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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 506 /2009
State of Maharashtra
Through Police Station officer
Ramdaspeth, Akola. ... ... APPELLANT v e r s u s
1) Dhananjay Laxmanrao Bhagat
Aged about 34 years, occu: Fitness Centre
R/o Telipura Chowk, Tajnapeth
Akola.
2) Pravin Laxmanrao Sulokar
Aged about 25 years, occu: Instructor
R/o Engineering Colony
Mothi Umri Akola.
3) Ritesh Raju Tadavi,
Aged about 25 years, occu:Education
R/o Nalgaon Near School No.12
PS Akot File, Akola.. .. .. .RESPONDENTS ........................................................................................................................... Mr. S.B.Ahirkar APP for appellant
Mr. S.A.Mohta, Adv.for Respondents
CORAM: A.P.BHANGALE, J.
DATED: 1st February, 2010
JUDGMENT :
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1. This Appeal is directed against the judgment and order dated 30.01.2009 passed by learned Judicial Magistrate, First Class (Court No.8) Akola in S.C.Case No. 8068/2006 whereby the respondents accused were acquitted of offence punishable under section 304A of the Indian Penal Code.
2. Briefly stated facts are : An Advocate Shri Harshnandan Chandikaprasad Mishra R/o Tapadia Nagar, Akola had lodged a report dated 29.5.2006 being FIR No. 94/2006 at Ramdaspeth Police Station, Akola against respondents/accused alleging that they were employed at Swimming Pool Club of 'Ajinkya Taran Talao' at Vasant Desai Stadium, Akola. AccusedDhananjay Bhagat was Director and accused Pravin Sulokar was the main Instructor; while accused Tadvi was the Lifeguard. Further, according to complainant, his son Nikhil had been admitted so as to learn swimming on payment of fees of Rs. 420/ from 2.5.2006. On 11.5.2006 his son was drowned at about evening. He was taken to Hospital but was declared dead by Doctors at O.P.D. of Main Hospital, Akola. The report alleged, inter alia, rashnesss and negligence on the part of respondents/accused to cause death of Nikhil. Thus, offence punishable under section 304A of the IPC came to be registered against the accused and they were chargesheeted upon completion of investigation.
3. Charge was framed against the accused on 30.4.2007 at Exh. 6 . The accused pleaded not guilty and claimed to be tried. 3
4. At the trial, prosecution examined as many as ten witnesses. No defence evidence was led. The trial Court by impugned judgment and order acquitted the accused.
5. Learned APP on behalf of the appellantState submitted in support of the appeal that the respondents/accused were responsible for untimely demise of Nikhil on account of their rashness and negligence as they were not vigilant enough and did not keep a hawk eye on the budding swimmers. Learned APP vehemently criticized the impugned judgment on the ground that evidence was not considered properly by the learned Trial Magistrate, which resulted in an unmerited acquittal of the respondents/ accused. He, therefore, prayed to set aside the acquittal and to punish respondents for offence punishable u/s 304A of the IPC.
6. Per contra, learned Advocate appearing on behalf of respondents/accused submitted that the trial Magistrate considered the entire evidence in its proper perspective in the light of the legal position explained by plethora of rulings cited and arrived at legal and only logical conclusion of finding accused not guilty of offence punishable u/s 304A IPC. Learned Advocate for respondents made reference to ruling in Jerald vs. State by Inspector of Police, Kancheepuram : 2001 Cri.L.J. 3656 (Mad), wherein it is held that in a case the doctor who issued certificate of autopsy is not examined and no explanation is offered as to why he was not examined, the Court cannot presume the cause of death. Thus, in the absence of proof as to case of death, the accused was held entitled to 4
be acquitted. In B P Ram vs. State of MP : 1991 Cri.L.J. 473, it is held in case a boy surreptitiously entered in a swimming pool and drowned, the alleged negligence of club may make members of the Club liable under tort, but to prove charge u/s 304A of the IPC, rash and negligent act must be immediate cause of death and not any act or omission which can be at the most, be said to be remote cause of death. Neglect of duty must be of such culpability as to amount gross negligence on the part of the accused. In the ruling of Ambalal vs. The State of Gujarat : 1972 Cri.L.J. 727 (SC), it is held that death must be proximate and efficient cause of death. In the ruling of Suleman Rahiman vs. State of Maharashtra: 1968 Cri.L.J. 1013,the Apex Court while considering requirement of of Section 304 A IPC, held with reference to Emperor vs. Omkar Rampratap (1902) 4 Biom LR 679 that the "death of a person must have been caused by the accused by doing such act by rash and negligent manner or that any such act was the proximate and efficient cause of death. The act causing the death must be the causa causance; it is not enough that it may have been the causa sine qua non". In B P Ram vs. State of MP : 1991 Cri.L.J. 473 (MP), it is held that when a boy surreptitiously entered in a swimming pool and drowned for alleged negligence of swimming club, it was held that Club may be liable under tort but for omission of not having life saving guard or not displaying note of caution. The members of swimming pool Hon. Secretary and 5
Chowkidar cannot be held liable under sec. 304A IPC. because the rash and negligent act must be established by evidence as immediate cause of death and no such act or omission which at the most may be said to be remote cause of death. To render a person liable for neglect of duty, there must be such degree of culpability so as to amount to gross negligence on his part and not a mere trip of mistake.
7. Considering the submissions advanced at the Bar in the backdrop of evidence led in the case, it appears that none of the witnesses deposed about negligent act of any of the accused which can be said to have caused death of Nikhil or which could establish connection between the death of Nikhil as direct result of negligence of any of the respondents/ accused. The trial Court did consider the evidence of each witness examined in the case but could not find acceptable evidence to establish nexus between death of Nikhil with any rash and negligent act of any of the accused, as proximate cause of death. Criminal negligence means gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard an individual in particular against injury. Negligence is an omission to do something which a reasonable and prudent man guided upon those considerations which would ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. While culpable rashness is acting consciously that mischievous and illegal consequences may follow ; but with hope that they will not and often with the belief that the actor had taken 6
sufficient precaution to prevent happening. Going through the evidence on record, I am unable to accept the submission by learned APP that the trial Magistrate committed an error of law. The learned trial Magistrate gave reasons as to why the prosecution evidence was not worth acceptance against the accused so as to establish the charge. Considering the entire evidence, I am also of the considered view that the conclusion arrived at by the trial Magistrate is correct. There is no cogent and reliable evidence to come to a positive finding as to rashness or negligence of any of the accused to cause death of Nikhil. It goes without saying that deceased Nikhil himself had unauthorizedly and surreptitiously entered in the pool which was meant for adult trained swimmers and risked the calamity. The evidence and circumstances indicate that it was difficult to reach conclusion against the accused and therefore it is not possible for me to set aside the order of acquittal passed by the learned Magistrate.
8. It would be instructive to refer to the ruling in Sayed Petha vs. Public Prosecutor : 2008 Cri.L.J. 3488, in which it is held that High Court does not ordinarily set aside the judgment of acquittal in cases where two views are possible, although the view of the appellate Court is more probable one, as it is settled legal position that substantial and compelling reasons are required to upset trial Court decision. Thus, unless very substantial and compelling reasons are made out to overrule the finding and order of acquittal and unless conclusions of the trial Court are wrong in the facts of the case, or manifestly unjust and unreasonable, there would be no 7
justification for this Court to set aside the judgment and order of acquittal. In Ghurey Lal vs. State of Uttar Pradesh : (2009) 1 SCC (Cri) 60, it is laid down that the judgment and order of acquittal bolsters up the presumption of innocence to which due and proper weight and consideration has to be given to the trial Court's decision. Substantial and compelling reasons are required to upset the trial Court's decision. The principles mentioned by the Apex Court are : (i) the trial Court's conclusion with regard to the fact is palpably wrong; (ii) the trial Court's decision was based on an erroneous view of law; (iii) the trial Court's judgment is likely to result in 'grave miscarriage of justice'; (iv) the entire approach of the trial Court in dealing with the evidence was patently illegal; (v) the trial Court's judgment was manifestly unjust and unreasonable; (vi) the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. ;(vii) the list is intended to be illustrative and not exhaustive.
9. In the result, no ground is made out to interfere with the order of acquittal passed by the learned trial Magistrate. The Appeal, therefore, fails and is dismissed.
JUDGE
sahare