JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. The State, aggrieved by the judgment dated 7.12.2007 passed by learned Judicial Magistrate 1st Class, Court No.4, Mandi, District Mandi, H.P in Police Challan No. 8/II/04/01, whereby Gurcharan Singh, respondent herein (hereinafter referred to as the ‘accused’) has been acquitted of the charge under Sections 279, 337, 338 IPC and Section 187 of the Motor Vehicles Act, has questioned the legality and validity thereof on the grounds inter-alia that learned trial Court has failed to appreciate the evidence available on record in its right perspective and rather in a slip-shod and perfunctory manner and the findings to the contrary have been recorded on the basis of conjectures and surmises. The reasonings given to discredit the prosecution evidence are manifestly wrong and cogent and reliable evidence as has come on record by way of testimony of PW-1 Ludarmani, PW-2 Bhagat Singh and PW-6 Parvinder Kumar, the eye witnesses to the accident has not been appreciated properly. All of them have stated that the accident had occurred due to rash and negligent driving attributed to the accused. The statement of PW-5 Jagdish Rana, the proprietor of Rana Service Station is also stated to be erroneously mis-construed and misinterpreted. On the other hand, undue weightage was given to the testimony of PW-10 in his cross-examination that brake pressure was nil and further admission that in a case of pressure brake reduced to nil, brake system does not work. The mechanical report rather show that there was no mechanical defect in the offending vehicle (tanker) and as such, the cause of death was rash and negligent driving, however, such evidence is sated to be not taken into consideration at all. 2. Now if coming to the factual matrix, admittedly, on 23.06.2001 around 5.15 p.m. accused Gurcharan Singh was driving the offending tanker bearing registration No. HR-37-7947 from Mandi side to Dadour under Police Station, Balh, District Mandi (H.P.). The tanker was being driven by him in a rash and negligent manner and as a result thereof, the same firstly hit motorcycle No. HP-58-0551, parked on road side and PW-2 Bhagat Singh sitting thereon and thereafter truck No. HP-33-3686, also lying parked on road side in a court-yard. The accident was witnessed by PW-1 Ludarmani, running a ‘Dhaba’ nearby, PW-3 Parvinder Kumar and also PW-5 Jagdish, the proprietor of Rana Service Station. The accident was witnessed by PW-1 Ludarmani, running a ‘Dhaba’ nearby, PW-3 Parvinder Kumar and also PW-5 Jagdish, the proprietor of Rana Service Station. In this accident, PW-2 Bhagat Singh had received simple as well as grievous injuries on his person. The accused after the accident had fled away from the spot. The injured PW-2 was taken to Community Health Centre, Ratti for his treatment. He was attended to by PW-7 Dr. R.N. Jaryal, Medical Officer on duty in the hospital vide MLC Ext. PW-7/A. The injuries on the person of PW-2 were found to be grievous as well as simple in nature. As per x-ray report proved by PW-8 Dr. Rakesh Kumar, PW-2 Bhagat Singh had suffered fracture of right scapula upper and right fibula and fracture in the 6th and 7th ribs in right side. The police got the spot photographed from PW-9 Khem Chand vide photographs Ext. PW-9/A-1 to Ext. PW-9/A-8. The spot map Ext. PW-12/C was also prepared by the I.O. during the course of investigation. PW-10 Asgar Ali had conducted mechanical examination of all the three vehicles involved in the accident and submitted the report Ext. PW-10/A to Ext. PW-10/C. He did not find any mechanical defect either in the motor cycle or truck and for that matter even in the offending tanker also. However, as per his report, the break pressure was nil. 3. The investigating agency on the basis of evidence collected and on finding the involvement of the accused in the commission of the offence punishable under Section 279, 337, 338 IPC and 187 of the Motor Vehicles Act has field report under Section 173 of the Code of Criminal Procedure against him in the trial Court. Learned trial Judge on appreciation of the report and also the documents annexed thereto had put notice of accusation to the accused accordingly to which he pleaded not guilty and claimed trial. The prosecution, in turn, has examined 13 witnesses in all to substantiate its case against the accused. 4. The accused was also examined under Section 313 Cr.P.C in which he has denied all the incriminating circumstances appearing against him in the prosecution evidence either being wrong or for want of knowledge. He has not led any evidence in his defence. 5. 4. The accused was also examined under Section 313 Cr.P.C in which he has denied all the incriminating circumstances appearing against him in the prosecution evidence either being wrong or for want of knowledge. He has not led any evidence in his defence. 5. Learned trial Judge on appreciation of the evidence has arrived at a conclusion that the prosecution failed to prove its case against the accused beyond all reasonable doubt. The accused, as such, has been acquitted vide judgment under challenge in this appeal. 6. Mr. R.P. Singh, learned Deputy Advocate General assisted by Mr. Kunal Thakur, learned Deputy Advocate General has pointed out from the testimony of material prosecution witnesses that the cause of accident was rash and negligent driver on the part of the accused and none-else. According to Mr. Singh, learned trial Court has miserably failed to appreciate the evidence as has come on record by way of eye witness count of the occurrence given by the complainant PW-1 Ludarmani, injured PW-2 Bhagat Singh, PW-3 Parvinder Kumar and PW-5 Jagdish. The oral evidence having come on record also finds support from the spot map Ext. PW-12/C and the photographs Ext. PW-9/A-1 to Ext. PW-9/A-8 and also report of the mechanical examination of all the three vehicles conducted by PW-10 Asgar Ali. The link evidence, according to learned Deputy Advocate General, is also complete in this case. He, therefore, has urged to quash the impugned judgment and sought conviction of the accused for the offence he committed. 7. On the other hand, Mr. B.R. Kashyap, learned counsel representing the accused has strenuously contended that in view of brake pressure reduced to nil, the brake system does not function and as a result thereof, the accident occurred. Also that, as per prosecution evidence itself, oil and water was on the road at the place of accident and as such, the cause of accident was not rash and negligent driving on the part of the accused. It is also argued that after the accident, the accused did not run away and rather remained on the spot itself. While referring to the statement of PW-7 Dr. R.N. Jaryal, it is submitted that PW-2 Bhagat Singh has not received injuries on his person in the accident, but may be by way of fall. It has, therefore, been submitted that the impugned judgment calls for no interference. 8. While referring to the statement of PW-7 Dr. R.N. Jaryal, it is submitted that PW-2 Bhagat Singh has not received injuries on his person in the accident, but may be by way of fall. It has, therefore, been submitted that the impugned judgment calls for no interference. 8. On analyzing the rival submissions and also going through the evidence available on record, it is pertinent to note that the offending tanker was being driven by the accused in a rash and negligent manner. It is stated so by PW-1 Ludarmani, PW-2 Bhagat Singh and also PW-5 Jagdish Rana. As a matter of fact, PW-5 Ludarmani was running a tea stall at the place of accident, whereas, PW-5 Jagdish Rana is proprietor of Rana Service Station situated at Dadour on road side. Although, PW-1 had expressed his ignorance as to who was responsible for the accident, however, when declared hostile and permitted to be cross-examined by learned Public Prosecutor, it is admitted that the offending tanker came on wrong side of the road and struck against the truck lying parked there. He has admitted his statement Ext.PW-1/A signed by him, therefore, irrespective of turned hostile, once he has admitted his signature on statement Ext.PW-1/A, he has proved the prosecution case qua offending tanker being driven by the accused in a rash and negligent manner. When cross-examined, no doubt, he tells us that oil and water was lying on the road, however nothing has come in his statement that it is due to that the truck skidded and the accident occurred. The suggestion that accident occurred due to brake failure has, however, been denied being wrong. He was not able to tell the speed of the offending tanker and rightly so as it may not have been possible for him to tell about the exact speed of the tanker. 9. Now if coming to the testimony of PW-2 Bhagat Singh, he was outside Rana Service Station at Dadour sitting on his motorcycle as his son accompanying him went inside the shop situated there. It is at that stage, the offending tanker came from Ner Chowk side and hit the motorcycle. As a result thereof, the same was damaged and he also received injuries on his person. Although, nothing has come on record about the speed of the tanker, yet, when cross-examined, he has disclosed the speed of the tanker between 70-80 kms. It is at that stage, the offending tanker came from Ner Chowk side and hit the motorcycle. As a result thereof, the same was damaged and he also received injuries on his person. Although, nothing has come on record about the speed of the tanker, yet, when cross-examined, he has disclosed the speed of the tanker between 70-80 kms. The motorcycle on which he was sitting lying parked at a distance of 30 feet away from the national highway. However, it is denied that oil and water was lying on the road side as a result thereof, the accident had occurred. It is also denied that the cause of accident was the brake failure. Another material witness is PW-5 Jagdish Rana, proprietor of Rana Service Station situated at Dadour. According to him, the accident had occurred in front of his shop. According to him, the offending tanker being driver in a rash and negligent manner had firstly struck against the motorcycle and thereafter with the truck. The accused after the accident ran away from the spot. He has also supported the prosecution case qua investigation including clicking of photographs and preparing of spot map having taken place on the spot. If coming to his cross-examination like PW-2 Bhagat Singh, he has also denied the suggestion that oil and water was lying on the road and as a result thereof the accident occurred. He has also denied that the cause of accident was failure of brake. 10. The close scrutiny of statement made by all the three witnesses as aforesaid lead to the only conclusion that the cause of accident was rash and negligent driving attributed to the accused. No doubt, PW-1 has said that oil and water was lying on the road at the place of accident, however, the remaining two witnesses had denied the suggestion to be wrong. Otherwise also, had there been any oil and water lying on that portion of the road, why other vehicles had not met with accident at that place because being national highway it is a busy road. 11. Interestingly enough, the accused in his defence has raised two pleas i.e. (i) the oil and water was on the road and; (ii) failure of brake. However, the pleas so raised are not correct nor he could substantiate the same by way of producing cogent and reliable evidence. 11. Interestingly enough, the accused in his defence has raised two pleas i.e. (i) the oil and water was on the road and; (ii) failure of brake. However, the pleas so raised are not correct nor he could substantiate the same by way of producing cogent and reliable evidence. On the other hand, as discussed hereinabove, the plea qua oil and water was lying on the road is false and as regards the failure of brake, no iota of evidence except that when PW-10 Asgar Ali, mechanically examined the offending tanker, the brake pressure was found nil is available on record. The pressure was nil well before the accident; nothing in this regard is made out from the given facts and circumstances of this case. The possibility of the same having reduced to nil after the accident, cannot be ruled-out. On the other hand, it was never suggested to PW-10 that the cause of accident was failure of brake on account of pressure was nil. Of course, a suggestion given to him that on account of brake pressure reduced to nil, the brake does not work has been admitted by him as correct, however, it cannot be taken to believe that well before the accident, the brake pressure was reduced to nil and accident occurred as a result thereof. In view of such plea raised by the accused in his defence as emerges from the trend of cross-examination of the prosecution witnesses conducted on his behalf which ultimately turned false, the only inescapable conclusion would be that the accident occurred due to rash and negligent driving attributed to him alone. 12. It is not the case of mere rashness and negligence rather criminal rashness and criminal negligence, as is proved on record by way of photographs Ext. PW-9/A-1 to Ext. PW-9/A-8 and also spot map Ext.PW-12/C. One can see from the photographs that the offending tanker completely went outside the road. It has not only hit the motorcycle and crushed the same, which as per version of PW-2 Bhagat Singh was lying parked at a distance of 30 feet from the road but also truck No. HP-33-3686, which again was lying parked outside the road in a court-yard. It has not only hit the motorcycle and crushed the same, which as per version of PW-2 Bhagat Singh was lying parked at a distance of 30 feet from the road but also truck No. HP-33-3686, which again was lying parked outside the road in a court-yard. The position reflected in the spot map goes to show that the offending tanker came across the road in wrong side and hit the motorcycle at point ‘B’ whereas, truck No. HP-33-3686 at point ‘E’. True it is that nothing has come on record about the exact speed of the tanker and rightly so as it is not possible to say with all exactness qua the speed of the vehicles by someone having witnessed the accident. The speed of the offending tanker, in the case in hand, however, can be determined from the evidence as has come on record by way of spot map and also the photographs and of course statement of PW-2 Bhagat Singh, who had given the speed between 70-80 kms per hour. The report Ext. PW-10/C amply demonstrates that no mechanical defect could be detected during the mechanical examination of the offending tanker. As regards the brake pressure, there is nothing suggesting that it had already reduced to nil well before the accident having taken place. Therefore, the only apparent reason and the cause of accident was rash and negligent driving attributed to the accused and none-else. 13. The link evidence as has come on record by way of testimony of PW-3 Parvinder Kumar shows that truck No. HP-33-3686 was of his brother Gajinder and it was lying parked near Rana Service Station. He has also supported the prosecution case so as to Bhagat Singh PW-2 sitting on the motorcycle was also hit by the offending tanker. The damaged motorcycle and truck No. HP-33-3686 along with offending tanker HR- 37-7947, all were taken in possession vide seizure memo Ext. PW-4/A in the presence of PW-4 Yashwant Singh. PW-6 Gurdev Singh was the owner of offending tanker, who had produced the documents which were taken in possession by the police. PW-9 Khem Chand has proved the photographs as it is he who had taken the same. PW-10 Asgar Ali, Motor Mechanic, has proved the reports Ext. PW-10/A to Ext.PW-10/C of all the three vehicles involved in the accident. PW-6 Gurdev Singh was the owner of offending tanker, who had produced the documents which were taken in possession by the police. PW-9 Khem Chand has proved the photographs as it is he who had taken the same. PW-10 Asgar Ali, Motor Mechanic, has proved the reports Ext. PW-10/A to Ext.PW-10/C of all the three vehicles involved in the accident. The evidence as has come on record by way of his testimony is already discussed hereinabove. 14. Now if coming to the statement of PW-11 K.D. Sharma, he was posted as Station House Officer in Police Station, Balh at the relevant time and after preparation of the report filed the same in the Court. The Investigating Officers are PW-12 Head Constable Amar Nath and PW-13 Sham Lal. They both have stated about the manner in which they have conducted the investigation. Nothing tangible was suggested to them to prove that the accident had not taken place in the manner as claimed in the police report and documents annexed thereto. 15. In view of the re-appraisal of the entire evidence, the present is a case where the prosecution has proved its case against the accused beyond all reasonable doubt. As a matter of fact, it is learned trial Judge who has failed to appreciate, interpret and construe the same in its right perspective and as a result thereof wrong findings came to be recorded and the accused acquitted. The findings recorded by leaned Court below, as such, are not legally and factually sustainable. The impugned judgment, as such, is quashed and set aside. Consequently, the accused is convicted for the commission of offence punishable under Sections 279, 337 and 338 IPC and also under Section 187 of the Motor Vehicles Act. He is on bail. His personal bonds are cancelled and surety discharged. Let the Incharge, High Court Security to take him in custody and thereafter the Superintendent of Police, Shimla District Shimla to provide proper escort so that he can be lodged in Sub- Jail, Kaithu. 16. List for hearing on quantum of sentence tomorrow on 4.10.2018. The Superintendent Sub-jail, Kaithu to arrange for production of the accused-convict in this Court on 4.10.2018 at 10.00 a.m under proper police escort. The Registry to prepare jail warrants accordingly. Judgment to continue.