Bhimashankar Raigonda Bhuyare vs The State Of Maharashtra
2021 Latest Caselaw 4613 Bom

                                                                  2-Cri.Apeal-264-1998.odt
Shambhavi
N. Shivgan
Digitally signed by     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N. Shivgan
Date: 2021.03.12             CRIMINAL APPELLATE JURISDICTION
18:07:08 +0530


                                 CRIMINAL APPEAL NO.264 OF 1998

                       Bhimashankar Raigonda Bhuyare,
                       Age: 33 yrs.,
                       R/o. Kusur, Tal: South Solapur,
                       District: Solapur
                       At present in Yerwada Central
                       Prison                                  ... Appellant
                             Vs
                       The State of Maharashtra               ... Respondents
                                                   ...

                       Ms. Vilasini Balsubramaniam i/by Mr. Jaydeep Mane for
                       the Appellant.

                       Mr. S.R.Agarkar, APP for the Respondent-State.

                                 CORAM : SANDEEP K. SHINDE J.
                                 RESERVED ON : 12TH FEBRUARY, 2021.
                                 PRONOUNCED ON: 12th MARCH, 2021.



                       JUDGMENT :

The learned Sessions Judge, Solapur in

Sessions Case No.84 of 1996 held the appellant guilty

of the ofence punishable under Section 304 (Part II) of

the Indian Penal Code, 1860 ('IPC' for short) and

Shivgan 1/11 2-Cri.Apeal-264-1998.odt

sentenced to sufer rigorous imprisonment for fie

years and fne of Rs.3,000/- in default to sufer rigorous

imprisonment for one year. Aggrieied accused in the

subject Sessions Case has preferred this appeal.

2 Prosecution case in brief is that, on 29 th

Noiember, 1995 at 9 p.m. or there about accused

caused the death of Sidhappa Vithoba Koli by inficting

blow on his head by wooden stick, to which he

succumbed, while undergoing the treatment in the Ciiil

Hospital at Solapur. Prosecution case rests on the

ocular eiidence of Mangal (P.W.1) and Balasaheb

Herkar (P.W.5). The incident in question occurred on

29th Noiember, 1995 at Village: Kusur in front of the

hotel of the deceased. The incident was reported to

police at 00.20 hours by Mangal Koli (P.W.1), niece of

the deceased. Accused was chairman, of the milk dairy

at Village: Kusur. Balasaheb Herkar (P.W.5) was

member of the dairy and he was present when the

Shivgan 2/11 2-Cri.Apeal-264-1998.odt

incident occurred as he had been to dairy to collect the

dues of the milk supplied by him. The deceased,

Sidhappa with his wife and daughter used to stay in the

hotel, which was adjacent to the scene of ofence. It is

unfolded, in the eiidence that house of the accused

was also adjacent to hotel of the deceased. On 29 th

Noiember, 1995, the deceased was sleeping on the

platform (ओटा) in front of his hotel and at the releiant

time, accused and Balasaheb Herkar (P.W.5) were

chitchatting and discussing on the ota of dairy. It is

reiealed in the eiidence that Mangal Koli, niece of the

deceased (P.W.1) had been to the four mill and while

returning home, on the way, she had seen the

deceased and accused were yelling at each other for

the reason that by speaking out loudly, accused was,

disturbing sleep of the deceased. It is unfolded while

yelling, accused rushed to Sidhappa where a wooden

stick was lying, of which he held a blow on the head of

Sidhappa. Mangal tried to interiene the quarrel, but

Shivgan 3/11 2-Cri.Apeal-264-1998.odt

the accused pushed, her back and ran away.

Khandappa Masale (P.W.2), who was in his shop, had

seen accused running away from the spot. Wife and

daughter of the deceased, after hearing the cry of

Sidhappa, came out, of the hotel where Sidhappa was

found lying in unconscious condition. He was shifted to

Primary Health Centre and incident was reported to

police patil. After giiing primary treatment at the

Primary Health Centre, Sidhappa was remoied to Ciiil

Hospital, Solapur. Incident was reported by Mangal

(P.W.1), whereupon Crime No.44 of 1995 came to be

registered for the ofence punishable under Section

326 of the IPC. In the Ciiil Hospital at Solapur, Dr.

Dayanand Kode (P.W.10) had examined Sidhappa and

noticed contused lacerated wound on left occipital

parietal region. Dr. Kode admitted Sidhappa in surgical

ward. Dr. Jagdish Hedau (P.W.13) of the surgical ward

was also treating Sidhappa but he succumbed to the

injuries. On the next day at 12.30 noon, post-mortem

Shivgan 4/11 2-Cri.Apeal-264-1998.odt

was performed by Dr. Ashok Kanaki (P.W.8), who had

also noticed sutured wound at scalp with crack fracture

of frontal bone and massiie haematoma on occipital

and parietal region. According to Dr. Kanaki, cause of

death of the deceased was, "due to head injury

associated with fracture of ribs."

3 PSI Madhukar Kadam (P.W.12) took oier the

iniestigation and fled the charge-sheet, whereupon

the charge was framed under Section 302 of the IPC.

4 Prosecution in support of the charge, had

examined ten witnesses. The learned Trial Court upon

appreciating the eiidence, held that the assault by the

accused cannot be said to be assault with an intention

to kill but the incident occurred in spur of moment and

therefore, accused was acquitted of the ofence of the

murder but held guilty for the ofence of culpable

homicide not amounting to murder punishable under

Shivgan 5/11 2-Cri.Apeal-264-1998.odt

Section 304(II) of the IPC. The learned Trial Court while

imposing the sentence of rigorous imprisonment of fie

years, had taken into consideration the age of the

deceased, kind of weapon allegedly used while

inficting blow and the attendant circumstances.

5 The learned counsel for the appellant

assailing the coniiction and sentence, would contend

that the Trial Court has not appreciated the eiidence of

eye witnesses in right perspectiie and, therefore,

coniiction, is erroneous. The learned counsel would

further contend that the eiidence of P.W.1-Mangal

cannot be relied on, in-as-much as she was got-up

witness, which fact can be discerned from her cross-

examination. Thus, it is contended that prosecution has

not proied beyond reasonable doubt that the accused

had dealt a blow on the head of the deceased. In other

words, the learned counsel would contend that it is the

case of false implication.

Shivgan                                                           6/11
                                                 2-Cri.Apeal-264-1998.odt




6             With the assistance of the learned counsel for

the       appellant   and   the   learned   Additional    Public

Prosecutor for the State, I haie perused the entire

eiidence and in particular the testimony of P.W.1-

Mangal, P.W.5-Herkar and testimony of wife of the

deceased, who was examined as P.W.3.

7 So far as the death of Sidhappa is concerned,

prosecution has proied, it was homicidal death. Herein

the incident had taken place at 9 p.m. and it was

reported to the police at 00.20 hours by P.W.1-Mangal,

who claimed to be a eye witness and had seen the

deceased quarreling with the accused at and near the

place of incident. Mangal had witnessed hot discussion

between the deceased and the accused in the course

of which according to her, accused dealt a blow on the

head of the deceased by stick, lying at the place of

incident. It appears from her eiidence that she tried to

Shivgan 7/11 2-Cri.Apeal-264-1998.odt

nab the accused, but he managed to run away. Another

witness Khandappa Masale (P.W.2) is electrician, whose

shop is in front of dairy of the accused. Eiidence of this

witness shows, that he had not seen the actual incident

but had seen while accused was running away by the

road, which passes from front side of his shop and

before that he had seen accused on the ota of the dairy

with Balasaheb Herkar (P.W.5). When he saw accused

was running away, he came out of the shop and had

seen Sidhappa was lying in unconscious condition near

the ota of the dairy. Now so far as the eiidence of

Balasaheb Herkar (P.W.5) is concerned, it may be

stated that he had been to dairy on the day of the

incident for collecting the dues of milk supplied by him.

This witness had seen the assault but apprehending

that the members of the deceased Sidhappa's family

would beat him up, he disappeared from the iillage for

a considerable period. His statement was recorded

belatedly. He supported the prosecution case and the

Shivgan 8/11 2-Cri.Apeal-264-1998.odt

defence could not elicit any material in his cross-

examination to disbelieie this witness or discard his

eiidence.

. In so far as the eiidence of wife of the

deceased is concerned, it appears, actual assault was

not seen by her because at the material time, she was

inside hotel premises. Howeier, after hearing hues and

cry, Pariatibai, wife of the deceased, rushed to the

spot where she found her husband was lying near ota

with bleeding injury on his head. In testimony, she

admits presence of P.W.1 Mangal, who tried to chase

and catch the accused. Eiidence of deceased's

daughter Saiitri corroborates the eiidence of her

mother on material points.

8 Thus, eiidence of P.W.1, P.W.3, P.W.4 and

P.W.5 cumulatiiely had established that the accused in

the course of the quarrel and on spur of moment,

picked up a wooden stick and dealt a blow on the head

Shivgan 9/11 2-Cri.Apeal-264-1998.odt

of the Sidhappa to which he succumbed on the next

day.

9 Thus, in consideration of the eiidence of

witnesses, in my iiew, the learned Trial Court has

correctly held that single blow was dealt in the spur of

moment and it was not with intention to cause his

death. Coniiction under Part II of Section 304 of the IPC

is upheld.

10 In so far as the sentence is concerned,

appellant was sentenced to undergo rigorous

imprisonment for fie years and to pay fne of

Rs.3,000/- in default to sufer rigorous imprisonment for

one year. The incident had occurred in 1995 when the

appellant was 33 year old. Today, he is about 58-59

year old. In consideration of this fact and the eiidence

on record, I am of the iiew that sentence to sufer

rigorous imprisonment for two years and fne of

Shivgan

2-Cri.Apeal-264-1998.odt

Rs.25,000/- would meet ends of justice. Accordingly,

the impugned sentence is modifed. Hence, the

following order:

ORDER

(I) Appeal is dismissed.

(ii) Appellant to undergo rigorous imprisonment for

two years and to pay fne of Rs.25,000/- in default to

undergo rigorous imprisonment for one year. If fne

amount is deposited, same be paid to wife of the

deceased as compensation in terms of Section 357 of

the Code of Criminal Procedure, 1973.

(iii) Bail bond of the appellant stands cancelled and he

is directed to be surrendered to the State within two

weeks from today.

11 Appeal is disposed of in aforesaid terms.

(SANDEEP K. SHINDE, J.)

Shivgan