SUNNY @ SANTOSH DHARMU BHOSALEversusTHE STATE OF MAHARASHTRA

                [2024] 11 S.C.R. 1440 : 2024 INSC 878

                 Sunny @ Santosh Dharmu Bhosale
                                 v.
                     The State of Maharashtra
                    (Criminal Appeal No. 4664 of 2024)
                             20 November 2024
              [B.R. Gavai* and K.V. Viswanathan, JJ.]

                           Issue for Consideration
       Whether it was the appellant-accused who assaulted the
       victim-deceased due to which the death of the deceased has
       occurred; whether the conviction of the appellant under Section 302
       IPC, deserves to be altered to one under Part I of Section 304 IPC.

                                  Headnotes†
       Penal Code, 1860 – s.302 and s.304 Part-I – Prosecution
       case that PW-6 and her husband-victim went to the house of
       PW-5 – Appellant-accused came in front of the house of PW-5
       and started abusing PW-5 and his wife on account of a loan
       they had taken – Victim intervened – Appellant abused victim
       as well – Appellant left – Victim went behind the appellant –
       Sound of quarrel was heard – After rushing to the spot, appellant
       was seen assaulting victim with a bamboo stick – Injured victim
       was taken hospital, where he was declared dead – Trial Court
       Court convicted appellant u/s. 302 IPC – Appeal preferred by
       the appellant was dismissed by the High Court:
       Held: Taking into consideration the evidence of PW-5 and
       PW-6, there is no error in the finding of the trial court and the
       High Court that it is the present appellant who assaulted the
       victim-deceased due to which the death of the deceased
       has occurred – From the testimony of PW-6 itself, it will be
       clear that after a scuffle took place at the house of 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 PW-5 or from the evidence of 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 – From the evidence

* Author
[2024] 11 S.C.R.                                                        1441

    Sunny @ Santosh Dharmu Bhosale v. The State of Maharashtra


     of PW-6 itself, it is clear that the deceased had nothing to do
     with the incident – It was just that deceased had intervened
     when appellant was abusing PW-5 and his wife – 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 – The evidence of the
     eyewitnesses also does not show that the appellant had come
     with any weapon – On the contrary, the 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 –
     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 – In that view of the matter,
     the appellant is entitled to benefit of doubt – The conviction of
     the appellant u/s.302 IPC, therefore, deserves to be altered to
     one under Part I of s.304 IPC. [Paras 12, 15, 16, 17, 18, 19]

                               List of Acts
     Penal Code, 1860

                            List of Keywords
     Section 304 Part-I of Penal Code, 1860; Section 302 of Penal
     Code, 1860; Sudden fight; Heat of passion; Benefit of doubt.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     4664 of 2024
     From the Judgment and Order dated 05.08.2020 of the High Court
     of Judicature at Bombay in CRLA No. 927 of 2015

                        Appearances for Parties
     D.N. Goburdhun, Sr. Adv., Mrs. Anjani Aiyagari, Rohan Kochar,
     Jayanta Kumar Biswas, K. Sriram, Advs. for the Appellant.
     Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
     Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Advs. for the
     Respondent.
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                Judgment / Order of the Supreme Court

                                 Judgment

     B.R. Gavai, J.

1.   Leave granted.
2.   The present appeal arises out of the final judgment and order dated
     5th 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 negatived the
     challenge to the judgment and order dated 7th 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 (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.
     4.1 The prosecution story is that on 21st 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 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
[2024] 11 S.C.R.                                                     1443

    Sunny @ Santosh Dharmu Bhosale v. The State of Maharashtra


          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, District
         Satara, on the intervening night of 21st March 2014 and 22nd
         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 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.
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     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 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, 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
[2024] 11 S.C.R.                                                     1445

    Sunny @ Santosh Dharmu Bhosale v. The State of Maharashtra


     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 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 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
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     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 (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 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.
[2024] 11 S.C.R.                                                       1447

    Sunny @ Santosh Dharmu Bhosale v. The State of Maharashtra


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.
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 Court dated 4th 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.

     Result of the case: Appeal Partly allowed.



     †
         Headnotes prepared by: Ankit Gyan