Bombay High Court
Shashikant Mithailaal Sharma vs The State Of Maharashtra on 6 February, 2018
Author: V.K. Tahilramani
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 718 OF 2014
Amit Umakant Sharma ]
Aged about 22 years, at present ]
undergoing a sentence of life ]
imprisonment at Kolhapur Central ]
Prison as Convict Prisoner No.C-6105 ].. Appellant
[Ori. Accused ]
Vs.
The State of Maharashtra ].. Respondent
WITH
CRIMINAL APPEAL NO. 1289 OF 2013
Mr. Shashikant Mithailaal Sharma ]
Age 28 years, ]
Residing at Koyanabi Chawl ]
Room No.2, Saki Naka, ]
Andheri ]
Presently at Kolhapur Central Jail ]
Tal and Dist. Kolhapur ].. Appellant
[Ori. Accused ]
Vs.
The State of Maharashtra ].. Respondent
....
Ms. Ameeta Kuttikrishnan Advocate appointed for the
Appellant in Cri. Appeal No. 718 of 2014
Mr. S.S. Redekar and Mr. Yogesh Rawool Advocate for
the Appellant in Cri. Appeal No. 1289 of 2013
Mr. Arfan Sait A.P.P. for the State in both the matters
....
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CORAM : SMT.V.K.TAHILRAMANI ACTING C.J.
AND M.S.KARNIK, J.
DATED : FEBRUARY 06, 2018
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-
1 Criminal Appeal No. 718 of 2014 has been preferred by appellant - original accused no.1 Amit Sharma against the judgment and order dated 29.10.2013 passed by the learned Additional Sessions Judge, Vasai in Sessions Case No. 2 of 2013. By the said judgment and order, the appellant along with original accused no.2 Shashikant Sharma was convicted under Sections 302 & 201 read with Section 34 of IPC and under 120-B of IPC. For the offence under Section 302 r.w. 34 of IPC, each of them is sentenced to life imprisonment and fine of Rs.10,000/- each in default R.I. for six months. For the offence under Section 201 r.w. 34 of IPC, each of them is sentenced to R.I. for two years and fine of Rs.5,000/- each in default R.I. for six months. For the offence under Section 120-B of IPC, both of them are sentenced to life imprisonment and fine of Rs.10,000/- each in default R.I. for six months.
2 Criminal Appeal No. 1289 of 2013 has been preferred by original accused no.2 - Shashikant Sharma against the very ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 3 15.cr.apeal.718.14_1289.13.j.doc same judgment and order. Since both the appeals are preferred against the very same judgment and order, both the appeals are being disposed of by this common judgment. 3 The prosecution case, briefly stated, is as under:
(1) Deceased Ganesh was the son of PW 1 Dashrath.
Ganesh had a Medical Store at Virar. The Medical Store was in the premises of Abhinav hospital. Both the appellants were working in the said Medical Store. The appellant - Amit is the nephew of appellant - Shashikant. There was some dispute in relation to money which was to be paid to appellant - Shashikant by Ganesh. On account of said dispute, in night of 8.6.2012 and 9.6.2012 between 1.30 to 4.00 a.m., the appellants committed murder of Ganesh in the residential flat of Ganesh which is situated at Dayasagar Co-operative Housing Society in Virar. The murder was committed pursuant to a criminal conspiracy entered into by both the appellants to murder Ganesh. Pursuant to the said conspiracy, in order to commit murder, tablet Alprazolam (trika) was mixed in the soup, which was served by appellant - Amit to Ganesh. Thereafter, Ganesh was assaulted and stabbed in the stomach and his throat was cut and the dead body of Ganesh was thrown ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 4 15.cr.apeal.718.14_1289.13.j.doc in the Nullah which was near his house.
(2) Prior to that on 8.6.2012 at about 8.30 p.m. Dashrath father of Ganesh had called Ganesh on phone. Ganesh told his father Dashrath that he will call him in the morning, however, on the next day, as no call was received from Ganesh, Dashrath got worried. Dashrath then called PW 6 Mahesh who was friend of Ganesh. Mahesh gave the phone number of appellant Amit to Dashrath. Amit informed Dashrath that Ganesh had gone to Boisar to distribute his marriage card to a relative. Dashrath called his relative at Boisar who told him that Ganesh had not come to Boisar. Thereafter on that day at 9.30 to 10 p.m. Dashrath called Amit. Thereupon, he came to know that Ganesh had not yet returned. On 11.6.2012 Dashrath lodged missing complaint. During the investigation, on 12.6.2012 appellant - Amit made a statement that he and his uncle had thrown the dead body of Ganesh in the Nullah. Accordingly, appellant Amit showed the place and the dead body was found in the Nullah. Thereafter PW 1 Dashrath lodged F.I.R. Thereafter, investigation commenced. After completion of investigation, the charge-sheet came to be filed. ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 :::
jdk 5 15.cr.apeal.718.14_1289.13.j.doc 4 Charge came to be framed against the appellants
under Section 302 read with Section 34, Section 201 read with Section 34 and Section 120-B of IPC. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in para 1 above. Hence, these appeals. 5 We have heard the learned counsel for the Appellants and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that appellant - Amit Sharma committed the murder of Ganesh and thereafter caused disappearance of evidence by throwing the dead body of Ganesh in the Nullah. However, so far as appellant - Shashikant Sharma is concerned, we are of the opinion that the prosecution has failed to prove the charges levelled against him beyond reasonable doubt. ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 :::
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6 The case is entirely based on circumstantial evidence.
As far as appellant - Amit Sharma is concerned, the
circumstances against him are as under:
(I) At the instance of Amit, the dead body of Ganesh was
discovered (PW 4 Madhu);
(II) Appellant - Amit was seen going to the house of deceased Ganesh at about 12 mid-night i.e. the night between 8.6.2012 and 9.6.2012 (PW 3 Navram);
(III) At about 12 mid-night, PW 6 Mahesh left appellant Amit in the house of deceased Ganesh and went away.
Thereafter Ganesh was not seen alive (PW 6);
(IV) Appellant - Amit brought soup for Ganesh (PW 4); (V) After consuming said soup, Ganesh started vomiting and feeling giddiness; (PW 4, PW 10 and Viscera report (Exh.42);
(VI) Conduct of the appellant - Amit of giving false information to PW 1 Dashrath that deceased Ganesh had gone to Boisar to give marriage card to a relative (PW 1, PW 2, PW 4 and PW 9);
7 As far as the first circumstance is concerned i.e at the
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instance of Amit, dead body of Ganesh was found, PW 4 Madhu has deposed about this circumstance. He has stated that appellant Amit was working with Ganesh. PW 4 Madhu has stated that on 12.6.2012 in his presence appellant Amit made a statement that he along with his uncle had thrown dead body of Ganesh in the Nullah. He stated that he would show the said place. Accordingly, appellant Amit had shown the place which was behind their building. There, the dead body was found in the Nullah. This is very important incriminating circumstance against appellant Amit.
8 The second circumstance is that appellant Amit in the mid-night between 9.6.2012 and 10.6.2012 had gone to the flat of deceased Ganesh. Thereafter Ganesh was not seen alive. PW 3 Navram has stated that on 8.6.2012 at about 12 mid-night Ganesh came home. After about 15 minutes, appellant Amit and PW 6 Mahesh came on motor-cycle. Amit stated that he was not feeling well, hence, he would sleep in the flat of Ganesh. Thereafter, appellant Amit and PW 6 Mahesh went upstairs. After about 5 to 10 minutes, Mahesh came back and went away. Navram has clearly stated that he saw Amit going towards the flat of Ganesh.
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jdk 8 15.cr.apeal.718.14_1289.13.j.doc 9 We now would like to deal with the evidence of PW 6
Mahesh. His evidence shows that appellant Amit went to the flat of Ganesh at about mid-night i.e. the night between 8.6.2012 and 9.6.2012. It is pertinent to note that thereafter Ganesh was not seen alive. PW 6 Mahesh has stated that he knew Ganesh as Ganesh had a medical shop which was adjacent to the shop of Mahesh. He has stated that appellant Amit and PW 9 Brijesh were working in the shop of Ganesh. Ganesh used to open his shop at about 8 a.m. and close the shop at about 11 p.m. On 8.6.2012 at about 8.30 p.m. he and PW 7 were about to leave. That time, Ganesh invited them to his house to have dinner and he has also stated that at that time, he will give his marriage card to them. At that time, appellant Amit and Ganesh were in the shop. Thereafter at about 11.30 to 12 mid-night, when Mahesh was returning home, he saw Amit was talking to somebody on his phone. Mahesh asked appellant Amit as to what he was doing there, Amit told him that as petrol in his bike got exhausted and he was not feeling well, he was going to the house of Ganesh to sleep there. As appellant Amit had stated that he was not feeling well, PW 6 Mahesh went along with appellant Amit to the society ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 9 15.cr.apeal.718.14_1289.13.j.doc of Ganesh. Mahesh parked his motor-cycle and informed watchman (PW 3 Navram) that Amit was not feeling well and he was going to sleep in the house of Ganesh. Mahesh took appellant Amit to the flat of Ganesh and rang the door bell. Ganesh opened the door and asked Amit whether he was feeling giddiness. Appellant Amit did not reply and went inside and lay down in the hall. Mahesh asked Ganesh what happened, whereupon, Ganesh told Mahesh that he had consumed Chinese soup in the evening. Thereafter, Mahesh left the house. Thus, the evidence of PW 3 Navram and PW 6 Mahesh shows that on 8.6.2012 at about mid-night, appellant Amit went to the flat of deceased Ganesh. Thereafter, Ganesh was not seen alive. 10 So far as circumstances 4 and 5 above are concerned i.e. Amit brought soup for Ganesh and after consuming said soup, Ganesh started vomiting and feeling giddiness, it is the prosecution case that appellant Amit brought soup for Ganesh in which he had put an intoxicating substance i.e. Alprazolam. PW 4 Madhu has stated that on 8.6.2012 at about 10.00 to 10.30 p.m. he saw 5 to 6 persons gathered infront of medical shop of Ganesh. He therefore, went there to see what had happened. Ganesh told Madhu that appellant Amit had brought ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 10 15.cr.apeal.718.14_1289.13.j.doc Chinese soup and after consuming the same, he vomited and started feeling giddiness. PW 10 Nilratan has stated that he had a Chinese stall, he knew Ganesh as Ganesh was his customer. He has further stated that on 8.6.2012 at about 9 p.m. Amit came to his stall and took garlic soup with him. After taking the soup, he went towards the medical shop of Ganesh. The viscera report (Exh.42) shows that in the viscera of Ganesh, Alprazolam (Trika) was detected. The C.A. Report shows that in the stomach, Alprazolam of 0.555 milligrams was found and in the spleen 0.416 milligrams of Alprazolam was found per 100 grams and blood sample of Ganesh shows that 0.694 milligrams of Alprazolam was found per 10 ml. Litres. Thus, the evidence of PW 4 Madhu, PW 10 Nilratan and the viscera report further corroborates the prosecution case that appellant Amit administered stupefying substance to Ganesh in his soup to facilitate the murder.
11 The last circumstance i.e. sixth circumstance is the conduct of appellant Amit which clearly showed his guilty mind. On going through the evidence of PW 1 Dashrath, PW 2 Lokesh, PW 4 Madhu and PW 9 Brijesh, it is evident that on 8.6.2012 at about 8.30 p.m. Dashrath father of Ganesh, had called Ganesh ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 11 15.cr.apeal.718.14_1289.13.j.doc on phone. Ganesh told his father Dashrath that he will call him in the morning, however, on the next day, no call was received by Dashrath from his son Ganesh, hence, he got worried. Dashrath then called PW 6 Mahesh who was friend of Ganesh. Mahesh gave the phone number of appellant Amit to Dashrath. Amit informed Dashrath that Ganesh had gone to Boisar to distribute his marriage card. Dashrath called his relative at Boisar who told him that Ganesh had not come to Boisar. Thereafter on that day at 9.30 to 10 p.m. Dashrath called Amit. Thereupon, he came to know that Ganesh had not yet returned. On 11.6.2012 Dashrath lodged missing complaint. During the investigation, on 12.6.2012 appellant - Amit made a statement that he and his uncle had thrown the dead body of Ganesh in the Nullah. Accordingly, appellant Amit showed the place and the dead body was found in the Nullah. The evidence of Dashrath along with evidence of PW Nos. 2, 4 and 9 shows the conduct of appellant Amit which points out to his guilt. 12 PW 2 Lokesh was the brother of Ganesh. Lokesh has stated that Ganesh was his elder brother. Ganesh had his medical shop at Dayasagar Society at Virar. Ganesh was residing in the same society on the 3rd floor. Appellant Amit was ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 12 15.cr.apeal.718.14_1289.13.j.doc employee in the said shop along with PW 9 Brijesh. On 8.6.2012 his father had called Ganesh on his phone. Thereafter, the phone of Ganesh was found switched off. On the next day morning, he called Amit and asked him about whereabouts of Ganesh. Amit told him that Ganesh had gone to Boisar for distributing marriage card. Thereafter, appellant Amit switched- off his mobile phone. As stated earlier, the evidence of PW 1 Dashrath shows that on making enquiries with the relative at Boisar, the said relative had informed him that Ganesh had not come to Boisar. In addition, the conduct of the appellant of switching-off his mobile phone also speaks volumes about his guilt.
13 PW 4 Madhu has stated that on 10.6.2012 he saw relative of Ganesh had come to the society to make enquiry about him. At that time, Amit told relative of Ganesh that Ganesh had gone to Boisar. The relative replied that he had come from Boisar and Ganesh did not visit his house. They therefore, went to Virar Police Station but police insisted that the father of Ganesh should be present for lodging missing complaint.
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jdk 13 15.cr.apeal.718.14_1289.13.j.doc 14 PW 9 Brijesh was also working on part-time basis in
the medical shop of Ganesh. He has stated that on 8.6.2012 as usual, he worked in the shop. On the next day, when he came to the shop, Ganesh was not in the shop. However, the appellant was in the shop. Appellant Amit told Brijesh that Ganesh had gone to Boisar for giving his marriage card. Appellant Amit also said that Ganesh would be back by about 12.30 p.m. Thus, the act of appellant Amit of misguiding and giving false information to the father, brother of Ganesh and other witnesses also shows his mens rea.
15 Thus, as far as appellant Amit is concerned, we are of the opinion that circumstances brought on record by the prosecution unerringly points out to the complicity of appellant Amit in the murder of Ganesh.
16 As far as appellant Shashikant is concerned, the situation is quite different. In order to establish complicity of appellant Shashikant in the crime, the prosecution has relied on the evidence of PW 1 Dashrath, PW 8 Kiran, PW 11 Shoukat , PW 14 Pravin and PW 16 Shailesh. Reliance is placed on the evidence of PW 1 Dashrath to show that appellant Shashikant ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 14 15.cr.apeal.718.14_1289.13.j.doc was also working in the medical store of Ganesh, however, beyond that the evidence of PW 1 Dashrath does not implicate appellant Shashikant in any manner. Thereafter reliance is placed by the prosecution on the evidence of PW 8 Kiran. According to Kiran, on 15.6.2012 appellant Shashikant made a statement that he had thrown dead body of Ganesh in the Nullah. He has further stated that Shashikant stated that the clothes of the deceased and the scissor were in the bag and bag was thrown in the Nullah. Thereafter, at the instance of appellant Shashikant, the clothes and scissor were recovered. As far as the statement of Shashikant that he had thrown dead body in the Nullah is concerned, it is seen that this statement was made on 15.12.2012, however, much prior to that on 12.6.2012, police knew that dead body of Ganesh was in the Nullah as it was recovered at the instance of appellant Amit from the Nullah on 12.6.2012. Thus we are not inclined to place any reliance on this part of the evidence. This is even more so because the dead body was not discovered pursuant to such statement. The categorical evidence of PW 8 Kiran is that appellant Shashikant has stated that clothes of the deceased were thrown in the Nullah, however, the evidence of PW 17 i.e Investigating Officer Shri. Muthe shows that they were not the ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 15 15.cr.apeal.718.14_1289.13.j.doc clothes of the deceased but they were clothes of the accused. In view of the serious discrepancies relating to whom the clothes belonged to, whether they belonged to Shashikant or deceased Ganesh, we are of the opinion that it is not safe to rely on this circumstance. As far as the scissor is concerned, it was part of the same recovery, hence, on account of this serious discrepancy, we are not inclined to rely on the circumstance of recovery of scissor also. We may also state that as per the C.A. Report Exh.62, no blood was found on the scissor. 17 Thereafter, reliance was placed on the evidence of PW 11 Shoukat to show that three cell phones were recovered at the instance of appellant Shashikant. According to the prosecution, out of these cell phones, two cell phones belonged to the deceased. However, none of these mobile phones have been shown to the father or brother of deceased Ganesh nor to any other witness who could have identified them as belonging to deceased Ganesh. Thus, there is no material to show that the mobile phones which were recovered at the instance of appellant Shashikant belonged to deceased Ganesh. Thus, this circumstance does not take the prosecution case any further as far as appellant Shashikant is concerned.
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jdk 16 15.cr.apeal.718.14_1289.13.j.doc 18 Thereafter the prosecution is relying on the evidence
of PW 14 Pravin to show that on 9.6.2012 at about 1.30 a.m. PW 16 Shailesh and others brought appellant Shashikant to the police chowky and at that time, he was smeared with mud and he was only wearing half pant. The prosecution has heavily relied on this circumstance because according to the prosecution, the evidence of PW 16 Shailesh shows that appellant Shashikant was found near the Nullah i.e. the very same place where the dead body of Ganesh was found. This, according to the prosecution, shows a strong connection between appellant Shashikant and the murder of Ganesh as appellant Shashikant was found near the Nullah smeared with mud and thereafter on 12.6.2012 dead body of Ganesh was found in the very same Nullah. No doubt, the evidence of PW 14 Pravin shows that on 9.6.2012 at about 1.30 a.m. PW 16 Shailesh brought Shashikant to the chowky, at that time, Shashikant was smeared with mud. However, the evidence of PW 14 Pravin in his cross-examination shows that he did not state before the Investigating Officer that he had seen Shashikant smeared with mud. He has also not stated to the Investigating Officer that Shashikant was standing near the ::: Uploaded on - 21/02/2018 ::: Downloaded on - 21/02/2018 22:55:40 ::: jdk 17 15.cr.apeal.718.14_1289.13.j.doc Nullah. In this view of the matter, it becomes difficult to rely on the evidence of PW 14 Pravin. In addition, we would like to state that the evidence of PW 16 Shailesh shows that on 10.6.2012 at about 12.30 a.m. he saw appellant Amit going to the side of Chinese stall and he threw one bag at one Chinese stall and he went away. Thereafter they went towards that stall to see what was the matter. At the Chinese stall, they saw one person was taking bath at that place and he was smeared with mud. Thus, PW 16 Shailesh saw appellant Shashikant taking a bath, thereafter he is supposed to have taken appellant Shashikant to the police chowky. This means that at the time when Shashikant was taken to the police chowky, there could not have been mud on his person as he had already taken a bath before he was taken to the police chowky. This further raises a doubt about the reliability of evidence of PW 14 and PW
16. Thus, as far as appellant Shashikant is concerned, we are of the opinion that the circumstances do not form a complete chain so as to show his complicity in the murder. Thus, as far as appellant Shashikant is concerned, we are inclined to give him benefit of doubt.
19 In view of the above, we find no merit in Criminal
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Appeal No. 714 of 2014 filed by appellant Amit, hence, it is dismissed. However, as far as Appeal No. 1289 of 2013 which is filed by appellant Shashikant Sharma is concerned, it is allowed. Appellant Shashikant Sharma is given benefit of doubt and he is acquitted from the offences with which he was charged. He is on bail, his bail bonds shall stand cancelled. Fine amount if paid, be refunded to him.
M.S.KARNIK, J. ACTING CHIEF JUSTICE
kandarkar
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