(Arijit Pasayat, J.) - Leave granted.

2.Appellant faced trial for offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 185 of the Motor Vehicles Act, 1988(in short the ‘MV Act’). The appellant was acquitted by learned Judicial Magistrate, Hamirpur. State of Himachal Pradesh preferred an appeal before the Himachal Pradesh High Court which by the impugned judgment set aside the judgment of acquittal passed by the trial Court and directed conviction of the respondent for offences punishable under Sections 279, 337, 338 and 304-A IPC and imposed various sentences, which were directed to run concurrently. The maximum sentence imposed was one year.

3.Background facts in a nutshell are as follow:

On 15.4.1993 the accused-appellant was the driver of the truck HIU-3837. The said truck was carrying a marriage party. When it reached near village Kacherha, on the public way, at about 11 a.m., he lost its control, consequently it went off the road, rolled down in the filed, leaving Pratap Singh @ Pinku, Kuleep Singh @ Jogi, dead on the spot and Kamal Kishore and Manohar Lal injured persons died in the hospital at Bhoranj later, due to accidental injuries, whereas, out of about fifty other members of the marriage-party, who were the occupants of the said truck, Harish Kumar, Amin Chand, Rajesh Kumar, Rattan Chand, Desh Raj, Tej Ram, Rakesh Kumar, Hem Chand, Surjit Singh, Mahant Ram, Prakash Chand, Pawan Kumar,Shambhu Rani, Paras Ram, Ranbir Singh, Prem Chand, Prakash Chand and Sanjay, sustained simple injuries, whereas, Anil Kumar, Joginder, Suresh Kumar, another Joginder Singh, Ishwar Dass, Nand Lal, Lekh Ram and Lekh Raj sustained grievous injuries. The appellant was allegedly drunk. He and the cleaner of the truck had absconded. The case was registered.

The police took the photographs of the spot, prepared the site plan, truck was mechanically examined, the postmortem reports and the MLCs of the injured were taken into possession and after recording the statements of the witnesses, the challan was presented in the Court, for the trial against the respondent.

‘The charges were framed and put to the appellant, to which he pleaded not guilty and claimed that.

Nathu Ram (PW1) is a constable, who was on his duty to execute the processes. He is an eye witness of the said accident. Rup Lal (PW3) was an occupant and the father of bridegroom Kuldeep Singh (deceased), whose marriage-party was traveling in the said truck. PW2 Dile Ram (injured), PW4 Rattan Lal, PW5 Rattan Chand (injured) son of Salig Ram, PW6 Surjit Singh, PW13 Rakesh Kumar, PW8 Lekh Ram PW10 Rattan Chand (injured), PW16 Rakesh Kumar (injured) and PW18 Sagar Singh were occupants of the truck, but they broadly did not support the case of the prosecution, as alleged. However, he admitted the accident.

4.The trial Court came to the conclusion that there was no rash or negligent driving as claimed by the prosecution. In appeal, the High Court relied on the evidence of the witnesses particularly PWs 1, 3 & 4 and recorded that rash and negligent driving is clearly established. Accordingly State’s appeal was allowed and conviction was recorded and sentences imposed.

5.Learned counsel for the appellant submitted that the accident took place not because of negligence but because the appellant tried to save the lives of children who were playing on the road and therefore, the truck claimed on the stones by the side of the road and its rod was broken. It was also submitted that the appellant has already suffered custody of more than nine months and, therefore, the sentence should be restricted to the period already undergone.

6.Learned counsel for the state on the other hand submitted that rash and negligent driving has resulted in the death of four persons and several others were seriously injured.

7.Section 304-A IPC applies to case where there is no intention to cause death and no knowle