Bombay High Court
The State Of Maharahstra vs Pandurang Shankar Dhaneshwar & ... on 14 September, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 356 OF 1999
The State of Maharashtra .. Appellant
Through - Police Station,
Mahoor, at the instance of
Police Inspector (CID)
Shri B.H. Kachave
Versus
1. Pandurang s/o. Shankar Dhaneshwar .. Respondents
Age.65 years, Occ. PHC B.No.842 [original
accused]
[Appeal abated against respondent No.1
as per Court's order dated 30.04.2008
passed in Cri.Application No.324/2008]
2. Taterao s/o. Sudamrao Kamble,
Age. 55 years, Occ. HCB No.1093
3. Kamaji s/o. Tukaram Kadam,
Age. 54 years, Occ. PHC No.795
4. Madhav s/o. Vithalrao Waghmare,
Age. 44 years, Occ. PCB No.1289
5. Pandurang s/o. Mariba Kamble
Age. 44 years, Occ. PCB No.1385,
All R/o. Mahoor, Tq. Kinwat.
Mr.R.V. Dasalkar, A.P.P. for the appellant/State.
Appeal abated against respondent No.1.
Mr.R.S. Deshmukh, Advocate for respondent Nos.2 to 5.
::: Uploaded on - 14/09/2017 ::: Downloaded on - 15/09/2017 01:30:24 :::
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CORAM : S.S.SHINDE &
S.M.GAVHANE,JJ.
RESERVED ON : 14.06.2017
PRONOUNCED ON : 14.09.2017
J U D G M E N T : [PER : S.M.GAVHANE,J.] :-
1. This appeal is directed against the judgment and
order dated 03.03.1999, in Sessions Case No.195 of 1988
passed by the IIIrd Additional Sessions Judge, Nanded,
acquitting the respondent Nos.1 to 5 [original accused
Nos.1 to 5] of the offences punishable under sections
330, 331 and 302 read with section 34 of the Indian Penal
Code [for short "the IPC"].
2. Two sessions cases i.e. Sessions Case No.191 of
1988 against accused No.1 - Madhukar Thakaji Aute,
accused No.2 - Taterao Sudamrao Kamble [who is also
accused No.2 in Sessions Case No.195 of 1988] and accused
No.3 - Madhav Vithalrao Waghmare, for the offences
punishable under sections 330 and 331 read with section
34 of the IPC and Sessions Case No.195 of 1988 for the
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offences punishable under the sections mentioned in para
No.1 (supra) of this judgment, against present
respondents, were tried together and by the common
judgment, dated 03.03.1999 passed by the III Additional
Sessions Judge, Nanded, the accused in both the cases
were acquitted of the offences with which they were
charged.
3. Criminal Appeal No.355 of 1999 was filed by the
State against acquittal of accused Nos.1 to 3 in the said
case, of the offences punishable under sections 330 and
331 read with section 34 of the IPC with a prayer for
leave to appeal. Said prayer for leave to appeal was
rejected by the Division Bench of this Court [Coram :
Vagyani & Patil,JJ.] by order dated 22.08.2002.
4. The present Criminal Appeal No.356 of 1999 was
filed with applications for condonation of delay caused
in preferring appeal and for leave to appeal. The delay
has been condoned by the Division Bench of this Court
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[Coram : Marlapalle & Zoting, JJ.] on 22.07.2002 and the
leave to file appeal has been granted by Division Bench
of this Court [Coram : Vagyani & Patil,JJ.] as per order
dated 22.08.2002. Accused No.1/Respondent No.1-Pandurang
s/o. Shankar Dhaneshwar died during pendency of the
appeal and hence appeal abated against him as per order
dated 30.04.2008. Thus, the appeal proceeded only against
respondent Nos.2 to 5.
5. The prosecution case is as under :-
A) In the year 1987, out of accused in Sessions
Case No.195 of 1988, accused Nos.1 and 2 were serving as
a Police Head Constables while accused Nos.3 to 5 were
serving as Police Constables in Police Station, Mahoor,
Tq. Kinwat, Dist. Nanded. So also, out of accused in
Sessions Case No.191 of 1988, accused Nos.2 and 3 are
respectively accused Nos.2 and 4 in Sessions Case No.195
of 1988, and accused No.1-Madhukar Thakaji Aute in said
case was Police Sub-Inspector at the relevant time of
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incident in 1987 in above said police station. So also,
one deceased Police Head Constable Gangadhar Namdev More
was attached to the said police station in the year 1987.
B) The deceased Baliram Bhilla Pawar was resident
of Ashta Tanda (Wadsa). He was arrested by Police of
Mahoor Police Station on 24.06.1987 at about 04.00 p.m.
in connection with Crime No.39 of 1987 for the offence
punishable under section 380 of the IPC, registered
against him in Police Station, Mahoor. The Head
Constable - Taterao Kamble [accused No.2 in both the
cases] was making investigation in the said crime
registered against the deceased - Baliram Pawar. Accused
No.2 produced the deceased accused Baliram before the
JMFC, Kinwat on 25.06.1987 and the deceased accused
Baliram was remanded to Police Custody till 30.06.1987.
Thus, the deceased Baliram was in Police custody remand
from 25.06.1987 and he was detained in the lock-up of
Police Station, Mahoor from 25.06.1987.
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C) While the deceased was in police custody and in
police lock-up on 29.06.1987 at about 00.30 a.m., accused
No.5 - P.C. Pandurang Kamble, who was on wireless duty,
found that the deceased was not in police lock-up. So,
he informed accused No.1-Pandurang Dhaneshwar, accused
No.2-PHC Taterao Kamble and accused No.3-PC Kamaji Kadam,
who was PSO of Police Station, Mahoor at that time,
deceased PC - Gangadhar Namdeo More and accused No.4 - PC
Madhav Waghmare that deceased is not in the police lock-
up. So all of them came in front of the police lock up
and gave call to the deceased, but there was no response
from the deceased. They had noticed that the door of the
latrine which is inside the police lock-up was closed.
Therefore, they had opened the police lock-up and entered
the police lock-up. They gave calls to the deceased by
knocking the door of the latrine. But, there was no
response from inside the latrine. Therefore, they broke
open middle portion of the door of the latrine and
removed the inside latch of the said door by inserting
hand. After opening the door of the latrine, they noticed
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that the deceased has committed suicide by hanging
himself with the help of a rope tagging it to the
ventilator of the said latrine and his dead body was
there in the hanged position. The rope used for hanging
was found prepared with the help of Dhoti of the
deceased. Therefore, they had called PSI Madhukar Aute
to the police station. PSI Aute reached to the police
station immediately. PSI Aute informed about the incident
to the higher authorities. Thereafter, accused-PHC Kamaji
Kadam filed his report to the PSI Aute, stating that
deceased Baliram Pawar, who was in the police lock-up of
Police Station, Mahoor has committed suicide by hanging
in the latrine of the lock-up. On the basis of said
report, A.D.No.3 of 1987 was registered under section 174
of the Code of Criminal Procedure in the Police Station,
Mahoor, on the same day i.e. on 29.06.1987 at about 00.45
a.m. and information about the same was given to the
Executive Magistrate, Kinwat.
D) Thereafter, the Executive Magistrate/Tahsildar,
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Kinwat came to the police station. He prepared inquest
panchanama of the dead body of the deceased on 29.06.1987
during 02.30 p.m. to 04.30 p.m. The dead body was sent
for post-mortem examination in the hospital of Gokunda.
In the said hospital, Dr.Sudam Muneshwar [PW-8] conducted
post-mortem examination on the dead body of the deceased
on 30.06.1987 between 11.00 a.m. to 01.00 p.m. Dr.
Muneshwar issued post-mortem report [Exh.92] and opined
that the deceased died due to asphyxia caused by hanging
secondary to shock. The blue colour underwear on the
person of the deceased was seized by PSO, Mahoor on
30.06.1987. CPI Galphade started enquiry in the A.D.
No.3 of 1987 and it appears that subsequently enquiry in
the said A.D. was made by the complainant-PI Shri B.H.
Kachve [PW-9],Special DIG (CID). PI-Kachve on 14.12.1987
in Police Station, Mahoor seized Roll Call [Order Book]
of the staff members in the police station from
22.05.1987 to 23.07.1987, which includes allotment of
duties to the staff members of the said police station on
28.06.1987, patrolling book of accused No.2-Taterao
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Kamble for the period from 27.10.1986 to 16.08.1987, note
book of accused No.5-Pandurang Kamble for the period from
01.03.1987 to 21.07.1987, one page panchanama of arrest
of deceased accused Baliram Pawar in Crime No.39 of 1987
for the offence under section 380 of the IPC, dated
24.06.1987 and office copy of remand report dated
25.06.1987 with order on it of the JMFC, Kinwat, when the
deceased was produced before the said Magistrate, under
panchanama in presence of two panchas. So also Shri
Kachve wrote a letter dated 09.05.1988 [Exh.57] to
Dr.L.K. Bade - Professor and HOD seeking his opinion as
to whether injuries at Sr.No.1 to 20 mentioned in column
No.17 of the post-mortem report are not injuries and as
to whether cause of death given by the Medical Officer on
01.07.1987 that "died due to asphyxia caused by hanging"
is correct. Thereafter, he collected opinion of Dr.Bade.
Prior to that Circle Police Inspector, Kinwat on
29.06.1987 prepared panchanama of spot of incident i.e.
lock-up in Mahoor Police Station, where the dead body was
seen hanged, in presence of two panchas. So also
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photographs of the dead body in hanging condition
[Exhs.60 to 77] were taken. Shri Kachve recorded
statements of wife of deceased, Shaikh Hakim [PW-5], to
whom the deceased on 28.06.1987 at about 08.00 a.m.,
while he was being taken to the Government Hospital, as
he had stomach ache, on the way disclosed that in the
night accused Aute, Kamble and PC Waghmare had beaten him
on his stomach by fist and kick blows and therefore there
was pain, and Shaikh Yasin [PW-4] who was sleeping near
the lock up in Mahoor Police Station in the night
intervening between 28.06.1987 and 29.06.1987, where the
deceased was kept, who allegedly saw the accused
assaulting the deceased for extracting information in the
crime registered against him.
E) Thereafter, PI - Kachve on the basis of material
collected in the enquiry in A.D. Case No.3 of 1987 found
that the accused are responsible for death of the
deceased. Therefore, on 19.03.1988, he lodged complaint/
FIR in Police Station, Mahoor on behalf of the State
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alleging that while the deceased was in the police lock-
up in the night intervening between 27.06.1987 to
28.06.1987, accused Nos.1 to 3 in Sessions Case No.191 of
1988 beat the deceased by fist and kick blows.
Therefore, he had pains in his stomach. Therefore, when
he was being taken to the hospital by accused Nos.2 and 3
in the said case on 28.06.1987 at about 08.00 a.m., the
deceased disclosed the same to PW-2 Mangalsing and
requested said Mangalsing to save him. After medical
examination on the said date, the deceased was again
detained in the lock-up of Police Station, Mahoor. All
accused Nos.1 to 5 in Sessions Case No.195 of 1988 were
on duty in Police Station,Mahoor at 08.00 p.m. of
28.06.1987 to 08.00 a.m. of 29.06.1987. In the night
intervening between 28.06.1987 and 29.06.1987, PW-4
Shaikh Yasin, who used to sleep in Police Station, Mahoor
and who was sleeping in the Police Station at the said
night, had seen at about 00.30 a.m. that accused No.1 and
accused No.4 had assaulted the deceased by fist and kick
blows. Therefore, the deceased became unconscious. After
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sometime, accused No.3 prepared white rope in front of
police lock up in Police Station, Mahoor in the said
night at about 00.30 a.m. It is alleged that deceased
sustained injury while he was in Police Custody due to
the assault by the accused for extracting information
about the articles of theft from the deceased in Crime
No.29 of 1987, for the offence punishable under section
380 read with section 34 of the IPC, registered against
him. Treating the said complaint of PI Kachve [PW-9] as
FIR, crime No.19 of 1988 for the offence punishable under
sections 330 and 331 read with section 34 of the IPC came
to be registered against all the accused Nos.1 to
5/present respondents in Police Station, Mahoor and the
investigation was carried by him i.e. PW-9 - PI Kachve.
F) During investigation, PI-Kachve [PW-9] seized
canvas belt on 19.03.1988. He had sent the seized
muddemal articles to the Chemical Analyser for analysis
and report. He collected report of the Chemical Analyser.
It appears that subsequently, offence under section 302
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of the IPC was added in the crime already registered
against the accused. After completion of the
investigation PI - Kachve submitted charge-sheet in the
Court of the JMFC, Kinwat against the respondents/accused
for the offence punishable under sections 302, 330 and
331 read with section 34 of the IPC. As the offence
under section 302 of the IPC was triable by the Sessions
Court, the learned JMFC, Kinwat committed the case to the
Court of Sessions, Nanded, where it came to be registered
as Sessions Case No.195 of 1988 and made over to IIIrd
Additional Sessions Judge, Nanded.
G) Learned III Additional Sessions Judge, Nanded
framed the charge against the respondents/accused for the
offence punishable under sections 302, 330 and 331 read
with section 34 of the IPC, to which the accused pleaded
not guilty and claimed to be tried. Their defence as it
appears from the trend of the cross-examination of the
prosecution witnesses and their statements under section
313 of the Code of Criminal Procedure is that death of
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the deceased is suicidal and therefore they are not
responsible for death of the deceased.
H) Sessions Case No.195 of 1988 against the
respondents/accused and Sessions Case No.191 of 1988
against in all three accused (including present
respondent Nos.2 and 4) were tried together for the
offences stated earlier and common evidence was recorded
in Sessions Case No.195 of 1988. The prosecution has
examined in all nine witnesses and relied upon the
panchanamas and documents referred to earlier. On
appreciating the evidence, the learned Additional
Sessions Judge, acquitted the respondent/accused in
Sessions Case No.195 of 1988 of the offences punishable
under sections 302, 330, 331 read with section 34 of the
IPC as well as accused Nos.1 to 3 in Sessions Case No.191
of 1988 of the offence punishable under sections 330 and
331 of the IPC, by common judgment and order dated
03.03.1999 in both the cases.
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I) Aggrieved by the above said common judgment and
order in both the Sessions cases, Criminal Appeal bearing
No.356 of 1999 came to be filed against acquittal of
accused in Sessions Case No.195 of 1988, while Criminal
Appeal No. 355 of 1999 came to be filed against acquittal
of accused in Sessions Case No. 191 of 1988 with leave to
appeal. As said earlier, leave to appeal in respect of
acquittal of accused in Sessions Case No.191 of 1988 was
rejected and leave to appeal against acquittal of the
respondents/accused in Sessions Case No.195 of 1988 was
granted. Thus, this appeal against acquittal of the
respondents/accused in Sessions Case No.195 of 1988.
6. Learned APP appearing for the appellant/State
has submitted that the impugned judgment and order is
against the principal of law. The Trial Court has failed
to appreciate the oral and documentary evidence properly
and as such miscarriage of justice has been caused. The
Trial Court has wrongly discarded the evidence of PW-2
Mangalsingh and PW-4 Shaikh Yasin. So also, it has failed
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to consider evidence of PW-7 Dr. Pawade, who examined the
deceased and noticed epic gastric tenderness and that
liver and spleen were not palpable. The Trial Court has
wrongly discarded the post-mortem report of Dr.Bade as
well as Muneshwar. So also, it has wrongly discarded the
evidence of PW-5 Shaikh Hakim. The death of the deceased
was caused while he was in police custody and therefore
it was bounden duty of respondent No.1 accused to explain
in what circumstances death of the deceased was caused.
So also, the Trial Court has not properly considered the
evidence of PW-6 Bainabai - wife of the deceased. PW-8
Dr. Muneshwar, who conducted post mortem examination and
found in all 20 contusions on the palmer region of both
the hands and sole of both the feet of the deceased.
Ligature encircled by and around neck with marking of
knot 16 ½ x 1 ½ inch incised. The age of the said injury
was within one hour prior to death. Moreover, Doctor
stated that there was fracture of right greater corm of
the left 9th rib, 1 inch away from costochondral
junction, which goes to show that the death of the
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deceased was homicidal. Thus, learned APP has claimed to
quash and set aside the impugned judgment and order and
to convict the respondents/accused i.e. accused Nos.2 to
5 for the offences with which they were charged by
allowing the appeal.
7. The learned APP, to support his submissions
that evidence of PW-2 was sufficient to attract the
offence alleged against the accused and that the said
solitary evidence is trustworthy, has relied upon the
ratio laid down in the case of Masalti Vs. State of Uttar
Pradesh, 1965 AIR (SC) 202, wherein it has been held that
under the India Evidence Act, trustworthy evidence given
by a single witness would be enough to convict an accused
person, where an evidence given by half a dozen witnesses
which is not trustworthy would not be enough to sustain
the conviction. But, where a criminal Court has to deal
with evidence pertaining to the commission of an offence
involving a large number of offenders and a large number
of victims, it is usual to adopt the test that the
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conviction could be sustained only if it is supported by
two or three or more witnesses who give a consistent
account of the incident. In a sense, the test may be
described as mechanical; but it is difficult to see how
it can be treated as irrational or unreasonable. It is
no doubt, the quality of the evidence that matters and
not the number of witnesses who give such evidence. But
sometimes it is useful to adopt the test like the one
which the High Court has adopted in dealing with the
present case.
8. So also, learned APP for the State in support of
his submission also relied upon ratio in the case of
Mohan s/o. Mahadeo Lohare Vs. State of Maharashtra, 2003
(1) Mh.L.J.940, and in para 17 of said decision, it has
been observed as under :-
17. It must be borne in mind that the Court
should always be slow in acting on the evidence
of hostile witness and, as a rule of prudence,
it should require corroboration by other
reliable evidence. The evidence of hostile
witness may not be rejected outright because
such witness makes different statements at
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different times. Some witnesses may choose not
to support the prosecution before the Court and
turn hostile. However, that by itself would not
prevent the Court from finding any accused
guilty of the charge, if there is otherwise
acceptable evidence in support of the
prosecution. When a witness is declared hostile
and when his testimony is not shaken on material
points in the cross-examination, there is no
reason to reject his testimony in toto. The
Court is not precluded from taking into account
the statement of a hostile witness. In fact, it
is not necessary to discard the same in toto and
can be relied on partly, provided the statement
of such hostile witness elucidated in the cross-
examination by the Public Prosecutor inspires
confidence. Hostile witness is not necessarily a
false witness. Granting of permission by the
Court to the Public Prosecutor to cross-examine
his own witness does not amount to an
adjudication by the Court as to the veracity of
a witness. It only means a declaration that the
witness is adverse to the party calling him and
not that the witness is wholly untruthful. Mere
fact that the cross-examination of a witness by
the party calling him does not make him
unreliable so as to exclude the evidence from
the consideration altogether. Similarly, merely
because a witness becomes hostile it would not
result in throwing out the prosecution case, but
the Court must see the relevant effect of his
testimony. Merely because the prosecution
obtains permission to cross-examine a witness by
treating him as hostile, it would not efface the
value of the evidence of the hostile witness. If
such evidence is corroborated by other evidence,
there is no legal bar to convict the accused. It
must also be borne in mind that the testimony of
a hostile witness is acceptable to the extent it
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is corroborated by that of a reliable evidence.
On the backdrop of this legal position, there is
absolutely no quarrel with the proposition laid
down by the Apex Court as well as the Division
Bench of this Court in the above referred cases,
cited supra by the learned Addl. Public
Prosecutor. However, what is pertinent is to see
whether the evidence of such hostile witness is
corroborated by the other evidence adduced by
the prosecution in order to unfold the
prosecution case.
9. On the other hand, learned Advocate appearing
for the respondents/accused submitted that 21 injuries
mentioned in the post-mortem report are not mentioned in
the inquest panchanama. In the post mortem report in
column No.18, fracture of right greater corm of arid bone
and fracture of left 9th rib is mentioned and said
injuries are ante-mortem. However, it is clear from the
cause of death given in post-mortem report that the death
was caused due to asphyxia caused by hanging, secondary
to shock and therefore it cannot be said that death of
the deceased was caused due to injuries, as argued by the
learned APP. The learned Advocate further submitted that
the view taken by the Trial Court that the prosecution
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has failed to prove offences alleged against the accused
is a possible view and it is not the case that there is
error in appreciating the evidence by the Trial Court.
Therefore, according to learned Advocate appearing for
the accused, there is no ground to interfere with the
impugned judgment and order of acquittal of the accused
and as such he has prayed to dismiss the appeal.
10. To support his submissions, learned Advocate for
the respondents has relied upon the decision in the case
of Krishan Chander Vs. State of Delhi, (2016) 3 SCC 108,
and Bihari Nath Goswami Vs. Shiv Kumar Singh, 2004 (9)
SCC 186. In the case of Krishan Chander (Supra), it was
held that when a prosecution witness turns hostile, his
testimony cannot be discarded altogether. In the case of
Bihari Nath (Supra), it was held that in case of appeal
against acquittal, interference by the Appellate Court is
permissible only when there was clinching and substantial
reason for doing so. We have perused the facts and ratio
laid down in both the decisions.
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11. Since this appeal is against acquittal, it is
necessary to refer to the guidelines given in Murlidhar
alias Gidda and another Vs State of Karnataka,
(2014) 5
SCC 730 wherein in para No.12, the Apex Court has held
thus:
"12. The approach of the appellate Court in
the appeal against acquittal has been dealt with
by this Court in Tulshiram Kanu Vs State, AIR
1954 SC 1, Madan Mohan Singh Vs State of U.P.,
AIR 1954 SC 637, Atley Vs State of U.P., AIR
1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs
State of Bihar, (1973) 2 SCC 424, Khem Karan Vs
State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2 SCC
529, Ram Kumar Vs State of Haryana, 1995 Supp
(1) SCC 248, Madan Lal Vs. State of J & K,
(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of
M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
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(2005) 9 SCC 291, State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415. It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing with
appeals against acquittal, the appellate Court
must bear in mind the following : (i) There is
presumption of innocence in favour of an accused
person and such presumption is strengthened by
the order of acquittal passed in his favour by
the trial Court, (ii) The accused person is
entitled to the benefit of reasonable doubt when
it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the
appellate Court in considering the appeals
against acquittal are as extensive as its powers
in appeals against convictions but the appellate
Court is generally loath in disturbing the
findings of fact recorded by the trial Court. It
is so because the trial Court had an advantage
of seeing the demeanor of the witnesses. If the
trial Court takes a reasonable view of the facts
of the case, interference by the appellate Court
with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
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interference by the appellate Court in the
judgment of the trial Court."
12. There is no dispute that against the deceased -
Baliram, Crime No.39 of 1987 for the offence punishable
under section 380 of the IPC was registered in Police
Station, Mahoor, on the complaint of one Shivram Pawar
and in connection with the said crime, the deceased was
arrested by the Police Station, Mahoor on 24.06.1987.
He was remanded to police custody from 25.06.1987 till
30.06.1987 and in the meantime when he was in lock up of
Police Station, Mahoor, he died in the night intervening
between 28.06.1987 to 29.06.1987.
13. The case of the prosecution is that for
extracting information about the above said crime
registered against the deceased, the accused assaulted
him and therefore death of the deceased was homicidal;
while according to the accused the deceased committed
suicide while he was in the lock up-of Police Station,
Mahoor. To prove homicidal death of the deceased, the
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prosecution has relied upon evidence of Dr. Sudam
Muneshwar [PW-8], post-mortem report [Exh.92], letter
[Exh.94] addressed to Dr. Muneshwar by Police Inspector,
CID Crime, Nanded, reply [Exh.95] given to the said
letter by Dr. Muneshwar and opinion Exh.57 given by Dr.
Bade to PSI, CID Crime, Nanded, reply to letter of PSI,
CID Branch dated 28.04.1988 and panchanama of spot of
incident [Exh.55] prepared by the Tahsildar, Kinwat, Camp
at Mahoor, where dead body was found in hanged condition
and another panchanama of spot of incident [Exh.59].
14. Dr. Sudam Muneshwar [PW-8] has deposed that on
29.08.1987 at 11.15 p.m. the dead body of the deceased
Baliram was brought to morgue by Head Constable Mathpati
and Sukhdeo Mohan as it was referred by the Tahsildar,
Kinwat along with requisition letter. He conducted post-
mortem examination on the dead body on 30.06.1987 between
11.15 p.m. to 01.00 a.m. According to Dr.Muneshwar, on
external examination, he found following injuries on the
deadbody:-
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1. Contusion on the thenar eminame of the
left hand 3" x 2" irregular shape, margine
raised with below upward direction, within 24
hours, hard and blunt.
2. Contusion on the hypothenar eminame of
the left hand, 3" x 1 ½ irregular shape, margins
raised with below upward direction within 24
hours, hard and blunt.
3. Contusion on the left palm, 4" x 1 ½"
irregular shape, margins raised, with transverse
direction.
4. Contusion on the palmer surface of the
left index finger, 2" x 2/4", irregular shape,
margins are raised with below upward direction.
5. Contusion on the palmer surface of the
left middle finger, 2 ¼" x 3/4" irregular shape,
margins are raised with below upward direction.
6. Contusion on the palmer surface of the
left ring finger, 2 ¼" x 3/4", irregular shape,
margins are raised with below upward direction.
7. Contusion on the palmer surface of the
left little finger, 2" x 1/2" irregular shape,
margins are raised below upward direction.
8. Contusion on the palmer surface of the
left thumb 2 1/4" x 3/4", irregular shape,
margins are raised with below upward direction.
9. Contusion on the thenar emename of the
right hand 3" x 2" irregular shape, margins are
raised with below upward direction.
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10. Contusion on the hypothenar emename of
the right hand, 2 ½" x 1/4", irregular shape,
margins are raised with below upward direction.
11. Contusion on the right palm, 4" x 2
¼", irregular shape, margin raised with
transverse direction.
12. Contusion on the palmer surface of the
right index finger, 2 ½" x 3/4" irregular shape,
margins are raised with below upward direction.
13. Contusion on the palmer surface of the
right middle finger, 2 1/3" x 3/4", irregular
shape, margins are raised with below upward
direction.
14. Contusion, on the palmer surface of
the right ring finger, 2" x 1/2", irregular
shape, margins are raised with below upward
direction.
15. Contusion on the palmer surface of the
right little finger, 2" x ½", irregular shape,
margins are raised below upward direction.
16. Contusion on the palmer surface of the
right thumb 2 1/4" x 3/4" irregular shape,
margins are raised below upward direction.
17. Contusion on the sole of the right
foot, 5" x 4" irregular shape, margins are
raised with antero-pasterior direction.
18. Contusion on the sole of the left
foot, 5 1/2" x 4" irregular shape, margins are
raised with antero pasterior direction.
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19. Contusion on the left hypocendrium, 3"
x 2" irregular shape, margins are raised with
transverse direction.
20. Contusion on the epigestrium, 2 1/2" x
2", oval in shape, margins are raised.
. According to Dr. Muneshwar the age of above
injury Nos.1 to 20 was within 24 hours. They were caused
by hard and blunt object. The injury Nos.1 to 20 were
sufficient to cause shock. Dr. Muneshwar further deposed
about injury No.21, which is as under :-
"Contused groove of the ligature encircled on
the around the neck and interrupted below the
right mastoid process at the site of the knot
with marking of knot 16 ½" x ½ ", encircled
shape, margins raised and congested. Direction
from above the thyroid cartilage and directed
obliquely upward laterally and backward and
encircled the whole neck."
15. According to Dr. Muneshwar the age of said
injury was within one hour prior to death. The type of
weapon was rope and nature of injury was grievous. He
stated that the above injuries were ante-mortem injuries.
He stated that on palpation of fracture of right greater
corm of thyroid bones within one hour prior to death was
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noticed. So also he deposed that there was fracture of
left 9th rib, 1 inch away from costochondral junction
caused within one hour prior to death by hard and blunt
object, which was grievous. He found following internal
injuries:-
Thorax - left side 9th rib was fractured, 1"
away from its costochondral junction.
Larynx - traches and bronchi-congested, trachea
and bronchi contains bloodstained fluid.
Right lung - contested.
Left lung - congested.
Right atrium and right ventricle contains blood.
Abdomen - Contusions were present on the
elrigasterum and hyporendrum as shown in column
No.17.
Peritoneum - ruptured corresponding to the right
side of the injury on spleen.
16. Dr. Muneshwar further deposed that in his
opinion the cause of death of the deceased was due to
"asphyxia caused by hanging secondary to shock".
Accordingly he issued post-mortem report Exh.92. He
stated that above mentioned injuries on the person of the
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deceased were sufficient to cause death of the deceased
in ordinary course of nature.
17. In the cross-examination, Dr. Muneshwar has
admitted that in Kinwat Police Station, Crime No.40/88
was registered against him on the allegation of giving
contrary opinion to post-mortem examination. He
volunteers that the said crime was registered against him
falsely with intention that he would not stand in the
present case as a witness in the capacity of medical
officer. He also stated that he had given opinion on
01.07.1987. So also he stated that on 01.07.1987 he had
given short opinion [provisional cause of death
certificate] and he opined that the death was caused due
to asphyxia caused by hanging. He had denied that he had
issued certificate as to cause of death at the instance
of PI Kachve.
18. The post-mortem report Exh.92 issued by Dr.
Muneshwar also shows that said Doctor noticed external as
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well as internal injuries as noted above on the person of
the deceased, at the time of conducting post mortem
examination and further it also shows that deceased died
due to asphyxia caused by hanging secondary to shock.
Thus, on the basis of evidence of Dr.Muneshwar [PW-8] and
post mortem report Exh.92, an inference can be drawn that
said Doctor noticed fracture of ribs of the deceased and
on the basis of said evidence of the Doctor and post
mortem report, an inference can be drawn that the
deceased died due to asphyxia caused due to hanging
secondary to shock.
19. As per prosecution case during investigation on
26.01.1988 letter was sent to Dr.Bade by the
Investigating Officer and his opinion was sought on the
post mortem report Exh.92 and said Doctor issued letter
Exh.57 dated 09.05.1988 in the form of his opinion as
requested by the Investigating Officer. On perusal of
said opinion/letter Exh.57, Dr. Bade has opined that the
injuries mentioned in column No.17 are not injuries. In
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black and white photograph No.2 there is a ligature mark
and the position of the ligature is as observed in a case
of hanging and most of the time it is suicidal, so also
he opined that in coloured photograph No.1, there is
streak of dribbling of saliva from the mouth and it is
important finding in case of hanging. Moreover, finally
he opined that the injuries mentioned in column No.17,
Sr.Nos.1 to 20 are not injuries. The cause of death given
by the Medical Officer on 01.07.1987 that the deceased
died due to asphyxia caused by hanging is correct. Thus,
there is consistency in the evidence of Dr.Muneshwar,
opinion Exh.57 given by Dr. Bade and PM report Exh.92
regarding cause of death i.e. death due to asphyxia
caused by hanging.
20. The panchanama of spot of incident Exh.55
prepared by the Tahsildar, Kinwat during enquiry of A.D.
Case No.3 of 1987 shows that panchanama of spot of
incident i.e. the lock-up in Mahoor Police Station along
with latrine in the said lock up was prepared by the
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Tahsildar in presence of three panchas on 29.06.1987 and
at the time of said panchanama, it was noticed that in
the latrine the dead body was hanged to the ventilation
and height of the said ventilation was 8 ½ feet and the
dead body was hanged with the help of rope prepared with
Dhoti. So also another panchanama of spot of incident
Exh.59 shows that it was prepared in presence of panchas
including panch PW-1 Baburao Mundade. In the said
panchanama the situation of spot of incident i.e. lock up
in Mahoor Police Station and latrine in the said lock was
noted in the detail as well as about 12 articles
including 3'5" rope of dhoti were seized as per the said
panchanama. Moreover, it is noted in the said panchanama
that at the time of inspection of latrine, panchas and
enquiry officer in A.D.Case - Circle Police Inspector
noticed signs of fingers of foot on the wall, suggesting
that the deceased climbed before he hanged himself with
the help of rope tied to the ventilation. Thus, the
above referred circumstances noted in panchanama Exh.55
and 59 about situation of the spot of incident and the
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fact that the dead body was found in hanged condition in
the latrine in the lock-up also suggest that the death of
the deceased was caused due to hanging.
21. So also, panch-Bapurao Satwaji Mungale (PW-1) in
whose presence spot panchanama (Exh.55 as per record and
Exh.42 as per deposition) was prepared has also stated
that he was shown one room i.e. lock-up. It was having a
door with net. He entered the lock up. One Dhoti was
spread on the floor. The borders of the Dhoti were in
torn condition. One gunny bag was lying on the Dhoti.
There was one latrine attached to the lock-up. The
latrine was having door, but one plank of the door was
broken and was lying there. There was one window to the
latrine. He also found that the dead body of one Baliram
Bhila Pawar was hanging by a rope made of border of Dhoti
and it was tied with the bars of the window. He stated
that he found that there were marks of fingers of one leg
on the wall. So also, in the cross-examination, he
stated that height of the room was 9 to 10 ft. The same
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was height of latrine. The ventilation of latrine was at
a height 7 ft from the floor. The finger prints of the
foot were found on the upper portion of tap of water. He
stated that one iron bar was lying near the latrine.
There was no visible injury on the person of the deceased
except ligature mark. Thus, the evidence of PW-1 shows
that he saw the dead body in hanged condition in the
latrine in the lock-up of police station. He was called
for preparing panchanama of spot of incident Exh.55.
Moreover, he also noticed ligature marks on the neck of
the deceased. The evidence of Dr.Muneshwar, post mortem
report Exh.92 and opinion Exh.57 given by Dr.Bade show
that there was ligature mark on the neck of the deceased,
which ligature marks are seen in case of hanging. It is
clear that ligature marks encircled shape margin raised
which obliquely upwards, laterally upward and encircled
whole neck as per external injury No.21 noted by Dr.
Muneshwar were found and therefore it can be said on the
basis of it that the death of the deceased was caused due
to hanging and his death was suicidal.
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22. It is true that as per the evidence of Dr.
Muneshwar [PW-8] internal injuries i.e. left side 9th rib
was fractured 1 inch away from its castochondral junction
and peritoneum rupture corresponding to right side of
injury on spleen was noticed. But, merely because said
internal injuries were noticed by the doctor at the time
of post mortem examination and Dr.Muneshwar as per Exh.94
opined that rupture of spleen mentioned in column No.21
of post mortem report is sufficient in ordinary course of
nature to cause death is not sufficient to say that death
of the deceased was caused due to said injury as Dr.
Muneshwar as well as Dr. Bade have stated that the death
of the deceased was caused due to asphyxia caused by
hanging secondary to shock. Another reason to say so is
that it is not the case of the prosecution that the
accused strangulated the deceased with the help of rope
and caused his death. For the above reasons, we hold
that the prosecution has failed to prove beyond doubt
that death of the deceased is homicidal and the Trial
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Court has rightly held so, by answering point No.3 in the
negative.
23. It is held that the prosecution has failed to
prove that death of the deceased is homicidal and it is
found that the death of the deceased is suicidal.
Assuming for the sake of argument that the death of the
deceased is homicidal, let us consider whether the
accused are responsible for death of the deceased, for
causing injuries to him as alleged by the prosecution and
committed offences punishable under sections 302, 330 and
331 read with section 34 of the IPC as alleged by the
prosecution. To prove these offences, the prosecution has
mainly relied upon evidence of eye witnesses PWs 2,4 and
5, Dr. Jivan Pawade [PW-7], the Investigating Officer
[PW-9] and CA Report Exh.106.
24. Now coming to the evidence of Mangalsingh Jadhav
[PW-2], he stated that the deceased was arrested by
Mahoor Police Station on 24.06.1987 and Police took his
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remand. On 28.06.1987 he reached at Mahoor S.T. Stand at
about 8.00 a.m. to 9.00 a.m. and alighted from the bus.
Thereafter, he was standing near Pan shop of one Osman.
At that time he saw Baliram Pawar (deceased) along with
2-3 constables. The deceased was handcuffed. Among
three constables with the deceased one was Kadam [accused
No.3] and another was Taterao [accused No.2] and that he
does not know name of third police person. He deposed
that the deceased gave call to him and the deceased
informed him that police persons are beating him and he
requested him to save him. He deposed that he requested
Taterao not to beat deceased Baliram and Taterao said to
him that till that time the deceased was simply beaten
and onwards he will be illtreated by putting chili powder
on his person. The police persons took deceased to the
hospital. Then he proceeded for his work.
25. In the cross-examination PW-2 has admitted that
on the complaint of Bharat Ramesh Jadhav, offence was
registered against him on the allegation that on
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06.01.1987 he caused damage to his crops. He stated that
he does not remember if there was Chapter Case No.15 of
1987 made against him. He admitted that he was
prosecuted in connection with the offence of rioting
under section 353 and 332 of the IPC regarding incident
dated 29.06.1987 as per Crime No.46 of 1987 of Mahoor
Police Station. He stated that he had told police while
giving statement that deceased Baliram gave call to him,
but he could not assign reason for omission of the same
in his statement. Thus, his evidence that the deceased
gave call to him is omission in his statement before
police and there was improvement while deposing before
the Court. He, of-course, denied that he had no meeting
with the deceased and no talk took place with the
deceased and Head Constable Taterao. He denied that he
is deposing false against accused as Head Constable
Taterao and Head Constable Kadam filed criminal case
against him. So also he denied that there were police
cases against him in Mahoor police station and therefore
he had unrest against police persons of said police
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station and because of vengeance he is deposing false
against the accused. When there was omission as above in
the statement before police of this witness that deceased
Baliram had called him and when there were cases against
him registered in Mahoor Police Station as noted above,
his evidence that deceased told him that three police
constables including accused Nos. 2 and 3 who were taking
the deceased to the hospital, had beaten to him and the
deceased requested him to save him and thereupon he
requested police head constable accused Nos. 2 and 3 not
to beat the deceased is not believable. Another aspect to
be noted is that even if it is said that he met deceased
on 28.06.1987 and deceased had told him that accused beat
him as claimed by him, that does not mean that particular
accused has assaulted deceased at a particular time and
caused particular injury to deceased, so as to say that
due to said injury the death of the deceased was caused.
Another reason to arrive at this conclusion is that PW-2
is not witness to the alleged beating to the deceased by
accused Nos.2 and 3 and his evidence is of hear-say
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nature.
26. The evidence of PW-4 Shaikh Yasin [PW-4] is that
the incident took place about 10 years before. He had
gone to Police Station, Mahoor at about 9.00 p.m. and
went to sleep in police station at short distance from
lock-up. In that night accused No.3 HC Kadam and accused
No.5 PC Pandurang Kamble were on duty in the police
station. In that night at about 01.00 a.m., he woke up
for urine and thereafter he came back to his place. At
that time accused No.5 was on duty near wireless, which
was near lock-up. Accused No.5 gave call to one culprit
who was inside the lock-up, but said culprit did not give
any response. Thereafter, PW-5 focused light of torch
inside lock-up, but the culprit was not seen. Therefore,
accused No.3 picked key and opened the lock-up and at
that time accused HC Dhaneshwar [since deceased], accused
No.2-Taterao Kamble and PC Mahadeo Waghmare [accused
No.4], who were in another room in the police station
came near police lock up. They noticed that the culprit
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was not in the police lock-up. He deposed that he
therefore gave push to the door of latrine but the door
did not open. Thereafter, accused No.1 brought Kusa and
gave it to him. He with the aid of Kusa broke the
latrine door. Then by putting his hand inside, he
removed insite bolt of the door and the door was opened.
After opening the door, he saw the culprit in hanging
condition to the latrine ventilator. Then, they all came
out. Thereafter, one police person went to call PSI
Aute. PSI Aute came and rebuked/scolded police persons
for breaking the door of latrine. He stated that then he
went to bed to sleep in police station and he came to
know that said culprit was Baliram. He has not supported
the prosecution case as he has denied portions marked "A"
and "B" in his statement before Tahsildar that the
accused in lock up demanded water to him, while he was
giving water to the accused Mohril Dhaneshwar and Police
Constable Waghmare came there and abused him saying
whether he was giving water, then asked him to go to
sleep and that in the night at about 12.30 hours he had
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heard noise of shouts from the police station and he woke
up and when he went to lock up, he heard shouts from the
lock-up and saw that Mohril Dhaneshwar and Head Constable
Waghmare were giving fist and kick blows and assaulting
with the help of belt to the deceased etc. Thus, on the
basis of evidence of this witness at the most it can be
said that in the night of the incident, the deceased was
found in the latrine of the police lock up in hanging
condition and his evidence is of no help to the
prosecution to state that accused assaulted deceased and
caused his death as alleged.
27. The next eye witness is PW-5 Shaikh Hakim who
had allegedly met deceased on 28.06.1987 at 08.30 a.m.
and while deceased was being taken to Government
Hospital, the deceased gave him call and told him about
the beating to him by the accused, has not supported the
prosecution,as he has denied portion marked "A", in his
statement before police that on 26.06.1987 in the morning
at 08.30 a.m. while he was proceeding from bus stand
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towards Kumbhar Galli from different side of Government
Hospital, the deceased gave him call and at that time the
deceased was with two police persons and he was
handcuffed and the deceased told him that in the night
Aute Saheb, Jamadar Kamble and Police Constable Waghmare
severely beat him by fist and kick blows and there is
stomach pain and he said him to look after him.
28. PI Kachve [PW-9] Investigating Officer has
stated that portions marked "A" and "B" in the statement
of PW-4 are correct which are marked at Exh.123 and
portion marked "A" in statement of PW-5 is correct which
is marked at Exh.124. But when PWs-4 and 5 have denied
truth of above referred portions marked Exh.123 and 124
in their statements, said portion marks are of no help to
the prosecution to connect the accused with the death of
the deceased.
29. The evidence of Dr. Jivan Pawade [PW-7] is that
while he was attached to Primary Health Center, Mahoor as
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a Medical Officer, on 28.06.1987 patient Baliram Bhila
Pawar/deceased was brought by police constable Shelke in
the morning for treatment, who was complaining of pain in
his abdomen since morning. According to him, on
examination he found general condition of the patient was
fair and on local examination he found epigastric
tenderness present and that liver/spleen not palpable.
He stated that there was no external sign on injury over
the abdomen and accordingly Exh.84 certificate was
issued. He was not cross-examined on behalf of the
accused. Exh.84 certificate issued by this Doctor does
not show that the deceased made any complaint to the
Doctor against the accused alleging that he was assaulted
by the accused. Had it been the case that the deceased
would have been assaulted by any of the accused while he
was in custody of the police, earlier to his examination
on 28.06.1987, he would have definitely made complaint
against accused to the Doctor. Therefore, merely because
there was pain in the abdomen of the deceased, when he
was examined by the Doctor as above, it cannot be said
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that the accused were responsible for pain in abdomen or
that his death was caused due to said pain when cause of
his death was asphyxia due to hanging. As observed
earlier, the evidence of Dr. Pawade [PW-7] is of no help
to connect the accused with the death of the deceased.
30. For the reasons discussed above, the evidence of
PWs 2,4,5 and 9 is no help to the prosecution to state
that the accused assaulted deceased in the night
intervening between 28.06.1987 and 29.06.1987 and as a
result, caused him injuries which resulted into his death
as alleged.
31. The next evidence relied upon by the prosecution
is Exh.106 - report of Chemical Analyzer in respect of
analysis of cut chuddi [underwear] of the deceased, which
shows that human blood was detected on the said article.
When the alleged eye witnesses PWs 2,4 and 5 have not
supported the prosecution case, it cannot be said that
human blood found on the cut chuddi of the deceased was
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due to injuries caused by the accused. Therefore, the
Chemical Analyzer's report is of no help to the
prosecution to connect the accused with the death of the
deceased. So also the evidence referred to above is not
sufficient to infer that all the accused Nos.1 to 5
caused hurt or grievous hurt to the deceased. As such,
we hold that the prosecution has failed to prove offence
under sections 302, 330 and 331 read with section 34 of
the IPC against the accused.
32. The Trial Court has properly appreciated the
evidence adduced by the prosecution and on observing that
the prosecution has failed to prove the above said
offcnes beyond reasonable doubt against the accused/
respondents, rightly acquitted the accused of the
offences punishable under sections 302, 330 and 331 read
with section 34 of the IPC by the impugned judgment and
order. The said view taken by the Trial Court is thus
reasonably possible view and and it is not the case that
findings recorded or the reasons given by the Trial Court
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are perverse or erroneous. Therefore, there is no reason
to interfere with the impugned judgment and order of
acquittal of the accused. Therefore, the appeal being
devoid of merits, same is liable to be dismissed.
Accordingly, we dismiss the same. Bail bonds, if any, of
the accused/respondent Nos.2 to 5 stand cancelled.
[S.M.GAVHANE,J.] [S.S.SHINDE,J.]
snk/2017/AUG17/crap356.99
