IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 549 of 2004. Date of Decision: 10th August, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Sahi Ram …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K. Bansal, Additional Advocate General and Mr. P.M. Negi, Deputy Advocate General. For the respondent: Mr. T.C. Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral) The respondent was acquitted by the learned trial Court for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and Section 185 of the Motor Vehicles Act for drunken driving. 2. Heard and gone through the record. 3. Precisely, the facts on which the respondent was put on trial can be stated thus. On 20.12.2001 at about 5.50 PM, the respondent was coming on his scooter bearing registration No.HIA-1187 from Shimla side and going to Jubber-Hatti with pillion rider PW8 Anil Mehta Whether reporters of the Local papers are allowed to see the judgment? - 2 - and is alleged to have hit PW4 Shiv Prashad Bahuguna, an employee of the CISF Department resulting in grievous as well as simple injuries on his person. Report Ext.PW1/A was lodged by PW1 Sub Inspector Vijay Kumar of CISF with the police vide report Ext.PW9/A. Police also recorded his statement under Section 154 of the Code of Criminal Procedure which culminated into FIR Ext.PW12/A for the aforesaid offences. Injured Shri S.P. Bahuguna was got medially examined from PW13 Dr. Shivani Mahajan. Injuries sustained by him were also got X-rayed. His Medico-Legal Certificate is Ext.PW13/A. Police visited the spot, prepared the site plan of the place of alleged accident and took the photographs during investigation. Statements of the witnesses were also recorded under Section 161 of the Code of Criminal Procedure. The respondent was arrested and his urine and blood samples were taken and sent for forensic examination. As per examination, the blood contained 97.8 MG% contents of alcohol and 69.0 MG% in urine. After completing investigation, Challan was presented against the respondent for the offences aforesaid. 4. Notice of accusation was put to him for the offences under Sections 279, 337 and 338 of the Indian Penal Code and also under Section 185 of the Motor - 3 - Vehicles Act. The respondent pleaded not guilty and claimed trial. 5. To prove its case the prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. He admitted that at the relevant time he was driving the scooter in question and Shri Anil Mehta was the pillion rider, but denied the rash and negligent act of driving. No evidence in defence was led. 6. At the end of trial, the learned trial Court acquitted the respondent noticing material contradictions in the statements of the witnesses and arrived at the conclusion that the prosecution failed to prove the rash or negligent act of driving by the respondent. 7. I have meticulously examined the evidence on record. 8. PW4 S.P. Bahuguna is the injured witness. He stated that he was on the left side of the road and the scooter in question struck against him with the result he fell down. His two teeth got fractured. Thereafter he was got medically examined. He also stated that, at that time he was accompanied by PW2 Hem Raj and PW1 Sub Inspector Vijay Kumar of CISF, but thereafter he corrected himself and stated that they were not with him but were standing at a distance near the - 4 - Departmental vehicle which was being unloaded on the other side of the road. Pertinently, in cross- examination he admitted that the scooter was on its left side of the road and he could not spell out what was the speed of the scooter. Further, he stated that his back came in contact with the scooter, he did not sustain any injury on his back. 9. PW2 Hem Raj in his endeavour to corroborate the testimony of the injured though stated that the scooterist was driving the scooter in a high speed, but in cross-examination he could not spell out what could be the approximate speed of the scooter. He also admitted in his cross-examination that the respondent was driving the scooter on his left side of the road. PW1 Vijay Kumar Inspector of CISF also made a statement similar to that of PW2 and in examination-in-chief stated that the scooterist was on the wrong side of the road and was rashly and negligently driving the vehicle. He also stands contradicted in his cross- examination while he admitted that the scooterist was driving the scooter on his left side of the road and at that time he was standing at a distance of 50 feet away from the place of accident on the right side of the road. He stated that he saw the scooter when the - 5 - accident had taken place and he could guess about the speed by its sound. 10. PW13 Dr. Shivani Mahajan proved on record the Medico-Legal Certificate of the injured (Ext.PW13/A) and also fracture of the teeth by PW5 Ashwani Kumar, Radiologist, which could be the result of the motor- vehicular accident. But merely because the accident had taken place, the inference of rash and negligent act of driving cannot be drawn. For that the prosecution is obliged to prove that the alleged offending vehicle was being driven by its driver on a public highway in a rash and negligent manner. It is also well settled that the speed is not criteria even to assess the above factors, which constitute the offence. It has to be clearly established on the record that it was the driver of the offending vehicle that he was rash or negligent in driving the vehicle on a public way which endangered human life and caused accident. 11. In the instant case, the prosecution evidence is quite flickering. The statements of the witnesses are inconsistent with respect to speed and alleged over- act. Some say that it was 10-15 K.M. per hour and some could not even assess it. The pillion-rider also did not support the case of the prosecution. He turned hostile. - 6 - 12. Therefore, in the totality of the above circumstances, in my considered opinion, the ingredients of the offences charged could not be proved also the Motor Vehicles Act. There is also no evidence on record to show that the urine and blood samples which were taken by PW13 Dr. Shivani Mahajan were kept in refrigerator to avoid purification and was transmitted for forensic examination within 24 hours. Therefore, the respondent was rightly acquitted by the learned trial Court as the prosecution has failed to prove its case beyond reasonable doubt. As such, the appeal sans merit and is dismissed. 13. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. August 10, 2011. (Surinder Singh), J. (rc)