IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.163 OF 2011 Ananda S/o.Sukhdeo Bhagat, Age-37 years, Occu-Driver, R/o.Village Shendi, Tq. and Dist. Ahmednagar APPLICANT VERSUS The State of Maharashtra Through Shrirampur City Police Station, Ahmednagar, Dist. Ahmednagar RESPONDENT Mr.S.S.Deshmukh, learned counsel for the applicant. Mr.S.G.Nandedkar, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 22/08/2011 PER COURT : 1. This criminal revision application is an exception to the general rule in which the correctness of the order passed by the learned Sessions Judge, Ahmednagar in Criminal Appeal No.69/2005 was questioned. Cri.Appeal No.69/2005 was allowed and the matter was remanded back to the Trial Court with directions to examine Sunil Madne, the eye witness and the Investigation Officer and after recording of their evidence, the Trial Court was directed to examine the applicant/accused afresh u/s. 313 of the Cr.P.C. and then to deliver the judgment in accordance with Law. 2. I have heard learned counsel Shri.Deshmukh for the applicant followed by the submissions of learned A.P.P. Shri.Nandedkar for State. The applicant was convicted by learned J.M.F.C. Rahuri in STC No.346/2003 vide its judgment and order dated 10/06/2005 for an offence punishable u/s. 304-A of the IPC and was sentenced to suffer SI for 3 months and to pay fine in the sum of Rs.700/- with default stipulation to undergo further SI for 20 days. The applicant was also convicted for an offence punishable u/s. 279 of the IPC and was sentenced to suffer SI for one month and to pay fine in the sum of Rs.200/- with default stipulation to undergo further SI for 7 days. The applicant was further convicted for the offence punishable u/s. 134-A and 134-B of the Motor Vehicles Act and sentenced to pay fine in the sum of Rs.100/- each, in default to suffer SI for 2 days for each offence. This order of conviction was challenged before the learned Sessions Judge, Ahmednagar in Criminal Appeal No.69/2005. It was brought to the notice of the First Appellate Court that to prove the charge against the applicant, the prosecution has examined one Dipak Mhetre as an eye witness, who was in fact not an eye witness to the incident. It is also brought to the notice of the First Appellate Court that at the time of incident, deceased was proceeding on the motor cycle with his friend by name Sunil Madne. During investigation, statement of Sunil Madne was recorded by the Police, but was not examined by the prosecution for whatever reasons best known to the prosecution. The witness, who was examined by the prosecution was riding on his motor cycle while the deceased and the alleged eye witness Sunil were on their motor-cycle. The case of the prosecution was that the deceased expired during the accident due to dash given by truck bearing no.MH-12-UP-5081 which was in excessive speed and was overtaking another truck. To prove the contradictions and omissions, the Investigation officer was also not examined before the Trial Court. 3. In para no.7 of the judgment of the First Appellate Court, it is observed that the eye witness, who was the only person having knowledge about the alleged accident, was not examined by the prosecution. Non examination of the alleged eye witness Sunil Madne and the Investigation Officer is fatal to the case of the prosecution and as they were not examined. the facts were not clearly brought on record, which resulted in conviction of the applicant. 4. Learned counsel appearing for the applicant would urge that the observations of the First Appellate Court are in excess than the jurisdiction vested with the Appellate Court in remanding the matter back to the Trial Court. Per contra, learned A.P.P. supports the judgment of the First Appellate Court. Perusal of the judgment of the First Appellate Court clearly indicates that the order of remand was passed on the ground of non examination of the material eye witness and the investigation officer, who might have brought true and correct facts on record as to how the incident had occurred. Considering the aspect that the Appellate Court, in its Appellate jurisdiction, has every right to remand the matter back to the Trial Court with the directions to examine the particular witnesses, who may bring true and correct facts on record and then to dispose of the trial in accordance with Law. Here, it is to be noted that the First Appellate Court had set aside the conviction recorded by the Trial Court and then the matter was remanded back to the Trial Court with certain directions. According to me, the First Appellate Court had exercised its discretion by taking proper care, and passed the order of remand judicially and not arbitrarily Considering these aspects, the First Appellate Court is not at fault while passing the order. Revision application, being sans merits, rejected at the stage of admission. (A.V.POTDAR, J.) khs/AUG.2011/cri.rev.163-11