2025:HHC:28401 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 358 of 2012 Reserved on: 4.8.2025 Date of Decision: 22.8.2025. State of H.P. ...Appellant Versus Budhi Ram ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ajit Sharma, Deputy Advocate General. For the respondent : Mr. Umesh Kanwar, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 15.5.2012, passed by learned Judicial Magistrate First Class, Court No.2, 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 427 of the Indian Penal 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:28401 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 427 of the IPC and Section 196 of the Motor Vehicles Act (MV Act). It was asserted that the informant, Balbir Singh (PW2), was driving his Maruti car bearing registration No. HP-24A-2617 on 02.6.2009. He reached Amarpur at 4.15 PM. A motorcycle bearing registration No. HP- 23B-1482 came to the spot at high speed towards the wrong side. The motorcycle hit the car. The motorcyclist and pillion rider sustained injuries. They were taken to the hospital, and an intimation was given to the police. An entry No. 20 (Ex.PW11/B) was recorded. SI Sukhdev (PW10) and HC Thilu Ram visited the spot to verify the correctness of the information. Balbir Singh (PW2) made a statement (Ex.PW2/A), which was sent to the Police Station, where FIR (Ex.PW10/A) was registered. SI Sukhdev prepared the site plan (Ex.PW10/C). He seized the Maruti Car bearing registration No. HP-24A-2617 and 3 2025:HHC:28401 motorcycle bearing registration No. HP-23B-1482, along with documents vide seizure memos (Ex.PW2/B and Ex.PW3/A). He took the photographs of the spot (Ex.PW10/D1 to Ex.PW10/D5), whose negatives are Ex.PW10/D6 to Ex.PW10/D10. He filed an application for the medical examination of the injured. Dr. Rishi Tandon (PW1) examined accused Budhi Ram and injured Sandeep Kumar (PW5) and found that they had sustained simple injuries which could have been caused within six hours of examination. He issued MLCs (Ex.PW1/B & Ex.PW1/F). HHC Dev Raj (PW6) examined the vehicles and found that there was no mechanical defect in them which could have led to the accident. He issued the report (Ex.PW6/A). The statements of witnesses were recorded as per their version, and after the 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 427 of IPC and Section 196 of MV Act, to which he pleaded not guilty and claimed to be tried. 4 2025:HHC:28401 4. Prosecution examined 11 witnesses to prove its case. Dr. Rishi Tandon (PW1) conducted the medical examination of the injured. Balbir Singh (PW2), Kushal Kumar (PW3), Sukhdev (PW4) and Sandeep Kumar (PW5) are the eyewitnesses. HHC Dev Raj (PW6) examined the vehicles. HHC Ravi Kumar (PW7) is the witness to Sapurdari. Sunil Kumar (PW8) and Moti Ram (PW9) are the witnesses to the recovery. Inspector Sukh Dev (PW10) conducted the investigation. Jogesh Kumar (PW11) proved the entry in the daily diary. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He claimed that he was innocent. He stated that he wanted to lead evidence in defence; however, he subsequently made a statement that he did not want to lead any defence evidence. 6. Learned Trial Court held that Sandeep Kumar (PW5) and Sukh Dev (PW4) stated that the accident occurred due to the negligence of Balbir Singh (PW2), who was driving the car. Kushal Kumar (PW3) came to the spot after the incident. The vehicles were moved from their original positions. Hence, the photographs and the site plan did not depict the spot position at 5 2025:HHC:28401 the time of the accident. The prosecution failed to prove that the accident occurred due to the negligence of the accused. The accused failed to produce any insurance certificate. Hence, he was acquitted of the commission of offences punishable under Sections 279, 337 and 427 of the IPC but was convicted of the commission of an offence punishable under Section 196 of the MV Act. 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 material on record. The testimonies of prosecution witnesses were discarded for untenable reasons. The minor contradictions were blown out of proportion. Informant Balbir Singh specifically stated that the accused was driving the motorcycle at a high speed and towards the wrong side of the road. The statements of Sukh Dev (PW4) and Sandeep (PW5) were wrongly relied upon. Both these witnesses were declared hostile. Learned Trial Court erred in holding that the vehicles had moved from their original position. The road was wide and there was sufficient space for two vehicles to move. Learned Trial Court held that there were skid marks, but the high speed by itself is 6 2025:HHC:28401 not sufficient to infer negligence. The accused did not produce any evidence. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court, acquitting the accused, be set aside. 8. I have heard Mr. Ajit Sharma, learned Deputy Advocate General, for the appellant-State and Mr. Umesh Kanwar, learned counsel for the respondent/accused. 9. Mr. Ajit Sharma, learned Deputy Advocate General, for the appellant-State, submitted that the learned Trial Court erred in acquitting the accused. It was duly proved on the record that the accused was driving the motorcycle towards the wrong side of the road, and his negligence led to the accident. Learned Trial Court erred in relying upon the statements of the hostile witnesses to conclude that Balbir Singh was negligent. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr. Umesh Kanwar, learned counsel for the respondent/accused, submitted that the learned Trial Court had taken a reasonable view while acquitting the accused. This Court should not interfere with the reasonable view of the learned 7 2025:HHC:28401 Trial Court, even if another view is possible. Informant Balbir Singh (PW2) admitted in his cross-examination that the vehicle had moved, and learned Trial Court had rightly held that the photographs and the site plan did not depict the original spot position. The prosecution witnesses deposed that the car was being driven at a high speed, which is apparent from the skid marks on the road. Balbir Singh could not control the car due to the high speed, and this led to the accident. 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 8 2025:HHC:28401 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. (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. 9 2025:HHC:28401 (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) 10 2025:HHC:28401 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. 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 11 2025:HHC:28401 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. Balbir Singh (PW2) admitted in his cross- examination that he stopped his car at a distance of 4-5 ft. from the place of the incident. He volunteered to say that he had applied his brakes, the car stopped after 4-5 ft., and the tyre marks were imprinted on the road. The testimony of this witness shows that the car did not stop at the place of the incident, but after a distance of 4-5 feet. Hence, the inference drawn by the learned Trial Court that the vehicles had moved from the place of the accident was based on the evidence on record. 15. The statement of this witness that he had applied the brakes, but the car stopped at a distance of 4-5 ft. and the tyre marks were imprinted on the road, shows that the car was being driven at a high speed and that is why the car could not be brought to a halt immediately after applying the brakes. The skid marks on the road also corroborate this inference. 12 2025:HHC:28401 Therefore, the learned Trial Court had rightly held that Balbir Singh was driving the car at a high speed and he could not bring the car to a halt immediately. 16. Sukh Dev (PW4) stated that the accident occurred due to the negligence of the driver of the car. He was permitted to be cross-examined, but he denied that the accident occurred due to the negligence of the accused. He stated in the cross- examination by the learned defence counsel that the motorcycle was being driven towards the correct side and the car was being driven at a high speed. The accident could have been avoided had the car been driven towards its correct side. It is apparent from the testimony of this witness that he has not supported the prosecution’s version regarding the negligence of the accused. 17. Sandeep Kumar (PW5) stated that the car was being driven at a high speed. The car did not leave any space for the motorcycle and hit the motorcycle. He was permitted to be cross-examined. He denied that the accident occurred due to high speed and the negligence of the accused. He stated in the cross-examination by learned defence counsel that the car had moved after hitting the motorcycle, and the driver of the car 13 2025:HHC:28401 could have avoided the accident by driving the car towards its side. The testimony of this witness also does not establish the negligence of the accused; rather, it shows that the accident occurred due to the negligence of the driver of the car. Therefore, the prosecution cannot derive any advantage from his testimony. 18. Kushal Kumar (PW3) stated in his cross-examination that he saw the incident after the impact. He inferred from the spot position and the damage to the car that the motorcycle was being driven at a high speed. The testimony of this witness shows that he is not a witness to the actual incident, and he has drawn the inferences based on the spot position. It was laid down by Goddard LJ in Hollington v. Hawthorn 1943 KB 507 at 595 that a witness cannot express any opinion. 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.” 19. Therefore, the testimony of Kushal Kumar does not establish the negligence of the accused. 14 2025:HHC:28401 20. Balbir Singh (PW2) stated that the motorcycle was being driven towards the wrong side of the road and hit the car. It is difficult to rely upon his testimony. The site plan (Ex.PW10/C) and the photographs (Ex.PW10/D1 to Ex.PW10/D5) show the Maruti Car and motorcycle towards their respective left sides. In fact, the motorcycle is lying on the kuchha portion of the road. Therefore, the photographs and the site plan do not corroborate his testimony that the accident had occurred towards the wrong side of the motorcycle. 21. A heavy reliance was placed upon the fact that the place of the incident was shown in the site plan at point ‘B’, which is towards the left side of the Maruti Car and right side of the motorcycle. Admittedly, Sukhdev (PW10), who had prepared the site plan, was not present at the time of the incident. He stated that he had prepared the site plan as per the spot position and the statements of the witnesses. The spot position showed that the vehicles were towards their respective left sides and did not show the place of the incident. The place of the incident, based on the statements made to the Investigating Officer, is hit by Section 162 of Cr.P.C. It was laid down by the Hon’ble Supreme Court in Jagdish Narain v. State of U.P., (1996) 8 SCC 199: 15 2025:HHC:28401 1996 SCC (Cri) 565 that the site plan is inadmissible to prove what was told by the eyewitnesses to the investigating officer in view of the bar contained in section 162 of Cr.P.C. It was observed: 9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion, neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However, such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the 16 2025:HHC:28401 proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses, it could not have been admitted in evidence, being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-judge Bench of this Court in Tori Singh v. State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention, this Court observed, inter alia: “… the mark on the sketch map was put by the Sub- Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This, in our opinion, would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot, but any mark put on the sketch- map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal 17 2025:HHC:28401 Procedure as it will be no more than a statement made to the police during the investigation.” (emphasis supplied) 10. While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman — and not by the Investigating Officer — entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence as has been observed by this Court in Tori Singh case [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] in the following passage: “This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of the offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab [AIR 1956 SC 526: 1956 Cri LJ 930]. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure.” (emphasis supplied) 22. Therefore, the site plan cannot be used to conclude that the motorcycle was being driven towards the wrong side of the road, which was the proximate cause of the accident. 23. Thus, there was insufficient material to conclude that the accident occurred due to the negligence of the accused, and the learned Trial Court had taken a reasonable view while acquitting the accused. This Court will not interfere with the 18 2025:HHC:28401 reasonable view of the learned Trial Court while deciding an appeal against acquittal. 24. Learned Trial Court had put the notice of accusation for the commission of offences punishable under Sections 279, 337 and 427 of IPC. Sections 279 and 337 of IPC require negligence or rashness, whereas Section 427 of IPC read with Section 425 requires intent to cause wrongful loss or damage. The state of negligence and deliberate intent cannot exist simultaneously. Therefore, it was not possible to put the notice of accusation for doing an act negligently as well as deliberately. 25. No other point was urged. 26. Consequently, the present appeal fails, and the same is dismissed. 27. 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 ₹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 19 2025:HHC:28401 judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 28. Records be sent back to the learned Trial Court forthwith along with copy of the judgment. Pending applications, if any, also stand disposed of. (Rakesh Kainthla) Judge 22nd August 2025 (Chander)