The Bombay High Court recently set aside the conviction of two accused persons acquitting them of the charges under Sections 302 and 201 read with Section 34 of the Indian Penal Code and observed that when there is penal liability, strict proof is required.

A Division Bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase observed,

“the scrutiny of evidence would show that the evidence adduced by the prosecution in this case has not established the guilt of the accused beyond reasonable doubt. When there is penal liability, strict proof is required. All these aspects were not considered by the learned Trial Judge and, therefore, interference is required.”

Appellants 1 and 2 were originally accused in a case where they faced trial for offenses under Section 302 and Section 201 read with Section 34 of the Indian Penal Code. They were found guilty and sentenced, with appellant No. 3 being acquitted. The prosecution's case included the discovery of the deceased, Anand Sadashiv Kamble's body in a well, subsequent investigations leading to the arrest of the accused, and the presentation of evidence by eighteen witnesses. The trial judge sentenced appellants 1 and 2 to life imprisonment for the Section 302 offense, along with additional penalties, including compensation for the legal heir of the deceased.

Advocates S. J. Salunke and Satej S. Jadhav appeared for the Appellants and Advocate V. S. Choudhari appeared for the Respondents.

In their appeals, the appellants contested the reliance on circumstantial evidence in the prosecution's case. They questioned the credibility of witnesses who claimed to have seen the accused with the deceased, citing issues with timing, lack of documentation, and concerns regarding the test identification parade conducted by P.W.18 Dr. Ashishkumar Biradar. The appellants also argued that the medical evidence suggesting a homicidal death was insufficient, and they criticized the evidentiary value of the scrap merchant's (P.W.4 Datta) testimony, which involved the purchase of a mobile phone from accused No.2.

Furthermore, the appellants disputed the use of weapon recovery based on a disclosure statement under Section 27 of the Indian Evidence Act, asserting that it constituted weak evidence and should not have been relied upon for conviction. They contended that these legal flaws, coupled with what they deemed as insufficient evidence, justified allowing the appeals.

In contrast, the Assistant Public Prosecutor (APP) strongly opposed the appeals, maintaining that the evidence, including the testimonies of witnesses P.W.10 Vijay and P.W.11 Vilas Jogdand, as well as the CCTV footage and medical evidence, solidly supported the prosecution's case and the convictions of appellants 1 and 2. The APP argued that the trial court's decisions were legally sound and did not require any interference.

The High Court reviewed the case, focusing on the principles established in the landmark case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) (4) SCC 116, which outlined key criteria for evaluating circumstantial evidence. The court emphasized that circumstances forming an inference of guilt must be cogently and firmly established, unerringly pointing towards the accused's guilt. The cumulative circumstances should form a chain so complete that there is no escape from the conclusion of the accused's guilt, and the evidence should be inconsistent with their innocence.

The High Court further considered the relevance of the "last seen" theory, highlighting the necessity of establishing a short time gap between the accused and the deceased being last seen together and the discovery of the deceased's body relying on Dinesh Kumar v. State of Haryana, AIR 2023 SC 2795.

“For establishing last seen theory, the proximity between the deceased found alive in the company of accused and the death of deceased should be too short so that it should not infer that somebody else would have come in contact with the deceased.”

After scrutinizing the evidence, the High Court concluded that the prosecution had not firmly established the guilt of the appellants beyond reasonable doubt. Several aspects of the case raised doubts, including inconsistencies in the testimony of witnesses, gaps in the investigation, and the absence of a clear motive for the crime. The High Court found that the evidence did not meet the required standard of proof in a case based on circumstantial evidence.

Based on these considerations, the High Court allowed the appeals, setting aside the convictions of appellants 1 and 2. They were acquitted of the charges under Sections 302 and 201 read with Section 34 of the Indian Penal Code, and the fine amounts were ordered to be refunded to them. The High Court clarified that there was no change in the order regarding the disposal of Muddemal (property involved in the crime) as passed by the trial court. The appellants were to be set at liberty unless required in any other case.

Cause Title: Sardar Bashirkhan Pathan & Anr. v. The State of Maharashtra