1. Murder by firearm — Robbery of service weapon — Recovery of weapon and mobile phone — Charges under Sections 302, 392 IPC, Arms Act, and Bombay Police Act. (Para 3 , 4 , 5 , 6 , 7 )
Back
Next 
2019 Supreme(SC) 354
SUPREME COURT OF INDIA
Uday Umesh Lalit, Indu Malhotra, JJ.
PAVAN VASUDEO SHARMA – Appellant
VERSUS
STATE OF MAHARASHTRA THROUGH SECRETARY – Respondent
CRIMINAL APPEAL NO. 519 OF 2019 (Arising out of Special Leave Petition (Criminal) No.856 of 2018)
Decided On : 25-03-2019
Important Points
IMPORTANT POINT
For conviction on the basis of circumstantial evidence, the circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence.
For conviction on the basis of circumstantial evidence, the circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence.
Subject
Criminal Law - Murder
Act Referred
Headnote
Criminal trial – Circumstantial evidence – Prosecution relying on two circumstances – Firs circumstance not proved at all – Second circumstance not sufficiently established – benefit of doubt given to accused. (Para 15, 18)
(1984) 4 SCC 116 – Relied upon
Facts of the case:
Trial court convicted 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.
The High Court affirmed the conviction of Accused no.1 but acquitted Accused no. 2 of the charges except u/s 37(1) read with Section 135 of the Bombay Police Act. There is no appeal against the acquittal.
Finding of the Court:
Accused is entitled to benefit of doubt.
Result: Appeal allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates Appeared:
For Petitioner(s): Mr. Ravi Prakash Mehrotra, AOR Mr. Ankit Agarwal, Adv. Ms. Deepti R. Mehrotra, Adv.
For Respondent(s): Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Anoop Kandari, Adv.
For Petitioner(s): Mr. Ravi Prakash Mehrotra, AOR Mr. Ankit Agarwal, Adv. Ms. Deepti R. Mehrotra, Adv.
For Respondent(s): Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Anoop Kandari, Adv.
Table of Contents
2. Prosecution relied on circumstantial evidence including weapon recovery and mobile phone usage; Appellant challenged the correctness of the conviction and sentence. (Para 2 , 9 )
3. Discrepancies in mobile subscription, absence of Test Identification Parade, and failure to establish a complete chain of circumstantial evidence creating reasonable doubt. (Para 13 , 15 , 17 )
4. Conviction based on circumstantial evidence requires a complete chain of established facts that excludes every possible hypothesis except the guilt of the accused. (Para 16 )
5. Appeal allowed — Appellant acquitted of all charges and set at liberty. (Para 18 )
6. What are the essential requirements for a conviction based on circumstantial evidence?
The circumstances must be fully established, consistent only with the hypothesis of guilt, conclusive in nature, exclude every other possible hypothesis, and form a complete chain of evidence leaving no reasonable ground for the conclusion consistent with the innocence of the accused. (Para 16 )
7. How does the absence of a Test Identification Parade (TIP) impact a case relying on circumstantial evidence?
The absence of a TIP or its record can create a missing link in the chain of evidence, particularly when the prosecution seeks to link the accused to a crime through the recovery of a stolen weapon. (Para 6 , 13 , 15 )
8. What is the legal effect of contradictory evidence regarding the ownership of a key piece of evidence?
When the prosecution's own evidence contradicts the claim of ownership or subscription of a key piece of evidence, the connection linking the accused to the crime on that specific front is considered missing. (Para 8 , 13 , 15 )
JUDGMENT
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 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 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 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 rec
