Ashwin Puransing Rathod & 4 Ors vs State Of Mah.Thr.P.S.O.Pusad
2017 Latest Caselaw 2098 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR


                CRIMINAL APPEAL NO.599 OF 2004

1.  Ashwin s/o Puransing Rathod,
Aged 22 years.

2.  Yuraj s/o Puransing Rathod,
Aged 20 years.

3.  Charansing s/o Deosing Rathod,
Aged 24 years.

4.  Balu s/o Deosing Rathod,
Aged 30 years.

5.  Suresh s/o Dinkar Ade,
Aged 23 years,

All r/o Bansi (Tanda), Taluka Pusad,
District Yavatmal.  (In Jail).                            ..... Appellants.

                                ::   VERSUS   ::

The State of Maharashtra, through
P.S.O. Pusad Rural.                                       ..... Respondent.

================================================================
          Shri R.M. Daga, Counsel for the appellants.
          Shri A.S. Fulzele, Additional Public Prosecutor for the 
          Respondent/State.
================================================================


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 Judgment

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                                   CORAM : B.P. DHARMADHIKARI &
                                           V.M. DESHPANDE, JJ.  
                                   DATE  : MAY 2, 2017.




JUDGMENT (Per : V.M. Deshpande, J.)

1. The present appeal is filed against judgment

and order of conviction, passed by learned Additional

Sessions Judge, Pusad dated 13.9.2004, in Sessions Trial

No.67 of 1995, by which appellants were convicted for the

offence punishable under Section 302 read with Section

34 of the Indian Penal Code and they were directed to

suffer imprisonment for life and to pay a fine of Rs.1,000/-,

in default, to suffer rigorous imprisonment for one year

by each of them.

The appellants were also convicted for the

offence punishable under Section 201 read with Section

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34 of the Indian Penal Code and on that count they are

directed to suffer rigorous imprisonment for three years

and to pay a fine of Rs.500/-, in default, to suffer rigorous

imprisonment for three months by each of them.

2. While admitting this appeal in the year 2004,

this Court by its two separate orders dated 20.1.2005 and

2.3.2005 had allowed the applications filed on behalf of

appellants under Section 389 of the Code of Criminal

Procedure and they were released on bail.

3. The appellants were charged by learned Judge

of the Court below for the offences for which they are

convicted.

4. Initially, an accidental death vide A.D. No.11 of

1995 was registered in respect of death of Mangilal s/o

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Sudam Rathod whose body was found to be floating in a

canal adjacent to village Bansi (Tanda). Said accidental

death Case No.11 of 1995 was investigated by PW7 Head

Constable Mahadeo Gomaji Todasam at the relevant time.

He, thereafter, handed over investigation to PW8

Gulabrao s/o Ramdas Choudhari, who completed entire

investigation and filed the charge-sheet in the Court of

law.

5. We have heard learned counsel Shri R.M. Daga

for the appellants and learned Additional Public

Prosecutor Shri A.S. Fulzele for the respondent/State in

extenso. With their able assistance, we have gone through

the notes of evidence and also the record and

proceedings.

6. According to submission of learned counsel for

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the appellants, the prosecution has utterly failed to prove

the nature of death of Mangilal. His another submission

is, that learned Judge of the Court below ought not to

have relied upon the evidence of PW2 Waman s/o Hari

Pawar as an eyewitness. He submits that since

prosecution has utterly failed to prove nature of death,

appeal needs to be allowed.

7. Per contra, learned Additional Public

Prosecutor Shri A.S. Fulzele submits that postmortem

report Exhibit 97 clearly shows that cause of death is

cardiac arrest due to asphyxia secondary to drowning. He

submits that learned Judge of the Court below has rightly

relied on the evidence of PW2 Waman. He submits that on

material aspect there is no contradiction or omission in

the testimony of said eyewitness. He, therefore, submits

that appeal be dismissed.

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8. The dead body of Mangilal was found to be

floating in a canal on 28.5.1995. It is not in dispute that he

goes missing from the night of 26.5.1995. The death can be

of homicidal, accidental, or suicidal one. It is not the case

of the prosecution that deceased committed suicide nor

from the tenor of cross-examination it was suggested to

that extent by the defence.

9. According to the prosecution, the death of

Mangilal was homicidal one and the present appellants

are responsible for such death, thereby the prosecution

completely rules out the possibility of accidental death.

10. Since it is case of the prosecution that Mangilal

met with homicidal death and the present appellants are

responsible for such death, it is for the prosecution to

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prove the same. Even otherwise, entire burden rests on

shoulder of the prosecution to prove the nature of death.

11. The postmortem report is available on record

at Exhibit 97. The cause of death, as given by the autopsy

surgeon, is "cardiac respiratory arrest due to asphyxia

secondary to drowning."

12. What is important to note in respect of

postmortem report is, that this report is taken into

evidence through evidence of PW8 investigating officer

Gulabrao Choudhari. The prosecution has not examined

the autopsy surgeon or any other medical expert.

According to learned Judge of the Court below, the said

document is admissible even though it is brought on

record through the investigating officer.

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13. Surely, investigating officer is not an expert

who can comment on the niceties of anatomy or on any

other aspect in the same matter. According to evidence of

PW8 Gulabrao Choudhari, postmortem was conducted by

Dr. Atiya Jamal and he is not aware about whereabouts of

the said doctor. However, he heard that "she has gone

abroad." The evidence of said witness shows that said

postmortem report was exhibited as per the prayer made

by learned Additional Public Prosecutor, incharge of the

trial, in view of Section 32 of the Evidence Act as witness

Dr. Atiya Jamal was not traceable. The same was strongly

opposed by learned defence counsel. Therefore, learned

Judge of the Court below exhibited the document subject

to objection.

14. While dealing with this issue of admissibility of

postmortem report in the evidence, learned Judge of the

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Court below, in paragraph No.25 of impugned judgment,

observed that in view of the decision given by the

Honourable Apex Court in case of Prithi Chand ..vs.. State

of Himachal Pradesh, reported at AIR 1989 SCC 702

wherein the Honourable Apex Court had observed that

when doctor's attendance is not possible without an

amount of delay and, therefore, the Honourable Apex

Court held that the carbon copy of document i.e. medical

certificate was made admissible.

15. With the assistance of learned Additional

Public Prosecutor, we have gone through the aforesaid

reported case. In the said reported case, the medical

certificate was issued by Dr. C.S. Vedwa who was

unavailable for her examination. Therefore, the

prosecution examined Dr. Kapila as PW2 and through her

carbon copy of the medical certificate was duly proved.

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16. In the present case, there is nothing available

on record by which one could reach to the conclusion

with certainty about unavailability of Dr. Atiya Jamal.

The investigating officer, in his chief-examination, states

that he has heard about the fact that said doctor has gone

abroad. In last paragraph of his cross-examination he

states as under:

"I did not make any search for Dr. Atiya Jamal and I do not know her whereabouts. The police constable of Rural Police Station Pusad had told me that Dr. Atiya Jamal had gone abroad."

From the aforesaid admission given by PW8

investigating office Gulabrao Choudhari it is clear that he

himself was not knowing that the doctor, who conducted

postmortem, has gone abroad. Further, Police Constable,

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who has informed him about said fact, is also not

examined by the prosecution.

17. We have gone through the original record. The

original of postmortem report shows that postmortem

was conducted on 28.5.1995, doctor, who conducted

postmortem, has signed on 29.5.1995. Below the signature

it appears that the medical superintendent of Rural

Hospital at Pusad has endorsed the same on 29.5.1995. It

was open for the prosecution at least to examine the said

medical superintendent who has endorsed the document

and has put the endorsement as 'seen' which has been

used by learned Judge of the Court below to admit the

document in the evidence.

18. In absence of examination of autopsy surgeon

or any other person or medical superintendent, who has

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put endorsement as 'seen' on postmortem report on

29.5.1995, or any other person who was aware about

handwriting of autopsy surgeon, could have proved the

said document. It is clear that basic document has

remained to be proved. In that view of the matter, we

have no hesitation in our mind to record a finding that

the prosecution has not proved the fact that Mangilal

died with homicidal death. The possibility of accidental

death, therefore, cannot be ruled out. Perusal of

postmortem report shows that there were no external or

internal injuries on the body of Mangilal that is also one

of pointer for ruling out the possibility of homicidal

death.

19. Insofar as PW2 Waman Pawar is concerned,

there is no slightest doubt in our mind to discard his

evidence in view of fact that his police statement is

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recorded on 26.6.1995 i.e. after expiry of one month. His

cross-examination shows that in fact he has participated

in the search of deceased along with other villagers.

However, he did not find necessary to disclose fact about

quarrel in between deceased and appellants that he

claimed to have been heard on the date of incident.

Belated recording of statement of PW2 Waman, in spite of

fact that he was having an opportunity to disclose either

to co-villagers or police, casts serious doubt about his

nature as an eyewitness and, therefore, submission made

by learned counsel for the appellants that this witness is

introduced, has force.

20. In view of aforesaid discussions, we have no

hesitation in our mind to record the following order :

ORDER

The criminal appeal is allowed.

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2. Judgment and order of conviction, passed by

learned Additional Sessions Judge, Pusad in

Sessions Trial No.67 of 1995, is hereby quashed

and set aside.

3. Conviction of the appellants for the offences

punishable under Sections 302 and 201 read

with Section 34 of the Indian Penal Code is

hereby quashed and set aside.

4. Bail bonds of the appellants stand cancelled.

                   JUDGE                                            JUDGE



!!  BRW  !!




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