Heard Mr. Rivonkar, learned Public Prosecutor for the appellant and Mr. Mashelkar, learned Counsel for the respondent.

2. This appeal is directed against the judgment and order dated 25/11/2009 passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No.102/06/D/C acquitting the respondent of the offences punishable under Sections 279 and 338 of I.P.C.

3. Briefly, the facts leading to filing of the appeal are as under: On 19/10/2005 at about 13.10 hours at Zuari, Goa Velha on National Highway no.17, the accused drove his Maruti Van bearing registration no.GA01-T-6603 in rash and negligent manner while proceeding from Margao to Panaji and when he reached near Zuari bridge, Goa Velha on National Highway no.17 while attempting to overtake another vehicle, dashed against motorcycle bearing registration no.GA02-H-4458 driven by PW2 -Dipesh Shah causing grievous injuries to him. Both the accused and PW2 sustained injuries and they were taken to Goa Medical College and Hospital at Bambolim where the First Information Report of PW2-Dipesh Shah was recorded on the same day. Thereafter, panchanama of the scene of offence was conducted in which PW1-Nitin Nevrekar was one of the panchas. The vehicles were inspected by Assistant Motor Vehicle Inspector PW4-Francis Vaz. Investigation was carried out by PW5-Arjun Gavas. After completion of investigation, chargesheet was filed in the Court of Judicial Magistrate, First Class, Panaji.

4. In Criminal Case No.102/06/D/C, the prosecution examined five witnesses namely PW1-Nitin Nevrekar-panch witness, PW2-Dipesh Shah-the complainant, PW3Waman Naik-the record keeper, PW4-Francis Vaz -Assistant Motor Vehicle Inspector and PW5-Arjun Gavas-the Investigating Officer. The statement of the accused under Section 313 of Cr.P.C. was recorded. The accused did not lead any evidence. The defence of the accused was that PW2-Dipesh himself was rash and negligent and was responsible for the accident.

5. It was also his case that PW2 drove his motorcycle on wrong side and came towards the Maruti Van driven by the accused and the accused applied brakes before crossing the dividing line of the road but the PW2 gave dash by his motorcycle. Learned Magistrate, upon appreciation of the evidence, held that rashness and negligence on the part of the accused, was not proved and consequently, acquitted the respondent/accused of the offences for which he was tried.

6. Mr. Rivonkar, learned Public Prosecutor appearing for the appellant submitted that the findings recorded by learned Magistrate, are perverse and are patently unsustainable in law. He further submitted that the evidence of PW2-Dipesh Shah who was driving the motorcycle is clinching and the same has not been shaken in the cross-examination and, therefore, the finding of acquittal recorded by learned Magistrate, is patently unsustainable in law. Learned Public Prosecutor further submitted that the evidence of PW2 stands corroborated by the scene of offence panchanama exhibit C-8 which has been duly proved by PW1-Nitin Nevrekar. According to learned Public Prosecutor, the evidence of these two witnesses and that of the Investigating Officer PW5-Arjun Gavas clearly establishes that it was the accused who was rash and negligent in driving the Maruti van and he came on wrong side of the road and dashed against the motorcycle which was on right side.

7. Per contra, Mr. Mashelkar, learned Counsel appearing for the respondent/ accused supported the impugned judgment and order, and submitted that the findings recorded by learned Magistrate, are borne out from the evidence on record and the evidence of PW2-Dipesh Shah contradicts the sketch. Learned Counsel, therefore, submitted that the view taken by learned Magistrate is a probable view and, therefore, having regard to the settled principles governing interference in appeal against the acquittal, no interference is warranted with the judgment and order of acquittal. In support of his submissions