State Of Maharashtra vs 3) Ritesh Raju Tadavi on 1 February, 2010

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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