Karnataka High Court

State By Thunganagar Police vs Sridhar Poojari on 9 January, 2023

Bench: P.N.Desai

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                                                         CRL.A No. 1315 of 2012




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 9TH DAY OF JANUARY, 2023

                                              BEFORE
                                THE HON'BLE MR JUSTICE P.N.DESAI
                                CRIMINAL APPEAL NO. 1315 OF 2012
                      BETWEEN:

                       STATE BY THUNGANAGAR POLICE
                       SHIMOGA.

                                                                   ...APPELLANT
                      (BY SMT. K.P.YASHODHA., HCGP)
                      AND:

Digitally signed by
                       SRIDHAR POOJARI
NAGARATHNA M           S/O. SRI. ANNAPPA POOJARI,
Location: HIGH
COURT OF               AGED ABOUT 48 YEARS,
KARNATAKA
                       DRIVER OF SAHAKARA,
                       SARIGE BUS BEARING NO.KA-18-A-5048, RESIDING AT
                       KONAGODI VILLAGE,
                       BELLUR POST,
                       CHICKMAGALUR DISTRICT - 577101

                                                                ...RESPONDENT
                      (BY SRI. GIRISH KODGI, ADVOCATE)
                            THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE
                      STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE
                      COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN
                      APPEAL AGAINST THE JUDGEMENT AND ORDER OF
                      ACQUITTAL DATED 25.09.2012 PASSED BY III ADDL. C.J. &
                      J.M.F.C., SHIMOGA IN C.C.NO.1236/2011 -ACQUITTING THE
                      RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.279,
                      304(A) OF IPC.
                              -2-
                                     CRL.A No. 1315 of 2012




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal arises out of the judgment of acquittal

passed in C.C.No.1236/2011 dated 25.09.2012 by III

Additional Civil Judge and JMFC, Shivamogga, wherein

the respondent/accused was acquitted for the offences

under Sections 279 of and 304A of Indian Penal Code

(for short hereinafter referred to as IPC).

2. The brief case of the prosecution is that on

08.02.2011, the complainant along with his brother and

cleaner of Canter 407 vehicle bearing No.KA-18-3701 in

order to purchase the grocery items for his shop at

N.R.Pura and were returning to N.R.Pura. When their

vehicle reached near Ganidal bridge, a bus bearing

No.KA-18-A-5048 driven by its driver/accused in a rash

and negligent manner dashed against the Canter, due to

which the Canter moved nearly 20 feet back and fell into

CRL.A No. 1315 of 2012

the trench which was 20 feet depth. In the said accident,

the complainant sustained simple injuries on his right

knee and right thumb. The Cleaner - Shekar had

sustained simple injuries whereas the driver of the

Canter got tangled between staring wheel and the seat.

The driver was immediately removed and shifted to

Mc.Gann Hospital, Shivamogga, where he succumbed to

the injuries at about 07:30 p.m. It is also stated that the

inmates of the bus had also sustained injuries. Hence,

PW.1/complainant lodged a complaint on the same day

at Tunganagar Police Station, Shivamogga. The said

complaint registered in Cr.No.52/2011 for the offences

punishable under Sections 279, 337, 304(A) of IPC.

Thereafter investigation was conducted and charge sheet

is filed against the respondent/accused for the offence

stated above.

3. In order to prove its case, the prosecution in

all examined five witnesses as PWs.1 to 5 and got

CRL.A No. 1315 of 2012

marked eight documents as Exs.P1 to P8. The

respondent/accused denied the evidence of prosecution

in his statement recorded under Section 313 of Code of

Criminal Procedure (for short hereinafter referred to as

'Cr.P.C.'). No defense evidence is lead. After hearing the

arguments, the Trial Court acquitted the accused.

Aggrieved by the judgment of acquittal, the State has

preferred this appeal.

4. Heard Smt. K.P.Yashodha, the learned HCGP

for appellant/state and Sri.Girish Kodgi, learned counsel

for the respondent/accused.

5. Learned HCGP for appellant/State argued that

the judgment of acquittal passed by the Trial Court is

illegal and contrary to the law and evidence on record.

The Trial Court has not properly appreciated the evidence

on record. The prosecution witnesses - PWs.1 to 5 clearly

admitted with regard to the manner in which the accident

took place. PWs.1 to 3 were inside the Canter vehicle and

CRL.A No. 1315 of 2012

their evidence cannot be disbelieved. The place where

the accident occurred is on a bridge and it was very

narrow road, only one vehicle could pass through the

bridge at a time. The place of accident i.e., Ganidal

Bridge is very narrow i.e., measuring 12 feet width x 30

feet length and due to the rash and negligent driving of

the driver of the bus, the accident occurred. The

respondent/accused is responsible for the accident and

the Trial Court has erred by applying the contributory

negligence theory in the case. It is no where stated and

no witnesses have stated that the deceased/driver of the

Canter is also responsible for the accident. Per contra,

the respondent/accused neither led any evidence on his

behalf to prove his defense nor given any explanation in

313 Cr.P.C statement about his defense. When such

being the case, there is no reason to disbelieve the

evidence of witnesses to the incident i.e., PWs.1 and 3.

CRL.A No. 1315 of 2012

Therefore, learned HCGP prayed to set aside the

judgment of acquittal and to convict the accused.

6. Learned counsel for the respondent argued

that there is no need to interfere with the judgment of

acquittal passed by the Trial Court and he supports the

impugned judgment of acquittal and prays to dismiss the

appeal.

7. I have perused the judgment of the Trial

Court. The learned ACMM has framed two points for

consideration:

8. From the above the following points arise for

my consideration:

1) Whether the Judgment of acquittal by Trial Court is perverse, erroneous and illegal hence need interference by this Appellate Court?

2) What order?

9. I have perused the evidence.

CRL.A No. 1315 of 2012

10. PW.1 is the complainant and he is the owner

of the grocery shop which was loaded in the Canter

vehicle. PW.1 has denied having stated before the police

in his statement that the accident occurred near the

bridge. PW.1 in his cross-examination has admitted that

the width of the bridge is only 12 feet and the length is

nearly 30 feet. PW.1 has stated that he has sustained

only two simple injuries on his right knee and right

thumb. But in order to prove the same, he has not

produced any wound certificate. PW.1's evidence cannot

be believed as when a Canter having loaded with 18

quintals of grocery items fell into a trench of nearly 20

feet depth, it is highly impossible that he would sustain

only two simple injuries on his hands and legs. Hence,

the Trial Court has raised a doubt about the presence of

PW.1 at the time, when the accident was occurred.

11. PW.2/Suresh is a spot mahazar witness who

supported the case of the prosecution. In his

CRL.A No. 1315 of 2012

examination-in-chief he has stated that a panchanama

was drawn at 10:45 a.m. near the place of accident,

wherein a Canter and a KSRTC bus were there at the

spot. In the cross-examination, he has stated that the

width of the bridge is 13 feet and the length is 30 feet.

Further he has stated that he could not say boundaries of

the place of accident. He has also stated that the front

side glass of the bus was broken.

12. PW.3/Shekar who is working as a Cleaner in

the Canter vehicle and who was the inmate of the Canter

vehicle at the time of accident. PW.3 has stated that on

the date of accident, himself, PW.1 and deceased - driver

of the Canter vehicle went to Shivamogga to purchase

the grocery items. While returning about 06:00 p.m.

near Ganidal bridge, a bus came from opposite direction

and dashed against the Canter. Due to the impact, the

Canter vehicle moved 20 feet back and fell into the

trench. Further, PW.1 has sustained simple injuries and

CRL.A No. 1315 of 2012

he has sustained injuries to his head and shoulder, but to

prove the same, he has not produced any wound

certificate. In the cross-examination he has denied the

suggestion put to him that bus had almost crossed the

bridge and the driver of the Canter forcefully tried to

enter the bridge and dashed against the bus. He has

denied the suggestion that in order to provide

compensation to the family members of the deceased

from the Court, he is deposing against the accused.

13. PW.4/M.Srinivas is the Police Sub-Inspector of

Thunganagar police station. PW.4 stated about receiving

the complaint on 08.02.2011 at 08:05 p.m. and

registering the Cr.No.52/2011 and handing over the

investigation to PW.3 CW.21. He has also stated that the

FIR is marked as Ex.P7.

14. PW.5/Siddalingappa is the C.P.I, of Doddapete

Circle who has conducted further investigation. He had

done the inquest panchanama of deceased - Syed Karim

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CRL.A No. 1315 of 2012

and recorded the statement of the witnesses. He has

collected the IMV report and wound certificates of the

injured and after completing the investigation filed the

present charge sheet. In the cross-examination he has

admitted that he was present at the time of drawing the

spot panchanama and further he has stated that the

width of the bridge is 14 feet and length is 40 feet. He

has admitted that only one heavy vehicle can move on

the bridge at a time. This witness has admitted that,

Shivamogga road is on the northern side and N.R.Pura

road is on the southern side. He has also admitted that

accused/the driver of the KSRTC bus was proceeding

towards northern side. He has also admitted that the

spot of accident is at the end of the bridge which is in the

northern side. He has denied the suggestion that due to

the negligence of the driver of the Canter vehicle the

accident occurred.

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CRL.A No. 1315 of 2012

15. Therefore, from re-appreciating the evidence

on record and materials placed on record, it is evident

that the Trial Court has meticulously considered the

evidence placed by the prosecution and held that both

the bus and Canter vehicle tried to cross the bridge at a

time, due which the accident occurred. The Trial Court

relied the decision of this Court in the case of K.Srinivas

Vs. State of Karnataka, reported in 2002(3) KCSR

1961, wherein, this Court has discussed with regard to

the contributory negligence and it is stated that in the

absence of any material to show that only on account of

rash and negligent driving of the accused/driver the

accident occurred, it would not be permissible under such

circumstances to hold the accused driver guilty of

committing the offence. Relying on the settled principles,

the Trial Court found that the prosecution has failed to

prove the guilt of the accused beyond all reasonable

doubt and acquitted the accused.

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CRL.A No. 1315 of 2012

16. I have perused the records and evidence.

From the perusal of the evidence of prosecution witness,

nothing worthwhile is elicited from the evidence of PW.1

to 5 and they have given general and vague evidence.

PW.1/compalinant and PW.3/cleaner of the Canter were

there in the Canter and they have stated that they have

sustained only simple injuries and the same cannot be

believed, as they have stated that the Canter vehicle

moved 20 feet backwards and fell in a trench. If at all the

Canter fell in a trench, definitely the inmates of the said

vehicle would have sustained grievous injuries.

17. PWs.1 and 3 have sustained only two simple

injuries to their hands and legs. Further, they have not

produced any medical records or wound certificate in

order to prove the same. Therefore, their presence in the

vehicle itself creates a doubt. Further, from the evidence

of prosecution witnesses, it is not elicited exactly where

the accident has taken place and in which the manner

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CRL.A No. 1315 of 2012

the accident took place. Simply, they have stated that

the driver of the bus drove the bus in a rash and

negligent manner with a high speed and caused the

accident. Except these witnesses, the prosecution has not

examined any single witness who are the inmates of the

bus to show that the driver of the bus was driving the

bus in a rash and negligent manner, so as to endanger

the human life. Both PWs.1 and 3 are the interested

witnesses. PW.1 is the owner of the Canter and PW.3 is

the cleaner. Their presence in the said vehicle itself was

doubtful. The panch witness - PW.2/Suresh he has stated

in the cross-examination that he cannot say the

boundaries of the said place and he has not stated

exactly where the accident occurred. PW.4 is the receiver

of the complaint and PW.5 conducted the investigation.

18. PW.5 who has admitted that in said bridge

only one heavy vehicle can pass through at a time.

PW.5/investigation officer has stated in the cross-

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CRL.A No. 1315 of 2012

examination that the accident occurred at the edge of the

northern side of the bridge and he has also stated that

the bus was moving from southern to northern side and

the Shivamogga road comes to northern side and

N.R.Pura road comes to southern side. But from the

perusal of the sketch it is clear that on the northern side,

the road reaches to N.R.Pura and on the southern side, it

leads to Shivamogga and it is also clear from the sketch

that the bus was moving from north to south side

direction, which is contrary to the evidence of

PW.5/investigation officer. PW.5 has wrongly shown the

spot of the accident. This itself creates doubt about the

investigation done by the investigation officer. Therefore,

on perusing the entire evidence of prosecution and

material on record. It is evident that the evidence of

PWs.1 and 3 is not sufficient to hold that the accused

was driving the bus in a rash and negligent manner and

caused the accident. None of the inmates of the bus were

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CRL.A No. 1315 of 2012

examined or cited as witness to show that the accused

drove the bus in a rash and negligent manner. Therefore,

the Trial Court has rightly come to the conclusion that

the prosecution evidence creates doubt and benefit of

doubt was given to the accused relying on the decision of

this Court in the case of K.Srinivas referred supra.

19. It is settled principles of law that the

prosecution has to prove its case as alleged. The initial

burden is on the prosecution to prove its case beyond all

reasonable doubt. If the evidence of the prosecution is

considered, then, their evidence creates doubt about the

alleged cruelty. In the light of the defence taken by the

accused, it is settled principle of law that benefit of doubt

should be given to the accused if there are two views

possible from the prosecution witnesses.

20. Further, it is also settled principles of law that

this Court being a First Appellate Court cannot lightly

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CRL.A No. 1315 of 2012

interfere in the judgment of the acquittal by the Sessions

Court, unless, said finding is not based on the evidence

or the judgment is perverse which requires interference

by this Court.

21. The Hon'ble Supreme Court while dealing with

the power of the appellate court in interfering with the

judgment of acquittal held that unless the judgment of

trial court is perverse, illegal and not based on sound

principles regarding appreciation of evidence, the

appellate court shall not interfere in the judgment of

acquittal. Because the judgment of acquittal gives double

presumption of innocence to the accused.

22. In this regard, the Hon'ble Supreme Court has

laid down the general principles regarding interference,

the power of the appellate Court in an appeal against

judgment of acquittal by the trial court. In the case of

Sampat Babso Kale and Another v. State of

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CRL.A No. 1315 of 2012

Maharashtra [(2019) 4 SCC 739], at para-8, it is

held thus:

"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-

"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

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CRL.A No. 1315 of 2012

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 is further reinforced, reaffirmed and strengthened by the trial court.

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CRL.A No. 1315 of 2012

(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."

23. In view of the principles stated by the Hon'ble

Supreme Court in the decisions referred above and on

re-assessing the entire evidence of prosecution

witnesses, I am of the considered opinion that the

prosecution has failed to prove the guilt of the accused

beyond all reasonable doubt. The learned Sessions judge

has considered the entire evidence meticulously and has

come to the conclusion that the prosecution has failed to

prove the guilt of the accused beyond all reasonable

doubt and acquitted the accused by giving benefit of

doubt. I find that the judgment of acquittal passed by the

trial court is neither illegal, perverse, erroneous nor the