Pavan Vasudeo Sharma vs The State Of Maharashtra Thr. Secretary

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

1 REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.591 OF 2019 (Arising out of Special Leave Petition (Criminal) No.856 of 2018)

PAVAN VASUDEO SHARMA …Appellant

VERSUS

STATE OF MAHARASHTRA THROUGH SECRETARY …Respondent

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal at the instance of original Accused No.1, challenges the

correctness of the judgment and order dated 24.03.2015 passed by the High

Court of Judicature at Bombay dismissing his Criminal Appeal No.700 of

Signature Not Verified 2013. Digitally signed by INDU MARWAH

3. According to the prosecution, Police Naik Nagare (later examined as Date: 2019.03.27 11:26:24 IST Reason:

PW11 in the trial) was robbed of his pistol (service weapon) and walkie talkie CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

2 set by three persons on 20.12.2005 at about 9.00 pm. Accordingly an FIR was

registered on 20.12.2005 in respect of said incident, which FIR in the present

proceedings was placed on record vide Exhibit 106. The FIR did not name

any person but gave description of all the three persons. The said case was

separately tried.

4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured

person was lying near a motorcycle on Mumbai-Pune highway. Said PW1

went to the spot and took the injured to the hospital where he was declared

dead. On the basis of motorcycle driving licence found in the trousers of the

deceased, he was identified as one Bhima Waghmare. The family members

were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which

an offence was registered vide C.R.No.5 of 2006. The investigation

commenced and body was sent for post-mortem. PW3 Dr. Joshi conducted

the post-mortem and found the following external injuries:-

“(1) Fire arm injury. Right side inframammary region, 13 cm below and medial to left mammary gland.

(2) Burn injury due to firm arm on left thigh. Two in number. 9 cm. below iliac left side admeasuring 2 ½ cm. x 1 cm. Superficial to deep. Dark black in colour with red center.

(3) Abrasion over 9 cm. below iliac region left side 8 cm below and 5 cm posterior to anterior CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

3 superior iliac spine, admeasuring 2 ½ cm x superficial to deep.

(4) Abrasions on body as under:

(A) Arm medial third anteriorly;

(B) Elbow posteriorly and (C) Wrist anteriorly:

(D) (a) Thigh middle third.

(b)Knee joint.”

Said PW3 Dr. Joshi found the following corresponding internal

injuries:-

“Penetrating wound to abdominal wall, peritoneum superior side of left lobe of liver, shattering part of it. Coming out at inferior side, entering into pancreas, shattering out the pancreas, penetrating at two sites at mesentery of small intestine. Two cm. in diameter each, going posterior medial to left kidney with large retro peritoneal and peritoneal region. Fitting lumber spine no. 4 and 5 body with indentation and fracture at left side of body of L 4 and L 5. Changing the direction hitting illiacrest at left Sacra iliac joint. Changing direction, getting embedded into para spinal muscles and fat left side, directed laterally and superiorly. Bullet recovered from above mentioned side. Yellowish metal concavity at its base.”

5. It is the case of the prosecution that when Bhima Waghmare was shot,

the firm arm used in the transaction was the same service weapon which was

robbed from PW11 Police Naik Nagare. Soon after the murder, two cell

phones belonging to Bhima Waghmare were also allegedly robbed, one of CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

4 them being a cell phone of Nokia Company with cell number 9850520922.

This mobile was later used in the case of kidnapping of a boy named Akash

Lokhande, who was kidnapped on 13.01.2006 and the calls for ransom were

stated to have been made from the very same cell phone to PW 12 Sanjay

Lokhande, father of the boy. An FIR was registered in relation to said

kidnapping on 13.01.2006 and said case was also tried separately.

6. During the course of investigation of the kidnapping case, information

was received by the police that said Akash Lokhande was confined in a

building in Vimannagar, Pune. Accordingly, a raid was arranged and when

the police entered said building, they found Pavan Vasudeo Sharma

(Accused No.1), Pankaj Ramgopal Jagaria (Accused No.2), Vasudeo Sharma

and Rajendra Gaud to be present there. Those persons were apprehended.

During his personal search, a 9 mm pistol (service revolver) and two

live cartridges were recovered from Accused No.1. Two cell phones were

also found from him. In the search of Accused No.2, a chopper was found.

All those four persons came be to apprehended in kidnapping case. The

recovered pistol was sent for forensic analysis. The forensic analyst found

that the bullet which was recovered from the stomach of deceased Bhima

Waghmare, was fired from the same pistol. The live cartridge that was

recovered from Accused No.1 was test fired by the forensic analyst from the CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

5 same pistol and the features of the firing pin impression on the cartridge

tallied with those found from the bullet recovered from the body of deceased

Bhima Waghmare.

All the four apprehended persons were put up for identification by

PW11 Police Naik Nagare and according to the witness he could identify

Accused Nos.1 and 2. However, no documentation as regards the Test

Identification Parade was produced on record in the present trial.

7. After completion of investigation, Accused Nos.1 and 2 were tried for

having committed the offences including the murder of said Bhima

Waghmare, punishable under Sections 302, 392 read with Section 34 of the

Indian Penal Code, Section 37(1) read with Section 135 of the Bombay

Police Act and Section 3 (25) of the Indian Arms Act.

8. PW2 Seema widow of the deceased Bhima Waghmare stated in her

deposition that her husband was having two mobile numbers and one of

them was 9850520922. She accepted that in her first reporting she had

expressed suspicion against some other persons including professional rivals

of her husband. PW5 Sachin Mahadev Shinde, Nodal Officer of Idea

Cellular Company stated that mobile phone number 9850520922 was

subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods

Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station, CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

6 Pune-411019. He also produced the record of calls details vide Exhibit 55

showing relevant pages of call details with regard to period January 2006

and February 2006 about user of the mobile. PW6 Senior Police Inspector

Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter.

He did not depose about any Test Identification Parade nor did he produce

any record regarding identification of Accused Nos. 1 and 2 by PW11 Police

Naik Nagare. PW12 Sanjay Lokhande, father of Akash Lokhande testified

that demands for ransom were made from him and the communication was

received from mobile number 9850520922. During his testimony he also

mentioned that the person who was making the demand had casually

mentioned that they had killed a person at Karjat.

9. It was the case of the prosecution that the pistol seized from the

Apellant-Accused No.1 was a service weapon which was entrusted to PW11

Police Naik Nagare, which weapon was snatched from him on 20.12.2005.

It was the same weapon which was found to be used in the commission of

offence of murder of Bhima Waghmare. There was no direct evidence in the

form of any eyewitness account which was available on record and the

prosecution mainly relied upon certain circumstances in support of its case.

The circumstantial evidence in the matter was based mainly on two

features:-

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

7

a) Recovery of mobile phone which was allegedly used for making

demands of ransom; and

b) Seizure of 9 mm pistol as aforesaid.

10. Apart from these two circumstances, reliance was also placed on the

alleged extra judicial confession made by those demanding ransom in their

telephonic conversation with PW12-Sanjay Lokhande. Considering these

circumstances to be clinching and pointing towards nothing but the guilt of

the accused, the Additional Sessions Judge, Pune, vide his judgment dated

11.01.2011 convicted said Accused Nos. 1 and 2 for the offences punishable

under Sections 302, 392 read with Section 34 IPC, Section 37(1) read with

Section 135 of the Bombay Police Act and Section 3 (25) of the Indian Arms

Act and sentenced them to suffer life imprisonment under the first count,

rigorous imprisonment for two years under the second count, rigorous

imprisonment for 15 days under the third count and rigorous imprisonment

for six months under the fourth count.

11. Both the convicted accused challenged their conviction and sentence

by preferring two appeals being Criminal Appeal No.700 of 2013 and

Criminal Appeal No.1056 of 2013. As regards Accused No.1, the High

Court found that the prosecution had established its case and there was

sufficient evidence to prove that he was involved in the crime relating to the CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

8 murder of Bhima Waghmare. The High Court, however, found that there

was no material to connect Accused No.2 with the crime and, therefore,

acquitted him of the charges levelled against him under Sections 302, 392 of

IPC and under Section 3(25) of the Indian Arms Act but maintained his

conviction and sentence insofar as offence under Section 37(1) read with

Section 135 of the Bombay Police Act was concerned.

12. It is a matter of record that the acquittal of Accused No.2 has not been

challenged by the State and has attained finality.

13. The facts narrated above bring out the following features:-

a) Going by FIR at Exhibit 106, three persons were responsible

for robbing PW11 Police Naik Nagare of his service

weapon. Though the description of all three persons was

given in FIR Exhibit 106, no Test Identification Parade was

undertaken when four suspects were apprehended during

investigation of the kidnapping case. No material in that

behalf is produced on record. Nothing is clear on record as

to who was the third person.

b) According to PW11 Police Naik Nagare he had lost

consciousness for a while after he was assaulted by those

three persons; that after he regained consciousness, he dialed

100 from his mobile and intimated about the loss of his CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

9 service weapon and walkie talkie. It is somewhat

incongruent that the persons who robbed him of his service

weapon and walkie talkie would leave his mobile intact.

c) In terms of version of PW2 Seema, mobile number

9850520922 was subscribed by her husband Bhima

Waghmare. On the other hand, the evidence led by the

prosecution itself in the form of testimony of PW5 Sachin

Mahadev Shinde shows that mobile number 9850520922

was subscribed by one Sanjay S Roy. Again, the

prosecution has failed to establish the link, if any, between

said Sanjay S Roy and Bhima Waghmare and whether said

Sanjay S Roy had ever handed over his mobile to Bhima

Waghmare.

d) PW2 Seema in her original version had expressed suspicion

about certain professional rivals of her husband.

e) The assertion that one of the persons making ransom calls

had disclosed that they had killed a person at Karjat did not

come in the examination-in-chief of PW12 Sanjay Lokhande

but appeared in his cross-examination. It was thus not the

specific case of the prosecution that any extra judicial

confession was made to PW12 Sanjay Lokhande.

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

10

f) The matter has one more dimension. While ordering

acquittal of Accused No.2, insofar as principal charges are

concerned, his conviction for offence under Section 37(1)

read with Section 135 of the Bombay Police Act was

maintained by the High Court. We, thus, have to proceed on

the footing that Accused No. 2 was also guilty of snatching

the service weapon of PW11 Police Naik Nagare but not of

murder.

g) There was a gap of about 15 days between the snatching of

the service weapon and murder.

14. With the acquittal of Accused No.2 of the principal charge under

Section 302, we are now called upon to see whether the material on record

sufficiently establishes that it was Accused No.1 alone who was guilty of the

offence punishable under Section 302 IPC.

15. Two circumstances which are principally relied upon by the

prosecution are already mentioned hereinabove. The first circumstance

regarding mobile phone is not proved at all. The mobile number was not

subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S.

Roy. No link between these two persons has been established nor any bill in CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

11 the name of said Bhima Waghmare was produced on record. Since the

evidence that the mobile number was subscribed by said Sanjay S. Roy was

led by the prosecution itself, it cannot be assumed that said mobile number

was, in fact, subscribed by Bhima Waghmare. The connection which would

link the accused with the murder of Bhima Waghmare, on this front is

completely missing. As regards the second circumstance, it is true that the

bullet recovered from the body of the deceased matched with the service

weapon which was allocated to PW11 Police Naik Nagare but the theory that

the weapon was snatched by the accused is not sufficiently established. No

Test Identification Parade was held and if held, no material in that behalf has

been produced on record. The second circumstance, therefore, is not

sufficiently established as against the accused.

16. The law on the point of appreciation of cases based on circumstantial

evidence is very clear. It was laid down by this Court in Sharad Birdhichand

Sarda vs. State of Maharashtra1 as under:-

“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.

1 (1984) 4 SCC 116 CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

12 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 Maharashtra2 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “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’ 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.”

2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783 CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary

13

17. Applying the principles as culled out in the aforesaid decision, which

have stood the test of time, in our view, the matter is not free from doubt. The

circumstances relied upon must rule out every single hypothesis except the

guilt of the person accused of an offence. There are too many missing links in

the present matter and in our considered view, the material on record does not

exclude every single hypothesis except the guilt of the man.

18. We, therefore, give benefit of doubt to the Appellant. This appeal is,

therefore, allowed and the Appellant is acquitted of the charges levelled

against him. He be set at liberty forthwith unless his presence is required in

connection with any other offence.

..………….……………J. (Uday Umesh Lalit)

..………….……………J. (Indu Malhotra)

New Delhi, March 25, 2019.