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2017 Supreme(Bom) 2286
IN THE HIGH COURT OF BOMBAY
C.V. Bhadang, Prithviraj K. Chavan, JJ.
Rohan Gurung - Appellant
Vs.
State - Respondent
Cri. Appeal No. 7 of 2016
Decided On : 10-11-2017
Advocate Appeared:
For the Appellant : Dhaval Damodhar Zaveri
For the Respondent: S.R. Rivankar
The main legal point established in the judgment is the application of the 'last seen together' theory, circumstantial evidence, and medical evidence to establish guilt under the Indian Penal Code.
Headnote:
Conviction - Indian Penal Code - 302
Fact of the Case:
The appellant was convicted under section 302 of the Indian Penal Code for intentionally causing the death of a mentally challenged woman after having sexual intercourse with her. The prosecution proved that the appellant was last seen with the deceased, and the medical evidence indicated that the death was due to asphyxia as a result of smothering in soft soil.
Finding of the Court:
The court found that the appellant had sexual intercourse with the deceased and had sufficient knowledge that his actions would result in her death. The court held that the appellant's act fell within the ambit of section 299 of the Indian Penal Code, and therefore convicted and sentenced the appellant under section 302.
Issues: The main issue was whether the appellant had the intention to cause the death of the deceased, and whether the evidence supported the conviction under section 302 of the Indian Penal Code.
Ratio Decidendi: The court relied on the 'last seen together' theory, medical evidence, and circumstantial evidence to establish the appellant's guilt. The court also considered the presence of the appellant at the scene, injuries on the appellant's person, and the similarity of soil samples to support the conviction.
Final Decision: The court partly allowed the appeal, setting aside the conviction under section 302 and instead convicting the appellant under section 304 Part II of the Indian Penal Code. The court reduced the sentence to the period already undergone by the appellant.
Prithviraj K. Chavan, J.
By this appeal, the appellant challenges his conviction under section 302 of the Indian Penal Code by which he is sentenced to undergo imprisonment for life and a fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for six months for intentionally and knowingly causing the death of a lady on the intervening night of 10-7-2011 and 11-7-2011.
2. Facts, in brief, are as follows :-
The appellant is a resident of Sikkim. On the intervening night of 10-7- 2011 and 11-7-2011 he was last seen smoking, drinking and kissing deceased Poornima – a mentally challenged woman at KTC bus stand, Panaji. The appellant thereafter took the said lady in the bushes behind Sulabh Toilets and had sexual intercourse with her. It is alleged by the prosecution that the appellant thereafter killed the said lady by smothering. He was found coming out of the bushes with only an underwear on his person. The dead body of the deceased was found lying in the bushes in a fully naked condition. PW 7 Vijay Kumar Chodankar, who was attached to Police Station, Panaji as Police Sub Inspector held investigation into the crime. At about 2.09 hours he received a phone call from Head Constable Nanu Thakur informing about the incident. On the said information U.D.No.40/2011 under section 174, Criminal Procedure Code came to be registered and thereafter PW 7 Vijay Kumar Chodankar visited the spot. He recorded the statements of the eye witnesses, who noticed the deceased lady with the appellant at KTC bus stand before the incident in question. The scene of occurrence was preserved by the Investigating Officer, since it was dark. The appellant was found under the influence of liquor, who was caught by PW 3 Radi Kuncolikar, PW 8 Rakesh Kumar and Rajesh Kumar. The dead body was sent for autopsy. PW 7 Vijay Kumar Chodankar had also conducted an inquest panchanama at GMC, Bambolim in presence of two panch witnesses. The injuries were noticed on the back portion and neck of the deceased. The Medical Officer after conducting the postmortem opined that the cause of death was due to asphyxia as a result of smothering of soft soil, which was fatal in the ordinary course of nature. The viscera of deceased was preserved and forwarded for examination. An FIR was registered on 11-7-2011. After investigation, the Investigating Officer has filed a charge-sheet in the Court of JMFC, Panaji, under section 302, Indian Penal Code.
3. After committal, the learned Sessions Judge, Panaji framed a charge against the appellant under section 302, Indian Penal Code. The appellant pleaded not guilty and claimed a trial. His defence was denial of the offence alleged and false implication in this case. He states that he came to Goa on the very day and was sleeping at the bus stand after consuming liquor. He was in deep sleep and woke up only at the Police Station in the morning. No defence evidence has been adduced on his behalf.
4. The prosecution examined nine witnesses to substantiate the charge against the appellant. The learned Sessions Judge, after hearing the prosecution and the defence, held that the prosecution has proved beyond doubt that in the intervening night of 10-7-2011 and 11-7-2011 the appellant had sexual intercourse with the deceased in the bushes, who was mentally challenged. It is observed by the learned Sessions Judge that the appellant had sufficient knowledge that the smothering would result in death of the deceased and, therefore, it is a case falling within the ambit of section 299, Indian Penal Code. The learned Sessions Judge, therefore, convicted and sentenced the appellant, as above.
5. The learned counsel appearing for the appellant took us through the evidence of the prosecution witnesses. It is submitted that, by no stretch of imagination, it can be said to be a case under section 302, Indian Penal Code, as there is absolutely no evidence on record to indicate that the appellant had, at any point of time, know
