JUDGMENT
R.M.S. Khandeparkar, J.
1. This appeal arises from judgment dated 19th March, 1994 passed by 4th Additional Sessions Judge, Satara in Sessions Case No. 64/89, wherein the appellant herein was charged for and held guilty of the offence punishable under section 302 of I.P.C. on the ground that the accused on 14-12-1988 at about 14 p.m. to 14.30 p.m. at Talbid, Taluka : Karad, committed murder by intentionally or knowingly causing death of Shivaji Mugutrao Mohite, aged 25 years by means of knife and was therefore, ordered to suffer imprisonment for life and fine of Rs. 1000/-, in default to undergo further imprisonment of 2 months.
2. The case of the prosecution was that Mugutrao Mohite of village Talbid in Karad Taluka had two sons by name Shivaji and Vinayak. The former was serving in arm forces and the latter was serving in Bombay. On 4-12-1988 the said Shivaji had been to the village Talbid on casual leave and was visiting Maruti Temple of the village every day for playing cards. On the day of incident which occurred on 14-12-1988 at about 2.30 p.m., after taking meal as usual, Shivaji went to Maruti Temple for playing cards. At that time Bhagwan Mohite, Gulab Mohite, Sadashiv Mohite and one Veternary doctor by name Raghunath were also alongwith him. At about 2.30 p.m. on the same day the accused and said Shivaji had some altercations of words between them, which resulted in a quarrel between them due to which the accused stabbed Shivaji in his stomach by a knife. After receiving the injury in the stomach, Shivaji came out of the temple crying and fell in front of Maruti Temple. This incident was revealed to the mother as well as wife of Shivaji by some school boys and on receipt of the said information Shakuntala the mother of Shivaji rushed to the spot alongwith some other persons and saw Shivaji injured and bleeding. Shivaji was shifted in a tempo vehicle and taken to hospital at Karad. Mugutrao, the father of Shivaji thereafter, went to Cottage Hospital at Karad, but he was told that Shivaji was shifted to Krishna Charitable Hospital at Karad and accordingly. Mugutrao went to the said hospital when the said Shivaji was being medically treated in the said hospital and the doctor present there told him that he was seriously injured. On 15-12-1988 at about 1 a.m. the doctor told that Shivaji had succumbed to his injuries. At about 9. a.m. said Mugutrao lodged his report in the police station at Umbraj, on the basis of which Cr. No. 236/88 under section 302 of I.P.C. was registered and the investigation was started by P.I. Shejal.
3. After drawing necessary panchanama and recording statements of various persons and after arresting the accused on 20-2-1989 and on receipt of Chemical Analyser’s report regarding weapon recovered and other items P.I. Shejal filed a charge sheet in the Court of J.M.F.C. Karad and the offence being punishable under section 302 of I.P.C. the matter was committed to the Sessions Judge at Satara. The prosecution in all examined 15 witnesses in support of the charge against the accused and produced various documents which included panchanama of the scene of offence, the post mortem report, C.A. report, F.I.R. etc. On the basis of the said evidence produced by the prosecution, the Sessions Judge found the accused guilty of the offence charged and accordingly passed the impugned judgment.
4. Before we consider the various arguments advanced on behalf of either sides, it is worthwhile to go through the evidence produced by the prosecution before the trial Court.
5. Shri Mugutrao Lalasaheb Mohite, P.W. 1 who lodged a complaint on 15-12-1988 around 9 a.m. against the accused for having stabbed his son stated before the Court that while he was in his field on the said day around 2.30 p.m. one Jaywant informed him that his son Shivaji was assaulted by somebody and when he went to the hospital on the same day, his wife and his daughter-in-law i.e. wife of said Shivaji informed him that said Shivaji was stabbed by the accused. He also deposed that while he was proceeding towards hospital one Balu Raut had met him and told him that the accused had stabbed his son Shivaji and had ran away. He confirmed that the police had been in the said hospital for inquiry of the said offence, when he had reached to the hospital around 4 p.m. He confirmed the complaint which is exhibited as Exh. 19. The perusal of complaint shows that he had stated therein that Shivaji was unconscious since the time he had been taken to the hospital.
6. Dr. Shaukatali Babalal Shaikh, Medical Officer examined as P.W. 2 stated before the Court that on 15-12-1988 he conducted the post-mortem on the body of Shivaji between 4 to 5 p.m. and opined that the cause of death was due to shock due to haemorrhage due to injury to vital organs like lever, stomach and intestine. He also certified that injury No. 1 in Column No. 17 of his post-mortem report was sufficient to cause the death in the ordinary course of nature. The said injury is on the abdomen. All the injuries cumulatively were also sufficient to cause death in the ordinary course of nature according to the said witness.
7. Shri Raghunath Jakhu Suryagandh, dresser in the Government Veterinary Hospital at Talbid as he was then at the relevant time, stated before the Court that on 14-12-1988 after his duty hours i.e. after 12 noon he went to his house and after taking meal he proceeded towards the hospital around 1.30 p.m. and when he reached near Maruti Temple of the village, he saw some of the persons playing cards and those persons included the accused. He further deposed that after watching game for some time he went to his hospital, but before that he saw Shivaji sleeping in a veranda of the said Temple. He also stated that he proceeded towards the hospital after the game of cards was over, and while in the hospital at about 2.30 p.m. he saw Shivaji coming running from the said temple holding his stomach and shouting in distress. Thereupon the said Raghunath and one Ghadge Sir came running out of the hospital towards Shivaji. On the said occasion said Raghunath saw a person running away from the said place. But he could not identify him. He also confirmed that the blood was oozing from the wound on the stomach of Shivaji and at that time the mother and wife of Shivaji arrived on the scene. Shivaji was crying on account of pain which he had from the injury. Shivaji was then immediately shifted to the hospital. He further confirmed that himself and Ghadge Sir continued to be on the spot till Shivaji was shifted to the hospital.
8. Shri Maruti Baburao Thorat, P.W. 4 deposed before the Court that on 25-2-1989 he was called in Umbraj Police Station, where the accused made a confessional statement to the effect that he would show the place where he had kept a knife. Accordingly, the accused led the police party and the panchas including the said witness to the field of one Rajaram Mohite and removed a knife from a place below the trunk of mango tree. The knife according to the said witness was stained with blood at its blade. He further stated that before they reached the place, the police from Talbid called Rajaram and he was present at the time of said recovery of the knife.
9. Shri Bhagwan Baburao Mohite, P.W. 5 stated before the trial Court that on 14-12-1988 after playing the cards game in the Maruti Temple, he left for his field at about 2 p.m. and at that time Shivaji was seen sleeping in the temple. On returning from the field at about 4 p.m. he came to know that the accused had stabbed Shivaji. He also stated that at about 3.30 p.m. on the same day the accused had met him near his field and had asked for some money, which he had refused to give to the accused.
10. Shri Sakharam Ganpatrao Tate, P.W. 6 stated before the trial Court that his house is adjacent to Maruti Temple and he was performing pooja of Lord Maruti in the year 1988. On 14-12-1988 while he was harvesting Tur crops in front of his house, game of cards was going on in the Maruti temple. On the said day accused assaulted Shivaji and at the noon time Shivaji came running and fell in the Court yard of his house and on the said occasion accused ran away from infront of his house. Shivaji was injured in his chest and he was holding his injury and he was bleeding. Shivaji was shouting in distress and within short time his mother and wife arrived at the site. So also many other persons gathered. The mother of Shivaji cut a piece of her saree and tied it around the place of injury to Shivaji. On the said occasion the mother and wife of Shivaji asked Shivaji as to how he got injured and thereupon Shivaji told that accused had assaulted him. On the said occasion the witness Sakharam was standing at a distance of 21 feet away from Shivaji. The witness further stated that he had not witnessed the assault on Shivaji and he came to know about it only after Shivaji came to his courtyard. He also further stated that Shivaji fell in his courtyard as he was feeling giddiness and consequent to his falling down Shivaji became unconscious and continued to be unconscious till he was shifted to the tempo for taking him to the hospital.
11. Smt. Shakuntalabai Mugutrao Mohite, P.W. 7, mother of the deceased Shivaji stated that at about 12.30 noon on 14-12-1988 her son Shivaji went to the temple for playing cards. At about 2.30 p.m. on the same day some school boys came running to her house and told her that “Dadya of Bajarang Tatya” assaulted her son Shivaji with knife and Shivaji was lying injured in front of Maruti Temple and therefore, she rushed to the temple and saw Shivaji lying injured there. As the blood was oozing from Shivaji’s wound on stomach, she tied a piece of her saree around the wound and asked him as to what had happened and in response Shivaji told her that “Dadya of Bajarang Tatya” had assaulted him on his stomach with a knife. Her daughter-in-law also followed her to the place where Shivaji was lying and many other people were also gathered there. Shivaji then asked her to shift him to the hospital and her nephew Arun Mohite brought a tempo vehicle and Shivaji was taken to Cottage Hospital, Karad. The doctors in that Hospital advised Shivaji to be taken to Krishna Charitable Hospital for better treatment and accordingly he was shifted to the said hospital. When Shivaji was being taken inside the said hospital he told her that “Dadya” had assaulted him with knife and he should be given injection immediately as he belonged to Army personnel. Her son was not unconscious in Krishna Charitable Hospital. She further stated that in Krishna Charitable Hospital her husband gave information to the doctor about the injured Shivaji and while they were in the said hospital police also arrived there. However, the police persons did not enquire with them nor they gave any information regarding the incident to the police in the hospital. She further confirmed that Arun Mohite and Sadashiv Mohite were also present in the hospital till the death of Shivaji. In the cross-examination she admitted that the boys had told her that her son Shivaji was assaulted and was lying in front of the temple and that boys did not tell her anything except the said information. She also stated that she did not tell the police while recording her statement that her son Shivaji had told her in Krishna Charitable Hospital that he was assaulted with knife by “Dadya of Bajarang Tatya” and that he should be given injection immediately as he was the army man.
12. Shri (sic) Smt. Rajashree Shivaji Mohite, wife of deceased Shivaji P.W. 8 stated before the trial Court that the boys had told her mother-in-law and herself that her husband Shivaji was assaulted by knife and he was lying there and therefore witness and her mother-in-law immediately rushed to the temple and saw her husband injured before the temple and blood was oozing from his injury. Her mother-in-law spread a piece of saree around the wound of Shivaji and thereafter Shivaji was kept in tempo vehicle. She also stated that her husband informed her and her mother-in-law that the accused had assaulted him with knife and except that her husband did talk anything else.
13. Shri Vinayak Mugutrao Mohite, P.W. 9 who is the brother of Shivaji stated that he had lodged a complaint against the accused about 3 to 4 years prior to the incident regarding assault on him near Belwad Phate. He has further stated that the accused had threatened him about 2-3 months prior to the incident to the effect that Shivaji should stop having illicit relations with his sister by name Kanta, failing which Shivaji would suffer dire consequences.
14. Prosecution has also examined one Shri Ganpat Mahadev Gaikwad, as P.W. 10. However, he could not add anything further to the prosecution case.
15. P.W. 11 Smt. Kantabai Shivaji More, who is the sister of the accused, stated before the trial Court that the accused is her younger brother and he had met with an accident about 3-4 months prior to the incident and had sustained the fracture to his collar bone, as a result he was residing at Talbir for about 3-4 months and thereafter he went to reside at Pune on account of his service.
16. P.W. 12 Shri Vasantrao Amritrao Mohite stated before the trial Court that while he was passing by the side of the temple Maruti on 14-12-1988, he saw Shivaji lying in front of the temple in injured condition and mother and wife of Shivaji were also near him. Thereafter, he saw Shivaji being removed in a tempo vehicle to be taken to the hospital. He further stated that he did not see the accused on the spot at that time.
17. P.W. 13 Dr. Mukund Ganpatrao Tambare, who was the Medical Officer attached to Krishna Charitable Hospital at the relevant time stated that on 14-12-1988 one Shivaji was brought to the hospital in injured condition at about 3.15 p.m. and on his admission he had seen the patient at 3.30 p.m. and that patient gave him a history wherein he stated that he had sustained stab injury at about 1 p.m. on the said day. He further stated that the surgery on patient was done by Dr. Sarda and himself and operation started at about 5.15 p.m. and lasted till 11.15 p.m. on the same day. He further deposed that Shivaji succumbed to his injury at about 12.30 in the midnight. He admitted that he was not present in the hospital at the time of admission of the patient. Further he stated that the hospital authority had informed the police about the admission of the injured Shivaji on 14-12-1988 at about 3.25 p.m. and the said message was received by one Gaikwad at police station. He also admitted that a history is normally obtained at the time of admission of the patient in the hospital and that he had examined the patient while he was admitted in I.C.U. He further confirmed that the entry in the medical records at the time of admission of the patient was done at about 3.15 p.m. and is in the handwriting of Dr. Patil from Casualty Department of the hospital.
18. P.W. 14 Shri Khanderao Dattatraya Keskar, who is the Investigation Officer, has deposed that the accused was arrested on 20-2-1989 pursuant to taking over of investigation from P.S.I. Shejal on 17-2-1989 and pursuant to disclosure made by the accused, a knife used in the offence was recovered under the panchanama on 25-2-1989 and that on 26-2-1989 the muddemal including knife was sent for necessary examination to the Chemical Examiner and that on 20-3-1989 he entrusted the charge of investigation to P.S.I. Shejal. He stated in cross-examination that he did not call Rajaram Mohite at the time of recovery panchanama of the knife at the village Talbid. He further expressed ignorance about the death of Rajaram Mohite prior to the date of recovery panchanama.
19. P.W. 15 Shri Laxman Pandurang Shejal has stated before the trial Court that on 15-12-1988 P.W. 1 approached him and gave oral report of the incident which he reduced into writing and which is F.I.R. Exh. 19. He stated before the trial Court that he registered the offence under Cr. No. 236/88 as the offence punishable under sections 302 of I.P.C. and pursuant thereto he phoned to Karad City Police Station to inquire about Shivaji and Karad police informed him on phone that the injured Shivaji had already expired. He therefore, rushed to the scene of offence and drew a panchanama and thereafter recorded statements of various witnesses. He further stated that he handed over the investigation to P.S.I. Keskar P.W. 14 on 17-2-1989. He admitted in the cross-examination that on 14-12-1988 there was a phone message to Karad City Police Station from Krishna Hospital to the effect that injured Shivaji was brought in that hospital. He further admitted that the accused was serving in Pune City.
20. The trial Court on the basis of evidence recorded arrived at the finding that the prosecution had been able to establish the guilt of the accused and therefore, he was liable for conviction for the offence punishable under section 302 of I.P.C.
21. It is now contended by Shri R.S. Mohite learned Advocate appearing for the appellant that the trial Court erred in holding that the first circumstance against the accused to connect him with the guilt is the motive which is said to have been proved by P.W. 9 Vinayak Mohite, who had filed a complaint against the accused about 3-4 years back regarding the assault and further regarding the threat given by the accused on account of alleged illicit relation of Shivaji with his sister. According to the learned Advocate for the appellant the trial Court erred in relying upon the deposition of P.W. 9 to hold that the motive for the offence has been proved. In fact the motive alleged by P.W. 9 is totally contrary to one disclosed in the F.I.R. Exh. 19 by P.W. 1. Indeed, P.W. 1 while lodging a complaint on 15-12-1988 alleged that the motive for the offence was the altercation between the accused and the deceased Shivaji during the card game. Being so the learned Advocate is right in contending that the trial Court erred in overlooking the fact that the case sought to be put forth regarding the motive by P.W. 9 was totally different from one alleged by P.W. 1 while lodging the complaint. In the circumstances, it is unsafe to rely upon the testimony of P.W. 9 to arrive at the conclusion that the motive for the offence has been established on the basis of the testimony of P.W. 9.
22. It is further contended by the learned Advocate for the appellant that the trial Court also erred in giving undue importance to the alleged oral dying declaration by Shivaji, to his mother and his wife. He further submitted that undisputedly the said declaration is an oral declaration and has not been proved in the exact words of the deceased. He further submitted that in the absence of proof and corroboration of such oral declaration, it was improper and illegal for the trial Court to base the conviction solely on the basis of alleged dying declaration. He took us through the deposition of P.W. 3, P.W. 6, P.W. 7 and P.W. 8 to make his point good that the deceased was not in a condition to make any statement at the relevant time and that even assuming that he had made such a statement, it was not corroborated by any independent witness and therefore, it was unsafe for the trial Court to rely upon such declaration to hold the appellant guilty of the offence charged for. Indeed, it is seen that P.W. 7 has stated that she asked his son as to what had happened and in response the deceased told her that “Dadya of Bajrang Tatya assaulted him on a stomach with knife”. P.W. 8, the wife of the deceased has stated that her husband told her and her mother-in-law that “accused assaulted him with knife”. P.W. 6 has stated that “Shivaji told them that accused assaulted him”. Thus we have three different versions regarding the so-called oral dying declaration by Shivaji. Neither P.W. 8, the wife of the deceased nor P.W. 6 Sakharam has corroborated the version of the dying declaration disclosed by P.W. 7 Shakuntala to whom the said declaration is said to have been made. From the evidence of P.W. 6, P.W. 7 and P.W. 8 it is not possible for the Court to believe in the different versions regarding the alleged dying declaration of the deceased Shivaji. P.W. 6 has also stated before the Court that Shivaji fell in his courtyard as he was feeling giddiness and after that he became unconscious and did not regain the consciousness till he was shifted into the tempo for being taken to the hospital. He has also deposed that the mother and wife of the deceased came to the spot after Shivaji had fallen unconscious. Considering this fact disclosed by P.W. 6, it is difficult to believe that the deceased had any occasion to make any dying declaration to P.W. 7 who had reached the spot after Shivaji had become unconscious. The another piece of evidence on record which also creates genuine doubt about the alleged oral declaration by Shivaji is deposition of P.W. 3 Raghunath. The said witness, P.W. 3 who was a dresser in the Government Veterinary Hospital was present at the spot when Shivaji came running out from the temple with an injury to his stomach and till Shivaji was shifted to the hospital. The said witness has nowhere deposed about any such oral dying declaration to the mother or the wife of the deceased. He has however deposed that at the relevant time he was accompanied by one Ghadge Sir, however, the prosecution has not examined any person by name Ghadge Sir.
23. As regards the second dying declaration alleged to have been made by Shivaji, the evidence on record does not prove the same. P.W. 7 has stated before the Court regarding the said second oral dying declaration that the deceased Shivaji when was being taken inside the hospital told her that “Dadya has assaulted him with knife, he should be given injection immediately, as he belonged to army personnel.” However, it is pertinent to note that P.W. 8 who is said to have accompanied P.W. 7 and deceased Shivaji nowhere corroborates in any manner the alleged second dying declaration by the deceased Shivaji at the time of his admission in the hospital. It is also surprising to note that neither P.W. 7 nor P.W. 8 and so also P.W 1 has disclosed about such dying declaration by Shivaji to the police who were very much present in the Krishna Charitable Hospital at the time when Shivaji was admitted in the said hospital. Had the deceased made any such disclosure to his mother or his wife, it was but quite natural for the mother and wife to disclose the said fact to the police immediately on the said occasion. Being so, considering the evidence, which has been brought on record, we do not find it is safe to rely upon the alleged dying declaration, which do not find any corroboration from any piece of evidence on record.
24. Shri Borulkar, the learned A.P.P. however, while opposing the submission on part of the appellant in relation to dying declaration drew our attention to the deposition of P.W. 13 and the medical report wherein it is stated that the history of the patient was given by the patient himself. He further pointed out from the deposition of P.W. 13 Dr. Mukund Tambare that the said doctor had clearly stated that he obtained a history of the patient from the patient himself and this leads to support to the fact that Shivaji was in conscious state of mind so as to make necessary disclosure about the identity of the assailant to his mother and wife. Moreover, on proper reading of the deposition of Dr. Tambare we find that it unsafe to rely upon his testimony to arrive at the conclusion that the deceased was in a conscious state of mind at a relevant time to make such declaration. P.W. 13 doctor though has initially claimed to have obtained a history from the patient, he has further admitted that the deceased Shivaji was admitted in the hospital at 3.15 p.m. and at that time he was not present in the hospital. He has also further admitted that the history of the patient was taken at the time of admission and he examined the deceased Shivaji only when he was taken to I.C.U. He also confirmed the entry in relation to admission of the patient in the hospital was made at 3.15 p.m. and that it was in the handwriting of Dr. Patil. Likewise, initially he claimed that surgery on the deceased Shivaji was done by Dr. Sarada and himself, however in the cross-examination he admitted that the surgery on the deceased was done by Dr. Sarda and Dr. Tata and he assisted them. Shri Mohite learned Advocate for the appellant at this stage also drew our attention to the medical report particularly Exh. 36 and drew our attention to the fact that the entry in relation to the stitching of incised wound on posterior sup-surface of the liver was made in a different ink and handwriting. Referring to this entry it is sought to be argued that the doctors who operated on the deceased Shivaji might have committed lapse on their part in forgetting to stitch the said wound at the time of operation. The learned Advocate Mr. Mohite referring to the said medical record submitted that the witness Dr. Tambare having realised about the lapse committed in the course of surgery, then tried to save himself by trying to disassociate from the surgery contending that the surgery was not done by him, but was done by the Dr. Sarda and Dr. Tata. As rightly pointed out by advocate Mr. Mohite the conduct on the part of the witness is worth considering while testing veracity of the testimony of P.W. 13, who had initially claimed to have operated on the patient alongwith Dr. Sarda and thereafter had made disclosure that the operation was actually carried out by Dr. Sarda and Dr. Tata and that the witness had only assisted them. Being so, and considering the evidence on record, we find it difficult to rely upon the testimony of the said witness to hold that the deceased Shivaji was in conscious state of mind for the purpose of giving dying declaration at the relevant time to his mother and wife.
25. It is then submitted by the learned Advocate for the appellant that the trial Court also erred in giving undue importance to the evidence on record in relation to the presence of the accused before and after the incident at the place where the deceased Shivaji was found lying injured. It is a fact that P.W. 6 has deposed that the accused was seen running away from the place of incident and more particularly from infront of the house of P.W. 6 when the deceased Shivaji came running from the Maruti Temple and fell in the courtyard of P.W. 6. Moreover, the evidence on record and particularly from testimonies of P.W. 3 and P.W. 6, it has come on record that till 2 p.m. some persons were playing cards in the Maruti Temple and for some time they included the accused, as well as one Sadashiv and some others. It has also come on record through the testimony of P.W. 3 that the deceased Shivaji was sleeping in the Maruti Temple till about 2 p.m. when the said witness left for the hospital after the completion of the cards game. It is also stated by P.W. 5 that he was also playing cards in Maruti Temple till 2 p.m. and thereafter he went to his field and at that time Shivaji was seen sleeping in the temple. P.W. 5 has also stated that Shivaji, when returned from his home to the temple was smelling alcohol. Considering this evidence on record, merely because the accused was seen on the site either prior to the incident or after the incident, that by itself cannot link the accused with the alleged offence of assault on deceased Shivaji by the accused. Undisputedly, there is no eye witness to the assault and the matter entirely depends on the circumstantial evidence. In the absence of necessary piece of evidence to link the accused to the alleged offence of assault on the deceased Shivaji, mere presence of the accused seen at the site either prior or after the incident of assault on Shivaji cannot link the accused with the alleged offence of assault on Shivaji. That apart, the evidence on record does not disclose that the accused alone was present at the relevant time alongwith the deceased Shivaji.
26. Another piece of evidence, which weighed in the mind of the trial Court while holding the accused guilty of offence is the alleged discovery of a knife at the instance of the accused. In this respect the evidence of P.W. 4 discloses that the alleged discovery was made on 25-2-1989, that was nearly more than two months after the incident of assault. It has come on record through the deposition of P.W. 4 that the alleged discovery was made in the presence of Rajaram Mohite the owner of the land, wherein the knife was found hidden beneath of the trunk of a tree. The witness has stated that when the knife was discovered, it was found stained with the blood at its blade. In this respect, the learned Advocate for the appellant drew our attention to the fact that the knife alleged to have been discovered on the said day was never sealed and therefore there was ample scope for tampering with the said knife before being sent to Chemical Analyser regarding the alleged blood on the blade of the knife. He also drew our attention to the fact that the accused had produced on record the death certificate of the said Rajaram Mohite showing that the said Rajaram had expired on 3-11-1987, whereas the alleged discovery was done on 25-2-1989. Being so according to the learned Advocate for the appellant, it was absolutely impossible for the said Rajaram to remain present on the day of alleged discovery. The fact that the witness alleges the presence of Rajaram itself goes to show that the alleged discovery is a fake discovery and no such incident of discovery had ever taken place. He also drew our attention to the fact that P.W. 4 had in fact been to the police station on 25-2-1989 on account of some complaint, in which he had direct interest and the said complaint was amicably settled subsequently. This fact according to the learned Advocate for the appellant is sufficient to show that the police might have pressurised the said witness to depose in the manner they wanted in relation to the alleged discovery. We find that as rightly pointed out by the learned Advocate for the appellant, the knife in question was never sealed at the time of its seizure and therefore, it is unsafe to rely upon the Chemical Analyser’s report in respect of the alleged blood found on the blade of the said knife. Added to this the Chemical Analyser’s report does not disclose the group of blood, which was alleged to have been found on the blade of the knife. In the absence of the group of blood on the weapon and that of deceased being found out, no link can be said to have been established between the weapon and the injury caused to the deceased and in the absence of such link being established, it cannot be said that the same weapon was used for the alleged assault on the deceased. The statement regarding the presence of already dead person namely Rajaram at the time of alleged panchanama is also sufficient to create doubt in recording of the alleged panchanama.
27. Over all analysis of the evidence further discloses that the witness Raghunath P.W. 3 had disclosed that one Ghadge Sir was also present on the occasion when the deceased Shivaji came running from Maruti temple and fell in the courtyard and said Ghadge Sir continued to be on the spot till Shivaji was removed to the hospital by tempo. Further Shivaji was taken to the hospital by Arun Mohite. It has also come on record that there was one more person Sadashiv who was present in the Maruti Temple at the time of cards game between the accused and deceased Shivaji. It has also come on record through the testimony of P.W. 7 and P.W. 8 as well as P.W. 6 that number of people gathered at the spot when Shivaji was lying injured in the courtyard of P.W. 6. Further P.W. 7 and P.W. 8 have also deposed that some of the school boys informed them about the injury to deceased Shivaji. There is no explanation on record as to why none of these persons have been examined by the prosecution to establish the guilt of the accused and the link between the offence and the accused.
28. The learned Advocate for the appellant further made grievance regarding F.I.R. Exh. 19 and submitted that this cannot be considered as F.I.R. at all. We do find from the record that the police at Karad City were informed about the admission of injured Shivaji in Krishna Charitable Hospital by the hospital authority on phone and said message was received by one Gaikwad on 14-12-1988 at 3.25 p.m. Further, the police station was also informed about the death of Shivaji on 15-12-1988 at about 2.15 a.m. and the said message was received on phone by P.S.I. Bhosale. This fact has also been corroborated by P.W. 13 Dr. Tambare on the basis of record and by P.W. 15 P.I. Shejal, the Investigating Officer. Being so it cannot be said that the report lodged on 15-12-1988 at 9 a.m. is F.I.R. in the matter. The Police were already informed about the alleged offence by the hospital authority much prior to lodging of the report by P.W. 1 on 15-12-1988 at 9 a.m. Assuming that the Exh. 19 is a F.I.R., then there is no explanation for delay in lodging the F.I.R. Undisputedly, the incident occurred at about 2.30 p.m. or so on 14-12-1988. Shivaji expired at about 12.30 a.m. on 15-12-1988. In the circumstances, there is absolutely no explanation on record for delay in lodging the F.I.R.
29. Overall assessment of the evidence shows that the prosecution has failed to establish the chain of link between the offence alleged and the accused in relation to the assailant and the death of Shivaji. Being so the finding of the trial Court regarding the guilt of the accused cannot be sustained and is liable to be quashed and set aside.
30. In the result we allow the appeal and set aside the impugned judgment and the conviction of the accused. The accused is hereby acquitted. He shall be released forthwith unless required in any other case. Fine, if any, paid shall be refunded to the appellant.