Himachal Pradesh High Court
Reserved On: 4.8.2025 vs Budhi Ram on 22 August, 2025
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
Coram
r to ...Respondent
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
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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
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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.
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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
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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
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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
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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
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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.
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(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)
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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
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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.
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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
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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.
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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:
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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
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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
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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
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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
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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.
22nd August 2025
(Chander)
r to (Rakesh Kainthla)
Judge
