KRUSHNA MAYA KHELOJIversusSTATE OF MAHARASHTRA

                    supriya                           1 of 17               3-APEAL-879-2024


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

SUPRIYA
                                     CRIMINAL APPEAL NO. 879 OF 2024
PRAMOD
JAWARE                                            WITH
Digitally signed
by SUPRIYA
PRAMOD
                                   INTERIM APPLICATION NO. 3259 OF 2024
JAWARE
Date: 2026.09.22
17:27:18 +0530
                                                    IN
                                     CRIMINAL APPEAL NO. 879 OF 2024

                   Krushna Maya Kheloji,
                   Age : 55 years
                   R/o : Digi, Koliwada,
                   Tal. Shriwardhan, Dist. Raigad.
                   (Alibag Central Prison.)                               ..Appellant

                              Versus

                   The State of Maharashtra
                   (Through Dighisagari Police Station)                   ..Respondent
                                              __________

                   Mr. Anush Shetty i/by Dr. Yug Mohit Chaudhary for the Appellant.
                   Ms. Gauri Rao, A.P.P., for the Respondent-State.
                                                 __________

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

                                        DATE    :   11th SEPTEMBER 2026

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

                   1.              The Appellant has challenged the Judgment and Order

                   dated 21st June 2024 passed by the learned Additional Sessions
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Judge, Mangaon, Dist. Raigad, in Sessions Case No. 6 of 2022. The

Appellant was convicted for the commission of offence punishable

under Section 302 of the Indian Penal Code (for short “IPC) and

was sentenced to suffer imprisonment for life and to pay a fine of

Rs. 500/- and in default, to suffer rigorous imprisonment for six

months. The Appellant was granted set off under Section 428 of

the Criminal Procedure Code (for short “CrPC”).


2.         Heard, Mr. Anush Shetty, learned Counsel for the

Appellant and Ms. Gauri Rao, learned A.P.P., for the Respondent-

State.


3.         The Prosecution case in brief is as follows :-


           The deceased Tukaram Kavale and the Appellant both

were working on a boat. The allegations are that the Appellant did

not clean the fuel can, there was some mix-up in the chemical, and

therefore, the fishing boat stopped working in the middle of the

sea, which caused inconvenience to all the fishermen. When they

came back, the deceased complained to the owner of the boat. The

Appellant was in danger of losing his job. There was a quarrel
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between the Appellant and the deceased. It is the prosecution case

that, the Appellant went to the house of the deceased, but at that

time, the deceased was not in the house. The Appellant issued

threats. He returned home. The deceased went to the house of the

Appellant. There was a quarrel. The Appellant took a knife from

his hut and gave blows of knife to the deceased.


4.         PW 8 Police Patil Damodar Govari saw the incident. He

went towards both of them. He informed others. The injured

Tukaram was taken to the hospital, but he was declared dead. The

incident took place in the night between 3 rd and 4th November

2021. The FIR was lodged in the morning at 7.53 a.m. at Dighi

sagari Police Station vide C.R. No. 49 of 2021. The FIR was lodged

by the wife of the deceased i.e. PW 1 Aarati Kavale. The

investigation was carried out. Different panchanamas were

conducted. The Appellant was arrested. At his instance, his clothes

were seized and the murder weapon was recovered from his hut.

The articles were sent for chemical analysis. At the conclusion of

the investigation, the charge-sheet was filed and the case was

committed to the Court of Session.
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5.         During trial, the Prosecution examined eight witnesses

including the first informant, the eye witness PW 8 Damodar

Govari, the panchas, the Medical Officer and the Investigating

Officer. The defence of the Appellant was of total denial. The

learned Judge relied on the evidence of the eye witness and the

first informant. Based on their evidence, he convicted the

Appellant. The learned Judge considered whether it could be a

lesser offence, but after analysis of the evidence, he came to the

conclusion that the offence punishable under Section 302 of the

IPC was made out.


6.         The FIR was lodged by PW 1 Aarati Kavale, who was

the wife of the deceased. She deposed that at the relevant time,

she was residing with her husband and children in the house of

her sister Vanita (PW-4). Her husband Tukaram was working on

the fishing boat of one Kiran Kandekar. The Appellant was her

uncle. Her husband had gone on the boat for 4 to 5 days. On 3 rd

November 2021, he returned at about 8.00 p.m. They had dinner.

He informed PW 1 that, he was going to the boat to take down the

fishing nets and he left. The Appellant came to their house and
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started abusing. He issued threats that he would kill Tukaram.

After that, they went to sleep at about 12.15 a.m. In the night, one

Kashinath Kavale came to her house and informed her that, the

deceased was lying injured in front of the house of the Appellant.

PW 1 and her sister went there. They saw that, her husband had

suffered injuries on the face, chest and back. Kiran Kandekar

informed her that there was a quarrel between the Appellant and

the deceased and that the Appellant had inflicted blows with a

knife on the deceased. After that, the villagers took the injured

Tukaram for medical treatment. He was taken to Shriwardhan, but

during treatment he succumbed to injuries. After that, she went to

the Police Station and lodged the FIR. It is on record at Exhibit 17.


            In the cross-examination, she deposed that there were

five to six houses around her sister’s house. There were other

houses around the house of the Appellant. The Appellant’s house

was at a distance of 15 to 20 minutes from her sister’s house. The

Appellant, the deceased and Sudam were working on the boat of

Dama Kandekar. She had not specifically mentioned the abuses

given by the Appellant. She accepted that she had not informed
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anybody that the Appellant had come to her house and abused

them. When she went to the spot, the injured was in pain, but he

had not told her that the Appellant had assaulted him. Her FIR is

produced on record at Exhibit 17.


7.         PW 4 Vanita was the sister of PW 1. She deposed that,

on 3rd November 2021, at about 9.30 p.m., they went to sleep. PW

1 was residing in a portion of their house. At about 11.45 p.m.,

Kashinath Kavale and Prakash Govari woke them up and informed

them about the incident. PW 4 and PW 1 went to the spot.

Tukaram had suffered injuries. The villagers took him to

Shriwardhan for treatment.


8.         PW 2 Kiran Kandekar was a villager. At about 11.30

p.m. on 3rd November 2021, Police Patil came to his house and

informed him about the incident. PW 2 and others went to the

spot. One Mrutunjay Govari was asked to bring his vehicle. PW 1

and PW 4 came to the spot. He informed them about the incident.

After that the injured was taken to the hospital.


           In the cross-examination, he accepted that there were
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other houses around the house of the Appellant. The house of the

Police Patil PW 8 was about 40 minutes away from the Appellant’s

house. When they went to the spot, the Appellant was standing

outside his hut and about 20 to 25 people were present there. He

himself had not seen the incident.


9.          PW 3 Mrutunjay Govari gave the deposition similar to

that of PW 2. He had taken his vehicle, and the injured was taken

to the hospital in his car.


10.         PW 5 Dinesh Girhane was a pancha for the spot

panchnama, which is produced on record at Exhibit 26. There is

hardly any dispute about the spot of incident. He was also a

pancha in whose presence the Appellant had made a statement

that he would show the place where he had kept the murder

weapon and the clothes. The memorandum statement and the

panchnama are produced on record at Exhibit 27 and 28,

respectively.


            The recovery was effected on 5th November 2021. The

murder weapon and the clothes were seized at the instance of the
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Appellant from his hut.


11.           PW 6 Dr. Diksha Sing had conducted the postmortem

examination. She found the following injuries :-


      1.    Penetrating stab wound of size 4X2 cm X 10 cm, 4cm
      below medial 1/3 of left clavicle, directed posteriorly, laterally,
      and superiorly toward left shoulder, age of injuries was 6 hours
      due to sharp weapon, puncturing upper lobe of left lung.
      2.    Penetrating stab wound of 4X1X14 cm, 1 cm medial to
      midpoint of medial border of scapula of right side, directed
      anteriorly puncturing lower lobe of right lung, within 6 hours
      cause due to sharp weapon.

      3.    Incised wound of size 4X1 cm X 2 cm muscle deep along
      the spine of left side scapula, 12 cm from acromion directed
      anteriorly within 6 hours cause by sharp weapon.
      4.    Incised wound of size 7X1X2 cm cutting the oral mucosa
      enferiorly, present 5 cm inferior to inferior left orbital rim and
      extending up to left commissure of lip, exposing teeth, within 6
      hours cause by sharp weapon. All injuries where antemortem
      one.


              In her opinion the cause of death was due to

“haemorrhagic shock due to multiple penetrating injuries using

sharp weapon”. The Postmortem Notes are produced on record at

Exhibit 35.


12.           PW   7    API   Sandip    Poman    had   conducted      the

investigation.     He   deposed   about     conducting    the    Inquest
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Panchnama, sending the dead body for postmortem examination,

conducting the Spot Panchnama, conducting the Recovery

Panchnama after arresting the Appellant, and recording the

statements of witnesses. He had filed the charge-sheet.


13.        The most important witness in this case is PW 8

Damodar Govari. He was the eye witness to the incident. He was

the Police Patil of Dighi village. He knew the Appellant and the

deceased. He deposed that on 3 rd November 2021, at about 11.30

p.m., he was sitting on the Ota of his house. At that time, the

Accused was shouting abuses. The Appellant’s house was at a

distance of 15 to 20 ft. from PW 8’s house. PW 8 went towards the

house of the Appellant. He saw the Appellant assaulting the

deceased with a knife. When PW 8 reached there, the Appellant

ran towards his hut. He saw Tukaram lying injured. He went to the

house of the Appellant and asked him as to why he had assaulted

Tukaram. At that time, the Appellant had told him that Tukaram

had complained to their employer Damodar Kandekar that the

Appellant had not cleaned chemical cans. The others put diesel in

those cans, which was used in the boat, and as a result, the boat
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stopped moving in the sea. The employer was thinking of

removing the Appellant from his job because of this reason. On

getting angry, the Appellant had assaulted the deceased. This is the

story narrated by the Appellant to PW 8. This is in the nature of an

extra-judicial confession. PW 8 immediately informed Dighi sagari

Police Station regarding the same. He then deposed as to how PW

1 and PW 4 were informed and as to how the injured was moved

to the hospital. His statement was recorded under Section 164 of

CrPC. There is hardly any effective cross-examination of this

witness.


           This, in short, is the evidence led by the prosecution.


14.         Mr. Anush Shetty, learned Counsel appearing for the

Appellant, at the outset submitted that he is not disputing the

incident and he is not disputing the evidence given by the eye

witness PW 8. His only contention is that the offence would not

fall within the definition of murder. It would be a lesser offence.

He submitted that the Appellant’s act would fall within Exception 4

to Section 300 of the IPC. He submitted that at the highest, the
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offence would be that of culpable homicide not amounting to

murder and the punishment to be attracted under Part II of Section

304 of IPC. He submitted that at the highest, only the requisite

knowledge under Part II of Section 304 of the IPC can be

attributed to the Appellant. In support of his contention, he

submitted that there is no reliable evidence to show that the

Appellant had threatened the deceased. PW 1’s evidence is not

supported by PW 4. Both of them were present in the same house.

Therefore, there is no previous quarrel or abuses attributed to the

Appellant. There were no previous threats issued by the Appellant.

The incident had occurred on the spur of the moment. The

deceased had gone to the house of the Appellant. Thus, the

deceased himself was the aggressor. Considering all these facts, it

is clear that it is not an offence of murder.


            He further submitted that the conviction be altered to

culpable homicide not amounting to murder and, accordingly, the

sentence also be reduced to 5 years. He submitted that the

Appellant is about 60 years of age and is in custody for about 5

years.
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15.        Ms. Gauri Rao, learned APP appearing for the

Respondent-State, on the other hand, submitted that the offence

would squarely fall within the meaning of murder as defined

under Section 300 of IPC. She submitted that the nature of the

weapon and the manner of assault would indicate that the

Appellant had intentionally and with premeditation assaulted the

deceased. She therefore submitted that it would be an offence of

murder and not culpable homicide not amounting to murder.


16.        We have considered these submissions. As rightly

submitted by the learned Counsel for the Appellant, the evidence

of PW 1 is not fully supported by the evidence of PW 4. Both of

them were sisters and were residing in the same house. Therefore,

the evidence of PW 1 that the Appellant came to their house and

shouted abuses and threats against the deceased is not supported

by PW 4. Even according to PW 1, at that time, the deceased

Tukaram was not in the house. That story is not corroborated by

PW 4, who has deposed that they went to sleep at 9.30 p.m. in the

night itself. There is no reference made by PW 4 to any such

threats or shouts uttered by the Appellant. The spot of the incident
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is not in dispute. The other two witnesses had not seen the

incident. Therefore, the only material evidence in this case is the

evidence of PW 8. From the evidence, it is quite clear that the

deceased had gone to the house of the Appellant. He had gone

there around midnight. The deceased had no reason to go to the

house of the Appellant and start a quarrel. This shows that the

incident had taken place as a result of sudden a quarrel on the

spur of the moment. It cannot be said that the Appellant had acted

with premeditation and preparation to commit this offence. PW 8

had only heard the shouts of the Appellant and had seen the

incident of assault. But he had not seen the incident from the

beginning. He was not aware of the genesis of the incident.

Exception 4 to Section 300 of IPC reads thus :-


     Exception 4 —

        “Culpable homicide is not murder if it is committed without
        premeditation in a sudden fight in the heat of passion upon a
        sudden quarrel and without the offender having taken undue
        advantage or acted in a cruel or unusual manner.”
     Explanation:
        “It is immaterial in such cases which party offers the
        provocation or commits the first assault.”
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17.         In this case, the evidence shows that the offence was

committed without premeditation in a sudden fight, upon a

sudden quarrel. The learned Judge has also considered this aspect

seriously, but he concluded that the Appellant had acted in a cruel

manner. To consider whether the Appellant had taken any undue

advantage or acted in a cruel or unusual manner, it is necessary to

consider the medical evidence. The evidence of PW 6 Dr. Diksha

Sing shows that, the deceased had suffered four injuries. Two

injuries proved to be vital. They had cut the lobes of the lung. Out

of them, one injury was on the back. There was one injury on the

upper left side of the chest. The blow was not directed towards the

heart. It was upwards cutting the lobe of lung on the upper side.

The injury on the back had similarly cut the lower lobe of the right

lung. There was one more injury on the face. Thus, it can be seen

that the Appellant had ample opportunity to give blows with the

knife on the chest, stomach, abdomen or other vital parts. One of

the blows was given on the back side. One blow, however, was

given on the upper part of the left chest. In this view of the matter,

we find force in the submissions of learned Counsel for the
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Appellant that the case would fall within Exception 4 to Section

300.


             However, we are unable to accept the submissions of

the learned Counsel for the Appellant that it could be an offence

punishable under Part II of Section 304. Looking at the depth of

the injuries, it cannot be said that, at the highest, the Appellant

can be attributed knowledge and not the intention. The very fact

that one of the blows was given on the upper part of the chest and

both the blows were quite deep makes it clear that, the Appellant

entertained the requisite intention in giving those blows.

Therefore, the offence will be more serious than the one under

Part II of Section 304. In our opinion, the offence would fall within

Part I of Section 304 of IPC. Section 304 of the IPC reads thus :-


304. Punishment for culpable homicide not amounting to murder. -
       Whoever commits culpable homicide not amounting to murder
       shall be punished with imprisonment for life, or imprisonment of
       either description for a term which may extend to ten years, and
       shall also be liable to fine, if the act by which the death is caused
       is done with the intention of causing death, or of causing such
       bodily injury as is likely to cause death,or with imprisonment of
       either description for a term which may extend to ten years, or
       with fine, or with both, if the act is done with the knowledge that
       it is likely to cause death, but without any intention to cause
       death, or to cause such bodily injury as is likely to cause death.
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              Hence, we are of the opinion that the Prosecution has

proved that the Appellant had committed the offence punishable

under Part I of Section 304 of the IPC. To that extent, the Order of

conviction is required to be altered. In this view of the matter, we

seriously considered as to what ought to be the quantum of

sentence. Having considered the entire circumstances and, in

particular, taking into account the fact that there were two deep

blows inflicted by the Appellant, rigorous imprisonment for 10

years would meet the ends of justice. Hence, the following Order :-


                                   ORDER


     (i)           The Appeal is partly allowed.


      (ii)         The Judgment and Order dated 21st June 2024

                   passed     by   the      Additional    Sessions   Judge,

                   Mangaon, Dist. Raigad, in Sessions Case No. 6 of

                   2022 is modified.


      (iii)        The conviction under Section 302 of IPC and

                   sentence for life imprisonment are set aside.

                   Instead,    the       Appellant   is    convicted      for
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              commission of offence punishable under Section

              304(I) of IPC and is sentenced to suffer rigorous

              imprisonment for 10 years.


    (iv)      The sentence of fine of Rs. 500/- remains

              unaltered. In default of payment of fine, the

              Appellant shall undergo rigorous imprisonment

              for 6 months.


    (v)       The Appellant is entitled for set off under Section

              428 of CrPC.


    (vi)      The Appeal is accordingly disposed of.


    (vii)     With the disposal of the Appeal, the connected

              Application is also disposed of.



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