Full Judgment Text
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PETITIONER:
NAGESHWAR SHRI KRISHNA CHOUBE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT19/09/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION:
1973 AIR 165 1973 SCR (2) 377
1973 SCC (4) 23
ACT:
Indian Penal Code (Act 45 of 1860) s. 304 A-Rash and
negligent driving-Available material evidence not produced
by prosecution-Reliance on nature of accident by Courts-
Propriety-Rejection by Courts of defence evidence-
Impropriety of use of intemperate language by Courts.
HEADNOTE:
The appellant was driving a bus, which mounted the footpath,
dashed against an electric pole, aid a person, who was near
the electric pole, was knocked down dead as a result of the
pole falling on him. Four other persons were injured by the
bus hitting them. Three of these persons were examined as
prosecution witnesses, but the evidence on behalf of the
prosecution did not throw any right on the precise
circumstances in which the bus happened to mount the
footpath. According to the appellant, he was driving the
bus at a moderate speed when suddenly the fourth of the
injured persons, who was not examined as a witness, came
running in his attempt to cross the road. The appellant
took a turn to avoid him and also applied his brakes, but
the accident happened because of circumstances beyond his
control. He also examined one witness on his behalf who
generally supported his version. The trial court passed
strictures on the defence witness and convicted the
appellant under s. 304A I.P.C. On appeal, the High Court,
while emphasising on the perfunctory character of the
investigation, also passed strong strictures against the
defence witness and confirmed the conviction of the
appellant, on the grounds, that the electric pole would not
have fallen unless the bus was going at a high speed when it
hit the pole, that assuming the pedestrian came running
across the road the appellant was in a position to see him
and could have come to a complete stop if he was reasonably
careful, and that the appellant must have continued to run
the bus at full speed expecting the pedestrian to stop. The
High Court wanted to examine the injured pedestrian as a
Court witness, but did not do as the defence objected.
Allowing the appeal to this Court under Art. 136 of the
Constitution,
HELD : (1) The High Court should have examined the court
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witness. The failure to do so on the ground that the
defence objected to such examination was not a proper
approach, because, parties cannot control the Court’s
discretion to have any additional evidence considered by it
to be necessary in the interests of justice. Justice would
fail not only by unjust conviction of the innocent but also
by acquittal of the guilty for unjustified failure to
produce available evidence. [387G-H]
(2)The fact that this was not the first time when
investigation in a caselike this had been utterly
perfunctory was no ground for convicting the accused. [386G-
H]
(3)Assuming that the High Court was right that the road at
the time was more than normally crowded it was still a
question for consideration as to from how much distance the
appellant would have been able to see a pedestrian who was
running to the road, an aspect which was not adverted to by
the High Court. [386E-F]
378
(4)The judgment of the trial Court and of the High Court
proceed principally on assumptions not fully supportable on
the material on the record. Merely because the nature of
the accident, prima facie requires an explanation from the
driver would not be sufficient to sustain his conviction, if
the truth of his explanation which was not liable to
rejectionoutright could have been appropriately judged if
the evidence left out by the prosecution had been produced.
[387A-E]
(5) Evidence which was material,. such as the evidence of
the pedestrian and the passengers in the bus had not been
collected by the investigating agency, and the reasons given
for not examining the injured pedestrian are wholly
unconvincing. The evidence actually produced’, has not
established the appellant’s guilt beyond reasonable doubt.,
[387C-F]
(6)The Investigating Officer has acted without the
requisite sense of responsibility essential for fair and
just investigation into serious accidents like the present.
He had not taken photographs of the position of the vehicle,
the electric pole, and the position of the victim, but bad
produced, instead, a most unsatisfactory rough sketch.
There was no evidence of relevant factors such as the height
of the kerb, the state of traffic on the road, the condition
of the brakes, and of the probable speed of the bus which
could have been ascertained by measuring the tyre marks on
the road. [383G-H; 386A-C]
(7)Assuming the testimony of the defence witness did not
impress the courts below they should have expressed their
opinion in temperate language with judicial restraint.
[388D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Cr. A. No. 209 of 1969.
Appeal by special leave from the judgment and order dated
August 14, 1969 of the Bombay High Court in Criminal Appeal
No. 552 of 1968.
H.R. Pardivala, D. N. Mishra and J. B. Dadachanji, for
the appellant.
S.K. Dholakia and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by
DUA, J.-This is an appeal by special leave under Art. 136 of
the Constitution from the judgment of the Bombay High Court
upholding on appeal the appellant’s conviction by the
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Presidency Magistrate, 12th Court, Bandra, Bombay under S.
304A, I.P.C. and sentence of rigorous imprisonment for 18
months and fine of Rs. 1,500/-, in default further, rigorous
imprisonment for four months.
According to the presecution, on July 2, 1967, at about 4.15
p.m. the appellant was driving a B.R.S.T. motor bus bearing
no. BHQ 1019 along the southern side of Tilak Road from
east to west. When the bus suddenly mounted the southern
footpath and’, dashed against an electric pole felling it
fell down, the bus stopped. A person who was near the
electric pole was knocked down dead as a result of the
electric pole falling on him. His right hand was severed,
his head crushed with the brain matter sticking
379
on to the wall near the electric pole. It was a double
decker bus.’ One Harbansingh Ramsingh (called bhaiya) also
sustained injuries as a result of having been hit by the
bus.
According to the appellant, he was driving the bus at a mo-
derate speed from east to west along the southern side of
Tilak Road when suddenly a bhaiya, in his attempt to cross
the road, came near the right wheel of the bus. He was
noticed by the appellant when he was about 3 ft. away from
the front right portion of the bus. In order to avoid him
the appellant applied his brakes and took a turn to the
left, thereby mounting the southern footpath and it was in
these circumstances that he struck against the electric
pole. The accident, according to his plea, occurred because
of circumstances beyond his control. The Presidency
Magistrate did not believe the defence version and observed;
"According to the accused he was going at a
speed as if he was approaching a bus stop. If
that were so and if Harbansing was crossing
the road from north to south as alleged by the
defence and if the accused applied his brakes
after seeing the bhaiya, then it is hard to
see how the bus did not stop there and then.
The bus however went on to the southern
footpath and dashed against the electric pole
with such a force that it was uprooted. The
fact that the accused was not able to halt the
bus there and then show that the bus was in
good speed. The accused could not control its
speed in time. If therefore hold that the
prosecution has established its case against
the accused."
On this reasoning, finding the accused guilty, the trial
court convicted and sentenced him, as already noticed. It
may be pointed out that the accused was also charged under
ss. 273 and 338, I.P.C. but the court did not consider it
proper to impose separate sentences under these sections.
On appeal to the High Court the learned Chief Justice, after
considering the arguments urged before him, observed that in
the circumstances of the case it was impossible that
Harbansing could come within 3 ft. of the bus in question
before the accused first saw him. Even after the accused
had realised the danger be could have, according to the
learned Chief Justice, avoided climbing on to the footpath
and injuring the pedestrians there, after knocking down the
electric pole, had it not been for the speed of the bus
which Prevented him from controlling the vehicle. The
learned Chief Justice considered it unimaginable that the
electric pole would be completely uprooted unless the bus
was in considerable speed when it hit the pole, the heavy
nature of the vehicle notwithstanding. This by itself, the
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High Court observed, was
380
one of the factors which establish the rashness and
negligence of the accused. The High Court opined that it
must have taken quite some time for the bhaiya to cross 3 5
ft. of the road (the road was stated to be 35 ft. wide) even
though he was running. If, therefore, the man stated
running from the northern end of the road the vehicle must
have been at least 50 or 60 ft. away from the point of
impact. The driver of the bus, had he, been reasonably
careful, could have brought the bus to a complete stop in a
distance of about 50 or 60 ft. and avoided the collusion
even assuming the bhaiya was running fast. This is another
factor which, according to the learned Chief Justice,
reflected the negligence on the part of the accused person.
The defence witness (K. G. Joshi) deposed that the accused
had not blown any horn. This version also, in the opinion,
of the High Court, lent some ,support to the negligence on
the part of the accused. The High ,Court in the end
observed
"Though no doubt the burden of proof in a
criminal trial is upon the prosecution, the
facts pertaining to the accident in the
present case are so eloquent and glaring that
they speak for themselves. Even assuming that
‘Harbansing came running from the north to the
south across the road as the accused says, he
was in a position to have seen him start
running and to have brought his bus under
control within sufficient time to avoid the
accident but he was in a hurry to reach his
destination within time and so the accused
continued to run his bus at the same speed
full well knowing that if the pedestrain
continued to cross the road he would do so at
his peril and therefore expecting him to stop.
It is that attitude of mind which has led to
this accident and amounts to rashness or
negligence on the part of the accused. Even
taking into account the explanation which the
accused has given, I am unable to see how the
accused cannot be held to have driven rashly
or negligently."
The High Court was on the whole satisfied upon the evidence
that the conviction was justified.
In this Court Shri Pardiwala has, in an elaborate argument,
taken us through the entire record of the case and has
submitted that in a case of rash and negligent driving the
prosecution has to prove by evidence beyond reasonable doubt
that the accused was rash and negligent and the mere fact
that the accident has taken place in a manner which does not
seem to be normal, is not by itself sufficient to cast on
the accused person the onus of establishing his innocence.
381
In cases of road accidents by fast moving vehicles it
is ordinarily difficult to find witnesses who would be in a
position to affirm positively the sequence of vital vents
during the few moments immediately preceding the actual
accident, from which its true cause can be ascertained.
When accidents take place on the road, people using the road
or who may happen to be in close vicinity would normally
be busy in their own pre-occupations and in the normal
course their attention would be attracted only by the noise
or the disturbance caused by the actual impact resulting
from the accident itself. It is only then that they would
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look towards the direction of the noise and see what had
happened. It is seldom-and it is only a matter of
coincidence-that a person may already be looking in the
direction of the accident and may for that reason be in a
position to see and later describe the sequence of events in
which the accident occurred. At times it may also happen
that after casually witnessing the occurrence those persons
may feel disinclined to take any further interest in the
matter, whatever be the reason for this disinclination. If
however, they do feel interested in going, to the spot in
their curiosity to know something more then what they may
happen to see there, would lead them to form some opinion or
impression as to what in all likelihood must have led to the
accident. Evidence of such persons, therefore, requires
close scrutiny for finding out what they actually saw and
what may be the result of their imaginative inference.
Apart from the eye-witnesses, the only person who can be
considered to be truly capable of satisfactorily explaining
as to the circumstances leading to accidents like the
present is the driver himself or in certain circumstances to
some extent the person who is injured. In the present case
the person who died in the accident is obviously not
available for giving evidence. The bhaiya (Harbansing) has
also not been produced as a witness. Indeed, failure to
produce him in this case has been the principal ground of
attack by Shri Pardiwala and he has questioned the bona
fides and the fairness of the prosecution as also the
trustworthiness of the version given by the other witnesses.
Six witnesses have been produced by the prosecution in sup-
port of its case. We are going into that evidence which is
normally not done in appeals under Art. 136 of the
Constitution because in this case it was urged by Shri
Pardiwala that there is absolutely no evidence showing
rashness or negligence onthe part of the appellant and
that the evidence with regard tothe exact position in
which the bus was actually found vis-a-visthe dead body,
soon after the accident, is also not trustworthy.In deed,
according to the learned counsel, both the trial court and
382
the High Court have been influenced more by the tragic
consequences resulting from the accident than the evidence
on the record.
P.W. 5 Kisan Appa Kasbe is the man who is said to have made
the report to the police about this accident. He appeared
in court on March 20, 1968 and stated that on July 2, 1967
at 3.45 p.m. while walking along the northern footpath from
east to West towards Kodabad Circle he heard noise of impact
of a vehicle and turning that side he saw a B.E.S.T. bus
stationary on the southern footpath and a bent electric
pole. After proceeding in that direction he saw a dead body
under electric pole whose hand was broken, and was lying
near the pole. His skull was also broken and brain matter
was visible. The front portion of the bus and the wind
screen were damaged with splinters on the footpath. He saw
four injured persons. Those injured persons were taken to
the hospital in a single decker bus. He was contacted by
the police at 8.30 p.m. on the same day at his residence
where his statement was recorded. This statement has been
described by M. S. Patil, S.I. (P.W. 6) as first information
report. Quite plainly that statement could not be the
F.I.R. for the simple reason that investigation had
admittedly started on receipt of information at 4.40’p.m. as
sworn by P.W. 6. The statement made by P.W. 5 at 8.30 p.m.
at his residence would accordingly fall under s. 161, Cr.
P.C. and could only be utilised as provided by s. 162, Cr.
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P.C. for contradicting him. Of the four injured persons
mentioned by P.W. 5 three have appeared in court, namely,
Shriman Yadav (P.W. 2), Mohan Rama (P.W. 3) and Bhondibai
Babu (P.W. 4). P.W. 2 merely says that while he and Mohan
Rama (P.W. 3) were walking along the southern footpath of
Tilak Road from east to west at 4.30 p.m. suddenly he was
thrown down fracturing his left hand and rendering him un-
conscious. He has not said anything more. Mohan Rama (P.W.
3) has deposed that he and Shriman Yadav were walking along
the southern footpath when a B.E.S.T. bus came from behind
and struck Shriman Yadav, thereby throwing him down. Mohan
Rama also fell down as a result of Shriman’s impact. Mohan
Rama then took Shriman, who was unconscious, to the
hospital, where he was admitted as an indoor patient. Mohan
Rama was, however, treated and allowed to go home. Mohan
Rama had not seen the bus mounting the footpath. He only
saw the electric pole falling on the deceased. According to
him, the front left wheel of the bus was on the footpath and
the front right wheel was touching its kerb. ’The electric
pole was not uprooted but was cut at the base. Quite
obviously, the evidence of these two witnesses does not
throw any helpful light on the precise circumstances in
which the bus happened to mount the footpath. Dhondibai
Babu (P.W. 4) has stated that he was walking along
383
the southern footpath east to west at about 4 p.m. when
suddenly a B.E.S.T. bus knocked him down unconscious.
According to him, the left front portion of the bus struck
him. He has said nothing more. If he became unconscious,
it is doubtful if he could reliably state that the left
front portion of the bus had struck Mm. The statement of
Kisan Appa Kasbe (P.W. 5) has already been adverted to. But
he too, as one would normally expect a witness to such
accidents, only looked in the direction of the accident,
when his attention was attracted as a result of noise of the
impact of the bus in question. There is thus no evidence as
to what compelled the driver to turn left which caused the
bus to mount the footpath and strike against the electric
pole, thereby causing injuries to the several persons, one
of whom died at the spot. Manohar Sadashiv, S.I., appearing
as P.W. 6 has deposed that at about 4.40 p.m. on July 2,
1967 information was received from the control room about
the accident and that he then went to the scene of the
occurrence. He saw a double decker bus no. 03 stationary on
the southern footpath with the front portion of the bus
damaged and the wind screen broken. He saw one dead body
lying below the electric pole with one hand severed lying
nearby and also broken skull with brain substance visible
and lying on the road. He drew up a panchanama and also a
rough sketch (Ex. PB) He sent the dead body. to the City
Morgue and arrested the accused and sent him to the police
station. He then contacted the four injured persons in the
hospital and the complainant, (meaning thereby P.W. 5) at
his residence as late as 8.30 p.m. on the same day and
recorded what he describes to be, the first information
report. Harbansing, one of the four injured persons had,
according to this witness, left Bombay the same night with
the result that his statement could not be recorded. In
cross-examination he has explained that Harbansing was
reluctant to make any statement because he wanted to go to
his native place where he was stated to be on the date of
the examination of P.W. 6 in court, which was March 20,
1968. P.W. 1 is the doctor who held the postmortem
examination on the dead body. His evidence is not material
for our purpose. This is all the prosecution evidence led
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in the case. We cannot help expressing our surprise and
regret at the manner in which the investigation has been
conducted. The investigating officer unfortunately did not
care to have the photographs taken of the position of the
vehicle, the electric pole and the persons injured and dead
as a result of the accident. He did not care even to take
the measurement of the height of the kerb, which in our
view, was a very relevant factor. Nor did he care to get
the vehicle examined by a mechanic for the purpose of
ascertaining if its mechanism was in order and particularly
if its brakes were working properly. The rough sketch
prepared by him is a highly
384
unsatisfactory document as it only gives us an extremely
rough idea of the position this is of little assistance in
determining the question of the appellant’s guilt in the
criminal trial. Kanu Girdharlal Joshi, an LL.B. student,
appeared as D.W. 1. He claims to have seen the bus and the
bhaiya immediately prior to the actual accident. The
bhaiya was crossing the road running. The witness on
seeing the bhaiya shouted to him to stop but the bhaiya
continued running. The bus then took a turn to its left,
mounting the footpath and causing the accident in question.
The learned Presidency Magistrate, who tried and
convicted the appellant, and the High Court, which heard and
dismissed his appeal, have both held the appellant guilty
almost exclusively on the nature of the accident and on the
appellant’s inability to stop the bus on seeing the bhaiya
who was attempting to cross the road. Both these courts
disbelieved D.W. 1. They passed strictures against him in
very strong language and cast aspersions even on his
knowledge of law. Shri Pardiwala complained that the trial
court had misread the prosecution evidence and the High
Court was influenced by a number of assumptions which cannot
be sustained on the material on the record, some of those
assumptions being even contradictory, and this has resulted
in grave miscarriage of justice. The condemnation of D.W. 1,
K.G. Joshi, by the courts below in strong language is also
unjustified and unfair to the witness, contended the
counsel. Stress was also laid by the appellant’s learned
counsel on the opinion of the High Court emphasising the
utterly perfunctory character of the investigation and the
false statements made by S. 1. Patil, (P.W. 6), the
investigating officer. Our attention was drawn to the
following observations in the judgment of the High Court :-
"Tilak Road at that hour of the day is more
than normally crowded. In that crowded
locality there are shops on both sides and
hundreds of people move about on the
footpaths. There were also several passengers
in the bus and the bus conductor. Yet this
sub-Inspector has not cared to make any
enquiry to find out from anyone of the persons
round about, from anyone of the passengers
or any one of the shopkeepers round about
how the accident occurred, with the result
that the prosecution has been able to give
evidence only of three persons who were
injured and who in their very statement say
nothing about how the accident took place and
of Kisan Appa Kasbe-. Even Kisan Appa Kasbe’s
attention it appears was attracted towards the
incident by the sound of the impact of the bus
with the pole. Notwithstanding this statement
of each one of these witnesses it is
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surprising that the Sub-Inspector
385
should not have pursued further investigation
but should have put up the case upon such
evidence. What is still worse is that one
important person whose evidence was available
and could have been examined was not examined.
He is the injured person Harbansing. He was
removed to the K.E.M. Hospital and was under
treatment there for a long time. This is
established upon the evidence of Dr. Kole P.W.
1. He had a fracture of the jaw bone and six
other injuries, and being admitted to the
hospital on 2nd July 1967 was discharged from
the. hospital on the 23rd August 1967
according to the evidence of Dr. Kole, Sub-
Inspector Patil was asked why Harbansing’s
statement was not recorded and this is what he
has stated Harbansing Ramnarayan one of the 4
injured left Bombay on the same night. His
statement therefore would not be recorded’.
In the face of the evidence of Dr. Kole it is
clear that this evidence of Sub-Inspector
Patil is utterly false because Harbansing was
in no condition to move. He was in hospital
and remained in the hospital till 23rd August
1967 for almost a month and 26 days after the
accident and yet it is surprising to see this
responsible police officer saying that he
could not record his statement because he left
Bombay on the same night. One begins to
wonder whether this Sub-Inspector made any
enquiries at all about the whereabouts of
Harbansing. In his cross-examination he has
further given a different reason. He has
stated ’Harbansing was reluctant to make any
statement as he wanted to go to his native
place. He is at his native place. Even this
reason does not appear to me a satisfactory
reason at all. Even if he had gone away to
his native place, Harbansing could well have
been contacted and his statement recorded."
Shri Pardiwala submitted that on this observation alone the
prosecution case should have failed. We find there is.
considerable, force in this submission. The High Court has
also observed that no attempt had at all been made "to
ascertain the probable speed of the bus by measuring the
tyre marks on the road though, according to the witnesses,
the brakes were jammed and there was a screaming sound as
the bus came to a halt", adding, that even the elementary
precaution of having the bus tested for the efficiency of
its brakes was not taken. Though according to Shri
Pardiwala the observation of the High Court, that, the
brakes were jammed and there was a screaming sound, was not
supported by evidence, in our opinion, assuming this
observation to
386
be supported by evidence, it only serves to fortify the view
of the High Court that the investigation has been conducted
in a very casual and superficial manner. The investigating
officer seems to have acted without the requisite, sense of
responsibility essential for fair and just police
investigation into serious accidents like the present, with
the result that important evidence which was available and
should easily have been forthcoming has not been brought
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before the court for wholly inadequate-if not flimsy--
reasons. Examination of the marks of wheels on the road
would have been very useful in appreciating other evidence.
What is more surprising is that even evidence on the state
of the traffic on the road at the relevant time and on the
height of the kerb has not been produced by the prosecution.
This evidence would have clearly helped the court in having
a clearer picture of the position and in more satisfactorily
appreciating the circumstances in which the accident
occurred. If there was meagre traffic, then, there was a
greater likelihood of the appellant being able to see the
running bhaiya more clearly, whereas if traffic was heavy
then there was a chance of the bhaiya emerging from behind
some vehicle unnoticed by the appellant. Similarly the
height of the kerb was a relevant factor to be considered in
forming an opinion about the likely speed of the bus. The
prosecution failed to appreciate the importance of these
aspects and did not care to adduce any evidence on them.
This reflects a high degree of inefficiency on the part of
the investigating agency. The High Court has, however,
observed (perhaps on the basis of personal knowledge of the
learned Chief Justice who decided the appeal in the High
Court) that the road at that time was more than normally
crowded. If that was so then it was a question for con-
sideration as to from how much distance was the appellant
able to see the bhaiya running, in his anxiety, to cross the
road. The High Court did not advert to this aspect at all.
Indeed, at one place the High Court has observed that the
appellant would have noticed the bhaiya when he was running
to cross the road. This could be possible only on the
assumption that the traffic on the road was not very heavy
and- it did not block the appellant’s vision. The High
Court has also observed that this was not the first time
when an investigation in a case where the public motor
vehicle belonging to a public body was involved in an
accident had been utterly perfunctory. The fact that this
was not the first occasion of inefficient and perfunctory
investigation in such cases, ,could not, in our view, serve
as an argument for placing premium on the inefficiency of
the investigating agency and for convicting the accused
which could only be done if the evidence had established his
guilt beyond reasonable doubt.
No doubt when an accident like the present takes place one
naturally expects the driver concerned to explain the
circum-
387
stances in which he was obliged to take the bus on to
the footpath and to strike against the electric pole with
such force, thereby killing one human being and injuring
several others. The satisfactory nature of the explanation
to absolve him of his criminal liability for the accident
has, in such circumstances, to be appraised in the light of
the entire evidence on the record. The onus of course
remains on the prosecution and does not shift to the
accused. The evidence of the bus, however, having mounted
on to the footpath, which, in the normal course, does not
happen, is admissible and has to be duly taken into account
in understanding and evaluating the entire evidence led in
the case and in appraising the value of the explanation
given by the accused for his compulsion which resulted in
the accident. The appellant’s explanation, even though
not conclusive, does, in the absence of the testimony of the
bhaiya and of at least some out of the passengers said to
have been travelling in the bus, who might have been able to
throw some helpful light on the relevant circumstances, seem
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to leave fair scope for reasonable doubt about his guilt.
Whether the failure on the part of the investigating agency
to contact persons who would have given useful material
evidence relevant for finding the truth was due to
inefficiency or was deliberate having been inspired by some
other motive is not for us to speculate on the existing
record. Suffice it to say that if it appears as it does in
this case, that material evidence has not been collected by
the investigating agency for reasons which are wholly
unconvincing and the evidence actually produced, leaves a
serious lacuna in bringing his guilt home to the appellant,
then, merely because the nature of the accident prima facie
requires ail explanation from the driver would not be
sufficient to sustain his conviction, if the truth of his
explanation, which is not liable to rejection outright,
could have been appropriately judged if the evidence left
out by the prosecution had been produced. The learned
Chief Justice on appeal did advert to the possibility of
recording bhaiya’s evidence at that stage. The idea was,
however, dropped because the appellant’s counsel did not
agree to examine him. In our view, this was hardly a proper
approach in this case. Though we feel that in August, 1969,
two years after the occurrence of July 2, 1967, the
statement of Harbansing, bhaiya, who had never been
interrogated by the investigating agency was unlikely to be
very helpful, nevertheless if the High Court felt that his
evidence was necessary in the interest of justice, then, the
witness could and should have been examined as a court
witness, the defence objection notwithstanding Parties could
not control the court’s discretion to have before it further
evidence if it was considered necessary for finding the
truth for promoting the cause of justice. Justice would
fail not only by unjust conviction of the innocent but also
by acquittal of the guilty for unjustified failure to
produce available evidence. On
388
the existing record we find the evidence to be inadequate
and unsafe for convicting the appellant. This, however, is
entirely due to the faulty and inefficient investigation,
for which no justification is forthcoming. On the view that
we have taken it is unnecessary to refer to the decisions
cited at the bar on the question of onus of proof in
criminal cases generally.
This appeal is of course before us under Art., 136 of the
Constitution but the judgments of the trial court and of the
High Court proceed principally on assumptions not fully
supportable on the material on the record. That is why we
have considered it just, fair and proper to examine the
evidence ourselves. We find there is a serious lacuna in the
case wholly due to the inefficient and perfunctory
investigation by the investigating agency.
Before concluding we cannot help observing that the
adverse remarks made against K. G. Joshi, P.W. 1, are
hardly fair or just. Assuming his testimony did not impose
the courts below, they should have expressed their opinion
in temperate language usually associated with and reflecting
the impersonal diginity of judicial restraint. The strong
language used in condemning him and otherwise casting
aspersions on him which were unnecessary is, in our opinion,
uncalled for and we cannot approve of those observations.
The result is that this appeal succeeds and allowing the
same we acquit the appellant.
V.P.S. Appeal allowed.
389
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