22. cr appln 4734-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4734 OF 2010 The State of Maharashtra .. Applicant Vs Subhashrao Rambhau Gayake .. Respondent Ms. U.V. Kejariwal, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 25th OCTOBER, 2010. P.C.: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 03rd July 2010 passed by the learned JMFC, Kagal, Dist. Kolhapur in S.C.C. NO. 232 of 2009. By the said judgment and order, the respondent i.e original accused came to be acquitted of the offences under Sections 279 and 304-A of IPC and Section 184/177 of the Motor Vehicle Act. 2. The prosecution case briefly stated is that on 3rd March 2009 at about 4.45 p.m, respondent-original accused drove his tempo at Kagal Murgud Road in a rash and negligent manner and gave a dash to Jagannath who was riding his motor cycle. Jagannath sustained injury to his head and died on the spot. 1 22. cr appln 4734-10.doc 3. Charge under Sections 279 and 304-A of IPC and Section 184/177 of the Motor Vehicle Act came to be framed against the accused person to which he pleaded not guilty and claimed to be tried. His defence is that of total denial and false implication. 4. I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned JMFC. I have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned JMFC does not call for any interference. 5. In order to prove its case, the prosecution is relying on the evidence of two eye witnesses i.e PW 1 Rangrao Patil and PW 3 Appasaheb Patil. Though PW 3 claims to be an eye witness, in his cross-examination, he has admitted that he was sitting on the back side of the motor cycle, hence he could not see who was driving the tempo. He also admitted that he came to know the name of the accused from the police. As far as PW 1 is concerned, in his examination-in-chief itself, he has stated that he came to know the name of the accused as Subhash Gaike. It is pertinent to note that nowhere in his evidence, has this witness stated that 2 22. cr appln 4734-10.doc respondent was driving the said tempo. Looking to the evidence on record, I find that the conclusion arrived at by the learned JMFC is a reasonable and possible view. 6. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. I have already observed that the view taken by the learned JMFC is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. 7. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 3 22. cr appln 4734-10.doc 4