:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.546 OF 2002 CRIMINAL APPEAL NO.546 OF 2002 CRIMINAL APPEAL NO.546 OF 2002 The State of Maharashtra ...Appellant. v. Ankush Pandurang Dange R/o.123, New Timber Market, Pune. ...Respondent. Mr.Y.M.Nakhawa , APP for the Appellant/State. None for the Respondent. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 12th March, 2009. DATE: 12th March, 2009. DATE: 12th March, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The Appellant/State takes objection to the order dated 18.12.2000 passed by the J.M.F.C. Court No.4, Pune recording the respondent’s acquittal for the offences punishable under Sections 279, 338 of the Indian Penal Code and Under Section 177 read with 119 and 3, 11 of the Motor Vehicle Act. 2. Prosecution case in short is as follows: . On 8.12.1994 P.W.3 alongwith his wife was going by scooter bearing no.MH-14/C-3460 from Narayan Peth police Chowky to Sambhaji Bridge. At about 3.15 p.m. his scooter reached near Venkatesh tailors. One P.M.T. bus no.MHF/3123 was standing. P.W.3 was going ahead of that P.M.T. bus, at that time, bus no.MHF/3122 came :2: from backside in speed and gave dash to his scooter. Due to dash P.W.3 and his wife, P.W.4 fell down on the ground and sustained injuries. P.W.3 gave complaint to the police, which was recorded by P.W.2 at Exhibit 15. Thereafter, memorandum of panchanama of the scene of offence and map of spot was drawn at Exhibit 14 and 16 respectively. Accused/respondent was arrested. Statements of the witnesses were recorded. Charge-sheet was filed against the respondent/accused. 3. Charge was framed against the Accused/respondent under Sections 279 and 338 of the Indian Penal Code and 119, 177 read with Sections 11 and 3 of the Motor Vehicle Act. Same was explained to him in vernacular. Accused pleaded not guilty to the charge and claimed to be tried. Prosecution in order to prove guilt of the respondent examined four witnesses, namely, P.W.1 Dnyaneshwar Sanap, P.W.2 Mahadeo Chintalchere, P.W.3 Pradip Danve is the complainant and P.W.4 Pradnya Danve is the wife of the complainant. 4. The learned Magistrate on the basis of evidence led by the prosecution, concluded that the prosecution failed to establish respondent’s guilt beyond any reasonable doubt and accordingly, acquitted him. 5. Having heard the learned APP Shri Nakhawa and having gone through the evidence led by the prosecution, :3: I find no merit in the appeal. Prosecution failed to lead any evidence so far as the charge under Section 177 read with Section 119 and Sections 3, 11 of the Motor Vehicle Act is concerned. Therefore, the respondent’s acquittal for the offences under those sections can not be faulted. 6. So far as the charge for the offences punishable under Sections 279 and 338 of the Indian Penal Code is concerned, prosecution relies upon the evidence of P.W.3, Complainant and P.W.4 Complainant’s wife. Prosecution also relies upon the panchanama and map at Exhibits 14 and 16 respectively. The evidence of P.W.3 and 4 discloses that P.W.3 was driving a scooter and P.W.4 was pillion rider. P.W.3 was going from East to West. One bus bearing no.MHF/3123 was stationary on the bus-stop near Venkatesh tailors. P.W.3 while overtaking this stationary bus had come in the middle of the road and at that time a bus driven by the respondent came from backside and gave dash to the scooter driven by P.W.3. Both P.W.3 and P.W.4 testified that the respondent was driving the bus in fast speed. The learned Magistrate rightly disbelieved the evidence of P.W.3 and 4 about the rashness of the respondent as P.W.3 was sitting pillion rider and P.W.4 was facing towards the bus-stop. Besides this, P.W.3 in his statement before the police did not mention that the bus driven by the respondent/accused was coming in the fast :4: speed. Except the statements of P.W.3 and 4 that the bus driven by the respondent came in the fast speed, there is nothing on record to show that respondent was rash and negligent. As stated above, since the trial Court rightly disbelieved this statement, I find no merit in the appeal. 7. Panchanama at Exhibit 14 and Map at Exhibit 16 if perused minutely, do not support the prosecution case. Panchanama shows that the scooter was lying in front of the stationary bus no.MHF/3123 and the bus driven by the respondent was standing away from the scooter at the distance of about 6 ft. Firstly, if the dash was given by the bus driven by the respondent from backside of the scooter, the scooter is bound to lie in front of the bus driven by the respondent. Secondly, it is the prosecution case that the dash to the scooter was given from backside, in that case there would have been damage to the scooter from backside. Panchanama in this regard does not disclose any damage to the scooter from backside. Both the above circumstances rule out the possibility of dash of bus driven by the accused from backside to the scooter. 8. In my view, the trial Court has approached the matter from correct point of view . View taken by the Magistrate is a possible view. In an appeal against acquittal, it is not permissible to substitute a :5: possible view. Thus, the appeal is devoid of any substance and the same is dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)