Partly allowed

Vilas Namdeo Kalamkar v. the State of Maharashtra

Bombay HC8 Aug 2013APEAL/521/2010

Case brief

AI extract

What is this about?

The High Court set aside the appellant's conviction and life sentence for murder. Finding mitigating circumstances and a context of quarrel, the court reconvicted him under Section 304 Part II IPC and awarded an eight-year rigorous imprisonment.

What did the court decide?

Conviction for murder set aside; appellant convicted under Section 304 Part II IPC and sentenced to eight years rigorous imprisonment.

Vilas Namdeo Kalamkar Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 521 OF 2010

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Vilas Namdeo Kalamkar	]
Age 29 Years, Occupation : Nil,	]
Residing at Rathoda Mahamunkar Chawl,	]
Khopoli, Tal. Khalapur, Dist. Raigad.	]
Currently lodged at Nashik Road Central	]
Prison as Convict No. 8006.	] Appellant (Org. Accused)

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Versus

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The State of Maharashtra ] ( At the instance of Khopoli Police Station, ] Raigad. ) ] Respondent

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Mr. Arfan Sait, Advocate appointed for the Appellant

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Mrs. S.V. Gajare, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 8, 2013.

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ORAL JUDGMENT [PER MRS. MRIDULA BHATKAR, J.] :-

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The appellant-original accused has preferred this appeal

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against the judgment and order dated 16.11.2009 passed by the

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Additional Sessions Judge, Raigad - Alibaug in Sessions Case No.

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234 of 2008. By the said judgment and order, the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs. 1000/- in default R.I. for one year.

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As per the case of the prosecution, the appellant has committed murder of his wife Gauri on the night intervening 27th and 28th July, 2008. The appellant and the deceased got married nearly seven years prior to the incident. It was a love marriage and out of the said wedlock, they had twins i.e one son and one daughter. Unfortunately, the son had died three years prior to the incident. The appellant and the deceased were labourers and their married life was smooth for nearly six years, however, one year prior to the incident, the appellant met with an accident and he started consuming liquor and addicted to liquor. He used to abuse and beat Gauri. Gauri used to complain about the beating by her husband to PW 1 Laxmibai and her brother PW 2 Datta.

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2.1 On the night intervening 27th and 28th July 2008, Gauri died. In the morning at 06.00 a.m., the appellant informed PW 1 Laxmibai and PW 2 Datta that Gauri was dead. The appellant told them that she fell down in hearth accidentally, caused head injury and burn injury and died. PW 1 Laxmi and PW 2 Datta informed about the death of Gauri to police. They had gathered in the house of the appellant. The police on the basis of the report given by PW 2 Datta, registered the case as A.D. No. 23 on 28.03.2008 at Khopoli Police Station, Dist. Raigad.

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2.2 Dead body of Gauri was sent for postmortem. PW 7 Dr.

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Sachin had conducted the postmortem on the dead body of Gauri. Dr. Sachin opined that Gauri died due to head injury and it was unnatural death. After receiving the report of the postmortem, the police recorded the complaint of PW 1 Laxmi. The Police registered the offence as C.R. No. 118 of 2008 of Khopoli Police Station against the appellant under Section 302 of IPC. The police

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had drawn inquest panchnama on 28.07.2008 (Exh. 12C). Panchnama of seizure of the clothes of the deceased dated

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29.07.2008 (Exh 14C) and panchnama of seizure of clothes of the appellant dated 30.07.2008 (Exh. 15) were drawn by the police. Police drew recovery panchnama in presence of PW 4 Nitin Gaikwad (Exh. 23 & 24). The appellant was arrested on the same day. Wooden log was recovered at the instance of the appellant. Spot panchnama (Exh 26) was drawn in presence of PW 5 Madhukar. Police sent the clothes and the wooden log for C.A. Police recorded the statements of the witnesses. After completion of the investigation, police submitted the charge sheet in the Court of Magistrate. The learned Magistrate committed the case to the Court of Sessions. Charge was framed under Section 302 of IPC and the trial was concluded in the conviction of the appellant, hence, this appeal.

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PW 1 Laxmi and PW 2 Datta have stated that the marriage between the appellant and the deceased was a love marriage and they had good family life for a period of 5 to 6 years. At the time of the incident, they had one daughter and both the appellant and

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the deceased were used to earn their livelihood by doing labour

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work. Both the witnesses have stated that one year prior to the

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incident, the appellant started consuming liquor and also used to beat Gauri. PW 1 Laxmibai has stated that a day prior to the incident, Gauri had visited her house and she told her that the appellant consumed liquor and beat her. Gauri also expressed fear that the appellant would kill her. Then Gauri went home and on the next day morning at around 06.00 a.m., the appellant had come to the house of Laxmibai and informed her that Gauri was dead. PW 2 Datta, the brother of Gauri corroborates the evidence of PW 1 Laxmibai on the point of the appellant reporting about the death of Gauri and her dead body was lying in the house. Both the witnesses immediately went to the house of the appellant and they found that Gauri was lying motionless. As Gauri was dead, they immediately reported the incident to the Police at Khopoli Police Station. The police arrived there and on the basis of the statement of PW 2 Datta, they recorded the death of Gauri as accidental death. Inquest panchnama was drawn and the reason given therein was an accidental death.

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PW 7 Dr. Sachin conducted the postmortem on the dead

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body of Gauri on 28.07.2008. Dr. Sachin noticed seven external injuries on the dead body. There were two contused lacerated wounds on parietal region and other five injuries were superficial burn injuries and the total burns were 9%. PW 7 Dr. Sachin opined the cause of death due to fracture to skull with intra cranial hemorrhage (unnatural). All the injuries were ante mortem. Thus, the evidence of PW 7 Dr. Sachin shows that the death of Gauri was not an accidental death but it was a homicidal

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death. PW 7 Dr. Sachin has denied the suggestion given by the learned defence Advocate that such injuries would cause due to fall. He has opined that at the most, one injury would be possible. Thus, on the basis of the postmortem report and the injuries caused to Gauri, it can be construed that there was assault on the head and due to that, Gauri fell down near the hearth and thus got 9% burn injuries. The appellant might have pulled her out or she might herself have come out of it but she could not survive and she died in the house on the same night. Timing of her death

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cannot be ascertained, however, it can be said that Gauri died

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before dinner. In paragraph 4 of the deposition, PW 4 Dr. Sachin has stated that the stomach was found empty. Thus, it can be said that the incident might have taken place before the appellant and the deceased had their food.

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Mr. Sait, learned Advocate for the appellant pointed out the

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reason given in the inquest panchnama (Exh. 12C). It has mentioned there that Gauri died due to fall in the hearth causing injuries to her head. We cannot accept this reason as the same cannot supersede the reasons given in the postmortem notes. In column 12 of the inquest panchnama, opinion of the police and panchas in respect of death of the deceased is mentioned. Thus, it is the opinion of the police and panchas which is generally based on the history given by the relatives of the deceased and on the basis of the condition of the body of the deceased and other circumstances found in the house. In the present case, there was burn injuries on the cheek, scapula and right hand. the

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head injury was noticed by panchas and the police. So, at that time, on the basis of the history given by the appellant, they must

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have thought that the cause of death might be accidental

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however, this opinion cannot overrule the expert's opinion given by PW 7 Dr. Sachin Gamsale. This opinion is examined by us on the basis of over all circumstances which are brought on record through PW 1 Laxmibai, PW 2 Datta and PW 3 Ramesh.

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As discussed earlier, PW 1 Laxmibai and PW 2 Datta were informed by the appellant that Gauri was dead. The information given by the appellant to PW 1 Laxmibai - aunt of the deceased and PW 2 Datta - brother of the deceased in the morning at 06.00 a.m and thereafter, they immediately went to the house of the appellant and they found that Gauri was dead. They noticed burn injuries on her body. PW 3 Ramesh Jadhav, the immediate neigbour has stated in his evidence that at around 07.30 to 07.45 p.m. on 27.07.2008, he heard quarrel between Gauri and the appellant. He has stated that it was a regular feature in that house and therefore, he did not go and intervene.

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If a dead body is found in the house, then the family

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members are expected to have a knowledge of how the person is

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dead. It is difficult for us to accept the theory of defence that Gauri fell in the hearth and after sustaining the injury, she died. Her death was definitely prior to dinner, so it may be before 12.00 night. The appellant did not take any steps to save her. The appellant went to the house of relatives of the deceased and informed them about the death of Gauri. The presence of the appellant throughout in the house when Gauri died, is a grave incriminating circumstance against the appellant. The evidence of PW 3 Ramesh throws light on the motive that Gauri and the appellant had quarreled on that night. We have no hesitation to hold that with this evidence, the prosecution has proved that the death of Gauri was not an accidental but the appellant has committed the murder of Gauri by assaulting her on her head on the night of 27.07.2008.

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Mr. Sait has submitted that it is not a case of murder but it

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is a case of culpable homicidal death if the circumstances which

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were present are examined. He submitted that PW 1 Laxmibai

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was aware about the apprehension expressed by the deceased

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that her husband would kill her, then why PW 1 Laxmibai did not immediately disclose her suspicion to the police on that day itself. Mr. Sait further submitted that PW 2 Datta was also aware about

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the relations between the appellant and the deceased. Mr. Sait submitted that the injury caused on the head of Gauri was due to

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blow of wooden log. He submitted that though the appellant did not disclose that he killed his wife, he did not run away from the spot but he himself reported about the death of his wife. He submitted that this shows that he did not try to take any undue advantage and was not cruel to her. He pointed out that in the evidence of PW 1 Laxmibai and PW 2 Datta, both have stated that the appellant used to consume liquor since one year prior to the

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incident. So there could be a possibility that after consuming liquor, he assaulted Gauri and due to the influence of liquor, he might have been slept in the house.

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Mr. Sait submitted that there was a quarrel between the

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husband and wife and that also to be considered as a mitigating

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circumstance to bring the case under Exception 4 to Section 300

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of IPC. He further submitted that there was a love marriage between the appellant and the deceased and they had good family life for six years and a daughter was born out of the said wedlock.

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We have considered the submissions of the learned

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Advocate for the appellant on the point of reduction of quantum of sentence. PW 2 Datta has deposed that they belonged to Adivasi community and many persons used to consume liquor. PW 3 Ramesh has deposed that on 27.07.2008 at night between 07.30 to 07.45 p.m., he heard noise of quarrel between the appellant and the deceased. He further stated that the quarrel between the appellant and the deceased was as usual. Thus, the evidence of this wintess discloses that there was a quarrel between the appellant and the deceased and thereafter, the incident of assault took place. Hence, we are of the view that this case is covered under Exception 4 to Section 300 of IPC and the benefit of this

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provision can be given to the appellant on the point of reduction

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in sentence. We consider that these are the mitigating circumstances to bring down the offence of murder to culpable homicide not amounting to murder and which has been under Section 304 Part II.

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In view of the above facts, the conviction and sentence of

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the appellant under Section 302 of IPC is set aside, instead, the appellant is convicted under Section 304 Part II of IPC and sentenced to rigorous imprisonment for eight years and fine of Rs.

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1000/- in default, RI for three months.

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The appeal is allowed partly to the aforesaid extent.

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Office to communicate this order to the concerned prison

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Authorities and to the appellants who are in jail.

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At this stage, we must record our appreciation for Advocate

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Mr. Arfan Sait, who is on the panel of Advocates of High Court

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Legal Services Committee and who was appointed to represent

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the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the

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High Court Legal Services Committee at ` 2500.

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[MRS. MRIDULA BHATKAR, J ] [SMT. V.K. TAHILRAMANI,J ]

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jfoanz vkacsjdj

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Vilas Namdeo Kalamkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vilas Namdeo Kalamkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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