The State Of Maharashtra vs Sushil Tanaji Thite
2023 Latest Caselaw 7133 Bom

2023:BHC-AS:19815-DB

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION
                                         CRIMINAL APPEAL NO. 976 OF 2014
                 Sushil Tanaji Thite                                      ]
                 Aged about 38 years, Residing at Room No. 12,            ]
                 Rama Jeeva Chawl, Near Saibaba Mandir, Match             ]
                 Factory Lane, Kurla (West), Mumbai -400 070              ]
                 At present undergoing the sentence imposed               ]
                 upon him at Mumbai Central Prison, Mumbai                ]     .. Appellant
                             V/s.
                 1. State of Maharashtra                                  ]
                   (at the instance of Senior Inspector of Police,        ]
                   Kurla Police Station vide C.R.No. 133 of 2013)         ]
                 2. Lalprasad Gangaram Gupta                              ]
                   Aged about 44 years, Residing at Room No.18,           ]
                   Kanji Chawl, Match Factory lane, Kurla (West),         ]
                   Mumbai - 400 070                                       ]     .. Respondents
                                                     WITH
                                         CRIMINAL APPEAL NO. 770 OF 2015
                 State of Maharashtra                               ]
                 (Through : Kurla Police Station, Mumbai)           ] .. Appellant
                            V/s.
                 Sushil Tanaji Thite                                ]
                 R/at : Rama Jeeva Chawl, Room No. 12,              ]
                 Near Saibaba Mandir, Match Factory Lane,           ]
                 Kurla (West), Mumbai - 70                          ] .. Respondent
                                                  ......
                 • Mr. Nitin Sejpal a/w. Mrs. Pooja N. Sejpal, Ms. Akshata Desai,
                     Mr. Siddharth Gharat for Appellant in Cri. Appeal No. 976/2014
                     and for Respondent No.1 in Cri.Appeal No. 770/2015.
                 •     Mrs. M. M. Deshmukh, APP for Respondent-State in Cri. Appeal
                       No. 976/2014 and for Appellant-State in Cri. Appeal No.
                       770/2015.               ......
                                                    CORAM : A. S. GADKARI AND
                                                            SHIVKUMAR DIGE, JJ.

RESERVED ON : 4th July 2023 PRONOUNCED ON : 18th July 2023

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JUDGMENT (Per : Shivkumar Dige, J.) :-

1. The challenge in this Appeal by accused - Appellant is

to the Judgment and Order passed by the learned Sessions Judge,

Greater Mumbai in Sessions Case No. 749 of 2013. The State

Government has also filed Appeal against the acquittal of Appellant

under Section 302 of IPC. As both these Appeals are against same

Judgment and Order, we have decided these Appeals by this

common Judgment.

2. The Appellant is convicted for an offence punishable

under Section 304(I) of the Indian Penal Code, 1860 (for short

"IPC") and is sentenced to suffer imprisonment for life. Fine is

imposed upon him of Rs.20,000/-, in default of payment of fine to

suffer rigorous imprisonment for six months.

The Appellant is acquitted for the offence under Section

302 of IPC and under Section 37(1)(a) punishable under Section

135 of the Bombay Police Act.

3. It is the prosecution's case that, on 13.05.2013 at about

10:30 p.m. PW-1 Mr. Mahesh Yadav was chitchatting with his friend

Shri. Sunil Gupta (deceased) outside his house. After chitchatting

for some time, Sunil went to his house for dinner. When he was

returning to his house, on road he met Shri. Sushil Thite, the

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Appellant. The Appellant told PW-1 Mr. Mahesh that, his mobile was

stolen. The Appellant made enquiry with PW-1 Mr. Mahesh where

was the house of the boy who was wearing spectacles, with whom

he was chitchatting. The Appellant alleged that, the said boy had

stolen his mobile. PW-1 Mr. Mahesh told him that, he did not know

anything about said boy.

4. Thereafter, Appellant took PW-1 Mr. Mahesh to the

chawl of Prabhakar Mitra Mandal and insisted on him to give name

and address of the boy, who was wearing spectacles. PW-1 Mr.

Mahesh made a phone call to the said boy and asked whether he

had taken mobile of the Appellant. The said boy replied that, he

had not taken mobile of the Appellant. He further said that, he will

come there within five minutes. Sunil (deceased) arrived there

within five minutes, a quarrel started between the Appellant and

Sunil over stealing of Appellant's mobile. The Appellant alleged that,

Sunil had taken away his mobile, when he was consuming liquor

sitting in chair outside the library of Prabhat Mitra Mandal. The

Appellant pushed Sunil, Sunil questioned Appellant why he pushed

him and he has not taken his mobile. Appellant threatened him

saying "eS rsjsdks fdKata hMu^ maoOM @yaa krta hu^" and left from the said spot.

Appellant returned after five minutes, at that time he was holding

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knife in his hand. The Appellant threatened Sunil with knife, he

gave push to the Appellant and ran away towards the Gupta Terrace.

The Appellant followed him. Sunil hid behind an auto-rickshaw,

stationed outside the Gupta Terrace. Appellant reached there. At

that time, father and brother of the Appellant reached at the said

spot. The father of Appellant tried to hold the hand of the

Appellant, but he rescued himself and gave blow of knife on the left

side, of the chest of the Sunil and threatened everyone with the

knife in his hand and ran away from the spot. PW-1 Mr. Mahesh

with the help of others took the injured Sunil to Bhabha Hospital.

After examining, Doctor declared him dead before admission.

Pursuant to the complaint lodged by PW-1 Mr. Mahesh, an offence

was registered with Kurla Police Station, against the Appellant under

Section 302 of IPC and under Section 37(1)(a) read with Section

135 of Bombay Police Act.

5. During the course of investigation, the Appellant was

arrested. The clothes of the Appellant stained with blood and knife

used in offence were seized in the presence of panchas by seizure

panchanama. The police recorded the statements of witnesses. After

completing investigation, charge-sheet was filed against the

Appellant. The case was committed to the Sessions Court, Mumbai.

Charge was framed against the Appellant, he denied the charges and

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claimed to be tried. Statement under Section 313 of Criminal

Procedure Code, 1973(for short "Cr.P.C.") was recorded. The defence

of the Appellant is of total denial. Considering the evidence

produced on record and submissions of both the learned Counsels,

the Sessions Court convicted the Appellant as mentioned above.

6. It is contention of learned Counsel for the Appellant

that, Appellant has been falsely involved in this case. He was not

present at the time of incident, but this fact is not considered by the

Trial Court. In alternative it is contention of the learned Counsel

that, the crime was committed at the spur of moment. There was no

preparation of the said crime. Only one blow was given by the

Appellant which shows that, he had no intention to kill the

deceased. There was no rivalry between the deceased and Appellant.

The trial Court has given sentence of life imprisonment under

Section 304(I) of IPC, which is on very higher side, it should be

reduced to 10 years or the sentence undergone by the Appellant.

7. It is contention of learned APP that, there was intention

of the Appellant to kill the deceased, as after the quarrel Appellant

went to his house and brought the knife, which was hidden by him.

He assaulted the deceased with knife on his chest i.e. on vital part of

the body, which shows that, he had knowledge about the impact of

assault. Learned APP further submitted that, after the assault, it has

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come in the evidence of the witnesses that, Appellant did not allow

other persons to come near to the deceased to help him. The

Appellant prevented other persons from helping to deceased. It

shows his cruelty. The Trial Court has not considered this fact and

has convicted the Appellant under Section 304(I) of the IPC, it

should be under 302 of IPC hence requested to allow the Appeal

filed by the State Government and dismiss the Appeal filed by the

Appellant.

8. We have heard the submissions of both the learned

Counsels, perused the Judgment and Order passed by the Trial

Court. To prove its case, the prosecution has examined 12 witnesses.

The prosecution's case is based on direct evidence. There is no

dispute about homicidal death of the deceased as it has been caused

due to knife injury inflicted by the Appellant.

9. PW-7 Dr. Sanjay D. Wathore at Exhibit-28 states that, he

conducted postmortem of the dead body of the deceased and he

found external and internal injuries in the dead body of the

deceased. The said injuries were ante-mortem. He opined that, Sunil

died due to Haematoma due to stab injury on the left side of the

chest. He further stated that, the said injuries were possible by the

knife (Article-1). Considering the evidence of this witnesses as well

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as Appellant has not disputed the homicidal death of Sunil, it proves

that, the death of Sunil was homicidal.

10. The incident was witnessed by PW-1 Shri Mahesh

Yadav. The information about the incident was given to the Police by

him. This witness at Exhibit-12 states that, on 13.05.2013, at about

10:30 p.m. he was chitchatting with his friend Shri. Sunil Gupta

(deceased) outside his house. After chitchatting for some time,

Sunil went to his house for dinner. This witness was returning to his

house, on road he met Shri. Sushil Thite, the Appellant. The

Appellant told him that, his mobile was stolen away. He asked, this

witness where was the house of the boy who was wearing spectacle,

he had stolen his mobile. This witness contacted said boy and asked

him whether he had taken mobile of the Appellant. The said boy

replied in negative and said he will come there within five minutes.

Sunil (deceased) arrived there within five minutes. Then quarrel

started between the deceased Sunil and the Appellant on account of

the mobile. The Appellant alleged that, when he was drinking

liquor sitting on the chair in front of the library of Prabhat Mitra

Mandal, the Sunil took away his mobile. The Appellant then pushed

Sunil. Sunil asked the Appellant why he pushed him when he had

not taken his mobile. Thereafter, the Appellant again pushed Sunil

and further threatened him, that "mai tere ko dikhata hu mai kya

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karta hu" and left. After five minutes Appellant came there with his

right hand behind his back. The Appellant caught hold the collar of

Sunil and started abusing him. The Appellant was holding a knife

with the blade of six inch and handle of green colour. He started

threatening Sunil by showing that knife. Sunil pushed him and ran

towards Gupta Terrace. The Appellant ran behind him, deceased

Sunil concealed himself behind an stationed auto-rickshaw near

Gupta Terrace. The Appellant was searching for him. Sunil then

started coming towards this witness from the opposite direction of

the auto-rickshaw. The Appellant followed him with knife. The

father and brother of the Appellant came there. The Appellant

abused Sunil. He was brandishing the knife. One Mayur Jadhav,

Siddheshwar Shinde and Raju Anna came there, but nobody dared

to intervene due to the fear of the Appellant who was holding the

knife. The father of the Appellant tried to hold his hand, however

Appellant rescued his hand and assaulted Sunil with knife on the left

side of his chest. Sunil shouted and called this witness. This

witness caught hold of Sunil, at that time Appellant was threatening

everyone with the knife. Thereafter, Appellant ran away from the

spot. This witness further stated that, Mangesh Nanekar and he

took Sunil in auto-rickshaw of Raju Anna to Bhabha Hospital.

 Doctor examined Sunil and declared him dead.                       This witness






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 informed the police about the incident.          On his report, police

registered F.I.R. (Exhibit- 13). In cross examination, this witness

admitted that, incident of assault by knife took all of a sudden.

Nothing elicited in cross examination of this witness to disbelieve his

version about assault by Appellant with knife on the chest of the

deceased. The evidence of this witness is corroborated by the

evidence of the eye witnesses, i.e. PW-2 Mr. Ashok Pawar (Exhibit-

14), PW-4 Mr. Mayur Jadhav (Exhibit-21), PW-5 Mr. Siddheswar

Shinde (Exhibit-24). PW-4 and PW-5 were present at the time of

incident. They have stated that, Appellant assaulted Sunil with

knife. They have seen it. Whereas PW-2 had come to the spot of

incident after assault by Appellant. From the evidence of these

witnesses it reveals that, on the day of incident, Appellant stabbed

with knife in the left side of chest of Sunil. Nothing is elicited in the

cross examination of these witnesses to disbelieve their evidence.

The clothes of the Appellant were stained with blood. It was seized

in the presence of Panchas, PW-9 Mr. Rishikesh Jagtap at Exhibit-40

has stated that, Police seized clothes of Appellant and knife, having

blood stains on its blade, from possession of the Appellant in his

presence. The panchanama was prepared, it is at Exhibit-41. PW-11

Mr. Devram Burud at Exhibit-47 has stated that, on the day of

incident he was attached to Kurla Police Station as a Police Sub-

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 Inspector.         After receiving information of incident, this witness

 registered crime under Section 302 of I.P.C.                     Police constables

brought the Appellant to the police station at about 2:10 clock at

mid night. The Appellant was holding blood smeared knife in his

hand. This witness called two panchas and seized clothes of

Appellant and knife in their presence and prepared panchanama it is

at Exhibit-41. The knife is at Article-1. In cross examination this

witness admitted that, he did not record the statements of police

constables who brought the Appellant to police station.

11. From the evidence of these witnesses as well as eye

witnesses, it proves that, Appellant assaulted Sunil with knife on his

chest, due to said assault, Sunil died. It is the contention of learned

Advocate for Appellant that, the sentence imposed by the Trial Court

is on higher side, whereas it is the contention of learned APP that,

the act of the Appellant falls under Section 302 of IPC.

The Hon'ble Apex Court in the case of Rampal Singh

Vs. State of Uttar Pradesh 1 has observed that:

"20. In order to hold whether an offence would fall under Section 302, or Section 304 Part I IPC, the courts have to be extremely cautious in examining whether the same falls under Section 300 IPC which states whether a culpable homicide is murder, or would it fall under its five Exceptions which lay down when culpable homicide is not murder...."

 1     (2012) 8 SCC 289






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In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five Exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that "amounting to murder" as well as that "not amounting to murder" in a composite manner in Section 300 of the Code.

21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really 'murder', but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009.)

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22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the Exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.

29. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the appellant. The deceased had thrown the appellant on the ground. They were separated by Amar Singh and Ram Saran. She also admits that her husband had told the appellant that he could shoot at him if he had the courage. It was upon this provocation that the appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death.

31. This evidence, examined in its entirety, shows that without any premeditation, the appellant committed the offence. The same, however, was done with the intent to cause a bodily injury which could result in the death of the deceased."

In above case, the Hon'ble Apex Court has altered the

offence under Section 302 of IPC under which, the Appellant was

held guilty, to offence under Section 304(Part-I) of IPC.

In the present case, in the background of facts projected

by the prosecution clearly shows that, blow of knife was given in the

course of sudden quarrel. There was no premeditation. Only one

blow was given. Appellant did not act in cruel manner. In the

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essence Section 302 of IPC has no application and fourth exception

of Section 300 of IPC applies. It reads:

"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."

The help of exception 4 can be invoked if death is

caused :

          (a)      Without premeditation

          (b)      In a sudden fight

           (c)     Without the offender having taken undue advantage or

 acted in a cruel manner.

To bring this exception, all the ingredients mentioned

above must be found. The word 'fight' is not defined in IPC. It is

not possible to enunciate any general rule as to what shall be

deemed to be a sudden quarrel. It is a question of fact and whether

a quarrel is sudden or not must necessarily depend upon the proven

facts. In the present case, it has come on record that, the incident

happened in sudden quarrel. There was no previous rivalry. The

incident happened in period of half an hour, there was no

premeditation. It has come in evidence of PW-5 an eye witness that,

the knife used by Appellant to assault the deceased was kitchen

knife (Article-1). It is the contention of learned APP that, as the

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Appellant has acted in cruel manner, the Appellant prevented the

first informant and others from helping the deceased. It appears

from record that, after assault on deceased, PW-1, Shri. Mahesh

caught hold of him and with the help of other persons he carried the

deceased in hospital. It is not proved that, the Appellant has acted

in cruel manner. From the evidence on record it proves that, act of

Appellant does not fall under Section 302 of I.P.C. It is the

contention of learned Counsel for Appellant that, punishment

awarded by the Trial Court is on higher side.

The punishment for 304 (Part-I) of IPC is imprisonment

for life or imprisonment of either description for a term which may

extend to ten years and fine. While awarding the sentence of life

imprisonment, the Trial Court has observed that, the Appellant has

killed the boy aged about 18 years on account of petty ground

without bothering about the serious effects on his parents and other

family members. From the previous record of the Appellant, it

seems that, he tends to commit the acts of violence for his greed.

The evidence clearly shows that, the Appellant indulged in

threatening persons with knife and extracting money from them.

The Trial Court further observed that, such a person does not

deserve any leniency. Considering the facts and circumstances of the

case, the Trial Court has imposed maximum punishment prescribed

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for the offence under Section 304(Part-I) i.e. imprisonment for life.

In our view, the Trial Court has swayed away in the emotions and

oral evidence of witness regarding background of the Appellant but

no evidence is produced on record to prove that, Appellant had

criminal antecedents and any offences were registered against him.

Mere statements of witness is not sufficient to prove that, the

Appellant was a person who extracted money from the people in

that, area on the point of knife unless some evidence is produced on

record if any crime was registered against Appellant about said

crime. Prosecution has not produced any evidence in that regard.

The Appellant is of 32 years age. It has been proved that, the

offence happened in sudden quarrel without premeditation and in

the span of half an hour. In our view, the sentence imposed by the

Trial Court is on higher side.

12. In view of the above, the following Order:-

ORDER

(i) Appeal is partly allowed.

(ii) The sentence imposed upon the Appellant for

the offence under Section 304(I) is

altered/modified to ten years of rigorous

imprisonment. Appellant is also directed to

pay fine of Rs.20,000/- in default of payment

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of fine to suffer further rigorous imprisonment

for one year.

(iii) Appeal No. 770 of 2015 filed by the State is

dismissed.

(iv) Appellant shall be released on completion of

sentence as directed unless required in any

other case/cases.

13. In view of the disposal of the Criminal Appeals, Interim

Application No. 4052 of 2022 will not survive and same is also

disposed off.

          (SHIVKUMAR DIGE, J.)                        (A.S. GADKARI, J.)