Shinde Vs. The State of Maharashtra  Insc 378 (6 September 2002)
C. Banerjee & B.N. Agrawal. Banerjee,J.
stated that Shankar and Balu, the two brothers were admittedly having some
differences and disputes over the family property but subsequently the disputes
were admittedly resolved and a deed of partition was entered into between the
brothers. It is in pursuance of the same however that Shankar was fencing his
portion of the land when he was said to have been brutally axed by his brother Balu.
Prosecutor's version in the appeal presently under consideration against the
confirmation of the conviction and sentence by the High Court stands out to be
the truth is stronger than fiction, more so by reason of involvement of blood
prosecution case proceeds on the basis that on 8th July 1984, while Shankar was putting the fencing round his plot, he
was brutally axed, resulting in his death. It has been the definite case for
the prosecution that the axe blow was given by Balu, the younger brother and in
support of its case placed on witness-box two material witnesses - one of whom
however was declared hostile, since the case in the First Information Report
stands completely contradicted. The other witness is said to be an independent
witness though said to be related to both the brothers.
particular witness (PW 4) while foisting liability on to the other brother has
taken recourse to certain circumstances which prompted him to depose as regards
to identify the killer. The details thereof would be dealt with immediately
hereafter, but before so doing it would be convenient to note the
well-established rule in criminal jurisprudence as regards the acceptability of
circumstantial evidence and the role of the law courts in regard thereto:
word of caution introduced in the judgment of this Court about five decades ago
in that direction however still stands as an acceptable guide. This Court in Hanumant
Govind Nargundkar & Anr. v. State of Madhya Pradesh (AIR 1952 SC 343) stated:
is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should in the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to
be proved. 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 and it must be such as to show that within all human
probability the act must have been done by the accused." Subsequently, the
Constitution Bench of this Court in MG Agarwal and Anr. vs. State of Maharashtra (AIR 1963 SC 200) in the similar
vein and without any contra note stated the law with utmost lucidity in the
manner noted below:
is a well established rule in criminal jurisprudence that circumstantial
evidence can be reasonably made the basis of an accused person's conviction if
it is of such a character that it is wholly inconsistent with the innocence of
the accused and is consistent only with his guilt. If the circumstances proved
in the case are consistent either with the innocence of the accused or with his
guilt, then the accused is entitled to the benefit of doubt. There is no doubt
or dispute about this position. But in applying this principle, it is necessary
to distinguish between facts which may be called primary or basic on the one
hand and inference of facts to be drawn from them on the other. In regard to
the proof of basic or primary facts, the Court has to judge the evidence in the
ordinary way, and in the appreciation of evidence in respect of the proof of
these basic or primary facts there is no scope for the application of the
doctrine of benefit of doubt. The court considers the evidence and decides
whether that evidence proves a particular fact or not.
it is held that a certain fact is proved, the question arises whether that fact
leads to the inference of guilt of the accused person or not, and in dealing
with this aspect of the problem the doctrine of benefit of doubt would apply
and an inference of guilt can be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused and is consistent only with his
guilt." Similar however is the opinion of this Court in Pawan Kumar v.
State of Haryana [2001 (3) SCC 628] in which one of
us (U.C. Banerjee, J) was a party. The opinion of the Court runs as under:
success of the prosecution on the basis of circumstantial evidence will however
depend on the availability of a complete chain of events so as not to leave any
doubt for the conclusion that the act must have been done by the accused
it is true that there should be no missing links, in the chain of events so far
as the prosecution is concerned, but it is not that every one of the links must
appear on the surface of the evidence, since some of these links may only be
inferred from the proven facts. Circumstances of strong suspicion without,
however. any conclusive evidence are not sufficient to justify the conviction
and it is on this score that great care must be taken in evaluating the
circumstantial evidence. In any event, on the availability of two inferences,
the one in favour of the accused must be accepted and the law is well settled
on this score, as such we need not dilate much in that regard excepting,
however, noting the observations of this Court in the 1992 SC 840) wherein this
Court in paragraph 9 of the report observed:- "This Court has, time out of
number observed that while appreciating circumstantial evidence the Court must
adopt a very cautious approach and should record a conviction only if all the
links in the chain are complete pointing to the guilt of the accused and every
hypothesis of innocence is capable of being negatived on evidence. Great care
must be taken in evaluating circumstantial evidence and if the evidence relied
on is reasonably capable of two inferences, the one in favour of the accused
must be accepted. The circumstance relied upon must be found to have been fully
established and the cumulative effect of all the facts so established must be
consistent only with the hypothesis of guilt. But this is not to say that the
prosecution must meet any and every hypothesis put forward by the accused
however far-fetched and fanciful it might be. Nor does it mean that prosecution
evidence must be rejected on the slightest doubt because the law permits
rejection if the doubt is reasonable and not otherwise." The other aspect
of the issue is that the evidence on record, ascribed to be circumstantial,
ought to justify the inferences of the guilt from the incriminating facts and
circumstances which are incompatible with the innocence of the accused or guilt
of any other person.
observations of this Court in the case of Balwinder concurrence to the
above." In a more recent decision of this Court in Sudama Pandey &
Ors. vs. State of Bihar [2002 (1) SCC 679] the law as
noticed above and to the same effect stands very felicitously expressed.
now time however to advert to the factual details so as to appreciate the contentions
raised in the matter:
On 8th July, 1984 deceased Shankar was said to have
been assaulted by his own brother Balu at around 10 a.m. in the field, where Shankar, the deceased was working on
fencing his plot of land. Balu is stated to have hit the deceased with an axe
which stands recovered near his house having blood marks and which after
forensic examination found to be of the same group as that of Shankar, the
deceased. Reliance on PW 4 Dharu has been rather total since the complainant PW
5 Baby whilst in the witness Box did tell a different story and thus resulting
in PW 5 Baby being declared as a hostile witness.
the Trial Court did place very strong reliance on PW 4 Dharu and convicted the
accused under Section 302 and thus sentenced him to imprisonment for life. The
appeal preferred before the High Court did not yield any benefit and the same
was dismissed and hence the Special Leave Petition under Article 136 of the
Constitution and the subsequent grant of leave by this Court.
however analyse the evidence of PW 4 Dharu in a little bit greater detail.
Incidentally be it noted that under normal circumstances, analysis of evidence
or appreciation of evidence ought not to be effected by the Apex Court while
dealing with the matter but it is trite to note that in the event this Court
finds any lacuna in appreciation of evidence by the High Court and in the event
there is likelihood of prejudice being suffered by the accused resulting in
miscarriage of justice, the present day justice- oriented approach ought to
prompt this Court to go in to necessary detail so as to assess the correctness
of such an appreciation in the interest of justice on this score the law is so
well-settled that we need not dilate thereon.
attention on the evidence of PW 4 Dharu, the material portion records as under:
the last Waishak in the year 1985, partition of family lands took place between
deceased Shankar and accused Balu. Before partition, deceased Shankar did not
get any income from family lands, so he was working at other place. At the time
of partition, land Chambharbuva was divided and half share each was allotted to
deceased Shankar and accused Balu. At the time of dividing the land at Chambharbuva
dividing line with the ploughing mark was made in between the two shares.
was Sunday at that time of incident. The incident took place 1 to 1 and quarter
years before. On that day at about 10 a.m., I was going to my field from my house. The way leading to my land
passed by the side of land Chambharbuva. While going on foot, I came near the land of Chambharbuva.
That time, I saw exchange of words going between accused Balu and deceased Shankar
in the land Chambharbuva. That time, deceased Shankar was planting bushes on
the boundary line of his land and land of accused Balu. I went near them and
advised them not to quarrel. Then I started going towards my land. I cross the
long distance, that time I heard the commotion coming from the direction of
land Chambharbuva. It was the cry of Baby daughter of Sonba Shinde. She cried, Mela,
Mela. Hearing her cry I came back and went in Chambharbuva land. I went near
deceased Shankar. At that time, I did not see accused Balu in the vicinity.
time, Shankar was lying injured in the land, he was not able to speak. That
time, I saw injury on the right side of head. The injury was bleeding. That
time, my nephew Gorakh was also present there. Then myself and Gorakh lifted Shankar
and brought him in front of house of accused. I then tied his head injury with
Dhoti. Then we put him in the bullock-cart and brought him in Talegaon General Hospital. That time, accused Balu and his wife did not accompany us
to Talegaon Hospital. Dr. gave medical treatment to Shankar and as per advice of
Doctor, Shankar was taken in Sasoom Hospital in tempo. Then myself and my
relations returned home. Shankar's relations accompanied him in Sasoom
Hospital. After 5/6 days I came to know that Shankar died." Since the
cross-examination has been rather brief it would be worthwhile to note the same
in extenso. The evidence in cross- examination reads as below:
land is far away from the land of Chambharbuva.
land Nayar is on the bank of river. I go to my other land by road leading to
Diva. Road leading to Diva goes through village Urse. The land Chambharbuva is
not on the way leading to Diva.
is compound of thorny bushes on all sides of land Chambharbuva. The height of
said thorny bushes is about 7/8 feet.
not stated in my police statement that I advised deceased Shankar and accused Balu
not to quarrel. I was 30 to 40 feet away from the land Chambharbuva when I
heard commotion. It is not true that I did not see accused Balu and Shankar in
land Chambharbuva at that time. I had kept injured Shankar on the Oti of the
house of accused Balu. That time, his head injury was bleeding and the blood
fell on the Oti.
the Shankar was put on Oti. I asked somebody to bring cloth to tie injury. That
time, somebody brought shirt to me. At the time of departure to Talegaon
Hospital, the said shirt was lying on the Oti.
exchange of quarrel was going between Shankar and accused Balu in the corner of
Paddy field. The said Paddy field is just near from the house of accused Balu."
The evidence thus records that whilst Dharu was on his way to his field on the
fateful day, he saw two brothers involved in hot exchange of words and like a
good neighbour, advice came from him so that the brothers do not fight against
each other: Dharu thereafter proceeded towards his field and by the time he had
gone barely 30/40 feet there was wailing of Baby (PW5). On hearing the same Dharu
came back to the alleged place of occurrence and found Shankar being in grossly
injured condition. The next part of his evidence is rather interesting and
important as well, since the evidence is delightfully silent on the score as to
what has happened to wailing of PW 5: Dharu significantly neither sees the
assailant brother nor said anything about the whereabouts of PW 5:
his evidence remained positive as regards the wailing of PW 5.
what has happened to her? Where has she gone and if not there then which
direction!! Similar is the situation as regards the accused person: It is only
30-40 feet Hearing of wailing and turning back to see what has happened yielded
no further but that did not prevent him from seeing Gorakh with whose
assistance he lifts Shankar and took him to the front of the house of the
deponent did not see the actual axe-hit, neither could see the accused from
behind the vision obviously became totally blurred otherwise there was no
earthly chance of missing both the accused person and PW 5. The introduction of
Gorakh had to be effected since he had to carry the body of Shankar.
Significantly, however, Gorakh was not called to give evidence The reason for
non- production of such a vital witness goes unnoticed by both the trial Court
as also the High Court.
shall come back to the evidence of Dharu (PW 4) once again shortly afterwards
but presently the evidence tendered by Baby (PW 5) ought to be noticed:
incident took place 1 to 1 and quarter years before. It was Sunday. During my
stay, I was staying in the house of deceased Shankar in Urse. On the day of
incident, PW 4 Dharu met me Urse at about 10 a.m.
time, I asked Dharu whether he wanted to go to his field. He told me that he
would not go to his field due to sickness. While I was in the house of deceased
Shankar, at about 10
a.m., boys came
shouting to me and told me my brother Shankar fell injured in the land Chambharbuva.
Then I immediately rushed to Shambharbuva land and saw Shankar lying injured in
the field. I cried for water. Then hearing my cry, neighbours gathered and
water was given, but Shankar was unconscious. PW 4 Dharu and Gorakh came there.
lifted injured Shankar and took him on the Oti of house of accused Balu. I
brought shirt from the house of accused Balu for tying the head injury of Shankar.
people told me to bring Dhoti instead of shirt. So I gave Dhoti to Dharu and it
was tied to the head injury of Shankar. Then PW. 4 Dharu and Gorakh took Shankar
in bullock cart and he was taken to Talegaon." It is at this juncture the
prosecutor declared her a hostile witness and prayed for permission to
cross-examine the witness upon however, the leave being granted, PW 5 totally
decried the factual aspect as contained in the complaint lodged, though
however, the thumb impression was admitted while it is true declaration of a
witness to be hostile does not ipso facto reject the evidence and it is now
well-settled that the portion of evidence being advantageous to the parties may
be taken advantage of but the Court before whom such a reliance is placed shall
have to be extremely cautious and circumspect in such acceptance. Reference in
this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra & Anr. [(1996) 10 SCC
360] wherein this Court stated:
is equally settled law that the evidence of a hostile witness would not be
totally rejected if spoken in favour of the prosecution or the accused, but it
can be subjected to close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence may be accepted."
It is on this backdrop the evidence of PW 5 if analysed, totally negates the
thus have to assess the credit worthiness of this particular witness and assess
the situation ourselves.
PW 4 did not see the accused in fact giving the blow It is only a
circumstantial inference the probative value thus will have to be assessed.
PW 5 (Baby) happened to be complainant and we should have a look at the
complaint so lodged by PW5.
extract of the complaint reads as below:- "On 8.7.1984 at 10-00 or 11-00
a.m. I was going from our house to my uncle's house. At the time Shankar was
doing fencing to the land which was owned by him after partition near open
space, owned by Balu after partition. At that time Balu was grazing his cattles
in his own land. When I was going to my uncle's house I heard altercations were
taking place in between Balu and Shankar. As it was as usual hence I neglected
it and went to my uncle's house. As I was to reach my uncle's house I heard my
brother Shankar raised shout as "Mello, Mello", hence inspite of
going inside my uncle's house I returned back and came near Shankar. At that
time, sharp clash was going on in between Shankar and Balu and Balu was having
an axe in his hand, and Balu was assaulting Shankar. When Balu saw me going
towards them, Balu returned to his house with cattles. I ran towards Shankar. Shankar
was lying with dripping blood from his body, he was unconscious hence I saw
where he was assaulted. I saw deep wound in his head hence I shouted
"Bring water" (Pani Ana, Pani Ana). Then my cousin brother Gorakh Anna
brought the water. Water was given to him but he did not talk anything hence I
started weeping loudly. At that time after hearing my voice my uncle Daru Shinde
and cousin brother Gorakh Anna shifted my brother to Talegaon Hospital, by bullock cart. At that time my mother Sitabai, aunt Indubai,
Shankar's wife Dwarkabai accompanied them. I went to our house. When I was at
home my uncle Daru Shinde and aunt Indubai came back to Urse at 2.00 p.m.
the bullock-cart. They told me that Shankar was not admitted by Talegaon
Hospital due to serious injuries. He is sent to hospital at Pune. This quarrel
has arose out of partition of land." It is further to be noticed that in
the evidence tendered by PW 5, there is existing a complete departure as
regards the witnessing of the fight. Though the oral testimony lends
corroboration to the later part of the complaint. The situation thus emerges
that authentication of the complaint by the left thumb impression of PW 5
though stands admitted, but there was a refusal as regards PW 5 being an eye
witness to the occurrence. PW 5 stated in no uncertain language that intimation
of Shankar's injury was given to her by some local boys and on arrival at the
place of occurrence PW 5 found Shankar lying injured in the field and it is at
that juncture she cried for water as noticed herein before. PW 5 however then
proceeds to state that upon hearing the cry, neighbours gathered and it is only
thereafter Dharu and Gorakh came there together, who lifted the injured Shankar
and took him on the Oti of the house of the accused Balu.
this juncture, let us analyse the evidence of PW 4 in a slightly more greater
detail it seems that the involvement of the accused shall have to be established
: Dharu therefore has to be present at the place of occurrence and show the
good neighbourly gesture by advising the brothers not to fight, even if this is
an acceptable piece of evidence but evidence thereafter seem to be rather an
improbable if not an impossibility for acceptance. Since the distance of 30/40
feet cannot be that long a distance which Dharu has said to have traversed
between the neighbourly gesture and the wailing of PW 5; Dharu immediately
looked back, but the silence pervades thereafter as regards the presence of Balu
and PW 5. On the contrary, the evidence of PW 5 for which she has been declared
hostile seems to be going in consonance with the normal reactions and normal behaviourial
pattern. The factum of not seeing either the accused or PW 5 Dharu turned round
within a distance of 30/40 feet is rather difficult to accept. If the evidence
of PW 4 is considered in the perspective as above question of acceptance
thereto would not arise and having regard to the availability of materials, the
success of prosecution becomes rather doubtful. Admittedly, there is no direct
evidence and the entire prosecution hinges on circumstantial evidence. In the
event, however, the chain is snapped and there is a gap therein, the accused
cannot but be said to be entitled to a doubt.
aspect of the matter has been totally ignored by the High Court and in our view
the same goes to the root of the matter and by reason of non-adherence to the
basic principles pertaining to the evidence in the perspective as has been
stated hereinbefore, there was truly a miscarriage of justice warranting
intervention of this Court.
view of the aforesaid, this appeal succeeds. The appeal is thus allowed the
conviction and the order of sentence as confirmed by the High Court stands set
aside and quashed. The appellant who is in custody is directed to be released
forthwith unless required in any other matter.