Bombay High Court
SHRISHYAM JAGPRASAD PASWAN @ GUJARversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The prosecution failed to prove the appellant's guilt beyond reasonable doubt, and the conviction was set aside.
Summary
The appellants were convicted by the Sessions Court for murder, attempted murder and robbery under Sections 328, 302 and 394 of the IPC based solely on circumstantial evidence. On appeal, the High Court examined the reliability of the alleged "last seen" testimony, the recovery of a brass pot with blood stains, and the identification by a watchman, finding each to be weak, hearsay or confused. The Court noted that the key witness Devendra, who could have corroborated the alleged administration of a chocolate, was never examined, rendering the testimony of PW1 and PW3 inadmissible as last seen evidence. It further held that the DNA analysis of the brass pot was inconclusive and the identification parade was conducted in jail, raising doubts about its validity. Applying the principles laid down in Hanumant, Sharad Birdhichand Sarda and related precedents, the Court concluded that the prosecution had not established a complete chain of circumstances to exclude reasonable doubt. Consequently, the appeal was allowed, the conviction was quashed, and the appellant was acquitted and released.
Issues considered
- Whether the prosecution proved the appellant's guilt beyond reasonable doubt on the basis of circumstantial evidence
- Whether the testimony of PW1 and PW3 can be treated as admissible "last seen" evidence
- Whether the recovery of the brass pot and its forensic analysis substantiate the charge
- Whether the identification by the watchman (PW11) is reliable and sufficient for conviction
- Whether an appeal by an absconding accused can be heard on merits under Dhananjay Rai alias Guddu Rai precedent
- Whether the conviction under Sections 328, 302 and 394 IPC should be set aside
Legislation cited
- Indian Penal Code — s. 302, 328, 34, 394
Subjects
- murder
- circumstantial evidence
- acquittal
- appeal
- identification parade
- hearsay
- absconding accused
- IPC
Judgment
2026:BHC-AS:40138-DB
Bhogale 2.apl-444-2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.444 OF 2014
1. Rajkumar @ Bheli Ramtirth Nishad
@ Sunil Yadav
Age 23 years, Occupation : Service
Residing at Khar Road, 6th Road, Gurugangeshwar
Dham, Khar (West), Mumbai
(presently lodged at Nashik Central Prison)
2. Shrishyam Jagprasad Paswan @ Gujar
Age 22 years, Occupation : Service
Residing at Omkar Lane,
Near Hanuman Mandir,
S. K. Patil Marg, Santacruz (West),
Mumbai 54
(presently lodged at Nashik Central Prison) … Appellants
Versus
The State of Maharashtra
(At the instance of Sr. Inspector of Police)
in C.R. No.472/2011 .… Respondent
****
Adv. Jagdish G. Shetty a/w Adv. Mohammed Ayub Shaikh,
Adv. Shilpa Salve, for the appellants.
Mr. K. V. Saste, APP, for the respondent-State.
****
CORAM : M. S. KARNIK &
SANDESH D. PATIL, JJ.
DATE : 1st OCTOBER 2026
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JUDGMENT (PER M. S. KARNIK, J.) :
1. The challenge in this appeal is to the judgment and order
dated 21st February 2014 passed by the Court of Sessions for
Greater Bombay at Bombay convicting the appellants for the
offences punishable under Sections 328, 302 and 394 read with 34
of the Indian Penal Code (“IPC”, for short).
2. The prosecution case in brief is that the appellant No.1 -
Rajkumar @ Bheli Ramtirth Nishad @ Sunil Yadav (original
accused No.1), and the present appellant No.2 - Shrishyam
Jagprasad Paswan @ Gujar (absconding) (original accused No.2)
committed the murder of ‘A’ (the deceased) on 17th August 2011.
It is the case of the prosecution that the accused No.1 - Rajkumar
@ Bheli Ramtirth Nishad @ Sunil Yadav was working as House
Help in the house of the deceased along with one Devendra and
that, on the date of the incident, accused No.1 gave a chocolate to
Devendra, as a result of which he fell unconscious, after which he
was murdered and articles were stolen. Devendra upon regaining
consciousness informed PW1 – ‘D’ (husband of the deceased) and
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PW3 – ‘S’ (daughter of deceased) that he was administered the
chocolate by accused No.1 pursuant to which he fell unconscious.
After he woke up, he saw the deceased lying in a pool of blood on
the bed.
3. When PW1 - ‘D’ and PW3 - ‘S’ came home, they saw the
deceased lying in a pool of blood and found certain articles and
money missing from the house. The motive for commission of the
murder was robbery. PW1 – husband of the deceased lodged the
FIR which was registered vide CR No.472 of 2011 against two
accused alleging offence punishable under Section 394, 397 and
302 of the IPC.
4. During the course of investigation, police arrested the
accused. The chargesheet came to be filed upon completion of the
investigation. The offence was tried by the Court of Sessions. The
accused No.1 and the present appellant pleaded not guilty of the
charge and claimed to be tried.
5. The prosecution examined 15 witnesses :
1. PW1 – ‘D’ (husband of the deceased and original
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complainant).
2. PW2 – Dilip Tarachand Bulchandani, Panch to the
spot panchnama.
3. PW3 – ‘S’ (daughter of the deceased).
4. PW4 – Ravi Ramesh Parab, Panch in respect of
recovery panchnama (brass pot) Article-3 from accused
No.1.
5. PW5 – Kuppuswamy Mokkan Harijan, the Recovery
Panch in respect of a wrist watch which was recovered
from the house of the present appellant’s brother.
6. PW6 – the Nayab Tahsildar who conducted the
identification parade of the accused No.2 on 21 st
December 2011.
7. PW7 – Vasudeo Chatursingh Baberwal, who is the
Recovery Panch in respect of the money amounting to
Rs.14,000/- from the appellant.
8. PW8 – Jayraj Narsingrao Ranware, the Officer
attached to DCB CID, Unit 9, who arrested the appellant
on 23rd August 2011.
9. PW9 – Dr. Subodh Vishwanath Bhale, who conducted
the Post Mortem.
10. PW-10 – Deepak Bhimrao Gaikwad, who conducted
spot panchnama.
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11. PW11 – Manishankar Bhailal Sharma, who had last
seen the accused.
12. PW12 – Tanaji Shankar Surulkar is the Investigating
Officer.
13. PW13 – Sagar Jaganath Shivalkar, attached to DCB,
CID, Unit-9.
14. PW14 – Prabhakar Dattaram Dhumak, who is the
neighbour of the appellant and had given his room to
him.
15. PW15 – Dr. Prafula Hindurao Bhansode, who is a
Medical Officer at the K.B. Bhabha Hospital.
6. At the outset, it would be pertinent to mention that the
appellant No.2 has jumped bail and is absconding. The Hon’ble
Supreme Court in Dhananjay Rai alias Guddu Rai vs. State of
Bihar1 has clarified the position as to what procedure is to be
resorted to in respect of an appeal of an absconding accused which
is already admitted. This appeal has been admitted. Learned
counsel for the appellants submits that this appeal should be heard
on merits. Having regard to the law laid down by the Hon’ble
Supreme Court in Dhananjay Rai alias Guddu Rai (supra), we
1 AIR 2022 Supreme Court 3346 : AIR Online 2022 SC 1012
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proceed to hear the appeal on merits.
7. The present case is based completely on circumstantial
evidence. So far as appellant No.1 - Rajkumar @ Bheli Ramtirth
Nishad @ Sunil Yadav (original accused No.1) is concerned, it is
pertinent to note that Criminal Appeal No.32 of 2024 preferred by
him was heard by this Court and by a reasoned judgment and
order dated 26th June 2024, the appeal came to be allowed.
We are therefore considering this appeal only so far as appellant
No.2 - Shrishyam Jagprasad Paswan @ Gujar (original accused
No.2) is concerned. For convenience and considering the nature of
the allegations made against the present appellant No.2, it would
be useful to refer to the findings of this Court in extenso. The same
reads thus :-
“6. Mr. Shetty, learned counsel for the appellant submitted
that the prosecution case rests on circumstantial evidence i.e. the
evidence of last seen; recovery of a brass pot, at the instance of the
appellant; and identification of the appellant by PW11-Mani
Shankar Bhailal Sharma. Learned counsel for the appellant
submitted that all the said circumstances suffer from several
infirmities and as such cannot be relied upon and that the
circumstances together do not form a chain, which would point to
the complicity of the appellant. He submitted that even the CA
report does not further the prosecution case, in any way.
7. Learned APP supported the judgment and order of
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conviction and sentence and submitted that no interference was
warranted in the same.
8. At the outset, we may note that the prosecution case rests
on circumstantial evidence. The law relating to circumstantial
evidence no longer remains res integra.
9. In Hanumant vs State of Madhya Pradesh which is one of
the earliest decision, the Apex Court observed specifically in para
12, as under:
“12. 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
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….…”
10. In Sharad Birdhichand Sarda v/s State of Maharashtra, the
Apex Court has laid down the five golden principles (Panchsheel)
which govern a case based only on circumstantial evidence. Para
153 of the said judgment is reproduced hereinunder :-
“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
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Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the following observations were
made: [SCC para 19, p. 807 : SCC (Cri) p. 1047]
Certainly, it is a primary principle that the
accused must be and not merely may be guilty before
a court can convict and the mental distance between
'may be' and 'must be' is long and divides vague
conjectures from sure conclusions.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.”
Thus, it is clear from the aforesaid that it is the duty of the
prosecution to prove each and every circumstance as against the
accused, no chain of which should be missing. Each of the
circumstance must point to the complicity of the accused and the
established facts must be consistent / in consonance with only the
guilt of the accused and must exclude any hypothesis consistent
with the innocence of the accused.
11. It is on the touchstone of these principles that we proceed
to analyze the evidence adduced by the prosecution.
12. At the outset, we may note, that as far as homicidal death
of deceased-Aarti is concerned, the same is not disputed. The only
question that arises for consideration before us, is whether the
appellant is the author of the same?
13. The prosecution has relied essentially on three
circumstances i.e. of last seen evidence, recovery of brass pot and
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the appellant’s identification by PW11-Mani Shankar Bhailal
Sharma (watchman).
14. As far as the evidence of last seen is concerned, the
prosecution has relied on the evidence of PW1-Dilip and PW3-
Sonam, husband and daughter of the deceased. A perusal of the
evidence of PW1-Dilip and PW3-Sonam would reveal that on the
day of the incident i.e. on 17th August 2011, PW1-Dilip alongwith
his daughter PW3-Sonam, had left home to attend his office at
1:00 p.m; that at that time, the deceased alongwith their two
servants was there in the house i.e. the appellant and Devendra;
that they tried to call up the deceased, however the deceased did
not respond to the calls; that they called Devendra, however, he
too did not respond to their calls; and, that finally at about 7:45
p.m. Devendra replied to PW1-Dilip’s call and disclosed to PW1-
Dilip, that his wife was lying in a pool of blood. According to PW1-
Dilip and PW3-Sonam, Devendra was talking in an incoherent
manner. According to both these witnesses, when they reached
home at about 8:00 p.m., Devendra disclosed to them that the
appellant had given him a chocolate to eat, pursuant to which he
fell unconscious. Pursuant thereto, both the witnesses went to the
bed room and found the deceased lying on the bed with her legs
tied by a rope and with a cut injury on her neck. The appellant was
not found in the house. The witnesses on taking a search, found
that an amount of Rs.40,000/- to Rs.50,000/- and the deceased i-
phone was missing. Both, PW1-Dilip and PW3-Sonam have stated
that the police took photographs and obtained fingerprints from
the cupboards and took the deceased to Cooper Hospital, where
she was declared to be dead. Pursuant thereto, PW1-Dilip lodged
an FIR (Exhibit – 14). According to PW1-Dilip, later on, they found
that the deceased, Bentex Watch was also missing and as such
informed the police of the same. PW1-Dilip has further stated that
the police brought the appellant to their house, pursuant to which
he produced a brass pot used to prepare chatani, from the
bedroom of PW3-Sonam i.e. from below the dressing table in the
bed room. According to PW1-Dilip, the said brass pot was having
dried blood-stains.
15. The evidence of PW3-Sonam, daughter of the deceased is
on similar lines.
16. We may note, that Devendra who disclosed what had
happened to him and the deceased, was never examined by the
prosecution. The question therefore, that arises for consideration
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is, whether the said evidence deposed to, by PW1-Dilip and PW3-
Sonam can be termed as ‘last seen evidence’? Our answer is to the
negative. Admittedly, PW1-Dilip and PW3-Sonam were not present
in the house at the time when the incident took place. PW1-Dilip
and PW3-Sonam have deposed on the basis of what was disclosed
by Devendra to them i.e. of the appellant giving him (Devendra) a
chocolate, pursuant to which he fell unconscious and on regaining
consciousness he saw the deceased lying in a pool of blood. The
said evidence i.e. the disclosure made by Devendra to PW1-Dilip
being hearsay, cannot be relied upon, since the prosecution failed
to examine Devendra, though he was available.
17. As far as the recovery of a brass pot from the house of the
deceased i.e. from the bed room of PW3-Sonam is concerned, the
said recovery appears to be doubtful. Firstly, the dog-squad was
brought to the house, however nothing was found by the dog-
squad; secondly, PW3-Sonam in her cross-examination has stated
that there were about ten policemen who had come to their house
on the said day; that they were in their house till 3 a.m.; that the
police had taken search of the entire house; thirdly, the appellant
was brought from Uttar Pradhesh to Mumbai on 21 st August 2011,
was let out and thereafter, arrested on 23rd August 2011, on which
day the brass pot was recovered at his instance from the deceased
house i.e. from PW3-Sonam’s room.
18. In the light of the evidence brought on record, we find it
difficult to believe the recovery of a brass pot at the instance of the
appellant. Apart from the aforesaid, the brass pot was sent to the
Chemical Analyzer, however the report shows that the DNA profile
obtained from the blood detected on the metal pot was not
interpretable.
19. As far as identification by PW11-Mani Shankar Bhailal
Sharma, watchman of the building is concerned, his evidence does
not in any way, further the prosecution case vis-a-vis the
identification of the appellant.
20. PW11-Mani Shankar Bhailal Sharma, in his evidence has
stated that he was working as a watchman in the building in
question where the deceased was residing since 2011; that on 17 th
August 2011, he attended duty at the gate of the society between
8:00 a.m. to 8:00 p.m. PW11-Mani Shankar Bhailal Sharma, had
further deposed that at about 2:00 p.m. one person by the name
Rajkumar came to him and disclosed his name as Rajkumar; that
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when he questioned Rajkumar, Rajkumar told him that he wanted
to meet one person by name Sunil, on the second floor of the
building. PW11-Mani Shankar Bhailal Sharma identified Rajkumar
before the Court by pointing out to the appellant. He has stated
that the appellant went to the second floor of the building at 2:00
p.m. and returned back at 5:00 p.m. The evidence of PW11-Mani
Shankar Bhailal Sharma was recorded almost 12 days after the
incident. It is also pertinent to note, that the appellant’s name is
Rajkumar @ Sunil. It is the prosecution case, that the appellant
who was working in the deceased’s house administered a chocolate
to Devendra, after which he fell unconscious and when he woke
up, he saw the deceased lying in a pool of blood. According to
PW11-Mani Shankar, the appellant had gone to the second floor of
the building at 2:00 p.m. and had returned at 5:00 p.m. alongwith
accused No.2. How and when accused No.2, who was not working
in the building went to the said floor, is not clear. It appears from
the evidence of PW11-Mani Shankar, that there is some confusion
with respect to identification of the appellant.
21. As far as dog-squad being taken to the spot on the day of
the incident is concerned, the same has been deposed to, by PW10-
Deepak Gaikwad, Nayab Tahsildar, however, the report of the dog-
squad has not been placed on record. Similarly, it is not disputed
that fingerprints were also taken, however, no report was
produced by the prosecution during trial, despite fingerprints
being taken.
22. As far as administering stupefying substance to Devendra
is concerned, Devendra was examined belatedly, after more than a
month, as a result of which nothing was found in his medical
report.
23. Considering the overall evidence as stated aforesaid, we
find that the prosecution has failed to prove each of the
circumstances adduced against the appellant, which would point
to the complicity of the appellant in the crime in question.
24. Considering the aforesaid, we hold that the prosecution
has failed to prove its case as against the appellant beyond
reasonable doubt and as such pass the following order:-
ORDER
i) The Appeal is allowed;
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ii) The Judgment and Order dated 21st February, 2014, passed by
the learned Additional Sessions Judge, Mumbai, in Sessions Case
No.149 of 2012, convicting and sentencing the appellant, is
quashed and set aside, only qua him;
iii) The appellant is acquitted of the offences, with which he is
charged. The appellant is set at liberty forthwith, if not required in
any other case. Fine amount, if paid, be refunded to the appellant.
25. Appeal is allowed and accordingly disposed of.
All concerned to act on the authenticated copy of this
judgment.”
8. Thus from the version of PW1 and PW3 as can be seen
from paragraph 14 of the aforesaid findings and the evidence on
record it reveals that Devendra disclosed to PW1 and PW3 that the
accused No.1 had given him a chocolate to eat pursuant to which
he fell unconscious. There is no mention of the present appellant’s
presence by Devendra. It is pertinent to note that Devendra was
not examined. This Court has held that the evidence of PW1 – ‘D’
and PW3 – ‘S’ cannot be termed as last seen evidence. PW1 and
PW3 were not present in the house at the time when the incident
took place. This Court has already held that the disclosure made
by Devendra to PW1 – ‘D’ being hearsay, cannot be relied upon,
since the prosecution failed to examine Devendra, though he was
available.
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9. So far as the recovery of the brass pot is concerned, in
paragraph 17 reproduced above, this Court has held that it is
difficult to believe that the brass pot was recovered at the instance
of the accused No.1. The material against the present appellant is
the evidence of PW11 – Manishankar Bhailal Sharma. In his
evidence PW11 stated that he was working as a watchman in the
building in question where the deceased was residing since 2011.
On 17th August 2011, he attended duty at the gate of the society
between 8:00 a.m. to 8:00 p.m. PW11 - Manishankar Bhailal
Sharma deposed that at about 2:00 p.m. one person by name
Rajkumar came to him and disclosed his name as Rajkumar. When
he questioned Rajkumar, Rajkumar told him that he wanted to
meet one person by name Sunil on the second floor of the
building. PW11 - Manishankar Bhailal Sharma identified Rajkumar
before the Court by pointing out to the accused No.1 (not the
present appellant). This Court in paragraph 20 reproduced above
has observed that how and when accused No.2 (present appellant)
who was not working in the building, went to the said floor, is not
clear. From the evidence of PW11 - Manishankar Bhailal Sharma,
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it was observed that there is some confusion with respect to the
identification of the accused No.1. The only material to connect
the present appellant with the factum of his entering into the
building is the evidence of PW11 - Manishankar Bhailal Sharma.
From his evidence it is more than clear that PW11 is confused
about the identification of the present appellant (accused No.2 as
well).
10. So far as the identification parade is concerned, he has
admitted that the police took him to the jail and showed the
accused. Learned APP made an attempt to submit that since the
identification parade was conducted in the jail, PW11 had an
occasion to see the accused at the time of identification parade and
in that context the witnesses answered the question. We have our
own doubts as PW11 has stated that the police took him to jail and
showed the accused and hence the benefit of doubt must go to the
accused. This piece of evidence has to be discarded.
11. So far as the recovery of Bentex Watch and an amount of
Rs.14,000/- is concerned, the same is a very weak piece of
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evidence to convict the appellant since the case is based entirely on
circumstantial evidence. The important circumstance in the chain
viz. the presence of the appellant at the scene of offence itself
being doubtful, in which case the prosecution case must fail.
Hence, the following order :-
ORDER
(i) The appeal is allowed.
(ii) The judgment and order dated 21 st February 2014
passed by the learned Additional Sessions Judge,
Mumbai, in Sessions Case No.149 of 2012 is quashed and
set aside.
(iii) The appellant No.2 - Shrishyam Jagprasad Paswan
@ Gujar stands acquitted of all the charges levelled
against him.
(iv) Bail bonds stand cancelled.
(v) Fine if any recovered be refunded to the
appellants.
12. The appeal is disposed of.
(SANDESH D. PATIL, J.) (M. S. KARNIK, J.)
Signed by: Pradnya Bhogale 15
Designation: PA To Honourable Judge
Date: 03/10/2026 15:30:17
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