JUDGMENT (ORAL) Vishnu Sahai, J. - The State of Maharashtra aggrieved by the order dated 12-12-1986 passed by the Judicial Magistrate First Class, Barshi, in Regular Case No. 580/1984 acquitting the respondent under Section 304A of the Indian Penal Code, has come up in appeal before this Court. 2. The prosecution story in brief is that the deceased Prabhavati Malvatkar was named to P. W. 7 Vishnu Gundanath Malvatkar. In the year 1983 she went to her parental house in Barshi for her delivery. At Barshi her brother Ramakant Sulakhe used to reside. On 13-11-1983 she complained of labour pains with the result that her brother P.W.6 Ramakant Venkatrao Su1akhe and her mother took her to the Nursing Home of the respondent. On' the same day the respondent performed scissoring operation upon her: She was discharged from the hospital of the respondent on 23-11-1983. After about two or three days of her discharge she was taken by her husband P.W.7 Vishnu Gundanath Malvatkar to Latur. The prosecution case is that her husband lives in Latur. On 19-5-1984 she again had pains in her abdomen and was taken to the clinic of Dr. Gopal Vithalrao Patil (P.W.1). However, the pain did not subside and in the evening her husband again took her to Dr. Patil's clinic. Dr. Patil advised her husband to show her to surgical expert. Then P.W.7 Vishnu Gundanath Malvatkar took her to Dr. Mantri's clinic. From Dr. Mantri's clinic she was transferred to Civil Hospital Latur where her X-ray was taken by Dr. Jatal (P.W.4). After obtaining the X-ray from Dr. Jatal Dr. Khotkar told Vishnu Gundanath Malvatkar that' there was a scissor in the stomach of his wife and consequently she should be taken to Medical College at Ambejogai. Consequently, P.W. 7 shifted her to Medical College at Ambejogai. She was admitted in the aforesaid Medical College on 22-5-1984 and there she was first examined by Casualty Medical Officer at 3.50 a.m. At 6 a.m. on 22/5/ 1984 Dr. Jaivant Shankarrao Deshmukh (P.W.2) Head of the Department of Surgery at Medical College, Ambejogai, medically examined her. On inquiring about her history she was told by her that about 6 months ago she was operated at Barshi as a scissoring case. Dr. Jaivant Shankarrao Deshmukh (P.W.2) Head of the Department of Surgery at Medical College, Ambejogai, medically examined her. On inquiring about her history she was told by her that about 6 months ago she was operated at Barshi as a scissoring case. Dr. Deshmukh felt there was a necessity to take X-ray and consequently he took X-ray and on perusing the X-ray report, he found that there was forced in her pelvic. That X-ray report was filed in the trial court as Exhibit -17. After noticing that there was a artery forced Dr. Deshmukh thought that she needed emergency surgery and consequently he operated upon her and in the operation he found artery forced. It is alleged that the same day on which the operation was performed she met her death at Ambejogai Medical College, at 10 p.m. Dr. Deshmukh preserved the artery forced and he filed the same in the trial court the same is Exhibit-18. In the opinion of Dr. Deshmukh, the deceased died due to intestinal gangrine, secondary to hemiation caused due to eye of artery forced. 3. The postmortem examination of the dead body of the deceased was conducted on 23/5/1984 by Dr. Anil Digamberrao Jinturkar (P.W. 5). On the person of the deceased Dr. Jinturkar found the following anti-mortem injuries: i) An old scar of operation over abdomen vertical; it was present on supm pubic region, lower midline, located about 1 ½ cm. below umbilicus and upto 2 cm above pubic symphises; it was 14 cms in length, it appears to be as the result of previous abdomen surgery. ii) A recently sutured surgical wound over the abdomen slightly to the right side of the injury No. (1), vertical right paramidian incision and it was 2 cms towards right from the scar of previous operation, it was starting 5 cm above umbilicus and was extending lower down upto symphises pubic. It was 20 cm in length. It seems to be surgical injury because of recently done abdominal surgery, i.e. exploratory laproaotomi operation. iii) A transverse sutured surgical wound over right ankle just 1 cm above the medial malleolus, it was 4 cms in length. It appears to be due to venisection procedure. iv) A transversed sutured surgical wound over left ankle just 112 cm. above Medial Malleous, it was 4 cms in length. It appears to be due to vene section procedure. iii) A transverse sutured surgical wound over right ankle just 1 cm above the medial malleolus, it was 4 cms in length. It appears to be due to venisection procedure. iv) A transversed sutured surgical wound over left ankle just 112 cm. above Medial Malleous, it was 4 cms in length. It appears to be due to vene section procedure. v) There were to small surgical vents with corrugated rubber drains at flank of abdomen over right and left illiace fossae. According to Dr. Jinturkar the probable cause of the death of the patient was shock due to septicemia as a result of perforation peritonitis and gangrine of the small intestine due to obstruction along with appendicular perforation. 4. P.W.3 Bansidhar Dudhajirao Ingole lodged an F.I.R. under Section 304A I.P.C. at Police Station Ambejogai but as the relevant Police Station was Police Station Barshi, the papers were transferred from Police Station Ambejogai to Police Station Barshi, on 24/5/1984. Exhibit 21 is the General Diary Entry of Police Station Barshi pertaining to the registration of the case. 5. The investigation of the case was taken over by P.I. Janardan Shripad Bhide (P.W. 9) of Police Station Barshi. On 26-5-1984, he collected dying declaration of the deceased from P. S. I. Patil of Ambejogai Police Station. I may mention that this dying declaration has not been exhibited in the instant case. On 31-5-1984, P.W. 9 recorded the statement of Dr. Deshmukh. On 14-6-1984 he recorded the statement of Dr. Patil. On 18-6-1984 he recorded the statements of Dr. Mantri and Dr. Jatal. Thereafter, he submitted the charge-sheet. In the trial court a charge under Section 304A IPC was framed against the respondent to which he pleaded not guilty and claimed to be tried. The respondent admitted having operated upon the deceased but categorically stated that the artery forced taken out during the surgery by Dr. Deshmukh was not left by him in the abdomen of the deceased after performing her surgery. In the trial court respondent also filed his written statement and that was to the effect that in between operation performed by him and that performed by Dr. Deshmukh, another operation was performed on the deceased and the artery forced may have been left in that operation. 6. In the trial court respondent also filed his written statement and that was to the effect that in between operation performed by him and that performed by Dr. Deshmukh, another operation was performed on the deceased and the artery forced may have been left in that operation. 6. In the trial court a large number of witnesses, including the aforesaid 4 doctors, husband of the deceased, brother of the deceased and the aforesaid police witnesses were examined. The learned Trial Magistrate after the completion of the evidence heard the submissions of counsel from both sides and came to the conclusion that the prosecution has not been able to establish its case against the respondent beyond reasonable doubt and consequently acquitted the respondent. It is that acquittal which has been challenged in this appeal. I have heard Mr. Vaidya Ld. Addl. Public Prosecutor for the State of Maharashtra and Mr. M.A. Rane assisted by Mr. Nitin Jamdar for the respondent, at considerable length. I have also gone through the depositions of the witnesses recorded in the trial court perused the various exhibits on which the prosecution places reliance and the impugned judgment. After giving my anxious consideration to the matter. I am of the opinion that this appeal must fail. 7. Before embarking on giving the reasons as to why this appeal deserves to be dismissed I would first briefly like to setout the scope of interference by this Court in an Appeal against acquittal. Through a catena of decisions of the Judicial Committee of Privy Council as well as those of the Apex Court, the legal position which has crystallised is thus - the Code of Criminal Procedure makes no difference between the powers of this Court in an appeal against acquittal from that in an appeal against conviction but interference in an appeal against acquittal should only be made where the order of acquittal is patently perverse or results from a wholly unreasonable appreciation of evidence or is based on an erroneous view of law. See Khedu Mohton v. State of Bihar1 and, Totaram and another v. The State of Punjab2. The judicial Committee of the Privy Council observed in the case reported in, Sheo Swar.up v. The King Emperor3, that benefit of all doubt has got to go to the accused. See Khedu Mohton v. State of Bihar1 and, Totaram and another v. The State of Punjab2. The judicial Committee of the Privy Council observed in the case reported in, Sheo Swar.up v. The King Emperor3, that benefit of all doubt has got to go to the accused. It is in the aforesaid legal background that I propose examining whether the view of acquittal taken by the trial court could have been taken. 8. The crucial question is as to whether in the instant case only two operations were done or three operations were done. If only two operations were done; the first by the respondent and the second by Dr. Deshmukh who during the course of which took out the artery forced the only possible inference would be that it was the respondent who while performing the first operation left the artery forced in the abdomen of the deceased. Consequently the respondent would be liable to be punished for the offence punishable u/s 304A I.P.C. On the other hand, as is the contention of the respondent and that of his counsel, if three operations were done; the first by the respondent, the second which the prosecution is suppressing and the third by Dr. Deshmuk the possibility of artery forced being left in the abdomen by the surgeon performing the second operation cannot be examinated and, therefore, the respondent should get the benefit of doubt. 9. I now propose answering the aforesaid question. Admittedly injury No. (1) "An old scar of operation over abdomen verticle; it was present on supra pubic region, lower midline, located about 1½ cm below umbilicus and upto 2 cm above pubic sysmphises; it was 14 cms in length, it appears to be as the result of previous abdomen surgery was the result of the operation of the respondent. The scar was 14 cm in length. 10. Dr. Deshmukh, P.W.2 in his statement in the trial court stated in paragraph 2 that "while doing the operation I have opened the abdomen by the same incision, by which it was opened at the time of previous operation. The scar of the previous operation was about 2½ inches to 3 in length. 10. Dr. Deshmukh, P.W.2 in his statement in the trial court stated in paragraph 2 that "while doing the operation I have opened the abdomen by the same incision, by which it was opened at the time of previous operation. The scar of the previous operation was about 2½ inches to 3 in length. Injury No.2 a recently sutured surgical wound over the abdomen slightly to the right side of the injury No. (1), vertical right paramidian incision and it was 2 cms towards right from the scar of previous operation, it was starting 5 cm above umbilicus and was extending lower down upto symphises pubic. It was 20 cm in length. It seems to be surgical injury because of recently done abdominal surgery, i.e. exploratory laproaotomi operation was the result of the operation performed by P.W.2 Dr. Deshmukh. This injury was 2 cm towards right from the scar of the previous operation (injury No.1) A perusal of the above-quoted passage from the statement of Dr. Dehmukh would show: (i) that he opened the abdomen by the same incision by which it was opened at the time of the previous operation; and(ii) the scar of the previous operation was 2 ½ inches to 3" in length. 11. The fallout from the facts mentioned above is that Dr. Deshmukh did not operate on the old scar mentioned as injury No. (1) in the postmortem report but it was on a scar resulting from another operation. I say this for the following reasons: (i) the incision of injury No. 2 is 2 cms from the old scar i.e. scar mentioned in injury No.1; and (ii) Dr. Deshmukh stated that the scar of the previous operation was two and half inches to 3 inches in length (about 7 cm in length) whereas the old scar i.e. scar mentioned in injury No.1 was 14 cms in length. 12. It appears that in between the operations performed by the respondent and Dr. Deshmukh another operation was performed the scar of which was 2 cms away from the scar of the operation performed by the respondent and that scar was about 2 ½ inches to 3 inches in length (7 cms). It was on this scar that Dr. Deshmukh operated. It appears that in between the operations performed by the respondent and Dr. Deshmukh another operation was performed the scar of which was 2 cms away from the scar of the operation performed by the respondent and that scar was about 2 ½ inches to 3 inches in length (7 cms). It was on this scar that Dr. Deshmukh operated. Once it is established that three operations were done or there was even a likelihood of there being done the benefit of doubt has got to go to the respondent for the possibility of artery forced being left in the abdomen of the deceased during the course of third operation cannot be ruled out. 13. For the aforesaid reasons the view of the learned Magistrate that probably 3 operations were done cannot be said to be unreasonable. 14. Mr. Vaidya, learned Additional Public Prosecutor vehemently contended that the evidence of the prosecution witnesses was of a reliable nature and fixes the guilt of the respondent beyond reasonable doubt. He contended that the impugned order of acquittal is a perverse one. Mr. Vaidya submitted that in the trial court on behalf of the respondent it was not suggested to either Dr. Deshmukh or to P.W. 7 Vishnu Gundanath Malvatkar, the husband of the deceased that three operations were done and in the absence of such a suggestion the defence of three operations was not open to the respondent. I am afraid that such a submission is not legally tenable. In Criminal Cases the burden is always on the prosecution to prove its case beyond reasonable doubt. It could have discharged that burden by establishing beyond reasonable doubt that only two operations were done. That burden the prosecution has failed to discharge in the instant case. 15. As the prosecution has not been able to eliminate the possibility of a operation taking place in between the operations performed by the respondent and Dr. Deshmukh, the possibility of the artery forced being left in the abdomen of the deceased during the course of that operation cannot be ruled out. Hence, in my opinion, the view of the court below acquitting their respondent is reasonable and calls for no interference. This Appeal deserves to be dismissed. 16. In the result this appeal is dismissed and the acquittal of the respondent is confirmed. Appeal dismissed, Judgment of acquittal sustained. 1. AIR 1971 SC 66 . Hence, in my opinion, the view of the court below acquitting their respondent is reasonable and calls for no interference. This Appeal deserves to be dismissed. 16. In the result this appeal is dismissed and the acquittal of the respondent is confirmed. Appeal dismissed, Judgment of acquittal sustained. 1. AIR 1971 SC 66 . 2. AIR 1987 SC 1083 3. AIR 1934 Privy Council 227.