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Himachal Pradesh High Court · body

2025 DAILYLAW 3902 (HP)

State of H. P. v. Mukesh Kumar

2025-10-07

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 19.12.2013, passed by learned Judicial Magistrate First Class, Court No.3, Ghumarwin, District Bilaspur, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of offences punishable under Sections 279, 337 and 304-A of the 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 before the learned Trial Court for the commission of offences punishable under Sections 279, 337 and 304-A of the IPC. It was asserted that Jodh Singh (PW3) was running a shop at Seu Bridge. Many pilgrims were walking at Seu Bridge on 24.4.2006, at about 9.25 AM. They were going to Baba Balaknath Deotsidh. A Tata Sumo bearing registration No. PB08-AD-8587 went towards the Talai Bazar at a high speed and hit a boy and a man. The driver stopped the vehicle after some distance and ran away. The injured revealed his name as Tarsem Lal, and the name of the boy was found to be Lucky. The injured were taken to the hospital. An intimation was given to the police. An entry (Ex.PW2/A) was recorded in the Police Station. ASI Hari Ram (PW2) and HC Raj Kumar (PW6) went to the spot for verification of the information. Jodh Singh made a statement (Ex.PW2/B), which was sent to the Police Station, where FIR (Ex.PW2/C) was registered. ASI Hari Singh (PW2)  investigated  the  matter. He  prepared  the  site  plan (Ex.PW2/E). Ajay Kumar took the photographs (Ex. P1 to Ex. P8) whose negatives are Ex. P9 to Ex. P16. The vehicle was seized vide memo (Ex.PW2/F). ASI Hari Singh filed an application (Ex.PW2/G) for material examination of the injured. The child was declared dead in the hospital. Inquest (Ex.PW2/H) was conducted. An application (Ex.PW2/J) was filed for the postmortem examination of the child, and a report (Ex.PW2/H) was issued. The mechanical examination of the vehicle was conducted by HC Dev Raj (PW7), who found that there was no mechanical defect in the vehicle which could have led to the accident. A certificate (Ex.PW2/U) was issued stating that the accused was driving the vehicle at the relevant time. The mechanical examination of the vehicle was conducted by HC Dev Raj (PW7), who found that there was no mechanical defect in the vehicle which could have led to the accident. A certificate (Ex.PW2/U) was issued stating that the accused was driving the vehicle at the relevant time. Medical examination of Tarsem Singh was conducted by Dr Manjit Singh (PW1), who found that he had suffered injuries which could have been caused in a motor vehicle accident. He advised X-ray examination. Dr D. Bhagnal (PW8) conducted an X-ray examination and found that there was no fracture. He issued a report (Ex.PW8/A). Dr Manjeet Singh (PW1) issued a final report stating that Tarsem Singh had sustained simple injuries which could have been caused in a motor vehicle accident. The statements of prosecution witnesses were recorded as per their version, and after completion of the investigation, a challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court put the notice of accusation to the accused for the commission of offences punishable under Sections 279, 337 and 304-A of IPC, to which he pleaded not guilty and claimed to be tried. 4. Prosecution examined 09 witnesses to prove its case. Dr Manjit Singh (PW1) conducted the medical examination of Tarsem Singh. Hari Ram (PW2) conducted the investigation. Jodh Singh (PW3) is the informant. Constable Shashi Kant (PW4) is the witness to the recovery. HC Ramesh Kumar (PW5) proved the entry in the daily diary. HC Raj Kumar (PW6) is the witness to the seizure of the vehicle. HC Dev Raj (PW7) conducted the mechanical examination of the vehicle. Dr D. Bhagnal (PW8) went through the X-ray. HC Thakur Dass (PW9) signed the FIR. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He stated that the vehicle was parked in the mechanic’s shop three days before the incident. He did not produce any evidence in defence. 6. Learned Trial Court held that the informant Jodh Singh did not support the prosecution’s case and denied that the negligence of the accused had led to the accident. The prosecution failed to prove that the accused was driving the vehicle at the time of the accident. The injuries and death are not in dispute. 6. Learned Trial Court held that the informant Jodh Singh did not support the prosecution’s case and denied that the negligence of the accused had led to the accident. The prosecution failed to prove that the accused was driving the vehicle at the time of the accident. The injuries and death are not in dispute. Therefore, the accused was acquitted of the commission of offences punishable under Section 279, 337 and 304-A 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 failed to appreciate the prosecution’s evidence in its proper perspective. The testimonies of the prosecution witnesses were discarded for untenable reasons. The learned Trial Court erred in closing the prosecution’s evidence without ensuring the service of summons to the prosecution’s witnesses. The notices were also not issued to the Investigating Officer and the Station House Officer for supplying the correct address of the witnesses. The witnesses were residing outside the State, and they were required to be summoned through the concerned Chief Judicial Magistrate. Coercive steps should have been taken to ensure the presence of the witnesses. The informant admitted his signature on his statement on record under Section 154 of Cr.P.C. The photographs taken after the accident show the blood on the front tyre of the vehicle. These circumstances established the prosecution’s case. 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 Prashant Sen, learned Deputy Advocate General, for the appellant-State and Mr Vijay Singh Bhatia, learned counsel for the respondent/accused. 9. Mr Prashant Sen, learned Deputy Advocate General, for the appellant-State, submitted that the learned Trial Court erred in closing the evidence of the prosecution and in not providing a proper opportunity to the prosecution to prove its case. The notices were not issued to the SHO and the Investigating Officer to file the correct address. The informant admitted his signature on the statement recorded under Section 154 of Cr.P.C.. He was an illiterate person and would not have put his signature on the document without reading its contents. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. The informant admitted his signature on the statement recorded under Section 154 of Cr.P.C.. He was an illiterate person and would not have put his signature on the document without reading its contents. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Vijay Singh Bhatia, learned counsel for the respondent/accused, submitted that the summons was repeatedly issued to the witnesses and the prosecution failed to complete the evidence without reasonable cause; therefore, the Court was left with no option but to close the evidence. There was no evidence that the accused was driving the vehicle or that his rashness or negligence led to the accident. Hence, 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) 5 SCC 433 : 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 at page 438: 23. Recently, in Babu Sahebagouda Rudragoudar v. State of Karnataka [Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149 : (2024) 3 SCC (Cri) 535], 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 : (SCC pp. 163-64, paras 38-41) “38. First of all, we would like to reiterate the princi- ples laid down by this Court governing the scope of in- terference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. It was observed thus : (SCC pp. 163-64, paras 38-41) “38. First of all, we would like to reiterate the princi- ples laid down by this Court governing the scope of in- terference 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 [Chan- drappa 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 powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to re- view, reappreciate and reconsider the evi- dence 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 of law. (3) Various expressions, such as “substantial and compelling reasons”, “good and suffi- cient grounds”, “very strong circum- stances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseolo- gies 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 re- view 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 ac- cused. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the ac- cused. 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 un- less he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of the ac- cused's innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” ’ 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appel- late 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. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 24. 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 mis- reading/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. This  position  was  reiterated  in  State  of  M.P.  v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed: 21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149 ; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471 14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. Record of learned Trial Court shows that notice of accusation was put to the accused on 25.5.2011. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. Record of learned Trial Court shows that notice of accusation was put to the accused on 25.5.2011. The matter was listed for recording the statements of prosecution witnesses from 12.9.2011 to 16.9.2011; however, no witness was produced, and the summons issued to the witnesses were also not returned by the prosecution. Hence, the matter was listed from 20.2.2012 to 24.2.2012. The matter was preponed and was taken up on 16.1.2012. The witnesses were ordered to be summoned for 21.2.2012 and 22.2.2012. Two witnesses were examined on 22.2.2012. One witness was examined on 24.2.2012. The witnesses were again ordered to be summoned for 22.6.2012 to 26.6.2012. One witness was examined on 22.6.2012, and one witness each was examined on 25.6.2012 and 26.6.2012. No other witness was present. The witnesses were ordered to be summoned for 7.12.2012, but no witness was present. The summons were also not returned. The matter was listed on 11.3.2013, 13.3.2013, 14.3.2013 and one witness each was examined on 13.3.2013 and 14.3.2013. No other witness was present. PW4 was not summoned for want of a correct address. The matter was listed for 5.6.2013 and 7.6.2013. The correct address of PW4 was not filed, and he could not be summoned. No witness was present, nor were the summons returned on the date fixed. The matter was listed on 31.7.2013, on which date the statement of one witness was recorded. The summons of other witnesses were not returned. The witnesses were again summoned for 19.9.2013, but no witness was present. The matter was adjourned for 17.10.2013, and it was made clear that it was a last opportunity granted to produce the evidence. Again, no witness appeared before the Court on 17.10.2013; hence, the learned Trial Court closed the evidence by the order of the Court. 16. The record shows that the witnesses were not being produced, and the summons issued to the witnesses were also not being returned. The correct addresses were not being filed. The Court granted the last opportunity, but no efforts were made to serve the summons or produce any witness. It was laid down by the Hon’ble Supreme Court in Shailendra Kumar vs State 2002 (1) SCC 655 that it is the duty of the Investigating Officer to be present and bring the witnesses. The correct addresses were not being filed. The Court granted the last opportunity, but no efforts were made to serve the summons or produce any witness. It was laid down by the Hon’ble Supreme Court in Shailendra Kumar vs State 2002 (1) SCC 655 that it is the duty of the Investigating Officer to be present and bring the witnesses. This position was reiterated in Zahira H. Sheikh & Anr vs State of Gujarat & Ors. 2004 (4) SCC 158 . 17. This case demonstrates the apathy of the prosecution in producing the witnesses or effecting the service upon the witnesses. The Court was issuing summons repeatedly, but these were not being served. The Court directed that the correct address be filed, but the correct address was also not filed. Thus, the prosecution did not appear to be serious in producing the witness or effecting the service. In these circumstances, the Court had no option but to close the evidence. The accused could not be made to appear before the Court repeatedly only to be told to go back because the prosecution had not effected service of the witnesses or produced the evidence. 18. It was submitted that the notice should have been issued to the Investigating Officer or the SHO. This submission is not acceptable. The Court was passing orders in the presence of a learned Assistant Public Prosecutor. It was his duty to communicate the orders of the Court to the police or to discuss the matter with the police if the witnesses were not being produced or the summons was not being effected. The Court had passed the order and issued the summons. It was for the prosecution to comply with the order and to effect the service. Once the summons was not executed and the correct address was not filed, the Court could not be expected to issue the notices to the SHO. The SHO, being in charge of the Police Station, was aware of the fact that summons were being received from the Court, and it was for him to find out whether the summons were being served upon the witnesses or not. The Court had summoned the Investigating Officer, and he also deposed before the Court. He knew that the Court was proceeding with the trial. It was for him to ensure the presence of the witnesses, but he failed to do so. The Court had summoned the Investigating Officer, and he also deposed before the Court. He knew that the Court was proceeding with the trial. It was for him to ensure the presence of the witnesses, but he failed to do so. Therefore, the blame cannot be shifted to the Court for failure to issue the notice. The State is well advised to put its own house in order and ensure that the witnesses are produced and the summons are served before blaming the Court. 19. Hence, the submissions that the Court erred in closing the evidence cannot be accepted. The State had created such circumstances that the Court was left with no other option but to close the evidence. 20. Jodh Singh (PW3) did not support the prosecution’s case. He stated that an accident occurred at Talai. He did not remember the registration number of the vehicle or the name of the driver. He was permitted to be cross-examined. He admitted that pilgrims were walking on the bridge. He denied, for want of knowledge, that the accused was driving a vehicle bearing registration  No.  PB-08-AD-8587  and  hit  Tarsem  Singh and Lucky. He volunteered to say that he had seen the injured on the spot. He admitted that the injured were taken to the hospital. He denied that the driver stopped the vehicle and ran away from the spot. He denied his previous statement recorded by the police. 21. This witness has nowhere stated that the accused was driving the vehicle at the time of the accident or that his negligence led to the accident. Therefore, the learned Trial Court had rightly held that the testimony of this witness does not support the prosecution’s case. 22. It was submitted that this witness had put his signature on the statement recorded under Section 154 of Cr.P.C. He is a literate person who would not put his signature on the document without reading it. This submission will not help the prosecution. The statement recorded under Section 154 of Cr.P.C. does not constitute the substantive piece of evidence, and no advantage can be derived from it. He has not supported the prosecution’s version on oath, and recourse cannot be had to the statement recorded under Section 154 of Cr.P.C. 23. The prosecution relied upon the certificate (Ex.PW2/U) issued by the accused that he was the driver on the date of incident. He has not supported the prosecution’s version on oath, and recourse cannot be had to the statement recorded under Section 154 of Cr.P.C. 23. The prosecution relied upon the certificate (Ex.PW2/U) issued by the accused that he was the driver on the date of incident. The statement made by the accused (Ex.PW2/U) is in the nature of a statement made to the Investigating Officer during the course of investigation and is hit by Section 162 of Cr.P.C. It is also in the nature of confession made by the accused to the police which is inadmissible as per Section 25 of the Indian Evidence Act. 24. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by an accused during the investigation is hit by Section 162 of Cr.P.C. (corresponding to Section 181 of BNSS) and cannot be used as a piece of evidence. Further, the confession made by the accused is inadmissible because of Section 25 of the Indian Evidence Act (corresponding to Section 23 of BSA). It was observed at page 568:- 44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47 ] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 Cr.PC.” 25. Therefore, no advantage can be derived from the certificate (Ex.PW2/U). 26. No other witness has deposed about the accident or the fact that the accused was driving the vehicle. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 Cr.PC.” 25. Therefore, no advantage can be derived from the certificate (Ex.PW2/U). 26. No other witness has deposed about the accident or the fact that the accused was driving the vehicle. Therefore, the learned Trial Court had rightly held that the prosecution’s evidence did not prove that the accused was driving the vehicle or that his negligence led to the accident. The learned Trial Court had taken a reasonable view which could have been taken based on the evidence, and no interference is required with the judgment of the learned Trial Court. 27. No other point was urged. 28. Consequently, the present appeal fails, and it is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. 29. 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/accused is directed to furnish bail bonds in the sum of  Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 30. Records be sent back to the learned Trial Court forthwith, along with a copy of the judgment.