Bombay High Court
State Of Maha vs Rameshwar Kanhoba Chalak And Ors on 5 January, 2021
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, B. U. Debadwar
*1* 904apeal390o03judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.390 OF 2003
The State of Maharashtra.
Through Police Station, Pathari,
District Parbhani.
...APPELLANT
-versus-
1. Rameshwar s/o Kanhoba Chalak,
Age : 30 years, Occupation : Agri.
2. Ramesh s/o Kishanrao Chalak,
Age : 28 years, Occupation : Agri.
Both R/o Tura, Post Rampuri,
Tq.Pathari, Dist. Parbhani.
...RESPONDENTS/ ACCUSED
...
Shri K.S. Patil, APP for the Appellant/ State.
Shri S.S. Rathi, Advocate for respondent Nos.1 and 2/ accused.
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 05th January, 2021
JUDGMENT (Per Ravindra V. Ghuge, J.):-
1. This is an appeal preferred by the State challenging the acquittal of the respondents/ accused in Sessions Case No.186/1999 vide ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *2* 904apeal390o03judgment judgment dated 06.02.2003 delivered by the learned 2 nd Additional Sessions Judge, Parbhani.
2. We have considered the strenuous submissions of the learned Prosecutor on behalf of the State and the learned advocate on behalf of both the respondents/ accused.
3. Before the Trial Court, the respondents/ accused, charged of having committed an offence of murdering Munja Vishwanath More, were tried for the said offence punishable under Section 302 r/w Section 34 of the Indian Penal Code. The case put up by the prosecution was that the deceased Munja himself had approached the Police Station, Pathari on 19.08.1999 alleging that he was assaulted by both the accused around 07:00 PM on 18.08.1999. He mentioned in his complaint that he had suffered external injuries on his hand, thigh and chest (actually a little below the chest). Both the accused had used a cudgel (a short thick stick) and had used their fists and kicks, to beat him. His parents Vishwanath (PW-2) and Gangubai (PW-3) tried to rescue him and they were also kicked and abused. It has come on record that the deceased subsequently approached the hospital on 24.08.1999 where he was admitted on account of an injury pertaining to his forehead. The said injury was with regard to a haemorrhage seen in the right frontal region extra dural space. He spent about seven days in the hospital and he died on 29.08.1999. His complaint was, therefore, converted into an FIR and Section 302 r/w ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *3* 904apeal390o03judgment Section 34 was made applicable on 30.08.1999.
4. After a full fledged trial, it was held that the cause of death of Munja could not be co-related to the incident of alleged assault on 18.08.1999 and hence, both the accused were acquitted of the charge of having committed an offence punishable under Section 302 r/w Section 34 of the Indian Penal Code.
5. Having considered the strenuous submissions of the counsel, we have perused the appeal paper book as well as the original record and proceedings. On due circumspection, for the view that we intend to take, we do not find any reason to enlarge this judgment by reproducing each and every deposition from the record and proceedings. We would refer to the specific facets of this case which form the foundation of our conclusion.
6. There is no dispute that the deceased Munja died on account of cardio respiratory failure due to intracranial (extra dural) haemorrhage. This occurred on account of an impact on the right frontal side of his skull leading to intracranial haemorrhage in the extra dural region. The spot of the haemorrhage is in between skull bone and a layer above the brain, which cushions the brain from the walls of the skull. This layer is described in medical terms as meninges.
7. In the above backdrop, what is significant and important in this case to prove the charge against the accused is as to whether, the ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *4* 904apeal390o03judgment haemorrhage that led to the death of Munja could be co-related to the effect of being assaulted by the two accused. There is no dispute that Munja claimed to be assaulted on 18.08.1999, he lodged the complaint with the Police Station on 19.08.1999 and upon being subjected to medical examination, the Medical Officer, Rural Hospital, Pathari issued the medico-legal (injury) certificate bearing No.MLC-116-99 dated 19.08.1999, 01:45 AM. The said certificate was before the Trial Court as Exhibit-11.
8. Exhibit-11, which is the result of the medical examination of Munja based on his complaint, reads as under :-
Sr.No. Type of the injury Part of the Size Shape/ Age of the Type of the Nature of body on margins injury weapon the injury/ which directions used remarks inflicted etc. and
1) Imprint abrasion Right arm 2x2 cm - Within 24 Hard & Simple middle hrs. blunt 1/3rd laterally.
2) Imprint abrasion Left thigh 2x2 cm - Within 24 Hard & Simple
interiorly hrs. blunt
3) Abrasion Epigastric 2x1 cm. - Within 24 Simple
region hrs.
9. The prosecution insists that Munja's death is on account of the injury suffered by him on 18.08.1999. To support such contention, the prosecution relies upon the deposition of PW-3, mother of the deceased, at Exhibit-13. She contends that both the accused beat Munja on his right arm, left thigh, head and chest. The prosecution also relies upon the ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *5* 904apeal390o03judgment statement of PW-2, father of the deceased, at Exhibit-12, wherein, he has repeated the same thing which PW-3 has stated. In the above backdrop, we have perused the FIR, wherein, Munja himself does not say that he suffered any hit or blow on any part of his head. His complaint which is treated as an FIR does not indicate his grievance of being hit on the head.
Moreover, these two witnesses are parents of the deceased.
10. The prosecution relies upon the deposition of PW-4, ASI attached to the Pathari Police Station. The FIR (exhibit 15) was proved in the deposition of PW-4 at Exhibit-14. As such, in our view, the contention of Munja that he suffered abrasion injuries on his right arm, left thigh and epigastric region can be said to be established.
11. In the light of the above, it is quite obvious that though Munja died on account of the cranial haemorrhage, he himself did not allege that the accused had struck him on the head. The medical examination conducted at 01:45 AM on 19.08.1999 indicates that the Medical Officer did not find any injury on Munja's body above the chest. So also, it was brought on record through the evidence of PW-11, Dr.Ashok Manikrao Janapurkar, that Munja came to the Civil Hospital, Parbhani on 24.08.1999 where PW-11 was working as the Medical Officer. He was admitted as an indoor patient and he gave a history of continuous vomiting. PW-11 records that Munja narrated an assault with a stick on his head, but did not narrate as to when and who assaulted him on the head. ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 :::
*6* 904apeal390o03judgment PW-11 noticed cerebral contusion. There was no external injury. However, he admitted in the cross-examination that if such an injury occurs to the brain, a patient has to be kept under observation for 24 hours and the patient becomes unconscious. Admittedly, Munja was not kept under observation for 24 hours by PW-1 Dr.Bhaskar Tengse, Medical Officer, Rural Hospital, Pathari on 18.08.1999. In his re-examination, he stated that the cerebral contusion is not a brain injury and it is the oozing of the blood from the sub dural blood vessels.
12. In the light of the above, we inspected the entire paper book with the assistance of the learned counsel to find out as to whether, there was any evidence on record which would establish that Munja was suffering from vomiting after the alleged assault until he reached the Civil Hospital on 24.08.1999. We do not find any documentary evidence that would establish that Munja had sought medical aid in between 18.08.1999 till 24.08.1999 for an alleged injury on his skull. Exhibit-11, which is the medico-legal injury certificate also establishes that Munja did not claim to have suffered an injury on his head, barring the statements of his mother PW-3 and his father PW-2 that after Munja was assaulted, he started continuously vomiting. No evidence has been led by the prosecution to support it's contention that Munja was vomiting all throughout ever since the accused allegedly assaulted him and finally, he had reached the hospital on 24.08.1999. So also, it is quite intriguing, if ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *7* 904apeal390o03judgment Munja was really vomiting, that he tolerated vomiting for six days before going to the hospital.
13. Taking into account the evidence before us, we are of the view that there is a large gap in between 18.08.1999 when Munja was allegedly assaulted and he developing symptoms of cranial haemorrhage on 24.08.1999. In this backdrop, we find that the case of the prosecution that Munja's death on account of the above stated haemorrhage can be co- related with his assault on 18.08.1999, does not inspire confidence and it would be unsafe to accept such contention. Had Munja suffered haemorrhage in the right frontal region - extra dural space on 18.08.1999, it appears impossible that he did not find it necessary to approach the doctor for treating such specific complaint. He would have suffered seriously on account of such heavy blow to his skull and we find it beyond comprehension that he could bear with such a serious medical condition for almost six days and walk into the Civil Hospital on 24.08.1999 to narrate the symptoms allegedly caused due to haemorrhage in the right frontal region. We, therefore, do not find that the Trial Court can be said to have arrived at an incorrect conclusion. We are of the view that the cause of death of Munja cannot be co-related to the alleged assault dated 18.08.1999 and the possibility that he may have suffered a fall or an injury on his skull in the interregnum between 18.08.1999 and 24.08.1999, cannot be ruled out.
::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 :::
*8* 904apeal390o03judgment
14. Insofar as the allegation of the two accused having assaulted PW-2 and PW-3 is concerned, no charge has been leveled upon the two accused. We are aware that if there was sufficient evidence on record, we could have invoked Section 323 of the Indian Penal Code in relation to the blows allegedly struck by the accused to Munja and his parents. However, the evidence on record does not prove that the accused had assaulted Munja or his parents, who were not even subjected to a medical examination.
15. It is well settled that, if two views are possible in a given case and the story put forth by the defence is probable, the view in favour of the accused should be accepted. It is also well settled that if the accused has been acquitted by the Trial Court and while considering the appeal of the State against acquittal, if the Appellate Court finds that a different view than that taken by the Trial Court could be possible though the story of the accused may appear to be probable, the Appellate Court should refrain from interfering with an order of acquittal. The case of the prosecution has to be judged taking into account the totality of evidence.
16. It has been held by the Honourable Supreme Court in the matter of Chikkarangaiah and others vs. State of Karnataka, (2009) 17 SCC 497, in paragraphs 36 and 37 as under :-
"36. With regard to the conviction of accused persons under Section 326 read with Section 149 IPC is concerned, before dwelling into the evidences, we would like to reiterate the well ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 ::: *9* 904apeal390o03judgment established legal position. In our criminal law jurisprudence which is based on the adversarial model, an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by establishing guilt of the accused beyond reasonable doubt by producing the evidence to show him to be guilty of the offence with which he is charged.
37. Further, if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. However, at the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful or purely imaginary grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be noted that ultimately and finally the decision in every case depends upon the facts of each case."
17. In view of the above, this Criminal Appeal fails and the same is dismissed.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 19:01:13 :::