JUDGMENT : VIVEK SINGH THAKUR, J. 1. The petitioner has preferred present revision petition assailing his conviction and sentence affirmed by learned Sessions Judge (Forest) Shimla in Criminal Appeal No. 127-S/10 of 2012/10 vide judgment dated 03.09.2013 under Sections 279, 337, 338 and 304-A of IPC and under Section 187 of Motor Vehicles Act as imposed by learned Judicial Magistrate, Ist Class, Theog, District Shimla in case No. 255-I of 2005 vide judgment dated 10.11.2009. 2. On fateful day dated 02.09.2005, one Yogesh, pillion rider of motorcycle No. MFW-4878 being driven by injured PW-1 Aman Thakur had succumbed to his injuries on hitting motorcycle by truck No. HP-12-3325 being driven by petitioner Amerjeet Singh at about 1.00 PM at place near Sarog-Gali on National Highway-22. Petitioner did not stop on the spot. Injured were shifted from spot to Civil Hospital Theog by passersby in their vehicle. Yogesh was referred to Indira Gandhi Medical Hospital, Shimla but he succumbed to his injuries on the way. On completion of investigation conducted in pursuance to FIR Ex. PW-13/B registered on the basis of statement Ex. PW-13/A, Challan was put in the Court. 3. On conclusion of trial, petitioner was convicted under Sections 279, 338, 304-A IPC and Section 187 of Motor Vehicles Act. Petitioner was sentenced to undergo rigorous\ imprisonment for one year and to pay fine of Rs.1000/- under Section 338 IPC and in default of payment of fine to undergo simple imprisonment for three months. He was sentenced to undergo rigorous imprisonment of six months each and to pay fine of Rs.500/- and Rs.1000/- respectively under Sections 279 and 338 IPC and in default of payment of fine to undergo simple imprisonment for one months for each default. He was also sentenced for three months simple imprisonment and to pay fine of Rs.500/- under Section 187 of Motor Vehicles Act and in default of payment of fine to further undergo simple imprisonment for 15 days. All the sentences to run concurrently. 4. Appeal preferred by petitioner has been dismissed by learned Sessions Judge (Forest) Shimla affirming conviction and sentence imposed upon petitioner. I have heard learned counsel for parties and have also gone through record. 5. All the sentences to run concurrently. 4. Appeal preferred by petitioner has been dismissed by learned Sessions Judge (Forest) Shimla affirming conviction and sentence imposed upon petitioner. I have heard learned counsel for parties and have also gone through record. 5. There is no dispute regarding principle of criminal jurisprudence relied upon by learned counsel for petitioner as laid down in case titled as Rabindra Kumar Dey versus State of Orissa reported in (1976)4 SCC 233 which reads as under:- ?In our opinion three cardinal principles of Criminal Jurisprudence are well settled, namely: (1) that onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts?. 6. Learned counsel for petitioner has relied upon observations made in short note of judgment in case titled as Mohan Shyam versus State reported in 2013 (1) Crimes 129 (Del), which is as under:- ?There were no skid marks on the road to show that the truck was being driven rashly and had come to a sudden halt after hitting the motorcycle of the deceased?. 7. It is argued by learned counsel for petitioner that in present case also, there is 5 meters skid mark of motorcycle but no skid marks of truck and therefore it was rash and negligent driving on the part of motorcyclist which resulted hitting of motorcycle with truck. I find no force in the contentions raised because observations made in the short note of judgment, referred supra was on the basis of given facts and circumstances of that case. In that case motorcycle driver had shifted his motorcycle suddenly in the lane in which truck was going on its correct side and truck was at halt immediately after striking with motorcycle without any skid marks on the road. In that case motorcycle driver had shifted his motorcycle suddenly in the lane in which truck was going on its correct side and truck was at halt immediately after striking with motorcycle without any skid marks on the road. Therefore for deciding the speed of truck absence of skid marks of the tyres of truck was found sufficient to hold that truck was moving in a normal speed as truck was stopped with sudden application of brakes but without any skid marks whereas in present case truck was not stopped even for a while and truck driver did not apply brakes even after hitting motorcycle with front tyre of truck which is evident from scratches and bend on silencer of truck which was near rear tyre of truck. Therefore the judgment and observation therein referred by petitioner on this issue is not applicable in present case. Absence or presence of skid marks on the road cannot be considered in isolation to decide whether driver was negligent or not. 8. It is contended on behalf of petitioner that motorcycle was being driven in high speed and foot rest of motorcycle had struck with truck causing accident for which motorcycle driver was responsible. In support of this contention site plan Ex. PW-13/C has been referred which indicates that there was 5 meters long skid mark of motorcycle on the spot. According to learned counsel for petitioner it means that motorcycle was in high speed and despite applying brakes motorcycle was in movement for a distance of 5 meters which caused accident as motorcycle driver could not control motorcycle and hit the truck. 9. Learned counsel for petitioner has relied upon judgment in case titled as Syad Akbar versus State of Karnataka reported in AIR 1979 Supreme Court 1848 which reads as under:- 26. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway, or overturns, or in fair visibility runs into an obstacle; or brushes the branches of an overhanging tree, resulting in injury or where there is a duty on the defendant to exercise care; and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts. [For instance, see Burke v. Manchester, Sheffield & Lincolnshire Rly (1870) 22 LT 442; Moore v. Fox ® & Sons (1956) 1 AB 596. Also see Paras 70 79 and 80 of Halsbury Laws of England, Third Edition, Vol. 28, and the rulings mentioned in the Foot Notes thereunder]?. 27. According to the other line of approach, res ipsa loquitur is not a special rule of substantive Law; that functionally, it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence". In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly socalled, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly socalled, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it). Russell v. London & South Western Rly. Co. (1908) 24 TLR 548 only means, 'that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence….... It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of thing which is complained of." 28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non- application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent. Until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt, but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) 2 All ER 552: 1937 AC 576, "simple lack of care such as will constitute civil liability, is not enough;" for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied, 'reckless' most nearly covers the case". 10. Learned counsel for the petitioner has also relied upon the judgment in case titled Jacob Mathew Versus State of Punjab and another, reported in (2005) 6 SCC 1 by referring paras 33 and 48 (6) and has argued that because of rash driving of motorcycle the accident could not have foreseen by any prudent person and therefore present accident cannot be said to have occurred on account of negligence on the part of petitioner. He has further contended that for the purpose of convicting petitioner under Section 304-A IPC not only negligence but gross negligence is required to be proved on the part of petitioner which is lacking in present case. 11. I am not convinced by arguments advanced by learned counsel for petitioner because evidence on record is contrary to the contentions of learned counsel for petitioner. The accident has taken place on National Highway where two vehicles could easily cross the road. Site plan Ex. PW-13/C is not disputed by petitioner. The said site plan and photographs Ex. 11. I am not convinced by arguments advanced by learned counsel for petitioner because evidence on record is contrary to the contentions of learned counsel for petitioner. The accident has taken place on National Highway where two vehicles could easily cross the road. Site plan Ex. PW-13/C is not disputed by petitioner. The said site plan and photographs Ex. PA to PD indicate that width of road on the spot is 24½ feet and accident has occurred on the correct side i.e. left hand side of motorcycle and wrong side i.e. right side of truck. There is distance of 4½ feet from edge of road to left side of motorcycle and 20 feet from right side of motorcycle to another edge of road. Photographs Ex. PA, PB, PD and PE reveal that motorcycle was hit by truck after coming deep towards right hand side of truck leaving considerable space on its left hand side. 12. Skid mark of motorcycle indicates that on confrontation by truck driver by driving vehicle towards its wrong side i.e. right hand side of truck, the motorcycle driver had tried to save himself by applying sudden brakes causing skid mark on the road but truck driver had not bothered to apply his brakes to avoid hitting motorcycle. 13. It is also evident from photographs that rear portion of motorcycle was badly damaged which belies the stand of petitioner that only foot rest of motorcycle struck with the truck. Mechanical report of truck Ex. P-5/A also reveals that beside scratches on front tyre, silencer of truck was also bent and scratched which substantiated the plea that even after striking motorcycle with front tyre, petitioner did not stop his vehicle and silencer which was on the rear portion of truck also hit the motorcycle which proves not only negligence but gross negligence on the part of petitioner. 14. The truck in question was taken in possession by police vide seizure memo PW- 6/A. It is also mentioned in the said memo that there were scratches on front right side tyre of the truck and silencer pipe was also damaged on the said side. There is no cross examination disputing correctness to Ex. PW-6/A on behalf of petitioner. 15. The truck in question was taken in possession by police vide seizure memo PW- 6/A. It is also mentioned in the said memo that there were scratches on front right side tyre of the truck and silencer pipe was also damaged on the said side. There is no cross examination disputing correctness to Ex. PW-6/A on behalf of petitioner. 15. In 24½ feet vide road motorcycle was being driven on one side of road at 4½ feet distance from its left side leaving 20 feet wide road on right side of motorcycle and motorcycle was on its correct side. On National Highway where two heavy vehicles coming from opposite side can cross easily, hitting motorcycle by the truck coming from opposite side by coming deep on wrong side of truck is sufficient to infer that truck was being driven on wrong side that too without caring for two-wheeler coming from opposite side but on its own correct side. It is a case of gross negligence on the part of petitioner. 16. There is ample evidence on record to infer that motorcycle was hit by truck by coming deep on its right hand side which was wrong side of truck but correct side of motorcycle. Petitioner has not brought on record any evidence explaining the circumstances so as to justify driving of truck towards its right hand after leaving much space on its left side despite the fact that the road in question was double lane National Highway. Prosecution has proved the case against the driver of truck beyond all reasonable doubts. 17. In present case, petitioner is not convicted by applying principle of ipsa loquitur but there is sufficient evidence on record to hold that it was rash and negligent driving of petitioner which caused accident in question. On the basis of evidence on record, as discussed supra, prosecution has successfully discharged its burden of proving essential ingredients to establish charge against petitioner. On the basis of evidence on record, it can be said beyond all reasonable doubts that petitioner was negligent in driving truck at the time of accident in question. 18. The defence of petitioner regarding his identity as a driver of truck involved in the accident is also not tenable as vehicle in question taken in possession by police was got released by its owner with petitioner. 19. 18. The defence of petitioner regarding his identity as a driver of truck involved in the accident is also not tenable as vehicle in question taken in possession by police was got released by its owner with petitioner. 19. PW-7 Gurcharan Singh owner of truck admitted that petitioner was his driver in truck No. HP 12-3325. PW-9 Paramjeet Singh son of Shri Gurcharan Singh (PW-7) stated in examination in chief that their truck HP-12-3325 had met with an accident beyond Theog (Shimla) in which Amarjeet petitioner was driver. He admitted in cross-examination that petitioner on 03.09.2005 came to them after accident and thereupon his father and petitioner came to Theog for release of truck. He further admitted that when they reached Fagu on 5.09.2005 driver (petitioner) was sitting in their vehicle. PW-7 Gurcharan Singh also produced log book of truck Ex. P-4. As per entries of this logbook, it was filled up by drivers driving the truck on relevant dates. Perusal of this logbook proves that as per these entries truck had gone to Narkanda from Baddi and was coming from Narkanda to Baddi. Entries are duly signed by petitioner. From logbook, it also transpires that maximum entries in it were made by petitioner indicating that petitioner was regular driver of truck in question. As discussed supra, there is sufficient evidence on record proving that petitioner was driver of the truck involved in accident on the fateful day. 20. No other point urged. Learned trial Court as well as appellate Court have correctly appreciated the evidence on record in consonance with settled law of the land. The petition is devoid of merit and no grounds of interference are made out. 21. In the result, I find no force in this revision and therefore, no interference under revisional jurisdiction of this Court is warranted and as such revision petition is dismissed and impugned judgment passed by learned Sessions Judge (Forest) Shimla, in Appeal No. 127-S/10 of 2012/10 titled Amarjeet Singh versus State of H.P., affirming conviction and sentence, as awarded by trial Court, is upheld. 21. It is stated at bar by counsel of petitioner personal and surety bond were not executed by petitioner and he has already served sentence of imprisonment. 21. It is stated at bar by counsel of petitioner personal and surety bond were not executed by petitioner and he has already served sentence of imprisonment. This fact is to be verified through SHO of concerned Police Station by Superintendent of Police, Shimla and in case sentence is yet to be served then petitioner shall surrender himself within 30 days before of trial Court to serve the sentence. Bail and surety bonds, if any, executed by respondents are cancelled. Superintendent of Police, Shimla is further directed to ensure execution of sentence imposed upon petitioner within two months unless already executed. Record be sent to lower courts alongwith copy of judgment.