Full Judgment Text
2024 INSC 878
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. _________ OF 2024
[Arising out of Special Leave Petition (Criminal) No.13920 of
2024]
SUNNY @ SANTOSH DHARMU BHOSALE …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
2. The present appeal arises out of the final judgment and
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order dated 5 August, 2020, passed by a Division Bench of the
High Court of Judicature at Bombay (hereinafter, “High Court”),
in Criminal Appeal No. 927 of 2015, whereby the High Court has
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negatived the challenge to the judgment and order dated 7 July,
2015, passed by the Court of Additional Sessions Judge – 3, at
Satara (hereinafter, “trial court”), in Sessions Case No. 121 of
2014, thereby upholding the conviction for the offence
punishable under Section 302 of the Indian Penal Code, 1860
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(hereinafter, “IPC”) and the imposition of sentence to suffer
imprisonment for life along with fine of Rs. 500/- on the
appellant.
3. By way of the present appeal, the appellant has called into
question the dismissal of his Criminal Appeal by the High Court.
4. The facts, in brief , giving rise to the present appeal are as
given below.
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4.1
The prosecution story is that on 21 March 2014, Sunita
Bhosale (PW-6) and her husband Gopal Bhosale went to the
house of Rajendra Bhosale (PW-5). At that moment,
Rajendra Bhosale had gone to answer nature’s call. Sunita
Bhosale (PW-6) and her husband were having a
conversation with Chayya – wife of Rajendra Bhosale (PW-
5). At about 10:30 PM, Sunny @ Santosh (appellant) came
in front of the house of Rajendra Bhosale (PW-5) and started
abusing Chayya and Rajendra Bhosale (PW-5) on account
of a loan they had taken. When Chayya tried to pacify the
appellant, he attempted to assault her. Seeing this, Gopal
Bhosale intervened and requested the appellant not to use
abusive language and that his grievance could be resolved
the next day. The appellant went some distance away from
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the house of Rajendra Bhosale (PW-5) but then suddenly
started abusing Gopal Bhosale in filthy language and called
him out of the house in a threatening tone. Gopal Bhosale
went out of the house and followed the appellant towards
the Northern side of tar road leading towards Khadkoba
Temple in the village. It is then that the appellant beat and
assaulted Gopal Bhosale particularly on his face and head
by means of a bamboo stick causing bleeding injuries.
Mangesh Bhosale (PW-3) and Aniket Bhosale (not
examined), upon hearing the sound of quarrel so also
Rajendra Bhosale (PW-5) who was informed by Sunita
Bhosale (PW-6) and his wife Chayya, rushed towards the
spot and saw the appellant assaulting Gopal Bhosale by
means of a bamboo stick and the injured lying on the
ground. Seeing the three of them, the appellant ran away
from there. Other people including Sharad Bhosale (PW-4)
gathered at the spot. The injured Gopal Bhosale was taken
to the Rural Hospital, Khandala, where the doctor declared
him brought dead.
4.2 Sharad Bhosale (PW-4) lodged the First Information Report
being FIR No. 54 of 2014 at Police Station Khandala,
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District Satara, on the intervening night of 21 March 2014
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and 22 March 2014 at around 1:35 AM. The FIR was
registered for offences punishable under Sections 302 and
504 of IPC.
4.3 Investigating Officer Ashok Shelke (PW-10) conducted the
investigation. After preparing the inquest panchnama, the
dead body was sent for postmortem. The appellant was
arrested. The blood-stained clothes of the appellant were
seized by preparing a panchnama. While in police custody,
the disclosure statement of the appellant was recorded and
at his instance muddemal i.e., bamboo stick was seized
under panchnama. The Investigating Officer also recorded
the statement of witnesses. He sent blood-stained clothes,
bamboo stick, etc., for chemical analysis.
4.4 The Investigating Officer, upon completion of the
investigation, filed a chargesheet forwarding the appellant
to face the trial. The case was committed to the Sessions
Court as the offence punishable under Section 302 of the
IPC is exclusively triable by the Sessions Court.
4.5 The trial court, upon hearing, framed charge against the
appellant. The appellant pleaded not guilty and claimed to
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be tried.
4.6 In order to bring home the guilt of the appellant, the
prosecution examined ten witnesses. Besides the oral
evidence, prosecution has also placed reliance on a number
of documents. The incriminating circumstances in evidence
were put to the appellant. The appellant denied the
circumstances. He led no defence evidence. The defence
was of total denial.
4.7 The Sessions Court, upon trial, convicted the appellant for
the offence punishable under Section 302 of the IPC and
sentenced him to undergo imprisonment for life.
4.8 Aggrieved thereby, the appellant preferred an appeal before
the High Court. Vide impugned final judgment and order,
the High Court dismissed the appeal filed by the appellant.
Aggrieved still, the appellant has filed the present appeal.
5. We have heard Shri D.N. Goburdhun, learned Senior
Counsel appearing for the appellant and Shri Siddharth
Dharmadhikari, learned Counsel appearing for the respondent-
State.
6. Shri D.N. Goburdhun, learned Senior Counsel, submits
that the trial court as well as the High Court has grossly erred in
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convicting the appellant. It is submitted that the testimonies of
the witnesses i.e. Mangesh Bhosale (PW-3), Rajendra Bhosale
(PW-5) and Sunita Bhosale (PW-6) would show that there are
material contradictions and inconsistencies in their depositions.
It is further submitted that there are various contradictions in
the FIR on one hand and the testimonies of the alleged
eyewitnesses. He, therefore, submits that the judgment and
order of conviction is not at all sustainable in law.
7. Shri Goburdhun in the alternative submits that the
evidence of the prosecution witnesses itself would show that the
incident was an outcome of a sudden and grave provocation in a
quarrel that took place between the deceased and the appellant.
It is, therefore, submitted that, in any event, the conviction under
Section 302 IPC would not be sustainable and will have to be
altered to a lesser offence.
8. Shri Siddharth Dharmadhikari, learned Standing Counsel
for the State of Maharashtra, on the contrary, submits that
insofar as the material aspect is concerned, the testimonies of all
the three eyewitnesses are consistent. He submits that apart
from the testimonies of the eyewitnesses, the circumstantial
evidence also points towards the guilt of the appellant. He,
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therefore, submits that no interference would be warranted with
the concurrent judgments and orders passed by the trial court
and the High Court.
9. Rajendra Bhosale (PW-5), states in his deposition that, on
the date of the incident the deceased and his wife Sunita Bhosale
(PW-6) had come to his residence. He had gone to answer the
call of the nature. When he returned, Sunita Bhosale (PW-6) and
his wife were standing at the door. They informed that the
appellant had come and was abusing the deceased and that the
deceased had gone after him. He then, went after them. When
he went towards Khadkoba temple, he noticed that the deceased
was lying on road near the house situated behind metal-sheet
mansion and the appellant was assaulting him by means of
bamboo stick. He states that Mangesh Bhosale (PW-3) and one
Aniket Bhosale also came there. Seeing them, the appellant fled
away. The deceased had become unconscious. The deceased
was taken to the Government hospital where he was declared
dead.
10. The evidence of Rajendra Bhosale (PW-5) is sought to be
corroborated by Mangesh Bhosale (PW-3). He stated that hearing
the quarrelling noise on the rear side of his house he came out
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of the house and thereafter saw the appellant assaulting the
deceased. However, the presence of this witness is itself
doubtful, inasmuch as, Rajendra Bhosale (PW-5) in his cross-
examination admits that the house of Mangesh Bhosale (PW-3)
is at a distance of 2000-2500 feet from the place of incident.
11. The prosecution case is, however, also supported by Sunita
Bhosale (PW-6), the wife of the deceased.
12.
Taking into consideration the evidence of Rajendra Bhosale
(PW-5) and Sunita Bhosale (PW-6), we do not find any error in
the finding of the trial court and the High Court that it is the
present appellant who assaulted the deceased due to which the
death of the deceased has occurred.
13. The next question that arises for consideration is as to
whether the conviction under Section 302 IPC would be
sustainable or whether the appellant deserves to be convicted for
a lesser offence.
14. In this respect, it will be relevant to refer to the testimony of
Sunita Bhosale (PW-6), the wife of the deceased. She in her
evidence states that, she and her husband deceased Gopal had
gone to the house of Rajendra Bhosale (PW-5). When they went
to the house of Rajendra Bhosale (PW-5), he had gone to answer
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nature’s call. She further states that the accused appellant came
there and started abusing Chayya and Rajendra Bhosale (PW-5).
Thereafter, her husband tried to persuade the accused appellant
telling him why he was abusing them, and they would see about
his grievance in the morning. She states that thereafter the
accused appellant started abusing her husband deceased Gopal
due to his intervention. The accused appellant went from there
and the deceased also went behind him. She further stated that
she and Chayya, the wife of Rajendra Bhosale (PW-5) stood
outside the house. At that time, Rajendra Bhosale (PW-5) also
arrived. She states that, when Rajendra Bhosale (PW-5)
returned, she and Chayya told Rajendra Bhosale (PW-5) about
the incident stating that deceased Gopal had gone behind the
accused appellant. She states that, thereafter Rajendra Bhosale
(PW-5) went towards Khadkoba temple. He was followed by
Mangesh Bhosale (PW-3) and one Aniket Bhosale.
15. From the testimony of Sunita Bhosale (PW-6) itself, it will
be clear that after a scuffle took place at the house of Rajendra
Bhosale (PW-5), the accused appellant went from there and the
deceased followed him. Thereafter, as to how the assault took
place is not clear either from the evidence of Rajendra Bhosale
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(PW-5) or from the evidence of Sunita Bhosale (PW-6). It is
however clear that after the accused appellant left the place, the
deceased followed him. After that, as to what had happened
between the deceased and the appellant is not clear from the
evidence of the eyewitnesses.
16. From the evidence of Sunita Bhosale (PW-6) itself, it is clear
that the deceased had nothing to do with the incident. The
appellant had come to the house of Rajendra Bhosale (PW-5)
where she and her husband had gone. Rajendra Bhosale (PW-5)
had gone to answer nature’s call and three of them i.e. the
deceased, Sunita Bhosale (PW-6) and Chayya, the wife of
Rajendra Bhosale (PW-5), were present there. The appellant
started abusing Rajendra Bhosale (PW-5) and his wife Chayya.
The deceased intervened and asked the appellant as to why he
was abusing Rajendra Bhosale (PW-5). Irked by the intervention
of the deceased, the appellant started abusing the deceased and
thereafter went away. It is thus clear that no motive has come
on record as to why the appellant wanted to commit the murder
of the deceased.
17. The evidence of the eyewitnesses also does not show that
the appellant had come with any weapon. On the contrary, the
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medical evidence would show that the injuries caused are with
the bamboo stick, which is commonly available in a village. The
possibility of the deceased following the appellant and an
altercation taking place between them and in a sudden fight in
the heat of passion the appellant assaulting the deceased cannot
be ruled out.
18. As already discussed hereinabove, the prosecution has
utterly failed to prove any case of premeditation. On the
contrary, the case as put forth by the prosecution is about the
appellant coming to the house of Rajendra Bhosale (PW-5),
abusing him and his wife Chayya, and the weapon used is a
bamboo stick which is commonly available anywhere in the
village. The nature of the injuries sustained by the deceased
would also not show that the appellant had taken any undue
advantage or acted in a cruel or unusual manner.
19. In that view of the matter, we find that the appellant is
entitled to benefit of doubt. The conviction of the appellant under
Section 302 IPC, therefore, deserves to be altered to one under
Part I of Section 304 IPC.
20. We are, therefore, inclined to partly allow the present
appeal.
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21. In the result, we pass the following order:
(i) The appeal is partly allowed.
(ii) The conviction of the appellant under Section 302 IPC is
altered to the one under Part I of Section 304 IPC.
(iii) The appellant has already undergone actual
imprisonment for a period of more than 9 years and with
remission he has undergone the sentence of more than
12 years prior to his release on bail by the order of this
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Court dated 4 October 2024. We, therefore, find that
the said sentence would subserve the ends of justice.
Therefore, the appellant is sentenced to the period
already undergone.
(iv) The bail bonds, if any, shall stand discharged.
..............................J
(B.R. GAVAI)
...........................................J
(K.V. VISWANATHAN)
NEW DELHI;
NOVEMBER 20, 2024.
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