IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF NOVEMBER, 2023

BEFORE

THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 889 OF 2015

BETWEEN:

THE STATE REPRESENTED BY PUBLIC PROSECUTOR, UDUPI DISTRICT, UDUPI - 576 101.

…APPELLANT

(BY SRI. M.R. PATIL, HCGP)

AND:

MR. RAVICHANDRA R., AGED ABOUT 35 YEARS, S/O RAJIYAN K., BEHIND MASTIKATE MANDALA PANCHAYATH, KAIRAKUNDA VILLAGE, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT - 577 418.

…RESPONDENT

Location: High Court of Karnataka

Digitally signed by SANDHYA S

(BY SMT. SANDHYA U. PRABHU, ADVOCATE)

THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C PRAYING TO a)GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED:27.02.2015, PASSED BY THE PRL. S.J., UDUPI DIST., UDUPI IN CRL.A.NO.75/2012 THEREBY ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCE P/U/S 279 AND 304(A) OF IPC AND ETC.,

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

NC: 2023:KHC:41216 CRL.A No. 889 of 2015

JUDGMENT

The State/appellant has preferred this appeal against the judgment of acquittal dated 27.02.2015 passed in Crl.A.No.75/2012 by the Court of the Principal District and Sessions Judge, Udupi District, Udupi.

2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the concerned Court.

3. The case of the prosecution is that on 24.07.2008 at about 8.15 a.m., the accused being the driver of bus bearing Reg.No.KA-31-F-1057 drove the same from Karkala side towards Kukkundoor village, Jarkala side in a rash and negligent manner dashed against Ramadas Naik who was standing by the side of the road and as a result of which, he sustained grievous injuries and died on the way to hospital. Thus, the accused has committed offence punishable under Sections 279 and 304A of IPC.

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4. After filing of charge sheet, learned Magistrate took cognizance against the accused for the alleged offence punishable under Sections 279 and 304A of Indian Penal Code and the case was registered in C.C.No.567/2008. In pursuance of the summons issued by the Trial Court, the accused appeared before the Trial Court and plea was recorded. The accused pleaded not guilty.

5. To prove the case of prosecution, in all, 5 witnesses were examined as PWs.1 to 5 and 7 documents were got marked as Exs.P1 to P7. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded. The accused has denied all the incriminating evidence appeared against him and one witness was examined on behalf of accused as DW.1 and the accused himself examined as DW.2. No documents were marked on behalf of accused. On hearing the arguments, the Trial Court has convicted the accused for offence punishable under Sections 279 and 304(A) of

Indian Penal Code respectively and the accused was also sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default of payment of fine amount, to undergo simple imprisonment for a period of one month for the offence punishable under Section 279 of Indian Penal Code and to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,500/-, in default of payment of fine amount, to undergo simple imprisonment for a period of three months for the offence punishable under Section 304(A) of Indian Penal Code respectively. Being aggrieved by this judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred an appeal before the Sessions Judge, Udupi in Crl.A.No.75/2012. On hearing the arguments on both sides, the appellate court has allowed the appeal and set aside the judgment of conviction and order of sentence dated 16.08.2017 passed in C.C.No.567/2008 by the Prl. Civil Judge and JMFC, Karkala and acquitted the accused for the commission of offence punishable under Sections 279 and 304(A) of

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Indian Penal Code. Being aggrieved by this judgment of acquittal passed by the appellate court, the State/appellant has preferred this appeal.

6. Learned High Court Government Pleader Sri. M.R.Patil submits that the appellate court has failed to consider the evidence of PWs.1 and 2 who are the eyewitnesses and deposed to the extent they have witnessed the accident. The accused drove the vehicle in a rash and negligent manner and the offending vehicle was proceeding from Karkala to Udupi and dashed against the deceased Ramdas Naik who was standing on the side of the road. Further, they also spoken about the grievous injuries sustained by the deceased Ramdas Naik. But the learned Sessions Judge has given much importance to the evidence of DWs.1 and 2. Hence, the learned Sessions Judge failed in appreciating the case of prosecution. Further, it is submitted that PWs.1 and 2 are the direct eyewitnesses to the accident have deputed regarding the rash and negligent Act on the part of the Accused. The

trial Court has not assigned proper reasons for acquitting the accused. On all these grounds, he sought to allow this appeal.

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7. As against this, learned counsel for the respondent submits that the appellate court has properly appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with the judgment of acquittal passed by the Sessions Court. Hence, he sought to dismiss this appeal.

8. Having heard the arguments of learned counsel on both sides and on perusal of the entire records, the following points would arise for my consideration:

• i. Whether the appellant has made out a ground to interfere with the judgment of acquittal dated 27.02.2015 passed in Crl.A.No.75/2012?
• ii. What order?
• 9. My finding to the above points are as under:
  • i. In the negative

ii. as per final order

Regarding Point No:1

10. Before appreciating the evidence on record, it is necessary to mention here the judgment of Hon'ble Apex Court as to the scope and power of Appellate Court in acquittal cases:

11*.* In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC On-line SC 676, wherein 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.

(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 by wellestablished 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 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 re-consider 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."

14. It is also necessary to mention here the

judgment of Hon'ble Apex Court as to the burden of proof

in the offence punishable under Section 304-A of IPC - In the case of

15. I have carefully examined the impugned judgment and materials placed before the Court.

16. It is the case of prosecution that on 24.07.2008 at about 8.15 a.m., being the driver of bus bearing Reg.No.KA-31-F-1057 drove the same from Karkala side towards Kukkundoor village, Jarkala side in a rash and negligent manner, dashed against Ramadas Naik who was standing by the side of the road and as a result of which, he sustained grievous injuries and died on the way to hospital. Thus, the accused has committed offence punishable under Sections 279 and 304A of IPC.

17. A perusal of the judgment of Trial Court at para No.4, it is observed that the inquest panchanama, IMV

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report and post mortem report were marked at Exs.P4 to P6 with the consent of accused counsel. CWs.3 to 10 and CWs.12 to 16 were not examined before the Trial Court.

18. On careful examination of entire evidence on record, it is crystal clear that there is no dispute as to the death of Ramdas Naik who succumbed to the injuries in a road traffic accident. To prove the case of prosecution, complainant is examined as PW.1 and relative of the deceased who is a eyewitness to the accident is examined as PW.2.

19. PW.3- Suresh Naik is the panch witness to the spot mahazar, PW4 M. Venkappa naik, PSI and PW.5- T.R. Puttaswamy Gowda who is the Circle Inspector of Police have deposed as to their respective investigation.

20. DW.1-Thippanna Madivala is the conductor of KSRTC bus and the accused Ravichandra R is examined as DW.2.

21. In para Nos.13 to 17 of the judgment, the

learned Sessions Judge has observed as under:

"13. PW.1 has deposed that deceased Ramadas Nayak is the son of his elder brother. He has further deposed that about 1½ years back in the morning at 8.00 a.m. for the purpose of going to work he was waiting for the bus in Jarkala Market and at that time, he was standing by the side of the road and at that time, son of his elder brother deceased Ramadas Nayak came there for the purpose of going to School and he was standing on the mud road waiting for the bus. He has further deposed that at that time, one KSRTC bus came from Karkala side going towards Udupi in high speed and dashed to the son of his elder brother and went further and stopped the bus and he went to the spot and the boy had sustained injuries and the driver of the bus also came to the spot. He has further deposed that he cannot identify the said driver on seeing him. He has further deposed that Ramadas Nayak was taken for treatment to the Hospital and he was reported dead. He has further deposed that the name of the accused is told to him as Ravichandra. He has further deposed that the accident occurred due to the high speed of the bus which dashed to Ramadas Nayak standing on the mud road. He has further deposed that he has given complaint as per Ex.P1. He has further deposed that he has shown spot of accident to the police who have prepared spot mahazar as per Ex.P2 and rough sketch as per Ex.P3. The complaint filed by PW.1 is at Ex.P1. In Ex.P1 also it is stated that after the accident, the driver of the bus stopped at a distance and came running to the spot. In the chief examination also PW.1 has stated that the bus driver after the accident came to the spot. PW.1 has deposed that he cannot identify the driver. When PW.1 has seen the driver on the spot, the question arises as to why he is not able to identify the driver of the bus. Therefore, a doubt arises as to the presence of PW.1 at the time of the accident on the spot. PW.1 has stated in the crossexamination that he has gone to the police station

14. DW.1 conductor of the bus involved in the accident has deposed that he was conductor and the accused was the driver of the bus bearing Regn.No.KA31F-1057 and the accident took place near Jarkala at 8.15 a.m. He has further deposed that on the road on which their bus was going lorry was parked facing towards Karkala on the road and one boy came behind the lorry on the road suddenly and at that time, their bus was on the left side and the accident took place due to the fault of the said boy who came suddenly on the road. In the cross-examination he has stated that he was sitting in the second seat of the bus on that day and he was seeing on the front side. He has further stated that the accused knows better how the accident occurred.

15. DW.2 who is the driver of the bus involved in the accident has deposed that he was driving the bus on Karkala road near Jarkala at 8.15 a.m. slowly and on the road a lorry was parked facing Karkala and the boy suddenly came running on the road behind said lorry and labourers

were standing on the left side of the road and therefore, the accident occurred. PW.1 in the crossexamination has also stated that he knows one Surendra Shetty who is the lorry loader of Shantheri Kamakshi lorry and one Kamalaksha Nayak is the owner of the said lorry. He has further stated that near the spot of accident, there is a shop and office of said Kamalaksha Nayak and several persons and lorry came near Kamalaksha's office in the morning and the lorry drivers visit him. On looking to the said aspect it corroborates the version of DWs.1 and 2 that the lorry was parked on the road facing Karkala.

16. PW.2 who has deposed that he has seen the accident has stated in the cross-examination that before the accident he and PW.1 were talking in Saloon and they were together and the said Saloon is situated by the side of Kamalaksha Nayak's shop. The said Saloon is not shown in the sketch drawn by the Investigating Officer as per Ex.P3. PW.2 has stated in the cross-examination that he has not observed the tyre marks of the bus on the mud road were there or not. PW.2 has further stated in the cross-examination that the house of the deceased Ramadas Nayak is situated on the right side of the road leading from Karkala to Udupi. He has further stated that the deceased has to cross the road to go to the School. The very said aspect goes to show that the deceased Ramadas Nayak's house is situated on the right side of the road and he has to cross the said road to go to his School. Therefore, the defence of the appellant/accused appears to be probable that the deceased boy Ramadas Nayak came suddenly on the road behind the stationary lorry parked on the road and therefore, the accident occurred.

17. The learned Advocate appearing for the appellant has relied upon a decision reported in 1972 Crl.L.J. 49 between Mahadeo Hari Lokre and The State of Maharashtra wherein it is held as under:

"Penal Code – (1860), S. 304-A

Negligent driving along public way-If a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident, however, slowly he may be driving and therefore, he cannot be held to be negligent in such a case."

In the above said decision, it is held that if a pedestrian suddenly crosses a road without taking note of the approaching bus, there is every possibility of his dashing against the bus without the driver becoming aware of it and the bus driver cannot save accident, however, slowly he may be driving and therefore, he cannot be held to be negligent in such a case. The facts of the said decision are similar to the facts of the present case. In the present case also the deceased boy Ramadas Nayak suddenly came for crossing the road behind a stationary lorry parked on the road and therefore, the accident occurred and the appellant/accused could not prevent it as the said boy came suddenly on the road. Therefore, the accident occurred not due to the rash and negligent driving of the appellant/accused. The court below has not appreciated the evidence of PWs.1 and 2 and DWs.1 and 2 properly. The court below has erred in holding that the accused has committed offences punishable Crl.A.No.7 11 5/2012 under sections 279 and 304A of I.P.C. Accordingly, I answer point Nos.1 and 2 in the affirmative."

22. On re-appreciation / re-consideration/ reexamination of the entire evidence on record and also keeping in mind the decisions of the Hon'ble Apex Court, I do not find any illegalities/legal infirmities in the impugned

judgment of acquittal passed by the Appellate Court.

Hence, I answer the point No.1 in negative.

Regarding Point No.2:

23. For the aforesaid reasons, I proceed to pass the following:

ORDER

• 1. Appeal dismissed.
• 2. The judgment dated 27.02.2015 passed in Crl.A.No.75/2012 by the Court of Principal Sessions Judge, Udupi, is confirmed.
• 3. Registry is directed to send a copy of this judgment along with the Trial Court records to the concerned Courts forthwith.

Sd/- JUDGE

SSD