Himachal Pradesh High Court
Reserved On: 14.08.2025 vs State Of Himachal Pradesh on 27 August, 2025
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
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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
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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
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(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.
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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
r 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
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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
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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.
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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. to
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
r 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."
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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
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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
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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
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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
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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
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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
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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
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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.
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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)
r to
