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CRL.A No.528 of 2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14

TH

DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO.528 OF 2013

BETWEEN:

SRI K. KESHAVA

S/O DAMODARA SAPALYA

AGED ABOUT 32 YEARS

R/AT KALLEGE SHIVANAGARA,

KABAKA VILLAGE

PUTTUR TALUK, DK-574243

...APPELLANT

(BY SRI. SABAPPA B. MALEGUL, ADV. -

AMICUS CURIAE VIDE ORDER DATED: 23.10.2025.)

AND

STATE OF KARNATAKA

REPRESENTED BY

STATE PUBLIC PROSECTOR

HIGH COURT BUILDINGS,

BANGALORE-560001.

…RESPONDENT

(BY MS. ASMA KAUSER, ADDL SPP.)

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO

SET ASIDE THE ORDER DATED 23.02.2013 PASSED BY THE II

ADDL. DIST. & S.J., D.K., MANGALORE IN CRL.A.NO.161 /2009

- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE

P/U/S 279,337,338 AND 304(A) OF IPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 10.11.2025 AND COMING ON FOR

"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,

DELIVERED THE FOLLOWING:

R

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CRL.A No.528 of 2013

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

CAV JUDGMENT

1. This appeal by the appellant is against the judgment dated

23

rd

February 2013 passed in Criminal Appeal No.161 of 2009

by the II Additional District & Sessions Judge, Dak shina

Kannada, Mangalore (for short hereinafter referred to as the

"first appellate court"), whereby, the judgment of acquittal

dated 07

th

March 2009 passed in CC No.967 of 2006 by Civil

Judge (Sr. Dn.) & JMFC Bantwal (for short hereinafter referred

to as the "trial Court”), came to be set aside.

2. For the sake of convenience, the parties herein are

referred to as per their ranks before the trial court.

3. Brief facts leading to this appeal are that the Vitla Police

submitted the charge-sheet against the accused for the offence

punishable under Sections 279, 337, 338 and 304-A o f Indian

Penal Code. It is alleged by the prosecution that on 16

th

June

2006, Anil Pinto along with his relatives was proceeding in a car

bearing registration No.KA-21/M.2190 from Bondel to

Uppinangadi. The car was driven by William Lobo wi th Robert

Pardo and Gerald were also travelling in it. When the car

reached near Surikumerupet in Mani Village of Bantwal Taluk, a

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CRL.A No.528 of 2013

bus named “Nandani,” bearing registration No. KA-19/AD-9099,

driven at high speed and in a rash and negligent ma nner,

attempted to overtake a lorry. While doing so, the bus came

onto the wrong side of the road and collided with the car. As a

result of the accident, the occupants of the car su stained

injuries. Robert sustained grievous head injury and succumbed

to the injuries at the spot. At the time of the accident, one

Keshava was driving the bus. Immediately thereafter , injured

were shifted to Mangala Nursing Home, Mangalore, in an

ambulance. After investigation, the Investigating O fficer

submitted a charge-sheet for the commission of the alleged

offences.

4. After filing charge-sheet, cognizance was taken and

summons were issued to the accused. In response to

summons, accused appeared before the trial court an d was

enlarged bail. Substance of plea was recorded; acc used

pleaded not guilty and claimed to be tried. To prove its case,

prosecution has examined nine witnesses as PWs1 to 9 and got

15 documents marked as Exhibits P1 to P15. On clos ure of

prosecution side evidence, statement of the accused under

section 313 of Code of Criminal Procedure was recor ded.

Accused has totally denied evidence of prosecution witnesses,

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CRL.A No.528 of 2013

but has not chosen to lead any defence evidence on his behalf.

Having heard on both sides, the trial court acquitt ed the

accused. Being aggrieved by the judgment of acquit tal, State

has preferred appeal before the first appellate court. The first

appellate court allowed the appeal by setting aside the

judgment of acquittal passed by the trial court. Accused was

convicted for the offence punishable under Sections 279, 337,

338 and 304A of Indian Penal Code and was sentenced to

undergo simple imprisonment for a period of 1 month and to

pay fine of Rs.500/- for the offence punishable under Section

279 of Indian Penal Code, and further sentenced to undergo

simple imprisonment for a period of one month and to pay fine

of Rs.500/- for offence punishable under Section 337 of Indian

Penal Code. The accused was also sentenced to unde rgo

simple imprisonment for a period of six months and to pay fine

of Rs.1,000/- for offence punishable under Section 338 of

Indian Penal Code and was further sentenced to undergo simple

imprisonment for period of one year and to pay fine of

Rs.2,000/- for the offence punishable under Section 304A of

Indian Penal Code. Being aggrieved by the judgment of

conviction and the order on sentence passed by the first

appellate court, the Appellant-accused has preferre d this

appeal.

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CRL.A No.528 of 2013

5. The appeal was filed by a private advocate who was

subsequently elevated as the Judge of this court, hence court

notice was issued to the appellant. Despite service of notice,

the appellant did not appear before the Court. Ther efore, Sri

Sabappa B. Malegul, learned Advocate, was appointed as

Amicus Curiae.

6. Sri Sabappa P. Malegul, learned Amicus Curiae,

vehemently submitted two folded argument: (1) on me rits and

another on jurisdiction. Primarily, on the judgmen t of

conviction and sentence passed by the first appella te Court,

learned Amicus Curiae argued that the same is illeg al,

unreasonable and arbitrary. He would further submit that the

first appellate Court failed to appreciate that there is no direct

or circumstantial evidence connecting the appellant with the

alleged offence. None of the prosecution witnesses have stated

that the accused was driving the bus at the time of the accident

and this crucial aspect has been ignored by the first appellate

Court. It was further submitted that the first appellate Court

erred in relying on the 313 statement of the appellant to hold

that the appellant had admitted being the driver of the bus.

Mere occurrence of the accident, resulting in one d eath and

grievous injuries to two persons coupled with the complainant’s

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CRL.A No.528 of 2013

assertion that the appellant was the driver, cannot by itself,

form the basis for conviction. The learned Amicus Curiae also

contended that PW1 was in the rear seat of the car, and could

not have observed any rash or negligent act. PWs 1 to 4 are

interested witnesses and have admitted that they be came

aware of the accident only after the impact. This m aterial

aspect has not been considered by the first appellate Court.

7.

It was further argued that PW2, William Lobo, the driver

of the car and a crucial witness, however he was not tendered

for cross-examination. Therefore, observing the same, the trial

Court did not rely upon his evidence; however, this aspect was

not taken into consideration by the first appellate Court. It was

submitted that PW3-Gerald, though examined as an ey e-

witness, has not identified the accused as the driv er of the

offending vehicle, and his evidence does not advanc e the

prosecution case.

8. It was further submitted that, PW4-Dennis Egnatitio us

Lobo claimed to be an eye-witness to the incident, has deposed

that by the time he reached the scene of offence, a bout

hundred people had already gathered and hence, PW4 cannot

be considered as an eye-witness. PW1 is the complainant, and

PWs2 and 3 are injured witnesses. PW2 was the drive r of the

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CRL.A No.528 of 2013

car. PWs1 to 3 were travelling in the car that met with the

accident, therefore they are interested witnesses. PW2 was not

tendered for cross-examination. Even though the app lication

filed for recalling PW2 for cross-examination was allowed by the

Court, PW2 did not appear for cross-examination. PW 4, the

alleged eye-witness, has not supported the prosecut ion case

and has deposed that PW4 reached the spot only afte r the

accident. Hence, the trial court has rightly acquitted the

appellant/accused.

9. Learned Amicus Curiae further submitted that the fi rst

appellate court lacked jurisdiction to entertain the appeal under

Sections 378, 382 and 386 of Code of Criminal Proce dure in

view of clause (b) of sub-section (1) of the section 378. As per

the said clause, State Government may, in any case, direct the

Public Prosecutor to present an appeal to the High Court from

an original or appellate order of acquittal passed by any court

other than a High Court not being an order under clause (a) of

the said Section or an order of acquittal passed by the court of

Sessions, in revision. If the judgment of acquittal is passed in

bailable offences, the District and Sessions Judge has no right

to entertain the appeal. The judgment of acquittal, in bailable

offences, does not come under clause (a) of sub-section (1) of

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CRL.A No.528 of 2013

section 378 of Code of Criminal Procedure. Hence, the

judgment passed by the first appellate Court become s nullity.

On all these grounds, it is sought to allow the appeal.

10.

As against this, the learned Additional State Publi c

Prosecutor Ms. Asma Kouser, appearing for the respo ndent-

State, argued in length contending that the judgmen t of the

first appellate court is on merits, just and proper and any

interference is unnecessary. Hence sought for dismissal of the

appeal.

11. Having heard the arguments on both sides and on per usal

of materials placed before the court, the following points would

arise for my consideration:

1. Whether appeal lies to the Court of sessions

against the judgment of Acquittal by the trial

Court in respect of offence punishable under

Sections 279, 337, 338 and 304A of Indian Penal

Code?

2. Whether the first appellate Court has committed

an error in reversing the judgment of acquittal

passed by the trial Court?

3. What order?

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Regarding Point No.1:

12. I have examined the materials placed before the court and

meticulously perused the judgments of trial Court as well as the

first appellate court. Before appreciating the facts of the case,

it is relevant to mention as to the amended provision of Section

378 of Code of Criminal Procedure, 1973, as substit uted by

Code of Criminal Procedure (Amendment) Act 2005 (25 of

2005) dated 23

rd

June, 2005 with effect from 23

rd

June, 2006

vide SO 923(E) dated 21

st

June, 2006. In view of amendment,

the amended section 378 of Code of Criminal Procedu re, 1973,

reads as under:

"378 Appeal in case of acquittal.-

(1) Save as otherwise provided in sub-section (2),

and subject to the provisions of sub-sections (3) and (5),-

(a) the District Magistrate may, in any case,

direct the Public Prosecutor to present an

appeal to the Court of Session from an

order of acquittal passed by the Magistrate

in respect of cognizable and non-bailable

offence;

(b) the State Government may, in any case,

direct the Public Prosecutor to present an

appeal to the High Court from an original or

appellate order of an acquittal passed by

any Court other than a High Court not

being an order under clause (a) or an order

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CRL.A No.528 of 2013

of acquittal passed by the Court of Session

in revision.

(ii) in sub-section (2), for the portion beginning wit h

words "the Central Government may" and ending with the

words "the order of acquittal", the following shall be

substituted, namely:-

"The Central Government, may subject to the

provisions of sub-section (3), also direct the Public

Prosecutor to present an appeal-

(a) to the Court of Session, from an order of

acquittal passed by a Magistrate in respect

of a cognizable and non-bailable offence;

(b) To the High Court from an original or

appellate order of an acquittal passed by

any Court other than a High Court (not

being an order under clause (a) or an order

of acquittal passed by the Court of Session

in revision";

(iii) in sub-section (3), for the words "No appeal", the

words "No appeal to the High Court" shall be substituted. "

13. In view of amendment to Section 378 of Code of Crim inal

Procedure, if an order of acquittal is passed by the Magistrate

in respect of cognizable and non-bailable offence, appeal lies to

the Court of Sessions. In all other cases, against the judgment

of acquittal passed by the Magistrate, the appeal lies to the

High Court. In view of the aforesaid provisions, t he State

ought to have preferred appeal before the High Cour t against

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CRL.A No.528 of 2013

the order passed by the trial court, as the alleged offences are

bailable in nature.

14.

The learned Additional State Public Prosecutor has failed to

demonstrate how an appeal against acquittal in resp ect of

bailable offences under Sections 279, 337, 338 and 304-A IPC

was maintainable before the Court of Sessions, in v iew of

clause (b) of sub-section (1) of Section 378 Code of Criminal

Procedure, such an appeal does not lie. 15. It is well settled that an order passed without

jurisdiction is a nullity. Jurisdiction encompasses the authority

of a Court over the parties, subject matter, and is sues

adjudicated. In view of clause (b) Sub-section (1) of Section

378 of Code of Criminal Procedure, an appeal agains t a

judgment of acquittal passed by a Magistrate in a b ailable

offence, does not lie before the Court of Sessions.

16.

At this juncture, it is necessary to mention that Hon'ble

Supreme Court, in a catena of decisions, has held t hat a

judgment pronounced without jurisdiction becomes nu llity, in

other words, void ab-intio. The expression "jurisdiction" may

be defined to be the power of a Court to hear and determine a

cause to adjudicate and exercise any judicial power in relation

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CRL.A No.528 of 2013

to it. The elements that usually make up competenc y of the

jurisdiction are:

(1) over persons litigating;

(2) over the subject matter; and

(3) over the questions which the court decides.

17. The above principle has been reiterated by the Full Bench

of Andhra Pradesh High Court in the case of THE PUB LIC

PROSECUTOR, A.P. v. DEVIREDDY NAGI REDDY reported i n AIR

1962 AP 479. In that view of the matter, the court of Sessions

ought not to have entertained the appeal. As per charge-sheet

averments, the incident happened in 2006, the acqui ttal

judgment by the trial court was passed in the year 2009, the

State preferred the appeal before wrong forum i.e. sessions

court against the acquittal judgment. The Sessions Court order

is patently without jurisdiction and the continuati on of

proceedings would amount to abuse of process of court, as also,

the fundamental right of the accused which is embod ied in

Article 21 of the Constitution of India. State being a parens

patriae (meaning- the authority regarded as the legal protector

of the citizens), ought to have acted in a diligent manner.

Jurisdiction cannot be assumed indirectly and even inherent

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powers can be exercised to correct jurisdictional e xcess, to

prevent miscarriage of justice.

18. Hence, I answer Point No.1 in the negative.

Regarding Point No.2:

19. Before appreciation of evidence on record, it is necessary

to mention as to the recent judgments of the Apex Court in the

case of CONSTABLE 907 SURENDRA SINGH AND ANOTHER v.

STATE OF UTTARAKHAND reported in (2025)5 SCC 433; B ABU

SAHEBGOUDA RUDRAGOUDAR AND OTHERS v. STATE OF

KARNATAKA reported in (2024)8 SCC 149; CHANDRAPPA v .

STATE OF KARNATAKA reported in (2007)4 SCC 415; and H.D.

SUNDARA v. STATE OF KARNATAKA reported in (2023)9 SCC

581.

20. In the case of H D SUNDARA (supra), the Apex Court has

summarized the principles governing exercise of app ellate

jurisdiction while dealing with an appeal against judgment of

acquittal under section 378 of Code of Criminal Procedure. The

same are as under:

“8. …8.1. The acquittal of the accused further

strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal

against acquittal, is entitled to re-appreciate the oral and

documentary evidence;

8.3. The appellate court, while deciding an appeal

against acquittal, after re-appreciating the evidence, is

required to consider whether the view taken by the trial

court is a possible view which could have been taken on

the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate

court cannot overturn the order of acquittal on the ground

that another view was also possible; and

8.5. The appellate court can interfere with the order

of acquittal only if it comes to a finding that the only

conclusion which can be recorded on the basis of th e

evidence on record was that the guilt of the accused was

proved beyond a reasonable doubt and no other

conclusion was possible.”

In the case of BABU SAHEBGOUDA RUDRAGOUDAR AND

OTHERS (supra) it is observed that it is beyond the pale of

doubt that the scope of interference by an appellate court for

reversing the judgment of acquittal recorded by the trial court

in favour of the accused has to be exercised within the four

corners of the following principles. The same are:

1. That the judgment of acquittal suffers from patent

perversity;

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CRL.A No.528 of 2013

2. That the same is based on a misreading/omission

to consider material evidence on record; and

3. That no two reasonable views are possible and

only the view consistent with the guilt of the accused is

possible from the evidence available on record.”

21. It has to be borne in mind that the scope of interference by

the first appellate court for reversing the judgment of acquittal

recorded by the trial court in favour of the accused, has to be

exercised within the four corners of the aforestated principles.

22. As regards burden of proof in offence under Section 304-A

of Indian Penal Code is concerned, the Hon'ble Supreme Court,

in the case of

NANJUNDAPPA AND ANOTHER v. THE

STATE OF KARNATAKA reported in 2022 LIVELAW (5) 489,

has held that the doctrine of Res Ipsa Loquitur Stricto Sensu

would not apply to criminal cases.

23. It is alleged by the prosecution that, Vitla Police submitted

charge-sheet against the accused for the offence pu nishable

under sections 279, 337, 338, 304-A of Indian Penal Code. It

is alleged by the prosecution that on 16

th

June 2006, Anil Pinto,

along with his relatives, was travelling in a car b earing

registration No. KA-21/M-2190 from Bondel to Uppina ngadi.

The car was being driven by William Lobo, and Rober t Pardo

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CRL.A No.528 of 2013

and Gerald were inmates. When the car reached near

Surikunerupet of Bantwal Taluk, a bus bearing registration No.

KA-19/AD-9099, driven at a high speed and in a rash and

negligent manner, attempted to overtake a lorry. In the

process, the bus came to the wrong side of the road and

dashed against the car. As a result of the acciden t, the

inmates of the car sustained injuries, and Robert, who suffered

a grievous head injury, succumbed to the injuries at the spot.

24.

To prove the guilt of the accused, the prosecution

examined nine witnesses as PWs1 to 9 and marked 15

documents as Exhibits P1 to P15. As per the charge sheet,

PW2 is the complainant; PW3 is an injured witness; PW4 is a

witness; PW5 is the GPA holder of the RC owner of the bus, but

has not been examined by the prosecution; PW6 is th e Police

Constable who submitted the FIR to the court; PW7 i s the

owner of the car; and PWs8 and 9 are the investigating officers.

25.

PWs1 to 3 deposed in their examination-in-chief and gave

a brief account of the manner of the accident. In t he cross-

examination, PW1 stated that he could not adduce an ything

about the speed of the lorry and was not tendered f or cross-

examination. The evidence of PW3 is not helping th e

prosecution case, as PW3 neither identified the driver of the

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CRL.A No.528 of 2013

vehicle nor could narrate the manner of accident. PW4, in his

cross-examination, stated that he went to the spot after

hearing the sound of collision and therefore, is not an eye-

witness to the incident. PWs3 and 4 have not identi fied the

accused. PW1 has also stated that he cannot say any thing

regarding the speed of the vehicle. The trial court has rightly

observed that PWs1 to 3 are interested witnesses. That apart,

the witnesses have not deposed anything regarding n egligent

act on the part of the accused. Accordingly, the trial court has

properly appreciated the evidence on record and in proper

perspective. However, the first appellate Court failed to assign

cogent reasons for reversing the judgment of acquittal and has

mentioned that there is no reason to disbelieve the version of

the witnesses, which is not correct and proper in view of the

above said decisions of the Hon'ble Supreme Court. On re-

appreciation of the evidence and the records, I do not find any

legal or factual error in the impugned judgment of acquittal

passed by the trial Court. The first appellate court has not

assigned proper reasons to reverse the judgment of acquittal.

Considering the facts and circumstances of the case and

keeping in mind aforesaid judgments of Hon'ble Apex Court, I

answer Point No.2 in the affirmative.

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Regarding point no.3:

26. For the reasons aforetasted and discussions, I proceed to

pass the following:

O R D E R

i. Appeal is allowed;

ii. The judgment of conviction and order on

sentence dated 23

rd

February, 2013 passed in

Criminal Appeal No.161 of 2009 by the II

Additional District and Sessions Judge, Dakshina

Kannada, Mangalore, is set aside;

iii. The judgment of acquittal dated 7

th

March, 2009

in CC No.967 of 2006 passed by the Civil Judge

(Sr.Dn.) and JMFC Bantwal, Dakshina Kannada,

is confirmed;

iv. Appellant/Accused is acquitted of the offence

punishable under Sections 278, 337, 338 and

304A of Indian Penal Code;

v. Concerned Court is directed to refund the fine

amount, if any deposited by the appellant;

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CRL.A No.528 of 2013

vi. Registry to send a copy of this judgment along

with the trial Court records to the concerned

Court;

vii. Registry is directed to pay an amount of

Rs.10,000/- to Sri Sabappa B, Malegul, Amicus

Curiae.

Sd/-

(G BASAVARAJA)

JUDGE

lnn