Himachal Pradesh High Court
Reserved On: 03.09.2025 vs State Of Himachal Pradesh on 19 September, 2025
2025:HHC:32815 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.365 of 2014 Reserved on: 03.09.2025 .
Date of Decision: 19.09.2025
Naresh Kumar ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1No For the Petitioner : Mr. Neel Kamal Sood, Senior Advocate, with Mr. Vasu Sood, Advocate.
For the Respondent/ : Mr. Jitender K. Sharma, Advocate
State General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 04.11.2014 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, Camp at Dehra, District Kangra, H.P. (learned Appellate Court) vide which judgment of conviction dated 28.10.2013 and order of sentence dated 16.11.2013, passed by learned 1 . Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 2 2025:HHC:32815 Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P.(learned Trial Court) were upheld. (Parties shall hereinafter be .
referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code (IPC) and Section 184 of the Motor Vehicles Act, 1988 (M.V. Act). It was asserted that informant Jagdish Chand (PW-2) was driving a bus bearing registration No. HP68-2299 on 14.07.2010 from Garli to Dharamshala. A jeep bearing registration No. HP-
20B-4881 tried to overtake the bus at high speed at Sukka Baag. The Jeep hit the motorcycle coming from the opposite side. The driver revealed his name as Naresh Kumar. The accident occurred due to the negligence of the accused. An intimation of the accident was given to the police, and an entry (Ex.PW5/A) was recorded in the Police Post Ranital . ASI Subhash Chand (PW-5) went to the spot to verify the correctness of the information. He recorded the statement of Jagdish Chand (Ext.PW-2/A) and sent it to the Police Station, where F.I.R (Ext.PW-5/B) was registered.
::: Downloaded on - 19/09/2025 21:34:15 :::CIS 32025:HHC:32815 ASI Subhash Chand investigated the matter. He prepared the site plan (Ext.PW-5/D), seized the jeep vide memo (Ext.PW-5/E) and .
the motorcycle vide memo (Ext.PW-5/F). Anil Kumar took the photographs (Ex.P1 to Ex.P-5). Dharmpal (PW-1) conducted the mechanical examination of the Jeep and motorcycle and found that there was no defect in the Jeep which could have led to the accident.
He issued his report (Ext.PW-1/A). An application (Ext.PW5/L) was obtained.
r to filed for conducting the medical examination of the injured, and the MLCs of Ajay Kumar (Ex.PA) and Ankur Rana (Ext. PB) were ASI Subhash Chand (PW-5) recorded the statements of prosecution witnesses as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.
3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Section 279, 337 & 338 of the IPC and Section 184 of the M.V. Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined six witnesses to prove its case. Dharam Pal (DW-1) conducted the mechanical examination ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 4 2025:HHC:32815 of the vehicles. Jagdish Chand (PW-2) is the informant and driver of the bus bearing registration No. HP68-2299. SI Bhumi Chand .
(PW-3), HC Kuldip (PW-4) and ASI Subhash Chand (PW-5) investigated the matter. Ajay Kumar (PW6) was driving the motorcycle.
5. The accused, in his statement recorded under Section 313 of Cr.P.C.,admitted that he was driving the jeep bearing registration No. HP20B-4881 at the time of the accident. He stated that the motorcyclist was negligent, and a false case was made against him. He did not produce any evidence in his defence.
6 Learned Trial Court held that the accused was overtaking the bus on a curve and hit the motorcycle without taking care of the vehicle coming from the opposite side. The motorcycle was being driven on its proper side. The negligence of the accused led to the injuries to Ajay and Ankur Rana. Therefore, the accused was convicted for the commission of offences punishable under Sections 279, 337& 338 of the IPC and Section 184 of the M.V. Act and sentenced as under:
Sections Sentences
279 of IPC The accused was sentenced to undergo simple
imprisonment for three months, to pay a fine of ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 5 2025:HHC:32815 ₹500/- and, in default of payment of the fine, to undergo further simple imprisonment for fifteen days.
.
337 of IPC The accused was sentenced to undergo simple imprisonment for three months, to pay a fine of ₹500/- and in default of payment of the fine, to undergo further simple imprisonment for fifteen days.
338 of IPC The accused was sentenced to undergo simple imprisonment for six months, to pay a fine of ₹1000/-, and in default of payment of the fine, to undergo further simple imprisonment for one month.
184 of the M.V. The accused was sentenced to pay ₹200/- and, in Act default of payment of the fine, to undergo further simple imprisonment for fifteen days.
It was ordered that all the substantive sentences of imprisonment shall run concurrently.
7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Trial Court, the accused filed an appeal. Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused was overtaking the bus and caused injuries to the riders of the motorcycle due to his negligence. The motorcycle was being driven on the left side of the road, and the jeep of the accused was driven towards the right side of the road, contrary to the Rules of the Road Regulations. The accused was negligent in driving the vehicle, and his negligence led ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 6 2025:HHC:32815 to the accident. Therefore, the judgment and order passed by the learned Trial Court were sustainable, and the appeal was dismissed.
.
8. Feeling aggrieved and dissatisfied with 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 properly appreciate the material on record. Jagdish Chand (PW-2) deposed that the accident occurred at 9:30 a.m., whereas his statement recorded by the police under Section 154 of Cr.P.C.
showed that the accident occurred at 8:02 a.m. r The informant admitted in his cross-examination that he had given space to the accused by moving the bus towards the unmettled portion of the road. Ajay Kumar (PW-6) admitted in his cross-examination that one lady had provided water to him; however, the prosecution did not examine her or Ankur Rana, the pillion rider; hence, an adverse inference should have been drawn against the prosecution.
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. Neel Kamal Sood, learned Senior Counsel assisted by Mr. Vasu Sood, learned counsel for the ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 7 2025:HHC:32815 petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State.
.
10. Mr. Neel Kamal Sood, learned Senior Counsel for the petitioner, submitted that the learned Courts below erred in appreciating the material placed before them. The informant admitted in his cross-examination that he had moved the bus towards the left side, indicating to the accused that he could overtake the bus.
responsible for it.
r to The informant and not the accused was There are various contradictions in the statements of prosecution witnesses, made the prosecution's case highly doubtful. Hence, he prayed that the present revision be allowed and the judgments and orders passed by the learned Courts below be set aside. In the alternate, learned Senior counsel for the petitioner submitted that benefit of Probation of Offenders Act should be granted to the petitioner. He relied upon the judgment of this Court in State of H.P. vs. Firoz Khan 2024:HHC:6013 in support of his submission.
11. Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State, submitted that the accused had taken his jeep towards the right side of the road, which was the ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 8 2025:HHC:32815 wrong side of the road for the accused. His negligence led to the accident because he failed to notice that the motorcycle was coming .
from the opposite side. This Court should not interfere with the concurrent findings of the learned Courts below. Hence, he prayed that the present revision be dismissed.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (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 which is to be determined on the merits of individual cases. It ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 9 2025:HHC:32815 is also well settled that while considering the same, the 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.
.
DilipsinhKishorsinh 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 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 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 [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 10 2025:HHC:32815 exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
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 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 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 651that 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. PuttumanaIllathJathavedan 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 - 19/09/2025 21:34:15 :::CIS 11 2025:HHC:32815 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 already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation 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 SanjaysinhRamrao 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 12 2025:HHC:32815 to act as an 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 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."
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. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 13 2025:HHC:32815
18. The accused did not dispute in his statement recorded under Section 313 of Cr.P.C. that he was driving the .
jeep at the time of the accident. He had not disputed the accident and claimed that the motorcyclist was negligent. It was asserted in para 4(C) of the revision petition that the informant moved the bus towards the unmettled portion of the road, indicating to the accused to overtake. It was suggested to the informant Jagdish Chand (PW-2) in his cross-examination that the driver of the jeep pressed the horn, the bus moved towards the Kachha portion of the road, and the accused overtook the bus. He (the informant) explained that he moved the bus towards the Kachha portion of the road because the motorcycle was coming from the opposite side.
19. The statement of the accused recorded under Section 313 of Cr.P.C., the plea taken in the memorandum of revision and suggestions made to the informant Jagdish Chand (PW-2) in his cross-examination show that he has not disputed that he was overtaking the bus at the time of the accident. It was laid down by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365:
::: Downloaded on - 19/09/2025 21:34:15 :::CIS 142025:HHC:32815 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the .
innocence or guilt of the accused. It was observed at page 382:-
"34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.
35. In Tarun Bora v. State of Assam [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three- judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365IPC read with Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], this Court, while considering the evidence on record, took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, concluded that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paras 15, 16 and 17, respectively, as under: (Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], SCC pp. 43-44) "15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place, and ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 15 2025:HHC:32815 when his eyes were opened, he could see his younger brotherKumud Kakati (PW 2) and his wife Smt Prema Kakati (PW 3). The place was Duliapather, which is about 6-7 km away from his .
Village,Sakrahi. The witness identified the appellant, Tarun Bora, and stated that it was he who took him in an Ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination, the witness stated as follows:
'Accused Tarun Bora did not blind my eyes, nor did he assault me.'
17. This part of the cross-examination is suggestive of the presence of the accused,Tarun Bora, in the whole episode. This will suggest the presence of the accused, Tarun Bora, as admitted. The only denial is that the accused did not participate in blindfolding the eyes of the witness, nor assaulted him."
37. In Rakesh Kumar v. State of Haryana [Rakesh Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri) 256], this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34IPC. While reappreciating the evidence on record, this Court noticed that in the cross-examination of PW 4 Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court, taking into consideration the nature of the suggestion put by the defence and the reply, arrived at the conclusion that the presence of the accused, namely, Dharam Vir, was established on the spot at the time of the occurrence. We quote the following observations made by this Court in paras 8 and 9, respectively, as under (SCC p. 36) ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 16 2025:HHC:32815 "8. PW 3, Bhagat Singh, stated in his examination- in-chief that he had identified the accused at the time of the occurrence. But curiously enough, he was not cross-examined as to how and in what .
manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4 Sube Singh stated that the accused, Dharam Vir, was wearing a white shirt. It was suggested to him on behalf of the accused that Dharam Vir was wearing a cream- coloured shirt. In answer to that suggestion, PW 4 said it is not correct that Dharam Vir, the accused, was wearing a shirt of a cream colour and not a white colour at that time.' The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of the accused Dharam Vir on the spot at the time of occurrence."
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross-examination, if found to be incriminating in nature in any manner, would definitely bind the accused, and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except for the concession on a point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner."
::: Downloaded on - 19/09/2025 21:34:15 :::CIS 172025:HHC:32815 20 The Central Government has framed the Rules of Road Regulations 1989. Rule 6 reads that the driver of the .
motor vehicle shall not pass a vehicle travelling in the same direction if his passing caused inconvenience or danger to other traffic proceeding in any direction or if the driver ahead of him has not signalled that he may be overtaken. Thus, the accused was obliged to ensure that his overtaking does not lead to any inconvenience or danger to other occupants of the vehicles moving on the road.
21. In the present case, the overtaking of the bus by the accused endangered the safety of motorcycle coming from the opposite side; therefore, the accused was in breach of the Rules of the Road Regulations 1989.
22. It was submitted that the notice of accusation does not mention Rule 6 of the Rules of the Road Regulations 1989, and the accused had no notice of the Rules. This submission is only stated to be rejected. It is trite to say that ignorance of the law is no excuse, and the accused cannot take advantage of the fact that he was not informed about the Rules of Road Regulations. Further, Rule 11 of the Central Motor Vehicles ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 18 2025:HHC:32815 Rules 1989 provides for a preliminary test for getting the learner's licence. Rule 11(1)(a) requires the person seeking a .
learner's license to demonstrate adequate knowledge and understanding of traffic signs, signals and road regulations made under Section 118 of the Motor Vehicles Act. Thus, a driver is obliged to go through the Rules of the Road Regulations 1989 and demonstrate his knowledge in a test to obtain the learner's license. Hence, it is no defence that the accused did not know the Rules of the Road Regulations 1989.
23. Jagdish Chand (PW-2) and Ajay (PW-6) consistently stated that the jeep being driven by the accused overtook the bus and hit the motorcycle, as a result of which the motorcyclist suffered injuries. This is duly corroborated by the pleas taken by the accused, in his statement recorded under Section 313 of Cr.P.C., before this Court and in the cross-examination of witnesses. The site plan (Ext.PW-5/D) shows the jeep towards the right side of the road, leaving only two feet of space towards its right side. The total width of the road is shown to be 24 feet, and the width of the jeep is 5 feet, which means that there was sufficient space towards the left side of the jeep. Thus, the jeep being driven by the accused ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 19 2025:HHC:32815 was taken to the extreme right side of the road in the way of oncoming traffic,which was the proximate cause of the .
accident.
24. Rule 2 Rules of the Road Regulations, 1989 provides that the driver of a vehicle shall drive the vehicle 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. Therefore, the motorcycle was being driven towards the left side of the road as per Rule 2, and there was no negligence on the part of the motorcyclist.
The jeep, on the other hand, was being driven towards its right side, which is a violation of Rule 2. It was laid down in Fagu Moharana vs. State, AIR 1961 Orissa 71, that driving the vehicle on the wrong 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 20 2025:HHC:32815 avoided the accident if it had travelled on the left side of the road."
25. Similarly, it was held in State of H.P. Vs. Dinesh .
Kumar 2008 H.L.J. 399, that 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 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."
26. 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 21 2025:HHC:32815 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 conclude that the motorcycle was on the extreme right side of the road and therefore on the wrong side."
27. Informant Jagdish Chand (PW-2) admitted in his cross-examination that the accident occurred due to the negligence of the motorcyclist because he was driving the motorcycle at a high speed. A heavy reliance was placed upon this part of his cross-examination to submit that the accident occurred due to the negligence of the driver of the motorcycle.
This submission is not acceptable. A witness can only depose about the fact which had occurred in his presence, and he is not permitted to draw inferences from the facts. The inferences have to be drawn by the Jury or the Judge when he is sitting without a Jury. It was laid down by Goddard LJ in Hollington v. Hawthorn 1943 KB 507 at 595 that a witness cannot depose about negligence. It was observed:
"It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but in truth, it is because his opinion is ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 22 2025:HHC:32815 not relevant. Any fact that he can prove is relevant, but his opinion is not."
28. Similar is the judgment in State of H.P. vs. Niti Raj .
2009 Cr.L.J. 1922 (HP),where it was held:
"It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly.
The issue whether the vehicle was being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court."
29. Therefore, the statement of the informant that the accident occurred due to the negligence of the motorcyclist is not admissible and will not assist the defence.
30. It was rightly submitted on behalf of the petitioner/accused that the use of high speed is not sufficient to infer negligence. It was laid down by the Hon'ble Supreme Court in Mohanta Lal vs. State of West Bengal 1968 ACJ 124 that the use of the term 'high speed' by a witness amounts to nothing unless it is elicited from the witness what is understood by the term 'high speed'. It was observed:
"Further, no attempt was made to find out what this witness understood by high speed. To one man, thespeed of even 10 or 20 miles per hour may appear to be high, while to another, even a speed of 25 or 30 miles per hour may appear to be a reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 23 2025:HHC:32815 would justify holding that he was driving the bus rashly and negligently. The evidence of the two conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath Dey was struck by the bus, .
though not from the front side of the bus, as he did not fall in front of the bus but fell sideways near the corner of the two roads. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death."
31. This position was reiterated in State of Karnataka vs. Satish 1998 (8) SCC 493, wherein it was held:
"Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed".
"High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution, and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject, of course, to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur."
32. This Court also held in State of H.P. Vs. Madan Lal 2003 Latest H.L.J. (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed: -
::: Downloaded on - 19/09/2025 21:34:15 :::CIS 242025:HHC:32815 "It may be pointed out that speed alone is not a criterion to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs."
.
33. This position was reiterated in State of H.P. Vs. Parmodh Singh 2008 Latest HLJ (2) 1360 wherein it was held: -
"Thus, negligent or rash driving of the vehicle has to be proved by the prosecution during the trial, which cannot be automatically presumed even on the basis of the doctrine of res ipsa loquitur. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criterion to establish the fact of rash and negligent driving of a vehicle. It is only a rash and negligent act as its ingredients, to which the prosecution has failed to prove in the instant case."
34. A similar view was taken in Firoz Khan (supra).
Thus, the informant's testimony that the motorcyclist was negligent because he was driving the motorcycle at a high speed will not help the accused.
35. It was submitted that Ankur Rana, the pillion rider, was not examined. It was submitted that the examination of Ankur Rana was essential to prove that the motorcycle was being driven by Ajay Kumar and not by Ankur Rana. This submission will not help the accused. The learned Assistant Public Prosecutor (APP) had given up Ankur Rana to avoid ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 25 2025:HHC:32815 repetition. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311 .
that the Public Prosecutor can give up a witness to avoid repetition. It was observed at page 495:
"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 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 the workload, particularly in those courts crammed with cases, but without impairing the cause of justice."
36. 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: -
::: Downloaded on - 19/09/2025 21:34:15 :::CIS 262025:HHC:32815 "[10]..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 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..."
37. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434, and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed:
"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 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 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 27 2025:HHC:32815 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."
38. 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 to proceed with the trial and convict the accused, there cannot be any prejudice. 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 weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 28 2025:HHC:32815 "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, 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 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 as witnesses for the ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 29 2025:HHC:32815 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 they 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 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 which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in 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, ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 30 2025:HHC:32815 conviction can even be based on the 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] .)"
39. Thus, no adverse inference can be drawn against the prosecution for not examining Ankur Rana.
40. The plea taken by the accused that Ankur Rana did not have any driving licence and was substituted by Ajay Kumar(PW-6) is not proved on record. Ajay Kumar (PW-6) denied this fact. A denied suggestion does not amount to any proof. The accused did not state in his statement recorded under Section 313 of Cr.P.C. that Ankur Rana was driving the motorcycle; thus, this submission is without any evidence. In any case, it was laid down in State Government v. Bhawanesh Kumar, 1957 SCC OnLine MP 102, that the absence of a driving ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 31 2025:HHC:32815 licence does not constitute rashness or negligence. It was observed:
.
"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 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 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."
41. 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 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 32 2025:HHC:32815 fortune that he did not meet with any accident on that day.
xxxxx .
14....In the present case, we do not know what was the proximate cause of the accident. We cannot rule out the possibility of the accident having been caused by the fault of the deceased. The question of whether Appellant 1 was proficient in driving a Jeep or not does not conclude 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.
42. Therefore, Ankur Rana cannot be held negligent simply because he did not possess a driving license.
43. It was submitted that there is a major contradiction in the prosecution's case because the informant stated on oath that the accident occurred at 9:30 a.m., whereas he had deposed before the Police that the accident occurred at 8:02 a.m. This submission will not help the accused. The attention of the informant was not drawn to the previous statement recorded by the police, and it is impermissible to rely upon the statement recorded by the police to contradict his statement recorded before the Court.
It was laid down by the Hon'ble Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1) SCC 283, that if a ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 33 2025:HHC:32815 witness is to be contradicted with his previous statement, his attention must be drawn towards it. It was observed: -
.
"11. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act, and it must be borne in mind when reading S. 145, which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross- examination, even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of S. 145.
12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J. pointed out in paragraph 25 that during the cross-examination of the witnesses concerned, the formalities prescribed by S. 145 are complied with. The cross-examination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 34 2025:HHC:32815 argument that witnesses' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial .
compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by DW-10 (Nawal Kishore Prasad), we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto."
44. A similar view was taken in Alauddin v. State of Assam, 2024 SCC OnLine SC 760, wherein it was observed:
"7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 35 2025:HHC:32815 becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section .
(1) of Section 162 must be followed for contradictingwitnesses in the cross-examination.
8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:
"145. Cross-examination as to previous statements in writing.--A witness may be cross-
examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved;
but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 36 2025:HHC:32815 must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the .
witness of his prior statement produced on record.
Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act,in confronting the witness by showing him the relevant part of his prior statement, is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 37 2025:HHC:32815 accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:
"155. Impeaching the credibility of the witness.
-- The credit of a witness may be impeached in .
the following ways by the adverse party, or, with the consent of the Court, by the party who calls him--
(1) .............................................. (2) .............................................
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trivial omission or contradiction brought to the record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission, depending upon the facts of each case?
Whether an omission is a contradiction also depends on the facts of each case.
10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P., 1959 Supp (2) SCR 875.Paragraph 13 of the said decision reads thus:
"13. The learned counsel's first argument is based upon the words "in the manner provided by Section 145 of the Indian Evidence Act, 1872"
found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 38 2025:HHC:32815 contradicting him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812]. Bose, J. describes the procedure .
to be followed to contradict a witness under Section 145 of the Evidence Act, thus at p. 819:
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts, which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In r such a case, all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not consider the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross- examination assumes the shape of contradiction:
in other words, both parts deal with cross- examination; the first part with cross-::: Downloaded on - 19/09/2025 21:34:15 :::CIS 39
2025:HHC:32815 examination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by .
the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement were allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police, which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it, subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked, "Did you say before the police officer that you saw a gas light?" and he answers, "Yes", then the statement which does not contain such recital is put to him as ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 40 2025:HHC:32815 a contradiction. This procedure involves two fallacies: one is that it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If .
a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-
contradiction of the primary statement made r in the witness box, for the witness has not yet made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually said before him. In such a case, the question could not be put at all: only questions to contradict can be put, and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure."(emphasis added) This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 41 2025:HHC:32815 witnesses' prior statements based on which they were sought to be contradicted in the cross-examination."
45. It was held in Anees v. State (NCT of Delhi), 2024 SCC .
OnLine SC 757 that the Courts cannot suo motu take cognisance of the contradiction and the same has to be brought on record as per the law. It was observed:
"64. The court cannot suo motu make use of statements to the police that have not been proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words 'if duly proved' used in Section 162 Cr. P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can it be looked into, but they must be duly proved for contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction, but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.
65. Section 145 of the Evidence Act reads as follows:
"145. Cross-examination as to previous statements in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
66. Under Section 145 of the Evidence Act, when it is intended to contradict the witness by his previous ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 42 2025:HHC:32815 statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition .
of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part, and this must be reflected in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved, and there is no need for further proof of contradiction, and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement, and it must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for contradiction; it will then be proved in the deposition of the Investigating Officer, who, again, by referring to the police statement, will depose about the witness having made that statement. The process again involves referring to the police statement and culling out the part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction." [See: V.K. Mishra v. State of Uttarakhand : (2015) 9 SCC 588]
46. Moreover, the contradiction was regarding the time, which is insignificant, as no person remembers the time ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 43 2025:HHC:32815 by looking at a watch. Further, the accident occurred on 14.07.2010, whereas the informant's statement was recorded .
on 19.09.2011 after the lapse of more than one year and the contradiction was bound to come due to failure of the memory and is not sufficient to discard the prosecution case.
47. Therefore, the learned Trial Court rightly held that the accused was negligently driving the jeep and his
48. to negligence led to the accident.
Learned counsel for the accused admitted the MLCs of the injured. It was specifically mentioned in the MLC of Ajay Kumar (Ext. PA) that he had sustained grievous injury.
It was mentioned in the MLC of Ankush Rana (Ext.PB) that he had sustained simple injuries. These injuries were caused by the negligent driving of the accused. Hence, the learned Courts below had rightly convicted the accused for the commission of offences punishable under Sections 279, 337 & 338 and 184 of the M.V. Act.
49. It was submitted that the Probation of Offenders Act should have been granted to the accused, and the learned Courts below failed to consider this aspect. This submission ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 44 2025:HHC:32815 will not help the accused. It was laid down by the Hon'ble Supreme Court in Dalbir Singh Versus State of Haryana (2000) 5 .
SCC 82 that a deterrent sentence is to be awarded 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 much so the Indian highways are among the top killers of the country", the saturation of accidents was not even half of what it is today. So V. R. Krishna Iyer, J., has suggested in the said decision thus :
"Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under S. 304-A, I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy-duty vehicles and speeding menaces."
12. In State of Karnataka v. Krishna alias Raju (1987) 1 SCC 538 this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A, I.P.C. to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing the death of a human being. In that case, this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine.
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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 would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if he is convicted of the offence of causing the death of a human being due to his callous driving of a vehicle, he cannot escape from a jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to the callous driving of automobiles."
50. A similar view was taken in State of Punjab v.
Balwinder Singh, (2012) 2 SCC 182, wherein it was held: -
13. It is a settled law that sentencing must have a policy of correction. If anyone has to become a good driver, they must have better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 46 2025:HHC:32815 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].
51. Similarly, the judgment in State of Punjab v.
Saurabh Bakshi, (2015) 5 SCC 182: (2015) 2 SCC (Cri) 751: 2015 SCC OnLine SC 278, wherein it was observed at page 196:
"25. Before parting with the case, we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving, where other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty, and the civilised persons drive in constant fear, but are still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish."
52 Thus, no lenient sentence could have been awarded.
53. Learned Trial Court had sentenced the accused to undergo simple imprisonment of three months each for the commission of offences punishable under Section 279 and 337 ::: Downloaded on - 19/09/2025 21:34:15 :::CIS 47 2025:HHC:32815 of IPC, simple imprisonment for six months for the commission of an offence punishable under Section 338 of IPC .
and fine of ₹200/- for the commission of an offence punishable under Section 184 of M.V. Keeping in view the manner in which the accused overtook the bus endangering the safety of the motorcyclist, sentence of six months is not excessive and no interference is required with it.
54.
55. to No other point was urged.
In view of the above, the present revision petition fails and is dismissed, so also the pending application, if any. .
56. The records of the learned Courts below be returned with a copy of this judgment for the information (Rakesh Kainthla) Judge 19th September 2025.
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