Karnataka High Court
The State Of Karnataka vs Salim Khan on 1 March, 2024
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CRL.A No. 1108 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1108 OF 2016
BETWEEN:
THE STATE OF KARNATAKA
BY THE POLICE INSPECTOR,
TRAFFIC EAST POLICE STATION,
MANGALURU, D.K.
REP BY S.P.P
HIGH COURT BUILDING,
BANGALORE - 575 001.
...APPELLANT
(BY SMT. R. SOWMYA., (HCGP))
AND:
SALIM KHAN
AGED ABOUT 25 YEARS,
S/O ASGAR ALI,
R/AT K.R.PURAM ROAD,
NORTH SIDE,
BHARAMAPPA NAGAR,
SHIVAMOGGA DISTRICT - 577 201.
...RESPONDENT
Digitally signed by (BY SRI. PRASANNA V R ., ADVOCATE)
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH
COURT OF THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C BY THE
KARNATAKA S.P.P. FOR THE STATE/APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGEMENT AND ORDER DATED 20.04.2016 PASSED
IN C.C.NO.2826/2013 ON THE FILE OF JMFC(III COURT),
MANGALURU, D.K., ACQUITTING THE RESPONDENT FOR THE
OFFENCES P/U/S 279,304(A) OF IPC AND SEC. 134(a)(b) R/W 187
OF IMV ACT AND SEC. 2 AND 3(1) R/W 181 OF IMV ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1108 of 2016
JUDGMENT
The appellant - State has filed this appeal under Section
378(1) and (3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C." for brevity) challenging the
judgment of acquittal dated 20.04.2016 passed by the learned
J.M.F.C. (III Court) Mangaluru, D.K., (hereinafter referred to as
`trial Court' for brevity) in C.C.No.2826/2013, acquitting the
accused of the offences punishable under Sections 279 &
304(A) of IPC, Section 134(a)(b) read with Section 187 of IMV
Act under R.R. Rule 2 read with Section 131 & 181 of IMV Act.
2. For the sake of convenience, the parties are referred to
as per their rankings before the trial Court. The appellant is the
complainant-State and the respondent is the sole accused.
3. The name of the deceased is Rithesh. The summary of
the prosecution before the trial Court as could be gathered
from the charge sheet is that, on 04.03.2013 at about 10.30
p.m., the accused being the driver of Mahindra Bolero
Pickup/LGV bearing Registration No. KA-14-B-0022 drove the
same from Yeyyadi Industrial Area cross towards K.P.T.
junction on Airport concrete road in an opposite direction on
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the right side of the road in a rash and negligent manner, so as
to endanger the human life and dashed to the motor cycle
bearing Registration No.KA-19-Q-2193 at Sharabathkatte, in
front of the house of one Ramachandra Savanth, which was
ridden by the deceased, due to which he fell on the road,
sustained severe injuries on his head and thus, died at the spot
on account of the injuries. After causing the accident, the
driver of the pickup vehicle has not shifted the injured to the
nearest hospital and has failed to intimate the fact of accident
to the nearest police station and thus, fled away from the spot.
Further, at the time of accident, the accused did not hold any
Driving License to drive the LGV vehicle and thereby, the
accused has committed aforesaid offences.
4. In this regard, P.W.1 Purushotham, an eyewitness to
the incident and friend of the deceased, lodged a complaint to
the Traffic East Police Station, Kadri, Mangaluru, on 04.03.2013
at 11.00 p.m. Based on the complaint-Ex.P1, the Traffic East
Police, Kadri, registered a case in Crime No.48/2013 for the
aforesaid offences and sent FIR-Ex.P11 to the Court. The
Investigating Officer-P.W.15 recorded the statement of eye
witnesses, conducted spot mahazar, inquest mahazar,
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examined seized Bolero vehicle and two wheeler and soon after
receipt of IMV report, P.M. report and after completion of
investigation, filed charge sheet against the accused for the
aforesaid offences.
5. After receipt of charge sheet, the trial Court took
cognizance of offence punishable under Section 190 (1)((b) of
Cr.P.C against the accused. The prosecution in order to prove
its case, examined in all 15 witnesses as P.Ws.1 to 15 and
documents were got marked as Exs.P1 to P.13. The trial Court
recorded the statement of accused under Section 313 of Cr.P.C.
to explain as to whether any incriminating circumstances
appear in the prosecution witnesses. The case of the accused
was of total denial.
6. After perusing the materials placed before the Court
and hearing both side, the trial Court acquitted the accused of
the offences charged. Thus, the State has preferred this
appeal.
7. Heard the arguments of counsels from both side.
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8. Learned HCGP has stated that the judgment of
acquittal passed by the trial Court is not in accordance with
law. There are three eye witnesses to the incident and they
have seen the accident and identified the accused and the
vehicles involved in the accident, but the trial Court has not
considered their oral testimonies.
9. The trial Court failed to draw proper inference from the
evidence on record and thus, the judgment of acquittal is
perverse. The trial Court failed to consider the fact that under
Section 134 of Indian Evidence Act, 1872 no particular number
of witnesses shall, in any case, be required for proof of any
fact. The trial Court failed to consider the dictum of the Hon'ble
Supreme Court of India reported in 2002(3) SCC 1107, (2012)
9 SCC 284, 2015(3) SCC 433 and 2015(3) SC 3345. It is
contended that the trial Court has given much weightage and
credence to the version of the defence and has given much
weightage to minor contradictions and variations. It is
contended that P.Ws.1 to 3 are the eye witnesses and P.W.8 is
the owner of Bolero vehicle have stated about the accident.
However, to discredit the oral testimony of P.Ws.1 to 3 and 8,
the accused has not placed any material before the Court and
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no explanation is offered by the accused in his statement
recorded under Section 313 of Cr.P.C. Hence, the learned
HCGP prayed to allow the appeal.
10. Sri Prasanna V.R. learned counsel for the respondent
vehemently contended that none of the prosecution witnesses
were present at the time of accident and have identified the
accused. In fact, as per the statements of these witnesses,
they have identified the accused in the Police Station. The
investigating officer has recorded their statements after two
days of the accident. P.Ws.1 to 3 appears to be planted eye
witnesses. P.W.1-Purushothama is none other than the friend
of the deceased and he never seen the accident and hence, his
oral testimony cannot be believed. The seizure mahazar-Ex.P5
conducted by the Investigating Officer appears to be a
fabricated one. It is contended that though the accused
disputed his identity, but the prosecution has not placed any
material to prove that the person who caused the accident was
the accused. Hence, the prosecution has not placed any
material so as to involve the accused in the instant case.
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11. Learned counsel for the respondent further contended
that, in the present case there was no such manifest
irregularity in the appreciation of evidence by the trial Court
and therefore, interference with the judgment of acquittal
passed by the trial Court could not arise and thus, learned
counsel prays for dismissal of the appeal.
12. In support of his contention, he relies upon the
decision in case of Khurshid Ahmed v/s State of Jammu
and Kashmir reported in AIR 2018 SC 2457 and has taken
the contention that, the power of appellate Court in an appeal
against acquittal is the same as that of an appeal against
conviction. But, in an appeal against acquittal, the Court has to
bear in mind that the presumption of innocence is in favour of
the accused and it is strengthened by the order of acquittal. At
the same time, the appellate Court will not interfere with the
order of the acquittal mainly because two views are possible,
but only when the High Court feels that the appreciation of
evidence is based on erroneous considerations and when there
is manifest illegality in the conclusion arrived at by the trial
Court.
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13. After hearing the learned counsel from both side, the
points that arise for my consideration in this appeal is,
1) Whether the prosecution has proved beyond
reasonable doubt that on 04.03.2013 at
10.30 p.m. the appellant being the driver of Bolero
vehicle bearing registration No.KA-14-B-0022 at the
same time from the junction at Airport road in the
opposite driving on the road said by the road in a
rash an negligent manner and dashed at the motor
cycle bearing registration No. KA-19-Q-2193 at
Sharabathkatte and caused the death of deceased
Rithesh Kumar and the accused failed to inform the
nearest Police station regarding the accident and also
failed to took the injured to the nearest hospital for
treatment and the accused was not holding any
Driving License?
2) Whether the judgment of acquittal in appeal
warrants the interference by this Court?
14. Before proceeding further in analysing the evidence
led in the matter, it is to be borne in mind that it is an appeal
against the judgment of acquittal of the accused for the
offences punishable under Sections 279 & 304(A) of IPC,
Section 134(a)(b) read with Section 187 of IMV Act under R.R.
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Rule 2 read with Section 131 & 181 of IMV Act. Therefore, the
accused has primarily the double benefit. Firstly, the
presumption under law is that, unless his guilt is proved, the
accused has to be treated as an innocent person in the alleged
crime. Secondly, the accused has already been enjoying the
benefit of judgment of acquittal passed under the impugned
judgment. As such, bearing the same in mind, the evidence
placed by the prosecution in the matter is required to be
analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of
Chandrappa and others -vs- State of Karnataka reported
in (2007) 4 Supreme Court Cases 415, while laying down
the general principles regarding powers of the Appellate Court
while dealing in an appeal against an order of acquittal, was
pleased to observe at paragraph 42(4) and paragraph 42(5) as
below:
"42(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
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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.
42(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."
(b) In the case of Sudershan Kumar -vs- State of
Himachal Pradesh reported in (2014) 15 Supreme Court
Cases 666, while referring to Chandrappa's case (supra),
the Hon'ble Apex Court at Paragraph 31 of its judgment was
pleased to hold that, it is the cardinal principle in criminal
jurisprudence that presumption of innocence of the accused is
reinforced by an order of acquittal. The Appellate Court, in such
a case, would interfere only for very substantial and compelling
reasons.
(c) In the case of Jafarudheen and others -vs- State
of Kerala reported in (2022) 8 Supreme Court Cases 440,
at paragraph 25 of its judgment, the Hon'ble Apex Court was
pleased to observe as below:
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"25. While dealing with an appeal against acquittal
by invoking Section 378 Cr.P.C, the appellate Court
has to consider whether the trial Court's view can be
termed as a possible one, particularly when evidence
on record has been analysed. The reason is that an
order of acquittal adds up to the presumption of
innocence in favour of the accused. Thus, the
appellate Court has to be relatively slow in reversing
the order of the trial Court rendering acquittal.
Therefore, the presumption in favour of the accused
does not get weakened but only strengthened. Such
a double presumption that enures in favour of the
accused has to be disturbed only by thorough
scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case
was reaffirmed by the Hon'ble Apex Court in the case of Ravi
Sharma -vs- State (Government of NCT of Delhi) and
another reported in (2022) 8 Supreme Court Cases 536
and also in the case of Roopwanti -vs- State of Haryana
and others reported in 2023 SCC OnLine SC 179.
It is keeping in mind the above principles laid down by
the Hon'ble Apex Court, we proceed to analyse the evidence
placed by the prosecution in this matter.
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15. In order to constitute an offence under Section
304(A) of IPC, the prosecution must prove that the death of
deceased was on account of accidental injuries. In this regard,
an eyewitness to the incident P.Ws.1 to 3 have stated that on
4.3.2013 at 10:30 p.m., the driver of Bolero vehicle dashed to
the rider of motorcycle, hence, the motorcyclist (deceased)
died on the spot.
16. In order to prove the above aspect, the prosecution
examined P.W.5-Umesh, witness to inquest mahazar-Ex.P6 and
relative of deceased. In his evidence he has stated that the
Investigating Officer conducted inquest panchanama in his
presence, who died in the accident. Further, the prosecution
examined P.W.10-Dr. Pratheek Rastogi, who conducted autopsy
on the dead body of deceased-Ritesh. He has stated that on
5.3.2013, he conducted Post-Mortem examination on the dead
body of deceased and observed ten external injuries on the
body. As per the opinion of the doctor, deceased died due to
crush injuries to the head resulting from blunt force, hence, he
issued Ex.P9-Post-Mortem examination report. From the
perusal of oral testimony of P.Ws.1 to 3, 5 and 10 and the
documentary evidence Ex.P6-inquest mahazar and Ex.P9-Post-
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Mortem examination report, it clearly establishes that
deceased-Rithesh died on account of the accidental injuries.
This aspect is not specifically denied by the accused.
17. So far as spot mahazar is concerned, P.Ws.6 and 7
have stated that Police conducted spot panchanama in their
presence at the scene of offence as shown by
P.W.1-Purushotham and they have seen motorcycle at the
scene of the accident.
18. Now the question would arise as to, whether the
accused caused the accident, if so, what is the evidence on
record. The prosecution in order to prove its case examined
P.W.1-Purushothama, who is none other than the friend of the
deceased. In his evidence, he has stated that on 04.03.2013 at
night, he was standing on the road side in front of his house
after having his dinner at 10.30 p.m., where the motor cycle
was coming from K.P.T. junction to Bajpe and one pickup
vehicle was coming from Bajpe to Mangaluru with high speed,
the driver of pickup vehicle in a rash and negligent driving
dashed to the motor cycle. Thereafter, the driver of the motor
cycle fell on the road along with his bike and the driver of the
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Bolero Vehicle proceeded further little bit and stopped his
vehicle and turned and saw the rider of the motor cycle fell on
the road and he suddenly started his vehicle and escaped from
the spot.
19. From the evidence of P.W.1, it appears that he
himself and many people gathered there and saw the rider of
the bike sustained severe injuries on his head and died in the
spot. P.W.1 further stated that on 13.03.2013 i.e., after 10
days of the accident, he saw the accused in the police station
and he came to know about the registered number of the
offending vehicle through police. P.W.1 in his cross-
examination admits that he has not seen the pickup vehicle
number in the spot and he came to know the registration
number after ten days of the accident. He admits that in
Ex.P1, he has not mentioned the registration number of the
pick-up vehicle.
20. It shows that P.W.1 has no knowledge about the
registration number of the offending vehicle and he further
admits that no one present at the spot were aware of the
registration number of the offending vehicle.
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21. P.W.2-Roshan Kumar is another eye witness to the
accident has stated that, on 04.03.2013, he was proceeding on
the road towards Kavoor, at 10.30 p.m. near Sharabathkatte,
he saw the accident. In his cross-examination, he admits that
he was aware of the registration number of the offending
vehicle, but he did not inform anybody and his statement under
Section 161 of the Cr.P.C. was recorded on 05.03.2013. More
particularly, on 05.03.2013, Ex.P2-spot mahazar was drawn,
but, in Ex.P2 the registration number of offending vehicle was
not mentioned.
22. P.W.3-Suresh is another eye witness to the accident.
He has stated that on the date of the accident, he was present
in the scene of the offence and saw the accident. P.W.3 has
stated that he identified the offending vehicle
Registration No.KA-14-B-0022 after two days of the accident,
at Kadri police station. He further stated that, on 13.03.2013,
the accused appeared in the police station and hence, he
identified the accused in the Police Station only. In the
cross-examination, P.W.3 admitted that he has not stated
anything about the identification of Bolero vehicle to Kadri
Police.
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23. In this case, P.Ws.1 to 3 are eye witnesses to the
accident. The evidence of P.W.15-T.D.Nagaraj-Investigating
Officer also available. The Court has to consider whether
P.Ws.1 to 3 have seen the accident or not and identified the
driver of Bolero vehicle, who rashly and negligently drove the
same and dashed to the motor cycle. In this regard, P.Ws.1 to
3, who are eyewitnesses to the accident have stated that the
driver of Bolero vehicle drove his vehicle in a rash and
negligent manner and dashed to the motorcycle of the
deceased, thus, the motorcyclist died at the spot on account of
the injuries sustained in the accident.
24. In order to examine the merit of the contentions
raised on behalf of the complainant-State, it is necessary for
the Court the first and foremost to examine (a) what is rash
and negligent driving; and (b) whether, it can be gathered from
the attendant circumstances.
(a) Rash and negligent driving:
Rash and negligent driving has to be examined in the
light of the facts and circumstances of a given case. It is a fact
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incapable of being construed or seen in isolation. It must be
examined in light of the attendant circumstances. A person,
who drives a vehicle on the road is liable to be held responsible
for the act as well as for the result. It may not be always
possible to determine with reference to the speed of a vehicle,
whether a person was driving rashly and negligently. Both
these acts presuppose an abnormal conduct. If a person is
driving a vehicle at a slow speed, but recklessly and
negligently, it would amount to 'rash and negligent driving'
within the meaning of the language of Section 279 IPC. Once
these ingredients are satisfied, the penalty contemplated under
Section 279 IPC is attracted.
'Negligence' means omission to do something which a
reasonable and a prudent person guided by the considerations
which ordinarily regulate human affairs would do or doing
something which a prudent and reasonable person guided by
similar considerations would not do. 'Negligence' is not an
absolute term, but is a relative one; it is rather a comparative
term. In a given case, even not doing what one was ought to
do can constitute negligence.
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'Criminal Negligence' is the failure to exercise duty with
reasonable and proper care and precaution guarding against
injury to the public generally or to any individual in particular.
It is the imperative duty of the driver of the offending vehicle to
adopt such reasonable and proper care and precautions.
(b) Attendant circumstances and inference of rash
and negligent driving:
In light of the above, now I examined if negligence in the
case of an accident can be gathered from the attendant
circumstances. In the instant case the doctrine of res ipsa
loquitur is applicable. But in order to establish this theory there
must be an accident. It may also be noticed that either the
accident must be proved by proper and cogent evidence or it
should be an admitted fact before this principle can be applied.
This doctrine comes to aid at a subsequent stage, where, it is
not clear as to how and due to whose negligence the accident
occurred. The factum of accident having been established, the
Court with the aid of proper evidence may take assistance of
the attendant circumstances and apply the doctrine of res ipsa
liquitor. The mere fact of occurrence of an accident does not
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necessarily imply that it must be owed to someone's
negligence.
25. From the perusal of evidence of P.Ws.1 to 3, it
clearly establishes that they have identified the driver of the
Bolero Vehicle in the police station and not at the scene of the
offence. It is the evidence of P.Ws.1 to 3 that they identified
the accused and some passers-by also seen the accused but,
none of the witnesses have stated that they identified the
accused at the scene of offence.
26. In the complaint and spot mahazar, the complainant
and Investigating Officer, as the case may be, have not
mentioned the registered number of Bolero vehicle. If an
eyewitness to the incident were seen the accident, they could
have noted the vehicle number and could have identified the
accused at the spot itself. But after two days of the incident,
the Investigating Officer seized vehicle, which belonged to
P.W8. Even, P.W.8 has not at all identified his driver, stating
that, on the day of accident, accused was the driver of his
Bolero vehicle. Therefore, neither P.Ws.1 to 3 nor P.W8
identified the accused.
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27. Therefore, now, this Court has to see whether the
facts disclosed by P.Ws.1 to 3 in Ex.P1-complaint and the
statements of witnesses stand fully proved or not. The
conclusion which can be drawn from the perusal of
examination-in-chief of P.Ws.1 to 3 is that these witnesses
have stated in their statement before the Court that the Bolero
Vehicle came in the opposite direction and motor cycle was
proceeding in left direction and the Bolero vehicle came in a
rash and negligent manner and hit the motorcycle, which
caused the accident.
28. From the perusal of the testimonies of P.Ws.1 to 3
there are material contradictions in the statements of these
witnesses as to identification of the accused and the Bolero
vehicle. In these circumstances, it is not clear from the
statement of these witnesses as to whether the accused was
the driver of the Bolero vehicle, who was driving on its right
side of the road.
29. So far as the identity of the accused is concerned,
the prosecution relied upon the evidence of P.W.8, who is the
owner of the vehicle, but P.W.8 has turned hostile in the case
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of prosecution and he even did not identify the accused. P.W.8
has categorically stated that as on the date of the accident, he
was not the driver of the Bolero vehicle and he does not know
the contents of Ex.P7-notice issued under Section 133 of
IMV Act and Ex.P8-reply to the notice thereon.
30. In the cross-examination, he admits that one
Saleem was his driver, but the learned Assistant Public
Prosecutor denied the statement of P.W.8 that Saleem was not
the driver of the Bolero vehicle; thereby the prosecution itself
contradicts the name of one Saleem. In fact, the name of
accused is Saleem Khan. Further, P.W.8 has not clarified as to
why he issued Ex.P8-reply to the notice under Section 133 of
the Motor Vehicle Act. As per P.W.8, he does not know the
contents of the notice sent by the Investigating Officer under
Section 133 of the Motor Vehicle Act. In Ex.P8, the name of the
accused is shown as Saleem Khan, who was the driver at the
relevant point of time. But, P.Ws.1 to 3 and 8 have not
identified him on the spot as well as in the Court and P.W.8 has
stated that the person who appeared before the Court as
accused was not his driver. In such situation, service of notice
under Section 133 of the Motor Vehicle Act upon the owners
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have no relevancy, as such, the material witnesses such as
P.Ws.1 to 3 and 8 failed to identify the accused.
31. So far as rash and negligent act is concerned,
P.Ws.1 to 3 stated about the rash and negligent driving of the
driver of the Bolero Vehicle in the light of the facts and
circumstances of the case, but, they failed to identify the
accused.
32. In the instant case, the accident is not disputed, the
cause of death of deceased that he died on account of
accidental injuries is not disputed, the scene of offence is also
not disputed, but, the prosecution has failed to connect the
accused with the crime. The trial Court based on the oral and
documentary evidence on record has rightly come to the
conclusion that the prosecution failed to connect the accused,
hence, acquitted the accused. Therefore, no interference is
called for. Hence, the appeal filed by the State is dismissed.
Sd/-
JUDGE
PSG, CH
