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2008 DIGILAW 1369 (BOM)

State of Maharashtra v. Pramod Sahebrao Rohankar

2008-09-22

A.P.BHANGALE, K.J.ROHEE

body2008
A.P. BHANGALE,J.:- The State of Maharashtra has preferred this appeal against judgment and order dated 06-08-2007 passed by Additional Sessions Judge, Akola in Sessions Trial No.9l of 2006 whereby accused no. 1 Pramod and accused no.2 Padmabai were acquitted of the offence punishable under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Briefly stated facts are as under: On 26-05-2006 at about 05.30 a.m. while first informant Anita Nindane was arranging hand-cart in front of an Eye Hospital at Akola, accused no.l Pramod came and gave blow by iron pipe on the head and chest of Naresh, husband of first informant. When Anita had intervened, accused no.2 Padma beat the first informant with stick. The first informant lodged report with Police Station, City Kotwali, Akola which was registered as CR No.1 OS/2006 under Section 324 read with Section 34 of the Indian Penal Code. It is the case of prosecution that injured Naresh was taken to Hospital and Dr. Padghane (pW -12) had examined him. Later on 27-05-2006 Naresh died in the Hospital. Police had started investigation by drawing a spot panchanama; clothes of deceased Naresh were also seized; clothes worn by accused no. 1 Pramod, pipe, stick were recovered and sent for CA' s report. During the course of investigation, the offence initially reported under Section 324 read with Section 34 of the Indian Penal Code was altered to Sections 302, 324 read with Section 34 of the Indian Penal Code and under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989. 3. After completion of investigation, charge-sheet was filed before the Court of Judicial Magistrate, First, Akola who committed the case to the Court of Sessions. 4. Charge was framed (exhibit 22) by the learned trial Judge. Accused nos.1 and 2 pleaded not guilty and claimed to be tried. 5. At trial, the prosecution had examined in all 13 witnesses. Both the accused had denied their involvement in crime while giving their statement under Section 313, Cr.P.C. 6. The trial Court concluded the trial acquitting A-1 and A-2 for offences punishable under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Atrocities Act. A-2 Padma was also acquitted of the offence punishable under Section 324 of the Indian Penal Code. The trial Court concluded the trial acquitting A-1 and A-2 for offences punishable under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Atrocities Act. A-2 Padma was also acquitted of the offence punishable under Section 324 of the Indian Penal Code. The trial Court, however, convicted and sentenced A-1 Pramod for offence punishable under Section 324 of the Indian Penal Code imposing simple imprisonment of 18 months and to pay a fine of Rs.l,000/-, in default, to undergo further simple imprisonment for one month. 7. Aggrieved by the judgment and order of acquittal, the State of Maharashtra has preferred this appeal. 8. We have heard learned Additional Public Prosecutor as well as learned counsel for the respondent and also examined record and proceedings. 9. The first question is, as to whether deceased Naresh had met with homicidal death. The prosecution has relied upon medical evidence as deposed by Dr. Nikam (PW - 7) who performed autopsy on the dead body of deceased Naresh and Dr. Padghane (PW-12) who had examined Naresh when he was brought to Main Hospital at Akola. PW-12 Dr. Padghane found injury described as contused lacerated wound on scalp, size oblique in nature, on parieto occipital region, size 3 cm x 14 cm 1,4 cm, possible by hard and blunt object. Dr. Padghane also expressed opinion that injury was possible by iron rod. Dr. Padghane in the course of his cross-examination stated that he had not noticed fracture of the skull by palpitation. He clarified that injury was simple in nature and could heal rapidly. According to the doctor, if a person falls with force on occipital region, such injury was possible. PW-7 Dr. Nikam who performed post-mortem examination on the dead body of Naresh, described external injuries seen as follows: "i) stitched wound in parietal region of the size 7 cm in length - four stitches seen. ii) Stitched wound of operation in left temporal region 20 cm in length - sixteen stitches were seen." Dr. Nikam (PW-7) opined that injuries were ante mortem and were sufficient in the ordinary course of nature to cause death. He opined that injury no. I in column no.1? in post-mortem notes (exhibit-60) can be caused by any hard and blunt object. Our attention is invited to the fact that there was suggestion. although denied, that the deceased died because of complications during his brain surgery. He opined that injury no. I in column no.1? in post-mortem notes (exhibit-60) can be caused by any hard and blunt object. Our attention is invited to the fact that there was suggestion. although denied, that the deceased died because of complications during his brain surgery. Learned counsel for respondent contended that cause of death in this case is doubtful because Dr. Nikam (PW7) found multiple injuries while Dr. Padghane had issued certificate (exhibit 90) as to injury received by Naresh had mentioned single injury described as - CLW 3 x 1,4 X I cm on scalp on porieto-occipital region. The patient was referred for surgeon's opinion. 10. Learned counsel for respondent contended that surgical intervention might have caused more injuries which were sufficient to cause death. If compared with post-mortem notes (exhibit -66) and injury certificate (exhibit90) does indicate that Dr. Padghane had found "injury" while Dr. Nikam who h;1d performed post-mortem examination had found "injuries" as described in PM notes which were sufficient to cause death. Thus, the view expressed by learned trial Judge was a possible view in the facts and circumstances of the case. The prosecution could not explain as to why Dr. Padghane was not questioned about the material difference in the description of injuries noted in exhibit 90 and exhibit 66. Dr. Padghane was not questioned as to whether injury which he had noted was sufficient to cause death of Naresh in the ordinary course of nature. Under these circumstances, we are of the opinion that the prosecution has failed to prove that deceased Naresh met with homicidal death. The possibility that deceased Naresh might have died due to surgical complication after his admission in the hospital, as suggested, cannot be overruled. 10A. The trial Court appears to have appreciated direct evidence of witnesses PW-l Anita, PW -2 Rajesh, PW -3 Vishwanath to reach a conclusion that injury on the head of deceased Naresh is the outcome of blow given by accused no.1 Pramod. The circumstantial evidence as to recovery of incriminating articles, such as, iron pipe and clothes of the accused is also relied upon apart from CA's report (exhibit-99) that A-I Pramod had caused head injury to the deceased at the time of incident. However, the prosecution could not establish further beyond reasonable doubt that injury caused by A-I Pramod resulted in death of Naresh. However, the prosecution could not establish further beyond reasonable doubt that injury caused by A-I Pramod resulted in death of Naresh. Learned trial Judge correctly observed in paragraph 29 as under "It is to be noted that after the admission of deceased Naresh in the Hospital, the postmortem report clearly indicate that deceased underwent surgical operation. But the records of that operation is not filed or the Doctor who performed the operation is not examined. The prosecution has not brought as to what happened during the operation and for what inner injury or the ailment the deceased was operated. The operational injuries are admittedly brought on record. However, no corresponding internal injury to the external injury is deposed by the Doctor. It is not known whether deceased died at the operation site or after operation. The absence of record and evidence of surgeon who operated the deceased create reasonable doubts on the cause of death of deceased. The external injury on scalp of simple nature could not be sufficient to cause death. Therefore, the death cannot be attributed to be arising out of the external injury alone from blow of the Accused No.1 Pramod. On the other hand a doubt arises that the deceased succumbed to death with other causes of less blood supply. Hence, the prosecution has failed to prove beyond reasonable doubt that deceased died due to the simple injuries on scalp caused by Accused No.1 to the deceased." 11. We do not find any serious infirmity to interfere with conclusion of the trial Court since the prosecution has failed to prove homicidal death beyond reasonable doubt as also offence punishable under Section 302 of the Indian Penal Code and offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned trial Judge appears to have correctly noted that PW-l Anita, wife of the deceased, did not state even a single word that only because she is member of scheduled caste, the accused committed offence against her and her husband. Thus, for want of evidence, the trial Court concluded that Section 3(2)(v) of the Atrocities Act was not applicable. Under these circumstances, the conclusion of the trial Court cannot be faulted as it was based upon cogent reasons. Thus, for want of evidence, the trial Court concluded that Section 3(2)(v) of the Atrocities Act was not applicable. Under these circumstances, the conclusion of the trial Court cannot be faulted as it was based upon cogent reasons. Learned counsel for respondent rightly submitted that the trial Court had taken view which was possible in the facts and circumstances of the case to record judgment of acquittal for accused nos. 1 and 2 for offence punishable under Section 302 of the Indian Penal Code and also under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989. 12. We are of the opinion that there is no serious infirmity in the view the trial Court has taken. It is reasonable and plausible view in the facts and circumstances of the case. Having gone through the entire evidence led in the case, we do not find any compelling or substantial ground to interfere with the conclusions recorded by the trial Court. It is settled position that High Court does not ordinarily set aside judgment of acquittal in case where two views are possible although the view of the appellate court is more probable one. (See: Budh Singh & ors. Vs. State of V.P. reported in 2006 Cri.L.J. 2886). 13. Bearing in mind the legal position as above, we conclude that the appeal is liable to be dismissed. Accordingly, it is dismissed. Appeal dismissed.