Chetan vs. State Of Karnataka

2025 INSC 793
R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL No.1568 OF 2013



CHETAN …APPELLANT (S)

VERSUS


THE STATE OF KARNATAKA …RESPONDENT(S)



J U D G M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.


1. The present appeal has been preferred against the judgment
and order dated 06.12.2010 passed by the Division Bench of the High
Court of Karnataka, Circuit Bench at Dharwad in the Criminal
Appeal No. 666 of 2007, whereby the High Court upheld the
conviction and sentence imposed upon the present appellant under
Sections 302 and 304 of the IPC and for offences under Sections 3
Signature Not Verified
Digitally signed by
NITIN TALREJA
Date: 2025.05.30
17:01:33 IST
Reason:
and 5 punishable under Sections 25 and 27 of Arms Act,1959 by
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judgment dated 28/29.03.2007 passed by the F.T.C.-II & Addl.
Sessions Judge, Belgaum in Sessions Trial No 267 of 2006.

2. The conviction is based on circumstantial evidence relying on
the last seen theory supported by the recovery of articles including
the weapon of crime and forensic evidence and the act of
abscondence by the appellant.

3. As the appellant is seeking reversal of the concurrent findings
by the two courts below, the Sessions Court and the High Court, this
Court has to tread very cautiously, as observed by this Court on
numerous occasions including in Mekala Sivaiah v. State of Andhra
Pradesh, (2022) 8 SCC 253, wherein it has been held that unless the
findings are perverse and rendered in ignorance of material evidence,
this Court should be slow in interfering with concurring findings. It
was thus observed by this Court in Mekala Sivaiah (supra) in the
following words:

“15. It is well settled by judicial pronouncement that Article
136 is worded in wide terms and powers conferred under the
said Article are not hedged by any technical hurdles. This
overriding and exceptional power is, however, to be
exercised sparingly and only in furtherance of cause of
justice. Thus, when the judgment under appeal has resulted
in grave miscarriage of justice by some misapprehension or
misreading of evidence or by ignoring material evidence then
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this Court is not only empowered but is well expected to
interfere to promote the cause of justice.
16. It is not the practice of this Court to re-appreciate the
evidence for the purpose of examining whether the findings
of fact concurrently arrived at by the trial court and the High
Court are correct or not. It is only in rare and exceptional
cases where there is some manifest illegality or grave and
serious miscarriage of justice on account of misreading or
ignoring material evidence, that this Court would interfere
with such finding of fact.”

4. Keeping the aforesaid cautionary approach in mind, this Court
would proceed to examine the appeal at hand by considering whether
there is manifest error or illegality in the impugned judgment and
whether any grave and serious miscarriage of justice on account of
misreading or ignoring material evidence has occurred in the present
case. This would invariably require a proper examination of the facts
and context of the case, for which we must revisit the background
facts of the case and the evidence adduced, considered by the Trial
Court as well as the High Court.


5. FACTUAL MATRIX OF THE CASE:

5.1 The Prosecution case in brief is that the appellant and the
deceased Vikram Sinde were friends. About eight months prior to the
incident which occurred on 10.07.2006, the appellant had borrowed
a sum of Rs. 4000/- (Rupees Four Thousand only) from one Ravindra
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Chavan (PW19), in order to lend the same in turn to the deceased,
which however, was not returned by the deceased to the appellant
even after a lapse of about 7-8 months, despite repeated demands to
return the same. In that connection, there was an argument between
the appellant and the deceased in which the deceased had apparently
insulted the appellant, because of which the appellant bore a grudge
against the deceased.
5.2 It is further the case of the Prosecution that the appellant on
10.07.2006 at about 20.30 hours after taking a 12 Bore D.B.B.L Gun
with cartridges belonging to his grandfather on the pretext of going
for hunting, took the deceased along with him on his Hero Honda
motorcycle to the sugarcane grove located in Shahapur village, which
belonged to the complainant, namely, Arun Kumar Minache (PW1).
It has been alleged that at about 22.00 hours on the same night, the
appellant shot the deceased dead with the said D.B.B.L gun and thus,
committed the offence under Section 302 of the IPC.
5.3 It was further alleged that after committing the said offence,
he took the Nokia mobile phone and gold chain belonging to the
deceased and misappropriated the same, thus committing the offence
under Section 404 of the IPC.
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According to the Prosecution, since the appellant carried and
used the D.B.B.L gun belonging to his grandfather without a valid
license, he committed the offence under Section 3 read with Section
25 of the Arms Act. The appellant was also charged with committing
an offence punishable under Section 5 read with Section 27 of the
Arms Act.
5.4 As per the Prosecution, as the deceased did not return after he
left home at around 7.45 PM of 10.07.2006, the father of the deceased
telephoned the house of the appellant but was informed that he was
not at home. He then went to the house of the appellant early morning
next day on 11.07.2006 and enquired from him about the
whereabouts of his son, to which the appellant gave false information
that he had parted ways with the deceased at about 8.00 PM the
previous evening. The father of the deceased also received a call
from one Chandrakant Shinde informing him that the deceased had
gone to Pune and would return within two days. Thereafter, the
father of the deceased started searching for his missing son and filed
a missing report.
5.5 It is the case of the Prosecution that on 13.07.2006 the dead
body of the deceased was found in the sugarcane field belonging to
Arun Kumar Minache (PW -1), who informed the police about the
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discovery of the body. However, since the dead body was
decomposed, his identity could not be ascertained. Upon recovery of
the dead body, a police case was registered at Kagawad Police
Station, and necessary messages were flashed to other police stations
to seek information about the identity of the deceased. Thereafter, an
investigation was launched and an inquest was held. The post-
mortem examination of the dead body was also conducted on
13.07.2006. Since the identity of the dead body could not be
ascertained, the discovery of the dead body was published in the
newspaper which was noticed by the father on 14.07.2006 and then
he went to Kagawad Police Station and identified the dead body
through photographs, handkerchief, motorcycle key found in the pant
pocket, and sweater on the dead body.
5.6 In the course of the investigation, it was revealed that the
appellant and the deceased were last seen together near Mahishyal
bus stand and thereafter seen on a motorcycle going towards
Shahapur, as noticed by one Ashok Shinde, the prosecution witness
(PW-4), Ashok Jamadar (PW-5) and Jamir Mulla (PW-3).
5.7 On the basis of the said information, the police arrested the
appellant on 22.07.2006 at Miraj after making search for him in
several locations and was brought to Kagawad Police Station. During
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the investigation, the appellant confessed to the crime and
volunteered to produce the gun with which he committed the crime
and also volunteered to show the place where he shot the deceased
and the place where he sold the mobile phone belonging to the
deceased. The appellant also produced the gold chain, which
purportedly belonged to the deceased which was seized by the
Inspector. Thereafter, the appellant led the police to the house of his
grandfather, Ramchandrarao Chavan (PW-20), and produced one 12
Bore D.B.B.L gun, two empty cartridges, one live cartridge, one
torch, Hero Honda motorcycle and one empty handbag which were
all seized. The appellant then led the police to the sugarcane field
from where the left chappal of the deceased was recovered. He then
led the Investigation Officer and the panchas near Bellanki Saravu
(back water falls) and showed the spot where he had shot the
deceased dead. Thereafter, the appellant led the police to Srigiri
Complex at Dilukh Nagar, Hyderabad, where he pointed out an
electronic shop of S. Samba Shivakumar (PW-25) to whom he had
sold the mobile phone. According to the Prosecution, the shop-owner
identified the appellant and admitted the transaction and handed over
the mobile phone along with a xerox copy of the driving license of
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the appellant, which was kept as proof of address given by the
appellant to the shop keeper, which were seized by the police.
5.8 During the trial the Prosecution sought to prove the case
against the appellant by examining as many as 31 witnesses and
exhibited a number of documents and articles as mentioned above.
The appellant took the plea of total denial. The appellant also did not
lead any evidence in his defence.
5.9 The Trial Court, Fast Track Court II and Additional Sessions
Judge, Belgaum, in Sessions Case No.267/2006 after hearing the
Prosecution and defence and on consideration of the materials
produced before it, convicted the appellant under Sections 302 and
404 of the IPC and Sections 3 and 5 punishable under Section 25 and
27 of the Arms Act.
Accordingly, upon being convicted under Section 302 of the
IPC, the Court sentenced him to undergo rigorous imprisonment for
life and to pay a fine of Rs.1000/- and in default of payment, to
undergo rigorous imprisonment for six months.
The appellant was also sentenced to undergo rigorous
imprisonment for one year to pay a fine of Rs.1000/- and in default
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of payment of fine to undergo rigorous imprisonment for three
months for the offence under Section 404 IPC.
Furthermore, the appellant was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.500/-(Rupees five
hundred) and in default of payment of fine, to undergo rigorous
imprisonment for three months for contravention of Section 3
punishable under Section 25 of the Arms Act.
The appellant was also sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs. 1000/- (Rupees
one thousand) and in default of payment of fine to undergo rigorous
imprisonment for three months for contravention of Section 5
punishable under Section 27 of the Arms Act.
All these sentences were directed to run concurrently.
5.10 Being aggrieved by the conviction by the Additional Sessions
Judge, Belgaum, as above, the appellant preferred an appeal before
the Karnataka High Court Circle Bench at Dharwad by filing
Criminal Appeal No. 666/2007. The said appeal was dismissed by the
impugned order dated 06.12.2010, against which the appellant has
preferred this appeal before us.
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Since the conviction by the Trial Court was affirmed by the
High Court, it may be appropriate first to examine the basis on which
the Trial Court convicted the appellant and how it was upheld by the
High Court upheld it.

6. CONSIDERATION BY THE TRIAL COURT:

6.1 As can be seen from the narration of the incident by the
Prosecution, the case is based on circumstantial evidence, as no
eyewitness had seen the shooting of the deceased by the appellant
with a gun, which led to his death.
As we embark upon the exercise to scrutinize the correctness
of the conviction based on circumstantial evidence, we may recollect
the five golden principles of law governing trials based on
circumstantial evidence, which this Court had dealt with from time
to time, and succinctly explained in the celebrated case of Sharad
Birdhichand Sarda v. State of Maharashtra ( 1984) 4 SCC 116 as
follows:-

“152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court
is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC
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(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”.


6.2 As can be seen from the records, the Trial Court formulated
five points for consideration which are reproduced as follows: -
“1. Whether the prosecution has proved that on
10.07.2006 at about 2200 hours the deceased had
died homicidal death due to gunshot injury?

2. Whether the prosecution has proved that it is the
accused who has caused homicidal death of the
deceased by firing shot through D.B.B.L gun
marked as MO.9.?


3. Whether the prosecution has proved that on the said
date, the accused after causing the murder of
deceased Vikram Shinde, dishonestly mis-
appropriated or converted to his own use gold chain
and mobile which were in possession of Vikram
Shine at the time of death and thereby committed
any offence punishable u/s 404 of IPC?

4. Whether the prosecution has proved that on the same
day at about 2030 hours the accused carried 12 bore
BBL gun belonged to his grandfather Ramachandra
Chavan, from his house to the land of complainant
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Arun Kumar and he was in possession of the said
gun and cartridges without possessing required
licence and thereby contravened provisions of Sec.3
of Arms Act punishable u/s 25 of the Arms Act?

5. Whether the prosecution has proved that on the said
date at about 2200 hours in the land of Arun Kumar
complainant situated within Shahapur village limits
the accused used 12 Bore DBBL gun (MO.9) to
cause death of the deceased Vikram Shine and
thereby contravened the provisions of sec.5
punishable u/s 27 of the Arms Act?”

6.3 The Trial Court consolidated all these issues together and
considered the same in the light of the evidence adduced and held
that the Prosecution had proved their case.
6.4 While it may not be necessary to deal in detail at this stage of
the analysis of the evidence by the Trial Court, nevertheless, it would
be desirable to briefly refer to the findings of the Trial Court for better
appreciation of the case.
6.5 Since the case revolves around circumstantial evidence, the
Trial Court identified the following circumstances/aspects for
consideration:
(1) Motive.
(2) Homicidal death of the deceased by gunshot injury.
(3) The deceased was last seen in the company of the accused
in between 8 and 9.30 p.m. on 10.07.2006.
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(4) False information given by the accused to the father of
deceased and his uncle.
(5) Abscondence of the accused from 11.07.06 till his arrest on
22.07.06.,
(6) Extrajudicial confession on 12.07.06 before PW.18 by
going over to the room of his friend Yuvaraj Bennalkar
situated at Dharwad.
(7) Recovery of gold chain belonged to the deceased from the
possession of the accused after his arrest on 22.07.06 and
recovery of Nokia mobile belonging to the deceased from
PW.25 at the instance of the accused.
(8) Recovery of the DBBL gun, 2 spent cartridge cases, one
live cartridge, Eveready battery and star gutka empty
handbag from the house of PW-20, Ramachandra Chavan,
the grandfather of the accused at the instance of the
accused.
(9) Discovery of the place of murder and recovery of left foot
chappal of the deceased from sugarcane field situated near
the place where the dead body was found at the instance of
the accused.
(10) Discovery of fact i.e. where mobile sim card was thrown at
the instance of the accused.

6.6 As regards the motive that impelled the appellant to commit
the crime, the Prosecution case is that since the deceased failed to
return Rs.4000/- which was lent by the appellant and was also
insulted by the deceased, the appellant bore a grudge against the
deceased and, as revenge, killed the deceased.
As regards this issue of motive, the Trial Court, on
consideration of the evidence on record, concluded that the monetary
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transaction, which was the basis for constituting the motive for
committing the crime, was not fully established.
The Trial Court, however, was of the view that the Prosecution
case cannot be thrown out merely because the motive could not be
established.
6.7 The Trial Court concluded based on the evidence that the death
of the deceased was not accidental or suicidal but homicidal.
6.8 To link the appellant with the said homicidal death, the Trial
Court relied on the last-seen theory, for which the Trial Court referred
to the evidence of a number of witnesses, including the brother of the
deceased, Digvijay Shinde (PW-12), who had seen the appellant and
the deceased near Mahishyal bus stand in the evening of the incident,
which was also noticed by another witness, Anil (PW-11), a friend of
PW-12.
The Trial Court also relied on the evidence of another witness,
namely Jamir Mulla (PW-3), who deposed that when he was standing
by the side of the road, he saw the deceased riding on the pillion of a
motorcycle.
The Trial Court also considered the evidence of Ashok Shinde
(PW-4) who was an autorickshaw driver who testified to have seen
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the deceased and appellant together at about 5.45 PM on the fateful
day when he was standing near Karamveer Vidyalaya High School
ground.
The evidence of another witness, namely Ashok Jamadar (PW-
5) was also relied upon, who, while he was returning to Mahishyal
and standing near the Kagawad Circle, saw the deceased and the
appellant on a motorcycle going towards Shiraguppi at around 9.15
PM on 10.07.2006. The said witness, PW-5, after coming to know
about the death of Vikram Shinde, went to Kagawad Police Station
and identified the body. Though PW-5 was declared hostile by the
Prosecution as he resiled from his previous statement on other
aspects of the incident, the Trial Court held that the versions of PW-
12, PW-11, and PW-5 regarding the deceased and the appellant being
last seen together cannot be disbelieved.
6.9 The Trial Court, thereafter, considered the other circumstance
that the appellant had given false information to his uncle and his
friend Devaraj Sutar (PW-14), which, according to the Trial Court
proved his guilty mind.
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6.10 The Trial Court held that another incriminating circumstance
was the abscondence of the appellant from 11.07.2006 till he was
arrested on 22.07.2006 at Miraj.
6.11 The Trial Court, thereafter, took into consideration the
extrajudicial confession allegedly made by the appellant on
12.07.2006 in the room of one Yuvaraj Bennalkar in Dharwad where
the witness namely Sandip Sandalage (PW-18) was staying. The
appellant apparently made the extrajudicial confession to the said
witness, PW-18, that he took the deceased on 10.07.2006 on the
pretext of going for hunting and killed him by shooting him with the
gun as the deceased did not repay the loan of Rs. 4000/- and insulted
him when he demanded the money.
6.12 The Trial Court also considered the other incriminating
circumstances, i.e., recovery of gold chain belonging to the deceased
from the possession of the appellant, recovery of Nokia mobile phone
belonging to the accused, recovery of D.B.B.L gun, 2 spent and 1 live
cartridges case, Everready battery and Star Gutka empty handbag
from the residence of his grandfather where the appellant was
staying, left foot chappal of the deceased from the sugarcane field
and discovery of the place of murder at the instance of the appellant.
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The Trial Court, accordingly, held based on said evidence
adduced that the aforesaid circumstances/facts have been proved.
6.13 However, the Trial Court held that the Prosecution was not able
to prove the motive, and the extrajudicial confession said to have
been made by the appellant. Nevertheless, in the light of the other
circumstances that, according to the Trial Court were proved, despite
noticing certain irregularities and lapses in the course of the
investigation, which according to the Trial Court were not material
nor could be fatal to the prosecution case and by holding that
irregularities in the investigation would not entitle the accused to be
acquitted, held that the charges under Sections 302 and 404 of the
IPC, Section 3 and 5 of the Arms Act punishable under Section 25
and 27 Arms Act have been proved and proceeded to convict that the
appellant as above.

7. CONSIDERATION BY THE HIGH COURT

7.1 The High Court noticed that of the 31 witnesses examined by
the Prosecution, several witnesses namely PW-1, PW-3, PW-5 to
PW-9, PW-16, PW-18 to PW-20, PW-25 and PW-26 had turned
hostile to the case of the Prosecution. Nevertheless, based on the
testimony of the other remaining witnesses and other evidence, the
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High Court held that the Prosecution had been able to prove the
charges against the appellant.
As regards the motive for the commission of the crime, though
the same was held not proved by the Trial Court, the High Court
based on the evidence of PW-12 and PW-4 held that the Prosecution
had been able to prove the motive for the commission of the crime.
7.2 The High Court held that the circumstance of the last seen
together of the appellant with the deceased has been proved by the
evidence of PW-4, PW-11 and PW-12.
7.3 The High Court considered the evidence of PW-14, (Devraj
Sutar) who was a friend and classmate of the appellant who stated
that the appellant had contacted him on the phone on the day of the
incident and told him that if his uncle contacted him, to inform his
uncle that he (PW-14) is in Pune, though PW-14 was in Ahmednagar.
Thus, the appellant sought to mislead his relatives about his
whereabouts.
7.4 As regards the seizure of the gun, the High Court held that the
appellant had led the Police to the house of the grandfather and the
same was seized from his house. As per the evidence of the ballistic
expert PW-30, it was proved that the said gun was functional and
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had shown discharge, which could not be explained either by the
appellant or his grandfather-Ramachandrarao, PW-20, which would
go to prove that the gun seized had been used for shooting the
deceased. The gunshot injuries, pellets and wads found in the skull
of the deceased would show that the deceased had died due to
gunshot injuries.
7.5 The High Court on consideration of the expert witness N.G.
Prabhakar (PW-30), the Assistant Director of Forensic Science
Laboratory, Bangalore, who examined the D.B.B.L gun, cartridges,
pellets and wads found in the skull of the dead body, held that it was
proved that the death of the deceased was caused by the gunshot fired
from the said D.B.B.L gun which was recovered at the instance of
the appellant.
7.6 The High Court also held that the Prosecution has been able to
prove from the evidence of PW-31, Investigation Officer (IO) of the
recovery of the gold chain from the possession of the appellant
immediately on his arrest, and seizure of the mobile phone at the
instance of the appellant in Hyderabad, which the same witness
corroborated. These, according to the High Court would show that
the appellant had secured possession of the articles namely the gold
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chain, mobile phone immediately after the death of the deceased,
which clearly incriminates the appellant.
7.7 The High Court, based on the presented evidence, determined
that the appellant and the deceased were last seen together. As the
appellant did not explain the whereabouts of the deceased on the
night of the incident, and in consideration of the recovery of the gun
and cartridges as well as the recovery of the gold chain and Nokia
mobile phone, the act of abscondence, evasive behaviour, post-
mortem report, ballistic report, and the chain of circumstances, the
High Court concluded that the incident in which the appellant killed
the deceased was proven beyond reasonable doubt.

Accordingly, the High Court dismissed the appeal.
8 SUBMISSION OF THE APPELLANT BEFORE US:
8.1 It was strenuously argued before us by Mr. D.N. Goburdhun,
learned Senior Counsel for the appellant that the Prosecution had not
been able to prove that the appellant and appellant alone was
responsible for the death of the deceased as there was no eyewitness
to the incident.
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Ld. Sr. Counsel points out that no witness had spoken anything
about the appellant holding the gun when he was allegedly seen
together with the deceased in the evening/night of the incident.
8.2 Even the “last seen” incident on which the Prosecution
has heavily relied upon cannot be said to have been proved.
According to Ld. Sr. Counsel, the evidence of the witnesses who had
seen them together is not credible. One of the witnesses, Digvijay
Shinde (PW-12) was the younger brother of the deceased. The other
witness PW-11 (Anil Babarao Bagat) was a friend of PW-12, hence,
they were interested witnesses. Consequently, their evidence cannot
be relied upon.
As far as PW-4 (Ashok Shinde), the auto rickshaw driver is
concerned, he is certainly a chance witness and as such, reliance
cannot be placed on his evidence.
This leaves two other witnesses namely, Jamir Mulla (PW-3)
and Ashok Jamadar (PW-5).
PW-3 stated that he saw the deceased riding on the pillion of
a motorcycle, but he did not see who was riding the motorcycle.
Thus, this evidence cannot be invoked to support the last seen theory
as the deceased was not seen with the appellant.
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As far as the other witness, namely PW-5 (Ashok Jamadar) is
concerned, he can also be said to be a chance witness, as he saw the
deceased and appellant together while he was standing at Kagawad
Circle.
Accordingly, learned senior counsel appearing for the
appellant has submitted that the fact of the appellant and the deceased
being last seen together cannot be said to have been established with
cogent evidence. Thus, if this circumstance is held to be not proved
in accordance with law, nothing survives in the case, as no one had
seen the appellant shooting the deceased as alleged by the
Prosecution nor they were seen together in the field where the dead
body of the deceased was found.
8.3 It was submitted that the recovery of the mobile phone at the
instance of the appellant was not proved as S. Samba Shivakumar,
PW-25, the mobile shopkeeper, had categorically denied purchasing
any mobile from the appellant.
8.4 It was also submitted that the D.B.B.L gun was not seized at
the instance of the appellant and in fact, it was the grandfather of the
appellant who had produced the gun when the Police came to his
residence. According to the learned Senior Counsel one of the
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seizure witnesses, Villas Macchendra Davari (PW-7), had
categorically denied that anything was recovered in his presence,
though he admitted that the signature on the seizure memo was put
as directed by the police.
8.5 The learned senior counsel has submitted that the ballistic
report itself is doubtful. Though it is the case of the Prosecution that
one live cartridge was recovered from the house of the grandfather
of the appellant, it was not given to the ballistic expert for his opinion,
and as regards the two cartridges that were used for testing of the
gun, it is not clear how these were purchased and given to the ballistic
expert. Thus, this important link in the prosecution’s case cannot be
said to have been established.
8.6 Learned senior counsel also submits that since the
Prosecution’s case is entirely based on the last seen theory, in absence
of any motive for committing the offence, which in the present case
has not been established, the foundation of the last seen theory
becomes shaky.
Learned senior counsel submits that even the Trial Court held
that the monetary transaction between the appellant and the deceased
had not been proved strictly. Thus, the very basis of the case of the
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Prosecution that the appellant had killed the deceased to take revenge
after the deceased failed to repay the loan taken from the appellant is
absent. Since the motive had not been established, the Prosecution’s
case based on circumstantial evidence cannot stand.
8.7 It was also pleaded that it could not be proved conclusively
that the dead body recovered from the field was that of the deceased
as the dead body was in a highly decomposed state.
8.8 Learned senior counsel for the appellant has also submitted
that there are so many inconsistencies and contradictions in the
evidence of the prosecution witnesses as had noted by the Trial Court
and the High Court. Yet, both the Courts chose to ignore these
inconsistencies and the contradictions and relied only on those parts
of the evidence that were favourable to the Prosecution to convict the
appellant.
8.9 Accordingly, learned senior counsel for the appellant has
submitted that since there are glaring gaps in these circumstances,
and there is no proper linkage, and these circumstances are also not
proved beyond reasonable doubt, the prosecution’s case based on
circumstantial evidence must fail.
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It has been submitted that it cannot be said that the Prosecution
has been able to prove that all circumstances are of such conclusive
nature and tendency which exclude every possible hypothesis except
that the appellant had caused the death of the deceased, and it cannot
be said that the chain of evidence established in the present case is so
complete that it has not left any reasonable ground for the conclusion
consistent with the innocence of the appellant, and that in all
probability the act was committed by the appellant.
9. SUBMISSION OF THE STATE BEFORE US:
9.1 On the other hand, Ms. Eesha Bakshi, learned counsel
appearing for the State/Prosecution has contended that all the
circumstances leading to the guilt of the appellant have been proved
which would only lead to the inference that the appellant and
appellant alone was responsible for murdering the deceased.
9.2 Learned State Counsel submits that the defence did not
seriously dispute the identity of the dead body and since PW-2, who
was the father of the deceased and PW-12, the brother of the deceased
had identified the body based on the photograph, and the dress worn
by the deceased, there cannot be any doubt about the identity of the
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dead body. The aforesaid evidence has been strengthened by the fact
that the motorcycle key was found in the pocket of the deceased.
9.3 It was also submitted that the motive for the commission of the
offence had been duly proved as it has been established that the
deceased had borrowed a sum of Rs.4000/- (Rupees Four Thousand
only) from the appellant regarding which a quarrel occurred between
them which was witnessed by PW-4, Ashok R Shinde.
9.4 It was also submitted that there were as many as five eye-
witnesses who had seen the appellant with the deceased the evening
before his dead body was found three days later. The deceased was
seen along with the appellant around 9 pm of 10.07.2006 and he was
found missing as evidenced by the evidence of his father (PW-2),
who filed a missing report on 12.07.2006. The dead body was
recovered on 13.07.2006 and there is no evidence to show the
presence of the deceased anywhere else during this intervening
period, and as such, there cannot be any doubt that as the appellant
was last seen with the deceased, the onus was on the appellant to
explain the whereabouts of the deceased after they were seen last
together which he failed to explain before the Court. Therefore, the
irresistible inference that can be drawn is that the appellant was
responsible for the death of the deceased.
Page 27 of 76



9.5 Learned State Counsel further submit that it has come clearly
on record that the appellant had remained absconding during the
aforesaid period from 11.07.2006 to 22.07.2006 when the Police
ultimately arrested him on 22.07.2006 in Miraj. That abscondence
and his attempt to mislead others is clearly proved by the evidence of
his own friend and classmate Devraj Sutar (PW-14).
According to the learned State Counsel all the evidence clearly
shows that the appellant was trying to mislead his relatives and others
about his whereabouts and trying to hide which is clearly indicative
of the guilty mind of the appellant.
9.6 It has also been submitted that the Prosecution, by relying on
the opinion of the ballistic expert, has proved that the gun produced
before the Trial Court was used for committing the crime. It has also
been established that pellets and wads that were recovered from the
skull cavity of the deceased were part of 12 bore cartridge and these
could be fired from the gun, as per the ballistic expert, PW-30. Thus,
there cannot be any doubt that it was the appellant who had shot the
deceased dead with the D.B.B.L gun.


Page 28 of 76



10. ANALYSIS AND FINDING BY THIS COURT
10.1 We have given our anxious consideration to the issues raised
before us and carefully examined the evidence on record.
10.2 As discussed above, the case revolves around the death of
Vikram Shinde, whose dead body was found in an agricultural field.
The appellant is sought to be implicated in his death on the ground
that he was seen last together with the deceased before the dead body
was found three days later, and also because the deceased had
suffered gunshot injury on his head, which led to his death, and a
double barrel gun was recovered at the instance of the appellant from
the house of his grandfather, with whom the appellant was staying.
The forensic evidence based on ballistic examination showed that the
gun was in working condition and was used, and the pellets and wads
found in the brain and cavity of the skull of the deceased could be
fired from the said gun.
Since, there was no direct evidence on the death of Vikram
Shinde, the Prosecution case is entirely based on circumstantial
evidence.
Page 29 of 76



10.3 As the allegation is of commission of the offence of murder,
the first and foremost exercise to be undertaken is to ascertain
whether it was a case of suicide or accidental death or homicide.
There does not appear to be not much of a controversy that it
was a case of homicide.
The fact that the deceased died an unnatural death due to
gunshot injuries cannot be doubted in the light of the post-mortem
and forensic evidence. The Medical Officer, PW-28, who conducted
the post-mortem had given his final opinion that the cause of death
was ballistic injuries to vital organs. Though the post-mortem report
itself was assailed by the appellant, in view of the other attending
evidence of the panch witnesses there cannot be any shadow of doubt
about the unnatural death due to gunshot injury. Thus, it was a clear
case of homicide.
Given the nature of the gunshot injury received by the
deceased on his head and in the absence of recovery of any gun in
the hand of the deceased or near his body and since the gun shot was
fired within a range of 3 ft from the muzzle of the weapon and the
exit of the gunshot wound was in the face, a suicidal gunshot injury
can be safely ruled out.
Page 30 of 76



That it was also not a case of accidental death can be clearly
inferred because of the absence of any evidence indicating so.
10.4 As we proceed further, it may be noted that, in the present case,
though the appellant had made a feeble attempt to show that the dead
body that was recovered from the agricultural field was not that of
Vikram Shinde, who was missing, because of the evidence of Ajitrao
Shinde, PW-2, the father of the deceased, and PW 12, Digvijay
Shinde, brother of the deceased, who had identified the dead body
based on the identification of the deceased's sweater, pants and
recovery of the motorcycle key from the pants of the deceased, there
can be no doubt about the identity of the dead body.
10.5 We will now deal with the most crucial circumstance of last
seen together, upon which much emphasis has been laid by both the
contesting parties in support of their rival contentions.
10.5.1 The last seen theory is based on the evidence of five
witnesses, namely, Jamir P. Mulla (PW-3), Ashok R. Shinde (PW-4),
Ashok R. Jamadar (PW-5), Anil Babarao Bagat (PW-11) and
Digvijay Shinde (PW-12).
10.5.2 PW-3, Jamir P. Mulla, claims to know both the appellant and
the deceased. He stated that on 10.07.2006 at about 8.30 pm when
Page 31 of 76



he was standing by the side of the road at Ambika Nagar, he saw the
deceased Vikram Shinde riding on the pillion of a motorcycle and on
seeing him he wished him. The motorcycle went towards Narawad
side. However, he stated that he did not know who was riding the
motorcycle. He also stated that he did not observe anything being
carried on the motorcycle.
In view of the specific evidence that he did not see who was
riding the motorcycle his evidence cannot independently be used to
support the last seen theory against the appellant unless propped by
other evidence. Though the said witness was declared hostile by the
Prosecution, in the cross-examination, this witness reiterates that he
had seen the deceased Vikram Shinde going on a motorcycle, and he
could later identify the dead body as that of Vikram Shinde from the
clothes he was wearing when he saw him last. This evidence is thus
consistent with the evidence of other witnesses who had seen the
deceased Vikram Shinde going with the appellant on a motorcycle.
10.5.3 The other witness relied upon by the Prosecution is Ashok
R. Shinde (PW-4), who was an auto rickshaw driver who knew both
the deceased and the appellant. PW-4 stated that on 10.07.2006 at
about 5.45-6.00 pm, when he was standing near Karamveer
Vidyalaya High School ground parking, both the appellant and
Page 32 of 76



deceased came near his auto rickshaw, and he heard them discussing
certain money transaction, and the appellant was heard demanding
return of certain amount from the deceased to which the deceased
denied having any knowledge. He also heard the deceased abusing
the appellant as haramkhor though the appellant did not react to it .
He also stated that he heard them talking about hunting. He stated
that as they were talking, passengers came and, thereafter did not give
any further attention to their discussion.
This evidence would show that the appellant and the deceased,
who were friends, were together shortly before they were seen
together again later riding a motorcycle by Ashok R. Jamadar (PW-
5). This evidence will also be relevant to arguments between the two
parties over some money matters and their plans for hunting.
10.5.4 Ashok R. Jamadar (PW-5) is the other witness through whom
the Prosecution seeks to establish the last seen theory. PW-5 knew
both the families of the appellant and the deceased. He deposed that
on 10.07.2006, at about 9:15 pm, while he was standing at Kagawad
Circle to proceed to Mahishyal, he saw the appellant and the
deceased going together on a motorcycle towards the Shiraguppi
side. On seeing them, he waved his hand. He also stated that the
deceased was carrying a bag and had spoken to him, but he did not
Page 33 of 76



talk to the appellant. Thereafter, he came to Mahishyal. Later, on
14.07.2006, he learnt about the murder of Vikram Shinde when
people were talking about him and thereafter, he went to the
Kagwada police station along with others regarding the case.
Although he was declared a hostile witness as he resiled from
his previous statement made during the investigation, he reiterated
during his cross-examination that the appellant was riding the
motorcycle and the deceased was with him on the motorcycle
proceeding towards Shiraguppi. Despite the witness being
thoroughly cross-examined on behalf of the appellant, nothing could
be elicited from him to cast any doubt on his testimony as far as this
vital evidence of them being seen together last, before the discovery
of the dead body, is concerned.
In our opinion, if the said witness did not fully support the
Prosecution case and resiled from his previous statement given
during investigation, nothing prevented him resiling from the
statement that he saw the appellant and the deceased together. It may
be noted that even though PW-5 was declared hostile, he reiterated
in his cross examination that he saw the deceased and the appellant
together. Thus, his evidence is trustworthy as regards this aspect.
Page 34 of 76



10.5.5 The evidence of the aforesaid witness PW-5 has also been
sought to be impeached on the ground that he is a chance witness and
thus his evidence be ignored.
We do not think that it can be ignored.
It is for the reason that he knew both the appellant and the
deceased, and nothing was shown that he was inimical to the
appellant and more friendly to the deceased. He was not a stranger
suddenly emerging out of nowhere in the scene. PW-5 had explained
in his cross-examination as to the reason why he was present at the
Kagawad Circle when he saw them together. He stated that he had
gone to Kagawad to visit one of his relatives. While returning home,
he was passing through the said circle to catch a bus to Mahishyal.
Hence, we see no reason to disbelieve his testimony.
10.5.6 Moreover, even if he is considered to be a chance witness who
happens to witness the appellant and the deceased together going on
a motorcycle by chance, yet the testimony cannot be ignored in the
light of the decision of this Court in Rajesh Yadav and Another v.
State of Uttar Pradesh (2022) 12 SCC 200 wherein it was held as
follows:-
“29. A chance witness is the one who happens to be at
the place of occurrence of an offence by chance, and
Page 35 of 76



therefore, not as a matter of course. In other words, he is
not expected to be in the said place. A person walking on
a street witnessing the commission of an offence can be a
chance witness. Merely because a witness happens to see
an occurrence by chance, his testimony cannot be
eschewed though a little more scrutiny may be required
at times. This again is an aspect which is to be looked
into in a given case by the court. We do not wish to
reiterate the aforesaid position of law which has been
clearly laid down by this Court in State of A.P. v. K.
Srinivasulu Reddy [State of A.P. v. K. Srinivasulu Reddy,
(2003) 12 SCC 660 : 2005 SCC (Cri) 817] : (SCC pp.
665-66, paras 12-13)
“12. Criticism was levelled against the evidence
of PWs 4 and 9 who are independent witnesses by
labelling them as chance witnesses. The criticism
about PWs 4 and 9 being chance witnesses is also
without any foundation. They have clearly
explained as to how they happened to be at the
spot of occurrence and the trial court and the
High Court have accepted the same.
13. Coming to the plea of the accused that PWs 4
and 9 were “chance witnesses” who have not
explained how they happened to be at the alleged
place of occurrence, it has to be noted that the
said witnesses were independent witnesses. There
was not even a suggestion to the witnesses that
they had any animosity towards any of the
accused. In a murder trial by describing the
independent witnesses as “chance witnesses” it
cannot be implied thereby that their evidence is
suspicious and their presence at the scene
doubtful. Murders are not committed with
previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling
house, the inmates of the house are natural
witnesses. If murder is committed in a street, only
passers-by will be witnesses. Their evidence
cannot be brushed aside or viewed with suspicion
on the ground that they are mere “chance
witnesses”. The expression “chance witness” is
borrowed from countries where every man's
home is considered his castle and everyone must
have an explanation for his presence elsewhere
or in another man's castle. It is quite unsuitable
an expression in a country where people are less
formal and more casual, at any rate in the matter
explaining their presence.”
Page 36 of 76




10.5.7 PW-11 and PW-12 also saw the appellant and the
deceased together near the bus stand in the evening of 10.7.2006.
PW-12 is the brother of the deceased. According to him, his
deceased brother went out of the house after 7.45 PM in the evening
on a scooter. When PW-12 also went out to meet his friend, Anil
Bagat, PW-11 near the bus stand that evening, he saw both the
deceased and the appellant coming together on the scooter at the bus
stand, and his brother asked him (PW-12) to take the scooter home
by telling him that he would come home later. His brother, however,
did not return.
PW-11, a friend of PW-12, corroborates the aforesaid evidence
of PW-12. PW-11 stated that he was acquainted with the appellant as
he was from the village of the appellant. PW-11 stated that he also
knew the deceased. According to him when he was near Mahishyal
Bus Stand at about 8.00 PM on 10.07.2006, Digvijay, the brother of
the deceased, came there, and while they were talking, the appellant
and the deceased came there on a scooter. Vikram Shinde (the
deceased) then instructed his brother, Digvijay (PW-12), to take the
scooter home, informing him that he would return later. He also heard
the appellant saying that he would be going for hunting.
Page 37 of 76



Based on the above evidence, both the Trial Court and the High
Court came to the conclusion that the deceased was last seen together
on 10.07.2006, before the dead body was discovered in the morning
of 13.07.2006.
10.5.8 PW-11 states that he had acquaintance with the appellant as
he was from the same village. Hence, we see no reason to doubt his
credibility as he is unlikely to falsely testify against his own co-
villager and he corroborates the evidence of PW-12, the brother of
the deceased.
As far as PW-5 is concerned, though the defence had made
strenuous attempts to discredit him as he was earlier working for PW-
2, the father of the deceased, nothing could be elicited to discredit his
testimony as regards this fact of being last seen together.
We are of the view that while the evidence of PW-5, PW-11
and PW-12 supports the last seen theory, the evidence of PW-3 and
PW-4 strengthens this circumstance.
10.5.9 We have also noted that specific questions were asked from
these witnesses that if they had seen the appellant and the deceased
going together on the night of 10.07.2006, why this information was
Page 38 of 76



not given to the father of the deceased, PW-2 earlier before the dead
body was discovered on 13.07.2006.
It may be noted that even though the deceased may have been
missing since 10/11.07.2006, till the dead body was recovered and
identified, members of the public may not be concerned about the
missing of the deceased, unless the family members specifically
asked them of the deceased. It is only after the dead body was
identified on 14.07.2006 and brought to public notice that witnesses
were likely to come forward to give information of any such relevant
material and earlier sighting of the deceased with the appellant.
Therefore, non-informing the family members of the deceased at an
earlier point of time by the prosecution witnesses who saw the
appellant going in a motorcycle or seeing the appellant and deceased
going together on a motorcycle on the night of 10.07.2006 cannot be
a ground for disbelieving their testimony.
Under these circumstances, it cannot be said that the Trial
Court and High Court have committed a serious illegality in
concluding that the deceased and the appellant were last seen
together or that the said finding was by ignoring material evidence or
contrary to the evidence on record.
Page 39 of 76



10.6 The next and most crucial consideration will be how the
appellant could be linked to the death of the deceased.
10.6.1 In our opinion, the link is established based on the following
circumstances and established facts.
(i) The dead body of the deceased was recovered in a
decomposed state on 13.7.2006, three days after the
deceased was last seen together with the appellant on
10.07.2006.
(ii) As per the Medical Officer who conducted the postmortem
on 13.07.2006, the death occurred 3/4 days before the
postmortem examination which is consistent with the time
the deceased was seen last together with the appellant.
(ii) The dead body was discovered with gunshot wounds on the
head.
(iii) A double barrel gun with 2 spent and 1 live cartridges were
recovered at the instance of the appellant.
(iv) As per the opinion of the ballistic expert,
(a) The gun showed signs of discharge.
(b) The gun was in working condition.
(c) Pellets and wads were recovered from the brain/skull
of the dead body, and these could have been fired
through the gun examined.
(d) The double-barrel gun could be dismantled.

Page 40 of 76



10.6.2 The aforesaid facts are supported by the following
circumstances and acts of the appellant, which strengthens the
linkage.
(i) The appellant remained hidden from 11.07.2006 till
22.07.2006. He was arrested on 22.07.2006 after extensive search on
numerous locations after the identification of the identity of the dead
body on 14.07.2006.
(ii) The appellant had misled his friends, his family members
and that of the deceased.
(iii) Personal effects of the deceased like gold chain was
recovered from the appellant.
The aforesaid circumstances and acts are discussed in more
detail as follows :
10.6.3 As regards the discovery of the dead body, PW1, Arun Kumar
Minache stated that on 13.7.2006, his workers had gone to the land
to measure sugar cane crops. At 9:30 AM, one of his workers came
to his house and informed him that a dead male body was lying in the
sugarcane field. Thereafter, PW-1 went to the sugar field and found
the dead body in a decomposed state. The matter was reported to the
police on the same day.
It may be noted that while the deceased was found missing
since the night of 10.07.2006, and was subsequently found dead on
Page 41 of 76



13.07.2006, the appellant was found missing from 11.07.2006 till the
police arrested him on 22.07.2006.
10.6.4 Though, the dead body was discovered after three days of
the deceased went missing on 13.07.2006, as per opinion of the
forensic expert, the time of death of the deceased was between 3 to 4
days prior to post-mortem examination on 13.07.2006, thus
indicating that the deceased died soon after he went missing.
10.6.5 At this stage, it may be apposite to address a weighty
argument advanced by Mr. Goburdhun, learned senior counsel for the
appellant who contended that the last seen theory in the present case
is not applicable for the simple reason that there is a long passage of
time between the appellant and the deceased last seen together and
the time when the dead body of the deceased was discovered.
The deceased was last seen along with the appellant in the
night of 10.07.2006 and the dead body of the deceased was
discovered on 13.07.2006 after a gap of three days.
Learned Senior Counsel submits that the time gap should be
so small that the possibility of any other person being with the
deceased in the company of any other person should be ruled out.
Hence, because of this long gap of time, the last seen theory sought
Page 42 of 76



to be invoked by the Prosecution loses its steam, giving rise to
reasonable doubt as to whether the appellant was the real culprit or
not.
10.6.6 In this regard, the learned Senior Counsel has relied on
the decision of this Court in State of Goa v. Sanjay Thakran and
Anr. (2007) 3 SCC 755 wherein this Court held that :-
“31. Before we analyse the evidence of PW 11 Dinesh
Adhikari, who was working as a domestic help in the bar
and restaurant Iguana Miraj, PW 14 Calvert Gonsalves,
who was said to be in the company of A-1 and D-1 on the
evening of 27-2-1999 outside the lounge of the restaurant
and PW 6 Amit Banerjee, who was working as
Receptionist of Hotel Seema, we would refer to certain
decisions of this Court on the point of “last seen
together”. It is a settled rule of criminal jurisprudence
that suspicion, however grave, cannot be substituted for
proof and the courts shall take utmost precaution in
finding an accused guilty only on the basis of
circumstantial evidence. This Court has applied the
abovementioned general principle with reference to the
principle of last seen together in Bodhraj v. State of
J&K [(2002) 8 SCC 45 : 2003 SCC (Cri) 201] as under:
(SCC p. 63, para 31)
“31. The last seen theory comes into play where
the time gap between the point of time when the
accused and the deceased were seen last alive
and when the deceased is found dead is so small
that possibility of any person other than the
accused being the author of the crime becomes
impossible. It would be difficult in some cases to
positively establish that the deceased was last
seen with the accused when there is a long gap
and possibility of other persons coming in
between exists. In the absence of any other
positive evidence to conclude that the accused
and the deceased were last seen together, it would
be hazardous to come to a conclusion of guilt in
those cases.”
Page 43 of 76



32. In Ramreddy Rajesh Khanna Reddy [(2006) 10 SCC
172 : (2006) 3 SCC (Cri) 512 : JT (2006) 4 SC 16] this
Court further opined that even in the cases where time
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased was
found dead is too small that possibility of any person
other than the accused being the author of the crime
becomes impossible, the courts should look for some
corroboration.”
10.6.7 However, it may be noted that this Court also observed in
the aforesaid decision of Sanjay Thakran ( supra ) that it cannot be
said in all cases that the evidence of last seen together is to be
rejected merely because the time gap is for a considerable long
period, as stated in para 34 of the aforesaid decision which is
reproduced herein as below:
“34. From the principle laid down by this Court, the
circumstance of last seen together would normally be
taken into consideration for finding the accused guilty of
the offence charged with when it is established by the
prosecution that the time gap between the point of time
when the accused and the deceased were found together
alive and when the deceased was found dead is so small
that possibility of any other person being with the
deceased could completely be ruled out. The time gap
between the accused persons seen in the company of the
deceased and the detection of the crime would be a
material consideration for appreciation of the evidence
and placing reliance on it as a circumstance against the
accused. But, in all cases, it cannot be said that the
evidence of last seen together is to be rejected merely
because the time gap between the accused persons and
the deceased last seen together and the crime coming to
light is after (sic of) a considerable long duration. There
can be no fixed or straitjacket formula for the duration of
time gap in this regard and it would depend upon the
evidence led by the prosecution to remove the possibility
of any other person meeting the deceased in the
intervening period, that is to say, if the prosecution is
able to lead such an evidence that likelihood of any
person other than the accused, being the author of the
Page 44 of 76



crime, becomes impossible, then the evidence of
circumstance of last seen together, although there is long
duration of time, can be considered as one of the
circumstances in the chain of circumstances to prove the
guilt against such accused persons. Hence, if the
prosecution proves that in the light of the facts and
circumstances of the case, there was no possibility of any
other person meeting or approaching the deceased at the
place of incident or before the commission of the crime,
in the intervening period, the proof of last seen together
would be relevant evidence. For instance, if it can be
demonstrated by showing that the accused persons were
in exclusive possession of the place where the incident
occurred or where they were last seen together with the
deceased, and there was no possibility of any intrusion to
that place by any third party, then a relatively wider time
gap would not affect the prosecution case.
(emphasis added)

10.6.8 In the present case, as stated above, PW-28, Dr. S.V.
Havinal, the Medical Officer who conducted the post-mortem
examination on the dead body during his cross-examination stated
that it is not correct to say that the person might have died 5 days
before the post-mortem examination. He stated that he might have
died 3 to 4 days before the post-mortem examination. Thus, the
Prosecution case that the deceased was shot dead on the night of
10.07.2006 before his dead body was discovered on 13.07.2006 does
not appear to militate against the last seen theory in view of the
medical evidence that death occurred about 3/4 days prior. Thus, it
cannot be said that the time gap is for a considerable long period.
Page 45 of 76



10.6.9 The obvious inference the defence wanted to draw was that
if death had occurred 5 days earlier, it would be earlier to 10.07.2006,
which would have demolished the Prosecution case. Similarly, if the
death had occurred about 2 days before the postmortem was
conducted, it would be after a few days of the missing of the deceased
on 10.07.2006 which would have cast a genuine doubt on the
Prosecution case because of time gap.
10.6.10 The forensic and ballistic opinion along with the
subsequent recovery of the gun, pellets and wads and other object like
gold chain from the appellant literally obliterates the doubtful
element which can be attributed to the gap in time and space of the
last seen together aspect of the circumstantial evidence. Had this
scientific evidence and subsequent recoveries not been available,
certainly, the time lapse between the fact of last seen together and the
time of death could have proved fatal to the Prosecution case in the
present case.
Thus, this submission of the appellant that there was a long
time lapse, does not hold water.
10.6.11 It may be also noted that the place where the dead body
of the deceased was discovered in a sugarcane field does not appear
Page 46 of 76



to be visited by public except for the workers who work in the field.
In fact, the dead body was discovered belatedly only by the workers
of the owner of the sugarcane field, PW-1, Arun Kumar Maruti
Minache.
10.6.12 PW-1 deposed that on 13.07.2006 his workers namely
Bismilla, Popat and Praveen had gone to the land for measuring
sugarcane crop and at about 9.30 AM of the same day, Bismilla came
to his house and informed him that the dead body of a male was lying
near Bellanki Saravu i.e., on the southern side of the land.
Thus, by the very nature of the location and as evident from the
testimony of the owner of the land, it is quite apparent that the place
where the dead body was found was not frequently visited because of
which the dead body was discovered only on 13.07.2006 even though
the death occurred about 3 to 4 days ago as per the evidence of PW-
28, the Medical Officer who conducted the post-mortem examination.
Hence, the possibility of the deceased being with another person other
than the appellant before he was shot is quite remote.
10.7 It is to be noted that it is not merely the discovery of the dead
body on 13.07.2006 after the deceased was last seen together with the
appellant on 10.07.2006 that the Prosecution case is based. This last
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seen theory is reinforced by the fact that the cause of death of the
deceased was gunshot injury and the weapon of crime was recovered
at the instance of the appellant and there is forensic evidence in the
form of pellets, and the wads found in the skull cavity of the deceased
which could be fired from the said gun recovered which links the
appellant with the crime.
In our opinion, given the subsequent recovery of the gun and
empty pellets and forensic and ballistic evidence of a link between
the pellets recovered from the body of the deceased and the gun
recovered, the time lapse which could have thrown doubt on the last
seen theory pales into insignificance, rather it is rendered
inconsequential.
Thus, the prosecution’s case is not mere conjecture, but rather
based on established circumstances and facts.
10.7.1 PW-28, the Medical Officer conducted the post-mortem
examination at the burial ground of Shiraguppi on 13.07.2006 at 2:40
PM as the body was in early decomposition state, and the following
external injuries were found:
1) Circular shaped wound with diameter 1.5 cm, 3 cm,
above the mastoid process in parietal bone.
Page 48 of 76



2) Irregular shape wound in left infraorbital region,
measuring about 2 x 3 cm. There was no shoot deposit
around the circular shaped wound.
Pellets were found sprayed inside the cranium. Two wads were
also found inside the skull cavity. There were multiple fractures of
the skull and brain haemorrhages due to pellet injuries. These
multiple pellets and wads, which are part of the cartridge found in the
skull cavity, were later sent for forensic examination.
As per the postmortem examination, the entry wound was in
the skull and the exit wound was in the left infraorbital region.
It may be noted that left infraorbital region is the area of the
face located below the left eye socket.
This is indicative of the fact that the bullet entered from behind
the head.
According to PW-28, the Medical Officer, the cause of death
was due to injury to a vital organ leading to neurogenic shock, which
is the primary cause, and secondary cause was hypovolemic shock
due to intracranial haemorrhage.
PW 28, after receipt of the ballistic report from the Forensic
Science Laboratory, Bangalore, gave his final opinion that the cause
Page 49 of 76



of death is ballistic injuries to the vital organ leading to neurogenic
and hypovolemic shock.
10.7.2 We will now examine the evidence of the ballistic
expert N. G. Prabhakar, PW-30, who examined the double barrel gun
which was recovered at the instance of the appellant and other
materials, i.e. two spent 12 bore cartridges, two plastic wads, lead
pellets sent to him for examination. Two live 12 bore cartridges
which were purchased by the police for testing of the gun were also
sent.
10.7.3 These articles were received by the FSL, Bangalore on
19.09.2006 and were examined on the same day and upon
examination, PW-30 furnished the following opinion which is
reproduced verbatim:
“1) The D.B.B.L gun in Article No. 1 bears signs of discharge.
2) The D.B.B.L gun in Article No. 1 was in working
condition at the time of examination.
3) The cartridges in Article no. 3 were live and the same can
be fired through the D.B.B.L Gun in Article No. 1.
4) The effective range of the D.B.B.L gun in Article No. 1 is
about 40 yards.
5) The cartridges case marked as 2(a) and 2 (b) in Article No.
2 have been fired through the right and left barrel of the
D.B.B.L Gun in Article No. 1.
Page 50 of 76



6) The wads and lead pellets in Article Nos. 4 & 5 are the
components of 12-bore cartridges and the same could have
been fired through the D.B.B.L Gun in Article No. 1.”

It may be noted that Article No.1 was the D.B.B.L gun
recovered at the instance of the appellant, Article No.2 consisted of
spent cartridges also recovered at the instance of the appellant.
Article No.3 consisted of two live cartridges which were purchased
by the police for testing of the gun.
The said ballistic expert was subjected to intense cross
examination. However, his evidence could not be shaken in respect
of any of the opinions given by him.
10.7.4 In our considered view, the aforesaid forensic evidence
based on ballistic tests is not only crucial and critical in
understanding the case, but also seals the fate of the appellant, which
establishes the fact that the gun recovered at the instance of the
appellant was used in causing the bullet injury to the deceased which
led to his death.
It is not the case of the defence that such a gun is readily and
easily available and can be used by anybody. One needs to have a
license to possess such a gun. It is not an ordinary weapon of crime
like a knife which is readily available which can be used to injure a
Page 51 of 76



person fatally. In the present case, the weapon of crime is directly
traceable to the appellant, who had taken it from his grandfather as it
was recovered at the instance of the appellant as per the evidence of
the Investigation Officer, PW-31 corroborated by the panch witness,
PW-6.
10.7.5 The double barrel gun was recovered at the instance of
the appellant, as witnessed by the seizure witnesses, namely, Ismail
Mohammad Dange (PW-6) and Villas Macchendra Davari (PW-7).
PW-7, however, turned hostile and stated that nothing was recovered
at the instance of the appellant in his presence. On the other hand,
PW-6 remained consistent, both in his examination in chief as well
as in the cross examination that the appellant in his presence
produced the gun, one live cartridge, two spent cartridges from his
house. Other articles like a handbag, Hero Honda Motorcycle were
also produced by the appellant in presence of PW-6. Even though
PW-6 was declared hostile as he did not fully support the prosecution
case, yet as far as the recovery of the aforesaid articles is concerned,
he stood his ground and he remained consistent even in his cross
examination. The said witness testified that the appellant led the
Police and other witnesses to the spot from where the appellant shot
Page 52 of 76



the gun. Thus, the recovery of the gun and cartridges at the instance
of the appellant was proved.
It may also be noticed that ballistic expert, on examination of
the two spent cartridges recovered along with the gun at the instance
of the appellant, gave his opinion that these were fired from the gun.
10.7.6 The double barrel gun, one live, and two spent cartridges,
and handbag was recovered at the instance of the appellant from the
house of the grandfather of the appellant where the appellant lived.
Hence, these materials or “facts” recovered would come within the
scope of Section 27 of the Evidence Act. Since the discovery of these
materials was proved, it was incumbent upon the appellant to explain
the discovery and attributes of the articles, more particularly, the gun
and spent cartridges. Since it was within the special knowledge of the
appellant how these spent cartridges were kept in the house and how
the gun was used for discharge before it was recovered, the appellant
owes an obligation to explain the same. Even if the appellant did not
explain the same, at least his grandfather, PW-20 who was the owner
of the gun was obligated to explain it as he was living with the
appellant, and he was the real owner of the gun. There was no such
explanation offered either by the appellant or his grandfather (PW-
20), how the spent cartridges were found and how the gun was used
Page 53 of 76



for discharge. The grandfather, PW-20 merely stated that the
appellant did not take the gun on 10.07.2006 and used it. It was
natural on the part of the grandfather to protect his grandson, but he
was supposed to know of about the use of the gun as well as the
recovery of the spent cartridges. Thus, the failure to explain the
recovery of the gun and its discharge, and recovery of the spent
cartridge certainly implicates the appellant, specifically when the
ballistic expert gave his opinion that the lead pellets and wads
recovered from the brain skull could be used from the aforesaid gun
and the gun had shown signs of discharge.
As held by this Court in Mukesh & Anr. Vs. NCT of Delhi
& Ors. (2017) 6 SCC 1, when recoveries are made under Section 27
of the Evidence Act, the accused should explain how he came into
possession of the incriminating articles.
10.7.7 The clear scientific evidence that the pellets and wads
found in the skull cavity of the deceased could be fired from the
aforesaid gun recovered at the instance of the appellant and the gun
bore signs of discharge and was in a working condition clearly links
the appellant to the crime.
Page 54 of 76



10.7.8 Even though the appellant had tried to make out a case that
nobody had seen the appellant carrying the gun, in our opinion, the
said contention is devoid of merit in view of the evidence of the
forensic expert who examined the gun who clearly stated that gun
can be dismantled. There is the evidence of PW-5, Ashok Ram
Jamadar, who had given the testimony of seeing the appellant along
with the deceased in the night of 10.07.2006 going in a motorcycle
towards Shiraguppi that the deceased was carrying a bag. If the
double barrel gun could be dismantled, it certainly can be kept in the
bag. Hence, merely because there is no evidence of any witness
seeing the gun being carried by the appellant, it cannot be fatal to the
prosecution case.
10.7.9 Once it has come to the fore, based on scientific evidence
that the gun which was recovered at the instance of the appellant was
in working condition, that it had shown sign of discharge, and the
pellets and wads found in the skull cavity of the deceased could be
fired from the said gun, in the absence of any explanation by the
appellant or by the owner of the gun, the grandfather of the appellant,
the only logical inference that can be drawn in the circumstances is
that it was the appellant who had used the said gun causing the bullet
injury on the deceased which led to his death.
Page 55 of 76



10.8 Under these circumstances, since it has been proved that the
appellant was seen last together with the deceased going on a
motorcycle carrying a bag, and there is also evidence that there was
an argument between them of certain monetary transaction and
discussion about going for hunting before they left together, in our
opinion, there cannot be any doubt that the appellant was responsible
for causing the death of the deceased by use of the double-barrel gun.
10.9 There is also a specific finding by the Trial Court and the
High Court that the appellant remained in abscondence from
11.07.2006 till he was arrested by the police on 22.07.2006.
10.9.1 It is on record that the appellant and the deceased were
friends. They were not strangers. Thus, this act of absconding by the
appellant, rather than helping and cooperating with the family of his
friend, in spite of persistent enquiries from the father of the deceased
is a clear indication of his guilt.
The Investigating Officer, PW-31 stated that after recording
the statements of the witnesses who saw the deceased and appellant
together last on 10.7.2006, the police searched for the appellant going
to various places at Miraj, Sangali, Hiruyuru, Bangalore but the
appellant could not be traced. On 22.07.2006 at 6.00 AM, after PW-
Page 56 of 76



31 received an anonymous call to the effect that the appellant has
come to Miraj, he was arrested there and brought to the police station.
10.9.2 It is trite that mere absconding by itself does not constitute
a guilty mind as even an innocent man may feel panicky and may
seek to evade the police when wrongly suspected of being
involvement as an instinct of self-preservation. But the act of
abscondence is certainly a relevant piece of evidence to be
considered along with other evidence and is a conduct under Section
8 of the Evidence Act, 1872, which points to his guilty mind. The
needle of suspicion gets strengthened by the act [See: Matru @
Girish Chandra vs. State of Uttar Pradesh, (1971) 2 SCC 75 ].
10.9.3 It is also on record that the appellant did not merely remain
in hiding but also misled his relatives and of the family of the
deceased and his friends about his whereabouts.
It is in evidence that when PW-2, the father of the deceased
telephoned the house of the appellant on the night of 10.07.2006, he
was informed that the appellant was not at home. PW-2 again visited
the appellant’s house in the morning of 11.07.2006 to enquire about
the deceased. The appellant informed PW-2 that he had left the
deceased near the water tank situated near the bus stand the previous
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evening and he did not know where the deceased had gone. Further,
when PW-2 again went to the house of the appellant next day on
12.07.2006 to inquire about the whereabouts of his missing son, the
appellant was not found in the house. PW-2 however, met his uncle,
namely, Dhananjay Chavan who informed PW-2 that the appellant
had gone to Pune in search of job and said Dhananjay Chavan gave
the mobile number of one Devraj Sutar (PW-14), a friend of the
appellant who was stated to be staying in Pune. When the father of
the deceased contacted the said Devraj Sutar (PW-14) on his mobile
phone, and inquired about the appellant, the said Devraj Sutar (PW-
14) informed the father of the deceased that the appellant had not
come to meet him. Later when the father of the deceased rang up
Devraj Sutar (PW-14) again, he informed PW-2 that he (PW-14) was
not in Pune but in Ahmednagar. PW-2, the father of the deceased
then confronted Devraj Sutar as to why he was lying, Devraj Sutar
told him that the appellant had asked him to do so. It was thereafter
that the father of the deceased filed a missing report.
We have also gone through the missing report filed by PW-2.
The narration of the incidents in the missing report about the acts of
the appellant in misleading and avoidance substantially corroborates
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what PW-2 had deposed about the appellant before the Trial Court,
thus lending credibility to his testimony before the Court.
10.9.4 When we critically examine the evidence of Devraj Sutar
(PW-14), we find that he corroborates the testimony of PW-2, the
father of the deceased.
PW-14 testified that he was a classmate and friend of the
appellant and knew him.
PW-14 stated that on 11.07.2006 he received a call from the
appellant at around 9:00 pm and the appellant asked him to tell his
uncle if he contacts him on the phone to inform him that he (PW-14)
is in Pune, though PW-14 was in Ahmednagar. PW-14 also stated
that the appellant appeared to be frightened and asked him to tell a
lie and thereafter disconnected the phone. PW-14 further testified
that on the next day on 12.07.2006 he received a phone call from the
uncle of the appellant who enquired about the appellant, to which
PW-14 told him that the appellant had not come. On the second call
received from the uncle of the appellant, PW-14 narrated the actual
facts by stating that he was actually in Ahmednagar and not in Pune
and the appellant had not come to him. He stated that thereafter, he
was contacted over phone by the police who asked him to come to
Page 59 of 76



Miraj Police Station where he went and gave his statement. He also
stated that after 3-4 days of the recording of his statement, the police
again asked him to report to the Kagawad Police Station where he
was informed that one Vikram Shinde has been murdered.
10.9.5 In our opinion, the evidence of PW-14 is not only highly
relevant but critical to support the case of the prosecution that the
appellant had been in hiding and was misleading others about his
whereabouts and he remained in abscondence from 11.07.2006 till
22.07.2006.
His testimony also appears to be truthful.
It is to be noted that PW-14 had specifically deposed that he
was a friend of the appellant, and he did not know the deceased. PW-
14 stated that he was a classmate of the appellant, and he had
undertaken diploma course along with the appellant.
He did not have any idea of the missing of Vikram Shinde and
the subsequent discovery of the dead body of Vikram Shinde. PW-
14 came to know of the murder of Vikram Shinde only when he was
called at the Kagawad Police Station after about a week of his
recording of statement at Miraj Police Station. Hence, there is no
reason to doubt the credibility of his evidence. Rather, he, being a
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friend of the appellant, it would not have been surprising if he had
turned hostile as in the case of some of the prosecution witnesses like
Sandip Sandalage (PW-18). According to the Prosecution, the
appellant had allegedly made an extra-judicial confession in the
presence of Sandip Sandalage (PW-18) who was a friend of the
appellant, but PW-18 turned hostile and resiled from his previous
statement. Hence, we have not taken into account his evidence in our
consideration. However, Devraj Sutar (PW-14), despite being a
friend of the appellant did not turn hostile but supported the
prosecution case. Thus, there cannot be any doubt about the
credibility of the evidence of PW-14, Devraj Sutar.
10.10 As regards the recovery of gold chain, from the possession
of the appellant, the same is proved as per evidence of the
Investigating Officer, PW-31, and seizure witness, Ismail
Mohammad Dange, PW-6. PW-6 stated that on 22.07.2006 when he
was called to the Police Station, the appellant had produced a gold
chain and at that time, a goldsmith (PW-13) was present who tested
and measured it. The said PW-13 also corroborates the testimony of
PW-6 though the other panch witness, PW-7, Vilas Macchendra
Davari, does not support the same.
Page 61 of 76



In respect of seizure of mobile phone, the shopkeeper, Shiv
Kumar, PW-25 had denied having purchased it from the appellant,
though there was no explanation of the recovery of a paper containing
the driving licence particulars and photograph of the appellant with
the signature of the shop owner and seal of the shop. Nevertheless,
we give the benefit of doubt in regard of proof of recovery of mobile
phone from the appellant, yet the fact remains that the said witness
PW-25 admitted that the signature on the said document was his and
the seal pertains to his shop, which indicates certain relationship of
the appellant with the said shopkeeper, PW-25.
Be that as it may, in our opinion, this may not have much
bearing on the case in view of the recovery of the gun, cartridges,
motorcycle, bag and gold chain at the instance of the appellant, which
clearly points the finger of culpability towards the appellant.
10.11 This takes us to the other contentious issue of motive which
prompted the appellant to commit the crime. According to the
Prosecution, the appellant murdered the deceased by using firearms
as he was upset by the non-repayment of the loan taken from him by
the deceased.
Page 62 of 76



10.11.1 The Prosecution case is that the appellant had taken a
certain amount from Ravindra S. Chavan, PW-19 to lend it to the
deceased. However, Ravindra Chavan denied having given any
money to the appellant. In view of the above evidence, the Trial Court
held that the monetary transaction cannot be said to be proved. On
the other hand, the High Court based on the other evidence held the
same to be proved.
In this regard, we may scrutinize the evidence of other witness,
namely, Ashok R Shinde (PW-4), the auto-rickshaw driver who
allegedly heard arguments between the appellant and the deceased
regarding certain monetary matter. Even if the exact amount of the
monetary transaction cannot be ascertained as held by the Trial
Court, it is on record that there was an argument between them
relating to money and insulting words being used by the deceased to
the appellant which was heard by PW-4. This interaction would show
that there was an element of grudge by the appellant against the
deceased because of certain monetary dispute which constituted the
motive behind the crime.
10.11.2 Even if it is held that there was no such monetary
transaction between the appellant and the deceased, the same may
not materially affect the Prosecution case. As is well known, the
Page 63 of 76



motive is something that is very difficult to prove as it remains hidden
in the deep recess of the mind of the person concerned and in the
absence of any open declaration by the person concerned himself, the
motive has to be inferred from the activities and conduct of the
person. From the evidence of Ashok R Shinde (PW-4), it can be
stated that there was a certain argument between the appellant and
the deceased, and the deceased was heard using insulting words to
the appellant. It is to be noted that the PW-4 is known to both the
appellant and the deceased, and he was having good terms with the
family members of both the deceased and appellant and as such it
will be highly improbable that this witness would give false
statement favouring the appellant and against the deceased. Nothing
was suggested during his cross examination of him being inimical to
the appellant.
10.11.3 The law is now well-settled that while proof of motive
certainly strengthens the prosecution case based on circumstantial
evidence, failure to prove the same cannot be fatal. In this regard,
one may refer to G. Parshwanath vs. State of Karnataka 2010 (8)
SCC 593 in which it was held as follows:
“45. The argument that in absence of motive on the part of
the appellant to kill the deceased benefit of reasonable doubt
should be given, cannot be accepted. First of all every
suspicion is not a doubt. Only reasonable doubt gives benefit
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to the accused and not the doubt of a vacillating judge. Very
often a motive is alleged to indicate the high degree of
probability that the offence was committed by the person who
was prompted by the motive. In a case when the motive
alleged against accused is fully established, it provides
foundational material to connect the chain of circumstances.
It afforts a key on a pointer to scan the evidence in the case
in that perspective and as a satisfactory circumstance of
corroboration. However, in a case based on circumstantial
evidence where proved circumstances complete the chain of
evidence, it cannot be said that in absence of motive, the
other proved circumstances are of no consequence. The
absence of motive, however, puts the court on its guard to
scrutinize the circumstances more carefully to ensure that
suspicion and conjecture do not take place of legal proof.
There is no absolute legal proposition of law that in the
absence of any motive an accused cannot be convicted
under Section 302 IPC. Effect of absence of motive would
depend on the facts of each case. Therefore, this Court
proposes to examine the question of motive which prompted
the appellant to commit the crime in question.”


10.12 The present case is clearly one that is founded on
circumstantial evidence. By its very nature, circumstantial evidence
as opposed to direct evidence, is the inference one draws from the
existence of a fact based on certain established fact/circumstance.
This process invariably involves intuitive reasoning, proper
understanding of human behaviour and psychology. This reasoning
has to be rational, probative and which accords with the natural
human behaviour. At the same time, there will always be certain
subjective elements, which however, cannot be in the nature of
surmise or conjecture. The inference may not lead to absolute
certainty as we are dealing with human behaviour and reconstructing
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a past incident in hindsight. Naturally, when evaluating the proven
circumstances for drawing certain inferences therefrom, a logical,
rational and pragmatic approach must be adopted without being too
technical, pedantic, or seeking absolute proof, for this principle of
circumstantial evidence is not based on statutory provision.
Thus, based on lived human experiences and human
behaviour, if any supposition of fact is clearly inferable from an
established fact, the inferred position of fact should be adopted as
correct. Law does not require that a fact requires to be proved on
absolute terms bereft of all doubts. What law contemplates is that for
a fact to be considered proven, it must eliminate any reasonable
doubt. Reasonable doubt does not mean any trivial, fanciful or
imaginary doubt, but doubt based on reason and common sense
growing out of the evidence in the case. A fact is considered proved
if the court, after reviewing the evidence, either believes it exists or
deems its existence probable enough that a prudent person would act
on the assumption that it exists.
10.12.1 It is also settled that where the evidence is circumstantial
in nature, the circumstances from which the inference of guilt is to
be drawn, should be fully established. In other words, each of the
circumstances from which certain inferences are sought to be drawn,
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is required to be proved in accordance with law, and there cannot be
any element of surmise and conjecture, and each of these
circumstances so proved must form a complete chain without any
break to clearly point to the guilt of the accused person. The court
has to examine the cumulative effect of the existence of these
circumstances, which would point to the guilt of the accused, though
any single circumstance may not in itself be sufficient to prove the
offence. Thus, if the combined effect of all these circumstances, each
of which has been independently proved, establishes the guilt of the
accused, then the conviction based on such circumstances can be
sustained. These circumstances so proved must be consistent only
with the hypothesis with the guilt of the accused and should exclude
every hypothesis except the one sought to be proved.
Thus, if upon evaluation of a set of proved circumstances
consistent with understandable and socially recognised human
behaviour, as a cumulative consequence, a clear and definitive
pattern emerges which irresistibly points to the culpability of the
accused person, we see no reason why we should not accept such an
inferred conclusion to be correct to fasten criminal liability on the
accused. On the other hand, if such an inference is sought to be
assailed on the ground of any doubt, the doubt must be a reasonable
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one consistent with human behaviour under the circumstances of the
case and not fanciful, abstract speculation or imagination.
10.12.2 Keeping the aforesaid principles in mind, if we consider
all these circumstances, all of which, in our opinion, have been
proved in the present case, the cumulative effect of these would
clearly demonstrate that no other person other than the appellant
could have caused the fatal injury to the deceased by use of fire arms.
As the saying goes, while men may lie, circumstances do not.
10.13 As discussed above, it has been proved through cogent and
credible evidence that the appellant was last seen together with the
deceased on 10.07.2006 and though the dead body of the deceased
was discovered on 13.07.2006, death had occurred around the time
the deceased went missing and during this intervening period, the
whereabouts of the deceased could not be ascertained. On the other
hand, the appellant had been hiding and misleading his relatives and
friends about his whereabouts for which the Trial Court and the High
Court had rightly inferred his guilty mind.
10.13.1 The other incriminating circumstance is the recovery of
pellets and wads from the brain and skull of the deceased. The post-
mortem report indicates that the deceased died of bullet injury. The
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exit wound was below the left eye socket, which would show that the
victim was fired at from behind. As per the forensic expert, the size
of the injury on the head of the appellant corroborates with the injury
that may be caused by firing from the double barrel gun. What is,
however, of utmost and critical significance is the recovery of the
pellets and wads from the brain inside the skull of the deceased and
the opinion of the ballistic expert that these pellets and wads can be
fired from the double barrel gun which was recovered at the instance
of the appellant which belongs to the appellant’s grandfather. The
ballistic expert had also given his opinion that there is evidence of
discharge of the gun and the gun was in working condition.
10.13.2 Further, as per the ballistic expert, the spent two 12 bore
D.B.B.L cartridges recovered at the instance of the appellant were
fired from the same gun and that the pellets and wads recovered from
the body were parts of the 12 bore cartridge.
10.14 Since the gun and empty pellets were recovered from the
house of the appellant/his grandfather, the incriminating evidence
clearly indicates the involvement of the appellant. As the appellant
had access to the said gun and since it was recovered at his instance,
it was upon him to explain the circumstances in which the gun
showed signs of discharge and how the empty pellets were recovered
Page 69 of 76



as required under Section 106 of the Indian Evidence Act which
provides that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. As there was
ballistic evidence that the pellets and wads recovered from the cavity
of the skull of the deceased showed a link, the appellant had an
obligation to explain the circumstances. Even if the appellant may
claim that he was not the owner of the gun, his grandfather owned a
duty to explain the position.
All the prosecution witnesses, including the forensic expert
and ballistic expert had been subjected to intense cross examination
with the endeavour to shake their credibility, yet, the appellant has
chosen not to lead any evidence except for denying any role in the
crime.
10.14.1 The appellant's connection to the case deepened as
various forensic and ballistic analyses were introduced. The recovery
of the weapon and supporting evidence, including the corroborative
testimonies of prosecution witnesses, established a compelling
narrative. While motive is often challenging to substantiate, the chain
of circumstantial evidence in this case continuously narrowed the
focus toward the appellant's culpability. The scientific analysis of the
gun and its discharged state, alongside the recovered empty pellets,
Page 70 of 76



played a critical role in aligning the timeline of events surrounding
the crime.
10.15 It is true that even in cases based on circumstantial evidence,
the prosecution cannot depend on the false alibi or unproven defence
plea since the onus is always on the prosecution to prove the
prosecution case and the onus never shifts to the accused. However,
in such circumstances where prosecution has been able to prove on
the basis of cogent evidence that the weapon of crime was traced to
the accused, as in the present case, it was incumbent upon the
appellant to explain the circumstances of the recovery of the weapon
with which a linkage has been established with the injury suffered by
the deceased through scientific evidence. However, apart from
claiming ignorance and denying the various incriminating evidence
presented during the trial, the appellant chose not to adduce any
evidence to explain these circumstances. Thus, his silence and
failure to explain any of the incriminatory circumstances, would
strengthen the prosecution case based on circumstantial evidence
against him as proved by the Prosecution.
10.15.1 In this regard, we may also refer to the decision in this
Court rendered in Trimukh Maroti Kirkan v. State of Maharashtra
(2006) 10 SCC 681 it was held that where the circumstantial
Page 71 of 76



evidence is the basis for any case, where no eyewitness account is
available, and when the incriminating circumstances are put to the
accused, if the accused does offer any explanation or the explanation
that is found to be false, it provides an additional link to the chain of
circumstances as observed in para 21 of the aforesaid decision which
is reproduced herein below: -
“ 21. In a case based on circumstantial evidence where
no eyewitness account is available, there is another
principle of law which must be kept in mind. The
principle is that when an incriminating circumstance is
put to the accused and the said accused either offers no
explanation or offers an explanation which is found to be
untrue, then the same becomes an additional link in the
chain of circumstances to make it complete. This view has
been taken in a catena of decisions of this Court.
[See State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000
SCC (Cri) 40] (SCC para 6); State of U.P. v. Dr.
Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC
(Cri) 642 : AIR 1992 SC 2045] (SCC para 39 : AIR para
40); State of Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v. State
of Rajasthan [(2002) 1 SCC 731 : 2002 SCC (Cri) 247]
(SCC para 15) and Gulab Chand v. State of M.P. [(1995)
3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4).]

10.16 We may not also lose sight of the significance of the
provision of Section 313 of the CrPC in the case. As a trial comes to
a conclusive phase and all the evidence are adduced by the
prosecution, the veracity and credibility of which are tested with the
tool of cross examination and when a certain clear picture emerges
based on the incriminating materials on evidence, as a procedural
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safeguard, the court draws the attention of the accused to these
incriminating evidence to enable the accused to explain these facts
and circumstances which point to his guilt. While the accused is not
obligated to answer the questions put to him and still can maintain
his silence or deny the evidence, yet silence or evasive or wrong
answers to the questions put by the court provides a perspective to
the court in properly evaluating the incriminating materials which
have been brought forth by the prosecution by drawing necessary
inference including an adverse one. [See, Manu Sao v. State of
Bihar , (2010) 12 SCC 310 ].
10.16.1 Examination of an accused under Section 313 CrPC is an
important component of the process of judicial scrutiny of the
evidence sought to be relied upon by the prosecution against an
accused. At the time of indictment and framing of charges against an
accused, the untested evidence marshalled by the investigating
authority in the course of the investigation is laid bare before the
accused, who would have an idea as to the nature of evidence and
case being built up against him by the prosecution. This is to enable
the accused to prepare and strategize his defence. He will have all the
opportunities to discredit any prosecution witness or question any
evidence through the tool of cross examination. He will thereafter
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have the opportunity to lead his defence evidence if any. It is in this
context that the answers given by an accused assume great
significance in assessing the evidence by the court.
10.16.2 In the present case, despite the incriminating evidence
which has come up against him has been pointed out to him by the
Court, he has not explained any of these but merely denied or feigned
ignorance to which necessary inference can be drawn against him.
11. CONCLUSION
11.1 For the reasons discussed above, on consideration of the
circumstantial evidences and other proven facts, in our considered
opinion, a clear pattern emerges out of the circumstances so proved
with inferential and logical links which unmistakably points to the
guilt of the appellant for committing murder of the deceased Vikram
Shinde, punishable under Section 302 of the IPC and also for
committing offences under Section 404 of the IPC and Sections 3 and
5 of the Arms Act,1959 punishable under Sections 25 and 27 of the
Arms Act.
These proved circumstances considered individually or taken
together do not indicate the involvement of anyone else other than
the appellant.
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In the circumstances so proved, the possibility of any other
person being responsible for the death being ruled out, it can be safely
said that the Prosecution has been able to prove the charges against
the appellant beyond reasonable doubt. There can thus be no doubt
that no one else other than the appellant could have committed the
crime.
11.2 For the foregoing reasons, we are of the view that no material
illegality has been committed by the Trial Court and the High Court
in appreciating the evidence against the appellant nor it can be said
that any gross injustice has been caused to the appellant by the
impugned judgment by misreading or ignoring any material
evidence.
11.3 We are, therefore, satisfied that the conviction of the appellant
by the Trial Court which the High Court upheld does not warrant any
interference from this Court except for setting aside the conviction
under Section 404 of the IPC as regards recovery of the Nokia Mobile
Phone, of which we give the benefit of doubt to the appellant, but
sustain the conviction of the appellant under Sections 302 and 404 of
the IPC as regards murder of the deceased and misappropriation of
gold chain by the appellant and under Sections 25 and 27 of the Arms
Act, 1959 for unlawful possession and use of the gun.
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11.4 Resultantly, the appeal is dismissed and the impugned
judgment and order of the High Court of Karnataka, Circuit Bench at
Dharwad passed on 06.12.2010 in Criminal Appeal No. 666 of 2007
is upheld to the extent indicated above.
Consequently, bail bonds furnished by the appellant stand
cancelled and the appellant who had been released on bail is directed
to surrender before the Trial Court forthwith to undergo the
remaining period of sentence awarded by the Trial Court as affirmed
by the High Court.







……………………………J.
(SURYA KANT)



….……………….…………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)


NEW DELHI;
MAY 30, 2025.
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