( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2213 OF 2009 The State of Maharashtra APPLICANT VERSUS Satish Manik Gite RESPONDENT ..... Mr. K.S. Patil, APP for the applicant/State. Mr. N.D. Kendre, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th October, 2009] PER COURT : 1. This is application seeking leave to appeal against the judgement of acquittal rendered in STC No. 188/2008. 2. The respondent was tried before the learned Judicial Magistrate (F.C.), Latur, in the criminal case for offences punishable under section 279 and 304A of the I.P. Code. The gravamen of the charge levelled against him is that on 19-12-2007, at about 7 p.m., he drove a motorcycle vehicle bearing registration No. ( 2 ) MH-15/AZ-3940 in rash and negligent manner so as to endanger human life and gave severe dash, as a result of such negligence, to deceased Smt. Manisha Tambare. 3. The prosecution examined six (6) witnesses in support of its case. The respondent denied truth into the charge. The learned Magistrate held that the charge was not duly proved and as such, the respondent came to be acquitted. 4. Heard learned APP Mr. K.S. Patil for the State. Mr. Kendre, advocate for the respondent, sought time as he is not prepared. The request is rejected. 5. I have gone through the record and proceedings with the assistance of learned APP Mr. Patil. The spot panchanama (Exh-13) purports to show that the motorcycle was found lying on left hand side of the road if it is considered that the same was driven from Ambajogai towards Shivaji Chowk, Latur. The learned Magistrate also noticed that the respondent had not driven the motorcycle on wrong side. It is proved that the motorcycle was found damaged and as such, the identity of the same as vehicle of accident is duly proved. The prosecution examined two (2) eye witnesses, namely, PW2 ( 3 ) Dilip and PW3 Sachin. Out of them, PW Dilip had not seen the incident while the dash was received by Smt. Manisha Tambare. He stated that he was sitting in a nearby shop and heard the sound of “thud” which indicated giving of dash. So, his attention was attracted towards the place of incident only after the deceased received dash of the motorcycle. Another eye witness did not state before the police that he had witnessed the incident. He, however, improvised version during course of his statement before the Court. There is glaring omission in his police statement regarding his being eye witness of the incident since inception. His version, even if it is to be considered, indicated that he was engaged in chitchatting with his friends and then he noticed that the motorcycle came from Ambajogai side with high speed of 70/80 kms. He narrated that the motorcycle gave dash to Smt. Manisha Tambare. His version does not show that the motorcycle was being driven in zig-zag manner, recklessly, on wrong side or otherwise negligently except that it was in high speed. Considering the material omission in his police statement and the absence of descriptive narration ( 4 ) regarding the rashness or negligent on part of the respondent, the inferences drawn by the learned Magistrate cannot be branded as invalid and improper. In this view of the matter, there is hardly any reason to interfere with the impugned judgement of acquittal. The leave to appeal is, therefore, refused. The application and the appeal are dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/criapln2213-09