Arjun Gopal Maharana vs The State Of Maharashtra
2012 Latest Caselaw 529 Bom

PPD

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                                                                 APEAL.1027-05JUDGMENT.doc




                                                                                 
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                         
                          CRIMINAL APPEAL NO.1027 OF 2005
                                  [THROUGH JAIL]

      Arjun Gopal Maharana,




                                                        
      Convict Prisoner No.C-3133,
      Kolhapur Central Prison,
      Kalamba, District - Kolhapur.                                  ..Appellant
                                                                     [Orig.Accused]




                                           
                 Versus
                             
      The State of Maharashtra                       ]               ..Respondent

                                    ....
                            
      Mr.  Murtaza M. Najmi, Advocate (appointed) for the Appellant.
      Mrs. Shilpa Gajare - Dhumal, APP for the Respondent - State.
                                    ....
        

                               CORAM :   SMT. V. K. TAHILRAMANI, &  
                                          A. R.  JOSHI,  JJ. 

DATE : 20th DECEMBER, 2012

ORAL JUDGMENT: [PER A.R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order dated 16th June, 2005 passed by the 3rd

Adhoc Additional Sessions Judge, Thane in Sessions Case no.24

of 2005.

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2. By the impugned judgment and order,

appellant/orig.accused was convicted for the offence punishable

under Section 302 of IPC and was sentenced to suffer

imprisonment for life and to pay fine of Rs.1000/-, in default to

undergo SI for three months. By the same judgment and order,

appellant/orig.accused was acquitted of the offence punishable

under Section 307 of IPC. Admittedly, the State had not

preferred appeal against the acquittal.

3. The case of the prosecution, in nutshell, is as under :

Complainant - Ramcharan, deceased Shamim and

present appellant/accused were in fact working together as

building construction labours. They were working on the

construction site belonging to PW-2 Sunil. There was certain

dispute between the complainant and the deceased on one side

and the appellant/accused on the other side as the complainant

and the deceased were alleging that appellant/accused had

committed theft of some money and articles belonging to the

deceased Shamim. On this count, there used to be quarrels.

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4. On the day of the incident i.e. on 5.7.2004, at night

PW-1 Mohan was at his home watching some TV programme.

After some time, he went out to answer the natures call and was

proceeding towards one building. That time, he heard some

shouts as well as hue and cry. He enquired as to what was

happening. He saw one injured person i.e. complainant

Ramcharan coming from one room and he was being assaulted

by the present appellant/accused with the help of one iron bar.

Said PW-1 Mohan was knowing the appellant/accused being

labourer on the building construction work in that area. PW-1

Mohan caught hold of the appellant/accused and shouted for

help and called his friends Vijay and Daulat. They came to the

spot. Thereafter the owner of the building one Sunil (PW-2) was

also called on the spot. Enquiries were made with the

appellant/accused as to why he was assaulting the complainant.

On this, the appellant/accused replied that said injured person

had not repaid the money and, therefore, he had assaulted the

injured. After some time, many persons gathered there. They

entered inside the room and found one person lying on the floor.

He was deceased Shamim. Said deceased had severe bleeding

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injuries on his head and froth was coming from his mouth.

Telephonic message was sent to the police station. Police

persons arrived on the spot. The injured was taken to hospital.

Another person who was found inside the room was declared

dead on admission in the hospital. Appellant/accused was put

under arrest. Clothes, which he was wearing, were taken charge

of. The complainant-Ramcharan was initially assaulted by the

appellant/accused and this assault was witnessed by PW-1.

Complainant lodged First Information Report. However, at this

juncture it must be mentioned that during the trial of the matter,

said first informant was not traced out though processes were

issued to require his presence for giving evidence. As such the

entire matter was heard without there being any evidence of the

complainant. Probably this fact weighed much with the trial

Court to doubt that the said complainant was assaulted by the

appellant/accused with the iron rod, and consequently the

appellant/accused was acquitted of the charge punishable under

Section 307 of IPC regarding assault on the complainant

Ramcharan.

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5. In the present matter, prior to analyzing the only

submission raised on behalf of the appellant/accused, certain

admitted factual position is required to be mentioned.

[i] firstly it is an admitted position that the appellant/accused

was apprehended on the spot and was taken in custody by

the police.

[ii] the complainant was assaulted and he has also sustained

injuries by means of iron rod. However, still it is factual

position that he was not available to give his substantive

evidence before the Court.

[iii]victim Shamim died on the spot and was declared dead

when taken to hospital due to the injuries sustained on his

head. Apparently said injuries were on account of the

assault by means of iron rod.

6. Bearing in mind the above admitted position, the

argument advanced on behalf of the appellant/accused is

required to be considered. The only point argued before us is

whether the present matter attract the punishment for the

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offence punishable under Section 302 of IPC or whether it comes

under Section 304 (part II) of IPC. In order to substantiate this

argument, it is brought to our notice that there was no

premeditated act on the part of the appellant/accused as there

was no attempt to carry sharp edged weapon like knife or

chopper. On this aspect, it is submitted that it was an assault on

a sudden fight and as such the matter can come under Exception

4 to Section 300 of IPC. It is further argued that apparently it is

a case of only one hit by means of iron rod though on the head

of the victim Shamim. On this argument, we have carefully gone

through and scrutinized the substantive evidence of Dr. Sachin

Chitnis (PW-4). For the sake of ready reference, the relevant

evidence of said PW-4 Dr. Sachin Chitnis who conducted the

postmortem of deceased Shamim, can be reproduced as under :

" I have mentioned external injuries sustained to deceased in column No.17 of P.M. notes, as under -

1) C.L.W. over left side just over lateral to upper lip near

angle of mouth of size 1 cm x 0.5 cm x muscle deep.

2) C.L.W. over left side of lower lip laterally of size 2 cms.

X 1 cm x muscle deep.

3) C.L.W. over buccal mucosa of upper lip on left side first four tooth from central incisor on left upper side, loosened.

4) Patterned contusion over right side of neck, laterally, 7 cms below tip of right mastold and 4 cms from angle

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of mandible of size 9 cms x 2 cms horizontally placed (rod shaped)

5) patterned contusion over right side of neck laterally situated at distance of 8 cms from right mastoid, obliquely placed, directed downwards medially of size

of cms X 2 cms extending upto anteriorly at the level of mandible (rod shaped). On dissection of neck on right side laterally, underlying subcutaneous tissue, muscles are contused, all over.

I have mentioned internal injury sustained to deceased in para no.19-

Head -

     1)     Injuries   under   the   scalp,   their  Hemorrhage under 




                                       
            nature                                     scalp over occipital 
                       ig                              region   of   size   10 
                                                       cms   x   6   cms, 
                                                       reddish.
     2)    Skull -
                     

Vault and base-describe No bony injury fractures, their sites, dimension, directions etc.

3) Brain Meninges intact,

Brain shows contusion over

right frontal, temporal, parietal and left frontal, temporal lobes of

size 2 cms X 2 cms, 2 cms X 2 cm, 4 cms X 3 cms, 2 cms X 1 cms and 2 cms x 2 cms

respectively reddish.

Both cerebellar hemispheres contused posteriorly.

     20    Thorax


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                                                                 APEAL.1027-05JUDGMENT.doc




                 a) Walls                              Irregular 
                                                       hemorrhages   seen 




                                                                                 
                                                       on left side postero 
                                                       - laterally on lower 




                                                         
                                                       part.

. According to me, cause of death of deceased due to head injury."

7. According to the expert opinion of said PW-4 Dr.Sachin

Chitnis, the cause of death was due to the head injury. As

mentioned above, we have observed that there are three CLWs

on the upper and lower lip. By pointing out this, it is submitted

on behalf of the appellant/accused that the only one blow was

given on the head of the victim and as such he fell down and

such injuries on the lip could be possible by fall of the person on

the ground. This is more so when the body was found lying on

the floor inside the room.

8. Considering the argument advanced as above and

considering the case of the prosecution as to quarrel ensued

between the complainant Ramcharan and victim Shamim on one

side and appellant/accused on the other side and appellant

accused lifting iron rod and assaulting the victim giving a blow,

in our considered view, there is substance in the argument

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advanced on behalf of the appellant/accused so as to dilute the

said offence from Section 302 of IPC to Section 304 (part-II) of

IPC. On this aspect it is acceptable that there was no intention

on the part of the appellant to kill and to run away from the spot

as apparently he was apprehended on the spot and there is no

evidence of PW-1 Mohan, who is the person who had witnessed

the incident at first point of time, that the appellant/accused

tried to run away from the spot. All the same, considering the

circumstances, in our view, the present appeal is required to be

partly allowed diluting the offence from Section 302 of IPC to

Section 304(Part-II) of IPC. Hence, the order :

:: O R D E R ::

I. Criminal Appeal No.1027 of 2005 is partly allowed.

II. The conviction of the appellant/accused for the offence

punishable under Section 302 of IPC imposed vide judgment and

order dated 16th June, 2005 passed by the 3 rd Adhoc Additional

Sessions Judge, Thane in Sessions Case No.24 of 2005 is set

aside and in stead he is convicted for the offence punishable

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under Section 304(Part II) of IPC and is sentenced to suffer

imprisonment for ten years and also to pay fine of Rs.1000/-, in

default to suffer RI for three months.

III. Present order be communicated to the

appellant/accused through the concerned jail authorities where

the appellant/accused is presently lodged.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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