(PER: THE HON'BLE MR. JUSTICE G. BASAVARAJA)
Bhatkal in Criminal Case No.669/2013 on 14.03.2016.
2. The brief facts leading to this appeal are that,
338 and 304(A) of IPC. It is alleged by the prosecution that on
27.04.2012 at about 8.45 p.m. on NH-17 from Mangaluru
grievous injuries. Accordingly, the passengers of Tempo Trax
had filed a report to the Bhatkal Town Police Station. After
Criminal Case No.669/2013. The substance of plea of the
3. To prove the case of prosecution, in all, 21
documents as Exs.P1 to P48. On closure of prosecution side
of Cr.P.C. was recorded, wherein the accused has totally denied
the evidence appearing against him. He has not chosen to
adduce any defence evidence on his behalf.
4. After hearing the argument of both sides, the trial
Court has acquitted the accused. Being aggrieved by the
5. Learned Additional State Public Prosecutor Sri
of the case. He would further submit that PWs.5 to 8, 15, 16
driving of the bus by its Driver. PWs.10 to 12 are the injured
had occurred. The evidence of all these witnesses have not
assessing the evidence on record. The accused has not denied
date of incident, he was not the driver. This fact is further
corroborated by the evidence of PW21, the Manager of VRL. He
accused. The accused has not examined the circumstances
under which the accident had occurred. Failure to explain the
the Evidence Act. Proper presumptions have not been made
and drawn at the time of assessing the evidence on record. On
all these grounds he sought for allowing of this appeal.
6. On the other hand, learned counsel for the
interfere with the impugned Judgment of acquittal.
Accordingly, he sought for dismissal of the appeal.
7. Having heard the arguments of both sides and
Point No.(i): in the Negative
Point No.(ii): as per the final order.
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Regarding Point No.(i)
9. I have examined the material placed before this
Court and evidence on record.
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 regarding scope and powers of the
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, 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 of such power and an
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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.
(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
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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
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
learned Sessions Judge for discarding the
testimony of PWs 6 & 7 and having arrived at the
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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:
"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.
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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, reappreciate 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."
16. It is also necessary to mention here as to the
judgment of Hon'ble Supreme Court as to burden of proof in an
offence under Section 304-A of the Indian Penal Code. In the
case of NANJUNDAPPA AND ANOTHER v. THE STATE OF
KARNATAKA reported in 2022 LIVELAW (5) 489, the Hon'ble
Apex Court held that the doctrine of res ipsa loquitur would not
stricto sensu apply to criminal cases.
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17. In the case on hand, PW3 is the complainant. PWs1
and 2 are the signatories to the spot panchanama. PWs5 to
12, 15, 16 and 20 are eyewitnesses. PWs13 and 17 to 19 are
the Investigating Officers, who have deposed as to the
respective investigation. PW14 has filed the charge sheet
against the accused. PW21 is an additional witness.
18. PWs1 and 2 Sri Ashraf and Sri Mohammad Ansar
respectively are said to be the attesters to the spot
panchanama and also rough sketch prepared by the Police.
PW3-Smt. Lata Kurubar said to be the complainant and also
injured has deposed in her evidence that on 27.04.2012 she
and her family members were travelling in a rented Tempo Trax
vehicle and after having darshan at Sigandooru at 2.00 p.m.
then proceeded to Kollur and thereafter 4.00 p.m. to
Murudeshwara and after taking darshana, they were proceeding
to Dharmasthala. At about 8.45 p.m. when they came near
Bhatkal, the VRL bus came from opposite side in a rash and
negligent manner and dashed against their vehicle, as a result
of which, driver of the cruiser died on the spot. Inmates of the
said vehicle viz. Sakamma, Rangaswamy, Anita, Siddesh and
Jayamma died when they were being shifted to the Hospital.
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The other grievously injured persons by name Kariyappa,
Hanamanthappa and Chanabasamma were shifted to the
Manipal Hospital for treatment. On the next day of accident,
Kariyappa died. On the third day Channabasamma, and after
four days Hanamanthappa died. Rest of the injured inmates
sustained grievous injuries were admitted to the Kundapur
Hospital and Manipal Hospital. Basavaraj, Kenchamma,
Doddappa, Chaitra, Priyanka and Sahana in all 9 persons were
admitted to the Kundapur Hospital and the rest were admitted
to the Government Hospital, Bhatkal. She also deposed that
she has sustained injuries on her head and eye. The inmates
of VRL bus also have sustained injuries. This accident occurred
due to fault of the driver of the VRL bus by name Muttappa
Bhimmappa Kokatanur and she has filed complaint to the Police
as per Ex.P7 and also she gave further statement.
19. CW22 who has identified the dead body of the
diseased Rangaswamy, has deposed that after the postmortem
of his younger brother, he has taken the body to his custody.
He has also deposed that he came to know that in the alleged
accident, 9 persons have dead, and the rest of them were
taking treatment at Kundapur and Manipal Hospitals.
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20. CW13-Dodda Hanumanthappa, CW35-Nagendra,
CW36-Kenchamma and CW37-Basavaraj, said to be the injured
and eyewitnesses examined as-PW5 to 8 respectively, have
deposed in their evidence that at about 2½ years back when
they, in all 23 persons, were proceeding in a tempo trax cruiser
vehicle, which belongs to one Mahesh, after having darshan of
Goddess Sugandooru Chowdeshwari, and when they were on
their way to Dharmasthala at about 8:30 PM, when the vehicle
was moving near Bhatkal, the driver of the VRL bus came from
opposite direction in a rash and negligent manner and dash to
their vehicle. As a result, the driver of the vehicle sustained
severe injuries and died on Spot. They have also sustained
injuries. In this accident, Kariyappa, Rangappa, Maheshappa,
Durgamma, Jayamma, Anitha, and Chennappa, in all, nine
persons died.
21. CW21-Ramadasa Nayak, said to be the witness and
also attester to spot Panchanama examines as PW9, has not
deposed anything as to the incident, but has deposed as to
Panchanama exhibit P1 conducted by the police.
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22. CW39-Jayaraj Sharanappa and CW40-D.
Chidambara, CW41 Joseph Foster said to be the eye witnesses
examined as PWs10 to 12 respectively, CW 29 Chandramma
examined as PW15, CW21 examined as PW16; CW33 examined
as PW 20, who are all eye-witnesses have not supported the
case of prosecution. Even in their cross-examination by the
Assistant Public Prosecutor after treating them as hostile
witnesses with the permission of the Court, have categorically
denied in their statement about the statement recorded by the
Investigating Officer under Section 161 of CRPC, which is
marked as Exhibits P 17 and 18.
23. CW52-ASI Raju Jogi Ager, CW58-Juhu Prakash
Naik, Police Inspector, CW53-Nagaraj Krishna Naik HC1301,
CW54-Basavaraj Vaddar, HC 1402, CW51-Prakash Devadiga
PSI, who are examined as PWs13, 14, 17, 18 and 19
respectively, have deposed as to their respective investigation.
24. CW21-Anand Joshi, Manager of VRL Logistics has
deposed in his evidence that since 10 years, he is working in
VRL company. About three years back, one day when the Bus
belonging to VRL Company met with an accident, police have
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issued notice under Section 133 of Motor Vehicles Act as per
Exhibit P46. Accordingly, he has furnished the name of the
driver who was driving the vehicle on the date of accident, and
he has also executed a Bond and got the vehicle released in his
favour.
25. PWs5 to 9, are said to be eyewitnesses to the
incident, but no one has clearly deposed that they have
witnessed the alleged incident. They have deposed that they do
not know as to what was happening in front of the bus.
26. PW1, though initially has not supported the case of
prosecution, but in the cross-examination made by the
Assistant Public Prosecutor with the permission of the Court
after treating him hostile witness, has supported the case of
prosecution and in his cross-examination, he has deposed that
due to rain, they were only able to see the vehicle at the
relevant point of time. He has not deposed anything about on
whose fault the accident had taken place.
27. PW11 another eyewitness, initially has not
supported the case of prosecution. But in his cross-
examination made by the Assistant Public Prosecutor, he has
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deposed that he did not make any submission before the police
on whose fault the accident had taken place.
28. PW20, another eyewitness, though initially had not
supported the case of prosecution. But in the cross-examination
made by the Assistant Public Prosecutor, he has deposed that
he did not see the accused at all, and he do not know how the
accused was driving the vehicle and do not know how the
accident has taken place.
29. PW16-eyewitness has deposed in his cross-
examination that he did not see the accused and he has not
identified the accused.
30. Considering all these aspects, the trial Court has
properly appreciated the evidence on record and held that the
prosecution has failed to prove the guilt of the accused.
31. On re-consideration, re-appreciation and re-
examination of the entire evidence and record and also keeping
in mind the aforesaid decisions of the Supreme Court, I do not
find any error or legal infirmity or illegality in the conclusion
arrived at by the trial Court which calls for interference by this
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Court in this appeal. Hence, I answer point number one in the
negative.
Regarding Point No.2:
For the reasons aforestated and the discussions made, I
proceed to pass the following:
ORDER
1. Appeal is dismissed;
2. Judgment of acquittal passed by the Judicial
Magistrate First Class, Bhatkal in Criminal Case
No.669/2013 on 14.03.2016, is confirmed.
Sd/-
(G BASAVARAJA)
JUDGE
CKK/LN
