State Of Maha vs Rameshwar Kanhoba Chalak And Ors
2021 Latest Caselaw 145 Bom

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         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

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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

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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

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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

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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.

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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

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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.

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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

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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.)