1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.114 OF 1999 Bhika s/o Shamrao Bare, Age 30 years, Occ. Service, r/o Mandave, a/p Jarandi, Tq. Soygaon, Dist. Aurangabad APPELLANT VERSUS 1. The State of Maharashtra 2. Draupadabai w/o Santaram Pawar, Age 56 years, Occ. Labour, r/o Turkabad (Kharadi), Tq. Gangapur, Dist. Aurangabad RESPONDENTS Shri. Hemantkumar Pawar, Advocate holding for Shri. A.H. Kapadia, Advocate for the appellant Shri. B.V.Wagh, A.P.P.for the respondent no.1 WITH CRIMINAL APPLICATION NO. 5016 of 2011 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 2 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 APPLICANTS VERSUS 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. RESPONDENTS Shri. R.G.Chavan, Advocate for the applicants Shri. B.V.Wagh, A.P.P. for respondent no.1 Shri. Hemantkumar Pawar, Advocate holding for Shri. A.H. Kapadia, Advocate for respondent no.2 CORAM : R.Y.GANOO, J. DATE : 23.11.2011 JUDGMENT : 1. The appellant herein is convicted under section 304 Part II of Indian Penal Code and is sentenced to 3 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. 2. The prosecution case in gist is as under. On 16.08.1995, Santaram, the deceased was near 4 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 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 5 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. 3. In the course of trial, prosecution examined following witnesses. 1. Dropadabai w/o Santaram Pawar as p.W.no.1 2. Swati d/o Subhash Wagh as p.w.no.2 3. Radhakishan Bhagaji Salve as p.w.no.3 4. Jyoti d/o Subhash Wagh as p.w.no.4 5. Dr.Kalidas Dattatraya Chavan, Medical Practitioner attached to S.R.T.S. College, Ambajogai, as p.w.no.5 6. Abarao Shankarrao Nalawade, police staff as p.w.no.6 7. Deepak Namdeo Patil, Police Constable as p.w.no.7, and 6 8. Vitthal Laxman Toge, a pach as regards recovery of a stick. 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. 4. With the assistance of learned Advocates on 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 7 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. 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 8 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. 6. I have perused the evidence of Swati p.w.2 and 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 9 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. 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. 1. C.L.W. 2 cm. X 2 cm. X bone deep at right parietal eminence. 2. C.L.W. 1 ½ x 1 cm x ½ cm at left parietal eminence. 3. Two abrasion of size 2/3 cm x 1/3 cm each obliquely placed on upper part of neck anteriorly. 10 4. Abrasion of size 5 cm x ½ cm on posterior aspect of right fore arm at toximal 2/3rd region reddish in colour. 5. Abrasion 5 cm x 1 ½ cm at lateral aspect of toximal part of left forearm. Reddish in colour. 6. Abrasion 1 cm x ½ cm at left sterno clavicles joint reddish in colour. 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. On internal examination, he has observed subgalial contusion of 5 cm x 4 cm at left parietal 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 11 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. 8. Learned Advocate for the appellant has 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 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 12 resulted into shock due to fracture dislocation of C-6 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. 9. It must be mentioned that the injuries suffered 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 with compression of spinal cord as observed by Dr. Chavan p.w.5. Hence I am inclined to observe that 13 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. 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. 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 14 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. 12. The learned Advocate for the appellant 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. 13. The learned A.P.P. for the State opposed the submissions and submitted that the learned Additional 15 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. 14. I have considered the rival submissions. 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 16 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 17 mentioned aforesaid, appeal is disposed of by passing the following order. ORDER 1. The appeal is partly allowed. 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. 3. The order of sentence and payment of fine is substituted by following order. 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 18 Rs.15,000/-(Rupees fifteen thousand only) by way of compensation. 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. 6. Criminal Application No. 5016 of 2011 is disposed in terms of the above order. (R.Y.Ganoo,J.) vsm/criappeal114.99