Supreme Court of India
SUNILversusSTATE OF MAHARASHTRA
- Citation
- 2008 INSC 1165
- Decided
- 16 October 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The prosecution failed to establish the appellant's presence at the scene, rendering the conviction under Section 302 r.w.s. 149 IPC untenable.
Summary
The appellant Sunil, originally accused No.6, was convicted by the trial court and the Bombay High Court for murder under Section 302 read with Section 149 of the Indian Penal Code, along with several other offences, based primarily on the testimony of two eyewitnesses. The prosecution alleged that Sunil had caught hold of the deceased during the assault, but the two key witnesses – the victim's father (PW2) and the resident of the house where the incident occurred (PW6) – both testified that they had never seen Sunil at the scene. Sunil maintained that he was approximately 200 km away from the village at the relevant time, a claim the lower courts dismissed by surmising he could have traveled back using different vehicles. The Supreme Court examined whether the evidence established Sunil's presence at the place of occurrence and found it insufficient, noting the reliance on conjecture. Consequently, the Court held that the prosecution failed to prove the essential element of participation, set aside the conviction, and acquitted Sunil of all charges.
Issues considered
- Whether the prosecution proved the appellant's presence at the scene of the murder sufficient to sustain a conviction under Section 302 read with Section 149 IPC.
- Whether the reliance on surmised travel possibilities constitutes a valid basis for conviction.
Legislation cited
- Indian Penal Code, 1860s. 143, s. 144, s. 147, s. 148, s. 149, s. 302, s. 506
Subjects
murdercommon intentioneyewitness testimonyacquittalIPCcriminal lawpresence of accusedappellate reviewsurmise
Judgment
(2008] 14 S.C.R. 533
•
SUNIL A
- v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1620 of 2008)
OCTOBER 16, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA,JJ.]
Penal Code, 1860: s. 302 r. w. s. 149 - Conviction under -
Correctness of- On facts, held: Not correct- Evidence of wit- c ,_
nesses did not establish presence of accused at the place of
occurrence.
The trial Court convicted the appellant under s.302
. r.w. s.149 IPC, ss. 143, 144, 147, 148 and s. 506 r.w. 149
IPC on the basis of evidence of eyewitnesses. High Court D
affirmed the conviction. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1. The evidence of PWs 2 and 6 did not es tab-·
lish the presence of the appellant at the place of occur- E
rence. PW 2 is the father of the deceased and PW 6 is the
person in front of whose house the occurrence took place.
PW 2 in his cross examination clearly stated that he did
not state before police that the appellant caught hold of
-· the deceased. Similarly, PW 6 on whose evidence great F
emphasis was laid by the courts below, categorically de-
scribed the presence of various accused persons, the
weapons held by thein and the individual overt acts. He,
however, categorically admitted that he had not seen the
appellant at the scene of occurrence. It is of some signifi- . G ·
cance that t_he appellarit,took the positive stand that he
was not in the village at the relevant point of time and was
'
at the distance '
of nearly 200 km from the place of occur-
rence. The trial, court. and High Court referred to this as-
533 .. H
...... - \
534 SUPREME COURT REPORTS [2008] 14 S.C.R.
" ~
A pect but came to conclusion based on surmises that he
could have come back by changing one vehicle to an-
other for travelling the distance from the place where he
had gone to the place of occurrence. In view of the afore-
said infirmities, the inevitable conclusion is that the pros-
B ecution failed to establish the accusations so far as the
appellant is concerned. He is acquitted of the charges. t-~
[Para 7] [537 D to H; 538-A]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1620 of 2008
c
From the final Judgment and Order dated 20.4.2007 of
the High Court of Judicature of Bombay in Criminal Appeal No.
235 of 2006
AV. Sawant, S.S. Rangrej, N.Y. Deshmukh, Neetu S.
/
D Chauhan and Rameshwar Prasad Goyal for the Appellant.
·y-
Aparjita Singh and Ravindra Keshavrao Adsure for the
Respondent.
The Judgment of the Court was delivered by
E
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
-
'
Bench of the Bombay High Court, Aurangabad Bench dismiss-
ing the appeals filed by several accused persons. The present
F appeal is by original accused No. 6 (hereinafter ·referred to as ~,_.,,
the A6). He was convicted for various offences punishable un-
der the Indian Penal Code, 1860 (in short the 'IPC') and sen-
tenced to undergo custodial imprisonment and fine with default
stipulation. The High Court dismissed the appeal so far as the
G present appellant is concerned, we are not concerned with the
other appeals. f ,,f..
+
3. Prosecution version in a nutshelltis as follows:
AS.I. Yadav Satpute(P.W. 11) who was attached to police
station, Pathardi and was on duty as aPolice Station officer on
H
SUNIL v. STATE OF MAHARASHTRA 535
[DR. ARIJIT PASAYAT, J.]
---4
7.3.1998, received a phone call at about 2230 hrs. informing A
him that th1::re was stone pelting at Rangar Galli and, therefore,
he sent the necessary police force. He made an entry at sr. no.
30 in the station diary and at about 10.45 p.m. sent a message
to the Control Room and the other police stations. An entry in
this behalf was recorded in the station diary at sr. no. 32. Sanjay 8
Shahane (P.W. 4) came to the police station and AS.I. Satpute
--~ (P.W. 11) recorded the report of Sanjay (P.W. 4) at Exh. 125. An
entry in this behalf was accordingly made in the station diary at
sr. no.33. Sanjay Shahane (P.W. 4) immediately left the police
station on receiving message that his uncle Jaikumar (P.W. 2) c
had become unconscious. Thereafter at about 2355 hrs., origi-
nal accused No.13 Pratibha came to the police station and gave
a report in respect of a non-cognizable offence. An entry in re-
spect thereof was made in the station diary at sr. no. 34. Origi-
nal accused No.1 OAmal and juvenile offender Rama were re-
D
ferred to the hospital as they had sustained minor injuries. The
·y Xerox copy of the entries in the station diary are Exh. 156. A.P.I.
Shinde (P.W. 12) who was also attached to Police Station,
Pathardi took over the investigation of Crime No.33 of 1998
from AS.I. P.W. 11 Satpute as the crime had been registered
on the basis of the first information report of Sanjay Shahane E
(P.W.4). AP.I. Shinde (P.W. 12) received a copy of the state-
ment of Digambar (P.W. 1). On 8.3.1998, AP.I. Shinde accord-
ingly visited the mortuary and drew the inquest panchnama of
the dead bodies of Dhananjay and Santosh vide inquest
~- panchnamas at Exhs. 116 and 117 in the presence of witnesses. F
Thereafter on the same day he visited the scene of the offence
at about 9.30 A.M. and drew the scene of the offence
panchnama at Exh. 111 in the presence of P.W. 1 Digambar.
The scene of the offence was pointed out by P.W. 4 Sanjay
Shahane and the. spot is a narrow lane to the south of the main G
4 road of Pathardi. The narrow lane which is the scene of the of-
fence is known as Rangar Galli. Deceased Dhananjay had been
killed in front of the house of one Pandurang Kasar while de-
ceased Sanjay had been killed in front of the house of one
Bhagirath Bajaj. The lane was of a width of about 4 ft. with ston_e H
536 SUPREME COURT REPORTS [2008] 14 S.C.R.
A flooring. Dried bloodstains were noticed in front of the house of
Bhagirath Bajaj as well as in front of the house of Pandurang .
Kasar. The distance between the two spots where the murder
of deceased Sanjay and deceased Dhananjay had been com-
mitted is at about 10 ft. The spot panchnama further records
B that at a distance of 25 ft. house of one Vilas Rodi is situated
and an electric bulb is affixed on the door of his house. At a
distance of 30 ft. towards the southern side, there is an electric f---
pole with tube light. A Ganpati temple is at a distance of 300 ft.
and adjacent to the said Ganpati temple is the house of com-
e plainant. On the same day, accused Mukund, accused Rajendra,
accused Santosh, accused Satish, accused Manoj, accused
Rakesh and accused Sunil came to be arrested vide arrest
.panchnama at Exh. 152. On the same da,y at about 12.30 p.m.,
accused Sandip, accused Sharad, accused Rama, accused
Amel, accused Sanjay, accused Sunil, accused Nitin and ac-
0
cused Pratibha came to be arrested vide arrest panchnama at
Exh. 153. The accused who were found to have sustained inju-
ries were referred to Rural Hospital. On 8.3.1998, statements
of 12 witnesses came to be recorded. The clothes of deceased
Dhananjay and Santosh were seized vide seizure memo at Exh.
E 142 in the presence of P.W. 9 Guiab.
The trial court relied on the evidence of some of the wit-
nesses who were stated to be eye witr:iesses and found the
appellant guilty as noted below:
F S.NO Offence Punishable Sentence Fine
under Section
1. Sec. 302, r/w Sec. Imprisonment Fine of Rs. 1000/-
149 IPC for life IDRI for one month
2. Sec. 143 of IPC R. I. for 1 month Fine of Rs.100/-
G IDRI for 5 days
3. Sec. 144 of IPC R. I. for 6 m.onth Fine of Rs.100/-
IDRI for 5 days
4. . Sec. 147 of IPC R. I. for 6 month Fine of Rs.100/-
IDRI for 5 days
H
SUNIL v. STATE OF MAHARASHTRA 537
[DR ARIJIT PASAYAT, J.]
Sec. 148 of IPC R.l.for6 month Fine of Rs.100/- A
5.
IDRI for 5 days
6. Sec.506 r/w 149 R.l.for6 month Fine of Rs.100/-
of IPC IDRI for 5 days
In appeal the High Court confirmed the conviction and the
8
sentence qua the appellant.
-~ 4. In support of the appeal learned counsel for the appel-
lant submitted that only role attributed to the appellant is that he
caught hold of the deceased while facilitating the assault by oth- c
ers.
5. Learned counsel for the State supported the judgment
of the trial court and the High Court so far as the present appel-
lant is concerned.
D
6. It is to be seen from the evidence of PWs 2&6 that the
presence of the present appellant has not been established.
' r PW 2 is the father of the deceased and PW 6 is the person in
front of whose house the occurrence took place. PW 2 in his
cross examination has clearly stated that he had not stated be-
E
fore police that the appellant had caught hold of the deceased.
Similarly, PW 6 on whose evidence great emphasis was laid
by the courts below, referred to the presence of several others.
He categorically described the prese!)ce·efthe various accused
persons, weapons held by them and individual overt acts. He,
__, however, categorically admitted that he had not seen the present F
appellant at the scene of occurrence. It is of some significance
that the appellant took the positive stand that he was not in the
village at the relevant point of time and was at the distance of
nearly 200 km from the place of occurrence. The trial court and
the High Court referred to this aspect but came to conclusions G
based on surmises that he could have come back by changing
one vehicle to another for travelling the distance from the place
~ 4-
where he had gone to the place of occurrence.
7. In view of the aforesaid infirmities the inevitable conclu-
H
538 SUPREME COURT REPORTS [2008] 14 S.C.R.
A sion is that the prosecution has failed to establish the accusa-
tions so far as the present appellant is concerned. He is acquit-
}----
/
ted of the charges and his conviction is set aside. The bail bonds
executed by him for giving effect to the order of bail passed by
this Court's order dated 25.1.2008 shall stand discharged.
B 8. Appeal is allowed.
D.G. Appeal allowed.
/
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