Himachal Pradesh High Court
Bhag Chand vs State Of H.P on 8 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 32 of 2010 Reserved on: 12.10.2023 .
Date of Decision:08.11.2023
Bhag Chand ....Appellant
Versus
State of H.P. .....Respondent
of
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes rt For the Appellant : Mr. Raju Ram Rahi, Advocate. For the Respondent : Mr. Navlesh Verma, Additional Advocate General with Mr. Prashant Sen & Ms. Avni Kochhar, Deputy Advocates General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and order dated 25.11.2009/26.11.2009 passed by learned Sessions Judge, Mandi, vide which, the appellant (accused before the learned Trial Court) was convicted for the commission of the offence punishable under Section 304-A of IPC and he was sentenced to undergo rigorous imprisonment for one year, pay a fine of ₹10,000/- and in default of payment of fine to undergo simple imprisonment for six months. The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 2 amount of the fine was ordered to be disbursed as compensation to the legal heirs of the victim-Partap Singh. (Parties shall .
hereinafter referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the of accused for the commission of an offence punishable under rt Section 304 of IPC. It was asserted that informant-Rakesh Kumar (PW1) was the owner of a tractor bearing registration no.
HP-37-0463. He had engaged Chet Ram (PW-9) as a driver. Chet Ram was parking the tractor on 23.04.2002 at about 7:50 PM. A Gypsy bearing registration no. HID-15 came from Sundernagar followed by a truck bearing registration no. HP-34-4511. The accused Bhag Chand was driving the truck at a high speed. The truck hit the Gypsy and the Gypsy hit the tractor. The driver of the Gypsy was crushed between the tractor and the Truck. He died on the spot.
3. The matter was reported to the police. ASI-Prem Lal (PW10) was told about the information and directed to visit the spot to verify its correctness. ASI-Prem Lal (PW10) went to the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 3 spot and found that the truck bearing registration no. HP-34- 4511 had collided with the Gypsy bearing registration no. HID 15.
.
The trolly of the tractor bearing registration no. HP-37-0463 was also damaged. Accused Bhag Chand was present on the spot.
ASI-Prem Lal took the photographs (Ext. PJ/1 to PJ/6) whose negatives are Ext. PJ/7 to PJ/12. He recorded the statement of of Rakesh Kumar (Ext. PA) which was sent to the police station, where FIR (Ext. PH) was registered. ASI-Prem Lal extracted the rt dead body, which was taken to the hospital. ASI-Bhupinder Singh (PW5) prepared the inquest papers (Ext. PD) and filed an application (Ext. PE) for the post-mortem examination of the deceased. Dr Rakesh Kumar (PW2) conducted the post-mortem examination of Partap Singh, the driver, and found that he had died due to head injury, loss of a large amount of blood caused by the severance of vessels of the heart and multiple fractures.
The injuries sustained by Partap Singh could have been caused by a motor vehicle accident. He issued the Post Mortem Report (Ext. PW12/A). ASI-Prem Lal prepared the spot map (Ext. PK).
He seized the Gypsy, truck and tractor vide Memos (Ext. PL, Ex.
PB and Ex. PC). He filed an application (Ext. PG/1) for the medical examination of the accused. Dr. J.C. Sharma (PW7) ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 4 conducted the medical examination of the accused and found that the accused was smelling of alcohol. Blood and urine .
samples were taken, which were sent to the chemical examiner.
The chemical examiner issued a report (Ext. PF) showing that the level of Alcohol in the blood and urine was 219.9 mg % and 230.0 mg % respectively. Dr. J.C. Sharma issued the MLC (Ext.
of PG). The vehicles were mechanically examined and no mechanical defect was found in them which could have led to rt the accident. Reports (Ext. PM/1 to PM/3) were issued.
Statements of witnesses were recorded as per their version. The police found after the investigation that the truck had hit the Gypsy towards the Kacchha portion of the road. The accused had quarrelled with the driver of the Gypsy and that is why he had deliberately hit the Gypsy. Hence, the challan was prepared and presented for the commission of an offence punishable under Section 304 of IPC before the Court of learned JMFC.
4. Learned Additional Chief Judicial Magistrate, Mandi committed the case to the Court of sessions for trial.
5. The accused was initially charged with the commission of an offence punishable under section 304 of the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 5 IPC; however, an alternative charge was also framed subsequently for the commission of offence punishable under .
Section 304 AA of the IPC.
6. The prosecution examined 12 witnesses to prove its case. Rakesh Kumar (PW1) is the informant. Pardeep Kumar (PW2) is an eyewitness. Charan Singh (PW3) proved the accident of but did not support the prosecution case regarding the quarrel rt between the accused and the driver of the Gypsy, Rajmal (PW4) carried the blood and urine samples to FSL, Junga. ASI-
Bhupinder Singh (PW5) conducted the inquest. Om Parkash (PW6) prepared the challan. Dr. J.C. Sharma (PW7) medically examined the accused. HC-Gandhi Ram (PW8) was working as MHC who recorded the FIR and with whom the samples were deposited. Chet Ram (PW9)is the driver of the tractor, who did not support the prosecution case. ASI-Prem Lal (PW10) conducted the investigation. B.S. Dehal (PW11) was posted as SDM, Sadar to whom the Gypsy was allotted. Dr Rakesh Kumar (PW12) conducted the post-mortem examination of the deceased.
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 67. The accused in his statement recorded under Section 313 Cr.P.C. denied the prosecution case in its entirety; however, .
he admitted that the Truck was seized by the police. He stated that witnesses deposed against him because a Government vehicle was involved. He is innocent and he was falsely implicated. No defence was sought to be adduced by the accused.
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8. Learned Sessions Judge held that the post-mortem rt report proved that the deceased had died due to a head injury.
The testimony of the informant shows that the deceased was not driving the Gypsy at an excessive speed. The photographs show that the tractor was on the left side of the road. The truck went to the extreme left side and hit the Gypsy. The site plan shows that the width of the mettled portion of the road was 24 feet. 11 feet Kacchha portion was available on the left side. The truck was on the extreme left of the road and its rear tyre was about 2 feet away from the edge. The right rear tyre was also in the Kachha portion of the road. There was no justification for the truck to be driven on the Kachha portion of the road. The prosecution version that the accused quarrelled with the driver of the Gypsy was not established. The defence that the Gypsy driver lost control of the Gypsy while overtaking a bus and hit ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 7 the tractor was not believable. The accused was heavily intoxicated. He failed to drive the vehicle carefully. His .
negligence caused the death of the driver of the Gypsy, hence, the accused was convicted and sentenced as aforesaid.
9. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting of that the learned Trial Court misappreciated the evidence on rt record. The testimonies of the witnesses do not corroborate each other. The Gypsy and the truck were coming from Sundernagar and going towards Mandi. The prosecution version regarding the quarrel between the drivers of the truck and Gypsy was not established. The statements of PW3 and PW9 contradicted the prosecution version and learned Trial Court erred in convicting the accused. The driver of the tractor and conductor of the truck had not supported the prosecution case and the accused was entitled to a benefit of the doubt. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 810. I have heard Mr. Raju Ram Rahi learned counsel for the accused-appellant and Mr. Navlesh Verma, learned .
Additional Advocate General, for the State.
11. Mr. Raju Ram Rahi, learned counsel for the accused/appellant submitted that the driver of the tractor and conductor of the truck have not supported the prosecution of version and learned Trial Court erred in not relying on their rt testimonies. He submitted that the testimonies of hostile witnesses are not effaced from the record and can be relied upon by the prosecution or defence. Once two versions appeared on the record, the version in favour of the accused should have been accepted and learned Trial Court erred in convicting the accused;
thus, he prayed that the accused be acquitted.
12. Mr. Navlesh Verma, learned Additional Advocate General supported the judgment passed by the learned Trial Court and submitted that the driver of the tractor and conductor of the truck were contradicted by their previous testimonies and by the other circumstances on record. The learned Trial Court rightly rejected their testimonies. There is no infirmity in the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 9 judgment passed by the learned Trial Court and the appeal be dismissed.
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13. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
14. Sh. Raju Ram Rahi, learned counsel for the accused of relied upon the judgments of the Hon'ble Supreme Court in State rt of Rajasthan versus Teg Bahadur 2004 (13) SCC 300 and R Parkash versus State of Karnataka 2004 (9) SCC 27 to submit that the testimony of a hostile witness is not effaced from the record and learned Trial Court erred in not relying upon the testimonies of a hostile witness. In order to appreciate this submission, it is necessary to understand the concept of the hostile witness. This concept was explained by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727: 1976 SCC (Cri) 160. It was held that initially, it was not permissible for a party to discredit his witness when he turned unfavourable to him, however, this rule was subsequently discarded and the concept of hostile and unfavourable witness was introduced. A hostile witness is the one, who is not desirous of telling the truth while an unfavourable witness is the one who does not prove the fact, ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 10 which is sought to be proved by examining him. The Indian Evidence Act did not adopt this distinction and simply permitted .
the party to put the questions in the nature of cross-
examination to a witness with the permission of the Court. The permission is not dependent upon the fact that the witness has shown hostility to the party. Therefore, no party is precluded of from relying upon any part of the statement of the witness, who has been called by a party. It was observed:
rt "30. The terms "hostile witness", "adverse witness", "unfavourable witness", and "unwilling witness" are all terms of English law. At Common law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fide towards the Court, but, it"would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him". (See Best on Evidence, p. 630, 11th Edn.) This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of court inconsistent with the evidence ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 11 given by him in court. The weight of the ancient authority was in the negative.
31. In support of the dominant view it was urged that to .
allow a party directly to discredit or contradict his own witness would tend to multiply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance.
32. As against this, the exponents of the rival view, that of a party should be permitted to discredit or contradict his own witness who turns unfavourable to him, argued that this course is necessary as a security against the rt contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further parties that this is a question in which not only the interests of litigating panics are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences. Besides it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory. (See Best, p. 631, 11th Edn.)
33. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an "unfavourable witness" is one called by a party ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 12 to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. (See Cross on Evidence, p. 220, 4th Edn., .
citing Stephen's Digest of the Law of Evidence.)
34. In the case of an "unfavourable witness", the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-
examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his of discreditable past conduct or previous conviction continued. But in the case of a "hostile" witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the rt extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness remained as murky as ever.
35. To settle the law with regard to this matter, Section 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings but was since re-enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal courts as well.
36. Section 3 provides:
"A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the Judge, ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 13 prove that he has made at other times a statement inconsistent with his present testimony, but before such last-mentioned proof can be given the .
circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement,"
(emphasis added)
37. The construction of these provisions, however, continued to cause difficulty, particularly in their of application to "unfavourable" witnesses. In Greenough v. Eccles [(1859) 5 CBNS 786: 28 LJCP 160:
141 ER 315], these provisions were found so confusing rt that Cockburn, C.J. said that "there has been a great blunder in the drawing of it, and on the part of those who adopted it".
38. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in BaikunthaNath v. Prasannamoyi [AIR 1922 PC 409: 72 IC 286] ). The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 14 his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such .
permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in order granting such permission it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and of conflict that had so long vexed the English courts.
39. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and rt contradiction of his own witness by a party. Under English law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness can "cross-examine" and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be "adverse". As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of English law. The Criminal Law Revision Committee of England in its Eleventh Report, made recently has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The report is, however, still in favour of retention of the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 15 prohibition on a party's impeaching his witness by evidence of bad character.
40. The danger of importing, without due discernment, .
the principles enunciated in ancient English decisions, for interpreting and applying the Indian Evidence Act, has been pointed out in several authoritative pronouncements. In Praphulla Kumar Sarkar v. Emperor [AIR 1931 Cal 401: ILR 58 Cal 1404: 32 Cri LJ 768 (FB)] an eminent Chief Justice, Sir George Rankin cautioned, that of "When we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is rt necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact."
It was emphasised that these departures from English law "were taken either to be improvements in themselves or calculated to work better under Indian conditions".
41. Unmindful of this substantial difference between English law and Indian law, on the subject, the Calcutta High Court in some of its earlier decisions, interpreted and applied Section 154 with reference to the meaning of the term "adverse" in the English statute as construed in some English decisions, and enunciated the proposition that where a party calling a witness requests the court to declare him "hostile", and with the leave of the court, cross-examines the witness, the latter's evidence should be excluded altogether in criminal cases. This view proceeds on the doctrine enunciated by Campbell, C.J. in the English case, Faulkner v. Brine [(1858) 1 F&F 254] that the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether. Some of these decisions in which this view was taken are: Luchiram Motilal v. Radhe ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 16 Charan [AIR 1922 Cal 267 : (1921) 34 CLJ 107]; E. v. Satyendra Kumar Dutt [AIR 1923 Cal 463: 36 CLJ 173: 24 Cri LJ 193]; Surendra v. Ranee Dassi [AIR 1923 Cal 221: ILR .
47 Cal 1043: 70 IC 687], Khijiruddin v. E. [AIR 1926 Cal 139:
42 CLJ 506: 27 Cri LJ 266] and Punchanan v. R. [AIR 1930 Cal 276: ILR 57 Cal 1266: 31 Cri LJ 1207 (DB)]
42. The fallacy underlying this view stems from the assumption that the only purpose of cross-
examination of a witness is to discredit him; it ignores the hard truth that another equally important object of of cross-examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he rt does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering around to his former statement. Thus, showing the faultness of the memory in the case of such a witness would be another object of cross- examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic attitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way.
43. Protesting against the old view of the Calcutta High Court, in Shobraj v. R. [AIR 1930 Pat 247: ILR 9 Pat 474:
124 IC 836] Terrell, J., pointed out that the main purpose of cross-examination is to obtain admission, and it would be ridiculous to assert that a party cross-
examining a witness is therefore prevented from relying on admission and to hold that the fact that the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 17 witness is being cross-examined implies an admission by the cross-examiner that all the witness's statements are falsehood.
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44. The matter can be viewed yet from another angle.
Section 154 speaks of permitting a party to put to his own witness "questions which might be put in cross- examination". It is not necessarily tantamount to "cross-examining" the witness. "Cross-examination", strictly speaking, means cross-examination by the adverse party as distinct from the party calling the of witness (Section 137 of the Evidence Act). That is why Section 154 uses the phrase "put any questions to him which might be put in cross-examination by the adverse party". Therefore, neither the party calling rt him, nor the adverse party is, in law, precluded from relying on any part of the statement of such a witness.
45. The aforesaid decisions of the Calcutta High Court were overruled by a Full Bench in the Praphulla Kumar Sarkar case. After an exhaustive survey of case law, Rankin, C.J. who delivered the main judgment, neatly summed up the law at p. 1428-30 of the report:
"In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is 'cross-examined' to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-
examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say."
46. After answering in the negative, the three questions viz. whether the evidence of a witness treated as "hostile" must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 18 calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:
.
"... the whole of the evidence so far as it effects both parties favourably or unfavourably must go to the jury for what it is worth.
*** If the previous statement is the deposition before the committing Magistrate and if it is put in under of Section 288 of the Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence rt of the facts stated therein. But in other cases, the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the fact stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facts therein alleged.
*** In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e.g., as corroboration under Section 157 of his testimony in the witness-box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 19 the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may .
consider that acceptance as an admission (King v. Norton [(1910) 2 KB 496], Percy William v. Adams [(1923) 17 Crim App Rep 77] ). But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of of the truth of what it asserts."
47. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point.
rt
48. The Bombay [E. v. JehangirCama, AIR 1927 Bom 501:
29 Bom LR 996: 28 Cri LJ 1012 (DB)], Madras [Ammathayar v. Official Assignee, AIR 1933 Mad 137 (DB):
ILR 56 Mad 7], Patna [Nebti v. R.ILR 19 Pat 369: AIR 1940 Pat 289: 41 Cri LJ 910 (DB); Shahdev v. Bipti, AIR 1969 Pat 415: 1969 Cri LJ 1527], Rajasthan [Nandkishore v. Brijbehari, : AIR 1955 Raj 65 (DB): ILR 1954 Raj 822], Oudh [Shyam Kumar v. E., AIR 1941 Oudh 130: 42 Cri LJ 165: 191 IC 466], Punjab [Khushal Singh Sunder Singh Bhatia v. State, AIR 1955 NUC (Punj) 5715.].
Madhya Pradesh [ In re Kalusingh, AIR 1964 MP 30 : (1964) 1 Cri LJ 198], Orissa [Rana v. State, AIR 1965 Ori 31 : (1965) 1 Cri LJ 315: 30 Cut LT 517], Mysore [ In Re KaibannaTippanna AIR 1966 Mys 248: 1966 Cri LJ 1155], Kerala [Raman Pillai Gangadharan Pillai v. State, 1951 Ker LT 471 (DB)] and Jammu and Kashmir [Badri Nath v. State, AIR 1953 J&K 41: 1953 Cri LJ 1719 (DB)] courts have also taken the same view.
49. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn., Vol. 15, para 805.) ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 20
50. In Bradley v. Ricardo [(1831) 8 Bing 57: 131 ER 321: 1 LJ CP 36] when it was urged as an objection that this would be giving credit to the witness on one point after he has .
been discredited on another, Tindal, C.J. brushed it aside with the observation that "difficulties of the same kind occur in every cause where a jury has to decide on conflicting testimony".
51. In Narayan NathuNaik v. State of Maharashtra [(1970) 2 SCC 101: 1970 SCC (Cri) 316 : (1971) 1 SCR 133] the court actually used the evidence of the prosecution witnesses of who had partly resiled from their previous statements to the extent they supported the prosecution, for corroborating the other witnesses."
15. rt Ultimately, it was held that when a witness is cross-
examined, his evidence is not washed off the record and it is for the Judge to consider whether as a result of such cross-
examination, the witness stands thoroughly discredited or can still be believed. He may rely upon his testimony in the light of other evidence on record but where his credit has been shaken altogether, his testimony has to be discarded in the whole. It was observed:
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 21 credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, .
accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
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53. It was in the context of such a case, where, as a result of the cross-examination by the Public, the Prosecutor, the prosecution witness concerned stood discredited altogether, that this Court in Jagir rt Singh v. State (Delhi Admn.) with the aforesaid rule of caution -- which is not to be treated as a rule of law --
in mind, said that the evidence of such a witness is to be rejected en bloc.
54. In the light of the above principles, it will be seen that, in law, part of the evidence of the panch witnesses who were thoroughly cross-examined and contradicted with their inconsistent police statements by the Public Prosecutor, could be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-
examination, their credit was substantially if not wholly, shaken. It was, therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses."
(Emphasis supplied)
16. In this respect, Section 155 (3) of the Indian Evidence Act has to be considered, which permits a party to impeach the credit of a witness by proving a formal statement inconsistent ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 22 with any part of his evidence, which is liable to be contradicted.
When Section 154 and 155(3) are read together, it is apparent .
that when a witness is discredited by showing that he had made an inconsistent statement on the former occasion, he stands discredited to that extent. The party can rely upon the other part of the evidence of such a witness. Thus, the question is whether of the credit of the witness has been impeached with reference to his previous statement or not and if so his testimony has to be rt discarded to that extent and if not the same can be relied upon.
17. The Hon'ble Supreme Court again held in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, that the evidence of a hostile witness is not discarded in toto but the Court has to separate the untruth, exaggeration and improvements. It was observed:
"22. The expression "hostile witness" does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from the chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 23 its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such .
evidence would become complete after the cross-
examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief of examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to rt make an assessment, being a matter before it and come to the correct conclusion.
23. On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] : (SCC pp. 596-
97, paras 81-85) "81. It is settled legal proposition that : (Khujji case [Khujji v. State of M.P., (1991) 3 SCC 627: 1991 SCC (Cri) 916], SCC p. 635, para 6) '6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.' (Vide Bhagwan Singh v. State of Haryana [Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389: 1976 SCC (Cri) 7], Rabindra Kumar Dey v. State of ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 24 Orissa [Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233: 1976 SCC (Cri) 566], Syad Akbar v. State of Karnataka [Syad Akbar v. State of Karnataka, (1980) 1 .
SCC 30: 1980 SCC (Cri) 59] and Khujji v. State of M.P. [Khujji v. State of M.P., (1991) 3 SCC 627: 1991 SCC (Cri) 916], SCC at p. 635, para 6)
82. In State of U.P. v. Ramesh Prasad Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be of totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the rt prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu SonbaShinde v. State of Maharashtra [Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543:
2003 SCC (Cri) 112], GaganKanojia v. State of Punjab [GaganKanojia v. State of Punjab, (2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661], SarveshNarain Shukla v. Daroga Singh [SarveshNarain Shukla v. Daroga Singh, (2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [Subbu Singh v. State, (2009) 6 SCC 462 : (2009) 2 SCC (Cri) 1106].
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW
51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with the law. Some omissions, ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 25 improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in .
nature.
85. It is a settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court of comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, undue importance should not be attached to omissions, contradictions and discrepancies which rt do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses.
Vide Sohrab v. State of M.P. [Sohrab v. State of M.P., (1972) 3 SCC 751: 1972 SCC (Cri) 819], State of U.P. v. M.K. Anthony [State of U.P. v. M.K. Anthony, (1985) 1 SCC 505: 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728], State of Rajasthan v. Om Prakash [State of Rajasthan v. Om Prakash, (2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411], Prithu v. State of H.P. [Prithu v. State of H.P., (2009) 11 SCC 588 :
(2009) 3 SCC (Cri) 1502], State of U.P. v. Santosh Kumar [State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v.
Saravanan [State v. Saravanan, (2008) 17 SCC 587 :
(2010) 4 SCC (Cri) 580] ."
24. This Court in Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] had already dealt with ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 26 a situation where a witness after rendering testimony in line with the prosecution's version, completely abandoned it, in view of the long adjournments given .
permitting an act of manoeuvring. While taking note of such situations occurring with regularity, it expressed its anguish and observed that : (SCC pp. 244-46, paras 51-53 & 57) "51. It is necessary, though painful, to note that PW 7 was examined-in-chief on 30-9-1999 and was cross-examined on 25-5-2001, almost after 1 year of and 8 months. The delay in said cross-
examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence rt and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross- examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined.
52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the court on 13-9- 1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in court. It has also been accepted by him that he had given ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 27 the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9-1999 after .
going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-9-1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not of stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
53. Reading the evidence in its entirety, PW 7's rt evidence cannot be brushed aside. The delay in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination-in-chief and the re- examination impel us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination, he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of the entire evidence in the examination-in-chief and the re-examination. ***
57. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts:
57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 28 in court, contrary to all principles of holding a trial.
That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-
.
examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.
57.2. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurise the of witness and to gain over him by adopting all kinds of tactics.
57.3. There is no cavil over the proposition that rt there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to a violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. 57.4. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination- in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 29 should be deferred for such a long time. It is anathema to the concept of proper and fair trial. 57.5. The duty of the court is to see that not only the .
interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite a series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think of it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the rt principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot be allowed to be lonely; a destitute."
18. Therefore, it is permissible for the Court to rely upon the testimony of a hostile witness, if he has not been discredited altogether and if the statement is corroborated by other evidence.
19. Chet Ram (PW9) stated that he was parking his tractor by the side of the road. A Gypsy came from Sundernagar and hit the tractor. A truck also came. Nothing happened with the truck. The truck did not hit the Gypsy. He was permitted to be cross-examined. He admitted that the photographs (A1 to A6) ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 30 were taken on the spot. He denied that Gypsy had hit the tractor after it was hit by a truck. He denied the previous statement .
recorded by the police, wherein, this fact was recorded. He denied that he had not told the police that the accused had hit the Gypsy despite the fact that there was no traffic on the road.
He denied that he was making a false statement because he was of known to the accused.
20. rt ASI-Prem Lal (PW-10) specifically stated that he had recorded the statements of Pardeep Kumar, Charan Singh and Chet Ram as per their versions. There is nothing in his cross-
examination to show that he is making a false statement;
therefore, the credit of this witness has been impeached by his previous statement wherein, he had stated before the Police that the truck had negligently hit the Gypsy. Hence, his testimony to the contrary in the Court cannot be relied upon.
21. Apart from this, he admitted that photographs were taken on the spot. The photographs clearly show that the truck had hit the Gypsy and the Gypsy was crushed between the truck and the trolley of the tractor. This falsifies the version of this witness that the truck had not hit the Gypsy. There is no ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 31 explanation to the photographs depicting the impact of the truck and the Gypsy and the statement of this witness cannot be .
relied upon to contradict the prosecution case.
22. Charan Singh (PW3) stated that he was working as a conductor with the truck bearing registration no. HP-34-4511 in the year 2002. Bhag Singh was the driver. The truck was on the of way to Kullu from Dhanota during the summer season. It was rt loaded with bricks. When the truck reached Gutkar, one Gypsy overtook the truck. The bus came from the opposite side. The driver could not control the Gypsy and hit the tractor. The truck also hit the Gypsy from the rear resulting in the accident. He was permitted to be cross-examined. He stated in his cross-
examination that he was engaged with the driver for about 2 months before the accident. He admitted that the accused was drunk on 23.4.2002. He (Charan Singh) had also consumed some liquor. He denied that the accused was heavily drunk. He denied that the accused had a quarrel with Partap Singh at Bagla. He denied that the truck hit the Gypsy due to which Partap Singh died. He denied that the tractor driver requested the accused to reverse the truck to save the driver, whose body was entangled inside but the accused did not respond due to heavy intoxication.
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 32He denied that the truck was taken aside with the help of the tractor. He volunteered to say that the help of a crane was taken.
.
He denied that local people tried to assault the accused.
However, the accused was made to sit on the verandah of the house of Rakesh Kumar (PW1). He denied that the accused had virtually become unconscious due to the drunkenness. He of admitted that the accused was medically examined by the police.
He stated in his cross-examination (by learned counsel for the rt accused) that the Gypsy was taken out with the crane after the arrival of the police on the spot.
23. He has also contradicted his initial version that the truck had hit the Gypsy as a result of which, Partap Singh died.
He claimed that the Gypsy had hit the tractor first and the truck hit the Gypsy thereafter. Since this version is contrary to the initial version deposed before the Police, therefore, the same has to be discarded.
24. Pardeep Kumar (PW2) stated that he was coming from the Bagla side on a bus at about 7:30 PM. A truck overtook the bus and when he got down the bus at Gutkar, he noticed the truck hitting a moving Gypsy resulting in an accident. The ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 33 accused was driving the truck, which had hit the Gypsy. The accused was drunk at that time and he had virtually become .
unconscious after the accident. He was taken out of the truck. He did not know the accused before the accident. He stated in his cross-examination (by the defence) that the place of the accident was straight. He denied that the Gypsy driver was of overtaking the truck before the accident and the vehicle came from the other side. The place of the accident was so wide that rt two vehicles could easily cross the road. He denied that he was not present on the spot. He stated that he was present in the private bus and was standing in the middle of the same when the truck crossed the bus. He read the registration number of the truck when the accused dangerously overtook the bus. He denied that he was deposing falsely.
25. He is an independent person. He has not tried to favour the prosecution or depose against the accused. He even did not support the prosecution regarding the quarrel, which was stated to have taken place at Bagla. There is nothing in his cross-examination to show that he has any motive to depose falsely. Therefore, the learned Trial Court had rightly believed his testimony.
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 3426. Rakesh Kumar (PW1) stated that he was a private contractor and he was also running a service station at Gutkar.
.
He was present in his house adjacent to the road. He is the owner of the tractor bearing registration no. HP-33-0483 and had engaged Chet Ram as a driver with the tractor. The driver parked the tractor by the side of the road. The truck bearing registration of no. HP-34-4511 hit the Gypsy bearing registration no. HID 15 from the rear. Gypsy got pressed between the truck and the rt tractor. The accused was driving the truck. He asked the accused to reverse the truck so that the driver of the Gypsy could be taken out but the accused was heavily drunk. He (the accused) slept on the seat of the truck. The truck was removed by toeing it with the tractor. The Gypsy driver died in the incident. He (Rakesh Kumar) called the police and the police arrived on the spot. The place of the accident was quite wide. Gypsy was going ahead of the truck and there was enough space by its side for crossing of the vehicle. He identified the photographs. He stated in his cross-examination that he handed over the documents of the tractor to the police. He sold the tractor to a scrap dealer subsequently. The driver had visited his house to collect the money and was on the stairs when the accident occurred. He was ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 35 confronted with the previous statement that he had asked the accused to take back the truck and that the accused had slept on .
the seat of the truck. He admitted that the place of the accident was the National Highway and vehicles were frequently moving on the road. 200-210 persons had assembled on the road. He denied that he was not present on the road and was making false of statement.
27. rt He is the owner of the tractor. His house is located adjacent to the place of the accident, as per the site plan (Ext.
PK). Therefore, his presence on the spot was natural. Nothing was elucidated from his cross-examination to show that he was making a false statement. Thus, the learned Trial Court had rightly relied upon his testimony.
28. The accused was medically examined by Dr J.C. Sharma (PW7) who found that the accused smelled of alcohol.
Blood and urine samples were taken. These were sent to FSL, Junga and a report (Ext PF) was issued in which it was shown that the blood contained 219.9 mg per cent and urine contained 230 mg per cent proof alcohol. This report clearly shows that the accused was heavily intoxicated. The report also corroborates ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 36 the statements of the witnesses that the accused was heavily drunk and unable to reverse the vehicle when asked to do so.
.
29. ASI-Prem Lal visited the spot and prepared the site plan (Ext. PK). The place of the accident is shown 24-feet mettled road with 11 feet of un-mettled berm on the left side and 2 feet of unmettled berm on the right side. The Note-II of the of site plan reads that the rear right tyre was 7 feet away from the rt mettled portion and the rear left tyre was at a distance of about 2 feet from the wall. The front left tyre was close to the wall and the front right tyre was 3½ feet away from the unmettled berm.
This site plan clearly shows that the truck had sufficient space on the mettled portion of the road but its driver had taken it to the unmettled portion of the road so that its front tyre was almost near the wall and the rear tyre was 2 ½ feet away from the wall. The photograph (Ext. PJ/4) shows that the truck is near the wall. This corroborates the site plan showing that the truck had left the unmettled portion of the road and was being driven towards the unmettled portion of the road. The accused has not shown any reason for taking the truck towards the left on the kachcha portion of the road after leaving the wide road and learned Trial Court had rightly held that the accused was ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 37 negligent in leaving the main road and driving the truck towards the kachcha portion of the road.
.
30. It is duly proved that the truck had hit the Gypsy from the rear side. Rules of the Road Regulation, 1989 were framed by the Central Government for regulating the traffic.
Rule 23 reads that the driver of the motor vehicle moving behind of another motor vehicle shall keep a sufficient distance from the rt other vehicle to avoid a collision if the vehicle in front should suddenly slow down or stop. Therefore, the duty has been placed upon the driver of the rear vehicle to maintain a sufficient distance to avoid the collision, in case of sudden brake.
31. In the present case, the truck had hit the Gypsy from the rear. This shows that the accused had not left sufficient distance between the truck and the Gypsy to avoid a collision, in case of sudden stoppage of the Gypsy. Therefore, the accused had violated the Rule 23 of the Rules of Road Regulations, 1989.
It was laid down by the Hon'ble Supreme Court in Nishant Singh and others versus Oriental Insurance Company 2018 (6) SCC 765 that where the driver of the rear vehicle failed to maintain a sufficient distance, the driver was negligent. It was observed:
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 38"12. The finding so recorded by the Tribunal has been affirmed by the High Court, by observing that the evidence was clearly indicative of the fact that the Maruti .
car was being driven in a rash and negligent manner, which was the cause for the accident of this nature and resulting in the death of one of the passengers in the Maruti car. The Maruti car was driven by none other than PW2 Manjeet Singh. In his evidence, he has admitted that the subject truck was running ahead of the Maruti car for quite some time about one kilometre and at the time of of the accident, the distance between the truck and the Maruti car was only 10 15 feet. He has also admitted that the law mandates maintaining sufficient distance between two vehicles running in the same direction. It is rt also not in dispute that the road on which the two vehicles were moving was only about 14 feet wide. It is unfathomable that on such a narrow road, the subject truck would move at a high speed as alleged. In any case, the Maruti car which was following the truck was expected to maintain a safe distance, as envisaged in Regulation 23 of the Rules of the Road Regulations, 1989, which reads thus:
"23. Distance from vehicles in front. The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid a collision if the vehicle in front should suddenly slow down or stop."
The expression 'sufficient distance' has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10-15 feet between the truck and the Maruti car was certainly not a safe distance for which the driver of the Maruti car must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants."
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 3932. Therefore, the learned Trial Court rightly held that the accused was negligent as he had failed to maintain sufficient .
distance from the Gypsy, which was moving ahead of the truck.
33. The testimony of Charan Singh (PW3) that the Gypsy had overtaken a bus is not supported by any person. Even Chet Ram (PW9), who had supported the accused by saying that the of truck had not hit the Gypsy did not say anything about the rt presence of the bus and attempt by the driver of the Gypsy to overtake it, therefore, the said version cannot be used to discard the prosecution version.
34. The accused was heavily intoxicated. He had 219.9 mg per cent alcohol in his blood, which was almost 7 times the legally permissible limit. Thus, the accused was driving the vehicle in breach of the statutory duty of driving the vehicle with 30 mg per cent or less alcohol in his blood.
35. The witnesses consistently stated that the driver of the Gypsy sustained injuries in the accident and succumbed to them on the spot. Dr Rakesh Kumar (PW12) conducted the post-
mortem examination of the driver and found that he had died due to a head injury with the loss of a large amount of blood. The ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 40 injuries noticed by him could have been caused in a motor vehicle accident. He was only cross-examined regarding not .
taking the blood sample for detecting the alcohol and his testimony regarding the injuries and cause of death was not disputed in the cross-examination. Thus, it is duly proved on record that Partap Singh, driver of the Gypsy had died due to the of injuries sustained by him in a motor vehicle accident. Since these injuries were caused due to the negligence of the accused;
rt therefore, the negligence of the accused led to the death of Partap Singh. Hence, it was duly proved on record that the accused was driving the vehicle in a negligent manner to endanger the human life and his negligence led to the death of Partap Singh. Therefore, the accused was rightly held guilty of the commission of an offence punishable under Section 304-A of IPC.
36. Learned Trial Court sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of ₹10,000/-. It was submitted that the benefit of the Probation of Offenders Act should have been granted to the accused and learned Trial Court erred in denying this benefit to him. This submission is not acceptable It was laid down by the Hon'ble ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 41 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 of 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 rt Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highway are among the top killers of the country"
the saturation of accidents 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."
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 of visiting the victims and their families, Criminal Courts cannot treat ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 42 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 of 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 rt 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 his mind the fear psyche that if he is convicted of the offence for 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."
37. Similarly this Court has also held in State of H. P. Versus Sushil Kumar 2010(1) HLJ 298 that no leniency should be shown to a person convicting for driving a vehicle in a rash or negligent manner. It was observed:
"21. In so far as the sentence part is concerned, in my considered opinion, the learned trial Court has lost sight of the fact that there has been a spiralling increase in motor vehicular accidents in recent years. Thousands of valuable lives are being lost by a sheer act of rash and ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 43 negligent driving, which is more than the loss of lives in any war between countries.
22. The Supreme Court in Dalbir Singh v. State of Haryana .
(2000) 5 SCC 82 on the question of sentence in a case of an identical nature stated:-
"13. While considering the question of a 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 an of automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or rt 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 would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if is convicted of the offence for causing the death of a human being due to his callous driving of the 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 callous driving of automobiles."
23. Hon'ble Shri Justice K.G. Balakrishnan, as he then was, while speaking for the Court, in State of Karnataka v. SharanappaBasnagoudaAregoudar AIR 2002 Supreme Court 1529, where the accused was held guilty for causing the death of four persons and the High Court took a lenient view in sentencing the accused, observed:-
"We are of the view that having regard to the serious nature of the accident, which resulted in the ::: Downloaded on - 10/11/2023 20:31:47 :::CIS 44 death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court, below. It may create and set .
an unhealthy precedent and send wrong signals to the subordinate Courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have a deterrent effect on of potential wrongdoers and it should be commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and rt varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to the larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system."
24. Therefore, on the examination of the matter in the above circumstances and on facts, I think no word is sufficient to criticize the conduct and prudence of the learned trial Magistrate dealing on the point of sentence in a shockingly reckless manner. Looking at the gravity of the offence, the sentence imposed by the learned trial Court is wholly inadequate. The learned trial court has inflicted a fleabite sentence on the respondent who has not atoned adequately for his misadventure."
38. Therefore, in view of the judgment of the Hon'ble Supreme Court and this Court, the benefit of the Probation of Offenders Act could not have been granted to the accused.
::: Downloaded on - 10/11/2023 20:31:47 :::CIS 4539. The Hon'ble Supreme Court held in Dalbir Singh (supra) that a deterrent view has to be taken in cases involving .
the Motor Vehicle Act. The sentence of one year cannot be said to be excessive keeping in view this consideration. Hence, no interference is required with the sentence.
40. Learned Trial Court had also sentenced the accused of to pay a fine of ₹10,000/- and this fine was ordered to be paid to rt the legal representatives of Partap Singh. Since, a precious life was lost due to the negligence of the accused, ₹ 10,000/- is hardly sufficient to ameliorate the sufferings of the dependents of the deceased.
41. No other point was urged.
Final Order:
42. Therefore, the judgment passed by the learned Trial Court is sustainable. Hence, the present appeal fails and the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 8th November, 2023 (saurav pathania) ::: Downloaded on - 10/11/2023 20:31:47 :::CIS