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2025 DAILYLAW 3396 (HP)

State of H. P. v. Vikash @ Sonu

2025-11-04

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 19.11.2011 passed by learned Chief Judicial Magistrate, Kangra at Dharamshala (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Sections 279 and 337 of Indian Penal Code (hereinafter referred to as IPC) and Sections 181 and 196 of Motor Vehicles Act (MV Act). (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 before the learned Trial Court against the accused for the commission of offences punishable under Sections 279 and 337 of the IPC and Sections 181 and 196 of the MV Act. It was asserted that the informant, Darshan Kumar (PW1) and Prem Chand (PW2) were talking to each other on 04.04.2007 at a roadside at Sarnu. A motorcycle bearing registration No. HP44-0506 came from Rait at a high speed and hit the informant and Prem Chand at about 6:45 pm. The motorcyclists had not switched on the headlights. The informant and Prem Chand fell. The motorcyclist and the pillion rider also fell. However, the motorcyclist and the pillion rider ran away from the spot. The informant could identify the motorcyclist. The incident was witnessed by Sanjeev Kumar (PW6) and Virender Kumar (PW10). The matter was reported to the police, and the statement of the informant (Ext.PW1/A) was recorded, which was sent to the Police station where FIR (Ext.PW11/A)  was  registered. HC  Rakesh  Kumar  (PW8) investigated the matter. He applied for the medical examination of the injured. Dr Avinash Goel (PW4) medically examined Darshan Kumar (PW1) and found that he had sustained multiple injuries, which could have been caused by a blunt weapon within six hours of examination. He was advised X-ray, but he declined to undergo an X-ray. MLC (Ext.PW4/B) was issued. Dr Avinash Goel (PW4) also examined Prem Chand (PW2) and found that he had sustained multiple injuries, which could have been caused within six hours of examination by a blunt weapon. He advised X-ray, but Prem Chand (PW2) declined to undergo an X-ray. MLC (Ext.PW4/C) was issued. HC Rakesh Kumar (PW8) visited the spot and prepared the site plan (Ext.PW8/A). Dr Avinash Goel (PW4) also examined Prem Chand (PW2) and found that he had sustained multiple injuries, which could have been caused within six hours of examination by a blunt weapon. He advised X-ray, but Prem Chand (PW2) declined to undergo an X-ray. MLC (Ext.PW4/C) was issued. HC Rakesh Kumar (PW8) visited the spot and prepared the site plan (Ext.PW8/A). Rajan Chauhan (PW5) took the photographs of the spot (Ext.PW5/A to Ext. PW5/C) whose negatives are Ext. PW5/A-1 to Ext. PW5/A-3. Motorcycle bearing registration No. HP44-0506 was seized vide memo (Ext.PW8/B). Inderjeet (PW7) mechanically examined the motorcycle and found that there was no mechanical defect in it which could have led to the accident. He issued the report (Ext.PW7/A). The statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. The learned Trial Court found sufficient reasons to put the notice of accusation to the accused for the commission of offences punishable under Sections 279 and 337 of the IPC and Sections 186 and 196 of the MV Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined 11 witnesses to prove its case. Darshan Kumar (PW1) is the informant/victim. Prem Chand (PW2) is another victim. Tej Singh (PW3) was a pillion rider, but he did not support the prosecution’s case. Dr Avinash Goel (PW4) medically examined the injured. Rajan Chauhan (PW5) took the photographs. Sanjeev Kumar (PW6) and Virender Kumar (PW10) are the eyewitnesses. HHC Inderjeet (PW7) mechanically examined the motorcycle. HC Rakesh Kumar (PW8) investigated the matter. Sanjeev Kumar (PW9) is the witness to the recovery of the motorcycle. Inspector Mohinder Singh (PW11) prepared the challan. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He stated that he was going to fill up the petrol in the motorcycle. The police had set up a naaka. The police seized the documents of the vehicle and falsely implicated him. The witnesses deposed falsely because they belonged to Sarnu. The accused did not lead any evidence in defence. 6. The learned Trial Court held that the informant had not mentioned the name or the identity of the motorcyclist. The police had set up a naaka. The police seized the documents of the vehicle and falsely implicated him. The witnesses deposed falsely because they belonged to Sarnu. The accused did not lead any evidence in defence. 6. The learned Trial Court held that the informant had not mentioned the name or the identity of the motorcyclist. Therefore, the prosecution needed to establish that the accused was driving the motorcycle at the time of the accident. The police did not conduct the test identification parade to fix the identity of the accused. The identification of the accused made in the Court for the first time after the incident was not of much value. Therefore, no reliance could be placed upon the identification. Tej Singh (PW3), who was stated to be a pillion rider of the motorcycle, had not supported the prosecution’s case. The other witnesses were related to the informant/injured, and the presence of Virender Kumar (PW10) on the spot was highly improbable. The prosecution had not proved the case beyond a reasonable doubt. Hence, the accused was acquitted. 7. Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court appreciated the evidence in a slipshod and perfunctory manner. The testimonies of the witnesses were wrongly discarded. Darshan Kumar (PW1), Prem Chand (PW2), Sanjeev Kumar (PW6) and Virender Kumar (PW10) clearly stated that the accused was driving the motorcycle at the time of the accident. Their identification was discarded without any cogent reason. The mechanical expert did not find any mechanical defect in the motorcycle which could have led to the accident. The accident occurred because of the negligence of the accused. 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 Lokender Kutlehria, learned Additional Advocate General for the appellant/State and Mr Dheeraj K. Vashisht, learned counsel for the respondent/accused. 9. Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. The prosecution witnesses had identified the accused in the Court, and their testimonies could not have been discarded on the ground that a test identification parade was not conducted. The motorcycle was found on the spot, and its involvement could not be disputed. The prosecution witnesses had identified the accused in the Court, and their testimonies could not have been discarded on the ground that a test identification parade was not conducted. The motorcycle was found on the spot, and its involvement could not be disputed. The learned Trial Court had taken a view which no reasonable person could have taken based on the evidence led before the learned Trial Court. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Dheeraj K. Vashisht, learned counsel for the respondent/accused, submitted that the informant had specifically mentioned in his statement recorded by the police that he could identify the motorcyclist; however, the police did not conduct any test identification parade and the identification made for the first time before the Court was meaningless. Learned Trial Court had taken a reasonable view, and this Court should not interfere with the reasonable view of the learned Trial Court while deciding the appeal against acquittal. Therefore, he 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: “23. 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. 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 [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated 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 case [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. (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. 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 [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. 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.” 24. 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.” 24. 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. It was specifically stated in the statement (Ext.PW1/A) that the informant could identify the motorcyclists if he (motorcyclist) was brought before him. HC Rakesh Kumar (PW8) did not say in his statement that any Test Identification Parade was conducted to determine that the accused was driving the motorcycle  at  the  time  of  the  accident. In  fact,  his  whole statement is silent regarding how he had connected the accused to the commission of the crime. It was laid down by the Hon’ble Supreme Court in Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 : 2002 SCC (Cri) 256: 2001 SCC OnLine SC 1243 that when the identity of the accused is not known, the Investigating Officer needs to prove how he picked up the accused. It was observed at page 713: “26. Before parting with the case, we would like to place on record an observation of ours, touching on an aspect of the case. There are clueless crimes committed. The factum of a cognizable crime having been committed is known, but neither the identity of the accused is disclosed nor is there any indication available of the witnesses who would be able to furnish useful and relevant evidence. Such offences put to the test the wits of an investigating officer. A vigilant investigating officer, well-versed with the techniques of the job, is in a position to collect the threads of evidence, finding out the path which leads to the culprit. Such offences put to the test the wits of an investigating officer. A vigilant investigating officer, well-versed with the techniques of the job, is in a position to collect the threads of evidence, finding out the path which leads to the culprit. The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a court of law. The evidence of the investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded, leading to the detection of the offender and the collection of evidence against him. This is necessary to exclude the likelihood of any innocent person having been picked up and branded as a culprit, and then the gravity of the offence arousing human sympathy, persuading the mind to be carried away by doubtful or dubious circumstances, treating them as of “beyond doubt” evidentiary value.” 15. In the present case, the Investigating Officer has not explained how he had picked up the accused; therefore, the prosecution’s case is to be seen with due care and caution. 16. The informant, Darshan Kumar (PW1), stated in his examination in chief that it was dark, the vehicles were moving after switching on their headlights, but the accused was driving the motorcycle without switching on the headlights. He stated in his cross-examination that the accused had run away from the spot. Thus, the informant had an inadequate opportunity to identify the accused on the spot, and the learned Trial Court had rightly held that the identification of the accused in a test identification parade was necessary. 17. It was submitted that the witness had identified the accused in the Court, which is the best identification, and the learned Trial Court erred in disregarding the statement of the witness. This submission will not help the prosecution. Professor Rupert Cross has stated in his celebrated treatise, Cross on Evidence, Fifth Edition, Butterworths, that identification of the accused for the first time in the dock is highly suspect. This submission will not help the prosecution. Professor Rupert Cross has stated in his celebrated treatise, Cross on Evidence, Fifth Edition, Butterworths, that identification of the accused for the first time in the dock is highly suspect. He observed: "It might be thought that in criminal cases there could not be better identification of an accused than that of a witness who goes into the box and swears that the man in the dock is the one he saw coming out of a house at a particular time, or the man who assaulted him. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the witness, and this is because its weight is reduced by the reflection that, if there is any degree of resemblance between the man in the dock and the person previously seen by him. The wit- ness may very well think to himself that the police must have got hold of the right person, particularly if he has al- ready described the latter to them, with the result that he will be inclined to swear positively to a fact of which he is by no means certain. People have mistakenly identified friends and relations well known to them with sufficient frequency to make them question the propriety of convicting an accused person on nothing more than the visual identification of a single witness who may only have had a fleeting glance of him in poor light." 18. It has been stated in Halsbury's Laws of England 4th Edition Volume 2 that the identification of the accused for the first time in the Court is improper, and the witness should be asked to identify the accused in a prior test identification parade. It has been observed in para 363: “It is undesirable that a witness should be asked to identify the defendant for the first time in the dock at his trial; and as a general practice, it is preferable that he should have been placed previously in a parade with other persons, so that potential witnesses may be asked to pick him up.” 19. It was laid down by the Hon’ble Supreme Court in P. Sasikumar v. State of T.N., (2024) 8 SCC 600 : (2024) 3 SCC (Cri) 791: 2024 SCC OnLine SC 1652 that when the accused were not known to the witnesses on the date of the incident, their identification in the dock is not acceptable. It was observed on page 605: “17. The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. All the prosecution witnesses who identified the accused in the Court, such as PW 1 and PW 5, were not known to the present appellant, i.e. Accused 2. They had not seen the present appellant before the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/Accused 2 on the date of the crime while he was wearing a “green-coloured monkey cap”! xxx 21. It is well settled that TIP is only a part of the police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence, is only dock identification, that is, identification made by a witness in court during the trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper. xxxx 23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identification of the appellant. In cases where the accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see: Kunjumon v. State of Kerala, (2012) 13 SCC 750 : (2012) 4 SCC (Cri) 406]). xxx 27. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP, which has not been done. xxx 27. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP, which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases of Jayan v. State of Kerala [Jayan v. State of Kerala, (2021) 20 SCC 38 ] and Amrik Singh v. State of Punjab [Amrik Singh v. State of Punjab, (2022) 9 SCC 402 : (2023) 2 SCC (Cri) 404]. 28. In Jayan [Jayan v. State of Kerala, (2021) 20 SCC 38 ], this Court disbelieved the dock identification of the accused therein by a witness, and while doing so, this Court discussed the aspect of TIP in the following words: (Jayan case [Jayan v. State of Kerala, (2021) 20 SCC 38 ], SCC p. 44, para 18) “18. It is well settled that the TI parade is a part of the investigation, and it is not substantive evidence. The question of holding a TI parade arises when the accused is not known to the witness beforehand. The identification by a witness of the accused in the Court who has, for the first time, seen the accused in the incident of the offence is a weak piece of evidence, especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, the TI parade may make the identification of the accused by the witness before the Court trustworthy.” 20. Therefore, no reliance can be placed on the identification made before the Court for the first time. 21. Prem Chand (PW2) stated in his cross-examination that the incident had occurred at 6:45 pm, and it was dark. He has not explained how he could have identified the accused in the darkness when the accused had run away from the spot immediately after the accident. His power of observation was also not tested by the Test Identification Parade, and no reliance can be placed on his testimony regarding the identification. 22. Sanjeev Kumar (PW6) stated that he was walking with Virender Kumar (PW10) when he saw a motorcycle hitting Darshan Kumar (PW1) and another person. He stated that the accused was driving the motorcycle at the time of the accident. 22. Sanjeev Kumar (PW6) stated that he was walking with Virender Kumar (PW10) when he saw a motorcycle hitting Darshan Kumar (PW1) and another person. He stated that the accused was driving the motorcycle at the time of the accident. He admitted in his cross-examination that he belongs to the same community as the informant. He was duly confronted with his previous statement, wherein the name of the accused was not mentioned. This shows that his testimony in the Court that the accused was driving the vehicle is an improvement, which cannot be relied upon. 23. Virender Kumar (PW10) stated that he was going to his home when he saw a motorcycle hitting Darshan Kumar (PW1) and Prem Chand (PW2). He picked them up. Darshan Kumar (PW1) told him to inform his family members. He left the spot for his home. Prem Chand (PW2) came to his home and told him to make a statement before the police. He was permitted to be cross-examined. He admitted after he was cross-examined by learned A.P.P. that the accused was driving the motorcycle at the time of the accident without switching on the light, and the motorcycle had hit Darshan Kumar (PW1) and Prem Chand (PW2) in the darkness. He denied that the accused and Tej Singh (PW3) ran away from the spot. He admitted that the accident occurred due to the negligence of the accused. He stated in his cross-examination that his statement was recorded after 1 - 1 ½ hours of the accident. He admitted that it had become dark at the time of the accident. He denied that he was unable to identify the motorcyclists. He admitted that he did not know the accused before the date of the incident. 24. The learned Trial Court had rightly discarded the testimony of this witness. He was not considered worthy of credence by the prosecution, who had declared him hostile and cross-examined him. He admitted in his cross-examination that it had become dark and he had seen the accused for the first time on the date of the incident. Hence, he was required to assign a reason for the identification of the accused. However, he has not assigned any such reason, and his identification for the first time in the Court could not have been believed. 25. Hence, he was required to assign a reason for the identification of the accused. However, he has not assigned any such reason, and his identification for the first time in the Court could not have been believed. 25. There is no other evidence to prove that the accused was driving the motorcycle at the time of the incident. The evidence led by the prosecution leaves a reasonable doubt regarding the identity of the accused, and the learned Trial Court had taken a reasonable view while holding that the identity of the accused was not established. This Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 26. Thus, there is no reason to interfere with the judgment of the learned Trial Court. Hence, the present appeal fails, and it is dismissed. 27. In view of the provisions of Section 437-A of the Code of  Criminal  Procedure  [Section  481  of  Bharatiya  Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is directed to furnish his personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused, on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court. 28. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.