2025:HHC:24708 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 469 of 2011 Reserved on: 22.7.2025 Date of Decision: 29.07.2025 State of H.P. ...Appellant Versus Nanku Ram ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Prashant Sen, Deputy Advocate General. For the Respondent : Mr. Surender Verma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 20.5.2011, passed by learned Judicial Magistrate First Class, Court No.1, Sundernagar, District Mandi, 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, 338 and 304-A of the Indian Penal Code (in short IPC). (Parties shall hereinafter be referred to in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:24708 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 received a telephonic information on 7.2.2007 at 7.30 PM that an accident had taken place near Tail Control. The information was reduced into writing, and SI/SHO Prem Dass (PW8) went to the spot for verification with Constable Dharminder. He found that motorcycle bearing registration No. HP-33-6609 and Van bearing registration No. HP-02-0774 had met with an accident, which were lying on the road. He found skid marks of the tyres of the Van to the extent of 30 ft. and concluded that the driver of the Van had hit the motorcycle at a high speed. The motorcycle riders had sustained injuries, and the driver of the Van had absconded. He prepared a rukka (Ex.PW8/A) and sent it to the Police Station, where FIR (Ex.PW2/A) was registered. He prepared the site plan (Ex.PW8/B) and took the photographs (Ex. P1 to Ex. P3), whose negatives are Ex.P4 to Ex.P6. He seized the Van and the motorcycle vide memo (Ex.PW5/A). He obtained the MLCs (Ex.PX and Ex. PY). Nanku Ram produced the documents of the Van, which were seized vide memo (Ex.PW4/A). Yog Raj (PW7) produced the documents of 3 2025:HHC:24708 the motorcycle, which were seized vide memo (Ex.PW7/A). HC Devki Nandan (PW6) conducted the mechanical examination of the Van and motorcycle and found that there was no mechanical defect in the vehicle which could have led to the accident. He issued reports (Ex.PW6/B and Ex.PW6/C). Injured Khem Lata succumbed to her injuries. Her postmortem report (Ex.PW1/A) was obtained. The statements of 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 put the notice of accusation to the accused for the commission of offences punishable under Sections 279, 337, 338 and 304-A of IPC, to which the accused pleaded not guilty and claimed to be tried. 4. The prosecution examined eight witnesses to prove its case. HC Kundan Lal (PW1) obtained the postmortem report. HC Amar Nath (PW2) signed the FIR. Amit Sharma (PW3) was riding the motorcycle. Narpat Ram (PW4) is the witness to recovery. Constable Dharmender (PW5) is the witness to the recovery of the van and the motorcycle. HC Devki Nandan (PW6) conducted the mechanical examination of the vehicles. Yog Raj 4 2025:HHC:24708 (PW7) is the brother of the deceased. Prem Dass (PW8) conducted the investigation. 5. Accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was driving the van at the time of the accident. He denied that the accident occurred due to his negligence. He stated that Amit was at fault and he (the accused) was falsely implicated. He did not lead any defence evidence. 6. The learned Trial Court held that no independent witness was associated. The motorcyclist suddenly appeared on the road from the arterial road. He was supposed to take care before coming to the main road. He failed to do so. His negligence was the proximate cause of the accident. Hence, the learned Trial Court acquitted the accused of the commission of offences punishable under Sections 279, 337, 338 and 304-A of IPC. 7. Being aggrieved by the judgment delivered by the learned Trial Court, the State has filed the instant appeal, contending that the learned Trial Court evaluated the evidence in a careless and cursory manner. The testimonies of the witnesses were rejected without any valid reasons. Amit Kumar explicitly stated that the van was being driven at high speed on the wrong 5 2025:HHC:24708 side. He was not cross-examined on this point. The Investigating Officer observed skid marks of the van extending over a distance of 30 ft. He attempted to contact an independent witness, but none were available. The learned Trial Court erred in drawing an adverse inference against the prosecution for refusing to produce independent witnesses. Therefore, it is prayed that this appeal be allowed and the judgment of the learned Trial Court be set aside. 8. I have heard Mr. Prashant Sen, learned Deputy Advocate General, for the appellant-State and Mr. Surender Verma, learned counsel for the respondent/accused. 9. Mr. Prashant Sen, learned Deputy Advocate General, for the appellant-State, submitted that Amit Sharma (PW3) categorically stated that the accused was driving the van at a high speed towards the wrong side of the road. This statement was corroborated by the site plan and the testimony of the Investigating Officer, who had noticed skid marks up to a distance of 30 ft. Thus, the prosecution had proved on record that the van was being driven at a high speed and the learned Trial Court erred in acquitting the accused. He prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 6 2025:HHC:24708 10. Mr. Surender Verma, learned counsel for the respondent/accused, submitted that the learned Trial Court had rightly held that the motorcycle came to the main road from an arterial road, and the motorcyclist was bound to take care that entry of the motorcycle did not cause any danger to the traffic moving on the road. The accident had taken place towards the left side of the road, which shows that the van was being driven towards its proper side. There was no negligence on the part of the accused, and the accident occurred due to the negligence of Amit Sharma (PW3). Therefore, he prayed that the present appeal be dismissed. He relied upon the judgment of this Court in State of H.P. Vs. Baldev Singh alias Kewal Singh 2025:HHC:18768 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 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 7 2025:HHC:24708 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. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, 8 2025:HHC:24708 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 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) 9 2025:HHC:24708 “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 from patent perversity; that the same is based on a misreading/omission to consider material evidence on 10 2025:HHC:24708 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 site plan (Ex.PW8/B) shows that the accident had taken place near the bridge over the canal. Amit Sharma (PW3) stated in his cross-examination that he entered the National Highway through the control bridge. Site plan shows the control bridge towards the left side of the National Highway. Thus, it is apparent from the combined reading of the site plan and the statement of Amit Sharma (PW3) that the motorcycle was approaching the National Highway from the control bridge. Rule 8 of the Rules of the Road Regulation provides that the driver of the motor vehicle shall slow down while approaching a road intersection, a road junction, a pedestrian crossing or a road corner and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of the persons. Rule 9 provides that the driver of a motorcycle shall, on entering a road intersection, give way to the vehicles proceeding along that road. The combined effect of both these rules is that a person approaching the road intersection is not supposed to enter the same unless he is sure 11 2025:HHC:24708 that the safety of any person would not be endangered by his entry, and when he has entered the road intersection, he will give way to the traffic proceeding on the road. 15. In the present case, Amit Sharma (PW3) was entering the main road; therefore, he was supposed to give way to the already moving vehicles on the road. It appears that he had failed to do so. Therefore, the learned Trial Court had rightly concluded that the accident had occurred due to the negligence of Amit Kumar (PW3) and not due to the negligence of the accused. 16. It was submitted that the accused was driving the van at a high speed and towards the wrong side of the road. Therefore, the proximate cause of the accident was the high speed of the van. This submission cannot be accepted. Amit Sharma (PW3) has not given the proximate speed of the van. 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, speed of even 10 or 20 miles per hour may appear to be high, while 12 2025:HHC:24708 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.” 17. 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.” 18. This Court also held in the State of H.P. Vs. Madan Lal Latest H.L.J. (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed: - 13 2025:HHC:24708 “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.” 19. 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.” 20. Thus, the accused cannot be held liable based on the statement of a witness that he was driving the vehicle at a high speed, and the prosecution has to establish specific negligence of the accused. 21. It was submitted that the accused was driving the van towards the wrong side of the road. This submission is not acceptable. The photographs (Ex. P1 to Ex. P3) show the Van towards the left side of the road. The site plan shows that the Van was towards the left side of the road. Hence, the statement of Amit Sharma (PW3) that the Van was being driven towards the 14 2025:HHC:24708 wrong side of the road is incorrect, and the accused cannot be convicted based on the said statement. 22. The Central Government has framed the Rules of the Road Regulations, 1989, to regulate the movement of traffic. Rule 2 provides that the driver of a vehicle shall drive the vehicle as close to the left side of the road as may be expedient and shall allow all the traffic which is proceeding in the opposite direction to pass on his right side. Therefore, the driver of the Van was driving towards the left side of the road as per Rule 2, and there was no negligence on his part. 23. There is no other evidence showing the negligence of the accused. Thus, the learned Trial Court had taken a reasonable view based on the evidence led before it, and no interference is required with it while deciding an appeal against acquittal. 24. Consequently, the present appeal fails, and the same is dismissed. 25. 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 15 2025:HHC:24708 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. 26. Records be sent back forthwith along with a copy of the judgment. Pending applications, if any, also stand disposed of. (Rakesh Kainthla) Judge 29th July, 2025 (Chander)