IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 23 of 2005 Judgment reserved on : 31.10.2011 Date of decision: 6.12.2011 Ashwani Kumar …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. N.K.Thakur, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge The convict has filed this revision against judgment dated 3.1.2005 passed by Sessions Judge, Una in Criminal Appeal No. 6 of 2003 affirming judgment dated 17.7.2003 of Additional Chief Judicial Magistrate, Court No.1, Una in Case No.RBT-47-II-96/95. 2. The prosecution case, in brief, is that on 31.1.1995 between 9.00 p.m. to 12. 00 p.m. C. Hoshiar Singh, HHG Sehdev Singh, HHG Kalyan Singh, LHC Dina Nath and HHG Jagdish Chand were on duty at Mehatpur Barrier. At about 10.10 p.m. a truck __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 bearing registration No. PBW-7923 came from Mehatpur side in rash and negligent manner, broke barrier then moved towards right side and hit another vehicle bearing registration No. HIU 4469 which was standing on the right hand side. In the process, wooden pole was broken and a part of broken wooden pole hit HHG Yash Pal, who was standing near the water tank on the right hand side of the road. He fell down and became unconscious on the road and was taken to Civil Hospital, Una. The petitioner was found driving the vehicle under the influence of the liquor. 3. C. Hoshiar Singh gave intimation of the accident on telephone to the Police Station vide rapat roznamcha Ex.PW-18/A. S.I. Sansar Chand with his team visited the spot. The statement under Section 154 Cr.P.C. Ex.PW-5/A of C.Hoshiar Singh was recorded and on that basis FIR Ex.PW-16/A was registered and an endorsement was made on rukka Ex.PW-16/B. The site plan Ex. PW-18/C was prepared and truck No. PBW-7923 was taken into possession vide memo Ex.PW-6/A. The petitioner was got medically examined and medical report Ex.PW-3/A was obtained. It was opined that accused had consumed alcohol. 4. The medical report Ex.PW-2/A of HHG Yash Pal and X-ray report Ex.PW-1/A were obtained. The photographs of the spot Ex.P-6 to Ex.P-10, negatives Ex.P-1 to P-5 were taken. The mechanical report of truck No.PBW-7923 Ex.PW-10/A was also obtained. On completion of investigation, challan was submitted to the Court. The notice of accusation for commission of offences 3 punishable under Sections 279, 337, 338 IPC and Sections 181/185 of the Motor Vehicles Act, 1988 was put to petitioner, who pleaded not guilty and claimed trial. 5. The prosecution has examined 18 witnesses in order to prove its case. The statement of petitioner under Section 313 Cr.P.C. was recorded. He pleaded his innocence. He admitted that on 31.1.1995 at about 10.10.p.m. he was driving truck No. PBW-7923 at Mehatpur. He did not lead defence evidence. On conclusion of trial the Additional Chief Judicial Magistrate on 17.7.2003 acquitted the petitioner for offence punishable under Section 185 of the Motor Vehicles Act but convicted the petitioner for offences punishable under Sections 279, 337 and 338 IPC and sentenced the petitioner to undergo simple imprisonment of three months and fine of ` 500/- under Section 279 IPC, 3 months under Section 337 and 6 months under Section 338 IPC. In default of payment of fine, the petitioner was ordered to further undergo simple imprisonment for a period of 15 days. The sentences were ordered to run concurrently. In appeal, the Sessions Judge, on 3.1.2005 affirmed the judgment and sentence of the petitioner recorded by the Additional Chief Judicial Magistrate on 17.7.2003, hence accused has come in revision. 6. I have heard the learned counsel for the petitioner and learned Additional Advocate General and have also gone through the record. PW-1 Rangila Ram Rao, Radiographer has proved Skigrams Ex.P-1 and Ex.P-2 and X-ray report Ex.PW-1/A of Yash 4 Pal. PW-2 Dr. M.L.Nadda, has stated that he examined Jaspal Singh on 31.1.1995 and proved MLR Ex.PW-2/A. On the basis of skigrams Ex.P-1, Ex.P-2 and X-ray report Ex.PW-1/A, he declared injuries No. 2 and 4 grievous and injury No.3 simple, which can be caused in an accident. 7. PW-3 Dr. Vinod Kumar Sharma has examined Ashwani Kumar on 31.1.1995 and issued MLR Ex.PW-3/A. In his opinion, the person had consumed alcohol, but not intoxicated. In cross- examination, he has stated that his opinion regarding Ashwani Kumar had consumed alcohol was based on clinical observation. PW-4 LHC Dina Nath has stated that on 31.1.1995 he was on duty at Mehatpur Barrier from 9.00 p.m. to 12.00 p.m. At about 10.00 p.m. truck bearing registration No. PBW-7923 came in high speed from Mehatpur side had crossed the police barrier struck against truck No. HIU 4469 and stopped at right side of the road. Yash Pal HHG was standing near water tank, who sustained injuries due to breaking of barrier and fell down. He was taken to hospital. Ashwani Kumar was driving the truck No. PBW-7923 under the influence of liquor. The accident took place due to rash and negligent driving of Ashwani Kumar. In cross-examination, he has stated that pole of the barrier was covering metalled road. He has denied that petitioner has been falsely implicated in the case. 8. PW-5 C. Hoshiar Singh has stated that on 31.1.1995 he was on duty from 9.00 p.m. to 12.00 p.m. He has stated that LHC Dina Nath, HHG Jagdish Chand and others were also on the duty. 5 Yash Pal, HHG was also standing there. At about 10.10. p.m., a truck bearing registration No. PBW-7923 came in high speed from Mehatpur side to Nangal. The truck broke the barrier and struck truck bearing registration No. HIU-4469. The moment truck No. PBW-7923 struck the barrier, the barrier broke down and hit Yash Pal, HHG, who sustained injuries. He was taken to hospital. The driver of truck No. PBW-7923 was over powered. He was under the influence of liquor. He disclosed his name Ashwani Kumar. The police recorded his statement Ex.PW-5/A. In cross-examination, he has stated that the pole of the barrier was down. On the opposite side of the barrier towards Nangal side only one truck was parked. It was on right side when one goes from Una to Nangal. He has shown his ignorance that the Excise Department officials were having altercation with the owner of truck No. 4469 and were demanding money from him. He denied that truck in question was not in high speed. 9. PW-6 Madan Lal has stated that he has residence near Mehatpur Barrier. On coming to know the accident, he went to the spot, one Home Guard Jawan sustained injuries. He did not support the prosecution, he was declared hostile and was cross-examined by the Prosecutor. In cross-examination, he has stated that he had seen Home Guard Jawan had sustained injuries, who was taken to hospital. He has stated that truck No.PBW-7923 was taken into possession vide Ex.PW-6/A. PW-7 Jagdish Chand has stated that in the year 1995 he was in Home Guard and on 31.1.1995 he was on 6 duty at Mehatpur Barrier between 9.00 p.m. to 12.00 p.m. Dina Nath, Hoshiar Singh were also on duty. At about 9.30 p.m. truck bearing registration No. PBW-7923 came from Mehatpur side in high speed and struck against another truck No. HIU-4469 after breaking the barrier. The barrier was broken with the impact and a part of it hit Yash Pal, who sustained injuries. He was taken to hospital. In cross- examination, he has stated that the pole of the barrier was down. 10. PW-15 Yash Pal has stated that in the year 1995 he was posted at Mehatpur as HHG. He was on duty from 6.00 to 10.00 p.m. At the time of the accident, he was standing near the barrier. The truck No. PBW-7923 came from Mehatpur side in high speed struck against the barrier and crossed the barrier after breaking the same. He was hit on the chest due to breaking of the barrier. The petitioner was driving the truck. At that time Kalyan Singh, Dina Nath, Hoshiar Singh were also on the barrier. The accident took place due to rash and negligent driving of the petitioner. In cross- examination, he has stated that at barrier the road divides into two and on both sides there are poles. He was standing on the right side when one goes Una to Nangal. The other truck was beyond barrier towards Nangal side and was on left side when one goes from Nangal to Una. 11. PW-18 Inspector, Sansar Chand has stated that statement of Hoshiar Singh under Section 154 Cr.P.C. Ex.PW-5/A was recorded. He prepared site plan Ex.PW-18/C. In cross- examination, he has stated that in site plan Ex.PW-18/C Mehatpur is 7 shown on North side and Nangal on South side. He has denied that petitioner has been falsely implicated in the case. The petitioner in his statement under Section 313 Cr.P.C. has admitted that on 31.1.1995 at about 10.10 p.m. he was driving truck No. PBW-7923 at Mahatpur. He has pleaded his innocence. 12. It has been contended by the learned counsel for the petitioner that the Courts below have misconstrued and misinterpreted the evidence on record. The site plan Ex.PW-18/C has not been prepared as per the position on spot. PW-15 Yash Pal has stated that road at barrier divides into two and on both sides there are poles. It has been submitted that PW-4 LHC Dina Nath has stated that Yash Pal, HHG was standing near water tank. In site plan Ex.PW-18/A, water tank has been shown at point ‘E’ and as per site plan, Yash Pal was standing near point ‘F’. It has been submitted that it is not the prosecution case that petitioner was driving the truck on wrong side. 13. It has been argued that divider of the road which has come in the statement of PW-15 Yash Pal has not been shown in site plan Ex.PW-18/C. The truck PBW-7923 could come to point ‘E’ or ‘F’ shown in site plan Ex.PW-18/C only after crossing the road divider when the truck was proceeding from North to South in site plan Ex.PW-18/C. In the process, marks of crossing of the truck over the divider would come but what to talk of marks on the divider in site plan Ex.PW-18/C even road divider has not been shown. It creates suspicion in the prosecution story. It has been submitted that 8 possibility cannot be ruled out that the petitioner has been falsely implicated in the case. In any case, the prosecution is to stand on its own feet and not on the weakness of the defence. 14. The learned counsel for the petitioner has also argued that there are discrepancies regarding the position of pole barrier and whether the pole itself hit PW-15 Yash Pal or a broken piece of the barrier hit PW-15. It has been submitted that the foundation of the prosecution story that the petitioner was driving the truck under the influence of liquor has been rejected by the Courts below. In these circumstances, submission has been made for acquittal of the petitioner. 15. The trial Court in the judgment has observed that alcohol should be present in the blood which can be determined by chemical analysis report. The blood sample was taken but the report is not on the record to prove this and, therefore, trial Court acquitted the petitioner under Section 185 of the Motor Vehicles Act. This observation of the trial Court is contrary to record. FSL report Ex.PW-18/G in FIR No. 51 of 1995 P.S. Una is on record of the trial court file. The present case has arisen out of FIR No. 51 of 1995 P.S.Una. FSL report Ex.PW-18/G indicates 128.3mg% quantity of alcohol in blood sample of petitioner. Section 185 of the Motor Vehicles Act, provides whoever, while driving, or attempting to drive, a motor vehicle, has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test shall be punishable as provided in the Section. As against 30 mg alcohol per 100 ml. alcohol in the blood 9 sample of the petitioner alcohol was found 128.3mg% per 100 ml. The quantity of alcohol found in the blood of the petitioner indicates that the petitioner has taken excessive alcohol when he was driving the truck at the time of the accident. The petitioner has been acquitted under Section 185 of the Motor Vehicles Act by the Courts below, therefore, he cannot be convicted under Section 185 of the Motor Vehicles Act. But report Ex.PW-18/G is relevant for considering the rash and negligent act of petitioner under Sections 279, 337 and 338 IPC. 16. It has been proved on record that PW-4 LHC Dina Nath, PW-5 Hoshiar Singh, PW-7 Jagdish Chand were on the spot on 31.1.1995 when petitioner broke the barrier which hit PW-15 Yash Pal, who sustained serious injuries. PW-4 has stated that truck No. PBW-7923 came in high speed from Mehatpur side, crossed the police barrier. Yash Pal, HHG who was standing near water tank sustained injuries due to breaking of barrier. Ashwani Kumar was driving the truck under the influence of liquor. The accident took place due to rash and negligent driving of Ashwani Kumar. PW-5 Hoshiar Singh has also stated that truck PBW-7923 came in high speed from Mehatpur side to Nangal, broke the barrier and barrier hit Yash Pal, HHG, who sustained injuries. The driver of truck No PBW-7923 was under the influence of liquor. 17. PW-6 Madan Lal was declared hostile but he has stated that Home Guard Jawan had sustained injuries who was taken to hospital. PW-7 Jagdish Chand has stated that truck No. PBW-7923 10 came from Mehatpur side in high speed and broke barrier and a part of it hit Yash Pal, who sustained injuries. PW-15 Yash Pal has stated that truck No. PBW-7923 came from Mehatpur side in high speed struck against barrier, crossed the barrier, he was hit at chest due to breaking of the barrier. The accident took place due to rash and negligent driving of the petitioner. 18. Ex.PW-2/A is the MLR of HHG Yash Pal whereas X-ray report Ex.PW-1/A. The injuries No. 2 and 4 were grievous and injury No. 3 simple which has been caused in accident. The petitioner in his statement under Section 313 Cr.P.C. has admitted that he was driving truck No.PBW-7923 at about 10.10.p.m. on 31.1.1995 at Mehatpur. 19. The statement of PW-15 Yash Pal injured that road at barrier divides into two and both sides there were poles cannot be over-stretched. PW-15 has not stated that there was road divider at the place of accident. In any case, it has not come in the statement of PW-15 exactly at what place the road divided into two nor it has come in the statement of PW-15 that truck could not have come from left to right side at point ‘E’ and ‘F’ shown in the site plan Ex.PW- 18/C without crossing or hitting road divider. There is over-whelming evidence on record that truck was proceeding from Una to Nangal side and in the process broke the road barrier which in turn hit PW-15 Yash Pal, who was standing at point ‘F’ shown in site plan Ex.PW-18/C and truck took turn towards right side and hit another 11 truck No. HIU-4469. The petitioner was driving the truck at the time of accident under the influence of liquor. 20. There is no force in the contention of the learned counsel for the petitioner that there are discrepancies in the statements of PWs whether barrier pole itself hit PW-15 or a portion of the barrier pole hit PW-15. The accident took place on 31.1.1995 and the statement of PW-4 was recorded on 14.8.1997 and other witnesses thereafter, such minor variations in the statements are natural but in substance all the material witnesses PW-4, PW-5, PW-7 and PW-15 have proved that PW-15 Yash Pal sustained injuries due to the impact of barrier which broke when truck driven by the petitioner under the influence of liquor hit the barrier. The medical evidence has also proved the injuries sustained by PW-15. PW-6 Madan Lal, who was declared hostile has also admitted that Home Guard Jawan had sustained injuries in the accident. Thus, the prosecution has proved the rash and negligent driving of petitioner under the influence of liquor as a result of which PW-15 sustained injuries. The two Courts below have rightly appreciated the material on record. There is no mis-construction and misinterpretation of the evidence on record. In revision the evidence cannot be re- appreciated. However, in order to consider the legality and propriety of the impugned judgment, the evidence was again considered. 21. The learned counsel for the petitioner has submitted that lenient view may be taken, the accident took place on 31.1.1995. In the judicial process time is consumed to decide the 12 case. The accident cases are increasing. In the present case the petitioner was heavily drunk and was driving the truck without bothering that driving by him in that condition was not only dangerous to him but to the public on road also. He did not care for the safety of others on the road. In these circumstances, the sentence imposed by the two Courts below on the petitioner cannot be said to be excessive. Thus, seen from any angle, there is no merit in the revision which is dismissed. The bail bonds of the petitioner are cancelled. He is directed to surrender immediately to serve out the sentence imposed. December 6, 2011. ( Kuldip Singh ), (GR) Judge.