April 13, 2024 In Uncategorized



A two-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Ujjal Bhuyan passed an Order in Arun Shankar Vs. The State Of Madhya Pradesh in Criminal Appeal No. 1186 Of 2022 and held that the Prosecution had failed to establish the recovery of the weapon at the Appellant’s instance, thereby, leaving the chain of circumstances incomplete and therefore set aside the conviction of the Appellant.


i) The Appellant, Arun Shankar and the Deceased, Sushildhar Dubey, were related and lived in the village of Amgoan, Madhya Pradesh (M.P.). They often went together to indulge in drinking liquor. On the evening of 29.09.1993, at approximately 7:00, the Appellant visited the Deceased’s house and invited him to join for a drink.

ii) Together, they proceeded to the residence of PW-2 (Ramdas) in the village of Kohaka, where they consumed liquor. Subsequently, they departed following the consumption of alcohol. There were no witnesses to the Deceased’s presence thereafter. His body was discovered the next morning, 30.09.1993, on the road leading to Village Bijholidhar Amgoan.

iii) The Prosecution relied on circumstantial evidence against the Appellant, inter alia the recovery of knife, identified as the weapon used to assault the Deceased, at the instance of the Appellant, the evidence of being last seen together, medical assessment of the Deceased’s injury and cause of death, the established habit of drinking liquor together etc.

iv) The Ld. Sessions Court, M.P. convicted the Appellant, vide Order dated 13.03.1995, for the offences punishable under Sections 302 of the Indian Penal Code, 1860 (IPC) (Punishment for murder) and Section 201 of IPC (Causing disappearance of evidence of offence, or giving false information, to screen offender) and was sentenced to undergo life imprisonment.

v) Aggrieved by the Order dated 13.03.1995, the Appellant filed an Appeal before the High Court of M.P. But the High Court, vide Order dated 05.12.2017, upheld the decision of the Sessions Court.

vi) Aggrieved by the Order dated 05.12.2017 of the High Court, the Appellant filed Criminal Appeal No. 1186 Of 2022 before the Supreme Court.


The Supreme Court, vide Order dated 10.04.2024, made the following observations:

1) That the Counsel for the Appellant argued that the significance of the Appellant and the Deceased being last seen together was diminished due to their familial relationship and frequently shared activities, such as drinking alcohol. Additionally, the Appellant disputed the Prosecution’s claim regarding the recovery of the alleged weapon, emphasizing the lack of substantial evidence linking it to the Appellant. Furthermore, the Appellant questioned the Prosecution’s failure to establish a clear motive for the crime. Moreover, based on certain testimonies, the Appellant suggested the possibility of the Deceased’s death being the result of a motorcycle accident rather than intentional harm. Given these uncertainties, the Appellant requested the Court to extend the benefit of the doubt to him. Finally, the Appellant cast doubt on the entire chain of circumstantial evidence presented by the Prosecution, indicating inconsistencies and gaps in the narrative.

2) Further, the Prosecution argued that the Deceased’s body was discovered shortly after being last seen with the Appellant. Additionally, the Prosecution Prosecution asserted that the recovery of the weapon allegedly used by the Appellant in the attack on the Deceased had been adequately substantiated. Furthermore, the Prosecution contended that all elements contributing to the chain of circumstances had been verified.

3) The Supreme Court relied upon the Judgement on Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 and stated that the law governing the case involving the circumstantial evidence was no longer Res Integra. The decision of the Apex Court in Sharad Birdhichand Sarda (Supra) was as follows:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

4) The Supreme Court observed that after reviewing the testimony of PW-2, it was found that on 29.09.1993, until 9:00 PM, the Appellant and the Deceased drank liquor together at PW-2’s house before leaving. The PW-2 mentioned that the Appellant and the Deceased were heading towards Amgoan. The Deceased’s body was discovered the following day. In cross-examination, PW-2 mentioned that the Appellant and the Deceased had visited his place to drink liquor on multiple occasions. The PW-6, who is the Deceased’s wife, testified that the Appellant forcibly took her husband for drinking after giving him Rs. 50/-. When her husband didn’t return, she sent her son to the Appellant’s house, where they were told that the Appellant was sleeping. Later, the Appellant himself inquired about the Deceased’s whereabouts at PW-6’s house. PW-6 learned about her husband’s death from one, Mr. Kotewar around noon the next day. She acknowledged her husband’s occasional alcohol consumption and his habit of getting drunk, sometimes needing assistance to return home. She also knew that her husband went with the Appellant to drink liquor.

5) Further, PW-7, stated that the Deceased was his nephew, and admitted during cross-examination that the Deceased and the Appellant were frequently seen together. Their close relationship extended to drinking together. The Prosecution failed to establish a motive for the Appellant to harm the Deceased. Neither PW-2 nor PW-6 mentioned any conflict between them on 29.09.1993. Therefore, their being together that day was not unusual, weakening the case based on last seen together, without a motive.

6) The Apex Court observed that PW-2, the first witness to the recovery memorandum under Section 27 of the Indian Evidence Act, 1872 (How much of information received from accused may be proved), testified that he was unaware of who informed the police about the knife’s location. He mentioned that the police indicated they were attempting to verify the location mentioned by the Accused. He clarified that the body and the knife were found in separate places. He admitted to signing papers without having their contents read to him, as he was illiterate.

7) Further, PW-4 (Arjun) stated that the police escorted them to the location where the knife was discovered. He attested to being the first to notice the knife, with the police subsequently retrieving it. However, he couldn’t identify who informed the police about the knife’s location. Upon reviewing the testimonies of these two witnesses by the Apex Court, the Court observed that it was evident that the recovery of the knife, allegedly at the Appellant’s direction, lacks sufficient proof. They did not confirm that the discovery occurred at a location disclosed by the Appellant in their presence. Furthermore, the memorandum recording the Appellant’s statement has not been adequately substantiated. Consequently, this failure to establish a crucial element weakened the chain of circumstances presented by the Prosecution.

8) Furthermore, in the cross-examination, PW-7 acknowledged visiting the scene of the incident. He noted the presence of glass fragments at the site, speculating that they might be from a motorcycle light. He further mentioned about informing the police about the possibility of the Deceased suffering injury in a motorcycle accident.

9) The PW-15, who is the doctor that conducted the postmortem examination of the Deceased, conceded during cross-examination that if the glass fragments found at the scene were small and sharp, they could have caused the injuries observed on the Deceased’s body.


The Supreme Court, after going through the facts and circumstances of the case, held that the Prosecution had failed to establish the recovery of the weapon at the Appellant’s instance, thereby leaving the chain of circumstances incomplete. Additionally, the testimonies of PW-7 regarding the discovery of glass fragments at the scene and the Doctor’s opinion during the postmortem examination cast doubt on the Prosecution’s narrative. The Prosecution also had not provided an explanation for the presence of numerous glass pieces where the Deceased’s body was found. Furthermore, the circumstance of last seen together holds little weight in this case. The circumstances presented by the Prosecution lacked conclusive evidence and were not exclusively indicative of the Appellant’s guilt. Hence, the Supreme Court set aside the Orders of Sessions Court and High Court of M.P. dated 13.03.1995 and 05.12.2017 respectively and allowed the Appeal of the Appellant. Further, as the Appellant was already released on bail, the Court cancelled his Bail Bonds.


Kartik Khandekar


The Indian Lawyer & Allied Services

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