- 1 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100179 OF 2016 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY BHATKAL POLICE, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI M. B.GUNDAWADE, ADDL. SPP.) AND: MUTTAPPA BHIMAPPA KOKATANUR, AGED ABOUT 27 YEARS, OCC: DRIVER, R/O: ITTANAHALLI, VIJAYAPURA. …RESPONDENT (BY SRI SANTOSH SHINGADI, ADVOCATE FOR SRI. MANJUNATH A. KARIGANNAVAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.03.2016 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS, BHATKAL IN CRIMINAL CASE NO.669 OF 2013 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.03.2016 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS, BHATKAL IN CRIMINAL CASE NO.669 OF 2013 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279, 337, 338 AND 304-A OF IPC. THIS APPEAL COMING ON FOR ORDERS, THIS DAY JUDGMENT DELIVERED THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.03.28 10:59:01 +0530 - 2 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G. BASAVARAJA) The State has preferred this appeal against the Judgment of acquittal passed by the Judicial Magistrate First Class, Bhatkal in Criminal Case No.669/2013 on 14.03.2016. 2. The brief facts leading to this appeal are that, Bhatkal Town Police submitted a charge sheet against the accused for the offences punishable under Sections 279, 337, 338 and 304(A) of IPC. It is alleged by the prosecution that on 27.04.2012 at about 8.45 p.m. on NH-17 from Mangaluru towards Bhatkal near Moodbhatkal, the accused drove the bus bearing No.KA-25/C-5975 in a rash and negligent manner endangering human life, lost control over the bus and dashed against the Tempo Trax bearing No.KA-17/A-9514, due to which nine inmates of Tempo Trax died on the spot and another fourteen inmates sustained grievous and simple injuries, so also, passengers in the offending Bus also sustained grievous injuries. Accordingly, the passengers of Tempo Trax had filed a report to the Bhatkal Town Police Station. After filing the charge sheet, cognizance was taken against the accused for the offences punishable under Sections 279, 337, - 3 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 338 and 304(A) of the IPC and a case was registered in Criminal Case No.669/2013. The substance of plea of the accused for the above said offences was read over and explained to him; accused pleaded not guilty and claimed to be tried. 3. To prove the case of prosecution, in all, 21 witnesses were examined as PWs1 to 21 and got marked 48 documents as Exs.P1 to P48. On closure of prosecution side evidence, statement of accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused has totally denied the evidence appearing against him. He has not chosen to adduce any defence evidence on his behalf. 4. After hearing the argument of both sides, the trial Court has acquitted the accused. Being aggrieved by the Judgment of acquittal passed by the trial Court, the State has preferred this appeal. 5. Learned Additional State Public Prosecutor Sri M.B.Gundawade would submit that the Judgment and order of acquittal passed by the trial Court is contrary to law and facts of the case. He would further submit that PWs.5 to 8, 15, 16 - 4 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 and 20 are the injured eyewitnesses, who have categorically stated before the trial Court regarding the rash and negligent driving of the bus by its Driver. PWs.10 to 12 are the injured eyewitnesses, who were traveling in the VRL bus on the date of accident, who also have deposed to the effect that the Driver of the bus was driving the vehicle in a rash and negligent manner and also deposed that because of his fault only the accident had occurred. The evidence of all these witnesses have not been properly read and appreciated by the trial Court while assessing the evidence on record. The accused has not denied the accident in question and also he has not denied that on the date of incident, he was not the driver. This fact is further corroborated by the evidence of PW21, the Manager of VRL. He has further stated that the accused was the Driver of VRL Bus bearing No.KA-25/C5975 on the date of accident and same has not been properly read and appreciated by the trial Court while evaluating the evidence and thereby erred in acquitting the accused. The accused has not examined the circumstances under which the accident had occurred. Failure to explain the same, would result in adverse inference under Section 106 of the Evidence Act. Proper presumptions have not been made - 5 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 and drawn at the time of assessing the evidence on record. On all these grounds he sought for allowing of this appeal. 6. On the other hand, learned counsel for the respondent/accused would submit that the trial Court has appreciated the evidence on record and facts of the case in accordance with law and absolutely there are no grounds to interfere with the impugned Judgment of acquittal. Accordingly, he sought for dismissal of the appeal. 7. Having heard the arguments of both sides and perusing the evidence on record, the following points would arise for my consideration: (i) Whether the State has made out grounds to interfere with the impugned Judgment of acquittal passed by the trial Court? (ii) What order? 8. My answer to the above points is as under : Point No.(i): in the Negative Point No.(ii): as per the final order. - 6 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 Regarding Point No.(i) 9. I have examined the material placed before this Court and evidence on record. 10. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and powers of the Appellate Court in appeal against the order of acquittal. 11. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an - 7 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 12. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 - 8 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 SCC OnLine 69, at paragraph 16 of the Judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. …” 13. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC OnLine 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the - 9 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” 14. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC OnLine 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. - 10 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 The interference would be warranted only if the view taken is not possible at all.” 15. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 16. It is also necessary to mention here as to the judgment of Hon'ble Supreme Court as to burden of proof in an offence under Section 304-A of the Indian Penal Code. In the case of NANJUNDAPPA AND ANOTHER v. THE STATE OF KARNATAKA reported in 2022 LIVELAW (5) 489, the Hon'ble Apex Court held that the doctrine of res ipsa loquitur would not stricto sensu apply to criminal cases. - 11 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 17. In the case on hand, PW3 is the complainant. PWs1 and 2 are the signatories to the spot panchanama. PWs5 to 12, 15, 16 and 20 are eyewitnesses. PWs13 and 17 to 19 are the Investigating Officers, who have deposed as to the respective investigation. PW14 has filed the charge sheet against the accused. PW21 is an additional witness. 18. PWs1 and 2 Sri Ashraf and Sri Mohammad Ansar respectively are said to be the attesters to the spot panchanama and also rough sketch prepared by the Police. PW3-Smt. Lata Kurubar said to be the complainant and also injured has deposed in her evidence that on 27.04.2012 she and her family members were travelling in a rented Tempo Trax vehicle and after having darshan at Sigandooru at 2.00 p.m. then proceeded to Kollur and thereafter 4.00 p.m. to Murudeshwara and after taking darshana, they were proceeding to Dharmasthala. At about 8.45 p.m. when they came near Bhatkal, the VRL bus came from opposite side in a rash and negligent manner and dashed against their vehicle, as a result of which, driver of the cruiser died on the spot. Inmates of the said vehicle viz. Sakamma, Rangaswamy, Anita, Siddesh and Jayamma died when they were being shifted to the Hospital. - 12 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 The other grievously injured persons by name Kariyappa, Hanamanthappa and Chanabasamma were shifted to the Manipal Hospital for treatment. On the next day of accident, Kariyappa died. On the third day Channabasamma, and after four days Hanamanthappa died. Rest of the injured inmates sustained grievous injuries were admitted to the Kundapur Hospital and Manipal Hospital. Basavaraj, Kenchamma, Doddappa, Chaitra, Priyanka and Sahana in all 9 persons were admitted to the Kundapur Hospital and the rest were admitted to the Government Hospital, Bhatkal. She also deposed that she has sustained injuries on her head and eye. The inmates of VRL bus also have sustained injuries. This accident occurred due to fault of the driver of the VRL bus by name Muttappa Bhimmappa Kokatanur and she has filed complaint to the Police as per Ex.P7 and also she gave further statement. 19. CW22 who has identified the dead body of the diseased Rangaswamy, has deposed that after the postmortem of his younger brother, he has taken the body to his custody. He has also deposed that he came to know that in the alleged accident, 9 persons have dead, and the rest of them were taking treatment at Kundapur and Manipal Hospitals. - 13 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 20. CW13-Dodda Hanumanthappa, CW35-Nagendra, CW36-Kenchamma and CW37-Basavaraj, said to be the injured and eyewitnesses examined as–PW5 to 8 respectively, have deposed in their evidence that at about 2½ years back when they, in all 23 persons, were proceeding in a tempo trax cruiser vehicle, which belongs to one Mahesh, after having darshan of Goddess Sugandooru Chowdeshwari, and when they were on their way to Dharmasthala at about 8:30 PM, when the vehicle was moving near Bhatkal, the driver of the VRL bus came from opposite direction in a rash and negligent manner and dash to their vehicle. As a result, the driver of the vehicle sustained severe injuries and died on Spot. They have also sustained injuries. In this accident, Kariyappa, Rangappa, Maheshappa, Durgamma, Jayamma, Anitha, and Chennappa, in all, nine persons died. 21. CW21-Ramadasa Nayak, said to be the witness and also attester to spot Panchanama examines as PW9, has not deposed anything as to the incident, but has deposed as to Panchanama exhibit P1 conducted by the police. - 14 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 22. CW39-Jayaraj Sharanappa and CW40–D. Chidambara, CW41 Joseph Foster said to be the eye witnesses examined as PWs10 to 12 respectively, CW 29 Chandramma examined as PW15, CW21 examined as PW16; CW33 examined as PW 20, who are all eye-witnesses have not supported the case of prosecution. Even in their cross-examination by the Assistant Public Prosecutor after treating them as hostile witnesses with the permission of the Court, have categorically denied in their statement about the statement recorded by the Investigating Officer under Section 161 of CRPC, which is marked as Exhibits P 17 and 18. 23. CW52-ASI Raju Jogi Ager, CW58-Juhu Prakash Naik, Police Inspector, CW53-Nagaraj Krishna Naik HC1301, CW54-Basavaraj Vaddar, HC 1402, CW51-Prakash Devadiga PSI, who are examined as PWs13, 14, 17, 18 and 19 respectively, have deposed as to their respective investigation. 24. CW21-Anand Joshi, Manager of VRL Logistics has deposed in his evidence that since 10 years, he is working in VRL company. About three years back, one day when the Bus belonging to VRL Company met with an accident, police have - 15 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 issued notice under Section 133 of Motor Vehicles Act as per Exhibit P46. Accordingly, he has furnished the name of the driver who was driving the vehicle on the date of accident, and he has also executed a Bond and got the vehicle released in his favour. 25. PWs5 to 9, are said to be eyewitnesses to the incident, but no one has clearly deposed that they have witnessed the alleged incident. They have deposed that they do not know as to what was happening in front of the bus. 26. PW1, though initially has not supported the case of prosecution, but in the cross-examination made by the Assistant Public Prosecutor with the permission of the Court after treating him hostile witness, has supported the case of prosecution and in his cross-examination, he has deposed that due to rain, they were only able to see the vehicle at the relevant point of time. He has not deposed anything about on whose fault the accident had taken place. 27. PW11 another eyewitness, initially has not supported the case of prosecution. But in his cross- examination made by the Assistant Public Prosecutor, he has - 16 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 deposed that he did not make any submission before the police on whose fault the accident had taken place. 28. PW20, another eyewitness, though initially had not supported the case of prosecution. But in the cross-examination made by the Assistant Public Prosecutor, he has deposed that he did not see the accused at all, and he do not know how the accused was driving the vehicle and do not know how the accident has taken place. 29. PW16-eyewitness has deposed in his cross- examination that he did not see the accused and he has not identified the accused. 30. Considering all these aspects, the trial Court has properly appreciated the evidence on record and held that the prosecution has failed to prove the guilt of the accused. 31. On re-consideration, re-appreciation and re- examination of the entire evidence and record and also keeping in mind the aforesaid decisions of the Supreme Court, I do not find any error or legal infirmity or illegality in the conclusion arrived at by the trial Court which calls for interference by this - 17 - NC: 2025:KHC-D:4911 CRL.A No. 100179 of 2016 Court in this appeal. Hence, I answer point number one in the negative. Regarding Point No.2: For the reasons aforestated and the discussions made, I proceed to pass the following: O R D E R 1. Appeal is dismissed; 2. Judgment of acquittal passed by the Judicial Magistrate First Class, Bhatkal in Criminal Case No.669/2013 on 14.03.2016, is confirmed. Sd/- (G BASAVARAJA) JUDGE CKK/LN LIST NO.: 1 SL NO.: 8