2025:HHC:33388 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.442 of 2012 Reserved on: 18.09.2025 Date of Decision: 25.09.2025 State of H.P. ...Appellant Versus Ramesh Chand ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant/State : Mr. Prashant Sen, Deputy Advocate General. For the Respondent : Mr. Shashwant Dadwal and Dushyant Dadwal, Advocates. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 28.01.2012, passed by learned Judicial Magistrate First Class, Court No.1, Nurpur, District Kangra, H.P. (learned Trial Court) vide which the respondent (accused before the learned Trial Court) was acquitted of the charges framed against him. (Parties shall 1. Whether reporters of the local papers may be allowed to see the judgment? Yes 2 2025:HHC:33388 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 revision 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 304-A of the Indian Penal Code (IPC). It was asserted that informant Surinder Kumar (PW-1) is running a shop of photographer. He was returning to his shop on 14.09.2007. Ruby Kumari (PW-7) and her younger sister Shruti were going to their home. An HRTC bus bearing registration number HP-38-7622, being driven by the accused, hit Shruti at high speed. The accident occurred due to the high speed and negligence of the accused. An intimation was given to the police. An entry (Ext.PW-9/A) was recorded in the police station. HC Kulwinder Singh (PW-11) went to the spot for verification. Surinder Kumar (PW-1) made a statement (Ext.PW1/A), which was sent to the Police Station, where F.I.R. (Ext.PW-11/A) was registered. Photographs of the spot (Ext.P1 to P-3) were taken. HC Kulwinder Singh (PW-11) prepared the site plan (Ext.PW-11/C). He seized the vehicle vide memo (Ext.PW-2/A). He filed an application (Ext.PW-11/D) for conducting the post-mortem examination of 3 2025:HHC:33388 deceased Shruti. Post Mortem Report (Ext. PX) was issued stating that Shruti had died due to a crush injury to the scalp with multiple fractures of the parietal and occipital bone and brain lacerations. The inquest report(Ext.PW-11/E) was prepared. The documents of the vehicle were seized vide memo (Ext.PW-6/A). The accused produced his driving licence, which was seized vide memo (Ext.PW-11/F). Constable Narinder Sood (PW-10) conducted the mechanical examination of the bus and found that there was no fault in it, which could have led to the accident. Statements of prosecution witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the 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 304-A of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined twelve witnesses to prove its case. Surinder Singh (PW-1) is a witness to the recovery of the bus. Paras Ram (PW-2) is a witness to the recovery of the bus. Rajinder 4 2025:HHC:33388 Soga (PW-3) took photographs. Prem Singh (PW-4) is the eyewitness, but he did not support the prosecution’s case. Dr S.K.Mahajan conducted the post-mortem examination of Shruti. Constable Ajay Kumar (PW-6) is a witness to the recovery of the documents of the vehicle. Ruby Kumari (PW-7) is the elder sister of the deceased. Naisb Singh (PW-8) is the witness to the recovery of the documents. HC Bir Singh (PW-9) proved the entry in the daily diary. Constable Narinder Sood (PW-10) conducted the mechanical examination of the bus. HC Kulwinder Singh (PW-11) conducted the investigation. Constable Vinay Katoch (PW-12) is a witness to the recovery of the driving license. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was driving the bus at the relevant time. He stated that the bus had started from Nagini bus stop, and the accident occurred at a distance of about 150 feet. He admitted that he had produced his driving license. He stated that the child at once ran across the road. He tried to save the child, but could not do so. He did not produce any evidence. 6. Learned Trial Court held that Surinder Kumar (PW-1) did not specify the speed of the vehicle. He stated that the accident 5 2025:HHC:33388 occurred on the Kachha portion of the road, which is contrary to the site plan and the photographs, wherein the deceased and blood were shown near the divider of the road. Prem Singh (PW-4) stated that the bus was not being driven at a high speed. Ruby Kumari (PW7) claimed that the driver was at fault, but she could not explain the fault of the accused. The possibility that the child suddenly ran across the road could not be ruled out. The prosecution had failed to prove the rashness and negligence of the accused. 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 erred in acquitting the accused. The statements of prosecution witnesses were not properly appreciated. The accused was supposed to drive the vehicle with due care and caution. Learned Trial Court erred in holding that the negligence of the accused was not proved. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 6 2025:HHC:33388 8. I have heard Mr Prashant Sen, learned Deputy Advocate General, for the appellant/State and M/s Shashwant Dadwal and Dushyant Dadwal, learned counsel for the respondent/accused. 9. Mr Prashant Sen, learned Deputy Advocate General, for the appellant/State, submitted that the prosecution has succeeded in proving its case beyond a reasonable doubt. The accused admitted that he was driving the vehicle at the relevant time of the accident and that the accident had occurred. He claimed that the child suddenly ran across the road, but he did not provide any evidence to prove this fact. Learned Trial Court accepted the defence of the accused without any material. Hence, he prayed that the present appeal be allowed and the judgment of the learned Trial Court be set aside. 10. Mr Shashwant Dadwal, learned counsel for the respondent, submitted that no witness has given the approximate speed of the vehicle, and the mere use of ‘high speed’ is insufficient to infer the rashness or negligence of the accused. The dead body of the child and blood were shown in the middle of the road near the divider, and the possibility that the child suddenly ran across the road cannot be ruled out. Learned Trial Court had taken a 7 2025:HHC:33388 reasonable view while acquitting the accused, and this Court should not interfere with the judgment of the learned Trial Court. Hence, he prayed that the appeal be dismissed. He relied upon the judgment of this Court passed in State of H.P. vs. Baldev Singh 2024:HHC:12649 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 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 8 2025:HHC:33388 filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482- 83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive 9 2025:HHC:33388 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. 10 2025:HHC:33388 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.” 11 2025:HHC:33388 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 accused in his statement did not dispute the fact that he was driving the bus at the relevant time and that the accident had occurred. He claimed that the child suddenly rushed across the road, and he could not avoid the accident. Therefore, the only dispute is regarding the rashness or negligence of the accused. 15. The terms rashness or negligence were explained by the Hon’ble Supreme Court in Mahadev Prasad Kaushik v. State of U.P., (2008) 14 SCC 479: (2009) 2 SCC (Cri) 834: 2008 SCC OnLine SC 1551, at page 487: 26. Though the term “negligence” has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of hu- man affairs, would do, or doing something which a reason- able and prudent man would not do. 25. In Empress of India v. Idu Beg [ILR (1881) 3 All 776] Straight, J. made the following pertinent observations which 12 2025:HHC:33388 have been quoted with approval by various courts, including this Court: (ILR p. 780) “… criminal rashness is hazarding a dangerous or wan- ton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminal- ity lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.” 16. Surinder Kumar (PW-1) stated in his cross-examination that the deceased was walking towards the left side of the road on the kachha portion. Paras Ram (PW-2) stated that the bus was being driven towards its own side. Prem Singh (PW-4) did not support the prosecution’s case and stated in the cross-examination by learned counsel for the defence that the child suddenly ran across the road to pick up the Chappal. Ruby Kumari (PW-7) stated that the bus was being driven towards the right side of the road. She and Shruti were walking towards the left side of the road. The accident occurred on the Pucca portion of the road. She denied that Shruti had left her hand and suddenly ran across the road. Site plan (Ext.PW-11/C) and the photographs (Ext.P-1 to P-3) show the dead body and blood in the middle of the road near the divider. 13 2025:HHC:33388 17. The statements of the witnesses do not explain the photographs and the site plan.. The deceased was walking towards the left side of the road as per Surinder Kumar (PW-1) and Ruby Kumari (PW-7). Their statements do not explain how the dead body and blood were found in the middle of the road near the divider. 18. Ruby Kumari (PW-7) stated that the accused was driving the bus towards the right side of the road, and she was walking towards the left side. Her statement does not explain the accident. If she and Shruti were walking towards the left side and the bus was being driven towards the right side of the road, the bus could not have hit Shruti. Therefore, the statements of Ruby Kumari (PW-7) and Surinder Kumar (PW-1) were rightly discarded by the learned Trial Court, and the explanation provided by the accused, duly corroborated by the statement of Prem Singh (PW-4) that the child suddenly ran across the road was rightly accepted by the learned Trial Court. 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 14 2025:HHC:33388 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. 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, evenif 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 wherein 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 15 2025:HHC:33388 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. The version of the petitioner that he blew the horn near 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 that joined 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 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 16 2025:HHC:33388 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 driver’s act. 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), the deceased was hit by a motorcycle, which was travelling at 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 the deceased 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 17 2025:HHC:33388 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 conclusion drawn by the learned Trial Court that the accused was not negligent cannot be faulted. 23. The prosecution has relied upon the statement of Surinder Kumar (PW-1) that the bus was being driven at high speed; however, he has not given the approximate speed of the bus. 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, 18 2025:HHC:33388 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. 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 2003 Latest H.L.J. (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed: - 19 2025:HHC:33388 “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. Paras Ram (PW-2) admitted in his cross-examination that the Nagini bus stop was located at a distance of 30-35 meters from the place of the accident. Prem Singh (PW-4) stated in his cross-examination that the Nagini bus stop was located at a distance of 100-150 meters, where every bus stops. HC Kulwinder Singh (PW-11) admitted in his cross-examination that Nagini Bus Stand is located at a distance of 50-100 meters from the place of the accident. He also admitted that there were no skid marks on the 20 2025:HHC:33388 spot. Thus, all the witnesses have admitted the existence of a bus stop at some distance from the place of the accident. It is difficult to believe that the bus would have attained high speed after covering the distance of 50-100 meters. The absence of skid marks on the spot also does not corroborate the prosecution’s version that the bus was being driven at a high speed. 29. No other negligence was attributed to the accused. Thus, 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 even if another view is possible. 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 it is dismissed and so are the pending miscellaneous applications, if any. 32. Record of learned Trial Court be sent back forthwith along with a copy of the judgment. (Rakesh Kainthla) Judge 25th September 2025 (ravinder)