BASAPPAversusSTATE OF KARNATAKA

                      [2014] 3 S.C.R. 391


                            BASAPPA                                 A
                                v.
                    STATE OF KARNATAKA

               (Criminal Appeal No. 512 of 2014)

                                                                    B
                      FEBRUARY 27, 2014

   [SUDHANSU JYOTI MUKHOPADHAYA AND KURIAN
                  JOSEPH, JJ.]
      PENAL CODE, 1860: ss.279, 304A - Rash and
 negligent driving resulting in death of 2 year old child -         C
  Magistrate acquitted the appellant holding that there was no
 impeachable and clinching evidence to show the appellant
  was the driver at the relevant point of time and that the
 accident happened due to the rash and negligent act on his
 part - On State's appeal uls.378, Cr.P.C., High Court re-          D
 appreciated the whole evidence and held that the appellant
  was liable to be convicted u/ss.279 and 304A - On appeal,
 held: There was no direct evidence with regard to the
 ingredients of ss. 279 and 304A - High Court, on the only
 evidence that the appellant was scolded by people in the           E
 hospital came to conclusion that the appellant was the driver
 of the tractor -High CQL/rt, on re-appreciation of the evidence
 took another view so as to convict the appellant - There was
 no finding in the impugned Judgment by the High Court that
 the conclusions drawn by trial court were perverse so as to        F
 mean that the same was against the weight of evidence - Thus,
 in such circumstances, the High Court was not justified in
 reversing the acquittal.

       CODE OF CRIMINAL PROCEDURE, 1973: s.378 -
  Acquittal by trial court - Scope of interference by High Court    G
  - Held: High Court in an appeal u/s.378 is entitled to
: reappraise the evidence and conclusions drawn by trial court,
  but the same is permissible only if the judgment of trial court
  is perverse - The exercise of power uls.378 by the court is to
                                391                                 H
    392      SUPREME COURT REPORTS                [2014) 3 S.C.R.

A prevent failure of justice or miscarriage of justice - In the
  instant case, High Court did not take view that the judgment
  of trial court acquitting the accused was based on no material
  or it was perverse or fhe view by trial court was wholly
  unreasonable or it was not a plausible view or there was non-
B consideration of any evidence or there was palpable
    misreading of evidence, etc. - On the contrary, High Court held
    that on the available evidence, another view was also
    reasonably possible in the sense that the appellant-accused
    could have been convicted - In such circumstances, the High
c   Court was not justified in reversing the acquittal.
      The prosecution case was that an accident occurred
  while the appellant was driving a tractor resulting in death
  of 2 year old child. The appellant was charge sheeted
  under Sections 279 and 304A, IPC and Sections 187 and
D 196 of the Motor Vehicles Act, 1988. The Magistrate
  acquitted the appellant holding that there was no any
  cogent, impeachable and clinching evidence to show the
  appellant was the driver at the relevant point of time and
  the accident happened due to the rash and negligent act
E on his part. On State's appeal under Section 378, Cr.P.C.,
  the High Court re-appreciated the whole evidence and
  held that the appellant was liable to be convicted under
  Sections 279 and 304A, IPC. The High Court further held
  that the prosecution has failed to prove the offences
F under Section 187 and 197 of the MV Act. The instant
  appeal was filed challenging the order of the High Court.
          Allowing the appeal, the Court
       HELD: 1. In the instant case, the main defence of the
G 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. Even the injured witness PW-5, who was
  driving the scooty, did not identify the driver. The High
  Court, on the only evidence that the appellant was
H scolded by people in the hospital came to the conclusion
                 1:




       BASAPPA v. STATE OF KARNATAKA                   393


that the appellant was the driver of the tractor. There was A
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 took another view so as to
convict the accused. There was no finding in the
impugned judgment by the High Court that the B
conclusions drawn by the trial court were perverse so as
to mean that the same was against the weight of
evidence. [paras 6, 7] [398-F-H; 399-A]

     2.1, The High Court in an appeal under Section 378
of Cr.PC is entitled to re-appraise the evidence and C
conclusions drawn by the trial court, but the same is
permissible only if the judgment of the trial court is
perverse. It was not the case of the prosecution that the
judgment of the trial court was based on no material or
that it suffered from any legal infirmity in the sense that D
there was non-consideration or mis-appreciation of the
evidence on record. Only in such circumstances, reversal
of the acquittal by the High Court would be justified. [para
8, 9] [399-C and G]
                                                             E
     Gamini Bala Koteswara Rao and Ors. v. State of Andhra
Pradesh through Secretary (2009) 10 SCC 636: 2009 (14)
SCR 1; K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258:
2007 (10) SCR 1010; T. Subramanian v. State of Tamil Nadu
(2006) 1 SCC 401: 2006 (1) SCR 180; Shim Singh v. State F
of Haryana (2002) 10 SCC 461; Kallu alias Masih and Ors.
v. State of Madhya Pradesh (2006) 10 SCC 313: 2006 (1)
SCR 201; Ramesh Babula/ Doshi v. State of Gujarat (1996)
9 SCC 225: 1996 (2) Suppl. SCR 265 ; Ganpat v. State of
Haryana and Ors. (2010) 12 SCC 59: 2010 (12) SCR 400 - G
relied on.

    2.2. The exercise of power u_nder 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 H
    394      SUPREME COURT REPORTS              [2014] 3 S.C.R


A  if the guilty is let scot-free, The High Court in the
   impugned judgment did not take a view that the
  judgment of the trial court acquitting the accused was
   based on no material or it was perverse or the view by
  the trial court was wholly unreasonable or it was not a
B plausible view or there was non-consideration of any
  evidence or there was palpable misreading of evidence,
  etc. It was not the stand of the High Court that there had
  been some miscarriage of justice in the way the trial court
  has appreciated the evidence. On the contrary, it was the
c only stand of the High Court that on the available
  evidence, another view was 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. [Para 14, 16] [402-F;
D 404-F-H; 405-A]

        State of Punjab v. Kamai/ Singh (2003) 11 SCC 271:
    2003 (2) Suppl. SCR 593; Chandrappa and Ors. v. State of
    Karnataka (2007) 4 SCC 415: 2007 (2) SCR 630 - relied on.

E                       Case Law Reference:
          2009 (14) SCR 1           relied on       Para 9
          2007 (10) SCR 1010        relied on       Para 9
          2006 (1) SCR 180          relied on       Para 9
F         (2002) 10 sec 461         relied on       Para 10
          2006 (1) SCR 201          relied on       Para 10
          1996 (2) Suppl. SCR 265   relied on       Para 12
          2010 (12) SCR 400         relied on       Para 13
G
          2003 (2) Suppl. SCR 593   relied on       Para 14
          2007 (2) SCR 630          relied on       Para 15
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
H No. 512 of 2014.
         BASAPPA v. STATE OF KARNATAKA                        395


    From the Judgment & Order dated 15.11.2010 of the High           A
Court of Karnataka Circutt Bench at Dharwad in Criminal
Appe~I No. 2139 of 2005.

    Anil V. Katarki, E.R. Sumathy, Anil Nishant for the
Appellant.
                                                                     B
     V.N. Raghupathy, Kusum, R.S. Rathi for the Respondent.

     The Judgment of the Court was delivered by

     KURIAN, J. 1. Leave granted.
                                                                     c
     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        D
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 down. The tractor ran over the child   E
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              F
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.     G
    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
                                                                     H
    396      SUPREME COURT REPORTS                 [2014] 3 S.C R


A        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
B        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
C        acquittal."

                                              (Emphasis supplied)

       3. We are informed that the accused was on bail during
  the trial but remained in custody for five months and five days
D durin~J 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
E 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
F 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.

G         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)
H
 BASAPPA v. STATE OF KARNATAKA [KURIAN, J.]                   397


    of sub-section (1) of section 132 or of section 133 or            A
    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      B
    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          C
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            D
    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-
                                                                      E
      (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             F
            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           G
            otherwise;
      (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.               H
    398          SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A                 including the circumstances. if any. for not taking
                  reasonable steps to secure the medical attention
                  as required under clause (al. at the nearest police
                  station as soon as possible and in any case within
                  twenty-four hours of the occurrence.
B
           (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
c                          validity;

                   (ii)    date, time and place of accident;

                   (iii)   particulars of the persons injured or killed in
                           the accident;
D
                   (iv)    name of the driver and the particulars of his
                           driving licence.

               Explanation.-For the purposes of this section, the
E         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
F 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, on the only evidence that
  the appellant was scolded by people in the hospital, has come
G 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.
H
       BASAPPA v. STATE OF KARNATAKA [KURIAN, J.]                 399


       7. There is no finding in the impugned Judgment by the             A
  High Court that the conclusions drawn by the trial court ate
                                                             I
  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            B
  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        C
 Gamini Bala Koteswara Rao and Others v. State of Andhra
 Pradesh through Secretary1• To quote:

               "14. We have considered the arguments advanced
         and heard the matter at great length. It is true, as contended   0
         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       E
         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."                               F
                                                 (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-       G
 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,
  1.    (2009) 10SCC 636.
 2.     c2008) 1 sec 258.                                                 H
     400       SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A 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 same evidence, it
8 cannot   be said that the prosecution has proved the case
  beyond reasonable doubt.

           10. In Bhim Singh v. State of Haryana 4 , 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
C court is one which no reasonable person would in the given
  circumstances, take.

          11. In Ka/Ju alias Masih and others v. State of Madhya
    Pradesh 5, it has been held by this Court that if the view taken
o   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
E         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
F         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
G         the benefit of any doubt. Further, if it decides to interfere,
          it should assign reasons for differing with the decision of

    3.   (2006) 1 sec 401.
    4.   (2002) 1o sec 461.
H s.     (2006) 10 sec 313.
     BASAPPA v. STATE OF KARNATAKA [KURIAN, J.] 401

       the trial court."                                                  A
                                               (Emphasis supplied)

    12. In Ramesh Babula/ 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          8
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:
                                                                          c
              "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             D
       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        E
       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)       F

       13. In Ganpat v. State of Haryana and others7, at
paragraph-15, some of the above principles have been
restated. To quote:

             "15. The following principles have to be kept in ~ind        G
       by the appellate court while dealing with appeals,
       particularly, against an order of acquittal:
6.    (1996) 9 sec 22s.
1.    ·2010) 12 sec 69.                                                   H
    402       SUPREME COURT REPORTS                    [2014] 3 S.C.R.


A               (1) 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.

                (i1) The appellate court can also review the trial
B         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.
c
                (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.
D                (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,
          E~tc. the appellate court is competent to reverse the
          decision of the trial court depending on the materials
E         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
F convicted; but there is failure of justice if the guilty is let scot-
  free. As cautioned by this Court in State of Punjab v. Kamai/
  Singh 8:
               "6. There is no embargo on the appellate court
        reviewing the evidence upon which an order of acquittal
G       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

H s. (2010) 11 sec 211.
 BASAPPA v. STATE OF KARNATAKA [KURIAN, J.]                  403


     thread which runs through the web of administration of A
     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 B
     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      c
     even where the accused has been acquitted. for the
     Q.YIP.ose of ascertaining as to whether any oethe accused
     committed any offence or not. ... "

                                           (Emphasis supplied)
                                                                     D
     15. In this context, yet another caution struck by this Court
in Chandrappa and others v. State of Kamataka 9 would also
be relevant.

      "42. From the above decisions, in our considered view,         E
      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        F
      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 G
      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
9.   c2001) 41 sec 415.                                              H
    404       SUPREME COURT REPORTS                   (2014] 3 S.C.R.


A         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
B         fourt to interfere with acquittal than to curtail the power of
          the court to review the evidence and to come to its own
          r.onclusion.

                  (4) An appellate court. however. must bear in mind
           that in case of acquittal, there is double presumption in
c          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
D          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
E         basis of the evidence on record. the appellate court should
          not disturb the finding of acquittal recorded by the trial
          court."

                                                 (Emphasis supplied)

F       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
G or there is palpable misreading of evidence, etc. It is not the
  stand of the High Court that there had been some miscarriage
  of 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
H in the sense that the appellant-accused could have been
 BASAPPA v. STATE OF KARNATAKA [KURIAN, J.] 405


convicted. In such circumstances, the High Court was not A
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 B
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.

D.G.                                         Appeal allowed.    C