# SHANKAR v. THE STATE OF MAHARASHTRA

- **Citation:** [2023] 2 S.C.R. 661
- **Court:** Supreme Court of India
- **Decided:** 2023-03-15
- **Case number:** Criminal Appeal No. 954 of 2011
- **Bench:** Ajay Rastogi, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-v-the-state-of-maharashtra-36862
- **Pages:** 21

## Headnote

Penal Code 1860: s. 302 r/w 34 - Conviction under, on basis
of circumstantial evidence - Sustainability of - Prosecution case
that the victim assaulted with sharp weapons, sustained 22 antemortem injuries leading to instantaneous death - On the fateful
day, the victim went to the house of PW 8, the accused persons also
came there and the appellant in the latter appeal hurled abuses on
the victim and asked him why he along with his friend had assaulted
his brother, though the victim denied the assault - Later, the accused
invited the victim for drinks and all of them left the house of PW 8
on motorcycles - An hour later, the dead body of the victim was
found by the complainant - There was no eye-witness - Based on
the circumstantial evidence, the trial court convicted the appellants
u/s. 302/34 and sentenced them to life imprisonment - High Court
upheld the same - On appeal, held: If doubt lingers with respect to
the probability or conclusiveness of any circumstance relied on by
the prosecution, forming a link in the chain of circumstances pointing
to the guilt of convict, despite the existence of concurrent findings,
the evidence has to be scrutinized by this Court so as to ensure that
the totality of the evidence and circumstances relied on, did constitute
a complete chain and it points to the guilt of the convict - On facts,
correctness of the last seen version emanating from PW-8 becomes
doubtful, especially against the appellants - Oral testimonies of
PW-8 and PW-10 are at variance about the last seen and it becomes
inconclusive - Prosecution failed to prove the alleged motive -
Though the victim met with a homicidal death, it cannot be said that
the rest of the circumstantial evidence culled out by the courts below
unerringly point to the culpability of the appellants in the homicidal
death of the deceased - Even the recovery of the weapon and the
dress, at the instance of the appellant not conclusive - Conviction
of the appellants cannot be maintained, thus, given benefit of doubt
and are acquitted - Evidence.
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Allowing the appeals, the Court
HELD: 1.1In view of the law relating circumstantial
evidence and the scope of interference in exercise of power under
Article 136 of the Constitution of India in respect of cases where
concurrent findings are recorded by the lower courts, if doubt
lingers with respect to the probability or conclusiveness of any
circumstance relied on by the prosecution, forming a link in the
chain of circumstances pointing to the guilt of convict, despite
the existence of concurrent findings, the evidence has to be
scrutinized by this Court so as to ensure that the totality of the
evidence and circumstances relied on, did constitute a complete
chain and it points to the guilt of the convict and it did not brook
any hypothesis other than the guilt of the convict. [Para 13][671B-C]
1.2 There can be no doubt with respect to the fact that in a
case where the conviction is based on circumstantial evidence,
motive assumes great significance. Just like complete absence
of motive failure to establish motive after attributing one, should
also give a different complexion in a case based on circumstantial
evidence and it will certainly enfeeble the case of prosecution.
[Para 18][674-A, C-D]
1.3 The prosecution alleged a motive. According to the
prosecution on 29.09.2001, the deceased along with his friend
assaulted the brother of appellant in the latter appeal (the first
accused in the Sessions Trial). It is also the case of the prosecution
that after the accused persons entered the house of PW-8, the
first accused/the appellant in the latter appeal hurled abuses on
the deceased and asked him why he along with his friend assaulted
his brother. It is also the case of the prosecution that though the
deceased denied any such occurrence, the said appellant
continued to say that the deceased had done dishonesty and
assaulted his brother. After alleging motiv

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[2023] 2 S.C.R. 661
661
SHANKAR
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 954 of 2011)
MARCH 15, 2023
[AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]
Penal Code 1860: s. 302 r/w 34 - Conviction under, on basis
of circumstantial evidence - Sustainability of - Prosecution case
that the victim assaulted with sharp weapons, sustained 22 antemortem injuries leading to instantaneous death - On the fateful
day, the victim went to the house of PW 8, the accused persons also
came there and the appellant in the latter appeal hurled abuses on
the victim and asked him why he along with his friend had assaulted
his brother, though the victim denied the assault - Later, the accused
invited the victim for drinks and all of them left the house of PW 8
on motorcycles - An hour later, the dead body of the victim was
found by the complainant - There was no eye-witness - Based on
the circumstantial evidence, the trial court convicted the appellants
u/s. 302/34 and sentenced them to life imprisonment - High Court
upheld the same - On appeal, held: If doubt lingers with respect to
the probability or conclusiveness of any circumstance relied on by
the prosecution, forming a link in the chain of circumstances pointing
to the guilt of convict, despite the existence of concurrent findings,
the evidence has to be scrutinized by this Court so as to ensure that
the totality of the evidence and circumstances relied on, did constitute
a complete chain and it points to the guilt of the convict - On facts,
correctness of the last seen version emanating from PW-8 becomes
doubtful, especially against the appellants - Oral testimonies of
PW-8 and PW-10 are at variance about the last seen and it becomes
inconclusive - Prosecution failed to prove the alleged motive -
Though the victim met with a homicidal death, it cannot be said that
the rest of the circumstantial evidence culled out by the courts below
unerringly point to the culpability of the appellants in the homicidal
death of the deceased - Even the recovery of the weapon and the
dress, at the instance of the appellant not conclusive - Conviction
of the appellants cannot be maintained, thus, given benefit of doubt
and are acquitted - Evidence.
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Allowing the appeals, the Court
HELD: 1.1In view of the law relating circumstantial
evidence and the scope of interference in exercise of power under
Article 136 of the Constitution of India in respect of cases where
concurrent findings are recorded by the lower courts, if doubt
lingers with respect to the probability or conclusiveness of any
circumstance relied on by the prosecution, forming a link in the
chain of circumstances pointing to the guilt of convict, despite
the existence of concurrent findings, the evidence has to be
scrutinized by this Court so as to ensure that the totality of the
evidence and circumstances relied on, did constitute a complete
chain and it points to the guilt of the convict and it did not brook
any hypothesis other than the guilt of the convict. [Para 13][671B-C]
1.2 There can be no doubt with respect to the fact that in a
case where the conviction is based on circumstantial evidence,
motive assumes great significance. Just like complete absence
of motive failure to establish motive after attributing one, should
also give a different complexion in a case based on circumstantial
evidence and it will certainly enfeeble the case of prosecution.
[Para 18][674-A, C-D]
1.3 The prosecution alleged a motive. According to the
prosecution on 29.09.2001, the deceased along with his friend
assaulted the brother of appellant in the latter appeal (the first
accused in the Sessions Trial). It is also the case of the prosecution
that after the accused persons entered the house of PW-8, the
first accused/the appellant in the latter appeal hurled abuses on
the deceased and asked him why he along with his friend assaulted
his brother. It is also the case of the prosecution that though the
deceased denied any such occurrence, the said appellant
continued to say that the deceased had done dishonesty and
assaulted his brother. After alleging motive the prosecution had
failed to establish the same. In this context, it is to be noted that
the trial court made a positive finding that the prosecution had
miserably failed to establish the alleged motive. Despite the said
finding of the trial court and despite that issue was pointedly raised
before the High Court, obviously the High Court in the impugned
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judgment did not consider the said aspect at all. This failure on
the part of the High Court is a ground specifically taken in this
appeal. The failure to establish the alleged motive in a case based
on circumstantial evidence, had weakened the case of the
prosecution. This aspect should have been given proper weight
by the courts below. [Para 21][675-G; 676-A-D]
1.4. When the factual position obtained from the oral
testimonies of PW-8 and PW-10, the High Court which observed
that the circumstance of 'last seen' is an important circumstance
in the case on hand and its proof would depend upon the quality
and nature of the testimonies of PW-8 and PW-10 should have
bestowed a threadbare, serious consideration to answer the
question whether the evidence of PW-10 would lend corroboration
to the evidence of PW-8. So also, the courts below in the overall
circumstances, ought to have carefully considered the question
whether the solitary oral evidence of PW-8 would conclusively
prove the factum of the deceased lastly seen in the company of
the deceased. On the careful scrutiny of the evidence of PW-8
and PW-10 it is held that both the trial court and the High Court
have failed to make a proper exercise of that task taking into
account the fact that the prosecution relies only on circumstantial
evidence to establish the guilt of the accused. Thus, virtually the
evidence of PW-10 not only failed to lend corroboration to the
evidence of PW-8 but also puts it under a shadow of doubt. Hence,
the High Court went wrong in holding that as relates the said
circumstantial evidence of 'last seen' the evidence of PW-8 gets
corroboration from the evidence of PW-10 and in that view of the
matter, in agreeing with the conclusion of the trial court that the
prosecution has succeeded in proving that the deceased was lastly
seen with the accused, conclusively. [Para 25][678-G-H; 679-AD]
1.5 It is unsafe to rest on the sole testimony of PW-8 to
apply the 'last seen theory' in this case against the appellants
especially, going by PW-8 he had only nodding acquaintance with
them. Thus, in a nutshell the correctness of the last seen version
emanating from PW-8 becomes doubtful, especially against the
appellants. The oral testimonies of PW-8 and PW-10 are at
SHANKAR v. THE STATE OF MAHARASHTRA
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variance about the last seen and it becomes inconclusive for the
reasons mentioned. The prosecution has miserably failed to prove
the alleged motive. In such circumstance, though the deceased
had met with a homicidal death it cannot be said that the rest of
the circumstantial evidence culled out by the courts below
unerringly point to the culpability of the appellants in the homicidal
death of the deceased. Even the recovery of the weapon and the
dress, at the instance of the appellant in the latter appeal cannot,
by itself, be conclusive as admittedly, the panch witnesses for
their recovery also did not support the prosecution. The
remaining circumstances relied on by the prosecution and held
as proved by the courts below would not unerringly point to the
guilt of the appellants. Thus, it is unsafe on the said circumstances
to maintain the conviction of the appellants; thus, the benefit of
doubt is extended to them. The appellants are acquitted. [Paras
28-30][680-F-H; 681-A-C]
Prakash v. State of Rajasthan (2013) 4 SCC 668 :
[2013] 2 SCR 458; Sharad Birdhichand Sarda v. State
of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
Anwar Ali & Anr. v. State of Himachal Pradesh (2020)
10 SCC 166:[2020] 9 SCR 878; Shivaji Chintappa Patil
v. State of Maharashtra (2021) 5 SCC 626; Sarbir Singh
v. State of Punjab 1993 SCC (Cri) 860; Brijlal Prasad
Sinha v. State of Bihar (1998) SCC (Cri) 1382; Tomaso
Bruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC
178 : [2015] 1 SCR 721; Nandu Singh v. State of
Madhya Pradesh (now Chhattisgarh) 2022 SCC
OnLine SC 1454 - referred to.
Case Law Reference
(1993) SCC (Cri) 860
referred to
Para 5
(1998) SCC (Cri) 1382
referred to
Para 7
[2013] 2 SCR 458
referred to
Para 8
[1985] 1 SCR 88
referred to
Para 8
[2015] 1 SCR 721
referred to
Para 11
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[2020] 9 SCR 878
referred to
Para 19
(2021) 5 SCC 626
referred to
Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
954 of 2011.
From the Judgment and Order dated 12.08.2009 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal
No. 7 of 2004.
With
Criminal appeal No. 955 of 2011.
Sanjay Jain, Sunil Kumer Verma, Advs. for the Appellant.
Sachin Patil, Siddharth Dharmadhikari, Geo Joseph, Risvi
Muhammed, Durgesh Gupta, Aaditya Aniruddha Pande, Advs. for the
Respondent.
The Judgment of the Court was delivered by
C. T. RAVIKUMAR, J.
1. The captioned appeals, by lifers, are directed against the selfsame judgment and order dated 12.08.2009 passed by the High Court
of Judicature at Bombay, Bench at Nagpur in Criminal Appeal No.7 of
2004. The former appeal was filed by the second and third appellants
therein who were accused Nos.2 and 3 in Sessions Trial No.80 of
2002 on the file of Additional Sessions Judge, Bhandara. The sole
appellant in the latter appeal was the first appellant in Criminal Appeal
No.7 of 2004 and he was the first accused in Sessions Trial No.80 of
2002. During the pendency of the trial, the fourth accused breathed
his last and the first appellant in the former appeal viz., Sri Hiralal died
during its pendency. Hence, qua him the former appeal stands abated.
As per the judgment of the Trial Court the appellants were convicted
under Sections 302 read with Section 34 of the Indian Penal Code,
1860 (hereinafter, 'the IPC') for having committed murder of one Rahul
Pundlik Meshram (hereafter referred to as 'the deceased'). They were
sentenced to suffer imprisonment for life besides imposing a fine of
Rs.500/- and in default of payment of fine they are to suffer rigorous
imprisonment for one month each. As per the impugned judgment the
conviction and sentences thus imposed by the Trial Court were
confirmed. Hence, these appeals.
SHANKAR v. THE STATE OF MAHARASHTRA
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2. The prosecution case, in nutshell, is as follows: -
 On 12.12.2001 at about 5.00 pm, the deceased along with a friend
went to Indira Gandhi Ward at Bandhara where the house of Chintaman
Giddu Gatey (PW-8) situates. After parking his Luna Moped the deceased
went inside of the house of Chintaman Giddu Gatey (PW-8), leaving his
friend near the vehicle. Deceased and Chintaman Giddu Gatey (PW-8)
smoked ganja and while so the deceased accused No.4 (Raju Pande),
Hiralal, the first appellant in the former appeal who is no more and accused
Nos.1 and 3, who are the surviving convicts (hereinafter referred to as
'the appellants'), came there on two motorcycles and they too, went
inside the house of Chintaman Giddu Gatey (PW-8). All of them smoked
ganja. While so, appellant in the latter appeal viz., accused No.1
questioned the deceased as to why he along with his friend Parag
Sukhdeve assaulted his brother. It is worthy to note at this juncture that
according to the prosecution, on 29.09.2001, the deceased along with his
friend Parag Sukhdeve assaulted the brother of the appellant in the latter
appeal. Though, the deceased denied assault on his brother, the appellant
in the latter appeal (the first accused) continued to say that the deceased
did dishonesty and assaulted his brother. Though, the friend of the
deceased who was waiting outside came inside and asked him to come
out the deceased remained there and thereupon his friend left the place.
Later, the first accused invited the deceased for drinks and all of them,
including the deceased, left the house of Chintaman Giddu Gatey (PW8) on two motorcycles by about 6 p.m. After about an hour, the dead
body of the deceased was found by one Manoj Goswami, a resident of
Paladi. The case is that upon being informed by the villagers, Manoj
Goswami (PW1) went to the spot and on finding the dead body he went
to Bhandara Police Station and lodged a report. As per the prosecution,
the deceased was taken by the accused on one of the motorcycles
through National Highway No.6 towards Lakhani town. To the north of
the said National Highway and at a distance of about 10 kilometers from
Bhandara there was another road leading to village Paladi and on the
side of the said Bhandara-Paladi road, at about by one kilometer from
National Highway No.6, they stopped their motorcycles and started
assaulting the deceased using sharp weapons. The deceased sustained
22 ante-mortem injuries, all over his body and met with instantaneous
death.
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3. Admittedly, there was no eye-witness in this case. Based on
the circumstantial evidence, the Trial Court found the appellants guilty
and convicted and sentenced them, as mentioned above. Aggrieved by
the conviction and consequent sentence, the surviving accused viz.,
accused Nos. 1 to 3 in the said Sessions Trial preferred appeal before
the High Court. After considering the circumstances relied on by the
Trial Court and despite its reservation against some of the procedures
followed the High Court confirmed the conviction and sentence imposed
on appellants by the Trial Court holding that certain proven circumstances
are material circumstances and would complete the requisite chain.
4. The appellants in the captioned appeals challenge the findings
of conviction and consequential imposition of sentence raising various
grounds. But, before considering the contentions against the concurrent
findings raised by the appellants, we find it only appropriate to refer to
the following decisions on the law relating circumstantial evidence.
5. In the decision in Sarbir Singh v. State of Punjab1, this Court
observed and held thus: -
"5. ...But in a case based on circumstantial evidence neither
the accused nor the manner of occurrence is known to the
persons connected with the victim. The first information report
is lodged only disclosing the offence, leaving to the
investigating agency to find out the offender.
6. It is said that men lie but circumstances do not. Under the
circumstances prevailing in the society today, it is not true in
many cases. Sometimes the circumstances which are sought
to be proved against the accused for purpose of establishing
the charge are planted by the elements hostile to the accused
who find out witnesses to fill up the gaps in the chain of
circumstances. In countries having sophisticated modes of
investigation, every trace left behind by the culprit can be
followed and pursued immediately. Unfortunately it is not
available in many parts of this country. That is why courts
have insisted (i) the circumstances from which the conclusion
of guilt is to be drawn should in the first instance be fully
established; (ii) all the facts so established should be
1 1993 SCC (Cri) 860
SHANKAR v. THE STATE OF MAHARASHTRA
[C. T. RAVIKUMAR, J.]
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consistent only with the hypothesis of the guilty of the accused
and should be such as to exclude every hypothesis but the
one sought to be proved; (iii) the circumstances should be of
a conclusive nature; and (iv) the chain of evidence should
not have any reasonable ground for a conclusion consistent
with the innocence of the accused.
6. Further it was held therein as under:-
7. ...It has been impressed that suspicion and conjecture
should not take the place of legal proof. It is true that the
chain of events proved by the prosecution must show that
within all human probability the offence has been committed
by the accused, but the court is expected to consider the total
cumulative effect of all the proved facts along with the motive
suggested by the prosecution which induced the accused to
follow a particular path. The existence of a motive is often an
enlightening factor in a process of presumptive reasoning in
cases depending on circumstantial evidence.
7. In Brijlal Prasad Sinha v. State of Bihar2, this Court held
thus:
"In a case of circumstantial evidence the prosecution is bound
to establish the circumstances from which the conclusion is
drawn must be fully proved; the circumstances should be
conclusive in nature; all the circumstances so established
should be consistent only with the hypothesis of guilt and
inconsistent with the innocence; and lastly the circumstances
should to a great certainty exclude the possibility of guilt of
any person other than the accused. The law relating to
circumstantial evidence no longer remains res integra and it
has been held by catena of decisions of this Court that the
circumstances proved should lead to no other inference except
that of the guilt of the accused so that, the accused can be
convicted of the offences charged. It may be stated as a rule
of caution that before the court records conviction on the
basis of circumstantial evidence, it must satisfy itself that the
circumstances from which inference of guilt could be drawn
have been established by unimpeachable evidence and the
2 (1998) SCC (Cri) 1382
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circumstances unerringly point to the guilt of the accused and
further, all the circumstances taken together are incapable of
any explanation on any reasonable hypothesis save the guilt
of the accused."
8. In the decision in Prakash v. State of Rajasthan3, this Court
took note of the following principles laid down regarding the law relating
circumstantial evidence in Sharad Birdhichand Sarda v. State of
Maharashtra4: -
"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] where the following observations were
made:
19. ..."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
3 (2013) 4 SCC 668
4 (1984) 4 SCC 116
SHANKAR v. THE STATE OF MAHARASHTRA
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(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."
9. After noting the above five golden principles, it was held in
Prakash's case (supra), that they would constitute the Panchsheel of
the proof of a case based on circumstantial evidence and conviction
could be sustained on the basis of last seen, motive and recovery of
incriminating articles in pursuance of the information given by the accused
if those five golden principles of the proof of a case based on circumstantial
evidence are satisfied.
10. Virtually, the law laid down relating circumstantial evidence in
those decisions are unfailingly followed by this Court while dealing with
the cases where conviction is rested on circumstantial evidence.
11. We are also fully aware of the position that normally in an
appeal by special leave under Article 136 of the Constitution of India
when concurrent findings of conviction and sentence are against the
appellants / convicts there would be no scope for interference except in
exceptional circumstances. In the decision in Tomaso Bruno & Anr. v.
State of Uttar Pradesh5, a Three Judge Bench of this Court held:-
"42. By and large, this Court will not interfere with the
concurrent findings recorded by the courts below. But where
the evidence has not been properly appreciated, material
aspects have been ignored and the findings are perverse
under Article 136 of the Constitution, this Court would
certainly interfere with the findings of the courts below though
concurrent. In a case based on circumstantial evidence,
circumstances from which inference of guilt is sought to be
drawn should be fully proved and such circumstances must
be of conclusive nature pointing to the guilt of accused. There
shall be no gap in such chain of circumstances...."
5 (2015)7 SCC 178
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12. Heard, Mr. Sanjay Jain and Mr. Sunil Kumar Verma, learned
counsel for the appellant and Mr. Sachin Patil, learned counsel for the
respondent-State.
13. In view of the law relating circumstantial evidence exposited
under the decisions referred hereinbefore and the scope of interference
in exercise of power under Article 136 of the Constitution of India in
respect of cases where concurrent findings are recorded by the Lower
Courts, we are of the considered view if doubt lingers with respect to
the probability or conclusiveness of any circumstance relied on by the
prosecution, forming a link in the chain of circumstances pointing to the
guilt of convict, despite the existence of concurrent findings, the evidence
has to be scrutinized by this Court so as to ensure that the totality of the
evidence and circumstances relied on, did constitute a complete chain
and it points to the guilt of the convict and it did not brook any hypothesis
other than the guilt of the convict. Upon hearing the learned counsel on
both sides and on careful consideration of the evidence and materials on
record, we are of the considered view that the case at hand is a befitting
case where such an exercise is required. Before we undertake such an
exercise, it is only proper to look into the questions whether the death of
Rahul Pundlik Meshram is homicidal in nature. As a matter of fact,
there is not much dispute on this aspect.
14. The evidence of PW-13 with Exhibit-54 postmortem report
made the Courts below to concurrently come to the conclusion that death
of Rahul Pundlik Meshram is homicidal in nature. The postmortem report
would reveal the presence of 22 ante-mortem injuries on the body of the
deceased. It would also reveal that out of the 22 ante-mortem injuries,
except 7 of these are incised wounds. The said 7 injuries are serious
stab injuries inflicted on different parts of the body. It is taking into account
the nature of all those injuries that PW-13 opined that the cause of death
of deceased was due to multiple injuries on the chest and back involving
the vital organs such as heart and lungs. We have absolutely no hesitation
to hold in the said circumstances that the Courts below have rightly
arrived at the conclusion, in the light of the evidence that death of Rahul
Pundlik Meshram is homicidal in nature.
15. Admittedly, the conviction of the appellants is rested on
circumstantial evidence only. As per the Trial Court, the following
circumstances were relied upon by the prosecution to establish the guilt
of the accused, including the appellants, before it: -
SHANKAR v. THE STATE OF MAHARASHTRA
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"1. Visit of the deceased Rahul Meshram to the house of
Chintaman Gatey (P.W.8).
2.
While the deceased was at the house of Chintaman, the
accused nos. 1 to 3 and deceased accused Raju Pande
arrived at the house of Chintaman Gatey.
3.
The motive altercation had taken place between the
accused on one side and the deceased on the other side.
4.
That, the accused persons, under the pretext of
consuming liquor persuaded the deceased to
accompany them.
5.
That, the deceased and the accused nos. 1 to 3 and
deceased accused Raju Pande, left the house of
Chintaman Gatey, on two motor-cycles.
6.
That, immediately, there after i.e. after the deceased left
the house of Chintaman Gatey with accused persons,
he was found met with homicidal death.
7.
Recovery of the weapon from the accused No.1 with
the blood stains of Group 'A' which was of the deceased.
8.
The Opinion of the Dr. Sau. Manjusha Rangari that by
the said weapon, the injuries which were found on the
dead body of the deceased, could be caused.
9.
The discovery of the fact of burning clothes stained
with blood by the accused No. 1 and those clothes were
belonged to accused nos. 1 and 2.
10.
The full pant belonged to accused No.1 was stained
with blood, of blood group "A" which was of the
deceased."
16. After considering the said relied on circumstances, the Trial
Court held that the prosecution had succeeded in establishing eight
circumstances, as under: -
"1. The visit of deceased Rahul Meshram at the house of
Chintaman Gatey.
2.
Arrival of the accused No. 1 to 3, alongwith the
deceased accused, at the house of Chintman Gatey.
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3.
That, the accused No.1 to 3 and deceased accused
succeeded in persuading the deceased to join them for
consuming liquor.
4.
That, the accused No.1 to 3, deceased accused Raju
Pande, and deceased Rahul Meshram left the house of
Chintaman Gatey, on two motor cycles.
5.
That immediately after the deceased and the accused
persons left the house of Chintaman Gatey, the
deceased was found murdered.
6.
At the instance of the accused No.1 weapon having
handle at one end and the other end sharp and edged
one, was recovered, which was found stained with blood,
of Group "A" which was of the deceased.
7.
Doctor opined that by the said weapon, the injuries
could be caused, which were found on the dead-body
of the deceased.
8.
The accused No.1 burnt the clothes at place near the
water tank in M.S.E.B, Colony, Bhandara."
17. Consequently, the Trial Court considered the question whether
the culled-out circumstances would form a complete chain unerringly
pointing to the guilt of the accused and that accused alone and obviously,
the conviction was entered into upon answering that question in the
affirmative. According to the Trial Court, the following three proven
circumstances are sufficient to constitute circumstantial evidence
unerringly connecting the accused with the homicidal death: -
"1.
That, while the deceased was at the house of Chintaman
Gatey, deceased accused Raju Pande along with the
accused Nos.1 to 3. came to the house of Chintaman
Gatey and succeeded in persuading the deceased to
accompany them, for consuming liquor.
2.
 That the deceased in the company of the accused Nos.1
to 3 and deceased accused Raju left the house of
Chintaman Gatey, on two moto cycles.
3.
That, soon thereafter, the deceased was found
murdered."
SHANKAR v. THE STATE OF MAHARASHTRA
[C. T. RAVIKUMAR, J.]
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18. There can be no doubt with respect to the fact that in a case
where the conviction is based on circumstantial evidence, motive assumes
great significance. A Three Judge Bench of this Court in Nandu Singh
v. State of Madhya Pradesh (now Chhattisgarh)6 by its judgment
dated 25.02.2022, after observing thus, held as under:-
"It is not as if motive alone becomes the crucial link in the
case to be established by the prosecution and in its absence
the case of prosecution must be discarded. But, at the same
time, complete absence of motive assumes a different
complexion and such absence definitely weighs in favour of
the accused."
We may add here that just like complete absence of motive failure
to establish motive after attributing one, should also give a different
complexion in a case based on circumstantial evidence and it will certainly
enfeeble the case of prosecution.
19. In the decision in Nandu Singh's case an earlier decision of
this Court in Anwar Ali & Anr. v. State of Himachal Pradesh7, was
quoted with agreement, thus: -
"24. Now so far as the submission on behalf of the accused
that in the present case the prosecution has failed to establish
and prove the motive and therefore the accused deserves
acquittal is concerned, it is true that the absence of proving
the motive cannot be a ground to reject the prosecution case.
It is also true and as held by this Court in Suresh Chandra
Bahri v. State of Bihar (1995 Supp (1) SCC 80) that if motive
is proved that would supply a link in the chain of
circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. However, at the same
time, as observed by this Court in Babu (Babu v. State of
Kerala, (2010) 9 SCC 189), absence of motive in a case
depending on circumstantial evidence is a factor that weighs
in favour of the accused. In paras 25 and 26, it is observed
and held as under: (Babu case, SCC pp. 200-01).
"25. In State of U.P. v. Kishanpal (2008) 16 SCC 73),
this Court examined the importance of motive in cases of
6 2022 SCC OnLine SC 1454
7 (2020) 10 SCC 166
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circumstantial evidence and observed: (SCC pp. 87-88,
paras 38-39)
'38. ... the motive is a thing which is primarily known to
the accused themselves and it is not possible for the
prosecution to explain what actually promoted or excited
them to commit the particular crime.
39. The motive may be considered as a circumstance which
is relevant for assessing the evidence but if the evidence is
clear and unambiguous and the circumstances prove the
guilt of the accused, the same is not weakened even if the
motive is not a very strong one. It is also settled law that
the motive loses all its importance in a case where direct
evidence of eyewitnesses is available, because even if there
may be a very strong motive for the accused persons to
commit a particular crime, they cannot be convicted if the
evidence of eyewitnesses is not convincing. In the same
way, even if there may not be an apparent motive but if the
evidence of the eyewitnesses is clear and reliable, the
absence or inadequacy of motive cannot stand in the way
of conviction.'
26. This Court has also held that the absence of motive in a
case depending on circumstantial evidence is a factor that
weighs in favour of the accused. (Vide Pannayar v. State of
T.N. (2009) 9 SCC 152)".
20. In the decision in Shivaji Chintappa Patil v. State of
Maharashtra8, after referring to the decision in Anwar Ali's case
(supra), this Court observed thus: -
"27. Though in a case of direct evidence, motive would not
be relevant, in a case of circumstantial evidence, motive plays
an important link to complete the chain of circumstances."
21. In the case on hand, the prosecution alleged a motive. According
to the prosecution on 29.09.2001, the deceased along with his friend
Parag Sukhdeve assaulted the brother of appellant in the latter appeal
(the first accused in the Sessions Trial). It is also the case of the
prosecution that after the accused persons entered the house of PW-8,
8 (2021) 5 SCC 626
SHANKAR v. THE STATE OF MAHARASHTRA
[C. T. RAVIKUMAR, J.]
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[2023] 2 S.C.R.
Chintaman Giddu Gatey the first accused/the appellant in the latter appeal
hurled abuses on the deceased and asked him why he along with his
friend Parag Sukhdeve assaulted his brother. It is also the case of the
prosecution that though the deceased denied any such occurrence, the
said appellant continued to say that the deceased had done dishonesty
and assaulted his brother. After alleging motive as above, prosecution
had failed to establish the same. In this context, it is to be noted that the
Trial Court made a positive finding that the prosecution had miserably
failed to establish the alleged motive. Despite the said finding of the Trial
Court and despite that issue was pointedly raised before the High Court,
obviously the High Court in the impugned judgment did not consider the
said aspect at all. This failure on the part of the High Court is a ground
specifically taken in this appeal. In the light of the decision in Anwar
Ali's case (supra) and Shivaji Chintappa Patil's case(supra), and also
based on what we held in respect of the impact of failure to establish the
alleged motive in a case based on circumstantial evidence it can only be
held that the said failure had weakened the case of the prosecution. This
aspect should have been given proper weight by the courts below.
22. Now, we will proceed to consider the other circumstance(s)
relied on and whether they would make a complete chain of
circumstances and dispel the hypothesis of the innocence of the appellant.
In that context, it is only appropriate to refer to the circumstance mainly,
relied on and held as proved by the High Court for confirming the
conviction of the appellants viz., that the deceased was 'lastly seen' in
the company of the appellants just prior to the finding of his dead body.
Having observed thus, the High Court held that the proof thereof would
depend upon the quality and nature of the testimonies of Chintaman
(PW-8) and Dhanraj (PW-10).
23. Paragraph 14 of the impugned judgment would reveal that
after referring to evidence based on 'last seen theory', recovery of
weapons and seizure of clothes the High Court observed that the
following twin material circumstances would complete the requisite
chain, namely: -
"(a) On the day of incident, at about 4.00 p.m., deceased
Rahul and all the appellants were present at the house of
Chintaman (PW-8).
(b) Deceased Rahul left the house of Chintaman at about 5.00
p.m., on the day of incident along with the appellants and
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within two hours, the dead body of Rahul with multiple incise
and stab wounds was found lying by the side of the road, 10
kms. away from Bhandara city. There is nothing on record to
show that deceased Rahul had enmity with anybody other
than the appellants and in absence thereof, the possibility of
somebody else committed assault on the deceased and would
have caused so many multiple injuries is completely ruled
out."
24. With respect to the material circumstance referred to as (a) in
the impugned judgment, as extracted above, what is stated by the High
Court is totally against the weight of evidence. The evidence of PW-8
when juxtaposed to that of PW-10 would reveal the said position. It is
stated therein that on the day of incident, at about 04.00 pm, the deceased
Rahul Pundlik Meshram and all the appellants were present at the house
of Chintaman (PW-8). In a case rested on circumstantial evidence and
'last seen' theory is relied on as a link in the chain of circumstances, the
evidence relating the time at which the deceased was lastly seen with
the accused has to be proved conclusively as when it is proximate with
the time of finding the dead body the burden to establish the innocence
would be that of the accused. Indisputably, in contrast to the aforesaid
statement therein what is deposed by Chintaman (PW-8) is that on the
day of the incident at about 05.00 pm, the deceased came to his house
and then asked for a glass of water and thereafter, Raju Pande (the
deceased accused No.4) along with three other persons with respect to
whom he got only nodding acquaintance, came to the house. He would
also depose that thereafter Raju Pande started hurling abuses on the
deceased. Both the Trial Court and the High Court noted the case of the
prosecution that Raju Pande hurled abuses on the deceased for having
assaulted the brother of accused No. 1, along with his friend Sri Parag
Sukhdeve. However, a scanning of the oral testimony of PW-8 would
show that he did not depose that Raju Pande hurled abuses on the
deceased on the ground of assault on the brother of accused No. 1.
Naturally, he did not mention the name Parag Sukhdeve as well. So also,
it would go to show that he had stoutly denied involvement in the sale of
ganja, or availability of ganja in his house. According to him Raju Pande
and accused No. 1 alone had come to the chappari of his house and the
remaining two accused were standing in the courtyard of his house.
That apart, as per PW-8 it was about 06:00 PM that accused Raju Pande
and the deceased left his house. Thus, it is obvious that the statement in
SHANKAR v. THE STATE OF MAHARASHTRA
[C. T. RAVIKUMAR, J.]
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[2023] 2 S.C.R.
the material circumstance mentioned as 'a' in paragraph 14 of the
impugned judgment is based on the oral testimony of Dhanraj (PW-10).
It is true that PW-10, deposed that at about 04.00 pm he was returning
home from S.T. Stand and then he found two motorcycles parked at the
house of Chintaman (PW-8), that at the house of Chintaman, 4 to 5
persons were then sitting and at that time accused Nos. 2 and 3 viz.,
deceased first appellant and the surviving appellant in the former appeal,
whom he knew by face and one Pande were present. It is pertinent to
note that PW-10 did not depose about the presence of the deceased in
the house of Chintaman when himself, Pande and the other accused
persons were there in the said house. Naturally, in his oral testimony he
had not deposed anything about the hurling of abuses by Pande on the
deceased. Another aspect of his oral testimony is that he deposed about
the query made by Pande about the identity of a pregnant girl who resides
behind the house of Chintaman. According to him, Chintaman told Pande
that he did not know anything about that girl and then Pande asked him
about her. On being told that he did not know anything about her, Pande
asked him to leave that place, going by the deposition of PW-10. At this
juncture, it is to be noted that PW-10 did not make any mention about
this aspect in his evidence. It is true that the Trial Court found that this is
an improved version by PW-10. Anyway, the fact revealed from the oral
testimony of PW-10 is that he saw the accused persons, including Raju
Pande and the appellants herein, at the house of Chintaman (PW-08)
immediately after 04:00 PM on the day of occurrence and he did not
speak about the presence of the deceased in the house of PW-8. That
apart, according to him, Raju Pande was enquiring with him and PW-8
about a pregnant girl who was residing behind the house of PW-8. It is
also relevant to note that the evidence on record would further go to
show that PW-8 had not mentioned about the alleged hurling of abuses
by deceased accused Raju Pande on the deceased in his statement under
Section 161 of Cr.P.C. Above all, PW-8 did not mention the presence of
PW-10 at his residence anytime during the period from 04:00 PM to
06:00 PM on that fateful day.
25.