1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No.2312 of 2009 . The State of Maharashtra .. Applicant (Org. Complainant) v/s. Rajaram Ramchandra Kadam ..Respondent (Org. Accused) Mrs. M.M.Deshmukh, learned APP for the Applicant State CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 13th November, 2009 P.C. : 1. Heard Mrs. Deshmukh, the learned APP. Criminal application under Section 378 (3) of Cr.P.C. seeking leave to file an appeal against the order of acquittal has been filed belatedly and hence this application for condonation of delay. 2. As per the office, the delay is of 23 days and we are satisfied that the same deserves to be condoned. 2 3. Hence the application is allowed in terms of prayer clause (a). [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.] 3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. of 2009 in Criminal Application No.2312 of 2009. The State of Maharashtra .. Applicant (Org. Complainant) v/s. Rajaram Ramchandra Kadam ..Respondent (Org. Accused) Mrs. M.M.Deshmukh, APP for the Applicant State CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 13th November, 2009 P.C. : 1. We have heard Mrs. Deshmukh, learned APP. The respondent was put on trial for the offence punishable under Section 304 of IPC in Sessions Case No.8 of 2008 and the learned Addl. Sessions Judge, District Ratnagiri, by his judgment and order dated 29.11.2008 was pleased to acquit the respondent. Hence this application under Section 378(3) of Cr.P.C. seeking leave to appeal against the order of acquittal. 4 2. The prosecution case was based on the evidence of sole eye witness by name Mrs.Ankita Mohite and she claims to be a chance witness to the incident. As per her it was the respondent whom she had seen assaulting the deceased Shri Ashok Tambe at about 50 to 60 feet away from the shed where she was sitting with her family and the deceased had fallen down and thus died. 3. The learned Addl. Sessions Judge noted that the incident had taken place on 14.5.2006 and the FIR was filed for the first time on 9.6.2006. Thus, there was a delay of 26 days. It is also clear from the admission of the sole witness that the deceased was her uncle and that the accused was not known to her. She stated that she came to know about the name of the accused subsequently and she identified him before the Court as being the very same person who had assaulted the deceased. She also admitted that at the time of the incident the deceased was drunk. The Medical Officer who was examined before the Court stated that the head injury which was the main cause of death could have occurred even by falling in a drunken condition. At the same time in her cross examination the sole eye witness admitted that she did not go to the police station on her own and on receiving the call from the police station she went there. She further stated that for the first time the police obtained her signature on one paper on which there was some narration set out in writing and as disclosed by her. She further stated that she was subsequently called on another day and she attested her signature made earlier. The trial court under these circumstances has held that the prosecution could not prove that it was the accused alone who had either assaulted or pushed the deceased on the date of incident and therefore the deceased suffered the head injury on account 5 of which he died. 4. We are satisfied that the reasoning set out by the trial court in support of the order of acquittal does not require any reconsideration at our hands and hence there is no case made out to grant leave to appeal. 5. Leave to appeal is hereby refused and the application is rejected. (R.Y.GANOO, J.) (B.H.MARLAPALLE, J.)