Karnataka High Court

State Of Karnataka vs Suresh S/O Lakshman Hebasooru on 20 March, 2025

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                                                       CRL.A No. 100087 of 2017




                      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. 100087 OF 2017 (A)
                      BETWEEN:

                      STATE OF KARNATAKA,
                      REPRESENTED BY THE
                      CIRCLE POLICE INSPECTOR,
                      HONAVAR CIRCLE, HONAVAR,
                      THROUGH THE ADDL.
                      STATE PUBLIC PROSECUTOR,
                      ADVOCATE GENERAL OFFICE,
                      HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH.
                                                                    ...APPELLANT

                      (BY SRI. M.B. GUNDAWADE, ADDL. SPP.)

                      AND:

                      SURESH S/O. LAKSHMAN HEBASOORU,
                      AGE: 26 YEARS, OCC: TRUCK DRIVER,
VISHAL                R/O: HALAGATTI, RAMADURGA,
NINGAPPA
PATTIHAL              BELAGAVI, KARNATAKA.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
                                                                  ...RESPONDENT
Date: 2025.03.25
16:20:44 +0530


                      (BY SMT. SHASHIKALA L. DESAI, ADVOCATE)-(ABSENT)

                           THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                      378(1) & (3) OF CR.P.C., PRAYING TO, GRANT SPECIAL LEAVE
                      TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF
                      ACQUITTAL DATED 11.08.2016 PASSED BY THE SENIOR CIVIL
                      JUDGE & JMFC, HONAVAR AT HONAVAR IN CRIMINAL CASE
                      NO.21 OF 2016 (OLD CRIMINAL CASE NO.854 OF 2014) AND
                      TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE
                      PUNISHABLE UNDER SECTIONS 279, 338 AND 304-A OF IPC.
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                                                NC: 2025:KHC-D:5104
                                        CRL.A No. 100087 of 2017




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                      ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

The State has preferred this appeal against the

judgment of acquittal passed by the Senior Civil Judge and

JMFC, Honavar in Criminal Case No.21/2015 (Old

No.854/2014) dated 11.08.2016.

2. For the sake of convenience, the parties herein

are referred to with their rank before the trial court.

3. The brief facts leading to this appeal are that,

on 17.08.2014 at 10.15 p.m, the accused being the driver

of the lorry bearing Reg.No.AP-16/TY-7733 plying from

Murudeshwar towards Honavar in high speed and in a rash

and negligent manner so as to endanger the human life;

near Ellimakki Cross, on N.H.66, within the limits of Manki

Police Station, hit the Fish Container lorry bearing

Reg.No.KA-20/C-9727 and caused serious injuries to

C.W.1-Mahammed Ameen, C.W.6-Abrahar and C.W.7-

Vittal S/o Lakshmappa Nadagoudar and Mahammed Suhel

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s/o Mahammed Hussain. Immediately after the accident,

the injured were taken to RNS Hospital, Murudeshwar,

Thereafter, Mahammed Suhel was shifted to Justice

K.S.Hegde Charitable Hospital, Deralakatte for treatment.

But, he succumbed to the injuries on 18.09.2014 in the

said hospital. Thus, the accused has committed the

offence punishable under Sections 279, 337 and 338 of

IPC. After filing of the charge sheet, cognizance was taken

by the learned Senior Civil Judge and JMFC, Honnavar and

a case was registered in Criminal Case No.21/2016. The

substance of the plea of the accused for the above said

offences was read over and explained to him. The accused

pleaded not guilty and claimed to be tried.

4. To prove the case of the prosecution, in all 5

witnesses were examined as P.Ws.1 to 5 and got marked

15 documents as Exs.P1 to 15 and Photo was marked as

Ex.C1. On closure of the prosecution evidence, the

statement of the accused as required under Section 313 of

Cr.P.C. was recorded, wherein the accused has totally

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denied the evidence appearing against him. He has not

chosen to adduce any defence evidence on his behalf.

5. After hearing the argument of both sides, the

trial court has acquitted the accused. Being aggrieved by

the judgment of acquittal passed by the trial court, the

State has preferred this appeal.

6. Learned Additional State Public Prosecutor Sri

M.B.Gundawade would submit that the judgment and

order of acquittal passed by the trial court is contrary to

law, facts and evidence on record. He further submits that

P.W.1 is the complaint and injured eyewitness. P.W.2 is

the spot mahazar panch and P.Ws.3 and 5 are the other

injured eyewitnesses. He submits that P.W.1 had clearly

stated in his evidence that the accused by driving his truck

in a high speed in a rash and negligent manner dashed

against the truck belonging to P.W.1 and caused the

accident. The evidence of P.W.1 is supported by the

evidence of P.W.3 and both the witnesses have identified

the accused, who was driving the truck at the time of the

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accident. He further submits that the accused has not

denied the date, time and place of the incident and the

presence of the accused and the accused has not denied

the same in his statement under Section 313 of Cr.P.C.

The same would result in adverse inference against the

accused under Section 106 of the Evidence Act. The

evidence of P.W.1 is corroborated with the evidence of

P.Ws.3 and 5. The trial court has not discussed anything

regarding the spot sketch Ex.P3 produced by the

prosecution. Therefore, the judgment and order of

acquittal passed by the trial court is contrary to the facts.

The trial court has not appreciated the evidence on record

on its proper perspective and erred in acquitting the

accused. On these grounds, he sought to allow the appeal.

7. Learned counsel for the respondent/accused

remained absent. Hence, respondent's side argument is

taken as nil.

8. Having heard the arguments of the learned

Additional SPP and on perusal of the material placed

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before me, the following points would arise for my

consideration.

(i) Whether the State has made out grounds to interfere with the impugned judgment of acquittal passed by the trial court?

(ii) What order?

9. My answers to the above points are as under :

Point No.(i) - in the Negative

Point No.(ii)- as per the final order.

Point No.(i)

10. I have examined the material placed before this

court and evidence on record.

11. 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.

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12. 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 the court to review the evidence and to come to its own conclusion.

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(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."

13. 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 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

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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. ..."

14. 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 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

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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...."

15. 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."

16. 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

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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."

17. 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 v. THE

STATE OF KARNATAKA reported in 2022 LIVELAW (5)

489, the Hon'ble Apex Court has held that the doctrine of

Res Ipsa Loquitur would not, stricto sensu, apply to

criminal cases.

18. It is the case of the prosecution that the

accident has taken place due to negligence of the accused,

who was driving the lorry bearing Reg.No.AP-16/TY-7733.

There are 17 witnesses cited in the charge sheet. Out of

them, C.W.1-Mahammed Ameen is examined as P.W.1.

C.W.3-F.M.Ayub is said to be the attester to the mahazar

is examined as P.W.2. C.W.6-Abrahar S/o Mohammed

Hussain is said to be the injured and eyewitness is

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examined as P.W.3. C.W.16-Nityananad s/o Gopal Pandit

is examined as P.W.4. C.W.7-Vittal s/o Laxmappa

Nadagouda is said to be the injured eyewitness is

examined as P.W.5.

19. P.W.1 said to be the injured eyewitness has

deposed that on 17.08.2024, he was proceeding along

with P.W.3 and deceased Mohammed Suhel in a Fish

Container Lorry from Goa to Malpe. The said vehicle was

driven by the deceased Suhel. Near Manki-Hadinbal Cross,

the accused driven his lorry from the opposite direction in

high speed and in a rash and negligent manner. Though

deceased Mahammed Suhel took his vehicle to the

extreme left side, the accused came and hit to their

vehicle. The accident has taken place due to the

negligence of the accused. He identified the accused as the

driver of the lorry, which came from the opposite

direction.

20. C.W.3-F.M.Ayub said to be the attester to the

Mahazar Ex.P2 and also attester to the sketch Ex.P3 has

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deposed as to the said mahazar and sketch prepared by

the Investigating Officer.

21. C.W.6-Abrahar s/o Mohammed Hussain said to

be the injured eyewitness examined as P.W.3. In his

evidence, he has deposed that the deceased Suhel is his

elder brother. That on 17.08.2014 he, Suhel and P.W.1

were proceeding in a lorry loaded with Fish from Goa to

Udupi, which was driven by his elder brother Suhel. When

they were proceeding near Ellimakki cross, one lorry came

from Goa side loaded with charcoal in a high speed and

dashed to their lorry at 10.15 hours. As a result, he has

received injuries on his head. C.W.1 has received injuries

on his left hand. His brother sustained injuries on his

abdomen. Immediately, his elder brother was shifted to

Murudeshwar Hospital in 108 Ambulance. Thereafter, he

was shifted to Chinmay Hospital for higher treatment.

Then he has shifted to Manipal and finally Tejaswini

Hospuital, Mangaluru. After one month from the date of

the accident, his elder brother passed away. The accident

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occurred due to fault of the driver of the offending lorry

and he has identified the accused.

22. C.W.16-Nityanand s/o Gopal Pandit, who is

examined as P.W.4. He has deposed as to the part of his

investigation.

23. C.W.7 said to be the eyewitness is examined as

P.W.5 and he has not supported the case of the

prosecution. Even in his cross-examination made by the

Assistant Public Prosecutor after treating him as hostile

witness with the permission of the court, he has

categorically denied the statement said to have been

recorded by the Investigating Officer under Section 161 of

Cr.P.C., which is marked as Ex.P15.

24. During the course of cross-examination, P.W.1

has clearly admitted that the offending vehicle was not

coming in a zigzag manner. The said lorry has not crossed

the middle white line and came to its right side. Further,

he has admitted that, he does not know as to how many

feet he has taken his vehicle to the right side, and both

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the vehicles were damaged on the driver seat side. During

the cross-examination of P.W.3, he has stated that, he

could not make out how lorry came and hit their vehicle.

Due to the accident, he sustained injury on his head and

remained unconscious. He regained conscious at

Murudeshwar Hospital. Further, he has clearly admitted

that at place of accident, the road is straight for about 100

meters and he was sitting by the side of the driver. This

evidence of P.W.3 clearly goes to show that, he was

sleeping at the time of the accident and he has not

observed the opposite vehicle.

25. The Ex.P2-Panchanama, the spot sketch Ex.P3

and Ex.C1-photo shows that both the vehicles were

damaged on the driver seat side of the respective vehicles.

From the evidence of P.W.1, it discloses that, he could see

the vehicle coming from the opposite direction from a

distance of 200 feet. P.W.1 has clearly stated that lorry of

the accused has not come to the right side by crossing the

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middle white line. This evidence goes against the case of

the prosecution.

26.

27. Considering all these aspects, in paragraph 16,

the trial court has observed as under:

"16. The evidence of eye witnesses PWs-1, 3 and 5 is not sufficient to prove that the accident has taken place due to the negligence of the accused. PW-2 F.M. Ayub is the witness to the Spot Panchanama as per Ex.P2 and Sketch as per Ex.P3. He has stated that he has put his signature to those documents at Manki, Ellimakki, on National Highway. It is his evidence that at that time he, CW-2 and CW-9 were present. He has stated that CW-9 has shown the place of incident to the Police. However, in his cross examination he has stated that he is partner of the Lorry involved in the accident i.e., Fish Container Lorry. Further, he has stated that at the time of the accident CW-9 was not present at the spot. CW-9 Abdul Rahim has not been examined before the Court. Therefore, if CW-9 was not present in the spot, how can he show the place of incident to the Police. In his cross examination he has stated that he could not say

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how many feet from the tar road the accident has taken place. Under such circumstances, from the evidence of PW-2, the Spot Panchanama and Spot Sketch cannot be proved. It is to be noted that in the Spot Sketch it has been stated that the accident has taken place on the extreme right side of the road from Murudeshwar towards Honhavar."

17. PW.4-Nityanand Pandi, P.S.I., Manki Police Station. He has registered the case and conducted investigation in this case. CW-17-Manjunath M. CPI another I.O. has not been examined before this court. Considering the above circumstances, I am of the opinion that the evidence adduced by the Prosecution is not sufficient to come to the conclusion that the accident has taken place due to the negligence of the accused. Therefore, Prosecution has failed to prove it case beyond reasonable doubt. Accordingly, I answer point no.1 in the negative.

28. On re-appreciation / reconsideration / re-

examination of the entire evidence on record, and keeping

in mind the aforesaid decisions, I do not find any

error/illegality/infirmity in the impugned judgment of

acquittal. Hence, I answer point No.(i) in the negative.

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Point No.(ii).

29. For the aforesaid discussion, I proceed to pass

the following:

ORDER

i) The Criminal Appeal is dismissed.

ii) The judgment of acquittal dated 11.08.2016 passed in Criminal Case No.21/2016 by the Senior Civil Judge and JMFC, Honavar is hereby confirmed.

Sd/-

(G BASAVARAJA) JUDGE

MBS Ct-cmu