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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 64 OF 2010
Vijay Hariba Kadam )
Age 35 years, Occ : Service, )
R/at : Apati, Taluka Jaoli, )
District Satara ) ...Appellant
(Orig.Accused)
vs.
The State of Maharashtra through )
Gautam Maruti Gade, PHC, B.No.1926 )
Medha Police Station, Taluka Jaoli,)
Dist Satara ) ...Respondent
Mr.Rahul Kadam for the Appellant.
Mrs.P.P. Bhosale, APP for the State.
CORAM : V.M. KANADE, J.
DATED : APRIL 9, 2010
ORAL JUDGMENT :-
1 Heard Counsel for the appellant and APP for
the State.
2 By order dated 26th February, 2010, Brother
B.R. Gavai J. was pleased to issue notice to the
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respondent which was made returnable in three weeks.
The parties were put on notice that the appeal would
be disposed of finally at the stage of admission.
The appellant was directed to produce notes of
evidence on record. Accordingly, the appellant has
filed the compilation of evidence.
3 The appellant has been convicted by the
Sessions Court
for the offence punishable under
Section 304 Part II of the IPC and sentenced to
undergo SI for three months and to pay fine of Rs.
50,000/- and in default, to undergo further S.I. for
one month. He is also convicted for the offence
punishable under Section 280 of the IPC and is
sentenced to undergo SI for one month and to pay
fine of Rs.1000/- and in default, to undergo SI for
10 days. Prosecution case in brief is as under :-
4 A family of four husband, wife and their
two minor daughters had gone on a tour between
25.5.2007 to 28.5.2007 to Mahabaleshwar. There is a
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lake situated near Mahabaleshwar at the place called
Tapola. On the bank of the said lake, there is a
boat club known as Shivsagar Boat club. On 28th May,
2007 at about 4 p.m., they had gone for boating in
the said lake. They paid hire charges Rs.380/- and
hired boat no.38. The accused appellant herein was
in-charge of the said boat. At the relevant time,
after they hired the boat, it started raining and
since the boat no.38 did not have any roof, they
inquired with the accused whether he could arrange
for a boat having a roof. Accordingly, the accused
asked the complainant Prejal Doshi and his family to
sit in boat no.1 which had roof and thereafter with
the help of PW-3 Ganesh Kadam removed the engine
from boat no.38 and installed it in boat no.1 and
thereafter, he took the said boat in the lake. At
some point of time, due to heavy turbulence on
account of strong wind and as a result, the boat
capsized. However, three members of the family
could survive, but their youngest daughter of 5
years of age died in the said incident and her body
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was found after two hours. Initially, an accidental
case was recorded by the police and thereafter,
further inquiry was made. Inquest panchnama was
prepared and dead body was referred for post mortem.
Spot panchnama was prepared. A sketch was also drawn
by the police Head Constable. Statements of
witnesses were recorded. A notice under Section 209
of the Motor Vehicles Act was given to the accused.
A complaint was lodged in which it was alleged that
the accused failed to provide life jackets to the
complainant or did not make proper arrangements for
the safety while driving the boat in the said lake.
Initially, offence under Section 304-A of the IPC
was registered. Further investigation was carried
out. Charge sheet was filed and offence under
Sections 280, 304 of the IPC was added in the place
of offence under Section 304-A. Charge,
accordingly, was framed for the said offence.
Accused pleaded not guilty. Prosecution examined 5
witnesses. The trial court convicted the accused and
sentenced him to suffer SI for three months for the
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offence under Section 304 Part II and also asked him
to pay fine of Rs.50,000/- and sentenced to undergo
SI for one month for offence under Section 280 of
the IPC and he was asked to pay fine of Rs.1000/-
and in default, to undergo further SI for 10 days.
5 Counsel for the appellant submitted that
the trial court had erred in convicting the
appellant for the aforesaid offences. He submitted
that from the testimony of the complainant and the
testimony of the other witnesses, it was apparent
that the said incident which had taken place on that
day was purely accident and the appellant could not
be held to be responsible, in any way, for the said
accident and death of the minor girl. He submitted
that the PW-3 Ganesh Kadam in his evidence had
clearly admitted that the accused/appellant had
provided life jackets to the said family, however,
they refused to put on the said life jackets. He
further submitted that the learned trial court had
proceeded on the said footing that the appellant had
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taken the boat in the lake and the water was
disturbed at that time. He submitted that the trial
court, therefore, proceeded with erroneous footing
that the water was disturbed wherein the fact that
one of the witnesses examined by the prosecution has
deposed that the said water was not disturbed. He
submitted that none of the ingredients of the
offence under Section 304 Part II was made out by
the prosecution case. He further submitted that the
provisions of Section 280 of IPC also not attracted.
6 The learned APP appearing on behalf of the
State, on the other hand, submitted that the
appellant was aware that it was raining at that time
and even then, he proceeded to take the boat in the
said lake. It was submitted that he had knowledge
that on account of rain and disturbance of water,
there was possibility of accident. She invited my
attention to the evidence of PW-2 Prejal Doshi,
Informant and the father of the deceased. She
submitted that the said evidence along with evidence
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of other witness clearly established that the
appellant had committed the said offence.
7 I have heard both the learned Counsel at
length. I have given my anxious consideration to
the evidence which is brought on record. In my view,
there is no evidence to show that the appellant has
committed the offence under Section 304 Part II or
under Section 280 of the IPC. The prosecution has
examined five witnesses. PW 1 – Gautam Maruti Gade
who is Head Constable who recorded the said
statement. PW 2 is the father of the deceased and
complainant Prejal Doshi. PW 3 is another witness
who was in another boat at the relevant time. PW 4
is hotel owner who has his hotel at one of the banks
of the lake. PW 5 is the Investigating Officer. PW 1
in his evidence has recorded that report at Exhibit
9. He initially registered a case of accidental
death and informed the Medha Police Station and the
preliminary report was prepared at Exhibit 10. He
visited the spot of occurrence and directed inquest
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panchnama which is at Exhibit 11. The dead body of
the deceased girl was handed over for post mortem
for examination. He also recorded the statement of
witnesses. He prepared the spot panchnama in the
presence of panch witness and also prepared a rough
sketch. The said panchnama is produced on record at
Exhibits 12 and 13. Notice was given to the accused.
The said notice is at Exhibit 15. He thereafter
lodged the
complaint which is at Exhibit 17 and
registered initially offence under Section 304-A of
the IPC vide C.R.No.36/2007. Further investigation
was carried out by PI Patil. This witness came at
the scene after the dead body of the minor girl was
found and was kept on the floor. He, therefore, was
not eye witness to the said incident but has carried
out the initial inquiry. PW2 is the eye witness to
the said incident who is the father of the deceased.
He has narrated the said incident. In his
examination-in-chief, he has stated that the accused
had asked them to sit in boat no.38 which did not
have a roof. He has further stated that he had
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asked for life jacket, however, the accused told
them that water was not deep and therefore, they
should not worry. He has further stated that after
the boat started sailing, it started raining and
therefore, the accused took the boat near other bank
at which place there was a boat which had a roof.
The accused had asked them to sit in that boat which
had a roof and he removed engine from the said boat
and installed it in the boat having roof. According
to him, one person helped the accused in
installation of engine in the other boat who had
come on the water scooter. The said person
thereafter left on his water scooter in a speed. PW
2 has stated that the accused also followed him on
the water scooter in high speed and though PW 2
asked him to sail the boat in slow speed, he did not
pay any heed to his request. The boat capsized in
the said lake. They were rescued by the scooter
boat riders and the others who came there and put
them in another boat and took them to the bank of
the lake. However, his younger daughter Misty
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could not be traced and her dead body was found
after two hours. In the cross-examination, however,
the contradiction made by him in his first statement
was brought on record and it was marked as A from
his report at Exhibit 9. The defence, therefore, was
not in a position to bring on record that the
witness had not stated before the police that he had
asked for life jackets and the accused did not
provide the life jackets to them. He had further
admitted that some other statements, which he had
raised in the court, were not found in the
statements which were made by him before the police.
PW-3 Ganesh Kadam was also working as boat driver in
the said club and he has narrated the sequence of
events. In his cross-examination, he has admitted
that the accused had asked the complainant and his
family to put on the life jackets, however, they had
refused to wear the said jackets. PW-4 Prakash
Dhanawade, is the Hotel owner having a hotel on the
bank of the said lake. He has merely stated that the
accused was driving the said boat and the
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complainant and his family members fell in the lake
after the boat was toppled. PW-5 Investigating
Officer Shivaji Patil who carried out investigation
after initial investigation made by Police Head
Constable. From the evidence which is adduced by the
prosecution and more particularly, eye witness PW-2,
it clearly discloses that lot of improvements have
been made by him in his evidence before the court.
The said improvement has been brought on record. He
has also admitted that some of the statements which
he had made before the court were not recorded by
the police in the complaint. From this evidence, it
cannot be said that the appellant has committed an
offence under Section 304 Part 2 or Section 280 of
the IPC. There is no dispute about the sequence of
events and even the accused has admitted in his
statement under Section 313 as to what actually
transpired on that day. The learned Sessions Court,
however, appears to have proceeded on the footing
that the water in the lake was disturbed and in
spite of the disturbance in the water, the appellant
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proceeded to take his boat in the said lake and
therefore, acted negligently and had failed to
provide life jackets to the family of PW-2 and
therefore, acted negligently and had not taken any
precaution while taking the boat in the disturbed
water and thus, had the knowledge that it was likely
to cause death. This can been seen from the points
which have been framed for determination. The
learned Sessions has framed the following points for
determination :-
POINTS FINDINGS
1. Whether the accused rashly
or negligently navigated boat
in disturbed water, without
taking due precaution and
endangered human lives? Yes
2 Whether the accused committed
culpable homicide of Miss.
Misty Prejal Doshi, aged 5
years, by navigating the boat
in disturbed water, without
taking precaution for her
safety and with knowledge
that it was likely to cause
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death, but without intention
to cause her death? Yes
3 What order? As per final order
8 It is pertinent to note that none of the
witnesses stated that the water was disturbed. It is
not the prosecution case that the boat was taken in
the lake when there was disturbance in the water. PW
2, on the other hand, hired the boat after having
paid hire charges of Rs.380/-. The appellant was in-
charge of one of the boats. PW-2 has stated that
initially when the boat was hired, it was not
raining and only after they sat in the boat and
travelled at a distance, thereafter, it started
raining. PW-2 in his statement has stated as follows
:-
We reached Tapola by about
4.00 p.m. We hired Boar bearing No.38by paying hire charges of Rs.380/- to
Shivsagar Boat Club. The accused
sitting before the court was
incharge of the said Boat. He made us
to sit in the said Boat. That Boat
was not having roof. When we asked
for life-jacket, the accused replied::: Downloaded on – 09/06/2013 15:50:04 :::
14that the water was not so deep and
that we should not worry. After our
boat started sailing, rain started.
Therefore, the accused took our boat
near the other bank, where boathaving roof was there.
9 Thus, it is not the case of the complainant
that when they sailed in the boat, it was raining.
On the contrary, after the boat sailed at some
distance, thereafter it started raining. Secondly,
the complainant had paid for the hire charges to the
boat club and he was allotted boat no.38. The
appellant had no other option but to take the
passenger who had booked and paid hire charges.
Secondly, this witness, in fact, does not state that
when the boat started sailing, the water was
turbulent or that there was heavy rain or wind at
that time. The Sessions Judge, therefore, has
proceeded on the footing that there was turbulence
in the water of the lake and in spite of that, the
appellant had taken the family of PW-2 to his boat
and therefore, acted negligently and had not taken
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any safety precautions. It is difficult to
understand as to how the learned Sessions Judge has
drawn this inference. The said observation,
therefore, is not borne out by the record. Secondly,
it has been established that the appellant had
offered life jackets to PW-2 and his family,
however, they declined to take those life jackets.
Though PW-2 in his examination-in-chief has stated
that he had asked for the life jacket and that the
accused had not supplied those jackets to them by
telling them that the water is not very deep, in
the cross-examination, it has come on record that he
had not made that statement before the police and
therefore, it has been established that the said
statement made by PW-2 before the court was an
improvement to the earlier statement made before the
police. On the other hand, PW-3 Ganesh Kadam in his
cross-examination has clearly admitted that life
jackets were there in boat no.38 and the accused had
asked PW-2 and his family to put on the life
jackets, however, they refused to do so. PW-2 in his
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cross has stated as follows :-
It is true to say that four
live-jackets were there in Boat No.
38. At that time, the accused had
asked tourists to put-on the said
live-jackets, but tourists had
refused to use the same.
10 From the evidence of PW-3, therefore, it is
evident that the appellant had taken due care and
precaution and
it cannot be said that he acted
negligently. PW-4 was also an independent witness
who was examined by the prosecution. He has stated
that he was present in his hotel and he had seen
that in the boat had toppled in front of his hotel.
He does not, however, give any particulars of what
transpired before the incident had taken place. He
also not stated that the water was turbulent. The
only eye witness to the entire incident, therefore,
is PW-2 and he has not established that the
appellant had acted either in negligent manner or
was driving the boat in rash and negligent manner or
was responsible for the death of his daughter. In
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my view, therefore, the prosecution has not
established beyond reasonable doubt that the
appellant has committed the said offence punishable
under Section 304 Part II or 280 of the IPC.
11 The judgment and order passed by the
Sessions Court, therefore, is set aside. The appeal
filed by the appellant is allowed. The appellant is
acquitted of the charges which are levelled against
him.
12 The appeal, accordingly, is allowed in the
aforesaid terms and disposed of.
(V.M. KANADE, J.)
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