Holding

The prosecution failed to prove the charge beyond reasonable doubt, and the conviction was set aside.

Summary

The appellant Dhananjay Shanker Shetty was convicted under Section 302 read with Section 34 of the IPC for the murder of Uday Patole. The prosecution relied on police constables who claimed to have seen the accused and his companions fleeing with weapons and on a telephonic message to the police station, but the accused's name was omitted from the station diary. The appellant was found injured at arrest, yet the prosecution did not explain these injuries. The trial and High Courts dismissed the identification parade evidence and the recovered weapons, but upheld the conviction. The Supreme Court held that the non‑disclosure of the name in the diary rendered the witnesses' statements unreliable, the unexplained injuries created material doubt, and the lack of motive further weakened the case. Consequently, the Court found the prosecution had not proved the case beyond reasonable doubt and set aside the conviction, acquitting the appellant.

Issues considered

The reliability of witness statements when the accused's name is omitted from the station diary.
Whether the prosecution's failure to explain injuries on the accused creates reasonable doubt.
Whether the absence of a proved motive affects the prosecution's case.
Whether re‑appraisal of evidence by the Supreme Court is permissible in such circumstances.
The admissibility and weight of identification parade evidence when the accused is already named.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34

Subjects

murderSection 302 IPCSection 34 IPCcircumstantial evidencestation diarywitness reliabilityidentification paradeinjuries on accusedmotivereappraisal of evidenceconviction set aside

Judgment

A DHANANJA Y SHANKER SHETTY
v.
STATE OF MAHARASHTRA

JULY 31, 2002

B [SHIVARAJ V. PATIL AND B.N. AGRAWAL, JJ.]

Penal Code, 1860-Section 302 read with Section 34-Conviction
under-No direct evidence-Non-disclosure of name of the accused in station
diary entry-Statement of witnesses that accused seen by them fleeing away
C with weapons-Conviction by Trial Court-Upheld by High Court-On
appeal-Held, in viewo/ non-disclosure of the name in the station diary entry
witnesses not reliable-Conviction set aside.

Criminal Trial:
D Injuries on accused-Not explained by prosecution-Effect of-Held,
non-explanation of injuries assumes significance when there are material
circumstances which make the prosecution case doubtful.

.Motive-Not alleged or proved-Effect of-Held, merely because motive
E is neither alleged nor proved would ipso facto not affect prosecution case.
Practice and Procedure-Concurrent finding by courts below-
Reappraisal ofevidence by Supreme Court-Permissibility of-Held, ordinarily
not permitted-But where it is found that compelling grounds exist it is permitted
. for doing complete justice. ·
F
Appellant-accused and two other accused were tried for offences
under Section 302 r/w Section 34 IPC. Prosecution case was that PWs 1,2
and 9, police constables while they were on patrolling duty saw appellant
and his associate running armed with weapons shouting that 'U' was killed.
They came to the spot of incident, and found 'U' lying dead. PWl then
G sent telephonic message to the police station stating that the deceased was
killed by appellant-accused. However, name of the appellant was not
entered in station diary.

On medical examination of the appellant, several injuries were found
on his person. Two other accused were also arrested as suspects. All the
H 352
... DHANANJA Y SHANKER SHEITY v. STATE

three accused were identified in Test Identification Parade by PWs 1,2 and
353
A
9. Blood stained clothes and weapons were recovered from the house of
the appellant

Sessions Court acquitted the co-accused but convicted the appellant.
accused of the charges. The conviction was confirmed by High Court. Both
the courts found legal infirmities in the holding of test identification parade B
and also did not rely on the recovery of clothes and weapons.

In appeal to this Court appellant contended that prosecution had not
established its case beyond reasonable doubt in view of failure to explaill
injuries on him and absence of allegation or evidence to prove motive of
the appellant to commif the offence. c
Allowing the appeal, the Court

HELD: 1. Prosecution has failed to prove its case beyond reasonable
doubt and the High Court was not justified in upholding the conviction
of the appellant. (358-A( D

2.1. The fact that name of the appellant was not mentioned in station
diary entry makes the statement of PWs 1,3 and 9, to the effect that in
the telephonic information which was given to the police station by them
name of the appellant was disclosed, highly doubtful. None of the three
E
witnesses had seen any of the accused. persons much less the appellant
fleeing away and when they found the deceased lying dead, they might
have sent telephonic message to the police station only to the effect that
he had been murdered and name of the appellant was not disclosed therein
and subsequently when PWs 12 and 15 arrived at the place of occurrence,
name of the appellant was disclosed for the first time in the Jard beyan as F
he was a history-sheeter. Thus, because of non-disclosure of name of the
appellant in the station diary entry, it is not safe to place reliance on the

' evidence of PWs 1,3 and 9 that they had seen the appellant and three other
accused persons fleeing away with swords and choppers shouting that 'U'
was killed. (356-F, G, H; 357-A(
G
1 2.2. As the appellant was named accused person, his so called
identification in the test identification parade could not be of any avail to
the prosecution. (357-C(

3. It cannot be laid down as a matter of law or invariably a rule that
H
354 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A whenever accused sustained an injury in the same occurrence, the
prosecution is obliged to explain it and on its failure to do so the
prosecution case should be disbelieved. But non-explanation of injuries
assumes significance when there are material circumstances which· make
the prosecution case doubtful. In the instant case, non-explanation of
B injuries on the appellant by the prosecution assumes significance as there
are circumstances which make the prosecution case, showing complicity
of appellant with the crime, highly doubtful. (357-E, F, G)

Takhaji Hiraji v. Thakore Kubersing Chamansing, [2001) 6 SCC 145
and Kashiram and Ors. v. State of MP., (2002] 1 SCC 71, referred to.
c 4. Merely because motive is neither alleged nor proved, the same
would ipso facto not affect the prosecution case, but in the instant case
there are other circumstances to create doubt regarding veracity of the
prosecution case, this may also become material. [357-H; 358-A)

D 5. Ordinarily, after appraisal of evidence by the two courts below
and recording concurrent verdict of conviction, this Court does not
interfere with the same, but where it is found that compelling grounds exist
-
and "there would be failure of justice, a duty is enjoined upon it to r--
reappraise the evidence itself for doing complete justice in the case. In the
facts and circumstances for the present case, reappraisal of evidence is
E deemed fit and proper. [356-B, C]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 166 of
2002.

From the Judgment and Order dated 18.7.2000 of the Bombay High
F Court in Crl. A. No. 632 of 1995.

T.R. Kakar, for the Appellants.

Ravi Adsure S.S. Shinde and V.N. Raghupathy, for the Respondent. r
G The Judgment of the Court was delivered by

B.N. AGRAWAL, J. The sole appellant in this appeal by Special Leave
has impugned his conviction under Section 302 read with Section 34 of the
Penal Code as upheld by Bombay High Court.

H The short facts are that Shankar Maruti Kamble (PW. I), Dilip Shrirang ...
DHANANJAYSHANKERSHEITYv. STATE [B.N.AGRAWAL,J.) 355
Barge (PW.2) and Siddharth Keshav Kamble (PW.9) were constables attached A
to Jogeshwari police station and they were on patrolling duty at Partap Nagar
within the jurisdiction of the said police station in the afternoon of 29th
October, 1991. At about 3.30 p.m. When they arrived at the junction of Partap
Nagar, they saw people running hdter skelter from Triveni Lane. They also
noticed that four persons were running armed with weapons, i.e., swords and
choppers shouting that Uday Patole was killed. Dilip Shrirang Barge (PW 2) B
could identify the appellant - Dhananjay Shanker Shetty as he was known
history sheeter from that area and also wanted in criminal cases. The said
constables tried to chase the appellant and his three other companions but in
vain. Thereupon, they returned back to Triveni Lane junction and found that
Uday Patole was lying in pool of blood with several injuries on his person. C
PW. I immediately sent telephonic message from the nearby medical stores
to the police station stating that Uday Patole was murdered by Dhananjay
Shankar Shetty and three other persons on receipt of which Ravindra J.
Medsingh-Station Duty Officer, (PW.12) and Bhimrao Shivram Khambe-
lnspector of Police (PW.15) rushed to the place of occurrence where statement
of Shankar Maruti Kamble (PW.I) was recorded stating therein the above D
said facts on the basis of which a first information report against the appellant
and three unknown persons was registered at Jogeshwari police station at
4.40 p.m.

The police after registering the case took up investigation during the E
course of which when the appellant was arrested he was found injured and
accordingly referred by the police to doctor-Dilip Ram Chandra Waje (PW.13)
for examination who found several injuries on his person. During fuvestigation,
two other persons, namely, Sudhir Dattatraya Shinde and Rajesh Babu Kharat
were also arrested as suspect and they afong with the appellant were put on
test identification parade in which PWs. 1,3 and 9 are said to have identified F
all of them. Upon completion of investigation, the police submitted charge
sheet, on receipt whereof learned Magistrate took cognizance and committed
the appellant and the aforesaid two other accused persons to the Court of
Sessions to face trial.

Defence of the accused was that they were innocent and no occurrence G
much less the one alleged had taken place.

During trial, the prosecution examined 15 witnesses in all and various
documents were exhibited. Upon conclusion of the trial, the learned Sessions
Judge acquitted other two accused persons of the charge under Section 302 H
356 SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R.

A read with Section 34 of the Penal Code whereas convicted the appellant
under Section 302 read with section 34 of the Penal Code and sentenced him
to undergo imprisonment for life. On appeal being preferred by the appellant,
his conviction and sentence have been upheld by the High Court. Hence, this
appeal by special leave.

B Ordinarily, after appraisal of evidence by the two courts below and
recording concurrent verdict of conviction, this Court does not interfere with
the same, but where it is found that compelling grounds exist and there
would be failure of justice, a duty is enjoined upon it to reappraise the
evidence itself for doing complete justice in the case. In the facts and
C circumstances of the present case, we deem it fit and proper to reappraise the
evidence. Undisputedly, in the case on hand, there is no direct evidence as
nobody is said to have seen the accused persons assaulting Uday Patole, the
deceased, and it is a case of circumstantial evidence. The most important
circumstance against the appellant was that PWs. I, 3 and 9 who were on
_patrolling duty had seen the appellant and his associates fleeing away armed
D with swords and choppers shouting that Uday Patole was killed. According
to the first information report as well as evidence of PWs. 1,3 and 9,
information was telephonically given to Ravindra J. Medsingh (PW .12) at the
police station immediately to the effect that the appellant and three others had
murdered Uday Patole who passed on information immediately to the Inspector
E of Police - Bhimrao Shivram Khambe (PW.15), who was also there, on the
basis of which station diary entry was made by PW.12 which has been
marked as Ex. 36 and thereafter they left for the place of occurrence. But
curiously enough in the station diary entry, name of the appellant was not
mentioned. PW.15 admitted during the course of cross-examination that
ordinarily on receipt of information in respect of any offence, entries are
F required to be made in the station diary. No reason whatsoever has been
assigned either by PW.12 or PW.15 as to why normal procedure of entering
name of the appellant as accused in the station diary entry was not followed
and the fact that name of the appellant was not mentioned in station diary
entry makes the statement of PWs. 1, 3 and 9 to the effect that in the telephonic
G information which was given to the police station by them, name of the
appellant was disclosed, highly doubtful. It appears that none of these three
witnesses had seen any of the accused persons much less the appellant fleeing
away and when they found Uday Patole lying dead, they might have sent
telephonic message to the police station only to the effect that he had been
murdered and na_me of the appellant was not disclosed therein and subsequently
H when PWs.12 and 15 arrived at the place of occurrence, name of the appellant
DHANANJAYSHANKERSHETTYv. STATE (B.N.AGRAWAL,J.] 357
was disclosed for the first time in the fard beyan as he was a history sheeter. A
Thus, because of non- disclosure of name of the appellant in the station diary
entry, it is not safe to place reliance on the evidence of PWs I, 3 and 9 that
they had seen the appellant and three other accused persons fleeing away
with swords and choppers shouting that Uday Patole was killed.

Next circumstance against the appellant was his so called identification B
in the test identification parade by PWs l, 3 and 9. The trial court as well as.
the High Court has found various legal infirmities in the holding of test
identification parade as such no reliance has been placed thereon. Moreover,
as the appellant was named accused person, his so called identification in the
test identification parade could not be of any avail to the prosecution as it C
was meaningless.

Another circumstance which was alleged against the appellant was that
blood stained clothes and weapon were recovered from his house, but the
trial court as well as the High Court did not place any reliance upon this
circumstance in view of the fact that according to the report of chemical D
examiner, the blood group found thereon did not tally with that of the deceased.

Learned counsel appearing on behalf of the appellant pointed out that
when the appellant was arrested, the police found several injuries on his
person and accordingly forwarded him to Dr. Dilip Ram Chandra Waze E
(PW.13) who found four incised injuries on non-vital parts of his body caused
by sharp edged weapon and the prosecution has completely failed to explain
the same. It cannot be laid down as a matter of law or invariably a rule that
whenever accused sustained an injury in the same occurrence, the prosecution
is obliged to explain it and on its failure to do so the prosecution case should
be disbelieved. But non-explanation of injuries assumes significance when F
there are material circumstances which make the prosecution case doubtful.
Reference in this connection may be made to recent decisions of this Court
in the cases of Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6
SCC 145, and Kashiram and Ors. v. State of MP., [2002] l SCC 71. In the
present case, non-explanation of injuries on the appellant by the prosecution G
assumes significance as there are circumstances which make the prosecution
case, showing complicity of appellant with the crime, highly doubtful. Learned
l
counsel appearing on behalf of the appellant submitted that neither there is
any allegation nor evidence to show that the appellant had any motive
whatsoever to commit the crime. It is well settled that merely because motive
is neither alleged nor proved, the same would ipso facto not affect the H
35.8 SUPREME COURT REPORTS (2002] SUPP. 1 S.C.R.

A prosecution case but in case there are other circumstances to create doubt
regardit1g veracity of the pro~ecution case, this may also become material.

11'1 view of the foregoing discussion, we are of the opinion that the
prosec\ltion has failed to prove its case beyond reasQj;able doubt and the
High Court was not justified in upholding conviction of the appellant.
B
In the result, the appeal is allowed, conviction and sentence awarded
against the appellant are set aside and he is acquitted of the charge. The
appellant, who is in custody, is directed to be released forthwith if not required
in connection with any other case.

C K.K.T. Appeal allowed.

l