A division bench comprising of Justice BP Dharmadhikari and Justice Sandeep K Shinde dismissed an appeal challenging the order passed by the trial court where the appellant was pronounced convicted under Section 302 of IPC for murdering the deceased victim.
The counsel for the appellant was represented by Dr. Yug Mohit Chaudhury who submitted that the appellant was enraged when the deceased hurled abuses at his sister and in the heat of the moment, the appellant hit the deceased with a danda which caused the death of the victim. It was prayed that keeping these conditions in mind. It was thus prayed that the conviction is modified under Section 304 part 2 with respective changes in the punishment.
The Court also paid attention to the acceptance under Section 27 of the Evidence Act made by the accused 1, indicating what happened on the actual night of the incident. The appellants drew the notice of the court towards the decision passed by the Supreme Court in the case of Murli v. the State of Rajasthan, 1995 Supp (1) 39, where the submission under Section 27 of the Evidence Act can be utilized by the accused in defense.
The Bombay HC observed that the abusing of the appellant’s sister was never mentioned earlier and hence cannot be verified. The court stated, “Stray sentences appearing in disclosure memorandum Exhibit 17, therefore, cannot be allowed to be utilized to build such defence in present facts.”
The court further stated that in the case referred to, the apex court found a match with the statement recorded and the statement said thus leading the apex court to pronounce the statement. In view of the matter, the Bombay HC held that the appeal did not stand and was therefore dismissed.
Atikul Habibul Rehman Shaikh v. State of Maharashtra, Crl. Appeal No. 656 of 2012