Karnataka High Court
The State O Karnataka vs Vasant Beema Gaonkar on 20 March, 2025
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CRL.A No. 100210 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100210 OF 2018 (A)
BETWEEN:
THE STATE O KARNATAKA
REPRESENTED BY THE
POLICE SUB INSPECTOR,
KARWAR TRAFFIC POLICE STATION, KARWAR,
TRHOUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
VASANT BEEMA GAONKAR
AGE: 55 YEARS, OCC: DRIVER,
R/O: TELANG ROAD,
NANDANGADDA, KARWAR.
VISHAL ...RESPONDENT
NINGAPPA
PATTIHAL (BY SRI. K.L. PATIL, ADVOCATE)
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: HIGH COURT
OF KARNATAKA
Date: 2025.04.03
THIS CRIMINAL APPEAL FILED U/S 378(1)(B) & (3) OF
13:03:01 +0530
CR.P.C. PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT OF ACQUITTAL DATED 15.11.2017 PASSED BY THE
CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.271/2016
AND TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED
15.11.2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE,
KARWAR IN C.C.NO.271/2016 AND ONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 279 & 304-A OF IPC AND U/S 196, 192(A), 56
R/W SEC. 192 OF I.M.V. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 100210 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
The State has preferred this appeal against the judgment
of acquittal passed by the Chief Judicial Magistrate, Karwar in
C.C. No.271/2016 dated 15.11.2017 [for short, 'trial Court'].
2. The factual matrix of the case is that the Circle
Inspector of Police, Karwar has filed the charge sheet against
the accused 1 & 2 for the offences punishable under Sections
279 and 304A of the Indian Penal Code, 1860 [for short, 'IPC']
and Sections 196, 192(A) and 56 read with Section 192 of the
Motor Vehicles Act. It is alleged by the prosecution that on
05.01.2016 at about 10:15 a.m., the accused No.1 being the
driver of uninsured tipper lorry bearing No.KA-30/7078 drove
the same from Karwar towards Bandishitta on Karwar-Kaiga
State Highway in a high speed and in a rash and negligent
manner, so as to endanger to human life and personal safety of
others, in front of Ganapathi temple near KSRTC bus depot,
and dashed against one Sairobha Chandru Gunagi, who was
proceeding on his bicycle and caused the accident. Due to his
negligent act, the accused No.1 caused the death of the said
Sairobha Chandru Gunagi. The accused No.2 being the owner
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of the said vehicle without insuring the same and without
having fitness certificate had allowed the accused No.1 to drive
the said vehicle to cause the accident. Thereby accused Nos.1
and 2 have committed the aforesaid alleged commission of
offences. The accused No.2 appeared before the Court and
pleaded guilty for the offences punishable under Sections 196,
192(A), 56 read with Section 192 of Motor Vehicles Act and the
trial Court has convicted the accused No.2 for the offences
punishable under Sections 196 of the Motor Vehicles Act and
sentenced to pay fine of Rs.800/-. Further he is convicted the
accused and sentenced to pay fine of Rs.2,000/- for the offence
under Section 192(A) of the Motor Vehicles Act and also
convicted the offence under Section 192(A) of the Motor
Vehicles Act and sentenced to pay fine of Rs.2,000/-. In total,
the trial Court has imposed a fine of Rs.4,800/-. The accused
No.2 has remitted the fine amount.
3. The accused No.1 appeared before the Court and
enlarged on bail. The substance of the accusation was read
over and explained to the accused and the accused pleaded not
guilty and claim to be tried.
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4. To prove the case of the prosecution, nine
witnesses are examined as PWs.1 to 9, eight documents were
marked as Exs.P1 to P8. On closure of prosecution side
evidence, the statement under Section 313 of Cr.P.C. was
recorded. The accused has totally denied the evidence of
prosecution witnesses, but he has not chosen to lead any
defence evidence on his behalf.
5. Having heard the arguments on both side, the trial
Court has acquitted the accused No.1. Being aggrieved by this
judgment of acquittal against accused No.1, the State has
preferred this appeal.
6. Learned Additional S.P.P. Shri MB Gundwade,
appearing for State, would submit that the judgment of
acquittal passed by the trial Court is contrary to law and facts
and the trial court has not considered the evidence of witnesses
who were present at the spot of accident. The evidence of
witnesses viz. PWs.3 & 5 have not been read properly by the
trial Court and has come to a wrong conclusion that accused
was not found guilty and acquitted the accused. He submits
that although the witnesses to the spot mahazar not supported
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the case of prosecution, the trial Court ought to have
considered the evidence of PW5 who was present on the spot of
incident and is a natural witness who saw the accident as well
as identified the accused as the driver of the said vehicle on the
date of incident. The trial Court ought to have considered the
evidence of Investigating Officer in this regard and without
considering these evidences, the trial Court had acquitted the
accused and the same need sot be set aside. He would further
submit that the owner of the vehicle i.e. accused No.2 has
specifically stated that the accused No.1 was the driver of the
vehicle on the date of incident. The same was not considered
by the court below, which is a prominent document to prove
that on the date of incident, the respondent-accused was
driving the vehicle. It is further submitted that the accident
was not denied by the accused. He has not adduced any
evidence on his behalf. Moreover, the accused not produced
any document in his defence though as per Section 313 of Code
of Criminal Procedure an opportunity was given. He would
submit that the principle of res ipsa loquitor is applicable to the
case. The trial Curt has not appreciated the evidence on record
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in its proper perspective. On all these grounds, he sought to
allow the appeal.
7. On the other hand, Sri K.L. Patil, learned Counsel
appearing for the respondent-accused submit that panch
witnesses-PWs1 & 2 have not supported the case of the
prosecution. PW3 has supported the case of the prosecution
partly and in the course of cross-examination by the Assistant
Public Prosecutor after treating him as partly hostile witness
with the permission of the Court, he has not identified accused
and during the course of cross-examination, he has clearly
admitted that only after the accident he went to the spot and
he cannot say as to how the accident had occurred. However,
he has admitted that at the time of accident except him, none
were present. Even in his examination-in-chief also, he has
categorically admitted that he has not witnessed the accident.
Learned Addl. SPP would further submit that PW4-Aravind
Gunagi has clearly admitted in his cross-examination that he
has not witnessed the accident and even he has not identified
the accused. PW5-Digamber Ganagi, had clearly admitted that
he has given statement to the Police that the accident occurred
due to the rash driving of the driver of tipper lorry who dashed
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against the bicycle ridden by the victim. Considering the
admission made by the material witnesses, the trial Court has
properly appreciated the evidence on record in accordance with
law and facts and acquitted the accused. Absolutely, there are
no materials to interfere with the impugned judgment of
acquittal. On all these grounds, he sought for dismissal of the
appeal.
8. Having heard the learned Counsel appearing for the
parties, and on perusal of materials, the following points would
arise for my consideration:
1. Whether the State has made out ground to
interfere with the impugned judgment of
Acquittal?
2. What order?
9. My answer to the above points is:
Point no.1: In the negative;
Point no.2: As per final order
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 power of Appellate
Court in appeal against the order of acquittal.
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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
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
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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:
"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
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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 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
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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. The interference would be
warranted only if the view taken is not possible at all."
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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."
16. It is also necessary to mention here as to the
judgment of Hon'ble Supreme Court as to burden of proof in
offence under Section 304-A of the Indian Penal Code. In the
case of NANJUNDAPPA AND ANOTHER vs. THE STATE OF
KARNATAKA reported in 2022 LIVELAW (5) 489, the Hon'ble
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Apex Court held that the doctrine of res ipsa loquitur, would
stricto sensu, not apply to criminal cases.
17. In the case on hand, to prove the guilt of the
accused, the prosecution has charge-sheeted sixteen witnesses
and out of them, nine witnesses were examined as PWs1 to 9.
18. PW1-Dinakar Dattaram, PW2-Mohan are said to be
attesters to mahazar-Exhibit P1 and spot sketch witness, they
have not supported the case of prosecution.
19. PW3-Pradeep said to be the complaint and witness
is examined as PW1. He has deposed in his evidence that he
has acquaintance with the deceased Sairobha Gunagi. During
January 2016, when he was proceeding on motorcycle towards
Habbuvada between 10.00 and 11.00 hours, near KSRTC Bus
Depot, Karwar, in front of Ganesh Temple, deceaed Sairobha
Gunagi was proceeding on his motorcycle from Karwar towards
Habbuvada. At that time, the driver of tipper lorry driving the
tipper in a high speed dashed against the said Sairobha. He
went to the spot and witnessed that the injured has sustained
injuries to his head and right leg. Then, with the help of the
son of the deceased he shifted the deceased to the hospital.
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Later, when the police came to the hospital, he has lodged the
complaint which is marked as Exhibit P3. He has deposed that
he has signed on Exhibit P1-Panchanama in the Police Station.
On the next day of the incident, Police has taken him to the
accident spot. Later, on the next day of the accident, he was
informed that the said Sairobha Gunagi died in the Hospital at
Goa.
20. CW6-Aravind Gunagi, said to be the eye-witness
who is examined as PW4, has deposed in his evidence that he
know the deceased-Sairobha and about 8 to 9 months back, on
one day when he was proceeding on motorcycle from
Kunagiwada to Karwar, at about 11.00 am, near KSRTC Bus
Depot in front of Ganesh Temple, the said Sairobha was
proceeding on bicycle towards Bandishitta. At that time a
tipper lorry coming from behind came in a high speed and
dashed to the bicycle resulting in the cyclist suffering grievous
injuries to his head and leg. Then he informed the same to the
family members of the injured and then CW9 the son of the
deceased, shifted him to the Hospital. He has informed that
the Registration Number of Lorry is KA30/7078. He has also
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informed that the accident occurred due to the rash and
negligent of the driver of the tipper lorry.
21. CW7-Digamber who is examined as PW5 has
deposed in his evidence that he is acquainted with the
deceased and about a year back on one day at about 10.00 pm
when he was proceeding on his motorcycle from Habbuvada
towards Karwar, at about 10.30 pm, near Ganapati Temple, the
deceased was proceeding on his bicycle from Karwar to
Habbuvada and at that time, the Tipper lorry coming from
behind dashed to the cyclist resultantly, the cyclist suffered
injuries to leg and head. He called to the family members of the
injured. Then the son of the injured came and shifted him to
the hospital. He also has deposed to the registration number of
the tipper lorry and he also came to know about the death of
Sairobha at Bambolim Hospital, Goa.
22. CW6-Ravi, who is examined as PW12 who is Motor
Vehicles Inspector, Regional Transport Office, Karwar has
deposed in his evidence as to the inspection of tipper lorry and
also issuance of report as per Exhibit P5.
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23. CW11-Dr Siddharth Banavalikar, Assistant
Professor, Department of Forensic Medicine, Goa Medical
College, Bambolim, Goa, is examined as PW7. He has deposed
as to conducting of post-mortem on the dead body of Sairobha
and also regarding issuance of Post-mortem report Exhibit P6.
24. CW15-Prasad, PSI, Traffic Police Station, Karwar
and CW16-Sharanagouda, Police Inspector, Karwar Central
Police Station, examined as PWs.8 & 9 have deposed as their
respective investigation.
25. PW3 is an independent eye-witness and
complainant. He has deposed in his evidence that he do not
know as how the accident took place. He do not know as to
who was the driver of the tipper lorry as on the date of the
accident. Even in his re-examination made by the Senior
Additional Public Prosecutor, he has categorically admitted that
he has not witnessed this accident. Further, he has clearly
admitted in his cross-examination that at the time of accident,
none were present except him. Even complaint-Exhibit P3 also
does not reveal as to the other eye-witnesses, who are
examined before the Court as PWs.4 & 5. During the course of
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cross-examination of PW4, he has clearly admitted that he has
not witnessed the accident. Even he has not observed as how
the cyclist has fallen from cycle. If really PWs.4 & 5 had
witnessed the accident and were present at the spot of
accident, the complainant would have mentioned their names in
the complaint Exhibit P3. As admitted by PW1, none were
present at the spot the time of accident. This evidence of PW3
reveals that the Investigating Officer had subsequently planted
these witnesses PWs.4 & 5 and they have not witnessed the
accident. Hence, their evidence cannot be believed.
Considering all these aspects, the trial Court acquitted the
accused.
26. On re-examination, re-evaluation, re-consideration
and re-appreciation of the entire evidence on record and
keeping in mind the decisions of the Hon'ble Supreme Court
stated supra, I do not find any error/illegality/infirmity in the
impugned judgment of acquittal. Accordingly, I answer point
No.1 in the negative.
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Regarding Point No.2:
10. For the aforestated reasons and discussions, I
proceed to pass the following:
ORDER
(i) Appeal dismissed;
(ii) Judgment of acquittal dated 15th November,
2017 passed in CC No.271 of 2016 by the Chief
Judicial Magistrate, Karwar is confirmed;
(iii) Registry to transmit the trial court records along
with the copy of this judgment to the concerned
Court.
Sd/-
(G BASAVARAJA)
JUDGE
RSH & LNN / CT-CMU
