Karnataka High Court
State Of Karnataka vs Praveen S/O Shivanand Gungi on 20 June, 2025
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CRL.A No. 100086 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100086 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE INSPECTOR,
KARWAR POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
AND:
PRAVEEN S/O. SHIVANAND GUNGI,
AGE: 28 YEARS, R/O. GUNGIWADA,
TADOOR, KARWAR.
...RESPONDENT
(BY SRI. ANIL KALE, ADVOCATE)
Digitally
signed by
YASHAVANT
YASHAVANT
NARAYANKAR
NARAYANKAR Date:
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
2025.06.24
10:11:35
+0530 AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 05.11.2016 PASSED BY THE LEARNED CHIEF JUDICIAL
MAGISTRATE, KARWAR IN C.C.NO. 225 OF 2016 AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
05.11.2016 PASSED BY THE CHIEF JUDICIAL MAGISTRATE,
KARWAR IN C.C.NO.225 OF 2016 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 279, 337 AND 304A OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.A No. 100086 of 2017
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
The State has preferred this appeal against the judgment
of acquittal passed in CC No.225/2016, dated 05.11.2016, on
the file of Chief Judicial Magistrate, Karwar1, whereby the
learned Magistrate acquitted the accused for the offences
punishable under Sections 279, 337 and 304(A) of IPC.
2. The abridged facts of the prosecution case are that,
on 02.02.2016 at about 7:45 p.m., the accused being a rider of
the motorcycle bearing registration No.KA-30/R-6350, rode the
same on NH-66, near the shop of one Premanand Kudtalkar
(PW6) at Chendiya village at high speed in a rash and negligent
manner and dashed one Ullas Nagekar, who was crossing the
road in the said place. Owing to the same, the said Ullas
Nagekar sustained injuries and immediately, he was shifted to
Government Hospital, Karwar for first aid treatment and
thereafter, shifted to Bambolin Hospital, Goa for further
treatment and he was discharged on the advice of the medical
officer and later shifted to Mangalore KMC Hospital. During the
course of treatment, he succumbed to the injuries on
Hereinafter referred to as 'learned Magistrate'
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12.02.2016. Initially, PW1-Ajay i.e., the brother's son of
deceased Ullas lodged a complaint on 03.02.2016 before the
Karwar Police against the accused as per Ex.P1. On the
strength of Ex.P1, the said Police registered the case against
the accused i.e., rider of the motorcycle in question, for the
offences punishable under Sections 279, 338 read with Section
187 of the Indian Motor Vehicles Act, 1988 in Crime
No.28/2016 as per Ex.P7. After the death of deceased, the
Police invoked Section 304(A) of IPC and after completion of
the investigation, laid charge sheet against the accused for the
offences punishable under Sections 279, 337 and 304(A) of
IPC.
3. After securing the presence of the accused, the
learned Magistrate framed charges against the accused for the
aforesaid offences; however, he denied the charges and
claimed to be tried. To prove the charges leveled against the
accused, the prosecution in total examined 8 witnesses as PW1
to PW8 and marked 9 documents as per Ex.P1 to P9. Though
the accused did not examine any witness on his behalf, but
marked one document as Ex.D1.
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4. On assessment of oral and documentary evidence,
the learned Magistrate acquitted the accused for the charges
leveled against him. The correctness and legality of the said
judgment of acquittal is under challenge in this appeal by the
State.
5. I have heard Smt. Girija S. Hiremath, learned HCGP
for the appellant/State, so also Sri. Anil Kale, learned counsel
for the respondent/accused and perused the trial Court records.
6. The primary contention of the learned HCGP is that
the judgment under this appeal suffers from perversity and
illegality, since the learned Magistrate failed to appreciate the
evidence on record in a right perspective. The prosecution has
proved the guilt of accused beyond all reasonable doubt by
examining PWs.1, 4 and 6, who are eye-witnesses to the
incident. All these witnesses have categorically stated that, at
the time of the incident, they were very much present in the
scene of the occurrence and witnessed the incident. According
to them, while deceased crossing the road, the accused was
riding the motorcycle in a high speed and dashed against him.
Due to the same, the deceased sustained severe injuries.
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Further, the prosecution also placed the evidence of PW2 and
PW3-witnesses for spot mahazar and they have also supported
the case of the prosecution. In such circumstance, the learned
Magistrate without appreciating the evidence on record
acquitted the accused based on surmises and conjectures.
Accordingly, she prays to allow the appeal and convict the
accused for the charges leveled against him.
7. Per contra, learned counsel for the
respondent/accused contended that the learned Magistrate,
after meticulously examining the entire evidence on record,
passed a well-reasoned judgment, which does not call for
interference at the hands of this Court. He contended that there
is an inordinate delay in lodging the complaint, though the
accident was caused on 02.02.2016, the complaint was lodged
on 03.02.2016 and there is no reason whatsoever is
forthcoming on record for the inordinate delay. He also
contended that the evidence of PW1, 4 and 6 is not trustworthy
for the reason that, in their cross-examination, they have
categorically admitted that they witnessed the incident after
the accident. PW1 and 4 have further admitted in their cross-
examination that, near the spot of accident, the shop of
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Premanand Kudtalkar was not situated. This portion of
admission of PW1 and 4 goes contrary to the spot mahazar and
Ex.P1-complaint. Learned counsel also contended that PW1, 4
and 6 have not stated about rashness and negligence of riding
of the accused at the time of accident. Mere driving the vehicle
in a high speed itself not sufficient to attract the provisions of
Sections 279 and 304-A of IPC. He also contended that on
perusal of Ex.P1, it clearly establishes that the deceased died
due to medical negligence without providing sufficient medical
aid. Lastly, he contended that, this being an appeal against
acquittal, if plausible view is taken by the trial Court, then the
appellate Court shall not interfere in the said judgment as per
law laid down by the Hon'ble Apex Court. With these grounds,
he prays to dismiss the appeal.
8. Having heard the learned counsel for the respective
parties and having perused the documents available on record,
the only point that would arise for my consideration is:
"Whether the learned Magistrate is justified in
acquitting the accused for the offences punishable
under Sections 279, 337 and 304-A of IPC?"
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9. I have given my anxious consideration to the
submissions made by both the learned counsels, so also
evidence available on record.
10. It could be gathered from records, the death of
deceased-Ullas Nagekar in the road accident is not seriously
disputed by the accused. Nevertheless, the prosecution placed
Ex.P5-Post Mortem report conducted on the corpse of the
deceased. The opinion of the Doctor as to the cause of death
was, the deceased died due to 'complication following cranial
cerebral injury as a result of blunt force impact due to road
traffic accident'. In addition, the prosecution placed inquest
panchanama conducted on the corpse of the deceased, which is
marked at Ex.P3. Hence, on collective reading of Exs.P3 and
P5, I am of the considered view that the prosecution has
proved the accidental death of the deceased. To connect the
accused for the death of the deceased, the prosecution
predominantly placed reliance on the evidence of eyewitnesses-
PWs.1, 4 and 6. According to PW.1, on 02.02.2016, his uncle
while crossing the road on Nirankarwad Chendiya village,
Karwar, the accused being rider of the motorcycle rode the
same in high speed and dashed against his deceased uncle, due
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to which, his uncle sustained injuries and thereafter, he was
shifted to Hospital for treatment and subsequently, he
succumbed to the injuries. However, on careful perusal of the
cross-examination of PW1, he admitted that he had not seen
the shop of one Premanand Kudtalkar (PW6) near the spot of
accident. It is pertinent to mention at this juncture that, it is
the specific case of the prosecution that the accident was
caused near the shop of PW6. Further, PW4 and PW6-
eyewitnesses to the incident, have also stated that at the time
of the accident, the accused was riding the motorcycle in high
speed. Both of them have not stated as to whether the accused
was riding the motorcycle in a rash and negligent manner and
they also not stated the speed of the motorcycle at the time of
the accident. Further, both of them have also admitted that
they witnessed the incident in a distance of around 10 ft. from
the spot of accident. After the accident only, they saw the
injured/deceased. As rightly contended by the learned counsel
for the respondent/accused, the accident in question was
caused in the night hours at about 7:00 p.m. On perusal of
spot sketch as per Ex.P8, there are no electric poles near and
around the spot of accident. PWs.1, 4 and 6 have also not
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stated as to how they witnessed the incident in the night hours
at about 7:00 p.m. In such circumstance, a doubt arises in the
mind of this Court regarding testimony of PWs.1, 4 and 6.
Though spot mahazar witnesses PW2 and PW3 have supported
the case of the prosecution, that itself is not material
circumstances to prove the charges leveled against the
accused.
11. This Court in Crl.RP No.1004/2021 held that mere
driving the vehicle in high speed, itself cannot establish that he
was driving the vehicle in a rash and negligent manner. This
Court, in the aforesaid case, by relying on judgment of the
Apex Court in the case of State of Karnataka Vs Satish2 has
held in paragraphs-17 and 18 as under:
"17. The Hon'ble Apex Court in the case of State of
Karnataka Vs. Satish reported in (1998) 8 SCC 493 has
settled the position of law that mere driving of vehicle in
high speed neither amounts to negligence nor rashness in
itself and has held in para 4 of the said judgment as
under;
4. Merely because the truck was being driven at a "high
speed" does not be speak of either "negligence" or
"rashness" by itself. None of the witnesses examined by
the prosecution could give any indication, even
(1998) 8 SCC 493
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approximately, as to what they meant by "high speed".
"High speed" is a relative term. It was for the
prosecution to bring on record material to establish as
to what it meant by "high speed" in the facts and
circumstances of the case. In a criminal trial, the
burden of providing everything essential to the
establishment of the charge against an accused always
rests on the prosecution and there is a presumption of
innocence in favour of the accused until the contrary is
proved. Criminality is not to be presumed, subject of
course to some statutory exceptions. There is no such
statutory exception pleaded in the present case. In the
absence of any material on the record, no presumption
of "rashness" or "negligence" could be drawn by
invoking the maxim "res ipsa loquitur". There is
evidence to show that immediately before the truck
turned turtle, there was a big jerk. It is not explained
as to whether the jerk was because of the uneven road
or mechanical failure. The Motor Vehicle Inspector who
inspected the vehicle had submitted his report. That
report is not forthcoming from the record and the
Inspector was not examined for reasons best known to
the prosecution. This is a serious infirmity and lacuna in
the prosecution case."
18. Effectively, at this juncture I find it imperative to
touch upon the nuances of understanding the term
'negligence', negligence essentially is defined or rather
understood in a rudimentary sense as a breach of duty.
Meaning, an act of negligence must be coupled with willful
omission of doing something which a prudent person would
have done in similar circumstance. This breach of duty
should lead to some kind of damage. Further, while
ascertaining the degree of negligence, it is significant to
ruminate on the 'Principle of Foreseeability and Proximity'
as laid down by Lord Atkin in the landmark case of
Donoghue v Stevenson reported in 1932 A.C 562.
Additionally, let us take a moment to delve into
comprehending and elucidate the conundrum that needs to
be addressed: What amounts to rashness and negligence?
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Rashness innately implies to recklessness coupled with a
state of conscious breach of duty to care where there
exists a necessity of care i.e., negligence. Rashness and
negligence are multi-faceted concepts which cannot be
comprehended and interpreted in isolation, it significantly
depends on facts and circumstances of each case."
12. Applying the principles enumerated in the above
judgment to the facts and circumstances of the present case
and on perusal of evidence of PW1, 4 and 6, all these witnesses
have categorically stated that the rider of the motorcycle i.e.,
accused was riding the vehicle in a high speed, except that,
they have not stated that the rider was riding the motorcycle in
a rash and negligent manner. Apart from that, these witnesses
have admitted in their cross-examination that they witnessed
the incident after the motorcycle fell on the road and it was in
the night hours about 7:00 p.m. and also shop of PW6 was not
situated near the spot of the accident. All these aspects creates
a doubt in their version. Moreover, this appeal against order of
acquittal and the Hon'ble Apex Court in catena of judgments
held that in a case of acquittal, if the trial Court has taken a
plausible view, the appellate Court shall not interfere in the said
judgment. Applying the said principles by the Hon'ble Apex
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Court stated supra, I am of the considered view that the
learned Magistrate has rightly appreciated the entire evidence
on record in a right perspective and passed the impugned
judgment, which does not called for interference at the hands
of this Court. In that view of the matter, I answer point raised
above in the 'affirmative' and proceed to pass the following:
ORDER
The appeal stands dismissed.
SD/-
(RAJESH RAI K)
JUDGE
JTR
CT:PA
