JUDGMENT Arun Kumar Goel, J. (Oral):- Respondent was prosecuted under Section 279 of the Indian Penal Code for driving truck bearing registration No.HIS-7154 on Shimla-Chandigarh Road rashly and negligently when it was on its way towards Shimla. Case of the prosecution against the respondent was that the truck after having been driven on wrong side of the road, dashed into the car bearing registration No. HRE -1660 coming from the opposite direction i.e. from Shimla side. This accident took place on National Highway near Dogra Lodge, Shimla at about 11.15 A.M. 2. PW-9 Babu Ram was the owner of the car in question, who made a complaint to the police of police Station, Boileauganj, Shimla on the basis whereof Head Constable Surat Ram (PW-8) reached the spot and then recorded the statement of said PW-9 under Section 154 Cr.P.C. vide Ext.PW-8/A and the F.I.R. (Ext. PW-7/A) came to be registered. Investigation was under taken by Surat Ram (PW-8). At the spot, the spot map was prepared by him which has been proved on record as Ext. PW-8/B. Photographs were got snapped which have been proved as Ext. PX/1 and Ext.PX/2 and their negatives are Ext. PX.3 and PX/4. After completion of investigation, respondent was challenged before the trial Court. 3. Trial Court after being satisfied that there was prima-facie material to proceed against the respondent issued notice of accusation to the respondent, to which he pleaded not guilty and claimed trial. After conclusion of the trial, the respondent has been acquitted of the offences for which he was tried, hence this appeal. 4. Learned Assistant Advocate General to as submitted that in the instant case, accident being the result of rash and negligent driving on the part of the respondent has been duly proved and in support of his this submission, he referred to the statements of Charan Singh (PW-6), driver of the car in question, Sudhir Mahajan (PW-4) as well as to the statements of Smt. Veena Devi (PW-1) and Babu Lai (PW-9), owner of the car at whose instance police machinery was set in motion. It was further submitted that the trial court has fallen into error while acquitting the respondent. 5. On the other hand, Mrs. Ranjna Parmar, learned counsel for the respondent has submitted that there is evidence to show that another track had preceded the truck of the respondent. It was further submitted that the trial court has fallen into error while acquitting the respondent. 5. On the other hand, Mrs. Ranjna Parmar, learned counsel for the respondent has submitted that there is evidence to show that another track had preceded the truck of the respondent. It has further been submitted by her that the number of the truck is not made out in the photographs with specie! reference to Ext PX/2»In support of the judgement passed by the trial Court, she submitted that in the ordinary cause of things not only PWs 1 and 9, but all the occupants would ordinarily come out to see as to how the accident had taken place and thus, non-identification of the driver by PW-1 is a material circumstances in favour of the respondent from which it can safely be said that the truck of the respondent was not involved in the accident in question. With reference to the statement of Mast Ram (PW- 2) whose presence had been admitted by Smt. Veena Devi (PW-1), it was submitted that his statement clearly indicates the manner in which the accident had taken place. This PW-2 has stated that the truck had come to a grinding halt whereas the car had struck into it and on this basis, negligence, if any, is that of the car driver and none else. 6. It was also vehemently urged that the prosecution has miserably failed in its case to establish the involvement of the truck in question being driving by the respondent in the accident as alleged by the prosecution. As such, according to her, even if there is any omission either in cross- examination of the prosecution witnesses or otherwise not taking a particular line of defence is totally immaterial. Lastly, Mrs. Parmar supported the reasoning adopted by the trial Court and prayed for upholding the impugned judgement. 7. After giving thoughtful consideration to the respective submissions of the learned counsel for the parties, one fact stands established beyond any shadow of doubt that the car in question was hit on a public highway i.e. Kalka-Shimla road on its way towards Solan. 8. Then die next question that arises for consideration is as to whether the truck being driven by the respondent had hit the car as a result of rash an negligent driving on the part of its driver or not. 9. 8. Then die next question that arises for consideration is as to whether the truck being driven by the respondent had hit the car as a result of rash an negligent driving on the part of its driver or not. 9. Taking the statement of PW-2 Mast Ram first, though declared hostile, yet his statement shows that it was the car that hit the truck in question when the latter had come to a grinding halt. This shows that the accident did take place though not in the manner attributed by the prosecution. At this staff it ra3y not be out of place to refer to the statement of PW-1 as well as PW-6, PW-8 and PW-9. So far striking of the truck with the car in question is concerned, this Court is of the opinion that on the basis of the evidence on record, it stands clearly proved and the findings to the contrary recorded by the trial court cannot be sustained and are accordingly reversed. In this behalf when a reference is made to Ext. PX/2, it dearly shows that the car in question was not only on its extreme left side, but just abutting the parapet of the road. On the other hand Ext. PX/1 shows that on the drivers side near main head light, there is a dent on the bumper thereof. This can happen in two situation, either from this side the car had struck into the truck or the truck had struck into the car on this side. The truck having rammed into the car is clear not only from Ext.PX/1, but its placement on the road near the parapet as well as in view of the spot map Ext. PW-8/B. At this stage, it may also be appropriate to mention here that there is no suggestion made to the Investigating Officer regarding the spot map, Ext.PW-8 not depicting the true position as it existed on the spot after the accident. Besides this, it is not understood as to why and for what reason PW-9 or for that purpose PWs. 1 and 6 would falsely rope in the respondent and would keep the real culprits away. 10. To be fair to Mrs. Ranjna Parmar, it is necessary to refer to a judgement cited by her reported in 1994 Criminal Law Journal, 389, Badri Prasad Tiwari v. State of Orissa. 1 and 6 would falsely rope in the respondent and would keep the real culprits away. 10. To be fair to Mrs. Ranjna Parmar, it is necessary to refer to a judgement cited by her reported in 1994 Criminal Law Journal, 389, Badri Prasad Tiwari v. State of Orissa. The ratio of this judgement shows that the ingredients of rash and negligent driving on public road endangering human life or likely to cause injury must be established. On this basis, it was submitted that there is no evidence in the present case to establish rash and negligent driving on the part of the respondent. Submission made on the basis of this judgment prima-facie appears to be attractive and appealing but when it is tested on touch-stone of evidence on record as discussed hereinabove, it has simply been raised to be rejected. The question of error of judgment would arise when the factum of accident is admitted. In the instant case, the main trust of the learned counsel for the respondent is that the truck was not at all involved in the accident. So, there is no question of error of judgment. So far the question of rash id negligent driving is concerned, again at the risk of repetition when a reference is made to Ext. PX/2 and Ext.PW-8/B, it is quite obvious that the manner in which the car in question was struck which was not only on the extreme left side but was abutting the parapet. Location of truck as indicated in Ext. PW-8/B clearly shows that the truck was on its extreme wrong side. Not only this, but the truck was almost opposite to the car which was on its left side abutting the parapet. In view of this position, the present appeal deserves to be allowed and it is ordered accordingly. 11. Faced with this situation, Mrs. Parmar submitted that the accident on the place almost 6-1/2 years ago and looking to the nature of damage close to the car, in addition to the fact that her client is the first offender and is the sole bread-winner of his family consisting of his wife and two minor children, a lenient view may be taken. If the respondent is sent to jail, his family would be put to starvation besides affecting the future of his wife and minor children. If the respondent is sent to jail, his family would be put to starvation besides affecting the future of his wife and minor children. She further submitted that looking to the present trend of penology a chance needs to be given to her client for reforming himself so as to remain in the main stream of the society. Accordingly, she submitted that the respondent may be given the benefit of Probation of Offenders Act. 12. Having considered the submissions made in this behalf, this Court feels that it is a fit case where the respondent needs to be extended the benefit of Probation of Offenders Act. Accordingly it is ordered that the respondent shall furnish a personal bond in the sum of Rs. 5,000/- under Section 4 of the Probation of Offenders Act to the satisfaction of the trial Court within a period of four weeks from today for keeping peace and be of good behavior for period of one year from the date of execution of such bond, failing which ht shall surrender to undergo the sentence. 13. Subject to the aforesaid observations, this appeal is allowed. Appeal allowed.