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2025 DAILYLAW 3386 (HP)

State of Himachal Pradesh v. Avinash Sood

2025-11-13

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 30.01.2013, passed by learned Judicial Magistrate First Class, Court No.1, Dehra, District Kangra, H.P. (learned Trial Court) vide which the accused (respondent before learned Trial Court) was acquitted of the commission of offences punishable under Sections 279 ,337 and 338 of Indian Penal Code ( IPC ). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279 , 337 and 338 of the IPC . It was asserted that ASI Mukesh Kumar (PW-3), Constable Navdeep Sidhu and Constable Shakti Chand were present at Khabli Dosadka 24.04.2009 for traffic checking. They received information that a truck and motorcycle had met with an accident at Hanuman Chowk, and found that a motorcycle bearing registration No.PB08AB/TEM/4771 was lying in the middle of the chowk. A tanker bearing registration HP68-2024 was parked at a distance of 100 yards on the Hoshiarpur Road near Petrol Pump. No person was found on the spot. They found on enquiry that the injured person was taken to the Hospital. ASI Mukesh Kumar and Constable Navdeep Sidhu went to the Hospital, where the injured Rajeev Kumar (PW-5) made a statement that he and his friend Ashwani Kumar were distributing the cards for the marriage of their friend, Amit Kumar. When they reached Hanuman Chowk, a Tanker bearing registration No. HP-68-2024 came at a high speed and hit the motorcycle. Avinash Sood (accused) was driving the Tanker. The Tanker was stopped after 100 yards from the place of the accident. The accident occurred due to the negligence of the accused. Statement (Ext.PW-3/A) was reduced into writing and was sent to the Police Station, where F.I.R. (Ext.PW3/B) was registered. SI Mukesh Kumar (PW-3) investigated the matter. He prepared the site plan (Ext.PW-3/D). Dharam Pal (PW-1) took the photographs (Ext.P1 to Ext.P9) whose negatives are Ext.P10 to Ext.P18. Rajeev Kumar and Amit Kumar were medically examined, and their MLCs (Ext.PD and Ext.PE) were obtained. Motorcycle and its documents were seized vide memo (Ext.PC). SI Mukesh Kumar (PW-3) investigated the matter. He prepared the site plan (Ext.PW-3/D). Dharam Pal (PW-1) took the photographs (Ext.P1 to Ext.P9) whose negatives are Ext.P10 to Ext.P18. Rajeev Kumar and Amit Kumar were medically examined, and their MLCs (Ext.PD and Ext.PE) were obtained. Motorcycle and its documents were seized vide memo (Ext.PC). HC Chaman Lal (PW-2) mechanically examined the vehicles and found that there was no mechanical defect in them, which could have led to the accident. He issued reports (Ext.PW-2/A and Ext.PW-2/B). The statements of prosecution witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 279 , 337 and 338 of the IPC , to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined five witnesses to prove its case. Dharam Pal (PW-1) took the photographs. HC Chaman Lal (PW-2) mechanically examined both vehicles. Mukesh Kumar (PW-3) investigated the matter. Smt. Sukma (PW-4) is the owner of the tanker who proved that the accused was driving the vehicle. Rajeev Kumar (PW-5) was the injured. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was driving the tanker. He denied that the accident occurred due to his rash and negligent driving. He stated that the accident occurred due to the negligence of Amit Kumar, who hit the rear tyre of the tanker. He claimed that he was innocent and that he was falsely implicated. He did not present any evidence in defence. 6. Learned Trial Court held that the tanker was found parked at a distance of 100 yards from the place of accident, which showed that the spot position was changed. No skid marks were found on the spot, which falsifies the prosecution’s version that the tanker was being driven at a high speed. The tanker was being driven on the National Highway from Dharamshala to Dhaliara, whereas the motorcycle was coming onto the highway. Motorcyclist was required to take care before joining the Highway. He failed to take care before joining the highway, which led to the accident. The prosecution had not proved the negligence of the accused. The tanker was being driven on the National Highway from Dharamshala to Dhaliara, whereas the motorcycle was coming onto the highway. Motorcyclist was required to take care before joining the Highway. He failed to take care before joining the highway, which led to the accident. The prosecution had not proved the negligence of the accused. Hence, the accused was acquitted. 7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the instant appeal asserting that the learned trial Court erred in appreciating the material placed before it. It was duly proved by the statements of Dharam Pal (PW-1) and Rajeev Kumar (PW-5) that the accused was driving the tanker in a rash and negligent manner and had hit the motorcycle. These statements were ignored by the learned Trial Court without any justification. Learned Trial Court held that independent witnesses were not examined, but no reason was cited to discard the testimonies of prosecution witnesses. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr.Parshant Sen, learned Deputy Advocate General, for the appellant/State and M/s Anjali Soni Verma and Anita Tegta, learned counsel for the respondents. 9. Mr Prashant Sen, learned Deputy Advocate General, for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. Statements of Dharam Pal (PW-1) and Rajeev Kumar (PW-5) proved that the accident had occurred due to the negligence of the accused. Learned Trial Court erred in holding that the motorcyclist was negligent. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Ms Anjali Soni Verma, learned counsel for the respondent/accused, submitted that the learned Trial Court had rightly held that the tanker was moving on the National Highway and the motorcycle was required to take care before entering the National Highway. He failed to do so, which led to the accident. Learned Trial Court had taken a reasonable view, and this Court should not interfere with the reasonable view taken by the learned Trial Court. Therefore, she prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. Therefore, she prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand , 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440: “11.Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38.First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa v. State of Karnataka, (2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42.From the above decisions, in our considered view, the following general principles regarding the 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 Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and 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 the 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 an 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 the case of acquittal, there is a 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.” 40. Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748, this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8..…8.1.The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating 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. 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 the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, 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: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. 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.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and 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.” 13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. Dharam Pal (PW-1) stated that a tanker was going from Dharamshala towards Dhaliara at a high speed and hit a motorcycle at a Chowk. The motorcycle fell, and the tanker was stopped after a distance of about 100 meters. The accident occurred due to the negligence of the accused. He stated in his cross-examination that his Rehdi was located at a distance of 60 meters from the place of the incident. He volunteered to say that it was adjacent to the place of the incident. He admitted that many people were present on the spot. 15. Rajeev Kumar (PW-5) stated he was sitting as a pillion rider on the motorcycle. He volunteered to say that it was adjacent to the place of the incident. He admitted that many people were present on the spot. 15. Rajeev Kumar (PW-5) stated he was sitting as a pillion rider on the motorcycle. A tanker was going from Dharamshala at high speed and hit the motorcycle. He and Amit fell. The accident occurred due to the high speed and negligence of the accused. He stated in his cross-examination that the motorcycle was recently purchased. Amit had a driving license. He denied that the motorcyclist became frightened after seeing the tanker and hit the rear tyre of the tanker. 16. The statements of the witnesses show that they have claimed that the accident occurred due to the high speed of the tanker. However, they have not mentioned the approximate speed of the tanker. It was laid down by the Hon'ble Supreme Court in Mohanta Lal vs. State of West Bengal 1968 ACJ 124 that the use of the term ‘high speed’ by a witness amounts to nothing unless it is elicited from the witness what is understood by the term 'high speed'. It was observed: “Further, no attempt was made to find out what this witness understood by high speed. To one man, the speed of even 10 or 20 miles per hour may appear to be high, while to another, even a speed of 25 or 30 miles per hour may appear to be a reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently. The evidence of the two conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath Dey was struck by the bus, though not from the front side of the bus, as he did not fall in front of the bus but fell sideways near the corner of the two roads. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death.” 17. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death.” 17. This position was reiterated in State of Karnataka vs. Satish 1998 (8) SCC 493 , wherein it was held: “Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even 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.” 18. This Court also held in State of H.P. Vs. Madan Lal 2003 Latest H.L.J. (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed: - “It may be pointed out that speed alone is not a criterion to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.” 19. This position was reiterated in State of H.P. Vs. Parmodh Singh 2008 Latest HLJ (2) 1360 wherein it was held: - “Thus, negligent or rash driving of the vehicle has to be proved by the prosecution during the trial, which cannot be automatically presumed even on the basis of the doctrine of res ipsa loquitur. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criterion to establish the fact of rash and negligent driving of a vehicle. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criterion to establish the fact of rash and negligent driving of a vehicle. It is only a rash and negligent act as its ingredients, to which the prosecution has failed to prove in the instant case.” 20. Thus, the accused cannot be held liable merely because the witnesses have stated that he was driving the vehicle at a high speed. 21. The witnesses also stated that the accused was negligent in driving the vehicle. This statement will also not help the prosecution’s case. A witness can only depose about the fact which had occurred in his presence, and he is not permitted to draw inferences from the facts. The inferences have to be drawn by the Jury or the Judge when he is sitting without a Jury. It was laid down by Goddard LJ in Hollington v. Hawthorn 1943 KB 507 at 595 that a witness cannot depose about negligence. It was observed: “It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not.” 22. Similar is the judgment in State of H.P. vs. Niti Raj 2009 Cr.L.J. 1922 (HP), wherein it was held: “It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court.” 23. Thus, no advantage can be derived from the fact that the witnesses have deposed about the negligence of the accused. 24. Site plan (Ext.PW-3/D) shows that the place of the accident is an intersection. Thus, no advantage can be derived from the fact that the witnesses have deposed about the negligence of the accused. 24. Site plan (Ext.PW-3/D) shows that the place of the accident is an intersection. The motorcycle was coming from Jawali towards Dehra, whereas the tanker was coming from Dharamshala and was going towards Dhaliara. 25. The Central Government has framed the Rules of the Road Regulations in exercising the power conferred under Section 118 of the Motor Vehicles Act. 26. Rule 8 of the Regulations provides that the driver of the motor vehicle shall slow down when approaching a road intersection, a road junction, a pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon. 27. Rule 9 provides that the driver of a motor vehicle shall, on entering a road intersection, at which traffic is not being regulated, if the road entered is a main road, designated as such, give way to the vehicles proceeding along that road, and in any other case, give way to all traffic approaching the intersection on his right-handside. 28. A combined reading of these two Rules shows that a driver of the motor vehicle is supposed to take precautions before entering the junction. He is to give way to the vehicles moving on the main road and to the vehicles moving on his right side. A vehicle coming from Dharamshala would be towards the right side for a driver of the vehicle coming from Jawalaji; therefore, the motorcyclist was supposed to give way to the tanker coming from the right side. 29. Learned Trial Court held that Dharamshala- Hosiharpur was a National Highway and it was a main road. Therefore, the motorcyclist was supposed to give way to the tanker; however, it appears that the motorcyclist had not taken these precautions, which led to the accident. Hence, the view taken by the learned Trial Court that the accident occurred due to the negligence of the motorcyclist was a reasonable view which could have been taken based on the material before the learned Trial Court. This Court will not interfere with a reasonable view of the learned Trial Court, even if another view is possible. 30. There is no other evidence of the negligence of the accused. This Court will not interfere with a reasonable view of the learned Trial Court, even if another view is possible. 30. There is no other evidence of the negligence of the accused. Hence, the judgment passed by the learned Trial Court is fully sustainable and requires no interference. 31. No other point was urged. 32. In view of the above, the present appeal fails and it is dismissed. Pending applications, if any, also stand disposed of. 33. In view of the provisions of Section 437-A of the Code of Criminal Procedure ( Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent is directed to furnish bail bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/ learned Trial Court which shall be effective for six months with a stipulation that in the event of a Special Leave Petition being filed against this judgment or on grant of the leave, the respondent on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 34. A copy of the judgment, along with record of the learned Trial Court, be sent back forthwith.