{"id":60396,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijay-hariba-kadam-vs-medha-police-station-on-9-april-2010"},"modified":"2015-10-26T21:27:53","modified_gmt":"2015-10-26T15:57:53","slug":"vijay-hariba-kadam-vs-medha-police-station-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijay-hariba-kadam-vs-medha-police-station-on-9-april-2010","title":{"rendered":"Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Bombay High Court<\/div>\n<div class=\"doc_title\">Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010<\/div>\n<div class=\"doc_bench\">Bench: V.M. Kanade<\/div>\n<pre>                                1\n\n\n         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                \n                 CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                        \n                 CRIMINAL APPEAL NO. 64 OF 2010\n\n    Vijay Hariba Kadam                    )\n    Age   35 years, Occ : Service,        )\n\n\n\n\n                                       \n    R\/at : Apati, Taluka Jaoli,           )\n    District Satara                       )        ...Appellant\n                                                   (Orig.Accused)\n            vs.\n\n\n\n\n                              \n    The State of Maharashtra through   )\n    Gautam Maruti Gade, PHC, B.No.1926 )\n                     \n    Medha Police Station, Taluka Jaoli,)\n    Dist Satara                        )           ...Respondent\n                    \n    Mr.Rahul Kadam for the Appellant.\n    Mrs.P.P. Bhosale, APP for the State.\n      \n   \n\n\n\n                                    CORAM : V.M. KANADE, J.\n<\/pre>\n<p>                                     DATED : APRIL 9, 2010<\/p>\n<p>    ORAL JUDGMENT :-\n<\/p>\n<p>    1       Heard Counsel for the appellant and APP for<\/p>\n<p>    the State.\n<\/p>\n<p>    2       By order dated 26th February, 2010, Brother<\/p>\n<p>    B.R. Gavai J. was pleased to issue notice to the<\/p>\n<p><span class=\"hidden_text\">                                        ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                          2<\/span><\/p>\n<p>    respondent which was made returnable in three weeks.\n<\/p>\n<p>    The parties were put on notice that the appeal would<\/p>\n<p>    be disposed of finally at the stage of admission.\n<\/p>\n<p>    The   appellant       was    directed          to    produce          notes         of<\/p>\n<p>    evidence on record. Accordingly, the appellant has<\/p>\n<p>    filed the compilation of evidence.<\/p>\n<pre>\n\n\n\n\n                                       \n    3          The    appellant        has     been      convicted            by      the\n\n    Sessions      Court\n                          \n                          for     the        offence         punishable           under\n\n<\/pre>\n<p>    Section 304 Part II of the IPC and sentenced to<\/p>\n<p>    undergo SI for three months and to pay fine of Rs.\n<\/p>\n<p>    50,000\/- and in default, to undergo further S.I. for<\/p>\n<p>    one   month.     He   is    also    convicted            for    the       offence<\/p>\n<p>    punishable       under     Section       280    of       the    IPC       and       is<\/p>\n<p>    sentenced to undergo SI for one month and to pay<\/p>\n<p>    fine of Rs.1000\/- and in default, to undergo SI for<\/p>\n<p>    10 days. Prosecution case in brief is as under :-\n<\/p>\n<p>    4          A family of four                husband, wife and their<\/p>\n<p>    two   minor      daughters    had        gone       on    a    tour       between<\/p>\n<p>    25.5.2007 to 28.5.2007 to Mahabaleshwar. There is a<\/p>\n<p><span class=\"hidden_text\">                                                    ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                        3<\/span><\/p>\n<p>    lake situated near Mahabaleshwar at the place called<\/p>\n<p>    Tapola. On the bank of the said lake, there is a<\/p>\n<p>    boat club known as Shivsagar Boat club. On 28th May,<\/p>\n<p>    2007 at about 4 p.m., they had gone for boating in<\/p>\n<p>    the said lake. They paid hire charges Rs.380\/- and<\/p>\n<p>    hired boat no.38. The accused               appellant herein was<\/p>\n<p>    in-charge of the said boat. At the relevant time,<\/p>\n<p>    after they hired the boat, it started raining and<\/p>\n<p>    since the boat no.38 did not have any roof, they<\/p>\n<p>    inquired with the accused whether he could arrange<\/p>\n<p>    for a boat having a roof. Accordingly, the accused<\/p>\n<p>    asked the complainant Prejal Doshi and his family to<\/p>\n<p>    sit in boat no.1 which had roof and thereafter with<\/p>\n<p>    the help of PW-3 Ganesh Kadam removed the engine<\/p>\n<p>    from boat no.38 and installed it in boat no.1 and<\/p>\n<p>    thereafter, he took the said boat in the lake. At<\/p>\n<p>    some    point   of   time,   due       to   heavy       turbulence              on<\/p>\n<p>    account of strong wind and as a result, the boat<\/p>\n<p>    capsized.   However,       three       members     of      the          family<\/p>\n<p>    could   survive,     but   their       youngest       daughter             of     5<\/p>\n<p>    years of age died in the said incident and her body<\/p>\n<p><span class=\"hidden_text\">                                                ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                          4<\/span><\/p>\n<p>    was found after two hours. Initially, an accidental<\/p>\n<p>    case    was    recorded     by    the     police       and       thereafter,<\/p>\n<p>    further       inquiry    was     made.    Inquest          panchnama             was<\/p>\n<p>    prepared and dead body was referred for post mortem.\n<\/p>\n<p>    Spot panchnama was prepared. A sketch was also drawn<\/p>\n<p>    by     the     police     Head       Constable.          Statements                of<\/p>\n<p>    witnesses were recorded. A notice under Section 209<\/p>\n<p>    of the Motor Vehicles Act was given to the accused.\n<\/p>\n<p>    A complaint was lodged in which it was alleged that<\/p>\n<p>    the accused failed to provide life jackets to the<\/p>\n<p>    complainant or did not make proper arrangements for<\/p>\n<p>    the safety while driving the boat in the said lake.\n<\/p>\n<p>    Initially, offence under Section 304-A of the IPC<\/p>\n<p>    was    registered.       Further     investigation             was       carried<\/p>\n<p>    out.    Charge     sheet       was   filed      and       offence            under<\/p>\n<p>    Sections 280, 304 of the IPC was added in the place<\/p>\n<p>    of     offence      under        Section        304-A.                   Charge,<\/p>\n<p>    accordingly,       was     framed        for   the        said         offence.\n<\/p>\n<p>    Accused pleaded not guilty. Prosecution examined 5<\/p>\n<p>    witnesses. The trial court convicted the accused and<\/p>\n<p>    sentenced him to suffer SI for three months for the<\/p>\n<p><span class=\"hidden_text\">                                                   ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                         5<\/span><\/p>\n<p>    offence under Section 304 Part II and also asked him<\/p>\n<p>    to pay fine of Rs.50,000\/- and sentenced to undergo<\/p>\n<p>    SI for one month for offence under Section 280 of<\/p>\n<p>    the IPC and he was asked to pay fine of Rs.1000\/-\n<\/p>\n<p>    and in default, to undergo further SI for 10 days.\n<\/p>\n<p>    5         Counsel       for   the       appellant      submitted             that<\/p>\n<p>    the    trial     court    had       erred    in       convicting               the<\/p>\n<p>    appellant for the aforesaid offences. He submitted<\/p>\n<p>    that from the testimony of the complainant and the<\/p>\n<p>    testimony of the other witnesses, it was apparent<\/p>\n<p>    that the said incident which had taken place on that<\/p>\n<p>    day was purely accident and the appellant could not<\/p>\n<p>    be held to be responsible, in any way, for the said<\/p>\n<p>    accident and death of the minor girl. He submitted<\/p>\n<p>    that   the     PW-3   Ganesh    Kadam       in    his      evidence            had<\/p>\n<p>    clearly      admitted    that       the    accused\/appellant                   had<\/p>\n<p>    provided life jackets to the said family, however,<\/p>\n<p>    they refused to put on the said life jackets. He<\/p>\n<p>    further submitted that the learned trial court had<\/p>\n<p>    proceeded on the said footing that the appellant had<\/p>\n<p><span class=\"hidden_text\">                                                 ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                          6<\/span><\/p>\n<p>    taken    the   boat    in     the        lake   and       the       water         was<\/p>\n<p>    disturbed at that time. He submitted that the trial<\/p>\n<p>    court, therefore, proceeded with erroneous footing<\/p>\n<p>    that the water was disturbed wherein the fact that<\/p>\n<p>    one of the witnesses examined by the prosecution has<\/p>\n<p>    deposed that the said water was not disturbed. He<\/p>\n<p>    submitted      that    none     of       the    ingredients               of      the<\/p>\n<p>    offence under Section 304 Part II was made out by<\/p>\n<p>    the prosecution case. He further submitted that the<\/p>\n<p>    provisions of Section 280 of IPC also not attracted.\n<\/p>\n<p>    6         The learned APP appearing on behalf of the<\/p>\n<p>    State,    on    the    other        hand,       submitted            that         the<\/p>\n<p>    appellant was aware that it was raining at that time<\/p>\n<p>    and even then, he proceeded to take the boat in the<\/p>\n<p>    said lake. It was submitted that he had knowledge<\/p>\n<p>    that on account of rain and disturbance of water,<\/p>\n<p>    there was possibility of accident. She invited my<\/p>\n<p>    attention to the evidence of PW-2                            Prejal Doshi,<\/p>\n<p>    Informant      and    the     father       of    the       deceased.              She<\/p>\n<p>    submitted that the said evidence along with evidence<\/p>\n<p><span class=\"hidden_text\">                                                    ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                      7<\/span><\/p>\n<p>    of    other    witness   clearly       established              that         the<\/p>\n<p>    appellant had committed the said offence.\n<\/p>\n<p>    7           I have heard both the learned Counsel at<\/p>\n<p>    length.       I have given my anxious consideration to<\/p>\n<p>    the evidence which is brought on record. In my view,<\/p>\n<p>    there is no evidence to show that the appellant has<\/p>\n<p>    committed the offence under Section 304 Part II or<\/p>\n<p>    under Section 280 of the IPC. The prosecution has<\/p>\n<p>    examined five witnesses. PW 1 &#8211; Gautam Maruti Gade<\/p>\n<p>    who    is     Head   Constable       who   recorded             the        said<\/p>\n<p>    statement. PW 2 is the father of the deceased and<\/p>\n<p>    complainant Prejal Doshi. PW 3 is another witness<\/p>\n<p>    who was in another boat at the relevant time. PW 4<\/p>\n<p>    is hotel owner who has his hotel at one of the banks<\/p>\n<p>    of the lake. PW 5 is the Investigating Officer. PW 1<\/p>\n<p>    in his evidence has recorded that report at Exhibit<\/p>\n<p>    9.    He initially registered a case of accidental<\/p>\n<p>    death and informed the Medha Police Station and the<\/p>\n<p>    preliminary report was prepared at Exhibit 10. He<\/p>\n<p>    visited the spot of occurrence and directed inquest<\/p>\n<p><span class=\"hidden_text\">                                               ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                        8<\/span><\/p>\n<p>    panchnama which is at Exhibit 11. The dead body of<\/p>\n<p>    the deceased girl was handed over for post mortem<\/p>\n<p>    for examination. He also recorded the statement of<\/p>\n<p>    witnesses. He prepared the spot panchnama in the<\/p>\n<p>    presence of panch witness and also prepared a rough<\/p>\n<p>    sketch. The said panchnama is produced on record at<\/p>\n<p>    Exhibits 12 and 13. Notice was given to the accused.<\/p>\n<pre>\n\n\n\n\n                                      \n    The   said    notice   is     at   Exhibit     15.       He      thereafter\n\n    lodged      the\n                        \n                      complaint    which   is     at      Exhibit           17 and\n\n<\/pre>\n<p>    registered initially offence under Section 304-A of<\/p>\n<p>    the IPC vide C.R.No.36\/2007. Further investigation<\/p>\n<p>    was carried out by PI Patil. This witness came at<\/p>\n<p>    the scene after the dead body of the minor girl was<\/p>\n<p>    found and was kept on the floor. He, therefore, was<\/p>\n<p>    not eye witness to the said incident but has carried<\/p>\n<p>    out the initial inquiry. PW2 is the eye witness to<\/p>\n<p>    the said incident who is the father of the deceased.\n<\/p>\n<p>    He    has     narrated      the     said      incident.               In       his<\/p>\n<p>    examination-in-chief, he has stated that the accused<\/p>\n<p>    had asked them to sit in boat no.38 which did not<\/p>\n<p>    have a roof.         He has further stated that he had<\/p>\n<p><span class=\"hidden_text\">                                                 ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                     9<\/span><\/p>\n<p>    asked for life jacket, however, the accused told<\/p>\n<p>    them that water was not deep and therefore, they<\/p>\n<p>    should not worry.       He has further stated that after<\/p>\n<p>    the boat started sailing, it started raining and<\/p>\n<p>    therefore, the accused took the boat near other bank<\/p>\n<p>    at which place there was a boat which had a roof.\n<\/p>\n<p>    The accused had asked them to sit in that boat which<\/p>\n<p>    had a roof and he removed engine from the said                           boat<\/p>\n<p>    and installed it in the boat having roof. According<\/p>\n<p>    to     him,    one   person     helped       the         accused             in<\/p>\n<p>    installation of engine in the other boat who had<\/p>\n<p>    come    on     the   water    scooter.      The         said         person<\/p>\n<p>    thereafter left on his water scooter in a speed.                             PW<\/p>\n<p>    2 has stated that the accused also followed him on<\/p>\n<p>    the water scooter in high speed and though PW 2<\/p>\n<p>    asked him to sail the boat in slow speed, he did not<\/p>\n<p>    pay any heed to his request. The boat capsized in<\/p>\n<p>    the said lake.        They were rescued by the scooter<\/p>\n<p>    boat riders and the others who came there and put<\/p>\n<p>    them in another boat and took them to the bank of<\/p>\n<p>    the    lake.     However,     his   younger        daughter            Misty<\/p>\n<p><span class=\"hidden_text\">                                             ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                        10<\/span><\/p>\n<p>    could not be traced and her dead body was found<\/p>\n<p>    after two hours. In the cross-examination, however,<\/p>\n<p>    the contradiction made by him in his first statement<\/p>\n<p>    was brought on record and it was marked as                             A     from<\/p>\n<p>    his report at Exhibit 9. The defence, therefore, was<\/p>\n<p>    not   in   a    position    to     bring    on     record          that        the<\/p>\n<p>    witness had not stated before the police that he had<\/p>\n<p>    asked    for    life     jackets    and    the     accused           did       not<\/p>\n<p>    provide the life jackets to them. He had further<\/p>\n<p>    admitted that some other statements, which he had<\/p>\n<p>    raised     in    the     court,     were    not        found          in       the<\/p>\n<p>    statements which were made by him before the police.\n<\/p>\n<p>    PW-3 Ganesh Kadam was also working as boat driver in<\/p>\n<p>    the said club and he has narrated the sequence of<\/p>\n<p>    events.        In his cross-examination, he has admitted<\/p>\n<p>    that the accused had asked the complainant and his<\/p>\n<p>    family to put on the life jackets, however, they had<\/p>\n<p>    refused    to     wear    the    said     jackets.         PW-4        Prakash<\/p>\n<p>    Dhanawade, is the Hotel owner having a hotel on the<\/p>\n<p>    bank of the said lake. He has merely stated that the<\/p>\n<p>    accused     was     driving        the     said       boat          and        the<\/p>\n<p><span class=\"hidden_text\">                                                 ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                       11<\/span><\/p>\n<p>    complainant and his family members fell in the lake<\/p>\n<p>    after    the    boat     was   toppled.       PW-5       Investigating<\/p>\n<p>    Officer Shivaji Patil who carried out investigation<\/p>\n<p>    after    initial       investigation     made      by      Police          Head<\/p>\n<p>    Constable. From the evidence which is adduced by the<\/p>\n<p>    prosecution and more particularly, eye witness PW-2,<\/p>\n<p>    it clearly discloses that lot of improvements have<\/p>\n<p>    been made by him in his evidence before the court.\n<\/p>\n<p>    The said improvement has been brought on record. He<\/p>\n<p>    has also admitted that some of the statements which<\/p>\n<p>    he had made before the court were not recorded by<\/p>\n<p>    the police in the complaint. From this evidence, it<\/p>\n<p>    cannot be said that the appellant has committed an<\/p>\n<p>    offence under Section 304 Part 2 or Section 280 of<\/p>\n<p>    the IPC. There is no dispute about the sequence of<\/p>\n<p>    events   and    even     the   accused    has     admitted            in his<\/p>\n<p>    statement      under    Section    313   as     to      what       actually<\/p>\n<p>    transpired on that day. The learned Sessions Court,<\/p>\n<p>    however, appears to have proceeded on the footing<\/p>\n<p>    that the water in the lake was disturbed and in<\/p>\n<p>    spite of the disturbance in the water, the appellant<\/p>\n<p><span class=\"hidden_text\">                                               ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                        12<\/span><\/p>\n<p>    proceeded to take his boat in the said lake and<\/p>\n<p>    therefore,       acted    negligently         and      had        failed          to<\/p>\n<p>    provide    life     jackets   to        the   family        of      PW-2        and<\/p>\n<p>    therefore, acted negligently and had not taken any<\/p>\n<p>    precaution while taking the boat in the disturbed<\/p>\n<p>    water and thus, had the knowledge that it was likely<\/p>\n<p>    to cause death.          This can been seen from the points<\/p>\n<p>    which     have    been     framed       for    determination.                   The<\/p>\n<p>    learned Sessions has framed the following points for<\/p>\n<p>    determination :-\n<\/p>\n<p>               POINTS                                        FINDINGS<\/p>\n<p>    1.   Whether the accused rashly<br \/>\n         or negligently navigated boat<br \/>\n         in disturbed water, without<\/p>\n<p>         taking due precaution and<br \/>\n         endangered human lives?                                     Yes<\/p>\n<p>    2    Whether the accused committed<\/p>\n<p>         culpable homicide of Miss.\n<\/p>\n<p>         Misty Prejal Doshi, aged 5<br \/>\n         years, by navigating the boat<br \/>\n         in disturbed water, without<br \/>\n         taking precaution for her<br \/>\n         safety and with knowledge<br \/>\n         that it was likely to cause<\/p>\n<p><span class=\"hidden_text\">                                                  ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                   13<\/span><\/p>\n<p>         death, but without intention<br \/>\n         to cause her death?                                    Yes<\/p>\n<p>    3    What order?                           As per final order<\/p>\n<p>    8        It is pertinent to note that none of the<\/p>\n<p>    witnesses stated that the water was disturbed. It is<\/p>\n<p>    not the prosecution case that the boat was taken in<\/p>\n<p>    the lake when there was disturbance in the water. PW<\/p>\n<p>    2, on the other hand, hired the boat after having<\/p>\n<p>    paid hire charges of Rs.380\/-. The appellant was in-\n<\/p>\n<p>    charge of one of the boats. PW-2 has stated that<\/p>\n<p>    initially   when     the   boat    was   hired,          it      was       not<\/p>\n<p>    raining and only after they sat in the boat and<\/p>\n<p>    travelled   at   a   distance,     thereafter,             it      started<\/p>\n<p>    raining. PW-2 in his statement has stated as follows<\/p>\n<p>    :-\n<\/p>\n<blockquote><p>                     We reached Tapola by about<br \/>\n             4.00 p.m. We hired Boar bearing No.38<\/p>\n<p>             by paying hire charges of Rs.380\/- to<br \/>\n             Shivsagar Boat Club. The accused<br \/>\n             sitting     before   the  court   was<br \/>\n             incharge of the said Boat. He made us<br \/>\n             to sit in the said Boat. That Boat<br \/>\n             was not having roof. When we asked<br \/>\n             for life-jacket, the accused replied<\/p>\n<p><span class=\"hidden_text\">                                             ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                         14<\/span><\/p>\n<p>               that the water was not so deep and<br \/>\n               that we should not worry. After our<br \/>\n               boat started sailing, rain started.\n<\/p><\/blockquote>\n<blockquote><p>               Therefore, the accused took our boat<br \/>\n               near the other bank, where boat<\/p>\n<p>               having roof was there.\n<\/p><\/blockquote>\n<p>    9          Thus, it is not the case of the complainant<\/p>\n<p>    that when they sailed in the boat, it was raining.\n<\/p>\n<p>    On   the   contrary,        after   the    boat        sailed          at      some<\/p>\n<p>    distance, thereafter it started raining. Secondly,<\/p>\n<p>    the complainant had paid for the hire charges to the<\/p>\n<p>    boat   club    and     he    was    allotted         boat        no.38.          The<\/p>\n<p>    appellant      had    no    other    option        but       to      take        the<\/p>\n<p>    passenger     who     had   booked       and   paid        hire        charges.\n<\/p>\n<p>    Secondly, this witness, in fact, does not state that<\/p>\n<p>    when   the     boat     started      sailing,           the       water          was<\/p>\n<p>    turbulent or that there was heavy rain or wind at<\/p>\n<p>    that   time.         The    Sessions      Judge,         therefore,              has<\/p>\n<p>    proceeded on the footing that there was turbulence<\/p>\n<p>    in the water of the lake and in spite of that, the<\/p>\n<p>    appellant had taken the family of PW-2 to his boat<\/p>\n<p>    and therefore, acted negligently and had not taken<\/p>\n<p><span class=\"hidden_text\">                                                   ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                            15<\/span><\/p>\n<p>    any     safety       precautions.             It       is      difficult               to<\/p>\n<p>    understand as to how the learned Sessions Judge has<\/p>\n<p>    drawn       this     inference.             The        said        observation,<\/p>\n<p>    therefore, is not borne out by the record. Secondly,<\/p>\n<p>    it    has    been    established            that       the     appellant             had<\/p>\n<p>    offered       life    jackets          to     PW-2      and       his        family,<\/p>\n<p>    however, they declined to take those life jackets.\n<\/p>\n<p>    Though PW-2 in his examination-in-chief has stated<\/p>\n<p>    that he had asked for the life jacket and that the<\/p>\n<p>    accused had not supplied those jackets to them by<\/p>\n<p>    telling them that the water is not very deep,                                          in<\/p>\n<p>    the cross-examination, it has come on record that he<\/p>\n<p>    had not made that statement before the police and<\/p>\n<p>    therefore, it has been established that the said<\/p>\n<p>    statement      made       by    PW-2    before         the     court         was       an<\/p>\n<p>    improvement to the earlier statement made before the<\/p>\n<p>    police. On the other hand, PW-3 Ganesh Kadam in his<\/p>\n<p>    cross-examination              has    clearly      admitted            that        life<\/p>\n<p>    jackets were there in boat no.38 and the accused had<\/p>\n<p>    asked       PW-2    and    his       family       to    put      on      the       life<\/p>\n<p>    jackets, however, they refused to do so. PW-2 in his<\/p>\n<p><span class=\"hidden_text\">                                                       ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                      16<\/span><\/p>\n<p>    cross has stated as follows :-\n<\/p>\n<pre>                        It is true to say that                     four\n\n\n\n\n                                                \n                live-jackets were there in Boat                     No.\n                38. At that time, the accused                       had\n                asked tourists to put-on the                       said\n                live-jackets,    but   tourists                     had\n\n\n\n\n                                               \n                refused to use the same.\n\n\n    10          From the evidence of PW-3, therefore, it is\n\n\n\n\n                                    \n<\/pre>\n<p>    evident that the appellant had taken due care and<\/p>\n<p>    precaution     and<\/p>\n<p>                          it   cannot      be   said      that        he      acted<\/p>\n<p>    negligently. PW-4 was also an independent witness<\/p>\n<p>    who was examined by the prosecution. He has stated<\/p>\n<p>    that he was present in his hotel and he had seen<\/p>\n<p>    that in the boat had toppled in front of his hotel.\n<\/p>\n<p>    He does not, however, give any particulars of what<\/p>\n<p>    transpired before the incident had taken place.                                 He<\/p>\n<p>    also not stated that the water was turbulent. The<\/p>\n<p>    only eye witness to the entire incident, therefore,<\/p>\n<p>    is   PW-2    and     he    has   not    established              that         the<\/p>\n<p>    appellant had acted either in negligent manner or<\/p>\n<p>    was driving the boat in rash and negligent manner or<\/p>\n<p>    was responsible for the death of his daughter.                                  In<\/p>\n<p><span class=\"hidden_text\">                                                ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span><br \/>\n<span class=\"hidden_text\">                                      17<\/span><\/p>\n<p>    my     view,    therefore,       the   prosecution                has        not<\/p>\n<p>    established          beyond   reasonable        doubt          that          the<\/p>\n<p>    appellant has committed the said offence punishable<\/p>\n<p>    under Section 304 Part II or 280 of the IPC.\n<\/p>\n<p>    11             The    judgment   and   order        passed           by      the<\/p>\n<p>    Sessions Court, therefore, is set aside. The appeal<\/p>\n<p>    filed by the appellant is allowed. The appellant is<\/p>\n<p>    acquitted of the charges which are levelled against<\/p>\n<p>    him.\n<\/p>\n<p>    12        The appeal, accordingly, is allowed in the<\/p>\n<p>    aforesaid terms and disposed of.\n<\/p>\n<p>                                           (V.M. KANADE, J.)<\/p>\n<p><span class=\"hidden_text\">                                               ::: Downloaded on &#8211; 09\/06\/2013 15:50:04 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Bombay High Court Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010 Bench: V.M. Kanade 1 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 ) [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-60396","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijay-hariba-kadam-vs-medha-police-station-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijay Hariba Kadam vs Medha Police Station on 9 April, 2010 - Free Judgements of Supreme Court &amp; 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