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Synopsis

The Supreme Court on October 17, 2024, acquitted a man of the charges of murdering his mother, wife, and two-year-old daughter. Court set aside the concurrent conviction and the death penalty awarded to the man. 

A bench of Justices B R Gavai, Prashant Kumar Mishra and K V Vishwanathan allowed an appeal filed by one Vishwajeet Kerba Masalkar against the Bombay High Court's judgment of July 23, 2019, which confirmed the trial court's decision, convicting him of offences punishable under Sections 302, 307 and 201 of the IPC and sentence of death penalty.

The top court discarded the testimony of an injured witness to the incident and the alleged recovery of blood-stained clothes and a hammer. It also held circumstantial evidence could not prove the case beyond reasonable doubt, while the motive of extramarital affairs could not be the sole basis of conviction.

The court noted that it was only on a complaint filed by the appellant that an FIR was lodged on October 4, 2012 with Wanawadi Police Station, Pune against unknown persons. The appellant stated that one gold chain of 8 Tolas, one gold Mangalsutra, cash amount of Rs 7,000, 3 small rings and 2 almond-shaped pendants having a total value of Rs 3,07,000 were stolen. It was claimed a neighbour, Madhusudan Kulkarni was also injured in the incident. However, the police arrested the appellant on the next day as it found that all jewelry items and cash, alleged to be stolen were found in the house.

The prosecution alleged that the appellant was having a love affair with another woman and wanted to marry her.

The appellant contended that the testimony of neighbour Kulkarni could not be relied upon as his statement was recorded by the police after six days that too after he was informed that an FIR had been registered against the present appellant for committing the murder of his wife, daughter and mother. His statement also revealed that he had not witnessed the incident. His counsel also said that the recoveries like a hammer and blood-stained clothes were all farcical and couldn't be relied upon.

State counsel, on the opposite, said that the prosecution had proved the case beyond reasonable doubt. Neighbour Kulkarni was an injured witness, besides there were recoveries made at the instance of the appellant, he submitted.

The court, however, noted the testimony of Kulkarni was full of contradictions.

It pointed out that though, Kulkarni stated in his examination-in-chief that the appellant was holding a hammer in his hand and he was going away, the same did not find place in the statement recorded under Section 164 CrPC by Judicial Magistrate, First Class. He stated that he did not remember as to whether he was conscious or not when he was admitted in the hospital. In the next breath, he admitted that after the incident, some people came to his flat and he asked them to call the doctor there only.

The doctor who admitted him to the hospital stated that Kulkarni was conscious and oriented, the bench noted. 

"Therefore, a million-dollar question that would arise is if Kulkarni was conscious and oriented at the time of admission in the hospital, then why was his statement not immediately recorded. Another question that would arise is if Kulkarni had asked the neighbours, who had come to his flat, to call for the doctor, then he naturally would have informed about the incident to them. However, not a single neighbour is examined to corroborate the version of Kulkarni," the bench said. 

On deeper scrutiny, the bench said, the testimony of Kulkarni would not inspire confidence.

"No doubt that a conviction could be based solely on the basis of the evidence of a solitary witness, however, the testimony of such a witness is required to be found to be credible and trustworthy. It is also necessary to examine the testimony of such a witness critically," the bench said.

The court also noted that if the testimony of Kulkarni was discarded, then the case would become the one of circumstantial evidence.

Relying upon Sharad Birdhichand Sharda Vs State of Maharashtra (1984), the bench said that the circumstances from which the conclusion of guilt is to be drawn should be fully established.

"It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted solely on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt," the bench said.

With regard to the recovery of the hammer, the court noted it was affected by a canal, which was open and accessible to all.

It is improbable that a hammer that was soaked in water for 3 days would still retain the blood stains. It is also difficult to believe that, in flowing water where two swimmers were required to find out the incriminating material, the said article would remain at the same place after 3 days, the bench opined. 

"We therefore find that it cannot be said that the prosecution has proved the said circumstance beyond reasonable doubt," the bench said.

Insofar as the circumstance regarding the recovery of the appellant’s clothes was concerned, the bench said that even according to the prosecution, it was the appellant who had informed the police about the crime and he was present there.

As such, the presence of bloodstains on his clothes cannot be said to be unnatural. Again, the recovery is from a place which is open and accessible to one and all. Same is the case with regard to the recovery of jewellery, the court said.

On the motive, the bench said, "We find that solely on the basis of circumstance of motive, a conviction cannot be based."

Referring to the case of Sharad Birdhichand Sharda, the court pointed out that a suspicion, however strong it may be, cannot take the place of a proof beyond reasonable doubt. 

As held in the case of Sharad Birdhichand Sharda, the bench said, there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It is a primary principle that the accused “must be” and not merely “may be” guilty before a court can convict and every possible hypothesis except the guilt of the accused has to be ruled out. 

"In our considered opinion, in the present case, the prosecution has failed to do so. We are therefore of the considered view that the impugned judgment and order of the High Court as well as the trial court are not sustainable in law," the bench said.

The court accordingly directed for setting the appellant at liberty if not required in any other case.

Case Title: Vishwajeet Kerba Masalkar Vs State of Maharashtra