IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No: 309 of 2009 Date of Decision:21.06.2019 . [ENTITY] Appellant Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 No. For the Appellant : Mr. [ENTITY] & Mr. [ENTITY], Additional Advocate General, with Mr. [ENTITY], Assistant Advocate General. For the Respondent: Mr. [ENTITY], Advocate. [ENTITY], Judge (oral):
Instant Criminal Appeal having been filed by the appellantState, is directed against the judgment of acquittal dated 10.12.2008, passed by learned Sessions Judge, Kinnaur at Rampur Bushahr, Himachal Pradesh, in [CASE NUMBER], reversing the judgment of conviction recorded by learned Chief Judicial Magistrate, Kinnaur at [ENTITY], in [CASE NUMBER], whereby learned trial Court Whether the reporters of the local papers may be allowed to see the judgment?
held respondent (hereinafter referred to as the accused) guilty of having committed offence punishable under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] and accordingly, sentenced him .
to undergo simple imprisonment for a period of one year for all the offences.
2. Briefly stated facts, as emerged from the record are that complainant, namely, [ENTITY] (PW7) got his statement recorded under [SECTION] [ACT], Ex.PW7/A, alleging therein that on 29.8.2002, at 9:30 A.M., he boarded bus bearing No. HP250383 at Bhabanagar, which was going from Rampur to [ENTITY]. Complainant alleged that at the time of alleged accident, about 40 passengers were travelling in the bus and the bus was being driven rashly and negligently by the accused. After reaching block point near Nathpa, allegedly the accused lost control of the bus and the bus fell about 300 meters deep below National Highway22. As per complainant, he fell out of the bus in the very first turn, whereas 8 passengers died at the spot and rest sustained simple as well as grievous injuries. On the basis of aforesaid statement having been made by the complainant, [ENTITY], formal FIR Ex.PW12/A, came to be lodged against the accused. After completion of the investigation, police presented the challan in the competent Court of law, who being satisfied .
that a primafacie case exists against the accused, put notice of accusation to him for the commission of offence punishable under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT], to which he pleaded not guilty and claimed trial.
3. Prosecution with a view to prove its case examined as many as 15 witnesses, whereas accused in his statement recorded under [SECTION] [ACT] though admitted that he was driving the illfated bus from Rampur Bushahar to [ENTITY], but feigned ignorance with regard to cause of the accident.
4. Learned trial Court on the basis of the evidence adduced on record by the prosecution, held accused guilty of having committed the offence punishable under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] and accordingly convicted and sentenced him, as per description given hereinabove.
5. Feeling aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, present respondentaccused preferred an appeal in the Court of learned Sessions Judge, Kinnaur, who vide judgment dated 10.12.2008 set aside the judgment of conviction recorded .
by the learned trial Court and acquitted the respondent accused. In the aforesaid background, appellantState has approached this Court in the instant proceedings, praying therein for restoration of the judgment of conviction recorded by the learned trial Court, after setting aside the impugned judgment of acquittal rendered by learned Sessions Judge, Kinnaur, H.P.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no force in the arguments of Mr. [ENTITY], learned Additional Advocate General that learned Sessions Judge, while reversing the judgment of conviction recorded by the learned trial Court, has failed to appreciate the evidence in its right perspective, rather this Court finds that learned Sessions Judge while upsetting the judgment of conviction recorded by the learned trial Court, has dealt with each and every aspect of the matter very meticulously and has rightly arrived at a conclusion that there is no specific evidence, if any, led on record with regard to rash and negligent driving by the accused.
7. Close scrutiny of the material available on record though clearly reveal that on the date of alleged accident, bus in question was being driven by the accused and in the ill fated accident, eight person lost their lives, but if the statements having been made by the prosecution witnesses, are read in conjunction juxtaposing each other, it certainly compels this Court to agree with the conclusion drawn by the learned Sessions Judge that there are material contradictions and discrepancies with regard to reason/cause of the accident.
Though, perusal of the statements of material prosecution witnesses, suggest that majority of witnesses stated that at the time of the alleged accident, bus was being driven in a high speed, but as has been held in many cases by this Court as well as Hon'ble Apex Court that speed is not the sole criteria to determine the rash and negligent driving, rather same is required to be proved by leading cogent and convincing evidence.
8. PW1 to PW3, PW6, PW7, PW10, PW11 and PW13, who at the time of alleged accident were travelling in the bus in question stated that bus was being driven in a high .
speed and if statements of these witnesses are read in its entirety, there is no specific deposition, if any, with regard to rash and negligent driving by the accused.
9. PW2, Sh. [ENTITY], PW5, Sh. [ENTITY], PW6, Sh. [ENTITY] and PW9, Sh. [ENTITY] stated that vehicle in question was being driven by the accused in high speed and it went off the road and met with an accident. These witnesses further deposed that near Nathpa, bus went off the road and rolled down towards valley side, resulting injuries to many persons and death of some of the occupants. No doubt, in the alleged accident 8 peoples died and many suffered injuries, as stands duly proved on record vide medical evidence led on record by the prosecution, but as has been observed hereinabove, rashness and negligence, if any, by the accused is necessarily required to be proved for holding accused guilty of having committed the offence punishable under [SECTION] & [SECTION] [ACT]. In the case at hand, accused in his statement recorded under [SECTION] [ACT], though has admitted that he was driving the bus in question at the relevant time and occupants of the bus received injuries and some of the them .
died, but certainly that could not be a ground for the trial Court to hold accused guilty of having committed the offence punishable under [SECTION], [SECTION] & [SECTION] of [ACT]. Moreover, if statements of some of the prosecution witnesses are read, they have stated that vehicle in question was being driven in a normal speed and they have no knowledge how the accident took place.
10. Learned trial Court while holding accused guilty of having committed the offence punishable under [SECTION], [SECTION] and [SECTION] [ACT], placed heavy reliance upon the statement of PW5, but perusal of statement of this witness, nowhere suggests that at the time of alleged accident, bus in question was being driven rashly and negligently by the accused. Apart from above, there are material contradictions in the statements of majority of prosecution witnesses with regard to speed of the vehicle. PW10, Sh. [ENTITY], in his crossexamination stated that speed of the bus was more than 40 Kms. per hour, whereas PW11, [ENTITY] deposed that at the time of alleged accident, speed of the bus was about 50 Kms. per hour. This witness in his crossexamination stated .
that bus was coming in a high speed from behind.
11. PW13, [ENTITY], who was Auto Mechanic with the Electricity Board, Bhabanagar, checked the illfated bus mechanically and found front and rear excels, engine, gear box, chassis, steering system broken. In his report, he did not give any finding about the cause of the accident. Careful perusal of mechanical report Ex.PW13/A, suggests that though in the mechanical examination, it is noticed that gear, excel, engine and steering system of the bus in question were broken, but there is no specific report, if any, with regard to breaks and as such, learned Sessions Judge, rightly concluded that it cannot be ruled out that accident occurred due to mechanical fault.
12. PW5, [ENTITY] deposed that he was sitting on seat No.2 in the bus and bus was being driven in a high speed.
He also stated that at the time of accident, accused was changing the cassette time and again and playing music loudly. PW15, Smt. [ENTITY], also deposed that at the time of the accident, accused was changing cassette, but such version put forth by these witnesses never came to be corroborated by .
other prosecution witnesses. Moreover, it is not the case of the prosecution that accident occurred on account of changing of cassette by the accused while driving.
13. In the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too at high speed. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. [ENTITY], (2009) 3 SCC (Cri) 406, which reads as under: "6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.
8. [SECTION] deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any .
vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under [SECTION] [ACT] is not negligence. Similarly in [SECTION] the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either [SECTION] or [SECTION] it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
14. The Hon'ble Apex Court in case titled "[PRECEDENT], has also observed as under: "1. Truck No. MYE3236 being driven by the respondent turned turtle while crossing a "nalla" on 25111982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was chargesheeted and tried.
The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under [SECTION] [ACT] was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under [SECTION], [SECTION] and [SECTION] [ACT]. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the .
offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka.
2. We have examined the record and heard learned counsel for the parties.
3. Both the trial court and the appellate court held the respondent guilty for offences under [SECTION], [SECTION] and [SECTION] [ACT] after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
4. 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor .
Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed."
15. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur.
16. Reliance is also placed on judgment rendered by this Court in [PRECEDENT], relevant para whereof is as under:
"4. 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 [ENTITY] 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 or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to [ENTITY] (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent.
The respondent in his statement under [SECTION] of the [ACT] has explained that on seeing the deceased, he had blown the horn and he (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 [ENTITY] (DW1) who was a pillion rider with him. [ENTITY] (PW1) has admitted this version that the respondent had blown the horn and [ENTITY] on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle 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 reasonable doubt that the respondent was driving the vehicle 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 bounds entered upon by him at any stage of the trial."
17. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in [PRECEDENT] .
[CASE NUMBER], wherein it has been held as under: "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:( SCC p.704, para 14) " 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.
18. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction could be .
based upon the same.
19. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment of acquittal passed by the learned Sessions Judge, Kinnaur, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld.
Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.
([ENTITY]), Judges 21st June, 2019 (shankar)