Bombay High Court High Court

Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010

Bombay High Court
Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010
Bench: V.M. Kanade
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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.38

by 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

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that 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 boat

having 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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