2023INSC749 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1541 OF 2010

SURESH THIPMPPA SHETTY … APPELLANT

VERSUS

THE STATE OF MAHARASHTRA … RESPONDENT

AND

CRIMINAL APPEAL No. 2346 OF 2011

SADASHIV SEENA SALIAN … APPELLANT

VERSUS

THE STATE OF MAHARASHTRA,

THROUGH HOME SECRETARY,

CIVIL SECRETARIAT, BOMBAY … RESPONDENT

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

2. These appeals are directed against the common

Final Judgment and Order dated 05.11.2009 (hereinafter

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referred to as the “Impugned Judgment”) passed by a

Division Bench of the High Court of Judicature at

Bombay (hereinafter referred to as the “High Court”) in

Criminal Appeals No. 50 of 2003 (Accused No. 4/A4 –

Suresh Thipmppa Shetty) and 522 of 2003 (Accused No.

2/A2 – Sadashiv Seena Salian) respectively, whereby the

High Court dismissed the appeals filed by the

appellants herein and upheld the conviction order(s)

passed by the Sessions Court. The State’s appeal

against the acquittal of 4 co-accused i.e., A1, A5, A6

and A7 (Criminal Appeal No. 496 of 2003) as also

Criminal Appeal No. 86 of 2003 by the Accused No. 3/A3

(Ganesh alias Annu Shivaram Shetty, who later passed

away), were dismissed by the Impugned Judgment.

THE FACTUAL PRISM:

3. Briefly put, relevant details of the story run

thus:

3.1The prosecution alleges that the original accused

A1, A2 and A7 were in the Colaba Police Station lockup

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from 23.09.1994 to 29.09.1994. The allegation is that

they entered into a criminal conspiracy between the

period from 23.09.1994 to 12.05.1995 to abduct and

murder Mahendra Pratap Singh (hereinafter referred to

as the “deceased”).

3.2 12.05.1995 became the fateful day. One Sharda

Prasad Singh, a businessman, is stated to be in the

petroleum business. His office was located at Express

Highway, near the Regional Transport Office, Ghatkopar.

He has five sons. They were carrying out the business

jointly. One of the sons of the said Sharda Prasad

Singh was the deceased. The prosecution states that A1

and A7, who are real brothers, running Saroj Petro

Chemicals Limited as also a transport business, had a

business rivalry with the deceased and thus, conspired

to abduct and murder him. Their head office was at

Chembur and they used to manufacture thinner and

solvents at Thane.

3.3 PW2 was a rickshaw-driver. A2 booked his rickshaw

for going to the Jawaharlal Nehru Port Trust. A2 and A3

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came to Hotel Garden. They asked PW2 to take the

rickshaw on the Highway. Thereafter, they changed

direction and got down and selected a spot for the

assassination of the deceased and returned to the

hotel.

3.4On 12.05.1995, PW1 as usual had been to his

business. At about 6 PM, the deceased informed him that

one person is expected from Bangalore with money and

they would go to Navi Mumbai. Then, both in a Maruti

1000 vehicle, driven by the deceased reached Hotel

Garden, Panvel at about 7.30 PM. They parked their

vehicle at the parking lot. After enquiring with the

receptionist, they went to the 1st Floor and entered

Room No. 106, where A3 was inside. On enquiry by the

deceased, A3 informed that as the air-conditioner was

not working, Sethji (the person who the deceased had

come to meet) had gone to Hotel Welcome. Thereafter, A3

tried to contact Sethji by the telephone/intercom but

was unable to.

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3.5 Then, A3 left the room to call Sethji. After about

5 minutes, he returned and informed that Sethji was ex -

pected at Hotel Garden itself. Thereafter, the as -

sailant/shooter, who absconded, came and informed that

Sethji had gone to Farmhouse and the deceased and oth -

ers were called there. 4 persons got into the Maruti

1000, being (1) the deceased; (2) PW1; (3)

assailant/shooter, and (4) A3, and proceeded to the

Farmhouse. A3 and the shooter/assailant got the car,

being driven by the deceased stopped at a location,

stepped out and later A3 and the assailant/shooter

again got back in the car and the shooter/assailant

killed the deceased.

3.6 It is alleged that A2, on the side, had already

booked a Maruti Van to proceed to Panvel from a travel

agency. Further, that A4, A3 and A2 proceeded in Maruti

Van driven by PW7 to Hotel Garden.

3.7 A4, it is alleged, had with 2 others visited the

site of occurrence prior to the incident by hiring

rickshaw. PW3 (Ranjan Shankar Behra, the hotel

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receptionist) has identified A4 being in the hotel room

with A3 and A2.

3.8First Information Report, namely Crime No.

132/1995, was lodged on 13.05.1995. Investigation

commenced and culminated into a chargesheet against 10

persons – 3 were discharged and 7 stood trial. Tabular

summation of the assailed convictions, granted by the

Sessions Court on 27.11.2002 is apposite:

Sl. No.Position Convicted Under Punishment

1 A4 Section 302 r/w

Section 120-B of

the Indian Penal

Code, 1860

1

Rigorous

Imprisonment

2

for

Life and INR

50,000 Fine (1

year RI in

default)

2 A2 Section 120-B, IPC 5 years’ RI and

INR 50,000 Fine

(1 year RI in

default)

Section 302 r/w

Section 120-B of

RI for Life and

INR 50,000 Fine

1 Hereinafter referred to as “IPC”.

2 Hereinafter referred to as “RI”.

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IPC (1 year RI in

default)

4. Aggrieved by order dated 27.11.2002 rendered by the

Sessions Court, the present appellants (A4 and A2), A3

and the State of Maharashtra preferred separate appeals

before the High Court. As noted above, the Impugned

Judgment dismissed all the appeals. In the meantime, A3

passed away. Aggrieved, now on account of the Impugned

Judgement, the appellants have preferred the instant

appeals before this Court.

SUBMISSIONS BY THE APPELLANTS :

5.According to learned counsel for the appellants, as

per the prosecution story and the witnesses, they (A4

and A2) were not the two persons who accompanied the

deceased in the car wherein ultimately, he was shot and

thus, only upon the conspiracy theory having been

proved, could they have been convicted. Learned counsel

submitted that in the present case, the chain of events

does not show any conspiracy as the main accused being

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A1 and A7, who were brothers, and who were said to have

been in rivalry with the deceased had hatched the plan.

They hired the other/remaining accused to eliminate the

deceased. It was further contended that as per the

complaint by the uncle of the deceased who is said to

have accompanied him in the car, the two accused who

had sat behind in the car on the pretext of taking the

deceased to meet one Sethji, who had offered some

business deal with the deceased, after one of the said

two co-accused having shot the deceased in the car, the

complainant/PW1 (Chandrabhan Singh Srinath Singh) is

said to have been ordered to run away from the place

(which he did), failing which he would be shot.

6. However, learned counsel pointed out that his

conduct does not inspire confidence as he did not go to

the nearest Police Station but instead is said to have

gone to the residence of one Bharatbhai Shah who was

not there but his brother-in-law was present, who

accompanied him to the house of the deceased, where his

family members were informed and when they reached the

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place of occurrence, they found that the police had

already arrived on the spot. Another aspect, which

learned counsel for the appellants pointed out, was

that it is against normal human behaviour that a person

after committing such a serious offence would leave an

eyewitness alive, to later get exposed and risk getting

convicted, especially for offence(s) with serious penal

consequences.

7. Learned counsel urged that there is absolutely no

evidence available to link the appellants to the crime

as no connection whatsoever has surfaced during the

entire investigation and trial apropos them having

conspired as no other conspiracy theory has even been

considered by the prosecution. It was further contended

that once the so-called main conspirators, at whose

behest the murder has taken place, have been acquitted,

there being no theory, much less proof, of any motive

for the appellants to commit the crime in question; in

any view of the matter, benefit of doubt was required

to be given to them. It was contended that the

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surfacing of PW7 (Shivshankar Mongalal Tiwari) after

more than six months of the occurrence itself brings

serious doubts about credibility in the statement as he

has stated that he has not mentioned the factum of

occurrence of the crime in question to anybody, which

is highly improbable.

8.Another indicator concerning the testimony of PW7,

as pointed out by the learned counsel for the

appellants is that if the incident took place at 8:15

PM, and minute details are being disclosed by him when

he was at a distance of 150 feet, the same is palpably

difficult to believe. Moreover, the weapon having not

been recovered nor there being collection of the

clothes worn by PW1 showing that he has blood stains,

when admittedly after being shot, the deceased’s neck

had tilted on his shoulder, also points to the said

witness not being at the spot and the whole story so

far as the appellants are concerned is fabricated, per

the learned counsel.

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9. Learned counsel for A2 further took the stand that

despite some money confiscated from the bank account

and fixed deposit of A2, there is nothing to connect

the said money to A1 and A7 who are said to have been

the masterminds in hatching the conspiracy with motive.

10.Learned counsel summed up stating that even the

alleged rivalry between the deceased on the one hand,

and A1 and A7 on the other, was not proved before the

trial court, which resulted in the acquittals of A1 and

A7.

11.Learned counsel for the appellants submitted that

in cross-examination, PW2 (Vinayak Shivaji Sawant) has

not identified A4. PW2 also admits that he was shown

photographs of A2 and A4 on many occasions. It was also

contended that the assailant/actual shooter is still

absconding and has not been apprehended and only to

cover up lapses, the police after six months have set

up PW7 to somehow implicate the appellants. In his

deposition, PW7 has stated that he heard crackers being

burst which means that there were multiple sounds

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whereas there is a categorical statement made by PW1,

who was in the car that two shots were fired by a small

weapon and thus, there could not have been multiple

sounds from the same firing, which indicates that it

could not have been from a small weapon, which would

not make repeated sound(s).

SUBMISSIONS OF THE RESPONDENT :

12.Per contra, learned counsel appearing for the

State (sole respondent) in both appeals supported the

Impugned Judgment. He tried to persuade us not to

interfere. He submitted that the Sessions Court has

clearly discussed the role of the appellants based on

the testimony of the witnesses and they have also been

identified by the prosecution witnesses. Thus, it was

contended that the conspiracy was clearly established.

Furthermore, it was submitted that the Impugned

Judgment has also discussed the deposition of the

prosecution witnesses, including the room service

personnel/hotel staff of different hotels who have

recognised A2, which further proves that there was a

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criminal conspiracy between the appellants. It was

contended that there was also discussion based on the

testimony of the witnesses about the bank transaction

of A2. Reliance was placed by learned counsel on the

decision in Firozuddin Basheeruddin v State of Kerala ,

(2001) 7 SCC 596 for the proposition that conspiracy

can also be established based on circumstantial

evidence and that though not being a specific crime,

but on the basis thereof, a conspirator can also be

held responsible for a crime committed by co-

conspirator in furtherance of the objective of the

conspiracy.

ANALYSIS, REASONING AND CONCLUSION :

13.The High Court relied on the judgment of a 3-Judge

Bench in Noor Mohammad Mohd. Yusuf Momin v State of

Maharashtra, AIR 1971 SC 885 to hold that ‘ criminal

conspiracy can be proved by circumstantial evidence ’

3

.

On a careful appreciation of Noor Mohammad Mohd. Yusuf

Momin (supra), while in agreement with the law laid

3 Paragraph 51 of the Impugned Judgment.

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down therein, we are not able to see how the

prosecution’s case is strengthened with its aid. Noor

Mohammad Mohd. Yusuf Momin (supra) does not, in any

manner, militate against this Court overturning a

conviction when reasonable doubt emanates.

14.In State of Uttar Pradesh v Krishna Gopal , (1988)

4 SCC 302, the Court held:

‘25. A person has, no doubt, a profound right not

to be convicted of an offence which is not

established by the evidential standard of proof

beyond reasonable doubt. Though this standard is a

higher standard, there is, however, no absolute

standard. What degree of probability amounts to

“proof” is an exercise particular to each case .

Referring to the interdependence of evidence and

the confirmation of one piece of evidence by

another a learned Author says [See: “The

Mathematics of Proof-II”: Glanville Williams:

Criminal Law Review, 1979, by Sweet and Maxwell,

p. 340 (342)]:

“The simple multiplication rule does not apply

if the separate pieces of evidence are

dependent. Two events are dependent when they

tend to occur together, and the evidence of

such events may also be said to be dependent.

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In a criminal case, different pieces of

evidence directed to establishing that the

defendant did the prohibited act with the

specified state of mind are generally

dependent. A juror may feel doubt whether to

credit an alleged confession, and doubt

whether to infer guilt from the fact that the

defendant fled from justice. But since it is

generally guilty rather than innocent people

who make confessions, and guilty rather than

innocent people who run away, the two doubts

are not to be multiplied together. The one

piece of evidence may confirm the other.”

Doubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot

afford any favourite other than truth. To

constitute reasonable doubt, it must be free from

an over-emotional response. Doubts must be actual

and substantial doubts as to the guilt of the

accused person arising from the evidence, or from

the lack of it, as opposed to mere vague

apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt; but

a fair doubt based upon reason and common sense.

It must grow out of the evidence in the case .

26. The concepts of probability, and the degrees

of it, cannot obviously be expressed in terms of

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units to be mathematically enumerated as to how

many of such units constitute proof beyond

reasonable doubt. There is an unmistakable

subjective element in the evaluation of the

degrees of probability and the quantum of proof.

Forensic probability must, in the last analysis,

rest on a robust common sense and, ultimately, on

the trained intuitions of the Judge. While the

protection given by the criminal process to the

accused persons is not to be eroded, at the same

time, uninformed legitimisation of trivialities

would make a mockery of administration of criminal

justice.’

(emphasis supplied)

15.The principle in Krishna Gopal (supra) was

reiterated in State of Madhya Pradesh v Dharkole ,

(2004) 13 SCC 308 . On the above anvil, the prosecution

story does not inspire confidence to enable sustenance

of the impugned convictions.

16.Insofar as reliance placed by learned counsel for

the State on the judgment in Firozuddin Basheeruddin

(supra) is concerned, this Court would only observe

that the same encapsulated a different factual scenario

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– the main persons responsible for the death of the

deceased in that case were convicted. However, in the

present case, the prosecution story’s main conspirators

stand acquitted. This is one stark difference in the

foundational facts of the said case and the present

one. But this is sufficient to safely conclude that

Firozuddin Basheeruddin (supra) would not apply to the

case at hand. Recently, this Court in Sanjay Dubey v

State of Madhya Pradesh , 2023 INSC 519

4

, restated the

position that is no longer res integra:

’18. … It is too well-settled that judgments are

not to be read as Euclid’s theorems; they are not

to be construed as statutes, and; specific cases

are authorities only for what they actually

decide. We do not want to be verbose in

reproducing the relevant paragraphs but deem it

proper to indicate some authorities on this point

– Sreenivasa General Traders v State of Andhra

Pradesh, (1983) 4 SCC 353 and M/s Amar Nath Om

Prakash v State of Punjab, (1985) 1 SCC 345 -

which have been reiterated, inter alia, in BGS SGS

Soma JV v NHPC Limited, (2020) 4 SCC 234 , and

Chintels India Limited v Bhayana Builders Private

Limited, (2021) 4 SCC 602 .’

4 2023 SCC OnLine SC 610.

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17.Having considered the matter in extenso, including

examining the facts and applicable law, we are of the

clear view that sufficient material is available on

record, which has come out during the trial giving rise

to reasonable doubt as to the involvement of the

appellants in the crime. The appellants have been able

to poke holes in the testimonies of PW1, PW2 and PW7.

Our conclusion is only fortified as A1 and A7 have been

acquitted and thus, the conspiracy angle dehors the

said main conspirators, who are the masterminds as per

the prosecution, cannot be said to have been proved

beyond reasonable doubt. Moreover, no alternative

theory qua conspiracy has been even suggested, much

less proved, by the prosecution. Undisputedly, the four

persons in the car on the fateful date were (1) the

deceased; (2) PW1; (3) assailant/shooter, who is

absconding, and (4) A3. In the background of the

admitted position that the appellants were not present

at the spot where the crime was committed i.e., in the

car nor any direct/specific role in commission of the

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offence being attributed to them, their convictions

cannot be upheld.

18.On a deeper and fundamental level, when this Court

is confronted with a situation where it has to ponder

whether to lean with the Prosecution or the Defence, in

the face of reasonable doubt as to the version put

forth by the Prosecution, this Court will, as a matter

of course and of choice, in line with judicial

discretion

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, lean in favour of the Defence. We have

borne in mind the cardinal principle that life and

liberty are not matters to be trifled with, and a

conviction can only be sustained in the absence of

reasonable doubt. The presumption of innocence in

favour of the accused and insistence on the Prosecution

to prove its case beyond reasonable doubt are not empty

formalities. Rather, their origin is traceable to

Articles 21 and 14 of the Constitution of India. Of

course, for certain offences, the law seeks to place a

reverse onus on the accused to prove his/her innocence,

5 Although in the context of bail jurisprudence, for a working idea as to what ‘judicial dis-

cretion’ entails, peruse the views of a learned Single Judge (sitting as Judge-in-Chambers)

of this Court in Gudikanti Narasimhulu v Public Prosecutor, High Court of Andhra

Pradesh, (1978) 1 SCC 240.

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but that does not impact adversely the innocent-till-

proven-guilty rule for other criminal offences.

19.In Coffin v United States , 156 US 432 (1895) , the

United States’ Supreme Court held:

‘The principle that there is a presumption of

innocence in favor of the accused is the undoubted

law, axiomatic and elementary, and its enforcement

lies at the foundation of the administration of

our criminal law.’

20.We see no quarrel with the afore-noted statement as

the same applies on all fours to our criminal justice

system. The presumption of innocence is also a human

right, per the pronouncement in Narendra Singh v State

of Madhya Pradesh , (2004) 10 SCC 699 . In Ranjeetsing

Brahmajeetsing Sharma v State of Maharashtra , (2005) 5

SCC 294, a 3-Judge Bench of this Court, at Paragraph

35, had opined that ‘ … Liberty of a person should not

ordinarily be interfered with unless there exist cogent

grounds therefor. …’

21.Accordingly, for reasons aforesaid, these appeals

stand allowed. The appellants are discharged from the

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liabilities of their bail bonds. If any fine(s)

pursuant to the orders of the Sessions Court or High

Court were deposited by/realised from either appellant,

they shall be entitled to refund of the same.

........................J.

[VIKRAM NATH]

........................J.

[AHSANUDDIN AMANULLAH]

NEW DELHI

JULY 26, 2023