IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.388 of 2004 Date of decision : November 29, 2010 State of H.P. …Appellant. Versus Nachhatar Singh …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Anoop Rattan, Advocate. Surjit Singh, Judge (Oral) State has appealed against the judgment dated 5th May, 2004 of learned trial Magistrate, whereby respondent Nachhatar Singh, who was tried for offences, under Sections 279,337,338 and 304-A of the Indian Penal Code, has been acquitted. 2. Respondent was engaged as driver by PW-2 Mehar Chand to drive TATA SUMO vehicle, registered in the name of his wife. On 16th April, 2000, deceased Pawan Kumar, hailing from the village of PW-2 Mehar Chand, wanted to go to Ludhiana. PW-2 Mehar Chand deputed his driver Nachhatar Singh, i.e. the respondent, to carry said Pawan Kumar to Ludhiana, in his TATA SUMO. Around 11 or 11.30 in the night, TATA SUMO rammed into a Road Roller, which was parked on the left side of the road, at Amb in Una District. Deceased Pawan Kumar sustained serious injuries and died at Una Hospital, where he was shifted, soon after the accident. Whether reporters of the local papers may be allowed to see the judgment? …2… Respondent Nachhatar Singh also sustained various injuries, some of which were grievous. 3. Case was registered, on the basis of report sent by HC Sat Pal of Police Station, Amb, from the spot at 1.45 a.m. During the course of investigation, it was found that the Road Roller was parked on the extreme left side of the road, which was 22.5 feet wide. 4. Trial Court has acquitted the respondent, holding that the Road Roller was parked on the road, in a hazardous and dangerous manner, and because of that the accident had taken place. Trial Court has placed reliance upon a judgment of Punjab & Haryana High Court in Nirmal Bhutani versus State of Haryana, AIR 1983 P & H 188. 5. I have heard learned Assistant Advocate General as also learned counsel for the respondent and gone through the record. 6. Prosecution examined the owner of TATA SUMO, PW-2 Mehar Chand, to prove that the vehicle was being driven, at the time of accident, by the respondent. He very categorically stated that the respondent had been engaged by him as driver and that on the fateful night, he was deputed to carry deceased Pawan Kumar to Ludhiana in the TATA SUMO. No suggestion was thrown to the witness that the vehicle was not in the charge of the respondent, at the time when the accident took place. 7. PW-5 is Waryam Singh, a Chowkidar employed by the private contractor, to whom job of metalling the road had been assigned. The witness stated that he was at a distance …3… of 8-10 metres, from the site where the Road Roller was parked, when he heard the sound of a vehicle ramming into the Road Roller and that when he went to the site, he saw the respondent and one more person, who lateron died, in the TATA SUMO. 8. Evidence of the aforesaid two witnesses clearly establishes that the respondent was driving the vehicle. Therefore, plea taken by the respondent in his statement, under Section 313 of the Code of Criminal Procedure that he was not driving the vehicle, cannot be accepted. Trial Court has also rightly rejected this plea of the respondent. 9. Judgment of Punjab & Haryana High Court, referred to hereinabove, relied upon by the trial Court, is not applicable in the present case. That was a case of civil negligence, in which compensation had been claimed, under the Motor Vehicles Act. In that case also a Road Roller was parked on one side of the road. A Fiat car rammed into that Road Roller, in the night. Punjab & Haryana High Court took the view that when Road Roller is parked on the side of the road, without any signal, indicating to the drivers of other vehicles that they should keep their vehicles away, the Road Roller would become visible to the drivers only when the flash lights of their vehicles fall on the Road Roller. Consequently, it was held that the accident had taken place due to negligence on the part of the driver of the Road Roller and compensation was awarded. 10. In the present case, PW-5 Waryam Singh very categorically stated that signals had been put up on both the …4… sides, where the Road Roller was parked. No suggestion was thrown to him, in the cross-examination, that no such signals were there. PW-4 Vibesh, the owner of the Road Roller, and PW-6 Rattan Chand, driver of the Road Roller, also stated that signals had been put up on both the sides of the Road Roller. There is no reason to disbelieve the testimony of these witnesses also, because no suggestion was thrown to them that signals were not there. 11. Road Roller was not entirely on the pucca portion of the road. A small portion of it was on pucca portion of the road and rest on the kutcha portion. This fact has been testified by PW-9 HC Vijay Kumar, who reached the spot soon after the occurrence of the accident. His testimony is supported by photographs, particularly photograph Ex. PW- 10/D, which suggests that Road Roller was mainly on the kutcha portion and only a small portion of it, i.e. one of the rear wheels and the edge of the front wheel, was on the pucca portion. Width of the pucca portion of the road at the site is 22.5 feet. Photographs also show that very wide space was available to the respondent on the right side of the Road Roller. Road is also straight on the spot. 12. In view of the above referred to evidence, there cannot be any escape from the finding that the accident took place, because of rash or negligent driving of TATA SUMO by the respondent. Learned trial Magistrate has not taken into consideration the above discussed evidence, regarding signals and the exact point where the Road Roller was parked as also the fact that the finding of Punjab & Haryana High Court had …5… been given in a case of civil negligence. Moreover, in the case before the Punjab & Haryana High Court, the vehicle involved was a Fiat Car. Accident had taken place in the year 1971. The Cars and other vehicles of that era were such that if the driver applied brakes, vehicle would stop at a considerable distance. In the present case, vehicle involved is TATA SUMO, which has modern technology and generally such vehicles have power brakes. 13. As a result of the above discussion, appeal filed by the State is allowed, impugned judgment of the trial Magistrate is set aside and the respondent is convicted of offences, under Sections 279, 338 and 304-A of the Indian Penal Code. He be produced on 3rd January, 2011, for being heard on the question of quantum of sentence. November 29, 2010(sd) ( Surjit Singh ), J