REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 333-334 OF 2017  

SHAILENDRA RAJDEV PASVAN AND  OTHERS ….. APPELLANT(S)

VERSUS

STATE OF GUJARAT ETC. ….. RESPONDENT(S)

J U D G M E N T

KRISHNA MURARI, J.

These  appeals  arise  from  the  judgment  of  the  Division

Bench of the High Court of Gujarat dated 28th September 2016

convicting the appellants under Section 302 read with Sections

363, 364, 364-A and 365 and Section 120-B of the Indian Penal

Code, under Section 21 (1)(a) of the Arms Act and under Section

3 and 5 of  the Indian Explosive Act.  The Division Bench while

reversing  the  order  of  acquittal  passed  by  the  trial  court,  has

imposed following punishment upon the appellants:

Offence under  Section

Sentence Imposed Default Sentence

302 of IPC Life  Imprisonment  + Two  month’s  simple

Criminal Appeal Nos.333-334 of 2017 Page 1 of 16

Fine  of  Rs.  10,000/- each

imprisonment.

363 of IPC Seven  years’ rigorous imprisonment  +  Fine of Rs. 5,000/- each

One  month’s  simple imprisonment

364 of IPC Ten  years’  rigorous imprisonment  +  Fine of Rs. 5,000/- each

One  month’s  simple imprisonment

364-A of IPC Life  imprisonment  + Fine  of  Rs.  10,000/- each

One  month’s  simple imprisonment

365 of IPC Seven  years’ rigorous imprisonment  +  Fine of Rs. 5,000/- each

One  month’s  simple imprisonment

2. Briefly stated, the case of the prosecution is that on 5th February

2001, the complainant, Paramhansh Mangal Yadav (PW-1), had

informed the police at Kapodra Police Station that his youngest

son,  Arjun,  aged  about  9  years  who  was  studying  in  second

standard, was missing from 4th February 2001. On the fateful day,

the complainant, as per routine, had left for work at 8:00 am and

had returned at 2:00 pm for lunch, when he noticed that Arjun was

missing.  The complainant had searched for Arjun in the streets

and at the relatives’ residing nearby but he could not be located.

This information given by the complainant  was recorded by an

entry made in the police diary. Thereafter, formal complaint was

registered on 14th February 2001. In this complaint, Paramhansh

(PW-1) had pointed out that initially Shailendra Rajdev Pasvan,

Appellant/Accused No.1, had joined the search but thereafter he

had suddenly vanished. After about four days, the Appellant No.1

Criminal Appeal Nos.333-334 of 2017 Page 2 of 16

had made a call to the complainant and disclosed that he was in

Vapi. The complainant got suspicious and thereupon had sent his

brother-in-law Sadhusharan Harinandan Yadav (PW-9)  and  two

other relatives Sudarshan and Premchand Yadav to Vapi to bring

Appellant No. 1 back. Upon returning, Appellant No. 1 is alleged to

have made an extra-judicial confession before about 50 people

near Paramhansh’s (PW-1) house. Appellant No. 1 had confessed

that  he had kidnapped Arjun at  the behest  of  Ramkeval  Mutur

Yadav, Accused No. 5, who had animosity and grievance against

the complainant. Appellant No. 1 had made Arjun sit on his bicycle

and had taken him to the railway station, where he was handed

over to Ram Ashish and Shivnath, Appellant/Accused Nos. 2 and

3.  

3. Thereupon,  Shailendra,  Appellant  No.  1,  was  arrested  by  the

police on 14th February 2001.  

4. After  the alleged extra-judicial  confession,  the complainant  had

sent his brother-in-law, Sadhusharan (PW-9), again to Vapi along

with one Jugeswar to search for Appellant  Nos. 2 and 3. They

had  thereupon  met  Sanjay  at  Vapi  who  had  informed  that

Appellant  Nos.  2 and 3  were residing at  his  home.  Thereupon

Jugeswar  informed  the  complainant  who  in  turn  conveyed  this

Criminal Appeal Nos.333-334 of 2017 Page 3 of 16

information  to  police.  Appellant  Nos.  2  and  3  were  thereafter

arrested by the police from the house of Sanjay.

5. It is the case of the police that on 13th February 2001 a mutilated

decomposed dead body without one leg was found by Naginbhai

Kalyanji Patel (PW-15) and his son Sanjay Patel (PW-5) in their

agricultural  farm,  who  had  then  informed  the  police  station  at

Pandesara. The said dead body was sent for post mortem to the

New Civil Hospital in Surat and kept in the mortuary.

6. It is the case of the police that dead body was of Arjun and that

the  Appellant  No.  1  after  arrest  on  14th February  2001  had

disclosed and shown the place where Arjun was left with Appellant

Nos.  2  and  3  and  where  the  bicycle  used had  been  left.  The

Appellant  Nos.  2 and 3 had also agreed and shown the place

where Arjun was murdered and his dead body was disposed.

7. After  completing investigation charges were framed against  the

accused for offenses under Section 363, 364, 364-A, 365 and 302

read with Section 120-B of the IPC and under Section 21 (1) (a) of

the Arms Act and under Section 3 and 5 of Indian Explosive Act

and they were put to trial.

8. There is no eye witness of the incident and the entire case of the

prosecution rests on circumstantial evidence. The trial court vide Criminal Appeal Nos.333-334 of 2017 Page 4 of 16

judgment dated 17th January 2006 acquitted the accused from the

charges.  The  circumstances  which  weighed with  the  trial  court

were:

(I) The fact  that  the Appellant  No.1  and  the  deceased were

seen together  prior  to  death  was extremely  doubtful,  and

was not proved.

(II) No reliance could be placed on extra-judicial confession.

(III) Medical evidence adduced in the case was contradictory.

(IV) When the first Panchnama after recovery of the dead body

was drawn no  hair  or  bone was found at  the  site  of  the

occurrence but subsequently bunch of hair and bones were

discovered from the same site  on the pointing out  of  the

accused.

(V) No evidence has been adduced in respect of ownership of

bicycle on which the Appellant  No.1 was alleged to have

taken away the deceased, to establish that it  belonged to

him or it was borrowed by him from some person.

(VI) Demand  of  ransom  for  kidnapping  was  not  proved  by

evidence thus motive was not established.

(VII) These circumstances proved did not link together so as to

form complete chain leading to only one consequence i.e.

guilt of the accused.

Criminal Appeal Nos.333-334 of 2017 Page 5 of 16

9. Relying  broadly  on  the  testimonies  of  Kamlesh  Bhagvanbhai

Thakur  (PW-28)  and  Kashiben  Chhitubhai  Patel  (PW-29)  to

establish the last  seen theory and the extra-judicial  confession,

while cherry-picking the details of and papering the gaps in the

medical  evidence,  the  High  Court  set  aside  the  acquittal  and

convicted  the  appellants.  The  challenge  to  the  conviction,

consequently,  has been predicated on the tenability of  the said

evidence.   

10. At the outset, there are material contradictions in the testimonies

of Kamlesh  (PW-28)  and  Kashiben (PW-29).  Kamlesh  (PW-28)

has testified that he and Dhaval were playing in the society and

Arjun  was  riding  a  bicycle,  whereas  Kashiben  (PW-29)  has

deposed that Arjun was on the terrace of Paramhansh’s (PW-1)

house, around the same time. Further, Kashiben (PW-29) though

seated  near  the  door  has  not  deposed  as  to  the  presence  of

Kamlesh (PW-28) in the vicinity. More importantly in the context of

the Appellant No. 1 being last seen with Arjun, Kamlesh (PW-28)

deposed that Appellant No.1 had spoken to Arjun, while they were

heading towards the video game shop; Kashiben (PW-29), on the

other hand, has deposed that the Appellant No.1 had gone to the

terrace  of  Paramhansh’s  (PW-1)  house  where  Arjun  was  also

present  and  both  of  them  came  down.  The  story  about  the

Criminal Appeal Nos.333-334 of 2017 Page 6 of 16

abduction of Arjun projected by Kashiben (PW-29) is even more

debatable, if not clearly unacceptable as house of the complainant

– Paramhansh (PW-1) is located at some distance (five houses

apart) from the residence of Kashiben (PW-29). The evidence of

Kamlesh (PW-28) and Kashiben (PW-29) also becomes shaky as

both of them knew that Arjun was missing since 4th February 2001

but  did  not  inform  Paramhansh  (PW-1)  or  the  police  to  the

presence and conduct  of  the  Appellant  No.  1,  despite  residing

near  the residence of  the complainant  and being aware of  the

frantic search for Arjun post his disappearance. This renders their

testimony unreliable.  Thus,  the  theory  of  last  seen fails  and  is

rejected as a feeble and untrustworthy evidence.  

11. As noticed above, the dead body in a decomposed state with one

leg missing was found on 13th February 2001 in the agricultural

farm of Naginbhai Patel (PW-15) and Sanjay Patel (PW-5), which

is a day before the Appellant No.1 was arrested. The case set up

by  the  prosecution  is  that  the  dead  body  was  that  of  Arjun.

However,  the complainant  and father,  Paramhansh (PW-1)  has

not  testified  that  he had  identified  the dead body  found in  the

agricultural  farm  was  that  of  Arjun.  Paramhansh’s  (PW-1)

testimony  is  completely  silent  on  the  said  aspect.  Inspector

Munavarkhan (PW-24) has testified that Paramhansh (PW-1) had

Criminal Appeal Nos.333-334 of 2017 Page 7 of 16

identified the dead body but this would be of no consequence as

Paramhansh (PW-1) in his court testimony has not spoken about

any such identification. Munavarkhan (PW-24) has not referred to

any  identification  memo  prepared  by  him.  The  testimony  of

witness  to  the  panchnama on  recovery  of  the  dead body  vide

Ganeshbhai  (PW-17)  indicated that  the body had decayed and

had small maggots in it. Mansinghbhai Valvai (PW-20) who was

working as Investigation Officer at Pandesara Police Station has

testified that the naked body had blackened and was puffed up,

the external skin had decayed and the bone was visible from knee

to  paw of  the  right  leg.  Further  doubt  is  created  by  the  post-

mortem report prepared by Dr. Pravinbhai Kalidas Patel (PW-27)

marked “Ex-88” which records that rigor mortis and PM lividity had

passed off and the death had occurred 36-48 hours prior to the

post-mortem. Minimum age of the deceased was recorded around

16 years. Arjun on the other hand was 9 years of age. As per the

police version, bones of human body namely tibia and fibula were

found at the agricultural farm and sent for medical examination

which  was conducted  by  Dr.  Mohammad Kureshi  (PW-25).  Dr.

Mohammad Kureshi (PW-25) has stated that bones were in the

same stage of decomposition, however in his cross-examination,

he could not state the exact age though he was of the opinion that

the bones were of a person below 16 years. He also admitted that Criminal Appeal Nos.333-334 of 2017 Page 8 of 16

no  chromosome  opinion  of  the  bones  from  FSL  report  was

received and thus it could not be said whether bones were of a

male or female. Admittedly DNA test was also not conducted. In

this background,  the version of  the prosecution cannot sustain,

and recovery of the dead body of Arjun cannot be attributed to the

disclosure statements made by the appellants.

12. Thus the entire case of the prosecution is based on circumstantial  

evidence.  It  is  well  settled  that  in  a  case  which  rests  on   

circumstantial evidence, law postulates two fold requirements:-

(i)  Every link in the chain of the circumstances necessary to   

establish the guilt  of  the accused must be established by   

the prosecution beyond reasonable doubt.

(ii)  All  the  circumstances  must  be  consistent  pointing  only   

towards the guilt of the accused.

13. This court in the case of  Sharad Birdichand Sharda v/s State of   

Maharashtra1 has enunciated the aforesaid principle as under:-

“The  normal  principle  in  a  case  based  on circumstantial  evidence  is  that  the  circumstances from  which  an  inference  of  guilt  is  sought  to  be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that  the  circumstances  taken  cumulatively  should form a  chain  so  complete  that  there  is  no  escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other  than  that  of  the  guilt  of  the  Accused  and inconsistent with his innocence”.

______________

1(1984) 4 SCC 116

Criminal Appeal Nos.333-334 of 2017 Page 9 of 16

14. Another important aspect to be considered in a case resting  

on circumstantial evidence is the lapse of time between the  

point when the accused and deceased were seen together   

and when the deceased is found  dead.  It  ought to be so   

minimal so as to exclude the possibility of any intervening   

event involving the death at the hands of some other person.

In the case of Bodh Raj Alias Bodha v/s State of Jammu and  

Kashmir2, Rambraksh v/s State of Chhattisgarh3 , Anjan Kumar  

Sharma v/s State of Assam4 following principle of law, in this  

regard, has been enunciated:-

“The  last  seen  theory  comes  into  play  where  the time  gap  between  the  point  of  time  when  the Accused  and  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  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 Accused and deceased were last seen together, it  would be hazardous to come to a conclusion  of guilt in those cases”.

15. In the case at hand, evidence of PW-28 and PW-29, who were  

crucial to the case of prosecution to establish that deceased  

was last seen with Appellant Accused no.-1, is riddled with  

______________________

2 (2002) 8 SCC 45

3 (2016) 12 SCC 251

4 (2017) (6) SCALE 556

Criminal Appeal Nos.333-334 of 2017 Page 10 of 16

unexplained contradictions and  thus were rightly dis-believed by

the trial  court.   High Court committed  an error of law in placing

reliance upon the evidence of  the aforesaid two witnesses.   The

High Court also failed to take into account the time gap between

the point  when the Accused  Appellant  No.-1 and deceased were

seen together  and when the  death  is  alleged to  have occurred.

According to the prosecution evidence the two were seen together

on 04.02.2001 at about 10:30 a.m.  The dead body was recovered

on  13.02.2001.   Post-mortem  was  conducted  on  14.02.2001.

Although the possible time of death is not indicated in the post-

mortem report  but  the  Doctor  who carried  out  the  post-mortem

opined in the statement that  the time of death can be estimated to

be 36 to 48 hours before the post mortem.  This clearly goes to

show that there was a huge time gap between the point when the

accused and deceased were  last  seen together  and the  time of

death.  This crucial fact has been miserably over looked by the High

Court.  Apart from Extra-Judicial Confession by Appellant  Accused

No.-1   no  direct  evidence  was  adduced  by  the  prosecution  to

establish involvement of the accused in the alleged crime.  Entire

case of the prosecution was based on circumstantial evidence and

theory  of  last  seen  together.   The  extra-judicial  confession  of

Appellant  No.-1  before  the  complainant  and  other  relatives  and

recovery of the dead body were linked together by the prosecution

to form a chain.

Criminal Appeal Nos.333-334 of 2017 Page 11 of 16

16. It  is well  settled by now that in a case based on circumstantial   

evidence the Courts ought to have a conscientious approach and  

conviction ought to be recorded only in case all the links of the   

chain are complete pointing to the guilt of the accused.  Each link  

unless connected together to form a chain may suggest suspicion  

but the same in itself cannot take place of proof and will not be   

sufficient to convict the accused.

17. Having  gone  through  the  material  on  record  we  are  of  the

considered view that evidence adduced against the appellants do

not form the complete chain connecting them with the crime and

the prosecution has failed to prove the guilt beyond doubt.  

18. Lastly,  the  extra-judicial  confession  is  questionable.  In  the

complaint  filed by Paramhansh (PW-1)  he had alleged that  the

appellants had acted upon the behest of  Ramkeval but did not

allude,  as admitted in  his  cross-examination,  to any confession

being made by Appellant No. 1 about abducting Arjun and handing

him over to Appellant Nos. 2 and 3. That such a confession was

allegedly  made  emerged  during  the  examination  of  the

Paramhansh  (PW-1),  Sadhusharan  (PW-9) and  Hiralal  Yadav

(PW-22). Notwithstanding the fact that  Sadhusharan (PW-9), as

mentioned  earlier,  is  the  brother-in-law  of  the  complainant  –

Paramhansh (PW-1) and Hiralal (PW-22) a neighbour, there are

noticeable  contradictions  about  the  circumstances  in  which  the

confession  was  made,  viz.,  the  number  of  people  in  whose

Criminal Appeal Nos.333-334 of 2017 Page 12 of 16

presence it  was made,  degree of  coercion/fear/intimidation that

elicited the alleged confession, among others.

19. In  Sahadevan  v.  State  of  T.N.5 referring  to  the  aspect  of

evidentiary value of extra-judicial confession, it was observed:  

“14. It is a settled principle of criminal jurisprudence that extra-judicial  confession is a weak piece of  evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an  extra-judicial  confession,  it  must  ensure  that  the same inspires confidence and is corroborated by other prosecution  evidence.  If,  however,  the  extra-judicial confession  suffers  from  material  discrepancies  or inherent  improbabilities  and  does  not  appear  to  be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

Elaborating on the jurisprudence that has evolved with regard to

extra-judicial  confessions,  this Court  in  Sahadevan  (supra) had

stipulated the principles that are required to be kept in mind while

relying on extra-judicial confession as evidence. These principles

have been succinctly mentioned in Jagroop Singh v. State of

Punjab6 as:  

“30. Recently, in Sahadevan v. State of T.N., after referring to the rulings in Sk. Yusuf v. State of W.B. and Pancho v.  State of Haryana, a two-Judge Bench has laid down that  the extra-judicial confession is a weak evidence by itself   and it has to be State of Haryana, a two-Judge Bench  has

_________________

5 (2012) 6 SCC 403 6 (2012) 11 SCC 768

Criminal Appeal Nos.333-334 of 2017 Page 13 of 16

 laid  down  that  the  extra-judicial  confession  is  a  weak evidence by itself and it has to be examined by the court with  greater  care  and  caution;  that  it  should  be  made voluntarily  and should  be  truthful;  that  it  should  inspire confidence;  that  an  extra-judicial  confession  attains greater credibility and evidentiary value if it is supported by  a  chain  of  cogent  circumstances  and  is  further corroborated by other prosecution evidence;  that  for  an extra-judicial  confession to be the basis of conviction, it should  not  suffer  from  any  material  discrepancies  and inherent  improbabilities;  and  that  such  statement essentially  has to  be proved like any other  fact  and in accordance with law."

20. In  the  present  case,  there  are  no eye witnesses  to  affirm and

corroborate  the  fact  that  the  Appellant  No.  1,  as  allegedly

confessed, had taken Arjun on a bicycle and handed over the child

to Appellant Nos. 2 and 3. Further, the unfounded last seen theory,

contradicting medical evidence, and facts of the case, particularly

concerning the recovery of the body, belie the material details of

the alleged extra-judicial confession. Ergo, in the absence of any

credible corroboration of  both:  the actual  occurrence of  such a

confession  and  the  incriminating  facts  alleged  to  have  been

disclosed  in  the  confession,  this  Court  cannot  accept  that  the

conviction of the appellants can be sustained on the basis of such

a confession.

21. The trial court in our opinion had therefore rightly acquitted all the

accused  after  recording  cogent  reasons  and  good  grounds.

Criminal Appeal Nos.333-334 of 2017 Page 14 of 16

Ramkeval Mutur Yadav, Accused No. 5, was not convicted by the

appellate court. Ajay @ Pradip Hiralal Gupta, Appellant No. 4 who

has been convicted by the appellate court has not been assigned

any role in the entire incident. Needless to state, the High Court

should not  have interfered with the acquittals given by the trial

court, unless the acquittals were vitiated by manifest illegality or

such a conclusion “could not have been possibly arrived at by any

court acting reasonably and judiciously and is, therefore, liable to

be characterised as perverse”.7 This Court has time and again held

that where an appellate court is reversing a trial court’s order of

acquittal,  it  should  give proper  weight  and consideration to  the

presumption of  innocence in  favour  of  the accused, and to the

principle that such a presumption stands “reinforced, reaffirmed,

and  strengthened  by  the  trial  court”8. Given  the  inherent

inconsistencies and incongruities in the evidence in the present

case, the alleged actions of the appellants have not been proven

beyond reasonable doubt.  

22. In light of the aforesaid discussion, we allow the appeals and set

aside the conviction and sentences of the appellants in the  

__________________________________________

7 Tota Singh v. State of Punjab (1987) 2 SCC 529

8 Chandrappa v. State of Karnataka (2007) 4 SCC 415

Criminal Appeal Nos.333-334 of 2017 Page 15 of 16

charge-sheet arising from FIR No. 55/2001. The appellants are

accordingly directed to be released from custody, unless they are

required to be detained in any other case in accordance with law.  

     .................................J. (N.V. RAMANA)

.................................J. (SANJIV KHANNA)

...............................J. (KRISHNA MURARI)

NEW DELHI; DECEMBER 13, 2019.

Criminal Appeal Nos.333-334 of 2017 Page 16 of 16