- 1 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 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.100350 OF 2018 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY POLICE SUB-INSPECTOR, K.T.P.S. THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: RAJEGOWDA S/O GOWDEGOWDA AGED ABOUT 30 YEARS, OCC: DRIVER-TRUCK, R/O: EGGADA HALLI, K.R. PETE, MANDYA-571423 …RESPONDENT (BY SRI. AHAMED ALI RAHIMAN SHAH, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S. 378(1) & (3) OF CR.P.C. PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 21.11.2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.281/2016 ANT SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 21.11.2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.281/2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 279 & 304(A) OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.03.28 10:59:29 +0530 - 2 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the judgment of acquittal dated 21st November 2017 passed in Criminal Case No.281 of 2016 by the Chief Judicial Magistrate, Karwar (for brevity hereinafter referred to as the “trial Court”). 2. For the sake of convenience, the parties herein are referred to with their status and rank before the trial Court. 3. The factual matrix of the case are that the Circle Inspector of Police, Karwar, has filed charge-sheet against the accused for the offences punishable under Sections 279 and 304(A) of Indian Penal Code. It is alleged by the prosecution that on 10th March 2016 at about 10:15 PM, accused being the driver of lorry bearing registration No.KA-02/AE-0018 drove the same on NH-66-Panaji-Mangalore Highway, in a high speed and rash and negligent manner so as to endanger human life and personal safety of others and dashed against the motorcycle being ridden by Manjunath Sairoba Kumtekar who was proceeding from Karwar towards Sadashivgad. The impact of - 3 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 the accident is that the rider of the motorcycle died. Thus, the accused has committed the offences punishable under Sections 279 and 304A of Indian Penal Code. 4. After filing charge sheet, cognizance was taken against the accused for the alleged commission of offences. Accused appeared before the Court and was enlarged on bail. Copies of prosecution papers furnished to him. Substance of accusation was read over and explained to him. Accused pleaded, not guilty and claimed to be tried. 5. To prove the guilt of the accused, prosecution has examined seven witnesses as PWs1 to 7 and thirteen documents were marked as per Exhibits P1 to P13. Statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the incriminating evidence appearing against him and has not adduced any defence evidence. Having heard the arguments, the trial Court acquitted the accused. Being aggrieved by the impugned judgment of acquittal, the State has preferred this appeal. 6. Sri M.B. Gundwade, learned Additional SPP, would submit that the judgment of acquittal passed by the trial Court - 4 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 is not sustainable in the eye of law and the same is liable to be set aside. It is his submission that PW1 is the complainant and eye-witness to the incident. The said witness has supported the case of the prosecution and more particularly identified the respondent-accused being driver of the Truck which is involved in the accident. Further, PW1 has deposed that the accused drove the vehicle in a great speed and in rash and negligent manner and caused the accident. The trial Court has not properly appreciated the evidence of PW1. By giving much importance to the witnesses who have not shown as eye- witnesses and have later turned hostile, the trial Court has acquitted the accused, which is not sustainable in the eye of law. He would further submit that Exhibit P3-spot sketch would show that the accused took his vehicle to a wrong side and dashed against the motorcycle ridden by the deceased. The same would clearly show the theory of res ipsa loquitor and the same is clarified by observing Exhibit P3. The accused being the driver of the vehicle on the date of accident, has not taken proper precautions to avoid the accident. This aspect has not been considered by the court below. He would further submit that PW1 being the complainant has supported the case of the - 5 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 prosecution as per Section 134 of Indian Evidence Act. He submits that as held by the Hon’ble Supreme Court in a catena of cases, it is the quality of evidence and not the quantity of evidence that is to be considered to prove the guilt of the accused. The trial Court has wrongly come to the conclusion that evidence of material witness-PW1 has not been supported by other independent witnesses, viz. PWs5 and 6, who have turned hostile during the case of prosecution. But the trial Court has committed an error in acquitting the accused mainly on this ground which is not sustainable in the eye of law. That apart, he submits that the respondent accused has not explained the manner in which the accident occurred and also the reason for the accident in his statement recorded under section 313 of code of criminal procedure R during his cross- examination of the witnesses. Non-explanation of the same amounts to adverse inference against the respondent-accused and the same is not considered by the trial Court. He further submits that the trial Court, without any proper reason has discarded the truthful version of the witnesses and has erroneously acquitted the accused by giving much importance to the minor contradictions and improvements in the evidence. - 6 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 Hence the judgment of acquittal passed by the trial Court is not sustainable and the same is liable to be set aside. On all these grounds, He shot to allow the appeal. 7. Respondent Counsel remained absent and his argument is taken as nil. 8. Having heard the learned Additional SPP, and on perusal of materials, the following points would arise for my consideration: 1. Whether the state has made a ground to interfere with the impugned judgment of Acquittal? 2. What Order? 9. My answer to the above points is: Point No.1: in the negative; Point No.2: as per final order. Regarding Point No.1: 10. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of - 7 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 Hon'ble Supreme Court regarding scope and power of 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, re-appreciate 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 - 8 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 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 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: - 9 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 “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 - 10 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 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 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: - 11 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 “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.” 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.” - 12 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 16. 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, would stricto sensu, not apply to criminal cases. 17. I have examined the materials placed before this Court. To prove its case, prosecution has cited sixteen witnesses in the charge-sheet and out of them, seven witnesses have been examined as PWs1 to 7. 18. CW1-Suraj Lumayi who is examined as PW1, has deposed in his evidence that for the past three years, he is working in Aditya Birla Chemicals Company. On the night of 10th March 2016 at about 10o clock, he was proceeding on his motorcycle from Binaja Company to Mazaali. At about 10:15 PM near Karavali Gate, Karwar, a truck coming from Sadashivagad to Karwar was being driven by its driver in a rash and negligent manner and hit to the motorcycle being ridden by the deceased Manjunath Sairoba Kumtekar. In the accident, - 13 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 the deceased suffered grievous head injury, immediately he was shifted to Karwar District Hospital and later for higher treatment, he was taken to Goa Hospital. Later, he has lodged complaint to the police which is marked as Exhibit P1. 19. CW2-Shankar who is examined as PW2 has deposed in his evidence as to spot mahazar and sketch marked as Exhibits P2 and 3. 20. CW3-Ramesh examined as PW3 said to be mahazar witness and inquest panchanama witness has deposed as to the spot panchanama and inquest panchanama as per Exhibits P3 and 4. 21. CW4-Paresh examined as PW4 has deposed as to the police drawing inquest Panchama as per Exhibit P4. 22. CW5-Sachin & CW6-Dilip who are said to be the eye- witnesses, are examined as PWs.5 & 6 respectively. Both the witnesses have not supported the case of prosecution. Even in their cross-examination made by the Assistant Public Prosecutor with the permission of Court, they have categorically denied the statement and further statement said to have been recorded by the Investigating Officer under - 14 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 Section 161 of Code of Criminal Procedure which are marked as Exhibits P5 to P8. 23. CW16-Sharan Gowda, Police Inspector, Karwar examined as PW7, has deposed as to the investigation conducted by him. 24. It is the case of the prosecution that the accident occurred at 10:15 PM. During the course of cross-examination, PW1 stated that at the time of accident, he was at the distance of 150 meters from the place of accident. Further, he has admitted that during night time he could not see the vehicles coming from the opposite side due to the dazzling headlights of the opposite vehicles. But the same is not disclosed by PW1 in his complaint. This spot mahazar does not reveal as to installation of lights on both sides of the road. Under such circumstances, it is difficult to identify the vehicle vehicles at a distance of 150 meters. This evidence of PW1 reveals that only after the accident he came to the spot and shifted the injured to the hospital. Exhibit P1-complaint, according to evidence of PW1, does not reveal as to the presence of PWs5 and 6 said to be eyewitnesses on the spot of incident. If really, PWs.5 & 6 - 15 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 have witnessed the said accident, PW1 would have mentioned their names in the complaint-Exhibit P1. Even the Investigating Officer has not deposed anything as to on what basis he has recorded the statement of eye-witnesses PWs.5 & 6. It has come in the evidence of PW6 that he and CW1/PW1 were working in the same organisation, and he was also proceeding on a motorcycle in the same direction. But the same is not deposed by PW1. This uncorroborated evidence of PW1 will create doubt in the minds of the Court as to the presence of PWs.5 & 6 at the time of accident. They appear to be planted witnesses. Considering the evidence placed by the prosecution, trial Court has properly appreciated the evidence and record and acquitted the accused. On re-examination, re appreciation and reconsideration of the material witnesses and also keeping in mind the decisions of Hon’ble Supreme Court stated supra, I do not find any error or illegality/infirmity in the impugned judgment of acquittal. Accordingly, I answer point number one in the negative. Regarding Point No.2: 25. For the aforestated reasons and discussions, I proceed to pause the following: - 16 - NC: 2025:KHC-D:5166 CRL.A No. 100350 of 2018 O R D E R (i) Appeal dismissed; (ii) Judgment of Acquittal dated 21st November 2017 passed in Criminal Case No.281 of 2016 by the Chief Judicial Magistrate, Karwar is confirmed; (iii) Registry to transmit the trial Court records along with a copy of this judgment to the concerned Court. Sd/- (G BASAVARAJA) JUDGE lnn LIST NO.: 1 SL NO.: 25