PAVAN VASUDEO SHARMA versus STATE OF MAHARASHTRA THROUGH SECRETARY on 25 March 2019

[2019] 5 S.C.R. 11

PAVAN VASUDEO SHARMA

v.

STATE OF MAHARASHTRA THROUGH SECRETARY

(Criminal Appeal No.519 of 2019)

MARCH 25, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Penal Code, 1860 – ss.302 and 392 – Bombay Police Act –s.37(1) r/w. s.135 – Arms Act – s.3 read with s.25 – Prosecutioncase that four persons including accused Nos.1 & 2 kidnapped aboy and called for a ransom – Police raided a building andapprehended four persons including the accused persons –During the personal search of Appellant-accused No.1, a pistol, 2live cartridges and two cell phones were recovered – Pistolrecovered from accused No.1 was a service weapon which wasentrusted to PW-11 - Police Naik, which was earlier snatched fromhim by unknown persons in a separate incident – Cartridgesrecovered from the accused No.1 was test fired by the forensicanalyst from the same pistol – The features of the firing pinimpression on the cartridge tallied with from a bullet recovered frombody of a deceased ‘B’ in a different incident – When the body of‘B’ was recovered, it was alleged that his two mobile phones wererobbed – Further, it was alleged that ransom call in the kidnappingcase was made by accused persons from the mobile number ofdeceased ‘B’ – Accused no.1 & 2 were tried for murder of ‘B’ andother offences u/ss.302, 392 r/w. s.34 of IPC, s.37(1) r/w. s.135 ofthe Bombay Police Act and s.3 read with s.25 of the Arms Act – Trialcourt convicted accused no.1 & 2 – High Court acquitted accusedno.2 u/s. 302, 392 of IPC – Aggrieved, appellant-accused no.1 filedappeal – Held: It is a settled principle that circumstances reliedupon must rule out every single hypothesis except the guilt of theperson accused of an offence – The first circumstanceregarding mobile phone was not proved – The mobile number wasnot subscribed by deceased ‘B’ but was subscribed by one ‘S’ andthere was no link between the two – The second circumstance wasregarding bullet recovered from the body of the deceased – It istrue that bullet recovered from the body of ‘B’ matched with the

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Aservice weapon which was allocated to PW-11-Police Naik buttheory that the weapon was snatched by accused was not proved –No Test Identification of accused persons was held – Bothcircumstances were not sufficiently established against the accused– There were too many missing links and the material on recorddoes not exclude every single hypothesis except the guilt of theBman – Therefore, benefit of doubt given to the appellant –Appellant-accused no.1 acquitted of the charges levelled againsthim.

Allowing the appeal, the Court

CHELD: 1. Two circumstances which are principally reliedupon by the prosecution are the recovery of a mobile phone whichwas allegedly used for making demands of ransom; and Seizureof 9 mm pistol. The first circumstance regarding mobile phoneis not proved at all. The mobile number was not subscribed bydeceased ‘B’ but was subscribed by ‘S’. No link between theseDtwo persons has been established nor any bill in the name of said‘B’ was produced on record. Since the evidence that the mobilenumber was subscribed by said ‘S’ was led by the prosecutionitself, it cannot be assumed that said mobile number was, in fact,subscribed by ‘B’. The connection which would link the accusedEwith the murder of ‘B’, on this front is completely missing. Asregards the second circumstance, it is true that the bulletrecovered from the body of the deceased matched with theservice weapon which was allocated to PW11-Police Naik but thetheory that the weapon was snatched by the accused is notsufficiently established. No Test Identification Parade was heldFand if held, no material in that behalf has been produced on record.The second circumstance, therefore, is not sufficiently establishedas against the accused. [Paras 9 and 15] [16-G-H; 19-B-D]

2. Applying the principles as culled out in the SharadBirdhichand Sarda decision, which have stood the test of time,Gthe matter is not free from doubt. The circumstances relied uponmust rule out every single hypothesis except the guilt of theperson accused of an offence. There are too many missing linksin the present matter and the material on record does notexclude every single hypothesis except the guilt of the man.

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Therefore, the benefit of doubt given to the Appellant. TheAppellant is acquitted of the charges levelled against him.[Paras 17, 18] [20-E-G]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.

Case Law Reference

[1985] 1 SCR 88 relied onPara 16

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.519 of 2019.

From the Judgment and Order dated 24.03.2015 of the High Courtof Judicature at Bombay in Criminal Appeal No. 700 of 2013

Ravi Prakash Mehrotra, Ms. Deepti R. Mehrotra, Ankit Agarwal,Advs. for the Appellant.

Anoop Kandart, Nishant Ramakantrao Katneshwarkar, Advs. forthe Respondent.

The Judgment of the Court was delivered by 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 24.03.2015passed by the High Court of Judicature at Bombay dismissing hisCriminal Appeal No.700 of 2013.

3. According to the prosecution, Police Naik Nagare (laterexamined as PW11 in the trial) was robbed of his pistol (service weapon)and walkie talkie 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 saidincident, which FIR in the present proceedings was placed on recordvide Exhibit 106. The FIR did not name any person but gave descriptionof all the three persons. The said case was separately tried.

4. On 04.01.2006 PW1-PSI Dabir received a phone call that oneinjured person was lying near a motorcycle on Mumbai-Pune highway.Said PW1 went to the spot and took the injured to the hospital where hewas declared dead. On the basis of motorcycle driving licence found in A

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Athe trousers of the deceased, he was identified as one Bhima Waghmare.The family members were, thereafter, informed and FIR Exhibit 13 waslodged pursuant to which an offence was registered vide C.R.No.5 of2006. The investigation commenced and body was sent for post-mortem.PW3 Dr. Joshi conducted the post-mortem and found the followingexternal injuries:-B

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

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

(3) Abrasion over 9 cm. below iliac region left side 8 cm belowand 5 cm posterior to anterior superior iliac spine, admeasuring 2 ½ cmx superficial to deep.

(4) Abrasions on body as under:

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(A) Arm medial third anteriorly;

(B) Elbow posteriorly and

(C) Wrist anteriorly:

(D) (a) Thigh middle third.

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(b) Knee joint.”

Said PW3 Dr. Joshi found the following corresponding internalinjuries:- “Penetrating wound to abdominal wall, peritoneum superior sideFof left lobe of liver, shattering part of it. Coming out at inferiorside, entering into pancreas, shattering out the pancreas, penetratingat two sites at mesentery of small intestine. Two cm. in diametereach, going posterior medial to left kidney with large retro peritonealand peritoneal region. Fitting lumber spine no. 4 and 5 body withGindentation 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 musclesand fat left side, directed laterally and superiorly. Bullet recoveredfrom above mentioned side. Yellowish metal concavityat its base.”

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5. It is the case of the prosecution that when Bhima Waghmarewas shot, the firm arm used in the transaction was the same serviceweapon which was robbed from PW11 Police Naik Nagare. Soon afterthe murder, two cell phones belonging to Bhima Waghmare were alsoallegedly robbed, one of them being a cell phone of Nokia Companywith cell number [REDACTED]. This mobile was later used in the case ofkidnapping of a boy named Akash Lokhande, who was kidnapped on13.01.2006 and the calls for ransom were stated to have been madefrom the very same cell phone to PW 12 Sanjay Lokhande, father of theboy. An FIR was registered in relation to said kidnapping on 13.01.2006and 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 wasconfined in a building in Vimannagar, Pune. Accordingly, a raid wasarranged and when the police entered said building, they found PavanVasudeo Sharma (Accused No.1), Pankaj Ramgopal Jagaria (AccusedNo.2), Vasudeo Sharma and Rajendra Gaud to be present there. Thosepersons were apprehended.

During his personal search, a 9 mm pistol (service revolver) andtwo live cartridges were recovered from Accused No.1. Two cell phoneswere also found from him. In the search of Accused No.2, a chopperwas found. All those four persons came be to apprehended inkidnapping case. The recovered pistol was sent for forensic analysis.The forensic analyst found that the bullet which was recovered from thestomach of deceased Bhima Waghmare, was fired from the samepistol. The live cartridge that was recovered from Accused No.1 wastest fired by the forensic analyst from the same pistol and the featuresof the firing pin impression on the cartridge tallied with those found fromthe bullet recovered from the body of deceased Bhima Waghmare.

All the four apprehended persons were put up for identificationby PW11 Police Naik Nagare and according to the witness he couldidentify Accused Nos.1 and 2. However, no documentation as regardsthe Test Identification Parade was produced on record in the presenttrial.

7. After completion of investigation, Accused Nos.1 and 2 weretried for having committed the offences including the murder of said AB

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ABhima Waghmare, punishable under Sections 302, 392 read withSection 34 of the Indian Penal Code, Section 37(1) read with Section135 of the Bombay Police Act and Section 3 read with section 25 of theIndian Arms Act.

8. PW2 Seema widow of the deceased Bhima Waghmare statedBin her deposition that her husband was having two mobile numbers andone of them was [REDACTED]. She accepted that in her first reportingshe had expressed suspicion against some other persons includingprofessional rivals of her husband. PW5 Sachin Mahadev Shinde, NodalOfficer of Idea Cellular Company stated that mobile phone number[REDACTED] was subscribed by one Sanjay S. Roy having his address asCSai Prasad Foods Ltd., Telco Road, First Floor, near Raka GasCompany, Chinchwad Station, Pune-411019. He also produced the recordof calls details vide Exhibit 55 showing relevant pages of call details withregard to period January 2006 and February 2006 about user of themobile. PW6 Senior Police Inspector Pandurang Udhavrao Kohimkar Dwas the Investigating Officer in the matter. He did not depose aboutany Test Identification Parade nor did he produce any record regardingidentification of Accused Nos. 1 and 2 by PW11 Police Naik Nagare.PW12 Sanjay Lokhande, father of Akash Lokhande testified thatdemands for ransom were made from him and the communication was received from mobile number [REDACTED]. During his testimony heEalso mentioned that the person who was making the demand hadcasually mentioned that they had killed a person at Karjat.

9. It was the case of the prosecution that the pistol seized fromthe Apellant-Accused No.1 was a service weapon which was entrustedto PW11 Police Naik Nagare, which weapon was snatched from him onF20.12.2005. It was the same weapon which was found to be used in thecommission of offence of murder of Bhima Waghmare. There was nodirect evidence in the form of any eyewitness account which wasavailable on record and the prosecution mainly relied upon certaincircumstances in support of its case. The circumstantial evidence in theGmatter was based mainly on two features:-

a) Recovery of mobile phone which was allegedly used formaking demands of ransom; and

b) Seizure of 9 mm pistol as aforesaid.

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10. Apart from these two circumstances, reliance was also placedon the alleged extra judicial confession made by those demandingransom in their telephonic conversation with PW12-Sanjay Lokhande.Considering these circumstances to be clinching and pointing towardsnothing but the guilt of the accused, the Additional Sessions Judge, Pune,vide his judgment dated 11.01.2011 convicted said Accused Nos. 1 and2 for the offences punishable under Sections 302, 392 read with Section34 IPC, Section 37(1) read with Section 135 of the Bombay Police Actand Section 3 read with section 25 of the Indian Arms Act andsentenced them to suffer life imprisonment under the first count,rigorous imprisonment for two years under the second count, rigorousimprisonment for 15 days under the third count and rigorousimprisonment for six months under the fourth count.

11. Both the convicted accused challenged their conviction andsentence by preferring two appeals being Criminal Appeal No.700 of2013 and Criminal Appeal No.1056 of 2013. As regards Accused No.1,the High Court found that the prosecution had established its case andthere was sufficient evidence to prove that he was involved in the crimerelating to the murder of Bhima Waghmare. The High Court, however,found that there was no material to connect Accused No.2 with thecrime and, therefore, acquitted him of the charges levelled against himunder Sections 302, 392 of IPC and under Section 3 read with section 25of the Indian Arms Act but maintained his conviction and sentenceinsofar as offence under Section 37(1) read with Section 135 of theBombay Police Act was concerned.

12. It is a matter of record that the acquittal of Accused No.2 hasnot 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 responsiblefor robbing PW11 Police Naik Nagare of his service weapon.Though the description of all three persons was given in FIRExhibit 106, no Test Identification Parade was undertaken whenfour suspects were apprehended during investigation of thekidnapping case. No material in that behalf is produced onrecord. Nothing is clear on record as to who was the thirdperson.

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Ab) According to PW11 Police Naik Nagare he had lostconsciousness for a while after he was assaulted by those threepersons; that after he regained consciousness, he dialed 100from his mobile and intimated about the loss of his serviceweapon and walkie talkie. It is somewhat incongruent that thepersons who robbed him of his service weapon and walkie talkieBwould leave his mobile intact.

c) In terms of version of PW2 Seema, mobile number [REDACTED]was subscribed by her husband Bhima Waghmare. On theother hand, the evidence led by the prosecution itself in theform of testimony of PW5 Sachin Mahadev Shinde shows thatCmobile number [REDACTED] was subscribed by one Sanjay SRoy. Again, the prosecution has failed to establish the link, ifany, between said Sanjay S Roy and Bhima Waghmare andwhether said Sanjay S Roy had ever handed over his mobile toBhima Waghmare.

Dd) PW2 Seema in her original version had expressed suspicion aboutcertain professional rivals of her husband.

e) The assertion that one of the persons making ransom calls haddisclosed that they had killed a person at Karjat did not come inthe examination-in-chief of PW12 Sanjay Lokhande butEappeared in his cross-examination. It was thus not the specificcase of the prosecution that any extra judicial confession wasmade to PW12 Sanjay Lokhande.

f) The matter has one more dimension. While ordering acquittalof Accused No.2, insofar as principal charges are concerned,Fhis conviction for offence under Section 37(1) read with Sec-tion 135 of the Bombay Police Act was maintained by the HighCourt. We, thus, have to proceed on the footing that AccusedNo. 2 was also guilty of snatching the service weapon of PW11Police Naik Nagare but not of murder.

Gg) There was a gap of about 15 days between the snatching of theservice weapon and murder.

14. With the acquittal of Accused No.2 of the principal chargeunder Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone whowas guilty of the offence punishable under Section 302 IPC.

15. Two circumstances which are principally relied upon by theprosecution are already mentioned hereinabove. The first circumstanceregarding mobile phone is not proved at all. The mobile number was notsubscribed by deceased Bhima Waghmare but was subscribed by SanjayS. Roy. No link between these two persons has been established norany bill in the name of said Bhima Waghmare was produced on record.Since the evidence that the mobile number was subscribed by said SanjayS. Roy was led by the prosecution itself, it cannot be assumed that saidmobile number was, in fact, subscribed by Bhima Waghmare. Theconnection which would link the accused with the murder of BhimaWaghmare, on this front is completely missing. As regards the secondcircumstance, it is true that the bullet recovered from the body of thedeceased matched with the service weapon which was allocated to PW11Police Naik Nagare but the theory that the weapon was snatched by theaccused is not sufficiently established. No Test Identification Paradewas held and if held, no material in that behalf has been produced onrecord. The second circumstance, therefore, is not sufficientlyestablished as against the accused.

16. The law on the point of appreciation of cases based oncircumstantial evidence is very clear. It was laid down by this Court inSharad Birdhichand Sarda vs. State of Maharashtra[1]as under:- “153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe 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 here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra[2] where the observations were made: [SCC para19, p. 807: SCC (Cri) p. 1047]

1 (1984) 4 SCC 116

2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783

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“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

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(2) the facts so established should be consistent only with theBhypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

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

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

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanDprobability the act must have been done by the accused.”

154. These five golden principles, if we may say so, constitute thepanchsheel of the proof of a case based on circumstantialevidence.”

17. Applying the principles as culled out in the aforesaid decision,Ewhich have stood the test of time, in our view, the matter is not free fromdoubt. The circumstances relied upon must rule out every singlehypothesis except the guilt of the person accused of an offence. Thereare too many missing links in the present matter and in our consideredview, the material on record does not exclude every single hypothesisFexcept the guilt of the man.

18. We, therefore, give benefit of doubt to the Appellant. Thisappeal is, therefore, allowed and the Appellant is acquitted of the chargeslevelled against him. He be set at liberty forthwith unless his presence isrequired in connection with any other offence.

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Ankit Gyan

Appeal allowed.

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