Partly allowed

Bhike Shamrao Bare v. State of Maharashtra

Bombay HC23 Nov 2011APEAL/114/1999

Case brief

AI extract

What is this about?

In a criminal appeal under section 304 Part II IPC, the High Court upheld the conviction of the appellant for culpable homicide. Considering the settled nature of the dispute and the nature of the offense, the court substituted the fine with a higher amount, directed payment to the granddaughters, and reduced the imprisonment term to six months.

What did the court decide?

Conviction confirmed. Sentence reduced to 6 months rigorous imprisonment. Fine increased to Rs. 18,000, with Rs. 15,000 ordered as compensation to Swati w/o Ashok Pawar.

Bhike Shamrao Bare Vs State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.114 OF 1999

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Bhika s/o Shamrao Bare,
Age 30 years, Occ. Service,
r/o Mandave, a/p Jarandi,
Tq. Soygaon,
Dist. AurangabadAPPELLANT

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VERSUS

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1. The State of Maharashtra

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2.Draupadabai w/o Santaram Pawar,
Age 56 years, Occ. Labour,
r/o Turkabad (Kharadi),
Tq. Gangapur,
Dist. AurangabadRESPONDENTS

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Shri. Hemantkumar Pawar, Advocate holding for
Shri. A.H. Kapadia, Advocate for the appellant

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Shri. B.V.Wagh, A.P.P.for the respondent no.1

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WITH

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CRIMINAL APPLICATION NO. 5016 of 2011

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1. Swati d/o Subhash Wagh, (Now Swati w/o Ashok Pawar) Age 27 years, Occ. Housewife, r/o at present Qadri Nagar, Vaijapur, Dist. Aurangabad

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2. Jyoti d/o Subhash Wagh, (Now Jyoti w/o Devidas Sonawane), Age 33 years, Occ. Housewife, r/o Jai Gajanan Nagar, Garkheda Parisar, Aurangabad

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APPLICANTS

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VERSUS

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1. The State of Maharashtra 2. Bhika s/o Shamrao Bare, Age 50 years, Occ. Service, r/o Mandva, Post Jarandi, Tq. Soygaon, Dist. Aurangabad presently residing at Narala, Near Water Tank, Paithan, Dist. Aurangabad.

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RESPONDENTS

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Shri. R.G.Chavan, Advocate for the applicants

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Shri. B.V.Wagh, A.P.P. for respondent no.1

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Shri. Hemantkumar Pawar, Advocate holding for
Shri. A.H. Kapadia, Advocate for respondent no.2

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CORAM : R.Y.GANOO, J.
DATE : 23.11.2011

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JUDGMENT :

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1.The appellant herein is convicted under section

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304 Part II of Indian Penal Code and is sentenced to

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undergo rigorous imprisonment for 4 years and to pay
fine of Rs. 5000/-. It is also ordered that in deafult
of payment of fine appellant to undergo rigorous
imprisonment for one year. Out of the total fine amount
recovered from the appellant, a sum of Rs. 3000/- was
ordered to be paid to the wife of deceased Santaram by
way of compensation. This order came to be passed by
learned Additional Sessions Judge, Aurangabad on
22.12.1998 in Sessions Case No. 288/95. The present
appellant Bhika Bare was aggrieved by the aforesaid
order dated 22.12.1998. He has filed present criminal
appeal. It must be mentioned that in the course of
hearing of this appeal, Criminal Application No. 5016 of
2011 was filed by Swati Wagh & Jyoti Wagh, who happen to
be the grand daughters of the deceased, praying that
lenient view be taken so far as the punishment is
concerned as the matter is compromised.

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2.The prosecution case in gist is as under.

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On 16.08.1995, Santaram, the deceased was near

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the veternery hospital at Turkabad. A person by name
Kacharu had brought his cow to the said hospital for the
treatment. At that time, the present appellant was
required to give treatment to the said cow alongwith Dr.
Deshpande. The deceased Santram requested present
appellant that the cow is like mother and therefore, he
should take proper care and treat the said cow properly.
On hearing this, the present appellant assaulted said
Santram with a stick. Santaram fell down and ultimately
died on the same day. Draupadabai, wife of deceased
Santaram, filed F.I.R. with concerned police station on
16.08.1995 soon after the said incident and the death of
Santaram. Investigation was conducted by Waluj police
station with whom the F.I.R. was lodged. The present
appellant was shown as accused on account of his alleged
overact. In the course of recording evidence of Swati
P.W.no.2, named Dr. Deshpande as one of the assailants

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and therefore case was also launched against him. So far
as the present appellant is concerned, charge came to be
framed on 30.11.1996 at Ex.3 under section 302 of Indian

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Penal Code. Thereafter a fresh charge came to be framed
on 17.11.1998 as Dr. Deshpande was also joined as
accused. That is to say that appellant as well as Dr.
Deshpande were charged under section 302 r/w 34 of
Indian Penal Code in regard to the incident which took
place on 16.08.1996. The present appellant and Dr.
Deshpande pleaded not guilty and claimed to be tried.

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3.In the course of trial, prosecution examined
following witnesses.

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1. Dropadabai w/o Santaram Pawar as p.W.no.1

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2. Swati d/o Subhash Wagh as p.w.no.2

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3. Radhakishan Bhagaji Salve as p.w.no.3

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4. Jyoti d/o Subhash Wagh as p.w.no.4

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5. Dr.Kalidas Dattatraya Chavan, Medical Practitioner attached to S.R.T.S. College, Ambajogai, as p.w.no.5

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6. Abarao Shankarrao Nalawade, police staff as p.w.no.6

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7. Deepak Namdeo Patil, Police Constable as p.w.no.7, and

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8. Vitthal Laxman Toge, a pach as regards recovery of a stick.

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At the end of the trial, the learned Additional
Sessions Judge found the aforesaid appellant guilty
under section 304 part II of the Indian Penal Code. The
appellant was acquitted of the charge under section 302
of the Indian Penal Code. He was sentenced to suffer
imprisonment and asked to pay fine as mentioned in the
order. Accused no.2 Dr. Deshpande was acquitted under
section 302 r/w 34 of the Indian Penal Code.

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4.With the assistance of learned Advocates on

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both the sides I have perused the entire record. The
prosecution has cited Dropadabai p.w.no.1, Swati
p.w.no.2, Radhakisan p.w.no.3 and Jyoti p.w.no.4 as the
witnesses in support of its case as regards assault by
the present appellant on Santaram. Witness Radhakisan
p.w.no.3 has turned hostile and his evidence is of no
avail to the prosecution. Dropadabai p.w.no.1 has

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admitted in her evidence that she was not present at the
time of occurrence and therefore, her evidence is of no
avail to the prosecution so far as the incident of
assault by the present appellant on Santaram. Her
evidence will be of no use to the prosecution to prove
guilt of the appellant. Jyoti, p.w.no.4 was also not
present at or about the time at scene of offence when
the incident had taken place and her evidence goes to
show that Swati narrated to her the incident as regards
the assault by the present appellant. As such, the
evidence of Jyoti p.w.no.4 would support the evidence of
Swati for the limited purpose.

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5.Coming to the evidence of Swati p.w.2, I have
perused her evidence. Her evidence clearly goes to show
that she was present at the time when the incident took
place and she has been the eye witness to the said
incident. She has directly implicated the present
appellant as regards giving of stick blows. Learned
Advocate appearing on behalf of the appellant had made

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efforts to submit that evidence of Swati should not be
accepted. He had also submitted that even if the court
come to the conclusion that evidence of Swati is
reliable she should be treated as an interested witness.
He had also pointed out no independent witness has been
examined by the prosecution and therefore, the case put
up by the prosecution should be disbelieved. As against
this, learned A.P.P. appearing on behalf of the State
submitted that evidence of Swati p.w.2 is acceptable
piece of evidence and her evidence is directly on the
point of assault by the present appellant on Santaram
with a stick. He, therefore, submitted that evidence of
Swati p.w.2 should be accepted.

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6.I have perused the evidence of Swati p.w.2 and

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I am inclined to accept her evidence. Swati p.w.2
clearly states that she had witnessed the incident of
assault by the present appellant on her grandfather
Santaram. It is true that she is the grand daughter of
Santaram but that does not mean that she can be termed

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as an interested witness and her evidence cannot be
discarded. It is also true that no independent witness
is examined by the prosecution. However, that does not
mean that the incident put up by the prosecution through
Swati p.w.2 is false. I hold that the evidence of Swati
p.w.2 has to be accepted.

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7.The deceased died on 16.08.1995 soon after the
occurrence. Dr. Kalidas Chavan P.w.no.5 had an occasion
to conduct post mortem. He has observed following
external injuries and the same are mentioned in
col.no.17 of the post mortem report.

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1. C.L.W. 2 cm. X 2 cm. X bone deep at right parietal eminence.

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2. C.L.W. 1 ½ x 1 cm x ½ cm at left parietal eminence.

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3. Two abrasion of size 2/3 cm x 1/3 cm each obliquely placed on upper part of neck anteriorly.

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4. Abrasion of size 5 cm x ½ cm on posterior aspect of right fore arm at toximal 2/3^rd region reddish in colour.

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5. Abrasion 5 cm x 1 ½ cm at lateral aspect of toximal part of left forearm. Reddish in colour.

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6. Abrasion 1 cm x ½ cm at left sterno clavicles joint reddish in colour.

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7. Abrasion 1 ½ cm x 1 ½ cm at right great toe dorsal aspect and 1 ½ x 1 ½ cm at second toe on dorsal aspect, reddish in colour.

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On internal examination, he has observed
subgalial contusion of 5 cm x 4 cm at left parietal

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region and 7 x 3 ½ cm at right parietal region.
Hemorrhage behind the sternum at 1/3rd. Para spinal
muscles corresponding to C-6, C-7 vertebra contusion.
Fracture dislocation of C-6 C-7 vertebra with
compression of spinal cord seen. He has observed that
the cause of death is shock due to fracture dislocation
of C-6 and C-7. The Doctor has observed that the injury

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on the back would be caused due to jerk because of
assault by stick on the head. He has observed in the
cross examination that fracture of vertebra is possible
if there is assault on head by any hard and blunt
object.

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8.Learned Advocate for the appellant has

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submitted that if the cause of death is shock due to
fracture dislocation of C-6 and C-7, the appellant
cannot be said to have knowledge that his act would
result into the injury and that injury would ultimately
cause death of the deceased. According to the learned
Advocate for the appellant, by giving stick blows the
appellant did not intend to cause death of the deceased.
He further submitted that the incident took place on the

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spur of moment. According to him, appellant never
intended to cause the death of Santaram. As against
this, learned A.P.P. appearing on behalf of the State
submitted that the external as well as internal injuries
clearly show that Santaram was severely beaten and it

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resulted into shock due to fracture dislocation of C-6

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and C-7 vertebra and it turned out to be fatal.
According to learned A.P.P. the learned trial Judge was
right in coming to the conclusion that the appellant
should be convicted under section 304 part II of the
Indian Penal Code.

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9. It must be mentioned that the injuries suffered

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by Santaram and the one which are reflected in the post
mortem report are in consonance with the story put up by
the prosecution that the assault was made by hard and
blunt object. After having perused the evidence of Dr.
Chavan p.w.5, I am inclined to observe that the injuries
are caused due to the assault by the appellant. The
very fact that Santaram suffered shock due to fracture
dislocation of C-6 and C-7 vertebra clearly indicates
that the impact of the assault was not ordinary and that
Santaram did suffer a serious fracture to his vertebra

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with compression of spinal cord as observed by Dr.
Chavan p.w.5. Hence I am inclined to observe that

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appellant had the knowledge that on account of assault
inflicted by him upon Santaram with a stick Santaram
would die. The stick has been recovered in the course
of investigation.

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10.After having considered the relevant evidence
discussed above, I am inclined to observe that the
learned Additional Sessions Judge rightly came to the
conclusion that the appellant should be convicted under
section 304 part II of Indian Penal Code. I see no
difficulty in confirming that part of the judgment.

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11.The learned Advocate Shri. Hemantkumar Pawar
appearing for the appellant had submitted that Swati
p.w.2 has filed an application for compromise stating
therein that dispute between relatives of Santaram and
present appellant is settled. In the said application,
it is also stated that the present appellant is
suffering from serious ailment. Learned Advocate for
the appellant had relied upon a judgment of Hon'ble

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Supreme Court in the case of Rampal Vs. State of Madhya
Pradesh 2000 (9) S.C.C. 61 and had submitted that the
court had accepted the case of compounding. He had,
therefore, submitted that compounding of the offence be
permitted. Alternatively it is submitted that the
appellant be released on lesser punishment namely
whatsoever punishment he has undergone. He had pointed
out that the appellant has undergone 3 months
imprisonment.

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12.The learned Advocate for the appellant

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submitted that fine amount may be increased so that the
relatives of the deceased can be suitably compensated.
He had placed above submissions for consideration of the
Court ultimately to see that some relief is given to the
appellant and the appellant is not required to undergo
imprisonment.

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13. The learned A.P.P. for the State opposed the
submissions and submitted that the learned Additional

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Sessions Judge has considered the aspect of punishment
in proper perspective and has rightly sentenced the
appellant for the term and the fine set out in the
impugned judgment.

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14.I have considered the rival submissions.

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Perusal of entire record goes to show that Santaram
merely requested the appellant that he should treat the
cow properly as the cow is like the mother. Apparently
for no reasons the appellant lost his temper and
assaulted Santaram which ultimately resulted in his
death. The incident had taken place on 16.8.1995.
Looking to the fact that the incident is of the year
1995, I am inclined to take lenient view in the matter.
I am inclined to accept the submissions of the learned
Advocate for the appellant. The fine amount can be
increased and term of punishment can be reduced. The
learned Additional Sessions Judge has sentenced the
appellant to pay fine of Rs. 5,000/- and has ordered
that the appellant should undergo rigorous imprisonment

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for 4 years. Having considered the submissions made by
the learned Advocate for the appellant, I am inclined to
observe that fine amount can be increased to Rs.18,000/-
(Rupees eighteen thousand only) and out of the said fine
amount, a sum of Rs. 15,000/- (Rupees fifteen thousand
only) can be paid to Swati P.w.no.2 who is alive as it
is reported that Drupadabai p.w.1 widow of Santaram has
since expired. In so far as sentence of imprisonment is
concerned, I am inclined to reduce the sentence from a
period of 4 years to 6 months which means that the
appellant will have to pay fine of Rs.18,000/- and will
have to undergo imprisonment for a period of 6 months.
Of course, in default of payment of fine amount of
Rs.18,000/-, the appellant will have to undergo simple
imprisonment for a period of one month. In my view, the
aforesaid punishment would meet the ends of justice.
Some time will have to be given to the appellant to pay
fine amount. The appellant is present on bail. Some
time will have to be given to surrender to his bail to
undergo unserved punishment, if any. For the reasons

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mentioned aforesaid, appeal is disposed of by passing
the following order.

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ORDER

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1. The appeal is partly allowed.

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2. Judgment and order dated 22.12.1998 passed by learned Additional Sessions Judge, Aurangabad, in S.C.No.288/95 by which the appellant is convicted under section 304 Part II of the Indian Penal Code is confirmed.

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3. The order of sentence and payment of fine is substituted by following order.

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4.The appellant to pay fine of Rs. 18,000/-
(Rupees eighteen thousand only) and
undergo rigorous imprisonment for 6
months. In default of payment of fine, the
appellant to undergo simple imprisonment
for one month. Out of the said fine
amount of Rs.18,000/-, the court of
Additional Sessions Judge, Aurangabad,
shall pay to Swati p.w.2, an amount of

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Rs.15,000/-(Rupees fifteen thousand only)
by way of compensation.

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5.The appellant is granted time upto
16.01.2012 to pay fine of Rs. 18,000/-.
He is also granted time to surrender to
his bail upto 16.01.2012 i.e. to say the
appellant shall surrender to his bail on
or before 16.01.2012 to undergo unserved
punishment. Appellant be given set off as
regards period of detention already
undergone as per sec.428 of Cr.P.C.

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6. Criminal Application No. 5016 of 2011 is disposed in terms of the above order.

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vsm/criappeal114.99

Bhike Shamrao Bare v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Bhike Shamrao Bare v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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