Karnataka High Court
State Of Karnataka vs Shabbar Mulla Mahammad on 8 July, 2024
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NC: 2024:KHC-D:9375
CRL.A No. 100207 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100207 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
KUMTA POLICE STATION,
UTTARA KANNADA DISTRICT,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI M.M.KHANNUR, AGA)
AND:
SHABBAR MULLA MAHAMMAD
SALIHAM MULLA,
AGE: MAJOR,
Digitally signed
by VINAYAKA B V R/O: KASARKOD, HONNAVAR.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI J.S. SHETTY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL
LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 01.03.2016 PASSED BY
PRINCIPAL CIVIL JUDGE AND J.M.F.C., KUMTA IN C.C.NO.141
OF 2015 AND ETC.
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NC: 2024:KHC-D:9375
CRL.A No. 100207 of 2017
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the judgment of acquittal dated 01st March, 2016 passed in CC No.141 of 2015 by the Principal Civil Judge and JMFC, Kumta, (for brevity, hereinafter referred to as the "trial Court").
2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court.
3. Brief facts leading to this appeal are that the Police Inspector, Kumta Circle filed charge against the accused for the offence punishable under Section 279, 337 and 304-A of Indian Penal Code. It is alleged in the charge sheet that the accused who is the owner/rider of Yamaha Motorcycle bearing Registration No.KA-47/Q-2495 on 10th December, 2014 at 6.00 pm, along with one Abdul Jabbar as pillion rider, drove the motorcycle from Kumta towards Honnavara on National Highway-66 in a rash and negligent manner, so as to endanger human life and when the motorcycle reached Holagadde bus stop, he dashed against Narayana Nagugowda, who was crossing the road and as a result, said Narayana Nagugowda -3- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 sustained grievous injuries and succumbed to accidental injuries at Government Hospital Kumta. The pillion rider also sustained simple injuries. The accused by riding the motorcycle in rash and negligent manner caused the accident and thus committed an offence punishable under Section 279, 337 and 304-A of Indian Penal Code.
4. After filing of charge sheet, the trial Court has taken cognizance against the accused and registered a case in CC No.141 of 2015. In pursuance of summons issued by the trial Court, accused appeared before the trial Court and was enlarged on bail. The substance of plea was recorded. Accused has pleaded not guilty and claimed to be tried.
5. To bring home the guilt of the accused, prosecution has examined in all eight witnesses as PWs.1 to 8 and ten documents were marked as Exhibits P1 to P10. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence appearing against him but he has not adduced any evidence on his behalf. Having heard the arguments on both sides, the trial Court has -4- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 acquitted the accused. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.
6. Sri Madan Mohan Khannur, learned Additional Government Advocate appearing for the State would submit that the judgment and order of acquittal passed by the trial Court is contrary to law, facts and evidence on record and hence is not sustainable in the eye of law and is liable to set aside. He submits that the trial Court has acquitted the accused on the ground that the deceased was in anxiety to reach his home, suddenly crossed the road without observing oncoming vehicles and hence came in contact with the offending motorcycle and his own negligence is the cause for his death. The said reasoning assigned by the trial Court is contrary to evidence placed on record by the prosecution and is not supported by any oral or documentary evidence. Hence the impugned judgment is not sustainable in the eye of law. The learned Additional Government Advocate further submits that PW1 is the eye-witness and the complainant and he has supported the case of prosecution and deposed before the trial Court in consonance with the complaint Exhibit P1. The evidence of this witness is further fortified by the evidence of -5- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 PW4-eye witness. Both these witnesses have specifically and categorically stated before the trial Court that the accused drove his motorcycle from Kumta to Honnavar in a high speed, rash and negligent manner and dashed the same to the Narayana Nagugowda resulting in his death. The evidence of these witnesses is discarded on the ground that PW1 was the active worker of Bharatiya Janata Party and he has attended the courts for giving evidence in number of criminal cases. Further, the evidence of PW1 was rejected on the ground that he has not deposed as to the speed of the motorcycle and also the trial Court has given the reasoning that there are material contradictions in the evidence of PWs.1 and 4. The said reasons are not proper and correct. He further submits that the accused has not denied the place of incident, date and time and also the accident in question. The accused has taken the contention that the deceased has come to road all of a sudden and thereby accident had occurred and also taken the contention that because of failure of brake-liner the accident occurred. But the said defence taken by the accused is not supported by any evidence and the same holds no water on the ground that PW6- Motor Vehicle Inspector has not stated -6- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 anything in his evidence and also not stated anything regarding failure of brake-liner of the motorcycle and hence the defence taken by the accused is false to the ground. Therefore, the reasoning assigned by the trial Court is not sustainable in the eye of law and is liable to be set aside. He further submits that the accused has not taken any steps to stop the motorcycle by applying the brakes since same has not been found in the spot- mahazar Exhibit P2 and spot sketch at Exhibit P10. This aspect of the matter has not been discussed by the trial Court and thereby has come to the wrong conclusion and acquitted the accused. On all these grounds sought for allowing the appeal.
7. On the other hand, Sri J.S. Shetty, learned counsel appearing for the respondent-accused submits that the CW1- Suresh, CW6-Raju Anant Nayaka, CW7-Subbaraya, CW8-Abdul Jabbar are material witnesses and out of them, CW1 is also the complainant. Other witnesses are said to be eye-witnesses. CWs7 and 8 not been examined by the prosecution. PWs.1 and 6 have not deposed in their evidence as to the rash and negligent act on the part of the riding of motorcycle by the accused. The trial Court has properly appreciated the evidence on record in accordance with law and facts and on all these -7- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 grounds he submits that the impugned judgment of acquittal needs no interference and accordingly sought for dismissal of appeal.
8. Having heard the learned counsel for the parties and on perusal of appeal papers, the following points would arise for my consideration in this appeal:
1. Whether the State has made out a ground to interfere with the impugned judgment of acquittal?
2. What order?
9. My answer to the above points is as under:
Point No.1: in the negative;
Point No.2: as per final order.
Regarding Point No.1:
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. -8-
NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017
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 -9- NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 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
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 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 conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 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
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 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."
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 offence under Section 304-A of the Indian Penal Code. In the
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 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 Stricto Sensu would not apply to criminal cases.
17. I have carefully examined the material placed before this Court. It is the case of prosecution that on 10th December, 2014 at 6.00 pm, the accused being the owner/rider of Yamaha Motorcycle bearing Registration No.KA-47/Q-2495 along with one Abdul Jabbar as pillion rider, drove the motorcycle from Kumta towards Honnavara on National Highway-66 in a rash and negligent manner, so as to endanger the human life and when the motorcycle reached Holagadde bus stop, he dashed against Narayana Nagugowda, who was crossing the road, result of which, the said Narayana Nagugowda sustained grievous injuries and succumbed to accidental injuries at Government Hospital Kumta. The pillion rider also sustained simple injuries. As could be seen from the charge sheet, there are seventeen witnesses. Out of them, CW1-Suresh Thimmappa Naik, who is the complainant and also the eye-witness to the incident. CWs.6 to 8 are also eye- witnesses to the incident. CWs.7 and 8 have not been
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 examined by the prosecution. The prosecution has examined the material witnesses CW1 and CW6 as PW1 and PW4 respectively. PW1-Suresh Thimmappa Naik has deposed in his evidence that the rider of the motorcycle rode the same in negligent manner with high speed and caused the accident. PW4-Raju Anant Naik, has also deposed in the same lines as is deposed by PW1. The contents of Exhibit P1-complaint and the evidence of PWs.1 and 4 reveal that when the deceased was crossing the highway, the accident occurred and as a result Narayana Nagugowda died due to the accidental injuries. The pillion rider also has sustained simple injuries. As per evidence of PWs.1 and 4, and perusal of rough sketch and spot mahazar, it could be gathered that at the time of accident, the accused was crossing from right side of Kumta-Honnavar road towards the left side. As per evidence of PW4, the deceased was crossing the road hurriedly and PW4 has deposed that the accident occurred at the middle of the road. But as per the evidence of PW1, the spot of accident is at a distance of two feet from the edge of the left side of the asphalt road. Whereas, as per the evidence of PW4, the spot of accident is the middle of the road. But as per the case of the prosecution,
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 the spot of incident is at the distance of eight feet from the edge of asphalt road towards the right side. Hence, the witnesses have not deposed as to where exactly was the spot of accident, whether at the extreme left side of the road or at the middle of the road. Considering all these aspects, the trial Court has rightly observed that the accused was riding the motorcycle on the left side of Kumta-Honnavar road and accordingly, was proceeding on the correct side of the road. The trial Court has observed the road is a National Highway and there is no evidence to say that the condition of the road is bad or that it is a crowded place. Hence, the mere fact that the accused has ridden the motorcycle in a speed, rash and negligent act does not attract the offence that is alleged against him. In paragraph 27 of the judgment, the trial Court has observed as under:
"27. Now at this juncture it would be relevant to go through the spot mahazar wherein it was noted that the offending vehicle which was lying at the spot when inspected by investigating officer at the time of drawing mahazar, the brake liner of said vehicle was cutoff. It is relevant to state here that even though the investigating officer at the earliest point of time has observed the cutting off brake liner of vehicle, but in the I.M.V. report there is no whisper of cutting off brake liner of vehicle. It is admitted by P.W.6 that
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 if the brake liner of vehicle is cut off, it can be said that, there is mechanical defect in the said vehicle. Now on comparing the evidence of P.W.6 with that of recital of spot mahazar it can be said since the brake liner of the offending vehicle was cut down, there was mechanical defect in the said vehicle and mechanical defect of the vehicle might be one of the reason for the accident so also deceased suddenly crossing the road without taking note of approaching vehicle. When the deceased suddenly crossed the road without observing the approaching vehicle, the accused as the driver/raider of vehicle cannot save the accident and he cannot be said to be negligent."
18. In the case on hand, the trial Court has properly appreciated the evidence on record in accordance with law and facts and even on re-appreciation/reconsideration and re- examination of entire evidence on records and keeping in mind the decisions referred to above, I do not find any error/legal infirmity/illegalities in the impugned judgment. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
19. For the aforestated reasons and discussions made above, I proceed to pass the following:
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NC: 2024:KHC-D:9375 CRL.A No. 100207 of 2017 ORDER Appeal is dismissed.
Sd/-
JUDGE LNN List No.: 1 Sl No.: 37