Himachal Pradesh High Court
Reserved On: 21.4.2026 vs Of on 25 May, 2026
2026:HHC:19449
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 26 of 2016
Reserved on: 21.4.2026
.
Date of Decision: 25.5.2026.
Rajender Singh ...Petitioner
Versus
of
State of H.P. ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Ajay Chandel, Advocate.
For the Respondent/State : Mr. Ajit Sharma, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 18.12.2015, passed by the learned Sessions Judge, Kullu District, Kullu, H.P., vide which the judgment of conviction dated 19.2.2015 and order of sentence dated 20.2.2015, passed by the learned Chief Judicial Magistrate, Kullu, H.P. (learned Trial Court), were upheld. (The parties shall hereinafter be referred to in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/05/2026 08:22:43 :::CIS 22026:HHC:19449 the same manner as they were arrayed before the learned trial Court for convenience.
.
2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Section 279, 337 and 338 of the of Indian Penal Code (IPC). It was asserted that the informant, Vivek Thakur (PW1), was riding a motorcycle bearing rt registration No. HP-34A-9430 on 7.7.2009. Hira Lal (PW4) was a pillion rider of the motorcycle. The motorcycle reached the gate of the workshop at Shamshi at about 9.45 A.M., when a bus bearing registration No. HP-65-7644 came from the opposite side at a high speed. A Gypsy was going ahead of the bus. The driver overtook the Gypsy at high speed and hit the motorcycle on the right side of the road. The informant and the pillion rider fell. Rajinder Singh (accused) was driving the bus. The accident occurred due to the high speed of the bus and the negligence of the accused. The matter was reported to the police. An entry (Ex.PW8/A) was recorded in the Police Station. ASI Karan Singh (PW9) went to the hospital for verification of the information.
He recorded the informant's statement (Ex.PW1/A) and sent it to ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 3 2026:HHC:19449 the Police Station, where an FIR (Ex.PW10/A) was registered. ASI Karan Singh filed an application for the medical examination of .
the injured. Dr Rakesh Kumar (PW6) examined Hira Lal and found that he had sustained multiple injuries. He advised X-ray, but no fracture was detected. Dr Rakesh Kumar stated the nature of the injury was simple, which could have been caused within of four hours of the examination. He issued the MLC (Ex.PW6/A).
Dr Rakesh Kumar (PW6) also examined Vivek Thakur and found rt that he had sustained multiple injuries. He advised an X-ray.
Fracture of the shaft of the 3rd and 4th metacarpal of the right hand, with fracture of the proximal phalanx at the base and a comminuted fracture of the shaft of the right femur were detected. Dr. Rakesh Kumar stated the nature of the injuries to be grievous, which could have been caused by a fall from a height. He issued the MLC (Ex.PW6/B). HC Purshotam Ram investigated the matter. He visited the spot, prepared the site plan (Ex. 10/B) and seized the motorcycle bearing No. HP-34A-
9430 and the bus bearing Registration No. HP-65-7644 vide memos (Ex. PW2/A and Ex.PW5/A). Madho Ram (PW3) examined the bus bearing registration No. HP-65-7644 and found that it had no mechanical defect in it that could have led to the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 4 2026:HHC:19449 accident. He issued the report (Ex.PW3/A). The report of the mechanical examination of the motorcycle (Ex.PW3/B) was also .
obtained. HC Purshotam Ram recorded the statements of the witnesses as per their version. After the completion of the investigation, the challan was prepared and presented before the Court.
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3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of rt accusation was put to him for the commission of offences punishable under Sections 279, 337 and 338 of the IPC, to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined ten witnesses to prove its case. Vivek Thakur (PW1) is the informant/injured. Dr ML Bandhu (PW2), Radiographer, went through the X-rays and found fractures. Madho Ram (PW3) mechanically examined the bus. Hira Lal (PW4) was the pillion rider and an injured. Kesri Lal (PW5) witnessed the recovery. Dr Rakesh Kumar (PW6) examined the injured. Devi Dass (PW7) witnessed the recovery.
Constable Narender Pal (PW8) proved the entry in the daily diary. ASI Karan Singh (PW9) went to the hospital and recorded ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 5 2026:HHC:19449 the informant's statement. HC Purshotam Ram (PW10) investigated the matter.
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5. The accused in his statement recorded under Section 313 of the Cr.PC denied the prosecution's case in its entirety. He claimed that a false case was registered against him, and the witnesses had deposed falsely against him. He did not produce of any evidence in his defence.
6. rt The learned Trial Court held that the informant's testimony was duly corroborated by the statement of Hira Lal and the site plan. It was duly proved that the accused was driving the bus on the right side of the road, which led to the accident. The mere fact that the victim was not holding a valid driving license was not sufficient to acquit the accused. The proximate cause of the accident was the overtaking of the Gypsy by the bus and taking the bus to the wrong side, to which the absence of a license by the victim did not contribute in any manner. The informant and the pillion rider had sustained simple and grievous injuries in the accident. Hence, the learned Trial Court convicted the accused of the commission of offences ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 6 2026:HHC:19449 punishable under Sections 279, 337 and 338 of the IPC and sentenced him as under: -
.
Under Section 279 of the To suffer simple imprisonment for one IPC month, pay a fine of ₹500/-, and in default of payment of the fine, to undergo simple imprisonment for 15 days.
of Under Section 337 of the To suffer simple imprisonment for two IPC. months, pay a fine of ₹500/-, and in rt default of payment of the fine, to undergo simple imprisonment for 15 days.
Under Section 338 of the To suffer simple imprisonment for six IPC. months, pay a fine of ₹1,000/-, and in default of payment of the fine, to undergo simple imprisonment for one month.
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 Sessions Judge, Kullu, District Kullu, H.P. (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused had driven the bus towards the right side of the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 7 2026:HHC:19449 road, which was the proximate cause of the accident. The fact that the informant was a minor and did not possess a driving .
licence did not contribute to the accident. Otherwise, the concept of contributory negligence does not apply to the criminal law.
The informant and the pillion rider had sustained injuries in the accident. Learned Trial Court had rightly convicted the accused.
of The sentence imposed by the learned Trial Court was adequate, and no interference was required with it. Hence, the appeal filed rt by the accused 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 failed to appreciate the evidence on record in its right perspective. No independent witness was examined despite the availability.
Vivek Thakur was a minor and was not holding a valid license to drive the motorcycle. This fact constituted negligence on the informant's part. The mechanical report showed that there were no signs/marks of the motorcycle being struck by the bus. The mechanical report of the motorcycle was not proved because the mechanic who had conducted the mechanical examination and issued the report was not examined. Mohar Singh was not ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 8 2026:HHC:19449 produced before the Court, and his examination was necessary.
The site plan showed that there was ample space of about six ft.
.
to the left side of the bus, and the informant could have easily driven the motorcycle in that space. The Investigating Officer had not registered any case against the informant for driving the motorcycle without a valid driving license. The petitioner is a of first-time offender, and the learned Courts below should have taken a lenient view of the matter by extending the benefit of rt Section 4 of the Probation of Offenders Act. 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 Ajay Chandel, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State.
10. Mr Ajay Chandel, learned counsel for the petitioner/accused, submitted that the learned Courts below erred in convicting and sentencing the accused. It was duly proved on record that the informant was a minor and did not possess a valid license. Therefore, he was negligent in driving the motorcycle on the road without a valid driver's license. He ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 9 2026:HHC:19449 had sufficient space to drive the motorcycle, but the motorcycle hit the bus. The learned courts below erred in denying the .
benefit of the Probation of Offenders Act 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.
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11. Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State, submitted that the learned Courts rt below had rightly pointed out that the proximate cause of the accident was driving the bus towards the right side of the road.
The absence of a driving license with the informant did not contribute in any manner to the accident. The informant and the pillion rider had sustained injuries in the incident, and their presence on the spot cannot be doubted. No reason was assigned to discard the testimonies, and learned Courts below had rightly relied upon the statements of the victim and the pillion rider.
Both the learned Courts below have concurrently held that the accused was negligently driving the bus and his negligence led to the accident, causing simple and grievous hurt to the informant and Hira Lal. This Court should not interfere with the concurrent ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 10 2026:HHC:19449 finding of facts recorded by the learned Courts below. Therefore, he prayed that the present revision be dismissed.
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12. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.
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13. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
rt (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy 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. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error that is to be determined on the merits of individual cases. It is also well settled that while considering the same, the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 11 2026:HHC:19449 Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v.
.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:
"14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to of call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect rt or an error of jurisdiction or law or the perversity which has crept in such proceedings.
15.It would be apposite to refer to the judgment of this Court in Amit Kapoor v.Ramesh Chander, (2012) 9 SCC 460:
(2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where the scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 12 2026:HHC:19449 perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
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13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not of lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the rt exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated.
Even the framing of the charge is a much-advanced stage in the proceedings under CrPC."
15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:
"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. 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: (SCC pp. 454-55, para 5)
5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 13 2026:HHC:19449 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 conclusion on the same when the evidence has of 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 amount to a gross rt miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..."
13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) "14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 14 2026:HHC:19449 appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under .
Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly of ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction."
rt
16. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
"16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
17. 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. The answer to the first question is, therefore, in the negative."
17. This position was reiterated in Sanjabij Tari v. Kishore S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:
::: Downloaded on - 30/05/2026 08:22:43 :::CIS 152026:HHC:19449 "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 [See: Bir Singh(supra)]. This Court is of the view that it is not for .
the Revisional Court to re-analyse 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 of 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 rt concurrent findings of the Trial Court and the Sessions Court.
18. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
19. Informant Vivek Thakur admitted in his cross-
examination that he was aged less than 18 years on the date of the accident and did not possess any valid driving license to drive the motorcycle. It was submitted based on the submission that the victim was negligent in driving the motorcycle without a license, and learned Courts below erred in ignoring this fact.
This submission is only stated to be rejected. It was laid down in State Government v. Bhawanesh Kumar, 1957 SCC OnLine MP 102, that the absence of a driving licence does not constitute rashness or negligence. It was observed:
::: Downloaded on - 30/05/2026 08:22:43 :::CIS 162026:HHC:19449 "15. We are equally clear that from the mere fact that the accused-respondent did not possess a driving licence, it cannot be positively inferred that he was guilty of rashness or negligence in driving a heavy vehicle like a .
truck. There is evidence of Jabbar (D. W. 1), which shows that the accused is in charge of the Sarodha Head Workshop, and he has been testing and driving motor vehicles for 1½ years. According to him, he is an experienced motor driver, and consequently, there is nothing to show that in undertaking to drive a heavy of motor vehicle like a truck, he was undertaking a risk for which there was no justification whatsoever. Whether he drives a vehicle with a licence or without a licence, the law expects him to be neither rash nor negligent in the rt performance of his task, and we will judge his conduct in the matter as if he were the most qualified driver who brings to his task the ordinary reasonable competency of persons driving heavy motor vehicles."
20. This position was reiterated in Suleman Rehiman Mulani v. State of Maharashtra, 1967 SCC OnLine SC 337: (1968) 2 SCR 515: AIR 1968 SC 829, wherein it was observed:
12.... There is no presumption in law that a person who possesses only a learner's licence or possesses no licence at all does not know how to drive. For various reasons, not excluding sheer indifference, he might not have taken a regular licence. The prosecution's evidence that Appellant 1 had driven the jeep to various places on the day previous to the occurrence is proof of the fact that he knew how to drive. There was no basis for the conclusion that it was a sheer stroke of good fortune that he did not meet with any accident on that day.
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14....In the present case, we do not know what the proximate cause of the accident was. We cannot rule out the possibility of the accident having been caused by the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 17 2026:HHC:19449 fault of the deceased. The question of whether Appellant 1 was proficient in driving a Jeep or not resolves the issue.
His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency .
did not make him guilty. The only question was whether, in point of fact, he was not competent to drive and his incompetence was the cause of the death of the person concerned.
21. Therefore, the informant could not have been held to of be negligent merely because he did not possess a valid driving licence.
22. rt The informant stated that he was driving the motorcycle towards his side when a bus came from the opposite side and hit the motorcycle on the wrong side of the road. He denied that he was overtaking the vehicles at a high speed and had hit the stationary bus.
23. His statement was corroborated by Hira Lal (PW4), who stated that a bus tried to overtake the Gypsy and hit the motorcycle on the wrong side of the road. He stated in his cross-
examination that there was a bus stop near the workshop. He denied that Vivek Thakur did not know how to drive the motorcycle and had hit the bus.
24. The informant and the pillion rider were examined by Dr Rakesh Kumar, who found multiple injuries on their ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 18 2026:HHC:19449 person which could have been caused by a fall from a height. It was submitted that the testimony of the Medical Officer does not .
establish that the injuries were caused during the accident. This submission is not acceptable. It is an admitted case that the motorcycle had fallen after the accident. Therefore, the opinion that the injuries could have been caused by a fall from a height of corroborates the prosecution's version and not the defence version. It was laid down by the Hon'ble Supreme Court in rt Ramakant Rai v. Madan Rai, (2003) 12 SCC 395: 2003 SCC OnLine SC 1086, that when the testimonies of the witnesses are found credible, the medical evidence pointing to alternative possibilities is not sufficient to discard the prosecution's case. It was observed at page 404:
"22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 19 2026:HHC:19449 "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
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25. Therefore, the testimonies of the victim and the pillion rider cannot be rejected because of the medical evidence.
26. The statement of the Medical Officer shows that the of informant and the pillion rider had sustained injuries. It was held by the Hon'ble Supreme Court in Neeraj Sharma v. State of rt Chhattisgarh, (2024) 3 SCC 125: 2024 SCC OnLine SC 13 that the testimony of the injured witness has to be accepted as correct unless there are compelling circumstances to doubt such a statement. It was observed:
"22. The importance of an injured witness in a criminal trial cannot be overstated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as extremely valuable evidence in a criminal trial.
23.InBalu Sudam Khaldev.State of Maharashtra[Balu Sudam Khaldev.State of Maharashtra, (2023) 13 SCC 365:
2023 SCC OnLine SC 355], this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eyewitness. This Court held as follows: (SCC para 26) "26. When the evidence of an injured eyewitness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:::: Downloaded on - 30/05/2026 08:22:43 :::CIS 20
2026:HHC:19449 26.1. The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
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26.2. Unless it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. 26.3. The evidence of the injured witness has greater evidentiary value, and unless compelling of reasons exist, their statements are not to be discarded lightly.
rt 26.4. The evidence of the injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial embellishment in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of the injured, but not the whole evidence.
26.6. The broad substratum of the prosecution version must be taken into consideration, and discrepancies which normally creep due to loss of memory with the passage of time should be discarded." (emphasis supplied)
27. It was laid down by the Hon'ble Supreme Court in State of U.P. Versus Smt. Noorie Alias Noor Jahan and Others, (1996) 9 SCC 104, that while assessing the evidence of an eyewitness, the Court must adhere to two principles, namely, whether, in the circumstances of the case, the eyewitness could be present and ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 21 2026:HHC:19449 whether there is anything inherently improbable or unreliable.
It was observed: -
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"7. The High Court having acquitted the accused persons on appreciation of the evidence, we have ourselves scrutinised the evidence of PWs 1, 2 and 3. The conclusion is irresistible that their evidence on material particulars has been brushed aside by the High Court by entering into the realm of conjecture and fanciful speculation without of even discussing the evidence, more particularly the evidence relating to the basic prosecution case. While assessing and evaluating the evidence of eyewitnesses, the Court must adhere to two principles, namely, whether, in the rt circumstances of the case, it was possible for the eyewitness to be present at the scene and whether there is anything inherently improbable or unreliable. The High Court, in our opinion, has failed to observe the aforesaid principles and, in fact, has misappreciated the evidence, which has caused a gross miscarriage of justice. The credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross-examination and what impression is created by his evidence, taken insofar as the context of the case, and not by entering into the realm of conjecture and speculation. On scrutinising the evidence of PWs. 1, 2 and 3, we find they are consistent with one another so far as the place of occurrence, the manner of assault, the weapon of assault used by the accused persons, the fact of dragging of the dead body of the deceased from the place to the grove and nothing has been brought out in their cross-examination to impeach their testimony. The aforesaid oral evidence fully corroborates the medical evidence. In that view of the matter, we unhesitatingly come to the conclusion that the prosecution has been able to establish the charge against the accused persons and the High Court committed an error in acquitting the three respondents, namely Inder Dutt, Raghu Raj and Bikram." (emphasis supplied) ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 22 2026:HHC:19449
28. This position was reiterated in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952, wherein it was observed:
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"33. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
"(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his of deposition.
(b) Unless it is otherwise established by the evidence, it must be believed that an injured witness would not rt allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of an injured witness has greater evidentiary value, and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of an injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of the injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration, and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
34. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 23 2026:HHC:19449 is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to .
improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a of definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the rt value of the prosecution evidence. (See: Balu Sudam Khaldev.State of Maharashtra:(2023) 13 SCC 365).
29. It was laid down by the Hon'ble Supreme Court in State of Punjab vs. Hari Singh 1974 (3) SCR 725 that a person speaking on oath should be presumed to be a truthful witness unless there is something inherently improbable in his testimony. It was observed:
"The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility for the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them."::: Downloaded on - 30/05/2026 08:22:43 :::CIS 24
2026:HHC:19449
30. It was submitted that the place of the accident was a busy road, but no independent witness was examined.
.
Therefore, an adverse inference should be drawn against the prosecution for withholding the independent witness. This submission is only stated to be rejected. The question of adverse inference only arises when the evidence on record is not of sufficient to prove the case of the party 2. In the present case, the testimonies of the informant and the pillion rider are rt satisfactory and duly corroborated by the site plan. Therefore, there is no question of drawing an adverse inference.
31. It was submitted that Mohar Singh was not examined, and an adverse inference should be drawn against the prosecution. This submission is only stated to be rejected. The Learned Assistant Public Prosecutor had given a person as being repetitive. It was held in Hukam Singh v. State of Rajasthan, 2000 (7) SCC 490, that the Public Prosecutor is under no obligation to examine all the witnesses. If the statement of a witness is repetitive, the public prosecutor can give him up. It was observed:
2Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar, (1981) 4 SCC 569, and Rattan Dev v. Pasam Devi, (2002) 7 SCC 441 ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 25 2026:HHC:19449 "13.....If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual .
aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the court that he does not propose to of examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the court considerably in lessening the rt workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
32. It was further held that the Public Prosecutor is not obliged to examine a witness who will not support the prosecution. It was observed at page 495:
"13. When the case reaches the stage envisaged in Section 231 of the Code, the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 26 2026:HHC:19449 cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to .
inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen of the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one rt consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit it to one or two among them. But if the Public Prosecutor got reliable information that anyone among that category would not support the prosecution's version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor fairly. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court.
15. A four-judge Bench of this Court had stated the above legal position thirty-five years ago in Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226]. It is contextually apposite to extract the following observation of the Bench:
"It is not unknown that where serious offences like the present are committed, and a large number of accused persons are tried, attempts are made either to terrorise ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 27 2026:HHC:19449 or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such .
witnesses before the court."
16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC (Cri) 515: AIR 1974 SC 902]. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033], Krishna Iyer J., speaking for a three-judge Bench, had of struck a note of caution that while a Public Prosecutor has the freedom "to pick and choose" witnesses, he should be fair to the court and the truth. This Court reiterated the same position in Dalbir Kaur v. State of Punjab [(1976) 4 rt SCC 158: 1976 SCC (Cri) 527].
33. It was laid down by the Hon'ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196, that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non-examination of other witnesses will not make the testimony doubtful. It was observed: -
"[10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 28 2026:HHC:19449 it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears .
to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of of the appellants can be sustained."
34. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434, and it was held that the prosecution rt is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed:
14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 29 2026:HHC:19449 of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.
.
15. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to examine and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of of the prosecution with all its essentials.
16. In Masalti v. the State of U.P., AIR 1965 SC 202, this Court held that it would be unsound to lay down as a rt general rule that every witness must be examined, even though the evidence provided by such a witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr. P.C. (See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC
420)
17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye-witness(s) is deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.
18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under:
"10. ... Material witnesses considered necessary by the prosecution for unfolding the prosecution's story alone need to be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 30 2026:HHC:19449 how the prosecution's story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the .
prosecution. Incidentally, we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version....."
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC 2914, this Court reiterated a similar view and further of observed:
"24. ... Illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a rt necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness....."
20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991 SC 1346, this Court held:
"10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence, and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.::: Downloaded on - 30/05/2026 08:22:43 :::CIS 31
2026:HHC:19449 .. To enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by .
exercising its discretionary authority at any stage of enquiry, trial or another proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-
of examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative rt presentation of facts, the ends of justice would be defeated."
21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261, this Court held:
"12. In trials before a Court of Session, the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973, enjoins him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.......If that version is not in support of the prosecution's case, it would be unreasonable to insist on the Public Prosecutor examining those persons as witnesses for the prosecution.
13. When the case reaches the stage envisaged in Section 231 of the Code, the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution's case. At the said stage, the Public Prosecutor would be in a position to take a decision ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 32 2026:HHC:19449 as to which among the presences cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the .
time of the Court can be saved from repetitious depositions on the same factual aspects.......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make of every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
14. It is open to the defence to cite him and examine rt him as a defence witness."
22. The said issue was also considered by this Court in R. Shaji (supra), and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, and Kishan Chand v. State of Haryana JT 2013 (1) SC 222, held as under:
"22. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence, that is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus the quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 33 2026:HHC:19449 witnesses produced over and above this does not carry any weight."
23. Thus, the prosecution is not bound to examine all the .
cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be of shown that the prosecution has been influenced by some oblique motive." In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against rt the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness if it is so warranted in the interests of justice. The evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.
35. This position was reiterated in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was observed at page 224: -
Non-examination of the witness
34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials, sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice.::: Downloaded on - 30/05/2026 08:22:43 :::CIS 34
2026:HHC:19449 Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the party that alleges that a witness has .
not been produced deliberately to prove it.
35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab [Sarwan Singh v.
State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646]: (SCC pp. 377-78, para 13) "13. Another circumstance which appears to have of weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the rt prosecution's case of assault on the deceased, although the evidence shows that there were some persons living in that locality, like the "pakodewalla", hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution's case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution's case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 35 2026:HHC:19449 before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and .
were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its of intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered, and some of the members of the crowd had actually seen the occurrence and were cited rt as witnesses for the prosecution and then withheld. We must not forget that in our country, there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore, nobody wants to be a witness to a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes." (emphasis supplied)
36. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC pp. 410-11, para 19) "19. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 36 2026:HHC:19449 particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is .
cogent, credible, trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity that determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in of probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can even be based on the rt testimony of a sole eyewitness if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC 614], Kunju v. State of T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 :
(2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 :
(2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)"
36. Therefore, no adverse inference can be drawn against the prosecution or non-examination of Mohar Singh.
37. There is nothing in the cross-examination of these witnesses to show that they were making false statements. Their testimonies were corroborated by the site plan (Ex.PW10B), in which the place of the accident is shown towards the right side ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 37 2026:HHC:19449 of the bus coming from the Manali side. Two and a half ft. space was available towards the right side of the bus, and the total .
width of the road was 26 ft. This corroborates the testimony of the informant and the pillion rider that the bus was being driven towards the right side of the road.
38. The Central Government has framed the Rules of the of Road Regulations, 1989, to regulate the movement of traffic.
Rule 2 provides that the driver of a vehicle shall drive the vehicle rt as close to the left side of the road as may be expedient and shall allow all the traffic which is proceeding in the opposite direction to pass on his right side. It was laid down in FaguMoharana vs. State, AIR 1961 Orissa 71, that driving the vehicle on the right side of the road amounts to negligence. It was observed:
"The car was on the left side of the road, leaving a space of nearly 10 feet on its right side. The bus, however, was on the right side of the road, leaving a gap of nearly 10 feet on its left side. There is thus no doubt that the car was coming on the proper side, whereas the bus was coming from the opposite direction on the wrong side. The width of the bus is only 7 feet 6 inches, and as there was a space of more than 10 feet on the left side, the bus could easily have avoided the accident if it had travelled on the left side of the road."::: Downloaded on - 30/05/2026 08:22:43 :::CIS 38
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39. Similarly, it was held in State of H.P. Vs. Dinesh Kumar 2008 H.L.J. 399, where the vehicle was taken towards the right .
side of the road, the driver was negligent. It was observed:
"The spot map Ext. P.W. 10/A would show that at point 'A on the right side of the road, there were blood stain marks and a V-shape slipper of deceased Anu. Point 'E' is the place where P.W. 1 Chuni Lal was standing at the time of of the accident, and point 'G' is the place where P.W. 3 Anil Kumar was standing. The jeep was going from Hamirpur to Nadaun. The point 'A' in the spot map Ext. P.W. 10/A is almost on the extreme right side of the road."
rt
40. This position was reiterated in State of H.P. vs. Niti Raj 2009 Cr.L.J. 1922, and it was held:
"16. The evidence in the present case has to be examined in light of the aforesaid law laid down by the Apex Court.
In the present case, some factors stand out clearly. The width of the pucca portion of the road was 10 ft. 6 inches. On the left side, while going from Dangri to Kangoo, there was a 7 ft. kacha portion, and on the other side, there was an 11 ft. kacha portion. The total width of the road was about 28 ft. The injured person was coming from the Dangri side and was walking on the left side of the road.
This has been stated both by the injured and by PW-6. This fact is also apparent from the fact that after he was hit, the injured person fell into the drain. A drain is always on the edge of the road. The learned Sessions Judge held, and it has also been argued before me, that nobody has stated that the motorcycle was on the wrong side. This fact is apparent from the statement of the witnesses, who state that they were on the extreme left side, and the motorcycle, which was coming from the opposite side, hit them. It does not need a genius to ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 39 2026:HHC:19449 conclude that the motorcycle was on the extreme right side of the road and therefore on the wrong side."
41. Therefore, the accused had not followed the rule of .
the road regulation, which led to the accident, and the learned Courts below had rightly held that the accused was negligent.
42. Hira Lal (PW4) specifically stated that the accused of was overtaking a Gypsy at the time of the accident. Rule 6 of the Rules of the Road Regulations, 1989 provides that the driver of a rt motor vehicle shall not pass a vehicle travelling in the same direction as himself on a curve if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction, without getting a signal from the driver ahead of him.
It was laid down by the Punjab and Haryana High Court in Shammi Malik v. Amrik Singh, 1997 SCC OnLine P&H 1266: (1998) 2 RCR (Civil) 14 (2) that the driver of the vehicle cannot overtake when another vehicle is coming from the opposite side. It was observed at page 15:
"5. ...Regulation 6 of the Rules of the Road Regulations, 1989, provides that the driver of a motor vehicle shall not pass a vehicle travelling in the same direction if the driver ahead of him has not signalled that he may be over-taken and if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction. In this case, it is not the case that the truck driver was the driver ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 40 2026:HHC:19449 of the car who had given him a signal that he may be overtaken. In fact, the truck driver should not have overtaken the car when he had noticed a truck coming from the opposite direction. It is also not the case of the .
truck driver that the truck driver did not apply the brakes or did not slow the vehicle. Rather, it is the case of the truck driver that the speed of the car was slow. A Division Bench of the Mysore High Court in K.N. Nithyananda v. Mysore State Agro Industries Corporation, by its Managing Director Bangalore and another, AIR 1973 Mysore 314, in of context with Regulation 4 (now Regulation 6), has held that the drivers of automatically propelled vehicles, when attempting to overtake vehicles going ahead of them should wait for the proper opportunity viz., slackness in rt traffic on the same road before doing so. They are duty- bound to exercise sufficient care and caution by looking ahead and behind to ascertain that it would be safe for them to overtake such a vehicle. A further duty is cast on them to give a proper signal to the driver of the vehicle ahead to indicate that they would be overtaking the vehicle and wait for a reply signal from the driver permitting them to overtake and thereby indicating that the road is clear and there would be no danger in overtaking. The evidence of RW-1, Amrik Singh, a truck driver, makes it abundantly clear that he did not at all exercise any caution while overtaking the Maruti car or while stopping his vehicle all of a sudden. In these circumstances, I have no hesitation in holding that Amrik Singh, a truck driver, was not only rash in the manner of driving the truck while overtaking the Maruti car but was also negligent in stopping his vehicle all of a sudden, thereby causing the accident."
43. A similar view was taken by this Court in State of H.P. vs Piar Chand 2003 (2) Shim. LC 341, wherein it was observed:
::: Downloaded on - 30/05/2026 08:22:43 :::CIS 412026:HHC:19449 "19. In Raj Kumar v. State of H.P. 1997 (2) Sim. L.C. 161, learned single Judge of this Court, while dealing with a similar situation, has held as under: -
.
"13. It goes without saying that the drivers of automatically propelled vehicles, when attempting to overtake vehicles going ahead of them, ought to wait for the proper opportunity. A duty is cast on them to exercise sufficient care and caution by looking ahead and behind to ascertain that it would be safe for them to overtake the vehicle moving of ahead of them. A further duty is cast on them to give a proper signal to the driver of the vehicle ahead to indicate that they would be overtaking the vehicles and wait for a reply signal from that driver rt permitting them to overtake and thereby indicating that the road ahead is clear and there would be no danger in overtaking. If these minimum precautions are not observed by drivers of automatically propelled vehicles, while overtaking the vehicles going ahead of them, it will have to be considered that such driving is rash and negligent."
20. In the case in hand, the accused, while overtaking the truck, was required to take the minimum precaution to wait for a proper opportunity to overtake the truck and take necessary caution to see whether any vehicle was not coming from the opposite side and to give a proper signal to the driver of the truck and wait for a reply signal from the driver of the truck. This has not been done by the accused and, therefore, he was negligent in driving the Jeep."
44. In the present case, the accused overtook the Gypsy when a motorcycle was coming from the opposite side, contrary to the Rules of the Road Regulations. There is no evidence that the driver of the Gypsy had signalled the accused to overtake the ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 42 2026:HHC:19449 Gypsy. Therefore, the accused was in breach of the statutory regulations, which led to the accident, and he was rightly held .
guilty of the commission of an offence punishable under Section 279 of the IPC.
45. Learned Trial Court had sentenced the accused to undergo simple imprisonment for six months for the of commission of an offence punishable under Section 338 of the IPC. The other sentences imposed were less than six months. It rt was submitted that the benefit of the Probation of Offenders Act should have been granted to the petitioner, and the learned Courts below erred in denying such benefit. This submission cannot be accepted. 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 the commission of offences punishable under Sections 279, 304-A of IPC. 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 ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 43 2026:HHC:19449 much so the Indian highways are among the top killers of the country", the saturation of accident toll 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."
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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 rt 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 of visiting 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 inform 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 locomotion. 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 ::: Downloaded on - 30/05/2026 08:22:43 :::CIS 44 2026:HHC:19449 would be dealt with leniently by the Court. He must always keep in his 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."
46. A similar view was taken in Thakur Singh v. State of of Punjab, (2003) 9 SCC 208, wherein it was observed: -
6. Learned counsel lastly made an alternative plea that the Probation of Offenders Act may be applied to secure rt his job. This Court has held in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82] that the Probation of Offenders Act cannot be invoked in cases involving rash or negligent driving of the bus resulting in the death of human beings."
47. This position was reiterated in State of Punjab v.
Balwinder Singh, (2012) 2 SCC 182, where 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].::: Downloaded on - 30/05/2026 08:22:43 :::CIS 45
2026:HHC:19449
48. Therefore, it is impermissible to grant the benefit of the Probation of Offenders Act to a person convicted of driving a .
vehicle in a rash and negligent manner.
49. The victim had sustained a grievous injury consisting of multiple fractures. Therefore, the sentence of six months cannot be said to be excessive in any manner.
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50. No other point was urged.
51. rt In view of the above, the present revision fails and is dismissed.
52. A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith.
53. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 25th May, 2026 (Chander) ::: Downloaded on - 30/05/2026 08:22:43 :::CIS