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PETITIONER: KHASHABA MARUTI SHELKE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT23/07/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ REDDY, P. JAGANMOHAN

CITATION:  1973 AIR 2474            1974 SCR  (1) 266  1973 SCC  (2) 449

ACT: Indian  Penal Code--S.302 read with ss. 307 333 and 332  and ss.3,4(b) 5 of the Explosive Substances Act, and ss. 25,  27 of  the Arms Act-Conviction on circumstantial  evidence-When conclusive.

HEADNOTE: The  appellant  was  convicted by  the  Sessions  Judge  for offences  under s. 302 I.P.C. on two counts for causing  the death of a Head Constable and another and sentenced to death on each count.  The appellant was further convicted under s. 307 I.P.C. for attempt to murder a P.S.I. and was  sentenced to  undergo rigorous imprisonment for a period of  7  years. He  was also convicted under ss. 333, 332 I.P.C. and ss.  25 and  27  of  the  Arms Act and ss. 3, 4 (b)  and  5  of  the Explosive Substances Act and separate sentences were passed, On  appeal and reference to the High Court, the judgment  of the  learned Sessions Judge was affirmed.  The  High,  Court maintained  the  conviction of the  appellant  relying  upon circumstantial evidence. The appellant came before this Court by special leave. The prosecution case was that a hand-grenade was exploded in the  house of one A when the police party headed by  a  Sub- Inspector  arrived  there  with  a  view  to  apprehend  the appellant  and  as a result of the  explosion  two  persons, including  a  Head Constable, received  fatal  injuries  and other  police  officials  received  serious  injuries.   The question  was  whether  the appellant  possessed  the  hand- grenade  in question and exploded the same. as a  result  of which, injuries were caused to the two deceased persons  and the different police officials. Allowing the appeal, HELD  :  (i)  The case against the appellant  had  not  been proved  by the prosecution beyond all reasonable  doubt  and the conviction of the accused, therefore, must be set aside. (ii) There  is  no direct evidence as to the fact  that  the appellant  was  seen  carrying a  hand-grenade  or  that  he exploded the hand-grenade.  The circumstances relied upon by the High Court in convicting the appellant do not singly  or cumulatively show that it was the appellant who exploded the handgrenade.   From the evidence, there is nothing  to  rule out the possibility of the hand-grenade having been exploded

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not by the appellant but by one of his companions.  There is no direct evidence as to who exploded the hand-grenade. (iii)     Further,  in the F.I.R. there was no mention of  a hand-grenade.  All that was mentioned in the said report was that there was firing from inside; but the medical  evidence revealed  that  there  was no bullet injury on  any  of  the injured persons. (iv) In  order  to  base the conviction  of  an  accused  on circumstantial evidence, the Court must be certain that  the circumstantial  evidence  is  of  such  a  character  as  is consistent only with the guilt of the accused.  The  circum- stances  must show that within all  reasonable  probability, the impugned act must have been done by the accused.  If two inferences are possible from the circumstantial evidence-The pointing  to  the guilt of the accused and the  other,  also plausible,  that the commission of the crime was the act  of someone  else-the circumstantial evidence would not  warrant the conviction of the accused. [273D]                             267

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 223  of 1972. Appeal  by special leave from the judgment and  order  dated February 10 & 11, 1972 of the Bombay High Court at Bombay in Cr.  A. No. 1416 of 1971. M.   L. Srivastava, for the appellant. H.   R. Khanna and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by KHANNA,  J.-Khashaba  Maruti Shelke (33)  along  with  eight others  was tried in the court of Sessions Judge Sangli  for offences  under  section 302/34, 307/34, 324/34  and  333/34 Indian Penal Code, section 25 of Arms Act read with  section 34 Indian Penal Code, section 27 Arms Act read with  section 34  Indian  Penal Code, section 3 Explosive  Substances  Act read with section 34 Indian Penal Code, section 4  Explosive Substances  Act  read  with section 34  Indian  Penal  Code, section  5  Explosive Substances Act read  with  section  34 Indian  Penal Code and section 6 Explosive,  Substances  Act read with section 34 Indian Penal Code.  In the alternative, there  were  charges  against  the  accused  for  the  above offences  read with section 149 Indian Penal Code.   Learned Sessions  Judge  acquitted  the  other  eight  accused   and convicted  the  appellant for offences  under  section  3102 Indian  Penal  Code on two counts for causing the  death  of Head  Constable  Yesade  (45) and Smt.   Balkabai  (70)  and sentenced  him  to death on each count.  The  appellant  was further  convicted under section 307 Indian Penal  Code  for attempt  to murder PSI Mardur and was sentenced  to  undergo rigorous imprisonment for a period of seven years.  The  ap- pellant  was also convicted under section 333  Indian  Penal Code for causing injuries to police constable Madane and was sentenced  to undergo rigorous imprisonment for a period  of three  years.   Conviction  was also  recorded  against  the appellant  under section 332 Indian Penal Code  for  causing injuries  to police constable Huzare, Havaldar.  Savant  and More  and he was sentenced to undergo rigorous  imprisonment for a period of two years on that count.  The appellant  was convicted  under sections 25 and 27 of the Arms Act and  was sentenced  to undergo rigorous imprisonment for a period  of one  year  on  each count.   Conviction  *as  also  recorded against  the  appellant  under sections 3 and  4(b)  of  the Explosive  Substances  Act and he was sentenced  to  undergo

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imprisonment  for life on each count.  In addition to  that, the appellant was convicted under section 5 of the Explosive Substances  Act  and he was sentenced  to  undergo  rigorous imprisonment for a period of three years.  The sentences  of imprisonment, if necessary, were ordered to run concurrently with the sentence imposed upon the appellant in another case under  section  307  Indian  Penal  Code..  On  appeal   and reference  to  the High Court, the judgment of  the  learned Sessions Judge was affirmed.  The appellant thereafter has I come up in appeal to this Court by special leave. The prosecution case is that the appellant was wanted in two murder  cases  of  1962  and  1966  but  he  could  not   be apprehended as he was absconding from 1962.  From March 1967 to May 1971 Sub 268 Inspector  Ramchandra  Mardur (PW 58) was posted  in  Sangli District  and  his  main duty was to  trace  the  absconding accused  and  to detect the offenders involved  in  property offences. On  July 24, 1970, it is stated, an informant  informed  Sub Inspector Kumbhar of police, station Radhanagari in Kolhapur District  that the appellant, who is a resident  of  village Kameri,  was  present in village Kavathe-Piran  in  District Sangli.   Kavathe-Piran  is seven miles, from  Sangli.   Sub Inspector  Kumbhar thereupon left for Sangli to  inform  the Superintendent  of Police.  On July 25 Head  Constable  Naik (PW  18)  of  Police station Radhanagari  along  with  three others  went to village Kavathe-Piran and met the  informant there.  They concealed themselves inside a house and through the  chinks of a door saw the appellant going on  the  road. The  appellant  was  then carrying a  gun  and  a  bandoleer containing  cartridges.   Head  Constable  Naik  and  others thereafter  went  to Sangli and informed  Superintendent  of Police Krishna about the, whereabouts of the appellant. On  July  26,  1970 Sub Inspector  Mardur  was  directed  by Superintendent  of Police Krishnan to arrange a  raid  party for the apprehension of the appellant.  A party of 30  armed constables  along with a tear gas squad of three  constables then  went  to the outskirts of  village  Kavathe-Piran  and reached there at 9 p.m. At about 10 p.m. the members of  the police party. were informed that the appellant had fired  at Jaising  Patil  (PW  21) of  village  Kavathe-Piran  at  the latter’s house and thereafter had run away.   Superintendent of  Police Krishnan then split the police party  into  three groups.  Two groups were sent in other directions, while the third group headed by Sub Inspector Mardur proceeded towards the  house of Ananda in village, KavathePiran.  Ananda  too was  arraigned  as an accused at the trial  along  with  the appellant  but  was  acquitted.  The  group  headed  by  Sub Inspector Mardur contained Head Constables Yesade  deceased, Naik  (PW 18) and Lavate (PW 55) and 10  Police  constables, including  Madane (PW 30),, Huzare (PW 29), Savant (PW  47), Havaldar (PW 44) and Pimpri (PW 45).  Head Constable  Lavate was  directed to keep a watch on the back door  of  Ananda’s house.  Sub Inspector Mardur went to the cattle shed of  the house of Ananda and called out Ananda.  Ananda came out  and soon  thereafter  the  door of the  house  was  closed  from inside.   On Sub Inspector Mardur’s enquiry, Ananda  replied that  his mother only was inside the house,.  Sub  Inspector Mardur,  however.  heard some foot-steps  and  a  whispering sound  from  inside.   This aroused  the  suspicion  of  Sub Inspector  Mardur.  He accordingly after alerting the  other members  of the police party kicked open the door.  As  soon as the door’ was opened Sub Inspector Mardur heard the sound of  firing from inside the house.  It was dark  inside-  The

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Sub Inspector had a torch in his left hand and he flashed it while holding a revolver in the right hand.  Head  Constable Yesade  then  entered a" room of the house.   Sub  Inspector Mardur was following Head Constable Yesade when there was an explosion  and the Sub Inspector. saw huge flames.  The  Sub Inspector  felt  that he had been injured.   He  accordingly returned  to the cattle shed and asked the police  party  to lire, The members of the police party then fired two 269 rounds  into  the  house.   The  Sub  inspector  also  heard reports  of firing from inside.  Blood then started,  coming out of the injuries of Sub Inspector Mardur and he also felt giddy.   The  Sub Inspector then came out of the  house  and took  shelter  behind  a wall.  As  the  Sub  Inspector  was seriously  injured, he directed the members of the party  to stop  firing and to watch if some one came out of the  house of  Ananda.   During  the course of  this  occurrence,  Head Constable Lavate, who had been posted on the backside of the house,  saw one man emerging out of the house from the  back door.   Head Constable Lavate, directed a police  cotistable to fire at that man, but that man escaped without being hit. Another  man  thereafter  emerged  from  the  back  door  of Ananda’s  house  and  escaped.   Superintendent  of   Police Krishnan then arrived at the house of Ananda and took  steps to  send  Sub Inspector Mardur to the hospital  for  medical treatment.   The police constables,, who too  were  injured, were also sent along with Sub Inspector Mardur. Under  the directions of Superintendent of  Police  Krishnan teargas  shells were burst out inside the, house  of  Ananda for flushing out inmates.  Ananda and one other person  then came  out  of  the house.   Superintendent  of  Police  then entered  Ananda’s house and saw Head Constable Yesade  lying injured  in  a small room adjoining the cattle shed  of  the house.  Yesade was brought out for Medical treatment but  he breathed  his  last in a short while.  Balkabai,  mother  of Ananda  accused, was also found lying dead in a room of  the house.   On  the  following morning at  about  9  a.m.  Head Constable  Naik  made report Ex. 52 at  the  police  station regarding the present occurrence. On the night of occurrence Appa Kesre (PW 23) was present in his  house.   Appa  Kesre’s house is at a  distance  of  two houses  from  that of Ananda in village Kavathe  Piran.   At about  1 1 or 1 1.30 p.m. Appa Kesre heard some  tumult  and got  up.  After the tumult had subsided, Appa Kesre saw  the appellant  and  Ramchandra who too was an  accused  in  the. case, come inside the house of Appa Kesre.  The appellant on arrival  disclosed his identity and told Appa Kesre  not  to make  noise.  The appellant and Ramchandra  thereafter  con- cealed  themselves inside the house of Appa Kesre.   On  the following morning Appa Kesre went out to ease himself.   His wife  also went out from the house.  Enquiries were made  by the police from Appa Kesre regarding the whereabouts of  the appellant  but  when Appa Kesre pleaded  ignorance,  he  was detained.    The   appellant  and  Ramchandra   were   later appre hended from the house of Appa Kesre at about 1.30 p.m. The appellant was found to have abrasions on his person  and his underwear had stains of blood.  The underwear was  taken into  possession.   Sub  Inspector  Sadashiv  (PW  64),  who investigated this case, found that some tiles of the roof of the  central room of Ananda’s house had been removed in  the south-east  corner.   A 303 rifle Ex. article  9  was  found dangling  in  the roof.  Its butt was broken.   Three  empty cartridges were also found in the room.  An iron pin too was seen lying in one of the rooms. The house of Ananda was examined by Senior Inspector of  Ex-

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plosives  Birendranath  De (PW 53) on July 30.   The  Senior Inspector 270 of  Explosives  took into possession  the  various  articles lying  there and, came to the conclusion that a  handgrenade had  been  exploded there.’ The handgrenade was  of  service origin and was of fragmentation type used by service  people only.  It had been manufactured in 1964. Post mortem examination of the dead bodies of Head Constable Yesade  and Balkabai was performed by Dr. Govind Jathar  (PW 48)  on  July  27,  1970.  Balkabai was  found  to  have  12 lacerated wounds besides a large number of abrasions on  the various parts of her body.  There was blackening at the site of the different injuries.  The injuries, in the opinion  of the  doctor, could have been caused by material flying as  a result of the explosion of a hand-grenade.  Yesade had three lacerated  wounds besides a large number of abrasions.   The doctor  extracted  one metal piece from the  cavity  of  the chest  of  Yesade.  Aorta of Yesade was found to  have  been punctured.   The injuries of Yesade could be caused by  hard and  blunt  substance flying with velocity.   There  was  no bullet injury on the bodies of Balkabai and Yesade. Dr.   Chokakakar  (PW  52)  examined  the  injuries  of  Sub Inspector  Mardur  as  well as those  of  police  constables Madane, Huzare, Savant, Havaldar and More.  Those  injuries, in  the  opinion  of  the doctor,  were  the  result  of  an explosion.   Five  of the injuries of Sub  Inspector  Mardur were  found  to  be dangerous to life.   The  appellant  and Ananda  accused were also examined by Dr.  Chokakakar.   The appellant had seven abrasions on the different parts of  his body.   The  above injuries could be caused by  a  hard  and blunt  substance.   Ananda had four punctured  wounds  which could be caused by splinters in an explosion. At   the  trial  the  plea  of  the  appellant  was   denial simpliciter.   According to the appellant, he had  left  his village  because be was afraid of one Shankar  Bhima  Patil. Shankar  Bhima  Patil  was stated to be  a  relation  of  an accused in a murder case and the father of the appellant had appeared as a prosecution witness against that accused.   As regards  the  injuries on his person, the  appellant  stated that  he was apprehended by the police in a field at  about noon time on July 27, 1970.  It was stated that the injuries on  the  person of the appellant had been  received  by  him during  the course of. grappling with the police  officials. No evidence was"produced in defence, The  trial court convicted the appellant as mentioned  above because  it was of the view that the appellant had  exploded the  hand.  grenade and had caused the  different  injuries. The High Court on appeal and reference substantially  agreed with the trial court. We  have  heard in appeal Mr. Srivastava on  behalf  of  the appellant and Mr. Khanna on behalf of the State, and are  of the  view  that  the case has not been  proved  against  the appellant  beyond  all reasonable doubt.  The  fact  that  a hand-grenade  was exploded in the house of Ananda  when  the police  party headed by Sub Inspector Mardur  arrived  there with a view-to apprehend the appellant cannot be  disputed. Likewise,  it  cannot be disputed that Yesade  and  Balkabai received  fatal injuries and Sub Inspector Mardur and  other police officials    received serious injuries as a result of that explosion.  The 271 crucial  question  which  arises for  determination  in  the present  case is whether the appellant possessed the,  hand- grenade  in question and exploded the same, as a  result  of

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which  injuries were caused to the two deceased persons  and the different police officials.  There is no direct evidence on this point as none of the witnesses has deposed about his having  seen the appellant carrying a hand-grenade or  about his  having  exploded the hand-grenade.  The High  Court  in maintaining, the conviction of the appellant has relied upon the following pieces of circumstantial evidence (1)  The  fact that the appellant was absconding before  the occurrence in two murder cases. (2)  The fact that the appellant was seen carrying a gun and cartridges  in village Kavathe-Piran by Head Constable  Naik on July, 25, 1970. (3)  The fact that the appellant fired at Jaising at 9  p.m. on July 26, 1970 in village Kavathe-Piran. (4)  The  fact  that  the appellant sought  shelter  in  The house-of  Appa  Kesre  at about  mid-night  hour  after  the explosion of the handgrenade. (5)  The fact that the appellant had abrasions on his person at the time of his arrest and his underwear was found to  be stained with blood. In  our  opinion, the circumstances enumerated  above  taken singly  or  cumulatively do not go to show that it  was  the appellant  who  exploded  the hand-grenade.  It  is  in  the evidence of Jaising (PW 21) that the appellant on the  night of occurrence was accompanied by four other persons, namely, Ramchandra, Mane Shankar and Sadashiv.  Out of them, Shankar and Sadashiv were strangers.  Ramchandra and Mane were  also charged for the various offences for which the appellant was charged, but they were acquitted.  There is nothing to  rule out the possibility of the hand-grenade having been exploded not by the appellant but by one of his companions.  The fact that  the appellant was an absconder in two  earlier  cases- would  not  necessarily show that it was the  appellant  who exploded  the  hand-grenade and not one of  his  companions. For  even  the appellant was interested  in  preventing  his apprehension  and  might have for that object  exploded  the hand-grenade, it is equally possible that the explosion’  of the  handgrenade  might have been the work of  one of  the companions  of  the  appellant with a view  to  prevent  the apprehension  of  the appellant and facilitate  his  escape. The presence of abrasions on the person of the appellant  or of  the  blood-stains on his underwear would not  also  show that it was the appellant and not one of his companions  who had  exploded the hand-grenade.  The further fact  that  the appellant and Ramchandra accused later sought shelter in the house  of  Appa Kesre would not also lead to  the  inference that it was the appellant and not one of big companions  who had  exploded the hand-grenade.  Likewise, no inference  can be  drawn  from  the fact that the appellant  had  fired  at Jaising earlier on that night, that the hand-grenade too was exploded by him, 272 Reference  has  been made by Mr. Khanna to  the  fact that Jallandar, brother of the appellant, was previously employed in the army and that Jallandar is untraceable since July 26, 1970 when the present occurrence took place.  It is  pointed out  that  the hand-grenade was of  service  origin.   ’Ibis circumstance,  in our opinion, is far from showing that  the appellant  alone could be in possession of  the  handgrenade and  that it was he who exploded. the same.  If one was  out to  procure a service hand-grenade by illegal means, it  was not  necessary  for  one to have a brother in  the  army  to secure such a handgrenade.  One might as well have  obtained such a hand-grenade through other sources. Reference  has also been made by Mr. Khanna to police  entry

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Ex.  139 and entry in crime handbook Ex. 162,  according  to which  intelligence  had been collected that  the  appellant carried  a  handgrenade.  The contents  of  these  documents cannot be of much value as there is nothing to show that the person  who made these entries had any direct  knowledge  of the  possession of hand-grenades by the appellant.   On  the contrary,  the entries show that the above  information  had been  derived from some other persons.  Those  persons  have not  been  exanuned as witnesses in the case.  There  is  no substantive  evidence of any one on the record that  he  had seen  the  appellant  carrying  a  hand-grenade.   The   two documents  referred  to  above, in our opinion,  can  be  no substitute for the substantive evidence of witnesses on  the point  that  the  appellant had in his  possession  a  hand- grenade. The appellant was convicted on August 23, 1971 by Additional Sessions  Judge  Sangli  for an offence  under  section  307 Indian  Penal Code-in connection with the incident  relating to  the firing at Jaising on the night of July 26, 1970.   A sentence  of  rigorous imprisonment for a  period  of  seven years  was  awarded-to  the appellant on  that  count.   The appellant was also convicted for offences under sections  25 and 27 of the Arms Act in that connection and was  sentenced to  undergo rigorous imprisonment for a period of  one  year and  three years for those offences.  As the  appellant  has already  been convicted for the offences under the Arms  Act for being in possession of the rifle and the cartridges,  he cannot  be  convicted again for being in possession  of  the same  rifle and cartridges on that day.  It also  cannot  be said that the appellant caused any injury with the, rifle to the  two  deceased  persons or the  other  police  officials because no bullet injury was found on any one of them. It  may be mentioned that though the prosecution  seeks  the conviction  of  the  appellant on  the  allegation  that  he exploded  a  handgrenade, in the  first  information  report relating to the present occurrence which was lodged by  Head Constable Naik there is no reference to a hand-grenade  much less  to the explosion of a hand-grenade by  the  appellant, although there is a reference in it to the bursting of  tear gas shells by the police party.  It appears that the  police party  was taken by surprise when the hand-grenade  exploded and  no  one realised as to what had happened  and  how  the different   persons  had  been  injured.   This   apparently accounts for the fact that there is no mention 273 of  the explosion of a hand-grenade or a bomb in  the  first information  report lodged by Head Constable Naik.  AR  that was  mentioned in the said report was that there was  firing from  inside even though me at evidence reveals  that  there was no bullet injury on any of the injured persons. It  ’is rather unfortunate that in a case like  the  present wherein two persons were killed and a number of others  were injured, no, direct evidence could be produced as to who had exploded  the handgrenade which caused the injuries  to  the deceased persons and other members of the police party.  The difficulty in procuring the direct evidence can be traced to the  fact  that the police chose to arraign as  accused  the different  inmates  of Ananda’s house.  None of  them  could consequently be examined as a witness although those inmates could be in a position to depose as to who had exploded  the hand grenade. In   order  to  base  the  conviction  of  an   accused   on circumstantial  evidence the court must be certain that  the circumstantial  evidence  is,  of such  a  character  as  is consistent only with the guilt of the accused.. If, however,

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the  circumstantial  evidence admits of any  other  rational explanations,  in  such an event an element of  doubt  would creep  in and the accused must necessarily have the  benefit thereof.   The  circumstances  relied upon should  be  of  a conclusive  character  and should exclude  every  hypothesis other  than  that  of the guilt of the  accused..  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.    The circumstances   must   show  that  within   all   reasonable probability  the  impugned act must have been  done  by  the accused.   If two inferences are possible from  the  circum- stantial evidence, one pointing to the guilt of the accused, and  the other, also plausible, that the commission  of  the crime  was  the  act of  someone  else,  the  circumstantial evidence  would not warrant the conviction of  the  accused. In case the circumstantial evidence relied upon by the  High Court  for maintaining the conviction of the accused for  an offence  entailing capital punishment does not  satisfy  the above  requirement, an interference would be called  for  by this Court. It would be apparent from what has been discussed above that the circumstantial evidence relied upon by the  ’prosecution in this case is not of such a character as can be held to be consistent only with the guilt of the appellant. We,  therefore, accept the appeal, set aside the  conviction of the appellant and acquit him. S.C. Appeal allowed. 2 7 4