PAVAN VASUDEO SHARMA versus STATE OF MAHARASHTRA THROUGH SECRETARY

Citation: [2019] 5 S.C.R. 11 · Decided: 25-03-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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PAVAN VASUDEO SHARMA
v.
STATE OF MAHARASHTRA THROUGH SECRETARY
(Criminal Appeal No.519  of 2019)
    MARCH 25, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Penal Code, 1860 – ss.302 and 392 – Bombay Police Act –
s.37(1) r/w. s.135 – Arms Act – s.3 read with s.25 – Prosecution
case that four persons including accused Nos.1 & 2 kidnapped a
boy and called for a ransom – Police raided a building and
apprehended four persons including the accused persons –
During the personal search of Appellant-accused No.1, a pistol, 2
live cartridges and two cell phones were recovered – Pistol
recovered from accused No.1 was a service weapon which was
entrusted to PW-11 - Police Naik, which was earlier snatched from
him by  unknown persons in a separate incident – Cartridges
recovered from the accused No.1 was test fired by the forensic
analyst from the same pistol – The features of the firing pin
impression on the cartridge tallied with from a bullet recovered from
body of a  deceased ‘B’ in a different incident – When the body of
‘B’ was recovered, it was alleged that his two mobile phones were
robbed – Further, it was alleged that ransom call in the kidnapping
case was made by accused persons from the mobile number of
deceased ‘B’ – Accused no.1 & 2 were tried for murder of ‘B’ and
other offences  u/ss.302, 392 r/w. s.34 of IPC, s.37(1) r/w. s.135 of
the Bombay Police Act and s.3 read with s.25 of the Arms Act – Trial
court convicted accused no.1 & 2 – High Court acquitted accused
no.2 u/s. 302, 392 of IPC – Aggrieved, appellant-accused no.1 filed
appeal – Held: It is a settled principle that circumstances relied
upon must rule out every single hypothesis except the guilt of the
person accused of an offence – The first circumstance
regarding mobile phone was not proved – The mobile number was
not   subscribed by deceased ‘B’ but was subscribed by one ‘S’ and
there was no link between the two – The second circumstance was
regarding bullet recovered from the body of the deceased – It is
true that bullet recovered from the body of ‘B’ matched with the
      [2019] 5 S.C.R. 11
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
service weapon which was allocated to PW-11-Police Naik but
theory that the weapon was snatched by accused was not proved –
No Test Identification of accused persons was held – Both
circumstances were not sufficiently established against the accused
– There were too many missing links and the material on record
does not exclude every single hypothesis except the guilt of the
man – Therefore, benefit of doubt given to the appellant –
Appellant-accused no.1 acquitted of the charges levelled against
him.
Allowing the appeal, the Court
HELD: 1.  Two circumstances which are principally relied
upon by the prosecution are the recovery of a mobile phone which
was allegedly used for making demands of ransom; and Seizure
of 9 mm pistol.  The first circumstance regarding mobile phone
is not proved at all.  The mobile number was not subscribed by
deceased ‘B’ but was subscribed by ‘S’.  No link between these
two persons has been established nor any bill in the name of said
‘B’ was produced on record.  Since the evidence that the mobile
number was subscribed by said ‘S’ was led by the prosecution
itself, it cannot be assumed that said mobile number was, in fact,
subscribed by ‘B’.  The connection which would link the accused
with the murder of ‘B’, on this front is completely missing.  As
regards the second circumstance, it is true that the bullet
recovered from the body of the deceased matched with the
service weapon which was allocated to PW11-Police Naik but the
theory that the weapon was snatched by the accused is not
sufficiently established.  No Test Identification Parade was held
and if held, no material in that behalf has been produced on record.
The second circumstance, therefore, is not sufficiently established
as against the accused.  [Paras 9 and 15] [16-G-H; 19-B-D]
2. Applying the principles as culled out in the Sharad
Birdhichand Sarda decision, which have stood the test of time,
the matter is not free from doubt.  The circumstances relied upon
must rule out every single hypothesis except the guilt of the
person accused of an offence.  There are too many missing links
in the present matter and the material on record does not
exclude every single hypothesis except the guilt of the man.
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Therefore, the benefit of doubt given to the Appellant. The
Appellant is acqu

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