DILIP SURESH THATSHINGARversusTHE STATE OF MAHARASHTRA

                    supriya                           1 of 19               14-APEAL-658-2022


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUPRIYA
                                       CRIMINAL APPELLATE JURISDICTION
PRAMOD
JAWARE
Digitally signed
                                       CRIMINAL APPEAL NO. 658 OF 2022
by SUPRIYA
PRAMOD
JAWARE
Date: 2026.10.07
15:03:56 +0530
                   Dilip Suresh Thatshingar,
                   Age : 32 years,
                   R/o : Motha Matangwada,
                   Near Taxi Stand, Bhadrakali
                   Nashik City
                   (Presently in Nashik Central Road,
                   Prison, Nashik)                                        ..Appellant

                              Versus

                   The State of Maharashtra
                   Through Public Prosecutor,
                   High Court, Bombay.                                    ..Respondent
                                                    __________

                   Mr. Najmi Murtaza with Ms. Manisha Devkar (appointed Advocates
                   through Legal Aid) for the Appellant.
                   Ms. Gauri Rao, A.P.P., for the Respondent-State.
                                                   __________

                                        CORAM :     SARANG V. KOTWAL &
                                                    RANJITSINHA RAJA BHONSALE, JJ.

                                        DATE    :   28th SEPTEMBER 2026

                   JUDGMENT [PER : SARANG V. KOTWAL, J] :-

                   1.              The Appellant has challenged the Judgment and Order

                   dated 28th April 2022 passed by the learned Additional Sessions Judge

                   and Special Judge, POCSO, Nashik, in Sessions Case POCSO No. 43 of
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2019. The Appellant was acquitted for the charges for commission of

offences punishable under Sections 344, 366-A, 376(1) of IPC and

Sections 4 and 6 of the Protection of Children from Sexual Offences Act

(POCSO). However, the Appellant was convicted for commission of the

offence punishable under Section 302 of IPC and was sentenced to

suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/-

and in default to suffer simple imprisonment for 6 months. He was

granted set off under Section 428 of CrPC for the period already

undergone in prison. The Appellant has challenged his conviction and

sentence under Section 302 of IPC.


2.          Mr. Najmi was appointed to argue the Appeal on behalf of

the Appellant. However, on the last occasion since he was not present,

we had appointed Ms. Devkar to represent the Appellant. Subsequently,

Mr. Najmi appeared before us and submitted that due to inadvertence

he could not remain present. Considering his submission, in the interest

of justice, we permitted Mr. Najmi as well as Ms. Devkar both to make

submissions on behalf of the Appellant. We have also heard Ms. Gauri

Rao, learned A.P.P., for the Respondent-State.


3.          The Prosecution case in brief is as follows :


            The deceased was aged about 16 years and 5 months on
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the date of the incident. The incident took place on 2 nd November 2018.

The date of birth of the deceased was 24-5-2002. A few days prior to

the incident, she had left her parental house and had started residing

with the Appellant. It is the Prosecution case that the Appellant was

doubting her character and used to beat her. Sometimes, he used to

confine her in his room. On 2nd November 2018, in the evening, he tied

her hands and legs and assaulted her with a heavy wooden stick. PW 10

Shivaji Khairnar, who was having his handcart nearby, rushed to the

Appellant’s room and saw the incident. The Appellant threatened him,

therefore, he went away. According to the Prosecution, the Appellant

himself took the deceased to the Civil Hospital, but she was declared

dead. Initially ADR No. 92 of 2018 was registered at Bhadrakali Police

Station. Subsequently, the victim’s brother expressed his grievance

against the Appellant and made specific allegations that the Appellant

had assaulted the deceased. The initial part of the investigation had

already commenced. The inquest panchanama and spot panchanama

were conducted. The FIR was lodged at 8.51 p.m. on 3 rd November

2018 vide C.R. No. I-585 of 2018 at Bhadrakali Police Station. The

Appellant was arrested. The investigation continued. The postmortem

examination was conducted between 8.00 a.m. to 9.00 a.m. on 3 rd

November 2018. She had suffered as many as 31 injuries all over her
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body. The statements of various witnesses were recorded. The

Statement of the eye witness Shivaji Khairnar was recorded under

Section 164 of CrPC. During Spot panchanama conducted at around

1.00 p.m. on 3rd November 2018, a piece of wire and pieces of clothes

were recovered. The clothes of the deceased and clothes of the accused

were also recovered. The seized articles were sent for chemical analysis.

At the conclusion of the investigation, the chargesheet was filed and the

case was committed to the Court of Session.


4.           During trial, the Prosecution examined 13 witnesses,

including the eye witness Shivaji Khairnar, the first informant who was

the brother of the deceased, the Panchas, the Medical Officer and the

Investigating Officer.


5.           The defence of the Appellant was of denial and he also took

a specific defence that there was enmity between him and PW 10

Shivaji Khairnar. The Appellant’s mother had lodged an FIR against PW

10 Shivaji Khairnar, who had a grudge against the Appellant and,

therefore, he falsely implicated the Appellant. According to him, when

he was going from his lane, he saw the victim lying on the ground.

When the Appellant asked her about it, she pointed to her brother. The

Appellant picked up an iron rod and started chasing him, but her
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brother sat in a Rickshaw and went away. According to the Appellant,

he took the victim to the hospital in a Rickshaw. He further stated that

PW 10 Shivaji and the other witnesses were relatives of each other.


6.          The learned Judge considered the evidence on record and

the defence taken by the Appellant. He observed that there was no

evidence of commission of the offences punishable under POCSO Act

and other Sections of Indian Penal Code, except Section 302 of IPC. The

learned Judge observed that the CA Report did not show presence of

semen on the swab, etc., and he concluded that there was no evidence

to conclude that the deceased was subjected to sexual assault. However,

the learned Judge relied on the evidence of PW 10 in particular, and on

the evidence of PW-1 the victim’s brother to base his conclusion that the

Appellant had committed the offence punishable under Section 302 of

IPC.


7.          PW 1 Ganesh Rao was the first informant. He was the

brother of the deceased. He deposed that the victim was his younger

sister. She was about 17 years of age at the time of the incident. They

were residing in Tapovan area and the Appellant was residing in

Bhadrakali area. The Appellant used to come to Tapovan for smoking

narcotic drugs. He had told the victim that he would marry her. The
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Appellant had taken the victim to Matangwadi. PW 1, his mother and

younger brother had gone to Matangwadi to bring back the victim but

the Appellant had threatened them with a sickle. Therefore, they had

come back. After about 15 days, he saw the victim. PW 1 asked her to

return home. The victim told him that the Appellant was suspecting her

character. She had tried to come back to her parental house, but the

Appellant had locked her in his room. The victim informed PW 1 that if

she spoke with the neighbours, the Appellant used to assault her. She

further told PW 1 that she would come afterwards. He further deposed

that on 2nd November 2011 at about 10.00 to 10.30 p.m., he received a

call from an unknown number. He was informed that his sister was

severely assaulted and that she was admitted to Civil Hospital, Nashik.

PW 1 went to the Civil Hospital with his friend Sagar Shinde. He saw

his sister on a stretcher. There were injuries all over her body. She had

suffered a head injury. Her hands and legs were tied. She was already

dead and her body was taken for postmortem examination. He deposed

that he went with the Police and showed the place where she was

assaulted. The Police recovered some blood-stained clothes from the

spot. They also seized a blood-stained heavy wooden stick. Apart from

that, they recovered and seized a red coloured electric wire. He lodged

the FIR on 3rd November 2018. He identified the FIR. The defence
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objected the said statement for being taken on record as the FIR.

However, the learned Judge overruled that objection and the FIR was

taken on record at Exhibit 13. PW 1 identified the clothes of the

deceased which were produced in the Court. He also identified the wire.

He was called to the prison to attend the test identification parade.


            In the cross-examination, he deposed that he was residing

with his parents and younger brothers. Bhadrakali area was a central

place in Nashik. There were theaters and video hall around

Matangwadi. His sister was fond of watching movies. In the year 2016,

there was a marriage proposal for her, but no steps were taken. She was

residing at Bhadrakali about 3 to 4 months prior to the incident. He

denied the suggestion that the Appellant used to fight against injustice

and, therefore, PW 1’s sister preferred to stay with the Appellant. PW 1

accepted the suggestion that since the Appellant was of violent nature,

they had advised the victim not to stay with him, but she did not listen

to them. He accepted that his mother had advised him to lodge the FIR

at around 11.00 p.m in the night. PI Suryawanshi came there and he

took the Appellant in custody around 12.30 a.m. in the midnight. He

accepted that since his sister had told him about the house of the

Appellant, he knew that it was the Appellant’s house. He denied the
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suggestion that they had assaulted the victim, thereby causing her

death.


8.          The FIR was lodged at 8.51 p.m. on 3 rd November 2018. It

substantially corroborates the deposition of PW 1. However, the spot

panchanama was prepared between 1.15 p.m. to 2.30 p.m. on 3 rd

November 2018. The spot panchanama is produced on record through

the evidence of PW 2 Sharad Ingle. He was a pancha for the spot

panchanama. It is produced on record at Exhibit 16. The spot

panchanama in the beginning itself mentions that PW 1 had shown the

place of incident i.e. the room of the Appellant and PW 1 had described

his grievance. There was a specific reference that the Appellant had

committed the murder of the deceased by assaulting her with a heavy

wooden stick and wire after tying her limbs. Ideally, at that time itself,

the Police ought to have registered the FIR, but the investigation had

already commenced as investigation into ADR No. 92 of 2018. The spot

panchanama mentions the said fact. It was conducted under Section

174 of CrPC. PW 2 was examined as a pancha for spot panchanama. He

identified the panchanama and deposed that the Police had recovered

and seized a heavy wooden stick, pieces of clothes, wire and the bed

sheet. All these articles were stained with blood.
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9.          PW 10 Shivaji Khairnar is the most important witness. In

this case, he was examined as an eye witness. He deposed that he knew

the Appellant as the Appellant was his neighbour. He identified the

Appellant on VC. At the time of incident, PW 10 was in his house. At

about 7.00 p.m., he heard screams. According to him, the victim was

shouting loudly. He rushed towards the Appellant’s house to help her.

PW 10 specifically deposed that the Appellant was assaulting his wife

(victim) with a heavy wooden stick. The Appellant chased PW 10 with

the same stick. PW 10 got scared. According to him, the Appellant had

created terror in the area. PW 10 ran away. After some time, an

ambulance came there. His statement was recorded in the Court. It is

produced on record at Exhibit 16. It was recorded under Section 164 of

CrPC.


            In the cross-examination, he stated that there were many

customers visiting him between 6.00 p.m. to 9.00 p.m. His wife used to

sell Egg Bhurji. In the cross-examination, certain omissions were

brought out by the defence in his statement recorded under Section 164

of CrPC. According to him, he had stated in his statement recorded

under Section 164 of CrPC that he had heard the voice of the

Appellant’s wife. This particular fact was not mentioned in his
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statement. If his statement under Section 164 of CrPC is perused, it is

mentioned by him that he heard shouts of a woman from the house of

the Appellant. Therefore, this omission does not affect his substantive

evidence. According to him, he had stated before the Police that he had

heard shouts of the Appellant’s wife. This particular omission from his

police statement is proved through the evidence of the Investigating

Officer PW 13. However, there is no omission in the police statement as

to the fact that he had gone to the house of the Appellant. He had not

specifically stated in his statement under Section 164 of CrPC that the

Appellant was assaulting his wife, but the statement under Section 164

records that when he went to the house of the Appellant, the Appellant

was having a heavy wooden stick and his wife’s hands and legs were

tied. When PW 10 went to help her, the Appellant was in a fit of rage

and, therefore, PW 10 got scared. The Appellant’s wife lay unconscious.

The Appellant’s family members came there and took her to the

hospital. Therefore, this particular statement substantially corroborates

the main description given by him in his deposition.


            In the cross-examination, he stated that the Appellant and

his sister took the victim in a rickshaw. In the evening, he was working

at his handcart and, therefore, he did not inform the incident to the
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Police. The Police had come near his house. His handcart was about 200

ft. away from his house. He denied the suggestion that the Appellant

was shouting that the victim was assaulted by her parents and brothers.

He denied the suggestion that, the Appellant was chasing the victim’s

parents and brothers with a heavy wooden stick.


10.         PW 3 Laxman Wagh and PW 4 Ganesh Jadhav were the

panchas for recovery and seizure of clothes of the deceased, but they

turned hostile and did not support the prosecution case. PW 5 (Kailas

Sathe) and 6 (Arun Kale) were panchas for seizure of clothes of the

accused, but they also turned hostile and did not support the

prosecution case. The test identification parade memo was admitted by

the defence. In the test identification parade, PW 1 had identified the

Appellant. In any case, holding of the test identification parade was not

necessary because PW 1 knew the Appellant.


11.         PW    8 Madhuri     Tikale was a pancha for inquest

panchanama. It is produced on record at Exhibit 45.


12.         PW 9 Dr. Kamble is another important witness. He had

conducted the postmortem examination and had also examined the

Appellant. PW 9 deposed about the injuries suffered by the deceased.

She had 31 injuries all over the body. The injuries were in the nature of
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contusions, contused abrasions, multiple reddish abrasions and a black

eye. The opinion as to the cause of death was mentioned as “Cerebral

damage due to blunt trauma to head, which is sufficient to cause death

in ordinary cause of nature. All the injuries were ante-mortem in

nature, fresh and caused by blunt trauma”. There was fracture of the

skull bone. The Police had referred the wooden stick recovered at the

spot for his opinion. The opinion is produced on record at Exhibit 50. As

per that opinion, the injuries were possible by that particular weapon.

On 7th November 2018, he examined the Appellant and according to his

examination, the Appellant was capable of physical intercourse. His

evidence shows that the deceased was brutally assaulted.


13.            PW 7 Rajaram Jadhav was working with Nashik Municipal

Corporation. He produced the birth register of the victim. A certified

copy is produced on record at Exhibit 29. According to the extract, her

date of birth was 24-5-2002. There is hardly any dispute about this birth

certificate. The learned Judge has recorded that she was the only

daughter of her parents. She had three brothers. The names of the

parents were correct. Therefore, it was concluded that it was her birth

certificate.


14.            In any case, in the facts of this case, her age hardly matters
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because the conviction is under Section 302 of IPC. The Appellant is

acquitted from the charges under POCSO, and there is no challenge to

that acquittal.


15.          PW 11 ASI Ramrao Kadale deposed that he was on duty at

Civil Hospital, Nashik. On 2nd November 2018, the Appellant had

brought his wife to the Civil Hospital. The Doctor examined her and

declared her dead. He informed Bhadrakali Police Station accordingly.

His information is produced on record at Exhibit 69. The information

specifically mentions that the victim, aged 17 years, was assaulted by

her husband/Appellant, causing injuries near her eye. She was brought

by her husband/Appellant at about 8.15 p.m. The Doctor examined her

and declared her dead. This information, being the first in point of time,

specifically named the present Appellant and attributed a specific role to

him. Therefore, right from the beginning, the investigation always

proceeded on the footing that the Appellant had assaulted the deceased

and had caused her death.


16.          PW 12 API Vaishali Shinde had conducted the investigation

in ADR No. 92 of 2018. She had conducted the spot panchanama and

seized the articles from there. She identified those articles produced in

the Court. She identified the written information referred to
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hereinabove at Exhibit 69. This was the information received by her. It

had the signature of the Station House Officer.


17.         PW 13 API Manoj Shinde had conducted the investigation

after the FIR was registered. He had arrested the Appellant. He had

seized the Appellant’s clothes. He had also seized the clothes of the

deceased. He caused the statements of the witnesses to be recorded

under Section 164 of CrPC.


            In the cross-examination, he proved the omissions from the

police statement of PW 10 as referred hereinabove.


18.         Apart from this oral evidence, the prosecution produced the

CA report on record. It shows that there was blood of A group on the

wooden log, the scarf seized from the spot, the cloth pieces seized from

the spot and the full pant of the Appellant. The other articles i.e. the

clothes of the deceased and the Appellant and the bed sheet, showed

the presence of blood but blood grouping was inconclusive. The semen

smear slides and the swabs of victim’s private parts did not reveal

anything incriminating which is one of the reasons why the Appellant

was acquitted from the other charges.


19.         Mr.   Najmi    and   Ms.        Devkar   made   the   following
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submissions :


            The complainant PW 1 is unreliable. There are material

contradictions and omissions from his evidence. He was not an eye

witness. His FIR is lodged much belatedly almost after 24 hours from

the time of the incident. The incident had taken place in a crowded

locality and yet the only one witness was examined as an eye witness.

The evidence of the said eye witness PW 10 is not reliable. There are

material omissions and contradictions from his police statement,

statement recorded under Section 164 of CrPC, and his deposition.

There was no motive established by the prosecution. On the other hand,

the defence of the Appellant was probable. The parents and the

brothers, including PW 1, had a motive to assault the deceased because

she was residing with the Appellant against their wishes. They

perceived it as harm to their reputation. The conduct of PW 1 was

unnatural. The story deposed by him that the victim had met him at

some place is not true. The prosecution has suppressed the real FIR.


20.         On the other hand, learned A.P.P. relied heavily on the

evidence of PW 10 Shivaji Khairnar. She submitted that he was an

independent witness. He was also a natural witness, as he was the

neighbour of the deceased and the Appellant. He had rushed to the spot
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on hearing the shouts. The omissions from his previous statements were

immaterial in the background of the main narration given by him in his

examination-in-chief. The spot panchanama and seizure of articles are

incriminating. The spot panchanama was conducted at about 1.00 p.m.

The articles were sent for CA report, they showed the presence of the

blood of the deceased. Though the Appellant had taken her to the

hospital, before that he had brutally assaulted her. Therefore, by taking

her to the hospital does not exonerate him from the crime that he had

committed.


21.          We have considered these submissions. As mentioned

earlier, PW 10 Shivaji Khairnar is the most important witness in this

case. We do not find any infirmity in his deposition. He was a natural

witness. He was residing nearby. He was in his house. He had a business

of selling Egg Bhurji. He heard the shouts and rushed to the house of

the Appellant. He has deposed that he had seen the Appellant assaulting

the deceased with the heavy wooden stick. In his statement recorded

under Section 164 of CrPC, he had stated that the hands and legs of the

deceased were tied with wire and the Appellant was carrying a wooden

stick. The Appellant rushed at him, and therefore, he ran from there out

of fear. We do not find his conduct unnatural. He has described the
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incident. The blood-stained clothes and pieces of cloth, as well as the

heavy wooden stick were found in the room itself. They were seized.

They are sent for chemical analysis. They showed the presence of blood

of A group, which was also found on the clothes of the deceased. Thus,

the evidence of PW 10 is corroborated by the circumstantial evidence.


22.         The medical evidence corroborates the evidence of PW 10.

The Doctor had opined that these injuries were possible by the weapon

found at the spot. There were as many as 31 injuries on the dead body.

The deceased was brutally assaulted with a heavy wooden stick all over

the body. The Appellant has not offered any plausible explanation.

There is no dispute that the deceased was residing with the Appellant.

According to the Appellant, she was assaulted by her parents and

brothers. According to him, that the incident had taken place in a lane

however, there is no supporting evidence or even indication showing

that any such incident had taken place in that particular lane. The

defence has brought out on record that it was a crowded locality, and

therefore, there should have been some witnesses supporting the

defence if the defence was true. The Appellant has not given any

explanation regarding the incident. According to him, PW 10 was

deposing against him because there was a previous enmity between PW
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10 and his mother. According to him, his mother had lodged F.I.R.

against PW 10, but no such FIR is produced on record. Therefore, there

is absolutely no material supporting his specific defence taken in his

statement under Section 313 of CrPC.


23.         Though the FIR is lodged belatedly; as discussed earlier,

there is an immediate information given by the Police Officer on duty at

the Civil Hospital, Nashik, to the Station House Officer of the Police.

That information is produced on record at the first instance itself, and

the Appellant is named as the assailant who had committed brutal

assault on the victim.


24.         The spot panchanama refers to the story of the Appellant

having assaulted the deceased. Therefore, delay in lodging the FIR

makes no difference to the prosecution case in the light of the evidence

led in this case. At the first instance itself, the Appellant’s name was

specifically mentioned in the information.


25.         PW 1 had described the reason as to why the deceased was

assaulted. According to him, the Appellant was suspecting her character

and was treating her with cruelty and brutality. In any case, since this is

a case where the evidence of the eye witness is acceptable, the

consideration of motive pales in comparison.
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26.         As a result of the above discussion, we are of the opinion

that the prosecution has proved its case beyond reasonable doubt. We

find no fault with the reasoning of the learned Judge in acquitting the

Appellant from the other charges. There is no appeal against acquittal

preferred by the Prosecution against those findings. Hence, the

following Order :-


                                  ORDER


      (1)            The Appeal is dismissed.


      (2)            Since both the learned Counsel argued the matter,

                     the Legal Services Authority of this Court shall pay

                     their fees in accordance with rules.



(RANJITSINHA RAJA BHONSALE, J.)                 (SARANG V. KOTWAL, J.)