Karnataka High Court
The State Of Karnataka vs H M Shailesh Kumar on 19 December, 2023
-1-
NC: 2023:KHC:46282
CRL.A No. 389 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 389 OF 2015
BETWEEN:
THE STATE OF KARNATAKA,
BY SOUTH WESTERN RAILWAY,
ARASIKERE - 573 103.
...APPELLANT
(BY SRI. M.K. PATIL, HCGP)
AND:
H.M. SHAILESH KUMAR,
S/O MASTIGOWDA,
AGE: 30 YEARS,
R/O GONI TUMUKURU,
TURUVEKERE TALUK - 572 227.
...RESPONDENT
Digitally signed
by SANDHYA S (BY SRI. M VINAYAKEERTHY, ADVOCATE)
Location: High
Court of THIS CRL.A IS FILED U/S.378(1) AND (3) OF CR.P.C
Karnataka
PRAYING TO a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 22.8.2014 PASSED BY THE
LEARNED JMFC AND PRL. SESSIONS JUDGE, TURUVEKERE IN
CRL.CASE NO.336/2012, ACQUITTING THE RESPONDENT -
ACCUSED OF THE OFFENCES P/U/S 154 & 161 OF RAILWAY
ACT 2003.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:46282
CRL.A No. 389 of 2015
JUDGMENT
The State has preferred this appeal filed against the
judgment of acquittal passed by the Learned Civil Judge, JMFC,
Turuvekere in CC.No.336/2012 dated 22.08.2014, (for short
hereinafter referred to as "trial Court").
2. The rank of the parties in this appeal are referred to
as per their status before the trial Court.
3. The case of the prosecution is that on the
intervening night of 25/26-11-2011 at about 12.10 am, the
accused drove the vehicle Mahindra Ape passenger auto
rickshaw bearing No.KA-44-3164 and while crossing the
unmanned Level-crossing gate No.68 at KM No.115/800-700
between Banasandra and Ammasandra Railway Stations from
Dunda Village side to Heggere direction stopped the said auto
between the tracks. In the meantime, train No.17311 Chennai-
Hubli express hit the said auto and due to impact, the auto was
thrown at the distance of 25 meters from the said gate,
consequently said auto had completely damaged. Immediately
train was stopped and suffered detention from 00.10 to 00.40
hours. The train escorting Railway Protection Force Staff, train
NC: 2023:KHC:46282
Loco Pilot and assistant Loco Pilot cleared the entangled and
damaged auto rickshaw from the track. After this incident,
Loco Pilot conveyed the message through station master
Banasandra and Divisional control office, Mysore over phone.
On the receipt of the information from the Station Master,
Arsikere, the complainant rushed to the spot and found that the
said auto rickshaw was completely damaged and seized the
auto rickshaw under seizure mahazar and registered the case in
Crime No.992/2011 for the commission of offences punishable
under Sections 154 and 161 of Railways Act (amended), 2003
and took up investigation. After completing the investigation,
the Investigating Officer has filed charge sheet for the said
offences.
4. The trial Court has taken cognizance against the
accused for the alleged commission of offences and the case
was registered and the summons was issued to the accused. In
response to the summons accused appeared before the trial
Court and enlarged on bail.
5. The trial Court has framed the charges for the
commission of offence punishable under Sections 154 and 161
NC: 2023:KHC:46282
of Railways Act. Having understood the same accused pleaded
guilty not and claimed to be tried. To prove the guilt of the
accused 9 witnesses were examined as PW1 to PW9, 19
documents were marked as Ex.P1 to Ex.P19. On closure of
prosecution side evidence statement under Section 313 of
Cr.P.C was recorded. The accused has totally denied the
evidence found against him. Accused has not chosen to lead
any defence evidence on his behalf.
6. On hearing the arguments on both sides the trial
Court has acquitted the accused. Being aggrieved by the
impugned judgment of acquittal the State has preferred this
appeal.
7. Learned High Court Government Pleader has
submitted his arguments that the impugned judgment and
order of acquittal passed by the Court is illegal/invalid and
contrary to law and facts. The Court below while acquitting the
accused has erroneously held that evidence of prosecution
witnesses, have failed to prove that the accused himself
negligently stopped the said auto in between the tracks. The
act of the accused is endangering the safety of persons
NC: 2023:KHC:46282
traveling by railway. The Trial Court has not properly
appreciated the evidence on record in accordance with law and
facts. On all these grounds sought for to allow this appeal.
8. Respondent's counsel remained absent. Hence,
respondent side argument is taken as NIL.
9. Having heard the arguments of learned High Court
Government Pleader and perusal of records, the following
points would arise for consideration:
1) Whether the State has made out a ground to
interfere with the impugned judgment of
acquittal.
2) What order?
My answer to the above points are as under:
Point No.1: 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 with regard to scope and power of
Appellate Court in appeal against the order of acquittal. In the
case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF
NC: 2023:KHC:46282
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 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
NC: 2023:KHC:46282
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."
11. 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
NC: 2023:KHC:46282
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. ..."
12. 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
NC: 2023:KHC:46282
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...."
13. 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
- 10 -
NC: 2023:KHC:46282
to be more probable. The interference would be
warranted only if the view taken is not possible at all."
14. 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."
15. Now, I would like to the facts of case on hand.
Sections of 154 and 161 of Railways Act, 1989 reads as
hereunder:
"Section 154 of Railways Act, 1989:
Endangering safety of persons travelling
by railway by rash or negligent act or
- 11 -
NC: 2023:KHC:46282
omission.--If any person in a rash and
negligent manner does any act, or omits to do
what he is legally bound to do, and the act or
omission is likely to endanger the safety of
any person travelling or being upon any
railway, he shall be punishable with
imprisonment for a term which may extend to
one year, or with fine, or with both.
Section 161 of Railways Act, 1989:
Negligently crossing unmanned level
crossing.--If any person driving or leading a
vehicle is negligent in crossing an unmanned
level crossing, he shall be punishable with
imprisonment which may extend to one year.
Explanation.--For the purposes of this section,
"negligence" in relation to any person driving
or leading a vehicle in crossing an unmanned
level crossing means the crossing of such level
crossing by such person--
(a) without stopping or caring to stop the
vehicle near such level crossing to observe
whether any approaching rolling stock is in
sight, or
(b) even while an approaching rolling stock is
in sight."
16. In the case on hand, it is the case of prosecution
that the accused driven Mahindra Ape passenger auto rickshaw
bearing No.KA-44-3164 and while crossing the unmanned
railway Level-crossing gate, stopped the said auto rickshaw
between the tracks. In the meantime, train No.17311 Chennai-
Hubli Express hit the said auto and the impact of the same,
- 12 -
NC: 2023:KHC:46282
auto was fully damaged. Thus the accused has committed the
alleged offences.
17. Ex.P1 is the copy of the message reveals that the
registration number of auto rickshaw is shown as KA-44-3164,
Ex.P2-Mahazar, Ex.P3-FIR, Ex.P4-Rough Sketch, Ex.P9-MV
report also reveal the same. The Investigating Officer has not
produced the RC book or B-extract pertaining to the auto
rickshaw bearing No.KA-44-3164, but the prosecution has
produced the copy of RC book pertaining to auto rickshaw
No.KA-44-3461 which is standing in the name of one
J.Krishnappa. A perusal of the same reveals that the copy of
permit, pertaining to auto rickshaw No.KA-44-3461 do not tally
with the prosecution papers like FIR, Mahazar and MV report.
Investigating Officer has not explained anything as to the
discrepancies of auto rickshaw involved in the accident. The
investigation Officer has also not disclosed the charge sheet
number and engine number.
18. Hence, the case of the prosecution will create
reasonable doubt as to the involvement of the vehicle involved
in the accident, apart from this PW7-J.Krishnappa owner of the
- 13 -
NC: 2023:KHC:46282
auto rickshaw has deposed that at about 12.10 a.m. (mid
night) the auto was stopped due to the brake down of gear box
near unmanned railway gate. Ex.P9-Motor vehicle accident
report does not reveal as to the damage of the gear box.
19. The IMV inspector Smt. Ranjitha B.K, has not been
examined before the Court, though she is shown as CW9. The
prosecution has given up this witness for the reasons best
known to the prosecution. The prosecution has not disputed the
evidence of DW1 as to the damage of gear box as stated by
PW7 on oath. The accident might have occurred due to
mechanical defect of the auto rickshaw. The prosecution has
failed to prove the essential ingredients to attract the
provisions of Section 154 and 161 of Railways Act, 1989. There
is no evidence to prove as to the negligent act on the part of
the accused at the time of commission of offence. The trial
Court has properly appreciated the evidence on record in
accordance with law and facts.
20. On re-examination/re-consideration and re-
appreciation of the evidence on record and also keeping in the
mind of above said decisions, I do not find any illegality/legal
- 14 -
NC: 2023:KHC:46282
infirmity in the impugned judgment of acquittal. Hence, I
answer point No.1 in the negative.
Regarding Point No.2:
21. For the aforesaid reasons and discussion, I proceed
to pass the following:
ORDER
i. Appeal is dismissed.
ii. The judgment of acquittal passed by Learned
Civil Judge, JMFC, Turuvekere in
CC.No.336/2012 dated 22.08.2014 is
confirmed.
iii. Registry is directed to send a copy of this
judgment along with the trial Court records to
the concerned trial Court forthwith.
Sd/-
JUDGE
PK
CT: BHK
