Holding

The Court held that the prosecution failed to prove the essential circumstantial links, and therefore the appellant must be acquitted of the charges.

Summary

The appellant, Pavan Vasudeo Sharma, was arrested during a raid on a kidnapping case and a 9 mm service pistol, live cartridges and two mobile phones were seized from him. The prosecution alleged that the pistol, originally belonging to a police Naik, was used to murder Bhima Waghmare and that the seized mobile phone was used to make ransom calls, linking the appellant to both the murder and kidnapping. The trial court convicted the appellant on murder and related charges, but the High Court acquitted the co‑accused on the murder count, prompting the appellant to appeal. The Supreme Court examined whether the circumstantial evidence – the mobile phone subscription and the ballistic match of the pistol – sufficiently excluded all other hypotheses of innocence. It found that the mobile phone was not subscribed by the deceased and that no identification parade proved the accused handled the weapon, leaving reasonable doubt. Applying the principles from Sharad Birdhichand Sarda, the Court held that the prosecution had not met the stringent requirements for circumstantial proof and acquitted the appellant.

Issues considered

Whether the circumstantial evidence of the seized mobile phone and the service pistol establishes the appellant's guilt beyond reasonable doubt under IPC s.302.
Whether the prosecution satisfactorily proved the link between the accused and the service weapon allegedly used in the murder.
Whether the absence of a test identification parade violates the evidentiary requirements for conviction.
Whether the benefit of doubt principle mandates acquittal in the presence of unresolved hypotheses.

Legislation cited

Arms Acts. 25, s. 3
Bombay Police Acts. 135, s. 37(1)
Indian Penal Code, 1860s. 302, s. 34, s. 392

Subjects

circumstantial evidencebenefit of doubtmurderarms actidentification parademobile phone evidenceIPC 302acquittal

Judgment

[2019] 5 S.C.R. 11 11

PAVAN VASUDEO SHARMA A
v.
STATE OF MAHARASHTRA THROUGH SECRETARY
(Criminal Appeal No.519 of 2019)
MARCH 25, 2019 B

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Penal Code, 1860 – ss.302 and 392 – Bombay Police Act –
s.37(1) r/w. s.135 – Arms Act – s.3 read with s.25 – Prosecution
case that four persons including accused Nos.1 & 2 kidnapped a C
boy and called for a ransom – Police raided a building and
apprehended four persons including the accused persons –
During the personal search of Appellant-accused No.1, a pistol, 2
live cartridges and two cell phones were recovered – Pistol
recovered from accused No.1 was a service weapon which was
entrusted to PW-11 - Police Naik, which was earlier snatched from D
him by unknown persons in a separate incident – Cartridges
recovered from the accused No.1 was test fired by the forensic
analyst from the same pistol – The features of the firing pin
impression on the cartridge tallied with from a bullet recovered from
body of a deceased ‘B’ in a different incident – When the body of E
‘B’ was recovered, it was alleged that his two mobile phones were
robbed – Further, it was alleged that ransom call in the kidnapping
case was made by accused persons from the mobile number of
deceased ‘B’ – Accused no.1 & 2 were tried for murder of ‘B’ and
other offences u/ss.302, 392 r/w. s.34 of IPC, s.37(1) r/w. s.135 of
the Bombay Police Act and s.3 read with s.25 of the Arms Act – Trial F
court convicted accused no.1 & 2 – High Court acquitted accused
no.2 u/s. 302, 392 of IPC – Aggrieved, appellant-accused no.1 filed
appeal – Held: It is a settled principle that circumstances relied
upon must rule out every single hypothesis except the guilt of the
person accused of an offence – The first circumstance G
regarding mobile phone was not proved – The mobile number was
not subscribed by deceased ‘B’ but was subscribed by one ‘S’ and
there was no link between the two – The second circumstance was
regarding bullet recovered from the body of the deceased – It is
true that bullet recovered from the body of ‘B’ matched with the
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11
12 SUPREME COURT REPORTS [2019] 5 S.C.R.

A service weapon which was allocated to PW-11-Police Naik but
theory that the weapon was snatched by accused was not proved –
No Test Identification of accused persons was held – Both
circumstances were not sufficiently established against the accused
– There were too many missing links and the material on record
does not exclude every single hypothesis except the guilt of the
B
man – Therefore, benefit of doubt given to the appellant –
Appellant-accused no.1 acquitted of the charges levelled against
him.
Allowing the appeal, the Court
C HELD: 1. Two circumstances which are principally relied
upon by the prosecution are the recovery of a mobile phone which
was allegedly used for making demands of ransom; and Seizure
of 9 mm pistol. The first circumstance regarding mobile phone
is not proved at all. The mobile number was not subscribed by
deceased ‘B’ but was subscribed by ‘S’. No link between these
D two persons has been established nor any bill in the name of said
‘B’ was produced on record. Since the evidence that the mobile
number was subscribed by said ‘S’ was led by the prosecution
itself, it cannot be assumed that said mobile number was, in fact,
subscribed by ‘B’. The connection which would link the accused
E with the murder of ‘B’, on this front is completely missing. As
regards the second circumstance, it is true that the bullet
recovered from the body of the deceased matched with the
service weapon which was allocated to PW11-Police Naik but the
theory that the weapon was snatched by the accused is not
sufficiently established. No Test Identification Parade was held
F and if held, no material in that behalf has been produced on record.
The second circumstance, therefore, is not sufficiently established
as against the accused. [Paras 9 and 15] [16-G-H; 19-B-D]
2. Applying the principles as culled out in the Sharad
Birdhichand Sarda decision, which have stood the test of time,
G the matter is not free from doubt. The circumstances relied upon
must rule out every single hypothesis except the guilt of the
person accused of an offence. There are too many missing links
in the present matter and the material on record does not
exclude every single hypothesis except the guilt of the man.
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PAVAN VASUDEO SHARMA v. STATE OF MAHARASHTRA 13
THR. SECRETARY

Therefore, the benefit of doubt given to the Appellant. The A
Appellant is acquitted of the charges levelled against him.
[Paras 17, 18] [20-E-G]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.
Case Law Reference B

[1985] 1 SCR 88 relied on Para 16

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.519 of 2019. C
From the Judgment and Order dated 24.03.2015 of the High Court
of Judicature at Bombay in Criminal Appeal No. 700 of 2013
Ravi Prakash Mehrotra, Ms. Deepti R. Mehrotra, Ankit Agarwal,
Advs. for the Appellant.
D
Anoop Kandart, Nishant Ramakantrao Katneshwarkar, Advs. for
the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. 1.Leave granted.
E
2. This appeal at the instance of original Accused No.1,
challenges the correctness of the judgment and order dated 24.03.2015
passed by the High Court of Judicature at Bombay dismissing his
Criminal Appeal No.700 of 2013.
3. According to the prosecution, Police Naik Nagare (later F
examined as PW11 in the trial) was robbed of his pistol (service weapon)
and walkie talkie set by three persons on 20.12.2005 at about 9.00 pm.
Accordingly an FIR was registered on 20.12.2005 in respect of said
incident, which FIR in the present proceedings was placed on record
vide Exhibit 106. The FIR did not name any person but gave description
of all the three persons. The said case was separately tried. G

4. On 04.01.2006 PW1-PSI Dabir received a phone call that one
injured person was lying near a motorcycle on Mumbai-Pune highway.
Said PW1 went to the spot and took the injured to the hospital where he
was declared dead. On the basis of motorcycle driving licence found in
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14 SUPREME COURT REPORTS [2019] 5 S.C.R.

A the trousers of the deceased, he was identified as one Bhima Waghmare.
The family members were, thereafter, informed and FIR Exhibit 13 was
lodged pursuant to which an offence was registered vide C.R.No.5 of
2006. The investigation commenced and body was sent for post-mortem.
PW3 Dr. Joshi conducted the post-mortem and found the following
external injuries:-
B
“(1) Fire arm injury. Right side inframammary region, 13 cm
below and medial to left mammary gland.
(2) Burn injury due to firm arm on left thigh. Two in number. 9
cm. below iliac left side admeasuring 2 ½ cm. x 1 cm. Superficial to
C deep. Dark black in colour with red center.
(3) Abrasion over 9 cm. below iliac region left side 8 cm below
and 5 cm posterior to anterior superior iliac spine, admeasuring 2 ½ cm
x superficial to deep.
(4) Abrasions on body as under:
D
(A) Arm medial third anteriorly;
(B) Elbow posteriorly and
(C) Wrist anteriorly:
(D) (a) Thigh middle third.
E
(b)Knee joint.”
Said PW3 Dr. Joshi found the following corresponding internal
injuries:-
“Penetrating wound to abdominal wall, peritoneum superior side
F of left lobe of liver, shattering part of it. Coming out at inferior
side, entering into pancreas, shattering out the pancreas, penetrating
at two sites at mesentery of small intestine. Two cm. in diameter
each, going posterior medial to left kidney with large retro peritoneal
and peritoneal region. Fitting lumber spine no. 4 and 5 body with
G indentation and fracture at left side of body of L 4 and L 5.
Changing the direction hitting illiacrest at left Sacra iliac joint.
Changing direction, getting embedded into para spinal muscles
and fat left side, directed laterally and superiorly. Bullet recovered
from above mentioned side. Yellowish metal concavity
at its base.”
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PAVAN VASUDEO SHARMA v. STATE OF MAHARASHTRA 15
THR. SECRETARY [UDAY UMESH LALIT, J.]

5. It is the case of the prosecution that when Bhima Waghmare A
was shot, the firm arm used in the transaction was the same service
weapon which was robbed from PW11 Police Naik Nagare. Soon after
the murder, two cell phones belonging to Bhima Waghmare were also
allegedly robbed, one of them being a cell phone of Nokia Company
with cell number 9850520922. This mobile was later used in the case of
B
kidnapping of a boy named Akash Lokhande, who was kidnapped on
13.01.2006 and the calls for ransom were stated to have been made
from the very same cell phone to PW 12 Sanjay Lokhande, father of the
boy. An FIR was registered in relation to said kidnapping on 13.01.2006
and said case was also tried separately.
6. During the course of investigation of the kidnapping case, C
information was received by the police that said Akash Lokhande was
confined in a building in Vimannagar, Pune. Accordingly, a raid was
arranged and when the police entered said building, they found Pavan
Vasudeo Sharma (Accused No.1), Pankaj Ramgopal Jagaria (Accused
No.2), Vasudeo Sharma and Rajendra Gaud to be present there. Those D
persons were apprehended.
During his personal search, a 9 mm pistol (service revolver) and
two live cartridges were recovered from Accused No.1. Two cell phones
were also found from him. In the search of Accused No.2, a chopper
was found. All those four persons came be to apprehended in E
kidnapping case. The recovered pistol was sent for forensic analysis.
The forensic analyst found that the bullet which was recovered from the
stomach of deceased Bhima Waghmare, was fired from the same
pistol. The live cartridge that was recovered from Accused No.1 was
test fired by the forensic analyst from the same pistol and the features
of the firing pin impression on the cartridge tallied with those found from F
the bullet recovered from the body of deceased Bhima Waghmare.
All the four apprehended persons were put up for identification
by PW11 Police Naik Nagare and according to the witness he could
identify Accused Nos.1 and 2. However, no documentation as regards
the Test Identification Parade was produced on record in the present G
trial.
7. After completion of investigation, Accused Nos.1 and 2 were
tried for having committed the offences including the murder of said

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16 SUPREME COURT REPORTS [2019] 5 S.C.R.

A Bhima Waghmare, punishable under Sections 302, 392 read with
Section 34 of the Indian Penal Code, Section 37(1) read with Section
135 of the Bombay Police Act and Section 3 read with section 25 of the
Indian Arms Act.
8. PW2 Seema widow of the deceased Bhima Waghmare stated
B in her deposition that her husband was having two mobile numbers and
one of them was 9850520922. She accepted that in her first reporting
she had expressed suspicion against some other persons including
professional rivals of her husband. PW5 Sachin Mahadev Shinde, Nodal
Officer of Idea Cellular Company stated that mobile phone number
9850520922 was subscribed by one Sanjay S. Roy having his address as
C Sai Prasad Foods Ltd., Telco Road, First Floor, near Raka Gas
Company, Chinchwad Station, Pune-411019. He also produced the record
of calls details vide Exhibit 55 showing relevant pages of call details with
regard to period January 2006 and February 2006 about user of the
mobile. PW6 Senior Police Inspector Pandurang Udhavrao Kohimkar
D was the Investigating Officer in the matter. He did not depose about
any Test Identification Parade nor did he produce any record regarding
identification of Accused Nos. 1 and 2 by PW11 Police Naik Nagare.
PW12 Sanjay Lokhande, father of Akash Lokhande testified that
demands for ransom were made from him and the communication was
received from mobile number 9850520922. During his testimony he
E also mentioned that the person who was making the demand had
casually mentioned that they had killed a person at Karjat.
9. It was the case of the prosecution that the pistol seized from
the Apellant-Accused No.1 was a service weapon which was entrusted
to PW11 Police Naik Nagare, which weapon was snatched from him on
F 20.12.2005. It was the same weapon which was found to be used in the
commission of offence of murder of Bhima Waghmare. There was no
direct evidence in the form of any eyewitness account which was
available on record and the prosecution mainly relied upon certain
circumstances in support of its case. The circumstantial evidence in the
G matter was based mainly on two features:-
a) Recovery of mobile phone which was allegedly used for
making demands of ransom; and
b) Seizure of 9 mm pistol as aforesaid.

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PAVAN VASUDEO SHARMA v. STATE OF MAHARASHTRA 17
THR. SECRETARY [UDAY UMESH LALIT, J.]

10. Apart from these two circumstances, reliance was also placed A
on the alleged extra judicial confession made by those demanding
ransom in their telephonic conversation with PW12-Sanjay Lokhande.
Considering these circumstances to be clinching and pointing towards
nothing but the guilt of the accused, the Additional Sessions Judge, Pune,
vide his judgment dated 11.01.2011 convicted said Accused Nos. 1 and
B
2 for the offences punishable under Sections 302, 392 read with Section
34 IPC, Section 37(1) read with Section 135 of the Bombay Police Act
and Section 3 read with section 25 of the Indian Arms Act and
sentenced them to suffer life imprisonment under the first count,
rigorous imprisonment for two years under the second count, rigorous
imprisonment for 15 days under the third count and rigorous C
imprisonment for six months under the fourth count.
11. Both the convicted accused challenged their conviction and
sentence by preferring two appeals being Criminal Appeal No.700 of
2013 and Criminal Appeal No.1056 of 2013. As regards Accused No.1,
the High Court found that the prosecution had established its case and D
there was sufficient evidence to prove that he was involved in the crime
relating to the murder of Bhima Waghmare. The High Court, however,
found that there was no material to connect Accused No.2 with the
crime and, therefore, acquitted him of the charges levelled against him
under Sections 302, 392 of IPC and under Section 3 read with section 25
of the Indian Arms Act but maintained his conviction and sentence E
insofar as offence under Section 37(1) read with Section 135 of the
Bombay Police Act was concerned.
12. It is a matter of record that the acquittal of Accused No.2 has
not been challenged by the State and has attained finality.
F
13. The facts narrated above bring out the following features:-
a) Going by FIR at Exhibit 106, three persons were responsible
for robbing PW11 Police Naik Nagare of his service weapon.
Though the description of all three persons was given in FIR
Exhibit 106, no Test Identification Parade was undertaken when G
four suspects were apprehended during investigation of the
kidnapping case. No material in that behalf is produced on
record. Nothing is clear on record as to who was the third
person.

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18 SUPREME COURT REPORTS [2019] 5 S.C.R.

A b) According to PW11 Police Naik Nagare he had lost
consciousness for a while after he was assaulted by those three
persons; that after he regained consciousness, he dialed 100
from his mobile and intimated about the loss of his service
weapon and walkie talkie. It is somewhat incongruent that the
persons who robbed him of his service weapon and walkie talkie
B
would leave his mobile intact.
c) In terms of version of PW2 Seema, mobile number 9850520922
was subscribed by her husband Bhima Waghmare. On the
other hand, the evidence led by the prosecution itself in the
form of testimony of PW5 Sachin Mahadev Shinde shows that
C mobile number 9850520922 was subscribed by one Sanjay S
Roy. Again, the prosecution has failed to establish the link, if
any, between said Sanjay S Roy and Bhima Waghmare and
whether said Sanjay S Roy had ever handed over his mobile to
Bhima Waghmare.
D d) PW2 Seema in her original version had expressed suspicion about
certain professional rivals of her husband.
e) The assertion that one of the persons making ransom calls had
disclosed that they had killed a person at Karjat did not come in
the examination-in-chief of PW12 Sanjay Lokhande but
E appeared in his cross-examination. It was thus not the specific
case of the prosecution that any extra judicial confession was
made to PW12 Sanjay Lokhande.
f) The matter has one more dimension. While ordering acquittal
of Accused No.2, insofar as principal charges are concerned,
F his conviction for offence under Section 37(1) read with Sec-
tion 135 of the Bombay Police Act was maintained by the High
Court. We, thus, have to proceed on the footing that Accused
No. 2 was also guilty of snatching the service weapon of PW11
Police Naik Nagare but not of murder.
G g) There was a gap of about 15 days between the snatching of the
service weapon and murder.
14. With the acquittal of Accused No.2 of the principal charge
under Section 302, we are now called upon to see whether the material

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PAVAN VASUDEO SHARMA v. STATE OF MAHARASHTRA 19
THR. SECRETARY [UDAY UMESH LALIT, J.]

on record sufficiently establishes that it was Accused No.1 alone who A
was guilty of the offence punishable under Section 302 IPC.
15. Two circumstances which are principally relied upon by the
prosecution are already mentioned hereinabove. The first circumstance
regarding mobile phone is not proved at all. The mobile number was not
subscribed by deceased Bhima Waghmare but was subscribed by Sanjay B
S. Roy. No link between these two persons has been established nor
any bill in the name of said Bhima Waghmare was produced on record.
Since the evidence that the mobile number was subscribed by said Sanjay
S. Roy was led by the prosecution itself, it cannot be assumed that said
mobile number was, in fact, subscribed by Bhima Waghmare. The
connection which would link the accused with the murder of Bhima C
Waghmare, on this front is completely missing. As regards the second
circumstance, it is true that the bullet recovered from the body of the
deceased matched with the service weapon which was allocated to PW11
Police Naik Nagare but the theory that the weapon was snatched by the
accused is not sufficiently established. No Test Identification Parade D
was held and if held, no material in that behalf has been produced on
record. The second circumstance, therefore, is not sufficiently
established as against the accused.
16. The law on the point of appreciation of cases based on
circumstantial evidence is very clear. It was laid down by this Court in E
Sharad Birdhichand Sarda vs. State of Maharashtra1as under:-
“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 F
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 G
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra2 where the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047]
1
(1984) 4 SCC 116
2
(1973) 2 SCC 793; 1973 SCC (Cri) 1033; 1973 Cri LJ 1783 H
20 SUPREME COURT REPORTS [2019] 5 S.C.R.

A “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
B 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,
C (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
D 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.”
17. Applying the principles as culled out in the aforesaid decision,
E
which have stood the test of time, in our view, the matter is not free from
doubt. The circumstances relied upon must rule out every single
hypothesis except the guilt of the person accused of an offence. There
are too many missing links in the present matter and in our considered
view, the material on record does not exclude every single hypothesis
F except the guilt of the man.
18. We, therefore, give benefit of doubt to the Appellant. This
appeal is, therefore, allowed and the Appellant is acquitted of the charges
levelled against him. He be set at liberty forthwith unless his presence is
required in connection with any other offence.
G
Ankit Gyan Appeal allowed.

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