Bombay High Court

Rahul @ Uddal Jagatbali Sing vs State Of Maharashtra on 23 June, 2025

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2025:BHC-AS:25910-DB



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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION

                                                  CRIMINAL APPEAL NO.39 OF 2023

                                                                     WITH

                                              INTERIM APPLICATION NO.872 OF 2020

                            Rahul @ Uddal Jagatbali Sing                              .... Appellant

                                            versus

                            The State of Maharashtra                                  .... Respondent
                                                                     .......

                            •     Mr. Amit Icham a/w Mr. Chaitanya Purankar, Advocate for
                                  Appellant.
                            •     Ms. Geeta P. Mulekar, APP for the State/Respondent.

                                                         CORAM       : SARANG V. KOTWAL &
                                                                       MANJUSHA DESHPANDE, JJ.
                                                         DATE        : 23rd JUNE, 2025

                            JUDGMENT :

(PER : SARANG V. KOTWAL, J.)

1. The Appellant has challenged the Judgment and Order

dated 02/12/2019 passed by the Additional Sessions Judge,

Pune, in Sessions Case No.206 of 2016. The learned Judge

convicted the Appellant for commission of the offence

Digitally signed by MANUSHREE punishable u/s 302 of the Indian Penal Code and sentenced him MANUSHREE NESARIKAR NESARIKAR Date:

2025.06.30 15:40:39 +0530 to suffer imprisonment for life and to pay a fine of Rs.2,000/-

Nesarikar

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and in default of payment of fine to suffer rigorous

imprisonment for three months. The Appellant was granted set

off for the period undergone as an undertrial prisoner.

2. Heard Mr. Amit Icham, learned counsel for the

Appellant and Ms. Geeta P. Mulekar, learned APP for the State.

3. The prosecution case is that the deceased Avinash @

Shiva Jadhav was a painter, who used to give jobs to others.

According to the prosecution case, the deceased had not paid

dues of Rs.200/- of the Appellant's uncle and therefore there

was a quarrel between the deceased and the Appellant on

19/04/2015 in the late evening. The quarrel was escalated to a

scuffle. It is alleged that the Appellant picked up a piece of floor

tile and gave a blow on Avinash's head causing serious injury.

The incident was seen by P.W.2 Aslam Saiyyad and P.W.3 Hasam

Shaikh. Somebody from the crowd informed the police, who

came on the spot. Avinash was taken to the hospital, but he

succumbed to his injuries. Avinash's wife lodged her FIR. The

investigation was conducted. The Spot Panchanama was

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conducted. The Appellant was arrested on 20/04/2015. At his

instance, a piece of tile was recovered from the spot. It was kept

behind the electricity meter in the area.

4. The Appellant's clothes were seized. The clothes of the

deceased and other articles along with Appellant's clothes were

sent for chemical analysis. The statement of witnesses were

recorded and after the investigation was over, the charge-sheet

was filed.

5. During trial, the prosecution examined 8 witnesses

including the eyewitnesses, another Doctor whose clinic was in

the vicinity, the Medical Officer who had conducted the post-

mortem examination, Panchas and the Investigating Officer.

Avinash's wife was not traceable and therefore she could not be

examined.

6. The defence of the Appellant is reflected in his answer

given in the examination u/s 313 of the Cr.P.C. According to him,

the eyewitness Hasam and Aslam were Estate Agents. They had

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good relations with the police. They had assured to pay Rs.30

lakhs and give one room to the Appellant, but they did not want

to fulfil their promise and therefore they deposed against the

Appellant. He claimed that he was not knowing Avinash.

7. Learned Trial Judge relied on the evidence of the

eyewitnesses and recovery of the tile and recorded the finding of

guilt.

8. The main witnesses are the two eyewitnesses. P.W.2

Aslam has deposed that he had a scrap business at Kakde Vasti.

On 19/04/2015, he and his friend Hasam Shaikh (P.W.3) had

attended one birthday function at their friend's house. They

were returning home on a two wheeler. They reached the area in

front of Sai Clinic at 09.30 p.m., they saw that the Appellant was

assaulting the deceased Avinash, who was known as Shiva, by

means of fist blows. P.W.2 questioned the Appellant as to why he

was beating Shiva @ Avinash. The Appellant told him that Shiva

@ Avinash was not paying the amount of Rs.200/- of his uncle.

For a while the Appellant stopped beating him. P.W.2 and P.W.3

parked their vehicle. In the meantime, the Appellant again

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started beating Avinash. P.W.2 further deposed that the Appellant

banged Avinash's head on a wall, due to which Avinash fell

down on the ground. The Appellant then fled away from the

spot. Avinash had sustained bleeding injury on his head. A

crowd had gathered there. Somebody informed the police. The

police came at the spot. Avinash was taken to the Hospital, but

he succumbed to his injuries. P.W.2 identified the Appellant in

the Court.

In the cross-examination, he denied that the Appellant

and Avinash were under the influence of liquor and they were

not able to stand properly. He admitted that the place where the

incident took place was a stony surface. He was at the spot for

about 15 to 20 minutes. After that he returned home. P.W.3

Hasam came with him to his house. He admits that Hasam came

after some time and then Hasam returned back to his house.

More importantly, P.W.2 has admitted that he had seen the

Appellant pushing the deceased, but he did not know whether

he banged Avinash on the wall or not. This is an important

admission.

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9. P.W.3 Hasam Shaikh is another important witness. He

had also seen the incident. He has deposed that he and P.W.2

Aslam were returning back after attending a birthday function at

around 09.30 p.m. The spot of incident was about 40 ft from his

house. He had seen a crowd. The Appellant was assaulting Shiva

@ Avinash with fist blows. Both of them were under the

influence of liquor. P.W.2 and P.W.3 rescued Shiva @ Avinash

from the Appellant. P.W.2 and P.W.3 parked their vehicle. P.W.3

has further deposed that the Appellant again started beating

Shiva @ Avinash. P.W.3 had seen the piece of floor in the hand of

the Appellant. Shiva @ Avinash fell down on the ground and

sustained bleeding injury on his head. The Appellant assaulted

Shiva with that piece of floor tile. The police came at the spot

and took Shiva @ Avinash to the hospital. The Appellant had

fled away. P.W.3 identified the Appellant before the Court.

In the cross-examination, he admitted that there were

pieces of stones and floor on the spot. His house was situated at

40 ft distance from the spot. He denied that there was no

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electricity. He further deposed that when he returned home, at

that time, P.W.2 was not with him. He did not know where P.W.2

Aslam went after the incident. Apart from that, there was no

further cross-examination.

10. P.W.4 Dr. Ujwala Sable, is also an important witness.

She had her clinic in the vicinity. On 19/04/2015, at about

08.30 p.m., she heard a noise of quarrel and abuse. After 5 to 10

minutes, the Appellant came to her clinic. He was under the

influence of liquor. The person shouting was none other than the

present Appellant. P.W.4 knew him as he had done some painting

work in her flat. When P.W.4 was in the clinic, she had heard the

Appellant's shouts loudly and calling her outside to see whether

the person who was lying on the ground was dead or alive. P.W.4

closed her clinic after 15 minutes and came out. She saw one

person lying on the ground. At that time, that person was

conscious. He had lifted his neck. But P.W.4 left from there. On

the next day, she learnt that the said person had died. There is

hardly any significant cross-examination of this witness. She

admitted that she had not personally seen the incident. The

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Appellant was her regular patient and she was knowing him.

When the Appellant had come to her clinic, at that time, he was

in a good condition.

11. P.W.5 Dr. Ajay Taware had conducted the post-mortem

examination and he had found the following injuries -

1. Lacerated wound present over left eyebrow, of size 1 cm. X 1 cm. muscle deep, irregular, red.

2. Contusion present surrounding injury No.1, of size 6 X 4 cm irregular, reddish, blue.

3. Abrasion present over forehead on right side of size 1 cm. X 1 cm., irregular, red.

4. Abrasion present over left cheek of size 3 cm. X 1 cm., irregular, red.

5. Abrasion present over left clavicular region of size 3 cm. X 2 cm., irregular, red.

6. Abrasion present over dorsum of left hand of size 2 cm. X 1 cm., irregular, red.

12. On internal examination, she found the following

injuries -

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1. Under scalp hematoma present all over, red.

2. Skull vault : Depressed communicated fracture over left parietal region of size 6 x 4 cm., with fracture line running to right parietal region for for length of 12 cm margins irregular, red.

3. Skull Base : Left middle cranial fossa fracture, irregular, red.

4. Dara : Intact, no injury, pale, Subarachnol hemorrhage present all over red.

5. Brain : Oedematous, pale.

The cause of death was 'Traumatic and haemorrhagic

shock due to multiple injuries'.

13. P.W.5 admitted that the injuries mentioned in the post-

mortem report were possible by inflicting a blow by means of

piece of floor. He denied the suggestion that the injuries were

possible if someone fell on a wall under the influence of liquor.

14. P.W.1 Pralhad Mane, was the Pancha for Spot

Panchanama. The Spot Panchanama is produced on record at

Ex.28. The blood stained earth sample and one shoe and one

leather wallet of the deceased were seized on the spot.

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15. P.W.6 Aslam shaikh was a Pancha for the seizure of the

clothes of the deceased.

16. P.W.7 Nilesh Sharma was a Pancha in whose presence

pursuant to the statement made by the Appellant, a piece of tile

was recovered. The Panchanama is produced on record at Ex.47.

However, P.W.7 was declared hostile as he did not support the

prosecution case. The Investigating Officer P.I. Bagwan then

deposed about this recovery Panchanama, wherein it is

mentioned that it was conducted on 19/04/2015 and the piece

of floor tile was recovered from behind electricity supply box. It

was 6.5 x 4 cm. There were blood stains on the same.

17. P.W.8 PI Anjum Bagwan had conducted the

investigation. He had conducted the Spot Panchanama. The wife

of the deceased had lodged the FIR. It is produced on record at

Ex.54. He deposed that the wife of the deceased Asha was not

traceable. He had arrested the Appellant and had seized the

blood stained clothes. The Panchanama of the seizure and arrest

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is produced on record at Ex.57. Nothing much was elicited from

his cross-examination.

18. The C.A. reports show that there was blood on the

clothes of the Appellant, but the blood group was inconclusive.

The earth found on the clothes of the Appellant tallied with the

earth found on the clothes of the deceased.

This in short is the evidence led by the prosecution.

19. Learned counsel for the Appellant submitted that there

is material discrepancy in the evidence of the eyewitness. Both

of them have deposed inconsistently about the assault. P.W.2 had

deposed that the Appellant had banged the head of the deceased

on the wall. In the cross-examination he admitted that he had

seen the Appellant pushing the deceased but he did not know

whether the Appellant had banged his head on the wall. He

submitted that this is an important discrepancy in the evidence

of P.W.2 himself. In addition, the P.W.3 has given a different

narration about the assault. He has deposed that Shiva @

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Avinash fell on the ground and sustained bleeding injury to his

head. Then the Appellant assaulted Shiva by means of a piece of

tile. He further submitted that there is no connected piece of

evidence so far as the recovery of the weapon and the clothes

are concerned. The Pancha for recovery had turned hostile. The

Pancha for Arrest Panchanama is not examined and therefore it

is not safe to rely on the these recoveries from the Appellant. He

further submitted that the evidence of P.W.4 in fact shows that

the Appellant had sought medical help for the deceased.

Therefore, he could not have committed the offence

intentionally. There is inconsistent evidence of P.W.2 and P.W.3 as

to where they had gone after the incident because P.W.2 had

deposed that P.W.3 had come to his house, but P.W.3 denies that

fact. He further submitted that in any case the offence would not

fall within the meaning of section 302 of the Indian Penal Code,

but it would be a much lesser offence; at the highest it could be

an offence u/s 304(I) of the Indian Penal Code. He submitted

that the Appellant is in custody for more than 10 years i.e. from

20/04/2015 and his conviction and sentence is not sustainable.

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20. Learned APP on the other hand, relied on the evidence

of P.W.2 and P.W.3. She submitted that apart from minor

discrepancies, the fact of the quarrel and then the deceased

suffering the injuries is consistently deposed by both these

witnesses and therefore the Appellant cannot derive any benefit

from the minor discrepancies. She submitted that even P.W.4's

evidence shows that the Appellant was very much present at the

spot. There are corroborative pieces of evidence in the form of

recovery of tile with which the offence was committed. The

clothes of the Appellant shows presence of the same earth which

is found on the spot and also on the clothes of the deceased. She

submitted that looking at the nature of the injuries and the

weapon used, the offence would still be punishable u/s 302 of

the IPC.

21. We have considered these submissions. Undoubtedly,

there are discrepancies between the evidence of P.W.2 and P.W.3.

But they are definitely consistent on the main aspects. The first

one is when they reached the spot, the quarrel was going on

between the deceased and the Appellant. Both of them

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intervened in the quarrel. After that, the main incident of assault

took place. P.W.2 at one place has deposed that the Appellant

banged the head of the deceased on the wall, causing the

deceased to fall down on the ground. In the cross-examination

however, he has deposed that he had seen the Appellant pushing

the deceased, but he did not know whether he banged the head

of the deceased on the wall or not. Therefore, to that extent, the

evidence of P.W.2 regarding the actual assault varies in his

examination-in-chief and cross-examination. However, P.W.3 is

more specific about the actual assault. He has deposed that in

the second part of the incident, he had seen a piece of floor tile

in the hand of the Appellant. The deceased fell down on the

ground and sustained bleeding injury. The Appellant assaulted

Shiva @ Avinash by a piece of the floor tile. This part of the

deposition has remained unchallenged and in the cross-

examination there is nothing brought out on record to enable

the Court to disbelieve this main part of the description

regarding the incident.

22. Though both of them have not deposed consistently

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about whether P.W.3 had accompanied P.W.2 after the incident,

this particular discrepancy is not quite material. The house of

P.W.3 was at a distance at about 40 ft from the spot of the

incident. Therefore, he was not a chance witness. He was

returning home. He was a resident of the same locality. His

evidence is more trustworthy.

23. The evidence of P.W.4 is also important. She was

knowing the Appellant and she has clearly deposed that the

Appellant had consumed liquor. He was shouting and asking

P.W.4 to check whether the deceased was dead or alive. Thus,

the presence of the Appellant at the spot is clearly established

through the evidence of all the three witnesses and in fact, the

specific role is attributed to the Appellant by P.W.2 and P.W.3.

P.W.3's evidence is more trustworthy. There is no reason to doubt

his testimony. The evidence of these two eyewitnesses is

corroborated by the recovery of a piece of tile at the instance of

the present Appellant. The tile shows presence of human blood.

There was blood on the clothes of the Appellant as well as some

earth which is found at the spot. Even if the we leave aside these

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two corroborative pieces of evidence, because either of the

Panchas have not supported or were not examined for these two

aspects, but even then the evidence of P.W.2, 3 and 4 and in

particular that of P.W.3, is strong and incriminating against the

Appellant. Therefore, we are satisfied that the prosecution has

proved that the Appellant has caused those injuries to the

deceased.

24. The defence taken by the Appellant does not appear to

be probable. It is not possible to accept that the P.W.2 and P.W.3

would implicate him falsely because they did not want to fulfil

their own promise. There is no other material brought on record

by the Appellant as to why P.W.2 and P.W.3 had promised him to

give a room and the amount as stated by him.

25. The next question is whether the offence would be one

punishable u/s 302 of the IPC, as defined u/s 300 of the IPC or

it would be a lesser offence. In this context, it is undisputed that

the incident had occurred due to sudden a quarrel between the

Appellant and the deceased because of some petty money

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dispute. There was a scuffle between them. There is evidence

that the Appellant pushed the deceased because of which he fell

down and then the Appellant gave a blow with a floor tile on his

head. Though there are some injuries on the dead body, as

shown in the post-mortem report, the main injury appears to be

one fatal blow on the head. The other injuries were a result of

the scuffle. That particular blow was given forcefully and it has

caused fracture of the skull at the base. Therefore, the

prosecution has established that the Appellant gave a blow with

a tile on the head of the deceased. It was a forceful blow.

Looking at the nature of the injury and force used by the

Appellant, it cannot be said that the Appellant had no intention

to cause such bodily injury as was likely to cause death. We are

of the opinion that from the nature of the incident, it is clear

that the act of the Appellant would fall within Exception 4 to

section 300 of IPC, which reads thus:

"Exception 4 to section 300 -

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

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offender having taken undue advantage or acted in a cruel or unusual manner."

Section 304 of IPC, reads thus :

"Section 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."

26. Thus, it can be seen that the act of the Appellant

displays his intention to cause such bodily injury which is likely

to cause death. It is not necessary that the prosecution should

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establish that the intention was to cause death alone. It is

sufficient if they establish that the accused intended to cause

such bodily injury as was likely to cause death. The blow was

given on the head with such force as causing skull fracture and

fracture to the base of the skull. Therefore, that intention can be

gathered from the incident. It is also important to note that after

the incident the Appellant had in fact approached the P.W.4 and

sought some help. He had asked P.W.4 to check the condition of

the deceased. If the Appellant had intention to commit murder,

nothing stopped him from giving more blows to ensure that the

Appellant died on the spot. Therefore, from the over all

circumstances, we are of the opinion that the prosecution has

not proved that the Appellant has committed offence of murder

within the meaning of section 300 of the IPC;, but the

prosecution has successfully proved beyond the reasonable

doubt that the Appellant has committed offence punishable u/s

304(I) of the IPC. To that extent, the conviction recorded by the

learned Trial Judge will have to altered. Consequently, the

sentence will also have to be altered. The Appellant is in custody

since 20/04/2015. More than 10 years have passed. Therefore,

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in our opinion, the ends of justice would meet if the sentence is

reduced to the period, that is already undergone by the Appellant.

27. Hence, the following order :

ORDER

(i) The Appeal is partly allowed.

(ii) The conviction and sentence u/s 302 of the Indian Penal Code awarded to the Appellant, by the Additional Sessions Judge, Pune, in Sessions Case No.206 of 2016, is set aside; instead the Appellant is convicted for commission of offence punishable u/s 304(I) of the Indian Penal Code.

(iii) The Appellant is sentenced to suffer rigorous imprisonment for the period which he has already undergone since his arrest i.e. from 20/04/2015. The imposition of fine of Rs.2,000/- and in default of payment of fine to suffer rigorous imprisonment for three months, is maintained.