IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 182 of 2002. Date of decision: 19.12.2008 State of H.P. ... Appellant Versus Mohan Lal … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mrs. Shubh Mahajan, Deputy Advocate General. For the respondent: Mr. R.K. Gautam, Senior Advocate with Mr. Naveen K. Bhardwaj, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the State of H.P under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Kandaghat, dated 30.7.2001, vide which the respondent was acquitted of the notice of accusations put up to him under Sections 279, 337, 338 I.P.C. read with Section 185 of the Motor Vehicles Act. Briefly stated, the facts of the case are that on receipt of an information on 7.7.1998, at 6.40 P.M., at Police Station Kandaghat, that an accident had taken place at Dolag, a Police Officer proceeded to the spot and thereafter, went to the hospital, recorded the statement of complainant PW-1 Ritanjli. She alleged in her statement given under Section 154 Cr.P.C. that she was going alongwith her husband PW-2 Rajan Kumar alongwith one daughter of her and two other children. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - The vehicle was being driven by her husband and she was sitting on the left side of the Maruti Car. When they reached near place at Dolag turning, a truck being driven by the respondent came from the opposite side and when it was trying to over take another truck, it struck against their car, which was damaged and they suffered injuries. On this report, a case was registered and after investigation, the challan was filed as against the respondent before the learned trial Court, who tried the respondent, leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record. Coming to the findings recorded by the learned trial Court under Section 185 of the Motor Vehicles Act that the prosecution has failed to prove that the respondent was under the influence of liquor at the time of occurrence. The learned trial Court had referred to the testimony of PW-7 Dr. N.K. Gupta, who had examined the respondent on that date and has given his opinion Ext. PW7/A. A perusal of the MLC shows that he had taken the blood and urine samples but he had failed to state in his statement on oath that these samples were taken by him at that time. However, he failed to state as to whom the samples were given. The prosecution has failed to examine any witness or filed his duly attested affidavit in the alternative that he took the samples to the office of Chemical Examiner and deposited there safely. In the absence of this part of the evidence, the report of the Chemical Examiner Ext. PY cannot be linked with the respondent and, therefore, those findings of learned trial Court holding that the prosecution has failed to prove their case under Section 185 of the Motor Vehicles Act, calls for no interference. - 3 - Coming to the evidence under Sections 279, 337 and 338 I.P.C., PW-1 Ritanjli has stated that they were going from Shimla to Chandigarh and truck was coming from the opposite side and it was trying to over take another truck. She stated that her husband applied the brakes and stopped the car on the left side of the road on the katcha portion. However, the truck struck with their car and dragged it backward to a distance of 30 feet. Their vehicle struck with the parapet and then stopped. She, her husband and children suffered injuries. In cross-examination, she admitted that the accident took place on a turning. She stated that their vehicle was going at a slow speed but did not state about the speed. However, she denied the suggestion that her husband was driving the Maruti Car at the speed of 60 KM per hour at that time. She was confronted with her statement made to the police, wherein she has not alleged that the driver of the truck was under the influence of liquor. PW-2 Rajan Kumar, husband of PW-1 Ritanjli, was driving the car. He stated that when they reached near Kandaghat at a place known as Dolag, a truck came on the wrong direction and struck with their vehicle and hit his car on the driver’s side. He stated that after hitting the car, the truck dragged the car backward for a distance of 30 feet and it struck with a parapet and then stopped. He had stated that he had seen the truck at the time of accident. He had applied the brakes and half portion of his vehicle was on the katcha portion of the road and the half on the metalled. He stated that his vehicle had stopped almost. However, in his cross- examination, he has stated that he was going at the speed of 40 and his vehicle was in the third gear at that time. In case, his vehicle was at the third gear at that time, it cannot be said that the vehicle had stopped after application of the brakes by this witness. He has stated that he - 4 - had put the vehicle in the first gear, which also suggests that the vehicle had not been stopped since it was required to be in the neutral at that time. He however, stated that his vehicle almost stopped at that time. From the perusal of the statements of both the witnesses that they had not stated about the probable speed of the truck at the time of the accident. They had not specifically stated about the manner in which the accident took place and it can only be inferred that the respondent was over taking his truck when he was coming from the opposite side and he had struck his vehicle on the right side of the portion of the car being driven by PW-2 Rajan Kumar which was coming from the opposite direction. From the evidence an inference can be drawn in regard of the manner in which the accident took place. However, it is difficult to assume a to how the vehicle was pushed backward for a distance of 30 feet as stated by the witnesses. The view taken by the learned trial Court on the basis of the evidence cannot be said to be perverse keeping in view the fact that there is nothing specific in regard to the speed or the manner of negligence of respondent and, therefore, the final findings recorded by the learned trial Court cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged forthwith. (V.K. Ahuja), December 19, 2008 Judge (BSS) - 5 -