6. cri apeal 452-14 (J).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 452 OF 2014
Ajay Arjun Manji ]
Age 20 Years, Occ. Labour ]
R/at S.P. Construction Site, Bhoirwadi, ]
Mangaon, Tal. Mulshi, Dist. Pune. ]
Native of Paliganj, Tal. Paliganj, ]
Dist. Patna, Bihar. ]
[Confined as Convict No. C-16243, ]
Yerawada Central Prison, Yerawada, ]
Pune - 411 006.]. ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
(At the instance of Hinjawadi Police ]
Station, Pune in C.R.No. 180 of 2010 ]
tried in Sessions Case No. 578 of 2010) ] Respondent
• Ms. Rohini M. Dandekar, Advocate (appointed) for
the Appellant
• Mrs. G.P. Mulekar, APP for the State
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : DECEMBER 13, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 1.3.2012 jfoanz vkacsjdj 1 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc passed by the learned Additional Sessions Judge, Pune in Sessions Case No. 578 of 2010. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 500/-, in default, R.I. for three months.
2. The prosecution case briefly stated, is as under:
(a) PW 1 Bigan Mochi is the first informant in the present case. He was working as labourer in Shapurji Palamji Company and was residing at S.P. Construction, Bhorwadi Labour Camp, Mangaon, Taluka Mulshi, Pune. Bigan Mochi was residing along with the appellant, deceased Sudam Manji and one Rohit Manji in one room on the site.
(b) On 27.6.2010 at about 9.30 p.m., Bigan Mochi and Rohit Manji came out of the room and sat outside the room. At that time, the appellant and the jfoanz vkacsjdj 2 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc deceased were having dinner inside the room. After about half an hour, Bigan Mochi heard the cries of Sudam, hence, he went inside the room and saw that Sudam was lying on the tiles with head injury and the appellant had a spade in his hand. Bigan Mochi lodged FIR. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against the appellant - original accused under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
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6. cri apeal 452-14 (J).doc
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 reasons stated below, we are of the opinion that the appellant assaulted Sudam Manji with a spade and caused his death.
5. There is no eye witness in the present case and the case is totally dependant on circumstantial evidence. In our opinion, the evidence of PW 1 Bigan Mochi conclusively proves that the appellant committed the murder of Sudam Manji. Bigan Mochi has stated that he was working as labourer in Shapurji Palamji Company and was residing at S.P. Construction, Bhorwadi Labour Camp, Mangaon, Taluka Mulshi, Pune. Bigan Mochi was residing in a room along with the appellant, deceased Sudam Manji and one Rohit Manji. PW 1 Bigan Mochi has further stated that on 27.6.2010, all of them worked till 1.00 p.m. Thereafter, they were at their room. At about 9.30 p.m., Bigan Mochi and Rohit Manji came jfoanz vkacsjdj 4 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc out of the room and sat outside the room. At that time, the appellant and the deceased were having dinner inside the room. After about half an hour, Bigan Mochi heard the cries of Sudam, hence, he went inside the room and saw that Sudam was lying on the tiles with head injury and the appellant had a spade in his hand. Bigan Mochi then rushed to the contractor to inform him about the incident. Contractor Gopal was not present, however, his brother Revatiraman (PW 2) was present, hence, Bigan Mochi brought Revatiraman to the place of the incident. Then Injured Sudam Manji was taken to the hospital for treatment where he expired. Meanwhile, Bigan Mochi lodged FIR.
Thus, the evidence of PW 1 Bigan Mochi shows that only the appellant and the deceased were in the room and no one else was in the room. Bigan Mochi and Rohit Manji were sitting outside the room. They heard cry of Sudam Manji. On entering the room, Sudam Manji was found lying on the ground with injury on the head. At that time, the appellant was holding a spade in his hand. Thus, it is seen jfoanz vkacsjdj 5 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc that there was no one else who could have assaulted Sudam Manji except the appellant.
6. Learned Advocate for the appellant submitted that the evidence of PW 1 Bigan Mochi shows that at the time of the incident, the appellant as well as the deceased were heavily drunk. She thus submitted that as the appellant was heavily drunk, it cannot be said that he knew the nature of his act or that his act was wrong or contrary to law. She submitted that in such case, the offence would not fall under Section 302 of IPC but it would fall under Section 304 II of IPC.
In order to appreciate this contention, it would be necessary to refer to Section 85 of the Indian Penal Code. It reads thus:-
" Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
In the present case, it is not the case of the appellant that the intoxicant was administered to him without jfoanz vkacsjdj 6 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc his knowledge or against his will. In fact, we have perused the statement of the appellant under Section 313 of the Code of Criminal Procedure. We find that he has not taken any such stand there. If a person is voluntarily intoxicated, it cannot be a mitigating factor or such a factor as to hold that the offence would not fall under Section 302 of IPC but it would fall under Section 304 Part I or II of IPC. Voluntary intoxication is not covered by any of the exceptions stated in the Indian Penal Code. In this view of the matter, we cannot accept the submission made by the learned counsel for the appellant.
7. PW 8 Dr. Datye examined Sudam Manji on 28.6.2010. He has stated that the injured person was initially admitted in Hinjawadi Hospital. Thereafter, the injured was transferred to Niramaya Hospital where Dr. Datye was attached. Dr. Datye has stated that he as well as Dr. Falke were on duty at the relevant time. The evidence of Dr. Datye further shows that the injured was admitted in an jfoanz vkacsjdj 7 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc unconscious state with history of assault. He found that the patient was gasping with pupils nearly fixed and dilated. On examination, Dr. Datye found big scalp haematoma over right temporal region with fracture underneath. During CT Scan, Dr. Datye found multiple hemorrhagic contusion with gross cerebral odema, sub dural haematoma 5 mm in fronto parieto occipital region and cerebral hemorrhage. Dr. Datye also found multiple skull fractures.
8. PW 9 Dr. Madne conducted the postmortem on the dead body of Sudam Manji. He noticed the following external injuries on the dead body:-
1. Sutured wound right tempo parietal area of scalp directed obliquely 8 cm in length and 5 stitches;
2. There was fracture of skull.
Dr. Madne has stated that the injuries noticed by him were ante mortem.
During internal examination, Dr. Madne noticed the following injuries:-
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6. cri apeal 452-14 (J).doc
1. Head : Contused sutured wound right temporo parietal area of scalp corresponding to injury No. 1 of column No. 17;
2. The right side temporal bone had linear fracture and right side zygomatic arch was fractured corresponding to injury No. 1 of Col No. 17.10.2011
3. Dura was intact and huge right sided sub dural Haemotoma extending from right fronto temporo parietal area was present;
4. Right side oedematous temporo parietal part of brain on cross section bleeding was there.
In the opinion of Dr. Madne, the probable cause of death was due to cardio respiratory failure due to head injury. He further opined that the injuries are possible due to blunt area of spade shown to him in the Court. Thus, the evidence of Dr. Madne shows that the injuries sustained by the deceased were possible with spade which further corroborates the prosecution case.
9. It is the prosecution case that the appellant assaulted the deceased with spade. This is further corroborated by the jfoanz vkacsjdj 9 of 10 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 20/12/2017 01:01:36 :::
6. cri apeal 452-14 (J).doc C.A. report Exh. P-37. The C.A. report shows that the spade was stained with blood of 'O' group. The clothes of the deceased which were seized during investigation were also stained with blood of 'O' group. From this, it can be safely inferred that the blood group of the deceased was "O" group. The clothes of the appellant which were seized under panchnama at the time of arrest were found to be stained with blood of 'O' group. It is pertinent to note that the C.A. report Exh. P-36 shows that the blood group of the appellant is 'A'. The appellant has not furnished any explanation for the presence of blood of 'O' group on his clothes.
10. On going through the evidence in this case, we are of the opinion that the prosecution has proved beyond reasonable doubt that the appellant committed the murder of Sudam Manji by assaulting him with spade. Thus, we find no merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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