APEAL. 567-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 567 OF 2011 Mr. Shravankumar Hariprasad Mishra ) At present lodged in Naini Central Jail, ) Allahabad (U.P.), resident of village Ratapur) District Sultanpur (U.P.). ... Appellant Vs. The State of Maharashtra ... Respondent *** Mr. R. J. Bhatia, for the Appellant. Mrs. V. R. Bhosale, APP for the Respondent. *** CORAM : V. M. KANADE, A. M. THIPSAY, JJ. DATE : AUGUST 24, 2011 ORAL JUDGMENT [Per : V. M. KANAJDE, J.] 1. Heard the learned counsel appearing on behalf of the appellant and the learned APP appearing for the Respondent. The appellant has filed this appeal, being aggrieved by the judgment and order passed by the Additional Sessions Judge Bombay convicting the appellant for the offence punishable under Section 302 of the I. P. APEAL. 567-11 - 2 - Code and sentencing him to suffer the rigorous imprisonment for life and pay fine of Rs.1,000/-; in default to suffer rigorous imprisonment for three months. 2. Brief facts are as under- . PW 1 Mahendra Acharekar and PW 6 Milind Kedare saw the appellant running away from the area where they were residing at about 12.30 a. m. to 1.00 a.m. on 23-3-1996 and they therefore, apprehended him. The appellant, according to these witnesses, informed them that he was not a thief but he had committed the murder of an elderly couple and therefore, he took them to the spot where the offence was committed. The information was given to the plice and FIR of Mahendra was registered at about 3.15 a.m. on 23rd March, 1996. After having received the information about the incident, the I.O. went to the spot and came to know that couple was removed to nearby hospital where they were declared dead soon after they were admitted to the said hospital. It was transpired during the course of investigation that deceased Ramu residing with his wife in Krishna Cottage at Nath Pai Nagar, Ghatkopar, was working as a watchman. The accused was arrested on the spot and thereafter post- APEAL. 567-11 - 3 - mortem was performed on the body of the two persons and in the post-mortem, the doctor has mentioned that there were six external injuries on the person of Ramu whereas 17 external injuries were on person of his wife. A wooden club used in the commission of the said offence was recovered from the place where the offence was committed at the instance of the accused. The clothes of the accused and the deceased were sent to the Chemical Analyser, who gave opinion in respect of clothes of the deceased, that result of the chemical analysis was inconclusive. So far as C.A. report in respect of clothes of the accused is concerned, it transpired that blood group of the accused was ‘O’. However, the blood group of the blood which was found on the articles were of ‘A’ and ‘B’ group. The trial court after going through the entire evidence on record came to the conclusion that the prosecution had proved beyond reasonable doubt that the appellant had committed offence punishable under Section 302 of the I. P. Code and therefore, sentenced him to the imprisonment for life. 3. The learned counsel appearing for the appellant submitted that the trial Court had erred in convicting the accused for APEAL. 567-11 - 4 - the offence punishable under Section 302 of the I. P. Code. He submitted that the incident had taken place at the spur of the moment. He submitted that the appellant was a young boy of 23 years of age and had to return to his native place in Uttar Pradesh for attending marriage ceremony of his close relative and he was employed as a driver and the owner of the vehicle had asked him to return the keys before going to the native place. He was also assured by the owner that he would pay him the dues at that time. However, due to unavoidable circumstances, he could not reach house of the owner of the vehicle in time and by the time he reached house of the owner, it was past mid-night. It is submitted by the learned counsel that watchman did not permit him to meet the owner and he assaulted the appellant and there was a sudden fight, and wife of the watchman also joined him in assaulting him, and therefore, at the spur of moment, he assaulted both of them with a wooden club which was lying near the scene of the incidence. It is submitted that, therefore, case of the appellant would fall under the fourth exception to Section 300 and at the most he ought to have been convicted for the offence punishable under Section 304 Part-II of the I.P. Code. In support of this contention, the learned counsel has relied on number of judgments. APEAL. 567-11 - 5 - 4. With the assistance of the learned APP we have perused the impugned judgment and order and also the notes of evidence and the documents on record. In our view, it is not possible to accept the submission made by the learned counsel for the appellant. The learned Judge has observed that the medical evidence clearly discloses that there were 17 external injuries on the person of wife of Ramu and two injuries on her head. Similarly, six injuries have been found on the person of deceased Ramu. PW 1 Mahendra Acharekar and PW 6 Milind Kedare have clearly stated that they apprehended the appellant while he was trying to run away from the scene of offence and thereafter the police was called and he was arrested at the spot and the investigation was completed by the investigating officer within a short period of time. Taking into consideration the injuries which were found on the person of Ramu and his wife, it cannot be said that offence committed by the appellant would fall under Section 304 Part- I of the I.P.C. In the present case, the appellant was 23 years of age at the time of incident whereas the watchman and his wife were about 50 years of age. Admittedly, they were not carrying any weapon and as such it cannot be said that there was any kind of provocation on APEAL. 567-11 - 6 - account of which the appellant assaulted the said elderly couple with a wooden club. The trial court, in our view, is justified in convicting the accused for the offence punishable under Section 302 of I.P.C. and sentencing him to rigorous imprisonment for life. 5. The ratio of the judgments on which reliance is placed by the learned counsel for the appellant, do not apply to the facts of the present case, therefore, we do not think it necessary to refer the said judgments here. 6. There was a delay of almost 4320 days in filing this appeal and the said delay was condoned by this Court after relying on judgment of the Apex Court. We have noticed, however, that the only record which has been sent by the Sessions Court is the roznama, copy of the judgment and copies of the statements made before the police. It is possible that since appeal is filed after almost expiry of 12 years, the papers in this case may have been destroyed and therefore, we have relied upon judgment of the trial court. In the circumstances, we do not find any merits in the appeal. Criminal Appeal is, therefore, dismissed. APEAL. 567-11 - 7 - 7. The learned counsel for the appellant submits that appellant was not properly represented before the trial court and an amicus curie from the panel of advocates was appointed to represent him. It is submitted that appellant is in jail since 23rd March, 1996 and has not availed furlough leave of parole and therefore, he has completed almost 16 years of actual imprisonment. The appellant, however, is at liberty to file writ petition seeking appropriate directions from this Court in this regard. [ A. M. THIPSAY, J.] [ V. M. KANADE, J.]