CRI.APPEAL.602.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.602/2003
State of Maharashtra
Through P.S.O. Sitabuldi
Nagpur. .. APPELLANT
versus
Ku.Sonal Rajendra Chaudhari
Aged about 25 years, occu: service
R/o 243, Hill Road, Gyangarima
Gandhi nagar, Nagpur. .. RESPONDENT
...........................................................................................................................................................
Mr. S.B. Bissa, Additional Public Prosecutor for appellant-State
None for the respondent
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CORAM: MRS.SWAPNA JOSHI, J.
DATED: 14th September, 2017 ORAL JUDGMENT:
1. The present Appeal has been filed by the appellant-State against the judgment and order dated 2nd July, 2003 delivered by the learned Judicial Magistrate, First Class, Nagpur acquitting the respondent/accused of the offence punishable under Sections 279, 304A and 337 of the Indian Penal Code.
2. The prosecution case in a nutshell is as under :
On 23.7.1999, at about 2.30 pm. Tarabai Laxman Kshrisagar along with her daughter in law Ushabai Kshirsagar (deceased) were proceeding by a cycle-rickshaw towards Bajajnagar. The accused, who was driving her Maruti Car bearing Registration No. MH-31 G-639 in a rash and negligent manner, gave a dash to the cycle-rickshaw. With the result, ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:58:33 ::: CRI.APPEAL.602.03 2 both the ladies fell down. Tarabai sustained injury to her left right leg, left wrist and waist. The accused picked them up and took them to Taori Hospital. However the Doctor declared Ushabai as dead. The son of Ushabai, PW1-Prasad Kshirsagar lodged a complaint against the accused. On the basis of said complaint, offence was registered against the accused for offence punishable under sections 279 and 304A and 337 of the Indian Penal Code, at Sitabuldi Police Station. At the relevant time, PSI SS. Birla was attached to Sitabuldi Police Station. He visited the place of the incident and recorded the spot panchnama. He also prepared Inquest panchmama and referred the dead body for post mortem to the Indira Gandhi Medical College and Hospital, Nagpur. He recorded the statements of witnesses and after completion of investigation, submitted charge-sheet in the Court of learned Judicial Magistrate, First Class. The charge was framed. The accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. On conducting the trial and after going through the evidence of only one witness, who is son of the deceased, the learned Magistrate acquitted the accused.
3. I have heard Mr.S.B.Bissa, the learned Additional Public Prosecutor for the appellant-State. None The learned counsel for the respondent/accused remained absent. With the assistance of learned A.P.P. I have gone through the entire record of the case. The learned APP contended that the impugned judgment and order is illegal and perverse inasmuch as the learned Magistrate has not considered the fact that it was the accused who had given a dash to the cycle-rickshaw wherein the deceased was travelling and has not considered the testimony of PW 1-Prasad and has erroneously acquitted the accused.
4. In the present case, the prosecution has examined only son of the deceased PW 1-Prasad, who was neither an eye witness nor he had any knowledge about the said ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:58:33 ::: CRI.APPEAL.602.03 3 incident. According to PW1-Prasad on 23.7.1999 the incident had occurred between 3.35 and 4.00 p.m. at Bajajnagar Square. One mechanic informed him about the incident. On receipt of the said information, he went to CIMS hospital. The Doctor informed him that his mother is no more. She had sustained injury on her head, whereas his grandmother also sustained injury on her left wrist and right leg.
5. According to PW1, while his mother and grandmother were coming by cycle- rickshaw from Shankarnagar to Bajajnagar, one Maruti Car bearing Registration No. MH-31 G-239 gave a dash to a cycle-rickshaw from back side. He stated that he came to know about the said fact from the Mechanic who brought his mother and grand mother to the hospital. He further stated that the said car was driven by the accused. He also mentioned the number of the Cara as MH 31 G-239. PW1 lodged his complaint (Exh.13). PW1, however, fairly admitted that he does not have any personal knowledge about the incident in question and at the time of lodging the complaint, he did not inform to the police that the incident was narrated to him by a Mechanic. It is worthwhile to note that the Mechanic as well as the Investigating officer were not examined by the prosecution. The said version of PW1 makes clear that he had no personal knowledge about the incident. He lodged the complaint against the accused on the basis of suspicion.
6. No doubt, PW1 has stated that he saw the accused in the hospital. However since there is absolutely no evidence on record to show that accident was caused by the car of the accused and she was driving the Car at the relevant time, it cannot be said that only because the accused was present in the hospital, she was the author of the said crime. In my view, the learned Magistrate has rightly acquitted the accused. There is no perversity or illegality noticed in the judgment passed by the learned trial Magistrate. The learned Judge ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:58:33 ::: CRI.APPEAL.602.03 4 has considered the case in its correct perspective warranting no interference at the hands of this Court.
7. By now, the law is well-settled in respect of the appeal against acquittal that for exercising the appellate power in the Appeal against acquittal the judgment appealed against, has to be perverse one or the view taken by the Court below is impermissible on the basis of the evidence that is brought on record. In my view, the learned Magistrate has correctly appreciated the facts brought on record by the prosecution. On re-appreciation of the entire prosecution case, I am of the view that, nothing is brought on record to upset the finding and order of acquittal passed by the learned Magistrate. Consequently, the Appeal fails and is dismissed.
JUDGE sahare ::: Uploaded on - 18/09/2017 ::: Downloaded on - 21/09/2017 00:58:33 :::