Full Judgment Text
2024 INSC 298
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1186 OF 2022
ARUN SHANKAR …APPELLANT
VERSUS
THE STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
1) The Sessions Court has convicted the appellant/accused
for the offences punishable under Sections 302 and 201 of the
th
Indian Penal Code vide the judgment dated 13 March 1995.
He has been sentenced to undergo life imprisonment. The
decision of the Sessions Court has been confirmed by the High
th
Court by the impugned judgment and order dated 5
December 2017. The case is based on circumstantial evidence.
FACTUAL ASPECTS
2) The case of the prosecution will have to be briefly stated.
The appellant and deceased (Sushildhar Dubey) were related
and were residents of village Amgoan. They used to go together
Signature Not Verified
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to drink liquor. On 29 September 1993, in the evening,
Digitally signed by
Anita Malhotra
Date: 2024.04.10
18:06:58 IST
Reason:
around 7.00, the appellant went to the house of the deceased
and asked the deceased to accompany him to drink liquor.
Criminal Appeal No. 1186 of 2022 Page 1 of 8
They both went to the house of PW-2 (Ramdas) in village
Kohaka. They consumed liquor in PW-2’s house, and they left
after consuming the liquor. Nobody saw the deceased alive
thereafter, and his dead body was found on the morning of 30th
September 1993 on the road leading to Village Bijholidhar
Amgoan. The prosecution case is based on circumstantial
evidence. The circumstances are:
a) Recovery of the knife at the instance of the
appellant, which is the instrument of assault on the
deceased;
b) Last seen together;
c) Medical opinion on the injury sustained by the
deceased and cause of death; and
d) Habit of the deceased of drinking liquor with the
appellant.
SUBMISSIONS
3) Learned senior counsel appearing for the appellant has
taken us through the notes of evidence of material prosecution
witnesses and other documents on record of the Trial Court.
His submission is that last seen together is a very weak
circumstance as there is evidence on record to show that the
appellant and the deceased were related. Very often, they used
to consume liquor together. He submitted that the recovery of
the knife at the appellant's instance had not been proved. He
submitted that even the existence of motive has not been
pleaded and proved by the prosecution. He submitted that if
the oral evidence of PW-7 (Virendradhar Dwivedi) and PW-15
(Dr. Mahendra Kumar Ahirwal) is considered together, the
Criminal Appeal No. 1186 of 2022 Page 2 of 8
theory that the death occurred due to an accident of motorcycle
cannot be ruled out. Therefore, the benefit of the doubt must
be extended to the appellant. He submitted that every
circumstance constituting a chain of circumstances has not
been established.
4) The learned counsel appearing for the State supported
the impugned judgment. She submitted that the dead body of
the deceased was found within a few hours from the time at
which the appellant and the deceased were last seen together.
She submitted that recovery of the weapon used by the
appellant to attack the deceased had been duly proved, and all
circumstances forming part of the chain of circumstances have
been established.
CONSIDERATION OF SUBMISSIONS
5) This case is based on circumstantial evidence. The law
governing cases involving circumstantial evidence is no longer
res integra. Paragraph 153 of the decision of this Court in the
case of Sharad Birdhichand Sarda v. State of
1
Maharashtra lays down the well-settled principles.
Paragraph 153 reads thus:
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can
be said to be fully established:
( 1 ) the circumstances from which the
conclusion of guilt is to be drawn should
be fully established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
1
(1984) 4 SCC 116
Criminal Appeal No. 1186 of 2022 Page 3 of 8
should” and not “may be” established. There
is not only a grammatical but a legal
distinction between “may be proved” and
“must be or should be proved” as was held by
this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were made:
[SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between ‘may be’ and ‘must
be’ is long and divides vague conjectures from
sure conclusions.”
( 2 ) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty,
( 3 ) the circumstances should be of a
conclusive nature and tendency,
( 4 ) they should exclude every
possible hypothesis except the one to be
proved, and
( 5 ) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused.”
(emphasis supplied)
6) We have carefully perused the evidence of PW-2, who
th
deposed that on 29 September 1993 till 9.00 pm, the
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appellant and deceased consumed liquor in his house. He
deposed that the appellant and deceased left his house after
consuming liquor. He stated that the appellant and the
deceased had gone towards Amgoan. The body of the deceased
was recovered on the next day. In the cross-examination, the
PW-2 stated that two to four times, the appellant and the
deceased had come to his place to drink liquor. He stated that
the deceased used to consume a lot of liquor. PW-6 (Smt.
Anjana Devi) is the wife of the deceased, who deposed that the
appellant came to her house and gave a currency note of Rs.
50/- to the deceased and forcibly took him for drinking. After
that, the deceased did not come back. She stated that she
deputed her elder son to the appellant’s house, where the
sister-in-law of the appellant informed the elder son of the
deceased that the appellant was sleeping in the house.
Thereafter, the appellant himself visited the house of PW-6 and
enquired whether his brother-in-law (deceased) had come
back. She deposed that at 12.00 noon, one Kotewar informed
her that the dead body of her husband had been found. She
admitted that her husband used to drink alcohol occasionally.
Sometimes, he used to get drunk, and people used to bring him
back home. She stated that when her husband went with the
appellant, she knew that they were going to drink liquor.
7) PW-7 stated that the deceased was his nephew. In the
cross-examination, he accepted that the deceased and
appellant always used to be together. Thus, this was not the
first occasion when the deceased and the appellant went
together to consume liquor. Apart from being closely related,
Criminal Appeal No. 1186 of 2022 Page 5 of 8
they had a close contact, and they used to be together for
drinking. The prosecution has not come out with a case that
there was some motive on the part of the appellant for killing
th
the deceased. Neither PW-2 nor PW-6 stated that on 29
September 1993, there was any dispute or altercation between
the appellant and the deceased. Thus, the deceased being in
th
company of the appellant on 29 September 1993 was not an
unusual circumstance. This makes the case based on the
theory of last seen together very weak in absence of motive.
8) Now, we come to the evidence of recovery of the weapon
of offence at the instance of the appellant. The first witness to
the recovery memorandum under Section 27 of the Indian
Evidence Act, 1872, is PW-2. In the examination-in-chief, he
said that he was not aware who told the police that the knife
was lying in a particular place. He stated that the police had
said they were trying to find out the place the accused was
telling. He stated that soil and knife were recovered from
different locations. He stated that he signed on papers on which
something was written, which was not read over to him. He
further stated that he was illiterate.
9) PW-4 (Arjun) stated that the police personnel had taken
them to the place where the knife was found. The witness said
that he saw the knife first, and thereafter, the police picked it
up. He stated that he was not aware who had told police that
the knife would be found at that place. On plain reading of the
evidence of these two witnesses, it is apparent that the recovery
of the knife at the instance of the appellant has not been duly
proved. They have not stated that the discovery was made from
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a place disclosed by the appellant in their presence. Moreover,
memorandum recording the statement of the appellant has not
been duly proved. So, one part of the chain of circumstances
has not been established.
10) PW-7 stated in the cross-examination that he had gone
to the place of incident. He stated that there were pieces of glass
lying there. He stated that the pieces of glass may be of the light
of a motorcycle. He stated that he had informed the police that
the deceased may have sustained injury due to an accident
involving a motorcycle.
11) PW-15 is the doctor who performed a postmortem of the
body of the deceased. In the cross-examination, he admitted
that if the glass pieces were small and sharp, the injury
sustained by the deceased could have been caused by small
pieces of glass.
CONCLUSION
12) Thus, the recovery of the weapon at the instance of the
appellant has not been proved. Therefore, it cannot be said that
all the circumstances forming part of the chain of
circumstances have been duly proved. Moreover, the evidence
of PW-7, who deposed that pieces of glass were found at the
place of the incident, and the opinion of the doctor who
performed postmortem creates a doubt about the prosecution
story. There is no explanation by the prosecution for the
presence of a large number of glass pieces at the place where
the body of the deceased was found. The circumstance of last
seen together is a very weak circumstance in the facts of the
case. The circumstances brought on record are not conclusive
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in nature. The circumstances are not consistent only with the
hypothesis of the guilt of the appellant.
13) In the circumstances, the appellant's conviction cannot
be sustained. We allow the appeal and set aside the impugned
judgements, and the appellant is acquitted of the offences
alleged against him. The appellant is on bail. His bail bonds are
cancelled.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ujjal Bhuyan)
New Delhi;
April 10, 2024
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