- 1 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.100173 OF 2017 (A-) BETWEEN: 1. THE STATE OF KARNATAKA REPRESENTED BY PSI, LOKAPUR P.S., TAL: MUDHOL, DIST: BAGALKOT, THROUGH ADDL. STATE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, DHARWAD. BENCH. …APPELLANT (BY SRI. JAIRAM SIDDI, HCGP) AND: 1. SRI. MALLAPPA S/O HANAMAPPA KOTTAL, AGE: 36 YEARS, OCC: DRIVER, R/O: KADABI SHIVAPUR, TAL: SOUNDATTI, DIST: BELGAUM. …RESPONDENT (BY SRI. SHIVAKUMAR APARAJ FOR SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.07.2016 PASSED BY THE LEARNED 1ST ADDITIONAL AND SESSIONS JUDGE, JAMKHANDI IN CRIMINAL APPEAL NO.105/2013 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.07.2016 PASSED BY THE LEARNED IST ADDL. DISTRICT AND SESSIONS JUDGE, JAMAKHANDI IN CRIMINAL APPEAL NO.105 OF 2013 AND TO CONFIRM THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE TRIAL COURT IN C.C.NO.222 OF 2007 DATED 29.08.2013 PASSED BY THE IST ADDL. JMFC, MUDHOL. THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED ON 21.11.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI CAV JUDGMENT (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This appeal filed under Section 378(1) and (3) of the Code of Criminal Procedure (for short, ‘Cr.P.C’), is by the State challenging the judgment passed by the Sessions Court acquitting the respondent/accused, by reversing the - 3 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 judgment and order of conviction and sentence imposed by the Trial Court for the offences punishable under Sections 279, 337, 338, 304(A) of IPC and Section 187 of IMV Act. 2. For the sake of convenience parties are referred to by their ranks before the Trial Court. 3. A charge sheet came to be filed against the accused for the offences punishable under Sections 279, 337, 338, 304(A) of IPC and Section 187 of IMV Act, alleging that on 15.06.2006 at about 11.00 a.m., accused being the driver of Tipper bearing Reg.No.KA-24/2155 (offending vehicle for short), with 39 passengers, drove the same from Akki Sagara to Kadarkoppa, in a rash or negligent manner and dashed against a Neem tree. As a result of the accident, the passengers sustained injuries and out of them five persons died on the spot and three others succumbed to the injuries while undergoing treatment at the hospital. - 4 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 4. Accused pleaded not guilty and claimed trial. 5. At the Trial, PW1 to 37 are examined, Ex.P1 to 94 and MO.1 to 8 were marked on behalf of the prosecution. 6. During his statement under Section 313 of Code of Criminal Procedure, accused denied the incriminating evidence lead by the prosecution. 7. In fact accused has lead defence evidence by examining himself as DW1 and got marked Ex.D1. 8. The Trial Court convicted the accused and sentenced him as detailed in the order. 9. Accused challenged his conviction and sentence before the Sessions Court in Criminal Appeal No.105/2013. Vide the impugned judgment and order, the Sessions Court allowed the appeal and acquitted the accused. 10. Challenging the same, State has come up with this appeal contending that the impugned judgment and - 5 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 order is contrary to law, facts and evidence on record. It is liable to be set aside. PW1 is an eye witness and clearly stated that accused was the driver of the offending vehicle and drove the same in a rash or negligent manner resulting in the accident. His evidence is corroborated by PW14 who is also an eye witness and injured in the said accident and identified the accused as the driver of the offending vehicle. PWs.15 to 19, 21 to 23 are also eye witnesses and injured. They have spoken about the rash or negligent driving of the offending vehicle by the accused. Strangely the Sessions Court has discarded testimony of these witnesses without providing any reasons, resulting in miscarriage of justice. Merely because some of the witnesses have not fully supported the prosecution case on certain aspects, their evidence cannot be discarded in entirety as per Section 154(ii) of Indian Evidence Act. 10.1. Though the Sessions Court has stated that the evidence of prosecution witness consists of - 6 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 contradictions, omissions and improvements, but failed to point out the same. The Sessions Court has also discarded the evidence of these eye witnesses who are also injured on the ground that they did not specially state the speed with which the offending vehicle was driven, which is not a valid ground. The Sessions Court has also observed that the investigating officer has failed to consider that the offending vehicle is a goods vehicle carrying coolie workers, which is not a ground to discard the evidence lead by the prosecution. While upsetting the findings of the Trial court, the Sessions Court has not assigned any valid reasons and hence the appeal. 11. On the other hand, learned counsel for accused supported the impugned judgment and order and sought for dismissal of the appeal. 12. Heard the arguments and perused the records. 13. Broadly stated the Sessions Court has upset the well reasoned judgment of the Trial Court on the following points: - 7 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 i) The complainant has stated that he do not know when his signature was taken to the complaint. ii) Around 15 witnesses have turned hostile, only some of the witnesses have stated that accused was the driver of the offending vehicle. iii) Some of the witnesses who are sitting in the body of the vehicle have stated that there was brake failure due to which accident took place. iv) Witnesses have not stated the speed with which offending vehicle was being driven. v) PW-37 who is the motor vehicle inspector has stated in his examination-in-chief that accident occurred due to the mechanical defect of the vehicle. But during cross- examination, he has denied suggestion to that effect. 14. Now it would be necessary to examine whether the findings of the Sessions court are consistent with the evidence on record. The testimony of the prosecution witnesses is required to be examined in the light of the defence taken by the accused. - 8 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 15. It is pertinent to note that PW-27 Bhimappa Jogi is the owner of the offending vehicle. His evidence reveal that at the relevant point of time he was owning Eight Tipper Lorries and they were driven by separate fixed drivers. He has specifically stated that accused was the driver of the offending vehicle bearing registration No.KA-27-2155 and on the date of accident, also, he was the driver of the said vehicle. PW27 is not an eye witness to the incident, but during his examination-in-chief, he has stated that he came to know that due to brake failure, accident has taken place. In fact during his cross examination by the defence, he has admitted that he was not having personal knowledge about the cause of accident. A suggestion is also made to him by the defence that for every tipper lorry, he was having different drivers and cleaners which he has admitted. Though he has stated that his Manager used to look after the management of the said vehicles and arrange for the drivers and cleaners, no suggestion is made to this witness - 9 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 by the defence that on the date of accident, accused was not the driver of the offending vehicle. 16. It is also pertinent to note that the persons who were travelling in the Tipper lorry when the accident took place were no other than the persons who were working under PW-27 as the labourers. PW-27 has clearly stated that one Narayana Tikale was the person who used get the labourers for him. This piece of testimony of PW-27 is not disputed by the accused. PWs-1, 14 to 24 are the eye witnesses and injured. They were travelling in the offending vehicle when the accident took place. 17. Having regard to the fact that PW1, 14 to 24 were injured in the said accident supports the prosecution case that they were present at the place of incident when the accident took place and have witnessed the accident. Being regular workers of PW-27, they were knowing and seen the accused as the driver of the offending vehicle. During their cross examination, when suggested that accident was caused due to brake failure, some of them - 10 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 have stated that after the accident, some people were saying that accident was due to brake failure, but they have stood to their ground and specifically stated that accused was driving the Tipper in a rash or negligent manner and caused the accident. 18. Their evidence is supported by the testimony of PW-27 owner of the offending vehicle, who is also having a fleet of Tippers and in fact, accused has made suggestions to him that every Tipper used to be driven by specific driver. Though he has admitted the suggestion made by the accused that his Manager was taking care of the Tippers and he was knowing as to which tipper was driven by which Driver, the accused has not made any suggestion to PW-27 that he was not the driver of the offending vehicle when the accident took place. The testimony of injured witnesses, viz., PWs-1, 14 to 24 is supported by the evidence of PWs-28, 30 to 34, who are the medical officers, who have treated the injured and also conducted postmortem examination on the dead bodies of the - 11 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 persons who travelled in the said tipper and succumbed to the injuries, sustained in the said accident. 19. It is also relevant to note that throughout the Trial till accused gave his evidence, he has come up with a defence that he was not the driver of the offending vehicle and suggestions are made as though he was not at all present in the offending vehicle, when the accident occurred. In fact, during the course of his statement under Section 313 Cr.P.C, the accused has went on denying all the evidence led by the prosecution. However, during the course of his evidence, accused has deposed that usually he used to drive tipper bearing registration No.KA-24- 1513 . On the date of incident, it was at Kadarakoppa site. During his cross examination, the accused has deposed that on that day he had left Tipper No.KA 24-1513, which he used to drive for repair. 20. However, he has not made any suggestion to PW-27 that he was not the driver of offending vehicle and also who was the driver who drove the offending vehicle - 12 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 when the accident took place. He has also not made any suggestion to PW-27, that usually he used to drive Tipper No.KA-24–1513. The accused has further deposed that in order to go to Kadarakoppa site when he was waiting by the side of the road, the offending vehicle came, and therefore he got into the cabin. However, he has not stated who was the driver of the offending vehicle when he got into it in order to go to Kadarakoppa. Since the offending vehicle belongs to PW-27, necessarily, the accused was knowing who was the driver of the offending vehicle, if he was not driving it. 21. Accused has further deposed that Near Kadarakoppa, the vehicle started making noise and in the curve the front tyre cut and thereafter staring rod also cut resulting in the accident. The driver got down from the Tipper and ran away. Through the cross-examination of the prosecution witnesses, the accused has taken up a defence that he was not the driver of the offending vehicle. However, during his evidence, he has come up - 13 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 with a statement on the that day he was present in the cabin of the offending vehicle when the accident took place, but he was not driving it. 22. The testimony of accused and the version given by him is clearly an afterthought. Therefore, no suggestions are made to any of the prosecution witnesses, including PW-27 owner of the Tipper and the investigating officers regarding the defence taken by him during his evidence. Even during the course of his statement under Section 313 Cr.P.C also, he has not come up with such a version. Accused has also not produced any document to show that usually he was driving Tipper No.KA-24–1513 and on the date of accident, it was under repair. If accused could produce Ex.D1, a certificate issued by Milan Garage stating that the offending vehicle was left in the garage for repair for the damage sustained in the accident, he could have very well produced such document or certificate to show that Tipper No.KA-24-1513 was also under repair and therefore he was out of work on the date - 14 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 of incident. He could have got produced the logbook of Tipper bearing registration No.KA–24–1513 to show that he was the regular driver of the said vehicle. The very fact that no suggestions are made to the prosecution witnesses with regard to the story built up by him during his evidence, indicates that it is an afterthought with a view to escape from the Penal liability. 23. The evidence of PW-37 K.P.Venkata Subbaiah, Senior motor vehicle Inspector coupled with the IMV report of the offending vehicle at Ex.P90 establish the fact that accident was not due to any mechanical defect of the offending vehicle. Even though several hypothetical questions were put to this witness as to the circumstances in which accident could happen on account of Mechanical defect of the vehicle, he has denied that accident in question was due to any Mechanical defect. Usually, in any charge sheet for the offences punishable under Sections 279, 337, 338, 304 IPC, invariably the IMV report state that the accident was not due to any Mechanical defect of - 15 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 the vehicle. In the deposition in the examination-in-chief of this witness, while recording this part, the word not is missing. Therefore, the Sessions Judge while deciding the appeal filed by the accused has come to the conclusion that the accident was due to mechanical defect of the vehicle. 24. However, Ex.P91, which is the IMV report clearly indicate that there was no mechanical defect causing the accident. During his cross-examination, PW-37 has specifically denied the suggestion that even though the accident has occurred due to mechanical defect of the vehicle, he has given a false report stating that there was no such mechanical defect. No Suggestions are made to him that the front tyre end was cut and thereafter, staring rod was cut and it was the reason for the accident. The reading of evidence of PW-37 in its entirety makes it clear that the while recording his examination-in-chief, the typist has not typed the word “not” and the Sessions - 16 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 Judge has made use of this to negate the prosecution case. 25. So far as the findings of the Sessions Court that eye witnesses have not stated the speed with which accused was driving the offending vehicle. It is quite natural for either inmates of the vehicle or bystander not knowing the exact speed with which the vehicle was driven. However, it is possible for them to know that the vehicle was over speeding, especially when the driver is not able to control the vehicle or ultimately when it meets with the accident. Unless one look into the speedometer, even an educated person or one who is knowing driving may not be able to state the exact speed. However, it is not a ground to reject the evidence of the inmates as well as eyewitnesses who have specifically stated that accused was over speeding and despite request by them he did not reduce the speed. 26. The penal liability under Section 279 of IPC is attracted when the person is driving the vehicle either in a - 17 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 rash or negligent manner, the prosecution is not required to establish that the accused was both rash and negligent. Either one of them is sufficient to hold the accused liable. When the accused was over speeding and ultimately was not able to control the vehicle resulting in the accident he may be rash or negligent or both. It is sufficient for the prosecution to prove any one of the ingredient. Therefore, the Sessions Court has erred in rejecting the testimony of the eyewitnesses on the ground that they have failed to state the speed with which the vehicle was driven by the accused and thereby upsetting the findings by the Trial Court. 27. The Trial Court on a meticulous examination of the entire oral and documentary evidence placed on record has come to a conclusion that it was the accused who was driving the offending vehicle when the accident took place, and accident was a result of rash or negligent driving of the offending vehicle by him. However, the conclusions arrived at by the Sessions Judge is contrary to the oral - 18 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 and documentary evidence on record and it is perverse. He has failed to justify reversing the findings given by the Trial Court. Therefore, the impugned judgment and order passed by the Sessions Court is liable to be set aside and the judgment and order of conviction and sentence rendered by the Trial Court is required to be restored. 28. In the result, the appeal filed by the State succeeds and accordingly, the following: ORDER (i) Appeal filed by the State under Section 378(1) and (3) of Cr.P.C is allowed. (ii) The judgment and order dated 02.07.2016 in Crl.A.No.105/2013 on the file of I Addl. District and Sessions Judge, Jamakhandi is set aside. (iii) Consequently, the judgment and order dated 29.08.2013 in CC.No.222/2007 on the file of Addl. JMFC, Mudhol is restored. (iv) The Trial Court shall secure the presence of accused and proceed against him in accordance with law. - 19 - NC: 2025:KHC-D:3533 CRL.A No. 100173 of 2017 (v) The registry is directed to send back the Trial Court and Sessions Court records along with copy of the judgment forthwith. Sd/- (J.M.KHAZI) JUDGE SMP/RR CT:NI List No.: 19 Sl No.: 1