five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence = (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.591 OF 2019
(Arising out of Special Leave Petition (Criminal) No.856 of 2018)
PAVAN VASUDEO SHARMA …Appellant
VERSUS
STATE OF MAHARASHTRA THROUGH SECRETARY …Respondent
J U D G M E N T
Uday Umesh Lalit, J.

  1. Leave granted.
  2. This appeal at the instance of original Accused No.1, challenges the
    correctness of the judgment and order dated 24.03.2015 passed by the High
    Court of Judicature at Bombay dismissing his Criminal Appeal No.700 of
    2013.
  3. According to the prosecution, Police Naik Nagare (later examined as
    PW11 in the trial) was robbed of his pistol (service weapon) and walkie talkie
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    2
    set by three persons on 20.12.2005 at about 9.00 pm. Accordingly an FIR was
    registered on 20.12.2005 in respect of said incident, which FIR in the present
    proceedings was placed on record vide Exhibit 106. The FIR did not name
    any person but gave description of all the three persons. The said case was
    separately tried.
  4. On 04.01.2006 PW1-PSI Dabir received a phone call that one injured
    person was lying near a motorcycle on Mumbai-Pune highway. Said PW1
    went to the spot and took the injured to the hospital where he was declared
    dead. On the basis of motorcycle driving licence found in the trousers of the
    deceased, he was identified as one Bhima Waghmare. The family members
    were, thereafter, informed and FIR Exhibit 13 was lodged pursuant to which
    an offence was registered vide C.R.No.5 of 2006. The investigation
    commenced and body was sent for post-mortem. PW3 Dr. Joshi conducted
    the post-mortem and found the following external injuries:-
    “(1) Fire arm injury. Right side inframammary
    region, 13 cm below and medial to left
    mammary gland.
    (2) Burn injury due to firm arm on left thigh. Two in
    number. 9 cm. below iliac left side admeasuring
    2 ½ cm. x 1 cm. Superficial to deep. Dark black
    in colour with red center.
    (3) Abrasion over 9 cm. below iliac region left side
    8 cm below and 5 cm posterior to anterior
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    3
    superior iliac spine, admeasuring 2 ½ cm x
    superficial to deep.
    (4) Abrasions on body as under:
    (A) Arm medial third anteriorly;
    (B) Elbow posteriorly and
    (C) Wrist anteriorly:
    (D) (a) Thigh middle third.
    (b)Knee joint.”
    Said PW3 Dr. Joshi found the following corresponding internal
    injuries:-
    “Penetrating wound to abdominal wall, peritoneum
    superior side of left lobe of liver, shattering part of it.
    Coming out at inferior side, entering into pancreas,
    shattering out the pancreas, penetrating at two sites at
    mesentery of small intestine. Two cm. in diameter
    each, going posterior medial to left kidney with large
    retro peritoneal and peritoneal region. Fitting lumber
    spine no. 4 and 5 body with indentation and fracture at
    left side of body of L 4 and L 5. Changing the
    direction hitting illiacrest at left Sacra iliac joint.
    Changing direction, getting embedded into para spinal
    muscles and fat left side, directed laterally and
    superiorly. Bullet recovered from above mentioned
    side. Yellowish metal concavity at its base.”
  5. It is the case of the prosecution that when Bhima Waghmare was shot,
    the firm arm used in the transaction was the same service weapon which was
    robbed from PW11 Police Naik Nagare. Soon after the murder, two cell
    phones belonging to Bhima Waghmare were also allegedly robbed, one of
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    4
    them being a cell phone of Nokia Company with cell number 9850520922.
    This mobile was later used in the case of kidnapping of a boy named Akash
    Lokhande, who was kidnapped on 13.01.2006 and the calls for ransom were
    stated to have been made from the very same cell phone to PW 12 Sanjay
    Lokhande, father of the boy. An FIR was registered in relation to said
    kidnapping on 13.01.2006 and said case was also tried separately.
  6. During the course of investigation of the kidnapping case, information
    was received by the police that said Akash Lokhande was confined in a
    building in Vimannagar, Pune. Accordingly, a raid was arranged and when
    the police entered said building, they found Pavan Vasudeo Sharma
    (Accused No.1), Pankaj Ramgopal Jagaria (Accused No.2), Vasudeo Sharma
    and Rajendra Gaud to be present there. Those persons were apprehended.
    During his personal search, a 9 mm pistol (service revolver) and two
    live cartridges were recovered from Accused No.1. Two cell phones were
    also found from him. In the search of Accused No.2, a chopper was found.
    All those four persons came be to apprehended in kidnapping case. The
    recovered pistol was sent for forensic analysis. The forensic analyst found
    that the bullet which was recovered from the stomach of deceased Bhima
    Waghmare, was fired from the same pistol. The live cartridge that was
    recovered from Accused No.1 was test fired by the forensic analyst from the
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    5
    same pistol and the features of the firing pin impression on the cartridge
    tallied with those found from the bullet recovered from the body of deceased
    Bhima Waghmare.
    All the four apprehended persons were put up for identification by
    PW11 Police Naik Nagare and according to the witness he could identify
    Accused Nos.1 and 2. However, no documentation as regards the Test
    Identification Parade was produced on record in the present trial.
  7. After completion of investigation, Accused Nos.1 and 2 were tried for
    having committed the offences including the murder of said Bhima
    Waghmare, punishable under Sections 302, 392 read with Section 34 of the
    Indian Penal Code, Section 37(1) read with Section 135 of the Bombay
    Police Act and Section 3 (25) of the Indian Arms Act.
  8. PW2 Seema widow of the deceased Bhima Waghmare stated in her
    deposition that her husband was having two mobile numbers and one of
    them was 9850520922. She accepted that in her first reporting she had
    expressed suspicion against some other persons including professional rivals
    of her husband. PW5 Sachin Mahadev Shinde, Nodal Officer of Idea
    Cellular Company stated that mobile phone number 9850520922 was
    subscribed by one Sanjay S. Roy having his address as Sai Prasad Foods
    Ltd., Telco Road, First Floor, near Raka Gas Company, Chinchwad Station,
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    6
    Pune-411019. He also produced the record of calls details vide Exhibit 55
    showing relevant pages of call details with regard to period January 2006
    and February 2006 about user of the mobile. PW6 Senior Police Inspector
    Pandurang Udhavrao Kohimkar was the Investigating Officer in the matter.
    He did not depose about any Test Identification Parade nor did he produce
    any record regarding identification of Accused Nos. 1 and 2 by PW11 Police
    Naik Nagare. PW12 Sanjay Lokhande, father of Akash Lokhande testified
    that demands for ransom were made from him and the communication was
    received from mobile number 9850520922. During his testimony he also
    mentioned that the person who was making the demand had casually
    mentioned that they had killed a person at Karjat.
  9. It was the case of the prosecution that the pistol seized from the
    Apellant-Accused No.1 was a service weapon which was entrusted to PW11
    Police Naik Nagare, which weapon was snatched from him on 20.12.2005.
    It was the same weapon which was found to be used in the commission of
    offence of murder of Bhima Waghmare. There was no direct evidence in the
    form of any eyewitness account which was available on record and the
    prosecution mainly relied upon certain circumstances in support of its case.
    The circumstantial evidence in the matter was based mainly on two
    features:-
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    7
    a) Recovery of mobile phone which was allegedly used for making
    demands of ransom; and
    b) Seizure of 9 mm pistol as aforesaid.
  10. Apart from these two circumstances, reliance was also placed on the
    alleged extra judicial confession made by those demanding ransom in their
    telephonic conversation with PW12-Sanjay Lokhande. Considering these
    circumstances to be clinching and pointing towards nothing but the guilt of
    the accused, the Additional Sessions Judge, Pune, vide his judgment dated
    11.01.2011 convicted said Accused Nos. 1 and 2 for the offences punishable
    under Sections 302, 392 read with Section 34 IPC, Section 37(1) read with
    Section 135 of the Bombay Police Act and Section 3 (25) of the Indian Arms
    Act and sentenced them to suffer life imprisonment under the first count,
    rigorous imprisonment for two years under the second count, rigorous
    imprisonment for 15 days under the third count and rigorous imprisonment
    for six months under the fourth count.
  11. Both the convicted accused challenged their conviction and sentence
    by preferring two appeals being Criminal Appeal No.700 of 2013 and
    Criminal Appeal No.1056 of 2013. As regards Accused No.1, the High
    Court found that the prosecution had established its case and there was
    sufficient evidence to prove that he was involved in the crime relating to the
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    8
    murder of Bhima Waghmare. The High Court, however, found that there
    was no material to connect Accused No.2 with the crime and, therefore,
    acquitted him of the charges levelled against him under Sections 302, 392 of
    IPC and under Section 3(25) of the Indian Arms Act but maintained his
    conviction and sentence insofar as offence under Section 37(1) read with
    Section 135 of the Bombay Police Act was concerned.
  12. It is a matter of record that the acquittal of Accused No.2 has not been
    challenged by the State and has attained finality.
  13. The facts narrated above bring out the following features:-
    a) Going by FIR at Exhibit 106, three persons were responsible
    for robbing PW11 Police Naik Nagare of his service
    weapon. Though the description of all three persons was
    given in FIR Exhibit 106, no Test Identification Parade was
    undertaken when four suspects were apprehended during
    investigation of the kidnapping case. No material in that
    behalf is produced on record. Nothing is clear on record as
    to who was the third person.
    b) According to PW11 Police Naik Nagare he had lost
    consciousness for a while after he was assaulted by those
    three persons; that after he regained consciousness, he dialed
    100 from his mobile and intimated about the loss of his
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    9
    service weapon and walkie talkie. It is somewhat
    incongruent that the persons who robbed him of his service
    weapon and walkie talkie would leave his mobile intact.
    c) In terms of version of PW2 Seema, mobile number
    9850520922 was subscribed by her husband Bhima
    Waghmare. On the other hand, the evidence led by the
    prosecution itself in the form of testimony of PW5 Sachin
    Mahadev Shinde shows that mobile number 9850520922
    was subscribed by one Sanjay S Roy. Again, the
    prosecution has failed to establish the link, if any, between
    said Sanjay S Roy and Bhima Waghmare and whether said
    Sanjay S Roy had ever handed over his mobile to Bhima
    Waghmare.
    d) PW2 Seema in her original version had expressed suspicion
    about certain professional rivals of her husband.
    e) The assertion that one of the persons making ransom calls
    had disclosed that they had killed a person at Karjat did not
    come in the examination-in-chief of PW12 Sanjay Lokhande
    but appeared in his cross-examination. It was thus not the
    specific case of the prosecution that any extra judicial
    confession was made to PW12 Sanjay Lokhande.
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    10
    f) The matter has one more dimension. While ordering
    acquittal of Accused No.2, insofar as principal charges are
    concerned, his conviction for offence under Section 37(1)
    read with Section 135 of the Bombay Police Act was
    maintained by the High Court. We, thus, have to proceed on
    the footing that Accused No. 2 was also guilty of snatching
    the service weapon of PW11 Police Naik Nagare but not of
    murder.
    g) There was a gap of about 15 days between the snatching of
    the service weapon and murder.
  14. With the acquittal of Accused No.2 of the principal charge under
    Section 302, we are now called upon to see whether the material on record
    sufficiently establishes that it was Accused No.1 alone who was guilty of the
    offence punishable under Section 302 IPC.
  15. Two circumstances which are principally relied upon by the
    prosecution are already mentioned hereinabove. The first circumstance
    regarding mobile phone is not proved at all. The mobile number was not
    subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S.
    Roy. No link between these two persons has been established nor any bill in
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    11
    the name of said Bhima Waghmare was produced on record. Since the
    evidence that the mobile number was subscribed by said Sanjay S. Roy was
    led by the prosecution itself, it cannot be assumed that said mobile number
    was, in fact, subscribed by Bhima Waghmare. The connection which would
    link the accused with the murder of Bhima Waghmare, on this front is
    completely missing. As regards the second circumstance, it is true that the
    bullet recovered from the body of the deceased matched with the service
    weapon which was allocated to PW11 Police Naik Nagare but the theory that
    the weapon was snatched by the accused is not sufficiently established. No
    Test Identification Parade was held and if held, no material in that behalf has
    been produced on record. The second circumstance, therefore, is not
    sufficiently established as against the accused.
  16. The law on the point of appreciation of cases based on circumstantial
    evidence is very clear. It was laid down by this Court in Sharad Birdhichand
    Sarda vs. State of Maharashtra1
    as under:-
    “153. A close analysis of this decision would show that
    the following conditions must be fulfilled before a case
    against an accused can be said to be fully established:
    (1) the circumstances from which the
    conclusion of guilt is to be drawn should be
    fully established.
    1 (1984) 4 SCC 116
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    12
    It may be noted here that this Court indicated that the
    circumstances concerned “must or should” and not “may
    be” established. There is not only a grammatical but a
    legal distinction between “may be proved” and “must be
    or should be proved” as was held by this Court in
    Shivaji Sahabrao Bobade v. State of Maharashtra2
    where the observations were made: [SCC para 19, p.
    807: SCC (Cri) p. 1047]
    “Certainly, it is a primary principle that the
    accused must be and not merely may be guilty
    before a court can convict and the mental
    distance between ‘may be’ and ‘must be’ is
    long and divides vague conjectures from sure
    conclusions.”
    (2) the facts so established should be
    consistent only with the hypothesis of the guilt
    of the accused, that is to say, they should not
    be explainable on any other hypothesis except
    that the accused is guilty,
    (3) the circumstances should be of a
    conclusive nature and tendency,
    (4) they should exclude every possible
    hypothesis except the one to be proved, and
    (5) there must be a chain of evidence so
    complete as not to leave any reasonable
    ground for the conclusion consistent with the
    innocence of the accused and must show that
    in all human probability the act must have
    been done by the accused.”
  17. These five golden principles, if we may say so,
    constitute the panchsheel of the proof of a case based on
    circumstantial evidence.”
    2 (1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783
    CRIMINAL APPEAL NO. 519 OF 2019 (@ SLP(Crl)No.856 OF 2018)
    Pavan Vasudeo Sharma vs. State of Maharashtra through Secretary
    13
  18. Applying the principles as culled out in the aforesaid decision, which
    have stood the test of time, in our view, the matter is not free from doubt. The
    circumstances relied upon must rule out every single hypothesis except the
    guilt of the person accused of an offence. There are too many missing links in
    the present matter and in our considered view, the material on record does not
    exclude every single hypothesis except the guilt of the man.
  19. We, therefore, give benefit of doubt to the Appellant. This appeal is,
    therefore, allowed and the Appellant is acquitted of the charges levelled
    against him. He be set at liberty forthwith unless his presence is required in
    connection with any other offence.
    ..………….……………J.
    (Uday Umesh Lalit)
    ..………….……………J.
    (Indu Malhotra)
    New Delhi,
    March 25, 2019.