Khashaba Maruti Shelke Vs. State of
Maharashtra  INSC 122 (23 July 1973)
KHANNA, HANS RAJ KHANNA, HANS RAJ REDDY, P.
CITATION: 1973 AIR 2474 1974 SCR (1) 266 1973
SCC (2) 449
Indian Penal Code--S.302 read with ss. 307
333 and 332 and ss.3,4(b) 5 of the Explosive Substances Act, and ss. 25, 27 of
the Arms Act-Conviction on circumstantial evidence-When conclusive.
The appellant was convicted by the Sessions
Judge for offences under s. 302 I.P.C. on two counts for causing the death of a
Head Constable and another and sentenced to death on each count. The appellant
was further convicted under s.
307 I.P.C. for attempt to murder a P.S.I. and
was sentenced to undergo rigorous imprisonment for a period of 7 years.
He was also convicted under ss. 333, 332
I.P.C. and ss. 25 and 27 of the Arms Act and ss. 3, 4 (b) and 5 of the
Explosive Substances Act and separate sentences were passed, On appeal and
reference to the High Court, the judgment of the learned Sessions Judge was
affirmed. The High, Court maintained the conviction of the appellant relying
upon circumstantial evidence.
The appellant came before this Court by
The prosecution case was that a hand-grenade
was exploded in the house of one A when the police party headed by a SubInspector
arrived there with a view to apprehend the appellant and as a result of the
explosion two persons, including a Head Constable, received fatal injuries and
other police officials received serious injuries. The question was whether the
appellant possessed the handgrenade in question and exploded the same. as a
result of which, injuries were caused to the two deceased persons and the
different police officials.
Allowing the appeal,
HELD : (i) The case against the appellant had
not been proved by the prosecution beyond all reasonable doubt and the
conviction of the accused, therefore, must be set aside.
(ii) There is no direct evidence as to the
fact that the appellant was seen carrying a hand-grenade or that he exploded
the hand-grenade. The circumstances relied upon by the High Court in convicting
the appellant do not singly or cumulatively show that it was the appellant who
exploded the hand grenade. From the evidence, there is nothing to rule out the
possibility of the hand-grenade having been exploded not by the appellant but
by one of his companions. There is no direct evidence as to who exploded the
(iii) Further, in the F.I.R. there was no
mention of a hand-grenade. All that was mentioned in the said report was that
there was firing from inside; but the medical evidence revealed that there was
no bullet injury on any of the injured persons.
(iv) In order to base the conviction of an
accused on circumstantial evidence, the Court must be certain that the
circumstantial evidence is of such a character as is consistent only with the
guilt of the accused. The circumstances must show that within all reasonable
probability, the impugned act must have been done by the accused. If two
inferences are possible from the circumstantial evidence-The pointing to the
guilt of the accused and the other, also plausible, that the commission of the
crime was the act of someone else-the circumstantial evidence would not warrant
the conviction of the accused. [273D] 267
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 223 of 1972.
Appeal by special leave from the judgment and
order dated February 10 & 11, 1972 of the Bombay High Court at Bombay in
Cr. A. No. 1416 of 1971.
M. L. Srivastava, for the appellant.
H. R. Khanna and S. P. Nayar, for the
The Judgment of the Court was delivered by
KHANNA, J.-Khashaba Maruti Shelke (33) along with eight others was tried in the
court of Sessions Judge Sangli for offences under section 302/34, 307/34,
324/34 and 333/34 Indian Penal Code, section 25 of Arms Act read with section
34 Indian Penal Code, section 27 Arms Act read with section 34 Indian Penal
Code, section 3 Explosive Substances Act read with section 34 Indian Penal
Code, section 4 Explosive Substances Act read with section 34 Indian Penal
Code, section 5 Explosive Substances Act read with section 34 Indian Penal Code
and section 6 Explosive, Substances Act read with section 34 Indian Penal Code.
In the alternative, there were charges against the accused for the above
offences read with section 149 Indian Penal Code. Learned Sessions Judge
acquitted the other eight accused and convicted the appellant for offences
under section 3102 Indian Penal Code on two counts for causing the death of
Head Constable Yesade (45) and Smt. Balkabai (70) and sentenced him to death on
each count. The appellant was further convicted under section 307 Indian Penal
Code for attempt to murder PSI Mardur and was sentenced to undergo rigorous
imprisonment for a period of seven years. The appellant was also convicted
under section 333 Indian Penal Code for causing injuries to police constable
Madane and was sentenced to undergo rigorous imprisonment for a period of three
years. Conviction was also recorded against the appellant under section 332
Indian Penal Code for causing injuries to police constable Huzare, Havaldar.
Savant and More and he was sentenced to undergo rigorous imprisonment for a
period of two years on that count. The appellant was convicted under sections
25 and 27 of the Arms Act and was sentenced to undergo rigorous imprisonment
for a period of one year on each count. Conviction *as also recorded against
the appellant under sections 3 and 4(b) of the Explosive Substances Act and he
was sentenced to undergo imprisonment for life on each count. In addition to
that, the appellant was convicted under section 5 of the Explosive Substances
Act and he was sentenced to undergo rigorous imprisonment for a period of three
years. The sentences of imprisonment, if necessary, were ordered to run concurrently
with the sentence imposed upon the appellant in another case under section 307
Indian Penal Code.. On appeal and reference to the High Court, the judgment of
the learned Sessions Judge was affirmed. The appellant thereafter has I come up
in appeal to this Court by special leave.
The prosecution case is that the appellant
was wanted in two murder cases of 1962 and 1966 but he could not be apprehended
as he was absconding from 1962. From March 1967 to May 1971 Sub 268 Inspector
Ramchandra Mardur (PW 58) was posted in Sangli District and his main duty was
to trace the absconding accused and to detect the offenders involved in
On July 24, 1970, it is stated, an informant
informed Sub Inspector Kumbhar of police, station Radhanagari in Kolhapur
District that the appellant, who is a resident of village Kameri, was present
in village Kavathe-Piran in District Sangli. Kavathe-Piran is seven miles, from
Sangli. Sub Inspector Kumbhar thereupon left for Sangli to inform the
Superintendent of Police. On July 25 Head Constable Naik (PW 18) of Police
station Radhanagari along with three others went to village Kavathe-Piran and
met the informant there. They concealed themselves inside a house and through
the chinks of a door saw the appellant going on the road.
The appellant was then carrying a gun and a
bandoleer containing cartridges. Head Constable Naik and others thereafter went
to Sangli and informed Superintendent of Police Krishna about the, whereabouts
of the appellant.
On July 26, 1970 Sub Inspector Mardur was
directed by Superintendent of Police Krishnan to arrange a raid party for the
apprehension of the appellant. A party of 30 armed constables along with a tear
gas squad of three constables then went to the outskirts of village Kavathe-Piran
and reached there at 9 p.m. At about 10 p.m. the members of the police party.
were informed that the appellant had fired at Jaising Patil (PW 21) of village
Kavathe-Piran at the latter's house and thereafter had run away. Superintendent
of Police Krishnan then split the police party into three groups. Two groups
were sent in other directions, while the third group headed by Sub Inspector
Mardur proceeded towards the house of Ananda in village, KavathePiran. Ananda
too was arraigned as an accused at the trial along with the appellant but was
acquitted. The group headed by Sub Inspector Mardur contained Head Constables
Yesade deceased, Naik (PW 18) and Lavate (PW 55) and 10 Police constables,
including Madane (PW 30),, Huzare (PW 29), Savant (PW 47), Havaldar (PW 44) and
Pimpri (PW 45). Head Constable Lavate was directed to keep a watch on the back
door of Ananda's house. Sub Inspector Mardur went to the cattle shed of the
house of Ananda and called out Ananda. Ananda came out and soon thereafter the
door of the house was closed from inside. On Sub Inspector Mardur's enquiry,
Ananda replied that his mother only was inside the house,. Sub Inspector
Mardur, however. heard some foot-steps and a whispering sound from inside. This
aroused the suspicion of Sub Inspector Mardur. He accordingly after alerting
the other members of the police party kicked open the door. As soon as the
door' was opened Sub Inspector Mardur heard the sound of firing from inside the
house. It was dark insideThe Sub Inspector had a torch in his left hand and he
flashed it while holding a revolver in the right hand. Head Constable Yesade
then entered a" room of the house. Sub Inspector Mardur was following Head
Constable Yesade when there was an explosion and the Sub Inspector. saw huge flames.
The Sub Inspector felt that he had been injured. He accordingly returned to the
cattle shed and asked the police party to lire, The members of the police party
then fired two 269 rounds into the house. The Sub inspector also heard reports
of firing from inside. Blood then started, coming out of the injuries of Sub
Inspector Mardur and he also felt giddy. The Sub Inspector then came out of the
house and took shelter behind a wall. As the Sub Inspector was seriously
injured, he directed the members of the party to stop firing and to watch if someone
came out of the house of Ananda. During the course of this occurrence, Head
Constable Lavate, who had been posted on the backside of the house, saw one man
emerging out of the house from the back door. Head Constable Lavate, directed a
police cotistable to fire at that man, but that man escaped without being hit.
Another man thereafter emerged from the back
door of Ananda's house and escaped. Superintendent of Police Krishnan then
arrived at the house of Ananda and took steps to send Sub Inspector Mardur to
the hospital for medical treatment. The police constables,, who too were
injured, were also sent along with Sub Inspector Mardur.
Under the directions of Superintendent of
Police Krishnan teargas shells were burst out inside the, house of Ananda for
flushing out inmates. Ananda and one other person then came out of the house.
Superintendent of Police then entered Ananda's house and saw Head Constable
Yesade lying injured in a small room adjoining the cattle shed of the house.
Yesade was brought out for Medical treatment but he breathed his last in a
short while. Balkabai, mother of Ananda accused, was also found lying dead in a
room of the house. On the following morning at about 9 a.m. Head Constable Naik
made report Ex. 52 at the police station regarding the present occurrence.
On the night of occurrence Appa Kesre (PW 23)
was present in his house. Appa Kesre's house is at a distance of two houses
from that of Ananda in village Kavathe Piran. At about 1 1 or 1 1.30 p.m. Appa
Kesre heard some tumult and got up. After the tumult had subsided, Appa Kesre
saw the appellant and Ramchandra who too was an accused in the.
case, come inside the house of Appa Kesre.
The appellant on arrival disclosed his identity and told Appa Kesre not to make
noise. The appellant and Ramchandra thereafter concealed themselves inside the
house of Appa Kesre. On the following morning Appa Kesre went out to ease
himself. His wife also went out from the house. Enquiries were made by the
police from Appa Kesre regarding the whereabouts of the appellant but when Appa
Kesre pleaded ignorance, he was detained. The appellant and Ramchandra were
later appre hended from the house of Appa Kesre at about 1.30 p.m.
The appellant was found to have abrasions on
his person and his underwear had stains of blood. The underwear was taken into
possession. Sub Inspector Sadashiv (PW 64), who investigated this case, found
that some tiles of the roof of the central room of Ananda's house had been
removed in the south-east corner. A 303 rifle Ex. article 9 was found dangling
in the roof. Its butt was broken. Three empty cartridges were also found in the
room. An iron pin too was seen lying in one of the rooms.
The house of Ananda was examined by Senior
Inspector of Explosives Birendranath De (PW 53) on July 30. The Senior
Inspector 270 of Explosives took into possession the various articles lying
there and, came to the conclusion that a handgrenade had been exploded there.'
The handgrenade was of service origin and was of fragmentation type used by
service people only. It had been manufactured in 1964.
Post mortem examination of the dead bodies of
Head Constable Yesade and Balkabai was performed by Dr. Govind Jathar (PW 48)
on July 27, 1970. Balkabai was found to have 12 lacerated wounds besides a
large number of abrasions on the various parts of her body. There was
blackening at the site of the different injuries. The injuries, in the opinion
of the doctor, could have been caused by material flying as a result of the
explosion of a hand-grenade. Yesade had three lacerated wounds besides a large
number of abrasions. The doctor extracted one metal piece from the cavity of
the chest of Yesade. Aorta of Yesade was found to have been punctured. The
injuries of Yesade could be caused by hard and blunt substance flying with
velocity. There was no bullet injury on the bodies of Balkabai and Yesade.
Dr. Chokakakar (PW 52) examined the injuries
of Sub Inspector Mardur as well as those of police constables Madane, Huzare, Savant,
Havaldar and More. Those injuries, in the opinion of the doctor, were the
result of an explosion. Five of the injuries of Sub Inspector Mardur were found
to be dangerous to life. The appellant and Ananda accused were also examined by
Dr. Chokakakar. The appellant had seven abrasions on the different parts of his
body. The above injuries could be caused by a hard and blunt substance. Ananda
had four punctured wounds which could be caused by splinters in an explosion.
At the trial the plea of the appellant was
denial simpliciter. According to the appellant, he had left his village because
be was afraid of one Shankar Bhima Patil.
Shankar Bhima Patil was stated to be a
relation of an accused in a murder case and the father of the appellant had
appeared as a prosecution witness against that accused. As regards the injuries
on his person, the appellant stated that he was apprehended by the police in a
field at about noon time on July 27, 1970. It was stated that the injuries on
the person of the appellant had been received by him during the course of.
grappling with the police officials.
No evidence was"produced in defence, The
trial court convicted the appellant as mentioned above because it was of the
view that the appellant had exploded the hand. grenade and had caused the
The High Court on appeal and reference
substantially agreed with the trial court.
We have heard in appeal Mr. Srivastava on
behalf of the appellant and Mr. Khanna on behalf of the State, and are of the
view that the case has not been proved against the appellant beyond all
reasonable doubt. The fact that a hand-grenade was exploded in the house of
Ananda when the police party headed by Sub Inspector Mardur arrived there with
a view-to apprehend the appellant cannot be disputed.
Likewise, it cannot be disputed that Yesade
and Balkabai received fatal injuries and Sub Inspector Mardur and other police
officials received serious injuries as a result of that explosion. The 271
crucial question which arises for determination in the present case is whether
the appellant possessed the, handgrenade in question and exploded the same, as
a result of which injuries were caused to the two deceased persons and the
different police officials. There is no direct evidence on this point as none
of the witnesses has deposed about his having seen the appellant carrying a
hand-grenade or about his having exploded the hand-grenade. The High Court in
maintaining, the conviction of the appellant has relied upon the following
pieces of circumstantial evidence (1) The fact that the appellant was
absconding before the occurrence in two murder cases.
(2) The fact that the appellant was seen
carrying a gun and cartridges in village Kavathe-Piran by Head Constable Naik
on July, 25, 1970.
(3) The fact that the appellant fired at
Jaising at 9 p.m.
on July 26, 1970 in village Kavathe-Piran.
(4) The fact that the appellant sought
shelter in The house-of Appa Kesre at about mid-night hour after the explosion
of the handgrenade.
(5) The fact that the appellant had abrasions
on his person at the time of his arrest and his underwear was found to be
stained with blood.
In our opinion, the circumstances enumerated
above taken singly or cumulatively do not go to show that it was the appellant
who exploded the hand-grenade. It is in the evidence of Jaising (PW 21) that
the appellant on the night of occurrence was accompanied by four other persons,
namely, Ramchandra, Mane Shankar and Sadashiv. Out of them, Shankar and
Sadashiv were strangers. Ramchandra and Mane were also charged for the various
offences for which the appellant was charged, but they were acquitted. There is
nothing to rule out the possibility of the hand-grenade having been exploded
not by the appellant but by one of his companions. The fact that the appellant
was an absconder in two earlier caseswould not necessarily show that it was the
appellant who exploded the hand-grenade and not one of his companions.
For even the appellant was interested in
preventing his apprehension and might have for that object exploded the
hand-grenade, it is equally possible that the explosion' of the handgrenade
might have been the work of one of the companions of the appellant with a view
to prevent the apprehension of the appellant and facilitate his escape.
The presence of abrasions on the person of
the appellant or of the blood-stains on his underwear would not also show that
it was the appellant and not one of his companions who had exploded the
hand-grenade. The further fact that the appellant and Ramchandra accused later
sought shelter in the house of Appa Kesre would not also lead to the inference
that it was the appellant and not one of big companions who had exploded the
hand-grenade. Likewise, no inference can be drawn from the fact that the
appellant had fired at Jaising earlier on that night, that the hand-grenade too
was exploded by him, 272 Reference has been made by Mr. Khanna to the fact that
Jallandar, brother of the appellant, was previously employed in the army and
that Jallandar is untraceable since July 26, 1970 when the present occurrence
took place. It is pointed out that the hand-grenade was of service origin.
'Ibis circumstance, in our opinion, is far from showing that the appellant
alone could be in possession of the handgrenade and that it was he who
exploded. the same. If one was out to procure a service hand-grenade by illegal
means, it was not necessary for one to have a brother in the army to secure
such a handgrenade. One might as well have obtained such a hand-grenade through
Reference has also been made by Mr. Khanna to
police entry Ex. 139 and entry in crime handbook Ex. 162, according to which
intelligence had been collected that the appellant carried a handgrenade. The
contents of these documents cannot be of much value as there is nothing to show
that the person who made these entries had any direct knowledge of the
possession of hand-grenades by the appellant. On the contrary, the entries show
that the above information had been derived from some other persons. Those persons
have not been exanuned as witnesses in the case. There is no substantive
evidence of any one on the record that he had seen the appellant carrying a
hand-grenade. The two documents referred to above, in our opinion, can be no
substitute for the substantive evidence of witnesses on the point that the
appellant had in his possession a hand grenade.
The appellant was convicted on August 23,
1971 by Additional Sessions Judge Sangli for an offence under section 307
Indian Penal Code-in connection with the incident relating to the firing at
Jaising on the night of July 26, 1970. A sentence of rigorous imprisonment for
a period of seven years was awarded-to the appellant on that count. The
appellant was also convicted for offences under sections 25 and 27 of the Arms
Act in that connection and was sentenced to undergo rigorous imprisonment for a
period of one year and three years for those offences. As the appellant has
already been convicted for the offences under the Arms Act for being in
possession of the rifle and the cartridges, he cannot be convicted again for
being in possession of the same rifle and cartridges on that day. It also
cannot be said that the appellant caused any injury with the, rifle to the two
deceased persons or the other police officials because no bullet injury was
found on any one of them.
It may be mentioned that though the
prosecution seeks the conviction of the appellant on the allegation that he
exploded a handgrenade, in the first information report relating to the present
occurrence which was lodged by Head Constable Naik there is no reference to a
hand-grenade much less to the explosion of a hand-grenade by the appellant,
although there is a reference in it to the bursting of tear gas shells by the
police party. It appears that the police party was taken by surprise when the
hand-grenade exploded and no one realised as to what had happened and how the
different persons had been injured. This apparently accounts for the fact that
there is no mention 273 of the explosion of a hand-grenade or a bomb in the
first information report lodged by Head Constable Naik. AR that was mentioned
in the said report was that there was firing from inside even though me at
evidence reveals that there was no bullet injury on any of the injured persons.
It 'is rather unfortunate that in a case like
the present wherein two persons were killed and a number of others were
injured, no, direct evidence could be produced as to who had exploded the hand grenade
which caused the injuries to the deceased persons and other members of the
police party. The difficulty in procuring the direct evidence can be traced to
the fact that the police chose to arraign as accused the different inmates of
Ananda's house. None of them could consequently be examined as a witness although
those inmates could be in a position to depose as to who had exploded the hand
In order to base the conviction of an accused
on circumstantial evidence the court must be certain that the circumstantial
evidence is, of such a character as is consistent only with the guilt of the
accused.. If, however, the circumstantial evidence admits of any other rational
explanations, in such an event an element of doubt would creep in and the
accused must necessarily have the benefit thereof. The circumstances relied
upon should be of a conclusive character and should exclude every hypothesis
other than that of the guilt of the accused.. In other words, there must be a
chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused. The circumstances must
show that within all reasonable probability the impugned act must have been
done by the accused. If two inferences are possible from the circumstantial
evidence, one pointing to the guilt of the accused, and the other, also
plausible, that the commission of the crime was the act of someone else, the
circumstantial evidence would not warrant the conviction of the accused.
In case the circumstantial evidence relied
upon by the High Court for maintaining the conviction of the accused for an
offence entailing capital punishment does not satisfy the above requirement, an
interference would be called for by this Court.
It would be apparent from what has been
discussed above that the circumstantial evidence relied upon by the
'prosecution in this case is not of such a character as can be held to be
consistent only with the guilt of the appellant.
We, therefore, accept the appeal, set aside
the conviction of the appellant and acquit him.