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2025 DAILYLAW 3607 (HP)

State of Himachal Pradesh v. Hem Raj

2025-11-14

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 28.10.2013, passed by learned Judicial Magistrate First Class, Court No.5, Shimla, District Shimla, 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, 338 and 304-A 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, 338 & 304-A of the IPC . It was asserted that Jagdish was travelling in a bus bearing registration No. HP-63-0196 on 30.06.2006 with his son Santosh. 35-40 passengers were present in the bus. The accused, Hem Ram,was driving the bus. He was talking to the passengers sitting in seat No. 1 and to other passengers standing behind him. He could not control the bus, and it fell into the gorge. The passengers shouted that the bus was going off the road. The accused tried to control the bus, but it fell into a gorge. The informant and occupants of the bus sustained injuries. Some people died on the spot. The injured were taken to the hospital. An intimation was given to the police. An entry (Ext.PW-20/A)was recorded in the Police Station. ASI Sohan Singh (PW-29), HHC Lekh Raj went to the spot. HC Yog Raj (PW-21), Constable Vijay Kumar and Constable Rajneesh were directed to visit the hospital. ASI Sohan Singh (PW-29) recorded the statement of informant Jagdish (PW-1) (Ext.PW-1/A) and sent it to the Police Station, where F.I.R. (Ext.PW-28/A) was recorded. ASI Sohan (PW-29) investigated the matter. He prepared the site plan (Ext.PW28/B). Constable Lokender Singh (PW-17) took the photographs (Ext.X1 to Ext.X8). The bus bearing registration No.HP-63-0196 was seized vide memo (Ext.PW14/D). The registration certificate and a certificate regarding driving license (Ext.PW-15/A) were seized vide memos (Ext. PW-15/B andExt.PW-20/B). Rajinder Singh (PW-16) mechanically examined the vehicle. He did not find any defect in it that would have led to the accident. The photographs of dead bodies (Ext.PW-19/A1 to PW-19/A4) were taken by HHC Govind Ram (PW-19). The registration certificate and a certificate regarding driving license (Ext.PW-15/A) were seized vide memos (Ext. PW-15/B andExt.PW-20/B). Rajinder Singh (PW-16) mechanically examined the vehicle. He did not find any defect in it that would have led to the accident. The photographs of dead bodies (Ext.PW-19/A1 to PW-19/A4) were taken by HHC Govind Ram (PW-19). Dr HC Sekhon (PW-30) conducted the post-mortem examination of Bhaskar Nand Sharma and found that he had died due to ante mortem head injuries and trauma in the chest, leading to cardio-respiratory failure. He issued his report (Ext.PW-30/A). He also conducted post post-mortem of Tej Parkash and found that he had died due ante-mortem head injury. He issued his report (Ext.PW-30/B). He conducted the post-mortem of Chaman Lal and found that he had died due to loss of blood as a result of blunt trauma. He issued his report (Ext.PW-30/C). All the injuries noticed by him could have been caused in a motor vehicle accident. Dr Sangeeta Dhillon (PW-31) conducted the post-mortem examination of Laxmi Nand and found that he had died because of ante-mortem head injuries. She issued the report (Ext.PW-31/A). She also conducted the post-mortem examination of Kuldeep, and found that he had died due to ante-mortem head injuries and a fracture on the right femur. She issued the report (Ext.PW-31/B). She conducted post- mortem of Parkash Chand and found that he had died as a result of ante mortem injuries and fracture ofthe right upper limb. She issued a report (Ext.PW-31/C). She also conducted post- mortem of Laik Ram and found that he had died due to a rupture of the spleen and fracture of the pelvis. She issued a report (Ext.PW-31/D). She conducted post-mortem of Krishan Chand and found that he had died due to ante mortem head injury and fracture of the lower limb. She issued a report (Ext.PW-31/E). She also conducted post-mortem of Pawan Kumar and found that he had died as a result of ante mortem injuries and a fracture of the femur leading to hemorrhagic shock. She issued a report (Ext.PW-31/F). According to her opinion all the injuries could have been caused in a motor vehicle accident. The injured were examined by Dr R.S.Dadwal, Dr Sachin Sood, Dr.Deshraj Chandel, Dr Dhruv Sharma and Dr Nitin Aggarwal, who issued the reports (Ext.PX1 to Ext.PX30). She issued a report (Ext.PW-31/F). According to her opinion all the injuries could have been caused in a motor vehicle accident. The injured were examined by Dr R.S.Dadwal, Dr Sachin Sood, Dr.Deshraj Chandel, Dr Dhruv Sharma and Dr Nitin Aggarwal, who issued the reports (Ext.PX1 to Ext.PX30). 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, 338 and 304-A of IPC , to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined thirty-four witnesses to prove its case. Jagdish Chand (PW-1) is the informant and the injured. Dhanwant Devi (PW-2), Mohan Lal (PW-3), Sanjay Kumar (PW-4), Mukesh Sharma (PW-5), Nagu Ram (PW-6), Santosh Kumar (PW-7), Naresh Kumar (PW-8), Lekh Ram (PW-9), Rajesh Bhardwaj (PW-10), Satya Prakash (PW11), Asha Sharma(PW-12), Hem Raj (PW-13), Rajesh Thakur (PW-14) were travelling in the bus. Naveen Kumar (PW-15) produced the record. Rajinder Singh (PW-16) conducted the mechanical examination of the bus. Constable Lokender Singh (PW-17) took the photographs. Lekh Raj (PW-18) witnessed the recovery. Govind Ram (PW-19) took the photographs of the dead body. HC Bhagirath (PW-20) signed the inquest reports. Rajinder Sharma (PW-21) proved that the accused was driving the vehicle on the date of the accident. Constable Ghanshayam (PW-20) (sic) proved the entry in the daily diary. HC Yog Raj (PW-21) went to the Hospital and filed applications for medical examination. Sushil Kumar (PW-22), Bhagirath (PW-23), Manoj Kumar (PW-24), HC Sahib Singh (PW-25), ASI Chanchal Singh (PW-26) and ASI Vijay Kumar (PW-34) signed the inquest reports. KD Sharma (PW-27) prepared the challan. Hem Ram (PW-29) signed the F.I.R. ASI Sohan Singh (PW-29) investigated the matter. Dr H.S. Sekhon(PW-30) and Dr Sangeta Dhillon (PW-32) conducted the post-mortem examination. Inspector Shankuntla (PW-32) went to IGMC and filed an application for post-mortem examination of Parkash Chand. HC Vijay Kumar (PW-33) carried the injured to the hospital and rukka to the Police Station. . 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was driving the bus on the date of the incident. Inspector Shankuntla (PW-32) went to IGMC and filed an application for post-mortem examination of Parkash Chand. HC Vijay Kumar (PW-33) carried the injured to the hospital and rukka to the Police Station. . 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was driving the bus on the date of the incident. He stated that the bus was being driven slowly and he was not negligent. The witnesses deposed falsely against him, and he is innocent. He stated that he wanted to lead evidence, but subsequently he did not produce any evidence in his defence. 6. Learned Trial Court held that the prosecution’s version that the accused was talking to the passengers was not proved. The name of the person with whom the accused was talking was not furnished. The witnesses stated that there was no negligence on the part of the accused. Constable Rajinder Singh (PW-16), admitted in his cross-examination that the accident could occur due to a fault in the steering system. Therefore, 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 did not appreciate the prosecution’s evidence in its proper perspective. Jagdish Chand (PW-1) stated that the accident occurred because of the fault of the accused, who was talking to the passengers sitting on the bonnet. Santosh Kumar (PW-7) admitted that the accused was talking to the passengers. These statements proved that the accused was negligent. Statement of Rajinder Singh (PW-16) in the cross-examination could not have been relied upon because his report mentioned that there was no mechanical defect in the vehicle. 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 Y.P. Sood, 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’s witnesses consistently stated that the accused was talking to the passengers and that he could not control the bus, which led to the accident. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. The prosecution’s witnesses consistently stated that the accused was talking to the passengers and that he could not control the bus, which led to the accident. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Y.P.Sood, learned counsel for the respondent/accused, submitted that the 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, 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: “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. 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. (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. 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. 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. 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. Jagdish Chand (PW-1) stated that the driver changed the gear and moved the steering, and the bus fell. The speed of the bus was quite low. The accident occurred because of the negligence of the accused, as he was talking to the passengers. He admitted in his cross-examination that the place of the accident was uphill and the bus was moving very slowly. He denied that the vehicle developed a defect while changing the gear, and the steering could not be controlled, which led to the accident. No passenger was standing near the driver. He volunteered to say that passengers were sitting on the bonnet, and he disclosed it to the police. He denied that he had told the police that the accused was talking to the passengers standing near him. 15. The statement of this witness that the accused was talking to the passengers is not proved. He stated that he had not told the police that the accused was talking to the passengers sitting beside him, whereas this fact was mentioned in the F.I.R. (Ext.PW-28/A). He stated that the accused was talking to the passengers sitting on the bonnet, and this fact was disclosed by him to the police, but it was missing from the FIR (Ext.PW-28/A) and his attention was drawn towards it. He stated that the accused was talking to the passengers sitting on the bonnet, and this fact was disclosed by him to the police, but it was missing from the FIR (Ext.PW-28/A) and his attention was drawn towards it. Therefore, he has made a contradictory version regarding the passengers with whom the accused was talking, and his statement that the accused was talking to the passengers cannot be relied upon. 16. Santosh Kumar (PW-7) stated that passengers were sitting on the bonnet, but he was not aware what happened. He was permitted to be cross-examined. He admitted that the accused was talking to the passengers, who were sitting on the bonnet, due to which the accused lost control of the steering. The bus started moving towards the other side, and the passengers shouted. The accused tried to control the bus but could not do so. He stated in his cross-examination that he was sitting on a conductor’s seat. Bonnet was not visible from his seat. He admitted that the bus was being driven at normal speed and that the accused was not talking to the passengers sitting on the bonnet. The testimony of this witness that the accused was talking to the passengers sitting on the bonnet is made doubtful by his version in cross-examination that he was sitting on the conductor seat, and it was not possible to see the bonnet. Thus, his testimony that the accident occurred because the accused lost control while talking to the passengers is not acceptable. 17. It was submitted that Jagdish Chand (PW-1) stated that the accident occurred due to the negligence of the driver, and the learned Trial Court ignored this statement. This submission will not help the prosecution. 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. 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.” 18. 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.” 19. Therefore, the statement of this witness that the accident occurred due to the negligence of the driver is not sufficient to convict the accused. 20. Rajinder Singh (PW-16) examined the vehicle. He admitted in his cross-examination that steering of the vehicle can develop a defect while the vehicle is in motion. He had not opened the engine clutch and gear system and had issued a cursory report. His report mentions that there was no defect in the steering system, but the steering rod was bent because of the accident. The conductor’s side rear spring leaf was also damaged due to the accident. 21. Learned Trial Court had rightly held that the testimony of this witness was not reliable because he admitted that he had not opened the transmission system and had issued a cursory report. Further, he had found that the steering rod was bent and admitted that the steering rod can develop a defect when the bus is moving. He claimed that the steering rod was bent after the accident. However, there is nothing on record to support this opinion. Further, he had found that the steering rod was bent and admitted that the steering rod can develop a defect when the bus is moving. He claimed that the steering rod was bent after the accident. However, there is nothing on record to support this opinion. His statement in the cross- examination that the steering rod can develop defect while the bus was in motion provides a probable cause for the accident and the learned Trial Court was justified in extending its benefit to the accused. 22. The other witnesses did not say anything about the cause of the accident. Dhanwanti Devi (PW-2) and Madan Lal (PW-3) stated that they were not aware of how the accident had occurred. They denied that the accused was talking to the passengers sitting on the bonnet, and he lost control of the steering. 23. Sanjay Kumar (PW-4) stated that he did not know the reason for the accident. He denied that the accused was talking to the passengers and looking at them, and that he lost control of the steering. Mukesh Sharma (PW-5) stated that he did not know the reason for the accident. He could not say that the bus left its side, which caused the accident. 24. Nagu Ram (PW-6) stated that the accident occurred due to the negligence of the accused because the accused drove the vehicle towards the right side. He admitted in his cross- examination that he was sitting in the last seat, and the driver’s seat was not visible. He admitted that the accused was driving the bus at a slow speed and he did not know the reason for the accident. He could not say about the negligence of the accused because he was sitting in the last seat. Thus, he has diluted his statement in the examination-in-chief that the accident occurred due to the negligence of the accused. 25. Naresh Kumar (PW-8) stated that he did not know the reason for the accident. He denied that the accident occurred because of the negligence of the accused. 26. Lekh Ram (PW-9) stated that he did not know the reason for the accident. The bus was being driven at a slow speed. He was permitted to be cross-examined, and he denied that the accident occurred due to the negligence of the accused. 27. Rajesh Bhardwaj (PW-10) stated that he did not know the reason for the accident. 26. Lekh Ram (PW-9) stated that he did not know the reason for the accident. The bus was being driven at a slow speed. He was permitted to be cross-examined, and he denied that the accident occurred due to the negligence of the accused. 27. Rajesh Bhardwaj (PW-10) stated that he did not know the reason for the accident. He denied his previous statement recorded by the police. 28. Satya Prakash (PW-11) stated that he could not say that the accident occurred due to the negligence of the accused. He stated in his cross-examination that the accident occurred due to a mechanical defect. 29. Asha Sharma (PW-12) stated that the accident occurred due to the negligence of the accused. She stated in her cross-examination that she was not aware of the reason for the accident or whose fault led to the accident. She admitted that the bus was going uphill at a slow speed. 30. Hem Raj (PW-13) stated that he was a conductor. He was issuing the tickets, and the bus fell into the gorge. He has not attributed any negligence to the accused. 31. Rajesh Thakur (PW-14) stated that he was not travelling in the bus at the time of the accident. 32. Thus, no witness has attributed any negligence to the accused. The prosecution’s case that the accused was talking to the passengers sitting on the bonnet of the bus was not proved. The statement of mechanic made it probable that the accident had occurred due to mechanical defect. Therefore, the learned Trial Court had taken a reasonable view while holding that the prosecution had failed to prove the negligence of the accused, and this Court will not interfere with a reasonable view of the learned Trial Court even if another view is possible. 33. In view of the above, the present appeal fails and it is dismissed. Pending applications, if any, also stand disposed of. 34. 33. In view of the above, the present appeal fails and it is dismissed. Pending applications, if any, also stand disposed of. 34. 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. 35. A copy of the judgment, along with record of the learned Trial Court, be sent back forthwith.