[Cites 9, Cited by 0]
Bombay High Court
Ashok Shankar Mhatre vs The State Of Maharashtra on 5 February, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:6028-DB
Appeal-705-2012
Digitally
signed by
ANANT
ANANT KRISHNA
KRISHNA NAIK IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAIK Date:
CRIMINAL APPELLATE JURISDICTION
2026.02.05
17:20:15
+0530
CRIMINAL APPEAL NO. 705 OF 2012
Ashok Shankar Mhatre
Age 47 years, Occ: Business,
Resident of Jivdani Chawl, Dongripada,
Narangi, Virar (E), Taluka Vasai
(At present in Kolhapur
Central Prison, Kalamba at Kolhapur ...Appellant
Versus
The State of Maharashtra ...Respondent
________
Mr. D. S Mhaispurkar a/w Mr. H. S. Pawaskar, Mr. R.S. Patil i/b Mr. Ashish
Sawant for Appellant.
Ms. Sangita E. Phad, APP for Respondent/State.
________
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
RESERVED ON : 13th JANUARY 2026.
PRONOUNCED ON : 5th FEBRUARY 2026.
JUDGMENT :
( Per : SHREERAM V. SHIRSAT, J.)
1. The present Appeal has been filed challenging the Impugned Judgment
and Order dated 05.05.2012 passed by the Additional Sessions Judge, Vasai in
Sessions Case No. 48 of 2010, whereby the Appellant was convicted under
Section 302 of the Indian Penal Code (I.P.C.) and has been sentenced to suffer
Life Imprisonment with fine of Rs.3,000/- and in default to undergo Simple
Imprisonment for 6 months. The Appellant was also convicted for offence
under Section 201 of I.P.C., and has been sentenced to suffer Rigorous
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Imprisonment for 3 years and to pay a fine of Rs. 2,000/- and in default to
suffer Simple Imprisonment for 3 months.
2. Brief facts of the case of the prosecution are as under:
a. It is the case of the prosecution that on 10 th January 2010 at about
9.00 a.m. when the Complaint P.W. 1 - Prashant Raut was on his way
towards National School, he saw a dead body with crushed face
under a Tamarind Tree near National School. Since the place was
falling within the jurisdiction of Virar Police Station, he informed the
police. Accordingly, C.R. No. I-8 of 2010 was lodged in Virar Police
Station.
b. Pursuant to the registration of FIR, the investigation commenced. The
identity of the body was tried to be ascertained by publishing her
photo in a newspaper. It is the case of the prosecution that the
parents of the lady identified her as their daughter Kantabai.
Subsequently, the investigation was taken over by the Local Crime
Branch, Vasai Unit.
c. During the investigation, the telephone call records of the mobile
phone of the deceased Kantabai were checked, which led to a few
calls from the phone belonging to one Sapana Shetye and her
husband Prasad Shetye. Inquiry with them led to the present
Appellant. On 31.01.2010 the Appellant was arrested.
d. The investigation was further carried out and the chargesheet was
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filed. The case was committed to the Court of Session and the
Appellant faced the trial in Session Case No. 48 of 2010 before the
Learned Additional Sessions Judge, Vasai at Vasai.
3. The following witnesses were examined by the prosecution during
the course of trial:
Rank Name Nature of Evidence
P.W. 1 Prashant Raut The Informant who had seen
the dead body and who
informed the police.
P.W. 2 Ganesh Bahurupi Pancha who witnessed the
collection of sample soil
chappal and stones.
P.W. 3 Bapu Gaikwad Taken photographs of the
dead body
P.W. 4 Pradip Singh Pancha for seizure of recovery
of clothes of accused
(hostile).
P.W. 5 Shankar Sawant Brother-in-law of the
Deceased who had procured
SIM card for the Deceased.
P.W. 6 Bapu Phadake Sold SIM card to one Santosh
Pawar and Nilesh Holkar.
P.W. 7 Dinesh Holkar Uncle of Nilesh Holkar
Procured SIM card for the
above mentioned Nilesh
Holkar by giving his
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documents.
P.W. 8 P. C. Chitte Conducted some part of the
Investigation.
P.W. 9 Jaykumar Patade Driver of Police Jeep who
drove the vehicle after
Accused made a voluntary
statement about clothes, to
take them to the spot.
P.W. 10 Dr. Bansode Conducted postmortem
examination.
P.W. 11 Prashant Shetye Friend of the Appellant. He
was examined on the point of
Extra Judicial confession of
the Accused and on the point
of having seen the Deceased
in the company of the
Appellant in the night of
09.01.2010. The Appellant
had used his phone to call the
Deceased.
P.W. 12 Sapna Shetye Wife of PW 11 and the mobile
phone used by PW 11
actually stood in her name.
P.W. 13 Ramsuman Yadav Neighbour of the Deceased
about 3 to 4 months prior to
the incident. Thereafter, the
Deceased had shifted to Pune.
P.W. 14 Madhawan Pancha for recovery of clothes
of accused.
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P.W. 15 Anil Sandbhor Investigating officer
P.W. 16 Maruti Khedkar Investigating officer
P.W. 17 Shekar Palanade Nodal officer who had
produced the call records.
P.W. 18 Sachin Bhadange Nodal officer who had
produced the call records.
4. Thereafter, 313 Statement of the Accused came to be recorded.
Arguments were heard and the Appellant was convicted under Section 302 of
the Indian Penal Code (I.P.C.) and has been sentenced to suffer Life
Imprisonment with fine of Rs.3,000/- and in default to undergo Simple
Imprisonment for 6 months. The Appellant was also convicted for offence
under Section 201 of I.P.C., and has been sentenced to suffer Rigorous
Imprisonment for 3 years and to pay a fine of Rs. 2,000/- and in default to
suffer Simple Imprisonment for 3 months.
5. The Accused-Appellant preferred the Appeal before this Court
challenging the aforementioned impugned judgement and order of conviction.
The appeal came to be admitted on 21.06.2012.
6. We have heard Mr. D.S Mhaispurkar, Learned Counsel appearing for the
Appellant and Ms. Sangita Phad, Learned APP for the State.
7. The Learned Counsel for the Appellant has submitted that the Appellant
is innocent and has been falsely implicated. The Learned Counsel for the
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Appellant has submitted that the case is based on circumstantial evidence and
the circumstances that have been taken into consideration, though not
specifically enumerated by the trial court, are the circumstances of motive,
extra judicial confession, the theory of last seen together, call details of the
deceased, recovery of blood stained clothes at the instance of the Accused-
Appellant and has submitted that none of these circumstances have been
proved by the prosecution. He has further submitted that there is no motive
which has been proved by the Prosecution and there is no evidence on record
to show that the Accused-Appellant had any affair with the Deceased. He has
further submitted that the evidence of P.W. 11 to whom the Appellant had
made Extra Judicial Confession has come by way of omission and therefore no
reliance can be placed on such an Extra Judicial Confession, which is otherwise
a weak piece of evidence. The Learned Counsel has further submitted that even
the circumstance of last seen together with the Deceased has not been
conclusively proved. He further submitted that the recovery of blood stained
clothes is from an open place and P.W. 14 has admitted in the cross-
examination that the clothes were not seized in his presence at the spot. He
has further submitted that the blood found on the clothes of the Deceased as
well as the Accused does not conclusively prove that the blood group of the
Deceased is B and that of the Accused was A. He therefore submitted that the
Appellant deserves to be acquitted by giving benefit of doubt.
8. Per contra, the Ld. APP has submitted that the Prosecution has
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successfully proved all the circumstances, which has formed a complete chain
of circumstances leading to only one conclusion that in all probabilities the
Appellant has committed the murder of the Deceased Kantabai. She has
further submitted that the evidence on last seen theory cannot be discarded as
P.W. 11 has clearly stated that he had seen the Appellant and the Deceased
leaving in a rickshaw after which there was no trace of the said lady and
therefore the Prosecution has proved the circumstance of last seen together as
well. The Learned APP has further submitted that the Appellant has given an
Extra Judicial Confession that he was in relation with one Laxmi of Jivdani
Pada and as she was having illicit relation with another person he became
angry and killed her by strangulating her with a cloth. The Learned APP
therefore submitted that there is nothing to disbelieve the Extra Judicial
Confession made to P.W. 11. She has further submitted that the shirt of the
Accused was found having blood group B which directly connects the Appellant
with the crime in question. She has also submitted that there is a motive to
commit the crime that has been brought on record by P.W. 13. The Learned
APP therefore submitted that the conviction be confirmed.
9. The death of the deceased is homicidal in nature and was caused on
account of asphyxia due to strangulation as per the post mortem report. Once
the death is homicidal death, the burden lies on the Prosecution to prove that
the death was on account of the act committed by the Accused with the
intention and knowledge that this act would cause death of the Deceased
Appeal-705-2012
which would amount to offence of murder. In the present case there is no
direct evidence or any eye witness to the said incident in question, but the case
is based on circumstantial evidence.
10. Before adverting to the circumstances, it will be pertinent to refer to the
ruling of the Hon'ble Apex Court in the case of Abdul Nassar Vs. State of Kerala
and Another1 wherein it has been observed that:-
"14. Indisputably, the prosecution case rests on circumstantial
evidence. The law with regard to a case based purely on
circumstantial evidence has very well been crystalized in the
judgment of this Court in the case of Sharad Birdhichand Sarda
(supra), wherein this Court held thus:
"152. Before discussing the cases relied upon by the High Court
we would like to cite a few decisions on the nature, character
and essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of Madhya Pradesh
[(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953
Cri LJ 129].
This case has been uniformly followed and applied by this Court
in a large number of later decisions up to date, for instance, the
cases of Tufail (Alias)Simmi v. State of Uttar Pradesh [(1969) 3
SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be
useful to extract what Mahajan, J. has laid down in Hanumant
case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129]: "It 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
1 2025 SCC Online SC 111
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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."
11. Therefore, where the evidence is of a circumstantial nature or where the
case is based on circumstantial evidence, 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. Therefore, the circumstances should be
of a conclusive nature 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 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.
12. It will therefore have to be seen from the evidence that has come on
record, whether the circumstances from which the conclusion of guilt is to be
drawn is fully established and all the facts so established are consistent only
with the hypothesis of the guilt of the Accused.
13. As stated above, in this case, there is no direct evidence and the case is
entirely based on circumstantial evidence. The Trial Court has not specifically
carved out the circumstances, however the circumstances which can be borne
out from the evidence that has come on record are:-
i. Last seen together.
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ii. Extra Judicial Confession by the Appellant to P.W. 11.
iii. Motive to commit murder.
iv. Recovery of Clothes and stones at the instance of the Appellant.
v. Blood stains on the shirt of the Appellant having the blood group
" B" which is of the Deceased.
vi. Call details of the Appellant.
14. The first circumstance which can be taken into consideration for the
analysis is the "Theory of Last Seen Together". At this stage it will be pertinent
to refer to the ruling of the Apex Court in the case of Karakkattu Muhammed
Basheer Vs State of Kerala2, wherein it has been held as under:-
"27. The last seen theory, furthermore, comes into play where
the time-gap between the point of time when the Accused and
the Deceased were last seen alive and the Deceased is found
dead is so small that possibility of any person other than the
Accused being the author of the crime becomes impossible.
Even in such a case the courts should look for some
corroboration."
15. In order to prove the circumstance of last seen together, the prosecution
has examined P.W. 11, Prashant Prakash Shetty who is the friend of the
Appellant. He has deposed that he knows the Appellant and they used to
consume toddy together for last two years. He has deposed that on
09/01/2010, the Appellant had called him at about 9:30 am at Gandhi Chowk
for consumption of Toddy. He has deposed that the Appellant had called him
on his mobile phone from his mobile and thereafter, he went on the motorcycle
2 (2024) 10 SCC 813
Appeal-705-2012
with the Appellant to consume toddy and they were consuming Toddy from
11.00 a.m. to 11:30 a.m. He has further deposed that at that time, the
Appellant asked him as to whether he has his mobile with him, as he wanted to
call one party regarding the letting of premises on rent. He has deposed that he
told the Appellant that there is no balance in the mobile upon which the
Appellant told him that he will recharge the phone for making the call and
thereafter the Appellant took him to Manvel Pada on motorcycle and got the
mobile phone recharged. He has further deposed that by using the mobile, he
called someone and after completion of the phone call, the Appellant returned
the phone to him and left him near Geetanjali school. He has further deposed
that again, he took his mobile phone and called someone and returned his
mobile phone. He has further deposed that at about 1:30 p.m., the Appellant
called him and enquired with him as to whether he had received a phone call
from the party and again asked him to come to Gandhi Chowk. He has further
deposed as to how till 7 p.m. they were in contact with each other and which
other places he visited with the Appellant. He has further deposed that the
Appellant had called him again, telling that he had brought liquor, and after
the Appellant had consumed liquor at Guru Dutta Nagar, they went to Virar
railway station and the Appellant made a phone call from his mobile phone
and thereafter he went home. He has further deposed that the Appellant again
called him at 10 p.m. and enquired about the phone call of the party and
informed him that if he received the phone call from the party then he should
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tell the party that he is at the railway station. He has further deposed that
Appellant called him to Subway near railway station and when he reached
Subway, he received a phone call from a lady who was enquiring for the
Appellant. He has further deposed that he told the lady that the Appellant is
likely to come at Subway and that she should wait near Booking office of the
railway. He has further deposed that he informed the same to the Appellant on
phone and thereafter the Appellant came near Subway and told him that the
said Lady who standing near the Booking office is the party. He has further
deposed that thereafter the Appellant and the said lady left towards Manvel
Pada in a rickshaw and at that time the Appellant was wearing half white
colour shirt, and black pant. On this issue in particular, in the cross-
examination, the witness has admitted that he had seen the said lady for about
one or two second. The witness has also admitted that since he had seen her
only for one or two second, he cannot give her description. This witness has
also categorically answered in cross-examination that except her saffron colour
sari, he cannot describe any other cloth on her body and that it will be correct
to say that he could not see her face. He has also answered in the cross
examination that it will be correct to say that the photograph is of the lady
whose face is smashed and therefore she is not identified.
16. From the evidence that has come on record, the theory of last seen
together cannot be said to be conclusively proved. As per the evidence of P.W.
11, the Appellant was last seen in the company of the Deceased at about 10.00
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p.m. on 09/01/2010 and the dead body was found in the morning at 8:45 a.m.
on the next day. Considering the evidence on record, it is difficult to come to a
conclusion that the Appellant is the author of the crime in question, especially
considering the time gap between the time when the Appellant was last seen in
the company and at the time when the said body was found in the morning at
8:45 a.m. on the next day. In the opinion of this Court, this circumstance is not
conclusively established since the interval between the point of time when the
Appellant and the Deceased were last seen together and the time when the
Deceased was found dead is so wide that the possibility of any other person
other than the Appellant being the author of crime cannot be ruled out. The
last seen theory applies only when the time gap is so narrow that the
hypothesis of involvement of some other person is completely eliminated. The
last seen theory alone is weak piece of evidence and requires corroboration.
Although there are several calls made to the Deceased by the Appellant
through the mobile phone of P.W. 11 before they were seen going together,
but that itself will not be sufficient to come to conclusion that the Appellant
was the person who had committed the murder of the Deceased. Therefore this
court is of the opinion that this circumstance has not been proved.
17. Another circumstance is the Extra Judicial Confession of the Appellant to
his friend P.W. 11. The law on the subject is well crystalized. In the latest
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judgment of the Hon'ble Apex Court in the case of Ramu Appa Mahapatar vs
State of Maharashtra3, it has been held that:-
"19. Evidentiary value of an extra-judicial confession was
again examined in detail by this Court in Sahadevan Vs. State
of Tamil Nadu. That was also a case where conviction was
based on extra-judicial confession. This Court held that in a
case based on circumstantial evidence, the onus lies upon the
prosecution to prove the complete chain of events which shall
undoubtedly point towards the guilt of the Accused. That apart,
in a case of circumstantial evidence where the prosecution
relies upon an extra-judicial confession, the court has to
examine the same with a greater degree of care and caution.
An extra-judicial confession, if voluntary and true and made in
a fit state of mind can be relied upon by the court. However,
the confession will have to be proved like any other fact. The
value of the evidence as to confession like any other evidence
depends upon the veracity of the witness to whom it has been
made.
19.1. This Court acknowledged that extra-judicial confession is
a weak piece of evidence. Wherever the court intends to base a
conviction on an extra-judicial confession, it must ensure that
the same inspires confidence and is corroborated by other
prosecution evidence. If the extra-judicial confession suffers
from material discrepancies or inherent improbabilities and
does not appear to be cogent, such evidence should not be
considered. This Court held as follows:-
14. It is a settled principle of criminal jurisprudence that
extra-judicial confession is a weak piece of evidence.
Wherever the court, upon due appreciation of the entire
prosecution evidence, intends to base a conviction on an
extra-judicial confession, it must ensure that the same
inspires confidence and is corroborated by other
prosecution evidence. If, however, the extra-judicial
confession suffers from material discrepancies or inherent
improbabilities and does not appear to be cogent as per the
prosecution version, it may be difficult for the court to base
a conviction on such a confession. In such circumstances,
3 (2025)3 SCC 565
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the court would be fully justified in ruling such evidence
out of consideration
19.2. Upon an in depth analysis of judicial precedents, this
Court in Sahadevan (supra) summed up the principles which
would make an extra-judicial confession an admissible piece
of evidence capable of forming the basis of conviction of an
Accused: (i) The extra-judicial confession is a weak evidence
by itself. It has to be examined by the court with greater care
and caution. (ii) It should be made voluntarily and should be
truthful. (iii) It should inspire confidence. (iv) An extra-
judicial confession attains greater credibility and evidentiary
value if it is supported by a chain of cogent circumstances and
is further corroborated by other prosecution evidence. (v) For
an extra-judicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and
inherent improbabilities. (vi) Such statement essentially has
to be proved like any other fact and in accordance with law."
18. The Hon'ble Apex Court has in several rulings stated that Extra-judicial
confession is a very weak type of evidence and requires appreciation with great
caution and especially in a case based on circumstantial evidence where the
reliance is placed on extra-judicial confession. In the facts of the present case,
P.W. 11 has deposed that on 25/01/2010 or 26/01/2010, his mother-in-law
called him informing that police are in search of Swapna i.e., the wife of the
P.W. 11 and told him that police were making enquiry about the mobile phone
of Swapna. He has deposed that as the Appellant had used his phone, he called
him and asked whether he has done something to which he said that he did
nothing. He has further deposed that he asked the Appellant to meet him
personally, however, he was avoiding to meet him. He has further deposed that
after about two days, he met him in Wadi and while consuming toddy he asked
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him as to what really had happened. He has further deposed that the Appellant
had told him that he had relation with one Lakshmi of Jiwani Pada, who is
from Pune and he had called her here. He has further deposed that the lady
was having illicit relation with another person and he being angry by this had
killed her near National School Kargil Nagar by strangulating her with a cloth.
He has further deposed that the Appellant told him that he killed her in the
night of 09/01/2010 and that she was the same lady whom he had seen at the
railway station on 09/01/2010. In the cross-examination, however, it has been
brought on record that this Extra Judicial Confession has come by way of
omission which has been duly proved in the cross-examination of P.W. 15, the
IO. The most crucial factor which needs to be taken into consideration is that,
what he had deposed in the court that he had stated to the police that Ashok
told him that he had killed the lady by strangulating with the cloth, has come
by way of omission and that he cannot assign any reason why it is not so
mentioned in his statement. Therefore, the so called Extra Judicial Confession
cannot be a circumstance upon which any credence be placed for being
considered as a circumstance in the chain of circumstances in order to establish
the guilt of the Appellant. An extra-judicial confession attains greater
credibility and evidentiary value if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution evidence which
is conspicuously missing in the present case.
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19. The next circumstance is the Motive. In order to prove the motive, the
prosecution has examined P.W. 13 to prove that the Deceased was having an
affair with another person because of which the Appellant was enraged.
Through this witness, it was tried to be brought on record that the Appellant
used to visit the house of one Sitaram when his daughter Kantabai i.e., the
Deceased used to be alone in the house and that he had seen the Appellant
roaming around with Kantabai. However, this deposition that the Appellant
used to visit the house of Kantabai when she used to be alone in the house has
come by way of omission which has been duly proved in the cross-examination
of the investigating officer. Further just because the Appellant was seen
roaming around with Kantabai, it will be too far-fetched in the peculiar facts of
the case to conclude that they were having an affair. Something more was
required to be brought on record. The court is therefore of the opinion that
even this circumstance cannot be said to be conclusively proved. Motive may
be an important circumstance in a case based on circumstantial evidence but
cannot take the place as a conclusive proof that the person concerned was the
author of the crime. One could even say that the presence of motive in the facts
and circumstances of the case creates a strong suspicion against the Appellant-
Accused but suspicion, howsoever strong, cannot be a substitute for proof of
the guilt of the Accused beyond reasonable doubt.
20. The prosecution in order to prove the recovery of clothes as a
circumstance in the chain of circumstances, has examined P.W. 4, P.W. 9 and
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P.W. 14. As far as recovery of clothes of the accused is concerned, P.W. 4, the
panch witness has turned hostile and has not supported the case of
prosecution. The prosecution therefore examined P.W. 14 the other pancha
witness, Seturaman Madhavan in order to prove the recovery of the clothes of
the accused. Although in the examination in chief, the P.W. 14 has deposed that
the Appellant took them to his house and from the place behind the house he
took out plastic bag kept under the grass and out of the said bag he took out
white coloured shirt and black pant with stains of blood on them and that the
clothes were seized, panchnama was drawn, however, in the cross-
examination, he has categorically replied that it is correct to say the plastic
bag, shirt and pant were not seized in his presence at the spot and his
signature was not obtained on it. He has further answered in the cross-
examination that he cannot say about description of the clothes. He has also
further admitted that he cannot say whether the clothes were seized are the
same which were before the court. So also there is no material brought on
record about the blood group of the deceased having being either collected or
sent for chemical examination. Therefore, even the recovery of the blood
stained clothes also cannot be said to be conclusively proved by the
prosecution. Another attempt was made by the prosecution to prove the
recovery of clothes at the instance of the Appellant and for that purpose, has
examined P.W. 9. This witness P.W. 9 is the driver of the private jeep, which was
taken to the spot, pursuant to the statement made by the Appellant with
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respect to the clothes that he would show the place where he has hidden the
clothes used at the time of commission of the offence. He has deposed that
pursuant to the memorandum statement made by the Appellant as per the
directions shown by the Appellant, they came to Nagi Chandan Nasar Road,
Sainath Naka, where the Appellant called upon them to stop the vehicle.
Although he has further deposed that he took them to one Chawl and from
backside of the fifth room, the accused removed one plastic bag from heap of
dry grass and from the said plastic bag he removed one white shirt and black
pant and that the said clothes were seized and sealed at the spot and that the
Panchnama was drawnm, upon analysis of the evidence of P.W. 9, it cannot be
said to be of sterling quality to establish the said fact of recovery for the reason
that in the first place he is not the panch witness as he was only a driver whose
services were hired to drive the private jeep to lead to the said place. Secondly,
this witness does not even refer to the presence of either of the panchas along
with the police official to be present in the vehicle, which was driven by him.
Therefore, this witness cannot be said to be conclusively proving the recovery
of clothes. Hence, even this circumstance has not been cogently established by
the prosecution.
21. The prosecution has examined P.W. 17 Shekar Palande and P.W. 18
Sachin Bhandge, who are the nodal officers of Tata Tele Services and Vodafone
Cellular Limited respectively to establish another circumstance, i.e., to prove
the ownership of the cell number of P.W. 12, Swapna Shetye, the wife of P.W.
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Number 11, the cell number of the Appellant and that of the deceased to
establish a connection and to show that on 09/01/2020, the Appellant was in
contact with the deceased through the mobile phone of P.W. Number 11. Even
assuming that the Appellant was in contact with the deceased on 09/01/2010,
till the time he was last seen together with the deceased, that by itself will not
be a reason to come to a conclusion that the Appellant is the author of the
crime in question. It will at the most establish that the Appellant was
constantly calling the deceased which culminated into both of them meeting at
the railway station after which they left towards Manvel Pada in a rickshaw,
however this will not be a conclusive proof that the Appellant had killed the
said lady more so when the body was recovered in the morning. The time
interval is too wide. What should have been brought on record or established
was the tower location of the Appellant and the deceased along with the
timings of both being together at a particular location, by means of cogent
evidence, in which case an inference could have been drawn that the Appellant
was with the deceased till the time of her death. In the absence of the same,
even this circumstance cannot be said to be fully established which could be
held against the Appellant.
22. It will be apposite to refer to the judgment of Ramanand @Nandial
Bharti Vs State of Uttar Pradesh4, wherein it has been observed that:-
"116. Thus, none of the pieces of evidence relied on as
incriminating by the courts below, can be treated as
4 2022 AIR Supreme Court 5273
Appeal-705-2012
incriminating pieces of circumstantial evidence against the
Accused. Realities or truth apart, the fundamental and basic
presumption in the administration of criminal law and justice
delivery system is the innocence of the alleged Accused and till
the charges are proved beyond reasonable doubt on the basis of
clear, cogent, credible or unimpeachable evidence, the question
of indicting or punishing an Accused does not arise, merely
carried away by heinous nature of the crime or the gruesome
manner in which it was found to have been committed. Though
the offence is gruesome and revolts the human conscience but
an Accused can be convicted only on legal evidence and if only
a chain of circumstantial evidence has been so forged as to rule
out the possibility of any other reasonable hypothesis excepting
the guilt of the Accused. In Shankarlal Gyarasilal (supra), this
Court cautioned "human nature is too willing, when faced with
brutal crimes, to spin stories out of strong suspicions". This
Court has held time and again that between "may be true" and
"must be true" there is a long distance to travel which must be
covered by clear, cogent and unimpeachable evidence by the
prosecution before an Accused is condemned a convict."
23. In the case based on circumstantial evidence all the circumstances which
the prosecution relies must be duly proved. In the present case as the
important links in the chain of circumstances, itself are not proved and
therefore the other circumstances pale into insignificance as the chain of
circumstances is snapped. As has been held by the full bench of the Hon'ble
Apex Court in the case of Darshan Singh v. State of Punjab5 "Seen in this
background, we need not go further and consider the evidence qua other
circumstances sought to be proved by the prosecution since the failure to prove
a single circumstance cogently can cause a snap in the chain of circumstances.
There cannot be a gap in the chain of circumstances. When the conviction is to
be based on circumstantial evidence solely, then there should not be any snap
5 [2024] 1 S.C.R. 248
Appeal-705-2012
in the chain of circumstances. If there is a snap in the chain, the accused is
entitled to benefit of doubt. If some of the circumstances in the chain can be
explained by any other reasonable hypothesis, then also the accused is entitled
to the benefit of doubt."
24. Taking into consideration the evidence that has been brought on record,
it does not unerringly point towards the guilt of the Accused/ Appellant. No
doubt it raises suspicion about the involvement of the Appellant; however, it is
a settled law that suspicion, however strong it may be, cannot take the place of
proof beyond a reasonable doubt and the Accused cannot be convicted on the
ground of suspicion, no matter how strong it is. An Accused is presumed to be
innocent unless proved guilty beyond reasonable doubt. The circumstances
brought on record also do not form a complete chain so as to lead to
irresistible conclusion about the involvement of the Appellant in the present
crime. Establishing one or two circumstances beyond reasonable doubt is not
sufficient to hold that the entire chain is complete as the chain of
circumstances must be so complete that it leads to no other conclusion than the
guilt of the Accused person, which is not so in the present case. The degree of
proof required to hold him guilty beyond reasonable doubt, on the strength of
circumstantial evidence, is clearly not established. Due to the missing links
finding of guilt cannot be recorded and the benefit of doubt must go to the
Appellant.
Appeal-705-2012
25. We are therefore satisfied that the prosecution has failed to bring home
the guilt of the Appellant beyond reasonable doubt and the Appellant deserves
to be acquitted.
26. As a result, we pass the following order:
i. The Appeal is allowed.
ii. The conviction and sentence of the Appellant under
Section 302 r/w 201 of Indian Penal Code recorded vide
impugned judgment and order dated 05/05/2012, passed by
the Additional Sessions Judge, Vasai in Sessions Case No.48 of
2010 is quashed and set aside and the Appellant is acquitted
of all the charges he is charged with.
iii. The Appellant is on bail. His bail bond stands
cancelled and sureties are discharged.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
