BALU SONBA SHINDE versus STATE OF MAHARASHTRA

Citation: [2002] SUPP. 2 S.C.R. 135 · Decided: 06-09-2002 · Supreme Court of India · Bench: U.C. BANERJEE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

' 
BALU SONBA SHINDE 
A 
v. 
ST ATE OF MAHARASHTRA 
SEPTEMBER 6, 2002 
[U.C. BANERJEE AND.B.N. AGRA WAL, JJ.] 
B 
Penal Code, 1860-Section 302-Murder-Circwnstantial evidence-
Conviction by courts below relying on sole witness-On appeal-Held, in the 
facts of the case witness not reliable and the chain of circumstance is not C 
complete-Accused entitled to benefit of doubt-Hence acquitted. 
Criminal trial Hostile witness-Evidence-Reliability-Held, would not 
be totally rejected-But to be subjected to close scrutiny. 
Circumstantial evidence-Acceptability of-Role of law courts in regard D 
there to--Discussed . 
Constitution of India, 1950, Article 136-Special leave jurisdiction-
Appreciation of evidence-Held, normally not permissible-But where there is 
lacuna in appreciation of evidence and likelihood of prejudice resulting in 
miscarriage of justice, it is permissible. 
E 
Petitioner accused was tried for having committed murder of his 
brother by giving him an axe blow. Prosecution relied on the evidence of 
PW4 and PWS (complainant). PWS, in the complaint, had reported to have 
witnessed the fight between the accused and the deceased and had put her 
thumb impression on the complaint. During trial though she admitted to F 
have put her thumb impression but refused that she was eye witness to 
the incident and hence was declared hostile. Trial Court placing reliance 
on the evidence of PW4 convicted the petitioner under Section 302 IPC. 
Conviction was upheld in appeal to High Court. Hence this appeal. 
Allowing the appeal, the Court 
HELD: 1.1 The conviction as confirmed by the High Court stands 
G 
set aside. Evidence of PW 4 cannot be accepted and having regard to the 
availability of materials, the success of prosecution becomes rather 
doubtful. Admittedly, there is no direct evidence and the entire prosecution H 
135 
136 
SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R. 
A hinges on circumstantial evidence. In the event, however,•the chain is 
snapped and there is a gap therein, the accused cannot but be said to be 
entitled to a doubt. 1145-D-EI 
1.2. In the instant case the aspect that there was gap in chain of 
circumstances, has been totally ignored by the High Court and thus the 
B same goes to the root or"the matter and by reason of non-adherence to 
the basic principles pertaining to circumstantial evidence, there was truly 
a miscarriage of justice warranting intervention of this Court. (145-E-FI 
c 
MG Agarwal and Anr. v. State of Maharashtra, AIR (1963) SC 200, 
followed. 
Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, 
AIR 1952 SC 343; Pawan Kumar v. State of Haryana, (2001) 3 SCC 628 
and Sudama Pandey and Ors. v. State of Bihar, (2002) I SCC 679, relied on. 
2. While it is true, declaration of a witness to be hostile does not ipso 
D facto reject the evidence - the portion of evidence being advantageous to 
the parties may be taken advantage of - But the court before whom such 
a reliance is placed shall have to be extremely cautious and circumspect 
in such acceptance. 1143-DI 
E 
State of U.P. v. Ramesh Prasad Misra and Anr., (19961 10 SCC 360, 
relied on. 
3. Under normal circumstances, analysis of evidence or appreciation 
of evidence ought not to be effected by the Apex Court while dealing with 
the matter but it is trite to note that in the event, this Court finds any 
F lacuna in appreciation of evidence by the High Court and in the event there 
is likelihood of prejudice being suffered by the accused resulting in 
miscarriage of justice, 'the present day justice-oriented approach ought to 
prompt this Court to go into necessary detail so as to assess the correctness 
of such an appreciation in the interest of justice. 1140-D, El 
G 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
950 of 2000. 
From the Judgment and Order dated 18.1.2000 of the High Coun of 
Bombay in Crl. A. No. 651/85 of 1987. 
H 
Sanjay K. Visen, A.S. Basme and Manoj K. Mishra, for the Appellants. 
.. 
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BALU SONBA SHINDE v. STATE OF MAHARASHTRA (BANERJEE, J.] 13 7 
A.P. Mayee, S.S. Shinde and V.N. Raghupathy for the Respondent. 
A 
The Judgment of the Court was delivered by 
BANERJEE, J. It is stated that Shankar and Balu, the two brothers 
were admittedly having some differences and disputes over the family property 
but subsequently the disputes were admittedly resolved and a deed of partition B 
was entered into between the brothers. It is in pursuance of the same however 
that Shankar was fencing
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