1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 82/2010. S T A T E (Through P.I., Porvorim Police Station, Porvorim, Bardez, Goa. … Appellant. V/s Ian Joseph Salazar, son of Luis Salazar, Resident of House No. 1088, Carona, Parra, Aldona, Bardez, Goa. . … Respondent. Mr. C. A. Ferreira, Public Prosecutor for the Appellant. Mr. A. Nachinolkar, Advocate for Respondent. Coram : A. P. Lavande, J. Judgment Dated: 31.01.2011 ORAL JUDGMENT Heard Mr. C. A. Ferreira, learned Public Prosecutor for the 2 appellant and Mr. A. Nachinolkar, learned Counsel for the respondent. 2. By this appeal the appellant-State of Goa takes exception to the judgment and order dated 31.3.2010 passed by the Asst. Sessions Judge, North Goa, Panaji in Criminal Appeal No. 5/2010 whereby the learned Addl. Sessions Judge allowed the appeal preferred by the respondents against the judgment and order dated 23.12.2009 passed by the J.M.F.C., Mapusa in Criminal Case No. 105/S/2009/F. 3. By the said judgment and order the learned Magistrate convicted the respondent for the offences punishable under Sections 279, 337 and 338 of I.P.C. and sentenced the respondent to pay fine of Rs. 1000/-, Rs. 500/- and Rs. 1000/- respectively and in default to undergo simple imprisonment for period of one month, fifteen days and one month respectively. 4. The respondent was tried for the offences punishable under Sections 279, 337 and 338 of I.P.C. And Section 134 (a) and (b) of the Motor Vehicles Act, 1988. 3 5. According to the prosecution on 21.9.2008 at around 11.00 a.m. Shivanand Volvoikar, P.w 2 was riding the motor cycle bearing No. GA-03-D-0708 and Vinay Naik, P.w.1 was the pillion rider. They were proceeding to Betim petrol pump from Brittona and the accident occurred near the church where one Pajero Jeep driven by respondent came and dashed against the motor cycle causing simple injuries to Shivanand Volvoikar and grievous injuries to Vinay Naik. After investigation, charge sheet was filed against the respondent. 6. In Criminal Case No. 105/S/09/F the prosecution examined 8 witnesses including 3 eye witness namely Vinay Naik, P.w.1, Shivanand Volvoikar, P.w.2 and Sunil Naik, P.w.3 who claimed to be eye witness turned hostile. The prosecution also examined Babu Bagewadi, P.w.4 who was witness to the scene of offence panchanama and the sketch which was drawn by the investigating officer. The prosecution examined Sarvesh Gaonkar, P.w.5, Asst. Motor Vehicle Inspector to prove the damage caused to both the vehicles, Laura D'Souza, P.w.6, Medical Officer to prove the injuries caused to both the injured, Dinesh Keluskar, P.w.7, another pancha witness and Balu Jadav, P.w.8, the investigating officer. 4 7. Upon appreciation of evidence led by the prosecution, the learned Magistrate convicted and sentenced the respondent/accused as stated above. 8. In appeal, the lower Appellate Court held that the prosecution was not successful in proving the spot of accident and there were inter se contradictions in the testimonies of the witnesses. Consequently, the lower Appellate Court acquitted the respondent/accused for the offences for which he was convicted by the learned Magistrate. 9. Having heard Mr. C. Ferreira learned Public Prosecutor for the appellant and Mr. A. Nachinolkar, learned Counsel for the respondent, I am of the considered opinion that no case is made out for interference with the impugned judgment and order. 10. No doubt, the powers of the Appellate Court in an appeal from acquittal and from an order of conviction are not different. However, it is well settled by catena of decisions of the Apex Court that unless view taken by the Court in acquitting the accused is totally 5 perverse or unwarranted, the acquittal should not be disturbed. 11. Bare perusal of the evidence of the three witnesses including the two injured witnesses disclose that none of them has stated as to how and in what manner the accident had occurred. Vinay Naik, P.w.1 who was the pillion rider and P.w.2, Shivanand Volvoikar who was riding the motor cycle at the time of the accident and who were injured in the accident did not in their examination-in- chief, state as to in what manner the accident had occurred except saying that the vehicle driven by the respondent had dashed against their motor cycle. They did not even state that the accused came on the wrong side of the road and dashed against the motor cycle driven by Shivanand Volvoikar. 12. In order to find out whether there was rashness and negligence on the part of the driver of the vehicle, it is absolutely necessary to know the exact location of the two vehicles which were involved in the accident, the width of the road and the speed at which both the vehicles were driven. In the present case the evidence of two injured witnesses itself does not disclose the manner in which the accident had occurred. Therefore, the finding of the lower Appellate 6 Court that the prosecution has not been able to establish the rashness and negligence of the accused/respondent cannot be faulted. 13. No doubt, some of the reasons given by the lower Appellate Court for acquitting the respondent/accused are not genuine, but that fact by itself would not be sufficient to reverse the order of acquittal. Since the evidence of eye witnesses itself does not establish the rashness and negligence of respondent/accused, I do not deem it necessary to refer in detail the other corroborative evidence led by the prosecution through the panchas, investigating officer and the medical officer. 14. In view of the above, I am of the considered opinion that this is not a fit case in which acquittal of the respondent/accused for the offences for which he has been acquitted by the lower Appellate Court deserves any interference by this Court having regard to the settled principles of law. 15. In the result, the appeal is dismissed. 16. Bail bond executed by the respondent/accused shall stand 7 discharged. A. P. LAVANDE, J. MF/-