S.M. SIKRI, J.

(1) THE appellants) Kishan Chand and Waryam Singh having obtained Special Leave, have appealed against their conviction under Section 304-A and Section 337, Indian Penal Code. The Cantonment Magistrate, Ambala Cantt. convicted both of them. On appeal the learned Additional Sessions Judge acquitted Kishan Ghand but maintained the conviction of Waryam Singh. Waryam Singh filed a revision before the High court and the State filed an appeal against the acquittal of Kishan Chand. The High court dismissed the revision of Waryana Singh, but allowed the appeal of the State and convicted Kishan Ghand under Section 304-A and Section 337, Indian Penal Code.

(2) MOST of the facts have been found concurrently and the only question is whether on the facts proved in the case it can be held that the appellants were rash or negligent within the meaning of Section 304-A.

(3) THE accident occurred on 5/04/1964, at about 12.35 p.m. on the Mall in Ambala Cantonment. The Mall is a wide road and at one point Mess Road crosses it at a right angle. The width of Mess Road is about 21 ft., but the Mall Road is winter. A collision took place between three vehicles at one end of the crossing. Two vehicles one truck No. PNA 2921, driven by Kishan Chand and the scooter driven by Captain R. P. Aggarwal, P. W. 1, who was himself injured, had gone along the Mall north to south, while truck No. PNP 1330, driven by Waryam Singh, entered the crossing of the Mall and Mess Road from Mess Road. Captain R. P. Aggarwal, with his wife riding on the pillion, was going on the Mall. The truck driven by Kishan Chand was in front of him. After getting the signal he passed the truck and approached the crossing. Now the truck driven by Kishan Chand was behind him. When he approached the crossing to state what he said in F.I.R. "I saw a truck No. PNP 1330 coming from Rai Market side at a very high speed. I immediately applied both the brakes and turned the handle to left fully so as to avoid the collision. Also as I turned left, the scooter stand on the left side touched the road. I put my left foot on the ground so as to avoid the accident but in vain. The truck following me also came and I was involved between both the truck Nos. PNA 2921 and PNP 1330 due to the rash and negligent driving of both the drivers". At the trial he gave a slightly different version. He said "As the truck was coming very fast I applied my brakes and stopped the scooter asking my wife to hold me. I stopped the scooter just on the left side to pass the truck from my front side. As I stopped the scooter with my left foot on the ground, the truck, which I had crossed on the way, came nd hit my scooter from my back. The stepney fixed on the back of the scooter was knocked off, my right foot got struck in the brake of the scooter and my wife .fell on the bumper of the truck and the scooter slipped from under me. I was dragged alongwith the scooter. Thereafter the truck which was following me took turn towards left to avoid accident with the truck which was coming from the Rai Market side but since both the trucks were coming at very fast speed, the truck clashed with the truck which was coming from the right side. My scooter was pushed under the truck which was coining from the Rai Market side, and scooter was practically sandwitched between the two trucks. Both the trucks then stopped". He further stated that "there was enough space for the truck coming from the Rai Market side to pass. If my scooter had not been pushed from the back side by the truck following me, I would not have met the accident by the truck coming from front side. However, the two trucks would have dashed with each other".

(4) PHOTOGRAPHS of the three vehicles as they rested after the collision were taken and we looked at them. They seem to substantiate the version of Kishan Chand.

(5) CHAMAN Lal (P. W. 5) who saw the accident said that Waryam Singh accused was coming at high speed f