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2015 Supreme(Bom) 922
High Court of Judicature at Bombay
P.V. HARDAS & A.S. GADKARI, JJ.
Kiran Gorakh Shelke & Another – Petitioner
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 915 of 2007
Decided on : 25-06-2015
Advocate Appeared:
For the Appellant :Daulat G. Khamkar, Advocate.
For the Respondent: V.R. Bhonsale, APP.
The legal principle established in the judgment emphasizes the requirement for a discovery to lead to new facts and be directly connected to the commission of the offence, and the need for legal evidence to establish guilt beyond reasonable doubt.
Headnote:
Discovery - Criminal Appeal - Indian Evidence Act - Summary
Fact of the Case:
The case involved the conviction of the appellant for the offence of murder and concealment of evidence. The deceased, Mahadeo, went missing after being last seen with the accused. The police discovered the buried body of the deceased and an iron bar allegedly used in the crime.
Finding of the Court:
The court found that the discovery of the buried body at the instance of the appellant lacked significance as the police were already aware of the burial spot from the co-accused. The recovery of the iron bar, submerged in water for over 7 days, with alleged blood stains, was deemed improbable and insufficient as legal evidence.
Issues: The issues revolved around the admissibility and significance of the discoveries made at the instance of the appellant, and the sufficiency of evidence to establish guilt beyond reasonable doubt.
Ratio Decidendi: The court applied the legal principles established in previous judgments to determine the admissibility and significance of discoveries made at the instance of the accused. It emphasized the need for the discovery to lead to new facts and be directly connected to the commission of the offence.
Final Decision: The court allowed the appeal, quashed the conviction and sentence of the appellant, and acquitted him of all charges. The fine, if paid, was ordered to be refunded, and the appellant was to be released from custody.
A.S. Gadkari, J.
1. The appellant no.2-original accused no.2 has questioned the correctness of the judgment and order dated 22nd August 2007 passed by the learned Adhoc Sessions Judge-3, Baramati in Sessions Case No.13 of 2007 thereby convicting him for the offence punishable under Section 302, 201 read with Section 34 of Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default of the payment of fine to suffer further rigorous imprisonment of three months. The appellant is also convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.500/-, in default of payment of fine to suffer rigorous imprisonment for two months. The learned Trial Court directed that all the sentences shall run concurrently.
By the said judgment and order dated 22nd August 2007, the appellant no.1-original accused no.1-Kiran Gorakh Shelke is also convicted under various sections of Indian Penal Code by the learned Trial Court. The record discloses that during the pendency of the present appeal, the appellant no.1 i.e. original accused no.1 has been reported to be absconding and is not traceable. This Court by its order dated 6.5.2015 passed in Criminal Application No.502 of 2015 separated the appeal of the appellant no.1/original accused no.1 Kiran Gorakh Shelke from the present appeal. The present appeal was thereafter listed for final hearing before this Court and is heard by us finally.
2. The facts which are necessary to decide the present appeal can briefly be summarized as under:
(i) Smt. Kavita Ramchandra Shelke (PW-1) is the mother of the deceased Mahadeo Ramchandra Shelke. Smt. Kavita had two sons namely Sadanand and deceased Mahadeo. Sadanand was taking education at the relevant time and Mahadeo was helping Smt. Kavita in the agricultural activities in their field. Smt. Kavita was having two cows and she was doing the business of selling milk to dairy. The appellant no.1/accused no.1-Kiran Gorakh Shelke was her immediate neighbour. The appellant no.1/accused no.1 was on visiting terms to her son and used to visit her house. On 12.7.2006, Smt. Kavita was at her home and Mahadeo was cutting grass. Mahadeo thereafter had been to the house situated in their field and instructed to Smt. Kavita that he is going to collect milk bill from the concerned person. At that time Mahadeo was having mobile phone on which the accused no.1-Kiran had a dialogue with somebody. Then Mahadeo left the said place from the motocycle of accused no.1-Kiran. Mahadeo informed Smt. Kavita that he will return back at 9.30 p.m. As Mahadeo did not come in that night, Smt. Kavita went to sleep. Till about 6 a.m. in the morning Mahadeo did not return home and therefore Smt. Kavita enquired with the mother of accused no.1-Kiran about her son and the mother of accused no.1-Kiran also informed that Kiran did not return in the night. Smt. Kavita thereafter noticed accused no.1-Kiran arriving on his motorcycle at his house. She then enquired with Kiran about her son Mahadeo and Kiran informed her that he and Mahadeo were in company till 8 p.m. at Chauphula in Jay Tulja Bhavani hotel and thereafter he did not know what happen to Mahadeo. Smt. Kavita took search of Mahadeo on 13th and 14th July 2006. As Mahadeo could not be located, she lodged a missing report of her son Mahadeo with Kedgaon Police Out Post.
(ii) Shri Shivdas Phunde (PW-10) was attached to Yavat Police station and was deputed to Kedgaon Out Post. On 15.7.2006, Smt. Kavita (PW-1) lodged a missing report of her son Mahadeo. The police tried to search missing boy namely Mahadeo. Till 17.7.2006, the said missing boy could not be located. On 17.7.2006, Sadanand (PW-2) brother of deceased Mahadeo had been to the police out post and lodged a report against accused no.1-Kiran abducting his brother for murder. The said information was reduced in
