Bombay High Court
Dr. Ajit Vishwanath Borade vs The State Of Maharashtra on 28 September, 2015
1
APEAL.159-2009.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.159 OF 2009
WITH
CRIMINAL APPLICATION NO.763 OF 2015
Dr. Ajit Vishwanath Borade
Age: 30 years, resident of Shivkripa
Bungalow, Omkar Nagar,
Peth Road, Panchavati,
Nashik.
(Presently lodged in Nashik Central Jail) ..Appellant
ig (Orig. Accused)
Versus
The State of Maharashtra
Through the P.I., Panchavati
Police Station, Nashik. ..Respondent.
(Original Complainant).
-----
Mr. Uday P. Warunjikar for Appellant.
Mr. H.J. Dedhia, APP for Respondent-State.
-----
CORAM: Smt. V.K. Tahilramani, Acting C.J. &
A.S. Gadkari, J.
Reserved On: 4th September 2015
Pronounced On:28th September 2015.
JUDGMENT (Per A.S. Gadkari, J.):
1 The appellant, the original accused no.1, has questioned the
correctness of the judgment and order dated 16 th January 2009 passed by
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the Adhoc Additional Sessions Judge-1, Nashik in Sessions Case No.205 of
2007 thereby convicting him under Section 302 of the Indian Penal Code
and sentenced to suffer imprisonment for life. The appellant has also been
sentenced to pay fine of Rs.10,000/- and in default of payment of fine to
further undergo simple imprisonment for one year.
By the impugned judgment and order dated 16 th January 2009,
the Trial Court was pleased to acquit the appellant under Sections 498(A),
120-B read with Section 34 of Indian Penal Code. The original accused
no.2 Smt. Sangita P. Suryavanshi has been acquitted from all the charges
framed against her.
2 The facts which can be enumerated from the record and are
necessary to decide the present appeal can briefly be stated thus:
(i) The deceased Smt. Usha alias Vrushali was the wife of the
appellant. The deceased Smt. Usha was a nurse by profession and was
serving at Namco Cancer Hospital at Nashik. The appellant was also
serving as a Medical Officer in the said hospital. The appellant was also
having his own clinic at Nashik. The deceased Smt. Usha and the appellant
were from different castes. As the appellant and the deceased Smt. Usha
were working in the same establishment, intimacy developed between them
and they decided to get married. The family members of the deceased Smt.
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Usha were against the said marriage. However, the appellant and Smt.
Usha married on 24.5.2005. Out of the said wedlock, Smt. Usha and the
appellant had a son, who died subsequently. The original accused no.2 Smt.
Sangita P. Suryavanshi was also nurse by profession and was serving in the
hospital where the appellant was serving. The appellant and the original
accused no.2 Smt. Sangita had a love affair and they exchanged love letters
between themselves. The original accused no.2 Smt. Sangita had also
maintained a diary in her own hand-writing and had written letters to the
appellant.
(ii) When Smt. Usha learnt about the love affair between the
appellant and the original accused no.2 Smt. Sangita, she questioned about
the same and directed the appellant to keep distance from the original
accused no.2 Smt. Sangita. A quarrel took place between the appellant and
deceased Smt. Usha on that count. The deceased Smt. Usha made
complaint to the police in that behalf. Prior to her death, Smt. Usha had
been to her parents' house at Vaijapur, District-Aurangabad where her
sisters had gathered at the house of brother of Smt. Usha. On 30.5.2007
when Smt. Usha was at Vaijapur, she received a phone call from the
appellant and accordingly she returned to Nashik from Vaijapur. After Smt.
Usha reached Nashik, quarrel took place between Smt. Usha and the
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appellant on account of relations between the appellant and the original
accused no.2 Smt. Sangita.
(iii) It is the further case of the prosecution that on 1.6.2007 at about
10.30 p.m. Smt. Usha sustained burn injuries in the house of the appellant
and the said injuries were caused to her by the appellant by pouring
kerosene on her and igniting the fire. Smt. Usha sustained 100% burn
injuries. She was immediately shifted to the Civil Hospital at Nashik. A
woman Police Sub-Inspector Smt. Vandana Shirgire of Panchavati police
station recorded her dying declaration. Smt. Usha died in the Civil Hospital
at Nashik on 2.6.2007 between 2.00 a.m. to 2.15 a.m. On the basis of the
said dying declaration recorded by P.S.I. Smt. Vandana Shirgire, the first
information report came to be registered bearing no.207 of 2007 dated
2.6.2007 under Sections 302, 307 and 498(A) of the Indian Penal Code.
PW-5 Dr. Arun Pawar conducted postmortem on the dead body of Smt.
Usha and gave his opinion as to the cause of probable death as "shock due
to 100% superficial to deep burn".
(iv) PW-12 Shri Nandkishor Kulkarni, Police Inspector, took over
the investigation of the said crime. He recorded the statements of the
witnesses, conducted spot panchanama i.e. scene of offence panchanama
which is at Exhibit 46. He thereafter arrested the appellant, seized clothes
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of the appellant. He seized some incriminating articles from the clinic of
the appellant by effecting panchanama which is at Exhibit 47. He thereafter
seized other incriminating articles such as chits written by the appellant and
the original accused no.2 Smt. Sangita. During the course of investigation
he made enquiry with the persons from the adjoining houses of the
appellant. He also recorded statements of the persons from the fire brigade,
who had extinguished the fire which had taken place at the Bungalow of
the appellant on the fateful night. He referred clothes of the appellant to
the Chemical Analyzer. During the course of investigation, it was further
revealed to him that when Smt. Usha died, she was pregnant of 28 weeks.
After completion of the investigation, PW-12 Police Inspector Shri
Nandkishor Kulkarni submitted chargesheet against the appellant in the
Court of Judicial Magistrate First Class, Nashik. In due course of time the
case was committed to the Court of Sessions as the offence under Section
302 of IPC was exclusively triable by the said Court.
(v) After committal of the case, the Trial Court framed charge
below Exhibit-7. The said charge was read over and explained to the
appellant. The appellant denied the charge and claimed to be tried. The
defence of the appellant is that, he has been falsely implicated in the
present case. That there was opposition to the marriage of the appellant
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with deceased Smt. Usha from the family members of Smt. Usha and
therefore he has been falsely implicated in the case. He has further stated
that at the time of incident, deceased Smt. Usha was collecting the clothes
and all of a sudden there was short circuit and therefore the incident of
burning took place.
(vi) The learned Trial Court after recording the evidence of the
witnesses and after hearing the parties to the said case was pleased to
convict the appellant by the impugned judgment and order dated 16 th
January 2009 as stated hereinabove.
3 Heard Mr. Uday Warunjikar, the learned Counsel appearing for
the appellant and Mr. H.J. Dedhia, the learned APP for the State and with
their assistance we have perused the entire record pertaining to the present
case.
4 The learned Counsel for the appellant submitted that a minute
perusal of the entire evidence on record shows that there is no material to
prove the charge under Section 302 of the Indian Penal Code. He submitted
stated that except Investigating Officer and PW-8 panch to the seizure of
articles, no independent witness either has supported the case of the
prosecution or has been examined by the prosecution in support of its
contention. He submitted that that as a matter of fact the appellant suffered
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17% burn injuries while trying to save the deceased Smt. Usha. That the
Investigating Officer has suppressed the said fact while filing the
chargesheet. He has further submitted that the Chemical Analyzer's report
of the clothes of the appellant has not been brought on record by the
Investigating Officer. He submitted that as a matter of fact while saving the
deceased Smt. Usha the clothes of the appellant were also burned and the
said fact can be discerned from the panchanama which is at Exhibit 43. He
lastly contended that after taking into consideration the evidence of PW-4
i.e. officer from the fire brigade who extinguished the fire from the
bungalow, it can be clearly seen that it is a case of accident and not murder.
He submitted that the Investigating Officer has not investigated the said
aspect of short-circuit during the course of investigation and therefore
charge of murder is unsustainable. He therefore urged before us that the
present appeal may be allowed and the appellant may be acquitted from all
the charges levelled against him.
Per contra, the learned APP for the State submitted that at the
time of recording of scene of offence panchanama, a burnt can of kerosene
was found in the bedroom. He further contended that on the fateful night,
the appellant and the deceased Smt. Usha only were present in the said
house and in view of Section 106 of Evidence Act, it was in the exclusive
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knowledge of the appellant about the incident which took place on the
fateful night. He further submitted that though there are certain lacunas in
the investigation of the police officer, the benefit of faulty investigation
should not be given to the appellant. He lastly submitted that the conviction
and sentence awarded by the Trial Court may be sustained by dismissing
the present appeal.
5 In order to effectively deal with the submissions advanced by
the learned Counsel for the appellant and the learned APP for the State, it
would be useful to advert to, in brief, the evidence of the prosecution
witnesses. The prosecution in support of its case examined in all 13
witnesses.
6 PW-1 is Shri Bhushan B. Ahire, the brother of deceased Smt.
Usha. PW-1 has deposed that his sister Smt. Usha married with appellant
on 24.5.2005 at Nashik. Prior to marriage, Smt. Usha was working as nurse
at Namco Cancer Hospital at Nashik. The appellant and deceased Smt.
Usha were in love of each other and thereafter they married. That after
marriage his sister and the appellant were residing at Shivkripa Bungalow.
That the appellant started his own clinic by name Anjali Clinic at Phule
Nagar, Peth Road, Nashik. He has further deposed that after the marriage
his sister and appellant were happy. His sister was working at Prasana
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Child hospital. That the appellant used to drop his sister to Prasana Child
hospital and take her back. That Smt. Sangita was also working in the
Prasana Child Hospital prior to his sister. The appellant used to visit the
Prasana Child hospital along with his sister and therefore there was
introduction of the appellant and original accused no.2 Smt. Sangita. They
developed intimacy. The appellant wanted to marry with the Smt. Sangita
and therefore he requested the deceased Smt. Usha to giver her consent for
it. The appellant used to persuade Smt. Usha for giving consent for the
marriage of the appellant with Smt. Sangita, to which deceased Smt. Usha
did not agree. That the appellant therefore ill-treated his sister mentally and
physically. Smt. Usha after going to her parental house informed the said
fact to PW-1. On 27.5.2007 the appellant had been to his house at Vaijapur.
On 30.5.2007 the deceased Smt. Usha received a phone call from the
appellant who called her at Nashik. Accordingly, Smt. Usha went to Nashik
from Vaijapur. He has further deposed that at that time his sister Usha was
in depression. On 2.6.2007 Vaijapur police informed him that his sister
Smt. Usha died due to burn injuries at Civil Hospital, Nashik. When the
police made enquiry with PW-1, he handed over some chits to police,
which were written by the original accused no.2 Smt. Sangita to the
appellant.
APEAL.159-2009.sxw
In the cross-examination, this witness has admitted that due to
love affair between his sister and the appellant they married each other. He
has admitted that the said marriage was solemnized as per the wish of
Smt.Usha. That Usha was obstinate. That the appellant was famous in the
area. He has admitted that even after the death of the first child of deceased
Smt. Usha, the appellant and his sister were leading happy married life at
Nashik. That Smt. Usha was pregnant from the appellant for the second
time. He has further admitted that the husband of his elder sister is in police
department. His brother-in-law who was serving in police was with them at
that relevant time.
7 PW-2 Smt. Sarita N. Nikam, and PW-3 Smt. Satyabhama B.
Ahire are the sister and mother of Smt. Usha respectively. These two
witnesses in their testimony have also stated about the same fact as has
been narrated by the PW-1 Shri Bhushan B. Ahire, the brother of deceased
Smt. Usha. PW-2 Smt. Sarita N. Nikam in her cross-examination has
admitted that the deceased and appellant were leading happy married life at
Nashik. She has further admitted that her eldest sister Asha Gaikwad has
married to Shri Sunil Gaikwad and her husband was in police department.
In the cross-examination of PW-3 i.e. the mother of deceased no material
has been elicited which would be useful to the appellant.
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8 PW-4 Shri Jagannath L. Lahamge was then attached to the fire
brigade services at Nashik. PW-4 has deposed that on 1.6.2007 at about
10.55 p.m. he received phone in his office about a fire at Omkar Nagar. He
went there with fire brigade. Bedroom was set on fire. He extinguished the
fire. He did not remember the name of the bungalow. One lady by name
Smt. Usha Borade had also caught fire. The fire brigade personnel removed
her from fire and the lady was referred to the hospital immediately. After
extinguishing fire, they left the place.
In the cross-examination this witness has admitted that the entire
bungalow had caught fire. He has further admitted that appellant and Smt.
Usha Borade were burnt. Both were referred to the hospital. He had called
the ambulance. That he was on the spot upto 1.15 to 1.30 a.m on 2.6.2007.
He has further admitted that the police came there while they were
extinguishing the fire. That the police were on the spot along with lady
police sub inspector.
9 PW-6 is Shri Sanjay Kulkarni a neighbour of the appellant. This
witness did not support the prosecution case and therefore was declared
hostile at the request of APP. In the cross-examination of this witness by
the learned APP, no material which is useful to the prosecution has been
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brought on record.
10 PW-7 Shri Rajendra Solanki is the tailor from whom the original
accused no.2 Smt. Sangita used to stitch the clothes. PW-9 is Mr. Santosh
V. Ghodke, a goldsmith from whom it is alleged that the appellant had
purchased foot rings. PW-11 is Shri Suresh D. Potdar, a photographer by
profession. This witness has taken photographs of the scene of offence.
PW-13 is Police Head Constable Shri Sakharam N. Shelke who has
recorded the NC complaint of Smt. Usha. It appears to us that the evidence
of PW-7, PW-9, PW-11 and PW-13 is redundant and it leads the
prosecution nowhere from the point of deciding the present appeal as the
alleged motive behind the crime i.e. love affair of the appellant with Smt.
Sangita has been deposed by PW Nos.1, 2 and 3 in their testimony.
11 PW-8 Smt. Rukminibai D. Kardak is a panch witness. This
witness is a panch to the articles seized in the hospital i.e. one Mangalsutra,
pair of foot rings, blouse, saree and other remaining clothes which is at
Exhibit 38. The panchanama of seizure of articles belonging to the
appellant was also proved by this witness which is at Exhibit 39. PW-8 is
also the panch-witness to the panchanama which is at Exhibit 40 under
which the object nos.21 to 24 i.e. chits written by the appellant and the
original accused no.2 have been seized by the police.
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In the cross-examination of this witness, she had admitted that
the articles shown to her in the Court are easily available in the market. She
admitted that the premises where the appellant was running his clinic was
owned by her relative.
12 PW-10 is Shri Nivrutti P. Aher the panch witness to the seizure
of the clothes of the appellant under a panchanama at Exhibit-47. This
witness did not support the prosecution and was declared as hostile. The
said Exhibit 47 has been proved by PW-12- Police Inspector Shri
Nandkishor Kulkarni. It is to be noted here that in the said panchanama of
seizure of clothes of the appellant the description of shirt of the appellant
has been mentioned. It has been mentioned that the front side of the shirt of
the appellant was burnt and was reduced into a cloth ball.
In the cross-examination of this witness at the instance of the
learned APP, no material has been brought on record which would help the
prosecution.
13 PW-12 is Police Inspector Shri Nandkishor M. Kulkarni. He was
then attached to Panchavati Police station on 2.6.2007. PW-12 has deposed
that he took over the investigation of C.R. No.207 of 2007 of Panchavati
police station on 2.6.2007. That PSI Smt. Shirgire had recorded the dying
declaration of Smt. Usha Ajit Borade. He then went to the scene of offence
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and prepared a detailed panchanama which is at Exhibit 46. He seized the
articles which were found on the scene of offence including one can which
was having smell of kerosene. He has further deposed that two women
from Women Organisation came from Vaijapur. Thereafter he arrested the
appellant. He seized the clothes of the appellant under a panchanama which
is at Exhibit 47. In his examination-in-chief this witness has stated about
various steps adopted by him during the course of investigation. That it was
revealed during the investigation that when Smt. Usha died she was
pregnant of 28 weeks. That after completion of investigation, he submitted
chargesheet in the Court of Judicial Magistrate First Class, Nashik.
In the cross-examination this witness has admitted that the
appellant was admitted in the Civil Hospital as he had received burn
injuries in the said incident. The face and hands of the appellant were
burnt. The appellant had sustained 17% burn injuries. PW-12 has admitted
that he did not prepare panchanama of the condition of the appellant while
arresting him. It is to be noted here that though this witness has denied the
suggestion that he did not prepare the arrest panchanama purposefully, this
witness has not produced the said arrest panchanama of the appellant on
record. This witness has admitted that house of the appellant was burnt. He
has admitted that the fire was extinguished by the fire brigade persons.
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That he has not mentioned in the panchanama about the fact from where he
took the key for opening the house where the incident took place. That that
whatever was needed for him he has seized from the scene of offence. That
the muddemal articles were in police station from 2.6.2007 till 16.7.2007.
He has further admitted that he did not record the statement of any person
who allegedly brought the kerosene at the house of the appellant and
deceased. That the articles seized and produced in the Court are easily
available in the market. That he did not record the statement of the owner
of the house where the incident took place. That it is not mentioned in the
panchanama by whom the clinic was open. This witness has further
admitted that he did not ascertain from the electrician the reason of the fire
in the said house. This witness has proved the Exhibit 46 which is scene of
offence panchanama along with other documents. This witness has further
admitted that there was a kitchen platform having gas stove and gas
cylinder. That he did not check the gas cylinder.
14 Thus after taking into consideration the entire evidence
available on record, it appears to us that PW Nos.1,2 and 3 i.e. brother,
sister and mother of the deceased Smt. Usha respectively have stated about
the affair of the appellant with the original accused no.2 Smt. Sangita. The
prosecution has came up with the case that as the appellant was having love
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affair with Smt. Sangita and he was insisting the deceased Smt. Usha for
giving consent for his marriage with Smt. Sangita, the appellant caused
death of Smt. Usha by burning her with kerosene. This is the motive
alleged by the prosecution behind the crime.
The evidence of PW Nos.4,5 and 12 is important while deciding
the present appeal. PW-4 the person from fire brigade department has
admitted that the entire bungalow had caught fire. That the appellant and
Smt. Usha were burnt and both were referred to the hospital. The alleged
dying declaration recorded by the woman P.S.I. Smt. Vandana Shirgire on
the basis of which the first information report has been registered by her on
2.6.2007 in the Civil Hospital at Nashik has not been examined by the
prosecution. It is further to be noted here that PW-5 Dr. Arun Pawar, the
Medical Officer, who alleged to have put his endorsement on the said dying
declaration has also not been shown the said dying declaration with a view
to prove it during the course of the trial. No question is put to PW-5 Dr.
Arun Pawar with regard to the said dying declaration recorded by P.S.I.
Smt. Vandana Shirgire and as such the said alleged dying declaration has
not been proved at all by the prosecution and therefore we have no other
option but to keep it out from consideration while analyzing the evidence
on record.
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15 It is further to be noted here that the alleged dying declaration
recorded by woman P.S.I. Smt. Vandana Shirgire has not been proved
either by PW-12 Police Inspector Shri Nandkishor Kulkarni or by PW-5 Dr.
Arun Pawar who alleged to have endorsed the said dying declaration after
its recording. PW-5 Dr. Arun Pawar who treated and subsequently
conducted the postmortem of Smt. Usha, in his evidence nowhere
mentioned about the alleged dying declaration recorded by a woman Police
Sub-inspector Smt. Vandana Shirgire. PW-12 the Police Officer who
investigated the present crime has admitted that in the cross-examination
that the appellant was admitted in the Civil Hospital as he had received
burn injuries in the said incident. The face and hands of the appellant were
burnt. The appellant had sustained 17% burn injuries. PW-12 has admitted
that he did not prepare panchanama of the condition of the appellant while
arresting him. It is to be noted here that though this witness has denied the
suggestion that he did not prepare the arrest panchanama purposefully, this
witness has not produced the said arrest panchanama of the appellant on
record. This witness has further admitted that the house of the appellant
had burnt. That the fire was extinguished by the fire brigade persons. That
the muddemal articles were in police station from 2.6.2007 till 16.7.2007.
He has further admitted that he did not record the statement of any person
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who brought the kerosene at the house of the appellant and deceased. That
the articles seized and produced in the Court are easily available in the
market. This witness has further admitted that he did not ascertain from
the electrician the reason of the fire in the said house. This witness has
proved the Exhibit 46 which is scene of offence panchanama along with
other documents. This witness has further admitted that there was a kitchen
platform having gas stove and gas cylinder. That he did not check the gas
cylinder.
16 At this stage it is necessary to consider about the scene of
offence panchanama/spot panchanama which is at Exhibit 46. The scene of
offence panchanama discloses that the electric meter in the said bungalow
was switched off and was turned black because of the fire. That the electric
wiring in the living room, staircase and bedroom was melted, totally
blackened and was hanging at the spot. That most of the articles in the
house were turned black because of the fire and heat at the said place. The
articles from the kitchen were also burnt because of the heat from the fire.
It has also been mentioned that the household articles were found to be
totally charred at various places in the house. The four walls of the kitchen
were blackened. It is further mentioned in the said panchanama that living
room and bedroom including articles therein were found to be totally burnt
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and turned black because of the smoke.
17 As stated above, PW-12 did not ascertain the fact from the
electrician or expert in the field that whether there was possibility of fire in
the bungalow because of short-circuit or not. The Investigating Officer has
also suppressed from the Court the vital document such as arrest
panchanama of the appellant and the medical certificate of the appellant.
However, the Investigating Officer has also admitted that the appellant had
also suffered 17% burn injuries on his face and arms. This creates doubt
about the incident in the mind of this Court. Though, a plastic can having
smell of kerosene was found at the scene of offence, the Investigating
Officer has failed to bring evidence on record pertaining to its purchase
and/or its existence on the spot. The Investigating Officer has nowhere
mentioned that the articles which were seized by him were sealed at the
spot. It has further come on record that the articles were lying in the police
station upto 16.7.2007 and therefore the possibility of tampering with the
said articles cannot ruled out.
18 After taking into consideration the various aspects of the
evidence available on record, we are of the opinion that the prosecution has
failed to prove beyond reasonable doubt that the fire was ignited by the
appellant. The appellant since beginning has taken a specific defence that
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his house caught fire because of short-circuit which took place at about
10.30 p.m. on the day of incident. The evidence of the close relatives of the
deceased Smt. Usha discloses that the deceased and the appellant were
leading a happy married life and therefore the motive as suggested by
prosecution gets diluted. In such circumstances, we find that the possibility
of short-circuit cannot be ruled out in the present case. The Investigating
Officer has utterly failed to examine this vital aspect in the matter. We are
therefore of the considered opinion that the appellant is entitled for benefit
of doubt.
19 In view of the aforesaid discussion, we hereby give the benefit
of doubt to the appellant. We therefore quash and set aside the impugned
judgment and order dated 16th January 2009 in SC No.205 of 2007. The
appellant is acquitted from all the charges framed against him. The fine, if
any, paid by the appellant be refunded to him. The appellant be set at
liberty, if not required in any other case.
20 In view of the above, Criminal Application No.763 of 2015 does
not survive and the same is disposed of.
(A.S. GADKARI,J.) (ACTING CHIEF JUSTICE )
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment.
