State of Karnataka, Vs Praveen S/O Shivanand Gungi

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

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…APPELLANT

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(BY SMT. GIRIJA S. HIREMATH, HCGP)

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AND:

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PRAVEEN S/O. SHIVANAND GUNGI, AGE: 28 YEARS, R/O. GUNGIWADA, TADOOR, KARWAR.

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…RESPONDENT

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(BY SRI. ANIL KALE, ADVOCATE)

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Digitally signed byYASHAVANT YASHAVANT NARAYANKAR NARAYANKAR Date: 2025.06.24 10:11:35 +0530

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 05.11.2016 PASSED BY THE LEARNED CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO. 225 OF 2016 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 05.11.2016 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, KARWAR IN C.C.NO.225 OF 2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279, 337 AND 304A OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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The State has preferred this appeal against the judgment of acquittal passed in CC No.225/2016, dated 05.11.2016, on the file of Chief Judicial Magistrate, Karwar¹ , whereby the learned Magistrate acquitted the accused for the offences punishable under Sections 279, 337 and 304(A) of IPC.

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2. The abridged facts of the prosecution case are that, on 02.02.2016 at about 7:45 p.m., the accused being a rider of the motorcycle bearing registration No.KA-30/R-6350, rode the same on NH-66, near the shop of one Premanand Kudtalkar (PW6) at Chendiya village at high speed in a rash and negligent manner and dashed one Ullas Nagekar, who was crossing the road in the said place. Owing to the same, the said Ullas Nagekar sustained injuries and immediately, he was shifted to Government Hospital, Karwar for first aid treatment and thereafter, shifted to Bambolin Hospital, Goa for further treatment and he was discharged on the advice of the medical officer and later shifted to Mangalore KMC Hospital. During the course of treatment, he succumbed to the injuries on

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1 Hereinafter referred to as ‘learned Magistrate’

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HC-KAR

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12.02.2016. Initially, PW1-Ajay i.e., the brother’s son of deceased Ullas lodged a complaint on 03.02.2016 before the Karwar Police against the accused as per Ex.P1. On the strength of Ex.P1, the said Police registered the case against the accused i.e., rider of the motorcycle in question, for the offences punishable under Sections 279, 338 read with Section 187 of the Indian Motor Vehicles Act, 1988 in Crime No.28/2016 as per Ex.P7. After the death of deceased, the Police invoked Section 304(A) of IPC and after completion of the investigation, laid charge sheet against the accused for the offences punishable under Sections 279, 337 and 304(A) of IPC.

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3. After securing the presence of the accused, the learned Magistrate framed charges against the accused for the aforesaid offences; however, he denied the charges and claimed to be tried. To prove the charges leveled against the accused, the prosecution in total examined 8 witnesses as PW1 to PW8 and marked 9 documents as per Ex.P1 to P9. Though the accused did not examine any witness on his behalf, but marked one document as Ex.D1.

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4. On assessment of oral and documentary evidence, the learned Magistrate acquitted the accused for the charges leveled against him. The correctness and legality of the said judgment of acquittal is under challenge in this appeal by the State.

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5. I have heard Smt. Girija S. Hiremath, learned HCGP for the appellant/State, so also Sri. Anil Kale, learned counsel for the respondent/accused and perused the trial Court records.

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6. The primary contention of the learned HCGP is that the judgment under this appeal suffers from perversity and illegality, since the learned Magistrate failed to appreciate the evidence on record in a right perspective. The prosecution has proved the guilt of accused beyond all reasonable doubt by examining PWs.1, 4 and 6, who are eye-witnesses to the incident. All these witnesses have categorically stated that, at the time of the incident, they were very much present in the scene of the occurrence and witnessed the incident. According to them, while deceased crossing the road, the accused was riding the motorcycle in a high speed and dashed against him. Due to the same, the deceased sustained severe injuries.

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HC-KAR

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Further, the prosecution also placed the evidence of PW2 and PW3-witnesses for spot mahazar and they have also supported the case of the prosecution. In such circumstance, the learned Magistrate without appreciating the evidence on record acquitted the accused based on surmises and conjectures. Accordingly, she prays to allow the appeal and convict the accused for the charges leveled against him.

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7. Per contra , learned counsel for the

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respondent/accused contended that the learned Magistrate, after meticulously examining the entire evidence on record, passed a well-reasoned judgment, which does not call for interference at the hands of this Court. He contended that there is an inordinate delay in lodging the complaint, though the accident was caused on 02.02.2016, the complaint was lodged on 03.02.2016 and there is no reason whatsoever is forthcoming on record for the inordinate delay. He also contended that the evidence of PW1, 4 and 6 is not trustworthy for the reason that, in their cross-examination, they have categorically admitted that they witnessed the incident after the accident. PW1 and 4 have further admitted in their crossexamination that, near the spot of accident, the shop of

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Premanand Kudtalkar was not situated. This portion of admission of PW1 and 4 goes contrary to the spot mahazar and Ex.P1-complaint. Learned counsel also contended that PW1, 4 and 6 have not stated about rashness and negligence of riding of the accused at the time of accident. Mere driving the vehicle in a high speed itself not sufficient to attract the provisions of Sections 279 and 304-A of IPC. He also contended that on perusal of Ex.P1, it clearly establishes that the deceased died due to medical negligence without providing sufficient medical aid. Lastly, he contended that, this being an appeal against acquittal, if plausible view is taken by the trial Court, then the appellate Court shall not interfere in the said judgment as per law laid down by the Hon’ble Apex Court. With these grounds, he prays to dismiss the appeal.

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8. Having heard the learned counsel for the respective parties and having perused the documents available on record, the only point that would arise for my consideration is:

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“W hether the learned Magistrate is justified in acquitting the accused for the offences punishable under Sections 279, 337 and 304-A of IPC?”

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9. I have given my anxious consideration to the submissions made by both the learned counsels, so also evidence available on record.

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10. It could be gathered from records, the death of deceased-Ullas Nagekar in the road accident is not seriously disputed by the accused. Nevertheless, the prosecution placed Ex.P5-Post Mortem report conducted on the corpse of the deceased. The opinion of the Doctor as to the cause of death was, the deceased died due to ‘complication following cranial cerebral injury as a result of blunt force impact due to road traffic accident’. In addition, the prosecution placed inquest panchanama conducted on the corpse of the deceased, which is marked at Ex.P3. Hence, on collective reading of Exs.P3 and P5, I am of the considered view that the prosecution has proved the accidental death of the deceased. To connect the accused for the death of the deceased, the prosecution predominantly placed reliance on the evidence of eyewitnessesPWs.1, 4 and 6. According to PW.1, on 02.02.2016, his uncle while crossing the road on Nirankarwad Chendiya village, Karwar, the accused being rider of the motorcycle rode the same in high speed and dashed against his deceased uncle, due

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HC-KAR

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to which, his uncle sustained injuries and thereafter, he was shifted to Hospital for treatment and subsequently, he succumbed to the injuries. However, on careful perusal of the cross-examination of PW1, he admitted that he had not seen the shop of one Premanand Kudtalkar (PW6) near the spot of accident. It is pertinent to mention at this juncture that, it is the specific case of the prosecution that the accident was caused near the shop of PW6. Further, PW4 and PW6eyewitnesses to the incident, have also stated that at the time of the accident, the accused was riding the motorcycle in high speed. Both of them have not stated as to whether the accused was riding the motorcycle in a rash and negligent manner and they also not stated the speed of the motorcycle at the time of the accident. Further, both of them have also admitted that they witnessed the incident in a distance of around 10 ft. from the spot of accident. After the accident only, they saw the injured/deceased. As rightly contended by the learned counsel for the respondent/accused, the accident in question was caused in the night hours at about 7:00 p.m. On perusal of spot sketch as per Ex.P8, there are no electric poles near and around the spot of accident. PWs.1, 4 and 6 have also not

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HC-KAR

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stated as to how they witnessed the incident in the night hours at about 7:00 p.m. In such circumstance, a doubt arises in the mind of this Court regarding testimony of PWs.1, 4 and 6. Though spot mahazar witnesses PW2 and PW3 have supported the case of the prosecution, that itself is not material circumstances to prove the charges leveled against the accused.

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11. This Court in Crl.RP No.1004/2021 held that mere driving the vehicle in high speed, itself cannot establish that he was driving the vehicle in a rash and negligent manner. This Court, in the aforesaid case, by relying on judgment of the Apex Court in the case of State of Karnataka Vs Satish² has held in paragraphs-17 and 18 as under:

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“ 17. The Hon’ble Apex Court in the case of State of Karnataka Vs. Satish reported in (1998) 8 SCC 493 has settled the position of law that mere driving of vehicle in high speed neither amounts to negligence nor rashness in itself and has held in para 4 of the said judgment as under;

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Merely because the truck was being driven at a "high speed" does not be speak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even

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2 (1998) 8 SCC 493

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approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”

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Effectively, at this juncture I find it imperative to touch upon the nuances of understanding the term ‘negligence’, negligence essentially is defined or rather understood in a rudimentary sense as a breach of duty. Meaning, an act of negligence must be coupled with willful omission of doing something which a prudent person would have done in similar circumstance. This breach of duty should lead to some kind of damage. Further, while ascertaining the degree of negligence, it is significant to ruminate on the ‘Principle of Foreseeability and Proximity’ as laid down by Lord Atkin in the landmark case of Donoghue v Stevenson reported in 1932 A.C 562. Additionally, let us take a moment to delve into comprehending and elucidate the conundrum that needs to be addressed: What amounts to rashness and negligence?

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HC-KAR

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Rashness innately implies to recklessness coupled with a state of conscious breach of duty to care where there exists a necessity of care i.e., negligence. Rashness and negligence are multi-faceted concepts which cannot be comprehended and interpreted in isolation, it significantly depends on facts and circumstances of each case. ”

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12. Applying the principles enumerated in the above judgment to the facts and circumstances of the present case and on perusal of evidence of PW1, 4 and 6, all these witnesses have categorically stated that the rider of the motorcycle i.e., accused was riding the vehicle in a high speed, except that, they have not stated that the rider was riding the motorcycle in a rash and negligent manner. Apart from that, these witnesses have admitted in their cross-examination that they witnessed the incident after the motorcycle fell on the road and it was in the night hours about 7:00 p.m. and also shop of PW6 was not situated near the spot of the accident. All these aspects creates a doubt in their version. Moreover, this appeal against order of acquittal and the Hon’ble Apex Court in catena of judgments held that in a case of acquittal, if the trial Court has taken a plausible view, the appellate Court shall not interfere in the said judgment. Applying the said principles by the Hon’ble Apex

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Court stated supra, I am of the considered view that the learned Magistrate has rightly appreciated the entire evidence on record in a right perspective and passed the impugned judgment, which does not called for interference at the hands of this Court. In that view of the matter, I answer point raised above in the ‘affirmative’ and proceed to pass the following:

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ORDER

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The appeal stands dismissed .

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SD/(RAJESH RAI K) JUDGE

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JTR CT:PA List No.: 1 Sl No.: 9

State of Karnataka, v. Praveen S/O Shivanand Gungi

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State of Karnataka, v. Praveen S/O Shivanand Gungi

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