2025 INSC 793

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R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1568 OF 2013

CHETAN …APPELLANT (S)

VERSUS

THE STATE OF KARNATAKA …RESPONDENT(S)

J U D G M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.

1. The present appeal has been preferred against the judgment

and order dated 06.12.2010 passed by the Division Bench of the High

Court of Karnataka, Circuit Bench at Dharwad in the Criminal

Appeal No. 666 of 2007, whereby the High Court upheld the

conviction and sentence imposed upon the present appellant under

Sections 302 and 304 of the IPC and for offences under Sections 3

and 5 punishable under Sections 25 and 27 of Arms Act,1959 by

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judgment dated 28/29.03.2007 passed by the F.T.C.-II & Addl.

Sessions Judge, Belgaum in Sessions Trial No 267 of 2006.

2. The conviction is based on circumstantial evidence relying on

the last seen theory supported by the recovery of articles including

the weapon of crime and forensic evidence and the act of

abscondence by the appellant.

3. As the appellant is seeking reversal of the concurrent findings

by the two courts below, the Sessions Court and the High Court, this

Court has to tread very cautiously, as observed by this Court on

numerous occasions including in Mekala Sivaiah v. State of Andhra

Pradesh, (2022) 8 SCC 253, wherein it has been held that unless the

findings are perverse and rendered in ignorance of material evidence,

this Court should be slow in interfering with concurring findings. It

was thus observed by this Court in Mekala Sivaiah (supra) in the

following words:

“15. It is well settled by judicial pronouncement that Article

136 is worded in wide terms and powers conferred under the

said Article are not hedged by any technical hurdles. This

overriding and exceptional power is, however, to be

exercised sparingly and only in furtherance of cause of

justice. Thus, when the judgment under appeal has resulted

in grave miscarriage of justice by some misapprehension or

misreading of evidence or by ignoring material evidence then

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this Court is not only empowered but is well expected to

interfere to promote the cause of justice.

16. It is not the practice of this Court to re-appreciate the

evidence for the purpose of examining whether the findings

of fact concurrently arrived at by the trial court and the High

Court are correct or not. It is only in rare and exceptional

cases where there is some manifest illegality or grave and

serious miscarriage of justice on account of misreading or

ignoring material evidence, that this Court would interfere

with such finding of fact.”

4. Keeping the aforesaid cautionary approach in mind, this Court

would proceed to examine the appeal at hand by considering whether

there is manifest error or illegality in the impugned judgment and

whether any grave and serious miscarriage of justice on account of

misreading or ignoring material evidence has occurred in the present

case. This would invariably require a proper examination of the facts

and context of the case, for which we must revisit the background

facts of the case and the evidence adduced, considered by the Trial

Court as well as the High Court.

5. FACTUAL MATRIX OF THE CASE :

5.1 The Prosecution case in brief is that the appellant and the

deceased Vikram Sinde were friends. About eight months prior to the

incident which occurred on 10.07.2006, the appellant had borrowed

a sum of Rs. 4000/- (Rupees Four Thousand only) from one Ravindra

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Chavan (PW19), in order to lend the same in turn to the deceased,

which however, was not returned by the deceased to the appellant

even after a lapse of about 7-8 months, despite repeated demands to

return the same. In that connection, there was an argument between

the appellant and the deceased in which the deceased had apparently

insulted the appellant, because of which the appellant bore a grudge

against the deceased.

5.2 It is further the case of the Prosecution that the appellant on

10.07.2006 at about 20.30 hours after taking a 12 Bore D.B.B.L Gun

with cartridges belonging to his grandfather on the pretext of going

for hunting, took the deceased along with him on his Hero Honda

motorcycle to the sugarcane grove located in Shahapur village, which

belonged to the complainant, namely, Arun Kumar Minache (PW1).

It has been alleged that at about 22.00 hours on the same night, the

appellant shot the deceased dead with the said D.B.B.L gun and thus,

committed the offence under Section 302 of the IPC.

5.3 It was further alleged that after committing the said offence,

he took the Nokia mobile phone and gold chain belonging to the

deceased and misappropriated the same, thus committing the offence

under Section 404 of the IPC.

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According to the Prosecution, since the appellant carried and

used the D.B.B.L gun belonging to his grandfather without a valid

license, he committed the offence under Section 3 read with Section

25 of the Arms Act. The appellant was also charged with committing

an offence punishable under Section 5 read with Section 27 of the

Arms Act.

5.4 As per the Prosecution, as the deceased did not return after he

left home at around 7.45 PM of 10.07.2006, the father of the deceased

telephoned the house of the appellant but was informed that he was

not at home. He then went to the house of the appellant early morning

next day on 11.07.2006 and enquired from him about the

whereabouts of his son, to which the appellant gave false information

that he had parted ways with the deceased at about 8.00 PM the

previous evening. The father of the deceased also received a call

from one Chandrakant Shinde informing him that the deceased had

gone to Pune and would return within two days. Thereafter, the

father of the deceased started searching for his missing son and filed

a missing report.

5.5 It is the case of the Prosecution that on 13.07.2006 the dead

body of the deceased was found in the sugarcane field belonging to

Arun Kumar Minache (PW -1), who informed the police about the

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discovery of the body. However, since the dead body was

decomposed, his identity could not be ascertained. Upon recovery of

the dead body, a police case was registered at Kagawad Police

Station, and necessary messages were flashed to other police stations

to seek information about the identity of the deceased. Thereafter, an

investigation was launched and an inquest was held. The post-

mortem examination of the dead body was also conducted on

13.07.2006. Since the identity of the dead body could not be

ascertained, the discovery of the dead body was published in the

newspaper which was noticed by the father on 14.07.2006 and then

he went to Kagawad Police Station and identified the dead body

through photographs, handkerchief, motorcycle key found in the pant

pocket, and sweater on the dead body.

5.6 In the course of the investigation, it was revealed that the

appellant and the deceased were last seen together near Mahishyal

bus stand and thereafter seen on a motorcycle going towards

Shahapur, as noticed by one Ashok Shinde, the prosecution witness

(PW-4), Ashok Jamadar (PW-5) and Jamir Mulla (PW-3).

5.7 On the basis of the said information, the police arrested the

appellant on 22.07.2006 at Miraj after making search for him in

several locations and was brought to Kagawad Police Station. During

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the investigation, the appellant confessed to the crime and

volunteered to produce the gun with which he committed the crime

and also volunteered to show the place where he shot the deceased

and the place where he sold the mobile phone belonging to the

deceased. The appellant also produced the gold chain, which

purportedly belonged to the deceased which was seized by the

Inspector. Thereafter, the appellant led the police to the house of his

grandfather, Ramchandrarao Chavan (PW-20), and produced one 12

Bore D.B.B.L gun, two empty cartridges, one live cartridge, one

torch, Hero Honda motorcycle and one empty handbag which were

all seized. The appellant then led the police to the sugarcane field

from where the left chappal of the deceased was recovered. He then

led the Investigation Officer and the panchas near Bellanki Saravu

(back water falls) and showed the spot where he had shot the

deceased dead. Thereafter, the appellant led the police to Srigiri

Complex at Dilukh Nagar, Hyderabad, where he pointed out an

electronic shop of S. Samba Shivakumar (PW-25) to whom he had

sold the mobile phone. According to the Prosecution, the shop-owner

identified the appellant and admitted the transaction and handed over

the mobile phone along with a xerox copy of the driving license of

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the appellant, which was kept as proof of address given by the

appellant to the shop keeper, which were seized by the police.

5.8 During the trial the Prosecution sought to prove the case

against the appellant by examining as many as 31 witnesses and

exhibited a number of documents and articles as mentioned above.

The appellant took the plea of total denial. The appellant also did not

lead any evidence in his defence.

5.9 The Trial Court, Fast Track Court II and Additional Sessions

Judge, Belgaum, in Sessions Case No.267/2006 after hearing the

Prosecution and defence and on consideration of the materials

produced before it, convicted the appellant under Sections 302 and

404 of the IPC and Sections 3 and 5 punishable under Section 25 and

27 of the Arms Act.

Accordingly, upon being convicted under Section 302 of the

IPC, the Court sentenced him to undergo rigorous imprisonment for

life and to pay a fine of Rs.1000/- and in default of payment, to

undergo rigorous imprisonment for six months.

The appellant was also sentenced to undergo rigorous

imprisonment for one year to pay a fine of Rs.1000/- and in default

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of payment of fine to undergo rigorous imprisonment for three

months for the offence under Section 404 IPC.

Furthermore, the appellant was sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.500/-(Rupees five

hundred) and in default of payment of fine, to undergo rigorous

imprisonment for three months for contravention of Section 3

punishable under Section 25 of the Arms Act.

The appellant was also sentenced to undergo rigorous

imprisonment for three years and to pay a fine of Rs. 1000/- (Rupees

one thousand) and in default of payment of fine to undergo rigorous

imprisonment for three months for contravention of Section 5

punishable under Section 27 of the Arms Act.

All these sentences were directed to run concurrently.

5.10 Being aggrieved by the conviction by the Additional Sessions

Judge, Belgaum, as above, the appellant preferred an appeal before

the Karnataka High Court Circle Bench at Dharwad by filing

Criminal Appeal No. 666/2007. The said appeal was dismissed by the

impugned order dated 06.12.2010, against which the appellant has

preferred this appeal before us.

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Since the conviction by the Trial Court was affirmed by the

High Court, it may be appropriate first to examine the basis on which

the Trial Court convicted the appellant and how it was upheld by the

High Court upheld it.

6. CONSIDERATION BY THE TRIAL COURT:

6.1 As can be seen from the narration of the incident by the

Prosecution, the case is based on circumstantial evidence, as no

eyewitness had seen the shooting of the deceased by the appellant

with a gun, which led to his death.

As we embark upon the exercise to scrutinize the correctness

of the conviction based on circumstantial evidence, we may recollect

the five golden principles of law governing trials based on

circumstantial evidence, which this Court had dealt with from time

to time, and succinctly explained in the celebrated case of Sharad

Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 as

follows:-

“152. Before discussing the cases relied upon by the High

Court we would like to cite a few decisions on the nature,

character and essential proof required in a criminal case

which rests on circumstantial evidence alone. The most

fundamental and basic decision of this Court

is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC

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71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ

129] . This case has been uniformly followed and applied

by this Court in a large number of later decisions up-to-

date, for instance, the cases of Tufail (Alias)

Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970

SCC (Cri) 55] and Ramgopal v. State of

Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It

may be useful to extract what Mahajan, J. has laid down

in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 :

1952 SCR 1091 : 1953 Cri LJ 129] :

“It is well to remember that in cases where the

evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt

is to be drawn should in the first instance be fully

established, and all the facts so established should

be consistent only with the hypothesis of the guilt

of the accused. Again, the circumstances should

be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis but

the one proposed to be proved. In other words,

there must be a chain of evidence so far complete

as not to leave any reasonable ground for a

conclusion consistent with the innocence of the

accused and it must be such as to show that within

all human probability the act must have been done

by the accused.”

153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(1) the circumstances from which the conclusion

of guilt is to be drawn should be fully established.

It may be noted here that this Court

indicated that the circumstances concerned “must

or should” and not “may be” established. There

is not only a grammatical but a legal distinction

between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of

Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri)

1033 : 1973 Crl LJ 1783] where the observations

were made: [SCC para 19, p. 807: SCC (Cri) p.

1047]

“Certainly, it is a primary principle that

the accused must be and not

merely may be guilty before a court can

convict and the mental distance between

‘may be’ and ‘must be’ is long and divides

vague conjectures from sure conclusions.”

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(2) the facts so established should be consistent

only with the hypothesis of the guilt of the accused,

that is to say, they should not be explainable on

any other hypothesis except that the accused is

guilty,

(3) the circumstances should be of a conclusive

nature and tendency,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete

as not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human

probability the act must have been done by the

accused”.

6.2 As can be seen from the records, the Trial Court formulated

five points for consideration which are reproduced as follows: -

“1. Whether the prosecution has proved that on

10.07.2006 at about 2200 hours the deceased had

died homicidal death due to gunshot injury?

2. Whether the prosecution has proved that it is the

accused who has caused homicidal death of the

deceased by firing shot through D.B.B.L gun

marked as MO.9.?

3. Whether the prosecution has proved that on the said

date, the accused after causing the murder of

deceased Vikram Shinde, dishonestly mis-

appropriated or converted to his own use gold chain

and mobile which were in possession of Vikram

Shine at the time of death and thereby committed

any offence punishable u/s 404 of IPC?

4. Whether the prosecution has proved that on the same

day at about 2030 hours the accused carried 12 bore

BBL gun belonged to his grandfather Ramachandra

Chavan, from his house to the land of complainant

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Arun Kumar and he was in possession of the said

gun and cartridges without possessing required

licence and thereby contravened provisions of Sec.3

of Arms Act punishable u/s 25 of the Arms Act?

5. Whether the prosecution has proved that on the said

date at about 2200 hours in the land of Arun Kumar

complainant situated within Shahapur village limits

the accused used 12 Bore DBBL gun (MO.9) to

cause death of the deceased Vikram Shine and

thereby contravened the provisions of sec.5

punishable u/s 27 of the Arms Act?”

6.3 The Trial Court consolidated all these issues together and

considered the same in the light of the evidence adduced and held

that the Prosecution had proved their case.

6.4 While it may not be necessary to deal in detail at this stage of

the analysis of the evidence by the Trial Court, nevertheless, it would

be desirable to briefly refer to the findings of the Trial Court for better

appreciation of the case.

6.5 Since the case revolves around circumstantial evidence, the

Trial Court identified the following circumstances/aspects for

consideration:

(1) Motive.

(2) Homicidal death of the deceased by gunshot injury.

(3) The deceased was last seen in the company of the accused

in between 8 and 9.30 p.m. on 10.07.2006.

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(4) False information given by the accused to the father of

deceased and his uncle.

(5) Abscondence of the accused from 11.07.06 till his arrest on

22.07.06.,

(6) Extrajudicial confession on 12.07.06 before PW.18 by

going over to the room of his friend Yuvaraj Bennalkar

situated at Dharwad.

(7) Recovery of gold chain belonged to the deceased from the

possession of the accused after his arrest on 22.07.06 and

recovery of Nokia mobile belonging to the deceased from

PW.25 at the instance of the accused.

(8) Recovery of the DBBL gun, 2 spent cartridge cases, one

live cartridge, Eveready battery and star gutka empty

handbag from the house of PW-20, Ramachandra Chavan,

the grandfather of the accused at the instance of the

accused.

(9) Discovery of the place of murder and recovery of left foot

chappal of the deceased from sugarcane field situated near

the place where the dead body was found at the instance of

the accused.

(10) Discovery of fact i.e. where mobile sim card was thrown at

the instance of the accused.

6.6 As regards the motive that impelled the appellant to commit

the crime, the Prosecution case is that since the deceased failed to

return Rs.4000/- which was lent by the appellant and was also

insulted by the deceased, the appellant bore a grudge against the

deceased and, as revenge, killed the deceased.

As regards this issue of motive, the Trial Court, on

consideration of the evidence on record, concluded that the monetary

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transaction, which was the basis for constituting the motive for

committing the crime, was not fully established.

The Trial Court, however, was of the view that the Prosecution

case cannot be thrown out merely because the motive could not be

established.

6.7 The Trial Court concluded based on the evidence that the death

of the deceased was not accidental or suicidal but homicidal.

6.8 To link the appellant with the said homicidal death, the Trial

Court relied on the last-seen theory, for which the Trial Court referred

to the evidence of a number of witnesses, including the brother of the

deceased, Digvijay Shinde (PW-12), who had seen the appellant and

the deceased near Mahishyal bus stand in the evening of the incident,

which was also noticed by another witness, Anil (PW-11), a friend of

PW-12.

The Trial Court also relied on the evidence of another witness,

namely Jamir Mulla (PW-3), who deposed that when he was standing

by the side of the road, he saw the deceased riding on the pillion of a

motorcycle.

The Trial Court also considered the evidence of Ashok Shinde

(PW-4) who was an autorickshaw driver who testified to have seen

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the deceased and appellant together at about 5.45 PM on the fateful

day when he was standing near Karamveer Vidyalaya High School

ground.

The evidence of another witness, namely Ashok Jamadar (PW-

5) was also relied upon, who, while he was returning to Mahishyal

and standing near the Kagawad Circle, saw the deceased and the

appellant on a motorcycle going towards Shiraguppi at around 9.15

PM on 10.07.2006. The said witness, PW-5, after coming to know

about the death of Vikram Shinde, went to Kagawad Police Station

and identified the body. Though PW-5 was declared hostile by the

Prosecution as he resiled from his previous statement on other

aspects of the incident, the Trial Court held that the versions of PW-

12, PW-11, and PW-5 regarding the deceased and the appellant being

last seen together cannot be disbelieved.

6.9 The Trial Court, thereafter, considered the other circumstance

that the appellant had given false information to his uncle and his

friend Devaraj Sutar (PW-14), which, according to the Trial Court

proved his guilty mind.

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6.10 The Trial Court held that another incriminating circumstance

was the abscondence of the appellant from 11.07.2006 till he was

arrested on 22.07.2006 at Miraj.

6.11 The Trial Court, thereafter, took into consideration the

extrajudicial confession allegedly made by the appellant on

12.07.2006 in the room of one Yuvaraj Bennalkar in Dharwad where

the witness namely Sandip Sandalage (PW-18) was staying. The

appellant apparently made the extrajudicial confession to the said

witness, PW-18, that he took the deceased on 10.07.2006 on the

pretext of going for hunting and killed him by shooting him with the

gun as the deceased did not repay the loan of Rs. 4000/- and insulted

him when he demanded the money.

6.12 The Trial Court also considered the other incriminating

circumstances, i.e., recovery of gold chain belonging to the deceased

from the possession of the appellant, recovery of Nokia mobile phone

belonging to the accused, recovery of D.B.B.L gun, 2 spent and 1 live

cartridges case, Everready battery and Star Gutka empty handbag

from the residence of his grandfather where the appellant was

staying, left foot chappal of the deceased from the sugarcane field

and discovery of the place of murder at the instance of the appellant.

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The Trial Court, accordingly, held based on said evidence

adduced that the aforesaid circumstances/facts have been proved.

6.13 However, the Trial Court held that the Prosecution was not able

to prove the motive, and the extrajudicial confession said to have

been made by the appellant. Nevertheless, in the light of the other

circumstances that, according to the Trial Court were proved, despite

noticing certain irregularities and lapses in the course of the

investigation, which according to the Trial Court were not material

nor could be fatal to the prosecution case and by holding that

irregularities in the investigation would not entitle the accused to be

acquitted, held that the charges under Sections 302 and 404 of the

IPC, Section 3 and 5 of the Arms Act punishable under Section 25

and 27 Arms Act have been proved and proceeded to convict that the

appellant as above.

7. CONSIDERATION BY THE HIGH COURT

7.1 The High Court noticed that of the 31 witnesses examined by

the Prosecution, several witnesses namely PW-1, PW-3, PW-5 to

PW-9, PW-16, PW-18 to PW-20, PW-25 and PW-26 had turned

hostile to the case of the Prosecution. Nevertheless, based on the

testimony of the other remaining witnesses and other evidence, the

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High Court held that the Prosecution had been able to prove the

charges against the appellant.

As regards the motive for the commission of the crime, though

the same was held not proved by the Trial Court, the High Court

based on the evidence of PW-12 and PW-4 held that the Prosecution

had been able to prove the motive for the commission of the crime.

7.2 The High Court held that the circumstance of the last seen

together of the appellant with the deceased has been proved by the

evidence of PW-4, PW-11 and PW-12.

7.3 The High Court considered the evidence of PW-14, (Devraj

Sutar) who was a friend and classmate of the appellant who stated

that the appellant had contacted him on the phone on the day of the

incident and told him that if his uncle contacted him, to inform his

uncle that he (PW-14) is in Pune, though PW-14 was in Ahmednagar.

Thus, the appellant sought to mislead his relatives about his

whereabouts.

7.4 As regards the seizure of the gun, the High Court held that the

appellant had led the Police to the house of the grandfather and the

same was seized from his house. As per the evidence of the ballistic

expert PW-30, it was proved that the said gun was functional and

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had shown discharge, which could not be explained either by the

appellant or his grandfather-Ramachandrarao, PW-20, which would

go to prove that the gun seized had been used for shooting the

deceased. The gunshot injuries, pellets and wads found in the skull

of the deceased would show that the deceased had died due to

gunshot injuries.

7.5 The High Court on consideration of the expert witness N.G.

Prabhakar (PW-30), the Assistant Director of Forensic Science

Laboratory, Bangalore, who examined the D.B.B.L gun, cartridges,

pellets and wads found in the skull of the dead body, held that it was

proved that the death of the deceased was caused by the gunshot fired

from the said D.B.B.L gun which was recovered at the instance of

the appellant.

7.6 The High Court also held that the Prosecution has been able to

prove from the evidence of PW-31, Investigation Officer (IO) of the

recovery of the gold chain from the possession of the appellant

immediately on his arrest, and seizure of the mobile phone at the

instance of the appellant in Hyderabad, which the same witness

corroborated. These, according to the High Court would show that

the appellant had secured possession of the articles namely the gold

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chain, mobile phone immediately after the death of the deceased,

which clearly incriminates the appellant.

7.7 The High Court, based on the presented evidence, determined

that the appellant and the deceased were last seen together. As the

appellant did not explain the whereabouts of the deceased on the

night of the incident, and in consideration of the recovery of the gun

and cartridges as well as the recovery of the gold chain and Nokia

mobile phone, the act of abscondence, evasive behaviour, post-

mortem report, ballistic report, and the chain of circumstances, the

High Court concluded that the incident in which the appellant killed

the deceased was proven beyond reasonable doubt.

Accordingly, the High Court dismissed the appeal.

8 SUBMISSION OF THE APPELLANT BEFORE US:

8.1 It was strenuously argued before us by Mr. D.N. Goburdhun,

learned Senior Counsel for the appellant that the Prosecution had not

been able to prove that the appellant and appellant alone was

responsible for the death of the deceased as there was no eyewitness

to the incident.

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Ld. Sr. Counsel points out that no witness had spoken anything

about the appellant holding the gun when he was allegedly seen

together with the deceased in the evening/night of the incident.

8.2 Even the “last seen” incident on which the Prosecution

has heavily relied upon cannot be said to have been proved.

According to Ld. Sr. Counsel, the evidence of the witnesses who had

seen them together is not credible. One of the witnesses, Digvijay

Shinde (PW-12) was the younger brother of the deceased. The other

witness PW-11 (Anil Babarao Bagat) was a friend of PW-12, hence,

they were interested witnesses. Consequently, their evidence cannot

be relied upon.

As far as PW-4 (Ashok Shinde), the auto rickshaw driver is

concerned, he is certainly a chance witness and as such, reliance

cannot be placed on his evidence.

This leaves two other witnesses namely, Jamir Mulla (PW-3)

and Ashok Jamadar (PW-5).

PW-3 stated that he saw the deceased riding on the pillion of

a motorcycle, but he did not see who was riding the motorcycle.

Thus, this evidence cannot be invoked to support the last seen theory

as the deceased was not seen with the appellant.

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As far as the other witness, namely PW-5 (Ashok Jamadar) is

concerned, he can also be said to be a chance witness, as he saw the

deceased and appellant together while he was standing at Kagawad

Circle.

Accordingly, learned senior counsel appearing for the

appellant has submitted that the fact of the appellant and the deceased

being last seen together cannot be said to have been established with

cogent evidence. Thus, if this circumstance is held to be not proved

in accordance with law, nothing survives in the case, as no one had

seen the appellant shooting the deceased as alleged by the

Prosecution nor they were seen together in the field where the dead

body of the deceased was found.

8.3 It was submitted that the recovery of the mobile phone at the

instance of the appellant was not proved as S. Samba Shivakumar,

PW-25, the mobile shopkeeper, had categorically denied purchasing

any mobile from the appellant.

8.4 It was also submitted that the D.B.B.L gun was not seized at

the instance of the appellant and in fact, it was the grandfather of the

appellant who had produced the gun when the Police came to his

residence. According to the learned Senior Counsel one of the

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seizure witnesses, Villas Macchendra Davari (PW-7), had

categorically denied that anything was recovered in his presence,

though he admitted that the signature on the seizure memo was put

as directed by the police.

8.5 The learned senior counsel has submitted that the ballistic

report itself is doubtful. Though it is the case of the Prosecution that

one live cartridge was recovered from the house of the grandfather

of the appellant, it was not given to the ballistic expert for his opinion,

and as regards the two cartridges that were used for testing of the

gun, it is not clear how these were purchased and given to the ballistic

expert. Thus, this important link in the prosecution’s case cannot be

said to have been established.

8.6 Learned senior counsel also submits that since the

Prosecution’s case is entirely based on the last seen theory, in absence

of any motive for committing the offence, which in the present case

has not been established, the foundation of the last seen theory

becomes shaky.

Learned senior counsel submits that even the Trial Court held

that the monetary transaction between the appellant and the deceased

had not been proved strictly. Thus, the very basis of the case of the

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Prosecution that the appellant had killed the deceased to take revenge

after the deceased failed to repay the loan taken from the appellant is

absent. Since the motive had not been established, the Prosecution’s

case based on circumstantial evidence cannot stand.

8.7 It was also pleaded that it could not be proved conclusively

that the dead body recovered from the field was that of the deceased

as the dead body was in a highly decomposed state.

8.8 Learned senior counsel for the appellant has also submitted

that there are so many inconsistencies and contradictions in the

evidence of the prosecution witnesses as had noted by the Trial Court

and the High Court. Yet, both the Courts chose to ignore these

inconsistencies and the contradictions and relied only on those parts

of the evidence that were favourable to the Prosecution to convict the

appellant.

8.9 Accordingly, learned senior counsel for the appellant has

submitted that since there are glaring gaps in these circumstances,

and there is no proper linkage, and these circumstances are also not

proved beyond reasonable doubt, the prosecution’s case based on

circumstantial evidence must fail.

Page 26 of 76

It has been submitted that it cannot be said that the Prosecution

has been able to prove that all circumstances are of such conclusive

nature and tendency which exclude every possible hypothesis except

that the appellant had caused the death of the deceased, and it cannot

be said that the chain of evidence established in the present case is so

complete that it has not left any reasonable ground for the conclusion

consistent with the innocence of the appellant, and that in all

probability the act was committed by the appellant.

9. SUBMISSION OF THE STATE BEFORE US:

9.1 On the other hand, Ms. Eesha Bakshi, learned counsel

appearing for the State/Prosecution has contended that all the

circumstances leading to the guilt of the appellant have been proved

which would only lead to the inference that the appellant and

appellant alone was responsible for murdering the deceased.

9.2 Learned State Counsel submits that the defence did not

seriously dispute the identity of the dead body and since PW-2, who

was the father of the deceased and PW-12, the brother of the deceased

had identified the body based on the photograph, and the dress worn

by the deceased, there cannot be any doubt about the identity of the

Page 27 of 76

dead body. The aforesaid evidence has been strengthened by the fact

that the motorcycle key was found in the pocket of the deceased.

9.3 It was also submitted that the motive for the commission of the

offence had been duly proved as it has been established that the

deceased had borrowed a sum of Rs.4000/- (Rupees Four Thousand

only) from the appellant regarding which a quarrel occurred between

them which was witnessed by PW-4, Ashok R Shinde.

9.4 It was also submitted that there were as many as five eye-

witnesses who had seen the appellant with the deceased the evening

before his dead body was found three days later. The deceased was

seen along with the appellant around 9 pm of 10.07.2006 and he was

found missing as evidenced by the evidence of his father (PW-2),

who filed a missing report on 12.07.2006. The dead body was

recovered on 13.07.2006 and there is no evidence to show the

presence of the deceased anywhere else during this intervening

period, and as such, there cannot be any doubt that as the appellant

was last seen with the deceased, the onus was on the appellant to

explain the whereabouts of the deceased after they were seen last

together which he failed to explain before the Court. Therefore, the

irresistible inference that can be drawn is that the appellant was

responsible for the death of the deceased.

Page 28 of 76

9.5 Learned State Counsel further submit that it has come clearly

on record that the appellant had remained absconding during the

aforesaid period from 11.07.2006 to 22.07.2006 when the Police

ultimately arrested him on 22.07.2006 in Miraj. That abscondence

and his attempt to mislead others is clearly proved by the evidence of

his own friend and classmate Devraj Sutar (PW-14).

According to the learned State Counsel all the evidence clearly

shows that the appellant was trying to mislead his relatives and others

about his whereabouts and trying to hide which is clearly indicative

of the guilty mind of the appellant.

9.6 It has also been submitted that the Prosecution, by relying on

the opinion of the ballistic expert, has proved that the gun produced

before the Trial Court was used for committing the crime. It has also

been established that pellets and wads that were recovered from the

skull cavity of the deceased were part of 12 bore cartridge and these

could be fired from the gun, as per the ballistic expert, PW-30. Thus,

there cannot be any doubt that it was the appellant who had shot the

deceased dead with the D.B.B.L gun.

Page 29 of 76

10. ANALYSIS AND FINDING BY THIS COURT

10.1 We have given our anxious consideration to the issues raised

before us and carefully examined the evidence on record.

10.2 As discussed above, the case revolves around the death of

Vikram Shinde, whose dead body was found in an agricultural field.

The appellant is sought to be implicated in his death on the ground

that he was seen last together with the deceased before the dead body

was found three days later, and also because the deceased had

suffered gunshot injury on his head, which led to his death, and a

double barrel gun was recovered at the instance of the appellant from

the house of his grandfather, with whom the appellant was staying.

The forensic evidence based on ballistic examination showed that the

gun was in working condition and was used, and the pellets and wads

found in the brain and cavity of the skull of the deceased could be

fired from the said gun.

Since, there was no direct evidence on the death of Vikram

Shinde, the Prosecution case is entirely based on circumstantial

evidence.

Page 30 of 76

10.3 As the allegation is of commission of the offence of murder,

the first and foremost exercise to be undertaken is to ascertain

whether it was a case of suicide or accidental death or homicide.

There does not appear to be not much of a controversy that it

was a case of homicide.

The fact that the deceased died an unnatural death due to

gunshot injuries cannot be doubted in the light of the post-mortem

and forensic evidence. The Medical Officer, PW-28, who conducted

the post-mortem had given his final opinion that the cause of death

was ballistic injuries to vital organs. Though the post-mortem report

itself was assailed by the appellant, in view of the other attending

evidence of the panch witnesses there cannot be any shadow of doubt

about the unnatural death due to gunshot injury. Thus, it was a clear

case of homicide.

Given the nature of the gunshot injury received by the

deceased on his head and in the absence of recovery of any gun in

the hand of the deceased or near his body and since the gun shot was

fired within a range of 3 ft from the muzzle of the weapon and the

exit of the gunshot wound was in the face, a suicidal gunshot injury

can be safely ruled out.

Page 31 of 76

That it was also not a case of accidental death can be clearly

inferred because of the absence of any evidence indicating so.

10.4 As we proceed further, it may be noted that, in the present case,

though the appellant had made a feeble attempt to show that the dead

body that was recovered from the agricultural field was not that of

Vikram Shinde, who was missing, because of the evidence of Ajitrao

Shinde, PW-2, the father of the deceased, and PW 12, Digvijay

Shinde, brother of the deceased, who had identified the dead body

based on the identification of the deceased's sweater, pants and

recovery of the motorcycle key from the pants of the deceased, there

can be no doubt about the identity of the dead body.

10.5 We will now deal with the most crucial circumstance of last

seen together, upon which much emphasis has been laid by both the

contesting parties in support of their rival contentions.

10.5.1 The last seen theory is based on the evidence of five

witnesses, namely, Jamir P. Mulla (PW-3), Ashok R. Shinde (PW-4),

Ashok R. Jamadar (PW-5), Anil Babarao Bagat (PW-11) and

Digvijay Shinde (PW-12).

10.5.2 PW-3, Jamir P. Mulla, claims to know both the appellant and

the deceased. He stated that on 10.07.2006 at about 8.30 pm when

Page 32 of 76

he was standing by the side of the road at Ambika Nagar, he saw the

deceased Vikram Shinde riding on the pillion of a motorcycle and on

seeing him he wished him. The motorcycle went towards Narawad

side. However, he stated that he did not know who was riding the

motorcycle. He also stated that he did not observe anything being

carried on the motorcycle.

In view of the specific evidence that he did not see who was

riding the motorcycle his evidence cannot independently be used to

support the last seen theory against the appellant unless propped by

other evidence. Though the said witness was declared hostile by the

Prosecution, in the cross-examination, this witness reiterates that he

had seen the deceased Vikram Shinde going on a motorcycle, and he

could later identify the dead body as that of Vikram Shinde from the

clothes he was wearing when he saw him last. This evidence is thus

consistent with the evidence of other witnesses who had seen the

deceased Vikram Shinde going with the appellant on a motorcycle.

10.5.3 The other witness relied upon by the Prosecution is Ashok

R. Shinde (PW-4), who was an auto rickshaw driver who knew both

the deceased and the appellant. PW-4 stated that on 10.07.2006 at

about 5.45-6.00 pm, when he was standing near Karamveer

Vidyalaya High School ground parking, both the appellant and

Page 33 of 76

deceased came near his auto rickshaw, and he heard them discussing

certain money transaction, and the appellant was heard demanding

return of certain amount from the deceased to which the deceased

denied having any knowledge. He also heard the deceased abusing

the appellant as haramkhor though the appellant did not react to it.

He also stated that he heard them talking about hunting. He stated

that as they were talking, passengers came and, thereafter did not give

any further attention to their discussion.

This evidence would show that the appellant and the deceased,

who were friends, were together shortly before they were seen

together again later riding a motorcycle by Ashok R. Jamadar (PW-

5). This evidence will also be relevant to arguments between the two

parties over some money matters and their plans for hunting.

10.5.4 Ashok R. Jamadar (PW-5) is the other witness through whom

the Prosecution seeks to establish the last seen theory. PW-5 knew

both the families of the appellant and the deceased. He deposed that

on 10.07.2006, at about 9:15 pm, while he was standing at Kagawad

Circle to proceed to Mahishyal, he saw the appellant and the

deceased going together on a motorcycle towards the Shiraguppi

side. On seeing them, he waved his hand. He also stated that the

deceased was carrying a bag and had spoken to him, but he did not

Page 34 of 76

talk to the appellant. Thereafter, he came to Mahishyal. Later, on

14.07.2006, he learnt about the murder of Vikram Shinde when

people were talking about him and thereafter, he went to the

Kagwada police station along with others regarding the case.

Although he was declared a hostile witness as he resiled from

his previous statement made during the investigation, he reiterated

during his cross-examination that the appellant was riding the

motorcycle and the deceased was with him on the motorcycle

proceeding towards Shiraguppi. Despite the witness being

thoroughly cross-examined on behalf of the appellant, nothing could

be elicited from him to cast any doubt on his testimony as far as this

vital evidence of them being seen together last, before the discovery

of the dead body, is concerned.

In our opinion, if the said witness did not fully support the

Prosecution case and resiled from his previous statement given

during investigation, nothing prevented him resiling from the

statement that he saw the appellant and the deceased together. It may

be noted that even though PW-5 was declared hostile, he reiterated

in his cross examination that he saw the deceased and the appellant

together. Thus, his evidence is trustworthy as regards this aspect.

Page 35 of 76

10.5.5 The evidence of the aforesaid witness PW-5 has also been

sought to be impeached on the ground that he is a chance witness and

thus his evidence be ignored.

We do not think that it can be ignored.

It is for the reason that he knew both the appellant and the

deceased, and nothing was shown that he was inimical to the

appellant and more friendly to the deceased. He was not a stranger

suddenly emerging out of nowhere in the scene. PW-5 had explained

in his cross-examination as to the reason why he was present at the

Kagawad Circle when he saw them together. He stated that he had

gone to Kagawad to visit one of his relatives. While returning home,

he was passing through the said circle to catch a bus to Mahishyal.

Hence, we see no reason to disbelieve his testimony.

10.5.6 Moreover, even if he is considered to be a chance witness who

happens to witness the appellant and the deceased together going on

a motorcycle by chance, yet the testimony cannot be ignored in the

light of the decision of this Court in Rajesh Yadav and Another v.

State of Uttar Pradesh (2022) 12 SCC 200 wherein it was held as

follows:-

“29. A chance witness is the one who happens to be at

the place of occurrence of an offence by chance, and

Page 36 of 76

therefore, not as a matter of course. In other words, he is

not expected to be in the said place. A person walking on

a street witnessing the commission of an offence can be a

chance witness. Merely because a witness happens to see

an occurrence by chance, his testimony cannot be

eschewed though a little more scrutiny may be required

at times. This again is an aspect which is to be looked

into in a given case by the court. We do not wish to

reiterate the aforesaid position of law which has been

clearly laid down by this Court in State of A.P. v. K.

Srinivasulu Reddy [State of A.P. v. K. Srinivasulu Reddy,

(2003) 12 SCC 660 : 2005 SCC (Cri) 817] : (SCC pp.

665-66, paras 12-13)

“12. Criticism was levelled against the evidence

of PWs 4 and 9 who are independent witnesses by

labelling them as chance witnesses. The criticism

about PWs 4 and 9 being chance witnesses is also

without any foundation. They have clearly

explained as to how they happened to be at the

spot of occurrence and the trial court and the

High Court have accepted the same.

13. Coming to the plea of the accused that PWs 4

and 9 were “chance witnesses” who have not

explained how they happened to be at the alleged

place of occurrence, it has to be noted that the

said witnesses were independent witnesses. There

was not even a suggestion to the witnesses that

they had any animosity towards any of the

accused. In a murder trial by describing the

independent witnesses as “chance witnesses” it

cannot be implied thereby that their evidence is

suspicious and their presence at the scene

doubtful. Murders are not committed with

previous notice to witnesses; soliciting their

presence. If murder is committed in a dwelling

house, the inmates of the house are natural

witnesses. If murder is committed in a street, only

passers-by will be witnesses. Their evidence

cannot be brushed aside or viewed with suspicion

on the ground that they are mere “chance

witnesses”. The expression “chance witness” is

borrowed from countries where every man's

home is considered his castle and everyone must

have an explanation for his presence elsewhere

or in another man's castle. It is quite unsuitable

an expression in a country where people are less

formal and more casual, at any rate in the matter

explaining their presence.”

Page 37 of 76

10.5.7 PW-11 and PW-12 also saw the appellant and the

deceased together near the bus stand in the evening of 10.7.2006.

PW-12 is the brother of the deceased. According to him, his

deceased brother went out of the house after 7.45 PM in the evening

on a scooter. When PW-12 also went out to meet his friend, Anil

Bagat, PW-11 near the bus stand that evening, he saw both the

deceased and the appellant coming together on the scooter at the bus

stand, and his brother asked him (PW-12) to take the scooter home

by telling him that he would come home later. His brother, however,

did not return.

PW-11, a friend of PW-12, corroborates the aforesaid evidence

of PW-12. PW-11 stated that he was acquainted with the appellant as

he was from the village of the appellant. PW-11 stated that he also

knew the deceased. According to him when he was near Mahishyal

Bus Stand at about 8.00 PM on 10.07.2006, Digvijay, the brother of

the deceased, came there, and while they were talking, the appellant

and the deceased came there on a scooter. Vikram Shinde (the

deceased) then instructed his brother, Digvijay (PW-12), to take the

scooter home, informing him that he would return later. He also heard

the appellant saying that he would be going for hunting.

Page 38 of 76

Based on the above evidence, both the Trial Court and the High

Court came to the conclusion that the deceased was last seen together

on 10.07.2006, before the dead body was discovered in the morning

of 13.07.2006.

10.5.8 PW-11 states that he had acquaintance with the appellant as

he was from the same village. Hence, we see no reason to doubt his

credibility as he is unlikely to falsely testify against his own co-

villager and he corroborates the evidence of PW-12, the brother of

the deceased.

As far as PW-5 is concerned, though the defence had made

strenuous attempts to discredit him as he was earlier working for PW-

2, the father of the deceased, nothing could be elicited to discredit his

testimony as regards this fact of being last seen together.

We are of the view that while the evidence of PW-5, PW-11

and PW-12 supports the last seen theory, the evidence of PW-3 and

PW-4 strengthens this circumstance.

10.5.9 We have also noted that specific questions were asked from

these witnesses that if they had seen the appellant and the deceased

going together on the night of 10.07.2006, why this information was

Page 39 of 76

not given to the father of the deceased, PW-2 earlier before the dead

body was discovered on 13.07.2006.

It may be noted that even though the deceased may have been

missing since 10/11.07.2006, till the dead body was recovered and

identified, members of the public may not be concerned about the

missing of the deceased, unless the family members specifically

asked them of the deceased. It is only after the dead body was

identified on 14.07.2006 and brought to public notice that witnesses

were likely to come forward to give information of any such relevant

material and earlier sighting of the deceased with the appellant.

Therefore, non-informing the family members of the deceased at an

earlier point of time by the prosecution witnesses who saw the

appellant going in a motorcycle or seeing the appellant and deceased

going together on a motorcycle on the night of 10.07.2006 cannot be

a ground for disbelieving their testimony.

Under these circumstances, it cannot be said that the Trial

Court and High Court have committed a serious illegality in

concluding that the deceased and the appellant were last seen

together or that the said finding was by ignoring material evidence or

contrary to the evidence on record.

Page 40 of 76

10.6 The next and most crucial consideration will be how the

appellant could be linked to the death of the deceased.

10.6.1 In our opinion, the link is established based on the following

circumstances and established facts.

(i) The dead body of the deceased was recovered in a

decomposed state on 13.7.2006, three days after the

deceased was last seen together with the appellant on

10.07.2006.

(ii) As per the Medical Officer who conducted the postmortem

on 13.07.2006, the death occurred 3/4 days before the

postmortem examination which is consistent with the time

the deceased was seen last together with the appellant.

(ii) The dead body was discovered with gunshot wounds on the

head.

(iii) A double barrel gun with 2 spent and 1 live cartridges were

recovered at the instance of the appellant.

(iv) As per the opinion of the ballistic expert,

(a) The gun showed signs of discharge.

(b) The gun was in working condition.

(c) Pellets and wads were recovered from the brain/skull

of the dead body, and these could have been fired

through the gun examined.

(d) The double-barrel gun could be dismantled.

Page 41 of 76

10.6.2 The aforesaid facts are supported by the following

circumstances and acts of the appellant, which strengthens the

linkage.

(i) The appellant remained hidden from 11.07.2006 till

22.07.2006. He was arrested on 22.07.2006 after extensive search on

numerous locations after the identification of the identity of the dead

body on 14.07.2006.

(ii) The appellant had misled his friends, his family members

and that of the deceased.

(iii) Personal effects of the deceased like gold chain was

recovered from the appellant.

The aforesaid circumstances and acts are discussed in more

detail as follows :

10.6.3 As regards the discovery of the dead body, PW1, Arun Kumar

Minache stated that on 13.7.2006, his workers had gone to the land

to measure sugar cane crops. At 9:30 AM, one of his workers came

to his house and informed him that a dead male body was lying in the

sugarcane field. Thereafter, PW-1 went to the sugar field and found

the dead body in a decomposed state. The matter was reported to the

police on the same day.

It may be noted that while the deceased was found missing

since the night of 10.07.2006, and was subsequently found dead on

Page 42 of 76

13.07.2006, the appellant was found missing from 11.07.2006 till the

police arrested him on 22.07.2006.

10.6.4 Though, the dead body was discovered after three days of

the deceased went missing on 13.07.2006, as per opinion of the

forensic expert, the time of death of the deceased was between 3 to 4

days prior to post-mortem examination on 13.07.2006, thus

indicating that the deceased died soon after he went missing.

10.6.5 At this stage, it may be apposite to address a weighty

argument advanced by Mr. Goburdhun, learned senior counsel for the

appellant who contended that the last seen theory in the present case

is not applicable for the simple reason that there is a long passage of

time between the appellant and the deceased last seen together and

the time when the dead body of the deceased was discovered.

The deceased was last seen along with the appellant in the

night of 10.07.2006 and the dead body of the deceased was

discovered on 13.07.2006 after a gap of three days.

Learned Senior Counsel submits that the time gap should be

so small that the possibility of any other person being with the

deceased in the company of any other person should be ruled out.

Hence, because of this long gap of time, the last seen theory sought

Page 43 of 76

to be invoked by the Prosecution loses its steam, giving rise to

reasonable doubt as to whether the appellant was the real culprit or

not.

10.6.6 In this regard, the learned Senior Counsel has relied on

the decision of this Court in State of Goa v. Sanjay Thakran and

Anr. (2007) 3 SCC 755 wherein this Court held that :-

“31. Before we analyse the evidence of PW 11 Dinesh

Adhikari, who was working as a domestic help in the bar

and restaurant Iguana Miraj, PW 14 Calvert Gonsalves,

who was said to be in the company of A-1 and D-1 on the

evening of 27-2-1999 outside the lounge of the restaurant

and PW 6 Amit Banerjee, who was working as

Receptionist of Hotel Seema, we would refer to certain

decisions of this Court on the point of “last seen

together”. It is a settled rule of criminal jurisprudence

that suspicion, however grave, cannot be substituted for

proof and the courts shall take utmost precaution in

finding an accused guilty only on the basis of

circumstantial evidence. This Court has applied the

abovementioned general principle with reference to the

principle of last seen together in Bodhraj v. State of

J&K [(2002) 8 SCC 45 : 2003 SCC (Cri) 201] as under:

(SCC p. 63, para 31)

“31. The last seen theory comes into play where

the time gap between the point of time when the

accused and the deceased were seen last alive

and when the deceased is found dead is so small

that possibility of any person other than the

accused being the author of the crime becomes

impossible. It would be difficult in some cases to

positively establish that the deceased was last

seen with the accused when there is a long gap

and possibility of other persons coming in

between exists. In the absence of any other

positive evidence to conclude that the accused

and the deceased were last seen together, it would

be hazardous to come to a conclusion of guilt in

those cases.”

Page 44 of 76

32. In Ramreddy Rajesh Khanna Reddy [(2006) 10 SCC

172 : (2006) 3 SCC (Cri) 512 : JT (2006) 4 SC 16] this

Court further opined that even in the cases where time

gap between the point of time when the accused and the

deceased were last seen alive and when the deceased was

found dead is too small that possibility of any person

other than the accused being the author of the crime

becomes impossible, the courts should look for some

corroboration.”

10.6.7 However, it may be noted that this Court also observed in

the aforesaid decision of Sanjay Thakran (supra) that it cannot be

said in all cases that the evidence of last seen together is to be

rejected merely because the time gap is for a considerable long

period, as stated in para 34 of the aforesaid decision which is

reproduced herein as below:

“34. From the principle laid down by this Court, the

circumstance of last seen together would normally be

taken into consideration for finding the accused guilty of

the offence charged with when it is established by the

prosecution that the time gap between the point of time

when the accused and the deceased were found together

alive and when the deceased was found dead is so small

that possibility of any other person being with the

deceased could completely be ruled out. The time gap

between the accused persons seen in the company of the

deceased and the detection of the crime would be a

material consideration for appreciation of the evidence

and placing reliance on it as a circumstance against the

accused. But, in all cases, it cannot be said that the

evidence of last seen together is to be rejected merely

because the time gap between the accused persons and

the deceased last seen together and the crime coming to

light is after (sic of) a considerable long duration. There

can be no fixed or straitjacket formula for the duration of

time gap in this regard and it would depend upon the

evidence led by the prosecution to remove the possibility

of any other person meeting the deceased in the

intervening period, that is to say, if the prosecution is

able to lead such an evidence that likelihood of any

person other than the accused, being the author of the

Page 45 of 76

crime, becomes impossible, then the evidence of

circumstance of last seen together, although there is long

duration of time, can be considered as one of the

circumstances in the chain of circumstances to prove the

guilt against such accused persons. Hence, if the

prosecution proves that in the light of the facts and

circumstances of the case, there was no possibility of any

other person meeting or approaching the deceased at the

place of incident or before the commission of the crime,

in the intervening period, the proof of last seen together

would be relevant evidence. For instance, if it can be

demonstrated by showing that the accused persons were

in exclusive possession of the place where the incident

occurred or where they were last seen together with the

deceased, and there was no possibility of any intrusion to

that place by any third party, then a relatively wider time

gap would not affect the prosecution case.

(emphasis added)

10.6.8 In the present case, as stated above, PW-28, Dr. S.V.

Havinal, the Medical Officer who conducted the post-mortem

examination on the dead body during his cross-examination stated

that it is not correct to say that the person might have died 5 days

before the post-mortem examination. He stated that he might have

died 3 to 4 days before the post-mortem examination. Thus, the

Prosecution case that the deceased was shot dead on the night of

10.07.2006 before his dead body was discovered on 13.07.2006 does

not appear to militate against the last seen theory in view of the

medical evidence that death occurred about 3/4 days prior. Thus, it

cannot be said that the time gap is for a considerable long period.

Page 46 of 76

10.6.9 The obvious inference the defence wanted to draw was that

if death had occurred 5 days earlier, it would be earlier to 10.07.2006,

which would have demolished the Prosecution case. Similarly, if the

death had occurred about 2 days before the postmortem was

conducted, it would be after a few days of the missing of the deceased

on 10.07.2006 which would have cast a genuine doubt on the

Prosecution case because of time gap.

10.6.10 The forensic and ballistic opinion along with the

subsequent recovery of the gun, pellets and wads and other object like

gold chain from the appellant literally obliterates the doubtful

element which can be attributed to the gap in time and space of the

last seen together aspect of the circumstantial evidence. Had this

scientific evidence and subsequent recoveries not been available,

certainly, the time lapse between the fact of last seen together and the

time of death could have proved fatal to the Prosecution case in the

present case.

Thus, this submission of the appellant that there was a long

time lapse, does not hold water.

10.6.11 It may be also noted that the place where the dead body

of the deceased was discovered in a sugarcane field does not appear

Page 47 of 76

to be visited by public except for the workers who work in the field.

In fact, the dead body was discovered belatedly only by the workers

of the owner of the sugarcane field, PW-1, Arun Kumar Maruti

Minache.

10.6.12 PW-1 deposed that on 13.07.2006 his workers namely

Bismilla, Popat and Praveen had gone to the land for measuring

sugarcane crop and at about 9.30 AM of the same day, Bismilla came

to his house and informed him that the dead body of a male was lying

near Bellanki Saravu i.e., on the southern side of the land.

Thus, by the very nature of the location and as evident from the

testimony of the owner of the land, it is quite apparent that the place

where the dead body was found was not frequently visited because of

which the dead body was discovered only on 13.07.2006 even though

the death occurred about 3 to 4 days ago as per the evidence of PW-

28, the Medical Officer who conducted the post-mortem examination.

Hence, the possibility of the deceased being with another person other

than the appellant before he was shot is quite remote.

10.7 It is to be noted that it is not merely the discovery of the dead

body on 13.07.2006 after the deceased was last seen together with the

appellant on 10.07.2006 that the Prosecution case is based. This last

Page 48 of 76

seen theory is reinforced by the fact that the cause of death of the

deceased was gunshot injury and the weapon of crime was recovered

at the instance of the appellant and there is forensic evidence in the

form of pellets, and the wads found in the skull cavity of the deceased

which could be fired from the said gun recovered which links the

appellant with the crime.

In our opinion, given the subsequent recovery of the gun and

empty pellets and forensic and ballistic evidence of a link between

the pellets recovered from the body of the deceased and the gun

recovered, the time lapse which could have thrown doubt on the last

seen theory pales into insignificance, rather it is rendered

inconsequential.

Thus, the prosecution’s case is not mere conjecture, but rather

based on established circumstances and facts.

10.7.1 PW-28, the Medical Officer conducted the post-mortem

examination at the burial ground of Shiraguppi on 13.07.2006 at 2:40

PM as the body was in early decomposition state, and the following

external injuries were found:

1) Circular shaped wound with diameter 1.5 cm, 3 cm,

above the mastoid process in parietal bone.

Page 49 of 76

2) Irregular shape wound in left infraorbital region,

measuring about 2 x 3 cm. There was no shoot deposit

around the circular shaped wound.

Pellets were found sprayed inside the cranium. Two wads were

also found inside the skull cavity. There were multiple fractures of

the skull and brain haemorrhages due to pellet injuries. These

multiple pellets and wads, which are part of the cartridge found in the

skull cavity, were later sent for forensic examination.

As per the postmortem examination, the entry wound was in

the skull and the exit wound was in the left infraorbital region.

It may be noted that left infraorbital region is the area of the

face located below the left eye socket.

This is indicative of the fact that the bullet entered from behind

the head.

According to PW-28, the Medical Officer, the cause of death

was due to injury to a vital organ leading to neurogenic shock, which

is the primary cause, and secondary cause was hypovolemic shock

due to intracranial haemorrhage.

PW 28, after receipt of the ballistic report from the Forensic

Science Laboratory, Bangalore, gave his final opinion that the cause

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of death is ballistic injuries to the vital organ leading to neurogenic

and hypovolemic shock.

10.7.2 We will now examine the evidence of the ballistic

expert N. G. Prabhakar, PW-30, who examined the double barrel gun

which was recovered at the instance of the appellant and other

materials, i.e. two spent 12 bore cartridges, two plastic wads, lead

pellets sent to him for examination. Two live 12 bore cartridges

which were purchased by the police for testing of the gun were also

sent.

10.7.3 These articles were received by the FSL, Bangalore on

19.09.2006 and were examined on the same day and upon

examination, PW-30 furnished the following opinion which is

reproduced verbatim:

“1) The D.B.B.L gun in Article No. 1 bears signs of discharge.

2) The D.B.B.L gun in Article No. 1 was in working

condition at the time of examination.

3) The cartridges in Article no. 3 were live and the same can

be fired through the D.B.B.L Gun in Article No. 1.

4) The effective range of the D.B.B.L gun in Article No. 1 is

about 40 yards.

5) The cartridges case marked as 2(a) and 2 (b) in Article No.

2 have been fired through the right and left barrel of the

D.B.B.L Gun in Article No. 1.

Page 51 of 76

6) The wads and lead pellets in Article Nos. 4 & 5 are the

components of 12-bore cartridges and the same could have

been fired through the D.B.B.L Gun in Article No. 1.”

It may be noted that Article No.1 was the D.B.B.L gun

recovered at the instance of the appellant, Article No.2 consisted of

spent cartridges also recovered at the instance of the appellant.

Article No.3 consisted of two live cartridges which were purchased

by the police for testing of the gun.

The said ballistic expert was subjected to intense cross

examination. However, his evidence could not be shaken in respect

of any of the opinions given by him.

10.7.4 In our considered view, the aforesaid forensic evidence

based on ballistic tests is not only crucial and critical in

understanding the case, but also seals the fate of the appellant, which

establishes the fact that the gun recovered at the instance of the

appellant was used in causing the bullet injury to the deceased which

led to his death.

It is not the case of the defence that such a gun is readily and

easily available and can be used by anybody. One needs to have a

license to possess such a gun. It is not an ordinary weapon of crime

like a knife which is readily available which can be used to injure a

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person fatally. In the present case, the weapon of crime is directly

traceable to the appellant, who had taken it from his grandfather as it

was recovered at the instance of the appellant as per the evidence of

the Investigation Officer, PW-31 corroborated by the panch witness,

PW-6.

10.7.5 The double barrel gun was recovered at the instance of

the appellant, as witnessed by the seizure witnesses, namely, Ismail

Mohammad Dange (PW-6) and Villas Macchendra Davari (PW-7).

PW-7, however, turned hostile and stated that nothing was recovered

at the instance of the appellant in his presence. On the other hand,

PW-6 remained consistent, both in his examination in chief as well

as in the cross examination that the appellant in his presence

produced the gun, one live cartridge, two spent cartridges from his

house. Other articles like a handbag, Hero Honda Motorcycle were

also produced by the appellant in presence of PW-6. Even though

PW-6 was declared hostile as he did not fully support the prosecution

case, yet as far as the recovery of the aforesaid articles is concerned,

he stood his ground and he remained consistent even in his cross

examination. The said witness testified that the appellant led the

Police and other witnesses to the spot from where the appellant shot

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the gun. Thus, the recovery of the gun and cartridges at the instance

of the appellant was proved.

It may also be noticed that ballistic expert, on examination of

the two spent cartridges recovered along with the gun at the instance

of the appellant, gave his opinion that these were fired from the gun.

10.7.6 The double barrel gun, one live, and two spent cartridges,

and handbag was recovered at the instance of the appellant from the

house of the grandfather of the appellant where the appellant lived.

Hence, these materials or “facts” recovered would come within the

scope of Section 27 of the Evidence Act. Since the discovery of these

materials was proved, it was incumbent upon the appellant to explain

the discovery and attributes of the articles, more particularly, the gun

and spent cartridges. Since it was within the special knowledge of the

appellant how these spent cartridges were kept in the house and how

the gun was used for discharge before it was recovered, the appellant

owes an obligation to explain the same. Even if the appellant did not

explain the same, at least his grandfather, PW-20 who was the owner

of the gun was obligated to explain it as he was living with the

appellant, and he was the real owner of the gun. There was no such

explanation offered either by the appellant or his grandfather (PW-

20), how the spent cartridges were found and how the gun was used

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for discharge. The grandfather, PW-20 merely stated that the

appellant did not take the gun on 10.07.2006 and used it. It was

natural on the part of the grandfather to protect his grandson, but he

was supposed to know of about the use of the gun as well as the

recovery of the spent cartridges. Thus, the failure to explain the

recovery of the gun and its discharge, and recovery of the spent

cartridge certainly implicates the appellant, specifically when the

ballistic expert gave his opinion that the lead pellets and wads

recovered from the brain skull could be used from the aforesaid gun

and the gun had shown signs of discharge.

As held by this Court in Mukesh & Anr. Vs. NCT of Delhi

& Ors. (2017) 6 SCC 1, when recoveries are made under Section 27

of the Evidence Act, the accused should explain how he came into

possession of the incriminating articles.

10.7.7 The clear scientific evidence that the pellets and wads

found in the skull cavity of the deceased could be fired from the

aforesaid gun recovered at the instance of the appellant and the gun

bore signs of discharge and was in a working condition clearly links

the appellant to the crime.

Page 55 of 76

10.7.8 Even though the appellant had tried to make out a case that

nobody had seen the appellant carrying the gun, in our opinion, the

said contention is devoid of merit in view of the evidence of the

forensic expert who examined the gun who clearly stated that gun

can be dismantled. There is the evidence of PW-5, Ashok Ram

Jamadar, who had given the testimony of seeing the appellant along

with the deceased in the night of 10.07.2006 going in a motorcycle

towards Shiraguppi that the deceased was carrying a bag. If the

double barrel gun could be dismantled, it certainly can be kept in the

bag. Hence, merely because there is no evidence of any witness

seeing the gun being carried by the appellant, it cannot be fatal to the

prosecution case.

10.7.9 Once it has come to the fore, based on scientific evidence

that the gun which was recovered at the instance of the appellant was

in working condition, that it had shown sign of discharge, and the

pellets and wads found in the skull cavity of the deceased could be

fired from the said gun, in the absence of any explanation by the

appellant or by the owner of the gun, the grandfather of the appellant,

the only logical inference that can be drawn in the circumstances is

that it was the appellant who had used the said gun causing the bullet

injury on the deceased which led to his death.

Page 56 of 76

10.8 Under these circumstances, since it has been proved that the

appellant was seen last together with the deceased going on a

motorcycle carrying a bag, and there is also evidence that there was

an argument between them of certain monetary transaction and

discussion about going for hunting before they left together, in our

opinion, there cannot be any doubt that the appellant was responsible

for causing the death of the deceased by use of the double-barrel gun.

10.9 There is also a specific finding by the Trial Court and the

High Court that the appellant remained in abscondence from

11.07.2006 till he was arrested by the police on 22.07.2006.

10.9.1 It is on record that the appellant and the deceased were

friends. They were not strangers. Thus, this act of absconding by the

appellant, rather than helping and cooperating with the family of his

friend, in spite of persistent enquiries from the father of the deceased

is a clear indication of his guilt.

The Investigating Officer, PW-31 stated that after recording

the statements of the witnesses who saw the deceased and appellant

together last on 10.7.2006, the police searched for the appellant going

to various places at Miraj, Sangali, Hiruyuru, Bangalore but the

appellant could not be traced. On 22.07.2006 at 6.00 AM, after PW-

Page 57 of 76

31 received an anonymous call to the effect that the appellant has

come to Miraj, he was arrested there and brought to the police station.

10.9.2 It is trite that mere absconding by itself does not constitute

a guilty mind as even an innocent man may feel panicky and may

seek to evade the police when wrongly suspected of being

involvement as an instinct of self-preservation. But the act of

abscondence is certainly a relevant piece of evidence to be

considered along with other evidence and is a conduct under Section

8 of the Evidence Act, 1872, which points to his guilty mind. The

needle of suspicion gets strengthened by the act [See: Matru @

Girish Chandra vs. State of Uttar Pradesh, (1971) 2 SCC 75].

10.9.3 It is also on record that the appellant did not merely remain

in hiding but also misled his relatives and of the family of the

deceased and his friends about his whereabouts.

It is in evidence that when PW-2, the father of the deceased

telephoned the house of the appellant on the night of 10.07.2006, he

was informed that the appellant was not at home. PW-2 again visited

the appellant’s house in the morning of 11.07.2006 to enquire about

the deceased. The appellant informed PW-2 that he had left the

deceased near the water tank situated near the bus stand the previous

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evening and he did not know where the deceased had gone. Further,

when PW-2 again went to the house of the appellant next day on

12.07.2006 to inquire about the whereabouts of his missing son, the

appellant was not found in the house. PW-2 however, met his uncle,

namely, Dhananjay Chavan who informed PW-2 that the appellant

had gone to Pune in search of job and said Dhananjay Chavan gave

the mobile number of one Devraj Sutar (PW-14), a friend of the

appellant who was stated to be staying in Pune. When the father of

the deceased contacted the said Devraj Sutar (PW-14) on his mobile

phone, and inquired about the appellant, the said Devraj Sutar (PW-

14) informed the father of the deceased that the appellant had not

come to meet him. Later when the father of the deceased rang up

Devraj Sutar (PW-14) again, he informed PW-2 that he (PW-14) was

not in Pune but in Ahmednagar. PW-2, the father of the deceased

then confronted Devraj Sutar as to why he was lying, Devraj Sutar

told him that the appellant had asked him to do so. It was thereafter

that the father of the deceased filed a missing report.

We have also gone through the missing report filed by PW-2.

The narration of the incidents in the missing report about the acts of

the appellant in misleading and avoidance substantially corroborates

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what PW-2 had deposed about the appellant before the Trial Court,

thus lending credibility to his testimony before the Court.

10.9.4 When we critically examine the evidence of Devraj Sutar

(PW-14), we find that he corroborates the testimony of PW-2, the

father of the deceased.

PW-14 testified that he was a classmate and friend of the

appellant and knew him.

PW-14 stated that on 11.07.2006 he received a call from the

appellant at around 9:00 pm and the appellant asked him to tell his

uncle if he contacts him on the phone to inform him that he (PW-14)

is in Pune, though PW-14 was in Ahmednagar. PW-14 also stated

that the appellant appeared to be frightened and asked him to tell a

lie and thereafter disconnected the phone. PW-14 further testified

that on the next day on 12.07.2006 he received a phone call from the

uncle of the appellant who enquired about the appellant, to which

PW-14 told him that the appellant had not come. On the second call

received from the uncle of the appellant, PW-14 narrated the actual

facts by stating that he was actually in Ahmednagar and not in Pune

and the appellant had not come to him. He stated that thereafter, he

was contacted over phone by the police who asked him to come to

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Miraj Police Station where he went and gave his statement. He also

stated that after 3-4 days of the recording of his statement, the police

again asked him to report to the Kagawad Police Station where he

was informed that one Vikram Shinde has been murdered.

10.9.5 In our opinion, the evidence of PW-14 is not only highly

relevant but critical to support the case of the prosecution that the

appellant had been in hiding and was misleading others about his

whereabouts and he remained in abscondence from 11.07.2006 till

22.07.2006.

His testimony also appears to be truthful.

It is to be noted that PW-14 had specifically deposed that he

was a friend of the appellant, and he did not know the deceased. PW-

14 stated that he was a classmate of the appellant, and he had

undertaken diploma course along with the appellant.

He did not have any idea of the missing of Vikram Shinde and

the subsequent discovery of the dead body of Vikram Shinde. PW-

14 came to know of the murder of Vikram Shinde only when he was

called at the Kagawad Police Station after about a week of his

recording of statement at Miraj Police Station. Hence, there is no

reason to doubt the credibility of his evidence. Rather, he, being a

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friend of the appellant, it would not have been surprising if he had

turned hostile as in the case of some of the prosecution witnesses like

Sandip Sandalage (PW-18). According to the Prosecution, the

appellant had allegedly made an extra-judicial confession in the

presence of Sandip Sandalage (PW-18) who was a friend of the

appellant, but PW-18 turned hostile and resiled from his previous

statement. Hence, we have not taken into account his evidence in our

consideration. However, Devraj Sutar (PW-14), despite being a

friend of the appellant did not turn hostile but supported the

prosecution case. Thus, there cannot be any doubt about the

credibility of the evidence of PW-14, Devraj Sutar.

10.10 As regards the recovery of gold chain, from the possession

of the appellant, the same is proved as per evidence of the

Investigating Officer, PW-31, and seizure witness, Ismail

Mohammad Dange, PW-6. PW-6 stated that on 22.07.2006 when he

was called to the Police Station, the appellant had produced a gold

chain and at that time, a goldsmith (PW-13) was present who tested

and measured it. The said PW-13 also corroborates the testimony of

PW-6 though the other panch witness, PW-7, Vilas Macchendra

Davari, does not support the same.

Page 62 of 76

In respect of seizure of mobile phone, the shopkeeper, Shiv

Kumar, PW-25 had denied having purchased it from the appellant,

though there was no explanation of the recovery of a paper containing

the driving licence particulars and photograph of the appellant with

the signature of the shop owner and seal of the shop. Nevertheless,

we give the benefit of doubt in regard of proof of recovery of mobile

phone from the appellant, yet the fact remains that the said witness

PW-25 admitted that the signature on the said document was his and

the seal pertains to his shop, which indicates certain relationship of

the appellant with the said shopkeeper, PW-25.

Be that as it may, in our opinion, this may not have much

bearing on the case in view of the recovery of the gun, cartridges,

motorcycle, bag and gold chain at the instance of the appellant, which

clearly points the finger of culpability towards the appellant.

10.11 This takes us to the other contentious issue of motive which

prompted the appellant to commit the crime. According to the

Prosecution, the appellant murdered the deceased by using firearms

as he was upset by the non-repayment of the loan taken from him by

the deceased.

Page 63 of 76

10.11.1 The Prosecution case is that the appellant had taken a

certain amount from Ravindra S. Chavan, PW-19 to lend it to the

deceased. However, Ravindra Chavan denied having given any

money to the appellant. In view of the above evidence, the Trial Court

held that the monetary transaction cannot be said to be proved. On

the other hand, the High Court based on the other evidence held the

same to be proved.

In this regard, we may scrutinize the evidence of other witness,

namely, Ashok R Shinde (PW-4), the auto-rickshaw driver who

allegedly heard arguments between the appellant and the deceased

regarding certain monetary matter. Even if the exact amount of the

monetary transaction cannot be ascertained as held by the Trial

Court, it is on record that there was an argument between them

relating to money and insulting words being used by the deceased to

the appellant which was heard by PW-4. This interaction would show

that there was an element of grudge by the appellant against the

deceased because of certain monetary dispute which constituted the

motive behind the crime.

10.11.2 Even if it is held that there was no such monetary

transaction between the appellant and the deceased, the same may

not materially affect the Prosecution case. As is well known, the

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motive is something that is very difficult to prove as it remains hidden

in the deep recess of the mind of the person concerned and in the

absence of any open declaration by the person concerned himself, the

motive has to be inferred from the activities and conduct of the

person. From the evidence of Ashok R Shinde (PW-4), it can be

stated that there was a certain argument between the appellant and

the deceased, and the deceased was heard using insulting words to

the appellant. It is to be noted that the PW-4 is known to both the

appellant and the deceased, and he was having good terms with the

family members of both the deceased and appellant and as such it

will be highly improbable that this witness would give false

statement favouring the appellant and against the deceased. Nothing

was suggested during his cross examination of him being inimical to

the appellant.

10.11.3 The law is now well-settled that while proof of motive

certainly strengthens the prosecution case based on circumstantial

evidence, failure to prove the same cannot be fatal. In this regard,

one may refer to G. Parshwanath vs. State of Karnataka 2010 (8)

SCC 593 in which it was held as follows:

“45. The argument that in absence of motive on the part of

the appellant to kill the deceased benefit of reasonable doubt

should be given, cannot be accepted. First of all every

suspicion is not a doubt. Only reasonable doubt gives benefit

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to the accused and not the doubt of a vacillating judge. Very

often a motive is alleged to indicate the high degree of

probability that the offence was committed by the person who

was prompted by the motive. In a case when the motive

alleged against accused is fully established, it provides

foundational material to connect the chain of circumstances.

It afforts a key on a pointer to scan the evidence in the case

in that perspective and as a satisfactory circumstance of

corroboration. However, in a case based on circumstantial

evidence where proved circumstances complete the chain of

evidence, it cannot be said that in absence of motive, the

other proved circumstances are of no consequence. The

absence of motive, however, puts the court on its guard to

scrutinize the circumstances more carefully to ensure that

suspicion and conjecture do not take place of legal proof.

There is no absolute legal proposition of law that in the

absence of any motive an accused cannot be convicted

under Section 302 IPC. Effect of absence of motive would

depend on the facts of each case. Therefore, this Court

proposes to examine the question of motive which prompted

the appellant to commit the crime in question.”

10.12 The present case is clearly one that is founded on

circumstantial evidence. By its very nature, circumstantial evidence

as opposed to direct evidence, is the inference one draws from the

existence of a fact based on certain established fact/circumstance.

This process invariably involves intuitive reasoning, proper

understanding of human behaviour and psychology. This reasoning

has to be rational, probative and which accords with the natural

human behaviour. At the same time, there will always be certain

subjective elements, which however, cannot be in the nature of

surmise or conjecture. The inference may not lead to absolute

certainty as we are dealing with human behaviour and reconstructing

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a past incident in hindsight. Naturally, when evaluating the proven

circumstances for drawing certain inferences therefrom, a logical,

rational and pragmatic approach must be adopted without being too

technical, pedantic, or seeking absolute proof, for this principle of

circumstantial evidence is not based on statutory provision.

Thus, based on lived human experiences and human

behaviour, if any supposition of fact is clearly inferable from an

established fact, the inferred position of fact should be adopted as

correct. Law does not require that a fact requires to be proved on

absolute terms bereft of all doubts. What law contemplates is that for

a fact to be considered proven, it must eliminate any reasonable

doubt. Reasonable doubt does not mean any trivial, fanciful or

imaginary doubt, but doubt based on reason and common sense

growing out of the evidence in the case. A fact is considered proved

if the court, after reviewing the evidence, either believes it exists or

deems its existence probable enough that a prudent person would act

on the assumption that it exists.

10.12.1 It is also settled that where the evidence is circumstantial

in nature, the circumstances from which the inference of guilt is to

be drawn, should be fully established. In other words, each of the

circumstances from which certain inferences are sought to be drawn,

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is required to be proved in accordance with law, and there cannot be

any element of surmise and conjecture, and each of these

circumstances so proved must form a complete chain without any

break to clearly point to the guilt of the accused person. The court

has to examine the cumulative effect of the existence of these

circumstances, which would point to the guilt of the accused, though

any single circumstance may not in itself be sufficient to prove the

offence. Thus, if the combined effect of all these circumstances, each

of which has been independently proved, establishes the guilt of the

accused, then the conviction based on such circumstances can be

sustained. These circumstances so proved must be consistent only

with the hypothesis with the guilt of the accused and should exclude

every hypothesis except the one sought to be proved.

Thus, if upon evaluation of a set of proved circumstances

consistent with understandable and socially recognised human

behaviour, as a cumulative consequence, a clear and definitive

pattern emerges which irresistibly points to the culpability of the

accused person, we see no reason why we should not accept such an

inferred conclusion to be correct to fasten criminal liability on the

accused. On the other hand, if such an inference is sought to be

assailed on the ground of any doubt, the doubt must be a reasonable

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one consistent with human behaviour under the circumstances of the

case and not fanciful, abstract speculation or imagination.

10.12.2 Keeping the aforesaid principles in mind, if we consider

all these circumstances, all of which, in our opinion, have been

proved in the present case, the cumulative effect of these would

clearly demonstrate that no other person other than the appellant

could have caused the fatal injury to the deceased by use of fire arms.

As the saying goes, while men may lie, circumstances do not.

10.13 As discussed above, it has been proved through cogent and

credible evidence that the appellant was last seen together with the

deceased on 10.07.2006 and though the dead body of the deceased

was discovered on 13.07.2006, death had occurred around the time

the deceased went missing and during this intervening period, the

whereabouts of the deceased could not be ascertained. On the other

hand, the appellant had been hiding and misleading his relatives and

friends about his whereabouts for which the Trial Court and the High

Court had rightly inferred his guilty mind.

10.13.1 The other incriminating circumstance is the recovery of

pellets and wads from the brain and skull of the deceased. The post-

mortem report indicates that the deceased died of bullet injury. The

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exit wound was below the left eye socket, which would show that the

victim was fired at from behind. As per the forensic expert, the size

of the injury on the head of the appellant corroborates with the injury

that may be caused by firing from the double barrel gun. What is,

however, of utmost and critical significance is the recovery of the

pellets and wads from the brain inside the skull of the deceased and

the opinion of the ballistic expert that these pellets and wads can be

fired from the double barrel gun which was recovered at the instance

of the appellant which belongs to the appellant’s grandfather. The

ballistic expert had also given his opinion that there is evidence of

discharge of the gun and the gun was in working condition.

10.13.2 Further, as per the ballistic expert, the spent two 12 bore

D.B.B.L cartridges recovered at the instance of the appellant were

fired from the same gun and that the pellets and wads recovered from

the body were parts of the 12 bore cartridge.

10.14 Since the gun and empty pellets were recovered from the

house of the appellant/his grandfather, the incriminating evidence

clearly indicates the involvement of the appellant. As the appellant

had access to the said gun and since it was recovered at his instance,

it was upon him to explain the circumstances in which the gun

showed signs of discharge and how the empty pellets were recovered

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as required under Section 106 of the Indian Evidence Act which

provides that when any fact is especially within the knowledge of any

person, the burden of proving that fact is upon him. As there was

ballistic evidence that the pellets and wads recovered from the cavity

of the skull of the deceased showed a link, the appellant had an

obligation to explain the circumstances. Even if the appellant may

claim that he was not the owner of the gun, his grandfather owned a

duty to explain the position.

All the prosecution witnesses, including the forensic expert

and ballistic expert had been subjected to intense cross examination

with the endeavour to shake their credibility, yet, the appellant has

chosen not to lead any evidence except for denying any role in the

crime.

10.14.1 The appellant's connection to the case deepened as

various forensic and ballistic analyses were introduced. The recovery

of the weapon and supporting evidence, including the corroborative

testimonies of prosecution witnesses, established a compelling

narrative. While motive is often challenging to substantiate, the chain

of circumstantial evidence in this case continuously narrowed the

focus toward the appellant's culpability. The scientific analysis of the

gun and its discharged state, alongside the recovered empty pellets,

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played a critical role in aligning the timeline of events surrounding

the crime.

10.15 It is true that even in cases based on circumstantial evidence,

the prosecution cannot depend on the false alibi or unproven defence

plea since the onus is always on the prosecution to prove the

prosecution case and the onus never shifts to the accused. However,

in such circumstances where prosecution has been able to prove on

the basis of cogent evidence that the weapon of crime was traced to

the accused, as in the present case, it was incumbent upon the

appellant to explain the circumstances of the recovery of the weapon

with which a linkage has been established with the injury suffered by

the deceased through scientific evidence. However, apart from

claiming ignorance and denying the various incriminating evidence

presented during the trial, the appellant chose not to adduce any

evidence to explain these circumstances. Thus, his silence and

failure to explain any of the incriminatory circumstances, would

strengthen the prosecution case based on circumstantial evidence

against him as proved by the Prosecution.

10.15.1 In this regard, we may also refer to the decision in this

Court rendered in Trimukh Maroti Kirkan v. State of Maharashtra

(2006) 10 SCC 681 it was held that where the circumstantial

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evidence is the basis for any case, where no eyewitness account is

available, and when the incriminating circumstances are put to the

accused, if the accused does offer any explanation or the explanation

that is found to be false, it provides an additional link to the chain of

circumstances as observed in para 21 of the aforesaid decision which

is reproduced herein below: -

“21. In a case based on circumstantial evidence where

no eyewitness account is available, there is another

principle of law which must be kept in mind. The

principle is that when an incriminating circumstance is

put to the accused and the said accused either offers no

explanation or offers an explanation which is found to be

untrue, then the same becomes an additional link in the

chain of circumstances to make it complete. This view has

been taken in a catena of decisions of this Court.

[See State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000

SCC (Cri) 40] (SCC para 6); State of U.P. v. Dr.

Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC

(Cri) 642 : AIR 1992 SC 2045] (SCC para 39 : AIR para

40); State of Maharashtra v. Suresh [(2000) 1 SCC 471 :

2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v. State

of Rajasthan [(2002) 1 SCC 731 : 2002 SCC (Cri) 247]

(SCC para 15) and Gulab Chand v. State of M.P. [(1995)

3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4).]

10.16 We may not also lose sight of the significance of the

provision of Section 313 of the CrPC in the case. As a trial comes to

a conclusive phase and all the evidence are adduced by the

prosecution, the veracity and credibility of which are tested with the

tool of cross examination and when a certain clear picture emerges

based on the incriminating materials on evidence, as a procedural

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safeguard, the court draws the attention of the accused to these

incriminating evidence to enable the accused to explain these facts

and circumstances which point to his guilt. While the accused is not

obligated to answer the questions put to him and still can maintain

his silence or deny the evidence, yet silence or evasive or wrong

answers to the questions put by the court provides a perspective to

the court in properly evaluating the incriminating materials which

have been brought forth by the prosecution by drawing necessary

inference including an adverse one. [See, Manu Sao v. State of

Bihar, (2010) 12 SCC 310].

10.16.1 Examination of an accused under Section 313 CrPC is an

important component of the process of judicial scrutiny of the

evidence sought to be relied upon by the prosecution against an

accused. At the time of indictment and framing of charges against an

accused, the untested evidence marshalled by the investigating

authority in the course of the investigation is laid bare before the

accused, who would have an idea as to the nature of evidence and

case being built up against him by the prosecution. This is to enable

the accused to prepare and strategize his defence. He will have all the

opportunities to discredit any prosecution witness or question any

evidence through the tool of cross examination. He will thereafter

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have the opportunity to lead his defence evidence if any. It is in this

context that the answers given by an accused assume great

significance in assessing the evidence by the court.

10.16.2 In the present case, despite the incriminating evidence

which has come up against him has been pointed out to him by the

Court, he has not explained any of these but merely denied or feigned

ignorance to which necessary inference can be drawn against him.

11. CONCLUSION

11.1 For the reasons discussed above, on consideration of the

circumstantial evidences and other proven facts, in our considered

opinion, a clear pattern emerges out of the circumstances so proved

with inferential and logical links which unmistakably points to the

guilt of the appellant for committing murder of the deceased Vikram

Shinde, punishable under Section 302 of the IPC and also for

committing offences under Section 404 of the IPC and Sections 3 and

5 of the Arms Act,1959 punishable under Sections 25 and 27 of the

Arms Act.

These proved circumstances considered individually or taken

together do not indicate the involvement of anyone else other than

the appellant.

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In the circumstances so proved, the possibility of any other

person being responsible for the death being ruled out, it can be safely

said that the Prosecution has been able to prove the charges against

the appellant beyond reasonable doubt. There can thus be no doubt

that no one else other than the appellant could have committed the

crime.

11.2 For the foregoing reasons, we are of the view that no material

illegality has been committed by the Trial Court and the High Court

in appreciating the evidence against the appellant nor it can be said

that any gross injustice has been caused to the appellant by the

impugned judgment by misreading or ignoring any material

evidence.

11.3 We are, therefore, satisfied that the conviction of the appellant

by the Trial Court which the High Court upheld does not warrant any

interference from this Court except for setting aside the conviction

under Section 404 of the IPC as regards recovery of the Nokia Mobile

Phone, of which we give the benefit of doubt to the appellant, but

sustain the conviction of the appellant under Sections 302 and 404 of

the IPC as regards murder of the deceased and misappropriation of

gold chain by the appellant and under Sections 25 and 27 of the Arms

Act, 1959 for unlawful possession and use of the gun.

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11.4 Resultantly, the appeal is dismissed and the impugned

judgment and order of the High Court of Karnataka, Circuit Bench at

Dharwad passed on 06.12.2010 in Criminal Appeal No. 666 of 2007

is upheld to the extent indicated above.

Consequently, bail bonds furnished by the appellant stand

cancelled and the appellant who had been released on bail is directed

to surrender before the Trial Court forthwith to undergo the

remaining period of sentence awarded by the Trial Court as affirmed

by the High Court.

……………………………J.

(SURYA KANT)

….……………….…………………………J.

(NONGMEIKAPAM KOTISWAR SINGH)

NEW DELHI;

MAY 30, 2025.