1 Cri.Appeal No.88/1992 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.88/1992. with CRIMINAL APPLICATION NO.781/1992. 1) The State of Maharashtra = APPELLANT (orig.Complainant) VERSUS 1) Dinesh s/o Trimbakappa Shete, Age: 27 Yrs. Occu. Service, R/o Parli Vaijinath, Tq.Ambejogai. 2) Taibai w/o Shankarrao Chillore, Age: 70 Yrs. Occu. Household, r/o as above. = RESPONDENTS (orig.accused) Mrs.SD Shelke, APP for State; Mr.Shivkumar Mathpati, Advocate holding for Mr.SB Talekar, Advocate for Respondent No.1; ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 22nd August, 2011. ORAL JUDGMENT:(Per:A.H.JOSHI,J.) 1) Considering that the appeal is admitted and the respondents are represented, the matter 2 Cri.Appeal No.88/1992 has appeared before this Court for final hearing. On this count, the delay is condoned. 2) Heard both the sides, perused the evidence. 3) It is seen that the cause of death, as reflected in the post mortem examination report is, "Asphyxia due to throttling. It is noticed that the dead body was completely charred and, therefore, the case was of charge under Section 304-B r/w Section 498-A as well as Section 302 of IPC. 4) Perusal of the prosecution evidence reveals that any proof as to demand or ill- treatment in relation to the demands. In the result, though death is unnatural, charge towards offences under Section 498-A and 304-B of the Indian Penal Code was not proved and the accused got acquitted. 5) In so far as the charge for commission of offence punishable unde Section 302 of IPC is concerned, the prosecution had to rely on circumstancial evidence in absence of eye- witnesses. 6) The best circumstancial evidence inter 3 Cri.Appeal No.88/1992 alia other in the present case would be, the nature of burn injuries. 7) The first witness in relation to the burn injury is PW No.12 – Dr.Shete, the Medical Officer, who had conducted the post mortem examination. 8) In paragraph 6 of his deposition, the PW 12 – Dr.Shete has narrated his observations as to the nature of burn injuries being post mortem. The relevant portion is quoted as under, - "5. I internally examined the head first, fracture of scalp. The covering of brain and brain itself was congested. No fracture of ribs and cartilages. The pleura was congested and tordues spots present. No foreign body and no carbon particles in larynx and trachea. The right lung was congested. The left lung was also congested.. Pericardium was congested. The left side of the heart was empty. The right side of the heart full of fluid with blood. The peritoneum was congested. No carbon particles on esophagus. The stomach was empty. No carbon was in the stomach. The liver was congested. The kidney bladder, pancreas, was congested. There was male foetus of 24 weeks. No meal was taken in 3 hours before time of death. After noting all these signs, I cam to the conclusion regarding the case of death. The viscera wa s preserved. 4 Cri.Appeal No.88/1992 6. There were no signs of burn on living tissues. There was no carbon particles in oesophagus, trachea, and stomach. The red line, around the site of burns was not visible, there were no blabs on skin, there was no sign of preparative process which is found in injury to living tissues." 9) It is seen from the cross-examination that PW 12 – Dr.Shete has admitted that there was over-writing in the entries in relation to column No.18(a) pertaining to the description of Thorax. The said column consisted of in one word "No". The relevant portion, at verbatim, is quoted as under, - "It is correct that, in column 18(a) of Exh.60 "No" was written and later on scored out. It is correct that the scoring does not bear the signature of both the doctors. I cannot assign any reason why the scoring is not signed by both of them. It is not true that during manipulation it has to be scored." 10) In cross-examination, in para 15, PW No.12 admits certain features, which render observations that the burn injuries were ante mortem, improbable, not just suspicious. Relevant portion is quoted at verbatim, as follows, - "The posture of the dead body at the site of burn is require to be considered while giving opinion 5 Cri.Appeal No.88/1992 on the burn injuries. I have no record to see the posture of the dead body on the spot. It is not true that I have not described the attitude of the dead body in column no.16. I agree with the opinion that flexing of muscles of arms, joints of upper lower limbs, occurs after death in case of burns. It is not correct that flexing of the muscles and charring of body occurs only in case of ante mortem burns" 11) The best evidence, which could have brought the case for the accused, under duty to explain circumstances, in which the body was burnt, was rendered adverse to the prosecution. As the burn injury caused post mortem is not proved, whole charge was rendered without any evidence. Thus, the medical evidence in totality rules out the possibility of the burn injuries being post mortem. 12) In the given situation, the judgment and order of acquittal passed by the learned Sessions Judge, holding that the prosecution has failed to prove the cause of death to be homicidal and the act of burning to be post mortem, cannot be faulted. Rather, view taken by the Sessions Court is the only possible judgement. 13) In the given circumstance, we find no 6 Cri.Appeal No.88/1992 ground to grant any indulgence in this appeal against acquittal. 14) The appeal is dismissed. Sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ Authenticated copy (BD VADNERE,PS)