SHANKARversusTHE STATE OF MAHARASHTRA

                         [2023] 2 S.C.R. 661                               661


                             SHANKAR                                       A
                                   v.
                 THE STATE OF MAHARASHTRA
                  (Criminal Appeal No. 954 of 2011)
                          MARCH 15, 2023                                   B
        [AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]
       Penal Code 1860: s. 302 r/w 34 – Conviction under, on basis
of circumstantial evidence – Sustainability of – Prosecution case
that the victim assaulted with sharp weapons, sustained 22 ante-
                                                                           C
mortem injuries leading to instantaneous death – On the fateful
day, the victim went to the house of PW 8, the accused persons also
came there and the appellant in the latter appeal hurled abuses on
the victim and asked him why he along with his friend had assaulted
his brother, though the victim denied the assault – Later, the accused
invited the victim for drinks and all of them left the house of PW 8       D
on motorcycles – An hour later, the dead body of the victim was
found by the complainant – There was no eye-witness – Based on
the circumstantial evidence, the trial court convicted the appellants
u/s. 302/34 and sentenced them to life imprisonment – High Court
upheld the same – On appeal, held: If doubt lingers with respect to
                                                                           E
the probability or conclusiveness of any circumstance relied on by
the prosecution, forming a link in the chain of circumstances pointing
to the guilt of convict, despite the existence of concurrent findings,
the evidence has to be scrutinized by this Court so as to ensure that
the totality of the evidence and circumstances relied on, did constitute
a complete chain and it points to the guilt of the convict – On facts,     F
correctness of the last seen version emanating from PW-8 becomes
doubtful, especially against the appellants – Oral testimonies of
PW-8 and PW-10 are at variance about the last seen and it becomes
inconclusive – Prosecution failed to prove the alleged motive –
Though the victim met with a homicidal death, it cannot be said that
                                                                           G
the rest of the circumstantial evidence culled out by the courts below
unerringly point to the culpability of the appellants in the homicidal
death of the deceased – Even the recovery of the weapon and the
dress, at the instance of the appellant not conclusive – Conviction
of the appellants cannot be maintained, thus, given benefit of doubt
and are acquitted – Evidence.                                              H
                                  661
662            SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A           Allowing the appeals, the Court
            HELD: 1.1In view of the law relating circumstantial
      evidence and the scope of interference in exercise of power under
      Article 136 of the Constitution of India in respect of cases where
      concurrent findings are recorded by the lower courts, if doubt
B     lingers with respect to the probability or conclusiveness of any
      circumstance relied on by the prosecution, forming a link in the
      chain of circumstances pointing to the guilt of convict, despite
      the existence of concurrent findings, the evidence has to be
      scrutinized by this Court so as to ensure that the totality of the
      evidence and circumstances relied on, did constitute a complete
C     chain and it points to the guilt of the convict and it did not brook
      any hypothesis other than the guilt of the convict. [Para 13][671-
      B-C]
            1.2 There can be no doubt with respect to the fact that in a
      case where the conviction is based on circumstantial evidence,
D     motive assumes great significance. Just like complete absence
      of motive failure to establish motive after attributing one, should
      also give a different complexion in a case based on circumstantial
      evidence and it will certainly enfeeble the case of prosecution.
      [Para 18][674-A, C-D]
E            1.3 The prosecution alleged a motive. According to the
      prosecution on 29.09.2001, the deceased along with his friend
      assaulted the brother of appellant in the latter appeal (the first
      accused in the Sessions Trial). It is also the case of the prosecution
      that after the accused persons entered the house of PW-8, the
F     first accused/the appellant in the latter appeal hurled abuses on
      the deceased and asked him why he along with his friend assaulted
      his brother. It is also the case of the prosecution that though the
      deceased denied any such occurrence, the said appellant
      continued to say that the deceased had done dishonesty and
      assaulted his brother. After alleging motive the prosecution had
G     failed to establish the same. In this context, it is to be noted that
      the trial court made a positive finding that the prosecution had
      miserably failed to establish the alleged motive. Despite the said
      finding of the trial court and despite that issue was pointedly raised
      before the High Court, obviously the High Court in the impugned
H
        SHANKAR v. THE STATE OF MAHARASHTRA                           663


judgment did not consider the said aspect at all. This failure on     A
the part of the High Court is a ground specifically taken in this
appeal. The failure to establish the alleged motive in a case based
on circumstantial evidence, had weakened the case of the
prosecution. This aspect should have been given proper weight
by the courts below. [Para 21][675-G; 676-A-D]
                                                                      B
      1.4. When the factual position obtained from the oral
testimonies of PW-8 and PW-10, the High Court which observed
that the circumstance of ‘last seen’ is an important circumstance
in the case on hand and its proof would depend upon the quality
and nature of the testimonies of PW-8 and PW-10 should have
bestowed a threadbare, serious consideration to answer the            C
question whether the evidence of PW-10 would lend corroboration
to the evidence of PW-8. So also, the courts below in the overall
circumstances, ought to have carefully considered the question
whether the solitary oral evidence of PW-8 would conclusively
prove the factum of the deceased lastly seen in the company of        D
the deceased. On the careful scrutiny of the evidence of PW-8
and PW-10 it is held that both the trial court and the High Court
have failed to make a proper exercise of that task taking into
account the fact that the prosecution relies only on circumstantial
evidence to establish the guilt of the accused. Thus, virtually the
evidence of PW-10 not only failed to lend corroboration to the        E
evidence of PW-8 but also puts it under a shadow of doubt. Hence,
the High Court went wrong in holding that as relates the said
circumstantial evidence of ‘last seen’ the evidence of PW-8 gets
corroboration from the evidence of PW-10 and in that view of the
matter, in agreeing with the conclusion of the trial court that the   F
prosecution has succeeded in proving that the deceased was lastly
seen with the accused, conclusively. [Para 25][678-G-H; 679-A-
D]
      1.5 It is unsafe to rest on the sole testimony of PW-8 to
apply the ‘last seen theory’ in this case against the appellants      G
especially, going by PW-8 he had only nodding acquaintance with
them. Thus, in a nutshell the correctness of the last seen version
emanating from PW-8 becomes doubtful, especially against the
appellants. The oral testimonies of PW-8 and PW-10 are at

                                                                      H
664            SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A     variance about the last seen and it becomes inconclusive for the
      reasons mentioned. The prosecution has miserably failed to prove
      the alleged motive. In such circumstance, though the deceased
      had met with a homicidal death it cannot be said that the rest of
      the circumstantial evidence culled out by the courts below
      unerringly point to the culpability of the appellants in the homicidal
B
      death of the deceased. Even the recovery of the weapon and the
      dress, at the instance of the appellant in the latter appeal cannot,
      by itself, be conclusive as admittedly, the panch witnesses for
      their recovery also did not support the prosecution. The
      remaining circumstances relied on by the prosecution and held
C     as proved by the courts below would not unerringly point to the
      guilt of the appellants. Thus, it is unsafe on the said circumstances
      to maintain the conviction of the appellants; thus, the benefit of
      doubt is extended to them. The appellants are acquitted. [Paras
      28-30][680-F-H; 681-A-C]
D           Prakash v. State of Rajasthan (2013) 4 SCC 668 :
            [2013] 2 SCR 458; Sharad Birdhichand Sarda v. State
            of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
            Anwar Ali & Anr. v. State of Himachal Pradesh (2020)
            10 SCC 166:[2020] 9 SCR 878; Shivaji Chintappa Patil
E           v. State of Maharashtra (2021) 5 SCC 626; Sarbir Singh
            v. State of Punjab 1993 SCC (Cri) 860; Brijlal Prasad
            Sinha v. State of Bihar (1998) SCC (Cri) 1382; Tomaso
            Bruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC
            178 : [2015] 1 SCR 721; Nandu Singh v. State of
            Madhya Pradesh (now Chhattisgarh) 2022 SCC
F           OnLine SC 1454 – referred to.
                             Case Law Reference
      (1993) SCC (Cri) 860            referred to                Para 5
      (1998) SCC (Cri) 1382           referred to                Para 7
G
      [2013] 2 SCR 458                referred to                Para 8
      [1985] 1 SCR 88                 referred to                Para 8
      [2015] 1 SCR 721                referred to                Para 11
H
         SHANKAR v. THE STATE OF MAHARASHTRA                                   665


[2020] 9 SCR 878                   referred to                  Para 19        A
(2021) 5 SCC 626                   referred to                  Para 20
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
954 of 2011.
      From the Judgment and Order dated 12.08.2009 of the High Court           B
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal
No. 7 of 2004.
      With
      Criminal appeal No. 955 of 2011.
                                                                               C
      Sanjay Jain, Sunil Kumer Verma, Advs. for the Appellant.
     Sachin Patil, Siddharth Dharmadhikari, Geo Joseph, Risvi
Muhammed, Durgesh Gupta, Aaditya Aniruddha Pande, Advs. for the
Respondent.
      The Judgment of the Court was delivered by                               D
      C. T. RAVIKUMAR, J.
       1. The captioned appeals, by lifers, are directed against the self-
same judgment and order dated 12.08.2009 passed by the High Court
of Judicature at Bombay, Bench at Nagpur in Criminal Appeal No.7 of
2004. The former appeal was filed by the second and third appellants           E
therein who were accused Nos.2 and 3 in Sessions Trial No.80 of
2002 on the file of Additional Sessions Judge, Bhandara. The sole
appellant in the latter appeal was the first appellant in Criminal Appeal
No.7 of 2004 and he was the first accused in Sessions Trial No.80 of
2002. During the pendency of the trial, the fourth accused breathed            F
his last and the first appellant in the former appeal viz., Sri Hiralal died
during its pendency. Hence, qua him the former appeal stands abated.
As per the judgment of the Trial Court the appellants were convicted
under Sections 302 read with Section 34 of the Indian Penal Code,
1860 (hereinafter, ‘the IPC’) for having committed murder of one Rahul
Pundlik Meshram (hereafter referred to as ‘the deceased’). They were           G
sentenced to suffer imprisonment for life besides imposing a fine of
Rs.500/- and in default of payment of fine they are to suffer rigorous
imprisonment for one month each. As per the impugned judgment the
conviction and sentences thus imposed by the Trial Court were
confirmed. Hence, these appeals.                                               H
666             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           2. The prosecution case, in nutshell, is as follows: -

              On 12.12.2001 at about 5.00 pm, the deceased along with a friend
      went to Indira Gandhi Ward at Bandhara where the house of Chintaman
      Giddu Gatey (PW-8) situates. After parking his Luna Moped the deceased
      went inside of the house of Chintaman Giddu Gatey (PW-8), leaving his
B     friend near the vehicle. Deceased and Chintaman Giddu Gatey (PW-8)
      smoked ganja and while so the deceased accused No.4 (Raju Pande),
      Hiralal, the first appellant in the former appeal who is no more and accused
      Nos.1 and 3, who are the surviving convicts (hereinafter referred to as
      ‘the appellants’), came there on two motorcycles and they too, went
C     inside the house of Chintaman Giddu Gatey (PW-8). All of them smoked
      ganja. While so, appellant in the latter appeal viz., accused No.1
      questioned the deceased as to why he along with his friend Parag
      Sukhdeve assaulted his brother. It is worthy to note at this juncture that
      according to the prosecution, on 29.09.2001, the deceased along with his
D     friend Parag Sukhdeve assaulted the brother of the appellant in the latter
      appeal. Though, the deceased denied assault on his brother, the appellant
      in the latter appeal (the first accused) continued to say that the deceased
      did dishonesty and assaulted his brother. Though, the friend of the
      deceased who was waiting outside came inside and asked him to come
      out the deceased remained there and thereupon his friend left the place.
E     Later, the first accused invited the deceased for drinks and all of them,
      including the deceased, left the house of Chintaman Giddu Gatey (PW-
      8) on two motorcycles by about 6 p.m. After about an hour, the dead
      body of the deceased was found by one Manoj Goswami, a resident of
      Paladi. The case is that upon being informed by the villagers, Manoj
F     Goswami (PW1) went to the spot and on finding the dead body he went
      to Bhandara Police Station and lodged a report. As per the prosecution,
      the deceased was taken by the accused on one of the motorcycles
      through National Highway No.6 towards Lakhani town. To the north of
      the said National Highway and at a distance of about 10 kilometers from
      Bhandara there was another road leading to village Paladi and on the
G
      side of the said Bhandara-Paladi road, at about by one kilometer from
      National Highway No.6, they stopped their motorcycles and started
      assaulting the deceased using sharp weapons. The deceased sustained
      22 ante-mortem injuries, all over his body and met with instantaneous
      death.
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            SHANKAR v. THE STATE OF MAHARASHTRA                              667
                     [C. T. RAVIKUMAR, J.]

       3. Admittedly, there was no eye-witness in this case. Based on        A
the circumstantial evidence, the Trial Court found the appellants guilty
and convicted and sentenced them, as mentioned above. Aggrieved by
the conviction and consequent sentence, the surviving accused viz.,
accused Nos. 1 to 3 in the said Sessions Trial preferred appeal before
the High Court. After considering the circumstances relied on by the
                                                                             B
Trial Court and despite its reservation against some of the procedures
followed the High Court confirmed the conviction and sentence imposed
on appellants by the Trial Court holding that certain proven circumstances
are material circumstances and would complete the requisite chain.
       4. The appellants in the captioned appeals challenge the findings     C
of conviction and consequential imposition of sentence raising various
grounds. But, before considering the contentions against the concurrent
findings raised by the appellants, we find it only appropriate to refer to
the following decisions on the law relating circumstantial evidence.
      5. In the decision in Sarbir Singh v. State of Punjab1, this Court     D
observed and held thus: -
         “5. …But in a case based on circumstantial evidence neither
         the accused nor the manner of occurrence is known to the
         persons connected with the victim. The first information report
         is lodged only disclosing the offence, leaving to the               E
         investigating agency to find out the offender.
         6. It is said that men lie but circumstances do not. Under the
         circumstances prevailing in the society today, it is not true in
         many cases. Sometimes the circumstances which are sought
         to be proved against the accused for purpose of establishing        F
         the charge are planted by the elements hostile to the accused
         who find out witnesses to fill up the gaps in the chain of
         circumstances. In countries having sophisticated modes of
         investigation, every trace left behind by the culprit can be
         followed and pursued immediately. Unfortunately it is not
         available in many parts of this country. That is why courts         G
         have insisted (i) the circumstances from which the conclusion
         of guilt is to be drawn should in the first instance be fully
         established; (ii) all the facts so established should be

1
    1993 SCC (Cri) 860                                                       H
668                SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A               consistent only with the hypothesis of the guilty of the accused
                and should be such as to exclude every hypothesis but the
                one sought to be proved; (iii) the circumstances should be of
                a conclusive nature; and (iv) the chain of evidence should
                not have any reasonable ground for a conclusion consistent
                with the innocence of the accused.
B
                6. Further it was held therein as under:-
                7. …It has been impressed that suspicion and conjecture
                should not take the place of legal proof. It is true that the
                chain of events proved by the prosecution must show that
C               within all human probability the offence has been committed
                by the accused, but the court is expected to consider the total
                cumulative effect of all the proved facts along with the motive
                suggested by the prosecution which induced the accused to
                follow a particular path. The existence of a motive is often an
                enlightening factor in a process of presumptive reasoning in
D               cases depending on circumstantial evidence.
                7. In Brijlal Prasad Sinha v. State of Bihar2, this Court held
      thus:
                “In a case of circumstantial evidence the prosecution is bound
E               to establish the circumstances from which the conclusion is
                drawn must be fully proved; the circumstances should be
                conclusive in nature; all the circumstances so established
                should be consistent only with the hypothesis of guilt and
                inconsistent with the innocence; and lastly the circumstances
                should to a great certainty exclude the possibility of guilt of
F               any person other than the accused. The law relating to
                circumstantial evidence no longer remains res integra and it
                has been held by catena of decisions of this Court that the
                circumstances proved should lead to no other inference except
                that of the guilt of the accused so that, the accused can be
G               convicted of the offences charged. It may be stated as a rule
                of caution that before the court records conviction on the
                basis of circumstantial evidence, it must satisfy itself that the
                circumstances from which inference of guilt could be drawn
                have been established by unimpeachable evidence and the
      2
H         (1998) SCC (Cri) 1382
            SHANKAR v. THE STATE OF MAHARASHTRA                              669
                     [C. T. RAVIKUMAR, J.]

         circumstances unerringly point to the guilt of the accused and      A
         further, all the circumstances taken together are incapable of
         any explanation on any reasonable hypothesis save the guilt
         of the accused.”
      8. In the decision in Prakash v. State of Rajasthan3, this Court
took note of the following principles laid down regarding the law relating   B
circumstantial evidence in Sharad Birdhichand Sarda v. State of
Maharashtra4: -
         “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:                     C
         (1) the circumstances from which the conclusion of guilt is to
         be drawn should be fully established. 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          D
         proved’ and ‘must be or should be proved’ as was held by this
         Court in Shivaji Sahabrao Bobade v. State of Maharashtra
         [(1973) 2 SCC 793] where the following observations were
         made:
         19. …”Certainly, it is a primary principle that the accused         E
         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         F
         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,                                                           G
         (4) they should exclude every possible hypothesis except the
         one to be proved, and

3
    (2013) 4 SCC 668
4
    (1984) 4 SCC 116                                                         H
670               SUPREME COURT REPORTS                          [2023] 2 S.C.R.


A              (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.
B              154. These five golden principles, if we may say so, constitute
               the panchsheel of the proof of a case based on circumstantial
               evidence.”
             9. After noting the above five golden principles, it was held in
      Prakash’s case (supra), that they would constitute the Panchsheel of
C     the proof of a case based on circumstantial evidence and conviction
      could be sustained on the basis of last seen, motive and recovery of
      incriminating articles in pursuance of the information given by the accused
      if those five golden principles of the proof of a case based on circumstantial
      evidence are satisfied.

D            10. Virtually, the law laid down relating circumstantial evidence in
      those decisions are unfailingly followed by this Court while dealing with
      the cases where conviction is rested on circumstantial evidence.
             11. We are also fully aware of the position that normally in an
      appeal by special leave under Article 136 of the Constitution of India
E     when concurrent findings of conviction and sentence are against the
      appellants / convicts there would be no scope for interference except in
      exceptional circumstances. In the decision in Tomaso Bruno & Anr. v.
      State of Uttar Pradesh5, a Three Judge Bench of this Court held:-
               “42. By and large, this Court will not interfere with the
F              concurrent findings recorded by the courts below. But where
               the evidence has not been properly appreciated, material
               aspects have been ignored and the findings are perverse
               under Article 136 of the Constitution, this Court would
               certainly interfere with the findings of the courts below though
               concurrent. In a case based on circumstantial evidence,
G              circumstances from which inference of guilt is sought to be
               drawn should be fully proved and such circumstances must
               be of conclusive nature pointing to the guilt of accused. There
               shall be no gap in such chain of circumstances….”

      5
H         (2015)7 SCC 178
          SHANKAR v. THE STATE OF MAHARASHTRA                                       671
                   [C. T. RAVIKUMAR, J.]

      12. Heard, Mr. Sanjay Jain and Mr. Sunil Kumar Verma, learned                 A
counsel for the appellant and Mr. Sachin Patil, learned counsel for the
respondent-State.
       13. In view of the law relating circumstantial evidence exposited
under the decisions referred hereinbefore and the scope of interference
in exercise of power under Article 136 of the Constitution of India in              B
respect of cases where concurrent findings are recorded by the Lower
Courts, we are of the considered view if doubt lingers with respect to
the probability or conclusiveness of any circumstance relied on by the
prosecution, forming a link in the chain of circumstances pointing to the
guilt of convict, despite the existence of concurrent findings, the evidence
has to be scrutinized by this Court so as to ensure that the totality of the        C
evidence and circumstances relied on, did constitute a complete chain
and it points to the guilt of the convict and it did not brook any hypothesis
other than the guilt of the convict. Upon hearing the learned counsel on
both sides and on careful consideration of the evidence and materials on
record, we are of the considered view that the case at hand is a befitting          D
case where such an exercise is required. Before we undertake such an
exercise, it is only proper to look into the questions whether the death of
Rahul Pundlik Meshram is homicidal in nature. As a matter of fact,
there is not much dispute on this aspect.
       14. The evidence of PW-13 with Exhibit-54 postmortem report                  E
made the Courts below to concurrently come to the conclusion that death
of Rahul Pundlik Meshram is homicidal in nature. The postmortem report
would reveal the presence of 22 ante-mortem injuries on the body of the
deceased. It would also reveal that out of the 22 ante-mortem injuries,
except 7 of these are incised wounds. The said 7 injuries are serious
stab injuries inflicted on different parts of the body. It is taking into account   F
the nature of all those injuries that PW-13 opined that the cause of death
of deceased was due to multiple injuries on the chest and back involving
the vital organs such as heart and lungs. We have absolutely no hesitation
to hold in the said circumstances that the Courts below have rightly
arrived at the conclusion, in the light of the evidence that death of Rahul         G
Pundlik Meshram is homicidal in nature.
       15. Admittedly, the conviction of the appellants is rested on
circumstantial evidence only. As per the Trial Court, the following
circumstances were relied upon by the prosecution to establish the guilt
of the accused, including the appellants, before it: -                              H
672              SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A           “1. Visit of the deceased Rahul Meshram to the house of
                  Chintaman Gatey (P.W.8).
            2.     While the deceased was at the house of Chintaman, the
                   accused nos. 1 to 3 and deceased accused Raju Pande
                   arrived at the house of Chintaman Gatey.
B           3.     The motive altercation had taken place between the
                   accused on one side and the deceased on the other side.
            4.     That, the accused persons, under the pretext of
                   consuming liquor persuaded the deceased to
                   accompany them.
C
            5.     That, the deceased and the accused nos. 1 to 3 and
                   deceased accused Raju Pande, left the house of
                   Chintaman Gatey, on two motor-cycles.
            6.     That, immediately, there after i.e. after the deceased left
D                  the house of Chintaman Gatey with accused persons,
                   he was found met with homicidal death.
            7.     Recovery of the weapon from the accused No.1 with
                   the blood stains of Group ‘A’ which was of the deceased.
            8.     The Opinion of the Dr. Sau. Manjusha Rangari that by
E                  the said weapon, the injuries which were found on the
                   dead body of the deceased, could be caused.
            9.     The discovery of the fact of burning clothes stained
                   with blood by the accused No. 1 and those clothes were
                   belonged to accused nos. 1 and 2.
F           10.    The full pant belonged to accused No.1 was stained
                   with blood, of blood group “A” which was of the
                   deceased.”
            16. After considering the said relied on circumstances, the Trial
      Court held that the prosecution had succeeded in establishing eight
G     circumstances, as under: -
            “1. The visit of deceased Rahul Meshram at the house of
                 Chintaman Gatey.
            2.     Arrival of the accused No. 1 to 3, alongwith the
                   deceased accused, at the house of Chintman Gatey.
H
           SHANKAR v. THE STATE OF MAHARASHTRA                               673
                    [C. T. RAVIKUMAR, J.]

      3.     That, the accused No.1 to 3 and deceased accused                A
             succeeded in persuading the deceased to join them for
             consuming liquor.
      4.     That, the accused No.1 to 3, deceased accused Raju
             Pande, and deceased Rahul Meshram left the house of
             Chintaman Gatey, on two motor cycles.                           B
      5.     That immediately after the deceased and the accused
             persons left the house of Chintaman Gatey, the
             deceased was found murdered.
      6.     At the instance of the accused No.1 weapon having
             handle at one end and the other end sharp and edged             C
             one, was recovered, which was found stained with blood,
             of Group “A” which was of the deceased.
      7.     Doctor opined that by the said weapon, the injuries
             could be caused, which were found on the dead-body
             of the deceased.                                                D
      8.     The accused No.1 burnt the clothes at place near the
             water tank in M.S.E.B, Colony, Bhandara.”
       17. Consequently, the Trial Court considered the question whether
the culled-out circumstances would form a complete chain unerringly
                                                                             E
pointing to the guilt of the accused and that accused alone and obviously,
the conviction was entered into upon answering that question in the
affirmative. According to the Trial Court, the following three proven
circumstances are sufficient to constitute circumstantial evidence
unerringly connecting the accused with the homicidal death: -
                                                                             F
      “1.    That, while the deceased was at the house of Chintaman
             Gatey, deceased accused Raju Pande along with the
             accused Nos.1 to 3. came to the house of Chintaman
             Gatey and succeeded in persuading the deceased to
             accompany them, for consuming liquor.
      2.      That the deceased in the company of the accused Nos.1          G
             to 3 and deceased accused Raju left the house of
             Chintaman Gatey, on two moto cycles.
      3.     That, soon thereafter, the deceased was found
             murdered.”
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674               SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A            18. There can be no doubt with respect to the fact that in a case
      where the conviction is based on circumstantial evidence, motive assumes
      great significance. A Three Judge Bench of this Court in Nandu Singh
      v. State of Madhya Pradesh (now Chhattisgarh)6 by its judgment
      dated 25.02.2022, after observing thus, held as under:-
B              “It is not as if motive alone becomes the crucial link in the
               case to be established by the prosecution and in its absence
               the case of prosecution must be discarded. But, at the same
               time, complete absence of motive assumes a different
               complexion and such absence definitely weighs in favour of
               the accused.”
C
             We may add here that just like complete absence of motive failure
      to establish motive after attributing one, should also give a different
      complexion in a case based on circumstantial evidence and it will certainly
      enfeeble the case of prosecution.

D           19. In the decision in Nandu Singh’s case an earlier decision of
      this Court in Anwar Ali & Anr. v. State of Himachal Pradesh7, was
      quoted with agreement, thus: -
               “24. Now so far as the submission on behalf of the accused
               that in the present case the prosecution has failed to establish
E              and prove the motive and therefore the accused deserves
               acquittal is concerned, it is true that the absence of proving
               the motive cannot be a ground to reject the prosecution case.
               It is also true and as held by this Court in Suresh Chandra
               Bahri v. State of Bihar (1995 Supp (1) SCC 80) that if motive
               is proved that would supply a link in the chain of
F              circumstantial evidence but the absence thereof cannot be a
               ground to reject the prosecution case. However, at the same
               time, as observed by this Court in Babu (Babu v. State of
               Kerala, (2010) 9 SCC 189), absence of motive in a case
               depending on circumstantial evidence is a factor that weighs
G              in favour of the accused. In paras 25 and 26, it is observed
               and held as under: (Babu case, SCC pp. 200-01).
                      “25. In State of U.P. v. Kishanpal (2008) 16 SCC 73),
                  this Court examined the importance of motive in cases of
      6
          2022 SCC OnLine SC 1454
      7
H         (2020) 10 SCC 166
            SHANKAR v. THE STATE OF MAHARASHTRA                               675
                     [C. T. RAVIKUMAR, J.]

             circumstantial evidence and observed: (SCC pp. 87-88,            A
             paras 38-39)
             ‘38. … the motive is a thing which is primarily known to
             the accused themselves and it is not possible for the
             prosecution to explain what actually promoted or excited
             them to commit the particular crime.                             B
             39. The motive may be considered as a circumstance which
             is relevant for assessing the evidence but if the evidence is
             clear and unambiguous and the circumstances prove the
             guilt of the accused, the same is not weakened even if the
             motive is not a very strong one. It is also settled law that     C
             the motive loses all its importance in a case where direct
             evidence of eyewitnesses is available, because even if there
             may be a very strong motive for the accused persons to
             commit a particular crime, they cannot be convicted if the
             evidence of eyewitnesses is not convincing. In the same
             way, even if there may not be an apparent motive but if the      D
             evidence of the eyewitnesses is clear and reliable, the
             absence or inadequacy of motive cannot stand in the way
             of conviction.’
         26. This Court has also held that the absence of motive in a
         case depending on circumstantial evidence is a factor that           E
         weighs in favour of the accused. (Vide Pannayar v. State of
         T.N. (2009) 9 SCC 152)”.
      20. In the decision in Shivaji Chintappa Patil v. State of
Maharashtra8, after referring to the decision in Anwar Ali’s case
(supra), this Court observed thus: -                                          F
         “27. Though in a case of direct evidence, motive would not
         be relevant, in a case of circumstantial evidence, motive plays
         an important link to complete the chain of circumstances.”
       21. In the case on hand, the prosecution alleged a motive. According
                                                                              G
to the prosecution on 29.09.2001, the deceased along with his friend
Parag Sukhdeve assaulted the brother of appellant in the latter appeal
(the first accused in the Sessions Trial). It is also the case of the
prosecution that after the accused persons entered the house of PW-8,
8
    (2021) 5 SCC 626                                                          H
676             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     Chintaman Giddu Gatey the first accused/the appellant in the latter appeal
      hurled abuses on the deceased and asked him why he along with his
      friend Parag Sukhdeve assaulted his brother. It is also the case of the
      prosecution that though the deceased denied any such occurrence, the
      said appellant continued to say that the deceased had done dishonesty
      and assaulted his brother. After alleging motive as above, prosecution
B
      had failed to establish the same. In this context, it is to be noted that the
      Trial Court made a positive finding that the prosecution had miserably
      failed to establish the alleged motive. Despite the said finding of the Trial
      Court and despite that issue was pointedly raised before the High Court,
      obviously the High Court in the impugned judgment did not consider the
C     said aspect at all. This failure on the part of the High Court is a ground
      specifically taken in this appeal. In the light of the decision in Anwar
      Ali’s case (supra) and Shivaji Chintappa Patil’s case(supra), and also
      based on what we held in respect of the impact of failure to establish the
      alleged motive in a case based on circumstantial evidence it can only be
      held that the said failure had weakened the case of the prosecution. This
D     aspect should have been given proper weight by the courts below.
             22. Now, we will proceed to consider the other circumstance(s)
      relied on and whether they would make a complete chain of
      circumstances and dispel the hypothesis of the innocence of the appellant.
      In that context, it is only appropriate to refer to the circumstance mainly,
E     relied on and held as proved by the High Court for confirming the
      conviction of the appellants viz., that the deceased was ‘lastly seen’ in
      the company of the appellants just prior to the finding of his dead body.
      Having observed thus, the High Court held that the proof thereof would
      depend upon the quality and nature of the testimonies of Chintaman
F     (PW-8) and Dhanraj (PW-10).
             23. Paragraph 14 of the impugned judgment would reveal that
      after referring to evidence based on ‘last seen theory’, recovery of
      weapons and seizure of clothes the High Court observed that the
      following twin material circumstances would complete the requisite
      chain, namely: -
G
            “(a) On the day of incident, at about 4.00 p.m., deceased
            Rahul and all the appellants were present at the house of
            Chintaman (PW-8).
            (b) Deceased Rahul left the house of Chintaman at about 5.00
H           p.m., on the day of incident along with the appellants and
         SHANKAR v. THE STATE OF MAHARASHTRA                                   677
                  [C. T. RAVIKUMAR, J.]

      within two hours, the dead body of Rahul with multiple incise            A
      and stab wounds was found lying by the side of the road, 10
      kms. away from Bhandara city. There is nothing on record to
      show that deceased Rahul had enmity with anybody other
      than the appellants and in absence thereof, the possibility of
      somebody else committed assault on the deceased and would
                                                                               B
      have caused so many multiple injuries is completely ruled
      out.”
        24. With respect to the material circumstance referred to as (a) in
the impugned judgment, as extracted above, what is stated by the High
Court is totally against the weight of evidence. The evidence of PW-8
when juxtaposed to that of PW-10 would reveal the said position. It is         C
stated therein that on the day of incident, at about 04.00 pm, the deceased
Rahul Pundlik Meshram and all the appellants were present at the house
of Chintaman (PW-8). In a case rested on circumstantial evidence and
‘last seen’ theory is relied on as a link in the chain of circumstances, the
evidence relating the time at which the deceased was lastly seen with          D
the accused has to be proved conclusively as when it is proximate with
the time of finding the dead body the burden to establish the innocence
would be that of the accused. Indisputably, in contrast to the aforesaid
statement therein what is deposed by Chintaman (PW-8) is that on the
day of the incident at about 05.00 pm, the deceased came to his house
and then asked for a glass of water and thereafter, Raju Pande (the            E
deceased accused No.4) along with three other persons with respect to
whom he got only nodding acquaintance, came to the house. He would
also depose that thereafter Raju Pande started hurling abuses on the
deceased. Both the Trial Court and the High Court noted the case of the
prosecution that Raju Pande hurled abuses on the deceased for having           F
assaulted the brother of accused No. 1, along with his friend Sri Parag
Sukhdeve. However, a scanning of the oral testimony of PW-8 would
show that he did not depose that Raju Pande hurled abuses on the
deceased on the ground of assault on the brother of accused No. 1.
Naturally, he did not mention the name Parag Sukhdeve as well. So also,
it would go to show that he had stoutly denied involvement in the sale of      G
ganja, or availability of ganja in his house. According to him Raju Pande
and accused No. 1 alone had come to the chappari of his house and the
remaining two accused were standing in the courtyard of his house.
That apart, as per PW-8 it was about 06:00 PM that accused Raju Pande
and the deceased left his house. Thus, it is obvious that the statement in     H
678             SUPREME COURT REPORTS                             [2023] 2 S.C.R.


A     the material circumstance mentioned as ‘a’ in paragraph 14 of the
      impugned judgment is based on the oral testimony of Dhanraj (PW-10).
      It is true that PW-10, deposed that at about 04.00 pm he was returning
      home from S.T. Stand and then he found two motorcycles parked at the
      house of Chintaman (PW-8), that at the house of Chintaman, 4 to 5
      persons were then sitting and at that time accused Nos. 2 and 3 viz.,
B
      deceased first appellant and the surviving appellant in the former appeal,
      whom he knew by face and one Pande were present. It is pertinent to
      note that PW-10 did not depose about the presence of the deceased in
      the house of Chintaman when himself, Pande and the other accused
      persons were there in the said house. Naturally, in his oral testimony he
C     had not deposed anything about the hurling of abuses by Pande on the
      deceased. Another aspect of his oral testimony is that he deposed about
      the query made by Pande about the identity of a pregnant girl who resides
      behind the house of Chintaman. According to him, Chintaman told Pande
      that he did not know anything about that girl and then Pande asked him
      about her. On being told that he did not know anything about her, Pande
D
      asked him to leave that place, going by the deposition of PW-10. At this
      juncture, it is to be noted that PW-10 did not make any mention about
      this aspect in his evidence. It is true that the Trial Court found that this is
      an improved version by PW-10. Anyway, the fact revealed from the oral
      testimony of PW-10 is that he saw the accused persons, including Raju
E     Pande and the appellants herein, at the house of Chintaman (PW-08)
      immediately after 04:00 PM on the day of occurrence and he did not
      speak about the presence of the deceased in the house of PW-8. That
      apart, according to him, Raju Pande was enquiring with him and PW-8
      about a pregnant girl who was residing behind the house of PW-8. It is
      also relevant to note that the evidence on record would further go to
F
      show that PW-8 had not mentioned about the alleged hurling of abuses
      by deceased accused Raju Pande on the deceased in his statement under
      Section 161 of Cr.P.C. Above all, PW-8 did not mention the presence of
      PW-10 at his residence anytime during the period from 04:00 PM to
      06:00 PM on that fateful day.
G            25. When the above being the factual position obtained from the
      oral testimonies of PW-8 and PW-10, the Hon’ble High Court which
      observed that the circumstance of ‘last seen’ is an important circumstance
      in the case on hand and its proof would depend upon the quality and
      nature of the testimonies of PW-8 and PW-10 should have bestowed a
H     threadbare, serious consideration to answer the question whether the
         SHANKAR v. THE STATE OF MAHARASHTRA                                    679
                  [C. T. RAVIKUMAR, J.]

evidence of PW-10 would lend corroboration to the evidence of PW-8.             A
So also, the courts below in the overall circumstances, ought to have
carefully considered the question whether the solitary oral evidence of
PW-8 would conclusively prove the factum of the deceased lastly seen
in the company of the deceased. On our careful scrutiny of the evidence
of PW-8 and PW-10 as above we are constrained to hold that both the
                                                                                B
Trial Court and the High Court have failed to make a proper exercise of
that task taking into account the fact that the prosecution relies only on
circumstantial evidence to establish the guilt of the accused. According
to us, the discussion as above would go to show that virtually the evidence
of PW-10 not only failed to lend corroboration to the evidence of PW-8
but also puts it under a shadow of doubt. Hence, according to us, the           C
Hon’ble High Court went wrong in holding that as relates the said
circumstantial evidence of ‘last seen’ the evidence of PW-8 gets
corroboration from the evidence of PW-10 and in that view of the matter,
in agreeing with the conclusion of the Trial Court that the prosecution
has succeeded in proving that the deceased was lastly seen with the
                                                                                D
accused, conclusively.
         26. The above-mentioned situation constrained us to scan the
evidence of PW-8 scrupulously to find out whether his sole testimony is
unimpeachable and impeccable to conclusively establish the joining up
of the deceased and the accused/convicts at the house of PW-8 at the
relevant point of time as alleged by the prosecution. In this context, it is    E
to be noted that the prosecution case would suggest that the house of
PW-8 is a hub of ganja smokers. But then, PW-8 stoutly denied of any
kind of involvement with ganja business. Hence, the question is why it
still attracts and allures persons? If the prosecution case is to be believed
then what made all those persons viz., the deceased, the accused/convicts       F
and PW-10, visit the house of PW-8 at that time? Obviously, there is no
indicatory material on that count. It is to be noted that it is not the case
of the prosecution that the accused persons, including the appellants,
reached there on coming to the know about the presence of the deceased.
Going by the case of the prosecution the deceased reached the home of
PW-8 on his Luna Moped along with his friend and he went inside after           G
leaving the friend near the parked vehicle. PW-8 did not say that he had
friendship with the deceased and he deposed only to the effect that he
knew the deceased and the deceased on occupying a seat asked for a
glass of water. Soon, thereafter, Raju Pande and the three others with
whom he had only nodding acquaintances came to his house. PW-8                  H
680             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A     would further depose that thereupon Raju Pande hurled abuse on the
      deceased and then the deceased pleaded that he did no wrong. As noted
      earlier, it has come out in evidence that the act of hurling of abuse by
      Raju Pande on the deceased was not recorded in the previous statement
      of PW-8 recorded under Section 161, Cr.P.C. Above all, PW-8 in his
      testimony before the court did not depose anything even to suggest that
B
      hurling of abuse by Raju Pande was because of the assault on his brother
      by the deceased and his friend Parag Sukhdeve. Then, how and for
      what reason this incident was alleged as the motive for the murder of
      the deceased Rahul? Who introduced this story as part of the prosecution
      case before the court. Certainly, it cannot be said that it was PW-10
C     who spoke to that effect as his testimony would reveal he had not even
      spoken about the presence of the deceased at the house of PW-8 when
      the accused/convicts were seen there.
             27. Another aspect revealed from the evidence on record is that
      as per PW-10 when he entered the house of PW-8 after 04:00 p.m. on
D     the day of occurrence, Raju Pande and the others were present there
      and Raju Pande asked him about a pregnant girl who was residing behind
      the house of PW-8. According to PW-10, Raju Pande asked the same to
      PW-8 as well and both of them revealed their lack of knowledge about
      such a girl and then Raju Pande asked PW-10 to leave the place and
      thereupon he left the place. It would suggest, if it was true that he reached
E     there along with others ahead of the deceased, in search of such a girl
      lest why he got infuriated/dejected over it and asked PW-10 to leave the
      place. PW-8 did not speak about the presence of PW-10 and also about
      such a query made by Raju Pande.
             28. For all the above reasons and circumstances, it is unsafe to
F     rest on the sole testimony of PW-8 to apply the ‘last seen theory’ in this
      case against the appellants especially, going by PW-8 he had only nodding
      acquaintance with them.
             29. Thus, in a nutshell the correctness of the last seen version
      emanating from PW-8-Chintaman becomes doubtful, especially against
G     the appellants herein. As noticed earlier, virtually, the oral testimonies of
      PW-8 and PW-10 are at variance about the last seen and it becomes
      inconclusive for the reasons mentioned hereinbefore. We have also found
      that the prosecution has miserably failed to prove the alleged motive. In
      such circumstance, though the deceased had met with a homicidal death
H     it cannot be said that the rest of the circumstantial evidence culled out
          SHANKAR v. THE STATE OF MAHARASHTRA                                   681
                   [C. T. RAVIKUMAR, J.]

by the courts below unerringly point to the culpability of the appellants in    A
the homicidal death of Rahul Pundlik Meshram. Even the recovery of
the weapon and the dress, at the instance of the appellant in the latter
appeal cannot, by itself, be conclusive as admittedly, the panch witnesses
for their recovery also did not support the prosecution. In our considered
view, the remaining circumstances relied on by the prosecution and held
                                                                                B
as proved by the courts below would not unerringly point to the guilt of
the appellants.
       30. Thus, in our view, it is unsafe on the aforesaid circumstances
to maintain the conviction of the appellants; we thus, extend to them the
benefit of doubt. Accordingly, we order for the acquittal of the appellants.
The appeals are thus allowed, upsetting the judgments and orders of the         C
High Court as also that of the court of Session. The bail bonds executed
by the appellants stand discharged.

Nidhi Jain                                                   Appeals allowed.
(Assisted by : George J. and Rakhi, LCRAs)                                      D




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                                                                                G




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