Judgement - Mohd. Sadiq Mohd. Rafiq Vs. State Of Maharashtra

Court: Bombay High Court

Bench: JUSTICE B.R. Gavai & A.S. Chandurkar

Mohd. Sadiq Mohd. Rafiq Vs. State Of Maharashtra On 12 February 2014

Law Point:
Indian Penal Code, 1860 — Sections 302, 498A, 201 — Evidence Act, 1872 — Section 106 — Murder — Cruelty — Disappearance of evidence — Circumstantial evidence — Burden of proof — Prosecution failed to discharge initial burden of showing presence of appellant at his residence shortly prior to occurrence of incident — Burden under Section 106, Evidence Act would not automatically shift on appellant in these circumstances — Absence of corroborative evidence of any independent witness especially when their statements recorded by IO during course of investigation, is a factor that cannot be overlooked — No material whatsoever on record to implicate accused Nos. 2 to 4 — Chain of events leading to guilt of appellant not proved — Appellant cannot be convicted under Section 302, IPC.

JUDGEMENT

The appellant-accused No. 1 seeks to challenge his conviction for offences punishable under Sections 302, 498A and 201 of the Indian Penal Code (referred to as “the Penal Code” for short) vide judgment dated 21.9.2010, passed by the learned Additional Sessions Judge-2, Akola.

2. The facts, as can be gathered from the material on record, are that one Nazia Firdos was married to the appellant on 6.5.2007. After her marriage they were residing at Village Pinjar in Akola District. The appellant was running an electronic shop in the said village. On 24.4.2008, the appellant and his wife had been to Amravati for attending the marriage of Nazia’s cousin sister. Nazia stayed at Amravati after attending said marriage. On 12.5.2008, the parents had been to Amravati to bring his wife back. On the next day, Nazia had told her brother and mother that the appellant was demanding Rs. 50,000 for his electronic shop. Nazia’s mother collected an amount of Rs. 20,000 and paid the same to the appellant. Both of them returned to Pinjar on 13.5.2008. On 14.5.2008, the sister of Nazia received a message from the appellant’s brother that Nazia had sustained burn injuries and she was serious. The relatives of Nazia rushed to Pinjar, where they found dead body of Nazia. On the same day, the appellant had lodged report to the police that his wife had suffered accidental burn injuries. Report in this regard was thereafter lodged on 15.5.2008 by the brother of Nazia. After conducting post-mortem examination, it transpired that Nazia had been strangulated before her death and with a view to destroy the evidence, her dead body had been burnt by the accused. After making necessary investigation, charge-sheet was filed against the appellant, his parents and his sister. The case was thereafter committed to the Court of Session, as it was alleged that offence punishable under Section 302 of the Penal Code had been committed. Charges were duly framed but all the accused denied the charges and claimed to be tried. On conclusion of the trial, the learned Judge of the Sessions Court convicted the appellant-accused No. 1 for the offences punishable under Sections 302, 498A and 201 of the Penal Code. However, accused Nos. 2 to 4 were acquitted by the Sessions Court. Hence, this appeal by the accused No. 1.

3. Ms. U.K. Kalsi, the learned Counsel, appearing for the appellant has submitted that the appellant has been wrongly convicted by the Sessions Court. It is submitted that there was no eye-witness to the said incident and the appellant had been convicted merely on the basis of surmises. The learned Counsel has further submitted that if the evidence of P.W.4 – Dr. Ravikant Ghoderao is appreciated in a proper manner, it would be clear that Nazia had died on account of burn injuries and she had not been strangulated. There was further corroborative evidence in that regard but the same had been overlooked by the learned Judge of the Sessions Court. It was further submitted that there was no material on record to convict the appellant either under Section 302 of the Penal Code or under Section 498A of the Penal Code. The statements of the independent witnesses, though recorded, had not been placed on record as said statements were favouring the appellant. The learned Counsel, therefore, prayed for setting aside the conviction and allowing the appeal.

4. Per contra, Mr. S.S. Doifode, the learned Additional Public Prosecutor supported the order of conviction recorded by the Sessions Court. It was submitted that it was the appellant who was guilty of having committed said offence, in view of the fact that he was the last person to leave the residential house on 14.5.2008. It was submitted that the appellant had first strangulated Nazia and had thereafter set her on fire so as to do away with her body. It was further submitted that there was material on record to show ill-treatment of the deceased at the hands of the appellant and his family members. The learned Counsel further submitted that in view of provisions of Section 106 of the Indian Evidence Act, it was for the appellant to explain the reason as regards the cause of death of Nazia as he was last seen in her company. The learned Additional Public Prosecutor for the State, therefore, submitted that there was no reason to interfere with the conviction of the appellant. He submitted that the appeal deserves to be dismissed.

5. With the assistance of the learned Counsel for the parties, we have carefully gone through the entire material on record. The prosecution has initially examined P.W. 1 – Ayashabi Syed Ali vide Exh. 44. She is the mother of Nazia. She has stated that on 12.5.2008, the appellant had come to their house at Amravati. Thereafter, there was a quarrel with Nazia and on the next day, her daughter had told her that the appellant was demanding Rs. 50,000 for expanding his business. She has stated that she collected Rs. 20,000 from her relatives and handed over the same to the appellant. She has stated that on 14.5.2008 her son received a message that her daughter was burnt and she was in a serious condition. After performing burial, her son had lodged complaint on 15.5.2008. In her cross-examination, she has stated that her statement was recorded by the police on 28.5.2008. On the said date, for the first time, she gave information to the police about the incident and before giving said statement, she did not disclose said fact to anyone. It was suggested to her that family of the appellant had not ill-treated her daughter, but she has denied the said suggestion. The omission as regards joint residence of the appellant with other family members in her statement, made to the police, was also put to her.

6. P.W. 2 – Shamshad Parvin w/o Syed Maksood has been examined below Exh. 45. She has stated that Nazia was her sister-in-law and she has narrated about the demand of Rs. 50,000 made by the appellant and that Rs. 20,000 was thereafter paid. In her cross-examination, she has stated that even her statement was recorded on 28.5.2008. The omission as regards joint residence of the appellant with his parents and sister, in the statement recorded on 28.5.2008, has been admitted by the said witness.

P.W. 3 – Syyed Maksood Syyed Ali, who was the brother of Nazia and who had lodged the report on 15.5.2008, has been examined as P.W.3 vide Exh. 46. This witness, in his cross-examination, has stated that he did not make any inquiry about the illness of his sister. In his cross-examination, the omission to mention demand of Rs. 50,000 and payment of Rs. 20,000 to the appellant, in his report dated 15.5.2008, has been put. He has further admitted that report was not lodged on the date of the incident. It was suggested to the said witness that his sister was suffering from some ailment on account of which she was disturbed. It was also suggested that his sister did not like to reside in a small village. These suggestions, however, have been denied.

7. Dr. Ravikant Raghorao Ghoderao has been examined as RW.4 vide Exh. 54. Said witness was M.D. in Forensic Medicine and M.S. (ENT). He has stated that the body was received at 5.55 p.m. on 14.5.2008 and the post-mortem was completed at 7.00 p.m. on the same day. He has stated that the following external injuries were found on the body of Nazia:

“(1) A circular depressed ligature mark present in the mid-portion of the neck. It is well marked anteriorly and less marked posteriorly. It is placed almost horizontally. Subcidaneous hemorrhages present at the side of the ligature mark.

(2) There were 100% burns all over the body. Injury No. 1 mentioned above is ante-mortem injury and injury No. 2 i.e. burns over post-mortem injury.”

He has opined that the cause of death as per the post-mortem report- Exh. 55 is on account of asphyxia due to strangulation. He has further stated that it was likely that the death had occurred between 12 and 24 hours prior to conducting the post-mortem. This witness has been thoroughly cross-examined by the defence. The said witness was confronted with literature in the form of Medical Jurisprudence by Dr. Zhala as well as Modi’s Medical Jurisprudence. The line of cross-examination of the said witness was to bring on record the fact that the death had occurred on account of burn injuries and that Nazia had not been strangulated at all. This witness, in his cross-examination, has admitted that he did not notice that the hands of the deceased were clenched. He has further admitted that when death is due to strangulation, hands are usually clenched. Similarly, he has admitted that he did not notice that at the time of conducting the post-mortem, the tongue was swollen, bruised and dark in colour. He has further admitted that when death is due to strangulation, the tongue is found swollen, bruised and dark in colour. Similarly, he has further admitted that at the time of conducting the post-mortem, he did not notice frothy mucus in the larynx and trachea. He has further admitted that when death is caused due to strangulation, frothy mucus is noticed in the larynx and trachea. He has further admitted that he did not notice emphysematous bullae on the surface of the lungs and he has admitted that when death is due to strangulation emphysematous bullae is noticed on the surface of the lungs.

Similarly, this witness has stated that he did not notice haemorrhagic spot which is known as Tardicu spot under pericardium, thymus, and visceral pleura. He has further admitted that when death is due to strangulation, these spots are noticed on pericardium, thymus and visceral pleura. He has further stated that he did not notice frothy mucus in branchial tubes and when death is due to strangulation frothy mucus is noticed in branchial tubes. Another material admission given by this witness is that when death is due to strangulation, right side of the heart is full of blood and the left side is empty. He has admitted that in the post-mortem report, he had not written that the right side of heart was full of blood and the left side was empty. This witness has stated that when death is due to strangulation, the lungs are markedly congested and on being cut, acute frothy dark blood stain fluid is seen. He has admitted that he did not notice the said condition of the lungs. It was suggested to him that cause of death was burning and not due to strangulation. However, he has denied the aforesaid suggestion. Similarly, it was suggested to him that at the instance of relatives of the deceased and some political leaders, he had given a false post-mortem report. This suggestion has also been denied.

8. P.W.5 – Hasan Khan Inayat Khan has been examined vide Exh. 59. He is the Panch witness insofar as seizure Panchanamas at Exhs. 60 and 61 and inquest Panchanama at Exh. 62 are concerned. In his cross-examination, he has stated that the appellant used to go to his electronic shop at 8.00 a.m. He has further stated that when he saw dead body of Nazia, he did not notice any injury marks around the neck.

9. P.W.6-Bhagwan Ashruji Ghait, who was a photographer, was examined below Exh. 63. He has stated that he was called by the police to the house of the appellant for taking photographs. In his cross-examination, he has stated that the wall and door of the house of the appellant was blackened on account of fire. He has stated that he did not notice any injury marks around the neck of the deceased.

10. P.W 7 – Naresh Ramrao Deshmukh has been examined vide Exh. 67. He was the Panch witness when the seizure of the scarf was effected. This seizure on memorandum has been effected on 18.5.2008 at the house of the appellant. He has stated that the statement in the memorandum that the scarf was kept below the mattress of the cot was not correct.

11. Investigating Officer Murlidhar Vithalrao Mane has been examined as P.W. 10 vide Exh. 76. He has referred to various formalities undertaken during the course of investigation. In his cross-examination, he has admitted that he did not make any inquiry with Jamirroddin nor did he record his statement. Similarly, he has admitted that he did not make any inquiry with the shopkeepers, whose shops were adjoining to the shop of the appellant as regards his presence in the shop on 14.5.2008 at 9.00 a.m. He has admitted that on 14.5.2008 though the relatives of the deceased were present, no complaint was filed. He has stated that in inquest Panchanama it is required to be mentioned, if any, injury is noticed on the dead body. He has further admitted that he did not notice ligature mark on the neck of the deceased. This witness has further stated that he had made inquiries with the neighbours as to whether there was any dispute between the appellant and the deceased but it did not transpire that there was dispute between the appellant and the deceased. He has further stated that he did not record the statement of the person who paid Rs. 20,000 to the mother of Nazia.

12. Insofar as the inquest Panchanama (Exh. 62) that was conducted on 14.5.2008 is concerned, the same does not refer to any ligature marks on the neck of deceased Nazia. This fact is also admitted by P.W. 10, the Investigating Officer, in his cross-examination.

13. Having referred to the aforesaid material on record, it would be now necessary to consider whether the prosecution has been able to prove that the death of Nazia was homicidal. There being no eye-witness, the other circumstances coupled with the post-mortem report would have to be considered while arriving at said finding. Insofar as the presence of the appellant at his residential house on 14.5.2008 is concerned, the Investigating Officer in his cross-examination has admitted that he did not make necessary inquiries with adjoining shopkeepers, where the appellant was having his shop, regarding the appellant’s presence there at 9.00 a.m. In the report lodged by the appellant on 14.5.2008, it has been stated by him that his cousin brother Jamirroddin had telephoned him at 9.30 a.m. on 14.5.2008 and informed him that smoke was seen in his house and Nazia was alone at home. The Investigating Officer has, however, admitted in his cross-examination that he did not make any inquiry with Jamirroddin and that till filing of the charge-sheet, his statement had not been recorded.

P.W. 5 – Hasan Khan has in his cross-examination stated that the appellant used to go to his shop at 8.00 a.m. Similarly. P.W. 8 Ashok Govindrao Nikhade (Exh. 70) the Head Constable who accepted the report of the appellant in his cross-examination has stated that on the basis of report given by the appellant and the station diary, it appeared that the appellant was in his shop when he received information about the incident. From the aforesaid material, therefore, it cannot be said that the prosecution has succeeded in proving beyond doubt that the appellant was at his residence in the morning on 14.5.2008. On the contrary, a common thread that can be gathered from the line of the cross-examination and the answers given by various witnesses is that the appellant was not present at home in the morning on 14.5.2008.

14. Insofar as the aspect of homicidal death of Nazia is concerned, the post-mortem report (Exh. 55) is an important piece of evidence relied upon by the prosecution. To prove said post-mortem report, P.W. 4 – Dr. Ravikant was examined. As stated above, he was highly qualified being M.D. in Forensic Medicine and M.S. (ENT). He was thus an expert witness. While appreciating the evidence of an expert witness, certain settled principles will have to be kept in mind. Some of said settled principles are as under:

“(a) 24…..sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory.”

(1999) 6 Supreme Court Cases 120 (Mohd. Zahid v. State of T.N.).

(b) “While it is true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon there for and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.”

(2002) 2 Supreme Court Cases 426 (State of Haryana v. Ram Singh).

(c) 2. …Even where a doctor has deposed in Court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth.

(1982) 2 Supreme Court Cases 396 (Mayur Panabhai Shah v. State of Gujarat).

(d) “68. Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless….”

AIR 1960 Supreme Court 500 (Anant Chintaman Lagu v. The State of Bombay).

With this background, it would now be necessary to appreciate the evidence of P. W.4. It has been opined by P.W.4 that the cause of death was due to asphyxia due to strangulation and the death occurred between 12 to 24 hours prior to the post-mortem. In his cross-examination, it was suggested that when death occurs on account of suffocation due to smoke then there would be small fine particles carbon soot in the air passage, larynx and lungs. This was admitted by the said witness to be true. However, no such fine particles were so found on the body of the deceased. It was further suggested that in the report it was mentioned that the tongue was protruding and it was clenched between the teeth. The witness admitted that the same could be possible by effect of heat on blood. It was further suggested to the witness that in burn cases the brain is generally congested. This suggestion was given relying upon Modi’s textbook. The witness agreed with aforesaid suggestion and stated that at the time of post-mortem, he noticed that the brain was congested. Similarly, he also noted in the said report that the lungs were congested and it so happens in burn cases. Similarly, the witness stated that while doing the post-mortem, he did not notice that conjunctiva was found congested. He admitted that when death is due to strangulation, conjunctiva are congested. The witness further admitted that when death is due to strangulation, blood foam is found oozing from the nose and mouth. However, the witness admitted that at the time of post-mortem, he did not notice blood foam oozing from mouth, nose and ears. He further admitted that when death is due to strangulation, the tongue is found swollen, bruised and dark in colour. It was not so noticed at the time of post-mortem of the victim. Similarly, he admitted that when death is due to strangulation, emphysematous bullae is noticed on the surface of the lungs but he did not notice the same during the victim’s examination. Similarly, he did not notice pitachel haemorrhage in brain during post-mortem and admitted that when death is due to strangulation, pitachel haemorrhage is noticed in brain. The witness further admitted that when death is due to strangulation, the right side of the heart is full of blood and the left side is empty. Said aspect was, however, missing in the post-mortem report.

15. Insofar as ligature marks on the body of the deceased are concerned, said witness admitted that ligature mark known as groove or furroo can be noticed by naked eye even by a layman. The witness further admitted that in case of strangulation, abrasion is noticed on the skin adjacent to the ligature mark. However, he did not notice any abrasion. This witness in his cross-examination has stated that ligature mark can also be seen by naked eye. We have also perused the photographs at Exhs. 65/1 to 65/26. We have failed to notice any injury marks around the neck of the deceased in said photographs. This witness has further admitted that no skin from neck was peeled out. It was then suggested to this witness that the cause of death was due to burning and not due to strangulation. Said witness, however, has denied aforesaid suggestion.

The aforesaid evidence reveals that various indicators of strangulation were not noticed during the post-mortem conducted on the deceased. The witness agreed with the standard literature with which he was confronted during the course of his cross-examination. He further admitted absence of various features that are usually noticed when death takes place on account of strangulation. When the post-mortem report (Exh. 55) and the evidence of P.W. 4 (Exh. 54) are considered in conjunction, what is noticed is that in the post-mortem report it is concluded by the said witness that the cause of death was asphyxia due to strangulation. However, the tell-tale signs that are found when death occurs on account of strangulation are missing in said post-mortem report. It may be noted that said witness being an expert in his field was confronted with literature on the subject prepared by experts. Said witness candidly admitted various propositions stated by said experts and did not state that he held another view of the matter. Thus, the conclusion as arrived at by said expert that death was caused on account of asphyxia due to strangulation cannot be accepted on its face value in the absence of various features noted by expert that are present when death is caused due to strangulation. In view of this, therefore, it cannot be said with certainty that the death of Nazia was caused due to asphyxia on account of strangulation. Absence of various features when death is caused due to strangulation that are noted by experts in the literature with which said witness also agrees, therefore, creates a doubt as regards the manner in which the death of Nazia occurred. The defence has, therefore, succeeded in creating a doubt as regards the death of Nazia being homicidal and caused on account of asphyxia as a result of strangulation.

16. Similarly, as regards the time of occurrence of death is concerned, it is to be noted that P.W.4 – Dr. Ravikant has stated that death occurred in between 12 and 24 hours prior to the post-mortem. According to the said witness, death might have occurred before 6 a.m. i.e. 12 hours before. The post-mortem examination commenced at 5.55 p.m. on 14.5.2008 and concluded at 7.00 p.m. on same day. In his cross-examination, the said witness has stated that rigor mortis develops from the head to feet within 12 hours and it is maintained for further 12 hours and disappears within next 12 hours. He has stated that in the present case rigor mortis was present partially.

Thus, if said witness has noticed that rigor mortis was present partially and the same normally develops within 12 hours and is maintained for further 12 hours, it would be clear that his earlier statement given during his examination-in-chief that the death might have occurred before 6 a.m. on said date i.e. 12 hours before is contradicted by his own finding that rigor mortis was partially present when he conducted the post-mortem examination. This again raises a doubt as regards the time of occurrence of death of Nazia.

17. Insofar as seizure of the scarf (Odhani) is concerned, the same was seized on memorandum vide Exh. 68. Said memorandum is recorded on 18.5.2008 and said scarf is shown to be seized from the residence of the accused from a room where his younger brother was present. In the seizure memo (Exh. 69), it is stated that the same was seized from the place below the cot. P.W. 7 -Naresh Ramrao Deshmukh, who was the Panch witness, has stated that the statement mentioned in the memorandum that the ‘Odhani’ was kept below the mattress of the cot was not correct. He has further stated that he could not assign any reason why it was so mentioned. In view of the aforesaid, a doubt is created as regards seizure of the said scarf on 18.5.2008.

18. It is now necessary to consider the material on record as regards presence of the appellant at his residence in the morning of 14.5.2008. P.W.5 – Hasan Khan, in his cross-examination, has stated that the appellant used to go to his shop at Pinjar at 8.00 a.m. He has further stated that telephone call had been made by the appellant’s cousin brother Jamirroddin and he had called the appellant from his shop. The Investigating Officer, as stated above, did not record the statement of Jamirroddin nor did he make inquiries with the adjoining shop owners. There is thus, no evidence on record to come to the conclusion that the appellant was present at home when the aforesaid incident took place. It is pertinent to note that in the examination of the appellant under Section 313 of the Code of Criminal Procedure he had while answering question No. 44 specifically stated that he was not present at his house at the time of the incident. Thus, in absence of any material on record we cannot conclude that the appellant was at home at the time of occurrence of said incident on 14.5.2008. His defence, therefore, appears probable.

19. Insofar as provisions of Section 106 of the Indian Evidence Act and its applicability is concerned, it is to be noted that the initial burden lies on the prosecution to first establish the presence of the appellant at his residence just prior to occurrence of the incident. It is only after the prosecution succeeds in proving the presence of the appellant at his residence just prior to occurrence of the incident that the burden would shift on him to explain the alleged occurrence on the basis of last seen theory. Here, we have found that the prosecution has failed to discharge the initial burden of showing the presence of the appellant at his residence shortly prior to occurrence of the incident. Hence, in absence of evidence in that regard being placed on record, the burden under Section 106 of the Indian Evidence Act would not automatically shift on the appellant in these circumstances.

20. The manner in which the investigation has been conducted is also required to be looked into. The Investigating Officer in his cross-examination has admitted that though he recorded statements of various persons including neighbours but no independent witness has been examined in that regard. The prosecution witnesses examined were related to the deceased. P.W.2 was her mother, P.W.2 was her sister-in-law, while P.W.3 was her brother. Absence of corroborative evidence of any independent witness especially when their statements were recorded by the Investigating Officer during the course of investigation is a factor that cannot be overlooked.

Similarly, we find that in absence of any material the other family members of the appellant have been implicated in the present case. It can be seen that there was material on record to indicate that the parents of the appellant and his sister were residing at Akola while the appellant was staying at Pinjar. Even P.W.1-Ayashabi Syed Ali and P.W.2 -Shamshad Parvin do not make any grievance against the said accused Nos. 2 to 4 in their examination-in-chief. Though they have been rightly acquitted of the aforesaid offences by the learned Judge of the Sessions Court, we find that there was no material whatsoever on record to even implicate them.

21. From the material on record, therefore, we find that the chain of events leading to the guilt of the appellant has not been proved. As stated above, the present is a case based on circumstantial evidence. It is well settled that in such a case, each circumstance has to be taken individually and all circumstances when taken collectively should complete the chain of circumstantial evidence. The said chain should be consistent with the hypothesis of the guilt of the appellant. However, such is not the case. The chain of circumstances is not at all complete and in fact with regard to each circumstance there is a doubt created. The prosecution has, thus, failed to prove beyond reasonable doubt the guilt of the appellant. The appellant, therefore, cannot be convicted for the offence punishable under Section 302 of the Penal Code.

22. Insofar as conviction of the appellant under Section 498A of the Penal Code is concerned, we find that the evidence on record even in that regard is insufficient for recording the appellant’s conviction. The prosecution witness Nos. 1 to 3 have referred to demand of Rs. 50,000 by the appellant and it is stated that an amount of Rs. 20,000 was paid to the appellant on 13.5.2008. Though P.W.1 stated that she had collected Rs. 20,000 from her relatives, no such relative has been examined. The Investigating Officer (P.W. 10), in his cross-examination, has admitted that he did not record statement of the person who had paid Rs. 20,000 to P.W. 1. Similarly, from the statements of neighbours it did not transpire that there was any dispute between the appellant and the deceased.

The requirement of provisions of Section 498A of the Penal Code of subjecting “such woman to cruelty” is missing in the present case. The explanation of the word “cruelty” requires any wilful conduct of such nature that is likely to drive the woman to commit suicide. Similarly, there could be harassment of the woman with a view to coerce her to meet any unlawful demand for any period or valuable security. There is no evidence on record to hold that the deceased was subjected to cruelty in terms of provisions of Section 498A of the Penal Code. Hence, on said count also the conviction of the appellant cannot be sustained.

23. Perusal of the judgment of the learned Sessions Judge indicates that the learned Judge has not taken into account the entire deposition of P.W. 4 Dr. Ravikant Ghoderao. The learned Sessions Judge has not considered the effect of various admissions of said witness with regard to the cause of death of Nazia. If the entire testimony is considered there is a grave doubt created as regards the actual cause of death of Nazia. The learned Sessions Judge has also wrongly held that it was for the appellant to discharge the burden under Section 106 of the Indian Evidence Act. As stated above, the said burden would shift only after the prosecution had succeeded in discharging the initial burden on it. Hence, after considering the entire material on record and having given it our anxious consideration, we are unable to uphold the conviction of the appellant.

24. Before concluding, it would be necessary to place on record the manner in which P.W. 4 – Dr. Ravikant Ghoderao was cross-examined. Said witness being an expert, his cross-examination reveals that the same was conducted after thorough preparation of the subject. Reliance placed by the defence Counsel Mr. D.B. Kate, Advocate on the literature in that regard was appropriate. Said cross-examination conducted meticulously has resulted in creating a grave doubt as regards the cause of death. Such detailed and studied cross-examination has now-a-days become a rarity.

25. Accordingly, the appeal is allowed. Conviction of the appellant is set aside. The appellant is directed to be set at liberty if not required in any other case.

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