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  NON-REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1324 OF 2008

ANIL S/O. SHAMRAO SUTE & ANR. … APPELLANTS

VERSUS

STATE OF MAHARASHTRA … RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The two appellants (A1-Anil and A2-Ashok respectively)  

along with four others (A3-Baba, A4-Kishor, A5-Shankar and  

A6-Mayabai) were charged for offences under Sections 147,  

148, 302 read with Section 149 of the Indian Penal Code (for  

short, “the IPC”).  Alternatively, they were also charged for  

offence under Section 302 read with Section 34 of the IPC.  

During  the  pendency  of  the  trial,  A3-Baba  was  murdered  

and, therefore, the case abated as against him.  

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2. The prosecution  case  rests  on  the  evidence  of  PW-3  

Meena,  wife  of  Vijay  Lambat  (“the  deceased”).   On  

13/12/1991 at 22:25 hours, she is stated to have lodged FIR  

at Wardha City Police Station. In her FIR, she stated that the  

deceased was a driver.  On 13/12/1991, in the evening, she  

and the deceased were at their house.  At about 8.00 p.m.,  

A1-Anil,  A2-Ashok  and  A5-Shankar  came  to  their  house.  

They gave her money and asked her to bring liquor.  At that  

time, the deceased was sleeping.  She sent her son to the  

neighbour’s house to bring liquor. When he brought liquor,  

they consumed it.  Thereafter, they asked the deceased to  

accompany them for paan.  The deceased told them that he  

was not well.  Even then, they forced him to get up. They  

brought him out in the courtyard. In the courtyard, A1-Anil  

and  A2-Ashok  dealt  knife  blows  on  his  abdomen.   Her  

mother-in-law A6-Mayabai  was  holding  the  deceased.   On  

account of knife blows, the deceased fell on the spot.  When  

she rushed to help the deceased, she was pushed aside by  

holding her hair. She then rushed to the Wardha City Police  

Station and lodged the FIR.  The deceased was shifted to the  

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General Hospital, Wardha where he was declared dead.  On  

completion  of  the  investigation,  the  accused  came  to  be  

charged as aforesaid.  

3. In support of its case, the prosecution examined seven  

witnesses.   The  accused  stated  that  they  were  innocent.  

They claimed to be tried.  On behalf of the accused, it was  

suggested that A1-Anil and A2-Ashok used to visit the house  

of  A6-Mayabai,  the  mother  of  the  deceased,  which  was  

resented by the deceased and his wife PW3-Meena.  It was  

suggested that A3-Baba may have murdered the deceased.  

Upon perusal of evidence learned Sessions Judge acquitted  

A1-Anil, A2-Ashok, A4-Kishor, A5-Shankar and A6-Mayabai of  

the offences punishable under Sections 147,  143 and 302  

read  with  Section  149  of  the  IPC.  He  also  acquitted  A4-

Kishor,  A5-Shankar  and  A6-Mayabai  of  the  offence  

punishable under Section 302 read with Section 34 of the  

IPC.  He found the appellants, A1-Anil and A2-Ashok guilty of  

the offence punishable under Section 302 read with Section  

34 of the IPC and sentenced them to suffer imprisonment for  

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life  and to pay a fine of Rs.500/-  each and,  in default,  to  

suffer  further  rigorous  imprisonment  for  one  month  each.  

The appeal carried by A1-Anil and A2-Ashok was dismissed  

by the High Court and, hence, this appeal is filed by them.   

4. Mr.  Nitin  Tambwekar,  counsel  for  the  appellants  

submitted that the prosecution case rests on the evidence of  

PW-3 Meena.  Counsel submitted that PW-3 Meena is not a  

reliable witness because she has improved her case in the  

court and tried to involve A3-Baba (since deceased) and A4-

Kishor, who has been acquitted by the trial court. Counsel  

pointed out that, in any event, in the cross-examination, she  

stated that A1-Anil, A2-Ashok and A3-Baba only dragged the  

deceased  out  and  A3-Baba  assaulted  him.   Counsel  

submitted that, therefore, A1-Anil and A2-Ashok cannot be  

convicted under Section 302 read with Section 34 of the IPC.  

It cannot be said that A1-Anil and A2-Ashok shared intention  

to  commit  murder  with  A3-Baba.   In  support  of  his  

submission, counsel relied on the judgment of this court in  

Narasappa v.   State  of  Karnataka1.   Mr.  Sachin  Patil,  1 (2007) 10 SCC 770

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counsel  for  the  State,  on  the  other  hand,  supported  the  

impugned judgment.  

5. From the evidence of Dr. Mun (PW-2), Medical Officer,  

attached to the General  Hospital,  Wardha,  who conducted  

post-mortem examination of the dead body of the deceased  

and the post-mortem notes, it is clear that the deceased was  

brutally murdered.  The question is whether A1-Anil and A2-

Ashok could be held responsible for the murder.

6. We have already reproduced the contents  of  the FIR  

lodged  by  PW-3  Meena.   It  is  now  necessary  to  see  her  

evidence.  In our opinion, the version of incident given by  

PW-3 Meena in the FIR materially differs from the one she  

has given in the court.  In her evidence in the court, in the  

examination-in-chief, PW-3 Meena stated that on the date of  

the incident, the deceased was in the house as he was not  

well; A1-Anil, A2-Ashok and A5-Shankar came to her house;  

they asked the deceased to accompany them for paan; they  

asked for money for liquor and when she told them that she  

did not have money, they pressurized her; she then sent one  

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boy to bring liquor from the neighbour; accordingly, the boy  

brought liquor; A1-Anil, A2-Ashok and A5-Shankar had liquor;  

they asked the deceased to have liquor but he stated that he  

was not well; at that time, other accused also came and all  

of  them took the  deceased to  the courtyard;  A1-Anil,  A2-

Ashok and A4-Kishor  started assaulting the deceased;  A1-

Anil  had  knife,  A2-Ashok  had  gupti  and  A5-Shankar  had  

knife; A6-Mayabai came and caught hold of the deceased;  

after assaulting the deceased, all  the accused went away.  

She then went to the police station and lodged the FIR.  It is  

pertinent to  note that  in  the FIR,  A4-Kishor’s  name is  not  

mentioned.  Cross-examination of PW3-Meena brings out a  

completely new story but before we go to cross-examination,  

it  is  necessary  to  notice  discrepancies  in  her  FIR  and  

examination-in-chief.  Whereas, in the FIR PW3-Meena stated  

that A1-Anil, A2-Ashok and A5-Shankar gave her money and  

asked  her  to  bring  liquor  and  she  sent  her  son  to  her  

neighbour’s house to bring liquor, in her evidence she stated  

that they asked for money for liquor and when she told them  

that  she  did  not  have  money,  they  pressurised  her  and  

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therefore, she sent a boy to bring liquor from her neighbour.  

She does not refer to her son.  Even if this discrepancy is  

overlooked  as  a  minor  discrepancy,  her  evidence  cannot  

pass the test of credibility because major improvements are  

made by her in her cross-examination to which we shall now  

turn.

7. In  her  cross-examination  PW3-Meena  stated  that  A1-

Anil and A2-Ashok and A3-Baba were sitting in her house for  

five minutes for having liquor.  PW3-Meena then changed her  

statement and stated that A3-Baba was not sitting there for  

having liquor but as soon as A1-Anil stood up A3-Baba came  

to the door.  She further stated that A1-Anil, A2-Ashok and  

A3-Baba only dragged the deceased and A3-Baba assaulted  

the deceased in the courtyard along with others.   Thus, here  

she excluded A1-Anil and A2-Ashok and stated that A3-Baba  

and others attacked the deceased.  Presence of A3-Baba and  

his assaulting the deceased is absent in the FIR and in the  

examination-in-chief.  This is a glaring event which should  

have  been  mentioned  by  her.   Unfortunately,  learned  

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Sessions  Judge  has  at  one  place  wrongly  observed in  his  

judgment that in the FIR names of A1-Anil, A2-Ashok and A3-

Baba have been mentioned as persons who had caused the  

death of the deceased.  At other place he has observed to  

the contrary.  This mistake is not noted by the High Court.  If  

PW-3 Meena had merely referred to A3-Baba in the cross-

examination, her non-mentioning his name in the FIR and in  

the  examination-in-chief  would  not  have  assumed  much  

significance.  But, she has refused to give any role to A1-Anil  

and A2-Ashok in the cross-examination in the actual assault  

on the deceased.  There is also no statement in the FIR that  

the  other  accused  assaulted  the  deceased.   Surprisingly,  

little later, this witness stated that it is not true that A3-Baba  

assaulted the deceased.  As already noted, she has given a  

specific role to A4-Kishor in the examination-in-chief that he  

assaulted the deceased.  But, his name is not there in the  

FIR. She stated that A1-Anil had a gupti.  Her story in the FIR  

and in examination-in-chief is that he had a knife.   

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8. In view of the above, in our opinion, the evidence of  

PW3-Meena  does  not  inspire  confidence.   It  is  unsafe  to  

make  allowance  for  the  discrepancies  and  improvements  

made by her in her evidence.  It is true that being wife of the  

deceased,  she  is  the  most  natural  witness.   But,  after  

reading her evidence, we feel that she has not come out with  

the whole truth.  We feel that the unvarnished truth is not  

placed before us either by the prosecution or by the defence.  

As earlier noted by us, in the FIR she has only referred to A1-

Anil, A2-Ashok and A5-Shankar.  In the examination-in-chief  

she has referred to these three persons and A4-Kishor.  In  

cross-examination her version has drastically changed.  At  

the cost of repetition it must be stated that she, for the first  

time,  referred  to  A3-Baba,  who was  murdered  during  the  

trial.   She stated that A1-Anil,  A2-Ashok and A3-Baba only  

brought  the  deceased  out  and  A3-Baba  assaulted  the  

deceased along with others.  Thus, so far as assault on the  

deceased  is  concerned,  in  the  cross-examination  she  

specifically  excluded  A1-Anil  and  A2-Ashok  and  pointed  a  

finger  at  A3-Baba  and  other  accused.   In  the  cross-

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examination, she does not state that A1-Anil and A2-Ashok  

assaulted the deceased.  

9. It  is  pertinent  to  note  that  learned  Sessions  Judge  

acquitted  the  accused  of  the  offence  punishable  under  

Sections 147 and 148 of the IPC and observed that as per  

the prosecution case there were only three persons at the  

spot that is A1-Anil, A2-Ashok and A5-Shankar.  He observed  

that the prosecution has failed to prove that all the accused  

were members of the unlawful assembly and in prosecution  

of  their  common  object  they  committed  murder  of  the  

deceased.   All  the  accused were  acquitted of  the offence  

under Section 302 read with Section 149 of the IPC.  As no  

overt act was attributed to A4-Kishor,  A5-Shankar and A6-

Mayabai,  he  acquitted  them  of  offence  punishable  under  

Section 302 read with Section 34 of the IPC.  The appellants  

A1-Anil  and  A2-Ashok  were   convicted  for  the  offence  

punishable  under  Section  302  of  the  IPC  with  the  aid  of  

Section 34 thereof.   Now, the question  is  whether  the  

version   given  by  PW3-Meena  in the  FIR  that  A1-Anil and  

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A2-Ashok  assaulted  the  deceased  is  to  be  accepted  or  

whether the version given by her in the examination-in-chief  

that A1-Anil, A2-Ashok, A4-Kishor and A5-Shankar assaulted  

the  deceased has  to  be  accepted or  whether  the  version  

given by her in the cross-examination that A1-Anil and A2-

Ashok only dragged the deceased out in the courtyard along  

with  A3-Baba  and  A3-Baba  assaulted  the  deceased  with  

others  is  to  be  accepted.   When  there  is  such  a  great  

variance  in  her  versions,  we  find  it  risky  to  convict  the  

accused on the basis of such evidence.   If her version in the  

FIR  and  examination-in-chief  is  to  be  accepted,  then  A5-

Shankar could have been convicted with the aid of Section  

34 of the IPC.  But, he has been acquitted.  If the version  

given  in  the  cross-examination  that  A1-Anil  and A2-Ashok  

only dragged the deceased out and A3-Baba assaulted the  

deceased is to be accepted, then, it is necessary to examine  

whether  they  shared  common  intention  with  A3-Baba  to  

commit murder of the deceased.  It is possible that they did  

share common intention with A3-Baba.  It is equally possible  

that they did not.  If A1-Anil and A2-Ashok merely dragged  

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the deceased and they had no intention to kill the deceased,  

they  may  be  guilty  of  a  lesser  offence.  It  appears  that  

unfortunately,  this  aspect  was  not  examined  properly  by  

learned Sessions Judge because during the pendency of the  

case, A3-Baba was murdered and could not be tried.  At this  

stage, in the absence of evidence, it is not possible for us to  

make out a new case.   The prosecution case is, therefore,  

not free from doubt.  Undoubtedly, the evidence on record  

creates a strong suspicion about involvement of A1-Anil and  

A2-Ashok, but, it is not sufficient to prove their involvement  

in the offence of murder beyond doubt.  It is well settled that  

suspicion, however strong, cannot take the place of proof.  

Clear and unimpeachable evidence is necessary to convict a  

person. We find that such evidence is absent in this case.  

The prosecution cannot rely on the evidence of discovery of  

weapons at the instance of A1-Anil  and A2-Ashok because  

the  panchas  have  turned  hostile.   In  order  to  have  the  

evidence  of  an  independent  witness  on  record,  the  

prosecution  examined  PW-7  Shashikala,  but,  she  turned  

hostile.  Similarly, another witness PW-4 Ramesh Kale also  

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turned  hostile.   Therefore,  there  is  no  other  evidence  on  

record which can support the prosecution case.  In any case,  

there is no question of seeking corroboration to the evidence  

of PW-3 Meena because her evidence itself does not inspire  

confidence.  It  must  be  remembered  that  on  the  same  

evidence, A4-Kishor, A5-Shankar and A6-Mayabai have been  

acquitted.  In the circumstances, we are of the opinion that  

benefit  of  doubt will  have to be given to A1-Anil  and A2-

Ashok.   

10. In  the  result,  the  appeal  is  allowed.   Impugned  

judgment  and  order  is  quashed  and  set  aside.   The  

appellants Anil  s/o.  Shamrao Sute and Ashok s/o.  Motiram  

Kudewal are in jail.  They are directed to be released from  

custody  forthwith  unless  they  are  required  in  some other  

case.  

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

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NEW DELHI, JANUARY 24, 2013.

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