Shanker Shetty Vs. State of Maharashtra  Insc 321 (31 July 2002)
V. Patil, B.N.Agrawal. B.N.Agrawal, J.
sole appellant in this appeal by Special Leave has impugned his conviction
under Section 302 read with Section 34 of the Penal Code as upheld by Bombay
short facts are that Shankar Maruti Kamble (PW.1), Dilip Shrirang Barge (PW.2)
and Siddharth Keshav Kamble (PW.9) were constables attached to Jogeshwari
police station and they were on patrolling duty at Partap Nagar within the
jurisdiction of the said police station in the afternoon of 29th October, 1991.
about 3.30 p.m. when they arrived at the junction
of Partap Nagar, they saw people running helter skelter from Triveni Lane. They also noticed that four persons
were running armed with weapons, i.e., swords and choppers shouting that Uday Patole
was killed. Dilip Shrirang Barge (PW 2) could identify the appellant - Dhananjay
Shanker Shetty as he was known history sheeter from that area and also wanted
in criminal cases. The said constables tried to chase the appellant and his
three other companions but in vain. Thereupon, they returned back to Triveni Lane junction and found that Uday Patole
was lying in pool of blood with several injuries on his person. PW.1
immediately sent telephonic message from the nearby medical stores to the
police station stating that Uday Patole was murdered by Dhananjay Shankar Shetty
and three other persons on receipt of which Ravindra J. Medsingh-Station Duty
Officer, (PW.12) and Bhimrao Shivram Khambe-Inspector of Police (PW.15) rushed
to the place of occurrence where statement of Shankar Maruti Kamble (PW.1) was
recorded stating therein the above said facts on the basis of which a first
information report against the appellant and three unknown persons was
registered at Jogeshwari police station at 4.40 p.m.
police after registering the case took up investigation during the course of
which when the appellant was arrested he was found injured and accordingly
referred by the police to doctor-Dilip Ram Chandra Waje (PW.13) for examination
who found several injuries on his person. During investigation, two other
persons, namely, Sudhir Dattatraya Shinde and Rajesh Babu Kharat were also
arrested as suspect and they along with the appellant were put on test
identification parade in which PWs. 1,3 and 9 are said to have identified all
of them. Upon completion of investigation, the police submitted charge sheet,
on receipt whereof learned Magistrate took cognizance and committed the appellant
and the aforesaid two other accused persons to the Court of Sessions to face
of the accused was that they were innocent and no occurrence much less the one
alleged had taken place.
trial, the prosecution examined 15 witnesses in all and various documents were
exhibited. Upon conclusion of the trial, the learned Sessions Judge acquitted
other two accused persons of the charge under Section 302 read with Section 34
of the Penal Code whereas convicted the appellant under Section 302 read with
section 34 of the Penal Code and sentenced him to undergo imprisonment for
life. On appeal being preferred by the appellant, his conviction and sentence
have been upheld by the High Court. Hence, this appeal by special leave.
after appraisal of evidence by the two courts below and recording concurrent
verdict of conviction, this Court does not interfere with the same, but where
it is found that compelling grounds exist and there would be failure of
justice, a duty is enjoined upon it to reappraise the evidence itself for doing
complete justice in the case. In the facts and circumstances of the present
case, we deem it fit and proper to reappraise the evidence.
in the case on hand, there is no direct evidence as nobody is said to have seen
the accused persons assaulting Uday Patole, the deceased, and it is a case of
circumstantial evidence. The most important circumstance against the appellant
was that PWs. 1, 3 and 9 who were on patrolling duty had seen the appellant and
his associates fleeing away armed with swords and choppers shouting that Uday Patole
was killed. According to the first information report as well as evidence of PWs.
1,3 and 9, information was telephonically given to Ravindra J. Medsingh (PW.12)
at the police station immediately to the effect that the appellant and three
others had murdered Uday Patole who passed on information immediately to the
Inspector of Police - Bhimrao Shivram Khambe (PW.15), who was also there, on
the basis of which station diary entry was made by PW.12 which has been marked
as Ex. 36 and thereafter they left for the place of occurrence. But curiously
enough in the station diary entry, name of the appellant was not mentioned.
PW.15 admitted during the course of cross- examination that ordinarily on
receipt of information in respect of any offence, entries are required to be
made in the station diary. No reason whatsoever has been assigned either by
PW.12 or PW.15 as to why normal procedure of entering name of the appellant as
accused in the station diary entry was not followed and the fact that name of
the appellant was not mentioned in station diary entry makes the statement of PWs.
1, 3 and 9 to the effect that in the telephonic information which was given to
the police station by them, name of the appellant was disclosed, highly
doubtful. It appears that none of these three witnesses had seen any of the
accused persons much less the appellant fleeing away and when they found Uday Patole
lying dead, they might have sent telephonic message to the police station only
to the effect that he had been murdered and name of the appellant was not
disclosed therein and subsequently when PWs.12 and 15 arrived at the place of
occurrence, name of the appellant was disclosed for the first time in the fard beyan
as he was a history sheeter.
because of non- disclosure of name of the appellant in the station diary entry,
it is not safe to place reliance on the evidence of PWs 1, 3 and 9 that they
had seen the appellant and three other accused persons fleeing away with swords
and choppers shouting that Uday Patole was killed.
circumstance against the appellant was his so called identification in the test
identification parade by PWs 1, 3 and 9. The trial court as well as the High
Court has found various legal infirmities in the holding of test identification
parade as such no reliance has been placed thereon. Moreover, as the appellant
was named accused person, his so called identification in the test
identification parade could not be of any avail to the prosecution as it was
circumstance which was alleged against the appellant was that blood stained
clothes and weapon were recovered from his house, but the trial court as well
as the High Court did not place any reliance upon this circumstance in view of
the fact that according to the report of chemical examiner, the blood group
found thereon did not tally with that of the deceased.
counsel appearing on behalf of the appellant pointed out that when the
appellant was arrested, the police found several injuries on his person and
accordingly forwarded him to Dr. Dilip Ram Chandra Waze (PW.13) who found four
incised injuries on non-vital parts of his body caused by sharp edged weapon
and the prosecution has completely failed to explain the same. It cannot be
laid down as a matter of law or invariably a rule that whenever accused
sustained an injury in the same occurrence, the prosecution is obliged to
explain it and on its failure to do so the prosecution case should be disbelieved.
But non-explanation of injuries assumes significance when there are material
circumstances which make the prosecution case doubtful. Reference in this
connection may be made to recent decisions of this Court in the cases of Takhaji
Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, and Kashiram &
Ors. v. State of M.P., (2002) 1 SCC 71. In the present
case, non-explanation of injuries on the appellant by the prosecution assumes
significance as there are circumstances which make the prosecution case,
showing complicity of appellant with the crime, highly doubtful.
counsel appearing on behalf of the appellant submitted that neither there is
any allegation nor evidence to show that the appellant had any motive
whatsoever to commit the crime. It is well settled that merely because motive
is neither alleged nor proved, the same would ipso facto not affect the
prosecution case but in case there are other circumstances to create doubt
regarding veracity of the prosecution case, this may also become material.
view of the foregoing discussion, we are of the opinion that the prosecution
has failed to prove its case beyond reasonable doubt and the High Court was not
justified in upholding conviction of the appellant.
result, the appeal is allowed, conviction and sentence awarded against the
appellant are set aside and he is acquitted of the charge. The appellant, who
is in custody, is directed to be released forthwith if not required in
connection with any other case.