Allowed

Gopal Tanaji Shibe v. the State of Maharashtra

Bombay HC22 Feb 2013APEAL/1180/2004

Case brief

AI extract

What is this about?

In this criminal appeal against a life imprisonment conviction for murder, the Bombay High Court acquitted the appellant. The Court found the prosecution evidentiary basis weak due to material omissions in witness statements and conflicting timelines regarding the appellant's presence at the crime scene versus his travel on a bus.

What did the court decide?

Criminal appeal allowed; conviction and sentence quashed; appellant acquitted, fine refunded, and released forthwith.

Gopal Tanaji Shibe Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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pdp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 1180 OF 2004

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Gopal Tanaji Shibe Aged about 35 years, Occupation : Service, Resident of Kumbharwada, 6^th Lane, Cooper Compound, Shop No.1, Kumbharwada, Mumbai – 400 004

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.. Appellant

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Vs.

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The State of Maharashtra

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.. Respondent

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Mr. Raj J. Khude for appellant. Mrs. M. M. Deshmukh, APP for State.

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CORAM: P. V. HARDAS & A. M. THIPSAY, JJ.

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FEBRUARY 22, 2013.

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ORAL JUDGMENT : (PER P. V. HARDAS,J.) :

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The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.10,000/-, in default of which to undergo further RI for six months, by the Additional Sessions Judge, Greater Bombay, dated 12/8/2004, in Sessions Case No. 332 of 2002, by this appeal questions the correctness of his conviction and sentence.

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PW 8 – PSI Dyaneshwar Gudulkar, who was attached to V.P. Road Police Station, was informed by PW 1 – Vinayak Guhagarkar that one of his employee – Sakharam was lying dead, having sustained injuries. PW 8 – PSI Gudulkar immediately informed the matter to PW 9 – PI Dilip Chavan and proceeded to the scene of the incident. The statement of PW 1 – Vinayak was recorded at Exh. 8. Thereafter inquest panchanama of the dead body of Sakharam was drawn and the dead body was referred for post-mortem examination. The investigation was, thereafter, transferred to PW 9 – PI Chavan.

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PW 9 – PI Dilip Chavan, who was also attached to V.P. Road Police Station on 14/1/2002 was informed about a dead body lying in the foundry of PW 1 – Vinayak. He proceeded to the scene of the incident and drew the scene of the incident panchanma at Exh. 10. The clothes of the deceased and blood stained newspaper, sample of ordinary mud and blood mixed mud, a letter from niece of the deceased and hammer were seized. The dead body was referred for post-mortem examination. PW 9 – PI Chavan attempted to trace the whereabouts of the appellant – accused. The appellant – accused was arrested at Bombay and his clothes were seized in the presence of PW 6 – Deepak Agarwal under seizure memo at Exh.17. He was referred for medical examination as he had sustained an injury to his finger. During custodial interrogation, the accused expressed his willingness to point out the place where a towel and the weapon of the offence was concealed. Accordingly, memorandum was recorded in the presence of PW 7 – Ravi Pujari at Exh. 18. Towel and an iron rod were

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seized under seizure memo at Exh.18-A. The seized property was thereafter referred to the Chemical Analyzer under requisition at Exh. 21. Further to the completion of investigation, a charge-sheet aganst the appellant was submitted.

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Post mortem on the dead body of deceased Sakharam was conducted and as per the post mortem report at Exh.15, which is admitted in evidence, deceased had sustained,

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(i) Lacerated wound 2.5 x 1.5 cm., triangular shaped with bony exposure on the chin, middle portion.

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(ii) Reddish contusion on left side of face. Temporal part 3x2 cm. left ear portion, covering ear pinna, left cheek 5x4 cm. angle of mandible 2x1 cm. of oval shaped.

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(iii) Abraded contusion over left both upper eyebrows 2x1 cm. at right cheek in front of ear 3x1 cm. oval shaped.

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(iv) Abraded contusion over both elbow joint at 3-4 places on exterior aspect of various sizes.

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(v) Abraded contusion over left knee joint 5x3 cm.

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(vi) Lacerated wound on the left leg 13x3 cm. with fracture of tubule / fibula.

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(vii) Lacerated wound on right leg on lateral aspect of lower extremity 16 x 4 cm. muscle deep fracture of tubule / fibula.

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(viii) Contusion at right scapula with fracture of mandible joint left side and also fracture on right side.

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The Medical Officer, therefore, opined that cause of death was hemorrhage and shock due to multiple rib fractures with both leg bone fracture.

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On committal of the case to Court of Sessions, trial court vide Exh. 3 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 9 witnesses. The defence of the appellant is of denial. The trial court, upon appreciation of the evidence, convicted and sentenced the appellant as afore-stated.

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PW 1 – Vinayak, employer of deceased Sakharam and the appellant, states that he runs a Casting Foundry, where five persons are employed. He had received information that an injured was lying in his workshop and accordingly he went to his workshop and noticed deceased Sakharam lying on the ground. Brother of the deceased came there after he was contacted by Vinayak on telephone and thereafter both of them went to the police station. The police arrived at the scene of the offence and thereafter the panchanama was drawn. Vinayak states that the report of crime is at Exh. 8.

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Prosecution has examined PW 3 – Santosh Shibe, son of deceased Sakharam, who states that his father had three brothers. The appellant is the younger brother of deceased Sakharam. Deceased Sakharam used to work in the foundry and the appellant was also employed

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there. Deceased and the appellant used to reside in the foundry itself. The appellant had got the ancestral property in his name. Deceased Sakharam had come to the village about 20 days prior to his death and had stayed there for 3 days and thereafter returned back to Mumbai. The appellant had also resided in the village for about a day. The appellant had sustained injury to his finger and on enquiry, the appellant had stated that the heavy metal piece had fallen on his finger. The hand of the appellant was bandaged.

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Prosecution has examined PW 4 - Pandurang Chavan, who states that he was also employed in the foundry and knew deceased and the appellant. Pandurang also states that he hails from the same village. The deceased and the appellant were working in the same foundry. Pandurang states that he does not remember the date when the deceased had expired. He states that deceased and the appellant were quarreling with each other. At about 11.30 p.m. he had gone to remove the bedding from the shop and had noticed Sakharam lying on the ground with injuries. The appellant was sitting near deceased Sakharam. He states that on the next day morning he came to know that Sakharam was killed. In cross-examination he has admitted that he was working in the foundry for the last 15 years. Omission has been duly proved that he had not stated in his previous statement that he had noticed the appellant and deceased quarreling amongst themselves. Omission has also been proved that he had not stated in his previous statement that on the day of the incident at about 11.30 p.m. he had gone to collect the bedding and had noticed Sakharam lying with injuries and the appellant sitting near deceased Sakharam. He has admitted that on his own

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he had not gone to inform the police.

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Prosecution has examined PW 5 – Kashinath Majrekar, who states that he had received a telegram that his wife was indisposed and, therefore, had gone to his native place. He boarded the State Transport Bus and noticed the appellant present in the same bus. He also noticed a bandage on the finger of the appellant and enquired about it. The appellant claimed that a metal dye had fallen on his hand. Kashinath states that they reached the village at about 7.30 a.m. He had gone to the house of Sakharam and noticed that the children of Sakharam and the children of the appellant were crying. He states that he was not informed about the reason why they were crying. In cross-examination he has admitted that he had gone to the bus depot at about 9 p.m. for boarding the bus, which was scheduled to leave at 11.00 p.m. He further states that the appellant boarded the bus, when it was about to leave. Omission has been proved that he had not stated in his previous statement that the children of Sakharam and the appellant were crying.

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The clothes of the appellant were seized and as per the report of the Chemical Analyzer at Exh. 21, the clothes and the bandage of the appellant were stained with blood of “A” group. The towel, which is alleged to have been discovered by the appellant as well as “U” shaped metallic piece was also found stained with blood of “A” group. The blood group of the appellant was determined as “A” group. The clothes of deceased were stained also with blood of “A” group. As per the report of the Medical Officer at Exh. 22, the appellant had sustained an injury on the

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left index finger which was on account of human bite. No other external injury was seen.

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The learned counsel for the appellant has rightly urged before us that in the light of the vital omissions elicited in the evidence of PW 4 – Pandurang, no reliance can be placed on his evidence that he had seen the deceased and the appellant together at 11.30 p.m. on the day of the incident. It is also urged before us by the learned counsel for the appellant that the evidence of PW 5 – Kashinath completely destroys the evidence of PW 4 – Pandurang. The learned APP has supported the findings arrived at by the trial court.

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Omissions have been elicited in the evidence of PW 4 – Pandurang that he had not stated in his previous statement that he had seen the deceased and the appellant quarreling with each other. Omission has also been elicited that he had not stated in his previous statement that when he had gone to collect the bedding at 11.30 p.m., he had noticed Sakharam lying on the ground with injuries and the appellant sitting besides the dead body of Sakharam. If these omissions are left out of consideration, there is virtually no evidence at all to indicate that the deceased was last seen alive in the company of the appellant. In that background, therefore, the evidence of PW 5 – Kashinath, that the appellant had boarded the bus at 11.00 p.m. also assumes importance. If the appellant was traveling on a bus at 11.00 p.m., we find it inexplicable with the presence of the appellant, as deposed to by PW 4 – Pandurang, at the scene of the incident at 11.30 p.m.

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The Investigating Officer, who had recorded the disclosure memorandum has not proved the memorandum at all. All that he states is, “On the basis of voluntary statement of accused, a recovery of weapon of offence and a towel which was blood stained was done”. The Investigating Officer has not referred to the memorandum, nor has he proved the memorandum, nor has he deposed about the contents of the memorandum and the place from which the so called weapon of offence and a towel were discovered. According to us, therefore, no reliance whatsoever can be placed on the testimony of PW 9 – PI Chavan in respect of the discovery of the weapon and the towel. Even the panch states that he was called by the police and was informed that he should accompany the police. PW 7 – Ravi then states, in cross examination, that he accompanied the police to a stall which was open and on opening the door of the stall, the appellant had taken out a towel which was blood stained and an iron piece. The panch witness also does not depose about the information given by the accused relating to the discovery of the towel and the iron piece. Moreover, since the appellant had sustained a bleeding injury, the finding of blood of “A” group, either on the towel or on the iron piece, is not significant at all and would not assist the prosecution as the blood group of the appellant has been determined as “A” group.

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Thus, upon a careful evaluation of the evidence of the prosecution, we find that the prosecution has miserably failed to prove the offence against the appellant beyond reasonable doubt. The appellant, therefore, in our opinion, is entitled to be given the benefit of doubt.

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Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.

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(A. M. THIPSAY,J.) (P. V. HARDAS,J.)

Gopal Tanaji Shibe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Gopal Tanaji Shibe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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