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2025 DAILYLAW 3712 (HP)

State of H. P. v. Dharuv Kumar

2025-09-04

Rakesh Kainthla

body2025
JUDGMENT : RAKESH KAINTHLA, J. 1. The present appeal is directed against the judgment dated 03.10.2012 passed by learned Chief Judicial Magistrate, Una, District Una, H.P. (learned Trial Court) vide which the respondent (accused before the learned Trial Court) was acquitted of the offences with which he was charged (sic). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code (hereinafter referred to as ‘IPC’). It was asserted that informant Joginder Singh (PW1) was running a shop of kiryana at Dangoli main road. He was standing outside his shop with Kehar Singh (PW2) at about 04.40 PM. A car bearing registration No. HP53A-1329 came from the Bangana at high speed and hit Ajmer Singh (PW3), walking towards the left side of the road. Ajmer Singh fell, and the car crushed his left leg. The informant and Kehar Singh (PW2) pushed the car and removed Ajmer Singh (PW3). The driver identified himself as Dhruv Kumar. Ajmer Singh was taken to the hospital in the same vehicle. The accident occurred due to the negligence of the accused. An intimation was given to the police, and an entry (Ex.PW10/A) was recorded in the Daily Diary. HC Madan Mohan (PW11) was directed to visit the hospital to verify the correctness of the information. HC Madan Mohan (PW11) and Constable Rampal went to the hospital where Joginder Singh (PW1) made a statement (Ex.PW1/A), which was sent to the Police Station, where FIR (Ex.PW9/A) was registered. An application (Ex.PW11/A) was filed for conducting the medical examination of Ajmer Singh. Dr. Sunil Sharma (PW8) conducted the medical examination of Ajmer Singh and found that he had suffered grievous injuries which could have been caused within six hours of examination in a road accident. He issued the MLC (Ex. PW8/A). HC Madan Mohan (PW11) visited the spot and prepared a site plan (Ex.PW11/B). He seized the vehicle bearing registration No. HP53A-1329 along with documents vide memo (Ex.PW2/A). He issued the MLC (Ex. PW8/A). HC Madan Mohan (PW11) visited the spot and prepared a site plan (Ex.PW11/B). He seized the vehicle bearing registration No. HP53A-1329 along with documents vide memo (Ex.PW2/A). Sarup Lal (PW5) conducted the mechanical examination of the vehicle and found that there was no mechanical defect in the vehicle which could have led to the accident. Statements of the prosecution 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. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, notice of accusation was put to him for the commission of offences punishable under Sections 279, 337 and 338 of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined 11 witnesses to prove its case. Joginder Singh (PW1), Kehar Singh (PW2) and Mangal Singh (PW4) are the eyewitnesses. Ajmer Singh (PW3) is the injured. Sarup Lal (PW5) conducted the mechanical examination of the vehicle. Sanjeev Kumar (PW6) took the X-rays of the injured. Vinod Kumar (PW7) took the photographs. Dr. Sunil Sharma (PW8) conducted the medical examination of the injured. ASI Karam Chand (PW9) signed the FIR. HHC Paramjit Singh (PW10) proved the entry in the daily dairy. HC Madan Mohan (PW11) conducted the investigation. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. The document (Ex. DA) was tendered on his behalf in defence. 6. Learned Trial Court held that Mangal Singh (PW4) admitted in his cross-examination that he had not seen the accident. Statements of Joginder Singh (PW1) and Kehar Singh (PW2) contradicted each other on material aspects, which made them doubtful. Ajmer Singh (PW3) stated that he was crossing the road at the time of the accident. He also admitted that he had stumbled on the road. His testimony made the prosecution’s case highly doubtful; 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 failed to appreciate the evidence in its proper perspective. The statements of Joginder Singh (PW1) and Kehar Singh (PW2) were discarded without any reason. Parts of the testimony of Ajmer Singh were picked up to record the acquittal. The statements of Joginder Singh (PW1) and Kehar Singh (PW2) were discarded without any reason. Parts of the testimony of Ajmer Singh were picked up to record the acquittal. It was proved that the accused was driving the vehicle in a rash and negligent manner, which led to the accident. Learned Trial Court erred in acquitting 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. N.K. Thakur, learned Senior Counsel, assisted by Mr. Divya Raj Singh, 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 statements of prosecution witnesses proved that the accused was driving the vehicle in a rash and negligent manner, which led to the accident. Parts of the testimony of Ajmer Singh (PW3) were picked up by the learned Trial Court to record the acquittal, which is not permissible. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr. N.K. Thakur, learned Senior Counsel for the respondent/accused, submitted that the learned Trial Court rightly held that Ajmer Singh (PW3) had suddenly crossed the road, which led to the accident. Ajmer Singh was not declared hostile, and the learned Trial Court was justified in relying upon his testimony. When two versions are appearing on record, the version in favour of the accused has to be preferred. The learned Trial Court has taken a reasonable view, 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. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. Therefore, 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 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: “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 [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. 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. 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. … 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. 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. The victim, Ajmer (PW3), stated that he was going to buy sweets at the shop. When he was crossing the road, a vehicle hit him. He fell and sustained injuries. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The victim, Ajmer (PW3), stated that he was going to buy sweets at the shop. When he was crossing the road, a vehicle hit him. He fell and sustained injuries. He stated in his cross- examination that the car had hit his left side and he fell after a distance of 4-5 feet, in the middle of the road. His left leg was crushed under the tyre. He admitted that he was walking briskly on the pucca portion of the road. 15. He was not declared hostile. His testimony shows that he was crossing the road at the time of the accident. 16. Joginder Singh (PW1) stated that a car came from Hamipur at high speed and hit Ajmer Singh. The accident occurred due to the negligence of the accused, who was driving the vehicle. He stated in his cross-examination that Ajmer Singh fell on the pucca portion of the road and in the middle of the road. His testimony also supports the victim’s statement that the accident occurred in the middle of the road. 17. Kehar Singh (PW-2) stated that the vehicle bearing registration No. HP 53A-1329 came in a high speed and hit Ajmer Singh. The accident occurred due to the negligence of the accused. He stated in his cross-examination that the child fell in the middle of the road after the car had hit him. 18. The testimony of this witness corroborates the statement of the injured that the accident occurred in the middle of the road when the victim was crossing the road. 19. It was laid down by the Hon'ble Supreme Court in Mahadeo Hari Lokre v. State of Maharashtra, (1972) 4 SCC 758 , that if a person suddenly crosses the road, the driver may not be able to avoid the accident, and he cannot be held liable for negligence. It was observed at page 759:- “4... But the case assumes a different complexion if we agree with the sole eyewitness in the case, Dayanand PW 1, that at the time of the impact, Ravikant was actually crossing the road from West to East. It was observed at page 759:- “4... But the case assumes a different complexion if we agree with the sole eyewitness in the case, Dayanand PW 1, that at the time of the impact, Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the road from West to East without taking note of the approaching bus, there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road, the bus driver, however, slowly he is driving slowly, may not be in a position to avoid the accident. Therefore, it will not be possible to hold that the bus driver was negligent.” 20. This Court has also taken a similar view in Gurcharan Singh v. State of Himachal Pradesh, 1989 SCC OnLine HP 18 : 1990 ACJ 598 : 1991 Cri LJ 771 : (1990) 2 TAC 261. It was observed at page 600:- “14. Coming to the statements of witnesses on this aspect, it has been stated that the truck was moving at high speed, but it has not been said what that speed actually was. To say that a vehicle was moving at a high speed is neither proper nor legal evidence of high speed, nor in any way indicate rashness on the part of the driver. The prosecution should have been exact on this aspect as the speed of the vehicle is an essential point to be seen and proved in a case under section 304-A of the Penal Code, 1860. Further, there are no skid marks, which eliminates the evidence of the high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 feet from the place of the accident. This appears to be exaggerated. However, it is not a long distance looking at the two points, viz., the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of the curve, which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Ghanshyam, PW 7, Chander Kanta, PW 8, mother, and a few other witnesses were there at that particular time. Rather, the depositions of these witnesses indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move faster than their parents and are in advance of them while walking. This appears to have happened in the present case. A minute examination of the circumstances of this case and the evidence brought on the record discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses. That is why, in their deposition, they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that the child got frightened by the blowing of the horn by him and started crossing the road, which could not be seen by him, and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In such a situation he cannot be held negligent; rather it appears that the parents of the child were negligent in not taking proper care of the child and allowed him to come alone to the road while they were somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in contact with him as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident actually took place has not been clearly and comprehensively stated by any of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished.” (Emphasis supplied) 21. A similar view was taken in State of H.P. vs. Manpreet Singh, Latest HLJ 2008 (1) 538, wherein it was observed as under:- 7. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent, but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash and negligent act of the accused was the causa causans and not the causa sine qua non (cause of the proximate cause). There must be some nexus between the death of a person and with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by a motorcycle, which was in a high speed, but the speed is not a criterion to hold the act as rash or negligent. There must be some nexus between the death of a person and with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by a motorcycle, which was in a high speed, but the speed is not a criterion to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn, and he deceased died. stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1), who was a pillion rider with him. Ajay Kumar (PW1) has admitted that this version is that the respondent had blown the horn, and Daya Ram, on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its Driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased, knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road, but when the motorcycle reached near him, he darted before it, and the accident took place. Thus, in my opinion, the prosecution could not prove the offence charged against the respondent beyond a reasonable doubt that the respondent was driving rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly, the appeal is dismissed. The respondent is discharged of his bail bonds entered upon by him at any stage of the trial. 22. Thus, the learned Trial Court was justified in relying upon the testimony of the injured to hold that the accused was not negligent. 23. The prosecution’s witnesses stated that the vehicle was being driven at a high speed, which amounts to negligence. They have not given any approximate speed of the vehicle. 22. Thus, the learned Trial Court was justified in relying upon the testimony of the injured to hold that the accused was not negligent. 23. The prosecution’s witnesses stated that the vehicle was being driven at a high speed, which amounts to negligence. They have not given any approximate speed of the vehicle. It was laid down by the Hon'ble Supreme Court in Mohanta Lal vs. State of West Bengal, 1968 ACJ 124 that the use of the term ‘high speed’ by a witness amounts to nothing unless it is elicited from the witness what is understood by the term 'high speed'. It was observed: “Further, no attempt was made to find out what this witness understood by high speed. To one man, the speed of even 10 or 20 miles per hour may appear to be high, while to another, even a speed of 25 or 30 miles per hour may appear to be a reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently. The evidence of the two conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath Dey was struck by the bus, though not from the front side of the bus, as he did not fall in front of the bus but fell sideways near the corner of the two roads. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death.” 24. This position was reiterated in State of Karnataka vs. Satish, 1998 (8) SCC 493 , wherein it was held: “Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution, and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject, of course, to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur.” 25. This Court also held in State of H.P. Vs. Madan Lal, Latest HLJ (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed:- “It may be pointed out that speed alone is not a criterion to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.” 26. This position was reiterated in State of H.P. Vs. Parmodh Singh, 2008 Latest HLJ (2) 1360 wherein it was held:- “Thus, negligent or rash driving of the vehicle has to be proved by the prosecution during the trial, which cannot be automatically presumed even on the basis of the doctrine of res ipsa loquitur. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criterion to establish the fact of rash and negligent driving of a vehicle. It is only a rash and negligent act as its ingredients, to which the prosecution has failed to prove in the instant case.” 27. Thus, the accused cannot be held liable merely because the witnesses have stated that he was driving the vehicle at a high speed. 28. No other point was urged. 29. It is only a rash and negligent act as its ingredients, to which the prosecution has failed to prove in the instant case.” 27. Thus, the accused cannot be held liable merely because the witnesses have stated that he was driving the vehicle at a high speed. 28. No other point was urged. 29. Therefore, the learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the learned Trial Court while deciding an appeal against the acquittal. 30. No other point was urged. 31. In view of the above, the judgment passed by the learned Trial Court is sustainable. Hence, the present appeal fails, and the same is dismissed. 32. Record of learned Trial Court be sent back forthwith along with a copy of the judgment. Pending applications, if any, also stand disposed of.