CR.R/13/2015 on 16 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 13 of 2015 Reserved on: 07.10.2026 Date of Decision: 16.10.2026. Dheeraj Sharma ...Petitioner Versus State of H.P.

...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr Vivek Singh Thakur, Advocate. For the respondent/State : Mr Ajit Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The present revision is directed against the judgment dated 15.10.2014 passed by learned Additional Sessions Judge-II, Shimla District, Shimla (learned Appellate Court) vide which the judgment of conviction dated 19.04.2011 and order of sentence dated 20.04.2011 passed by learned Judicial Magistrate First Class, Court No. 1, Shimla (learned Trial Court) were upheld. (The parties shall hereinafter be

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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 complaint are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Sections 279, 337 and 304A of the Indian Penal Code (in short "IPC") and Sections 181 and 185 of the Motor Vehicles Act (in short "MV Act"). It was asserted that the informant, Chuni Lal (PW7), was running a photography shop at Bhuntar in the name and style of Sahil Studio. Laiq Ram (since deceased) had engaged the informant and his brother Luder as photographers in his brother-in-law’s marriage. The informant, his brother Luder, Laiq Ram, Chet Ram (PW4) and Chuni Lal (PW7) were travelling in the vehicle bearing registration No. HP-34A-0645 on 07.02.2005, which was being driven by the accused Dheeraj. The vehicle fell off the road near HP Government Press, Chakkar. The occupants sustained injuries in the accident. The injured were shifted to the hospital. An intimation was given to the police. An entry (Ext.PW3/A) was recorded at the Police Station, and ASI Chanchal (PW8) went for verification. He recorded the informant's statement (Ext.PW7/A) and sent it to the police station where FIR (Ext.PW8/A) was registered. ASI Chanchal (PW8) investigated the matter. He prepared the site plan (Ext.PW8/C). HC Santosh Kumar (PW1) took photographs of the spot (Ext.PA to Ext.PG), whose negatives are Ext.PA1 to PG1. The vehicle was seized vide memo (Ext.PW1/A). HC Sanjeev Kumar (PW2) conducted the mechanical examination of the vehicle and found that it had no defect that could have led to the accident. He issued the report (Ext.PW2/A). Accused Dheeraj produced the documents of the vehicle which were seized vide memo (Ext.PW5/A). Dr Ramesh Chand (PW11) examined the accused and found that he had sustained multiple injuries, and he was smelling of alcohol. He issued the report (Ext.PW11/A). Dr Ramesh Chand (PW11) also examined Chuni Lal and found no external injuries. He issued the report (Ext.PW11/A). He also examined Chet Ram, Laiq Ram, and Ludar Chand and found injuries on their bodies which could have been caused in a Motor Vehicle accident. He issued the reports (Ext.PW11/G, Ext.PW11/D, and Ext.PW11/E). Laiq Ram subsequently succumbed to his injuries. Dr Dinesh Bisht (PW9) conducted the postmortem examination and found that he had died because of the injury to the vital organ, leading to hemorrhagic shock. He issued the report (Ext.PX). Statements of witnesses were recorded as per their version, and after the completion of investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 279, 337 and 304A of the IPC and Sections 181 and 185 of the MV Act, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined eleven witnesses to prove its case. HC Santosh Kumar (PW1) took the photographs. HC Sanjeev Kumar (PW2) conducted the mechanical examination of the vehicle. Constable Madan Singh (PW3) proved the entry in the daily diary. Chet Ram (PW4) and Chuni Lal (PW7) were travelling in the vehicle. HC Ramesh Chand (PW5) witnessed the recovery. Inspector Ashok Verma (PW6) prepared the challan. ASI Chanchal Singh (PW8) investigated the matter. Dr Dinesh Bisht (PW9) conducted the postmortem examination of Laiq Ram. Dr Ramesh Chand (PW11) conducted the medical examination of the injured.

5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC), admitted that he was the owner of the vehicle bearing registration number HP-34A-0645. He admitted that Laiq Ram had asked Chuni Lal and his brother Luder to accompany him to his brother-in-law’s marriage for taking the photograph. He admitted that Chet Ram, Laiq Ram, Chuni Lal and Luder Chand were travelling in the vehicle being driven by him. He denied the rest of the prosecution case. However, he admitted that Chet Ram, Chuni Lal, Laiq Ram, Luder and the accused had sustained multiple injuries. He admitted that Laiq Ram had succumbed to his injuries. He denied that he had consumed alcohol. He admitted that he had not produced the driving licence, and claimed that he had lost the driving licence. He examined Vishal Khajuria (DW1) and himself (DW2) to prove his defence.

6. The learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. It was duly proved on record that the vehicle had fallen off the road. The statements of the defence witnesses were not sufficient to establish that he was not driving the vehicle at the time of the accident. The road was quite wide, and the vehicle had left the road. Hence, the burden was upon the accused to establish the cause of the accident. However, he had not provided any explanation. Hence, the prosecution's version that the accused was negligently driving the vehicle had to be accepted as correct. The occupants of the vehicle had sustained simple injuries, and Laiq Ram had died in the accident. The accused failed to produce his driving licence. The accused was not subjected to any test to determine that the quantity of alcohol in his blood was exceeding 30 mg per 100 ml, which is an essential requirement of Section 185 of the Motor Vehicles Act. Hence, the learned Trial Court convicted and sentenced the accused as under: Sections Sentences 279 of the Indian Penal Code The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹500/-, and, in default of payment of the fine, to undergo further simple imprisonment for 15 days. 337 of the Indian Penal Code The accused was sentenced to undergo simple imprisonment for six months, pay a fine of ₹500/-, and, in default of payment of the fine, to undergo further simple imprisonment for 15 days. 304-A of the Motor Vehicles Act. The accused was sentenced to undergo simple imprisonment for one year, pay a fine of ₹1000/-, and, in default of payment of the fine, to undergo

further

simple imprisonment for 15 days. 181 of the Motor Vehicle Act. The accused was sentenced to pay a fine of ₹500/-, and, in default of payment of the fine, to undergo simple imprisonment for 15 days. All the substantive sentences of imprisonment were ordered to run concurrently.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Additional Sessions Judge-II, Shimla, District Shimla (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused was driving the vehicle at the time of the accident. The defence taken by the accused that he was not driving the vehicle and Laiq Ram was driving the vehicle was not established on record. The vehicle had left the road, and the negligence of the accused was writ large. The accused failed to establish how the accident had taken place, and the inference drawn by the learned Trial Court that negligence of the accused had caused the accident was correct. The learned Trial Court had imposed an adequate sentence, and no interference was required with the judgment and order passed by the learned Trial Court. Hence, the appeal was dismissed.

8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below erred in appreciating the material on record. The defence version that the visibility was low due to fog was ignored by the learned Courts below. The incident took place during the night hours, and there was no eyewitness to the incident. The defence version that the accused was not driving the vehicle but Laiq Ram was driving the vehicle was highly probable, and the learned Courts below erred in rejecting this version. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

9. I have heard. Mr Vivek Singh Thakur, learned counsel for the petitioner/accused, and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.

10. Mr Vivek Singh Thakur, learned counsel for the petitioner/accused, submitted that the learned Courts below erred in appreciating the evidence on record. The defence taken by the accused that Laiq Ram was driving the vehicle was highly probable. The visibility was poor due to fog, and the possibility of the accident could not be ruled out. The prosecution had not proved the exact negligence, and mere mention of the high speed or the negligence of the accused is not sufficient to convict the accused. Learned Courts below erred in convicting the accused merely because an accident had taken place. The benefit of the Probation of Offenders Act was not extended to the accused. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

11. Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the accident had taken place on a wide road. The vehicles do not usually leave the road and fall off the road unless there is negligence of the driver. The report of the mechanic showed that there was no mechanical defect in the vehicle. The burden was upon the accused to explain the circumstances leading to the accident. However, he had failed to explain those circumstances and learned Courts below had rightly held him guilty. This Court should not re-appreciate the evidence while deciding the revision. Hence, he prayed that the present revision be dismissed.

12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

13. It was laid down by the Hon’ble Supreme Court in Kuntegowda v. Thurubaiah, 2026 SCC OnLine SC 1485 that a revisional court does not act as an appellate court and it can only determine the correctness, legality and propriety of the findings, sentence and order recorded by the lower court. It was observed: “7. Before parting, we would like to accentuate the revisional jurisdiction of the High Courts and the contours and inherent limits while exercising powers as a revisional authority. Section 397 of the Criminal Procedure Code, 1973 (now, Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023) encapsulates the power of High Courts and Sessions Courts to examine the correctness, legality or propriety of any order passed by an inferior criminal court. The said Section is extracted as hereunder: “438. Calling for records to exercise powers of revision.—(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record. Explanation. —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 439.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” Discretion in the exercise of revisional jurisdiction should be exercised within the four corners of this section whenever there has been miscarriage of justice. However, while exercising power under this section, the Court does not act as an appellate Court and therefore, while considering the legality, propriety or the correctness of a finding or a conclusion, the revisional court does not and should not dwell upon the facts and the evidence of the case as an appellate Court. The court, in revision, considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence and order recorded by the lower court, and should refrain from substituting its conclusion on an elaborate consideration of evidence, and the findings of the lower courts should not be reversed merely on the ground that an alternative view is possible on the facts of the case. In this case, such a position did not also emanate from the evidence on record.

7.1. This Court, in the State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659: 2004 SCC (Cri) 2003, observed that the High Court, in exercise of its revisional jurisdiction, cannot embark upon an in- depth roving re-examination of the oral evidence and medical evidence and come to a conclusion contrary to the consistent one reached by two courts below. In the facts of the present case, in the impugned judgment, the High Court gravely erred in upsetting the concurrent findings of conviction of the trial court and the Appellate Court by substituting its own conclusions and reasoning on the merits of the case and thereby erred in setting aside the well-reasoned and correct judgment and orders of the trial and appellate courts.

7.2. Upon perusal of the impugned judgment and order dated 06.10.2023, it is apparent that the High Court went into great detail into each of the testimonies, documents and merits of the case, which could have been avoided, especially when the subject matter had come under its revisional jurisdiction. Instead, acting as an appellate Court, the High Court deemed it fit to go into the merits of the case, something which is generally impermissible unless a glaring contradiction is apparent on the face of the record. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275, while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: “5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the Respondent by reappreciating the oral evidence. …”

7.3. The contours for exercise of revisional jurisdiction have been well settled by the judicial dicta of this Court wherein time and again it has been observed that the High Court shall not interfere with the orders of the lower court unless:

i. The order or finding of the lower court is perverse, grossly erroneous, glaringly unreasonable or wholly unreliable or untenable in law.

ii. The lower court has passed the impugned order after considering immaterial or irrelevant material or no material at all.

iii. There is a non-consideration of any relevant material or the judicial discretion has been exercised arbitrarily or capriciously.

7.4. This Court, in Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, in similar facts and circumstances wherein the High Court had reversed concurrent findings of conviction under Section 138 of NI Act, while setting aside the impugned order, observed as under: “27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings. This Court is of the view that it is not for the Revisional Court to reanalyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.”

7.5. In the facts of the present case, we find that the High Court has failed to highlight any reason or material satisfaction to the effect that there was any such glaring contradiction or perversity apparent on the face of the record to justify the exercise of the powers under revisional jurisdiction and thereby erred in interfering with the judgment and orders of the courts below. Therefore, the present appeal has to be allowed by setting aside the impugned order of the High Court. In view of the aforesaid discussion, we are of the view that the High Court committed an error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction.

14. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

15. Chet Ram (PW4) stated that Laiq Ram had asked him and Dheeraj to accompany him to his brother-in-law’s marriage. He, Laiq Ram, Dheeraj and two other persons travelled in the vehicle bearing registration No. HP-34A-0645, which was being driven by the accused at a high speed. The vehicle fell off the road near Himachal Printing Press. The accused could not control the vehicle because of the high speed, which led to the accident. The police carried the injured to the hospital. Laiq Ram died in the accident. He stated in his cross-examination that Laiq Ram was his friend. He did not know how to drive the vehicle. They started from Kullu on 07.02.2005. He had not asked the accused, Dheeraj, not to drive the vehicle at a high speed. They had stopped at Sundernagar on the way. He denied that he and Laiq Ram had consumed liquor. He was sitting on the front seat with Dheeraj. Laiq Ram was sitting on the rear seat. He could not tell the speed of the vehicle. It was raining, and there was fog. He denied that the accident occurred because of the rain and fog. He volunteered to say that the accused could not control the vehicle.

16. The testimony of this witness that accused Dheeraj was driving the vehicle was not challenged in the cross- examination. It was nowhere suggested to him that the accused Dheeraj was not driving the vehicle. Therefore, his testimony that the accused was driving the vehicle is deemed to be accepted. It was laid down by the Hon’ble Supreme Court in State of Uttar Pradesh Versus Nahar Singh, 1998 (3) SCC 561, that where the testimony of a witness is not challenged in the cross-examination, the same cannot be challenged during the arguments. This position was reiterated in Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1: (2022) 1 SCC (Cri) 208: 2020 SCC OnLine SC 4, and it was held at page 34:

“58. A witness is required to be cross-examined in a criminal trial to test his veracity; to discover who he is and what his position in life is, or to shake his credit, by injuring his character, although the answer to such questions may directly or indirectly incriminate him or may directly or indirectly expose him to a penalty or forfeiture (Section 146 of the Evidence Act). A witness is required to be cross-examined to bring forth inconsistencies and discrepancies, and to prove the untruthfulness of the witness. A-1 set up a case of his arrest on 1-9-2014 at 18:50 hrs; therefore, it was required for him to cross-examine the truthfulness of the prosecution witnesses with regard to that particular aspect. The argument that the accused was shown to have been arrested around 19:00 hrs is an incorrect reading of the arrest form (Ex. 17). In Column 8, it has been specifically mentioned that the accused was taken into custody on 2-9-2014 at 14:30 hrs at Wanjri Layout, Police Station, Kalamna. The time, i.e. 17: 10 hrs mentioned in Column 2, appears to be when A-1 was brought to the Police Station, Lakadganj. As per the IO, A-1 was called for interrogation as the suspicion was on an employee of Dr Chandak since the kidnapper was wearing a red-coloured T-shirt which was given by Dr Chandak to his employees. A-1 travelled from the stage of suspect to an accused only on 2-9-2014. Since no cross-examination was conducted on any of the prosecution witnesses about the place and manner of the arrest, the argument that the accused was arrested on 1-9-2014 at 18:50 hrs is not tenable.

59. The House of Lords, in a judgment reported as Browne v. Dunn (1893) 6 R 67 (HL), considered the principles of appreciation of evidence. Lord Chancellor Herschell held that it is absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged. It was held as follows: “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.”

60. Lord Halsbury, in a separate but concurring opinion, held as under:

“My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

61. This Court, in a judgment reported as State of U.P. v. Nahar Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850, quoted from Browne v. Dunn, (1893) 6 R 67 (HL) to hold that in the absence of cross- examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under: (State of U.P. v. Nahar Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850], SCC pp. 566-67, para 13) “13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of the delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity,

(2) to discover who he is and what his position in life is, or

(3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.”

62. This Court, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288: (2017) 1 SCC (Civ) 268, laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. It was held as under: (SCC pp. 294- 95, paras 15-16) “15. Moreover, there was no effective cross- examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed. PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross- examination is a matter of substance, not of procedure. One is required to put one's own version in the cross-examination of the opponent. The effect of non-cross-examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v.Debnath Bhagat, AIR 1963 SC 1906. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put, the Court would presume that the witness's account has been accepted, as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177: AIR 1958 P&H 440.

16. In Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128: AIR 1945 Nag 60, it has been laid down that the matters sworn to by one party in the pleadings, not challenged either in pleadings or cross- examination by another party, must be accepted as fully established. The High Court of Calcutta in A.E.G.

Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44: AIR 1961 Cal 359 has laid down that the party is obliged to put his case in the cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court, Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC OnLine MP 35: AIR 1950 Nag 83, has laid down that when attestation is not specifically challenged, and the witness is not cross- examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sardav.Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288: AIR 1940 Pat 683 has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross- examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff.”

17. It was also not suggested to Chuni Lal in his cross- examination that Laiq Ram was driving the vehicle. It was laid down by the Hon’ble Supreme Court in Ravinder Kumar Sharma Vs. State of Assam (1999) 7 SCC 435 that, generally speaking, so much of the case as concerns the witness should be put to him in his cross-examination. It was observed: -

29. The High Court was, in our opinion, wrong in concluding that there was the absence of reasonable and probable cause because the action, in view of the notification of the Central Government, was unauthorised or illegal. Illegality does not by itself lead to such a conclusion. Further, there is no truth in the appellant's case that on 1-10-1977, at the time of seizure, he informed Defendants 2 and 3 about the gazette notification. The point is that such an assertion was not made even in the bail application moved after arrest. As to the contention that the appellant and the owners of paddy showed permits to Defendants 2 and 3, we do not find sufficient pleading on this aspect. In any case, we find that no question was put when the 2nd defendant was cross-examined. As pointed out by Sarkar on Evidence (15th Edn., 1999, Vol. 2, p. 2179) in the context of Section 138 of the Evidence Act, “Generally speaking, when cross-examining, a party's counsel should put to each of his opponent's witnesses, in turn, so much of his own case as concerns that particular witness or in which he had a share.”

18. This position was reiterated in Muddasani Venkata Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288: (2017) 1 SCC (Civ) 268: 2016 SCC OnLine SC 435, wherein it was observed at page 294: - “15. Moreover, there was no effective cross- examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed; PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross- examination is a matter of substance, not of procedure; one is required to put one's own version in the cross- examination of the opponent. The effect of non-cross-

examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. The party is required to put his version to the witness. If no such questions are put, the Court will presume that the witness's account has been accepted, as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177: AIR 1958 P&H 440]

16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128: AIR 1945 Nag 60], it has been laid down that the matters sworn to by one party in the pleadings, not challenged either in pleadings or cross-examination by the other party, must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian [A.E.G. Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44: AIR 1961 Cal 359] has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram [Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC OnLine MP 35: AIR 1950 Nag 83] has laid down that when attestation is not specifically challenged, and the witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra

[Karnidan Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288: AIR 1940 Pat 683] has laid down that it cannot be too strongly emphasised that the system of administration of justice allows for cross-examination of the opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff.

19. Therefore, the version that Laiq Ram was driving the vehicle and the accused was not driving the vehicle is an afterthought.

20. Chuni Lal (PW7) stated that he was running a photography shop at Bhuntar. Laiq Ram had engaged him and his brother Luder for photographing the marriage of his brother-in-law. He, Luder, Laiq Ram, Chet Ram, and driver Dheeraj were travelling in the vehicle bearing registration No. HP-34A-0645 on 07.02.2005. The accused was driving the vehicle. The vehicle fell off the road near HP Government Press. The injured were shifted to IGMC. The accused was driving the vehicle at a high speed, which led to the accident. Laiq Ram died in the accident. He stated in his cross-examination that they had started from Kullu at about 02:30 p.m. The vehicle was at normal speed when it started. He admitted that the speed of the vehicle was normal before the place of the accident. He denied that there was no negligence of the driver. He could not tell the speed of the vehicle.

21. His testimony that the accused was driving the vehicle was not challenged in the cross-examination, and it was suggested to him that the speed of the vehicle was normal. Therefore, the part of his testimony that the accused was driving the vehicle was rightly accepted by the learned Courts below.

22. The accused also admitted in response to Question No. 4 that Chet Ram, Laiq Ram, Chuni Lal, Luder were travelling in the vehicle bearing registration No. HP 34A-0645, which was being driven by him. He claimed that his driving license was lost. He had nowhere stated in his statement that Laiq Ram and not he was driving the vehicle. It was laid down by the Hon’ble Supreme Court in State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700: 1992 SCC (Cri) 705: 1992 SCC OnLine SC 421 that the Courts can rely upon the statement of the accused recorded under Section 313 of the CrPC. It was observed at page 742: “51. That brings us to the question of whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-section (4), which reads: “313. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.” Thus, the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such an inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari (1967) 3 SCR 708: AIR 1968 SC 110: 1968 Cri LJ

95. This Court, in the case of Hate Singh Bhagat Singh v. State of M.B. 1951 SCC 1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678: (1964) 1 Cri LJ 730, this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge bench answered the question, it would be advantageous to reproduce the relevant observations at pages 684-685: “Under Section 342 of the Code of Criminal Procedure, by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation, if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may ‘be taken into consideration’ at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.” (emphasis supplied) Sub-section (1) of Section 313 corresponds to sub- section (1) of Section 342 of the old Code, except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with, his examination under clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old sub-section (4), asd the present sub-section (3)

corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforesaid observations apply with equal force.”

23. It was laid down by the Hon’ble Supreme Court in Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri) 1514: 2002 SCC OnLine SC 933, that the statement made by the accused under Section 313 CrPC can be used to lend credence to the evidence led by the prosecution, but such statement cannot form the sole basis for conviction. It was observed at page 244:

27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that the statement under Section 313 CrPC of the accused can either be relied on in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp. 357-58, para 23) “23. In this case, the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury that the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the

victim. This was contradicted by the statement of the accused himself under Section 342 CrPC to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13-10- 1961 negates both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in River Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one, as his clothes all got stained with blood, as also his books, his exercise book, his belt and his shoes. More than that, the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-mortem report, this knife could have been the cause of the injuries on the victim. In circumstances like these, there being enough evidence to reject the exculpatory part of the statement of the appellant in Exhibit 6, the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.” (emphasis supplied)

24. It was laid down in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213, that the statement of the accused under Section 313 Cr.P.C., in so far as it supports the prosecution’s case, can be used against him for recording a conviction. It was observed at page 275: -

“52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording a statement under this provision of the CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering a conviction. Even under the latter, he faces the consequences in law.”

25. This position was reiterated in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC OnLine SC 199, and it was held that the statement of the accused recorded under Section 313 of the Cr.P.C. can be used to lend corroboration to the statements of prosecution witnesses. It was held at page 761: -

24. We are of the view that, under Section 313 statement, if the accused admits that, from the evidence of various witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held that since no oath is administered to the accused, the statement made by the accused under Section 313 CrPC will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC.

But, sub-section (4) says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court, in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951 SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933, held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR 678, this Court held that when the accused confesses to the commission of the offence with which he is charged, the court may rely upon the confession and proceed to convict him.

25. This Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para

“27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction.” In this connection, reference may also be made to the judgments of this Court in Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15: 2005 SCC (Cri) 1185; and Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467: (2008) 1 SCC (Cri) 766. The above-mentioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.

26. We may, however, indicate that the answers given by the accused while examining him under Section 313, fully corroborate the evidence of PW 10 and PW 13 and hence the offences levelled against the appellant stand proved, and the trial court and the High Court have rightly found him guilty for the offences under Sections 326, 436 and 302 read with Section 34 IPC.”

26. Thus, the statement of the accused recorded under Section 313 of CrPC corroborates the testimonies of the prosecution’s witnesses that the accused was driving the vehicle.

27. Vishal Khajuria (DW1) stated that Dheeraj had called him on 07.02.2005 at about 07:15 p.m. and told him that he was going to attend a marriage at Ani. The weather was bad, and there was fog. Laiq Ram was driving the vehicle. Dheeraj was sitting on the rear seat.

28. The statement of this witness is not reliable. His name was not suggested to any of the prosecution witnesses as the person who had met them on the way. Even the accused had not stated in his statement recorded under Section 313 CrPC that he had met Vishal Khajuria (DW1) on the way. Hence, in these circumstances, his presence is highly suspect, and his testimony was rightly rejected by the learned Courts below.

29. Dheeraj Sharma (DW2) stated that he had called Vishal Khajuria (DW1) and asked him to meet on the way. Laiq Ram was driving the vehicle. This testimony is not believable. First, it was never suggested to any of the witnesses that Laiq Ram was driving the vehicle. Rather, it was suggested that the vehicle was being driven slowly. The accused also had not claimed in his statement recorded under Section 313 of the CrPC that he was not driving the vehicle and Laiq Ram was driving it. Therefore, learned Courts below had rightly discarded the testimony of the accused.

30. Thus, there is no infirmity in the findings recorded by learned Courts below that the accused was driving the vehicle at the time of the accident.

31. The prosecution witnesses specifically stated that the vehicle had left the road. ASI Chanchal Singh (PW8) visited the spot and prepared the site plan (Ext.PW8/A). The width of the road is shown to be 20 feet paved and 2 feet unpaved. The vehicle had left the road and fell 35 meters off the road. The accident occurred on a curve, and it appeared that the driver was unable to negotiate the curve. The site plan is duly corroborated by the photographs (Ext.PA to Ext. PC) wherein the vehicle is shown to have fallen into the gorge. The photographs (Ext.PA) show that the road is quite wide at the place of the accident. Thus, it was duly proved on record that the vehicle had fallen off the road. It was laid down in Keshav Murti vs. State, 2002 Criminal Law 103 (Karnataka) that where the accident had taken place on a wide road, and the vehicle had left the road, the maxim of res ipsa loquitur would apply and the burden would shift upon the accused to explain as to how the accident had taken place. It was observed: “Here is a car proceeding from Bangalore to Shimoga. At the place concerned, there are no other vehicles on the road. There is no obstruction. The road is of a width of 19 ft. of cement and tar road, with 6 ft. kacha road on either side. Still, the vehicle hits a roadside tree. Added to that, there is a report of the IMV Inspector at Ex. P. 5 to the effect that the accident is not due to any mechanical defect in the vehicle. In such a situation, an accident of this nature would prima facie show that the same could not be accounted for by anything other than the negligence of the driver of the vehicle, i.e., the petitioner. A presumption in that regard thus arises. In such a case, as pointed out by the Supreme Court, it is for the petitioner-driver to explain how the accident occurred without negligence on his part. What the petitioner has done in the course of his examination under Section 313 of the Criminal Procedure Code is simply denying everything. He does not say anything, and even to the general question that is asked at the end as to whether he has got anything to say, he did not choose to say anything, nor did he care to explain the manner in which the accident occurred, i.e., in order to rebut the above said presumption as regards the accident occurring due to his negligence, and in order to show that the accident occurred for a particular reason not attributable to his negligence. This was, therefore, an appropriate case wherein, on the basis of a presumption that the Supreme Court was speaking about, that conviction could be based.”

32. Similarly, it was laid down by the Hon'ble Supreme Court in Thakur Singh Vs. State of Punjab 2003(9) SCC 208 that where the accident speaks for itself, it is sufficient for the prosecution to establish the accident and the burden will shift upon the accused to explain it. Thus, where the accused admits that he was driving the vehicle which fell into a canal, the burden was upon him to establish that the accident had taken place due to some circumstances other than his negligence. It was observed: “It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into the canal. In such a situation, the doctrine of res ipsa loquitur comes into play, and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.”

33. This principle was discussed in detail by the Hon’ble Supreme Court in Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107: 2012 SCC OnLine SC 607 and it was held that where the accident by its nature is more consistent its being caused by negligence than by any other cause mere happening of the accident is per se sufficient to invoke the principle of res ipsa loquitor and in absence of any explanation by the driver of the vehicle, he is liable to be convicted for rash and negligent driving. It was observed at page 295: - “(A) Rash and negligent driving

12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not always be possible to determine with reference to the speed of a vehicle whether a person was driving rashly or negligently. Both these acts presuppose abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to “rash and negligent driving” within the meaning of the language of Section 279 IPC. That is why the legislature, in its wisdom, has used the words “manner so rash or negligent as to endanger human life”. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

13. “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one ought to do can constitute negligence.

14. The court has to adopt another parameter, i.e. “reasonable care” in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example, a driver) to care for the pedestrian on the road, and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, maybe either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes — one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns the consequences of driving dangerously, similar to the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person commits such an offence, he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concepts of “culpable rashness” and “culpable negligence” into consideration in cases of road accidents. “Culpable rashness” is acting with the consciousness that mischievous

and

illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). “Culpable negligence” is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that in the circumstances of a given case, the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).]

16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence are quite applicable to the cases falling under criminal jurisprudence like the present one.

17. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648: (2012) 1 SCC (Cri) 953: (2012) 1 SCC (Civ) 848] where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, this Court dismissing the appeal, laid down the tests to determine criminal culpability on the basis of “knowledge”, as follows: (SCC pp. 663-64, para 41) “41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law—in view of the provisions of IPC—the cases which fall within the last clause of Section 299 but not within clause ‘Fourthly’ of Section 300 may cover the cases of rash or negligent acts done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.” (emphasis supplied)

18. Again, in Naresh Giri v. State of M.P. [(2008) 1 SCC 791: (2008) 1 SCC (Cri) 324], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 302 IPC to Section 304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13) “7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.

8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act, and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving, and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby the death of any person is caused becomes punishable. Two elements, either of which or both of which may be proved to establish the guilt of an accused, are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises not because of an error in judgment but of deliberation in the mind, risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that, apart from any mens rea, there may be no motive or intention; still, a person may venture or practise such rashness or negligence which may cause the death of others. The death so caused is not the determining factor.

9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows: ‘1. General principles of the law of negligence. — Negligence is a specific tort and in any given circumstance is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances and may vary according to the amount of risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in

some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.’ ***

13. According to the dictionary meaning, ‘reckless’ means ‘careless’, regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it.”

19. In Mohd. Aynuddin v. State of A.P. [(2000) 7 SCC 72: 2000 SCC (Cri) 1281], the appellant was driving a bus, and while a passenger was boarding the bus, the bus was driven, which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act, held that it was culpable rashness and criminal negligence and held as under: (SCC pp. 74- 75, paras 7 & 9) “7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted for by anything other than the negligence of the driver of the vehicle may create a presumption, and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus. ***

9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.” (B) Attendant circumstances and inference of rash and negligent driving 20 [Ed.: Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./53/2012 dated 5-9-2012.]. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court, with the aid of proper evidence, may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of the occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:

• The event would not have occurred but for someone's negligence.

• The evidence on record rules out the possibility that the actions of the victim or some third party could be the reason behind the event.

• The accused was negligent and owed a duty of care towards the victim.

21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208: 2004 SCC (Cri) 1183], the petitioner drove a bus rashly and negligently with 41 passengers, and while crossing a bridge, the bus fell into the nearby canal, resulting in the death of all the passengers. The Court applied the doctrine of res ipsa loquitur since, admittedly, the petitioner was driving the bus at the relevant time, and it was going over the bridge when it fell down. The Court held as under: (SCC p. 209, para 4) “4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into a canal. In such a situation, the doctrine of res ipsa loquitur comes into play, and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.”

22. Still, in Mohd. Aynuddin [(2000) 7 SCC 72: 2000 SCC (Cri) 1281], this Court has also stated the principle: (SCC

p. 74, para 8) “8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.” It has also been stated that the effect of this maxim, however, depends upon the cogency of the inferences to be drawn and must, therefore, vary in each case.”

34. It was laid down by the Hon'ble Supreme Court in B. Nagabhushanam v. State of Karnataka, (2008) 5 SCC 730: (2008) 3 SCC (Cri) 61: 2008 SCC OnLine SC 866 that where the facts speak for themselves, the accused is under an obligation to explain how the accident had occurred. It was observed: -

12. Reliance placed by Mr Kulkarni on Syed Akbar v. State of Karnataka [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] is not apposite. It proceeded on the basis that the doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case, as its applicability in an action for injury by negligence is well known. In Syad Akbar [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848], this Court opined: (SCC p. 41, para 30) “30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.” The maxim was not applied having regard to the facts of the said case and on the finding that it was a case of error of judgment and the accused gave a reasonable, convincing explanation of his conduct. The maxim res ipsa loquitur was not found to be applicable. However, we may notice that the said principle was applied in a case under the Prevention of Corruption Act in State of A.P. v. C. Uma Maheswara Rao [(2004) 4 SCC 399: 2004 SCC (Cri) 1276] in the following terms: (SCC p. 408, para

“19. We may note that a three-judge Bench in Raghubir Singh v. State of Haryana [(1974) 4 SCC 560: 1974 SCC (Cri) 596] held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is ‘res ipsa loquitur’.”

35. Even this Court held in State of H.P. v. Mast Ram, 2009 SCC OnLine HP 808 that in a case under Section 304-A of IPC, the driver has a responsibility to show that the accident did not happen on account of his negligence. The judgment of

Saiyad Akhtar Ali (supra) was explained and was held to be applicable where the driver had adopted his best course to avoid the accident. It was observed: - “16. In a case under section 304-A IPC, the driver has some responsibility to show that the accident did not happen on account of his negligence. The principle of res ipsa loquitur comes into play, and the burden shifts to the person who was in control of the vehicle at the time of the accident. In Thakur Singh v. State of Punjab, (2003) 9 SCC 208, the Supreme Court has held as follows: - “It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into a canal. In such a situation, the doctrine of res ipsa loquitur comes into play, and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part”. Mr Gupta, learned counsel for the respondent, has relied on Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 in support of his submission that the principle of res ipsa loquitur is not applicable in the present case. In Syad Akbar, the accident took place in spite of the driver adopting the best course to avoid the accident. In the present case, the facts are entirely different. Therefore, Syad Akbar (supra) is not applicable to the facts and circumstances of the present case. The respondent has not discharged his burden as held in the Thakur Singh case and has not succeeded in showing that the accident took place due to reasons other than his negligence. In his statement under Section 313 Cr.P.C., he has not said anything about the cause of the accident. PW-2 and

PW-3 have fully proved that the accident took place due to rash or negligent driving of the respondent at the time of the accident, which ultimately caused the death of Arushi. It is a well-settled principle that what matters is the quality and not the quantity of witnesses. It is thus held that the prosecution has proved the accusation against the respondent and he is held guilty of committing an offence punishable under Sections 279, 304-A IPC.”

36. In the present case, it was suggested to the witness that the accident had occurred because of rain and fog. This explanation does not rule out the negligence of the accused. The accused was supposed to drive the vehicle with due care and caution in rain and fog. He cannot escape from liability by claiming that there was rain and fog. Hence, the learned Courts below had rightly held that the accused was negligently driving the vehicle.

37. It was submitted that the witnesses have deposed about the high speed, which is not sufficient to infer negligence. This submission will not help the petitioner/accused because the precise negligence against the accused is that he had failed to negotiate the curve and the vehicle fell off the road, for which he had not provided any proper explanation. Therefore, the use of the term 'high speed' is not material in the present case and no advantage can be derived from the fact that witnesses have not mentioned the approximate speed of the vehicle.

38. It is undisputed that Laiq Ram had died and the other occupants of the vehicle had sustained injuries in the accident. Therefore, the learned Trial Court had rightly convicted the accused of the commission of offences punishable under Sections 279, 337 and 304A of the IPC.

39. The accused also admitted in his statement recorded under Section 313 of the CrPC that he had not produced his driving licence. He claimed that he had misplaced the driving licence. However, he did not summon the official from the registration and licensing authority to prove that the driving licence was issued in his name. Therefore, the learned Courts below had rightly held the accused guilty of the commission of an offence punishable under Section 181 of the MV Act.

40. It was submitted that the learned Trial Court erred in not providing the benefit of the Probation of Offenders Act to the accused. This submission will not help the accused. It was laid down by the Hon'ble Supreme Court in Dalbir Singh Versus

State of Haryana (2000) 5 SCC 82 that the benefit of the Probation of Offenders Act cannot be granted to a person convicted of rash or negligent driving, and a deterrent sentence is to be awarded to him. It was observed: “11. Courts must bear in mind that when any plea is made based on S. 4 of the PO Act for application to a convicted person under S. 304-A of I.P.C., road accidents have proliferated to an alarming extent, and the toll is galloping up day by day in India and that no solution is in sight nor suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country, the saturation of accidents was not even half of what it is today. So V. R. Krishna Iyer, J., has suggested in the said decision, thus : "Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under S. 304-A, I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy-duty vehicles and speeding menaces."

12. In State of Karnataka v. Krishna alias Raju (1987) 1 SCC 538, this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A, I.P.C., to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing the death of a human being. In that case, this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine.

13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences for the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304-A, I.P.C. as attracting the benevolent provisions of S. 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly remind himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in motion. He cannot and should not take a chance thinking that rash driving need not necessarily cause an accident, or even if any accident occurs, it need not necessarily result in the death of any human being, or even if such death ensues, he might not be convicted of the offence, and lastly, that even if he is convicted, he would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if he is convicted of the offence of causing the death of a human being due to his callous driving of a vehicle, he cannot escape from a jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to the callous driving of automobiles.”

41. A similar view was taken in State of Punjab v. Balwinder Singh, (2012) 2 SCC 182, wherein it was held: - “13. It is a settled law that sentencing must have a policy of correction. If anyone has to become a good driver, they must have better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of

Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh [(2000) 5 SCC 82: 2004 SCC (Cri) 1208].

42. Similar is the judgment in State of Punjab v. Saurabh Bakshi, (2015) 5 SCC 182: (2015) 2 SCC (Cri) 751: 2015 SCC OnLine SC 278, wherein it was observed at page 196: “25. Before parting with the case, we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving, where other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty, and the civilised persons drive in constant fear, but are still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish.”

43. Therefore, the benefit of the Probation of Offenders Act could not have been granted to the accused.

44. The learned Trial Court had sentenced the accused to undergo simple imprisonment for one year and pay a fine of ₹1,000/- for the commission of an offence punishable under Section 304A of the IPC, which cannot be said to be excessive considering that a precious life was lost. Thus, no interference is required with the sentence imposed by the learned Trial Court.

45. No other point was urged.

46. In view of the above, the present revision fails, and it is dismissed.

47. The present revision stands disposed of, and so are the pending miscellaneous application(s), if any.

48. The record of the learned Courts below be returned with a copy of the judgment.

(Rakesh Kainthla)

Judge 16th October, 2026 (Nikita)