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2025 DAILYLAW 3605 (HP)

State of Himachal Pradesh v. Barjinder Singh

2025-11-19

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 31.08.2012, passed by Judicial Magistrate, First Class,Court No.1, Kangra, District Kangra, H.P. (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 ( 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 and 337 of IPC . It was asserted that the informant Lalita Devi (PW-1) and Ujjala Devi (PW-2) were going towards Bheri on 28.03.2010. A bus bearing registration No. HP68-2439 came at a high speed and hit the informant on the Kachha portion of the road at 10:00-10:15 a.m. near Sanoura Chowk. The informant fell and sustained injuries. Kamlesh Kumar and Ujjala Devi (PW-2) took the injured to the hospital. Accused Barjinder Singh was driving the bus at the time of the accident, and the accident occurred due to his negligence and the high speed of the bus. Intimation was given to the police. An entry was duly recorded. HC Rakesh Kumar (PW-8) went to the hospital and recorded the statement of the informant (Ext.PW-1/A), which was sent to the Police Station, where F.I.R. (Ext.PW-8/A) was registered. HC Rakesh Kumar (PW-8) investigated the matter. He prepared the site plan (Ext.PW-8/B), and seized the bus and its documents vide memo (Ext.PW-4/A). Arun Kumar (PW-7) mechanically examined the bus and did not find any defect in it which could have led to the accident. He issued his report (Ext.PW-7/A). Photographs (Ext.PW8/A1 to Ext.PW8/4A) were taken. Dr Rohit Sharma (PW- 9) medically examined Lalita Devi and found that she had sustained simple injuries, which could have been caused by a motor vehicle accident. He issued MLC (Ext.PW-9/A). 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. He issued MLC (Ext.PW-9/A). 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 and 337 of the IPC , to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined ten witnesses to prove its case. Lalita Devi (PW-1) is the informant. Ujjla Devi (PW-2) is an eyewitness Onkar Singh (PW-3) and Ravi Dutt (PW-4) did not support the prosecution’s case. Baldev Raj (PW-5) is the husband of the injured. Raman Kumar (PW-6) witnessed the recovery. Arun Kumar (PW-7) mechanically examined the bus. HC Rakesh Kumar (PW-8) investigated the matter. Dr Rohit Sharma (PW-9) medically examined the injured. HC Anjan Paul (PW-10) partly investigated the matter. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution in its entirety. He claimed that witnesses deposed falsely against him, and a false case was made against him. He did not produce any evidence in his defence. 6. Learned Trial Court held that the Investigating Officer had not prepared the site plan in the presence of the informant or Ujjla Devi (PW-2). The Investigating Officer did not associate any independent witnesses. The informant and eyewitness could not narrate the accident. The fact that the informant was walking towards the left side was not sufficient to attribute the negligence to the accused. Therefore, the accused was acquitted of the commission of offences punishable under Sections 279 and 337 of the IPC . 7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal, asserting that the learned Trial Court discarded the testimonies of the witnesses for untenable reasons. The statements of prosecution witnesses were not properly appreciated. The conclusion drawn by the learned Trial Court could not have been drawn by any reasonable person. The suggestion in the cross- examination that the injured sustained injuries after she was attacked by a cow was not probable. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. The suggestion in the cross- examination that the injured sustained injuries after she was attacked by a cow was not probable. 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 Mr Sanjay Jaswal, learned counsel for the respondent. 9. Mr. Parshant Sen, learned Deputy Advocate General, for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. There is no requirement to prepare the site plan in the presence of the witnesses because the site plan mentions what was observed by the Investigating Officer and cannot contain the statement made to him by the witnesses. The injured and eyewitness proved the prosecution’s case beyond a reasonable doubt, and the non-examination of independent witnesses was not material. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Sanjay Jaswal, learned counsel for the respondent/accused, submitted that the prosecution witnesses stated that the accident occurred due to the high speed of the bus. Mere use of the term ‘High Speed’ by witnesses is not sufficient to infer the negligence or rashness of the driver. Learned Trial Court had taken a reasonable view while acquitting the accused, and this Court should not interfere with the reasonable view of the learned Trial Court, even if another view is possible. Therefore, he prayed that the present appeal be dismissed. He relied upon the judgment of Hon’ble Supreme Court in Syad Akbar vs State of Karnataka 1979 (1) SCC 30 and judgment of this Court in State of H.P. vs. Hans Raj 2024 : HHC : 9327 in support of his submission. 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 onmisreading/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. 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 Prasadv. 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: (Chandrappav. State of Karnataka, (2007) 4 SCC 415 :(2007) 2 SCC (Cri) 325], SCCp. 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. 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 378 CrPC 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. 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. Learned Trial Court held that the site plan was not prepared in the presence of the informant, and this was fatal to the prosecution’s case. This finding is not sustainable. It was laid down by the Hon’ble Supreme Court in Jagdish Narain v. State of U.P. , (1996) 8 SCC 199 : 1996 SCC (Cri) 565 that the site plan is admissible only to prove what was observed by the Investigating Officer and not to prove what was told by the witnesses; therefore, the failure to indicate the place from where the shot was fired was immaterial. It was observed: - “9.In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot where from the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion, neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan, an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However, such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses, it could not have been admitted in evidence, being hit by Section 162 CrPC. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses, it could not have been admitted in evidence, being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-judge Bench of this Court in Tori Singh v. State of U.P. [ AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580 ] In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention, this Court observed, inter alia: “…the mark on the sketch map was put by the Sub-Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This, in our opinion, would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit.The sketch-map would be admissible so far as it indicates all that the Sub- Inspector saw himself at the spot, but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during the investigation.” (emphasis supplied) 10.While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman — and not by the Investigating Officer — entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence as has been observed by this Court in Tori Singh case [ AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580 ] in the following passage: “This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of the offence, the draftsman put down the places in the map, inSanta Singh v. State of Punjab [ AIR 1956 SC 526 : 1956 Cri LJ 930]. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure.”(emphasis supplied) 15. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure.”(emphasis supplied) 15. Therefore, the learned Trial Court was not justified in doubting the prosecution’s case because the informant or the eyewitness was not associated with the Investigating Officer while preparing the site plan. Any statement made by them to the Investigating Officer regarding the accident would have been inadmissible and could not have been relied upon by any person 16. Learned Trial Court also held that the prosecution’s case was not believable because of the non-examination of the shopkeepers or any other independent witnesses. This is also not sustainable. The prosecution’s case could not have been doubted because of the non-examination of the witnesses. It was laid down by the Hon’ble Supreme Court in Pohlu v. State of Haryana , (2005) 10 SCC 196 , that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non- examination of other witnesses will not make the testimony doubtful. It was observed: - “[10]..It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution…” 17. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434 , and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed: “23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It was observed: “23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness if it is so warranted in the interests of justice. The evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.” 18. This position was reiterated in Rajesh Yadav v. State of U.P. , (2022) 12 SCC 200 : 2022 SCC OnLine SC 150, wherein it was observed at page 224: - Non-examination of the witness 34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials, sufficient to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the party that alleges that a witness has not been produced deliberately to prove it. 35. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the party that alleges that a witness has not been produced deliberately to prove it. 35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri) 646]: (SCC pp. 377-78, para 13) “13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the “pakodewalla”, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution's case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution's case or drawing of an adverse inference against the prosecution. The law is well- settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity orany manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered, and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country, there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross- examination which they have to face before the courts. Therefore, nobody wants to be a witness to a murder or any serious offence if they can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes.” (emphasis supplied) 36. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401 : (2014) 2 SCC (Cri) 195]: (SCC pp. 410-11, para 19) “19. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy or otherwise. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy or otherwise. The legal system has emphasised the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness if the same inspires confidence. (Vadivelu Thevar v. State of Madras, 1957 SCR 981 : AIR 1957 SC 614 , Kunju v. State of T.N. (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331, Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150, Mahesh v. State of M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783, Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1 and Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807.” 19. Therefore, the prosecution’s case could not have been doubted because of the non-examination of the witnesses, and the reasons assigned by the learned Trial Court acquitting the accused are not sustainable. 20. Mr Sanjay Jaswal, learned counsel for the respondent/accused, submitted that the identity of the accused was not established, and this aspect was ignored by the learned Trial Court. It is necessary to refer to the evidence regarding the identity of the accused to appreciate this submission. 21. Lalita Devi (PW-1) stated that she could not identify the driver because she became unconscious on the spot. She was permitted to be cross-examined. She admitted in her cross- examination by the learned APP that the name of the bus driver was Barjinder Singh, and he was present on the spot. She stated in her cross-examination by the learned counsel for the defence that she had seen the accused for the first time. She did not know, who had disclosed the name of the driver and the registration number of the bus to the police. 22. She stated in her cross-examination by the learned counsel for the defence that she had seen the accused for the first time. She did not know, who had disclosed the name of the driver and the registration number of the bus to the police. 22. She did not mention the name of the driver in her examination-in-chief. She admitted that the accused was the driver after she was declared hostile, but again stated in her cross-examination by the learned counsel for the defence that she had seen the accused for the first time and was not aware of the name of the person who had disclosed the name of the accused to the police. Thus, her testimony is contradictory and cannot be relied upon to establish the identity of the driver. 23. Ujjla Devi (PW-2) stated that the accused, present in the Court, was driving the bus, and the accident occurred due to his negligence. She stated in her cross-examination that she had not seen the driver on the spot. She admitted that the name of the driver was disclosed by the brother of the injured. The driver was not shown to her. 24. Her statement shows that she was not aware of the identity of the driver, and that is why the name of the driver was mentioned by the brother of the injured. She has nowhere mentioned that the accused was known to her or that she hadseen him before the incident. Therefore, her identification in the Court for the first time without a previous Test Identification Parade is of no value. 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. 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 witness may very well think to himself that the police must have got hold of the right person, particularly if he has already 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." 25. 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 beasked 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.” 26. 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 at page 605: “17.The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. It was observed at 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. The emphasis of TIP in a given case is of vital importance, as has been shown by this Court in the recent two cases of Jayan v. State of Kerala, (2021) 20 SCC 38 and Amrik Singh v. State of Punjab, (2022) 9 SCC 402 : (2023) 2 SCC (Cri) 404. 28. The emphasis of TIP in a given case is of vital importance, as has been shown by this Court in the recent two cases of Jayan v. State of Kerala, (2021) 20 SCC 38 and Amrik Singh v. State of Punjab, (2022) 9 SCC 402 : (2023) 2 SCC (Cri) 404. 28. In 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 v. State of Kerala, (2021) 20 SCC 38 , SCC p. 44, para18) “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.” 27. In the present case, a Test Identification Parade was not conducted, and the testimony of Ujjala Devi (PW-2) is not sufficient to establish that the accused was driving the bus. 28. Onkar Singh (PW-3) stated that he reached the place of the accident after half an hour. He stated in his cross- examination that the bus or its driver was not present on the spot. Therefore, the testimony of this witness does not establish the identity of the accused. 29. Ravi Dutt (PW-4) stated that he is the owner of the bus, but he did not remember the name of the driver employed by him. He was permitted to be cross-examined. He stated in his cross-examination by the learned APP that he was not aware that the accused was the driver on the date of the incident. He volunteered to say that he owned five vehicles. He admitted that the driving license of the accused was available on record. He denied that he was making a false statement to save the accused. He volunteered to say that he owned five vehicles. He admitted that the driving license of the accused was available on record. He denied that he was making a false statement to save the accused. He stated in his cross- examination by the learned defence counsel that the driver and conductor are employed by his younger brother, and he did not know the name of the driver of the bus on the date of the accident. The statement of this witness did not establish who was driving the bus on the date of the accident. 30. Baldev Raj (PW-5) stated that he was not present on the spot, and he went to Tanda Hospital after receiving the information about the incident. Hence, his testimony does not establish the identity of the accused. 31. Therefore, there was no evidence regarding the identity of the accused and the submission of Mr Sanjay Jaswal, learned counsel for the respondent, has to be accepted as correct that the prosecution had failed to establish the identity of the accused. 32. Lalita Devi (PW-1) stated that the accident had occurred due to the negligence of the driver of the bus. Ujjla Devi (PW-2) stated that the bus hit Lalita. They were walking on the roadside. The accident occurred due to the negligence of the bus driver because he had driven the bus on the Kachha portion of the road. 33. Testimony of this witness that the accident occurred on the Kachha portion of the road is not supported by the site plan (Ext.PW-8/B). Point ‘X’ shows the place of the accident, which is a metalled portion 23 meters wide and a Kachha portion shown as 6 feet. 34. The photographs showed the location of the bus, but the same was parked at some distance after the accident, as per the statements of witnesses. No marks of tyre were shown on the Kachha portion of the road; therefore, the statement of Ujjla Devi (PW-2) is not acceptable that the bus was taken towards the unmetalled road. 35. It was submitted that the witnesses deposed about the negligence of the driver, and this is sufficient to prove the negligence of the accused. This submission cannot be accepted. 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. 35. It was submitted that the witnesses deposed about the negligence of the driver, and this is sufficient to prove the negligence of the accused. This submission cannot be accepted. 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.” 36. Similar is the judgment in State of H.P. vs. Niti Raj 2009 Cr.L.J. 1922 (HP), where 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.” 37. Therefore, the judgment passed by the learned Trial Court, acquitting the accused, is sustainable, however, on different grounds. 38. In view of the above, the present appeal fails and it is dismissed. Pending applications, if any, also stand disposed of. 39. 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. 40. 40. A copy of the judgment, along with record of the learned Trial Court, be sent back forthwith.