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2019 Supreme(Bom) 1814
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
V.K. Jadhav, J.
Yogeshear - Appellants
Vs.
The State of Maharashtra - Respondent
Criminal Revision Application No. 12 of 2018 and Criminal Application No. 991 of 2018
Decided On : 15-04-2019
For the Appellant :Kuldeep S. Kahalekar h/f N.S. Ghanekar, Advocate
For the Respondents: R.V. Dasalkar, APP.
Headnote:
Maharashtra Medical Practitioners Act, 1961 - Section 33(2) (a) – Indian Penal Code - Sections 354, 419, 420 and 336 – Appeal against conviction – Acquittal of order – Condo nation of delay - On basis of the report lodged by one came to be registered against applicant/accused - It has been alleged in the complaint that informant is working as a maid servant - She was suffering from arthritis and though she had taken treatment she could not get relief - She got information that from village is giving treatment for old ailments - Thus she had visited village to meet said and also taken medicine - She along with her friends had been to place of the applicant - She was called inside - Applicant had examined her and as alleged by the informant applicant outraged her modesty - Investigating Officer has carried out investigation - He has visited the spot of incident and drawn spot Exhibit - At time of drawing spot Investigation Officer has seized certain medicines which can only be prescribed by a registered medical practitioner - Investigating Officer has recorded statement of witnesses and after completion of investigation submitted charge sheet against accused – Held, Court have carefully gone through the evidence of PW 7 - It is pertinent that he has neither deposed about the description of medicines nor mentioned in detail aforesaid medicines in the certificate Exhibit - He has stated in cross examination that he cannot take name of constable who has brought to him medicines and the request letter - Said request letter has also not been produced before court - He further admitted that the police did not provide him medicine list with letter - Prosecution has utterly failed to prove that the medicines as per came to be seized from the possession of applicant/accused. Admittedly applicant/accused was doing his so-called activity in one mansion at village - Applicant/accused was not the owner of the said house - It is not clear as to wherefrom those fertilizer bags came to be seized by the police during the house search/spot - Prosecution has not examined any single witness or independent witness to substantiate the charge leveled against the accused under Section 33(2)(a) of Act of 1961 to effect that the applicant/accused has practiced allopath and given medicines which can only be given by a registered medical practitioner to the patients to whom he has examined - Investigation Officer has not sealed the said medicines - It is also not clear as to which medicine has been sent to PW 7 - Even the list of medicines is not sent along with the letter - Even letter issued by Investigating Officer has also not been produced before the court – Consequently nobody including PW 7 is knowing about the description of said medicines and brand names etc of the said medicines - In the backdrop of such evidence impugned judgment and order of conviction passed by the courts below cannot be sustained - Though the applicant has preferred this Criminal Revision Application against judgment and order of conviction passed by the courts below this Court has declined to suspend sentence and as a result thereof applicant is in jail - Criminal Revision Application is hereby allowed
JUDGMENT :
V.K. Jadhav, J.
1. The applicant, who is the original accused in R.C.C. No. 457 of 2008, has preferred this Criminal Revision Application against the judgment and order dated 02.01.2018 passed by the Sessions Judge, Parbhani in Criminal Appeal No. 45 of 2012 confirming thereby the conviction of the accused under Section 33(2) (a) of the Maharashtra Medical Practitioners Act, 1961.
2. Brief facts giving rise to the present Criminal Revision Application are as follows:
a. On the basis of the report lodged by one Padminbai Digamber Kaldate, crime no. 48 of 2008 came to be registered against the applicant/accused. It has been alleged in the complaint that the informant is working as a maid servant. She was suffering from arthritis and though she had taken treatment, she could not get relief. She got information that one maharaj (the applicant herein) from village Pokharni is giving treatment for old ailments. Thus, she had visited village Pokharni to meet the said maharaj (the applicant) and also taken medicine. On 03.07.2008, she along with her friends had been to the place of the applicant at Pokharni. She was called inside. The applicant had examined her and as alleged by the informant Padminbai, the applicant outraged her modesty. The Investigating Officer has carried out investigation. He has visited the spot of incident and drawn spot panchanama Exhibit 30. At the time of drawing spot panchanama, the Investigation Officer has seized certain medicines which can only be prescribed by a registered medical practitioner. The Investigating Officer has recorded statement of the witnesses and after completion of investigation, submitted charge sheet against the accused.
b. The trial court has framed charge against the accused for the offences punishable under Sections 354, 419, 420 and 336 of IPC and Section 33(2) (a) of the Maharashtra Medical Practitioners Act, 1961 (for short, "the Act of 1961"). The Judicial Magistrate, First Class, Court No. 8, Parbhani, by judgment and order dated 15.05.2012 in R.C.C. No. 457 of 2008, convicted the applicant/accused for the offences punishable under Sections 354, 419 and 420 of IPC and under Section 33(2)(a) of the Act of 1961 and directed to undergo the sentence as detailed in the order. Being aggrieved by the same, the applicant/accused preferred Criminal Appeal No. 45 of 2012. The learned Sessions Judge, Parbhani, by judgment and order dated 02.01.2018 in Criminal Appeal No. 45 of 2012, has party allowed the appeal, set aside the order of conviction and the sentence passed thereunder for the offence punishable under Sections 354, 419 and 420 of IPC and acquitted the applicant/accused of the aforesaid offences. However, learned Sessions Judge confirmed the order of conviction passed by the trial court under Section 33(2) (a) of the Act of 1961. Hence this Criminal Revision Application.
3. Learned counsel for the applicant submits that there is an inordinate delay of two days in filing the FIR without any explanation. Learned counsel submits that the present Criminal Revision Application has been preferred only to the extent of the confirmation order passed by the learned Sessions Judge in the appeal to the extent of the conviction recorded against the applicant under Section 33(2)(a) of the Act of 1961. Learned counsel submits that the description of the said medicine alleged to have been seized from the possession of the applicant has not been mentioned either in the panchnama or in the muddemal list. The prosecutrix Padminbai has not deposed about handing over of the medicine to the Investigating Officer at the time of lodging of the complaint or subsequent thereto. Learned counsel submits that the Investigating Officer has not sealed the said medicines allegedly seized from the possession of the applicant/accused and also not sent the said medicines or sample thereof to the Government lab. The Investigating Officer has sent those medicines to one Medical Officer attached to the Prima
