Bombay High Court

Channappa Kallappa Hipargi vs The State Of Maharashtra on 13 December, 2012

Bench: V.K. Tahilramani, A. R. Joshi

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RMA     
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                    
                           CRIMINAL APPEAL NO. 444 OF 2005




                                                            
           1. Channappa Kallappa Hipargi                       ]
                Age : 32 Years.,                               ]
           2. Kallappa Shatyappa Hipargi                       ]
                Age : 62 Years.,                               ]




                                                           
           3. Jakavva Kallappa Hipargi                         ]
                Age : 47 Years.,                               ]
                All R/o. Girgaon, Tal. Jath, Dist. Sangli      ]




                                                 
                All at present at District Prison, Sangli      ] Appellants
                                    ig                         (Org. Accused Nos.
                                                                1 to 3)
                  Versus
                                  
           The State of Maharashtra                            ] Respondent

Mr. Umesh Mankapure, Advocate appointed for the Appellants

Mr. S.A. Shaikh, APP for the State

CORAM : SMT. V.K. TAHILRAMANI & A.R. JOSHI, JJ

DATE : DECEMBER 13, 2012.

ORAL JUDGMENT [PER SHRI. A.R. JOSHI, J]:

1. Heard rival submissions on this Criminal Appeal preferred by

all the three appellants - original accused Nos. 1 to 3 challenging

the judgment and order of conviction dated 30.03.2005 passed by

II Adhoc Addl. Sessions Judge, Sangli in Sessions Case No. 79 of

2003. By the impugned judgment and order, the appellants were

convicted under Section 302 read with Section 34 of IPC and

sentenced to suffer imprisonment for life and fine of Rs. 200/-

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each, in default RI for six months each. The appellants were also

convicted under Section 316 read with Section 34 of IPC and

sentenced to suffer RI for five years and to pay fine of Rs. 200

each, in default RI for three months each. The appellants were

further convicted under Section 498-A read with Section 34 of IPC

and sentenced to suffer RI for one year and to pay find of Rs. 200

each, in default RI for one month each. Learned Sessions Judge

directed all theses sentences to run concurrently.

2. The case of the prosecution, in nut shell, is as under:

Victim Saraswati was married with appellant - accused no. 1

Channappa eight years prior to the incident. The incident of

finding victim Saraswati dead at her matrimonial home, occurred

in the morning of 16.01.2003. After marriage, victim Saraswati

came to reside with her husband and in laws i.e the appellants at

Village Girgaon, Tal. Jath. Out of the wedlock between the victim

Saraswati and the appellant - accused no. 1, two children were

born. All were residing together at the agricultural land in a hut at

Village Girgaon.

3. Also according to the case of the prosecution, two years

prior to the date of the incident, there was kidney stone operation

of appellant - accused no. 1 and for that purpose, he had

expended about Rs. 15000/- and admittedly, had taken loan to

raise that amount. On this taking of loan, he had some discussion

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with the complainant PW 4 Bhimsha i.e the father of the victim. In

order to repay the said loan, the appellants were insisting victim

Saraswati to bring the said amount of Rs. 15000/- or at least bring

Rs. 10000/- from her parents. On that count, victim Saraswati was

being abused in filthy language and at times, the victim was also

not served food. All this ill-treatment was narrated by the victim

Saraswati to her father PW 4 Bhimsha and also to her uncle PW 5

Arjun. He was also informed that the threats were given to her by

the appellants to bring money and if not, they would kill her. On

said demand of money, there was a meeting held at the house of

the appellants in which it was made known by the relatives of

Saraswati to the appellants that the father of the victim was a

poor person and cannot raise that funds. So also request was

made to the appellants not to ill-treat Saraswati. After the said

meeting, relatives of Saraswati left the house, however, still, there

was no change in the circumstances.

4. Also according to the case of the prosecution, when

Saraswati was pregnant and was carrying, her father and uncle i.e

PW 4 Bhimsha and PW 5 Arjun had been to the house of Saraswati

for taking her to their home for the purpose of delivery, however,

at that time, appellant - accused no. 1 refused to send Saraswati.

That time, there was again disclosure by Saraswati regarding ill-

treatment given to her by the appellants on account of demand of

money and she has also expressed danger to her life at the hands

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of the appellants and requested her father to arrange for the

amount to satisfy the demand of the appellants. However, PW 4

Bhimsha, father of the victim was not in a position to raise that

amount.

5. Thereafter, on 16.01.2003 at about 07.00 a.m., one

Gurusidhappa informed PW 5 Arjun, i.e uncle of the victim

Saraswati that Saraswati had expired during the progress of

delivery. Immediately, PW 4 Bhimsha and PW 5 Arjun and other

relatives rushed to the house of the victim, however, noticed that

there was no situation like delivery and death of Saraswati during

the course of such delivery. On the contrary, they noticed that

there was some cloth tied around the chin of the victim and there

were various injuries on the neck and chest of the victim. There

was also head injury. On noticing these circumstances and finding

that Saraswati had already died and had sustained some injuries

around her neck, PW 4 Bhimsha, father of the victim rushed to

Police Station, Umadi and lodged FIR. PW 4 Bhimsha gave his

complaint in Kannad language which was interpreted with the

help of one Sukhdeo Pujari and was written down by the police in

Marathi. Written contents were also interpreted to the

complainant PW4 Bhimsha in Kannad and on finding them correct

and after putting thumb impression by PW 4 , it was treated as FIR

(Exhibit 23). Offence was registered against all the three

appellants - accused initially for the offence punishable under

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Section 302 and Section 498-A read with Section 34 of IPC. At

that time, it was not discovered as to what had happened to the

foetus in the womb of victim Saraswati, as she was then pregnant

of eight months.

6. According to the case of the prosecution, inquest

panchnama was conducted on the dead body of Saraswati.

Clothes and ornaments on the dead body were taken charge of by

separate panchnama. The dead body was sent for postmortem

and the postmortem report was obtained which is at Exhibit 15.

Advance death certificate (Exhibit 16) was also obtained. During

the course of the postmortem, it was revealed that the victim

Saraswati was carrying for eight months and as such, the foetus in

the womb had also died. On noticing this factual position, offence

punishable under Section 316 read with Section 34 of IPC was

added in the charge sheet.

7. On the same day of incident i.e on 16.01.2003, spot

panchnama (Exhibit 18) was conducted. Statements of various

witnesses were recorded including that of PW 5 Arjun, the uncle of

victim Saraswati. During the course of investigation, on

17.01.2003 at about 05.30 p.m., appellants - accused nos. 1 and 2

were put under arrest and clothes on their persons were taken

charge of under the panchnama. The said arrest-cum--seizure

panchnama is at Exhibit 27 before the Court. Appellant-accused

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No. 3, mother of accused No. 1 was subsequently arrested on

20.01.2003 at about 08.40 a.m.

8. During the course of investigation, according to the case of

prosecution, accused No. 1 made a voluntary statement to

produce the stick and accordingly, on 19.01.2003, said stick was

taken charge of under the panchnama. On completion of

investigation, charge sheet was filed before the concerned JMFC

Court. Matter was committed to the Court of Sessions and it

ended in conviction for the offences charged as mentioned above

and the said conviction is challenged by the present appellants-

accused Nos. 1 to 3 by filing the present Appeal.

9. Before going to discuss the arguments advanced by the

learned Advocate Mr. Mankapure, on behalf of the appellants,

following certain admitted factual position is required to be

narrated here in order to have proper perspective of the matter

and in order to limit the scope of the arguments:-

(a) It is the case of the custodial death and admittedly, all

the appellants-accused were present in the house

where the dead body of victim Saraswati was found at

the early hours of 16.01.2003;

(b)At the time of death, victim Saraswati was pregnant

for 8 months and she had a male foetus in her womb.

It was further confirmed by the observations in the

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post-mortem conducted by PW 1 Dr. Dadu Pawar;

(c) Delivery process had not yet started when the dead

body of victim Saraswati was found in the house of the

appellants - accused;

(d)Appellant- accused No. 1 had undergone kidney stone

operation about two years prior to the incident of

16.01.2003 and for that purpose, he had obtained a

loan of Rs. 15000/- and to repay the same, he was in

need of money;

(e) The defence of the accused is that of total denial and

false implication and also alternatively, there is a

defence that victim Saraswati had fallen in the house

and had sustained injuries which were noticed by the

Doctor during post-mortem examination;

(f) Probable cause of death of the victim was asphyxia

due to throttling.

10. Now, to determine the above position, the evidence led

before the trial Court is required to be analyzed in the light of the

argument advanced by learned Advocate for the appellants-

accused. The entire case of the prosecution is based on

substantive evidence of PW 4 Bhimsha and PW 5 Arjun i.e the

father and the uncle of the victim. On going through their

substantive evidence, we find that their evidence is consistent

with each other and there are no material omissions brought on

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record so far as the main allegations against the appellants-

accused as to demand of money and giving threat to kill the

victim if the demands are not fulfilled. Apart from this

substantive evidence of PW 4 Bhimsha and PW 5 Arjun, the main

evidence on which the case of the prosecution is established is

the substantive evidence of PW 1 Dr. Dadu Pawar. In fact,

considering his substantive evidence and considering the contents

of the post-mortem report and expert opinion given by the said

Doctor, safely, the main defence of the appellants-accused as to

sustaining injury by fall, is negated. In other words also, if at all, it

is considered that the said injuries could have been caused by a

fall, then also, the factual circumstance regarding the topography

of place of offence do not support the said theory advanced on

behalf of the appellants-accused. In other words, even on

preponderance of probability, the said defence of accidental fall

and sustaining injuries leading to the death of the victim who was

pregnant of eight months, cannot be accepted. On this aspect, it

is brought to our notice the answer given by PW 2 Pancha witness

for the scene of the offence that while entering the hut of the

victim and the appellants accused, one has to bend down. By

pointing out this, it is argued that this answer pre-supposes that

the hut of the appellants-accused was having a floor below the

ground level but said type of inference, even by stretch of

imagination, cannot be gathered as the said panch witness had

mentioned that the entry door of the hut is only of the height of

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3.5 feet to 4 feet and due to this reason, one has to bend down

while entering the hut. This factual position negates the defence

raised on behalf of the appellant-accused.

11. Secondly, it is argued that there were no threats given by

the appellants-accused to kill Saraswati if their demands were not

fulfilled. On this aspect, we have carefully gone through the

substantive evidence of PW 4 Bhimsha and PW 5 Arjun and also of

PW 7 Investigating Officer Satish Palasdevakar. Nowhere, it is

brought on record that the threat of killing given by the appellants

to the victim is an omission. On this aspect, on carefully going

through the answer given by PW 7 PI, Satish Palasdevekar during

his cross-examination, at the most, it can be gathered that the

omission is only with respect to killing by way of 'pressing neck'.

In our considered view, though, there is omission regarding the

mode in which the killing to be effected, it is not of such a

material value so as to negate the case of the prosecution and so

as to doubt the substantive evidence of PW 4 Bhimsha and PW 5

Arjun. In other words, at the cost of repetition, it must be

mentioned that there is no omission on the aspect of threats of

killing given by the appellants-accused to the victim and victim

narrated the same to her relatives. In the present matter where

the victim was pregnant for eight months, the medical evidence is

of much importance which has been reflected through the

substantive evidence of PW 1 Dr. Dadu Pawar. The injuries found

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on the dead body of Saraswati and which are reflected in the post-

mortem report as well as substantive evidence of PW 1 Dr. Dadu

Pawar are reproduced here under with advantage:-

i. Bruises (ecchymoses) on the right side of neck at thyroid cartilage 2 X 1 cm horizontally.,

ii. Abrasion on the left side of the neck lateral to the thyroid cartilage 1 X 1 cm.,

iii. Bruises (ecchymoses) on the neck below the injury No.

2, 2 X 2 cm horizontally with blackish discolouration.

iv. Bruises (ecchymoses) on the neck below the injury No. 3 and above the zipisternum 2 X 2 cm with blackish discolouration.

v. Contusion on the xipisternum 2 X 2 cm with blackish

discolouration.

vi. Bruises on the midline of neck and thyroid cartilage 3

X 2 cm horizontally with blackish discolouration;

vii.Abrasion on the right leg on the lateral side at middle 1/3rd 3 X 2 cm with clotted blood.

viii. Multiple abrasion on the right side of chest at midaxillary line 1/2 cm dimension;

ix. Abrasion on the back at lumber region 3 X 2 cm;

x. CLW on the right parital region at midline 3 X 2 cm

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horizontally with clotted blood;

xi. Age of injury was within 48 to 72 hours. Type of injury

Nos. 1 to 6 and 10 are dangerous injuries. Injuries Nos. 7, 8 and 9 are simple in nature. Object of the

injury was hard and blunt. All injuries were ante- mortem.

On internal examination, PW 1 Dr. Dadu Pawar found

following injuries:-

i. CLW on the right parital region on the midline 3 X 2 cm skin deep with clotted blood;

ii. Subcutaneous tissue of the neck shows extravation of

blood beneath the injured are;

iii. Submucosal hemorrhage of larnyz and musole;

iv. Hemorrhage at the base of the tongue, on right lungs was conjusted / cut section shows reddish frothy fluid. Left lungs conjusted cut section shows reddish fluid.

Apart from these observations, it is also found out that it is

specifically opined by the said expert witness PW 1 Dr. Dadu

Pawar as to under which circumstances, the injuries which he

observed on the dead body could have been inflicted. These

observations are found in paragraph 7 of the substantive evidence

of PW 1 Dr. Dadu Pawar. The said evidence is reproduced here

under with advantage:-

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"If 2-3 persons by caught holding to a person at his neck, then such type of injuries are possible as mentioned in the post-mortem notes.......