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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.646 OF 2010

Dharmendra & Anr.                        ...Appellants

                               VERSUS

State of Maharashtra                          ...Respondent  

J U D G M E N T

R.Subhash Reddy, J.

1.  This criminal appeal is filed, aggrieved by the judgment

dated 22.01.2009 passed in Criminal Revision No.10 of 2009 by

the High Court of Bombay, Nagpur Bench at Nagpur, whereby the

High Court has upheld the orders in Criminal Appeal Nos.39 and

40  convicting  the  appellants  for  offences  punishable  under

Sections 33 and 36 of the Maharashtra Medical Practitioners

Act, 1961 [for short, ‘the Act’].

2. The  appellants  herein  were  prosecuted  for  the  offences

punishable  under  Sections  33(2)  and  36(2)  of  the  Act  and

sentenced to suffer RI for two years and to pay a fine of

Rs.2,000/-.   It  is  the  case  of  the  prosecution  that  the

appellants herein were doing medical practice in their clinic

at Hansapuri Road at Nagpur.  It is alleged that they were not

holding any degree or diploma to do medical practice and they

were also not having any certification for doing such practice

under  the  provisions  of  the  Act.   It  is  alleged  that  on

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receiving  the  information,  Police  Sub-inspector  Kamalnayan

attached to Tahsil Police Station on 16.04.2004 at about 5:00

p.m. sent the punter PW-6 Yamuna Prabhakar Dekate to the clinic

of the appellants herein and they have treated the injuries

suffered by the said punter and applied bandage by receiving an

amount  of  Rs.50/-.   The  said  Yamuna  Prabhakar  Dekate  was

examined as PW-6.  Further, it is the case of the prosecution

that PW-9 – Kamalnayan – along with the police staff raided the

said clinic of the accused and the accused was found with PW-6

Yamuna Prabhakar Dekate.  During the raid, one of the employees

PW-8  –  Sangita  was  found  in  the  clinic.   The  prescription

alleged to have been given by the appellants was seized under

the  seizure  panchnama  being  Ex.32.   Thereafter  PW-9  –

Kamalnayan  –  lodged  a  report  under  Ex.39  at  Tahsil  Police

Station.  On the basis of that report, FIR Ex.40 was prepared

and Crime No.3143 of 2002 was registered against the appellants

herein for offences punishable under Sections 33 and 36 of the

Act.

3. For the aforesaid offences, the appellants were tried by

the court of JMFC, Nagpur and on behalf of the prosecution, 9

witnesses were examined and documentary evidence was adduced.

The trial court, i.e., Judicial Magistrate First Class, Court

No.4, Nagpur, by judgment dated 16.04.2004, convicted both the

accused and sentenced them to undergo RI for two years and also

to pay a fine of Rs.2,000/- for the offence punishable under

Section 33(2).  They were further sentenced to pay a fine of

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Rs.1000/- for the offence punishable under Section 36(2) of the

Act.

4.  Aggrieved  by  the  above  said  conviction  and  sentence

imposed,  the  appellants  herein  have  filed  appeals  being

Criminal Appeal Nos.39 and 40 of 2004 before the appellate

court,  i.e.,  Additional  Sessions  Judge,  Nagpur,  who,  by

judgment dated 24.12.2008, dismissed the appeals.  As against

the dismissal of the appeals, the appellants carried the matter

by way of Criminal Revision No.10 of 2009 which also ended in

dismissal by order dated 22.01.2009 passed by the High Court of

Bombay, Nagpur Bench.

5. We have heard the learned counsel for the appellants and

also  the  learned  counsel  appearing  for  the  State  of

Maharashtra.

6. Among the other witnesses, the prosecution has examined

Ramesh PW-1, occupant of a shop in front of the appellants’

clinic;  Deepika  PW-3  -  daughter  of  the  landlord;  Prashant

PW-4 - son of the landlord; Mohd. Shafi PW-5, owner of the

neighbouring shop and Sangita PW-8, employee engaged by the

appellants in their clinic.

7. In their deposition, PW-5 Mohd. Shafi and PW-8 Sangita,

have deposed that the appellants used to practice medicine in

their  clinic.   The  trial  court,  mainly  relying  upon  the

evidence of Yamuna Prabhakar Dekate (PW-6) and the documentary

evidence, i.e., prescription chit being Ex.32, held that the

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prosecution has proved the guilt of the appellant-accused on

the practice of medicine without possessing valid degree or

diploma or permission from the Maharashtra Government and held

that they are liable for punishment for the sections they were

charged with.

8. According to the appellants, they are running a medical

shop with valid licence in the premises.  According to them

there was a dispute between them and the landlord with regard

to eviction of the appellants from the premises where they were

running medical shop.  It is the case of the appellants that at

the  behest  of  the  landlord  a  false  case  has  been  foisted

against the appellants in order to evict them.

9. Learned counsel for the appellants has contended that the

evidence  of  the  accused-appellants  has  not  been  properly

appreciated by the courts below and the findings, recorded by

the trial court as affirmed by the appellate court and the High

Court, are perverse and run contrary to evidence on record.

10. On  the  other  hand,  learned  counsel  appearing  for  the

respondent-State has submitted that, the appellants have been

practicing in Medicine posing themselves as doctors, without

possessing valid degree and/or licence, as contemplated under

the provisions of the Act.  As such, having regard to the oral

and documentary evidence on record, the trial court has rightly

convicted  the  appellants  and  imposed  the  sentence,  same  is

confirmed by the appellate court and the High Court.  It is

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submitted that in view of the concurring findings, there is no

good ground made out by the appellants warranting interference

with  the  judgment  of  the  trial  court,  as  confirmed  by  the

appellate court and the revisional court.

11. Having  heard  learned  counsel  for  the  parties,  we  have

perused the judgment of the trial court, as confirmed by the

appellate and the revisional court and other material placed on

record.

12. Though the prosecution has examined number of witnesses,

the key witness is Yamuna Prabhakar Dekate who was examined as

PW-6 and who is the pointer witness.  In her evidence, Yamuna

Prabhakar Dekate has stated that when she was passing on the

road of Gandhi Bagh, police called her to be a panch witness

and  also  told  her  that  they  wanted  to  apprehend  the  bogus

doctor.  According to PW-6, the Police asked her to go into the

said hospital/clinic of the appellants.  She has further stated

that she went to the clinic and found that Shweta appellant-

accused no.2 was sitting there.  She has further stated in her

deposition that when she told appellant-accused no.2 that she

has  some  injury,  Shweta  appellant-accused  no.2  applied  some

medicine on her hand and also applied bandage to her injury by

receiving an amount of Rs.50/- towards the fees and gave the

prescription chit being Ex.32.

13. If we closely consider the deposition of PW-6, in her

cross-examination, she has stated that she had no injury on her

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hand.  When she was not having any injury on her hand, it is

unbelievable that the appellant-accused no.2 would still apply

medicine on her and also put bandage.  It is pertinent to note

that even prescription chit Ex.32 which is stated to have been

issued by the appellants has not been proved in accordance with

law. In the seizure panchnama prepared for seizure of Ex.32 the

seizure memo does not contain name of the medicine said to have

been applied to the hand of PW-6 nor was the bandage seized.

14. In the cross-examination of Ramesh PW-1, a suggestion was

put  to  him  that  he  was  deposing  at  the  instance  of  his

landlord, by name, Shobha Suryawanshi with whom appellants had

a  dispute  with  regard  to  their  tenancy.   Rajesh  PW-2  is

declared hostile.  Deepika PW-3 is none other than the daughter

of the landlord.  Prashant PW-4 is none other than the son of

the landlord.  In the cross-examination, a suggestion was put

to PW-3 and PW-4 that they are deposing against the accused in

view of the dispute about the tenancy of the shop which the

accused had taken on rent for running medical shop.  Further,

Deepika PW-3 stated in clear terms that the accused never told

her that the appellants were practising as doctors.  Further,

Mohd. Shafi PW-5, in his cross-examination, has admitted that

the board, put up by the accused-appellants, of the clinic was

displayed as a bone setter.

15. In our considered view, the evidence of Yamuna Prabhakar

Dekate PW-6 who was just a passerby and was called by the

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police as a pointer witness, does not inspire confidence and

the conviction of the appellants ought not have been based on

such evidence.  Further, in the depositions of other witnesses

there are material contradictions.  By considering the totality

of the evidence and the material on record, we are of the view

that, the guilt of the appellants has not been proved beyond

reasonable doubt and they are entitled to benefit of doubt.  As

we are of the view that the findings recorded by the courts

below run contrary to the evidence on record, the impugned

judgment  is  liable  to  be  set  aside.   Accordingly,  the

conviction  recorded  and  sentence  imposed  on  the  accused-

appellants is hereby set aside and this appeal is allowed.

Bail bonds executed by the appellants stand discharged.

.........................J.                  [R. BANUMATHI]

.........................J.          [R. SUBHASH REDDY]

New Delhi. February 06, 2019.