the circumstances which
are sought to be proved against the accused for purpose of
establishing the charge are planted by the elements
hostile to the accused who find out witnesses to fill up
the gaps in the chain of circumstances. In countries
having sophisticated modes of investigation, every trace
left behind by the culprit can be followed and pursued
immediately. Unfortunately it is not available in many
parts of this country. That is why courts have insisted
1 1993 SCC (Cri) 860
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(i) the circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully
established; (ii) all the facts so established should be
consistent only with the hypothesis of the guilty of the
accused and should be such as to exclude every hypothesis
but the one sought to be proved; (iii) the circumstances
should be of a conclusive nature; and (iv) the chain of
evidence should not have any reasonable ground for a
conclusion consistent with the innocence of the accused.
6. Further it was held therein as under:-
7. …It has been impressed that suspicion and conjecture
should not take the place of legal proof. It is true that
the chain of events proved by the prosecution must show
that within all human probability the offence has been
committed by the accused, but the court is expected to
consider the total cumulative effect of all the proved
facts along with the motive suggested by the prosecution
which induced the accused to follow a particular path. The
existence of a motive is often an enlightening factor in a
process of presumptive reasoning in cases depending on
circumstantial evidence.
7. In Brijlal Prasad Sinha v. State of Bihar2, this Court held
thus:
“In a case of circumstantial evidence the prosecution is
bound to establish the circumstances from which the
conclusion is drawn must be fully proved; the
circumstances should be conclusive in nature; all the
circumstances so established should be consistent only
with the hypothesis of guilt and inconsistent with the
innocence; and lastly the circumstances should to a great
certainty exclude the possibility of guilt of any person
other than the accused. The law relating to circumstantial
evidence no longer remains res integra and it has been
2 (1998) SCC (Cri) 1382
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held by catena of decisions of this Court that the
circumstances proved should lead to no other inference
except that of the guilt of the accused so that, the
accused can be convicted of the offences charged. It may
be stated as a rule of caution that before the court
records conviction on the basis of circumstantial
evidence, it must satisfy itself that the circumstances
from which inference of guilt could be drawn have been
established by unimpeachable evidence and the
circumstances unerringly point to the guilt of the accused
and further, all the circumstances taken together are
incapable of any explanation on any reasonable hypothesis
save the guilt of the accused.”
8. In the decision in Prakash v. State of Rajasthan3, this Court
took note of the following principles laid down regarding the law
relating circumstantial evidence in Sharad Birdhichand Sarda v.
State of Maharashtra4 : -
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. It may be
noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should
be proved' as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793] where
the following observations were made:
19. …"Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between 'may be'
3 (2013) 4 SCC 668
4 (1984) 4 SCC 116
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and 'must be' is long and divides vague conjectures from
sure conclusions."
(2) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show
that in all human probability the act must have been done
by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
9. After noting the above five golden principles, it was held in
Prakash’s case (supra), that they would constitute the Panchsheel
of the proof of a case based on circumstantial evidence and
conviction could be sustained on the basis of last seen, motive and
recovery of incriminating articles in pursuance of the information
given by the accused if those five golden principles of the proof
of a case based on circumstantial evidence are satisfied.
10. Virtually, the law laid down relating circumstantial evidence
in those decisions are unfailingly followed by this Court while
dealing with the cases where conviction is rested on circumstantial
evidence.
11. We are also fully aware of the position that normally in an
appeal by special leave under Article 136 of the Constitution of
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India when concurrent findings of conviction and sentence are
against the appellants / convicts there would be no scope for
interference except in exceptional circumstances. In the decision
in Tomaso Bruno & Anr. v. State of Uttar Pradesh5, a Three Judge
Bench of this Court held:-
“42. By and large, this Court will not interfere with the
concurrent findings recorded by the courts below. But
where the evidence has not been properly appreciated,
material aspects have been ignored and the findings are
perverse under Article 136 of the Constitution, this Court
would certainly interfere with the findings of the courts
below though concurrent. In a case based on circumstantial
evidence, circumstances from which inference of guilt is
sought to be drawn should be fully proved and such
circumstances must be of conclusive nature pointing to the
guilt of accused. There shall be no gap in such chain of
circumstances….”
12. Heard, Mr. Sanjay Jain and Mr. Sunil Kumar Verma, learned
counsel for the appellant and Mr. Sachin Patil, learned counsel for
the respondent-State.
13. In view of the law relating circumstantial evidence exposited
under the decisions referred hereinbefore and the scope of
interference in exercise of power under Article 136 of the
Constitution of India in respect of cases where concurrent findings
are recorded by the Lower Courts, we are of the considered view if
doubt lingers with respect to the probability or conclusiveness of
any circumstance relied on by the prosecution, forming a link in
the chain of circumstances pointing to the guilt of convict,
despite the existence of concurrent findings, the evidence has to
5 (2015)7 SCC 178
9
be scrutinized by this Court so as to ensure that the totality of
the evidence and circumstances relied on, did constitute a complete
chain and it points to the guilt of the convict and it did not
brook any hypothesis other than the guilt of the convict. Upon
hearing the learned counsel on both sides and on careful
consideration of the evidence and materials on record, we are of
the considered view that the case at hand is a befitting case where
such an exercise is required. Before we undertake such an
exercise, it is only proper to look into the questions whether the
death of Rahul Pundlik Meshram is homicidal in nature. As a matter
of fact, there is not much dispute on this aspect.
14. The evidence of PW-13 with Exhibit-54 postmortem report made
the Courts below to concurrently come to the conclusion that death
of Rahul Pundlik Meshram is homicidal in nature. The postmortem
report would reveal the presence of 22 ante-mortem injuries on the
body of the deceased. It would also reveal that out of the 22
ante-mortem injuries, except 7 of these are incised wounds. The
said 7 injuries are serious stab injuries inflicted on different
parts of the body. It is taking into account the nature of all
those injuries that PW-13 opined that the cause of death of
deceased was due to multiple injuries on the chest and back
involving the vital organs such as heart and lungs. We have
absolutely no hesitation to hold in the said circumstances that the
Courts below have rightly arrived at the conclusion, in the light
of the evidence that death of Rahul Pundlik Meshram is homicidal in
nature.
15. Admittedly, the conviction of the appellants is rested on
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circumstantial evidence only. As per the Trial Court, the
following circumstances were relied upon by the prosecution to
establish the guilt of the accused, including the appellants,
before it: -
“1. Visit of the deceased Rahul Meshram to the house of
Chintaman Gatey (P.W.8).
2. While the deceased was at the house of Chintaman, the accused
nos. 1 to 3 and deceased accused Raju Pande arrived at the
house of Chintaman Gatey.
3. The motive altercation had taken place between the accused on
one side and the deceased on the other side.
4. That, the accused persons, under the pretext of consuming
liquor persuaded the deceased to accompany them.
5. That, the deceased and the accused nos. 1 to 3 and deceased
accused Raju Pande, left the house of Chintaman Gatey, on
two motor-cycles.
6. That, immediately, there after i.e. after the deceased left
the house of Chintaman Gatey with accused persons, he was
found met with homicidal death.
7. Recovery of the weapon from the accused No.1 with the blood
stains of Group 'A' which was of the deceased.
8. The Opinion of the Dr. Sau. Manjusha Rangari that by the said
weapon, the injuries which were found on the dead body of the
deceased, could be caused.
9. The discovery of the fact of burning clothes stained with
blood by the accused No. 1 and those clothes were belonged to
accused nos. 1 and 2.
10. The full pant belonged to accused No.1 was stained with
blood, of blood group "A" which was of the deceased.”
16. After considering the said relied on circumstances, the Trial
Court held that the prosecution had succeeded in establishing eight
circumstances, as under: -
“1. The visit of deceased Rahul Meshram at the house of
Chintaman Gatey.
2. Arrival of the accused No. 1 to 3, alongwith the
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deceased accused, at the house of Chintman Gatey.
3. That, the accused No.1 to 3 and deceased accused
succeeded in persuading the deceased to join them for
consuming liquor.
4. That, the accused No.1 to 3, deceased accused Raju
Pande, and deceased Rahul Meshram left the house of
Chintaman Gatey, on two motor cycles.
5. That immediately after the deceased and the accused
persons left the house of Chintaman Gatey, the deceased
was found murdered.
6. At the instance of the accused No.1 weapon having
handle at one end and the other end sharp and edged
one, was recovered, which was found stained with blood,
of Group "A" which was of the deceased.
7. Doctor opined that by the said weapon, the injuries
could be caused, which were found on the dead-body of
the deceased.
8. The accused No.1 burnt the clothes at place near the
water tank in M.S.E.B, Colony, Bhandara.”
17. Consequently, the Trial Court considered the question whether
the culled-out circumstances would form a complete chain unerringly
pointing to the guilt of the accused and that accused alone and
obviously, the conviction was entered into upon answering that
question in the affirmative. According to the Trial Court, the
following three proven circumstances are sufficient to constitute
circumstantial evidence unerringly connecting the accused with the
homicidal death: -
“1. That, while the deceased was at the house of Chintaman
Gatey, deceased accused Raju Pande along with the
accused Nos.1 to 3. came to the house of Chintaman
Gatey and succeeded in persuading the deceased to
accompany them, for consuming liquor.
2. That the deceased in the company of the accused Nos.1
to 3 and deceased accused Raju left the house of
Chintaman Gatey, on two moto cycles.
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3. That, soon thereafter, the deceased was found
murdered.”
18. There can be no doubt with respect to the fact that in a case
where the conviction is based on circumstantial evidence, motive
assumes great significance. A Three Judge Bench of this Court in
Nandu Singh v. State of Madhya Pradesh (now Chhattisgarh)6 by its
judgment dated 25.02.2022, after observing thus, held as under:-
“It is not as if motive alone becomes the crucial link in
the case to be established by the prosecution and in its
absence the case of prosecution must be discarded. But, at
the same time, complete absence of motive assumes a
different complexion and such absence definitely weighs in
favour of the accused.”
We may add here that just like complete absence of motive
failure to establish motive after attributing one, should also give
a different complexion in a case based on circumstantial evidence
and it will certainly enfeeble the case of prosecution.
19. In the decision in Nandu Singh’s case an earlier decision of
this Court in Anwar Ali & Anr. v. State of Himachal Pradesh7, was
quoted with agreement, thus: -
“24. Now so far as the submission on behalf of the accused
that in the present case the prosecution has failed to
establish and prove the motive and therefore the accused
deserves acquittal is concerned, it is true that the
absence of proving the motive cannot be a ground to reject
the prosecution case. It is also true and as held by this
Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp
6 2022 SCC OnLine SC 1454
7 (2020) 10 SCC 166
13
(1) SCC 80) that if motive is proved that would supply a
link in the chain of circumstantial evidence but the
absence thereof cannot be a ground to reject the
prosecution case. However, at the same time, as observed
by this Court in Babu (Babu v. State of Kerala, (2010) 9
SCC 189), absence of motive in a case depending on
circumstantial evidence is a factor that weighs in favour
of the accused. In paras 25 and 26, it is observed and
held as under: (Babu case, SCC pp. 200-01).
“25. In State of U.P. v. Kishanpal (2008) 16 SCC
73), this Court examined the importance of motive in
cases of circumstantial evidence and observed: (SCC
pp. 87-88, paras 38-39)
‘38. … the motive is a thing which is primarily known
to the accused themselves and it is not possible for
the prosecution to explain what actually promoted or
excited them to commit the particular crime.
39. The motive may be considered as a circumstance
which is relevant for assessing the evidence but if
the evidence is clear and unambiguous and the
circumstances prove the guilt of the accused, the
same is not weakened even if the motive is not a very
strong one. It is also settled law that the motive
loses all its importance in a case where direct
evidence of eyewitnesses is available, because even
if there may be a very strong motive for the accused
persons to commit a particular crime, they cannot be
convicted if the evidence of eyewitnesses is not
convincing. In the same way, even if there may not be
an apparent motive but if the evidence of the
eyewitnesses is clear and reliable, the absence or
inadequacy of motive cannot stand in the way of
conviction.’
26. This Court has also held that the absence of motive in
a case depending on circumstantial evidence is a factor
that weighs in favour of the accused. (Vide Pannayar v.
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State of T.N. (2009) 9 SCC 152)”.
20. In the decision in Shivaji Chintappa Patil v. State of
Maharashtra8, after referring to the decision in Anwar Ali’s case
(supra), this Court observed thus: -
“27. Though in a case of direct evidence, motive would
not be relevant, in a case of circumstantial evidence,
motive plays an important link to complete the chain of
circumstances.”
21. In the case on hand, the prosecution alleged a motive.
According to the prosecution on 29.09.2001, the deceased along with
his friend Parag Sukhdeve assaulted the brother of appellant in the
latter appeal (the first accused in the Sessions Trial). It is
also the case of the prosecution that after the accused persons
entered the house of PW-8, Chintaman Giddu Gatey the first
accused/the appellant in the latter appeal hurled abuses on the
deceased and asked him why he along with his friend Parag Sukhdeve
assaulted his brother. It is also the case of the prosecution
that though the deceased denied any such occurrence, the said
appellant continued to say that the deceased had done dishonesty
and assaulted his brother. After alleging motive as above,
prosecution had failed to establish the same. In this context, it
is to be noted that the Trial Court made a positive finding that
the prosecution had miserably failed to establish the alleged
motive. Despite the said finding of the Trial Court and despite
that issue was pointedly raised before the High Court, obviously
the High Court in the impugned judgment did not consider the said
8 (2021) 5 SCC 626
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aspect at all. This failure on the part of the High Court is a
ground specifically taken in this appeal. In the light of the
decision in Anwar Ali’s case (supra) and Shivaji Chintappa Patil’s
case (supra), and also based on what we held in respect of the
impact of failure to establish the alleged motive in a case based
on circumstantial evidence it can only be held that the said
failure had weakened the case of the prosecution. This aspect
should have been given proper weight by the courts below.
22. Now, we will proceed to consider the other circumstance(s)
relied on and whether they would make a complete chain of
circumstances and dispel the hypothesis of the innocence of the
appellant. In that context, it is only appropriate to refer to
the circumstance mainly, relied on and held as proved by the High
Court for confirming the conviction of the appellants viz., that
the deceased was ‘lastly seen’ in the company of the appellants
just prior to the finding of his dead body. Having observed thus,
the High Court held that the proof thereof would depend upon the
quality and nature of the testimonies of Chintaman (PW-8) and
Dhanraj (PW-10).
23. Paragraph 14 of the impugned judgment would reveal that after
referring to evidence based on ‘last seen theory’, recovery of
weapons and seizure of clothes the High Court observed that the
following twin material circumstances would complete the requisite
chain, namely: -
“(a) On the day of incident, at about 4.00 p.m., deceased
Rahul and all the appellants were present at the house of
Chintaman (PW-8).
(b) Deceased Rahul left the house of Chintaman at about
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5.00 p.m., on the day of incident along with the appellants
and within two hours, the dead body of Rahul with multiple
incise and stab wounds was found lying by the side of the
road, 10 kms. away from Bhandara city. There is nothing on
record to show that deceased Rahul had enmity with anybody
other than the appellants and in absence thereof, the
possibility of somebody else committed assault on the
deceased and would have caused so many multiple injuries is
completely ruled out.”
24. With respect to the material circumstance referred to as (a)
in the impugned judgment, as extracted above, what is stated by the
High Court is totally against the weight of evidence. The evidence
of PW-8 when juxtaposed to that of PW-10 would reveal the said
position. It is stated therein that on the day of incident, at
about 04.00 pm, the deceased Rahul Pundlik Meshram and all the
appellants were present at the house of Chintaman (PW-8). In a
case rested on circumstantial evidence and ‘last seen’ theory is
relied on as a link in the chain of circumstances, the evidence
relating the time at which the deceased was lastly seen with the
accused has to be proved conclusively as when it is proximate with
the time of finding the dead body the burden to establish the
innocence would be that of the accused. Indisputably, in contrast
to the aforesaid statement therein what is deposed by Chintaman
(PW-8) is that on the day of the incident at about 05.00 pm, the
deceased came to his house and then asked for a glass of water and
thereafter, Raju Pande (the deceased accused No.4) along with three
other persons with respect to whom he got only nodding
acquaintance, came to the house. He would also depose that
thereafter Raju Pande started hurling abuses on the deceased. Both
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the Trial Court and the High Court noted the case of the
prosecution that Raju Pande hurled abuses on the deceased for
having assaulted the brother of accused No. 1, along with his
friend Sri Parag Sukhdeve. However, a scanning of the oral
testimony of PW-8 would show that he did not depose that Raju Pande
hurled abuses on the deceased on the ground of assault on the
brother of accused No. 1. Naturally, he did not mention the name
Parag Sukhdeve as well. So also, it would go to show that he had
stoutly denied involvement in the sale of ganja, or availability of
ganja in his house. According to him Raju Pande and accused No. 1
alone had come to the chappari of his house and the remaining two
accused were standing in the courtyard of his house. That apart,
as per PW-8 it was about 06:00 PM that accused Raju Pande and the
deceased left his house. Thus, it is obvious that the statement in
the material circumstance mentioned as ‘a’ in paragraph 14 of the
impugned judgment is based on the oral testimony of Dhanraj (PW10). It is true that PW-10, deposed that at about 04.00 pm he was
returning home from S.T. Stand and then he found two motorcycles
parked at the house of Chintaman (PW-8), that at the house of
Chintaman, 4 to 5 persons were then sitting and at that time
accused Nos. 2 and 3 viz., deceased first appellant and the
surviving appellant in the former appeal, whom he knew by face and
one Pande were present. It is pertinent to note that PW-10 did not
depose about the presence of the deceased in the house of Chintaman
when himself, Pande and the other accused persons were there in the
said house. Naturally, in his oral testimony he had not deposed
anything about the hurling of abuses by Pande on the deceased.
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Another aspect of his oral testimony is that he deposed about the
query made by Pande about the identity of a pregnant girl who
resides behind the house of Chintaman. According to him, Chintaman
told Pande that he did not know anything about that girl and then
Pande asked him about her. On being told that he did not know
anything about her, Pande asked him to leave that place, going by
the deposition of PW-10. At this juncture, it is to be noted that
PW-10 did not make any mention about this aspect in his evidence.
It is true that the Trial Court found that this is an improved
version by PW-10. Anyway, the fact revealed from the oral
testimony of PW-10 is that he saw the accused persons, including
Raju Pande and the appellants herein, at the house of Chintaman
(PW-08) immediately after 04:00 PM on the day of occurrence and he
did not speak about the presence of the deceased in the house of
PW-8. That apart, according to him, Raju Pande was enquiring with
him and PW-8 about a pregnant girl who was residing behind the
house of PW-8. It is also relevant to note that the evidence on
record would further go to show that PW-8 had not mentioned about
the alleged hurling of abuses by deceased accused Raju Pande on the
deceased in his statement under Section 161 of Cr.P.C. Above all,
PW-8 did not mention the presence of PW-10 at his residence anytime
during the period from 04:00 PM to 06:00 PM on that fateful day.
25. When the above being the factual position obtained from the
oral testimonies of PW-8 and PW-10, the Hon’ble High Court which
observed that the circumstance of ‘last seen’ is an important
circumstance in the case on hand and its proof would depend upon
the quality and nature of the testimonies of PW-8 and PW-10 should
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have bestowed a threadbare, serious consideration to answer the
question whether the evidence of PW-10 would lend corroboration to
the evidence of PW-8. So also, the courts below in the overall
circumstances, ought to have carefully considered the question
whether the solitary oral evidence of PW-8 would conclusively prove
the factum of the deceased lastly seen in the company of the
deceased. On our careful scrutiny of the evidence of PW-8 and PW10 as above we are constrained to hold that both the Trial Court
and the High Court have failed to make a proper exercise of that
task taking into account the fact that the prosecution relies only
on circumstantial evidence to establish the guilt of the accused.
According to us, the discussion as above would go to show that
virtually the evidence of PW-10 not only failed to lend
corroboration to the evidence of PW-8 but also puts it under a
shadow of doubt. Hence, according to us, the Hon’ble High Court
went wrong in holding that as relates the said circumstantial
evidence of ‘last seen’ the evidence of PW-8 gets corroboration
from the evidence of PW-10 and in that view of the matter, in
agreeing with the conclusion of the Trial Court that the
prosecution has succeeded in proving that the deceased was lastly
seen with the accused, conclusively.
26. The above-mentioned situation constrained us to scan the
evidence of PW-8 scrupulously to find out whether his sole
testimony is unimpeachable and impeccable to conclusively establish
the joining up of the deceased and the accused/convicts at the
house of PW-8 at the relevant point of time as alleged by the
prosecution. In this context, it is to be noted that the
20
prosecution case would suggest that the house of PW-8 is a hub of
ganja smokers. But then, PW-8 stoutly denied of any kind of
involvement with ganja business. Hence, the question is why it
still attracts and allures persons? If the prosecution case is to
be believed then what made all those persons viz., the deceased,
the accused/convicts and PW-10, visit the house of PW-8 at that
time? Obviously, there is no indicatory material on that count.
It is to be noted that it is not the case of the prosecution that
the accused persons, including the appellants, reached there on
coming to the know about the presence of the deceased. Going by
the case of the prosecution the deceased reached the home of PW-8
on his Luna Moped along with his friend and he went inside after
leaving the friend near the parked vehicle. PW-8 did not say that
he had friendship with the deceased and he deposed only to the
effect that he knew the deceased and the deceased on occupying a
seat asked for a glass of water. Soon, thereafter, Raju Pande and
the three others with whom he had only nodding acquaintances came
to his house. PW-8 would further depose that thereupon Raju Pande
hurled abuse on the deceased and then the deceased pleaded that he
did no wrong. As noted earlier, it has come out in evidence that
the act of hurling of abuse by Raju Pande on the deceased was not
recorded in the previous statement of PW-8 recorded under Section
161, Cr.P.C. Above all, PW-8 in his testimony before the court did
not depose anything even to suggest that hurling of abuse by Raju
Pande was because of the assault on his brother by the deceased and
his friend Parag Sukhdeve. Then, how and for what reason this
incident was alleged as the motive for the murder of the deceased
21
Rahul? Who introduced this story as part of the prosecution case
before the court. Certainly, it cannot be said that it was PW-10
who spoke to that effect as his testimony would reveal he had not
even spoken about the presence of the deceased at the house of PW-8
when the accused/convicts were seen there.
27. Another aspect revealed from the evidence on record is that as
per PW-10 when he entered the house of PW-8 after 04:00 p.m. on the
day of occurrence, Raju Pande and the others were present there and
Raju Pande asked him about a pregnant girl who was residing behind
the house of PW-8. According to PW-10, Raju Pande asked the same
to PW-8 as well and both of them revealed their lack of knowledge
about such a girl and then Raju Pande asked PW-10 to leave the
place and thereupon he left the place. It would suggest, if it was
true that he reached there along with others ahead of the deceased,
in search of such a girl lest why he got infuriated/dejected over
it and asked PW-10 to leave the place. PW-8 did not speak about
the presence of PW-10 and also about such a query made by Raju
Pande.
28. For all the above reasons and circumstances, it is unsafe to
rest on the sole testimony of PW-8 to apply the ‘last seen theory’
in this case against the appellants especially, going by PW-8 he
had only nodding acquaintance with them.
29. Thus, in a nutshell the correctness of the last seen version
emanating from PW-8-Chintaman becomes doubtful, especially against
the appellants herein. As noticed earlier, virtually, the oral
testimonies of PW-8 and PW-10 are at variance about the last seen
and it becomes inconclusive for the reasons mentioned hereinbefore.
We have also found that the prosecution has miserably failed to
22
prove the alleged motive. In such circumstance, though the
deceased had met with a homicidal death it cannot be said that the
rest of the circumstantial evidence culled out by the courts below
unerringly point to the culpability of the appellants in the
homicidal death of Rahul Pundlik Meshram. Even the recovery of the
weapon and the dress, at the instance of the appellant in the
latter appeal cannot, by itself, be conclusive as admittedly, the
panch witnesses for their recovery also did not support the
prosecution. In our considered view, the remaining circumstances
relied on by the prosecution and held as proved by the courts below
would not unerringly point to the guilt of the appellants.
30. Thus, in our view, it is unsafe on the aforesaid circumstances
to maintain the conviction of the appellants; we thus, extend to
them the benefit of doubt. Accordingly, we order for the acquittal
of the appellants. The appeals are thus allowed, upsetting the
judgments and orders of the High Court as also that of the court of
Session. The bail bonds executed by the appellants stand
discharged.
……………………, J.
(Ajay Rastogi)
……………………, J.
(C.T. Ravikumar)
New Delhi;
March 15, 2023.
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(FOR JUDGMENT) (REPORTABLE)
ITEM NO.1501 COURT NO.12 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 954/2011
SHANKAR Appellant(s)
VERSUS
THE STATE OF MAHARASHTRA Respondent(s)
WITH
Crl.A. No. 955/2011
Date : 15-03-2023 These appeals were called on for pronouncement of
reportable judgment today.
For Appellant(s) Mr. Sanjay Jain, AOR
Mr. Sunil Kumar Verma, AOR
Mr. Sunil Kumar Verma, Adv.
For Respondent(s) Mr. Sachin Patil, AOR
Mr. Siddharth Dharmadhikari, Adv.
Mr. Aaditya Aniruddha Pande, Adv.
Mr. Bharat Bagla, Adv.
Mr. Sourav Singh, Adv.
Mr. Geo Joseph, Adv.
Mr. Risvi Muhammed, Adv.
Mr. Durgesh Gupta, Adv.
Hon’ble Mr. Justice. C.T. Ravikumar pronounced the reportable
judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi
and His Lordship.
“Thus, in our view, it is unsafe on the aforesaid
circumstances to maintain the conviction of the appellants; we
thus, extend to them the benefit of doubt. Accordingly, we order
for the acquittal of the appellants. The appeals are thus allowed,
upsetting the judgments and orders of the High Court as also that
24
of the court of Session. The bail bonds executed by the appellants
stand discharged”.
Pending application(s), if any, shall stand disposed of.
(NISHA KHULBEY) (DIPTI KHURANA)
SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR
(signed reportable judgment is placed on the file)
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