Judgment : [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/-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 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. 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 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. 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 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 No. 3, mother of accused No. 1 was subsequently arrested on 20.01.2003 at about 08.40 a.m. 8. 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 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 postmortem 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. 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 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 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. 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 on the dead body of Saraswati and which are reflected in the postmortem 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 dis-colouration. 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 dis-colouration; vii. iv. Bruises (ecchymoses) on the neck below the injury No. 3 and above the zipisternum 2 X 2 cm with blackish dis-colouration. 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 dis-colouration; 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 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 antemortem. 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:- "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....... According to me, probable cause of death is due to asphyxia due to throttling." 12. Considering the above substantive evidence of prosecution witnesses, it must be said that there is nothing to interfere with the impugned judgment and order as against all the appellants-accused. According to me, probable cause of death is due to asphyxia due to throttling." 12. Considering the above substantive evidence of prosecution witnesses, it must be said that there is nothing to interfere with the impugned judgment and order as against all the appellants-accused. This is, more so, when there is no plausible explanation coming from the appellants as to under what circumstances, victim Saraswati had died when it is admitted case of custodial death. Even there is nothing brought on record by way of substantive evidence or even by answers to the questions put to the appellants during their statements recorded under Section 313 of Code of Criminal Procedure, on the probable cause of death which can be accepted even on pre-ponderance of probability. In our considered view, there is no merit in the present Appeal and the same is disposed of by passing the following order:- ORDER 1. Criminal Appeal No. 444 of 2005 is dismissed. 2. Office to communicate this judgment and order to the appellants -accused who are in jail through concerned Jail authorities.