Bombay High Court
Prakash Dattaram Chavan vs The State Of Maharashtra on 1 March, 2012
Author: A.P.Lavande
Bench: A.P.Lavande
1 Cri.appeal 917/05
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CRIMINAL APPELLATE JURISDICTION.
CRIMINAL APPEAL NO. 917 OF 2005
Prakash Dattaram Chavan .......Appellant.
(Orig. Accused).
Versus
The State of Maharashtra. ........Respondent.
Mr. Pradeep Gharat for the Appellant.
Mrs. M.M. Deshmukh,APP for the Respondent.
igCORAM: A.P.LAVANDE &
SHRIHARI P. DAVARE, JJ.
DATED : 1st March, 2012.
JUDGMENT ::- (Per Shrihari P. Davare, J.)
1. Heard Mr. Pradeep Gharat, Advocate for Appellant and Mrs. M.M. Deshmukh, APP for the Accused.
2. Challenge in this appeal to the conviction and sentence imposed upon the appellant-original accused (hereinafter referred to as the accused for the sake of brevity) by the judgment and order dt. 3.02.2005 rendered by First Adhoc Additional Session Judge, Palghar in Sessions Case No.139 of 2003 thereby convicting the Accused for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/-, and in default payment of fine to suffer R.I. for 15 days. However, the Accused was acquitted for the offence punishable under Section 498-A of I.P.C.
::: Downloaded on - 09/06/2013 18:14:23 ::: 2 Cri.appeal 917/053. The facts of the prosecution case in nutshell are as follows:
The Accused viz. Prakash Dattaram Chavan, resident of Sai-Smita Chawl, Sai Nagar, Nagindaspada, Nalasopara (East), Tal-Vasai, Dist-Thane , faced the trial for subjecting the deceased wife Priti to cruelty, physically and mentally and for murdering her by pouring kerosene on her person and setting her ablazed for the offences punishable under Section 498-A and 302 of I.P.C. It is alleged that the Accused Prakash married Priti on 19.5.2005 and they were residing along with their children in the room of Sai-Smita Chawl, Sainagar, Nalasopara. It is also alleged that on 11.3.1997 at about 9.30 p.m. the Accused returned home after finishing the party and quarrel took place between him and his wife Priti on account of refusal to eat dinner by him, and thereupon the Accused was enraged and poured kerosene on her person and set her on fire by match stick. She made hue and cry due to flames and thereafter adjacent people gathered and extinguished the fire. The Accused and nearby residents removed her and admitted her to Yadav Hospital, Achole and thereafter she was shifted to Sanjivani Hospital, Virar. Her statement/dying declaration was recorded by police constable on 12.3.1997 wherein she stated that due to stove bursting while preparing food, she received burns and her husband i.e. Accused was standing outside saw her and rushed inside the room and spread the quilt on her body and extinguished the fire.
4. It is also the case of the prosecution that, PW-7 P.S.I. Ramchandra Pawar serving as a Havaldar, was attached to Nalasopara police station in March 1997 and as per instructions he visited Sanjivani Hospital, Virar, to record statement of patient Priti Prakash Chavan on 15.3.97 who sustained burns and found ::: Downloaded on - 09/06/2013 18:14:23 ::: 3 Cri.appeal 917/05 that Executive Magistrate, Vasai and R.M.O. of the said hospital were present near the patient and he made enquiries with the said patient and recorded her replies in the form of statement wherein she attributed role to the Accused that he quarreled with her and set her on fire and due to hue and cry, nearby people and neighbours gathered and took her to the hospital. She also stated that she had given one statement on 12.3.1997 stating that she caught fire due to bursting of stove but the said statement was given due to fear of husband i.e. Accused.
5. PW-6 P.I.-Ashok Wankhede was attached to Nalasopara Police Station in the year 1997 as a P.I. and he recorded F.I.R. on the basis of the statement of Priti recorded in Sanjivani Hospital and offence was registered against the Accused vide CR No. 45/97 under Section 307 of I.P.C. and he took out the investigation of the said case and visited the spot of the incident and recorded spot panchnama in presence of panchas (Exh.28) on 16th March, 1997.
Thereafter he recorded statement of neighbourers of the Accused and deceased and then arrested the Accused on 16th March, 1997 under arrest Panchnama Exh.13. There were burns on the right hand wrist of the Accused and thereafter he was medically examined by Medical Officer, Nalasopara but the medical certificate is not filed on record. The victim Priti's dead body was sent for postmortem examination and inquest panchnama of the said dead body was performed on 19th March, 1997. Accordingly, postmortem examination was conducted in Rural Hospital, Virar on the said dead body of the victim and the Medical Officer of the said hospital issued death certificate and the report of postmortem examination and same was produced on record (Exh.32) disclosing cause of death i.e. death due to septicemia due to 98% ::: Downloaded on - 09/06/2013 18:14:23 ::: 4 Cri.appeal 917/05 burns. The Investigating Officer seized the muddemal property and clothes of the deceased Priti and the said articles were sent to C.A. Office for examination purpose. Accordingly, after completion of Investigation PW-6 P.I. Wankhede filed the chargesheet against the Accused. However, since the offence punishable under Section 302 of I.P.C. was exclusively triable by the Sessions Court, it was committed to the Sessions Court, Palghar. Accordingly, First Adhoc Additional Session Judge, Palghar framed the charge against the Accused for the offence punishable under Section 498-A and 302 of I.P.C. at Exh.3 on 18th December, 2003. However, the Accused pleaded not guilty to the said charges and claimed to be tried.
6. To substantiate the charges levelled against the Accused, the prosecution has examined as many as seven witnesses as mentioned below:
1) PW-1 Arjun Anant Tambe- residing opposite to the house of the Accused- turned hostile.
2) PW-2 Shubhangi Arjun Tambem, wife of PW-1 - residing opposite to the house of the Accused - turned hostile.
3) PW-3 Prabhavati Prabhakar Chavan- mother of victim Priti.
4) PW-4 Prabhakar Ramchandra Chavan- father of victim Priti.
5) PW-5 Yevajani Pascol Pinto - resident of same chawl where Accused resided at Nagindaspada.
6) PW-6 P.I. Ashok Trimbak Wankhede-Investigating Officer.
7) PW-7 P.S.I. Ramchandra Pawar who recorded dying declaration of the victim Priti on 15th March, 1997.::: Downloaded on - 09/06/2013 18:14:23 ::: 5 Cri.appeal 917/05
7. The defence of the Accused is of total denial and he contended that victim Priti received burns due to bursting of kerosene stove and he tried to extinguish the fire and sustained injuries and thereafter moved her to the hospital and he submitted that he has been implicated in the present case falsely and therefore, claimed to be innocent. After scrutinizing and appreciating the evidence on record and after considering the rival submissions advanced by learned counsel for the parties, the learned trial Court convicted and sentenced the Accused for the offence punishable under Section 302 of I.P.C. as mentioned hereinabove. Being aggrieved and dissatisfied by the said conviction and sentence, the appellant has preferred present appeal assailing the same and prayed for quashment thereof.
8. The learned counsel for the Accused canvassed that there is no direct evidence in respect of the occurrence of the incident and the chain of the circumstantial evidence adduced/produced by the prosecution to substantiate the charges against the Accused; has been interrupted and vital links are missing. It is submitted that out of the seven witnesses examined by the prosecution, 3 witnesses i.e. PW-1 Arjun Tambe, PW-2 Shubhangi Tambe and PW-5 Yevajani did not support the case of prosecution and turned hostile, whereas the other witnesses i.e. PW-3 Prabhavati Prabhakar Chauhan and PW-4 Prabhakar Chauhan are the parents of victim Priti and therefore they are close relatives of victim and are interested witnesses and whereas PW-6 and PW-7 are the police witnesses. It is also canvassed by Ld. Counsel for the Accused that the prosecution has not produced the first dying declaration recorded by the police constable on 12.3.97 wherein ::: Downloaded on - 09/06/2013 18:14:23 ::: 6 Cri.appeal 917/05 victim Priti has stated that she sustained burns due to bursting of stove while preparing food and withholding of the vital piece of evidence by the prosecution attracts adverse inference against the prosecution.
9. As regards the another dying declaration Exh.39 which was recorded by PW-7 P.S.I. Ramchandra Pawar, it is submitted that there are discrepancies and deformities therein. Moreover, although S.E.M. was present at the time of recording of the said dying declaration, Police personnel recorded it which speaks volumes, and pertinently said S.E.M. has not been examined by the prosecution, and therefore, the said dying declaration cannot be termed as voluntary and truthful dying declaration. It is further submitted by Ld. Counsel for the Accused that although the alleged incident occurred on 11.3.97 in the night at about 9.30 p.m., the spot panchnama Exh.28 was drawn after the substantial delay i.e. on 16.3.97 and prosecution has not given any plausible explanation therefor. Pertinently, it is submitted that the prosecution has not made any efforts to ensure the presence of the panch witnesses and there is nothing on record in that respect and the said panchnama was proved through I.O. PW-6 Ashok Wankhede and hence it is submitted that the contents of panchnama cannot be read in evidence since not proved through the author of the said panchnama. It is further submitted that testimony of PW-6 P.S.I. Wankhede is vague and he has no where disclosed the month, date and year of recording of the FIR. Muddemal property was not produced by the prosecution on record and CA report has also not been produced before the Court.
10. Besides the Accused sustained injuries while extinguishing the ::: Downloaded on - 09/06/2013 18:14:23 ::: 7 Cri.appeal 917/05 fire and he was referred to Medical Officer for examination purpose, still his medical certificate was not produced by the prosecution on record. Moreover, although postmortem report was produced and admitted by the defence and was admitted at Exh.
32, the prosecution failed to examine the concerned doctor who performed the postmortem on dead body of victim viz. Priti to co- relate the external and internal injuries. Accordingly it is submitted that there are deformities and discrepancies in the prosecution case which go to the root of the matter, and therefore, conviction and sentence imposed upon the Accused deserves to be quashed and set aside, and accordingly, he urged that present appeal be allowed.
11. To substantiate the contents, the Learned Counsel for the Accused relied upon the following judicial pronouncements :
1) State of Maharashtra V/s. Asaram Mahadu Dwange reported at 1978 CRI. L.J. 1017;
2) Nanda Renukabai Rajaram Godse V/s. The State of Maharashtra reported in 1980 Bom. C.R. 389;
3) Darshan Singh and others V/s. State of Punjab reported in AIR 1983 Supreme Court 554.
12. Per contra, the Ld. APP Mrs. Deshmukh opposed the present appeal vehemently and submitted that the prosecution case rests upon the circumstantial evidence and the prosecution has proved and established the incriminating circumstances against the Accused unerringly and established the guilt of the Accused beyond reasonable doubt. It is also canvassed that marriage of the Accused took place with victim Priti in the year 1995 and within the span of 2 years, victim Priti was murdered by ::: Downloaded on - 09/06/2013 18:14:23 ::: 8 Cri.appeal 917/05 the Accused by pouring kerosene on her person and setting her ablazed which reflects the mental and physical torture, to which she was subjected by the Accused, and 98% burns sustained by the victim Priti leaves no doubt about the complicity of the Accused in the crime. It is also submitted that although the first dying declaration dt. 12.3.97 was not produced by prosecution on record, the second dying declaration dt. 15.3.97 recorded by PW-7 has been produced on record at Exh.39 which reflects that the Accused is the perpetrator of the crime and the said dying declaration Exh.39 categorically states that victim had given earlier dying declaration on 12.3.97 under the fear and pressure of the Accused disclosing that she sustained burns due to bursting of the stove and the Accused tried to extinguish the fire which was not correct and the dying declaration given by her on 15.3.97 Exh. 39 is her true and correct statement. Accordingly, it is submitted that the said dying declaration Exh.39 is truthful and voluntary statement of the victim Priti which deserves to be relied upon. It is also pointed out that postmortem report Exh.32 discloses that the victim sustained 98% burns which is self-explicit and which is in consonance with dying declaration exh.39 and both the said piece of evidence cumulatively connect the Accused with the crime. Accordingly Ld. APP supported the impugned judgment and order of conviction and stated that there is no glaring mistake and hence no interference is called for in the present appeal, and therefore, urged that present appeal be dismissed.
13. To substantiate her argument, the learned APP also relied upon the judicial pronouncement in the case of Harendra Narain Singh and others V/s. State of Bihar (1991) 3 Supreme Court Cases 609.
::: Downloaded on - 09/06/2013 18:14:23 ::: 9 Cri.appeal 917/0514. In order to deal with the aforesaid submissions effectively, it is useful and necessary to refer to the material evidence adduced/produced by the prosecution. In that context, coming to the evidence of PW-1 Arjun, he deposed that he was residing opposite to the house of Accused but he did not support the case of prosecution and was declared hostile and therefore, learned APP put him questions in the form of cross examination wherein he denied the contents of the portion marked-'A'. However, he admitted in the cross examination conducted by the learned counsel for the Accused that Accused Prakash has moved burnt Priti and taken her to hospital for medical treatment and the answer supports the very defence of the Accused, and accordingly, the testimony of PW-1 Arjun Tambe cannot be of any aid and assistance to the case of prosecution.
15. PW-2 Shubhangi Tambe who is the wife of PW-1 also did not support the case of prosecution and was declared hostile. Hence Learned APP put her the questions in the form of cross examination which reflects the presence of the Accused at the place of the incident. However, she stated therein that since the incident took place in the year 1997, she did not remember it. Moreover, she also stated that Accused Prakash warned her mother to leave his house but in the said context in the cross examination conducted by Learned Advocate for the Accused she has stated she did not hear the sound of Accused when he asked her mother to leave his house, and accordingly, nullifies the fact of the statement made in the cross examination conducted by Learned APP. In substance, the testimony of PW-2 Shubhangi Tambe cannot be of any avail to the case of prosecution.
::: Downloaded on - 09/06/2013 18:14:23 ::: 10 Cri.appeal 917/0516. That takes us to the deposition of PW-3, Prabhavati Prabhakar Chauhan i.e. mother of the victim Priti wherein she stated that Priti got married with the Accused in 1998 and thereafter they were residing at Nalasopara. She also stated that she co-habited with her husband i.e. Accused well. She further stated that brother-in-law of the Accused phoned her at Karanja and informed that Priti was burnt and she was admitted in Rural Hospital, Virar for medical treatment. She further stated that Priti spoke to her who told that when she was fast asleep, the Accused set her on fire. Accused admitted her in Rural Hospital, Virar for medical treatment. In cross-examination, suggestion was given to her in respect of falsity of alleged oral dying declaration made by victim Priti before her but same was denied by her. It was also suggested to her that Priti was in critical condition because of her burns and hence she did not talk anything to her but same was also denied by her. She admitted in cross-examination that Accused Prakash admitted victim Priti for medical treatment and spent entire amount for medical treatment. The Accused also took positive defence in the cross- examination that Priti received burns due to the bursting of kerosene stove and hence she was admitted in the hospital but same was denied by the said witness. It was also suggested to her that Accused was outside the house and due to the bursting of kerosene stove Priti received burns but the same was also denied by her.
17. The testimony of PW-3 Prabhavati Prabhakar Chavan - mother of victim Priti discloses that the Accused co-habited with Priti well and when she received the information from the bother- in-law of Accused, she visited the hospital where victim Priti spoke ::: Downloaded on - 09/06/2013 18:14:23 ::: 11 Cri.appeal 917/05 to her and stated that when she was asleep, Accused set her on fire amounted to dying declaration, since thereafter Priti died in the hospital. However, simultaneously the alleged oral dying declaration discloses that Accused admitted Priti in Rural Hospital, Virar for medical treatment. The Accused put his positive defence to the said witnesses through cross examination that when he was outside the house victim Priti sustained burns due to bursting of kerosene stove, and admitted victim Priti in the hospital and spent entire amount for medical treatment. Hence the question arises when the Accused co-habited well with victim Priti and when he admitted the said victim in Rural Hospital, Virar for medical treatment and spent entire amount for her medical treatment, then why he would set on fire his wife- victim when she was fast asleep as stated in alleged oral dying declaration, and therefore, the defence put forth by the Accused that when he was outside the house victim sustained burns due to bursting of kerosene stove, apparently appears to be probable. Moreover, it is also pertinent to note that, suggestion was put to the said witness that the Accused extinguished the fire by putting tuin on burning Priti and although it was denied, that possibility therefore cannot be ruled out. Accordingly the testimony of PW-3 Prabhavati, mother of victim Priti is required to be viewed in the aforesaid terms.
18. Coming to the deposition of PW-4 Prabhakar Ramchandra Chavan who is the father of the victim, he stated that Priti did not tell anything about the treatment given to her by the Accused Prakash. Priti was burnt and sustained burns. Therefore, he himself and his wife went to the hospital at Virar and saw Priti there while taking medical treatment. He met Priti. She was heavily burnt and she could not talk. He only witnessed burnt ::: Downloaded on - 09/06/2013 18:14:23 ::: 12 Cri.appeal 917/05 Priti and did not talk with her a single word. Accused Prakash had burnt Priti. In cross-examination, defence put its case that Priti received burns due to bursting of stove but same was denied by him. It is also suggested by him that he deposed falsely that Accused Prakash had burnt Priti but same was also denied by him. That the testimony of PW-4 Prabhakar is not in consonance with the deposition of his wife PW-3 Prabhavati since he stated in his deposition that his daughter Priti could not talk since she was heavily burnt and he only witnessed burnt Priti and did not talk with her single word, and hence, alleged oral dying declaration made by victim Priti before PW-3 as stated by her does not inspire confidence.
19. That takes us to the testimony of PW-5 Yevajani Pascal Pinto who stated that Accused Prakash and his wife Priti used to reside in their chawl at Nagindaspada and on the date of incident she was present at her house at about 8.30 p.m. At about 9.00 p.m. one Tambebai residing at the back of her chawl knocked the door of her house and informed her that Priti sustained burns. Hence she went to see the incident and noticed that victim was lying on the ground but she was alive and she was shivering and her husband i.e. Accused was present there. However, she did not talk with the Accused there about the incident. Moreover, several people also gathered there and Accused Prakash took Priti to the hospital. The said witness was declared hostile as he did not support the case of the prosecution. Hence the learned APP put questions to him in the form of cross examination wherein she stated that when she went to the said spot the Accused asked her to leave that place since she was not having any work and concern there, and therefore, she left the said place. Thereafter ::: Downloaded on - 09/06/2013 18:14:23 ::: 13 Cri.appeal 917/05 during the cross - examination conducted by learned counsel for the Accused, she stated that police recorded her statement after 4-5 days from the incident. Accordingly, the testimony of PW-5 Mrs. Pinto is self-explicit which reflects that she visited the place of the incident after its occurrence and Accused took victim Priti to the hospital and as such her evidence do not advance the case of prosecution. Moreover, it is material to note that police recorded her statement after 4-5 days from the incident, and accordingly, the said witness cannot be of any help to the case of prosecution.
20. PW-7 Ramchandra Pawar i.e. the star witness, deposed that on 15.3.1997 in pursuance of the instructions he visited Sanjivani Hospital, Virar and recorded statement of victim Priti Prakash Chavan who was burnt and had sustained burn injuries. He also stated that Executive Magistrate, Vasai, and R.M.O. of that hospital were present near the patient. He made enquiry with the said woman as to how she sustained burns and thereupon she replied that on 11.3.1997 at about 9.30 p.m. her husband Prakash returned from his duty and she asked him whether he wanted to eat dinner but he declined and, thereafter Accused quarreled with her and poured kerosene on her person and set her on fire and thereupon she made hue and cry. Therefore neighbours gathered who took her to the hospital of Dr. Yadav at Nalasopara who gave treatment to her burns. He further stated that on 12.3.1997 Priti had given statement before the police that there was stove bursting and she had caught fire and was burnt. She also stated that she was threatened by her husband and therefore she had given that statement. Accordingly PW-7, P.S.I Pawar stated that he recorded the statement of the said victim Priti in her words and obtained her thumb impression and he also signed on the said ::: Downloaded on - 09/06/2013 18:14:23 ::: 14 Cri.appeal 917/05 statement as well as R.M.O. Sanjivani Hospital and Executive Magistrate Vasai put their signatures thereon, the said statement is produced at Exh.39. He further stated that victim Priti was in a position to give her statement and he confirmed the same from R.M.O. who checked her condition and position.
21. In cross examination he admitted that he has not made entry in station diary on 15.3.1997 that he was orally ordered to record statement of Priti as well as he did not make station diary after recording the said statement. He also stated that he visited the Sanjivani Hospital for recording statement of Priti at about 6.15 p.m. and Executive Magistrate Vasai as well as R.M.O. of the said hospital was present there. However, he could not state the name of the Executive Magistrate as well as name of said R.M.O. He further stated that he saw lips and tongue of Priti and there were no burns on the tongue and lips of victim Priti but there were burns on the face. He also stated that R.M.O. was present when he saw Priti Chavan. R.M.O. examined said victim Priti before his recording but he did not demand certificate from the doctor. He admitted that the statement of Priti was not recorded in questions and answer form. He also admitted that he did not make enquiry with Priti about her statement recorded on 12.3.1997 as well as did not tell P.S.O. that Priti stated that her statement was recorded on 12.3.1997. When he was confronted with the said statement Exh.39 during cross-examination, he stated that there is gap/place in between "in presence" and "his signature". There are three crosses near his signatures. In explanation therefor, it was stated that, in order to take signatures of R.M.O., Executive Magistrate and his signature, said crosses were made. Exh.39 shows signature of Village Officer i.e. Talathi ::: Downloaded on - 09/06/2013 18:14:23 ::: 15 Cri.appeal 917/05 who witnessed the recording of statement of Priti. He also admitted that there was signature below the signature of Executive Magistrate but he did not know as to whose signature it was. He also admitted that specific word 'threatening' (Damdaati) is not in Exh.39.
22. Considering the testimony of PW-7 P.S.I. Pawar and dying declaration Exh.39 recorded by him and contents thereof, the question arises, as to when Special Executive Magistrate was present while recording the statement why PW-7 police personnel recorded the said statement/dying declaration. The prosecution has not given any convincing explanation therefor. Apart from that, the contents of dying declaration Exh.39 disclose that the said S.E.M. Vasai made the enquiry with the patient and patient responded and gave replies thereto and the tenor of the said statement is in the said manner but PW-7 P.S.I Pawar has stated that he made enquiry with the said patient and patient replied thereto, and hence, there is variance in the said part of testimony to PW-7 P.S.I. Pawar and said part of dying declaration of victim Priti. Moreover, PW-7 P.S.I further stated that Priti Chavan had given one statement earlier also on 12.3.1997 before the police that there was stove bursting and she caught fire and burnt and since she was threatened by her husband, she had given the said statement. However, pertinently the prosecution has not produced the said earlier statement of victim which was recorded on 12.3.1997. Accordingly the testimony of PW-7 P.S.I. Pawar and the dying declaration Exh.39 deserves to be viewed with suspicion and no implicit reliance can be placed on the same.
23. We have considered the oral and documentary evidence ::: Downloaded on - 09/06/2013 18:14:23 ::: 16 Cri.appeal 917/05 adduced/produced by the prosecution and also heard the submissions advanced by Learned Counsel for the parties anxiously as well as perused the judicial pronouncements cited by learned counsel the parties carefully, and at the outset, admittedly, there is no direct evidence against the Accused, and therefore, the prosecution case rests upon the circumstantial evidence but the prosecution has failed to establish links in the chain of the said circumstantial evidence against the Accused unerringly and there are lapses therein. Admittedly, out of the seven witnesses examined by prosecution three witnesses PW-1 Arjun Anant Tambe, PW-2 Shubhangi Arjun Tambe and PW-5 Yevajani Pascal Pinto did not support the case of the prosecution and were declared hostile, whereas the other witnesses i,e, PW-3 Prabhavati Prabhakar Chavan and her husband PW-4 Prabhakar Ramchandra Chavan are the parents of the victim Priti were the close relatives of the victim and alleged oral dying declaration made by victim Priti before her mother PW-3 Prabhavati is suspicious as discussed hereinabove. Since PW-4 Prabhakar had not supported the said version and categorically stated that he only witnessed Priti burnt and did not talk with her a single word and also she was heavily burnt, and therefore, she could not talk, which clearly creates suspicion about the alleged oral dying declaration by the deceased to her mother PW- 3 Prabhavati Chavan.
24. There is material lacuna in the prosecution case since the first dying declaration recorded by police personnel on 12.3.1997 has not been produced by the prosecution wherein as stated by PW-7 P.S.I, she stated that she sustained burns due to bursting of stove while preparing food, and the prosecution has not given any explanation about the non-production of the said first dying ::: Downloaded on - 09/06/2013 18:14:23 ::: 17 Cri.appeal 917/05 declaration of the victim, and therefore, withholding of the said vital piece of evidence by the prosecution, hampers the case of the prosecution. As regards the defence put forth by the Accused that he was outside the house when victim Priti sustained burns due to bursting of kerosene stove and after arrival he put the tuin on the burning Priti and extinguished the fire, in the context of the said defence, it is pertinent to note that, though the incident occurred on 11.3.1997 the spot panchnama was prepared after the lapse of 5 days i.e. on 16.3.1997 (Exh.28) and prosecution has not given any explanation for the said delay. Moreover, the panchas of the said spot panchnama were not examined by the prosecution and even nothing was put forth on record about the efforts made by prosecution to secure the presence of the said panchas and the panchnama was produced on record through PW-6 P.I. Ashok Wankhede and marked at Exh.28. However, although he stated that its contents are true and correct, but since, in fact, panchas are the authors of the said panchnama whose presence was not ensured/secured during the trial and as stated hereinabove nothing was produced on record regarding the efforts made by the prosecution to ensure their presence. Accordingly, the truth of the contents of the said panchnama is not proved through its author, and hence, in the absence of proof of truth contents of said spot panchnama on record, there is no other alternative but to accept the defence put forth by the Accused.
25. In the said context, it is also important to note that the Accused stated that he extinguished the fire of Priti and sustained injuries while extinguishing the fire. It is the prosecution case that the Accused was referred to Medical Officer for examination purpose. However, still his medical certificate was not produced by ::: Downloaded on - 09/06/2013 18:14:23 ::: 18 Cri.appeal 917/05 the prosecution on record and such pick and choose policy adopted by the prosecution deserves to be deprecated. The postmortem report was produced on record which was admitted by defence and marked Exh.32. However, it is significant to note that prosecution failed to examine the concerned doctor who performed the postmortem on the dead body of the victim Priti. In fact, it was expected of the prosecution to examine the said doctor to co-relate the external and internal injuries more particularly in case of murder and also to prove the cause of death of the victim but curiously enough the prosecution has not examined the doctor for the reasons known to it.
26. Taking survey of entire matter, it is amply clear that there are discrepancies, deformities and infirmities in the investigation as well as the manner in which the prosecution conducted the trial before the learned trial Court. The important documents have not been produced and material witnesses have not been examined, more particularly, the dying declaration of the victim recorded by police personnel on 12.3.1997 has not been produced on record which creates doubt about the case of prosecution and as stated by PW-7 P.S.I Pawar it contained the very defence raised by the Accused and further the subsequent dying declaration Exh.39 also is not free from the discrepancies and lacuna, and therefore, it cannot be construed as truthful and voluntary statement of the victim Priti, and therefore, the Accused deserves to be given the benefit of doubt. Thus, we are inclined to accept the submissions of learned counsel for the Accused and considering the judicial pronouncements cited by both the learned counsel for the parties, we are of the view that judicial pronouncements cited by learned counsel for the Accused are of aid and assistance to the Accused ::: Downloaded on - 09/06/2013 18:14:23 ::: 19 Cri.appeal 917/05 but the judicial pronouncement cited by learned APP for the Respondent are of any avail to the case of the prosecution.
27. In the result, the present appeal is allowed and the conviction and sentence imposed upon the appellant/accused by judgment and order dated 3.2.2005 passed by the 1st Ad-hoc Additional Sessions Judge, Palghar, stands quashed and set aside and the accused is acquitted for the offences with which he was charged and convicted and he be released forthwith, if not required in any other case.
28. Fine amount, if any, deposited by the accused, be refunded to him.
29. Appeal is disposed of accordingly.
(SHRIHARI P. DAVARE, J. ) (A.P.LAVANDE, J. )
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