sat 1 cri.appln 372-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 372 OF 2011 The State of Maharashtra (Through Koregaon Police Station) ...Appellant (Orig.Complainant) vs. Yuvraj Shankarrao Pawar, Adult, Occ.: Medical Practitioner, R/so. Koregaon, Tal-Koregaon, Dist-Satara. ...Respondent (Orig.Accused) Mr.P.S. Hingorani, APP for the State. Mr.A.A. Kumbhakoni, Senior Counsel with Mr.V.V. Purwant for the Respondent. CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : DECEMBER 13, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The State has moved this Court for grant of leave to appeal against the judgment and order passed by the Additional Sessions, Satara, on 20th November, 2010, in sat 2 cri.appln 372-2011 Sessions Case No.203/2008. The respondent Yuvraj Pawar was the accused in the said case and was facing trial for the offences punishable u/ss.302, 498A and 201 of IPC. The deceased was wife of the respondent and sister of the original complainant Mr.Santosh More. The respondent and deceased had entered into wedlock on 8th July, 1998. They had one daughter out of the said wedlock, born in the year 1999. The respondent is a Doctor by profession and his professional qualification is M.D. (Medicines) which he has acquired in the year 2002. The respondent had two hospitals at Koregaon viz. Indira Hospital and Siddhivinayak Hospital. He has his bungalow by name Housai at Koregaon. It was alleged that the respondent was having extra marital relations with female staff members of his hospital and he wanted to marry one of the said female staff members. The deceased came to know about the affairs of the respondent. It is stated that once she had caught the respondent red handed in the hospital itself. After that, the respondent had allegedly abused and assaulted the deceased. sat 3 cri.appln 372-2011 It is further alleged that the respondent was demanding money from the deceased to repay the loan which he had obtained for raising abovestated two hospitals. Since the money was not paid, the deceased was being subjected to cruel treatment by the respondent. It is alleged that ultimately the respondent decided to eliminate the deceased so that he could marry the female member of the staff with whom he had allegedly extra marital relations. 2 It is alleged that the respondent being Medical Practitioner knew as to how some of the medicines could work slowly to kill the deceased. He, therefore, started giving oral medicines to the deceased on the pretext that she would conceive second child. Thereafter, he started giving her medicines by injections. The course of injectable medicines started on 12th July, 2008. It is alleged that the respondent had given about 11 pills at intervals and that had caused respiratory problem to the deceased. She was fully exhausted and tired. sat 4 cri.appln 372-2011 3 The incident in question had occurred on 15th July, 2008 when the respondent had allegedly administered some medicines by injections (allegedly muscle relaxant anaesthetic drug). The deceased was removed to Siddhivinayak Hospital by the respondent when her condition became critical. However, she chould not recover and died in the hospital. During the course of investigation, it was found that there was no direct evidence. The police could have reached the truth only after getting definite opinion about the cause of death of the deceased. It appears that the Medical Officer, who had performed post mortem examination, could not give the definite opinion. The Viscera was preserved and opinion was reserved. After getting histopathology report from the laboratory, it was opined that the deceased had died “due to pulmonary oedema with intra alvelor haemorrhage.” After completion of investigation, chargesheet was filed and it was committed to the court of Sessions. sat 5 cri.appln 372-2011 4 During the course of trial, the prosecution had examined following 12 witnesses in support of its case :- PW 1 Sachin More – brother of the deceased. PW 2 Mrudula Pawar – sister of the deceased. PW 3 Sanjay More, Cousin of the deceased. PW 4 Dilip Jadhav – maternal uncle of the deceased. PW 5 Kranti Pingale - Advocate friend of the deceased. PW 6 Praniti Ghadge – employee of the deceased and was working at their bungalow. PW 7 Sachin Shinde – Manager of Idea Cellular Company. PW 8 Shubhangi Ambhore – Lab Assistant in the hospital of the respondent. PW 9 Santosh More – Brother of the deceased and the complainant. PW 10 – Dr.Jayashri Dange who had carried out post mortem examination. PW 11 Dr.Anita Kavatkar. She has given histo pathological report. PW 12 Shrirang Langhe who is Investigating Officer. sat 6 cri.appln 372-2011 5 Out of these 12 witnesses, PW 2 sister of the deceased has not supported the case of prosecution. Similarly, PW 6 employee of the deceased and respondent and PW 8 Shubhangi, Lab Assistant working in the hospital of the respondent, have also not supported the prosecution case. There is no direct evidence and the case is mainly based on the circumstantial evidence. The fate of the case in fact was dependent on the cause of death. After extensive histopathological examination of viscera, cause of death was stated to be “pulmonary oedema with intra alvelor haemorrhage”. 6 Learned Additional PP Mr.Hingorani has submitted that there is ample evidence on record to show that the respondent had administered some unknown drugs which acted as a poison and in the result, the deceased had died. It was submitted that in the case of circumstantial evidence, motive assumes great importance. Mr.Hingorani has invited our attention to the fact that there was extra sat 7 cri.appln 372-2011 marital relations of the respondent and therefore he wanted to eliminate the deceased to have unfettered access to the female staff members with whom he had maintained relations since long. The learned Additional PP has further submitted that the symptoms seen on the dead body clearly indicated that drugs had acted as poison and that the respondent had not given any satisfactory explanation as to why the drugs were being administered to the deceased. 7 Mr.Kumbhakoni, learned Senior Counsel for the respondent, on the other hand, has submitted that as soon as the respondent got intimation from his maid servant regarding critical condition of the deceased, he promptly admitted her in his own hospital and started immediate treatment. Since the blood pressure had gone very low, the respondent had administered injections directly in her heart to increase her blood pressure and to activate the heart. However, he could not succeed. It is further submitted that the respondent had a very sound medical practice and he sat 8 cri.appln 372-2011 was financially well established. There was no reason for him to demand money from the deceased. Though he had taken loans from banks, there was no allegation that he was defaulter or that he was not able to repay the loan amount. The Lab Assistant with whom the respondent allegedly had extra marital relations was married in the month of April 2008 and had shifted to Pune. The incident in question, which has resulted into death of the deceased had occurred on 15th July, 2008. As such, it is submitted that there was no motive for the respondent to commit the alleged crime. The Chemical Analyser’s Report does not disclose that any poison was found in the viscera. It was submitted that the deceased had history of epilepsy. 8 Mr.Hingorani, learned Additional PP has submitted that it was incumbent on the part of the respondent to state as to what type of medicines had been given to the deceased as the medicines were within the special knowledge of the respondent. It was submitted that sat 9 cri.appln 372-2011 the respondent was under obligation to disclose the same in view of the provisions of Section 106 of the Evidence Act. It was submitted that only because poison was not found, it could be concluded that the poison was not administered. In brief, it is contended that there might be cases in which the poison might not be detected though it was administered. It was submitted that the administration of drugs intermittently could cause pulmonary oedema with intra alvelor haemorrhage. 9 The learned trial court has examined this issue extensively. It appears from the evidence of PW 10 Dr.Dange that he had been wavering throughout the recording of his evidence and was not able to assist the court in any manner. It appears from the judgment of the learned trial court that the evidence of Dr.Dange has created more confusion than the assistance to the court. It was submitted before the learned trial court by prosecution as well as by the defence that the pulmonary oedema with intra sat 10 cri.appln 372-2011 alvelor haemorrhage could not be cause of death. It was submitted that there should have been cardiac arrest or asphyxial death. It appears that opinion was sought from PW 10 and he had opined that the deceased had died as there was oxygenation in tissue of lungs (inter asphyxia). This was stated by Dr.Dange in a reply letter issued to the police. Later on, in another letter, he has stated that death of the deceased was not caused due to oxygenation in tissues of lungs. The learned trial court, therefore, refused to rely upon the evidence of PW 10 as he was not able to give any conclusive and definite opinion about cause of death. 10 It appears from the medical evidence and the judgment of the learned trial court that either the investigation was not conducted in the proper direction or there was failure on the part of the Medical Officer to come to definite conclusion for certain reasons. In any event, the respondent cannot be responsible for these follies on the part of the Investigating Officer. In the case of this nature, sat 11 cri.appln 372-2011 the investigation needed to be done in a scientific manner and with great precision. Superficial and peace meal evidence could not prove the charge levelled against the respondent. It is well settled that in the case of circumstantial evidence, each and every circumstance is to be proved independently and all the circumstances taken together must be able to complete the chain. In the present case, though the evidence is quite bulky and the learned Judge has also exerted very much to evaluate and examine the evidence, in our opinion, there is no definite circumstantial evidence to support the contention of the State. The view expressed by the trial court is based on proper evaluation of evidence. It does not call for any interference. 11 In the case where the State seeks leave to appeal against the order of acquittal, the Court has to bear in mind following things :- sat 12 cri.appln 372-2011 1) The Court is required to see that some arguable points have been raised. 2) The Court is not required to examine whether the order of acquittal would or would not be set aside. No abstract proposition of law of universal application can be laid down. 3) The provision of seeking leave to appeal is made in order to ensure that no frivolous appeals are filed. 4) Interference in the order of acquittal must be made in exceptional cases where there are compelling circumstances and judgment of lower court is found to be perverse. 5) The presumption of innocence is always in favour of the accused and the acquittal of the accused bolsters presumptions of his innocence. sat 13 cri.appln 372-2011 12 In the present case, we do not find judgment of the learned trail court to be perverse. There are no arguable points as the judgment of the learned trial court appears to be based on the evidence on record and based on well founded reasons. In our opinion, the State has not been able to make out a case for grant of leave to appeal. 13 The application is, therefore, rejected. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)