1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 728 of 2001. Date of Decision: 22-12-2008. ____________________________________________________________ State of H P. Appellant. Versus Prem Sharma. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? . For the appellant : Sh. J.S. Guleria, Law Officer. For respondent : Shri Pt. Om Parkash Advocate. _________________________________________________________ Surinder Singh, J . (oral) The State has challenged the acquittal of the respondent-driver of Tata Sumo bearing registration No. HP-57-0087 in Criminal case No. 59-II of 2000 decided on 10-8-2001 by learned trial Court under Section 279, 337, 338 and 304-A of the Indian Penal Code. The respondent was put on trial on the allegations that on 9-3-2000 at about 5.15 P.M, he was driving the aforesaid Tata Sumo in a rash and negligent manner in Rait Bazar in District Kangra, in the mean time, Scooter No. UP-07-H-0461 which was being driven by PW7 Raj Kumar with Om Parkash as pillion rider came from the opposite side and Tata Sumo dashed against it in front of the shop of PW1 Rajesh Kumar. Serious injuries were caused to Om Parkash as well as PW7 Raj Kumar, both were immediately removed to the Hospital where they were got medically examined, thereafter Om Parkash died because of the injuries Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 and his autopsy was performed by Dr. A.K. Sharma who issued the post mortem report Exhibit PW11/A. The police visited the spot, recorded the statement of Rajesh Kumar shop keeper under Section 154 of the Code of Criminal Procedure on the basis of which F.I.R. was lodged. The police had also prepared the site plan of the place of incident and took the photographs. By that time, the injured were already removed to the Hospital in the said Tata Sumo. The viscera of the deceased Om Parkash was sent for forensic examination and its report Exhibit PA was received. Both the vehicles were got mechanically examined and after completion of the challan, it was presented in the Court for the trial of the respondent under the aforesaid Sections. Finding a prima facie case for the offences aforesaid, notice of accusation was put to the respondent to which he pleaded not guilty and claimed trial. To prove its case the prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. Although he admitted himself to be the Driver of the Tata Sumo but he denied that the accident had taken place on account of his rash and negligent driving. He specifically raised the defence that he was on the left side of the road. The speed of his vehicle was moderate and pleaded that the scooterist was rash and negligent in driving his scooter and there was also a heap of bricks on the side of the road, the scooterist could not control his scooter and knocked it against his vehicle. However, no evidence in defence was led by him. At the end of the trial, the respondent was acquitted which is assailed in this appeal. Shri J.S. Guleria, Law Officer for the State has vehemently argued that the learned trial Court did not appreciate the evidence of the 3 prosecution in the right perspective and it discarded the well reasoned and consistent testimonies of the material witnesses without any valid reasons. Contra, Pt. Om Parkash, learned counsel for the respondent has supported the impugned judgment of acquittal recorded by the learned trial Court. I have given my thoughtful consideration to the rival contentions of the parties and have carefully re-appraised the evidence on record. Both the vehicles in question were mechanically examined and there is no plea that any of the vehicle was having any mechanical defect. The accident had taken place on the National Highway in front of the shop of PW1 Rajesh Kumar. Rajesh Kumar has testified on oath that the scooterist was coming with the pillion rider from Gagal side and at the point of accident, there was a heap of bricks on the main road blocking the view. In his opinion, there was poor visibility to the opposite side and that could be the reason for the accident caused by the scooterist. The heap of bricks on the road is also corroborated by Indu Devi PW3, Neelam Kumari PW4 and also by the scooterist PW7 Raj Kumar himself. The scooterist (PW7) has also categorically stated that because of the stacking of the bricks on the road, there was an obstruction. In the light of the above, the statement of the Doctor who had examined the scooterist and pillion rider assumes importance. PW9 Dr. Anupama Kapoor during the medical examination of both the injured immediately after the accident had observed that they were smelling alcohol and talking irrelevant and their behaviour was violent. The police did not apply for preserving the sample of their urine and blood in order to find out the quantity of alcohol present in the blood but however, in the forensic report of viscera pertaining to Om Parkash, it was found to have contained 159.2 mg. alcohols in percentage. The 4 observation made by the Doctor qua the condition of the scooterist, one can well imagine whether he could have driven the scooter in full control of his senses when he was in the fit of intoxication. Further the view of the road was obstructed by the bricks and it is found that the respondent was on his left side of the road, the accident would not have taken place had the scooterist been not rash and negligent. Thus, the defence version stands probablised and there is no cogent and reliable evidence to conclude that it was the respondent who was criminally responsible for causing the accident in question. On having examined the evidence aforesaid, I do not find that the findings of acquittal recorded by the trial court were unreasonable. Accordingly, the judgment of acquittal requires no interference, as such the appeal is dismissed. (Surinder Singh) Judge. December 22, 2008. (bm)