Sunny@Santosh Dharmu Bhosale vs The State Of Maharashtra

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)

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

1 (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

2 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,

3 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

4 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

5 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,

6 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

7 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

8 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

9 (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

10 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

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.

..............................J (B.R. GAVAI)

...........................................J (K.V. VISWANATHAN) NEW DELHI;

NOVEMBER 20, 2024.

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