The State Of Mah. The. Pso Nagpur vs Ku. Sonal Rajendra Chaudhari
2017 Latest Caselaw 7179 Bom

                                                                                                                      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
.............................................................................................................................................................

                                                                                 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,

CRI.APPEAL.602.03

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

CRI.APPEAL.602.03

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

CRI.APPEAL.602.03

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