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2012 DIGILAW 2397 (BOM)

Arjun Gopal Maharana v. State of Maharashtra

2012-12-20

A.R.JOSHI, V.K.TAHILRAMANI

body2012
Judgment : 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. 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 PW2 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. 4. On the day of the incident i.e. on 5.7.2004, at night PW1 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 PW1 Mohan was knowing the appellant/accused being labourer on the building construction work in that area. PW1 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 (PW2) 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. 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 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 PW1. 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. 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. [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 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 (PW4). For the sake of ready reference, the relevant evidence of said PW4 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 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 -According to me, cause of death of deceased due to head injury.” 7. According to the expert opinion of said PW4 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 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 PW1 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: ORDER I. Criminal Appeal No.1027 of 2005 is partly allowed. II. 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: ORDER 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 3rd 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 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.