The main legal point established in the judgment is the requirement of specific evidence to prove rash and negligent driving, the distinction between criminal rashness and negligence, and the need for careful assessment of eyewitness evidence.

JUDGMENT :

Sandeep Sharma, J.

Instant criminal revision petition under S.397 read with S.401 CrPC, lays challenge to judgment dated 5.3.2009 passed by learned Additional Sessions Judge, Solan, Himachal Pradesh in Criminal Appeal No. 24-S/10 of 2008 affirming the judgment dated 26.6.2008 passed by learned Judicial Magistrate 1st Class, Kasauli, Solan, Himachal Pradesh in Case No. 128/2 of 2007, whereby learned trial Court held petitioner-accused (hereinafter, 'accused') guilty of having committed offences punishable under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Act and accordingly convicted and sentenced him in the following manner:

2. Precisely, the facts as emerge from the record are that on 9.10.2006, PW-1 Arvind Kashyap informed Police Station, Kasauli that his younger brother, Arun Kashyap (PW-2), who was riding a scooter bearing registration No. HP14A-2396, has been hit by a Truck bearing registration No. HP-64-0996 being driven in high speed by the accused. He further alleged that after accident, accused fled away from the spot with the truck. On the basis of the aforesaid statement/complaint made by complainant, PW-1, Arvind Kashyap, a formal FIR Ext. PW-10/A dated 9.10.2006 came to be lodged against the accused under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Act. After completion of investigation, Police presented Challan in the competent Court of law, who being satisfied that a prima facie case exists against the accused, put notice of accusation to the accused for the commission of the offences punishable under aforesaid provisions of law, to which accused pleaded not guilty and claimed trial.

3. Prosecution with a view to prove its case examined as many as ten witnesses, whereas accused in his statement recorded under S.313 CrPC, though admitted the factum with regard to accident but claimed that the accident occurred on account of rash and negligent driving of the rider of the Scooter. He did not lead any evidence in his defence. Learned trial Court, on the basis of evidence collected on record by the prosecution, held the accused guilty of having committed offence punishable under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Act, and accordingly convicted and sentenced him as per description given herein above. Being aggrieved and dissatisfied with the judgment of conviction recorded by learned trial Court, accused preferred an appeal before learned Additional Sessions Judge, Solan, who vide judgment dated 5.3.2009, dismissed the appeal, as a consequence of which judgment of conviction and sentence passed by learned trial Court came to be upheld. In the aforesaid background, accused has approached this Court in the instant proceedings, seeking his acquittal after setting aside judgment of conviction and sentence passed by learned trial Court and affirmed by learned first appellate Court.

4. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Courts below, while holding the accused guilty of having committed offences punishable under aforesaid provisions of law, this court is persuaded to agree with Dr. Lalit K. Sharma, learned counsel for the accused that since there was no positive evidence, if any, led on record by prosecution to the effect that the offending vehicle was being driven rashly and negligently by the accused at the time of alleged accident, learned Courts below ought not have held him guilty.

5. It is well settled by now that rashness and negligence cannot be presumed, rather, onus is always upon the prosecution to prove the same b