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IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:
Appeal (crl.) 950 of 2000

PETITIONER:
BALU SONBA SHINDE

Vs.

RESPONDENT:
THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 06/09/2002

BENCH:
Umesh C. Banerjee & B.N. Agrawal.

JUDGMENT:

BANERJEE,J.

It is 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 relations.

The 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.
This 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:

The 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:

"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
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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:

"It 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.
When 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:
"Incidentally, 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 person. While.
however, 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
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such we need not dilate much in that regard excepting,
however, noting the observations of this Court in the
case of State of U.P. Vs. Ashok Kumar Srivastava (AIR
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.
The observations of this Court in the case of Balwinder
Singh Vs. State of Punjab ( AIR 1987 SC 350) lends
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.
It is 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.

Significantly, 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.
Let us 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
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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.

Turning attention on the evidence of PW 4 Dharu, the

material portion records as under:

"In 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.

There 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.
That 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:

"My land is far away from the land of Chambharbuva.

My 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
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Chambharbuva is not on the way leading to Diva.
There is compound of thorny bushes on all sides of land
Chambharbuva. The height of said thorny bushes is
about 7/8 feet.

I have 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.
After 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.
The 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:
But his evidence remained positive as regards the wailing of PW 5.
But 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 accused.
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.

We 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:

"The 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.
That 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
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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.
They 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.
But 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:

"It 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 prosecution case.
We thus have to assess the credit worthiness of this particular
witness and assess the situation ourselves.
Admittedly 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.

Incidentally PW 5 (Baby) happened to be complainant and

we should have a look at the complaint so lodged by PW5.
Relevant 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
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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.
with 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.

At 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.
This 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.

In the 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.
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