SHANKAR versus THE STATE OF MAHARASHTRA on 15 March 2023

[2023] 2 S.C.R. 661

SHANKAR

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 954 of 2011)

MARCH 15, 2023

[AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]

Penal Code 1860: s. 302 r/w 34 – Conviction under, on basisof circumstantial evidence – Sustainability of – Prosecution casethat the victim assaulted with sharp weapons, sustained 22 ante-mortem injuries leading to instantaneous death – On the fatefulday, the victim went to the house of PW 8, the accused persons alsocame there and the appellant in the latter appeal hurled abuses onthe victim and asked him why he along with his friend had assaultedhis brother, though the victim denied the assault – Later, the accusedinvited the victim for drinks and all of them left the house of PW 8on motorcycles – An hour later, the dead body of the victim wasfound by the complainant – There was no eye-witness – Based onthe circumstantial evidence, the trial court convicted the appellantsu/s. 302/34 and sentenced them to life imprisonment – High Courtupheld the same – On appeal, held: If doubt lingers with respect tothe probability or conclusiveness of any circumstance relied on bythe prosecution, forming a link in the chain of circumstances pointingto the guilt of convict, despite the existence of concurrent findings,the evidence has to be scrutinized by this Court so as to ensure thatthe totality of the evidence and circumstances relied on, did constitutea complete chain and it points to the guilt of the convict – On facts,correctness of the last seen version emanating from PW-8 becomesdoubtful, especially against the appellants – Oral testimonies ofPW-8 and PW-10 are at variance about the last seen and it becomesinconclusive – Prosecution failed to prove the alleged motive –Though the victim met with a homicidal death, it cannot be said thatthe rest of the circumstantial evidence culled out by the courts belowunerringly point to the culpability of the appellants in the homicidaldeath of the deceased – Even the recovery of the weapon and thedress, at the instance of the appellant not conclusive – Convictionof the appellants cannot be maintained, thus, given benefit of doubtand are acquitted – Evidence.

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662SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD: 1.1In view of the law relating circumstantialevidence and the scope of interference in exercise of power underArticle 136 of the Constitution of India in respect of cases whereconcurrent findings are recorded by the lower courts, if doubtBlingers with respect to the probability or conclusiveness of anycircumstance relied on by the prosecution, forming a link in thechain of circumstances pointing to the guilt of convict, despitethe existence of concurrent findings, the evidence has to bescrutinized by this Court so as to ensure that the totality of theevidence and circumstances relied on, did constitute a completeCchain and it points to the guilt of the convict and it did not brookany hypothesis other than the guilt of the convict. [Para 13][671-B-C]

1.2 There can be no doubt with respect to the fact that in acase where the conviction is based on circumstantial evidence,Dmotive assumes great significance. Just like complete absenceof motive failure to establish motive after attributing one, shouldalso give a different complexion in a case based on circumstantialevidence and it will certainly enfeeble the case of prosecution.[Para 18][674-A, C-D]

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1.3 The prosecution alleged a motive. According to theprosecution on 29.09.2001, the deceased along with his friendassaulted the brother of appellant in the latter appeal (the firstaccused in the Sessions Trial). It is also the case of the prosecutionthat after the accused persons entered the house of PW-8, theFfirst accused/the appellant in the latter appeal hurled abuses onthe deceased and asked him why he along with his friend assaultedhis brother. It is also the case of the prosecution that though thedeceased denied any such occurrence, the said appellantcontinued to say that the deceased had done dishonesty andassaulted his brother. After alleging motive the prosecution hadGfailed to establish the same. In this context, it is to be noted thatthe trial court made a positive finding that the prosecution hadmiserably failed to establish the alleged motive. Despite the saidfinding of the trial court and despite that issue was pointedly raisedbefore the High Court, obviously the High Court in the impugned H

judgment did not consider the said aspect at all. This failure onthe part of the High Court is a ground specifically taken in thisappeal. The failure to establish the alleged motive in a case basedon circumstantial evidence, had weakened the case of theprosecution. This aspect should have been given proper weightby the courts below. [Para 21][675-G; 676-A-D]

1.4. When the factual position obtained from the oraltestimonies of PW-8 and PW-10, the High Court which observedthat the circumstance of ‘last seen’ is an important circumstancein the case on hand and its proof would depend upon the qualityand nature of the testimonies of PW-8 and PW-10 should havebestowed a threadbare, serious consideration to answer thequestion whether the evidence of PW-10 would lend corroborationto the evidence of PW-8. So also, the courts below in the overallcircumstances, ought to have carefully considered the questionwhether the solitary oral evidence of PW-8 would conclusivelyprove the factum of the deceased lastly seen in the company ofthe deceased. On the careful scrutiny of the evidence of PW-8and PW-10 it is held that both the trial court and the High Courthave failed to make a proper exercise of that task taking intoaccount the fact that the prosecution relies only on circumstantialevidence to establish the guilt of the accused. Thus, virtually theevidence of PW-10 not only failed to lend corroboration to theevidence of PW-8 but also puts it under a shadow of doubt. Hence,the High Court went wrong in holding that as relates the saidcircumstantial evidence of ‘last seen’ the evidence of PW-8 getscorroboration from the evidence of PW-10 and in that view of thematter, in agreeing with the conclusion of the trial court that theprosecution has succeeded in proving that the deceased was lastlyseen with the accused, conclusively. [Para 25][678-G-H; 679-A-D]

1.5 It is unsafe to rest on the sole testimony of PW-8 toapply the ‘last seen theory’ in this case against the appellantsespecially, going by PW-8 he had only nodding acquaintance withthem. Thus, in a nutshell the correctness of the last seen versionemanating from PW-8 becomes doubtful, especially against theappellants. The oral testimonies of PW-8 and PW-10 are at AB

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Avariance about the last seen and it becomes inconclusive for thereasons mentioned. The prosecution has miserably failed to provethe alleged motive. In such circumstance, though the deceasedhad met with a homicidal death it cannot be said that the rest ofthe circumstantial evidence culled out by the courts belowunerringly point to the culpability of the appellants in the homicidalBdeath of the deceased. Even the recovery of the weapon and thedress, at the instance of the appellant in the latter appeal cannot,by itself, be conclusive as admittedly, the panch witnesses fortheir recovery also did not support the prosecution. Theremaining circumstances relied on by the prosecution and heldCas proved by the courts below would not unerringly point to theguilt of the appellants. Thus, it is unsafe on the said circumstancesto maintain the conviction of the appellants; thus, the benefit ofdoubt is extended to them. The appellants are acquitted. [Paras28-30][680-F-H; 681-A-C]

DPrakash v. State of Rajasthan (2013) 4 SCC 668 :[2013] 2 SCR 458; Sharad Birdhichand Sarda v. Stateof Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;Anwar Ali & Anr. v. State of Himachal Pradesh (2020)10 SCC 166:[2020] 9 SCR 878; Shivaji Chintappa PatilEv. State of Maharashtra (2021) 5 SCC 626; Sarbir Singhv. State of Punjab 1993 SCC (Cri) 860; Brijlal PrasadSinha v. State of Bihar (1998) SCC (Cri) 1382; TomasoBruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC178 : [2015] 1 SCR 721; Nandu Singh v. State ofMadhya Pradesh (now Chhattisgarh) 2022 SCCFOnLine SC 1454 – referred to.

Case Law Reference

[2020] 9 SCR 878referred toPara 19(2021) 5 SCC 626referred toPara 20

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.954 of 2011.

From the Judgment and Order dated 12.08.2009 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal AppealNo. 7 of 2004.

With

Criminal appeal No. 955 of 2011.

Sanjay Jain, Sunil Kumer Verma, Advs. for the Appellant.

Sachin Patil, Siddharth Dharmadhikari, Geo Joseph, RisviMuhammed, Durgesh Gupta, Aaditya Aniruddha Pande, Advs. for theRespondent.

The Judgment of the Court was delivered by

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 Courtof Judicature at Bombay, Bench at Nagpur in Criminal Appeal No.7 of2004. The former appeal was filed by the second and third appellantstherein who were accused Nos.2 and 3 in Sessions Trial No.80 of2002 on the file of Additional Sessions Judge, Bhandara. The soleappellant in the latter appeal was the first appellant in Criminal AppealNo.7 of 2004 and he was the first accused in Sessions Trial No.80 of2002. During the pendency of the trial, the fourth accused breathedhis last and the first appellant in the former appeal viz., Sri Hiralal diedduring its pendency. Hence, qua him the former appeal stands abated.As per the judgment of the Trial Court the appellants were convictedunder Sections 302 read with Section 34 of the Indian Penal Code,1860 (hereinafter, ‘the IPC’) for having committed murder of one RahulPundlik Meshram (hereafter referred to as ‘the deceased’). They weresentenced to suffer imprisonment for life besides imposing a fine ofRs.500/- and in default of payment of fine they are to suffer rigorousimprisonment for one month each. As per the impugned judgment theconviction and sentences thus imposed by the Trial Court wereconfirmed. Hence, these appeals.

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A2. The prosecution case, in nutshell, is as follows: -

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A2. The prosecution case, in nutshell, is as follows: - On 12.12.2001 at about 5.00 pm, the deceased along with a friendwent to Indira Gandhi Ward at Bandhara where the house of ChintamanGiddu Gatey (PW-8) situates. After parking his Luna Moped the deceasedwent inside of the house of Chintaman Giddu Gatey (PW-8), leaving hisBfriend 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 accusedNos.1 and 3, who are the surviving convicts (hereinafter referred to as‘the appellants’), came there on two motorcycles and they too, wentCinside the house of Chintaman Giddu Gatey (PW-8). All of them smokedganja. While so, appellant in the latter appeal viz., accused No.1questioned the deceased as to why he along with his friend ParagSukhdeve assaulted his brother. It is worthy to note at this juncture thataccording to the prosecution, on 29.09.2001, the deceased along with hisfriend Parag Sukhdeve assaulted the brother of the appellant in the latterDappeal. Though, the deceased denied assault on his brother, the appellantin the latter appeal (the first accused) continued to say that the deceaseddid dishonesty and assaulted his brother. Though, the friend of thedeceased who was waiting outside came inside and asked him to comeout the deceased remained there and thereupon his friend left the place.ELater, 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 deadbody of the deceased was found by one Manoj Goswami, a resident ofPaladi. The case is that upon being informed by the villagers, ManojFGoswami (PW1) went to the spot and on finding the dead body he wentto Bhandara Police Station and lodged a report. As per the prosecution,the deceased was taken by the accused on one of the motorcyclesthrough National Highway No.6 towards Lakhani town. To the north ofthe said National Highway and at a distance of about 10 kilometers fromBhandara there was another road leading to village Paladi and on theGside of the said Bhandara-Paladi road, at about by one kilometer fromNational Highway No.6, they stopped their motorcycles and startedassaulting the deceased using sharp weapons. The deceased sustained22 ante-mortem injuries, all over his body and met with instantaneousdeath.H

3. Admittedly, there was no eye-witness in this case. Based onthe circumstantial evidence, the Trial Court found the appellants guiltyand convicted and sentenced them, as mentioned above. Aggrieved bythe conviction and consequent sentence, the surviving accused viz.,accused Nos. 1 to 3 in the said Sessions Trial preferred appeal beforethe High Court. After considering the circumstances relied on by theTrial Court and despite its reservation against some of the proceduresfollowed the High Court confirmed the conviction and sentence imposedon appellants by the Trial Court holding that certain proven circumstancesare material circumstances and would complete the requisite chain.

4. The appellants in the captioned appeals challenge the findingsof conviction and consequential imposition of sentence raising variousgrounds. But, before considering the contentions against the concurrentfindings raised by the appellants, we find it only appropriate to refer tothe following decisions on the law relating circumstantial evidence.

5. In the decision in Sarbir Singh v. State of Punjab[1], this Courtobserved and held thus: - “5. …But in a case based on circumstantial evidence neitherthe accused nor the manner of occurrence is known to thepersons connected with the victim. The first information reportis lodged only disclosing the offence, leaving to theinvestigating agency to find out the offender.

6. It is said that men lie but circumstances do not. Under thecircumstances prevailing in the society today, it is not true inmany cases. Sometimes the circumstances which are soughtto be proved against the accused for purpose of establishingthe charge are planted by the elements hostile to the accusedwho find out witnesses to fill up the gaps in the chain ofcircumstances. In countries having sophisticated modes ofinvestigation, every trace left behind by the culprit can befollowed and pursued immediately. Unfortunately it is notavailable in many parts of this country. That is why courtshave insisted (i) the circumstances from which the conclusionof guilt is to be drawn should in the first instance be fullyestablished; (ii) all the facts so established should be AB

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consistent only with the hypothesis of the guilty of the accusedand should be such as to exclude every hypothesis but theone sought to be proved; (iii) the circumstances should be ofa conclusive nature; and (iv) the chain of evidence shouldnot have any reasonable ground for a conclusion consistentwith the innocence of the accused.

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6. Further it was held therein as under:-

7. …It has been impressed that suspicion and conjectureshould not take the place of legal proof. It is true that thechain of events proved by the prosecution must show thatwithin all human probability the offence has been committedby the accused, but the court is expected to consider the totalcumulative effect of all the proved facts along with the motivesuggested by the prosecution which induced the accused tofollow a particular path. The existence of a motive is often anenlightening factor in a process of presumptive reasoning incases depending on circumstantial evidence.

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7. In Brijlal Prasad Sinha v. State of Bihar[2], this Court held thus:

“In a case of circumstantial evidence the prosecution is boundEto establish the circumstances from which the conclusion isdrawn must be fully proved; the circumstances should beconclusive in nature; all the circumstances so establishedshould be consistent only with the hypothesis of guilt andinconsistent with the innocence; and lastly the circumstancesshould to a great certainty exclude the possibility of guilt ofFany person other than the accused. The law relating tocircumstantial evidence no longer remains res integra and ithas been held by catena of decisions of this Court that thecircumstances proved should lead to no other inference exceptthat of the guilt of the accused so that, the accused can beGconvicted of the offences charged. It may be stated as a ruleof caution that before the court records conviction on thebasis of circumstantial evidence, it must satisfy itself that thecircumstances from which inference of guilt could be drawnhave been established by unimpeachable evidence and the H2 (1998) SCC (Cri) 1382

circumstances unerringly point to the guilt of the accused andfurther, all the circumstances taken together are incapable ofany explanation on any reasonable hypothesis save the guiltof the accused.”

8. In the decision in Prakash v. State of Rajasthan[3], this Courttook note of the following principles laid down regarding the law relatingcircumstantial evidence in Sharad Birdhichand Sarda v. State ofMaharashtra[4]: - “153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case againstan accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established. It may be noted herethat this Court indicated that the circumstances concerned‘must or should’ and not ‘may be’ established. There is notonly a grammatical but a legal distinction between ‘may beproved’ and ‘must be or should be proved’ as was held by thisCourt in Shivaji Sahabrao Bobade v. State of Maharashtra[(1973) 2 SCC 793] where the following observations weremade:

19. …”Certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a court canconvict and the mental distance between ‘may be’ and ‘mustbe’ is long and divides vague conjectures from sureconclusions.”

(2) The facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except theone to be proved, and 3 (2013) 4 SCC 668

4 (1984) 4 SCC 116

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A(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.

B154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.”

9. After noting the above five golden principles, it was held inPrakash’s case (supra), that they would constitute the Panchsheel ofCthe proof of a case based on circumstantial evidence and convictioncould be sustained on the basis of last seen, motive and recovery ofincriminating articles in pursuance of the information given by the accusedif those five golden principles of the proof of a case based on circumstantialevidence are satisfied.

D10. Virtually, the law laid down relating circumstantial evidence inthose decisions are unfailingly followed by this Court while dealing withthe cases where conviction is rested on circumstantial evidence.

11. We are also fully aware of the position that normally in anappeal by special leave under Article 136 of the Constitution of IndiaEwhen concurrent findings of conviction and sentence are against theappellants / convicts there would be no scope for interference except inexceptional circumstances. In the decision in Tomaso Bruno & Anr. v.State of Uttar Pradesh[5], a Three Judge Bench of this Court held:- “42. By and large, this Court will not interfere with theFconcurrent findings recorded by the courts below. But wherethe evidence has not been properly appreciated, materialaspects have been ignored and the findings are perverseunder Article 136 of the Constitution, this Court wouldcertainly interfere with the findings of the courts below thoughconcurrent. In a case based on circumstantial evidence,Gcircumstances from which inference of guilt is sought to bedrawn should be fully proved and such circumstances mustbe of conclusive nature pointing to the guilt of accused. Thereshall be no gap in such chain of circumstances….”

12. Heard, Mr. Sanjay Jain and Mr. Sunil Kumar Verma, learnedcounsel for the appellant and Mr. Sachin Patil, learned counsel for therespondent-State.

13. In view of the law relating circumstantial evidence expositedunder the decisions referred hereinbefore and the scope of interferencein exercise of power under Article 136 of the Constitution of India inrespect of cases where concurrent findings are recorded by the LowerCourts, we are of the considered view if doubt lingers with respect tothe probability or conclusiveness of any circumstance relied on by theprosecution, forming a link in the chain of circumstances pointing to theguilt of convict, despite the existence of concurrent findings, the evidencehas to be scrutinized by this Court so as to ensure that the totality of theevidence and circumstances relied on, did constitute a complete chainand it points to the guilt of the convict and it did not brook any hypothesisother than the guilt of the convict. Upon hearing the learned counsel onboth sides and on careful consideration of the evidence and materials onrecord, we are of the considered view that the case at hand is a befittingcase where such an exercise is required. Before we undertake such anexercise, it is only proper to look into the questions whether the death ofRahul 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 reportmade the Courts below to concurrently come to the conclusion that deathof Rahul Pundlik Meshram is homicidal in nature. The postmortem reportwould reveal the presence of 22 ante-mortem injuries on the body of thedeceased. It would also reveal that out of the 22 ante-mortem injuries,except 7 of these are incised wounds. The said 7 injuries are seriousstab injuries inflicted on different parts of the body. It is taking into accountthe nature of all those injuries that PW-13 opined that the cause of deathof deceased was due to multiple injuries on the chest and back involvingthe vital organs such as heart and lungs. We have absolutely no hesitationto hold in the said circumstances that the Courts below have rightlyarrived at the conclusion, in the light of the evidence that death of RahulPundlik Meshram is homicidal in nature.

15. Admittedly, the conviction of the appellants is rested oncircumstantial evidence only. As per the Trial Court, the followingcircumstances were relied upon by the prosecution to establish the guiltof the accused, including the appellants, before it: - AB

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672SUPREME COURT REPORTS

A“1. Visit of the deceased Rahul Meshram to the house ofChintaman Gatey (P.W.8).

2. While the deceased was at the house of Chintaman, theaccused nos. 1 to 3 and deceased accused Raju Pandearrived at the house of Chintaman Gatey.

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3. The motive altercation had taken place between theaccused on one side and the deceased on the other side.

4. That, the accused persons, under the pretext ofconsuming liquor persuaded the deceased toaccompany them.

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5. That, the deceased and the accused nos. 1 to 3 anddeceased accused Raju Pande, left the house ofChintaman Gatey, on two motor-cycles.

6. That, immediately, there after i.e. after the deceased leftDthe house of Chintaman Gatey with accused persons,he was found met with homicidal death.

7. Recovery of the weapon from the accused No.1 withthe blood stains of Group ‘A’ which was of the deceased.

8. The Opinion of the Dr. Sau. Manjusha Rangari that byEthe said weapon, the injuries which were found on thedead body of the deceased, could be caused.

9. The discovery of the fact of burning clothes stainedwith blood by the accused No. 1 and those clothes werebelonged to accused nos. 1 and 2.

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10. The full pant belonged to accused No.1 was stainedwith blood, of blood group “A” which was of thedeceased.”

16. After considering the said relied on circumstances, the TrialCourt held that the prosecution had succeeded in establishing eightGcircumstances, as under: -

“1. The visit of deceased Rahul Meshram at the house ofChintaman Gatey.

2. Arrival of the accused No. 1 to 3, alongwith thedeceased accused, at the house of Chintman Gatey.H

3. That, the accused No.1 to 3 and deceased accusedAsucceeded in persuading the deceased to join them forconsuming liquor.

4. That, the accused No.1 to 3, deceased accused RajuPande, and deceased Rahul Meshram left the house ofChintaman Gatey, on two motor cycles.B

5. That immediately after the deceased and the accusedpersons left the house of Chintaman Gatey, thedeceased was found murdered.

6. At the instance of the accused No.1 weapon havinghandle at one end and the other end sharp and edgedone, was recovered, which was found stained with blood,of Group “A” which was of the deceased.

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7. Doctor opined that by the said weapon, the injuriescould be caused, which were found on the dead-bodyof the deceased.

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8. The accused No.1 burnt the clothes at place near thewater tank in M.S.E.B, Colony, Bhandara.”

17. Consequently, the Trial Court considered the question whetherthe culled-out circumstances would form a complete chain unerringlypointing to the guilt of the accused and that accused alone and obviously,the conviction was entered into upon answering that question in theaffirmative. According to the Trial Court, the following three provencircumstances are sufficient to constitute circumstantial evidenceunerringly connecting the accused with the homicidal death: - E

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“1.That, while the deceased was at the house of ChintamanGatey, deceased accused Raju Pande along with theaccused Nos.1 to 3. came to the house of ChintamanGatey and succeeded in persuading the deceased toaccompany them, for consuming liquor.

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2. That the deceased in the company of the accused Nos.1to 3 and deceased accused Raju left the house ofChintaman Gatey, on two moto cycles.

3. That, soon thereafter, the deceased was foundmurdered.”

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18. There can be no doubt with respect to the fact that in a casewhere the conviction is based on circumstantial evidence, motive assumesgreat significance. A Three Judge Bench of this Court in Nandu Singhv. State of Madhya Pradesh (now Chhattisgarh)[6] by its judgmentdated 25.02.2022, after observing thus, held as under:- A

B“It is not as if motive alone becomes the crucial link in thecase to be established by the prosecution and in its absencethe case of prosecution must be discarded. But, at the sametime, complete absence of motive assumes a differentcomplexion and such absence definitely weighs in favour ofthe accused.”

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We may add here that just like complete absence of motive failureto establish motive after attributing one, should also give a differentcomplexion in a case based on circumstantial evidence and it will certainlyenfeeble the case of prosecution.

D19. In the decision in Nandu Singh’s case an earlier decision ofthis Court in Anwar Ali & Anr. v. State of Himachal Pradesh[7], wasquoted with agreement, thus: -

“24. Now so far as the submission on behalf of the accusedthat in the present case the prosecution has failed to establishEand prove the motive and therefore the accused deservesacquittal is concerned, it is true that the absence of provingthe motive cannot be a ground to reject the prosecution case.It is also true and as held by this Court in Suresh ChandraBahri v. State of Bihar (1995 Supp (1) SCC 80) that if motiveis proved that would supply a link in the chain ofFcircumstantial evidence but the absence thereof cannot be aground to reject the prosecution case. However, at the sametime, as observed by this Court in Babu (Babu v. State ofKerala, (2010) 9 SCC 189), absence of motive in a casedepending on circumstantial evidence is a factor that weighsGin favour of the accused. In paras 25 and 26, it is observedand 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 6 2022 SCC OnLine SC 1454H7 (2020) 10 SCC 166

circumstantial evidence and observed: (SCC pp. 87-88,paras 38-39)

‘38. … the motive is a thing which is primarily known tothe accused themselves and it is not possible for theprosecution to explain what actually promoted or excitedthem to commit the particular crime.

39. The motive may be considered as a circumstance whichis relevant for assessing the evidence but if the evidence isclear and unambiguous and the circumstances prove theguilt of the accused, the same is not weakened even if themotive is not a very strong one. It is also settled law thatthe motive loses all its importance in a case where directevidence of eyewitnesses is available, because even if theremay be a very strong motive for the accused persons tocommit a particular crime, they cannot be convicted if theevidence of eyewitnesses is not convincing. In the sameway, even if there may not be an apparent motive but if theevidence of the eyewitnesses is clear and reliable, theabsence or inadequacy of motive cannot stand in the wayof conviction.’

26. This Court has also held that the absence of motive in acase depending on circumstantial evidence is a factor thatweighs in favour of the accused. (Vide Pannayar v. State ofT.N. (2009) 9 SCC 152)”.

20. In the decision in Shivaji Chintappa Patil v. State ofMaharashtra[8], 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 notbe relevant, in a case of circumstantial evidence, motive playsan important link to complete the chain of circumstances.”

21. In the case on hand, the prosecution alleged a motive. Accordingto the prosecution on 29.09.2001, the deceased along with his friendParag Sukhdeve assaulted the brother of appellant in the latter appeal(the first accused in the Sessions Trial). It is also the case of theprosecution that after the accused persons entered the house of PW-8, AB

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AChintaman Giddu Gatey the first accused/the appellant in the latter appealhurled abuses on the deceased and asked him why he along with hisfriend Parag Sukhdeve assaulted his brother. It is also the case of theprosecution that though the deceased denied any such occurrence, thesaid appellant continued to say that the deceased had done dishonestyand assaulted his brother. After alleging motive as above, prosecutionBhad failed to establish the same. In this context, it is to be noted that theTrial Court made a positive finding that the prosecution had miserablyfailed to establish the alleged motive. Despite the said finding of the TrialCourt and despite that issue was pointedly raised before the High Court,obviously the High Court in the impugned judgment did not consider theCsaid aspect at all. This failure on the part of the High Court is a groundspecifically taken in this appeal. In the light of the decision in AnwarAli’s case (supra) and Shivaji Chintappa Patil’s case(supra), and alsobased on what we held in respect of the impact of failure to establish thealleged motive in a case based on circumstantial evidence it can only beheld that the said failure had weakened the case of the prosecution. ThisDaspect 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 ofcircumstances and dispel the hypothesis of the innocence of the appellant.In that context, it is only appropriate to refer to the circumstance mainly,Erelied on and held as proved by the High Court for confirming theconviction of the appellants viz., that the deceased was ‘lastly seen’ inthe company of the appellants just prior to the finding of his dead body.Having observed thus, the High Court held that the proof thereof woulddepend upon the quality and nature of the testimonies of ChintamanF(PW-8) and Dhanraj (PW-10).

23. Paragraph 14 of the impugned judgment would reveal thatafter referring to evidence based on ‘last seen theory’, recovery ofweapons and seizure of clothes the High Court observed that thefollowing twin material circumstances would complete the requisitechain, namely: -G

“(a) On the day of incident, at about 4.00 p.m., deceasedRahul and all the appellants were present at the house ofChintaman (PW-8).

(b) Deceased Rahul left the house of Chintaman at about 5.00Hp.m., on the day of incident along with the appellants and within two hours, the dead body of Rahul with multiple inciseand stab wounds was found lying by the side of the road, 10kms. away from Bhandara city. There is nothing on record toshow that deceased Rahul had enmity withanybody otherthan the appellants and in absence thereof, the possibility ofsomebody else committed assault on the deceased and wouldhave caused so many multiple injuries is completely ruledout.”

24. With respect to the material circumstance referred to as (a) inthe impugned judgment, as extracted above, what is stated by the HighCourt is totally against the weight of evidence. The evidence of PW-8when juxtaposed to that of PW-10 would reveal the said position. It isstated therein that on the day of incident, at about 04.00 pm, the deceasedRahul Pundlik Meshram and all the appellants were present at the houseof 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, theevidence relating the time at which the deceased was lastly seen withthe accused has to be proved conclusively as when it is proximate withthe time of finding the dead body the burden to establish the innocencewould be that of the accused. Indisputably, in contrast to the aforesaidstatement therein what is deposed by Chintaman (PW-8) is that on theday of the incident at about 05.00 pm, the deceased came to his houseand then asked for a glass of water and thereafter, Raju Pande (thedeceased accused No.4) along with three other persons with respect towhom he got only nodding acquaintance, came to the house. He wouldalso depose that thereafter Raju Pande started hurling abuses on thedeceased. Both the Trial Court and the High Court noted the case of theprosecution that Raju Pande hurled abuses on the deceased for havingassaulted the brother of accused No. 1, along with his friend Sri ParagSukhdeve. However, a scanning of the oral testimony of PW-8 wouldshow that he did not depose that Raju Pande hurled abuses on thedeceased 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 ofganja, or availability of ganja in his house. According to him Raju Pandeand accused No. 1 alone had come to the chappari of his house and theremaining 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 Pandeand the deceased left his house. Thus, it is obvious that the statement in AB

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Athe material circumstance mentioned as ‘a’ in paragraph 14 of theimpugned 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 returninghome from S.T. Stand and then he found two motorcycles parked at thehouse of Chintaman (PW-8), that at the house of Chintaman, 4 to 5persons were then sitting and at that time accused Nos. 2 and 3 viz.,Bdeceased first appellant and the surviving appellant in the former appeal,whom he knew by face and one Pande were present. It is pertinent tonote that PW-10 did not depose about the presence of the deceased inthe house of Chintaman when himself, Pande and the other accusedpersons were there in the said house. Naturally, in his oral testimony heChad not deposed anything about the hurling of abuses by Pande on thedeceased. Another aspect of his oral testimony is that he deposed aboutthe query made by Pande about the identity of a pregnant girl who residesbehind the house of Chintaman. According to him, Chintaman told Pandethat he did not know anything about that girl and then Pande asked himabout her. On being told that he did not know anything about her, PandeDasked him to leave that place, going by the deposition of PW-10. At thisjuncture, it is to be noted that PW-10 did not make any mention aboutthis aspect in his evidence. It is true that the Trial Court found that this isan improved version by PW-10. Anyway, the fact revealed from the oraltestimony of PW-10 is that he saw the accused persons, including RajuEPande and the appellants herein, at the house of Chintaman (PW-08)immediately after 04:00 PM on the day of occurrence and he did notspeak about the presence of the deceased in the house of PW-8. Thatapart, according to him, Raju Pande was enquiring with him and PW-8about a pregnant girl who was residing behind the house of PW-8. It isalso relevant to note that the evidence on record would further go toFshow that PW-8 had not mentioned about the alleged hurling of abusesby deceased accused Raju Pande on the deceased in his statement underSection 161 of Cr.P.C. Above all, PW-8 did not mention the presence ofPW-10 at his residence anytime during the period from 04:00 PM to06:00 PM on that fateful day.G25. When the above being the factual position obtained from theoral testimonies of PW-8 and PW-10, the Hon’ble High Court whichobserved that the circumstance of ‘last seen’ is an important circumstancein the case on hand and its proof would depend upon the quality andnature of the testimonies of PW-8 and PW-10 should have bestowed aHthreadbare, 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 havecarefully considered the question whether the solitary oral evidence ofPW-8 would conclusively prove the factum of the deceased lastly seenin the company of the deceased. On our careful scrutiny of the evidenceof PW-8 and PW-10 as above we are constrained to hold that both theTrial Court and the High Court have failed to make a proper exercise ofthat task taking into account the fact that the prosecution relies only oncircumstantial evidence to establish the guilt of the accused. Accordingto us, the discussion as above would go to show that virtually the evidenceof PW-10 not only failed to lend corroboration to the evidence of PW-8but also puts it under a shadow of doubt. Hence, according to us, theHon’ble High Court went wrong in holding that as relates the saidcircumstantial evidence of ‘last seen’ the evidence of PW-8 getscorroboration from the evidence of PW-10 and in that view of the matter,in agreeing with the conclusion of the Trial Court that the prosecutionhas succeeded in proving that the deceased was lastly seen with theaccused, conclusively.

26. The above-mentioned situation constrained us to scan theevidence of PW-8 scrupulously to find out whether his sole testimony isunimpeachable and impeccable to conclusively establish the joining upof the deceased and the accused/convicts at the house of PW-8 at therelevant point of time as alleged by the prosecution. In this context, it isto be noted that the prosecution case would suggest that the house ofPW-8 is a hub of ganja smokers. But then, PW-8 stoutly denied of anykind of involvement with ganja business. Hence, the question is why itstill attracts and allures persons? If the prosecution case is to be believedthen what made all those persons viz., the deceased, the accused/convictsand PW-10, visit the house of PW-8 at that time? Obviously, there is noindicatory material on that count. It is to be noted that it is not the caseof 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 ofPW-8 on his Luna Moped along with his friend and he went inside afterleaving the friend near the parked vehicle. PW-8 did not say that he hadfriendship with the deceased and he deposed only to the effect that heknew the deceased and the deceased on occupying a seat asked for aglass of water. Soon, thereafter, Raju Pande and the three others withwhom he had only nodding acquaintances came to his house. PW-8

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Awould further depose that thereupon Raju Pande hurled abuse on thedeceased and then the deceased pleaded that he did no wrong. As notedearlier, it has come out in evidence that the act of hurling of abuse byRaju Pande on the deceased was not recorded in the previous statementof PW-8 recorded under Section 161, Cr.P.C. Above all, PW-8 in histestimony before the court did not depose anything even to suggest thatBhurling of abuse by Raju Pande was because of the assault on his brotherby the deceased and his friend Parag Sukhdeve. Then, how and forwhat reason this incident was alleged as the motive for the murder ofthe deceased Rahul? Who introduced this story as part of the prosecutioncase before the court. Certainly, it cannot be said that it was PW-10Cwho spoke to that effect as his testimony would reveal he had not evenspoken about the presence of the deceased at the house of PW-8 whenthe accused/convicts were seen there.

27. Another aspect revealed from the evidence on record is thatas per PW-10 when he entered the house of PW-8 after 04:00 p.m. onDthe day of occurrence, Raju Pande and the others were present thereand Raju Pande asked him about a pregnant girl who was residing behindthe house of PW-8. According to PW-10, Raju Pande asked the same toPW-8 as well and both of them revealed their lack of knowledge aboutsuch a girl and then Raju Pande asked PW-10 to leave the place andthereupon he left the place. It would suggest, if it was true that he reachedEthere along with others ahead of the deceased, in search of such a girllest why he got infuriated/dejected over it and asked PW-10 to leave theplace. PW-8 did not speak about the presence of PW-10 and also aboutsuch a query made by Raju Pande.

28. For all the above reasons and circumstances, it is unsafe toFrest on the sole testimony of PW-8 to apply the ‘last seen theory’ in thiscase against the appellants especially, going by PW-8 he had only noddingacquaintance with them.

29. Thus, in a nutshell the correctness of the last seen versionemanating from PW-8-Chintaman becomes doubtful, especially againstGthe appellants herein. As noticed earlier, virtually, the oral testimonies ofPW-8 and PW-10 are at variance about the last seen and it becomesinconclusive for the reasons mentioned hereinbefore. We have also foundthat the prosecution has miserably failed to prove the alleged motive. Insuch circumstance, though the deceased had met with a homicidal deathit cannot be said that the rest of the circumstantial evidence culled outH

by the courts below unerringly point to the culpability of the appellants inthe homicidal death of Rahul Pundlik Meshram. Even the recovery ofthe weapon and the dress, at the instance of the appellant in the latterappeal cannot, by itself, be conclusive as admittedly, the panch witnessesfor their recovery also did not support the prosecution. In our consideredview, the remaining circumstances relied on by the prosecution and heldas proved by the courts below would not unerringly point to the guilt ofthe appellants.

30. Thus, in our view, it is unsafe on the aforesaid circumstancesto maintain the conviction of the appellants; we thus, extend to them thebenefit of doubt. Accordingly, we order for the acquittal of the appellants.The appeals are thus allowed, upsetting the judgments and orders of theHigh Court as also that of the court of Session. The bail bonds executedby the appellants stand discharged.

Nidhi Jain

Appeals allowed.

(Assisted by : George J. and Rakhi, LCRAs)

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