Bombay High Court: A Division Bench of B.P. Dharmadhikari and Sandeep K. Shinde, JJ., dismissed an appeal filed against the order of the trial Judge whereby the appellant-accused were convicted under Section 302 IPC for murdering the deceased.
The appellants, represented by Dr Yug Mohit Chaudhary, submitted that the deceased hurled abused for the sister of one of the appellants. Consequently, the appellants lost self-control and at the spur of the moment, they hit the deceased with danda and an iron rod, which resulted in his death. It was contended that in such circumstances, the conviction of the appellants may be modified to that under Section 304 Part II, with suitable modifications in punishment.
Attention of the Court was invited to the disclosure statement under Section 27 of the Evidence Act made by Accused 1, to show that he pointed out what transpired on the night of the incident. The appellants relied upon the Supreme Court decision in Murli v. State of Rajasthan, 1995 Supp (1) 39, to submit that such disclosure under Section 27 of the Evidence Act can be pressed into service by accused in defence.
Perusing the record, the High Court noted that the defence had made no attempt to bring on record, any such abuses as were claimed by them now. It was held that the defence of abuse in the name of appellant’s sister by the deceased was never raised and had not been established.
On the point of law, the Court observed: “Stray sentences appearing in disclosure memorandum Exhibit 17, therefore, cannot be allowed to be utilized to build such defence in present facts.”
Furthermore, the decision of the Supreme Court relied on by the appellants was distinguished as in that case there were some other evidence on record which corroborated the statement of the accused.
In such view of the matter, the High Court held that there the impugned order does not need to be interfered with. the appeal was, therefore, dismissed. [Atikul Habibul Rehman Shaikh v. State of Maharashtra, 2019 SCC OnLine Bom 5013, decided on 2-12-2019]
