* 1 * IN THE HIGH COURT OF hJUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 625 OF 2009 (FOR LEAVE TO APPEAL) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra ...Applicant/Orig.Complainant V/s. Suresh Pandurang Lashkare ....Respondent/Orig.Accd no.1. --------- Ms.S.V.Gajare, APP for applicant. Mr.A.B.Vagyani, adv.for respondent-original accused no.1. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 10TH AUGUST, 2009. P.C. : 1. Heard counsels for both sides. 2. By this application, the State seeks leave to appeal against the order dated 11th August, 2008 passed by the District court, Pune acquitting the respondent of the offence punishable under Section 279 and 304A IPC. 3. On 27th August, 2005 around noon, the respondent was proceeding with his dumper from Pune towards Nagar by Pune Nagar road. It is alleged that he drove the dumper at a high speed in a rash and negligent manner and while he was in front of Adarsh Petrol Pump he * 2 * gave dash to a motorcycle from behind. In the accident, the motorcyclist Ganpat fell down on the road and the front left wheel of the dumper ran over his body. Ganpat sustained several injuries and died on the way to the hospital. On the basis of the information received, Crime No.313 of 2005 was registered against the respondent for the offences punishable under Section 279, 304A, 427 IPC and Section 119 read with Section 177 Motor Vehicles Act. The prosecution examined several witnesses out of which four i.e.P.W.No.2 to P.W.No.5 were eye witnesses. It also produced information report, inquest panchanama, spot panchanama and vehicle inspection report. On considering the oral and documentary evidence, the learned Magistrate convicted the appellant of the offence punishable under Section 279 and 304 IPC. The appeal preferred against the judgment and decree to the Sessions Court, however, was allowed and the respondent was acquitted of the said offences. 4. With the help of the learned APP and the learned counsel for the respondent, I have carefully gone through both the judgments. The learned appeal court has on appreciation of the evidence of P.W.No.2 to P.W.No.5 arrived at the conclusion that none of these persons can be said to be eye witnesses. P.W.No.2 Sambhaji and P.W.No.5 Anil at the relevant time were present at Adarsh Petrol Pump and claim to have seen the incident from there. These witnesses however do not state the exact spot where they were standing, which could have enable them to see the accident. The distance between the place of the accident and the place where these two witnesses were standing, as seen from * 3 * the record and proceedings, can be anywhere from 70 to 80 feet. The petrol pump is on the right side of the road and the accident had taken place on the left side of the road with left front wheel of the dumper running over the deceased. In the circumstances, location of these two witnesses at the petrol pump becomes very relevant. In the absence of the evidence as regards the location evidence of these two witnesses cannot be accepted as that of eye witnesses. 5. P.W.No.3 at the relevant time was proceeding on his motorcycle towards Pune. He deposed that he saw the accident when he came near Adarsh Petrol Pump. The appellate court found that the witness was not a forthright witness as he was trying to adjust the timings to make his evidence believable that he was at the spot when the accident took place. The witness also admitted in his evidence that within a few seconds after the accident, several vehicles came to the spot. This indicated that there was substantial traffic on the road at the relevant time. 6. P.W.No.4 was the driver of six seater rickshaw. He deposed that the dumper overtook him and collided with the motorcycle. It means he was behind the dumper at the relevant time. The learned Sessions Court found that there was hardly any chance for P.W.No.4 to see accident. Strangely, the police had not recorded the statements of P.W.No.2 to P.W.No.5. The learned Sessions Judge also took note that there were obstructions for the vision of the witnesses throwing a doubt over their testimony. 7. The learned appellate court next found that the injuries allegedly * 4 * sustained by the deceased are not supported by post mortem report. The report of post mortem examination was not produced by the prosecution before the court. 8. I am in agreement with the opinion expressed by the lower appellate court. There is no error or illegality in the order. Hence, Application No.625 of 2009 for leave to appeal is rejected. In view of rejection of leave to appeal, the appeal also stands dismissed. [SMT.R.P.SONDURBALDOTA, J]