1 Criappeal364-04 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 364 OF 2004 Yamanappa Ramappa Ibrahimpure, Convict No. C – 2123, At present, undergoing imprisonment at Kolhapur Central Prison, Kalamba, Dist. Kolhapur. ... Appellant. V/s. State of Maharashtra. ... Respondent. Mr. Shekhar A. Ingawale for Appellant. Mrs. V.R. Bhosale, P.P., for Respondent. CORAM : P.B.MAJMUDAR & A.A.SAYED, JJ. DATE : 24th MARCH, 2011 ORAL JUDGMENT (PER P.B. MAJMUDAR, J.) : This appeal is directed against the judgment and order passed by the 2nd Ad-hoc Addl. Sessions Judge, Kolhapur dated 24th March, 2003 in Sessions Case No. 206 of 2002. By the impugned judgment, the learned trial 2 Criappeal364-04 Judge has convicted the appellant for the offence punishable under Section 302 IPC and has sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for six months. 2. It is the case of the prosecution that the appellant-accused intentionally committed murder of his wife, namely, Devaki Yamanappa Ibrahimpure between 12.00 to 18.00 p.m. on 20th July, 2002 within the limits of village Balinga in the area known as Gosavi Vasahat, Tal-Karvir, Dist. Kolhapur. It is the case of the prosecution that the accused assaulted his wife with fist blows on her person which resulted in the death of the deceased. A charge was framed against the appellant. The accused did not plead guilty to the charge and claimed to be tried. 3. The deceased Devaki Yamanappa Ibrahimpure was the wife of the appellant-accused. Prior to the incident in question, her marriage with the accused was performed six years ago. It is the case of the prosecution that after the marriage, for a period of three months the deceased resided at the house of the accused and thereafter since she was subjected to illtreatment under the influence of liquor, she went at her father’s house and stayed with her father for about six years. One month prior to the incident, she returned back to the house of the accused. During the aforesaid period, the accused had telephoned to the father of the deceased Devaki Yamanappa Ibrahimpure that they are going on well. It is also the case of the prosecution that after the incident in question, a 3 Criappeal364-04 telephone call was received at the Afjalpur police station informing the police station about the murder of deceased Devaki. Thereafter there was a telephone call of Afjalpur Police Station to the police patil of village DesaiKallur. The father of the deceased was thereafter informed about the said incident. The deceased was taken to the C.P.R. Hospital. The father of the deceased reached the hospital with relatives and they found the dead body of the deceased daughter. As per the case of the prosecution, the accused on the date of the incident dated 20th July, 2002 went to the house of the sarpanch of village Balinga and informed that quarrel had taken place between him and his wife and so he had beaten her by fist and kick blows and because of the same she has become unconscious. The concerned police officer carried the investigation in the matter and submitted the charge sheet. The matter was thereafter referred to Sessions Court. The learned Judge thereafter framed the charge at Exh. 2. The accused did not plead guilty and claimed to be tried. 4. On behalf of the prosecution, 11 witnesses were examined. One Subhash Nivruti Sutar was examined as PW-1 at Exhibit 8. The said witness is a panch witness. The spot of incident was shown to him by the brother-in-law of the accused. The panchanama was prepared in his presence regarding spot of incident. In the cross-examination, the said witness has said that the spot of incident is far away from his house. The prosecution also examined one Nilavva Yellappa Katti as PW-2 at Exh – 16. The said witness is the sister of the accused. However, the said witness has not supported the case of the 4 Criappeal364-04 prosecution and was declared hostile. The A.P.P. was granted permission to cross-examine the said witness. In the cross-examination the said witness has said that the police recorded her statement as per her version. She denied the suggestion that she has stated before the police the portion marked A from her statement. She denied the suggestion that the accused was not doing any business. In the cross-examination she has stated that the accused was married only with Devaki and he was pulling on happily with her in his married life. The prosecution has also examined Sharada Vellappa Doudmani (PW-3), another sister of the accused at Exh. 17. The said witness deposed in her evidence that the accused properly treated his wife Devaki. She has further stated that the accused has performed second marriage with a girl Shivamma. Since she has not supported the case of the prosecution, the said witness was also declared hostile and APP was granted permission to cross-examine her. She denied the suggestion that on 20/07/2002 the police recorded her statement about the incident. One Chandabai Shivaji Patil was examined as PW-4 at Exh. 18. The said witness has said that after the marriage for about six months Devaki stayed with the accused. She is a neighbour. Since the said witness also has not supported the prosecution case, the APP was granted permission to cross-examine the witness. However, the said witness confirmed the suggestion that the police had recorded her statement. She denied the suggestion that the police recorded her statement as per her say. One Rekha Devendra Athanikar was examined by the prosecution as PW-5. The said witness has interpreted the language by translating Marathi into Kannada as the language of the accused 5 Criappeal364-04 and other witnesses is Kannada. 5. One Malkappa Shivappa Shinge was examined as PW-6. The said witness is the father of the deceased. The said witness has said that the marriage of the accused with her daughter took place about six years ago. After the marriage, the accused and the deceased stayed together for three months at the house of the accused. Thereafter her daughter came back to his house in view of the fact that she was subjected to illtreatment by the husband under the influence of liquor. As per the evidence of the said witness, her daughter stayed with him in his house for about six years. He has further deposed that one month prior to the incident, her daughter had gone to the house of the accused from his house. The accused telephoned at their village and told him that Devaki and he were going on well. At that time he asked the accused to give the receiver to his daughter. However, he was told by the accused that since she was far away from the receiver he was unable to hand over the said receiver to her. The witness further deposed that after the incident in question, Afjalpur police station telephoned the police patil of the village, namely, Allan Patel. The said witness has further deposed that after the incident the police patil of the village, namely, Allan Patel told him about the murder of his daughter. Thereafter the witness says that he, his nephew and the son of his sister came to Kolhapur. After reaching Kolhapur, they went to the Govt. Hospital. The police has shown the dead body of his daughter. The said witness identified his daughter and dead body was handed over to him. In the cross-examination he 6 Criappeal364-04 stated that on inquiry at the time of marriage of his daughter with the accused, the accused was doing work at brick kiln. He has further stated that after the marriage Devaki came to his village for the first time and told about the incident of beating by her husband under the influence of liquor. The accused thereafter dropped his wife Devaki at his house where she stayed for six years. During the said period, he tried to see that the deceased may take his daughter Devaki at his house. In the cross-examination the said witness has stated that he subsequently sent his daughter along with Joti after giving her presents as per custom. Subsequently after about 8 days he received a telephone call from the accused stating that everything was O.K. The witness further states that when he requested the accused to give telephone receiver to his daughter Devaki, the accused told him that she was far away from telephone set and if he calls her the telephone bill may increase. According to the said witness, after Devaki and accused left his house, he saw his daughter at the time of her death. 6. The prosecution also examined Dr. Sanjay Murlidhar Padhdhye (PW-7). The said doctor was attached to CPR Hospital, Kolhapur as a Medical Officer. The said doctor carried out post-mortem of the deceased. The said witness has certified the cause of death as murder. The certificate issued by the said doctor is at Exhibit 25. The said doctor prepared the post-mortem report. The same is at Exhibit-26. The said witness said about the external examination in para 3 and has described the injuries as under :- 7 Criappeal364-04 1) (a) Contusion of red colour noted over left thigh of size 13 x 7 cm. (anteriorly). (b) Left fore arm of size 14 x 7 cm. (anteriorly) (c) Left shoulder (anterior) 5x7cm. 2) CLW over left parital area of size 7x2 cm. Scalp deep. Fresh blood and bloodclots found. 3) Bilateral peri orbitrary contusions of redish blue colour of size 5x2 cm. Each. 4) Scratch marks over left side of neck, of size 5 cm and 4 cm. 5) Contusion black coloured of size 2x1cm over right cheek. 6) CLW over right fore-arm 3x2x1 cm. With fresh blood and blood-clots present. 7) Infected would left shin with scropuralant discharged of size 4x1cm. 7. According to the said doctor, injury nos. 1 to 4 and 6 were within 24 hours and injury no. 5 was within three days. Injury no. 7 was about four days back. According to the said witness, the aforesaid injuries are possible 8 Criappeal364-04 due to hard and blunt object except the injury no. 7. During the internal examination the doctor found that there were fractures of ribs right side 3rd to 8th and left side 3rd to 6th. It is also deposed by the said doctor that injuries are sufficient in the ordinary course of nature, to cause the death of the deceased, especially the injuries found in thorax region. According to the said witness, the aforesaid injuries are possible if a person is beaten with fist and kick blows. Nothing substantial is brought out in the cross-examination of the said witness. 8. The prosecution also examined Anil Yashvant Powar (PW-8) who was sarpanch of the village. According to the said witness, on 20/07/2002, he returned to his village from his office and he was chit-chating with one Vishwas Baburao Todkar in his house. At that time, the accused came to his house and he told him that a quarrel took place between him and his wife so he had beaten her by fist and kick blows and due to it she has become unconscious. At that time, police jeep came to their village and according to the said witness he and Police Inspector Sutar had gone to the house of the accused wherein they found the dead body of the deceased. The police performed the inquest panchanama of the dead body and then the dead body was sent to C.P.R. Hospital for post-mortem. In cross-examination, the witness has stated that he is knowing the accused for 15 years. The said witness has said that as per the say of the Grampanchayat the accused constructed his house by encroaching upon the land. The said witness has also said that as per the say of the accused, the said land was owned by his father and not by the Grampanchayat. According to the said witness, the 9 Criappeal364-04 accused made extra-judicial confession before him that he has beaten his wife in view of the quarrel that took place between him and his wife. The said witness in the cross-examination has stated that he has not said to PI Sutar about the talk which took place between him and the accused. The said witness has stated that at the time when he was in the house of the accused for 1 ½ hours, he told PI Sutar that he has killed his wife and his statement was recorded after two days after the incident occurred. In the cross-examination, the said witness has stated that he has not stated to the police that the accused came inside his house and has not stated that the accused entered his house and told him about the quarrel with his wife and about beating his wife. 9. The prosecution also examined one Vishwas Baburao Todkar (PW-9) who was serving as labourer in Water Supply Department.of the Kolhapur Corporation. According to the said witness, he was present along with the sarpanch on the relevant day at his house. At that time the accused came there and told sarpanch about the quarrel which took place between him and his wife. Subsequently police jeep came at the said place and the sarpanch and the accused went to the house of the accused. The said witness has further stated that the accused told him that his wife Devaki died in his house and she has become unconscious. The said witness has not supported the prosecution and, therefore, was declared hostile and the APP was granted permission to cross-examine him. The witness denied the suggestion that he has stated before the police the portion marked B of his statement. The said witness 10 Criappeal364-04 was also cross-examined by the accused. 10. The prosecution has examined one Ishwar Sangappa Sutar (PW-10), a police constable and who was serving at Karveer Police Station, Kolhapur at the relevant time. The said witness has stated that he received a anonymous telephone call from the village Balinga regarding the factum that the accused had committed murder of his wife and that he was about to dispose of her dead body. The said witness has further stated that thereafter along with police staff they went to village Balinga and there they found one person standing there and he disclosed his name as Yamannappa Ramanna Ibrahimpuri (present accused). Inside the house the dead body of the deceased was found. The said witness stated that the accused told him that the lady was his wife and her name was Devaki. The concerned police officer thereafter informed the police station. He subsequently filed a FIR and carried out further investigation. The said witness in cross-examination stated that he has not made any entry about the telephone call which he has initially received for which he said that he cannot assign any reasons. 11. The prosecution has also examined one Jayvantrao Ramchandra Deshmukh (PW-11) who was attached to the Karveer Police Staton as P.I. The said witness has carried out investigation in the case and prepared panchanama of the incident by visiting the site. The said witness has stated that he recorded the statement of witnesses. In the cross-examination he has stated that he has 11 Criappeal364-04 recorded the statement of P.W.-9 Vishwas Baburao Todkar as per his version. He has not stated before him that on the date of incident the accused came to the house of sarpanch. 12, The prosecution has examined the aforesaid witnesses to prove its case. The accused’s statement was recorded under Section 313. The accused also filed his reply. The accused also gave his written submissions under Section 313 of Cr. P. C. He has stated that he has been falsely implicated in the incident by the sarpanch because of dispute going on between him and the sarpanch. 13. As per the evidence on record it is established by the prosecution that after about three months after the marriage the deceased went to the house of her father where she stayed for six years. Subsequently the accused came to the house of the father of the deceased and stayed there for about one month. Subsequently, the deceased went with her husband. This is a case of circumstantial evidence as no direct evidence is forthcoming. It is required to be noted, however, that it is not in issue that the accused and the deceased were staying together at the relevant time and the deceased was found dead in the house of the accused. It is true that as argued by the learned counsel for the accused-appellant that the only strong piece of evidence is extra-judicial confession before the sarpanch which according to him is not believable since land dispute was going on. However, during the course of hearing he has fairly 12 Criappeal364-04 submitted that he is restricting his arguments for altering the offence punishable under Section 302 to Section 304 Part II IPC. It is also required to be noted that though the accused has taken a plea of alibi, in his defence he has not taken a stand that the accused was not in house at the relevant time. The learned trial Judge has found that there is no reason to disbelieve the say of the sarpanch of the accused informing him about giving fist blows. This part is corroborated by medical evidence. There were severe rib injuries on the body of the deceased. Though it is true that the statement of sarpanch is not finding place in the FIR filed by the concerned police officer, but that itself will not be sufficient to discard the evidenece of sarpanch as nothing substantial is brought on record by the learned counsel for the appellant to discard the evidence of sarpanch. In any case, the learned counsel for the appellant has restricted his arguments in connection with applicability of Section 304 II IPC, as according to him it cannot be said that there was any intentional act on the part of the accused with a motive to commit the murder of his wife. In any case, considering the evidence of the prosecution, it is clear that in the past the wife was subjected to illtreatment may be under the influence of liquor at the hands of the accused. It is also required to be noted that as per the medical evidence of post mortem report two injuries were within two to four days. The accused and his wife both were staying alone in the house. Considering the totality of the evidence, in our view, the learned trial Judge has rightly found that it is the accused who has committed the aforesaid act about killing his wife. The learned Judge has relied upon the evidence of sarpanch as well as the fact that about six years 13 Criappeal364-04 back also the deceased was getting beating at the hands of the accused. Considering the totality of the evidence, therefore, there is no reason to disbelieve the case of the prosecution and it cannot be said that the prosecution has failed to prove its case beyond doubt about homicidal death of the deceased as she ultimately succumbed to the serious injuries inflicted by the accused to her. The injuries which are found on the body of the deceased even otherwise are corroborated by the medical evidence. 14. As pointed out earlier, since there is no direct evidence in this behalf, in our view, the circumstances as considered by the learned 2nd Ad-hoc Sessions Judge coupled with the evidence which was discussed as well as considering the submissions of the learned counsel for the appellant where he has restricted his arguments under Section 304 Part II, it is clear that this is not a case where the accused is entitled to clean acquittal. 15. The next question which arises for our consideration is as to under which Section of the IPC the accused is said to have committed the offence. It is required to be noted that the prosecution has not led any evidence of neighbouring witnesses about the alleged illtreatment continuously during the period during which the deceased stayed with the accused after reunion. It is also required to be noted that there is nothing on record to show that even as per the evidence father of the deceased, there is nothing to show that during that period, she ever tried to contact him about the illtreatment or that she has 14 Criappeal364-04 disclosed anything to the neighbour. It is required to be noted that as per the evidence led by the prosecution, the accused himself went to sarpanch and informed the incident in question. He has not tried to run away. Though it may be true that he might have beaten the wife even in the past, in view of the medical evidence and in view of the fact that the accused under the influence of liquor used to beat his wife i.e. six years back, since there is no evidence about the motive on record nor there is anything on record that the accused was illtreating the wife all throughout the aforesaid period or was demanding dowry, however, from the evidence on record, it is not possible to believe that the act of the deceased by which death is caused is done with intention of causing death or such bodily injury as was likely to cause death. It is true that the act is done which is likely to cause death in view of the severe injuries. But, in the absence of any evidence about the prior illtreatment or any cruelty caused by the accused to the deceased, it cannot be said that there was intention on the part of the accused to cause such bodily injury which is likely to cause death. Even as per the evidence of Sarpanch, the accused told him that because of sudden quarrel, the incident has taken place. As pointed out earlier, since there is no motive attributed to the accused and from the evidence on record it is not possible to believe that with an intention to cause death the injury was caused by the accused to the deceased. Considering the evidence on record, we are of the opinion that the prosecution has failed to prove its case regarding offence punishable under Section 302 of IPC. 15 Criappeal364-04 16. In the case of Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687, the Supreme Court has observed in para 10 as under :- “10. Mr. Lalit then, seriously challenged the conviction of the appellant under Section 302 of the Indian Penal Code. He urged that the appellant had neither intention nor knowledge that such an injury would result into the death of Madhavan. He, therefore, urged that the appellant at the most could be convicted for any other minor offence. Mr. George, appearing for the State of Kerala urged that the appellant was rightly convicted under Section 302 of the Indian Penal Code and no interference was called for. After giving our careful thought to the nature of offence, we are of the considered view that the offence of the appellant would more appropriately fall under Section 304 part II of the Indian Penal Code. The appellant had given one blow with a pair of scissors on the vital part of the body of Madhavan and, therefore, it would be reasonable to infer that he (appellant) has knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. We accordingly alter the conviction of the appellant from302 IPC to one under Section 304 part II of the IPC. “ 16 Criappeal364-04 17. Considering the said aspect, we convert the conviction of the appellant from Section 302 IPC to one under Section 304 Part II of IPC. The accused