Holding

The conviction is set aside because the circumstantial evidence is incomplete and the hostile witness's testimony is unreliable, entitling the accused to the benefit of doubt.

Summary

Balu Sonba Shinde was convicted of murdering his brother Shankar based primarily on the testimony of a single material witness (PW‑4) and circumstantial evidence, while the complainant (PW‑5) was declared hostile. The Supreme Court examined whether the chain of circumstantial evidence was complete and whether the hostile witness's testimony could be relied upon. It held that the prosecution’s case lacked a continuous chain of facts, creating a reasonable doubt, and that the hostile witness’s evidence was unreliable and required close scrutiny. Consequently, the Court found a miscarriage of justice and set aside the conviction, ordering the appellant’s release. The judgment reaffirmed the principles governing circumstantial evidence and the limited scope of appellate courts to re‑appreciate evidence under Article 136 when prejudice is evident.

Issues considered

The adequacy and completeness of the circumstantial evidence to sustain a murder conviction
Whether the testimony of a hostile witness can be relied upon without further scrutiny
Whether the appellate court may re‑appreciate evidence under Article 136 when there is a lacuna leading to miscarriage of justice
The application of the benefit of doubt principle in the absence of direct evidence

Legislation cited

Indian Penal Code, 1860s. 302

Subjects

murdercircumstantial evidencehostile witnessbenefit of doubtspecial leave petitionmiscarriage of justiceevidence appraisalcriminal law

Judgment

BALU SONBA SHINDE A
v.
ST ATE OF MAHARASHTRA

SEPTEMBER 6, 2002

[U.C. BANERJEE AND.B.N. AGRA WAL, JJ.] B

Penal Code, 1860-Section 302-Murder-Circwnstantial evidence-
Conviction by courts below relying on sole witness-On appeal-Held, in the
facts of the case witness not reliable and the chain of circumstance is not C
complete-Accused entitled to benefit of doubt-Hence acquitted.

Criminal trial Hostile witness-Evidence-Reliability-Held, would not
be totally rejected-But to be subjected to close scrutiny.

Circumstantial evidence-Acceptability of-Role of law courts in regard D
there to--Discussed .

Constitution of India, 1950, Article 136-Special leave jurisdiction-
Appreciation of evidence-Held, normally not permissible-But where there is
lacuna in appreciation of evidence and likelihood of prejudice resulting in
miscarriage of justice, it is permissible. E
Petitioner accused was tried for having committed murder of his
brother by giving him an axe blow. Prosecution relied on the evidence of
PW4 and PWS (complainant). PWS, in the complaint, had reported to have
witnessed the fight between the accused and the deceased and had put her
thumb impression on the complaint. During trial though she admitted to F
have put her thumb impression but refused that she was eye witness to
the incident and hence was declared hostile. Trial Court placing reliance
on the evidence of PW4 convicted the petitioner under Section 302 IPC.
Conviction was upheld in appeal to High Court. Hence this appeal.

Allowing the appeal, the Court G
HELD: 1.1 The conviction as confirmed by the High Court stands
set aside. Evidence of PW 4 cannot be accepted and having regard to the
availability of materials, the success of prosecution becomes rather
doubtful. Admittedly, there is no direct evidence and the entire prosecution H
135

'
136 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A hinges on circumstantial evidence. In the event, however,•the chain is
snapped and there is a gap therein, the accused cannot but be said to be
entitled to a doubt. 1145-D-EI

1.2. In the instant case the aspect that there was gap in chain of
circumstances, has been totally ignored by the High Court and thus the
B same goes to the root or"the matter and by reason of non-adherence to
the basic principles pertaining to circumstantial evidence, there was truly
a miscarriage of justice warranting intervention of this Court. (145-E-FI

MG Agarwal and Anr. v. State of Maharashtra, AIR (1963) SC 200,
followed.
c
Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh,
AIR 1952 SC 343; Pawan Kumar v. State of Haryana, (2001) 3 SCC 628
and Sudama Pandey and Ors. v. State of Bihar, (2002) I SCC 679, relied on.

2. While it is true, declaration of a witness to be hostile does not ipso
D facto reject the evidence - the portion of evidence being advantageous to
the parties may be taken advantage of - But the court before whom such
a reliance is placed shall have to be extremely cautious and circumspect ..
in such acceptance. 1143-DI

E State of U.P. v. Ramesh Prasad Misra and Anr., (19961 10 SCC 360,
relied on.

3. Under normal circumstances, analysis of evidence or appreciation
of evidence ought not to be effected by the Apex Court while dealing with
the matter but it is trite to note that in the event, this Court finds any
F lacuna in appreciation of evidence by the High Court and in the event there
is likelihood of prejudice being suffered by the accused resulting in
miscarriage of justice, 'the present day justice-oriented approach ought to
prompt this Court to go into necessary detail so as to assess the correctness
of such an appreciation in the interest of justice. 1140-D, El
-
G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
950 of 2000.

From the Judgment and Order dated 18.1.2000 of the High Coun of
Bombay in Crl. A. No. 651/85 of 1987.

H Sanjay K. Visen, A.S. Basme and Manoj K. Mishra, for the Appellants.
BALU SONBA SHINDE v. STATE OF MAHARASHTRA (BANERJEE, J.] 13 7
A.P. Mayee, S.S. Shinde and V.N. Raghupathy for the Respondent. A
The Judgment of the Court was delivered by

BANERJEE, J. It is stated that Shankar and Balu, the two brothers
were admittedly having some differences and disputes over the family property
but subsequently the disputes were admittedly resolved and a deed of partition B
was entered into between the brothers. It is in pursuance of the same however
that Shankar was fencing his portion of the land when he was said to have
been brutally axed by his brother Balu. Prosecutor's version in the appeal
presently under consideration against the confirmation of the conviction and
sentence by the High Court stands out to be the truth is stronger than fiction, C
more so by reason of involvement of blood relations.

The prosecution case proceeds on the basis that on 8th July 1984, while
Shankar was putting the fencing round his plot, he was brutally axed, resulting
in his death. It has been the definite case for the prosecution that the axe
blow was given by Balu, the younger brother and in support of its case D
placed on witness-box two material witnesses - one of whom however was
declared hostile, since the case in the First Information Report stands
completely contradicted. The other witness is said to be an independent witness
though said to be related to both the brothers. This particular witness (PW 4)
while foistingliability on to the other brother has taken recourse to certain
circumstances which prompted him to depose as regards to identify the killer. E
The details thereof would be dealt with immediately hereafter, but before so
doing it would be convenient to note the well-established rule in criminal
jurisprudence as regards the acceptability of circumstantial evidence and the
role of the law courts in regard thereto:

The word of caution introduced in the judgment of this Court about F
five decades ago in that direction however still stands as an acceptable guide.
This Court in Hanumant Govind Nargundkar and Anr. v. State of Madhya
Pradesh, AIR (1952) SC 343 stated:

"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion
G
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 H
138 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A 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."

Subsequently, the Constitution Bench of this Court in MG Agarwal and
B Anr. v. State of Maharashtra, AIR (1963) SC 200 in the similar vein and
without any contra note stated the law with utmost lucidity in the manner
noted below:

"It is a well established rule in criminal jurisprudence that
circumstantial evidence can be reasonably made the basis of an accused
c person's conviction if it is of such a character that it is wholly
inconsistent with the innocence of the accused and is consistent only
with his guilt. If the circumstances proved in the case are consistent
either with the innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt. There is no doubt or
D dispute about this position. But in applying this principle, it is necessary
to distinguish between facts which may be called primary or basic on
the one hand and inference of facts to be drawn from them on t~e •
other. In regard to the proof of basic or primary facts, the Court has
to judge the evidence in the ordinary way, and in the appreciation of
evidence in respect of the proof of these basic or primary facts there
E is no scope for the application of the doctrine of benefit of doubt. The
court considers the evidence and decides whether that evidence proves
a particular fact or not. When it is held that a certain fact is proved,
the question arises whether that fact leads to the inference of guilt of
the accused person or not, and in dealing with this aspect of the
problem the doctrine of benefit of doubt would apply and an inference
F
of guilt can be drawn only if the proved fact is wholly inconsistent
with the innocence of the accused and is consistent only with his
guilt."

Similar however is the opinion of this Court in Pawan Kumar v. State
G of Haryana, [2001] 3 sec 628 in which one of us (U.C. Banerjee, J) was a
party. The opinion of the Court runs as under:

"Incidentally, success of the prosecution on the basis of circumstantial
evidence will however depend on the availability of a complete chain
of events so as not to leave any doubt for the conclusion that the act
H must have been done by the accused person. While. however, it is
BALUSONBASHlNDEv. STATEOFMAHARASHTRA [BANERJEE.J.] 139

true that there should be no missing links, in the chain of events so A
far as the prosecution is concerned, but it is not that every one of the
links must appear on the surface of the evidence, since some of these
links may only be inferred from the proven facts. Circumstances of
strong suspicion without, however, any conclusive evidence are not
sufficient to justify the conviction and it is on this score that great B
care must be taken in evaluating the circumstantial evidence. Jn any
event, on the availability of two inferences, the one in favour.of the
accused must be accepted and the law is well settled on this score, as
such we need not dilate much in that regard excepting, however,
noting the observations of this Court in the case of State of U.P. v.
Ashok Kumar Srivastava, AIR (1992) SC 840 wherein this Court in C
paragraph 9 of the report observed:-
"This Court has, time out of number, observed that while
appreciating circumstantial evidence the Court must adopt a very
cautious approach and should record a conviction only if all the
links in the chain are complete pointing to the guilt of the accused D
and every hypothesis of innocence is capable of being negatived
on evidence. Great care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably capable of
two inferences, the one in favour of the accused must be accepted.
The circumstance relied upon must be found to have been fully
established and the cumulative effect of all the facts so established E
must be consistent only with the hypothesis of guilt. But this is
not to say that the prosecution must meet any and every hypothesis
put forward by the accused however far-fetched and fanciful it
might be. Nor does it mean that prosecution evidence must be
rejected on the slightest doubt because the law permits rejection p
if the doubt is reasonable and not otherwise."
The other aspect of the issue is that the evidence on record,
ascribed to be circumstantial, ought to justify the inferences of the
guilt from the incriminating facts and circumstances which are
incompatible with the innocence of the accused or guilt of any other G
person. The observations of this Court in the case of Ba/winder Singh
v. State of Punjab, AIR (1987) SC 350 lends concurrence to the
above."

In a more recent decision of this Court in Sudama Pandey and Ors. v.
State of Bihar, [2002) I SCC 679 the law as noticed above and to the same H

I
140 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A effect stands very felicitously expressed. It is now time however to advert to
the factual details so as to appreciate the contentions raised in the matter: On
8th July, 1984 deceased Shankar was said to have been assaulted by his own
brother Balu at around 10 a.m. in the field, where Shankar, the deceased was
working on fencing his plot of land. Balu is stated to have hit the deceased
B with an axe which stands recovered near his house having blood marks and
which after forensic examination found to be of the same group as that of
Shankar, ~he deceased. Reliance on PW 4 Dharu has been rather total since
the complainant PW 5 Baby whilst in the witness Box did tell a different
story and thus resulting in PW 5 Baby being declared as a hostile witness.

C Significantly, the Trial Court did place very strong reliance on PW 4
Dharu and convicted the accused under Section 302 and thus sentenced him
to imprisonment for life. The appeal preferred before the High Court did not
yield any benefit and the same was dismissed and hence the Special Leave
Petition under Article 136 of the Constitution and the subsequent grant of
leave by this Court. Let us however analyse the evidence of PW 4 Dharu in
D a little bit greater detail. Incidentally be it noted that under normal
circumstances, analysis of evidence or appreciation of evidence ought not to
be effected by the Apex Court while dealing with the matter but it is trite to
note that in the event this Court finds any lacuna in appreciation of evidence
by the High Court and in the event there is likelihood of prejudice being
E suffered by the accused resulting in miscarriage ofjustice, the present day
justice-oriented approach ought to prompt this Court to go in to necessary
detail so as to assess the correctness of such an appreciation in the interest
of justice - on this score the law is so well-settled that we need not dilate
thereon.

F Turning attention on the evidence of PW 4 Dharu, the material portion
records as under:

"In the last Waishak in the year 1985, partition of family lands took
place between deceased Shankar and accused Balu. Before partition,
deceased Shankar did not get any income from family lands, so he
G was working at other place. At the time of partition, land
Chambharbuva was divided and half share each was allotted to
deceased Shankar and accused Balu. At the time of dividing the land
at Chambharbuva dividing line with the ploughing mark was made in
between the two shares.

H There was Sunday at that time of incident. The incident took place 1
BALU SON BA SHINDE v. STATE OF MAHARASHTRA [BAN ER.IEE, .l.) 141

to I and quarter years before. On that day at about I0 a.m., I was A
goi11g to my field from my house. The way leading to my land passed
by the side of land Chambharbuva. While going on foot, I came near
the land of Chambharbuva. That time, I saw exchange of words going
between accused Balu and deceased Shankar in the land
Chambharbuva. That time, deceased Shankar was planting bushes on B
the boundary line of his land and land of accused Balu. I went near
them and advised them not to quarrel. Then I started going towards
my land. I cross the long distance, that time I heard the commotion
coming from the direction of land Chambharbuva. It was the cry of
Baby daughter of Sonba Shinde. She cried, Mela, Mela. Hearing her
cry I came back and went in Chambharbuva land. I went near deceased C
Shankar. At that time, I did not see accused Balu in the vicinity. That
time, Shankar was lying injured in the land, he was not able to speak.
That time, I saw injury on the right side of head. The injury was
bleeding. That time, my nephew Gorakh was also present there. Then
myself and Gorakh lifted Shankar and brought him in front of house
of accused. I then tied his head injury with Dhoti. Then we put him D
in the bullock-cart and brought him in Talegaon General Hospital.
That time, accused Balu and his wife did not accompany us to Talegaon
Hospital. Dr. gave medical treatment to Shankar and as per advice of
Doctor, Shankar was taken in Sasoom Hospital in tempo. Then myself
and my relations returned home. Shankar's relations accompanied E
him in Sasoom Hospital. After 516 days I came to know that Shankar
died."

Since the cross-examination has been rather briefit would be worthwhile
to note the same in extenso. The evidence in cross-examination reads as
below: F
"My land is far away from the land of Chambharbuva. My land
Nayar is on the bank of river. I go to my other land by road leading
to Diva. Road leading to Diva goes through village Urse. The land
Chambharbuva is not on the way leading to Diva. There is compound
of thorny bushes on all sides of land Chambharbuva. The height of G
said thorny bushes is about 7/8 feet.

I have not stated in my police statement that I advised deceased
Shankar and accused Balu not to quarrel. I was 30 to 40 feet away
from the land Chambharbuva when I heard commotion. It is not true
that I did not see accused Balu and Shankar in land Chambharbuva H
142 SUPRl':ME COURT REPORTS (2002] SUPP. 2 S.C.R.

A at that time, I hitd kept injured Shankar on the Oti of the house of
accused Bah.1. That time, his head injury was bleeding and the blood
fell on the Oti. After the Shankar was put on Oti. I asked somebody
to bring cloth to tie injury. That time. somebody brought shi11 to me.
At the time of departure to Talegaon Hospital. the said shirt was lying
on the Oti. the exchange of quarrel was going between Shankar and
B accused Bahl In the corner of Paddy field. The said Paddy field is just
or
near from the house accused Balu."

The evidence thus records that whilst Dharu was on his way to his field
on the fateful day, he sl\W two brothers involved in hot exchange of words
and like a good nei,hlmur, advice came from him so that the brothers do not
C fight against each other: Ohilfti thereafter proceeded towards his field and by
the time he had gone bateiy 30/40 feet there was wailing of Baby (PW5). On
hearing the same Dharu came back to the alleged place of occurrence and
found Shankar being in grossly injured condition. The next part of his evidence
is rather interesting and important as well, since the evidence is delightfully
D silent on the score as to what has happened to wailing of PW 5: Dharu
significantly neither sees the assailant brother nor said anything about the
whereabouts of PW 5: But his evidence remained positive as regards the
wailing of PW 5, But what has happened to her? Where has she gone an9. if
not there then which direction!! Similar is the situation as regards the accused
E person: It is only 30-40 feet - Hearing of wailing and turning back to see
what has happened yielded no further but that did not prevent him from
seeing Gorakh with whose assistance he lifts Shankar and took him to the
front of the house of the accused. The deponent did not see the actual axe-
hit, neither could see the accused from behind - the vision obviously became
totally blurred otherwise there was no earthly chance of missing both the
F accused person and PW 5. The introduction of Gcirakh had to be effected
since he had to carry the body of Shankar. Significantly, however, Gorakh
was not called to give evidence The reason for non-production of such a vital
witness goes unnoticed by both the trial Court as also the High Court.

We shall come back to the evidence of Dharu (PW 4) once again
G shortly afterwards but presently the evidence tendered by Baby (PW 5) ought
to be noticed:

"The incident took place I to I and quarter years before. It was
Sunday. During my stay, I was staying in the house of deceased
Shankar in Urse. On the day of incident, PW 4 Dharu met me Urse
H at about I 0 a.m. That time, I asked Dharu whether he wanted to go
BALUSONBASHINDEv. STATE Of MAHARASHTRA [BANERJEE,J.) 143

to his field. He told me that he would not go to his field due to A . ·
sickness. While I was in the house of deceased Shankar, at about 10
a.m., boys came shouting to me and told me my brother Shankar fell
injured in the land Chambharbuva. Then I immediately rushed to
Shambharbuva land and saw Shankar lying injured in the field. I
cried for water. Then hearing my cry, neighbours gathered and water B
was given, but Shankar was unconscious. PW 4 Dharu and Gorakh
came there. They lifted injured Shankar and took him on the Oti of
house of accused Balu. I brought shirt from the house of accused
Balu for tying the head injury of Shankar. But people told me to
bring Dhoti instead of shirt. So I gave Dhoti to Dharu and it was tied
to the head injury of Shankar. Then PW. 4 Dharu and Gorakh took C
Shankar in bullock cart and he was taken to Talegaon."

It is at this juncture the prosecutor declared her a hostile witness and
prayed for permission to cross-examine the witness upon however, the leave
being granted, PW 5 totally decried the factual aspect as contained in the
complaint lodged, though however, the thumb impression was admitted while D
it is true declaration of a witness to be hostile does not ipso facto reject the
evidence and it is now well-settled that the portion of evidence being
advantageous to the parties may be taken advantage of but the Court before
whom such a reliance is placed shall have to be extremely cautious and
circumspect in such acceptance. Reference in this context may be made to E
the decision of this Court in State of U.P. v. Ramesh Prasad Misra and Anr.,
[1996] 10 SCC 360 wherein this Court stated:

"It is equally settled law that the evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or the
accused, but it can be subjected to close scrutiny and that portion of F
the evidence which is consistent with the case of the prosecution or
defence may be accepted."

It is on this backdrop the evidence of PW 5 if analysed, totally negates
the prosecution case.
G
We thus have to assess the credit worthiness of this particular witness
and assess the situation ourselves.

Admittedly PW 4 did not see the accused in fact giving the blow It is
only a circumstantial inference the probative value thus will have to be
assessed. H
144 SUPRl!Mt COURT REPORTS (2002] SUPP. 2 S.C.R.

A incidentally PW 5 (Baby) happelled to be complainant and we should
have a look at the complnhit so lodged by PW5. Relevant extract of the
complaint reads as below:·

"On 8.7.1984 at 10-00 or 11.-00 a.in. I was going from our house
to my utlcle 's house. At the time Shankar was doing fencing to the
B land which was owned by him after partition near open space, owned
by Balu after partition. At that time Balu was grazing his catties in
his own land, When I was gfiillg to my uncle's house I heard
altercations were taking plat\! in between Balu and Shankar. As it
was as usual hence I neglecied it and went to my uncle's house. As
c I was to reach my uncle's house I heard my brother Shankar raised
shout as "Mello, Mello''; hence hlspite of going inside my uncle's
house I returned batk 11nd tartte llear Shankar. At that time, sharp
clash was going on in bet\\leen Shankar and Balu and Balu was having
an axe in his hand, and Balu was assaulting Shankar. When Balu saw
me going towanb them, l3t1lu returned to his house with catties. i ran
D towards Shankar. Shnnktu Was lying with dripping blood from his
body, he was unconscious hettce I saw where he was assaulted. I saw
deep wound in his head hence I shouted "Bring water" (Pani Ana,
Pani Ana). Then my cousin brother Gorakh Anna brought the water.
Water was given to him but he did not talk anything hence I started
weeping loudly. At that time after hearing my voice my uncle Daru
E
Shinde and cousin brother Gorakh Anna shifted my brother to
Talegaon Hospital, by bullock cart.At that time my mother Sitabai,
aunt lndubai, Shankar's wife Dwarkabai accompanied them. I went
to our house. When I was at home my uncle Daru Shinde and aunt
lndubai came back to Urse at 2.00 p.m. with the bullock-cart. They
F told me that Shankar was not admitted by Talegaon Hospital due to
serious injuries. He is sent to hospital at Pune. This quarrel has arose ·
out of partition of land."

It is further to be noticed that in the evidence tendered by PW 5, there
is existing a complete departure as regards the witnessing of the fight. Though
G the oral testimony lends corroboration to the later part of the complaint. The
situation thus emerges that authentication of the complaint by the left thumb
impression of PW 5 though stands admitted, but there was a refusal as regards
PW 5 being an eye witness to the occurrence. PW 5 stated in no uncertain
language that intimation of Shankar's injury was given to her by some local
H boys and on arrival at the place of occurrence PW 5 found Shankar lying
BALU SONBA SHINDE v. STATE OF MAHARASHTRA [BAN ER.IEE. J.] 145

injured in the field and it is at that juncture she cried for water as noticed A
herein before. PW 5 however then proceeds to state that upon he~ring the
cry, neighbours gathered and it is only thereafter Dharu and Gorakh came
there together, who lifted the injured Shankar and took him on the Oti of the
house of the accused Balu.

At this juncture, let us analyse the evidence of PW 4 in a slightly more B
greater detail it seems that the involvement of the accused shall have to be
established : Dharu therefore has to be present at the place of occurrence and
show the good neighbourly gesture by advising the brothers not to fight, even
if this is an acceptable piece of evidence but evidence thereafier seem to be
rather an improbable if not an impossibility for acceptance. Since the distance C
of 30/40 feet cannot be that long a distance which Dharu has said to have
traversed between the neighbourly gesture and the wailing of PW 5; Dharu
inimediately looked back, but the silence pervades thereafter as regards the
presence of Batu and PW 5. On the contrary, the evidence of PW 5 for which
. she has been declared hostile seems to be going in consonance with the
normal reactions and normal behavioural pattern. The factum of not seeing D
either the accused or PW 5 Dharu turned round within a distance of 30/40
feet is rather difficult to accept. If the evidence of PW 4 is considered in the
perspective as above question of acceptance thereto wou Id not arise and
having regard to the availability of materials, the success of prosecution
becomes rather doubtful. Admittedly, there is no direct evidence and the E
entire prosecution hinges on circumstantial evidence. In the event, however,
the chain is snapped and there is a gap therein, the accused cannot but be said
to be entitled to a doub~. This aspect of the matter has been totally ignored
by the High Court and in our view the same goes to the root of the matter
and by reason of non-adherence to the basic principles pertaining to the
evidence in the perspective as has been stated hereinbefore, there was truly F
a miscarriage of justice warranting intervention of this Court.

In the view of the aforesaid, this appeal succeeds. The appeal is thus
allowed the conviction and the order of sentence as confirmed by the High
Court stands set aside and quashed. The appellant who is in custody is directed
to be released forthwith unless required in any other matter. G
K.K.T. Appeal allowed.