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2023 DIGILAW 464 (HP)

State of H. P. v. Subhash Chand

2023-11-21

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 11.2.2010, passed by learned Chief Judicial Magistrate, Solan, District Solan, H.P., vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of offences punishable under Sections 279 and 337 of IPC and Section 196 of the Motor Vehicles Act. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the prosecution presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279 and 337 of IPC and Section 196 of the Motor Vehicles Act. It was asserted that the informant Karan Singh (PW-2) used to drive an Auto bearing registration no. HP-50-0390. He reached Mohan Park on 24.1.2005, at around 4:30 PM. He stopped the Auto towards the roadside and was taking money from the passenger. A bus bearing registration no. HP-14-6719 came at a high speed and hit the rear side of the Auto. Pooja Thakur (PW-11), Anju Bala (PW-1), Dhan Singh (PW-4) and informant Karan Singh (PW-2) sustained injuries. The driver revealed his name as Subhash Chand on inquiry. The injured were taken to the hospital for treatment. An intimation was given to the Police, on which an entry no. 15 (Ex. PX) was recorded. HC Ram Swaroop (PW-7), HC Swarn Singh and C. Hira Singh were directed to verify the correctness of the information. Karan Singh made a statement (Ex.PW-2/A) which was sent to the Police Station, where FIR (Ex.PW-7/A) was registered. HC Ram Swaroop (PW-7) conducted the investigation. He prepared the site plan (PW-7/B) and seized the bus bearing registration no. HP-14-6719 vide memo (Ex.PW-5/A) and Auto bearing registration no. HP-50- 0390 vide memo (Ex.PW-9/E). He took photographs (Ex.P1 to Ex.P3), whose negatives are Ex.P4 to Ex.P6. Yogender Kumar (PW-3) conducted a mechanical examination of the bus and Auto. He found that there was no mechanical defect in the vehicles which could have led to the accident. He issued reports (Ex.PW-3/A and Ex.PW-3/B). The driving licence of the bus driver was seized vide memo (Ex.PW-7/C). He took photographs (Ex.P1 to Ex.P3), whose negatives are Ex.P4 to Ex.P6. Yogender Kumar (PW-3) conducted a mechanical examination of the bus and Auto. He found that there was no mechanical defect in the vehicles which could have led to the accident. He issued reports (Ex.PW-3/A and Ex.PW-3/B). The driving licence of the bus driver was seized vide memo (Ex.PW-7/C). Dr B.S. Dhiman (PW- 10) conducted a medical examination of Karan Singh, Subhash Chand, Anju Bala and Pooja Thakur and found that they had suffered simple injuries, which could have been caused by a motor vehicle accident. He issued the MLCs (Ex.PW-10/A to Ex.PW-10/F). He advised the X-ray of the scalp and CT Scan of Pooja Thakur, however, no fracture was detected. HC Ram Swaroop recorded the statements of witnesses as per their version. He handed over the case file to the Incharge, Police Post City on his transfer. HC Dharam Singh (PW-12) conducted further investigation. After the completion of the investigation, the challan was prepared and presented before the Court. 3. The learned Trial Court put the Notice of Accusation for the commission of offences punishable under Sections 279 and 337 of IPC and Section 196 of the Motor Vehicle Act to the accused who denied the same and claimed to be tried. The prosecution examined twelve witnesses to prove its case. Anju Bala (PW-1), Dhan Singh (PW-4), and Pooja Thakur (PW-11) are the injured and eyewitnesses. Yogender Kumar (PW-3) conducted the mechanical examination of the vehicle. Rakesh Kumar (Pw-5) is the witness to the recovery of the documents and the driving licence. Surinder Singh (PW-6) was the General Power of Attorney holder of the owner, who proved that the accused was driving the vehicle on the relevant date. HC Ram Ram Swaroop (PW-7) conducted the investigation. Sanjeev Kumar (PW-8) proved the entry in the daily diary. Kuldeep Chandel (PW-9) is the witness to the recovery. Dr B.S. Dhiman (PW-10) conducted the medical examination of the injured. ASI Dharam Singh (PW-12) conducted the investigation partly. 4. The accused in his statement recorded Section 313 of Cr.P.C. stated that he was on leave and he was not driving the vehicle on the relevant day. The Police seized the driving licence subsequently. He was innocent and he was falsely implicated. No defence was sought to be adduced by the accused. 5. 4. The accused in his statement recorded Section 313 of Cr.P.C. stated that he was on leave and he was not driving the vehicle on the relevant day. The Police seized the driving licence subsequently. He was innocent and he was falsely implicated. No defence was sought to be adduced by the accused. 5. Learned Trial Court held that the prosecution had failed to prove the identity of the driver. The informant stated that the name of the accused was told to him by the Police. Anju Bala (PW-1) and Dhan Singh (PW4) had also not identified the accused. The driving licence was also seized subsequently. Hence, the accused was acquitted. 6. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in acquitting the accused. The testimonies of the prosecution witnesses were credible and there was no reason to discard them. It was duly proved by Surinder Singh (PW-6) that the accused was employed as a driver. Dhan Singh (PW-4) also stated that the accused met him in the hospital. This also proved the involvement of the accused. Learned Trial Court erred in discarding the evidence led by the prosecution; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 7. I have heard Mr. Prashant Sen, learned Deputy Advocate General for the appellant-State and Mr. P.S. Goverdhan, learned Senior Counsel assisted by Mr. Rakesh Thakur, Advocate, for the respondent/accused. 8. Mr. Prashant Sen, learned Deputy Advocate General for the appellant-State submitted that the identity of the accused was duly established on record. The learned Trial Court wrongly held that the identification was not proper. All the witnesses categorically stated that the accused present in the Court was driving the vehicle at the time of the accident and the version of the prosecution that the accused was driving the bus at that relevant time was duly proved. Learned Trial Court erred in acquitting the accused. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. Mr. P.S. Goverdhan, learned Senior Counsel for the accused supported the judgment passed by the learned Trial Court and submitted that the identity of the accused was not established. Learned Trial Court erred in acquitting the accused. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. Mr. P.S. Goverdhan, learned Senior Counsel for the accused supported the judgment passed by the learned Trial Court and submitted that the identity of the accused was not established. Learned Trial Court had taken a reasonable view and this Court cannot substitute the view of the learned Trial Court unless there is perversity. Hence, he prayed that the appeal be dismissed. 10. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 11. The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440 , as under:- “Scope of Appeal filed against the Acquittal: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 12. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- “15. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 12. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- “15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police, (2012) 10 SCC 383 whereunder it came to be held as follows: “33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms: “erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.” 16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636 : AIR 2010 SC 589 it has been held by this Court as under: “14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed. 18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227 , it has been held by the Privy Council as under: But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: 1) The views/opinion of the trial judge as to the credibility of the witnesses; 2) The presumption of innocence in favour of the accused; 3) The right of the accused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: “42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court.” 13. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court. 14. Learned Trial Court noticed the statements of the informant Karan Singh (PW-2), Anju Bala (PW-1), Dhan Singh (PW-4) and Pooja Thakur (PW-11). The statements of Surinder Singh (PW-6), and Dr. B.S. Dhiman (PW-10) were overlooked. Surinder Singh (PW-6) stated that he is the General Power of Attorney holder of Madhu Bala, owner of the vehicle. He maintains the vehicle. Subhash Chand was driving the vehicle at the time of the accident. He had produced his driving licence and other documents which were seized by the Police. The bus was going from Solan to Khairi and an accident had taken place near Mohan Park. He denied in his cross-examination that the accused was driving the vehicle. He (Surinder Singh) was at home which is at a distance of 4 kilometers from the place of the accident. He did not know how many passengers were travelling in the vehicle. 15. He denied in his cross-examination that the accused was driving the vehicle. He (Surinder Singh) was at home which is at a distance of 4 kilometers from the place of the accident. He did not know how many passengers were travelling in the vehicle. 15. The accused did not suggest in the cross- examination of this witness that he was not engaged as a driver in the bus. Hence, this part of the testimony of the witness was accepted by the accused. It was laid down by the Hon’ble Supreme Court in State of Uttar Pradesh Versus Nahar Singh 1998 (3) SCC 561 that where the testimony of a witness is not challenged in the cross-examination, the same cannot be challenged during the arguments. This position was reiterated in Arvind Singh Versus State of Maharashtra AIR 2020 (SC) 2451 and it was held: [57] The House of Lords in a judgment reported as Browne v. Dunn 1894 6 Reports 67 (HL) considered the principles of appreciation of evidence. Lord Chancellor Herschell, held that it is absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness if not speaking the truth on a particular point, direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged. It was held as under: "Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross- examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling." [58] Lord Halsbury, in a separate but concurring opinion, held as under: "My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to." [59] This Court in a judgment reported as State of U.P. v. Nahar Singh, 1998 3 SCC 561 , quoted from Browne to hold that in the absence of cross-examination on the explanation of the delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under:- "13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under:- "13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of the delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture." [60] This Court in a judgment reported as Muddasani Venkata Narsaiah (Dead) through LRs. v. Muddasani Sarojana, 2016 (12) SCC 288 laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross- examination is one of essential justice and not merely a technical one. It was held as under: "15. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed, PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross- examination is a matter of substance not of procedure one is required to put one's version in the cross-examination of the opponent. The effect of non-cross-examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat, 1963 AIR(SC) 1906. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat, 1963 AIR(SC) 1906. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. 1958 AIR(P&H) 440. 16. In Maroti Bansi Teli v. Radhabai, 1945 AIR(Nag) 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian 1961 AIR(Cal) 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross- examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram 1950 AIR(Nag) 83 has laid down that when attestation is not specifically challenged and the witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra 1940 AIR(Pat) 683 has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross- examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff." 16. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff." 16. The accused stated in his statement recorded under Section 313 Cr.P.C. that he was not driving the vehicle on the date of the accident; however, he did not state that he was not employed as a driver. There is no reason to doubt the testimony of Surinder Singh (PW-6), especially when the same was not challenged in the cross-examination regarding the employment of the accused. 17. It was submitted that the credibility of Surinder Singh is suspect because he stated that he had produced the documents of the vehicle including the driver's licence which is incorrect. The seizure memo (Ex.PW-5/A) shows that the route permit, insurance policy and driving licence were produced by Subhash Chand and not by this witness. This witness had made a false statement regarding the production of the documents; therefore, his testimony is to be rejected. This submission is not acceptable. The submission proceeds on the basis that if a part of the testimony is found to be incorrect, the whole testimony is to be rejected. This is not a correct proposition of law as the principles of falsus in uno falsus in omnibus do not apply in India. It was laid down by the Hon’ble Supreme Court in Arvind Kumar @ Nemichand and others Versus State of Rajasthan, 2022 Cri. L.J. 374, that the testimony of a witness cannot be discarded because he had made a wrong statement regarding some aspect. The principle that when a witness deposes falsehood his entire statement is to be discarded does not apply to India. It was observed:- “48. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have a strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of the discrepancy in a given case. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of the discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject." 18. Therefore, the testimony of this witness cannot be discarded because he had made a wrong statement regarding the production of the documents. 19. Dhan Singh (PW-4) stated that he was returning in an Auto. When he was getting out of the Auto and paying fare, the bus hit the Auto. He sustained injuries. He knew the name of the driver as Subhash Chand. The accident occurred due to the negligence of the driver of the bus. He stated in his cross- examination that he had kept one foot on Auto and one foot on the road. He was paying money by bending. He did not notice the vehicles crossing the spot. He admitted that there was no authorized stoppage. The Alpine Apartment was located near the place of the accident where his brother Yog Singh was a Chowkidar. He did not know who had disclosed the name of the driver. He had seen the driver and the driver had met him in the hospital. He did not know the name of the owner of the bus. 20. Learned Trial Court held that the witness had not seen the person driving the vehicle at the time of the accident. Rather the name of the accused was disclosed to him at a later point in time, probably at Zonal Hospital, Solan. Such an inference cannot be drawn from the fair reading of the testimony of this witness. He categorically stated in his cross- examination that he had seen the driver of the bus on that day and the driver had also visited the hospital. Merely because he was paying the money to the driver of the Auto cannot lead to an inference that he was not in a position to see the driver of the bus. He categorically stated in his cross- examination that he had seen the driver of the bus on that day and the driver had also visited the hospital. Merely because he was paying the money to the driver of the Auto cannot lead to an inference that he was not in a position to see the driver of the bus. It is nobody’s case that the bus had sped away from the spot. Therefore, he had ample time to see and identify the driver of the bus and his categorical testimony in the Court that he had seen the driver on the spot cannot be discarded merely because the witness did not know the name of the driver. 21. Anju Bala (PW-1) stated in her cross-examination that she did not know about the person who was driving the bus. Karan Singh (PW-2) also stated in his cross-examination that the name of the driver was disclosed as Subhash and he had not seen the driver. Pooja Thakur (PW-11) stated that she had not seen the driver of the bus and could not say who was driving the bus. Hence, their testimonies did not establish the identity of the driver. 22. The presence of the accused is also established by his medical examination conducted by Dr. B.S. Dhiman on the date of the accident. Dr. B.S. Dhiman (PW-10) stated that he examined Subhash Chand and found no injuries on his person. He issued the MLC (Ex.PW-10/B). This medical examination was conducted on the date of the accident. The medical examination of the accused on the date of the accident along with the injured can only lead to an inference that the accused was present on the spot and the explanation furnished by him that he was not driving the bus is not believable. 23. Once it is proved that the accused was employed as a driver and he was deputed on the bus by Surinder Singh, General Power of Attorney holder of the owner, the only reasonable inference which could have been drawn was that the accused was driving the bus at the time of the accident. The accused stated in his statement recorded under Section 313 Cr.P.C. that he was on leave but it was never suggested to Surinder Singh that the accused was on leave on the date of the accident. No record of the leave was produced. The accused stated in his statement recorded under Section 313 Cr.P.C. that he was on leave but it was never suggested to Surinder Singh that the accused was on leave on the date of the accident. No record of the leave was produced. Therefore, this plea that he was on leave cannot be accepted. 24. Thus, the learned Trial Court had erred by ignoring the statement of the General Power of Attorney holder of the owner which materially affected its judgment. It was laid down by the Hon’ble Supreme Court in Arulvelu v. State, (2009) 10 SCC 206 that when the findings are not supported by the evidence, these are perverse. It was observed: “24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [ (2001) 1 SCC 501 ] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [ AIR 1966 Cal 31 ] the Court observed that a “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665: AIR 1994 SC 1341 ] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 27. The expression “perverse” has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 27. The expression “perverse” has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn. “Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.” 2. Longman Dictionary of Contemporary English, International Edn. Perverse.—Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English, 1998 Edn. Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.—Purposely deviating from accepted or expected behaviour or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn. “Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.” 28. In Shailendra Pratap v. State of U.P. [ (2003) 1 SCC 761 : 2003 SCC (Cri) 432] the Court observed thus : (SCC p. 766, para 8) “8. … we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity.” 29. In Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 : 1999 SCC (L&S) 429] the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under : (SCC p. 14, paras 9-10) “9. In Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 : 1999 SCC (L&S) 429] the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under : (SCC p. 14, paras 9-10) “9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of ‘guilt’ is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.” 30. The meaning of “perverse” has been examined in Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons[1992 Supp (2) SCC 312], this Court observed as under : (SCC pp. 316-17, para 7) “7. In the present case, the stage and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court to reappreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in the review was, in substance, the correctness—as distinguished from the legal permissibility—of the primary or perceptive facts themselves. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in the review was, in substance, the correctness—as distinguished from the legal permissibility—of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.” 25. In the present case, the learned Trial Court had recorded the finding against the evidence brought on record by ignoring the statement of material witnesses. Hence, the findings recorded by the learned Trial Court are perverse and these are liable to be interfered with while exercising the appellate jurisdiction of this Court. 26. Anju Bala (PW-1) stated that the driver of the Auto had parked the Auto towards the side. A bus hit the Auto from the rear. She admitted in her cross-examination that there was a curve behind the place of the accident and there was insufficient space for moving three vehicles. She volunteered to say that the road was not very wide or narrow and two vehicles could cross easily. 27. Similarly, Karan Singh (PW-2) stated that he had parked his Auto on a side when the bus bearing registration no. HP-14-6719 hit the Auto from the rear at a high speed. He stated in his cross-examination that there was sufficient space to enable two vehicles to cross. He admitted that the vehicles were parked on the road. He could not say that the driver was driving the bus at a high speed. 28. Dhan Singh (PW-4) stated that he was paying the fare to the driver of the Auto. A bus hit the Auto from the rear. The accident occurred due to the negligence of the driver of the bus. He stated in his cross-examination that the Auto was parked on the kucha portion of the road. There was no authorized stoppage on the spot. He denied that the accident occurred due to the negligence of the driver of the Auto because he stopped the Auto on the road suddenly. 29. He stated in his cross-examination that the Auto was parked on the kucha portion of the road. There was no authorized stoppage on the spot. He denied that the accident occurred due to the negligence of the driver of the Auto because he stopped the Auto on the road suddenly. 29. Pooja Thakur (PW-11) stated that she was travelling in the Auto and when the Auto reached Mohan Park, a passenger got down the Auto. A private bus hit the stationary Auto. She stated in her cross-examination (by learned counsel for the defence) that the place of the incident is narrow and only two vehicles can cross at one time. 30. The site plan (Ex.PW-7/B) shows that the width of the road was 18 ft. There was a 10 ft. kucha portion towards the right side and there was a drain and the hill towards the left side. The Auto was hit towards the extreme left side of the road. This corroborates the version of the witnesses that two vehicles could have crossed easily on the spot. 31. The report of the mechanical expert (Ex.PW-3/B) shows that the rear body's right side, indicator, chassis, seats and other parts of the Auto were bent and pressed. This report corroborates the version of the witnesses that the bus had hit the Auto from the rear. 32. It was suggested in the cross-examination that the driver of the Auto was negligent because he had stopped the Auto without any indication. This is not acceptable. 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 another motor vehicle shall keep a sufficient distance from the 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. 33. In the present case, the bus hit the Auto from the rear which shows that the driver of the bus had not left sufficient space between the bus and the Auto to avoid collision in case of sudden stoppage of the Auto. Therefore, the accused had violated the Rule 23 of the Rules of Road Regulations, 1989. 33. In the present case, the bus hit the Auto from the rear which shows that the driver of the bus had not left sufficient space between the bus and the Auto to avoid collision in case of sudden stoppage of the Auto. 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: “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 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 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. 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.” 34. Hence, the accused cannot avoid the liability on the ground that the driver of the Auto had suddenly stopped the vehicle without an indication. 35. Thus, the accused was driving the vehicle in breach of the Regulation framed by the Central Government and this breach led to the accident. Hence, he was negligent in driving the bus and the prosecution has succeeded in proving its case beyond reasonable doubt for the commission of an offence punishable under section 279 of IPC. 36. Dr B.S. Dhiman (P-10) proved that Karan Singh, Dhan Singh, Anju Bala and Pooja had suffered injuries which could have been caused by a motor vehicle accident. He stated in his cross-examination that injuries can be caused by falling on a hard surface but that is merely an alternative explanation and will not make the prosecution's case doubtful. Therefore, it was duly proved that Karan Singh, Dhan Singh, Anju Bala and Pooja Thakur had sustained injuries due to the negligence of the accused. Hence, the prosecution has succeeded in proving its case beyond reasonable doubt against the accused for the commission of an offence punishable under Section 337 of IPC. 37. The seizure memo (Ex.PW-5/A) shows that the Insurance Policy valid till 5.1.2005 was produced by the accused. The accident occurred on 24.1.2005 and no valid Insurance Policy was produced by the accused. Therefore, the prosecution has succeeded in proving its case against the accused for the commission of an offence punishable under Section 196 of the Motor Vehicle Act. 38. The seizure memo (Ex.PW-5/A) shows that the Insurance Policy valid till 5.1.2005 was produced by the accused. The accident occurred on 24.1.2005 and no valid Insurance Policy was produced by the accused. Therefore, the prosecution has succeeded in proving its case against the accused for the commission of an offence punishable under Section 196 of the Motor Vehicle Act. 38. Therefore, the learned Trial Court had gravely erred in holding that the prosecution had not succeeded in proving its case beyond reasonable doubt for the commission of offences punishable under Sections 279 and 337 of IPC and Section 196 of the Motor Vehicle Act. Hence, the judgment of the learned Trial Court cannot be sustained. Final order:- 39. In view of the above, the present appeal is allowed and the accused is convicted for the commission of offences punishable under Sections 279 and 337 of IPC and Section 196 of the Motor Vehicles Act. 40. Let the accused be heard on the quantum of sentence on 29.11.2023.