VISHWAJEET KERBA MASALKARversusSTATE OF MAHARASHTRA

                [2024] 10 S.C.R. 753 : 2024 INSC 788

                     Vishwajeet Kerba Masalkar
                                  v.
                        State of Maharashtra
                    (Criminal Appeal No. 213 of 2020)
                             17 October 2024
             [B.R. Gavai,* Prashant Kumar Mishra and
                      K.V. Viswanathan, JJ.]

                          Issue for Consideration
       Whether the conviction of the appellant and the death sentence
       awarded for the alleged murders of his wife, daughter and mother
       were justified.

                                Headnotes†
       Penal Code, 1860 – ss.302, 307 and 201 – Case based on
       circumstantial evidence – Case of the prosecution that the
       appellant informed about a robbery at his house and the
       murder of his wife, daughter and mother and the injuries
       caused to his neighbour-PW-12 – Later, he was arrested on
       the basis of suspicion of committing the said murders as it
       was revealed during investigation that he had an extra-marital
       affair – Appellant was convicted and sentenced to death –
       Justification:
       Held: Prosecution case mainly rested on the ocular testimony
       of PW-12 however, the same is discarded being full of
       contradictions – Thus, the case becomes one of circumstantial
       evidence wherein the circumstances from which the conclusion of
       guilt is to be drawn should be fully established – 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 probabilities, the act
       must have been done by the accused – Trial court relied on
       circumstances such as recovery of hammer allegedly used in
       the crime; recovery of appellant’s blood-stained clothes; and
       CCTV Footage – Recovery of the hammer having bloodstains
       was from a canal which was open and accessible to one and all
       and the place where the accused took the police to show where


* Author
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       he had concealed the incriminating article was already within the
       knowledge of the police – It is improbable that a hammer soaked
       in water for 3 days would still retain the blood-stains – Recovery
       of the appellant’s clothes and jewellery was also from a place
       which was open and accessible to one and all – Further, CCTV
       footage showed that the deceased-appellant’s mother came in
       the building at 03:22 pm and the appellant was seen going out
       of his motorcycle at 04:28 pm however, the High Court itself
       disbelieved the said circumstance – Furthermore, a conviction
       cannot be based solely on the basis of circumstance of motive –
       Suspicion, however strong cannot take the place of proof beyond
       reasonable doubt – An accused is presumed to be innocent unless
       proved guilty beyond reasonable doubt and cannot be convicted
       solely on suspicion – There is not only a grammatical but a legal
       distinction between “may be proved” and “must be or should be
       proved” – It is a primary principle that the accused “must be”
       and not merely “may be” guilty before a court can convict and
       every possible hypothesis except the guilt of the accused has
       to be ruled out – However, the prosecution failed to do so –
       Judgments of the High Court and the trial court, quashed and
       set aside. [Paras 21, 22, 24-28]
       Witness – Solitary witness – Conviction based on the evidence
       of – Permissibility:
       Held: A conviction could be based solely on the basis of the
       evidence of a solitary witness, however, the testimony of such a
       witness should be examined critically and found to be credible
       and trustworthy. [Para 17]

                               Case Law Cited
       Chuhar Singh v. State of Haryana (1976) 1 SCC 879; Sharad
       Birdhichand Sharda v. State of Maharashtra [1985] 1 SCR 88 :
       (1984) 4 SCC 116 : 1984 INSC 121 – relied on.
       Swamy Shraddananda (2) alias Murali Manohar Mishra v.
       State of Karnataka [2008] 11 SCR 93 : (2008) 13 SCC 767 : 2008
       INSC 853 – referred to.

                                 List of Acts
       Penal Code, 1860; Code of Criminal Procedure, 1973; Evidence
       Act, 1872.
[2024] 10 S.C.R.                                                          755

               Vishwajeet Kerba Masalkar v. State of Maharashtra


                                           List of Keywords
       Robbery; Murder of wife, daughter and mother; Circumstantial
       evidence; Chain of evidence; Suspicion; Love affair; Ocular
       testimony; Contradictions; Accused presumed innocent unless
       proved guilty beyond reasonable doubt; Incriminating article;
       Recovery of hammer; Recovery of blood-stained clothes; CCTV
       Footage; Canal; Open and accessible to one and all; Place already
       within the knowledge of police; Motive; Solitary witness; “may be
       proved”; “must be or should be proved”; “must be”; not merely
       “may be” guilty; Death sentence.

                                          Case Arising From

       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 213
       of 2020
       From the Judgment and Order dated 23.07.2019 of the High Court
       of Judicature at Bombay in CONFC No. 2 of 2016

                                     Appearances for Parties

       Ms. Payoshi Roy, K. Paari Vendhan, Siddhartha, S. Prabu
       Ramasubramanian, Bharathimohan M., Santhosh K, P Ashok, Manoj
       Kumar A, Advs. for the Appellant.
       Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
       Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey,
       Ms. Yamini Singh, Advs. for the Respondent.
                        Judgment / Order of the Supreme Court
                                                 Judgment
       B.R. Gavai, J.
1.     The present appeal challenges the final judgment and order dated
       23rd July 2019, passed by the Division Bench of the High Court of
       Judicature at Bombay in Confirmation Case No. 2 of 2016 filed by
       the State of Maharashtra, by which it upheld the separate orders
       of conviction and sentence dated 26th August 2016 and 31st August
       2016 passed by the Additional Sessions Judge, Pune1 in Sessions


1    Hereinafter referred to as “the trial court”.
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       Case No.64 of 2013, thereby convicting the appellant for the
       offences punishable under Sections 302, 307 and 201 of the Indian
       Penal Code, 18602 and sentencing him to death along with a fine
       of Rs. 5,000/- for the offence punishable under Section 302 of IPC,
       rigorous imprisonment for ten years along with fine of Rs. 10,000/-
       for the offence punishable under Section 307 of IPC and rigorous
       imprisonment of three years along with a fine of Rs. 5,000/- for the
       offence punishable under Section 201 of IPC.
2.     Shorn of details, the facts leading to the present appeal are as under:
       2.1 On 4th October 2012, the official at the police control room was
           informed by the appellant about a robbery at his house situated
           at Champaratna Society, Uday Baug, Wanwadi, Pune and
           that his mother-Shobha Masalkar, wife-Archana Masalkar and
           two-year old daughter-Kimaya Masalkar had been killed. The
           appellant further informed that his neighbourer-Madhusudhan
           Kulkarni (PW-12) had also been injured. This information was
           transmitted to Bajirao Dadoba Mohite ACP CID (PW-14), who
           was on duty at Wanawadi Police Station, Pune, who lodged
           a complaint.
       2.2 Based on the complaint of the appellant, a First Information
           Report No.196 of 2012 was registered for commission of an
           offence punishable under Sections 302 and 397 of the IPC
           against unknown persons. It was stated by the appellant in the
           complaint that one gold chain of 8 Tolas, one gold Mangalsutra,
           cash amount of Rs.7,000/-, 3 small rings and 2 almond shaped
           pendants having total value of Rs.3,07,000/- were stolen. The
           three dead bodies were sent to the hospital for post-mortem
           and the neighbourer Madhusudan Kulkarni (PW-12) was also
           sent to the hospital for medical treatment. The panchnama of
           the place of the incident was recorded after Bajirao Dadoba
           Mohite ACP CID (PW-14) had visited the place of occurrence.
       2.3 While recording the spot panchnama, it was observed by
           Bajirao Dadoba Mohite (PW-14) that there were no signs of
           forced entry on both the doors as well as the safety doors
           of the flat of the appellant. A gold Mangalsutra, 3 small gold


2    Hereinafter referred to as “IPC”.
[2024] 10 S.C.R.                                                       757

          Vishwajeet Kerba Masalkar v. State of Maharashtra


          rings, 2 gold almond shaped pendants and cash amount of
          Rs. 7,000/- in one red coloured money purse hidden behind a
          photo frame hanging on the wall of the flat were also found by
          Bajirao Dadoba Mohite (PW-14). Another ash-coloured money
          purse was found in the flat as well. At the place of the incident,
          near the main door of the flat of the appellant, few pieces of
          bangles that were stained with blood and one blood stained
          odhani were also found.
     2.4 During investigation, it was revealed that appellant had a love
         affair with one Gauri Londhe (PW-2). It was stated by the
         appellant’s paramour Gauri Londhe (PW-2) that, when she
         came to know about the appellant’s marriage, she refused to
         marry him but the appellant was ready to leave his wife and
         daughter in order to marry her. It was also seen through the
         CCTV footage of the Saipras Society, which was adjoining
         the flat of the appellant, that at 03:22 PM, appellant’s mother
         (Shobha Masalkar) was seen going towards the flat and at 04:28
         PM, the appellant was seen going out on his motorcycle.
         Based on these facts, the appellant was suspected to have
         committed the murders by the police and so he was arrested
         on 5th October 2012.
     2.5 Post-Mortem of the three deceased persons was conducted. In
         the post-mortem, it was opined that the cause of death of the
         appellant’s daughter (Kimaya Masalkar) was asphyxia due to
         smothering, the cause of death of the appellant’s wife (Archana
         Masalkar) was traumatic and hemorrhagic shock due to head
         injury and the cause of death of the appellant’s mother (Shobha
         Masalkar) was hemorrhagic shock due to head injury.
     2.6 The appellant made a disclosure about keeping his blood-stained
         clothes and Mangalsutra of his wife at a place in M.I.D.C.,
         Hadapsar Area, Pune and he further disclosed about throwing
         the hammer, used for committing the crime, in a canal after
         keeping it in a blue bag. Another disclosure was made by the
         appellant about a consent letter for divorce by his wife which
         was found in a drawer inside his house.
     2.7 After completion of the investigation, charge-sheet was filed
         against the appellant for the offences punishable under
         Sections 302, 307 and 201 of the IPC in the Court of Judicial
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               Magistrate, First Class, Cantonment Court, Pune. Since the case
               was exclusively triable by the Sessions Court, it was committed
               to the Sessions Court for trial. Charges were framed against the
               appellant by the trial court for the commission of the offences
               punishable under Sections 302, 307 and 201 of IPC.
       2.8 To bring home the guilt of the accused, the prosecution examined
           16 witnesses. At the conclusion of the trial, the trial court found
           that the prosecution had proved the guilt of the accused beyond
           reasonable doubt.
       2.9 Vide judgment and order dated 26th August 2016, the appellant
           was convicted for the offences punishable under Sections 302,
           307 and 201 of IPC and vide order dated 31st August 2016 he
           was sentenced to death along with a fine of Rs. 5,000/-, in
           default whereof to suffer rigorous imprisonment of one year
           for the offence punishable under Section 302 of IPC; rigorous
           imprisonment for ten years along with fine of Rs. 10,000/-,
           in default whereof rigorous imprisonment of one year for the
           offence punishable under Section 307 of IPC and rigorous
           imprisonment of three years along with a fine of Rs. 5,000/-,
           in default whereof rigorous imprisonment of six months for the
           offences punishable under Section 201 of IPC.
       2.10 For confirmation of the execution of the death sentence, a
            reference was made by the trial court to the High Court which
            was numbered as Confirmation Case No. 2 of 2016.
       2.11 Vide impugned judgment and order, the High Court upheld
            the order of the trial court convicting the appellant and also
            confirmed the death sentence imposed on him. However, in
            view of Section 415(1) of Code of Criminal Procedure, 19733
            the operation and effect of the impugned judgment was stayed
            till the expiry of period allowed for preferring an appeal before
            this Court.
       2.12 Aggrieved thereby, the present appeal.
3.     We have heard Ms. Payoshi Roy, learned counsel appearing on
       behalf of the appellant and Mr. Siddharth Dharmadhikari, learned
       counsel appearing on behalf of the respondent-State of Maharashtra.


3    Hereinafter referred to as “Cr.P.C.”.
[2024] 10 S.C.R.                                                         759

          Vishwajeet Kerba Masalkar v. State of Maharashtra


4.   Ms. Payoshi Roy, learned counsel appearing on behalf of the
     appellant submits that the High Court and the trial court have grossly
     erred in holding the present appellant guilty for the offence punishable
     under Section 302 of IPC. She submits that the prosecution case
     mainly rests on the evidence of Madhusudhan Kulkarni (PW-12).
     It is submitted that, from the testimony of Madhusudhan Kulkarni
     (PW-12) itself, it would be clear that his testimony is not sufficient to
     base the order of conviction. She submits that, firstly, the statement
     of Madhusudhan Kulkarni (PW-12) recorded under Section 161 of
     Cr.P.C. is recorded belatedly i.e. after 6 days. She further submits
     that there is no explanation at all as to why his statement was
     not recorded for 6 days. She submits that even the testimony of
     the IO would show that the IO did not find it necessary to go to
     the hospital for 6 days to record the statement of Madhusudhan
     Kulkarni (PW-12). She further submits that, from the evidence of
     Madhusudhan Kulkarni (PW-12), it would also be clear that he
     has not witnessed the incident. She submits that the statement of
     Madhusudhan Kulkarni (PW-12) has been recorded by the police
     after he was informed that an FIR has been registered against the
     present appellant for committing the murder of his wife, daughter
     and mother. As such, no credence could be given to the testimony
     of Madhusudhan Kulkarni (PW-12).
5.   Ms. Roy submitted that if the testimony of Madhusudhan Kulkarni
     (PW-12) is discarded, then the only circumstances upon which the
     prosecution relies are recovery of hammer and clothes at the instance
     of the present appellant on a memorandum under Section 27 of the
     Evidence Act, 1872. It is however submitted that the said recoveries
     are all farcical and cannot be relied on. She therefore submitted that
     the present appeal deserves to be allowed.
6.   Ms. Roy submits that, in the event this Court finds that the
     prosecution has proved that the present appellant has committed
     the offence, then the death penalty would not be warranted in the
     facts and circumstances of the case. She submits that there are
     various mitigating circumstances as to be found from the various
     reports placed on record that the appellant was not a hardened
     criminal. She submits that there is nothing on record to establish
     that there is no possibility of the present appellant being reformed.
     She therefore submits that the present case would fall under the
     middle path as laid down by this Court in a catena of judgments
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       including Swamy Shraddananda (2) alias Murali Manohar Mishra
       v. State of Karnataka.4
7.     Per contra, Shri Siddharth Dharmadhikari, learned counsel appearing
       on behalf of the respondent-State submits that the learned trial
       court and the High Court have concurrently on the basis of the
       evidence placed before them come to a considered conclusion that
       the prosecution has proved the case beyond reasonable doubt. He
       submits that the ocular testimony of Madhusudhan Kulkarni (PW-12)
       is corroborated by the other circumstantial evidence. He submits that
       the hammer used in the crime has been recovered on the statement
       of the present appellant recorded under Section 27 of the Evidence
       Act. He further submits that one chhanni is also recovered on the
       basis of the memorandum of the appellant under Section 27 of the
       Evidence Act. The recovery of blood-stained clothes, according to
       the learned counsel, is another circumstance which establishes the
       complicity of the present appellant with the crime in question. He
       further submits that Madhusudhan Kulkarni (PW-12) is an injured
       witness and therefore a greater credence would be attached to his
       testimony.
8.     With the assistance of the learned counsel for the parties, we have
       perused the evidence on record.
9.     The prosecution case mainly rests on the ocular testimony of
       Madhusudhan Kulkarni (PW-12). Madhusudhan Kulkarni (PW-12) is
       the neighbour of the appellant and the deceased. In his testimony,
       Madhusudhan Kulkarni (PW-12) stated that he knew all the three
       deceased persons as well as the appellant. He states that the
       deceased persons as well as the appellant used to reside in his
       neighbourhood. He stated that deceased Shobha Masalkar i.e. the
       mother of the appellant used to do the work of cleaning utensils and
       she was also working in his house. He further stated that deceased
       Shobha had one daughter namely Aboli and that he had helped
       Shobha in the marriage of her daughter Aboli. He further stated that
       there used to be quarrels between the appellant on one hand and
       his mother and wife on the other. He stated that the appellant was
       intending to marry another lady and that he was intending to give


4    [2008] 11 SCR 93 : (2008) 13 SCC 767 : 2008 INSC 853
[2024] 10 S.C.R.                                                        761

           Vishwajeet Kerba Masalkar v. State of Maharashtra


     divorce to his wife Archana. He stated that, he as well as deceased
     Shobha were against this as the appellant was already married.
10. Madhusudhan Kulkarni (PW-12) further stated in his examination- in- chief
    that on the date of the incident, he was in his house and at around
    12:00 Noon, he heard the noises of shouts and cries. When he came
    out, he saw deceased Archana along with her daughter Kimaya crying
    outside their house. He further stated that he asked them as to why
    they were crying outside their house. Thereafter, he came into his
    house. At that time, someone hit on his backside with some weapon.
    Due to which, he fell down and saw that the appellant was holding a
    hammer and was going away. Thereafter, he became unconscious.
    He further stated that he was admitted in the hospital for 6 days. He
    stated that he could not identify the hammer as to whether it was the
    same hammer used by the appellant for the commission of the crime.
11. The testimony of Madhusudhan Kulkarni (PW-12) is full of
    contradictions. Though, he stated in his examination-in-chief that
    the appellant was holding hammer in his hand and he was going
    away, the same did not find place in the statement recorded under
    Section 164 Cr.P.C. by Judicial Magistrate, First Class. He stated that
    he did not remember as to whether he was conscious or not when
    he was admitted in the hospital. In the next breath, he admitted that
    after the incident, some people came to his flat and he asked them
    to call the doctor there only.
12. It will be relevant to refer to the testimony of Dr. Abhijit Sudhakr Bele
    (PW-13) who was attached as Junior Resident Doctor in Sassoon
    Hospital. He stated that on 4th October 2012, when he was on duty,
    Madhusudhan Kulkarni (PW-12) was admitted in the hospital. He
    stated that he gave the history of assault. He stated that on 10th
    October 2012, the statement of Madhusudhan Kulkarni (PW-12)
    was recorded in his presence and at that time, he was conscious
    and oriented.
13. PW-16 is Dr. Tushar Madhavrao Kalekar. He stated that, on 4 th
    October 2012, when he was on duty, Madhusudhan Kulkarni (PW-12)
    was referred to his department from the surgery department for the
    purpose of CT Scan of the brain. He admitted that, initially the patient
    was treated in casualty section and then referred to the surgery
    department. He further admitted that, as per the first noting dated
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       4th October 2012 at 09:55 PM, the case paper Exhibit 93-A indicated
       that the appellant was conscious and oriented. He further admitted
       that the doctor who at the first instance examined the patient is an
       important person who can opine about the nature of injuries.
14. Therefore, a million-dollar question that would arise is if Madhusudhan
    Kulkarni (PW-12) was conscious and oriented at the time of admission
    in the hospital, then why was his statement not immediately recorded.
    Another question that would arise is if Madhusudhan Kulkarni
    (PW-12) had asked the neighbourers, who had come to his flat, to
    call for the doctor, then he naturally would have informed about the
    incident to the neighbourers. However, not a single neighbourer
    is examined to corroborate the version of Madhusudhan Kulkarni
    (PW- 12). On the contrary, his evidence would show that he had
    admitted that he came to know from the police on 4th October 2012
    that in the afternoon of 4th October 2012, the appellant, on account
    of his desire to marry Gouri Londhe (PW-2), he had fought with his
    wife Archana and mother Shobha and killed them with a hammer and
    had smothered by a pillow to death his daughter Kimaya. He also
    stated that the appellant came and assaulted him with the hammer
    so as to prevent him from telling it to the neighbourers. If that be so,
    if the neighbourers arrived immediately on the scene of occurrence,
    then the question would be, what prevented Madhusudhan Kulkarni
    (PW-12) from informing about the incident to the neighbourers. Even
    if his testimony is taken at its face value, it only suggests that he
    heard the noises of shouts and cries, then he immediately came out
    and saw Shobha and Kimaya crying. He only stated that he asked
    them as to why they were crying outside the house. He did not state
    that the wife of the appellant told him that there was a fight between
    the appellant and his wife. From the evidence, it is also not clear as
    to whether the appellant was present in the house or not.
15. In this respect, it will be relevant to refer to the testimony of Bajirao
    Dadoba Mohite (PW-14), Investigating Officer (IO). His testimony
    would reveal that, on the basis of suspicion, the appellant was
    arrested on 5th October 2012 at 09:05 PM. It will also be relevant to
    refer to his cross-examination which reads thus:
            “It is true to say that on 4th itself I realized that the alive
            injured is the important witness in this case. I went on 10th
            in the hospital to meet that injured. Before that I did not
[2024] 10 S.C.R.                                                            763

            Vishwajeet Kerba Masalkar v. State of Maharashtra


            go to the hospital. That injured was not in a position to
            speak and therefore, I have not visited the hospital before
            10th. Prior thereto I have not written letter to the doctor It
            is true to say that till 10th. I have not received information
            from the hospital about the state of that injured.”
16. It can be seen that PW-14 has admitted that on 4th October 2012
    itself, he realised that Madhusudhan Kulkarni (PW-12) was an
    important witness in this case, but he did not go to the hospital before
    10th October 2012 and for the first time, he went to the hospital on
    10th October 2012. He further admitted that prior to 10th October
    2012, he did not write a letter to the doctor as well.
17. Thus, the delay of 6 days in recording the statement of Madhusudhan
    Kulkarni (PW-12) particularly when the evidence of Dr. Abhijit
    Sudhakar Bele (PW-13) shows that Madhusudhan Kulkarni (PW-12)
    had given the history of the incident and Dr. Tushar Madhavrao Kalekar
    (PW-16) admitted that Exhibit 93-A showed that Madhusudhan
    Kulkarni (PW-12) was conscious and oriented casts a serious doubt
    on the testimony of Madhusudhan Kulkarni (PW-12). No doubt that
    a conviction could be based solely on the basis of the evidence of a
    solitary witness, however, the testimony of such a witness is required
    to be found to be credible and trustworthy. It is also necessary to
    examine the testimony of such a witness critically. A reliance in this
    respect could be placed on the three-Judges Bench judgment of this
    Court in the case of Chuhar Singh v. State of Haryana5 which has
    been followed in a catena of cases.
18. As discussed hereinabove, on a deeper scrutiny of the testimony of
    Madhusudhan Kulkarni (PW-12), we do not find that the testimony
    of Madhusudhan Kulkarni (PW-12) is one which would inspire
    confidence in the mind of the Court to base the conviction for the
    offence punishable under Section 302 of IPC. Firstly, the statement of
    Madhusudhan Kulkarni (PW-12) is recorded after 6 days. Secondly,
    when the evidence shows that he was conscious and oriented on
    the date of the incident, no neighbourer has been examined to
    corroborate the testimony of Madhusudhan Kulkarni (PW-12) though
    even according to Madhusudhan Kulkarni (PW-12), after the incident,
    the neighbourers had come and he himself had asked them to get


5   (1976) 1 SCC 879
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       the doctor there only. Thirdly, his testimony does not show that he
       has witnessed the incident and he himself admitted that he had given
       the statement after he was informed by the police that the present
       appellant had committed the crime.
19. If the testimony of Madhusudhan Kulkarni (PW-12) is discarded,
    then the case would become the one of circumstantial evidence.
20. The law with regard to conviction on the basis of circumstantial
    evidence has very well been crystalised in the judgment of this Court
    in the case of Sharad Birdhichand Sharda v. State of Maharashtra,6
    wherein this Court held thus:
            “152. Before discussing the cases relied upon by the High
            Court we would like to cite a few decisions on the nature,
            character and essential proof required in a criminal case
            which rests on circumstantial evidence alone. The most
            fundamental and basic decision of this Court is Hanumant
            v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952
            SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case
            has been uniformly followed and applied by this Court in
            a large number of later decisions up-to-date, for instance,
            the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh
            [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v.
            State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC
            656] . It may be useful to extract what Mahajan, J. has
            laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952
            SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
                    “It is well to remember that in cases where
                    the evidence is of a circumstantial nature, the
                    circumstances from which the conclusion of
                    guilt is to be drawn should in the first instance
                    be fully established, and all the facts so
                    established should be consistent only with the
                    hypothesis of the guilt of the accused. Again,
                    the circumstances should be of a conclusive
                    nature and tendency and they should be such
                    as to exclude every hypothesis but the one



6   [1985] 1 SCR 88 : (1984) 4 SCC 116 : 1984 INSC 121
[2024] 10 S.C.R.                                                        765

          Vishwajeet Kerba Masalkar v. State of Maharashtra


                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.”
          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.
          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 Maharashtra [(1973) 2 SCC
          793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] 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
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               (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.
          154. These five golden principles, if we may say so,
          constitute the panchsheel of the proof of a case based
          on circumstantial evidence.”
21. It can thus clearly be seen that it is necessary for the prosecution
    that the circumstances from which the conclusion of guilt is to be
    drawn should be fully established. The Court held that it is a primary
    principle that the accused ‘must be’ and not merely ‘may be’ proved
    guilty before a court can convict the accused. It has been held that
    there is not only a grammatical but a legal distinction between ‘may
    be proved’ and ‘must be or should be proved’. It has been held that
    the facts so established should be consistent only with the guilt of
    the accused, that is to say, they should not be explainable on any
    other hypothesis except the one where the accused is guilty. It has
    further been held that the circumstances should be such that they
    exclude every possible hypothesis except the one to be proved. It
    has been held that 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
    probabilities, the act must have been done by the accused.
22. It is settled law that the suspicion, however strong it may be, cannot
    take the place of proof beyond reasonable doubt. An accused cannot
    be convicted solely on the ground of suspicion, no matter how strong
    it is. An accused is presumed to be innocent unless proved guilty
    beyond a reasonable doubt.
23. In the light of these guiding principles, we will have to examine the
    present case.
24. The circumstances which have been relied on by the learned trial
    court are – (i) recovery of hammer; (ii) recovery of blood-stained
    clothes; and (iii) CCTV Footage which shows that deceased Shobha
    had come in the building at 03:22 PM and where the appellant was
    seen going out of his motor-cycle at 04:28 PM. However, the High
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          Vishwajeet Kerba Masalkar v. State of Maharashtra


     Court itself has disbelieved the said circumstance in paras 58-59
     of its judgment.
25. Insofar as the first circumstance i.e. recovery of the hammer alleged
    to have been used in the crime is concerned, according to the
    prosecution, the said hammer was recovered at the instance of the
    appellant on a statement recorded under Section 27 of the Evidence
    Act. Firstly, it is to be noted that the said recovery is from a canal.
    The recovery panchnama shows that the said hammer was having
    blood-stains. It is the prosecution case that the hammer was packed
    in a bag which was put in water. It is to be noted that the hammer
    was recovered from a place which is open and accessible to one
    and all. It is improbable that a hammer which was soaked in water
    for 3 days would still retain the blood-stains. It is to be noted that
    the investigating agency had to take the service of two swimmers
    to take the bag out from the canal. The evidence of Santosh Bhau
    Awaghade (PW-11) who is a panch witness would show that when the
    police along with the appellant reached the spot, two persons were
    already there and they were searching as per the say of the police
    party. It is thus clear that the place where the accused had taken the
    police party to show where he had concealed the incriminating article
    was already within the knowledge of the police. It is also difficult to
    believe that, in flowing water where two swimmers were required
    to find out the incriminating material, the said article would remain
    at the same place after 3 days. We therefore find that it cannot be
    said that the prosecution has proved the said circumstance beyond
    reasonable doubt.
26. Insofar as the circumstance regarding the recovery of the appellant’s
    clothes is concerned, even according to the prosecution, it is the
    appellant who had informed the police about the crime and he was
    present there. As such, the presence of blood-stains on his clothes
    cannot be said to be unnatural. Again, the recovery is from a place
    which is open and accessible to one and all. Same is the case
    with regard to the recovery of jewellery. In any case, the recovery
    panchnama does not show that the clothes were sealed. As such, the
    possibility of tampering cannot be ruled out. Insofar as the recovery
    of jewellery (mangalsutra) is concerned, the said mangalsutra was
    not shown either to Vijaykumar Kisanrao Sonpetkar (PW-5), father
    of deceased Archana or to the appellant’s sister so as to identify
    that the same belong to deceased Archana.
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27. That leaves us with the circumstance of motive. We find that solely
    on the basis of circumstance of motive, a conviction cannot be
    based. As held by this Court in the case of Sharad Birdhichand
    Sharda (supra), a suspicion, however strong it may be, cannot take
    the place of a proof beyond reasonable doubt. As has been held by
    this Court in the case of Sharad Birdhichand Sharda (supra), there
    is not only a grammatical but a legal distinction between “may be
    proved” and “must be or should be proved”. It is a primary principle
    that the accused “must be” and not merely “may be” guilty before a
    court can convict and every possible hypothesis except the guilt of
    the accused has to be ruled out. In our considered opinion, in the
    present case, the prosecution has failed to do so. We are therefore
    of the considered view that the impugned judgment and order of
    the High Court as well as the trial court are not sustainable in law.
28. In the result, we pass the following order:
       (i)     The appeal is allowed;
       (ii)    The judgment and order of the High Court dated 23rd July 2019
               in Confirmation Case No. 2 of 2016 and the judgment and
               order of conviction and sentence dated 26th August 2016 and
               31st August 2016 passed by the trial court in Sessions Case
               No.64 of 2013 are quashed and set aside; and
       (iii) The appellant is directed to be set at liberty if not required in
             any other case.
29. Pending application(s), if any, shall stand disposed of.

       Result of the Case: Appeal allowed.



       †
           Headnotes prepared by: Divya Pandey