Rakesh Kainthla, J
1. The present appeal is directed against the judgment dated 21.01.2011 passed by learned Judicial Magistrate First Class, Indora, District Kangra,
H.P. (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable
under Sections 279, 337 and 304A of Indian Penal Code (hereinafter referred to as IPC). (Parties shall hereinafter be referred to in the same manner
as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court
for the commission of offences punishable under Sections 279, 337 and 304A of the IPC. It was asserted that the police received information from
Civil Hospital Pathankot that an accident had taken place at Damtal. The injured were brought to the hospital. HC Krishan Lal (PW-11) went to the
hospital to verify the correctness of the information. Kamaljeet made a statement that he and his brother-in-law Tilak Raj were travelling in the vehicle
bearing registration No. HR55A-7555 on 13.10.2005. The accused was driving the bus at a high speed and in a negligent manner. The passengers
were asking him to drive the bus slowly. When the bus reached Damtal, it hit a stationary truck bearing registration No. HR38D-9393. Kamaljeet and
other passengers suffered injuries. The accident occurred due to the negligence of the accused. The police reduced the statement (Ext. PW-11/A)
into writing and sent it to the Police Station where FIR (Ext. PW-10/A) was registered. HC Krishan Lal (PW-11) conducted the investigation. He
visited the spot and prepared the site plan (Ext. PW-11/D). The photographs of the spot (Ext. PW-3/A-1 to Ext. PW-3/A-3 whose negatives are Ext.
PW-3/ A-4 to Ext. PW-3/A-6) were taken. Bus bearing registration No. HR55A-7555 was seized vide memo (Ext. PW-2/A) along with the Driving
Licence vide memo (Ext. PW-4/A). Constable Narender Sood (PW-9) conducted the mechanical examination of the bus and found that there was no
mechanical defect in the bus that could have led to the accident. He issued a report (Ext. PW-8/A). An application (Ext. PW-11/C) was filed for
conducting the medical examination of the injured. MLCs of the injured were obtained. One child Rajeev died in the accident and the report of his
post-mortem examination was obtained. The statements of the witnesses were recorded as per their version and after the completion of the
investigation, the challan was prepared and presented before the learned Trial Court.
3. The learned Trial Court put a Notice of Accusation to the accused for the commission of offences punishable under Sections 279, 337 and 304-A of
IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 11 witnesses to prove its case. Madan Lal (PW-1), Rajesh Kumar (PW-2) and Jatinder Kumar (PW-7) were travelling
in the vehicle. Prem Kumar (PW-3) took the photographs. Rajinder Singh (PW-4) is the witness to the recovery of the document. Gheesa Ram (PW-
5) was the conductor of the bus who did not support the prosecution case. Kanwar Sen (PW-6) proved the post-mortem report of deceased Rajeev.
Narinder Sood (PW-9) conducted the mechanical examination. Ambiya Ram (PW-8) prepared the challan and filed it before the Court. Sher Singh
(PW-10) signed the FIR. Krishan Lal (PW-11) conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was driving the bus. He denied that he was rash or negligent.
No defence was sought to be adduced by the accused.
6. Learned Trial Court held that informant Kamaljeet was not examined. Madan Lal (PW-1) admitted in his cross-examination that it was dark and he
could not say that the driver applied the brakes to save some animal. MLCs of the injured were not proved on record. Jatinder Kumar (PW-7)
admitted in his cross-examination that he was sleeping and his testimony was not sufficient to prove the rashness or negligence of the accused.
Hence, the accused was acquitted.
7. Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court
erred in appreciating the evidence from a proper perspective. Unrealistic standards were set to evaluate the direct and cogent evidence. The
testimonies of the prosecution witnesses were discarded without any reason. Jatinder Kumar (PW-7) proved the rashness and the negligence of the
accused. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. Ajit Sharma, learned Deputy Advocate General for the appellant/State and Mr. Parav Sharma, learned counsel for the
respondent/accused.
9. Mr. Ajit Sharma, learned Deputy Advocate General for the appellant/State submitted that the learned Trial Court erred in acquitting the accused. It
was duly proved on record that the accused was driving the vehicle in a rash and negligent manner. He hit the rear side of the truck which shows the
negligence on his part. Learned Trial Court has not appreciated this aspect. Therefore, he pleaded that the present appeal be allowed and the
judgment passed by the learned Trial Court be set aside.
10. Mr Parav Sharma, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that
eyewitnesses did not support the prosecution case. There were various contradictions in the testimonies of the prosecution’s witnesses and the
learned Trial Court had given cogent reasons to discard their testimonies. The view taken by the learned Trial Court was reasonable and should not be
interfered with in an appeal against acquittal. Therefore, he prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court inM allappa v. State of
Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine  SC 130 that while deciding an appeal against acquittal, the High Court should see whether the
evidence on record was properly appreciated or not; second whether the finding of the Court is illegal or affected by the error of law or fact and
thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will
not lightly interfere with the judgment of acquittal. It was observed:
“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal
principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of
the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so
because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher
threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no
inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified
power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the
evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal
or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “two-views theory†has been judicially
recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved
in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of
the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the
accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the
High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and
liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13)
“13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible
one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M.Seshadri v. State of
T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a
reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p.
643, para 9)
‘9. … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which
acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the
High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order
of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said
that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’â€
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions
and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the
appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan
Singh v. State of Karnataka, (2019) 5 SCC 436 :Â (2019)Â 2Â SCCÂ (Cri)Â 586]Â and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC
166 : (2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of
U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan
v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).â€
13. It is admitted case of the prosecution that the bus had hit the rear side of the truck on the highway. The site plan (Ext. PW-11/D) shows the place
of the accident as mark “X†and is described as the place where the bus bearing registration No. HR55A-7555 hit the rear side of the truck
bearing registration No. HR38D-9393. The truck is parked on the left side of the road and the bus is shown just behind the truck with a space of
around 12 feet towards his right side and 18 feet towards the left side.
14. Rules of the Road Regulations, 1989 were framed by the Central Government for regulating the traffic on the road. Rule 15 deals with the parking
of the vehicle and reads that every driver of the Motor Vehicle parking on any road shall park it in such a way that it does not cause or is not likely to
cause danger, obstruction or undue inconvenience to other road users. Rule 15(2) reads that the driver of the Motor Vehicle shall not park his vehicle
on a main road or one carrying traffic. Thus, it is apparent that as per this Rule, a vehicle cannot be parked on a main road or the road carrying fast
traffic. It was laid down by Kerala High Court in Rose Lynd E.T. v. Lekha, 2008 SCC OnLine Ker 224: (2008) 3 KLJ 293: (2008) 4 KLT (SN
38) 43 that parking the truck on the national highway without keeping indicator, Danger lamps or reflectors amount to negligence on the part of the
truck driver. It was observed:
3…Admittedly the container truck was parked on the National Highway in the same direction in which the motorbike was going at the time of the accident and but for
the parking of the truck on the Highway in the night, this accident probably would not have taken place at all. There is nothing to indicate that the truck had lighted
indicators or danger lamps or reflectors in the rear or on the side. Besides this, NH 47 is probably the busiest road passing through Kerala and it is sufficiently wide
and has parking space at least at some places on the roadside. Parking of vehicles on the main road or roads carrying fast traffic is expressly prohibited under Rule
15(2)(iv) of the Rules of Road Regulations, 1989 prescribed by the Central Government under Section 118 of the Motor Vehicles Act, 1988. The National Highway is
fairly straight and smooth and vehicles driver on the same maintain steady and high speed. In the normal course, a driver cannot expect vehicles remaining parked at
night on the Highway and he expects clearance of the road. Though parked vehicles will be visible during the daytime, drivers may not notice vehicles parked on the
road at night if such vehicles do not have proper reflectors or burning indicators and the same will invariably lead to no accidents. Though there is the allegation that
the driver of the bike was under the influence of alcohol at the time of the accident, there is no evidence or finding in this regard by the MACT. There is nothing to
indicate that the truck parked on the road had proper reflectors or lighted indicators in the rear or on the side. Most of the container trucks seen on the road are not
fitted with proper indicators and the containers with their dull colours may not be visible from a distance, more so in the night. The circumstances borne out by the
mahazar in this case clearly indicate that the accident was caused on account of parking of the container lorry on the road without lighted indicators and in clear
violation of the Regulation stated above….â€
15. It was laid down by the Hon'ble Supreme Court in Archit Sain & Anr. Versus Oriental Insurance Company Ltd. (2018) 3 SCC 365 where a
vehicle is parked in the middle of the road without any parking light, the driver of such vehicle is rash and negligent. The driver of the oncoming
vehicle cannot be held negligent in such circumstances. This judgment was followed by the Hon'ble Bombay High Court inN ational Insurance
Company Ltd. Versus Mansi Swapnil Deokar 2020 ACJ 1816 and it was held:
6. Heard learned Advocate Shri Awachat for respondent nos. 1 to 4. He has pointed out the judgment of Apex Court in the case of Archit Saini and another vs
Oriental Insurance Company Ltd and others, 2018 6 MhLJ 19. Their Lordships of the Hon'ble Apex Court have held as under:-
The approach of the High Court in reversing the conclusion arrived at by the Tribunal on Issue I has been very casual, if not cryptic and perverse. Indeed, the
appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to causally overturn the finding of fact
recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well-considered opinion and a plausible view. The High Court has not adverted
to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof
required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubt. The Tribunal
applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW7 as being unreliable nor has it
discarded his version that the driver of the case could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the front side. The approach
of the High Court in reversing the well-considered finding recorded by the Tribunal on the material fact, which was supported by the evidence on record, cannot be
countenanced.
7. In the present case, the claimants have proved the FIR, spot panchanama etc. Those documents are not denied by the Insurance Company. As per the FIR and
spot panchanama, the deceased was returning from Bhadrawati to Wani. When he reached near the spot of the incident at about 8.00 pm, due to darkness, he could
not see the stationary vehicle parked on the road. There is no dispute that the said stationary vehicle was not having any parking lights or any indicator. It is a matter
of common sense that any person passing on the road cannot identify/see the stationary vehicle that is parked without any indicator or parking lights etc.
8. The Hon'ble Apex Court in the above-cited judgment has held that when the stationary vehicle is parked without any indicator or parking lights on the road, it
cannot be said that there was contributory negligence on the part of the deceased. In view of the above-cited judgment which is similar to the facts of the present
case, it cannot be said that the deceased was negligent while driving his vehicle. The learned Tribunal has rightly relied on the evidence adduced by the claimants.
The Insurance Company has not adduced any evidence to show that the deceased was also negligent to cause the accident. The learned Tribunal has rightly granted
compensation.
16. Karnataka High Court took the same view in The Claim Manager, Shriram General Insurance Company Limited vs.Pushpaand Ors.
(01.08.2019 - KARHC): MANU/KA/5937/2019 and observed:
9. At the outset, the ruling of the Division Bench consisting of Hon'ble Mr. s. Justice B.V. Nagarathna and myself of this Court in M.F.A. No. 24179 of 2012 and
connected matters decided on 28-3-2019, in my opinion, is aptly applicable to the present case with all force, as the manner of the accident including the time of the
accident are almost similar.
10. In the above-mentioned case, the lorry in question was parked on the Highway at night. The car in which the claimants were travelling and the driver of the car
could not see the parked lorry and suddenly dashed to the hind portion of the said lorry. Due to the said impact, two persons died on the spot and other inmates of
the car sustained grievous injuries. In the said case, the Division Bench has examined with regard to strict liability cast on the driver of the lorry, who parked the
vehicle on the road, particularly, in a place where the vehicle was not supposed to be parked.
 11. The relevant portion of the said judgment reads as under:
94. Section 122 of the Motor Vehicles Act, 1988 deals with leaving vehicles in dangerous position. It states that no person in charge of a motor vehicle shall cause or
allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or such a condition or in such circumstances as to cause or
likely to cause danger, obstruction or undue inconvenience to other users of the public place or the passengers. The owner of the vehicle has the right to drive the
vehicle on the road and also the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passers-by or passengers.
This is a restriction on the road to park the vehicle. The aforesaid restriction on the road to park a vehicle is reasonable and emanates from a duty to take care. In
Kumari Jyothi & Others vs. Mohd. Usman Ali & Others, [ILR 2002 KAR 893] (Kumari Jyothi), a Coordinate Bench of this Court found that the lorry in the said case
was parked in the middle of NH9 with a full load of sugarcane with no signs or indicators with regard to parking of the lorry on the road; that, normally, when any
vehicle had to be parked on account of break down, at least some stones would be kept around the vehicle to give some signal or warning to others. In the said case,
that was not done and there were also well-grown trees and it was difficult to see the parked lorry. Referring to Section 122 of the Act, the Division Bench held that
the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for the other road users. That
the Tribunal therein was not justified in placing the blame to an extent of 50% each on the driver of the lorry and the motorcyclist and that the driver of the lorry was
solely negligent.
95. Reference could also be made to the judgment of the Gujarat High Court in Premlata Nilamchand Sharma vs. Hirabhai Ranchhodbhai Patel,
[MANU/GJ/0108/1982: 1983 ACJ 290] and the judgment of the Delhi High Court in Pushpa Rani Chopra vs. Anokha Singh, [MANU/DE/0158/1975: 1975 ACJ
396], wherein it has been held that where the place was dark and the vehicle was parked without any sign or indication to warn other road users, negligence is on the
driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.
96. Similarly, in the case of New India Assurance Co. Ltd. vs. Asha Prasad & others, [MANU/KA/1149/2010: 2011 ACJ 2641], another Coordinate Bench of this
Court has held that the driver of the truck had parked the vehicle without giving any indication such as parking light as signal and the accident occurred around 1.30
a.m. At that time, the place was completely dark as there was no street light. Further, from the perusal of the recitals of the mahazar or panchnama therein, it was clear
that the deceased had tried his best to avoid the accident by applying brakes which were supported by the tyre marks found on the road to the extent of 50 ft. and in
spite of it, he could not avoid the collision and as a result he rammed his car against the truck. In the said case, the Tribunal, on the basis of the fact that there were
brake marks on the road, had apportioned negligence to an extent of 25% on the driver of the car and 75% on the driver of the offending vehicle (truck), which was
affirmed by this Court, but in the aforesaid judgment, there is no reference to the earlier judgment of the Division Bench of this Court in the case of Kumari Jyothi.
97. In the context of a highway, persons travelling on a highway could proceed at a faster pace than in a city or town unless there is a traffic restriction or other
obstruction to slow down. Hence, any vehicle, which is parked on the highway without any sign or indication with regard to its parking, must take care regarding the
parking of the vehicle so that it does not cause any obstruction to the other passengers on the highway. In the case of Nirmal Bhutani & others vs. Haryana State &
another, [MANU/PH/0150/1983: AIR 1983 Punjab and Haryana 188: 1983 ACJ 640], where a road roller was parked on the road without any sign or indication with
regard to its standing there and the place was particularly dark, it was held that the road roller standing on the road in such a manner was a grave and unexpected
hazard for road users and it constituted a breach of duty of care which was owed by the driver of the road roller to other road users. It was held that the accident was
caused by to negligence of the driver of the road roller in leaving it parked unmarked on the main highway. It was further held that where a motor vehicle is left parked
on a highway in such a manner that it constitutes a hazard or danger to the road users, the onus must be held to be upon one who seeks to avoid liability arising from
the accident with such vehicle, to establish that despite such parking of the motor vehicle, the accident took place due to a fault or negligence of the other party or
such other party could have avoided the accident by reasonable care and caution.
98. Further, in the case of Shashikala Swain & others vs. Md. Khairuddin & another, [MANU/OR/0016/2000: AIR 2000 Orissa 52: 2001 ACJ 1638], reference has been
made to Section 122 of the Act and the duty cast on the driver of a stationary vehicle on a public place so as not to cause any danger, obstruction or undue
inconvenience to the users of public place and also to the other passengers.
99. Further, under Section 126 of the Act, no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place,
unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other
measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. Section 127 has been amended with effect from
14/11/1994, wherein it states that where any motor vehicle is abandoned or left unattended, in a public place for ten hours or more or is parked in a place where
parking is legally prohibited, its removal by a towing service or its immobilization by any means including wheel clamping may be authorised by a police officer in
uniform having jurisdiction. Subsection (2) of Section 127 states that where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a
traffic hazard, because of its position in relation to the public place, or its physical appearance is causing an impediment to the traffic, its immediate removal from the
public place by a towing service may be authorised by a police officer having jurisdiction. Subsection (3) of Section 127 states that where a vehicle is authorised to be
removed under sub-section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty.
Section 127 of the Act is an enabling provision which empowers a police officer to tow away an abandoned, unattended, wrecked, burnt or partially dismantled
vehicle, which is creating a traffic hazard at the expense of the owner, but that does not imply the absence of duty on the part of the owner and driver of the vehicle,
which is left unattended in a public place. A duty is cast on the driver as well as the owner of such a vehicle to ensure that such a vehicle is towed away as
immediately as practicable and not left abandoned or unattended, particularly on a highway where vehicles are permitted to move at a faster pace than on other roads.
In the alternative, some other form of external lighting ought to have been provided so as to give an indication about the parked lorry, until a vehicle, which is
stationed/parked due to a breakdown or if it has met with an accident is towed away, it is necessary that the said vehicle does not become dangerous to other
vehicles. For that precautions, under Section 122 read with the relevant Rules have to be followed by the driver and owner of the stationed vehicle, particularly on a
highway.
100. The display of lights of motor vehicles is generally regulated by statute. Under Rule 109 of Central Motor Vehicles Rules, 1989, every motor vehicle, other than
motorcycles and three-wheeled invalid carriages shall be provided with one white or amber-coloured parking light on each side in the front. In addition to the front
lights, two red parking lights, one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary
on the road. The proviso states that rear lamps can be the same as the rear lamps referred to in sub-rule (2) of Rule
105. Sub-rule (2) of Rule 105 states that every motor vehicle, other than a three-wheeler, shall also carry two lamps (hereinafter referred to as the rear lamp) showing
the rear red light visible in the rear from a distance of one hundred and fifty-five meters; lamp, which may be the rear lamp or some other device, illuminating with a
white light the whole of the registration mark exhibited on the rear of the vehicle, including a construction equipment vehicle, so as to render it legible from a distance
of fifteen metres to the rear. Sub-rule (5) of Rule 105 states that in the case of a transport vehicle, the rear light may be fixed at such level as may be necessary to
illuminate the registration mark. In sub-rule (6) of Rule 105, it is stated that every heavy goods carriage, including trailers, shall be fitted with a red indicator lamp of
the size of thirty centimetres by ten centimetres on the extreme rear-most body cross-beam and in case of a vehicle not constructed with body in the rear, the indicator
lamp shall be fitted near the right, rear light above the rear number plate. Under Rule 107, it is stated that every goods vehicle, including trailer and semi-trailer, other
than three-wheelers and vehicles with overall width not exceeding 2.1 metres, shall be fitted with two white lights at the top right and left corners showing a white
light to the front and two red lights at the top right and showing a red light to the rear. The lights shall remain lit when the vehicle is kept stationary on the road
during the night and at the time of poor visibility. Provided that in the case of goods carriage without a full body in the rear, provision for fitting of the top light at the
rear shall not be necessary.
101. Revisiting the facts of this case, it is noted that on 12/11/2008, at about 8.00 p.m., the Santro car which was proceeding on NH17 dashed against the stationary
lorry, which was parked on the highway towards the left side of the road. The car hit the lorry from behind. Having regard to the aforesaid mandatory requirements, it
is noted in the sections of the Act as well as relevant Rules and also the judgments referred to above, it is held that the driver of the lorry was in breach of duty to
take care and was thus negligent. In the absence of any indication by way of lights to indicate that the container lorry was stationed on the left side of the road by
covering a portion of the road, the accident had occurred. Secondly, the accident occurred at 8. 00 p.m. in the month of November when it was dark on the National
Highway. The driver of the Santro car was proceeding on the left side of the road of the highway and could not see the container lorry parked on the left side of the
road as there were no lights indicating that the said vehicle had been parked. Therefore, there was negligence on the part of the lorry driver in parking the lorry on the
highway without any light. Assuming for a moment that the lights of the lorry were non-functional on account of the fact that it had earlier met with an accident, then
all efforts should have been made to remove/tow away the lorry at the earliest possible time. The same not having been done clearly give rise to an inference that the
driver and owner of the lorry did not discharge their duty to take care and were therefore negligent in causing the accident.
102. No negligence can be attributed to the driver of the car as on a National Highway the vehicles would normally move at a greater speed than on an ordinary road
or a road in a city or a town. On account of there being no indication whatsoever that the container lorry was parked towards the left side of the road, the driver of the
car who was also proceeding on the left side could not imagine gauge or expect that there was a vehicle that was parked towards the left side of the road. In the
absence of the driver of the car being aware about the parking of the lorry towards the left side of the road and the car also proceeding towards the left side of the
road, it hit the lorry from behind. Even if the car was proceeding at a moderate speed, the driver could not have avoided the stationed lorry which was unattended and
without any light or indicator on so as to indicate to the drivers of the vehicles proceeding in the same direction that the lorry was parked to avoid hitting the lorry. In
fact, in the instant case the brake marks on the road as noted in the panchnama would indicate that the driver of the vehicle has tried his best to avoid a collision with
the lorry, but could not do so. Thus, total negligence was on the driver of the lorry to have left it unattended and without any parking lights on, which is in violation
of the duty cast under the Act as well as in common law. Hence, there being a breach of duty to take care, it is held that the driver and owner of the lorry were totally
negligent and committed a tortuous act in causing the accident and that there was no composite negligence nor contributory negligence on the part of the driver of
the car. As a result, the driver, owner and insurer of the car are exonerated from their liability to satisfy the awards. Hence, point No. 1 is answered in favour of the
claimants and New India Assurance Co. Ltd., and against the driver/owner and insurer of the lorry.
12. In view of the aforesaid decision of this Court, I find that the insurance company cannot contend that the rider of the motorcycle was negligent and responsible
for the accident in question. Even admitting all the arguments advanced by the learned counsel for the appellant, I find that negligence cannot be cast on the rider of
the motorcycle.â€
17. This position was reiterated in Sushma v. Nitin Ganapati Rangole, 2024 SCC OnLine SC 2584 wherein it was observed:
“25. Common sense requires that no vehicle can be left parked and unattended in the middle of the road as it would definitely be a traffic hazard posing a risk to the
other road users.
26. We shall briefly refer to the statutory provisions applicable to the situation at hand.
27. A highway or a road is a public place as defined in Section 2(34) of the Act: â€
“2(34) “public place†means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any
place or stand at which passengers are picked up or set down by a stage carriage;â€
28. Section 121 of the Act provides that the driver of a motor vehicle shall make such signals and, on such occasions, as may be prescribed by the Central
Government.
29. Section 122 of the Act provides that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on
any “public place†in such a position or in such a condition or in such circumstances so as to cause or likely to cause danger, obstruction or undue
inconvenience to other users of the public place or the passengers.
30. Section 126 of the Act provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place.
31. Section 127(2) of the Act provides that where any abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its
position in relation to the public place, or its physical appearance is causing the impediment to the traffic, its immediate removal from the public place by a towing
service may be authorised by a police officer having jurisdiction.
32. Regulation 15 of the Rules of Road Regulation, 1989 which was prevailing on the date of the incident provides that every driver of a motor vehicle shall park the
vehicle in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users. It casts a duty on the drivers of
a motor vehicle stating that the vehicle shall not be parked at or near a road crossing or in a main road.
33. These legal provisions leave no room for doubt that the person in control of the offending truck acted in sheer violation of the law while abandoning the vehicle
in the middle of the road and that too without taking precautionary measures like switching on the parking lights, reflectors or any other appropriate steps to warn the
other vehicles travelling on the highway. Had the accident taken place during the daytime or if the place of the accident was well illuminated, then perhaps, the car
driver could have been held equally responsible for the accident by applying the rule of last opportunity. But the fact remains that there was no illumination at the
accident site either natural or artificial. Since the offending truck was left abandoned in the middle of the road in clear violation of the applicable rules and regulations,
the burden to prove that the placement of the said vehicle as such was beyond human control and that appropriate precautionary measures taken while leaving the
vehicle in that position were essentially on the person in control of the offending truck. However, no evidence was led by the person having control over the said
truck in this regard. Thus, the entire responsibility for the negligence leading to the accident was of the truck owner/driver.â€
18. In the present case, the truck driver had parked the truck on the Highway in the middle of the night. There is no evidence that he had switched on
the parking lights, indicators or any other method of illumination, therefore, he was negligent in abandoning the Truck on the road and the accused
cannot be held liable for negligence.
19. Even otherwise on merits, the prosecution case was not established. Madan Lal (PW-1) stated that the bus was at a high speed and the truck was
dragged for some distance. He stated in his cross-examination that the speed of the bus was about 60 km. Thus, as per this witness, the bus was being
driven on a highway at a speed of around 60 km per hour. As per the notification issued by the State Government under Section 112(1) of the Motor
Vehicles Act, 1988, the maximum speed of a medium or heavy passenger Motor Vehicle is 65 Kms per hour and as per the witness’s testimony,
the speed was within the limit prescribed by the Government and was not excessive.
20. Rajesh Kumar (PW-2) stated that he had parked the vehicle bearing registration No. HR55C-2893 with another vehicle bearing registration No.
HR38D-9393. The driver of both the vehicles had gone to their home. He found on the next day that a bus had hit the truck. His testimony shows that
two vehicles were parked on the main road. Rule 15 (2) (vi) of the Rule of Road Regulation 1989 provides that the driver of the Motor Vehicle shall
not park his vehicle alongside another parked vehicle, thus, the driver of the truck violated the rule by parking his truck bearing registration No.
HR38D-9393 alongside another truck bearing registration No.HR55C-2893. Thus, the statement of this witness does not show the negligence of the
accused but the negligence of the truck driver.
21. Gheesa Ram (PW-5) did not support the prosecution case. He stated that two cows suddenly came on the road. The bus driver tried to save them
and hit the truck. He was permitted to be cross-examined. He denied part of his previous statement recorded by the police regarding the negligence of
the bus driver. He stated in his cross-examination by the learned counsel for the defence that the accused was driving the vehicle at a speed of 60-65
km per hour. He volunteered to say that the road was damaged at Damtal; therefore, the speed was 30-35 km per hour. No person had objected to
the speed of the bus.
22. The statement of this witness also does not show any negligence on the part of the accused. He claimed that two cows suddenly appeared on the
road and the driver hit the truck while trying to save them. The statement shows that the accident had taken place due to the presence of the cows on
the road and an attempt by the driver to save them. Therefore, the testimony of this witness does not prove the prosecution case.
23. Jatinder Kumar (PW-7) stated that the bus met with an accident and the passengers sustained injuries. The accident occurred due to the high
speed and negligence of the accused. He stated in his cross-examination that the lights inside the bus were switched off. He came to know about the
accident after the accident. He did not know how the accident had taken place because he was sleeping. He found subsequently that the bus had hit
the truck.
24. The statement of this witness was rightly discarded by the learned Trial Court. He admitted in his cross-examination that he was sleeping which
means that he was unable to see the accident and could not have deposed about the cause of the accident.
25. He stated that the accident had occurred due to the high speed and negligence of the accused. Even this part of the statement will not help the
prosecution. It was laid down by the Hon’ble Supreme Court in Mohanta Lal Saha v. State of West Bengal, 1968 ACJ 124 that the use of the
term high-speed amounts to nothing unless the notion of the speed of the witness is to be ascertained from him. It was observed:
“Prafulla Kumar Dey, no doubt, in court stated that the appellant's bus was coming at high speed; but this statement appears to be an improvement
on his earlier evidence given during the investigation when he did not mention to the investigating officer that the bus was running at high speed.
Further, no attempt was made to find out what this witness understood by high speed. To one man a speed of even 10 or 20 miles per hour may
appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case,
therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and
negligently.â€
26. It was held in State of Karnataka v. Satish, (1998) 8 SCC 493: 1998 SCC (Cri) 150 8that the use of the term high speed is not sufficient to
infer rashness or negligence. It was observed:
4. Merely because the truck was being driven at a “high speed†does not bespeak either “negligence†or “rashness†by itself. None of the witnesses
examined by the prosecution could give any indication, even approximately as to what they meant by “high speedâ€. “High speed†is a relative term. It was for
the prosecution to bring on record material to establish as to what it meant by “high speed†in the facts and circumstances of the case. In a criminal trial, the
burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of
innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such
statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness†or “negligence†could be drawn
by invoking the maxim “res ipsa loquiturâ€. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to
whether the jerk was because of the uneven road or mechanical failure.â€
27. This Court took a similar view in State of H.P. v. Amar Nath, Latest HLJ 2018 (HP) Suppl. 763, and held as under:-
 “18 It would be noticed that the instant is a case where apart from the bare statement of PW-1 that the vehicle was being driven by the petitioner at a high
speed, there was no attempt made to establish that there was any rash and negligent act on the part of the driver of the vehicle. “High speed†is an expression
which is relative and subjective. Therefore, merely because the vehicle was being driven at a high speed does not mean that the driver was driving rashly and
negligently.â€
28. A similar view was taken in Yash Pal Rana v. State of Himachal Pradesh Latest HLJ 2019 (HP) (Suppl.) 171, wherein it was observed:-
“9. Leaving everything aside, this Court finds no specific evidence led on record by the prosecution to prove rash and negligent driving by the petitioner-
accused. As has been taken note of above, PW-1 in a very casual manner has only stated that the offending vehicle was being driven at high speed, but high speed
cannot be a criteria to conclude rash and negligent driving, rather to prove guilt, if any, under Section 279 IPC, it is/was incumbent upon the prosecution to prove act
of rashness and negligent so as to endanger the human life. But in the case at hand, the prosecution has not been able to place on record specific evidence, if any,
with regard to rash and negligent acts, if any of the accused, which endangered human life.
29. Thus, no advantage can be derived from the use of the term high speed by the witnesses.
30. The statements of the witnesses that the accident occurred due to the negligence of the accused will not help the prosecution because a witness is
not permitted to derive any inference from the facts but he is supposed to place the facts before the court, leaving the jury or the judge, when he is
sitting without the jury, to draw the inferences. The statement of a witness that the driver of the vehicle was negligent is an inference, which cannot
be drawn by the witness. It was laid down by Goddard LJ in Hollington vs. Hawthorn 1943 KB 507 at 595 that a witness cannot depose about
negligence. It was observed:
“It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw;
he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court
has to decide, but in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant but his opinion is not.â€
31. Similar is the judgment in State of H.P. vs. Niti Raj 2009 Cr.L.J. 1922 (HP) where it was held:
“It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was
being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court.â€
32. Therefore, the statement of the witness that the driver was negligent without anything more does not constitute legally admissible evidence upon
which any reliance can be placed by the Court of law to base its judgment.
33. There is no other evidence to show the negligence of the accused and the learned Trial Court rightly held that the prosecution had failed to prove
its case beyond a reasonable doubt. This was a reasonable view that could have been taken based on the material placed before the learned Trial
Court and no interference is required with the same while deciding an appeal against the acquittal.
34. Consequently, the present appeal fails and the same is dismissed.
35. The record of the learned Trial Court below be returned forthwith.
36. Pending application(s), if any, also stand(s) disposed of.
