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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO.      512               OF 2014 [Arising out of S.L.P. (Criminal) No. 3439/2012]     

Basappa … Appellant (s)   

Versus

State of Karnataka … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

Leave granted.    

2. Appellant is the accused in C.C. No. 707 of 2004 on the  

file  of  the  Judicial  Magistrate  First  Class  at  Hubli,  

Karnataka.  He  was charge-sheeted under  Sections  279  

and  304A  of  the  Indian  Penal  Code  (45  of  1860)  

(hereinafter  referred to as ‘IPC’)  and Sections 187 and  

196 of The Motor Vehicles Act, 1988 (hereinafter referred  

to as ‘MV Act’). The accident occurred on 11.02.2004 at  

02.30 P.M.  when the  appellant  was allegedly  driving a  

tractor with a trailer. The vehicle hit against a scooty and  

resultantly a two year old child travelling in the scooty fell  

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down. The tractor ran over the child and she succumbed  

to  the  injury.  PWs  1  to  11  were  examined  and  seven  

documents  were  marked  on  the  prosecution  side.  Two  

documents were marked on the side of the accused. The  

learned  Magistrate,  after  elaborately  discussing  the  

evidence, came to the following conclusion at paragraph-

22 of the Judgment dated 25.05.2005:

“22. Perused  the  evidence  of  PW-1  to  11  and  the  case file after perusal of the same, it creates doubt  whether this accused was the driver at the relevant  point of time or not, so also to say that the accident  was happened due to the rash and negligent act of  this accused, as there is no any cogent, impeachable  and  clinching  evidence  with  respect  to  the  ingredients  of  alleged  offences.  Further  in  view  of  these  types  of  discrepancies  of  the  prosecution  witnesses  case  is  not  beyond  doubt.  Had  the  prosecution  able  to  explain  clearly  the  above  said  doubtful  circumstances,  then  certainly  this  court  could  have  believed  the  evidence  of  the  material  witnesses  but  now  the  doubtful  evidence  and  circumstances  are  not  cleared.  Hence  I  am  not  accepting  the  stand  taken  by  the  learned  APP.  Therefore in view of the so many discrepancies in the  versions  deposed  before  the  court  and  one  given  before  the  police,  it  creates  doubt  whether  this  accused was involved in the commission of offences  or  not.  Therefore,  I  feel  accused  is  entitled  for  acquittal.”

(Emphasis supplied)

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3. We are informed that the accused was on bail during the  

trial  but  remained  in  custody for  five  months  and  five  

days during investigation.  

4. The State filed appeal under Section 378 of the Code of  

Criminal  Procedure,  1973  (hereinafter  referred  to  as  

‘Cr.PC’).  The  High  Court  re-appreciated  the  whole  

evidence and came to the conclusion that the appellant  

was liable to be convicted under Sections 279 and 304A  

of  IPC.  Further,  it  was  held  that  “the  prosecution  has  

failed to prove the offences under Section 187 and 197 of  

the MV Act”. Accordingly, the appeal was allowed and the  

appellant was sentenced to undergo simple imprisonment  

for a period of six months with fine of Rs.2,000/- under  

Section 304A and for three months with fine of Rs.500/-  

under  Section 279 of IPC.  A default  sentence was also  

given.  The  sentences  were  to  run  concurrently.  Thus  

aggrieved, the appellant is before this Court.  

5. Section 197 of the MV Act deals with unauthorized driving  

of a motor vehicle. Section 187 of the MV Act reads as  

follows:

“187.  Punishment  for  offences  relating  to  accident.-Whoever  fails  to   comply  with  the  provisions of clause (c) of sub-section (1) of section  

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132  or  of  section  133  or  section  134  shall  be  punishable with imprisonment for a term which may  extend  to  three  months,  or  with  fine  which  may  extend  to  five  hundred  rupees,  or  with  both  or,  if  having been previously convicted of an offence under  this section, he is again convicted of an offence under  this section, with imprisonment for a term which may  extend to six months, or with fine which may extend  to one thousand rupees, or with both.”

Section  132(1)(c)  of  the  MV  Act  was  omitted  w.e.f.  

14.11.1994.  Section 133 deals with duty of the driver, owner  

or conductor to furnish information on demand. There is no  

such case for the prosecution. Therefore, the alleged offence  

could only be non-compliance of Section 134, which reads as  

under:

“134.  Duty  of  driver  in  case  of  accident  and  injury to a person.- When any person is injured or  any property of a 3rd party is damaged, as a result of  an accident in which a motor vehicle is involved, the  driver of the vehicle or other person-in-charge of the  vehicle shall-

(a) unless  it  is  not  practicable  to  do  so  on  account of mob fury or any other  reason  beyond  his  control,  take  all  reasonable  steps to secure medical  attention for the  injured  person  by  conveying  him  to  the  nearest  medical  practitioner  or  hospital,  and it shall be the duty of every registered  medical practitioner or the doctor on duty  in the hospital immediately to attend to the  injured person and render medical  aid or  treatment  without  waiting  for  any  procedural  formalities,  unless  the  injured  person  or  his  guardian,  in  case  he  is  a  minor, desires otherwise;

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(b) give  on  demand  by  a  police  officer  any  information required by him, or, if no police  officer is present, report the circumstances  of  the  occurrence,  including  the  circumstances,  if  any,  for  not  taking  reasonable  steps  to  secure  the  medical  attention as required under clause (a), at  the  nearest  police  station  as  soon  as  possible and in any case within twenty-four  hours of the occurrence.

(c) give the following information in writing to  the insurer, who has issued the certificates  of insurance, about the occurrence of the  accident, namely:-

(i) insurance policy number and period of  its validity;

(ii) date, time and place of accident; (iii) particulars  of  the  persons injured  or  

killed in  the accident; (iv) name of the driver and the particulars  

of his driving licence.

Explanation.-For  the  purposes  of  this  section,  the  expression  “driver”  includes  the  owner of the vehicle.”  

(Emphasis supplied)

6. In  the instant  case,  the main defence of the appellant  

before the trial court was that there was no evidence to  

hold that he was the driver of the tractor at the relevant  

time.  According  to  the  prosecution,  there  is  no  direct  

evidence. Even the injured witness PW-5, who was driving  

the scooty, has not identified the driver. The High Court,  

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on the only evidence that the appellant was scolded by  

people in the hospital, has come to the conclusion that  

the appellant was the driver of the tractor. There is also  

no  direct  evidence  with  regard  to  the  ingredients  of  

Sections  279  and  304A of  IPC.  The High  Court,  on re-

appreciation of the evidence, has taken another view so  

as to convict the accused.

7. There is no finding in the impugned Judgment by the High  

Court that  the conclusions drawn by the trial  court are  

perverse  so  as  to  mean  that  the  same  is  against  the  

weight  of  evidence.  The  important  issue,  thus,  for  our  

consideration is - whether the High Court was justified in  

re-appreciating the evidence and reversing the order of  

acquittal merely because of a possibility of another view.   

8. The High Court in an appeal under Section 378 of Cr.PC is  

entitled  to  reappraise  the  evidence  and  conclusions  

drawn by the trial court, but the same is permissible only  

if the judgment of the trial court is perverse, as held by  

this Court in Gamini Bala Koteswara Rao and Others  

v. State of Andhra Pradesh through Secretary1. To  

quote:

1 (2009) 10 SCC 636 6

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“14. We have considered the arguments advanced  and heard the matter  at  great  length.  It  is  true,  as  contended by Mr Rao, that interference in an appeal  against an acquittal recorded by the trial court should  be  rare  and  in  exceptional  circumstances.  It  is,  however, well settled by now that it is open to the High  Court  to  reappraise  the  evidence  and  conclusions  drawn by the trial court but only in a case when the  judgment of the trial  court is stated to be perverse.  The word “perverse” in terms as understood in law has  been  defined  to  mean  “against  the  weight  of  evidence”. We have to see accordingly as to whether  the judgment of the trial court which has been found  perverse by the High Court was in fact so.”

(Emphasis supplied)

9. It  is  also  not  the  case  of  the  prosecution  that  the  

judgment of the trial court is based on no material or that  

it suffered from any legal infirmity in the sense that there  

was non-consideration or misappreciation of the evidence  

on record.  Only  in  such  circumstances,  reversal  of  the  

acquittal  by  the  High  Court  would  be  justified.  In  K.  

Prakashan v.  P.K.  Surenderan2,  it  has  also  been  

affirmed by this Court that the appellate court should not  

reverse  the  acquittal  merely  because  another  view  is  

possible on the evidence. In  T. Subramanian v.  State  

of Tamil Nadu3, it has further been held by this Court  

that  if  two  views  are  reasonably  possible  on  the  very  

2 (2008) 1 SCC 258 3 (2006) 1 SCC 401

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same evidence, it cannot be said that the prosecution has  

proved the case beyond reasonable doubt.

10. In  Bhim  Singh v.  State  of  Haryana4,  it  has  been  

clarified that interference by the appellate court against  

an order of acquittal would be justified only if the view  

taken by the trial court is one which no reasonable person  

would in the given circumstances, take.  

11. In  Kallu alias Masih and others v.  State of Madhya  

Pradesh5, it has been held by this Court that if the view  

taken by the trial court is a plausible view, the High Court  

will  not  be  justified  in  reversing  it  merely  because  a  

different view is possible. To quote:

“8. While  deciding  an  appeal  against  acquittal,  the  power of the appellate court is no less than the power  exercised while hearing appeals against conviction. In  both types of appeals, the power exists to review the  entire evidence. However, one significant difference is  that an order of acquittal will not be interfered with, by  an  appellate  court,  where  the  judgment  of  the  trial  court  is  based  on  evidence  and  the  view  taken  is  reasonable  and  plausible.  It  will  not  reverse  the  decision of the trial court merely because a different  view is possible. The appellate court will also bear in  mind  that  there  is  a  presumption  of  innocence  in  favour of the accused and the accused is entitled to  get the benefit of any doubt. Further, if it decides to  interfere, it should assign reasons for differing with the  decision of the trial court.”

(Emphasis supplied) 4 (2002) 10 SCC 461 5 (2006) 10 SCC 313

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12. In  Ramesh Babulal Doshi v.  State of Gujarat6,  this  

Court  has  taken  the  view  that  while  considering  the  

appeal  against  acquittal,  the  appellate  court  is  first  

required to seek an answer to the question whether the  

findings of the trial court are palpably wrong, manifestly  

erroneous or demonstrably unsustainable and if the court  

answers  the  above  question  in  negative,  the  acquittal  

cannot be disturbed. To quote:

“7. … the entire approach of the trial court in  dealing with the evidence was patently illegal or the  conclusions arrived at  by it  were wholly untenable.  While  sitting  in  judgment  over  an  acquittal  the  appellate court is first required to seek an answer to  the question whether the findings of the trial  court  are  palpably  wrong,  manifestly  erroneous  or  demonstrably  unsustainable.  If  the  appellate  court  answers the above question in the negative the order  of acquittal is not to be disturbed. Conversely, if the  appellate  court  holds,  for  reasons  to  be  recorded,  that the order of acquittal cannot at all be sustained  in view of any of the above infirmities it can then —  and then only — reappraise the evidence to arrive at  its own      conclusions. …”

(Emphasis supplied)

13. In  Ganpat v.  State  of  Haryana  and  others7,  at  

paragraph-15,  some of the above principles have been  

restated. To quote:

6 (1996) 9 SCC 225 7 (2010) 12 SCC 59

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“15. The following principles have to be kept  in  mind  by  the  appellate  court  while  dealing  with  appeals, particularly, against an order of acquittal:

(i)  There  is  no  limitation  on  the  part  of  the  appellate court to review the evidence upon which  the order of acquittal is founded and to come to its  own conclusion.

(ii)  The appellate  court  can also review the trial  court’s conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the  State, it is the duty of the appellate court to marshal  the entire evidence on record and by giving cogent  and adequate reasons may set aside the judgment of  acquittal.

(iv)  An order of acquittal is to be interfered with  only  when  there  are  “compelling  and  substantial  reasons”  for  doing  so.  If  the  order  is  “clearly  unreasonable”,  it  is  a  compelling  reason  for  interference.

(v) When the trial court has ignored the evidence  or  misread  the  material  evidence  or  has  ignored  material  documents like dying declaration/report of  ballistic  experts,  etc.  the  appellate  court  is  competent to reverse the decision of the trial court  depending on the materials placed. …”

14. The exercise of power under Section 378 of Cr.PC by the  

court  is  to  prevent  failure  of  justice  or  miscarriage  of  

justice.   There  is  miscarriage  of  justice  if  an  innocent  

person is convicted; but there is failure of justice if the  

guilty is let scot-free.  As cautioned by this Court in State  

of Punjab v. Karnail Singh8:  

8 (2003) 11 SCC 271 1

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“6. There is no embargo on the appellate court  reviewing  the  evidence  upon  which  an  order  of  acquittal  is based. Generally, the order of acquittal  shall not be interfered with because the presumption  of innocence of the accused is further strengthened  by acquittal. The golden thread which runs through  the web of administration of justice in criminal cases  is  that  if  two  views  are  possible  on  the  evidence  adduced in the case, one pointing to the guilt of the  accused  and  the  other  to  his  innocence,  the  view  which  is  favourable  to  the  accused  should  be  adopted. The paramount consideration of the court is  to ensure that miscarriage of justice is prevented. A  miscarriage of justice which may arise from acquittal  of the guilty is no less than from the conviction of an  innocent.  In  a  case  where  admissible  evidence  is  ignored, a duty is cast upon the appellate court to  reappreciate the evidence even where the accused  has been acquitted, for the purpose of ascertaining  as  to  whether  any  of  the  accused  committed  any  offence or not. …”

(Emphasis supplied)

15. In this context, yet another caution struck by this Court in  

Chandrappa  and  others v.  State  of  Karnataka9  

would also be relevant.  

“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.

9 (2007) 4 SCC 415 1

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(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.”

(Emphasis supplied)

16. The High Court in the impugned Judgment does not seem  

to have taken a view that the judgment of the trial court  

acquitting the accused is based on no material  or it  is  

perverse  or  the  view  by  the  trial  court  is  wholly  

unreasonable or it is not a plausible view or there is non-

consideration  of  any  evidence  or  there  is  palpable  

misreading of evidence, etc.  It  is not the stand of the  

High  Court  that  there  had  been  some  miscarriage  of  

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justice  in  the  way  the  trial  court  has  appreciated  the  

evidence. On the contrary, it is the only stand of the High  

Court that on the available evidence, another view is also  

reasonably  possible  in  the  sense  that  the  appellant-

accused  could  have  been  convicted.   In  such  

circumstances,  the  High  Court  was  not  justified  in  

reversing  the  acquittal.   The  High  Court  itself  having  

acquitted the appellant under Section 187 of the MV Act  

on the ground of no evidence, whether it was possible, to  

hold him guilty under Sections 279 and 304A of IPC, is  

itself  a  seriously  doubtful  question.  However,  it  is  not  

necessary to pronounce on that issue since the appellant  

is liable to succeed otherwise.

17. The  appeal  is  allowed.  The  impugned  Judgment  is  set  

aside and that of the trial court is restored.                      

                                                                                                                ………..…………………….….. …………J.

         (SUDHANSU JYOTI  MUKHOPADHAYA)

                                                   ………………….. …………………………J.

            (KURIAN JOSEPH) New Delhi;

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February 27, 2014.  

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