Bombay High Court
Ajay Arjun Manji vs The State Of Maharashtra on 13 December, 2017
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
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
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
jfoanz vkacsjdj 3 of 10
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
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
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
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
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:-
jfoanz vkacsjdj 8 of 10
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
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 ]
jfoanz vkacsjdj 10 of 10
