Mohinder Pal Vs State

against the judgment dated 15.09.2012, passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, Camp at Reckong Peo (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 20.12.2007 passed by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, H.P. (learned Trial Court) were upheld. (Parties shall

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes.

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hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present revision are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code (IPC) and Sections 184 and 187 of the Motor Vehicles Act (M.V. Act). It has been asserted that the informant Mohan Kumari (PW11) was running a grocery shop at Reckong Peo near the Regional Hospital. She had her residence beneath the shop. Her husband also used to assist her in running the shop. He had gone to his village, Barang, on 23.11.2005. The informant opened her shop on 24.11.2005 at about 6:00 A.M. The informant and her younger daughter, aged 04 years, were basking in the sun outside the shop. At about 11:30 A.M., her younger daughter, Kumari Tuni, slept. The informant went to her room to put her daughter on the bed. She returned after 4-5 minutes. She saw a Mahindra pickup coming from Kalpa at high speed. The sleepers were loaded into the vehicle. She also saw blood outside her shop. Her younger daughter was missing. She went inside the shop and saw that her daughter was lying covered with a gunny sack. Blood was coming out of her nose

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and ear. She was hit by the vehicle transporting the sleepers. She read the words “RPC’ on the body of the vehicle. The registration number of the vehicle was HP63-0706. The driver of the vehicle had absconded from the spot after the accident. She picked up her daughter and went to the hospital. The doctor declared the girl as brought dead. The matter was reported to the police, and an entry No.11 (Ex. PW12/A) was recorded in the police station. Vijay Sen (PW12) went to the hospital for verification. He recorded the informant’s statement (Ex. PW11/A), which was sent to the police station where F.I.R. (Ex.PW12/B) was registered. Vijay Sen conducted the investigation. He prepared the site plan (Ex. PW12/D). The photographs of the spot (Ex. P1 to P5 and Ex. PW8/1 to Ex.PW8/5), whose negatives are Ex. P6 to Ex. P10 and Ex.PW8/6 to Ex. PW8/10, were taken. He seized the blood-stained gunny sack vide seizure memo (Ex. PW3/A). The gunny sack was put in a parcel, and the parcel was sealed with seal “H”. An application (Ex. PD) was filed for conducting the post-mortem examination of the girl. An inquest was conducted on the dead body, and a report (Ex.PE) was prepared. The report of post-mortem examination (Ex. PF) was issued, in which it was mentioned that the deceased had died due to a head injury leading to

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respiratory failure. The death was instantaneous and occurred within 06 hours of the examination. The vehicle bearing registration No. HP63-0706 was seized vide seizure memo (Ex.PW4/A). The registration certificate (Ex.PA), driving licence of the accused (Ex. PB) and diary containing the entry regarding the transportation of the sleeper (Ex. PC) were taken into possession. Site plan (Ex. PW12/E) of the place from where sleepers were loaded on the vehicle was prepared. Statements of witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court found sufficient reason to put notice of accusation against the accused for the commission of offences punishable under Sections 279 and 304-A of IPC and Section 187 of M.V. Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution has examined twelve witnesses to prove its case. Thakur Singh (PW1) asked his brother Vikram Singh (PW2) to send the sleepers to the sawmill. Vikram Singh (PW2) engaged the vehicle bearing registration No. HP63-0706 and loaded the sleepers on the vehicle. Geeta Bhagat (PW3) is

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the uncle of the deceased. Dinesh Kumar (PW4) proved that the accused was engaged as a driver in the vehicle. Sher Singh (PW5) took the photographs of the vehicle. Sudesh Kumar (PW6) is an eyewitness. Chhering Jew (PW7) is the grandfather of the deceased to whom the dead body was handed over. Medup Dorje (PW8) took the photographs of the blood stains. Shyam Chand (PW9) informed the police about the accident. Sant Ram (PW10) is an eyewitness. Mohan Kumari (PW11) is the informant. Vijay Sen (PW12) investigated the matter.

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The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was employed as a driver of the vehicle, the sleepers were loaded in the vehicle, and the deceased died in the accident. He denied the rest of the prosecution’s case. He stated that he had not used the route passing through the colony and had used the route passing through the police line. He had not caused any accident, and he was falsely implicated. Statements of Rajinder Kumar (DW1) and Rajesh Kumar (DW2) were recorded in defence.

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Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other. The accused admitted that he was employed as a driver, and the sleepers

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were loaded in his vehicle. The prosecution witnesses found that the vehicle was being driven at a high speed and had hit the girl. The accused picked her up, put her inside the shop, wrapped her up in a gunny bag and sped away from the spot. The accused could have avoided the accident by taking due care and caution. His failure to do so led to the accident. Hence, the accused was convicted of the commission of offences punishable under Sections 279 and 304-A of IPC and Section 187 of M.V. Act and was sentenced as under: -

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Section(s)	Sentence(s)
Section 279 of the IPC	The convict was ordered to undergo rigorous imprisonment for six months and pay a fine of ₹1,000/-. In default of making the payment of fine, the convict was ordered to undergo further simple imprisonment for a period of one month.
Section 304-A of the IPC	The convict was ordered to undergo rigorous imprisonment for two years and pay a fine of ₹ 2,000/-. In default of making the payment of fine, the convict was ordered to undergo further rigorous imprisonment for three months.
Section 187 of	The convict was ordered to pay a fine
M.V. Act	of ₹500/-. In default of making the payment of fine, the convict was ordered to undergo simple imprisonment for 15 days.
All the substan concurrently.	tive sentences were ordered to run

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Kinnaur (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused was driving the vehicle at the time of the accident and his negligence led to the accident, causing the death of a child. The testimonies of defence witnesses could not be believed. The accused failed to carry the injured to the hospital and sped away from the spot. Therefore, the learned Trial Court had rightly convicted and sentenced the accused. No interference was required with the judgment and order passed by the learned Trial Court. Consequently, the appeal was dismissed.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the evidence was not properly appreciated. The prosecution witnesses were interested. There were lots of contradictions in the statements of the prosecution witnesses. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Ms. Sheetal Vyas, learned counsel for the petitioner/accused, and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent-State.

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Ms. Sheetal Vyas, learned counsel for the petitioner, submitted that the learned Courts below erred in appreciating the evidence on record. The details and the registration number of the vehicle were not given in the daily diary No.11. The vehicle had no blood, which falsifies the prosecution’s version that the vehicle had hit the girl. Mohan Kumari (PW11), Sudesh Kumar (PW6) and Sant Ram (PW10) claimed to have seen the accident, but they they had not made any efforts to apprehend the driver or to stop the vehicle. The description of the spot given by Sudesh Kumar and Sant Ram is different from that mentioned in the site plan, which shows that they were not present on the spot. The victim was named Tuni, which means deaf, and the possibility of the negligence of the victim cannot be ruled out. The high speed by itself is not sufficient to constitute negligence. There were no skidding marks, which rules out the high speed of the vehicle. She relied upon Mohanta Lal Saha versus State of West Bengal, 1968 ACJ 124, Braham Dass versus State of H.P. 2009(7) SCC 353, Gurcharan Singh versus State of H.P. 1990 ACJ 598, State of H.P. versus Ashok Kumar Cr. M.P.

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(M) No. 657 of 2017, State of H.P. versus Parvesh Kumar Cr. M.P.(M) No. 115 of 2017, Hemant Kumar versus State of Himachal Pradesh, 2017(1) Shim.LC 460, Suresh Kumar versus State of Himachal Pradesh, 2017(2) Shim.LC 1195 and Vikram Singh versus State of H.P. Criminal Revision No. 58 of 2008 in support of her submissions. She has also filed the written submission, which have been perused by me.

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Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent-State, submitted that this Court cannot reappreciate the evidence while deciding the revision. Learned Courts below had rightly appreciated the evidence based on the material placed on record. The pleas taken by the petitioner/accused were considered and rejected by the learned Courts below, and there is no infirmity in the judgments and order passed by the learned Courts below. Therefore, he prayed that the present petition be dismissed.

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

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

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(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: -

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“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 to 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 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.

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This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed:

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“13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., 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

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or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under:

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“ 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 wellfounded 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 the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

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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

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aforestated. Even the framing of a charge is a much-advanced stage in the proceedings under the CrPC.”

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

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Ms. Sheetal Vyas, learned counsel for the petitioner/ accused, referred to the evidence and pointed out the contradictions in it and submitted that the evidence was not properly appreciated. This submission will not help the petitioner. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that the Court cannot reappreciate the evidence and comes to its own conclusion unless there is perversity in the judgments of the learned Trial Court and the Appellate Court. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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“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 propriety of any finding, sentence or order. In other words, the jurisdiction is one of

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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. …”

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Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power of the court to do justice in accordance with the

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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.”

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In the above case, the conviction of the accused was recorded, and the High Court set aside [ Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.

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This position was reiterated in Bir Singh v. Mukesh

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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:

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“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.

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As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457] , it is a wellestablished 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

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error. The answer to the first question is, therefore, in the negative.”

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Thus, it is impermissible to re-appreciate the

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evidence unless there is a gross miscarriage of justice or perversity.

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It was submitted that the registration number of the vehicle and the words 'RPC' were not mentioned by Shyam Chand (PW9) while making a call to the police, as is evident from the entry (Ex. PW12/A). Shyam Chand (PW9) did not claim to be an eyewitness. He stated that he was present in his shop on 24.11.2005 at 11:45 A.M when he found out that Tuni daughter of Amar Chand, was hit by a vehicle. He went to the hospital and found that the child had died. He informed the police. He specifically stated that he had not seen the vehicle, and the place of the incident is not visible from his shop. Therefore, he could not have mentioned the registration number of the vehicle or the words written on the body of the vehicle to the police, and no advantage can be derived from the fact that the entry in the daily diary did not mention the registration number or the words painted on the body of the vehicle.

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It was submitted that there were no blood marks on the vehicle, which makes the prosecution’s case highly doubtful. However, no witness stated that the vehicle had no blood stains, and this submission is based upon no evidence and cannot be accepted. Moreover, there is no evidence of any profuse bleeding. The tyres of the vehicle had not crushed the child. Only some blood stains are visible in the photographs. Post-mortem report shows that fresh active bleeding from both nostrils was present, and the lower half of the face was covered with fresh clotted blood. Blood was present on the frock on both shoulders. Therefore, this report does not show profuse bleeding, which could have stained the vehicle, and the submission that the absence of the blood marks would rule out the involvement of the vehicle cannot be accepted.

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Mohan Kumari (PW1) stated that she had gone to her residence to put her younger child to bed. She returned and saw a vehicle coming at high speed. Sleepers were loaded in the vehicle. The vehicle was bearing registration number HP630706. Her child was missing. There were blood stains on the road. She went inside the shop and saw that the child was kept inside the shop wrapped in a gunny bag. Blood was coming out of her ear. She picked up the child. The place of the incident is

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wide. Two vehicles can easily pass from the spot. She stated in her cross-examination that the vehicles also take the route through the police line and the colony. She went to the room for 04-05 minutes. Sant Ram was sitting in the shop of Shyam Chand. She denied that she had not seen the vehicle of the accused or that she was making a false statement.

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It was submitted that the testimony of this witness is not believable. The driver would have to stop the vehicle, carry the child inside the shop and board the vehicle. Mohan Kumari would have noticed this activity. However, she did not notice any such fact, and this makes her testimony highly suspect. This submission is not acceptable. The informant saw the blood on the road and searched for her daughter. When she went inside the shop, she found her daughter. This shows that the accident had already occurred before her arrival, and she only saw the vehicle speeding away. Therefore, she could not have noticed the accused picking up the child, keeping her inside the shop, and the failure to depose these facts will not make her testimony doubtful.

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Sudesh Kumar (PW6) stated that he had gone to the shop of his sister, Janam Devi. He was going to the shop of Amar

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Chand to take meals when he saw a vehicle bearing registration no. HP63-0706 carrying sleepers coming from Reckong Peo towards the hospital. The child was near the shop of Amar Chand, and she was looking towards the hospital. The vehicle hit the child. The accused picked up the child, put her in the gunny bag inside the shop, and ran away. The informant came to the spot and carried the child to the hospital. The child was bleeding from the mouth, nose and ear. The doctor declared the child dead. The place of the incident was straight. He admitted in his cross-examination that the vehicles also used the route through the police station while going towards Peo from Kalpa. There was one shop at the place of the incident, and there were multiple shops after 40 feet. He was not aware whether the house was located at some distance from the place of the incident. He was not aware that the government accommodation was located towards the lower side. He did not know the names of the owners of other shops. The informant came from her room. The vehicles were moving on the road. He denied that he could not see which vehicle had hit the deceased.

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It was submitted that the testimony of this witness is highly suspect. The informant stated that her husband had gone to his native village, and it was not possible for this

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witness to go to the shop of Amar Chand to take meals. This submission overlooks the fact that the informant was running the shop with her husband. Therefore, even if Amar Chand was not in the shop, the informant would be present in the shop. Further, there is no evidence that he was aware of the fact that Amar Chand was not present in his shop. He could have proceeded to the shop, believing that Amar Chand would be present in the shop. Thus, his presence cannot be doubted because Amar Chand was not present in the shop.

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It was submitted that Sudesh Kumar stated that there was only one shop at the place of accident, whereas multiple shops have been shown in the site plan, which shows that he did not know the spot position. This submission is not acceptable. The site plan shows that only one shop of Amar Chand was open, whereas four shops were closed. Thus, effectively, only one shop existed on the spot, and other shops were closed. Thus, the testimony of this witness is not contrary to the site plan and cannot be discarded on the ground that he did not know the spot position.

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It was submitted that Sudesh Kumar did not make any efforts to apprehend the accused. The accused picked up the

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child and sped away from the spot. This submission will not help the accused, as the priority of any person would have been to take care of the injured, and not to apprehend the person who had caused the injury. Further, the Court cannot accept a particular reaction from every witness, and the testimony of witnesses cannot be discarded because they had failed to act in a particular manner. This position was laid down in Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429: (2018) 3 SCC (Cri) 738: 2018 SCC OnLine SC 676, wherein it was observed at page 436:

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“15. Evidence of PWs 3 and 4 is assailed on the ground that PWs 3 and 4 have not gone to the rescue of the deceased and it is quite unbelievable that on seeing the accused who were armed with weapons, both of them went inside the house. It is further submitted that the trial court righty held that their evidence is not trustworthy and the High Court was not right in intervening such finding and basing the conviction on the evidence of PWs 3 and 4. In their evidence, PWs 3 and 4 have stated that on seeing a number of accused armed with deadly weapons, they got frightened and went inside the house and stood near the window and saw the occurrence. Their evidence cannot be doubted on the grounds that they did not intervene in the attack nor make attempts to save the deceased. On witnessing a crime, each person reacts in his own way, and their evidence cannot be doubted on the ground that the witness has not acted in a particular manner. The evidence of PWs 3 and 4 cannot be doubted merely because they have not acted in a particular manner.

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We may usefully refer to Rana Partap v. State of Haryana [Rana Partap v. State of Haryana, (1983) 3 SCC 327: 1983 SCC (Cri) 601] as under: (SCC p. 330, para 6)

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“6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

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Sant Ram (PW10) stated that he was going to

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Reckong Peo on 24.11.2005. He reached near the shop of Amar Chand at 12:00 noon. The vehicle bearing registration No. HP63-0706 came from Kalpa at high speed and hit the girl. The driver picked up the girl and put her in the shop and sped away from the spot. The accused was driving the vehicle. He stated in his cross-examination that he had mentioned the vehicle number 706 to the police. The vehicles also take the route through the police line. There was no one in the shop. The shop was located at a distance of 10 meters. The 'bazaar' was at some distance. He denied that the shop of Shyam Chand was in the

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'bazaar'. The shop of Shyam Chand was open, but he had gone to take food. He denied that he had not visited the spot or that he was making a false statement.

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It was submitted that the testimony of Sant Ram is not believable because he stated the time of the incident as 12:00, whereas other witnesses stated that the accident occurred at 11:30 A.M. This contradiction is not significant. The incident had taken place on 24.11.2005, and this witness made the statement on 21.03.2007 after more than one year after the incident. Therefore, contradictions were bound to come with time due to the failure of memory. It was laid down by the Hon’ble Supreme Court in Goverdhan v. State of Chhattisgarh (2025) SCC Online SC 69 that the discrepancies are not sufcient to discard the prosecution case unless they are fi material. It was observed: -

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“ 51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the accounts of eyewitnesses.

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In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 , it was observed as follows:

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“9. Be it noted that the High Court is within its jurisdiction, being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of

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two witnesses, unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason thereof should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105] . In para 10 of the Report, this Court observed: (SCC pp. 514-15)

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‘10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach by taking

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sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer, not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differ with individuals.’

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In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26], this Court observed: (SCC p. 656, para 24)

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‘24. When an eyewitness is examined at length, it is quite possible for him to make some discrepancies. No true witness can escape making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the

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credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.’

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This Court further observed: (SCC pp. 65657, paras 25-27)

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‘25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness to confront him during crossexamination. Merely because there is an inconsistency in evidence, it is not sufficient to impair the credit of the witness. No doubt, Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

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“ 155. Impeaching the credit of a 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

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(1)-(2) ***

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(3) by proof of former statements inconsistent with

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any part of his evidence which is liable to be contradicted;”

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A former statement, though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to a contradiction. Only such an inconsistent statement, which is liable to be “contradicted”, would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness, the crossexaminer is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only a limited purpose, i.e. to “contradict” the witness.

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To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent, it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ 1231] ).”

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Further, this Court also cautioned about attaching too much importance to minor discrepancies of the evidence of the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows: “5. … We do not consider it appropriate or permissible to enter upon a reappraisal or

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reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

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(1) By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.

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(2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.

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(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

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(4) By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

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(5) In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable

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estimates in such matters. Again, it depends on the time sense of individuals, which varies from person to person.

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(6) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on.

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(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by the counsel and, out of nervousness, mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him—perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.”

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To the same effect, it was also observed in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:

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“13. … The court, while appreciating the evidence, must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution's case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of

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memory may be given due allowance. The court, by calling into aid its vast experience of men and matters in different cases, must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such a witness, the proper course is to ignore that fact only unless it goes to the root of the matter to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version, perhaps for fear that their testimony will be rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751: 1972 SCC (Cri) 819 ] observed: [SCC p. 756, para 8: SCC (Cri) p. 824, para 8]

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‘8. … This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggeration, embroidery or embellishments. In most cases, the witnesses, when asked about details, venture to give some answer, not necessarily true or relevant, for fear that their evidence may not be accepted in respect of the main incident which they have witnessed, but that is not to say that their evidence as to the salient features of the case, after cautious scrutiny, cannot be considered….’”

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It was laid down by the Hon’ble Supreme Court in

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Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217

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that no person remembers the time by looking at the watch, and when asked about the time, gives an estimate of time, which may or may not be correct. Hence, the testimony cannot be discarded because of a discrepancy in the time.

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It was submitted that Mohan Kumari stated in her cross-examination that Sant Ram was sitting in the shop of Shyam Chand, and the presence of this witness on the spot is highly doubtful. This submission cannot be accepted. It is nobody's case that Mohan Kumari had gone to the shop of Shyam Chand before the incident. She specifically stated that she was sitting outside her shop. Therefore, her testimony that Sant Ram was sitting in the shop of Shyam Chand is not based upon her personal knowledge and cannot be used to doubt the presence of this witness.

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It was submitted that this witness has not made any effort to apprehend the accused, and his presence on the spot is not established. This submission will not help the petitioner. As already stated, the Court cannot accept a particular state of behaviour from every witness and discard the testimony of a witness because he failed to exhibit that behaviour. No question was asked from this witness as to why he had not tried to

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apprehend the driver of the vehicle, and in the absence of any cross-examination, it is hazardous to discard his testimony because he had not acted in a particular manner.

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The accused claimed that he had taken the route passing through the police line, and he had not caused the accident. He examined Rajinder Kumar (DW1) and Rajesh Kumar (DW2) to establish this fact.

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Rajinder Kumar (DW1) stated that he and Devender were present in the colony at Kalpa. They were waiting for the bus. A vehicle bearing registration No. HP63-0706 came out of the spot. They boarded the vehicle. Sleepers were loaded in the vehicle. The vehicle went through the police line in Reckong Peo. Sleepers were unloaded at the sawmill. He stated in his cross-examination that the accused told him that he had no labour; sleepers were unloaded at the sawmill; hence, he accompanied the accused in his vehicle.

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As per this witness, he and Devender had boarded the vehicle. Rajesh Kumar (DW2), on the other hand, stated that the vehicle had two persons, one of whom was the accused, and there was another person. Therefore, his testimony that he and Devender boarded the vehicle of the accused is not supported by

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Rajesh. Further, he stated that he had boarded the vehicle because the accused stated that he had no labour for unloading sleepers. However, Rajesh Kumar (DW2) did not state that he had helped in the unloading of the vehicle. He stated that he was not aware that the accused had hit the girl at high speed. Learned Appellate Court had rightly pointed out that had he been present in the vehicle, he would have denied this fact positively. Thus, there was sufficient material to doubt his testimony, and the learned Courts below had rightly discarded his testimony.

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Rajesh Kumar (DW2) stated that he was working in the shop of Sujan Singh. One vehicle having two people came to the spot. Sleepers were unloaded, and the vehicle left the spot. He stated in his cross-examination that he was not aware that the vehicle had hit the child near Reckong Peo hospital. This witness has only deposed about the fact that the vehicle had reached the sawmill, and his testimony does not disprove the prosecution’s case that the vehicle had hit the child.

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Therefore, the defence evidence was insufficient to discard the prosecution case, and the learned Courts below had rightly rejected the same.

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It was submitted that the child was called Tuni, which means deaf, and she was negligent. There is no evidence that the child was deaf, or Tuni means deaf. Hence, this submission is based on no evidence and cannot be accepted.

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The statements of the prosecution witnesses are consistent. They corroborated each other on material particulars. Nothing was suggested to them as to why they would falsely depose against the accused. Therefore, learned Courts below had rightly accepted their testimonies.

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Informant Mohan Kumari (PW1) stated that the road was wide at the place of the incident, and the two vehicles could easily cross the road. Sudesh Kumar (PW6) stated in his examination-in-chief that the road is straight at the place of the accident. The site plan and the photographs show that blood was lying on the 'kacha' portion of the road. The site plan also shows that the road was straight. The width of the road is shown to be 08 feet 06 inches. The 'kacha' portion was shown to be two and a half feet towards the eastern side, where the blood was lying. The statements of the prosecution witnesses and the site plan show that the vehicle had left the 'pakka' portion of the road and hit the girl on the 'kacha' portion of the

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road. The vehicle had sufficient space on the 'pakka' portion (08 feet 06 inches), but it still hit the girl on the 'kachha' portion, which shows that the driver had failed to take care while driving the vehicle and avoid the risk to the pedestrian on the 'kachha' portion of the road. Therefore, his negligence was duly established.

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It was submitted that high speed does not amount to negligence. There can be no dispute with this proposition of law. However, in the present case, the proximate cause of the accident was leaving the 'pakka' portion and hitting a girl on the 'kacha' portion of the road and not the high speed. Thus, no advantage can be derived from the submission that high speed is not sufficient to convict the accused. The judgments cited at the bar in support of the submission that the accused cannot be convicted because of high speed do not apply to the present case.

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The accused never disputed that he was driving the vehicle on the day of the accident. Thus, it was duly proved on record that the accident was caused by the negligence of the accused. The child died in the accident, and the accused failed to carry the child to the hospital. Therefore, he was rightly

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convicted of the commission of an offence punishable under Sections 279 and 304-A of the IPC and 187 of the M.V. Act.

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Learned Trial Court sentenced the accused to undergo rigorous imprisonment for a period of six months for the commission of an offence punishable under Section 279 of IPC and rigorous imprisonment for two years for the commission of an offence punishable under Section 304-A of IPC. These are the maximum sentences prescribed by the legislature. Learned Trial Court held that the accused had hit a minor child, which justified the imposition of the maximum punishment. In the present case, the child was aged 04 years. She was seen on the left side of the road. The vehicle was taken towards the left side, and the victim was hit towards the left side. There is no explanation for such conduct. The efforts were also not made to take the child to the hospital, even though the hospital was in the vicinity. This conduct shows that the accused has scant regard for human life. 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:

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“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 highway are among the top killers of the country" the saturation of accidents toll was not even half of what it is today. So V. R. Krishna Iyer, J., has suggested in the said decision thus :

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"Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under S. 304-A, I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy-duty vehicles and speeding menaces."

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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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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 ac-

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celerator 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.”

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A similar view was taken in State of Punjab v.

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Balwinder Singh, (2012) 2 SCC 182, wherein it was held: -

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It is a settled law that sentencing must have a policy of correction. If anyone has to become a good driver, must have better training in traffic laws and moral responsibility with special reference to the potential injury to human life and limb. Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh [(2000) 5 SCC 82: 2004 SCC (Cri) 1208] .

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