CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      1 REPORTABLE       

   IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.591 OF 2019 (Arising out of Special Leave Petition (Criminal) No.856 of 2018)

PAVAN VASUDEO SHARMA …Appellant

VERSUS

STATE OF MAHARASHTRA THROUGH SECRETARY         …Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal at the instance of original Accused No.1, challenges the

correctness of the judgment and order dated 24.03.2015 passed by the High

Court  of  Judicature at  Bombay dismissing his  Criminal  Appeal  No.700 of

2013.

3. According to the prosecution, Police Naik Nagare (later examined as

PW11 in the trial) was robbed of his pistol (service weapon) and walkie talkie

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      2 set by three persons on 20.12.2005 at about 9.00 pm.  Accordingly an FIR was

registered on 20.12.2005 in respect of said incident, which FIR in the present

proceedings was placed on record vide Exhibit 106.  The FIR did not name

any person but gave description of all the three persons.  The said case was

separately tried.

4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured

person was lying near a motorcycle on Mumbai-Pune highway.    Said PW1

went to the spot and took the injured to the hospital where he was declared

dead.  On the basis of motorcycle driving licence found in the trousers of the

deceased, he was identified as one Bhima Waghmare.  The family members

were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which

an  offence  was  registered  vide  C.R.No.5  of  2006.   The  investigation

commenced and body was sent for post-mortem.  PW3 Dr. Joshi conducted

the post-mortem and found the following external injuries:- “(1)      Fire  arm injury.   Right  side  inframammary

region,  13  cm  below  and  medial  to  left mammary gland.

 (2)   Burn injury due to firm arm on left thigh.  Two in number.  9 cm. below iliac left side admeasuring 2 ½ cm. x 1 cm.  Superficial to deep.  Dark black in colour with red center.

 (3)    Abrasion over 9 cm. below iliac region left side 8  cm  below  and  5  cm  posterior  to  anterior

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      3 superior  iliac  spine,  admeasuring  2  ½  cm  x superficial to deep.

 (4)    Abrasions on body as under:

(A)  Arm medial third anteriorly; (B)  Elbow posteriorly and  (C)  Wrist anteriorly: (D)   (a) Thigh middle third.          (b)Knee joint.”

Said  PW3  Dr.  Joshi  found  the  following  corresponding  internal

injuries:-

“Penetrating  wound  to  abdominal  wall,  peritoneum superior side of left lobe of liver, shattering part of it. Coming  out  at  inferior  side,  entering  into  pancreas, shattering out the pancreas, penetrating at two sites at mesentery  of  small  intestine.   Two  cm.  in  diameter each, going posterior medial to left kidney with large retro peritoneal and peritoneal region.  Fitting lumber spine no. 4 and 5 body with indentation and fracture at left  side  of  body  of  L  4  and  L 5.   Changing  the direction  hitting  illiacrest  at  left  Sacra  iliac  joint. Changing direction, getting embedded into para spinal muscles  and  fat  left  side,  directed  laterally  and superiorly.   Bullet  recovered  from  above  mentioned side.  Yellowish metal concavity at its base.”

5. It is the case of the prosecution that when Bhima Waghmare was shot,

the firm arm used in the transaction was the same service weapon which was

robbed from PW11 Police Naik Nagare.  Soon after the murder, two cell

phones belonging to Bhima Waghmare were also allegedly robbed, one of

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      4 them being a cell phone of Nokia Company with cell number 9850520922.

This mobile was later used in the case of kidnapping of a boy named Akash

Lokhande, who was kidnapped on 13.01.2006 and the calls for ransom were

stated to have been made from the very same cell phone to PW 12 Sanjay

Lokhande,  father  of  the  boy.   An FIR was registered  in  relation  to  said

kidnapping on 13.01.2006 and said case was also tried separately.

6. During the course of investigation of the kidnapping case, information

was received by the police that  said Akash Lokhande was confined in  a

building in Vimannagar, Pune.  Accordingly, a raid was arranged and when

the  police  entered  said  building,  they  found  Pavan  Vasudeo  Sharma

(Accused No.1), Pankaj Ramgopal Jagaria (Accused No.2), Vasudeo Sharma

and Rajendra Gaud to be present there.  Those persons were apprehended.   

During his personal search, a 9 mm pistol (service revolver) and two

live cartridges were recovered from Accused No.1.  Two cell phones were

also found from him.   In the search of Accused No.2, a chopper was found.

All those four persons came be to apprehended in kidnapping case.  The

recovered pistol was sent for forensic analysis.  The forensic analyst found

that the bullet which was recovered from the stomach of deceased Bhima

Waghmare,  was  fired  from the  same pistol.   The  live  cartridge that  was

recovered from Accused No.1 was test fired by the forensic analyst from the

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      5 same pistol and the features of the firing pin impression on the cartridge

tallied with those found from the bullet recovered from the body of deceased

Bhima Waghmare.

All the four apprehended persons were put up for identification by

PW11 Police Naik Nagare and according to the witness he could identify

Accused  Nos.1  and  2.   However,  no  documentation  as  regards  the  Test

Identification Parade was produced on record in the present trial.

7. After completion of investigation, Accused Nos.1 and 2 were tried for

having  committed  the  offences  including  the  murder  of  said  Bhima

Waghmare, punishable under Sections 302, 392 read with Section 34 of the

Indian  Penal  Code,  Section  37(1)  read with  Section  135 of  the  Bombay

Police Act and Section 3 (25) of the Indian Arms Act.

8. PW2 Seema widow of the deceased Bhima Waghmare stated in her

deposition that  her  husband was having two mobile  numbers and one of

them was 9850520922.   She  accepted  that  in  her  first  reporting she  had

expressed suspicion against some other persons including professional rivals

of  her  husband.  PW5  Sachin  Mahadev  Shinde,  Nodal  Officer  of  Idea

Cellular  Company  stated  that  mobile  phone  number  9850520922  was

subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods

Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station,

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      6 Pune-411019.  He also produced the record of calls details vide Exhibit 55

showing relevant pages of call details with regard to period January 2006

and February 2006 about user of the mobile.  PW6 Senior Police Inspector

Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter.

He did not depose about any Test Identification Parade nor did he produce

any record regarding identification of Accused Nos. 1 and 2 by PW11 Police

Naik Nagare.  PW12 Sanjay Lokhande, father of Akash Lokhande testified

that demands for ransom were made from him and the communication was

received from mobile number 9850520922.  During his testimony he also

mentioned  that  the  person  who  was  making  the  demand  had  casually

mentioned that they had killed a person at Karjat.

9. It  was  the  case  of  the  prosecution  that  the  pistol  seized  from the

Apellant-Accused No.1 was a service weapon which was entrusted to PW11

Police Naik Nagare, which weapon was snatched from him on 20.12.2005.

It was the same weapon which was found to be used in the commission of

offence of murder of Bhima Waghmare.  There was no direct evidence in the

form of  any  eyewitness  account  which  was  available  on  record  and  the

prosecution mainly relied upon certain circumstances in support of its case.

The  circumstantial  evidence  in  the  matter  was  based  mainly  on  two

features:-

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      7

a) Recovery of mobile phone which was allegedly used for making

demands of ransom; and b) Seizure of 9 mm pistol as aforesaid.

10. Apart from these two circumstances, reliance was also placed on the

alleged extra judicial confession made by those demanding ransom in their

telephonic conversation with PW12-Sanjay Lokhande.   Considering these

circumstances to be clinching and pointing towards nothing but the guilt of

the accused, the Additional Sessions Judge, Pune, vide his judgment dated

11.01.2011 convicted said Accused Nos. 1 and 2 for the offences punishable

under Sections 302, 392 read with Section 34 IPC, Section 37(1) read with

Section 135 of the Bombay Police Act and Section 3 (25) of the Indian Arms

Act and sentenced them to suffer life imprisonment under the first  count,

rigorous  imprisonment  for  two  years  under  the  second  count,  rigorous

imprisonment for 15 days  under the third count and rigorous imprisonment

for six months under the fourth count.  

11. Both the convicted accused challenged their conviction and sentence

by  preferring  two  appeals  being  Criminal  Appeal  No.700  of  2013  and

Criminal  Appeal  No.1056 of  2013.   As  regards  Accused No.1,  the  High

Court  found  that  the  prosecution  had  established  its  case  and  there  was

sufficient evidence to prove that he was involved in the crime relating to the

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      8 murder of Bhima Waghmare.  The High Court, however, found that there

was no material  to  connect  Accused No.2 with the crime and,  therefore,

acquitted him of the charges levelled against him under Sections 302, 392 of

IPC and under Section 3(25) of  the Indian Arms Act  but  maintained his

conviction and sentence insofar as offence under Section 37(1) read with

Section 135 of the Bombay Police Act was concerned.   

12. It is a matter of record that the acquittal of Accused No.2 has not been

challenged by the State and has attained finality.  

13. The facts narrated above bring out the following features:- a) Going 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 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  his

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      9 service  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.

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      10

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

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      11 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 Maharashtra1 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.

1 (1984) 4 SCC 116

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      12 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  Maharashtra2 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.”

2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018) Pavan Vasudeo Sharma  vs. State of Maharashtra through Secretary

                                      13 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.

18. We, therefore, give benefit of doubt to the Appellant.  This appeal is,

therefore,  allowed  and  the  Appellant  is  acquitted  of  the  charges  levelled

against him.  He be set at liberty forthwith unless his presence is required in

connection with any other offence.

..………….……………J.                                 (Uday Umesh Lalit)

..………….……………J.                                 (Indu Malhotra)

New Delhi, March 25, 2019.