Case: PAVAN VASUDEO SHARMA Vs. THE STATE OF MAHARASHTRA THR. SECRETARY

were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the third person. b) According to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobile intact. c) In terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to Bhima Waghmare. d) PW2 Seema in her original version had expressed suspicion about certain professional rivals of her husband. e) The assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 Sanjay Lokhande. f) The matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not of murder. g) There was a gap of about 15 days between the snatching of the service weapon and murder. 14. With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC. 15. Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused. 16. The law on the point of appreciation of cases based on circumstantial evidence is very clear. It was laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116C as under:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and ?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 ; 1973 SCC (Cri) 1033 ; 1973 Cri 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.? 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.? 17. Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. The facts narrated above bring out the followingGoing by FIR at Exhibit 106, three persons were responsible for robbing PW11 Police Naik Nagare of his service weapon. Though the description of all three persons was given in FIR Exhibit 106, no Test Identification Parade was undertaken when four suspects were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the thirdAccording to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobileIn terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to BhimaPW2 Seema in her original version had expressed suspicion about certain professional rivals of herThe assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 SanjayThe matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not ofThere was a gap of about 15 days between the snatching of the service weapon and murder.With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC.Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused.The law on the point of appreciation of cases based on circumstantial evidence is very clear.Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.