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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Cr. Appeal No. 27 of 2008 Reserved on: 19.11.2018 Decided on : 21.11.2018 ____________________________________________________________ State of H.P. …..Appellant

Versus

Amar Nath ….Respondent

Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?¹Yes For the appellant: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. With Mr.

Bhupinder Thakur, Dy. A.G.

For the respondent: Mr. Bimal Gupta, Senior Advocate with Ms. Rubeena Bhatt, Advocate.

_______________________________________________________________

Tarlok Singh Chauhan, Judge

The State is aggrieved by the order of acquittal passed by learned Judicial Magistrate, 1^stClass, Manali, District Kullu, H.P. on 06.10.2007 whereby he acquitted the respondent under Sections 279, 337, 338, 304-A IPC and Section 182 of the Motor Vehicles Act.

2. The case of the prosecution is that on 27.3.2006, the complainant Dilli Devi, Leela Devi, Bantu Devi, Dearu Ram, Rounie and Chet Ram while travelling in vehicle No. HP-33T-9825 were going to Patalikuhal from place Pangan. When the vehicle reached at a place near Sukhali at 1.18 p.m., then a vehicle Tata Sumo came

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from the opposite side and while giving pass to the said vehicle, the driver of the vehicle No. HP-33T-9825 could not judge the side as a result of which the same fell down. The occupants of the vehicle sustained injuries and one of them succumbed to the same. It was on the basis of the statement of Dilli Devi that an FIR came to be registered against the respondent. After completion of investigation, the respondent was tried for commission of offence punishable under Sections 279, 337, 338 and 304-A IPC and Section 182 of the Motor Vehicles Act.

3. The prosecution examined six witnesses and thereafter the statement of the respondent was recorded under Section 313 Cr.P.C. and his defence was that of total denial. He also tendered in evidence copy of order dated 25.4.2007 passed by learned Motor Accident Claims Tribunal, Kullu and statements Ex.DB, DC and memo of costs Ex.DD.

4. It is vehemently argued by learned Additional Advocate General that the findings recorded by the learned Court below are perverse inasmuch as it has failed to appreciate the truthful and trustworthy deposition of PW-2 Banto Devi and PW-6 Rajesh both of whom have been injured in the occurrence. That apart, the prosecution case has further been proved by PW-1 Dilli Devi whose statement has been misconstrued and mis-appreciated by the learned Court below.

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5. On the other hand, learned counsel for the respondent would argue that the findings recorded by the learned Court below being strictly in consonance with the evidence that has come on record, no exception to the same can be taken. I have heard learned counsel for the parties and have gone through the records of the case.

6. At the outset, it would be necessary to deal with the ambit and scope of the powers of the appellate Court in dealing with an appeal against acquittal and the law on the subject has been succinctly dealt with by the Hon'ble Supreme Court in Ghurey Lal vs. State of U.P. 2008 (10) SCC 450, wherein after taking into consideration all the previous precedence summed up the legal position as under:-

43. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR 1934 PC 227. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under: (at p. 230):

"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (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.…"

The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of

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the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill- founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

44. This Court again in the case of Surajpal Singh and Ors. v. State AIR 1952 SC 52, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:

"7. It is well established that in an appeal under Section 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very

substantial and compelling reasons."

This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.

45. In Tulsiram Kanu v. State AIR 1954 SC 1, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.

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46. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State Of U.P. AIR 1954 SC 637, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision.

47. The same principle has been followed in Atley v. The State Of Uttar Pradesh .. AIR 1955 SC 807, wherein the Court said:

"5….It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."

48. The question was again raised prominently in Aher Raja Khima v. State Of Saurashtra . AIR 1956 SC 217. Bose, J. expressing the majority view observed (at p.220):

"1….It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State Of Punjab . AIR 1953 SC 76; and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417 is not

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justifiable unless there are really strong reasons for reversing that view.

49. In Balbir Singh v. State Of Punjab . AIR 1957 SC 216, this Court again had an occasion to examine the same proposition of law. The Court observed as under:

"12…..It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."

50. A Constitution Bench of this Court in M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, observed as under:

There is no doubt that the power conferred by Clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against

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conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence.…

The test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.

The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would,no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.

51. In Noor Khan v. State Of Rajasthan . AIR 1964 SC 286, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:

"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. 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 of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (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."

52. In Khedu Mohton and Ors. v. State of Bihar 1970 (2) SC 450, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observedas under:

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"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal. (emphasis supplied)

53. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 (2) SCC 793, the Court observed thus:

"5...An appellant aggrieved by the overturning of his acquittal deserves the final court s deeper concern on fundamental principles of criminal justice....But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration, In our view the High Court s judgment survives this exacting standard.

54. In Lekha Yadav v. State Of Bihar . 1973 (2) SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:

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"6…...'3…. The different phraseology used in the judgments of this Court such as-

(a) substantial and compelling reasons:

(b) good and sufficiently cogent reasons;

(c) strong reasons. are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.

55. In Khem Karan and Ors. v. State of U.P. and Anr. 1974 (4) SCC 603, this Court observed:

"5...Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.

56. In Bishan Singh and Ors. v. State of Punjab 1973 (3) SCC 288, Justice Khanna speaking for the Court provided the legal position:

"22. It is well settled that the High Court in appeal under Section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (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.

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57. In Umedbhai Jadavbhai v. State Of Gujarat . 1978 (1) SCC 228, the Court observed thus:

"6. In an appeal against acquittal, the High Court would not ordinarily interferewith the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice."

58. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, the Court observed thus:

It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.

"A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.] {emphasis supplied}

59. In Tota Singh and Anr. v. State of Punjab 1987 (2) SCC 529, the Court reiterated the same principle in the following words:

"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that nointerference is to be

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made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.

(emphasis supplied)

60. In Ram Kumar v. State Of Haryana . 1995 Supp. (1) SCC 248, this Court had another occasion to deal with a case where the court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under:

"15...the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.

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61. This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State Of J&K . 1997 (7) SCC 677, the Court observed as under:

"8. ...that there must be "sufficient and compelling reasons"

or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction...."

62. In Sambasivan and Ors. v. State of Kerala 1998 (5) SCC 412, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:

"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.

63. In Bhagwan Singh and Ors. v. State of M.P. 2002 (4) SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence 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. The Court observed as under:

"7. The golden thread which runs through the web of administration of justice in criminal case 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. Such is not a jurisdiction limitation on the appellate court but a Judge madeguidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.

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64. In Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., 2002 (6) SCC 470, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:

"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.

11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.

12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible,

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because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity. (emphasis supplied)

65.In C. Antony v. K.G Raghavan Nair . 2003 (1) SCC 1had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:

"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.

66. In State of Karnataka v. K. Gopalkrishna 2005 (9) SCC 291, while dealing with an appeal against acquittal, the Court observed:

"17...In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.

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67. In The State of Goa v. Sanjay Thakran 2007 (3) SCC 755, this Court relied on the judgment in State Of Rajasthan v. Raja Ram . 2003 (8) SCC 180 and observed as under:

"15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of 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.... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.

The Court further held as follows:

" 16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.

68. In Chandrappa and Ors. v. State of Karnataka 2007 (4) SCC 415, this Court held:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of 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

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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 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.

69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittalunder Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court s acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court s acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and

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compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court s decision. "Very substantial and compelling reasons" exist when:

i) The trial court s conclusion with regard to the facts is palpably wrong;

ii) The trial court s decision was based on an erroneous view of law;

iii) The trial court s judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court s judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

7. Bearing in mind the aforesaid exposition of law, it would be noticed that one of the main reasons for acquittal of the respondent as given by the learned trial Magistrate is failure to establish the identity of the respondent being the driver of the vehicle at the relevant time.

8. The respondent in his defence has produced copy of order dated 25.4.2007 passed by learned Motor Accident Claims Tribunal,Kullu and on perusal of para-9 of the order, it is clearly

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evident that the learned Tribunal has observed that the vehicle in question was being driven by one Prem Chand at the relevant date and time and not by the accused Amar Nath. Noticeably, this is even the defence of the respondent.

9. As observed earlier, the prosecution examined six witnesses, out of whom, PW-4 Rishi Raj is the witness of seizure memo and only PW-1 Dilli Devi, PW-2 Banto Devi and PW-6 are the witnesses of the occurrence. PW-1 Dilli Devi has not supported the case of the prosecution and was declared hostile. Nothing material could be elicited in the cross-examination by learned APP as she stated that she did not know the person who was driving the vehicle at the relevant time and further denied that the occurrence took place due to the high speed at which the vehicle was being driven.

10. PW-2 Banto Devi has not attributed any rash and negligent act on the part of the respondent and stated that the occurrence took place due to the vehicle being driven at a high speed. Whereas, PW-6 Rajesh, who was stated to be one of the occupants of the vehicle was not in a position to clearly identify the driver of the vehicle and he too only depose that the vehicle was being driven at a high speed. PW-6 has also doubted the identity of the accused whereby he categorically stated that the vehicle in question was being driven by Prem Chand and not by Amar Nath.

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11. Even if the order passed by the learned Tribunal is left out from consideration, even then it would be noticed that the prosecution has miserably failed to lead clear, cogent and convincing evidence that it was the respondent, who was driving the vehicle at the relevant time. It is very intriguing to note that despite there being no allegations of any rashness and culpable act of the respondent, yet the FIR came to be registered against him on the basis of allegations of error of judgment which to my mind cannot be termed to be a criminal Act, on the basis of which the prosecution could have been launched.

12. As regards the allegation that the vehicle was being driven at high speed. In Tukaram Sitaram Gore vs. State AIR 1971 Bombay 164, the learned Single Judge of the Bombay High Court has held that high speed of a motor vehicle does not by itself prove rashness or negligence of driver. It was further held that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. Relevant observations read as under:-

"3. As far as the first point is concerned, the Supreme Court has, in its unreported decision, D/-21-3-1968 in (1968) Criminal Appeal No. 154 of 1965 (SC), held that the use of the expression "high speed" (that being the expression used by a witness in the case before the Supreme Court) was not enough to prove rashness or negligence, unless evidence was elucidated from the

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witness who used that expression as to what his notion of speed was. As far as witness Kasturi Satayya is concerned, no evidence whatsoever has been elicited from him to show what his notion of "fast speed" was. As far as witness Yasminkhan is concerned, an attempt has been made to elicit from him, in the course of cross-examination, as to what his notion of "fast speed"

was, and he stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. The speed of 35 miles per hour is, no doubt, slightly in excess of the speed-limit in the city (except along Marine Drive), but it can by no means be said to be a speed which is so excessive as to amount, per se, to rashness or negligence. The evidence that the accused was driving the motor lorry at fast speed at the time of the incident is, therefore, of no avail to the prosecution in the present case.

6. There is no other fact emerging from the prosecution evidence from which such an inference can be drawn. Hearing criminal appeals during the last few months, I have come across several cases of prosecutions under Section 304-A in which Magistrates appear to have presumed negligence, once a man is knocked down and killed by a motorist. There can be no such presumption. Not only must there be evidence of rashness or negligence acceptable to the Court but, as laid down by the Supreme Court in the case of Suleman Rahiman v. State of Maharashtra, 70 Bom LR 536 at p.538= (AIR 1968 SC 829 at p.831) there must be proof that the rash or negligent act of the accused was the proximate

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cause of the death and there must be a direct nexus between the death of a person and the rash or negligent act of the accused. In running-down cases the death of the pedestrian may very well be purely accidental, or may be due to his own negligence. To presume that because a pedestrian has been knocked down and has died, the driver of the motor vehicle that knocked him down must be guilty of rashness or negligence overlooks these two possibilities. It is necessary for subordinate Courts to bear in mind that the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. I am told that, at one time, it was the practice of the Chief Presidency Magistrate of Bombay to allot running-down cases only to those Magistrates who knew motor-driving. The traffic problem in the city has now become very acute and I wonder whether it would not be advisable for the Chief Presidency Magistrate to revert to that practice, if it is possible to do so."

13. It is more than settled that in order to bring home the guilt of rash and negligent driving, three things need to be proved by the prosecution that too beyond any reasonable doubt:-

i) that the accident actually took place;

ii) that the accident took place due to rash and negligent driving;

iii) that the accused was the person, who was driving the vehicle at that time.

14. These words i.e. "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a

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person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.

15. Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A. Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.

"A careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The work 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it

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is not a flatly descriptive psychological expression like 'his mind was a blank'."

16. The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.

17. In Badri Prasad Tiwari vs. State I (1994) ACC 676, it was held by the Hon'ble Orissa High Court that in order to establish the offence either under Section 279 or 304-A IPC, the commission of rash and negligent act has to be proved. The driving or riding on a public way, while offence under Section 304-A extends to any rash and negligent not falling short of culpable homicide. A distinction between "rashness" and "negligence" is that "rashness"

conveys an idea of doing a reckless act without considering any of its consequences, whereas, "negligence" connotes want of proper care.

18. It would be noticed that the instant is a case where apart from the bare statement of PW-1 that the vehicle was being driven by the petitioner at a high speed, there was no attempt made to establish that there was any rash and negligent act on the part of the driver of the vehicle. "High speed" is an expression which is relative and subjective. Therefore, merely because of the vehicle was being driven at a high speed does not mean that the driver was driving rashly and negligently.

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19. This was so held by the Hon'ble Supreme Court in State of Karnataka vs. Satish (1998) 8 SCC 493 wherein it was observed as under:

"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" 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

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reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

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."

20. The Hon'ble Supreme Court has defined "rashness" and

"negligence" in Mohammed Aynuddin alias Miyam vs. State of Andhra Pradesh, AIR 2000 SC 2511 wherein it has been held as under:-

"10. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."

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21. This Court in State of Himachal Pradesh vs. Piar Chand, 2003 (2) Shim. L.C. 341 while dealing with the meaning of the expression "rashness" and "negligence" observed as under:-

"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or an individual."

22. Thus, it is absolutely clear that the element of

"rashness" and "negligence" is a sine-qua-non for the offences under Sections 279/304-A IPC and the same cannot be presumed.

23. At this stage, I may also refer to the judgment of the Hon'ble Supreme Court in Rathnashalvan vs. State of Karnataka, AIR 2007 SC 1064 wherein the Hon'ble Supreme Court has clearly held that the provisions of Section 304-A IPC would apply to such acts which are rash and negligent and are direct cause of death of another person. Relevant observations read thus:-

"7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act

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done in all probability will cause death. The provision is direction at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 302-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.

8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences.

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Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.

9. The distinction has been very aptly pointed out by Holloway J. in these words :

"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of Circumspection."

(See In re : Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)"

24. Thus, the mere proof of accident in itself is not sufficient as the prosecution was required to establish beyond reasonable doubt that the accident was caused by the accused and it was due

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to rash and negligent driving of the vehicle by the accused. The death should be direct result of rash and negligent act. Meaning thereby, it must be "causa causans". It is not enough that it may have been causa sine-qua-non and, therefore, the mere fact that the accused may have been driving the vehicle at a very high speed in itself may not attract the provisions of Section 279 IPC and further Section 304-A IPC which also requires the driving of a vehicle to be in a rash and negligent manner. The fact that the vehicle may have been driven in a speed cannot by itself without judging the situation in which driver has been placed to be a factor to prove the rashness and negligence.

25. Once the identity of the respondent and thereafter there being no proof that the vehicle in question was being driven in a rash and negligent manner, then obviously the learned Magistrate was left with no other option but to acquit the respondent.

26. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any.

(Tarlok Singh Chauhan), Judge

November 21, 2018

( GR)