Case: Awadh Behari Sharma Vs. State of Madhya Pradesh

likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that- (a) The outer signal cannot be lowered unless the Home signal is first lowered. (b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal." Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station Master. On the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossible. Assuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signals. If the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision."It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused." There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about it. In view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. It appears to us, however, that the correct approach in a matter of this kind should have been to determine the crucial issue not on a mere balance of oral evidence but on broader considerations and clear probabilities. In a matter of this kind, oral evidence is likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that-(a) The outer signal cannot be lowered unless the Home signal is first lowered(b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal."Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station MasterOn the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossibleAssuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signalsIf the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision"It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused."There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about itIn view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused.