Shankar vs The State Of Maharashtra

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, Signature Not Verified

qua him the former appeal stands abated. As per the judgment of Digitally signed by Nisha Khulbey Date: 2023.03.15 17:25:11 IST Reason:

the Trial Court the appellants were convicted under Sections 302

read with Section 34 of the Indian Penal Code, 1860 (hereinafter, 2

‘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 3

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 ante-

mortem 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 4

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 5

(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 6

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 7

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 8

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 10

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 11

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.

12 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 Pradesh 7, 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. 14

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 15

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 16

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 17

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 (PW-

10). 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. 18

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 19

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 PW-

10 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.

23

(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)