1 crap3637.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3637 OF 2011 The State of Maharashtra ...Applicant [Orig.Complainant] VERSUS Dipak Suklal Netke ...Respondent [Orig.Accused] ..... Smt. Y.M.Kshirsagar, A.P.P. for applicant Shri G.V.Wani, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9th December, 2011 PER COURT : 1 Heard respective learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order of acquittal dated 28.4.2011, rendered by the learned 7th Judicial Magistrate, First Class, Jalgaon, in S.C.C. No. 2071 of 2 crap3637.11 2008, thereby acquitting respondent (original accused) from the charges under Sections 279, 337 and 338 of the Indian Penal Code; and also under Sections 177, 134(b) and 184 of the Motor Vehicles Act, 1988. 3 I have perused the impugned judgment and order, dated 28.4.2011 with the assistance of learned counsel for the parties. 4 At the out set, the accused faced trial mainly for the afore said charges, on the allegations that he drove car bearing No. MH-19/Y-7700 at about 9.30 a.m. on 15.3.2008 on Wasadada/Mhasawad road rashly or negligently and thereby caused hurt/injury on the right hand fingers and toe of right leg as well as on waist of the complainant, namely Babulal Rathod. 5 To substantiate the said charges, the prosecution examined two witnesses, i.e. (1) Complainant-Babulal Jaising Rathod and (2) Eye witness-Pandit Amrut Patil. 6 At the out set, in the complaint, reference is to the Alto car allegedly driven by the accused, but in evidence, the said car has been referred as Indica car, which is the apparent discrepancy in the prosecution case. 3 crap3637.11 7 Pertinently, PW2 Pandit Patil, alleged eye witness, has categorically admitted in his testimony that he did not see the car driver, as well as the police personnel did not produce the accused before witness no.1 for identification purpose. Moreover, it is also significant to note that the prosecution has not examined the panch to the spot panchanama, nor examined any other independent witness to substantiate the charges levelled against the accused. Moreover, although PW2-Pandit Patil is alleged independent eye witness, since he stated that he did not see the car driver, his testimony is of no assistance to the case of the prosecution. Besides that, it is also material to note that the prosecution has not examined the investigating officer in the present case. 8 Apart from that, the prosecution has failed to prove and establish the ingredients of Section 279 of the Indian Penal Code and that the accused drove the car in question rashly or negligently on the public way so as to endanger human life or likely to cause hurt or injury to any other person i.e. the complainant. 9 In substance, the prosecution has failed to prove and establish the nexus between the injury sustained by the complainant and the accident allegedly caused by the accused due to rash or 4 crap3637.11 negligent driving on the public road, endangering the human life or to be likely to cause hurt or injury. 10 Hence, having the comprehensive view of the matter, it is apparent that after scrutinizing and analysing the record, the view adopted by the leaned Trial Court, while acquitting the accused, is a possible view and same does not appear to be perverse and the reasoning adopted therefor, apparently, cannot be faulted with, and hence, present application bears no substance, and therefore, same deserves to be rejected. 11 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused and present application is disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3637.11