SURESH THIPMPPA SHETTYversusTHE STATE OF MAHARASHTRA

                [2023] 11 S.C.R. 1135 : 2023 INSC 749



                           CASE DETAILS

                    SURESH THIPMPPA SHETTY
                                    v.
                  THE STATE OF MAHARASHTRA
                  (Criminal Appeal No. 1541 of 2010)
                             JULY 26, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]

                             HEADNOTES

      Issue for consideration: Appellants-accused (A4 and A2) were
convicted u/s.302, s.120B, IPC and sentenced accordingly. Whether High
Court was justified in dismissing the appeals filed by them and upholding
their conviction.
     Administration of Criminal Justice – Reasonable doubt as to the
involvement of the appellants in the crime – Conviction unsustainable:
      Held: There is sufficient material on record giving rise to reasonable
doubt as to the involvement of the appellants in the crime – Appellants
were able to poke holes in the testimonies of PW1, PW2 and PW7 – This
conclusion is only fortified as co-accused A1 and A7 were acquitted and
thus, the conspiracy angle dehors the said main conspirators, who are the
masterminds as per the prosecution, cannot be said to have been proved
beyond reasonable doubt – Undisputedly, the four persons in the car on the
fateful date were (1) the deceased; (2) PW1; (3) assailant/shooter, who is
absconding, and (4) A3 – Admittedly, the appellants were not present at the
spot where the crime was committed i.e., in the car nor any direct/specific
role in commission of the offence being attributed to them and thus, their
convictions cannot be upheld – Noor Mohammad Mohd. Yusuf Momin v.
State of Maharashtra reported as [1971] 1 SCR 119 relied on by the High
Court does not, in any manner, militate against this Court overturning a
conviction when reasonable doubt emanates – Appeals allowed. [Paras 13
and 17]
     Administration of Criminal Justice – Reasonable doubt as to the
version put forth by the prosecution:
                                1135
1136          SUPREME COURT REPORTS                       [2023] 11 S.C.R.


      Held: When this Court is confronted with a situation where it has to
ponder whether to lean with the Prosecution or the Defence, in the face of
reasonable doubt as to the version put forth by the Prosecution, this Court
will, as a matter of course and of choice, in line with judicial discretion,
lean in favour of the Defence – Life and liberty are not matters to be trifled
with, and a conviction can only be sustained in the absence of reasonable
doubt – The presumption of innocence in favour of the accused and
insistence on the Prosecution to prove its case beyond reasonable doubt
are not empty formalities – Rather, their origin is traceable to Articles
21 and 14 of the Constitution of India – The presumption of innocence
is a human right. [Paras 18 and 20]

        LIST OF CITATIONS AND OTHER REFERENCES

     Firozuddin Basheeruddin v. State of Kerala (2001) 7 SCC 596 – held
inapplicable.
      State of Uttar Pradesh v. Krishna Gopal (1988) 4 SCC 302 : [1988]
2 Suppl. SCR 391; Sanjay Dubey v. State of Madhya Pradesh 2023 SCC
OnLine SC 610; Narendra Singh v. State of Madhya Pradesh (2004) 10
SCC 699 : [2004] 3 SCR 1148; Ranjeetsing Brahmajeetsing Sharma v.
State of Maharashtra (2005) 5 SCC 294 : [2005] 3 SCR 345; Gudikanti
Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978)
1 SCC 240 : [1978] 2 SCR 371 – relied on.
     Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra AIR
1971 SC 885 : [1971] 1 SCR 119; State of Madhya Pradesh v. Dharkole,
(2004) 13 SCC 308 : [2004] 5 Suppl. SCR 780 – referred to.
       Coffin v. United States, 156 US 432 (1895) – referred to.

        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1541
of 2010.
    From the Judgment and Order dated 05.11.2009 of the High Court of
Bombay in CRLA No.50 of 2003.
       SURESH THIPMPPA SHETTY v. THE STATE OF                         1137
                  MAHARASHTRA

     With
     Criminal Appeal No. 2346 of 2011.
     Appearances:
    Vinay Navre, Sr. Adv., P. R. Rajhans, Amarnath Gupta, Jayant Kumar,
Janmejay Verma, Ms. Hardikaa, Vishal Arun, Dr. Sushil Balwada, Kaushal
Yadav, Nandlal Kumar Mishra, Srilok Nath Rath, Ms. Reena Rao, Kashyap
Kumar Dwivedi, Advs. for the Appellant.
     Rahul Chitnis, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
Bharat Bagla, Sourav Singh, Aditya Krishna, Advs. for the Respondent.

       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT
     AHSANUDDIN AMANULLAH, J.
        Heard learned counsel for the parties.
      2. These appeals are directed against the common Final Judgment and
Order dated 05.11.2009 (hereinafter referred to as the “Impugned Judgment”)
passed by a Division Bench of the High Court of Judicature at Bombay
(hereinafter referred to as the “High Court”) in Criminal Appeals No. 50
of 2003 (Accused No. 4/A4 – Suresh Thipmppa Shetty) and 522 of 2003
(Accused No. 2/A2 – Sadashiv Seena Salian) respectively, whereby the High
Court dismissed the appeals filed by the appellants herein and upheld the
conviction order(s) passed by the Sessions Court. The State’s appeal against
the acquittal of 4 co-accused i.e., A1, A5, A6 and A7 (Criminal Appeal No.
496 of 2003) as also Criminal Appeal No. 86 of 2003 by the Accused No.
3/A3 (Ganesh alias Annu Shivaram Shetty, who later passed away), were
dismissed by the Impugned Judgment.
     THE FACTUAL PRISM:
     3. Briefly put, relevant details of the story run thus:
     3.1 The prosecution alleges that the original accused A1, A2 and A7
were in the Colaba Police Station lockup from 23.09.1994 to 29.09.1994.
The allegation is that they entered into a criminal conspiracy between the
1138         SUPREME COURT REPORTS                        [2023] 11 S.C.R.


period from 23.09.1994 to 12.05.1995 to abduct and murder Mahendra
Pratap Singh (hereinafter referred to as the “deceased”).
      3.2 12.05.1995 became the fateful day. One Sharda Prasad Singh, a
businessman, is stated to be in the petroleum business. His office was located
at Express Highway, near the Regional Transport Office, Ghatkopar. He has
five sons. They were carrying out the business jointly. One of the sons of
the said Sharda Prasad Singh was the deceased. The prosecution states that
A1 and A7, who are real brothers, running Saroj Petro Chemicals Limited
as also a transport business, had a business rivalry with the deceased and
thus, conspired to abduct and murder him. Their head office was at Chembur
and they used to manufacture thinner and solvents at Thane.
      3.3 PW2 was a rickshaw-driver. A2 booked his rickshaw for going to
the Jawaharlal Nehru Port Trust. A2 and A3 came to Hotel Garden. They
asked PW2 to take the rickshaw on the Highway. Thereafter, they changed
direction and got down and selected a spot for the assassination of the
deceased and returned to the hotel.
      3.4 On 12.05.1995, PW1 as usual had been to his business. At about 6
PM, the deceased informed him that one person is expected from Bangalore
with money and they would go to Navi Mumbai. Then, both in a Maruti
1000 vehicle, driven by the deceased reached Hotel Garden, Panvel at about
7.30 PM. They parked their vehicle at the parking lot. After enquiring with
the receptionist, they went to the 1st Floor and entered Room No. 106,
where A3 was inside. On enquiry by the deceased, A3 informed that as the
air-conditioner was not working, Sethji (the person who the deceased had
come to meet) had gone to Hotel Welcome. Thereafter, A3 tried to contact
Sethji by the telephone/intercom but was unable to.
      3.5 Then, A3 left the room to call Sethji. After about 5 minutes, he
returned and informed that Sethji was expected at Hotel Garden itself.
Thereafter, the assailant/shooter, who absconded, came and informed that
Sethji had gone to Farmhouse and the deceased and others were called
there. 4 persons got into the Maruti 1000, being (1) the deceased; (2) PW1;
(3) assailant/shooter, and (4) A3, and proceeded to the Farmhouse. A3 and
the shooter/assailant got the car, being driven by the deceased stopped at a
location, stepped out and later A3 and the assailant/shooter again got back
in the car and the shooter/assailant killed the deceased.
        SURESH THIPMPPA SHETTY v. THE STATE OF                            1139
       MAHARASHTRA [AHSANUDDIN AMANULLAH, J.]

     3.6 It is alleged that A2, on the side, had already booked a Maruti
Van to proceed to Panvel from a travel agency. Further, that A4, A3 and A2
proceeded in Maruti Van driven by PW7 to Hotel Garden.
      3.7 A4, it is alleged, had with 2 others visited the site of occurrence
prior to the incident by hiring rickshaw. PW3 (Ranjan Shankar Behra, the
hotel receptionist) has identified A4 being in the hotel room with A3 and A2.
      3.8 First Information Report, namely Crime No. 132/1995, was lodged
on 13.05.1995. Investigation commenced and culminated into a chargesheet
against 10 persons – 3 were discharged and 7 stood trial. Tabular summation
of the assailed convictions, granted by the Sessions Court on 27.11.2002
is apposite:
    Sl. No. Position      Convicted Under                Punishment
       1      A4     Section 302 r/w Section    Rigorous Imprisonment 2 for
                     120-B of the Indian Penal  Life and INR 50,000 Fine (1
                     Code, 18601                year RI in default)
       2      A2     Section 120-B, IPC         5 years’ RI and INR 50,000
                                                Fine (1 year RI in default)
                        Section 302 r/w Section RI for Life and INR 50,000
                        120-B of IPC            Fine (1 year RI in default)

     4. Aggrieved by order dated 27.11.2002 rendered by the Sessions
Court, the present appellants (A4 and A2), A3 and the State of Maharashtra
preferred separate appeals before the High Court. As noted above, the
Impugned Judgment dismissed all the appeals. In the meantime, A3 passed
away. Aggrieved, now on account of the Impugned Judgement, the appellants
have preferred the instant appeals before this Court.
        SUBMISSIONS BY THE APPELLANTS:
      5. According to learned counsel for the appellants, as per the prosecution
story and the witnesses, they (A4 and A2) were not the two persons who
accompanied the deceased in the car wherein ultimately, he was shot and
thus, only upon the conspiracy theory having been proved, could they have
been convicted. Learned counsel submitted that in the present case, the chain


1     Hereinafter referred to as “IPC”.
2     Hereinafter referred to as “RI”.
1140         SUPREME COURT REPORTS                         [2023] 11 S.C.R.


of events does not show any conspiracy as the main accused being A1 and
A7, who were brothers, and who were said to have been in rivalry with the
deceased had hatched the plan. They hired the other/remaining accused to
eliminate the deceased. It was further contended that as per the complaint
by the uncle of the deceased who is said to have accompanied him in the
car, the two accused who had sat behind in the car on the pretext of taking
the deceased to meet one Sethji, who had offered some business deal with
the deceased, after one of the said two co-accused having shot the deceased
in the car, the complainant/PW1 (Chandrabhan Singh Srinath Singh) is said
to have been ordered to run away from the place (which he did), failing
which he would be shot.
      6. However, learned counsel pointed out that his conduct does not
inspire confidence as he did not go to the nearest Police Station but instead
is said to have gone to the residence of one Bharatbhai Shah who was not
there but his brother-in-law was present, who accompanied him to the house
of the deceased, where his family members were informed and when they
reached the place of occurrence, they found that the police had already
arrived on the spot. Another aspect, which learned counsel for the appellants
pointed out, was that it is against normal human behaviour that a person
after committing such a serious offence would leave an eyewitness alive, to
later get exposed and risk getting convicted, especially for offence(s) with
serious penal consequences.
      7. Learned counsel urged that there is absolutely no evidence available
to link the appellants to the crime as no connection whatsoever has surfaced
during the entire investigation and trial apropos them having conspired as
no other conspiracy theory has even been considered by the prosecution. It
was further contended that once the so-called main conspirators, at whose
behest the murder has taken place, have been acquitted, there being no theory,
much less proof, of any motive for the appellants to commit the crime in
question; in any view of the matter, benefit of doubt was required to be given
to them. It was contended that the surfacing of PW7 (Shivshankar Mongalal
Tiwari) after more than six months of the occurrence itself brings serious
doubts about credibility in the statement as he has stated that he has not
mentioned the factum of occurrence of the crime in question to anybody,
which is highly improbable.
      SURESH THIPMPPA SHETTY v. THE STATE OF                             1141
     MAHARASHTRA [AHSANUDDIN AMANULLAH, J.]

      8. Another indicator concerning the testimony of PW7, as pointed out
by the learned counsel for the appellants is that if the incident took place at
8:15 PM, and minute details are being disclosed by him when he was at a
distance of 150 feet, the same is palpably difficult to believe. Moreover, the
weapon having not been recovered nor there being collection of the clothes
worn by PW1 showing that he has blood stains, when admittedly after being
shot, the deceased’s neck had tilted on his shoulder, also points to the said
witness not being at the spot and the whole story so far as the appellants
are concerned is fabricated, per the learned counsel.
     9. Learned counsel for A2 further took the stand that despite some
money confiscated from the bank account and fixed deposit of A2, there is
nothing to connect the said money to A1 and A7 who are said to have been
the masterminds in hatching the conspiracy with motive.
     10. Learned counsel summed up stating that even the alleged rivalry
between the deceased on the one hand, and A1 and A7 on the other, was not
proved before the trial court, which resulted in the acquittals of A1 and A7.
       11. Learned counsel for the appellants submitted that in cross-
examination, PW2 (Vinayak Shivaji Sawant) has not identified A4. PW2 also
admits that he was shown photographs of A2 and A4 on many occasions.
It was also contended that the assailant/actual shooter is still absconding
and has not been apprehended and only to cover up lapses, the police after
six months have set up PW7 to somehow implicate the appellants. In his
deposition, PW7 has stated that he heard crackers being burst which means
that there were multiple sounds whereas there is a categorical statement made
by PW1, who was in the car that two shots were fired by a small weapon
and thus, there could not have been multiple sounds from the same firing,
which indicates that it could not have been from a small weapon, which
would not make repeated sound(s).
     SUBMISSIONS OF THE RESPONDENT:
      12. Per contra, learned counsel appearing for the State (sole respondent)
in both appeals supported the Impugned Judgment. He tried to persuade us
not to interfere. He submitted that the Sessions Court has clearly discussed
the role of the appellants based on the testimony of the witnesses and
they have also been identified by the prosecution witnesses. Thus, it was
1142          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


contended that the conspiracy was clearly established. Furthermore, it was
submitted that the Impugned Judgment has also discussed the deposition of
the prosecution witnesses, including the room service personnel/hotel staff
of different hotels who have recognised A2, which further proves that there
was a criminal conspiracy between the appellants. It was contended that there
was also discussion based on the testimony of the witnesses about the bank
transaction of A2. Reliance was placed by learned counsel on the decision
in Firozuddin Basheeruddin v State of Kerala, (2001) 7 SCC 596 for the
proposition that conspiracy can also be established based on circumstantial
evidence and that though not being a specific crime, but on the basis thereof,
a conspirator can also be held responsible for a crime committed by co-
conspirator in furtherance of the objective of the conspiracy.
       ANALYSIS, REASONING AND CONCLUSION:
      13. The High Court relied on the judgment of a 3-Judge Bench in
Noor Mohammad Mohd. Yusuf Momin v State of Maharashtra, AIR 1971
SC 885 to hold that ‘criminal conspiracy can be proved by circumstantial
evidence’3. On a careful appreciation of Noor Mohammad Mohd. Yusuf
Momin (supra), while in agreement with the law laid down therein, we are
not able to see how the prosecution’s case is strengthened with its aid. Noor
Mohammad Mohd. Yusuf Momin (supra) does not, in any manner, militate
against this Court overturning a conviction when reasonable doubt emanates.
     14. In State of Uttar Pradesh v Krishna Gopal, (1988) 4 SCC 302,
the Court held:
       ‘25. A person has, no doubt, a profound right not to be convicted of
       an offence which is not established by the evidential standard of proof
       beyond reasonable doubt. Though this standard is a higher standard,
       there is, however, no absolute standard. What degree of probability
       amounts to “proof” is an exercise particular to each case. Referring
       to the interdependence of evidence and the confirmation of one piece
       of evidence by another a learned Author says [See: “The Mathematics
       of Proof-II”: Glanville Williams: Criminal Law Review, 1979, by Sweet
       and Maxwell, p. 340 (342)]:


3   Paragraph 51 of the Impugned Judgment.
     SURESH THIPMPPA SHETTY v. THE STATE OF                             1143
    MAHARASHTRA [AHSANUDDIN AMANULLAH, J.]

          “The simple multiplication rule does not apply if the separate
          pieces of evidence are dependent. Two events are dependent
          when they tend to occur together, and the evidence of such events
          may also be said to be dependent. In a criminal case, different
          pieces of evidence directed to establishing that the defendant did
          the prohibited act with the specified state of mind are generally
          dependent. A juror may feel doubt whether to credit an alleged
          confession, and doubt whether to infer guilt from the fact that
          the defendant fled from justice. But since it is generally guilty
          rather than innocent people who make confessions, and guilty
          rather than innocent people who run away, the two doubts are
          not to be multiplied together. The one piece of evidence may
          confirm the other.”
     Doubts would be called reasonable if they are free from a zest for
     abstract speculation. Law cannot afford any favourite other than
     truth. To constitute reasonable doubt, it must be free from an over-
     emotional response. Doubts must be actual and substantial doubts as
     to the guilt of the accused person arising from the evidence, or from
     the lack of it, as opposed to mere vague apprehensions. A reasonable
     doubt is not an imaginary, trivial or a merely possible doubt; but a
     fair doubt based upon reason and common sense. It must grow out of
     the evidence in the case.
     26. The concepts of probability, and the degrees of it, cannot obviously
     be expressed in terms of units to be mathematically enumerated as to
     how many of such units constitute proof beyond reasonable doubt.
     There is an unmistakable subjective element in the evaluation of the
     degrees of probability and the quantum of proof. Forensic probability
     must, in the last analysis, rest on a robust common sense and,
     ultimately, on the trained intuitions of the Judge. While the protection
     given by the criminal process to the accused persons is not to be eroded,
     at the same time, uninformed legitimisation of trivialities would make
     a mockery of administration of criminal justice.’
                                                        (emphasis supplied)
    15. The principle in Krishna Gopal (supra) was reiterated in State
of Madhya Pradesh v Dharkole, (2004) 13 SCC 308. On the above anvil,
1144           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


the prosecution story does not inspire confidence to enable sustenance of
the impugned convictions.
      16. Insofar as reliance placed by learned counsel for the State on the
judgment in Firozuddin Basheeruddin (supra) is concerned, this Court
would only observe that the same encapsulated a different factual scenario
– the main persons responsible for the death of the deceased in that case
were convicted. However, in the present case, the prosecution story’s main
conspirators stand acquitted. This is one stark difference in the foundational
facts of the said case and the present one. But this is sufficient to safely
conclude that Firozuddin Basheeruddin (supra) would not apply to the case
at hand. Recently, this Court in Sanjay Dubey v State of Madhya Pradesh,
2023 INSC 5194, restated the position that is no longer res integra:
       ‘18. … It is too well-settled that judgments are not to be read as Euclid’s
       theorems; they are not to be construed as statutes, and; specific cases
       are authorities only for what they actually decide. We do not want to be
       verbose in reproducing the relevant paragraphs but deem it proper to
       indicate some authorities on this point – Sreenivasa General Traders
       v State of Andhra Pradesh, (1983) 4 SCC 353 and M/s Amar Nath
       Om Prakash v State of Punjab, (1985) 1 SCC 345 - which have been
       reiterated, inter alia, in BGS SGS Soma JV v NHPC Limited, (2020)
       4 SCC 234, and Chintels India Limited v Bhayana Builders Private
       Limited, (2021) 4 SCC 602.’
      17. Having considered the matter in extenso, including examining the
facts and applicable law, we are of the clear view that sufficient material
is available on record, which has come out during the trial giving rise to
reasonable doubt as to the involvement of the appellants in the crime.
The appellants have been able to poke holes in the testimonies of PW1,
PW2 and PW7. Our conclusion is only fortified as A1 and A7 have been
acquitted and thus, the conspiracy angle dehors the said main conspirators,
who are the masterminds as per the prosecution, cannot be said to have
been proved beyond reasonable doubt. Moreover, no alternative theory qua
conspiracy has been even suggested, much less proved, by the prosecution.
Undisputedly, the four persons in the car on the fateful date were (1) the


4   2023 SCC OnLine SC 610.
      SURESH THIPMPPA SHETTY v. THE STATE OF                                       1145
     MAHARASHTRA [AHSANUDDIN AMANULLAH, J.]

deceased; (2) PW1; (3) assailant/shooter, who is absconding, and (4) A3. In
the background of the admitted position that the appellants were not present
at the spot where the crime was committed i.e., in the car nor any direct/
specific role in commission of the offence being attributed to them, their
convictions cannot be upheld.
      18. On a deeper and fundamental level, when this Court is confronted
with a situation where it has to ponder whether to lean with the Prosecution
or the Defence, in the face of reasonable doubt as to the version put forth
by the Prosecution, this Court will, as a matter of course and of choice,
in line with judicial discretion5, lean in favour of the Defence. We have
borne in mind the cardinal principle that life and liberty are not matters to
be trifled with, and a conviction can only be sustained in the absence of
reasonable doubt. The presumption of innocence in favour of the accused
and insistence on the Prosecution to prove its case beyond reasonable doubt
are not empty formalities. Rather, their origin is traceable to Articles 21
and 14 of the Constitution of India. Of course, for certain offences, the law
seeks to place a reverse onus on the accused to prove his/her innocence,
but that does not impact adversely the innocent-till-proven-guilty rule for
other criminal offences.
     19. In Coffin v United States, 156 US 432 (1895), the United States’
Supreme Court held:
     ‘The principle that there is a presumption of innocence in favor of
     the accused is the undoubted law, axiomatic and elementary, and
     its enforcement lies at the foundation of the administration of our
     criminal law.’
     20. We see no quarrel with the afore-noted statement as the same
applies on all fours to our criminal justice system. The presumption of
innocence is also a human right, per the pronouncement in Narendra
Singh v State of Madhya Pradesh, (2004) 10 SCC 699. In Ranjeetsing
Brahmajeetsing Sharma v State of Maharashtra, (2005) 5 SCC 294, a


5   Although in the context of bail jurisprudence, for a working idea as to what ‘judicial
    discretion’ entails, peruse the views of a learned Single Judge (sitting as Judge-in-
    Chambers) of this Court in Gudikanti Narasimhulu v Public Prosecutor, High Court
    of Andhra Pradesh, (1978) 1 SCC 240.
1146           SUPREME COURT REPORTS                       [2023] 11 S.C.R.


3-Judge Bench of this Court, at Paragraph 35, had opined that ‘… Liberty
of a person should not ordinarily be interfered with unless there exist
cogent grounds therefor. …’
      21. Accordingly, for reasons aforesaid, these appeals stand allowed.
The appellants are discharged from the liabilities of their bail bonds. If any
fine(s) pursuant to the orders of the Sessions Court or High Court were
deposited by/realised from either appellant, they shall be entitled to refund
of the same.


Headnotes prepared by:                                          Appeals allowed.
Divya Pandey