- 1 - NC: 2025:KHC-D:5165 CRL.A No. 100210 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. 100210 OF 2018 (A) BETWEEN: THE STATE O KARNATAKA REPRESENTED BY THE POLICE SUB INSPECTOR, KARWAR TRAFFIC POLICE STATION, KARWAR, TRHOUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: VASANT BEEMA GAONKAR AGE: 55 YEARS, OCC: DRIVER, R/O: TELANG ROAD, NANDANGADDA, KARWAR. …RESPONDENT (BY SRI. K.L. PATIL, ADVOCATE) THIS CRIMINAL APPEAL FILED U/S 378(1)(B) & (3) OF CR.P.C. PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT OF ACQUITTAL DATED 15.11.2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.271/2016 AND TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 15.11.2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.271/2016 AND ONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 279 & 304-A OF IPC AND U/S 196, 192(A), 56 R/W SEC. 192 OF I.M.V. ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.03 13:03:01 +0530 - 2 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The State has preferred this appeal against the judgment of acquittal passed by the Chief Judicial Magistrate, Karwar in C.C. No.271/2016 dated 15.11.2017 [for short, ‘trial Court’]. 2. The factual matrix of the case is that the Circle Inspector of Police, Karwar has filed the charge sheet against the accused 1 & 2 for the offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860 [for short, ‘IPC’] and Sections 196, 192(A) and 56 read with Section 192 of the Motor Vehicles Act. It is alleged by the prosecution that on 05.01.2016 at about 10:15 a.m., the accused No.1 being the driver of uninsured tipper lorry bearing No.KA-30/7078 drove the same from Karwar towards Bandishitta on Karwar-Kaiga State Highway in a high speed and in a rash and negligent manner, so as to endanger to human life and personal safety of others, in front of Ganapathi temple near KSRTC bus depot, and dashed against one Sairobha Chandru Gunagi, who was proceeding on his bicycle and caused the accident. Due to his negligent act, the accused No.1 caused the death of the said Sairobha Chandru Gunagi. The accused No.2 being the owner - 3 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 of the said vehicle without insuring the same and without having fitness certificate had allowed the accused No.1 to drive the said vehicle to cause the accident. Thereby accused Nos.1 and 2 have committed the aforesaid alleged commission of offences. The accused No.2 appeared before the Court and pleaded guilty for the offences punishable under Sections 196, 192(A), 56 read with Section 192 of Motor Vehicles Act and the trial Court has convicted the accused No.2 for the offences punishable under Sections 196 of the Motor Vehicles Act and sentenced to pay fine of Rs.800/-. Further he is convicted the accused and sentenced to pay fine of Rs.2,000/- for the offence under Section 192(A) of the Motor Vehicles Act and also convicted the offence under Section 192(A) of the Motor Vehicles Act and sentenced to pay fine of Rs.2,000/-. In total, the trial Court has imposed a fine of Rs.4,800/-. The accused No.2 has remitted the fine amount. 3. The accused No.1 appeared before the Court and enlarged on bail. The substance of the accusation was read over and explained to the accused and the accused pleaded not guilty and claim to be tried. - 4 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 4. To prove the case of the prosecution, nine witnesses are examined as PWs.1 to 9, eight documents were marked as Exs.P1 to P8. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C. was recorded. The accused has totally denied the evidence of prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf. 5. Having heard the arguments on both side, the trial Court has acquitted the accused No.1. Being aggrieved by this judgment of acquittal against accused No.1, the State has preferred this appeal. 6. Learned Additional S.P.P. Shri MB Gundwade, appearing for State, would submit that the judgment of acquittal passed by the trial Court is contrary to law and facts and the trial court has not considered the evidence of witnesses who were present at the spot of accident. The evidence of witnesses viz. PWs.3 & 5 have not been read properly by the trial Court and has come to a wrong conclusion that accused was not found guilty and acquitted the accused. He submits that although the witnesses to the spot mahazar not supported - 5 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 the case of prosecution, the trial Court ought to have considered the evidence of PW5 who was present on the spot of incident and is a natural witness who saw the accident as well as identified the accused as the driver of the said vehicle on the date of incident. The trial Court ought to have considered the evidence of Investigating Officer in this regard and without considering these evidences, the trial Court had acquitted the accused and the same need sot be set aside. He would further submit that the owner of the vehicle i.e. accused No.2 has specifically stated that the accused No.1 was the driver of the vehicle on the date of incident. The same was not considered by the court below, which is a prominent document to prove that on the date of incident, the respondent-accused was driving the vehicle. It is further submitted that the accident was not denied by the accused. He has not adduced any evidence on his behalf. Moreover, the accused not produced any document in his defence though as per Section 313 of Code of Criminal Procedure an opportunity was given. He would submit that the principle of res ipsa loquitor is applicable to the case. The trial Curt has not appreciated the evidence on record - 6 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 in its proper perspective. On all these grounds, he sought to allow the appeal. 7. On the other hand, Sri K.L. Patil, learned Counsel appearing for the respondent-accused submit that panch witnesses-PWs1 & 2 have not supported the case of the prosecution. PW3 has supported the case of the prosecution partly and in the course of cross-examination by the Assistant Public Prosecutor after treating him as partly hostile witness with the permission of the Court, he has not identified accused and during the course of cross-examination, he has clearly admitted that only after the accident he went to the spot and he cannot say as to how the accident had occurred. However, he has admitted that at the time of accident except him, none were present. Even in his examination-in-chief also, he has categorically admitted that he has not witnessed the accident. Learned Addl. SPP would further submit that PW4-Aravind Gunagi has clearly admitted in his cross-examination that he has not witnessed the accident and even he has not identified the accused. PW5-Digamber Ganagi, had clearly admitted that he has given statement to the Police that the accident occurred due to the rash driving of the driver of tipper lorry who dashed - 7 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 against the bicycle ridden by the victim. Considering the admission made by the material witnesses, the trial Court has properly appreciated the evidence on record in accordance with law and facts and acquitted the accused. Absolutely, there are no materials to interfere with the impugned judgment of acquittal. On all these grounds, he sought for dismissal of the appeal. 8. Having heard the learned Counsel appearing for the parties, and on perusal of materials, the following points would arise for my consideration: 1. Whether the State has made out 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 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 power of Appellate Court in appeal against the order of acquittal. - 8 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 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 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 - 9 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 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: “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 - 10 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 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 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 - 11 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 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. The interference would be warranted only if the view taken is not possible at all.” - 12 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 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, re-appreciate 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 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 - 13 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 Apex Court held that the doctrine of res ipsa loquitur, would stricto sensu, not apply to criminal cases. 17. In the case on hand, to prove the guilt of the accused, the prosecution has charge-sheeted sixteen witnesses and out of them, nine witnesses were examined as PWs1 to 9. 18. PW1-Dinakar Dattaram, PW2-Mohan are said to be attesters to mahazar-Exhibit P1 and spot sketch witness, they have not supported the case of prosecution. 19. PW3-Pradeep said to be the complaint and witness is examined as PW1. He has deposed in his evidence that he has acquaintance with the deceased Sairobha Gunagi. During January 2016, when he was proceeding on motorcycle towards Habbuvada between 10.00 and 11.00 hours, near KSRTC Bus Depot, Karwar, in front of Ganesh Temple, deceaed Sairobha Gunagi was proceeding on his motorcycle from Karwar towards Habbuvada. At that time, the driver of tipper lorry driving the tipper in a high speed dashed against the said Sairobha. He went to the spot and witnessed that the injured has sustained injuries to his head and right leg. Then, with the help of the son of the deceased he shifted the deceased to the hospital. - 14 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 Later, when the police came to the hospital, he has lodged the complaint which is marked as Exhibit P3. He has deposed that he has signed on Exhibit P1-Panchanama in the Police Station. On the next day of the incident, Police has taken him to the accident spot. Later, on the next day of the accident, he was informed that the said Sairobha Gunagi died in the Hospital at Goa. 20. CW6-Aravind Gunagi, said to be the eye-witness who is examined as PW4, has deposed in his evidence that he know the deceased-Sairobha and about 8 to 9 months back, on one day when he was proceeding on motorcycle from Kunagiwada to Karwar, at about 11.00 am, near KSRTC Bus Depot in front of Ganesh Temple, the said Sairobha was proceeding on bicycle towards Bandishitta. At that time a tipper lorry coming from behind came in a high speed and dashed to the bicycle resulting in the cyclist suffering grievous injuries to his head and leg. Then he informed the same to the family members of the injured and then CW9 the son of the deceased, shifted him to the Hospital. He has informed that the Registration Number of Lorry is KA30/7078. He has also - 15 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 informed that the accident occurred due to the rash and negligent of the driver of the tipper lorry. 21. CW7-Digamber who is examined as PW5 has deposed in his evidence that he is acquainted with the deceased and about a year back on one day at about 10.00 pm when he was proceeding on his motorcycle from Habbuvada towards Karwar, at about 10.30 pm, near Ganapati Temple, the deceased was proceeding on his bicycle from Karwar to Habbuvada and at that time, the Tipper lorry coming from behind dashed to the cyclist resultantly, the cyclist suffered injuries to leg and head. He called to the family members of the injured. Then the son of the injured came and shifted him to the hospital. He also has deposed to the registration number of the tipper lorry and he also came to know about the death of Sairobha at Bambolim Hospital, Goa. 22. CW6-Ravi, who is examined as PW12 who is Motor Vehicles Inspector, Regional Transport Office, Karwar has deposed in his evidence as to the inspection of tipper lorry and also issuance of report as per Exhibit P5. - 16 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 23. CW11-Dr Siddharth Banavalikar, Assistant Professor, Department of Forensic Medicine, Goa Medical College, Bambolim, Goa, is examined as PW7. He has deposed as to conducting of post-mortem on the dead body of Sairobha and also regarding issuance of Post-mortem report Exhibit P6. 24. CW15-Prasad, PSI, Traffic Police Station, Karwar and CW16-Sharanagouda, Police Inspector, Karwar Central Police Station, examined as PWs.8 & 9 have deposed as their respective investigation. 25. PW3 is an independent eye-witness and complainant. He has deposed in his evidence that he do not know as how the accident took place. He do not know as to who was the driver of the tipper lorry as on the date of the accident. Even in his re-examination made by the Senior Additional Public Prosecutor, he has categorically admitted that he has not witnessed this accident. Further, he has clearly admitted in his cross-examination that at the time of accident, none were present except him. Even complaint-Exhibit P3 also does not reveal as to the other eye-witnesses, who are examined before the Court as PWs.4 & 5. During the course of - 17 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 cross-examination of PW4, he has clearly admitted that he has not witnessed the accident. Even he has not observed as how the cyclist has fallen from cycle. If really PWs.4 & 5 had witnessed the accident and were present at the spot of accident, the complainant would have mentioned their names in the complaint Exhibit P3. As admitted by PW1, none were present at the spot the time of accident. This evidence of PW3 reveals that the Investigating Officer had subsequently planted these witnesses PWs.4 & 5 and they have not witnessed the accident. Hence, their evidence cannot be believed. Considering all these aspects, the trial Court acquitted the accused. 26. On re-examination, re-evaluation, re-consideration and re-appreciation of the entire evidence on record and keeping in mind the decisions of the Hon’ble Supreme Court stated supra, I do not find any error/illegality/infirmity in the impugned judgment of acquittal. Accordingly, I answer point No.1 in the negative. - 18 - NC: 2025:KHC-D:5165 CRL.A No. 100210 of 2018 Regarding Point No.2: 10. For the aforestated reasons and discussions, I proceed to pass the following: O R D E R (i) Appeal dismissed; (ii) Judgment of acquittal dated 15th November, 2017 passed in CC No.271 of 2016 by the Chief Judicial Magistrate, Karwar is confirmed; (iii) Registry to transmit the trial court records along with the copy of this judgment to the concerned Court. Sd/- (G BASAVARAJA) JUDGE RSH & LNN / CT-CMU LIST NO.: 1 SL NO.: 24