[Cites 10, Cited by 0]
Bombay High Court
Chandu Jagan Dhulsada vs State Of Maharashtra on 23 February, 2026
Author: A.S. Gadkari
Bench: A.S. Gadkari
2026:BHC-AS:9474-DB
P.H. Jayani 218 APEAL536.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 536 OF 2025
WITH
INTERIM APPLICATION NO. 2346 OF 2025
IN
CRIMINAL APPEAL NO. 536 OF 2025
Chandu Jagan Dhulsada
Age : 40 years,
R/o: Aagwan, Shishupada,
Taluka : Dhanu, Dist. Palghar,
(At present lodged at Nashik Road
Central Prison, Nashik) .... Appellant
V/s.
The State of Maharashtra
Through Senior Inspector of Police
Dhanu Police Station, Palghar,
(in C.R.No.I-41 of 2017) .... Respondent
_______________________________
Smt. Nasreen Ayubi, appointed Advocate for the Appellant.
Mr. Ajay Patil, APP for the Respondent - State.
_______________________________
CORAM: A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 19th JANUARY, 2026
PRONOUNCED ON : 23rd FEBRUARY, 2026
JUDGMENT :
[PER : SHYAM C. CHANDAK, J.] :-
1) The subject matter of challenge in this Appeal is the Judgment
and Order dated 22nd July 2024, passed by the learned Additional Sessions
Judge at Palghar, in Sessions Case No.44/2017, thereby, the Appellant-sole
accused in the case has been convicted for the charge of offence punishable
P.H. Jayani 218 APEAL536.2025.doc
under Section 302 of the Indian Penal Code, 1860 ('IPC') and sentenced to
suffer imprisonment for life and to pay fine of Rs.5,000/- with default
stipulation. However, he has been acquitted of the charge of Section 506
IPC.
2) Heard Smt. Ayubi, the learned appointed Advocate for the
Appellant and Mr. Patil, the learned APP for the Respondent, State. Perused
the record.
3) The prosecution case was that, the informant Ramji Raghya
Dhulsada (PW-3) used to reside at Shishupada, Taluka Dahanu. The
Appellant was his nephew. The Appellant and his wife namely Shalu used
to reside in front of PW-3's house. On 20th March 2017, at about 02:00
p.m., PW-3 heard a noise of quarrel. He, therefore, came out of the house.
At that time, the Appellant and Shalu were engaged in a scuffle. PW-3 went
there and persuaded them not to quarrel, but, the Appellant picked up a
stone and threatened PW-3 not to intervene, otherwise he would kill him.
PW-3, therefore held back and stood there. During the quarrel, the
Appellant knocked Shalu to the ground and strangled her to death. PW-3
informed the villagers and the Police Patil about the incident. Thereafter,
PW-3 and the Police Patil went to the Police Station where PW-3 filed his
report (Exh.11) and narrated the aforesaid incident.
4) Said report came to be registered at FIR bearing C.R.No.I-
41/2017 with Dahanu Police Station for the offence punishable under
P.H. Jayani 218 APEAL536.2025.doc
Sections 302 and 506 of the IPC. Mr. Sudham Shinde, Investigation Officer
(PW-6) recorded the inquest panchanama and referred the body for
postmortem examination. The postmortem report confirmed the throttling.
PW-6 then recorded the Spot Panchnama and statement of the witnesses.
He arrested the Appellant. He forwarded the blood samples, viscera and
muddemal to the FSL. On completion of investigation, he submitted the
charge-sheet.
5) The trial Court framed charge. Appellant pleaded not guilty to
the charge and claimed to be tried. The defence of the Appellant was of
denial and false implication.
6) To bring home the charge/guilt of the Appellant, the
prosecution examined 10 witnesses which includes the informant, panchas,
autopsy surgeon, eyewitnesses, investigating officer etc. Various documents
have been relied upon to support their testimonies. On closure of the
prosecution evidence, the statement of the Appellant under Section 313
Cr.P.C. came to be recorded, wherein he has denied the incriminating
circumstances.
7) On appreciation of the evidence, the learned Additional
Sessions Judge at Palghar believed the testimonies of the witnesses and
considering the nature of the injuries sustained by Shalu, convicted and
sentenced the Appellant under Section 302 I.P.C. as noted above. Hence, the
Appeal.
P.H. Jayani 218 APEAL536.2025.doc
8) Smt. Ayubi, the learned appointed Advocate submitted that,
the testimony of PW-3 shows that he did not witness the murder. There is
no other eyewitness to the incident. The testimonies of the witnesses suffer
from material omissions and contradictions and therefore no reliance can
be placed on their testimonies. The evidence of the other witnesses is
relating to the steps taken during the course of the investigation.
Consequently, it is of no avail to the prosecution. Therefore, the offence
under Section 302 was not proved. However, the learned trial Judge
convicted the Appellant for the charge of murder. In the alternative, the
learned counsel submitted that, the evidence clearly indicates that at the
maximum the act of causing the homicidal death of Shalu falls under
Section 304 part II of IPC. Nevertheless, the learned Judge did not view the
case from that angle and therefore on both the counts, the impugned
judgment is erroneous. She submitted that, the Appeal may be allowed.
9) Mr. Patil, the learned APP, on the other hand, supported the
impugned judgment contending that it is based on appreciation of the
prosecution evidence in accordance with law. Therefore, there is no merit in
the Appeal.
10) We have considered these submissions and to evaluate the
same, it is necessary to revisit the prosecution evidence. The evidence
shows that Dr. Balaji Hengane (PW-4) had conducted the postmortem
examination on the body of Shalu on 21st March 2017 and noted the
P.H. Jayani 218 APEAL536.2025.doc
following external and internal injuries :-
(1) Contused abrasion on cricoid area of neck transversely of
size ½ x 6 cm (length) red colour. After dissection of neck area
underlined structures:
(a) Subcutaneous bleeding was present,
(b) Muscles were contused, hemorrhage,
(c) Edematous trachea and surrounding structures.
(2) Multiple crescentic (semi-circular), abrasions on both
sides of neck present of average size ¼ x ¼ cm, red colour on
Rt side of neck 06 nos and on the left side of neck 05 nos.
(3) Abrasion on left leg (calf area) 3X1 cm, 2X1 cm red
colour.
(4) After dissection of neck area, hematoma present,
subcutaneous bleeding, underlying muscles are contused.
There is edema present at tracheal rings below cricoid area.
On internal examination after dissection of the external injury
no.1, there was evidence of subcutaneous bleeding, muscles were contused
with hemorrhage, trachea was edematous and surrounding structures had
internal injuries. The external injuries were related to the internal injuries.
The injuries were antemortem and sufficient in the ordinary course of
nature to cause the death. In view thereof, PW-4 has opined that it was
asphyxial death due to compression of neck structure with throttling.
Accordingly, he had recorded and issued the postmortem report (Exh.17)
which he has identified with his signature thereon and deposed that, its
contents are true. The aforesaid evidence of PW-4 did not face any effective
P.H. Jayani 218 APEAL536.2025.doc
challenge in the cross-examination. Thus, his evidence coupled with the
postmortem report has established that Shalu had died a homicidal death.
11) Considering the charge, PW-3 Ramji Dhulsade was the most
crucial witness. He has testified that the Appellant is his nephew (brother's
son). At the time of the incident, he was present at home. A quarrel had
occurred between the Appellant and his wife Shalu. They were assaulting
each other. That, he had tried to persuade them not to quarrel. However,
the Appellant pushed Shalu to the ground and killed her by throttling. He
has specifically deposed that the Appellant had lifted a stone to hit him.
Thereafter, the Appellant remained at the spot. That, he informed about the
said incident to the Police Patil. The Police Patil visited the spot. Thereafter,
PW-3 and the Police Patil went to the Police Station, were he filed a report
(Exh.11). PW-3 identified the said report and deposed that its contents are
correct and true.
12) Another important witness Ramu Hadal (PW-5) has testified
that, on 20th March 2017, at about 02:00 p.m., the Appellant and Shalu
were seated below a Shevga tree in front of the Appellant's house. The
Appellant had held the neck of Shalu. He had told the Appellant to release
her neck, but the Appellant replied to him not to interfere in the matter.
Therefore, he and his neighbour took the Appellant away from Shalu,
however by then Shalu had died. That, thereafter, PW-3 called the Police
Patil and both of them went to the Police Station. PW-5 deposed that, the
P.H. Jayani 218 APEAL536.2025.doc
police had recorded his statement. Additionally, his statement was recorded
under Section 164 Cr.P.C. (Exh.28). In the cross-examination PW-5 has
specifically denied that the Appellant had not held the neck of Shalu.
13) The aforesaid testimonies of PW-3 and PW-5 are consistent
with the report (Exh.11). PW-3 had no reason to file the said report falsely
narrating that, the Appellant had committed murder of Shalu. On the
contrary, PW-3 and the Appellant have been closely related to each other.
PW-5 is also relative of the Appellant. Further, no specific material has been
brought out in the evidence much less, by the Appellant to prove that there
was a reason for these witnesses, who happens to be his relative to falsely
implicate him. Although, PW-5 has not directly deposed that, the Appellant
had killed Shalu by throttling, he has specifically deposed that, immediately
after release of her neck by Appellant, they had noticed that Shalu was
dead. However, the Appellant has not explained as to why he had held the
neck of Shalu. PW-4 clearly opined that Shalu had died due to asphyxia.
Except for throttling, there was no other reason for the sudden asphyxial
death of Shalu. Thus, the medical evidence corroborated the testimony of
PW-3 and PW-5 that Shalu had died due to throttling.
14) It appears that, PW-10 Rupaji Kol was an eyewitness to the
murder. In 2017, he was Deputy Sarpanch of village Agwan. But he did not
support the prosecution case. He has deposed that he knew the Appellant
and Shalu. On 20th March 2017, he was present at home. PW-5 had
P.H. Jayani 218 APEAL536.2025.doc
informed him about the incident. He therefore went to the spot at 02:00
p.m. The Appellant was seated there with Shalu on his lap. Water was
sprinkled on her face by the villagers, but she did not respond. However, in
the cross-examination by the learned APP, PW-10 has admitted that, police
had recorded his statement. He had informed about the incident to the
Police Patil. He has admitted that PW-5 and PW-9 had informed the Police
Patil that, the Appellant had committed the murder of Shalu by throttling
her. He has admitted that quarrels used to take place between the Appellant
and Shalu. The evidence indicates that Shalu was completely normal and
she was doing labour work to earn her livelihood. Thus, to some extent
PW-10 has supported the testimonies of PW-3 and PW-5.
15) Considering the evidence of PW-3 that the Appellant and Shalu
were assaulting each other during the quarrel, it was probable that the
Appellant would suffer some injuries. In this regard the testimonies of PW-6
and PW-4 have established that, PW-6 had issued the letter (Exh.38) and
referred the Appellant for his medical examination. That letter was received
by PW-4 on 22nd March 2017. Accordingly, Dr. Ankita Pandey had examined
the Appellant and issued an injury report (Exh.39). It bears her signature.
Additionally, PW-4 has referred the OPD papers (Exh.58). It bears the
thumb impression of the Appellant. PW-4 has deposed that, as per the
medical examination by Dr. Ankita Pandey and the injury report (Exh.39),
there were following injuries on the person of the Appellant at the time of
P.H. Jayani 218 APEAL536.2025.doc
his medical examination:
(a) Scratch mark above lateral aspect of left eyebrow of size 1.5 x
0.1 cm, reddish brown in colour indicating 2-3 days old.
(b) Scratch mark in front of left ear lobule of size 1 x 0.1 cm,
reddish in colour on healing stage probably 2-3 days old.
(c) Scratch mark behind left ear of size 0.2 x 0.1 cm brownish in
colour, scabbing stage probably 2-3 days old.
(d) Scratch mark on back, brownish black in colour of size 0.2 x
0.1 cm, scab present probably 2-3 days old.
(e) Mildly swollen right thenar eminence.
15.1) The aforesaid injuries clearly indicate that the same were
caused during the scuffle with Shalu. The Appellant did not explain as to
how he had sustained the said injuries. Thus, the existence of the said
injuries also corroborated the testimonies of PW-3 and PW-5.
16) PW-9 Ramji Dulsada has deposed that the Appellant was his
cousin brother. Shalu was the wife of the Appellant and they used to reside
together in the village. At the time of the incident, he was present at home.
The Appellant and Shalu were fighting. The Appellant was throttling Shalu.
They told the Appellant not to quarrel, but the Appellant did not listen to
them. He has deposed that Shalu had died due to the throttling. They
informed the Police Patil about the incident and thereafter all of them went
to the police station and lodged the report.
16.1) In the cross-examination for the Appellant, PW-9 has admitted
that the Appellant did not kill his wife in his presence. He has admitted
that, it did not happen that in 2017 the Appellant had killed his wife. He
P.H. Jayani 218 APEAL536.2025.doc
further admitted that, it did not happen that Police Patil and PW-10 had
come to the spot at the time of the incident. Thus, the testimony of PW-9
indicates that, initially, he had supported the prosecution case, however, in
the cross-examination he deposed very contrary to it. Therefore, the learned
APP appearing in the case filed an Application (Exh.68) seeking permission
to cross-examine PW-9, however subsequently the learned APP withdrew
the said Application (vide remark Exh.86). Be that as it may, in the facts
said testimony of PW-9 in the cross-examination would not be sufficient to
nullify the strength and effect of the testimonies of PW-3 and PW-5 which
have the backing of the expert medical evidence. Moreover, considering the
relationship between PW-9 and the Appellant, it is safe to draw an adverse
inference that, deliberately PW-9 has falsely deposed that it did not happen
that in 2017 the Appellant had killed his wife.
17) Admittedly, at the time of the incident, the Appellant and Shalu
were residing together. All of a sudden, Shalu had suffered the homicidal
death while in his company. Therefore, the Appellant was required to
explain Shalu's homicidal death, which he failed to do. This leads to an
adverse inference against him.
18) The conspectus of the aforesaid discussion is that, it has been
proved that on the relevant date, time and place, a quarrel had occurred
between Shalu and the Appellant. Consequently, they had engaged in a
scuffle; that during the said scuffle they assaulted each other, as a result of
P.H. Jayani 218 APEAL536.2025.doc
which the Appellant had sustained the said injuries and lastly the Appellant
caused the homicidal death of Shalu by throttling her.
19) Therefore, now, the question is, whether the act of causing the
homicidal death by the Appellant amounted to murder or not. In this
context we have noticed that, in the cross-examination, PW-3 has admitted
that Shalu used to go out for labour work; that sometimes the Appellant
used to get attacks of epilepsy; that the Appellant was not going for work
and used to remain at home due to said ailment; that the Appellant has
four children; and his elder daughter was suffering from mental disorder
and had left the house due to that medical condition. In the cross-
examination, PW-5 has admitted that, sometimes the Appellant used to
become insane; that during that condition froth used to come out of his
mouth; that he used to caught hold of a person near him and was not
behaving like a normal person; that in that state the Appellant used to beat
Shalu; that daughter of the Appellant was facing a mental health problem
and used to go out of her house; that at the time of the incident, froth had
come out from the mouth of the Appellant; that when the Appellant was on
bail in this case, he had set his own house on fire. However, PW-5 deposed
that he cannot tell whether, at the time of the incident, the Appellant was
under an attack of insanity or not.
In the cross-examination, PW-9 has admitted that Shalu used to
work and maintain the Appellant. When Appellant was getting attack of
P.H. Jayani 218 APEAL536.2025.doc
epilepsy, he was unable to understand what he was doing. He has admitted
that the elder daughter of the Appellant was also suffering from epilepsy
and on one occasion of such epilepsy, she went missing. He has admitted
that, when the Appellant was on bail, he has set the surrounding of his
house on fire, owing to epilepsy.
20) The aforesaid evidence in the cross-examination of the
witnesses show that the Appellant was suffering from the ailment of
epilepsy. However, there was no evidence that immediately before or at the
time of the incident the Appellant had suffered a violent attack of epilepsy.
And consequently, he could not know that he was throttling his own wife to
death. Therefore according to us, the case of the Appellant was not covered
by general exception provided under Section 84 I.P.C. To decline that, the
case was covered by this exception, the learned Judge of the trial Court has
reasoned and held as under which, in our opinion, is correct.
In brief, the learned trial Judge has observed that PW-3 did not
whisper that, at the time of incident the Appellant had suffered the attack
of epilepsy. PW-5 has deposed that he does not know that the Appellant had
suffered the attack of insanity at the time of incident. PW-5 has denied that
when the Appellant had held Shalu in his arms, he had suffered the attack
of insanity. No evidence has been brought on record to prove that, at the
time of the crime, the cognitive faculty of the Appellant was so impaired
that he was unable to know the nature of the act. The Appellant has not led
P.H. Jayani 218 APEAL536.2025.doc
any medical evidence to substantiate his plea of insanity at relevant time.
The prosecution has produced the OPD noting (Exh.58) through PW-4
which mentions that the Appellant was found physically and mentally fit for
judicial proceeding. Considering the defence of insanity raised by the
accused, directions were issued by the trial Court to Civil Hospital, Thane
(Psychiatric) for complete check up of the Appellant vide Order dated
15/03/2023 passed below Exh.01. In furtherance of said directions, OPD
case paper were forwarded to the Court by the Jail Authority below
Application Exh.73. The noting in the said OPD case paper reflects the
health history and medication narrated by the Appellant. But there was
nothing to suggest that the accused had mental disorder.
21) However from the evidence on record it appears to us that, the
Appellant has caused the homicidal death of Shalu without any
premeditation in a sudden fight in a heat of passion upon a sudden quarrel
and without taking undue advantage or acted in a cruel or unusual manner.
There was no time gap between the dispute, the scuffle, the fight and the
overt act on the part of the Appellant. No doubt, in the evidence of PW-10 it
has come that, quarrels used to occur between them. However, this fact
itself is not sufficient to infer that during said quarrels the Appellant used to
treat Shalu inhumanly. Therefore according to us, the act of causing the
death of Shalu cannot be equated to murder but its a culpable homicide not
amounting to murder.
P.H. Jayani 218 APEAL536.2025.doc
22) It is trite that, to bring a case within Exception 4 to Section 300
of I.P.C., all the ingredients mentioned in it must be found. It is to be noted
that, the word 'fight' occurring in Exception 4 to Section 300 of I.P.C. is not
defined in the I.P.C. It takes two to make a fight. To invoke Exception 4 to
Section 300 of I.P.C., four requirements must be satisfied viz.:-
(i) It was a sudden fight;
(ii) There was no premeditation;
(iii) The act was done in the heat of passion and
(iv) The assailant had not taken undue advantage or acted in a cruel or
unusual manner.
23) The cause of the quarrel is not relevant nor it is relevant as to
who offered the provocation or started to assault first, but what is
important is that the occurrence must have been sudden and not
premeditated and the offender must have acted in a fit of anger and must
not have taken any undue advantage or acted in a cruel or unusual manner.
When during the course of a sudden quarrel, a person in the heat of
moment, attacks the other person and causes injury, one of which proves to
be fatal, the accused would be entitled to the benefit of this exception.
24) The Hon'ble Supreme Court in the case of Sukhbir Singh Vs.
State of Haryana, reported in (2002) 3 SCC 327, while analyzing the
provisions of Exception 4 of Section 300 of I.P.C. has held that, to avail the
benefit of Exception 4, the defence is required to probabilise that the
offence was committed without premeditation in a sudden fight, in the heat
of passion upon a sudden quarrel and the offender had not taken any
P.H. Jayani 218 APEAL536.2025.doc
undue advantage and the offender had not acted in a cruel or unusual
manner. The exception is based upon the principle that in the absence of
premeditation and on account of total deprivation of self-control but on
account of heat of passion, the offence was committed which, normally a
man of sober urges would not resort to. Sudden fight, though not defined
under the Act, implies mutual provocation. It has been held by the Courts
that a fight is not per se palliating circumstance and only unpremeditated
fight is such. The time gap between quarrel and the fight is an important
consideration to decide the applicability of the incident. If there intervenes
a sufficient time for passion to subside, giving the accused time to come to
normalcy and the fight takes place thereafter, the killing would be murder
but if the time gap is not sufficient, the accused may be held entitled to the
benefit of this exception.
25) After applying the aforestated principles enunciated by the
Hon'ble Supreme Court to the facts of the present case, we are of the
considered view that, the act of the Appellant clearly fall within the purview
of Exception 4 of Section 300 of the Indian Penal Code and therefore
punishable under Section 304 (Part-II) I.P.C. However, the learned trial
Court has failed to appreciate the evidence on record from that angle, as a
result, he has held that the Appellant was guilty of the offence of murder
punishable under Section 302 I.P.C. On account of this legal infirmity, we
find it necessary to interfere with the impugned Judgment to bring down
P.H. Jayani 218 APEAL536.2025.doc
the conviction and the sentence from Section 302 I.P.C. to Section 304
(Part-II) I.P.C. Thus, the Appeal partly succeeds.
25.1) Hence, the following Order :-
(a) Criminal Appeal is partly allowed.
(b) Appellant Chandu Jagan Dhulsada is acquitted under
Section 302 of the Indian Penal Code and instead convicted
under Section 304 (Part-II) of the Indian Penal Code.
(c) Appellant is directed to undergo Rigorous Imprisonment
for 10 years and to pay fine of Rs.5,000/-. In default of
payment of fine, to further suffer simple Imprisonment for 3
months.
(d) Appellant is entitled to set off under Section 428 Code of
Criminal Procedure for the period already undergone in jail, till
date.
(e) The impugned Judgment dated 22 nd July, 2024 is
modified to the extent as noted hereinabove.
25.2) In view of disposal of the Appeal, Interim Application No.2346
of 2025 is also disposed off.
(SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)
PREETI
HEERO
JAYANI
