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 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. THR. SECRETARY
Therefore, the benefit of doubt given to the Appellant. The Appellant is acquitted of the charges levelled against him. [Paras 17, 18] [20-E-G]
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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