Bhimashankar Raigonda Bhuyare v. The State of Maharashtra

2 Prosecution case in brief is that, on 29th 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 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 29th 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 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 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 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 crossexamination. 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.

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 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 defence could not elicit any material in his crossexamination 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 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 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