2025:HHC:28894 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.70 of 2014 Reserved on: 14.08.2025 Date of Decision: 27.08.2025 Harish Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioners : Mr. Kulwant Singh Katoch, Advocate For the Respondent/State : Mr. Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The present revision is directed against the judgment dated 16.07.2013, passed by learned Sessions Judge, Sirmour District at Nahan, H.P. (learned Appellate Court) vide which the judgment of conviction dated 19.03.2011 and order of sentence dated 24.03.2021, passed by learned Judicial Magistrate, First Class, Rajgarh, District Sirmour H.P. (learned Trial Court), were partly set aside (The parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. P a g e | 2 2025:HHC:28894 same manner as they were arrayed before the learned Trial Court for convenience.). 2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 279 and 427 of the Indian Penal Code (IPC) and Section 185 of the Motor Vehicles Act (M.V.Act). It was asserted that informant Padam Singh (PW-1) was working as a Commission Agent. He has his shop and residence at Giripul. He had parked his vehicle outside his shop on the roadside on 23.04.2010 at 8:30 p.m. He heard a noise at 9:00 p.m. He came out and saw that his vehicle had moved 8-10 feet. Many people had gathered on the spot. It was found that one Tipper bearing registration No. HP64-0847 had hit the Pickup at high speed. The accused Harish Kumar was driving the Tipper. The matter was reported to the police. HC Sanjay Kumar (PW-8) and Constable Dinesh Kumar visited the spot. HC Sanjay Kumar (PW-8) recorded the statement of informant Padam Singh (Ext.PW1/A), which was sent to the Police Station, where F.I.R. (Ext.PW-8/A) was registered. HC Sanjay Kumar (PW-8) investigated the case. He prepared the site plan (Ext.PW-8/B) and seized the Tipper along P a g e | 3 2025:HHC:28894 with its documents and driving licence vide seizure memos (Ext.PW3/A, Ext.PW1/B and Ext.PW4/A) respectively. The medical examination of the accused was conducted by Dr. Chintvan Thakur (PW-5), who found that the accused was smelling of alcohol but had not suffered any injury. He issued MLC (Ext.PW5/A). The Tipper was mechanically examined, and the mechanical report (Ex. PX) was issued. Sushil Kumar produced the Pickup, which was seized vide memo (Ext.PW6/A). Photographs (Ext.P-1 to Ext. P-5) were taken. Statements of the prosecution witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 279 and 427 of the IPC and Section 185 of the M.V.Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined eight witnesses to prove its case. Padam (PW-1) is the informant. Yashpal (PW-2) and Sanjeev P a g e | 4 2025:HHC:28894 (PW-3) are eyewitnesses. HHC Nand Lal (PW-4) and Constable Pritam (PW-6) are the witnesses to the recovery. Dr. Chitvan (PW-5) conducted the medical examination of the accused. SI R.S. Chauhan (PW-7) prepared the charge-sheet. HC Sanjay (PW-8) conducted the investigation. 5. Accused in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C) admitted that he was driving the Tipper bearing registration No. HP64-0847. He admitted that the Investigating Officer had visited the spot, prepared the site plan and seized the documents of the vehicle. He denied that the accident occurred due to his negligence. He did not produce any evidence in defence. 6. Learned Trial Court held that the mechanical report (Ext.PX) showed that there was no mechanical defect in the vehicle. There was a dent above the left front tyre of the Tipper. This corroborated the prosecution’s version that Tipper had hit the Pickup. The accused did not dispute that he was driving the Tipper at the time of the accident. Tipper had hit the stationary Pickup, which showed the negligence of the accused. Offences punishable under Sections 279 and 427 of the IPC were proved. P a g e | 5 2025:HHC:28894 The blood sample of the accused was not taken. Hence, the offence punishable under Section 185 of the M.V. Act was not proved. The learned Trial Court convicted the accused for the commission of offences punishable under Section 279 and 337 of the IPC and sentenced him as under: Sections Sentences 279 of IPC To undergo simple imprisonment for a period of one month and was directed to pay a fine of ₹1000/- and in default of payment of fine he shall undergo further simple imprisonment for seven days. 427 of IPC To undergo simple imprisonment for a period of one month and wad and was directed to pay a fine of ₹1000/- and in default of payment of fine he shall undergo further simple imprisonment for seven days. Both the substantive sentences of imprionment were ordered to run concurrently. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Sirmour District at Nahan, H.P. (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the P a g e | 6 2025:HHC:28894 Tipper had hit the stationary Pick up, which showed the negligence of the driver of the Tipper. The learned Trial Court convicted the accused for the commission of offences punishable under Sections 279 and 427 of the IPC, which cannot be committed in one transaction because Section 279 of the IPC requires negligence without any intention, whereas Section 427 of the IPC requires an intention to cause wrongful loss. Hence, the accused was acquitted of the commission of an offence punishable under Section 427 of the IPC. However, the conviction and sentence imposed by the learned Trial Court for the commission of an offence punishable under Section 279 of the IPC were upheld. 8. Feeling aggrieved and dissatisfied with the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that Padam Singh (PW-1) and Yash Pal (PW-2) did not depose that the accused was driving the vehicle in a rash and negligent manner. The photographer was not examined, and the photographs of the Tipper were not taken. The site plan does not depict the distance between the house of Padam Singh (PW-1) and Kapoor Singh. The mechanical report (Ex. PX) cannot form the sole basis for recording the conviction. No passenger was examined, and an adverse inference should P a g e | 7 2025:HHC:28894 have been drawn against the prosecution. The evidence was not properly appreciated; therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Trial Court be set aside. 9. I have heard Mr. Kulwant Singh Katoch, learned counsel for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State. 10. Mr. Kulwant Singh Katoch, learned counsel for the petitioner, submitted that the learned Courts below failed to properly appreciate the material placed before them. There was no evidence of rashness or negligence of the accused. The Pickup was parked on the Highway, which is impermissible. Negligent parking of the Pickup led to the accident. The learned Courts below erred in holding that the negligence of the accused led to the accident. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside. He relied upon judgments of this Court in State of Himachal Pradesh vs. Pardeep Kumar 2024:HHC: 8920 and State of H.P. vs. Lekh Raj in Criminal Appeal No. 312 of 2010, decided on 26.02.2024, in support of his submission. P a g e | 8 2025:HHC:28894 11. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the learned Courts below have rightly held the accused to be negligent. He was driving the Tipper, which had hit a stationary Pickup. The accused failed to control his vehicle, leading to the accident. This Court should not interfere with the concurrent findings recorded by the learned Courts below. Hence, he prayed that the present revision be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or P a g e | 9 2025:HHC:28894 himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and P a g e | 10 2025:HHC:28894 appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such P a g e | 11 2025:HHC:28894 jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in a conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether P a g e | 12 2025:HHC:28894 they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge. 15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) “5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to P a g e | 13 2025:HHC:28894 satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …” 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) “14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate P a g e | 14 2025:HHC:28894 court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.” 14. In the above case, also a conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis. 16. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence P a g e | 15 2025:HHC:28894 of a jurisdictional error. The answer to the first question is, therefore, in the negative.” 17. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 18. It is an admitted case of the prosecution that the Tipper was parked on the Solan to Rajgarh main road. This fact was mentioned in the plan (Ext. PW-8/B) at Point No.2. 19. Rules of the Road Regulations, 1989, were framed by the Central Government for regulating traffic on the road. Rule 15 deals with the parking of the vehicle and reads that every driver of a 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 fast traffic. Thus, it is apparent that, as per this Rule, a vehicle cannot be parked on a main road or a 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 P a g e | 16 2025:HHC:28894 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 at 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 vehicle drivers on the same maintain a 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 at 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 P a g e | 17 2025:HHC:28894 without lighted indicators and in clear violation of the Regulation stated above….” 20. It was laid down by the Hon'ble Supreme Court in Archit Sain & Anr. Versus Oriental Insurance Company Ltd. (2018) 3 SCC 365, that where a vehicle is parked in the middle of the road without any parking lights, the driver of such a vehicle is rash and negligent. The driver of the oncoming vehicle cannot be held negligent in such circumstances. This judgment was followed by the Bombay High Court in National 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 the 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 that in criminal cases, which must be beyond any reasonable doubt. The Tribunal applied the P a g e | 18 2025:HHC:28894 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 the 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 indicators. 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. P a g e | 19 2025:HHC:28894 21. Karnataka High Court took the same view in Claim Manager, Shriram General Insurance Company Limited vs. Pushpa and 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 Ms. 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, is 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 into the rear 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 the 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 a 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 P a g e | 20 2025:HHC:28894 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 indication 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 P a g e | 21 2025:HHC:28894 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 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 P a g e | 22 2025:HHC:28894 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, P a g e | 23 2025:HHC:28894 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 subsection (1) or subsection (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 P a g e | 24 2025:HHC:28894 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 a 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, P a g e | 25 2025:HHC:28894 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 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 lights. 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 gives 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 P a g e | 26 2025:HHC:28894 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.” P a g e | 27 2025:HHC:28894 22. 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 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: — “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;” 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 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 P a g e | 28 2025:HHC:28894 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 presented 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.” 23. In the present case, the Pickup was parked on the main road. There is no evidence that the driver of the pickup had switched on the parking lights, indicators or any other method of P a g e | 29 2025:HHC:28894 illumination. Therefore, he was negligent in abandoning the pickup on the road, and the accused cannot be held liable for the negligence. 24. It was submitted that the pickup was parked on the roadside, and there was sufficient space for the accused to drive the Tipper. This submission cannot be accepted. The site plan (Ext.PW-8/B) does not specify the width of the road. It shows the point ‘X’ where the accident had taken place. It also mentions that the vehicle had moved 8-10 (sic). 25. HC Sanjay Kumar (PW-8) stated in his cross- examination that the tipper was parked at a distance of 10 meters from Pickup, which shows that the mark depicted by him in the site plan is not based upon his personal information but on the information derived from the other witnesses. The place of the incident shown in the site plan, based on the statements made to the Investigating Officer, is hit by Section 162 of Cr.P.C. It was laid down by the Hon’ble Supreme Court in Jagdish Narain v. State of U.P., (1996) 8 SCC 199: 1996 SCC (Cri) 565 that the site plan is inadmissible to prove what was told by the eyewitnesses to the P a g e | 30 2025:HHC:28894 investigating officer in view of the bar contained in Section 162 of Cr.P.C. It was observed: 9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion, neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However, such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses, it could not have been admitted in evidence, being hit by Section 162 CrPC. The law on this subject has P a g e | 31 2025:HHC:28894 been succinctly laid down by a three-judge Bench of this Court in Tori Singh v. State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention, this Court observed, inter alia: “… the mark on the sketch map was put by the Sub- Inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This, in our opinion, would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot, but any mark put on the sketch-map based on the statements made by the witnesses to the Sub- Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during the investigation.” (emphasis supplied) 10. While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman — and not by the Investigating Officer — entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence as has been observed by this Court P a g e | 32 2025:HHC:28894 in Tori Singh case [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] in the following passage: “This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of the offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab [AIR 1956 SC 526: 1956 Cri LJ 930]. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by Section 162 of the Code of Criminal Procedure.”(emphasis supplied) 26. Therefore, the site plan cannot be used to pinpoint the place of the accident. 27. Padam Singh (PW-1) stated that he heard the noise and came out. He found that his pickup had moved 8-10 feet. He stated in his cross-examination that the Tipper was at a distance of 40- 50 meters from the Pickup at the time of his arrival on the spot. He did not see anyone driving the Tipper. His statement clearly shows that he is not an eyewitness, and his testimony cannot be used to conclude that the accused was negligent. 28. Significantly, he has not stated that he had parked his Pickup at a place which would not cause any danger to the other traffic moving on the road. He has not even stated that sufficient space was available for other vehicles to move. Thus, the P a g e | 33 2025:HHC:28894 submission that there was sufficient space to move the other vehicles is not supported by the statement of this witness. 29. Yashpal (PW-2) stated that he was present in his shop at 8:30 p.m. when a Tipper came and hit the Pickup. The Pickup sustained excessive damage. He stated in his cross-examination that he had not seen the driver of Tipper. This witness has also not stated that the pickup was parked in such a manner as would not cause any danger to the traffic moving on the road. He did not state that sufficient space was available for the other vehicles to move. Reliance was placed upon the photographs; however, these photographs do not show the complete road or the position of the Tipper. The photographs do not show that sufficient space was available for the other vehicles to move. Hence, these photographs do not prove the negligence of the accused. 30. Both the learned Courts below did not notice the provision of the Rules of Road Regulations and the obligation not to park the vehicle on the main road, which had a material bearing on the outcome of the case. They proceeded on the basis that since the Tipper had hit a stationary Pickup, therefore, the driver of the Tipper was negligent, overlooking the fact that parking a vehicle P a g e | 34 2025:HHC:28894 on the main road without illumination is also negligence. Therefore, judgments and order passed by the learned Courts below cannot be sustained. 31. In view of the above, the present revision is allowed, and the judgments and order passed by the learned Courts below are ordered to be set aside, and the accused is acquitted of the commission of an offences punishable under Section 279 of the IPC. The fine amount, if deposited by the petitioner, be refunded to him after the expiry of the statutory period of limitation in case of no further appeal, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Apex Court. 32. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioner on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. P a g e | 35 2025:HHC:28894 33. A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith. Pending applications, if any, also stand disposed of. (Rakesh Kainthla) Judge 27th August 2025 (ravinder)