STATE OF MAHARASHTRA Vs. KAUSTUBH HEMANT KULKARNI

JUDGEMENT

(1.) This application filed under Section 311 of the Code of Criminal Procedure ('Cr.P.C.' for short) by the State is an attempt to recall the witness, PW-10 Dr. Shashikant Dhoble, the Medical Officer, who conducted postmortem examination of the deceased and opined that the cause of death of the deceased was cut throat injury, made with a great delay backdropping it as a memory of material misses of prosecution haunting the prosecution case. Not saying anything more than just pointing out that the application has been filed after the case initiated for confirmation of the capital punishment awarded to the accused and the criminal appeal filed against the conviction and sentence by the accused have been heard fully and the judgment reserved. The accused has been found guilty of committing the murder of his own mother in the morning of 20/04/2016 in his house at Chandrapur.

(2.) It is submitted by Shri Jawade, learned Additional Public Prosecutor, and we appreciate that notwithstanding the inordinate delay, these submissions are in the nature of an ardent and sincere effort to secure the ends of justice from the view point of the prosecution, that failure of Medical Officer, PW10 Dr. Shashikant, to describe in his evidence before the Court the injuries suffered by the deceased which he mentioned quite elaboratively in the postmortem report issued by him vide Exh.277 was only due to his inadvertence. He further submits that same reason was present when he defaulted in stating in his evidence that these injuries were or any of them was sufficient in the ordinary course of nature to cause death. He submits that this was an innocent lapse on the part of the Medical Officer and perhaps also the learned A.P.P. in properly managing the conduct of prosecution case. So, this is a deserving case where an opportunity be made available to the prosecution to correct it to enable the Court to arrive at a just decision in the case.

(3.) Shri Jawade draws our attention to the view taken by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Mohd. Iqram & another, 2011 8 SCC 80 and says that the mistake has a potential of significantly denting the prosecution case. He submits that the learned Counsel for the accused has already proffered that this view is one of the mainstays of the defence of the accused. He explains that the view is all about the consequence of failure or forgetfulness of the Medical Officer to describe in his evidence the injuries mentioned in the postmortem report. He further submits, the consequence, according to the view, is that such an omission may result in creating an embargo upon the Court to read the injuries mentioned in the postmortem report in evidence. According to the learned A.P.P., if this is allowed to happen in the present case, the cause of justice would be adversely affected and so the application needs to be granted.