State Vs Vijay Kumar

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2026:HHC:29450

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No.366 of 2011

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Date of Decision: 18.07.2026

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__________________ State of Himachal Prad	______________________________ esh …….A Versus	_______ ppellant
Vijay Kumar	… Res	pondent
__________________ Coram: Hon’ble Mr. Justice Sa Whether approved for r	______________________________ ndeep Sharma, Judge. eporting?¹Yes.	_______
For the Appellant:	Mr. Rajan Kahol & Mr. Vishal Additional Advocate Generals with Chauhan & Mr. Anish Banshtu, Advocates General.	Panwar, Mr. Ravi Deputy
For the Respondent:	Mr. Tarun K. Sharma, Advocate.
_________________ Sandeep Sharma, Jud	_____________________________ ge (oral):	______

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Instant Criminal Appeal filed under Section 378(3) of the

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Code of Criminal Procedure, lays challenge to judgment of acquittal dated 16.02.2011 passed by learned Chief Judicial Magistrate, Mandi, District Mandi, Himachal Pradesh, in Criminal case No.15-II/2005, titled State of Himachal Pradesh vs. Vijay Kumar , whereby learned trial Court held respondents-accused (hereinafter referred to as the accused) not guilty of having committed offence punishable under Sections 279 and 338 IPC and accordingly acquitted him.

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In a nutshell, the case of the prosecution/appellant-State,

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as has been highlighted in the grounds of appeal and further

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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canvassed by Mr. Anish Banshtu, learned Deputy Advocate General, is that the Court below, while ascertaining the guilt of the accused under Sections 279 and 338 of IPC, has failed to appreciate the evidence in its right perspective, as a result of which, findings to the detriment of the prosecution have come to the fore. He further submitted that though in the instant case prosecution proved beyond reasonable doubt that the accident occurred on account of the rash and negligent driving of the accused, named in the FIR, but yet Court below, without there being any convincing reason, proceeded to acquit the accused.

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To the contrary, Mr. Tarun K. Sharma, learned counsel representing the appellant, vehemently argued that there is no illegality or infirmity in the impugned judgment of acquittal passed by Court below. He further submitted that bare perusal of the evidence led on record itself suggests that no witnesses stated something specific with regard to the rash and negligent driving of the accused. He further submitted that there are material contradictions in the statements of the witnesses. He submitted that PW-1, Naresh Kumar, nowhere stated that the accident took place due to the rash and negligent driving of the accused. He submitted that aforesaid witness stated that the injured was crushed under the rear tyre of the bus, whereas PW-3 Kumari Naindeep, gave altogether a different version

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by stating that the injured was hit by the front portion of the bus and as such, no illegality can be said to have been committed by Court below, while discarding the evidence led on record by the prosecution.

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Having heard learned counsel for the parties and perused the material adduced on record vis-à-vis reasoning assigned in the impugned judgment of acquittal recorded by Court below, this Court is not persuaded to agree with learned Deputy Advocate General that the Court below has failed to appreciate the evidence in its right perspective, rather, this Court finds that prosecution failed to prove its case beyond a reasonable doubt. There are material contradictions and consistencies in the statements made by the prosecution witnesses with regard to mode and manner of the accident.

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Interestingly, in the case at hand, prosecution, with a view to prove its case, examined as many as eight witnesses. PW-1, Naresh Kumar, deposed that he was coming to school behind the bus in question at the time of the occurrence, but he did not state that accused, Vijay Kumar, was driving the bus at the relevant time. He also not stated that accident occurred on account of the rash and negligent driving of the accused. Most importantly, this witness stated that injured was crushed under the rear tyre of the bus, however aforesaid version of him came to be contradicted by PW-3, Kumari

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Naindeep, who stated that injured was hit with the front portion of the bus. PW-1 in his cross-examination resiled from his statement recorded under Section 161 of the Cr.P.C. Even in his crossexamination, he did not state anything specific with regard to the rash and negligent driving of the accused or the accident itself.

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PW-2 Harjinder Singh, witness of the spot, also not stated that accused was driving the vehicle in a rash and negligent manner. In his cross-examination, this witness submitted that he saw the accused for the first time in Court at the time of his examination, meaning thereby he had no occasion to see at the time of the accident whether the vehicle in question was being driven by the accused.

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PW-3, Kumari Naindeep was with the injured Jaspreet at the time of the occurrence, but she nowhere stated that accused was driving the vehicle at the relevant time. Though, this witness stated that the bus had come there at a high speed, but by now it is well settled that mere high speed does not automatically prove the rashness or negligence of the driver.

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PW-4, Shri Balbir Singh, who is the father of the injured,

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was not present at the spot at the time of the occurrence. While stating that he was not present at the spot at the time of occurrence,

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he stated that accident occurred on account of negligence of the accused.

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PW-5, Shri Hitesh Tandon, also not supported the case of the prosecution.

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PW-6, ASI Brestu, had mechanically examined the vehicle and issued his report.

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PW-7, Inspector Om Prakash, is the Investigating Officer (I.O.), who prepared the site plan (Exhibit PW-7/C) and recorded the statements of the witnesses. Cross-examination conducted upon afore witness shows that it has come out in the investigation that the injured was hit by the back portion of the bus, whereas the spot witness, PW-3, stated that injured was hit by the front portion of the bus. The I.O. stated that no blood was found at the spot, and no blood was found on the tyre of the bus, whereas PW-4 stated that the foot of the injured was found at the spot, separated from the body of the injured from where PW-4 has taken that foot to the hospital. There are material contradictions between the statements of PW-4 and PW-7.

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If the statements made by all the prosecution witnesses are read in conjunction, none of them stated anything specific with regard to the rash and negligent driving of the accused. None of the witnesses stated anything specific with regard to the identity of the driver who, at the relevant time, was driving the vehicle. There are

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material contradictions regarding which part of the offending vehicle hit the injured. Though, PW-1 claimed that injured was crushed under the rear tyre of the bus, whereas PW-3 Kumari Naindeep, who was actually with the injured at the time of the accident, stated that the injured was hit by the front portion of the bus.

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Reliance is placed on judgment rendered by the Hon’ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406 , which reads as under:-

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“6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.

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8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.”

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The Hon’ble Apex Court in case titled “ State of

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Karnataka v. Satish,”1998 (8) SCC 493 , has also observed as

under:-

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“1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence"

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could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

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5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed.”

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15. Careful perusal of aforesaid judgment clearly suggests

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that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur .

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By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon’ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that “no man is guilty until proved so”,

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utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-

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“45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14)

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“ 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

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46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so,” hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of

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all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.

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After perusing the statements of the prosecution

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witnesses as well exhibits placed on record, two views are possible in the present case and as such, the respondent-accused is entitled to the benefit of doubt. The learned counsel for the petitioner-accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State of UP versus Ghambhir Singh & others , AIR 2005 (92) Supreme Court 2439 , wherein the Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:-

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“6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.”

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Reliance is also placed on judgment rendered by the

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Hon’ble Apex Court in “ Harbeer Singh v. Sheeshpal and Ors. ,

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(2016) 16 SCC 418, relevant para whereof is being reproduced herein

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“11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].”

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The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of

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H.P ., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:-

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“25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue.

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26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed.

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27.Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.

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Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegality and infirmity in the judgment of acquittal recorded by learned trial Court, which is based upon proper appreciation of evidence and as such, no interference is called for and accordingly, same is upheld. Record of learned trial Court be returned forthwith.

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The present appeal fails and accordingly same is dismissed alongwith pending application (s), if any.

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(Sandeep Sharma), Judge

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July 18,2026 (shankar)

State v. Vijay Kumar

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State v. Vijay Kumar

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