Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 944

SUPREME COURT OF INDIA
B.R. GAVAI, PRASHANT KUMAR MISHRA, K.V. VISWANATHAN, JJ.
Vishwajeet Kerba Masalkar – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 213 of 2020
Decided On : 17-10-2024

Advocates appeared:
For the Appellant(s) : Ms. Payoshi Roy, Adv. Mr. K. Paari Vendhan, AOR Mr. Siddhartha, Adv. Mr. S. Prabu Ramasubramanian, Adv. Mr. Bharathimohan M., Adv. Mr. Santhosh K, Adv.
For the Respondent(s): Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv. Mr. Adarsh Dubey, Adv.

IMPORTANT POINTS
(1) Murder – Conviction could be based solely on the basis of evidence of a solitary witness, however, testimony of such a witness is required to be found to be credible and
Trustworthy.
(2) Accused cannot be convicted solely on the ground of suspicion, no matter how strong it is – Accused is presumed to be innocent unless proved guilty beyond reasonable doubt.

Headnote:
Indian Penal Code, 1860 – Sections 302, 307 and 201 [Bharatiya Nyaya Sanhita, 2023 – Sections 103(1), 109 and 238] – Triple murder, attempt to murder and disappearance of evidence – Death sentence – Conviction could be based solely on the basis of evidence of a solitary witness, however, testimony of such a witness is required to be found to be credible and Trustworthy – It is also necessary to examine testimony of such a witness critically – If testimony of solitary witness is discarded, then case would become one of circumstantial evidence – It is necessary for prosecution that circumstances from which conclusion of guilt is to be drawn should be fully established – Suspicion, however strong it may be, cannot take place of proof beyond reasonable doubt – Accused cannot be convicted solely on the ground of suspicion, no matter how strong it is – Accused is presumed to be innocent unless proved guilty beyond reasonable doubt – Hammer was recovered from a place which is open and accessible to one and all – Place where accused had taken police party to show where he had concealed incriminating article was already within knowledge of police – Recovery Panchanama does not show that clothes were sealed – As such, possibility of tampering cannot be ruled out – Impugned judgment and order of High Court as well as trial court are not sustainable in law – Judgment and order of conviction and sentence set aside. (Para 17, 19, 21, 22, 25, 26, 27 and 28)
Facts of the case:
Present appeal challenges the final judgment and order dated 23rd July 2019, passed by Division Bench of High Court of Judicature at Bombay in Confirmation Case No. 2 of 2016 filed by the State of Maharashtra, by which it upheld separate orders of conviction and sentence dated 26th August 2016 and 31st August 2016 passed by Additional Sessions Judge, Pune in Sessions Case No.64 of 2013, thereby convicting appellant for offences punishable under Sections 302, 307 and 201 of and sentencing him to death along with a fine of Rs. 5,000/- for offence punishable under Section 302 of IPC, rigorous imprisonment for ten years along with fine of Rs. 10,000/- for the offence punishable under Section 307 of IPC and rigorous imprisonment of three years along with a fine of Rs. 5,000/- for the offence punishable under Section 201 of IPC.
Findings of Court:
Judgment and order of High Court dated 23rd July 2019 in Confirmation Case No. 2 of 2016 and judgment and order of conviction and sentence dated 26th August 2016 and 31st August 2016 passed by trial court in Sessions Case No.64 of 2013 are quashed and set aside and appellant is directed to be set at liberty if not required in any other case.
Result : Appeal allowed.

JUDGMENT :

B.R. GAVAI, J.

1. The present appeal challenges the final judgment and order dated 23rd July 2019, passed by the Division Bench of the High Court of Judicature at Bombay in Confirmation Case No. 2 of 2016 filed by the State of Maharashtra, by which it upheld the separate orders of conviction and sentence dated 26th August 2016 and 31st August 2016 passed by the Additional Sessions Judge, Pune¹ [Hereinafter referred to as “the trial court”] in Sessions Case No. 64 of 2013, thereby convicting the appellant for the offences punishable under Sections 302, 307 and 201 of the Indian Penal Code, 1860² [Hereinafter referred to as “IPC”] and sentencing him to death along with a fine of Rs. 5,000/- for the offence punishable under Section 302 of IPC, rigorous imprisonment for ten years along with fine of Rs. 10,000/- for the offence punishable under Section 307 of IPC and rigorous imprisonment of three years along with a fine of Rs. 5,000/- for the offence punishable under Section 201 of IPC.

2. Shorn of details, the facts leading to the present appeal are as under:

2.2 Based on the complaint of the appellant, a First Information Report No. 196 of 2012 was registered for commission of an offence punishable under Sections 302 and 397 of the IPC against unknown persons. It was stated by the appellant in the complaint that one gold chain of 8 Tolas, one gold Mangalsutra, cash amount of Rs. 7,000/- 3 small rings and 2 almond shaped pendants having total value of Rs. 3,07,000/- were stolen. The three dead bodies were sent to the hospital for post-mortem and the neighbourer Madhusudan Kulkarni (PW-12) was also sent to the hospital for medical treatment. The panchnama of the place of the incident was recorded after Bajirao Dadoba Mohite ACP CID (PW-14) had visited the place of occurrence.

2.3 While recording the spot panchnama, it was observed by Bajirao Dadoba Mohite (PW-14) that there were no signs of forced entry on both the doors as well as the safety doors of the flat of the appellant. A gold Mangalsutra, 3 small gold rings, 2 gold almond shaped pendants and cash amount of Rs. 7,000/- in one red coloured money purse hidden behind a photo frame hanging on the wall of the flat were also found by Bajirao Dadoba Mohite (PW-14). Another ash-coloured money purse was found in the flat as well. At the place of the incident, near the main door of the flat of the appellant, few pieces of bangles that were stained with blood and one blood stained odhani were also found.

2.4 During investigation, it was revealed that appellant had a love affair with one Gauri Londhe (PW-2). It was stated by the appellant’s paramour Gauri Londhe (PW-2) that, when she came to know about the appellant’s marriage, she refused to marry him but the appellant was ready to leave his wife and daughter in order to marry her. It was also seen through the CCTV footage of the Saipras Society, which was adjoining the flat of the appellant, that at 03:22 PM, appellant’s mother (Shobha Masalkar) was seen going towards the flat and at 04:28 PM, the appellant was seen going out on his motorcycle. Based on these facts, the appellant was suspected to have committed the murders by the police and so he was arrested on 5th October 2012.

2.5 Post-Mortem of the three deceased persons was conducted. In the post-mortem, it was opined that the cause of death of the appellant’s daughter (Kimaya Masalkar) was asphyxia due to smothering, the cause of d