Mahadeo @ Jijya Nathu Thorave vs The State Of Maharashtra
2022 Latest Caselaw 10765 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO. 936 OF 2015

Mahadeo @ Jijya Nathu Thorve,                           ]
Age - 32 years, Occ - Agriculturist,                    ]
R/o. Charholi Khurd, Taluka Khed,                       ]
District Pune.                                          ]
                                                        ]
At present lodged at Yerawada Central Prison,           ]          .....Appellant
District Pune.                                          ]        (Org.Accused No.1)

         Vs.

State of Maharashtra                                    ]        .....Respondent


Mr. Ganesh Bhujbal Appointed Advocate for Appellant.
Mr. S. S. Hulke APP, for Respondent-State.


                                             CORAM : A.S. GADKARI AND
                                                     MILIND N. JADHAV, JJ.

                                        RESERVED ON : 7th SEPTEMBER, 2022.
                                     PRONOUNCED ON : 17th OCTOBER, 2022.


JUDGMENT (PER A. S. GADKARI, J) :

1. Appellant (Org.A-1) has impugned Judgment and Order dated

3rd September, 2015 passed by the learned Additional Sessions Judge, Khed-

Rajgurunagar, District Pune, in Sessions Case No.337 of 2014, convicting

Appellant under Sections 302, 143, 147, 148 of the Indian Penal Code (for

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short "the I.P.C.") and is sentenced to suffer rigorous imprisonment for life

under Section 302 of the I.P.C. and for other prescribed sentence on other

counts and to pay a total fine of Rs.6,500/-.

2. Heard Mr. Bhujbal, learned Advocate appointed by the High

Court Legal Services Committee, Mumbai to represent Appellant and Mr.

Hulke, learned APP for State. Perused entire record.

3. Shorn of unnecessary details, the prosecution case in brief is

that :-

(i) The name of the deceased is Shankar S. Bhosale. The date and

time of the alleged incident was 24th February, 2014 at about 6.00 p.m..

Appellant and his family members (Org.A-2 to 6) were having

dispute on account of open space of land situated at village Charohli Khurd,

Taluka Khed, District Pune with the deceased Nathu Jijaba Thorave and his

family members. Appellant and deceased were neighbours. That, due to the

said dispute in respect of open space, Original Accused No.2 namely Sangita

R. Thorave used to abuse deceased.

(ii) Prior to two months of the incident, because of the harassment

at the hands of all Accused persons, Shantabai Bhosale (PW-4) i.e. wife of

Shankar Bhosale and Shankar Bhosale went to reside at their daughter's

place at Khed. On 24th February, 2014 at about 10.00 a.m. Shantabai Bhosale

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(PW-4) and her husband Shankar Bhosale had been to village Charholi. They

saw that, Appellant and his family members had cut down shrubs which

were grown in the disputed open space. Shankar Bhosale asked the

Appellant and his family members as to why they cut down the shrubs and

some bickering took place. On the same day i.e. on 24 th February, 2014 at

about 6.00 p.m. Shankar Bhosale was sitting at the door of his house. He

was uttering/prating some words, due to which Appellant and his family

members came on the road in front of the house of Shantabai

Bhosale (PW-4).

(iii) PW-4 heard shouts of her husband and therefore peeped from

the window of her house and saw that, all Accused persons were assaulting

her husband. She therefore came out of the house. She saw that, Appellant

was armed with a stick and was assaulting her husband with it. Other

Accused persons (Org.A-2 to 6) were assaulting her husband by fist and kick

blows. All the Accused persons were abusing and instigating each other to

kill her husband i.e. Shankar Bhosale. Shantabai Bhosale (PW-4) tried to

intervene in the quarrel. As Accused persons tried to nab Shantabai Bhosale

she rushed to Police Station, Aalandi. The Police did not take cognizance of

her grievance and therefore she returned to her home at about 7.30 p.m. to

8.00 p.m.. Her husband was at home.

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         (iv)    She therefore called Prashant P. Karale (PW-6) to her home.

Prashant P. Karale (PW-6) came to her house at about 8.30 p.m. by his four

wheeler vehicle. PW-4, PW-6 alongwith one other person took Shankar

Bhosale to YCM Hospital, Pimpri. Shankar Bhosale was admitted to the

hospital and was declared dead while undergoing treatment in the mid-night.

(v) Shantabai Bhosale (PW-4) lodged First Information Report (FIR)

(Exh-23). Appellant alongwith other Accused was arrested. Cloths of

Appellant were seized in presence of Satyawan K. Gawade (PW-1) by

effecting panchanama (Exh-24). The stick (Article-1) used by Appellant in

the present crime was recovered in the presence of panch witnesses Nitin D.

Gholap (PW-2) and Nandu P. Gholap (PW-3) by effecting panchanama (Exh-

30). The spot panchanama (Exh-36) was also effected in presence of PW-2

and PW-3. Bhaskar H. More (PW-8), the Investigating Officer conducted

inquest panchanama (Exh-35) and the body of Shankar Bhosale was sent for

post mortem.

(vi) Dr. Milind V. Sonawane (PW-7) conducted post mortem on the

dead body of Shankar Bhosale. He found seven external injuries and seven

internal injuries while conducting autopsy. The said external and

corresponding internal injuries are as follows :-

(a) Imprint stick contusion over mid back, over left side lateral

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aspect, over mid scapula, margins dark bluish, obliqly horizontal and size

was of 8 cm x 2 cm. Shape imprint stick, long rectangular, cause by hard

object like stick, age of injury was within 12 to 24 hours. Nature of injury

was grievous. Corresponding internal injury was left posterior Thorasic wall

shows, Sub-cutanneous tissue, Miscule layers shows huge haematoma, mid

scapula fracture, fracture 3rd rib to 7th rib along the intercostal regions, Left

side diaghram shows huge haematoma due to contusion, Haematoma and

fracture third rib posteriorly and adjacent Thorasic Vertebra shows Para-

vertebal fasic and muscle haematoma, right dome of diadhram also shows

huge haematoma due to constusion, posterior wall of left lung, lower part of

upper lobe and whole lower lobe shows huge haematoma, right lung shows

huge haematoma over posterior wall middle lobe, size 8 c.m. x 5 c.m. over

all both lungs oedematous and grievously injured.

(b) Imprint stick contusion with abrasion over mid back, just below

and adjacent to injury No.1, Horizontal, margins dark bluish and abrasion

shows pale brownish, over lower border of scapular region. Size 7 c.m. x 1.5

c.m. shape was imprint stick, long rectangular caused by hard object like

stick. Age of injury was within 12 to 24 hours. Nature was grievous.

Corresponding internal injury same as injury No.1 internally.

         (c)     Imprint stick contusion, over upper back, over left side of supra






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scapular region, below shoulder aspect, margins dark bluish, obliqly

horizontal. Size of injury was 3 c.m. x 1 c.m. Shape was rectangular (imprint

stick) caused by hard object like stick. Age of injury was within 12 to 24

hours. Nature of inquiry was grievous. Corresponding injury was sub-

cutaneous tissue, muscle coast shows huge haemoatoma, underneath Alecron

process of Scapula bone shows crack fracture Haemoatoma present over floor

of fracture region.

(d) Lacerated wound over right hand, over third finger (middle),

ventral aspect, vertical, over upper and lower digit, nail intact, margins dark

reddish. Size was 3 c.m. x 1.5 c.m. Shape was irregular caused by hard and

blunt object. Age of injury was within 12 to 24 hours. Nature of injury was

grievous. Corresponding internal injury was sub-cutaneous tissue, muscle

coat shows huge haematoma, underneath 2 nd digit shows fracture, floor dark

haematoma present.

(e) Imprint stick contusion, over left thigh over ventral aspect,

obligly-horizontal, 11 c.m. and knee and 29 c.m. below inquinal ligament,

covering ventral and medical aspect of thigh, margins dark bluish, central

part is pale. Size was 12 c.m. x 4 c.m. shape was imprint stick, long

rectangular, caused by Hard object like stick. Age of injury was within 12 to

24 hours, nature of injury as simple. Corresponding internal injury was sub-

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cutaneous tissue and superficial and deeper muscle coat shows huge extra

vasation with haemetoma, floor shows haematoma extending uptill Fermur

Bone, No fracture.

(f) Multiple abrasions over left foot, over knee joint and just below

it, dark brownish, 3 in numbers. Sizes were of (1) 2 c.m. x 1 c.m. (2) 1 c.m. x

.5 c.m., (3) 0.25 c.m. x 0.25 c.m., shape irregular caused by blunt

object/surface. Age of injury was within 12 to 24 hours. Nature was simple.

No gross corresponding internal injury was found.

(g) Contusion over right foot, over just below knee, horizontal, pale

bluish, associated with swelling and shortening of foot, on palpation shows

fracture upper end of Tibia. Size was 5 c.m. x 6 c.m.. shape was irregular,

caused by hard and blunt object. Age of injury was within 12 to 24 hours.

Nature of injury was grievous. Corresponding internal injury was Sub-

cutaneous tissue and all muscle layers shows extra-vasation with

haematoma, fracture upper end of Tibia well seen with lower fracture end

shows upward displacement, Haematoma also present around fracture end.

(vii) PW-7 opined that, the above mentioned injuries were ante-

mortem. Injuries Nos. 1 to 3 and corresponding injuries were sufficient to

cause death in ordinary course. He further opined that, cause of death was

traumatic shock due to bilateral ribs fracture due bilateral Thorasic injuries

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due to hard stick Trauma due to assault and the death of victim was possibly

homicidal.

(viii) After receipt of post mortem report and on conclusion of

investigation Bhaskar H. More (PW-8) submitted charge-sheet against six

Accused persons in the Court of Judicial Magistrate First Class, Khed, Taluka

Khed, District Pune. Learned Magistrate committed the case to the Court of

Sessions as contemplated under Section 209 of the Code of Criminal

Procedure (for short "the Cr.P.C." ).

(ix) The Trial Court framed charge below Exh-5, which was read

over and explained to the Accused persons in vernacular language to which

Accused persons pleaded not guilty and claimed to be tried.

The prosecution in support of its case examined in all eight

witnesses. The statements of Accused persons under Section 313 of the

Cr.P.C. were recorded by the Trial Court. Appellant in response to question

No.21 answered that, he would be filing written submissions. All the

Accused persons accordingly filed their common written submissions/

explanations (Exh-50). It was the defence of the Accused that, deceased

Shankar Bhosale, his wife Shantabai Bhosale (PW-4) and their son

Pandurang Bhosale had assaulted Nathu J. Thorve i.e. father of Appellant

with an axe and therefore Accused persons had lodged a crime with Aalandi

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Police Station which was culminated into Regular Criminal Case No. 141 of

2001, under Sections 325, 323, 504, 506(2) read with Section 34 of the I.P.C.

The deceased Shankar Bhosale, Shantabai Bhosale (PW-4) and their family

members were pressurizing Accused persons to withdraw the said case.

That, deceased Shankar Bhosale was addicted to liquor and used to smoke

'Ganja'. That, deceased Shankar Bhosale was also having dispute with many

other persons in the village. PW-4 and deceased Shankar Bhosale had

threatened Accused persons that, they would falsely implicate them in a false

crime if they do not withdraw the said case filed by them with Aalandi Police

Station. That, on 24th February, 2014 Shankar Bhosale (deceased) had

consumed liquor in large quantity and fell down on street and died due to

the said fall. However, with a view to falsely implicate Appellant and his

family members, present crime has been registered against them.

4. Learned Trial Court by its impugned Judgment and Order has

convicted Appellant under Section 302 of the I.P.C., however was pleased to

acquit original Accused Nos. 2 to 6 from all the charges levelled against

them.

5. The aforestated facts have been deciphered from the evidence of

said witnesses and repetition of the same hereinafter is avoided for the sake

of brevity.

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6. At the outset, it is to be noted here that, Satyawan K. Gawade

(PW-1), panch witness to the seizure of clothes of Accused persons

panchanama (Exh-25 and 26), Nitin D. Gholap (PW-2) and Nandu P. Gholap

(PW-3) panch witnesses to the spot panchanama and seizure of Chappal

panchamana (Exh-36) have been declared hostile by the prosecution.

Therefore, the evidence of eye witness Shantabai Bhosale (PW-4) i.e. wife of

deceased; Lata S. Bhosale (PW-5) neighbour and daughter-in-law of

deceased; Prashant P. Karale (PW-6); Dr. Milind V. Sonawane (PW-7), who

conducted autopsy on the dead body of Shankar Bhosale, is relevant for

deciding the present Appeal. PSI Bhaskar H. More (PW-8), the investigating

officer of the present crime has proved inquest panchanama (Exh-35); spot

of incident panchanama (Exh-36) and C.A. Reports (Exh-Nos.38, 40, 41, 42).

7. Shantabai Bhosale (PW-4) in her examination-in-chief has

admitted that, at about 6.00 p.m. on the said day her husband was sitting at

the door of her house and was uttering some words, due to which the

Accused persons came on the road in front of her house. She was inside her

house and heard shouting of her husband. She saw from window of their

house that, Accused persons were assaulting her husband. That, Appellant

was armed with a stick and was assaulting her husband with it. She tried to

intervene however all the Accused persons were saying to nab her and

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therefore she rushed to Police Station, Aalandi. Police did not take

cognizance of her complaint and therefore she returned to her home at about

7.30 p.m. to 8.00 p.m. That, her husband was at home. She thereafter

called Prashant P. Karale (PW-6) and from his four wheeler vehicle took her

husband to hospital. PW-4 has identified stick (Article-1) shown to her.

In her cross-examination she has admitted that, her husband

used to drink liquor and smoke 'Ganja'. That, on 5 th August, 2001 her

husband and her son Pandurang Bhosale had beaten Nathu J. Thorave i.e.

father of Appellant with an axe and they were facing criminal prosecution in

the Court at Khed. She has further admitted that, on the date of incident her

husband had consumed liquor. She has denied the suggestion that,

whenever her husband used to drink liquor, he fell on the earth under the

influence of it. That, after returning home from Police Station she offered

water to her husband and thereafter she found that, she should take her

husband immediately to Rural Hospital, Aalandi. A suggestion was given to

her that, as she and her husband were insisting original Accused No. 5

Rajendra Thorave and his father Nathu Thorave to depose in their favour in

the Court in respect of assault incident. That, as the Accused persons herein

did not accede to the request they have been falsely implicated in the present

crime.

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8. Lata S. Bhosale (PW-5) is the daughter-in-law of deceased and

was his neighbour. This witness resiled from her statement under Section

161 of the Cr.P.C. and therefore was declared hostile by prosecution. In her

cross-examination she has admitted that, Appellant used to bicker with

deceased Shankar Bhosale and his wife on account of open land dispute. She

has admitted that, on the date of incident Appellant was assaulting deceased

with a stick and other Accused persons were assaulting by fist and kick

blows.

9. Prashant P. Karale (PW-6) is also a panch witness to the recovery

of stick panchanama (Exh-30) at the instance of Appellant. He has admitted

that, on 24th February, 2014 at about 8.00 p.m. he received a phone call from

Shantabai Bhosale (PW-4) and at her request he took Shankar Bhosale to the

hospital from his car. That Shankar Bhosale was lying in the courtyard of the

house of Shantabai Bhosale (PW-4). He with the help of Avinash Patole and

Shantabai Bhosale (PW-4) took Shankar Bhosale to YCM Hospital, Pimpri.

10. The deposition in examination-in-chief of Dr. Milind V. Sonawane

(PW-7) has already been noted briefly in para No. 3 (vi) and (vii). Dr.

Sonawane (PW-7) in his cross-examination has admitted that, injuries Nos.1

to 3 and 5 may be possible due to multiple falls on cement road linner ridge

under influence of liquor. That, injury Nos. 4, 6 and 7 may be possible by fall

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on hard and blunt surface.

11. After carefully analyzing of evidence of witnesses, it clearly

appears to this Court that, Shankar Bhosale was addicted to liquor and

'Ganja'. That, on the date and time of incident he was uttering some words

due to which the Accused persons got enraged and they came on the road in

front of the house of Shankar Bhosale. It appears that, a sudden quarrel

ensued and the Appellant with a stick assaulted Shankar Bhosale in a sudden

fight in the heat of passion. It further appears that, Shankar Bhosale was

alive till Shantabai Bhosale (PW-4) came back from Police Station and

thereafter offered him water. The description of weapon used in the present

crime i.e. the stick as can be discerned from the recovery panchanama (Exh-

30) is 2 feet in length having 1½ inch diameter. There is no evidence on

record to indicate that, Appellant came at the scene of offence after doing

preparation to assault deceased with the said stick. It further appears from

record that, Appellant took stick from the bushes which was lying on the said

place and all of sudden assaulted deceased with it. The admission given by

PW-7 that injury Nos. 1 to 3 and 5 may be possible due to multiple fall on

cement road linear ridge under influence of liquor can not be lost sight of.

This admission has to be read in conjunction with the admission given by

PW-4 that, on the date of incident her husband had consumed liquor and at

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the time of the incident he was uttering some words due to which Accused

persons came on road and thereafter she saw assault on her husband by

them. A cumulative effect of the said admission would lead us to draw safe

inference that, the Appellant is entitled to claim Exception 4 of Section 300

of the I.P.C. and has committed an offence as contemplated under Section

304 (Part-II) and not under Section 302 of the I.P.C..

12. In view of the above, we are of the considered opinion that,

Appellant has committed an offence punishable under Section 304 (Part-II)

and not under Section 302 of the IPC.

13. Hence, the following Order :-

(i) The conviction of Appellant under Section 302, 143, 147,

148 of the I.P.C. is set aside and instead he is convicted

under Section 304 (Part-II) of the I.P.C. and sentenced to

suffer rigorous imprisonment for ten years and to pay a

total fine of Rs.10,000/-, in default of payment of fine

further suffer rigorous imprisonment for six months.

(ii) Appellant is entitled for set off for the period which he has

already undergone during the pendency of Trial and

present Appeal.

(iii) Appeal is partly allowed in the aforesaid terms.

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14. Before parting with the Judgment, we would like to place on

record a word of appreciation for the efforts put in by Mr. Ganesh Bhujbal,

learned Advocate appointed by the High Court Legal Services Committee,

Mumbai for espousing the cause of Appellants as he was thoroughly prepared

in the matter and rendered proper assistance to the Court.

 [MILIND N. JADHAV, J.]                                [A.S. GADKARI, J.]