Karnataka High Court

The State Of Karnataka vs Nazeer Hussain on 20 December, 2023

                                                -1-
                                                           NC: 2023:KHC:46527
                                                        CRL.A No. 828 of 2015




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                               BEFORE
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 828 OF 2015
                   BETWEEN:

                   THE STATE OF KARNATAKA
                   BY MUDIGERE POLICE STATION - 577 132.
                                                                 ...APPELLANT
                   (BY SRI. M.R.PATIL, HCGP)

                   AND:

                   NAZEER HUSSAIN,
                   S/O ADAM,
                   AGED ABOUT 21 YEARS,
                   R/O SUBHASH NAGARA,
                   BILAGULA VILLAGE,
                   MUDIGERE TALUK-577 132.
                                                               ...RESPONDENT
                   (RESPONDENT SERVED & UNREPRESENTED)

Digitally signed        THIS CRL.A. FILED U/S 378(1) AND (3) CR.P.C. PRAYING
by SANDHYA S       TO a) GRANT LEAVE TO APPEAL AGAISNT THE JUDGEMENT
Location: High
Court of           AND ORDER DATED 20.3.2015 PASSED BY THE PRL. CIVIL &
Karnataka          JMFC, MUDIGERE IN C.C.NO.1024/2013 IN ACQUITTING THE
                   RESPONDENT-ACCUSED OF THE OFFENCES PUNISHABLE
                   UNDER SECTIONS 279 AND 337 OF IPC. (b) SET ASIDE THAT
                   PART OF JUDGMENT AND ORDER OF ACQUITTAL DATED
                   20.3.2015   PASSED     BY    THE    COURT    BELOW     IN
                   C.C.NO.1024/2013, BY ALLOWING THIS CRL.A. AND (c)
                   CONVICT AND SENTNECE THE RESPONDENT-ACCUSED FOR
                   THE OFFENCES PUNISHABLE UNDER SECTIONS 279 & 337 OF
                   IPC.

                       THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
                               -2-
                                            NC: 2023:KHC:46527
                                         CRL.A No. 828 of 2015




                         JUDGMENT

The State has preferred this appeal against the judgment

of acquittal for the commission of offences punishable under

Sections 279 and 337 of IPC in C.C.No.1024/2013 on the file of

Prl. Civil Judge and JMFC, Mudigere dated 20.03.2015.

2. The rank of the parties in this appeal are referred in

the same rank as referred by the trial Court.

3. Brief facts of the prosecution case are that:

On 09.11.2013 at about 9.15 a.m. near M.S.Hallowbricks

Industries at Bilagula Village, Mudigere Taluk, the accused

being the rider of the motor cycle bearing registration No.KA-18

X-8480 rode it in a rash and negligent manner endangering to

human life and dashed against PW.1. As a result PW.1

sustained simple injuries. Further, it is alleged that the

accused was riding the said motor cycle without any licence.

Thus, accused had committed offences punishable under

Sections 279, 337 of IPC and Section 181 of M.V. Act.

4. After filing the charge sheet, a case was registered

in C.C.No.1024/2013. Summons was issued to the accused. In

response to summons, accused appeared before the trial Court

NC: 2023:KHC:46527

and was enlarged on bail. Substance of plea was recorded.

Accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, prosecution has

examined seven witnesses as PWs.1 to 7 and marked eight

documents as Exs.P1 to P8. On closure of prosecution side

evidence, statement of accused under Section 313 of Cr.P.C.

was recorded. Accused had totally denied the evidence of

PW.1, but did not choose to lead any defence evidence on his

behalf. On hearing the arguments, the trial Court acquitted the

accused for the offence punishable under Sections 279 and 337

of IPC but the trial Court convicted the accused for the

commission of offence punishable under Section 181 of M.V.

Act and sentenced him to a pay fine of Rs.500/- in default, to

undergo simple imprisonment for one week. The accused has

paid the fine amount of Rs.500/-. Being aggrieved by the

judgment of acquittal for the commission of offence punishable

under Sections 279 and 337 of IPC, the State has preferred the

present appeal.

6. Sri.M.R.Patil, learned High Court Government

Pleader for the appellant/State has submitted his arguments

NC: 2023:KHC:46527

that the trial Court has not properly appreciated the evidence

on record in accordance with law and facts. The reasons

assigned by the trial Court for acquittal of the accused are

erroneous and trial Court has reached to a wrong conclusion

which resulted in miscarriage of justice and sought for allow

this appeal.

7. Despite service of notice, respondent remained

absent and unrepresented. Hence, arguments on respondent's

side is taken as nil.

8. Having heard the arguments of learned HCGP and

perusal of records, the following points would arise for my

consideration:

1. Whether the State/appellate has made out grounds to interfere with the impugned judgment of acquittal for the commission of offences punishable under Sections 279 and 337 of IPC?

2. What order?

9. My answer to the above points is as under:

           Point No.1:       In the negative;
           Point No.2:       As per final order.

                                                  NC: 2023:KHC:46527

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.

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.

NC: 2023:KHC:46527

(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 SCC

ONLINE 69, at paragraph 16 of the judgment it is held as under:

NC: 2023:KHC:46527

"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

NC: 2023:KHC:46527

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:

NC: 2023:KHC:46527

"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, 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."

- 10 -

NC: 2023:KHC:46527

16. As could be seen from the charge sheet, there are 11

witnesses, who have been cited in the charge sheet. Out of

them, seven witnesses were examined as PWs.1 to 7. PW.1-

Sharada, the complainant and the injured has deposed in her

evidence that, on 09.11.2013 at about 9.15 a.m. when she was

proceeding to Milan Factory for duty, at that time, rider of the

motor cycle bearing registration No.KA-18 X 8480 came from

back side and hit her. As a result, she sustained injuries on her

head. Then she was shifted to hospital. Accident occurred due

to the fault of the accused. Hence, she lodged the complaint as

per Ex.P1. PW.2-Satisha, said to be the eye witness has

deposed in his evidence that, on 09.11.2013 between 9.00

a.m. and 9.30 a.m. he was standing near Vijaya Bank at

Bilagula along with CW.3. At that time, accused was

proceeding in a motor bike from Mudigere towards

Chickmagalur with a high speed and hit PW.1. As a result, PW.1

sustained injuries on her head and hands. Then, he shifted the

injured to the hospital. Thereafter, police came to the spot and

conducted mahazar as per Ex.P2 and prepared spot sketch as

per Ex.P3. PW.3 is attester to the mahazar Ex.P3. PW.4

Suresha has deposed in his evidence as to the accident. During

- 11 -

NC: 2023:KHC:46527

the course of cross-examination of PW.1, she has clearly

admitted that she has not witnessed the bike prior to the

accident. PWs.1, 2 and 4 have not deposed as to the rash and

negligent act on the part of the accused. Ex.P7 wound

certificate reveals that PW.1 sustained the following injuries:

1. Lacerated wound on occipital region of 3/1 inches;

2. Abrasion on 2nd and 3rd toe of left feet.

17. If really the accused being the rider of the motor

cycle rode the same in a rash and negligent manner with high

speed, PW.1 would have sustained grievous injuries.

Accordingly, the trial Court has properly appreciated the

evidence on record in accordance with law and facts and

acquitted the accused for the commission of offence punishable

under Sections 279 and 337 of IPC. Even on re-appreciation/

re-examination and re-consideration of the evidence on record,

I do not find any legal infirmities/illegalities in the impugned

judgment of acquittal for the commission of offence punishable

under Sections 279 and 337 of IPC. Hence, I answer point

No.1 in the negative.

- 12 -

NC: 2023:KHC:46527

18. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

1. The appeal is dismissed;

2. The impugned judgment of acquittal for the

commission of offence punishable under Sections

279 and 337 of IPC passed by the Prl. Civil Judge

and JMFC, Mudigere in C.C.No. 1024/2013 dated

20.03.2015 is hereby confirmed;