- 1 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100208 OF 2017 (A) BETWEEN: STATE OF KARNATAKA, REPRESENTED BY C.P.I., HONNAVAR CIRCLE, HONNAVAR. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: MANJUNATH K.A., S/O. ANNAPPA K.R., AGED 30 YEARS, OCC: KSRTC DRIVER, R/O: KUGVE, SAGAR TALUK, SHIVAMOGGA, NOW R/AT KSRTC DEPOT, SAGAR. …RESPONDENT (BY SRI. GIRISH A. YADAWAD, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1) AND (3) OF CR.P.C., PRAYING TO, GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 22.12.2016 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HONNAVAR IN CRIMINAL CASE NO.20 OF 2016 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304-A OF IPC AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304-A OF IPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Date: 2025.03.25 16:20:51 +0530 - 2 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The State has preferred this appeal against the judgment of acquittal passed by the Senior Civil Judge and Principal J.M.F.C., Honnavar in Criminal Case No.20/2016 [Old No.208/2015] dated 22.12.2016 [for short, ‘trial Court’]. 2. Parties are referred to as per their status before the Trial Court. 3. The facts leading to this appeal is that the Police have submitted the charge sheet against the accused for the commission of offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860 [for short, ‘IPC’]. It is alleged by the prosecution that on 26.01.2015 at 09:30 a.m. CW4 was walking along with his son Soofiyana from Upponi Platkeri towards Sagar by the side of the road on NH 206. When CW4 / PW3 was proceeding by the side of the road towards Sagar along with his son Soofiyana [deceased]. The accused being the driver of the KSRTC Bus bearing registration No.KA-17/F-1331 driven in a high speed, rash and negligent manner, so as to endanger to human life and dashed to - 3 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 Soofiyana and caused his death on spot. Thus the accused has committed offence punishable under Sections 279 and 304A of IPC. After filing the charge sheet, the jurisdictional Magistrate has taken cognizance against the accused for the alleged commission of offences punishable under Sections 279 and 304A of IPC. The case was registered in C.C. No.20/2016. The substance of accused was recorded. The accused pleaded not guilty and claim to be tried. 4. To prove the guilt of the accused, in all, 10 witnesses were examined as PWs.1 to 10, 13 documents were marked as Exs.P1 to P13. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded. The accused has submitted his written explanation for the aforesaid alleged incident. The accused has denied the evidence prosecution witnesses and he has submitted in the written statement under Section 313 of Cr.P.C. and during the course of cross-examination of PW3, a portion of statement of PW3 is marked as Ex.D1. Accused has not adduced any defence evidence on his behalf. - 4 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 5. Having heard the arguments on both sides, the trial Court has acquitted the accused. Being aggrieved by this judgment of acquittal, the State has preferred this appeal. 6. The learned Additional S.P.P. Sri. M.B. Gundawade would submit that the judgment and order of acquittal passed by the trial Court is contrary to law, facts and evidence on record. Same is not sustainable in the eye of law. 7. It is submitted that PW1 is the complainant and PWs.2 to 6 are other eye witnesses to the incident. All the witnesses have specifically and categorically stated that the accused was the driver of the vehicle at the time of the accident and he was driving the vehicle in a high speed and in a rash and negligent manner and dashed against the deceased and caused the death of Soofiyana. The evidence is further corroborated by the spot sketch Ex.P3 and spot mahazar. The above evidence has not been properly read and appreciated by the trial Court and by giving importance to the minor contradictions and improvements found in the prosecution case has erroneously acquitted the accused. The trial Court has not assigned any proper and acceptable reasons for discarding the - 5 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 evidence of material eye witnesses and also reasons for acquittal of the accused. 8. It is an admitted fact that the accused was the driver of the vehicle at the time of the accident. The rash and negligent driving of the accused has been proved by the prosecution beyond doubt by producing the evidence of PWs.1, 3 to 6. The Trial Court has not properly appreciated the evidence on record in accordance with law and facts. On these grounds, the learned Additional S.P.P. sought for allowing this appeal. 9. As against this, the learned counsel Sri. Girish A. Yadawad submits that the trial Court has properly appreciated the evidence on record in accordance with law and facts and submitted that absolutely there are no grounds to interfere with the impugned judgment of acquittal and sought for dismissal of the appeal. 10. Having heard the arguments on both sides and on perusal of the materials placed before me, the following points would arise for my consideration. - 6 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 i. Whether the State has made out grounds to interfere with the impugned judgment of acquittal? ii. What order? 11. My answer to the above points are as under: i. Negative ii. As per final order 12. I have carefully examined the materials placed before this Court. 13. 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 power of Appellate Court in appeal against the order of acquittal. 14. 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:- - 7 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 “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 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 - 8 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 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.” 15. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 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. …” - 9 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 16. 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 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 - 10 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 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.…” 17. 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. The interference would be warranted only if the view taken is not possible at all.” 18. 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 - 11 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 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.” 19. It is also necessary to mention here as to the judgment of Hon'ble Supreme Court as to burden of proof in offence under Section 304-A of the Indian Penal Code. In the case of NANJUNDAPPA AND ANOTHER vs. THE STATE OF KARNATAKA reported in 2022 LiveLaw (5) 489, the Hon'ble Apex Court held that the doctrine of res ipsa loquitur stricto sensu would not apply to criminal cases. 20. It is the case of the prosecution that on 26.01.2015 at 09:30 a.m. CW4 was walking along with his son Soofiyana from Upponi Platkeri towards Sagar by the side of the road on NH 206. When CW4 / PW3 was proceeding by the side of the road towards Sagar along with his son Soofiyana [deceased]. - 12 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 The accused being the driver of the KSRTC Bus bearing registration No.KA-17/F-1331 driven in a high speed, rash and negligent manner, so as to endanger to human life and dashed to Soofiyana and caused his death on spot. 21. CW1 is said to be the complainant Sri. Basha Ali Khan as PW1. He has deposed in his evidence that on 26.01.2015 near Upponi Janatha plot, near the house of CW6 he along with CW5, when CW4 – Irshad Adam Sab along with Soofiyana were walking on the left side of the Gerusoppa Honnavara road, on the left side of the road, the accused being the driver of the KSRTC bus came from Gerusoppa road in a high speed and dashed to Soofiyana. The bus was stopped at a distance of 15 to 20 feet after the accident. The child Soofiyana died at the spot and he has lodged the complaint to the Police as per Ex.P1. 22. CW3 – Mohammed Hussain Abu Mohammed said to be the attester to the mahazar – Ex.P2 and also attester to the spot sketch – Ex.P3 examined as PW2, deposed as to the mahazar conducted by the Police on 26.01.2015 and also the rough sketch prepared by the Police. - 13 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 23. CW4 – Irshad Adam Sab and also father of the deceased, examined as PW3 has deposed in his evidence that the deceased Soofiyana Irshad Sab is his son, he was aged 5 years. On 26.01.2015 he and his son Soofiyana were walking from Honnavar side towards Gerusoppa on the left side of the road on the mud portion near Upponi plot colony on NH4, the accused being the driver of the KSRTC bus driving the same in a high speed and hit to his son Soofiyana and his son died on the spot. The accident occurred due to fault of the accused. 24. CW6 Ajeem Ahmed Sab said to be the eye witness examined as PW4 has deposed in his evidence that at about one year back, he was proceeding in a bike from Gerusoppa to Arengadi. He was standing near the house of Ahmed Sab Mohiddin Sab. He was talking with CWs.1, 5 and 8. By that time, CW4 and his son Soofiyana were proceeding towards left side of the road from Gerusoppa Honnavar road and dashed against Soofiyana and Soofiyana died on the spot. 25. CW5 – Sheikh Imtiyaz and CW8 – Asif are said to be the eye witnesses examined as PWs.5 and 6, they have deposed in their evidence that on 26.01.2015 at 09:30 a.m. - 14 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 when Soofiyana was proceeding along with his father near Janata Plot Upponi Bengaluru Honnavara road, the KSRTC bus came from Bengaluru side in a high speed and dashed against Soofiyana. As a result, Soofiyana died on the spot. 26. CW14 – Parameshwar Ram Gunaga, the Police Inspector and CW13 – Smt. Mariyambi Usman, Head Constable and CW15 – Manjunath M Gouda, CPI, Hosanagara, examined as PWs.7, 9 and 10 respectively, they have deposed as to their respective investigation conducted by them. 27. CW11 – Laxminarayan Pursayya Naik, Motor Vehicle Inspector examined as PW8. He has deposed as to the inspection of the vehicle of KSRTC bus bearing registration No.KA-17/F-1331 and also issuance of MV report as per Ex.P12. 28. During the course of cross-examination of PW1, he has stated that he was walking along with CW6 at the time of the accident on the left side and the road leading from Honnavara to Gerusoppa. He has stated that he was walking along with CWs.5 and 6 at the time of the accident on the left side of the road leading from Honnavara to Gerusoppa. He has stated that he and CWs.5 and 6 went to the spot on hearing - 15 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 the sound of the accident and he has stated that there were break marks at the spot. During the course of cross- examination of PW3, he has stated that at the time of the accident, he was holding the hand of his son. He and his son both fell on the road. But during the course of cross- examination of PW4, he has stated that front left side of the bus dashed to Soofiyana. Deceased Soofiyana was proceeding at a distance of 30 meters ahead of his father at the time of the accident. 29. PW.6 has stated in his cross-examination that he was standing along with CWs.1, 5 and 6 near the place of the accident. They came to know about the accident after hearing the sound of the accident. 30. In the written statement submitted by the accused , he has stated as under: 1) F ¥ÀæPÀgÀtzÀ°è £Á£ÀÄ DgÉÆævÀ£ÁVgÀÄvÉÛãÉ. ºÉÆ£ÁߪÀgÀ ¥ÉÆðøÀgÀÄ £À£Àß «gÀÄzÀÞ ¸À°è¹zÀ ZÁdð ²Ãmï ¸ÀļÀÄî ºÁUÀÆ £ÁåAiÀiÁ®AiÀÄzÀ°è ºÉýzÀ ¸ÁQëUÀ¼ÀÄ ¸ÀļÁîVgÀÄvÀÛzÉ. 2) £Á£ÀÄ PÀ¼ÉzÀ 8 ªÀµÀðUÀ½AzÀ ¸ÁUÀgÀ¢AzÀ ºÉÆ£ÁߪÀgÀ gÀ¸ÉÛAiÀÄ°è PÉ.J¸ï.Dgï.n.¹. §¸ï ZÁ®PÀ£ÁV PÁAiÀÄ𠤪À𻹠- 16 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 §A¢gÀÄvÉÛãÉ. gÀ¸ÉÛAiÀÄ ¥ÀjZÀAiÀÄ ZÉ£ÁßVgÀÄvÀÛzÉ. F C¥ÀWÁvÀ £ÀqÉzÀ ¸ÀܼÀ G¥ÉÆàÃt ºÀwÛgÀ«zÀÄÝ, C°è oÁgï gÀ¸ÉÛ 12 Cr CUÀ® EgÀÄvÀÛzÉ. 3) ¢£ÁAPÀ: 26-01-2015 gÀAzÀÄ ¸ÁUÀgÀ¢AzÀ ºÉÆgÀlÄ ªÀÄzsÀå- ªÀÄzsÀå ¥ÀæªÀiÁtÂPÀgÀ£ÀÄß PÀÆræ¹PÉÆAqÀÄ ¤zsÁ£ÀªÁV ºÁUÀÆ JZÀÑjPɬÄAzÀ §¸Àì£ÀÄß ZÀ¯Á¬Ä¹PÉÆAqÀÄ §A¢gÀÄvÉÛãÉ. G¥ÉÆàÃt ºÀwÛgÀ §AzÁUÀ ¸ÁUÀgÀ¢AzÀ ºÉÆ£ÁߪÀgÀPÉÌ §gÀĪÀ gÀ¸ÉÛAiÀÄ §®UÀqÉ oÁgÀÄ gÀ¸ÉÛ¬ÄAzÀ 4 Cr CAvÀgÀzÀ°è MAzÀÄ DmÉÆà jPÁëzÀ ºÀwÛgÀ M§â NªÀð ªÀAiÀĸÁìzÀ ªÀåQÛ ºÁUÀÆ NªÀð ¨Á®PÀ ¤AwzÀÝgÀÄ. ¸À¢æ ªÀAiÀĸÁìzÀ ªÉÊQÛ jPÁëzÀªÀ£ÉÆqÀ£É ªÀiÁvÀ£ÁqÀÄwÛzÀÝ, D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ZÀ¯Á¬Ä¹PÉÆAqÀÄ §AzÀ §¸ÀÄì 6-7 Cr zÀÆgÀzÀ°ègÀĪÁUÀ aPÀÌ ¨Á®PÀ EzÀÝQÌzÀÝAvÉ AiÀiÁªÀ ¥ÀƪÀð ¸ÀÆZÀ£É E®èzÉà gÀ¸ÉÛAiÀÄ §®§¢¬ÄAzÀ oÁgÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß ºÀwÛ JqÀUÀqÉUÉ Nr §A¢zÀÄÝ, £Á£ÀÄ vÀPÀëtzÀ°è §¹ìUÉ ¨ÉæÃPï ºÁQ Cw eÁUÀgÀÆPÀvɬÄAzÀ §¸Àì£ÀÄß JqÀUÀqÉUÉ vÉUÉzÀÄPÉÆArgÀÄvÉÛãÉ. ºÁUÀÆ 7-8 Cr zÀÆgÀzÀ°è §¸Àì£ÀÄß JqÀUÀqÉUÉ ¤°è¹gÀÄvÉÛãÉ. §¹ì£À°ègÀĪÀ ¥ÀæAiÀiÁtÂPÀjUÀÆ PÀÆqÀ K£ÀÆ vÉÆAzÀgÉAiÀiÁUÀzÉà EgÀĪÀ jÃwAiÀÄ°è §¸Àì£ÀÄß JqÀUÀqÉUÉ ¤°è¹zÀÄÝ, AiÀiÁªÀÅzÉà PÀëtzÀ°èAiÀÄÆ £Á£ÀÄ §¹ì£À ªÉÄÃ¯É ¤AiÀÄAvÀætªÀ£ÀÄß PÀ¼ÉzÀÄPÉÆArgÀĪÀÅ¢®è. ºÁUÀÆ CeÁUÀgÀÆPÀ£ÁV ªÀwð¹°®è. §¸Àì£ÀÄß ¤°è¹ vÀPÀët PɼÀUÉ §AzÀÄ £ÉÆÃrzÁUÀ §¹ì£À CrAiÀÄ°è ºÀÄqÀÄUÀ ©zÀÄÝPÉÆArgÀĪÀ ¹ÜwAiÀÄ°èzÀÝ. ºÀwÛgÀ EzÀÝ jPÁë ZÁ®PÀ ºÁUÀÆ ªÀAiÀĸÁìzÀ ªÀåQÛ PÀÆqÀ vÀPÀët §AzÀÄ £ÉÆÃrgÀÄvÁÛgÉ. ¥ÀæAiÀiÁtÂPÀgÀÄ ¸ÀºÀ PɼÀV½zÀÄ §AzÀÄ ºÀÄqÀÄUÀ §¹ì£À CrAiÀÄ°è ©¢ÝgÀĪÀzÀ£ÀÄß £ÉÆÃrgÀÄvÁÛgÉ. D ¸ÀªÀÄAiÀÄzÀ°è CªÀgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁgÀÆ EgÀ°è®è. 4) £Á£ÀÄ ¤zsÁ£ÀªÁV §¸Àì£ÀÄß ZÀ¯Á¬Ä¹PÉÆAqÀÄ §A¢zÀÄÝ C¥ÀWÁvÀzÀ°è ªÀÄÈvÀ¥ÀlÖ ºÀÄqÀUÀ AiÀiÁªÀ ¥ÀƪÀð ¸ÀÆZÀ£É¬Ä®èzÉà gÀ¸ÉÛUÉ £ÀÄVÎ §A¢zÀÝjAzÀ C¥ÀWÁvÀªÀ£ÀÄß vÀ¦à¸À®Ä ºÁUÀÆ §¹ì£À M¼ÀVzÀÝ ¥ÀæAiÀiÁtÂPÀjUÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉAiÀiÁUÀzÀAvÉ §¸Àì£ÀÄß ¤zsÁ£ÀªÁV JqÀUÀqÉUÉ ¤zsÁ£ÀªÁV - 17 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 ¤°è¹gÀÄvÉÛãÉ. F C¥ÀWÁvÀªÀÅ £À£Àß vÀ¦à¤AzÀ CxÀªÁ CeÁUÀgÀÆPÀvÀ£À¢AzÀ DVzÀÄÝ EgÀĪÀÅ¢®è. 31. A perusal of the written statement by the accused, it is crystal clear that the accused has not disputed this accident. But he has set up a specific defence that the boy Soofiyana without any signal all of a sudden came on road and he tried to avoid the accident by applying break, he took the bus towards extreme left side of the road with an intention to avoid the accident and also not to cause any inconvenience to the bus and he stopped the bus. This accident is not occurred due to his fault and negligence. 32. PWs.1, 3, 5 and 6 have stated that in their evidence that PW.3 was holding the hand of Soofiyana and proceeding on the mud portion of the road. However, PW4 – Ajeem Ahmed Sab has stated that Soofiyana was proceeding 30 meters ahead of his father and Soofiyana towards Honnavara from the house of the Pandit Vaidya and his father towards Upponi. The evidence of PW4 discloses that Soofiyana and his father were not proceeding together at the time of the accident. 33. PW3 father of Soofiyana has stated in his evidence that his father-in-law’s house is situated at a distance of 30 - 18 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 meters from the place of incident and is situated by the side of tar road. He has stated in his further statement marked as Ex.P1 that he had come to the house of his father-in-law’s house Ahmed Sab along with his wife and children for Urs and Kavali programme and stayed in the house of father-in-law on the previous night but he has denied his statement. However, he has admitted that his father-in-law’s is situated at a distance of 30 meter from the place of accident. PW6 has also admitted the same. 34. Considering all these aspects, the trial Court has observed in para 19 of the judgment as under: 19. Considering the evidence of Prosecution witnesses it clearly appears that the house of father-in- law of PW-3 i.e., the grandfather of deceased Soofiyana situated very close to the place of incident. One witness has stated that father and son were not walking together on the place of incident. The evidence shows that it was a single road, accused suddenly applied brake and took his Bus to the extreme left side of the road. PW-3 who is the material witness i.e., father of the deceased has stated that the accident has taken place on the left side of the road leading from Honavar to Sagar which is other side of the place of incident put forth by the Prosecution. Some of the witnesses have stated that they went to the place of incident on hearing the sound of the accident. Considering all these circumstances, it appears that the defense of the accused is more probable that the deceased boy suddenly came running from his grandfather's house to the road and the Bus driver in order to avoid hitting him took his Bus to the extreme left side of the road by - 19 - NC: 2025:KHC-D:5121 CRL.A No. 100208 of 2017 applying brake. The Prosecution evidence creates doubt as to the manner which the accident has taken place as put forth by the, Prosecution. Therefore, the Prosecution has failed to prove its case beyond reasonable doubt. Accordingly, I answer point no.1 in the negative. 35. On re-appreciation, re-consideration and re- examination of the entire evidence on record, keeping in mind the aforesaid decisions of the Hon’ble Apex Court, I do not find any error or illegalities and infirmities in the impugned judgment of acquittal. Hence, I answer point No.1 in the negative and point No.2 as under. 36. For the aforesaid reasons, I proceed to pass the following: ORDER The appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE RSH / CT-CMU LIST NO.: 1 SL NO.: 6