The Himachal Pradesh High Court on Tuesday dismissed a state government appeal challenging acquittal of the accused under Section 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act, 1988.
The appeal was made against the judgment dated November 7, 2008, passed by Judicial Magistrate 1st Class, Court No.3, Shimla, HP, in State vs. Shankar Singh, whereby respondent-accused was acquitted of notice of accusation under Section 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act, 1988 in FIR dated 25.11.2006, registered in Police Station West Shimla.
The prosecution case in a nutshell is that on November 25, 2006, at about 7.30 p.m. respondent-accused had caused an accident by driving a Mazda truck in a rash and negligent manner near Victory Tunnel and had hit the railing and pedestrian path. It is further case of the prosecution that at that time respondent-accused was under influence of alcohol. As per prosecution case, respondent-accused was apprehended on the spot by Ankur Kanwar and Paras and was handed over to the police in presence of number of persons, who had gathered on the spot.
On the basis of statement of Ankur Kanwar, recorded under Section 154 of the Criminal Procedure Code , FIR was registered and investigation was carried out. After completion of investigation, finding prima facie complicity of respondent-accused in commission of offences under Section 279 IPC and 185 of M.V. Act, challan was presented in the Court.
Defence of the respondent-accused is that he was not driving the vehicle in rash and negligent manner, but driver of another vehicle coming from opposite side, with high speed, did not use dipper causing obstruction to vision of the respondent-accused and, thus, he had driven his vehicle towards the railing, where there was pit and one tyre of vehicle being driven by respondent-accused went in the pit causing the accident in which there was no rashness and/or negligence on the part of the respondent-accused.
A Single Bench of Justice Vivek Singh Thakur noted that to prove allegation that respondent-accused was driving vehicle under influence of alcohol, prosecution has relied upon medical evidence as well as evidence of Dr Amita Bhatnagar.
So far as medical evidence is concerned, though it is claimed that blood and urine samples of respondent-accused were taken, however, report of State Forensic Science Laboratory (SFSL) has not seen light of the day, as it has not been referred and exhibited in statements of either witness, rather Dr Amita Bhatnagar has admitted that no such report is available on record. Dr Bhatnagar has stated that respondent accused was brought to her with alleged history of alcoholic consumption, who, at the time of examination, was conscious, cooperative and well oriented in time and place. Though, she has also stated that the smell of alcohol was present, however, with further statement in cross-examination that when patient was brought to her he was conscious and well behaved, observed the bench.
The Court further stated that Joginder Kumar, Head Constable Mechanic in Police Department, has admitted in cross-examination that at the time of inspection of vehicle, he had found that brakes of the vehicle were not working with further admission that in case of failure of foot brake, vehicle would not stop. Further one of the witness Sanjay Thakur in his cross-examination has admitted that vehicle involved in the accident was loaded with sand and its one tyre had gone into a pit, existing on the road, because of collapse of retaining wall.
From the evidence on record, the Court emerged on three versions .
(1) That respondent-accused was driving the vehicle under influence of alcohol in rash and negligent manner leading to the accident in question.
(2) That accident had been caused by the existence of a pit on the spot caused due to collapse of retaining wall a vehicle went in pit for piercing light of vehicle coming from opposite side.
(3) Third, that accident had taken place for failure of foot brake.
The Court held that so far as influence of alcohol is concerned, prosecution has withheld scientific evidence which would have established quantum of presence of alcohol in urine and blood of the respondent-accused, because though Dr Amita Bhatnagar has stated that there was smell of alcohol from the respondent-accused, but at the same time she has also stated that he was conscious, well behaved, cooperative and well oriented in time and place at the time of his medical examination. It is also relevant to notice that accident had taken place at 7.30 p.m. and respondent-accused was examined at 9.00 p.m. on the very same day.
“In view of aforesaid facts and circumstances, for more than one reasons appearing as cause of accident, two of which could not be attributed to respondent-accused, it cannot be said with certainty that accident had taken place only for the reason as alleged by prosecution. Thus, benefit of doubt is to be extended to the respondent-accused. Therefore, I do not find any reason to interfere with the judgment passed by the trial Court acquitting the respondent-accused of the notice of accusation put to him,” ordered the Court, dismissing the appeal.