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4 APEAL466.2001J.doc

4. I have heard the submissions advanced by Mr. A. R. Syed, learned counsel appointed to represent the appellant and APP for respondent/State and further perused the record & proceedings of the trial Court.

5. Mr. Syed, learned counsel appointed to represent the appellant has strenuously contended that the impugned Judgment & Order of conviction is not sustainable in law for the sole reason that the entire judgment is based upon conjectures and surmises having no foundation on record. He submits that, there is no cogent, convincing & reliable evidence to establish that the deceased died a homicidal death. So also there is no evidence to establish the fact that the appellant- accused had assaulted and responsible for the cause of death of the deceased. By referring the evidence on record, the learned counsel has pointed out that the viscera though collected, not sent to Chemical Analyzer for analysis. He has contended that, due to not referring the viscera for chemical analysis serious prejudice has been caused to the accused. It is pointed out that, the accused has taken the defence that rupture of spleen was occurred as the deceased was suffering from dysentery and vomiting immediately prior to her death. The fact to this effect noted in the spot panchanama as well as the post-mortem report. It is pointed out that though there is no evidence to show that the appellant-accused No. 1 had assaulted deceased and more particularly over her abdomen, the ld. Addl. Sessions Judge has inferred that the 5 APEAL466.2001J.doc deceased might have been assaulted by accused over her abdomen resulting into rupture of spleen. It is pointed out that the entire findings of guilt of accused recorded by the trial Court are based upon the inference drawn on account of non-explanation of the internal injury to spleen caused to deceased by the accused & ignoring the material evidence brought through the cross-examination of autopsy surgeon (PW5). He submits that, the conviction is based upon improper appreciation of the evidence and, therefore, the impugned Judgment & Order is liable to be set aside. He further submits that, the appellant has undergone the sentence & released on 30.10.2004 from Central Prison, Nashik. He submits that though the appellant has undergone the sentence, still the conviction needs to be set aside so as to wipe out stigma attached to him as convict.

15. Dr. Chavan (PW5) who conducted the autopsy on the dead body of the deceased has deposed that on external examination of dead body of the deceased it was revealed that her body was found smeared 11 APEAL466.2001J.doc with vomit & fecal matter. On external examination of dead body of deceased, he noticed only one contused lacerated wound over the chin of deceased. Dr. Chavan has admitted that due to vomiting & loose motion, the person becomes weak and blood pressure becomes low. He has admitted that, on noticing size, colour and the weight of the spleen, one can determine its nature. He has further admitted that, he has not mentioned that the spleen was diseased as same can be ascertained only after pathological test. He has admitted that, he has not examined to ascertain as to whether spleen of deceased was ruptured or otherwise. He has further admitted that, there was no external injury on the abdominal area of the deceased. He also admitted that, external injury over chin was simple in nature and may be caused due to fall on the ground. He has further admitted that, if the spleen is diseased then it gets ruptured even by sneezing, coughing and vomiting. He has also admitted that, he could not ascertain the exact cause of death of deceased at the time of conducting post-mortem and preserved viscera for examination of chemical analysis. He further admitted that, the opinion given by him was the probable cause of death. He further admitted that, sometime spleen also get ruptured spontaneously due to contraction of the abdominal muscles during the acts of sneezing, coughing, vomitting or straining and more particularly if the spleen is abnormally mobile.

"Most probable cause of death was due to Acute cardio- Respiratory failure due to Haemorrhagic Shock due to Rupture of Spleen. Viscera preserved for C.A."

18. Thus, the opinion given was probable opinion. Final opinion was not obtained by Investigating Agency. In the background of the facts of the case & evidence on record, the possibility of deceased being suffering due to dysentery & vomiting prior to her death & due to that reason may become weak & due to fall in blood pressure & stretching of muscles of spleen resulting into rupture of spleen cannot be ruled out in the facts & circumstances of the case & over all evidence on record. The report of viscera might have proved the cause of death otherwise than 14 APEAL466.2001J.doc alleged rupture of spleen. Due to non-referring the viscera for chemical analysis, prejudice has been caused to the accused. While dealing with this aspect, the learned Sessions Judge has observed as to manner in which the investigation has been conducted and specially the lapses on the part of the Investigating Officer. For the fault & lapses on the part of the Investigating Officer, the accused cannot be made to suffer. The report of the viscera may have proved the cause of death as otherwise. If we consider the testimony of PW5, the Autopsy Surgeon, then possibility of deceased being died due to diseased spleen cannot be ruled out under the facts & circumstances of the case. The Autopsy Surgeon has categorically deposed that he has not examined as to whether the spleen was diseased or not. In this view, no inference can be drawn the deceased died due to assault by accused no. 1 over the abdomen.

(iii) In the internal examination, the injury was found to spleen and the cause of the death was disclosed to be cardio respiratory failure due to haemorrhagic shock owing to rupture of spleen.

(iv) The deceased found to be dead in the house occupied by accused.

21. If we consider the first circumstance relied by prosecution then there is no cogent & convincing evidence to establish that deceased was subjected to ill-treatment as she could not conceive child. Prior to death of deceased no such complaint was made. Only after the death of deceased such allegations were made. There is no independent witness examined to establish that the deceased was subjected to ill-treatment and harassment for the reason that she could not beget a child. As discussed the testimony of P.W.1 to P.W. 4 no way prove such act of ill- treatment & harassment. In this view, the prosecution has failed to establish that the deceased was subjected to ill-treatment or harassment prior to her death on account of not conceiving the child by accused.