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2011 DIGILAW 2504 (HP)

Darshan Singh v. State of H. P.

2011-10-17

KULDIP SINGH

body2011
JUDGEMENT Kuldip Singh, Judge. This revision is directed against the judgement dated 30.6.2005 passed by the learned Sessions Judge, Una in Criminal Appeal No.12 of 2004 affirming the conviction and sentence imposed by learned Additional Chief Judicial Magistrate, Court No.1, Una on 15/28.6.2004 in case No. 50-II-2001 except under Section 337 IPC. 2. The facts in brief are that on 6.12.2000 at about 5.00 p.m. the petitioner was driving scooter bearing No. HIU-527 on public road in drunken condition in a rash and negligent manner and hit PW 5 Anju Bala, who sustained grievous and simple injuries. The matter was reported to the police by complainant PW 1 Dhanna Singh the grand father of Anju Bala. The injured was medically examined. On completion of investigation, report under Section 173 Cr.P.C. was filed, under Sections 279, 337, 337 IPC and Section 185 of Motor Vehicles Act. 3.The notice of accusation was put to petitioner. He denied notice of accusation and claimed trial. The prosecution has examined ten witnesses and produced several documents to prove the case against the petitioner. The statement of the petitioner was recorded, under Section 313 Cr.P.C., he denied the case and took the defence that he has been falsely implicated in the case. The petitioner, however, has led no evidence in defence. The trial court convicted the petitioner, under Sections 279, 337, 338 IPC and section 185 of the Motor Vehicles Act for various terms as provided in the judgement dated 15/28.6.2004 of the trial court. The learned Sessions Judge in appeal on 30.6.2005 has upheld the conviction and sentence of the petitioner but set-aside the sentence part of the petitioner under Section 337 IPC, hence revision. 4.I have heard Mr. Ajay Sharma, learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General on behalf of the respondent and have also gone through the record. Mr. Ajay Sharma, learned counsel for the petitioner has submitted that the two courts below have relied on MLC Ex. PW 3/B of petitioner in returning the finding that petitioner was driving the scooter under the influence of liquor and hit PW 5 Anju Bala. He has submitted that in MLC of petitioner Ex. PW 3/B the percentage has been mentioned, but it has not been stated this percentage is of what quantity. PW 3/B of petitioner in returning the finding that petitioner was driving the scooter under the influence of liquor and hit PW 5 Anju Bala. He has submitted that in MLC of petitioner Ex. PW 3/B the percentage has been mentioned, but it has not been stated this percentage is of what quantity. He has submitted that the two courts below have misconstrued the evidence on record in convicting the petitioner. The learned Assistant Advocate General has supported the impugned judgement and has submitted that two courts below have recorded a finding of fact that petitioner hit PW 5 Anju Bala due to rash and negligent driving of the scooter. In revision, the evidence cannot be re-appreciated, he has prayed for dismissal of the revision. 5.PW 1 Dhanna Singh has stated that his grand-daughter was standing near the water tank, Darshan Singh was driving the scooter in high speed and hit Anju Bala, as a result of which her left leg got fracture and she sustained injuries on her ear also. She was taken to the hospital. In cross-examination, he denied the suggestion that the girl was standing near the water tank and on seeing the scooter, she all of a sudden tried to cross the road, which caused the accident. 6.PW 2 Kuldip Singh is a witness to recovery. He was declared hostile and was allowed to be cross-examined by the Public Prosecutor. PW 3 Khushi Ram is a witness to the recovery of scooter, he was declared hostile and was cross-examined by the Public Prosecutor. 7.PW 4 Dr. Indu Bhardwaj examined Anju Bala on 6.12.2000 and issued MLC Ex. PW 3/A. PW 4 also examined Darshan Singh and issued MLC Ex. PW 3/B and on examination smell of alcohol was present. The urine and blood samples of the petitioner were also taken, which were sent for chemical examination. In urine and blood samples, the presence of alcohol was found. The injuries mentioned in MLC Ex. PW 3/A can be caused in road accident. In cross-examination, PW 4 has stated that Darshan Singh was in full senses and his activities were normal. 8.PW 5 is the injured Anju alias Ruby. She was nine years of age at the time of examination. On 3.7.2003, the learned Magistrate after satisfying the capability of the witness to make statement has recorded her statement. In cross-examination, PW 4 has stated that Darshan Singh was in full senses and his activities were normal. 8.PW 5 is the injured Anju alias Ruby. She was nine years of age at the time of examination. On 3.7.2003, the learned Magistrate after satisfying the capability of the witness to make statement has recorded her statement. She has stated that on 6th December, she was standing near the road, a scooter came and hit her, as a result of which she sustained injuries. The accident was caused due to rash and negligent driving of the scooter driver. In cross-examination she has denied that she made the statement in the court on the instructions of anybody. She denied that she came on the road running, she denied that while playing she came in front of the scooter and fell down. 9.PW 6 has proved mechanical report Ex. PW 6/A of the scooter and has stated that there was no mechanical defect in the scooter. The statements of other witnesses are not necessary in view of the stand of the petitioner while cross-examining PW 1 and PW 5 that injured came in front of the scooter and fell down. In other words, the petitioner has not denied his presence on the spot nor he has denied the injuries sustained by the injured. The point left is whether the accident has been caused with the rash and negligent driving of the petitioner and whether he was under the influence of liquor at the time of accident. 10. The petitioner in his statement, under Section 313 Cr.P.C. has not stated that injured all of a sudden came in front of the scooter and fell down and sustained injuries. On the contrary, PW 1 and PW 5 have specifically stated that petitioner while driving the scooter hit PW 5 Anju Bala and caused the accident. PW 4 Dr. Indu Bhardwaj has proved MLC Ex. PW 3/A of the injured, which shows injuries on the person of PW 5 and fracture of her left leg. PW 4 has also stated that injuries can be caused in road accident. It does not emerge from the evidence on record that PW 5 has sustained injuries of her own when she fell down on the road. PW 3/A of the injured, which shows injuries on the person of PW 5 and fracture of her left leg. PW 4 has also stated that injuries can be caused in road accident. It does not emerge from the evidence on record that PW 5 has sustained injuries of her own when she fell down on the road. On the contrary, there is specific evidence on record that PW 5 sustained injuries due to rash and negligent driving of scooter by the petitioner which hit PW 5 and caused injuries on her person including fracture of her leg. 11.The learned counsel for the petitioner has submitted that there is no legal evidence on record that petitioner was under the influence of liquor, which caused accident. PW 4 Dr. Indu Bhardwaj has stated that at the time of examination of Darshan Singh smell of alcohol was detected, his urine and blood samples were taken and sent to chemical examination for report. Ex. PW 7/B is the report of Chemical Examiner, wherein alcohol was found in the blood sample of the petitioner 124.7 Mg% and in urine 69 Mg%. This percentage of alcohol in urine and blood sample of petitioner has also been shown in his MLC Ex. PW 3/B. Section 185 of the Motor Vehicles Act provides that whoever while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30Mg per 100 Mg of blood detected in test by a breath analyzer shall be punishable for the first offence with imprisonment which may extend to six months or with fine, which may extend to Rs.2000/- or with both. 12. The learned counsel for the petitioner has argued that in report Ex. PW 7/B unit of blood has not been stated so as to show that 124.7Mg% alcohol was found in how much quantity of blood. This contention has no force as percentage is always against 100 unit. This was clear to the petitioner right from the very beginning, but in any case, if petitioner wanted clarification then he should have got this clarification when PW 4 appeared in the witness box and proved MLC Ex. PW 3/B in which same percentage of alcohol in the samples of urine and blood of the petitioner has been shown, which has been reflected in Ex. PW 3/B in which same percentage of alcohol in the samples of urine and blood of the petitioner has been shown, which has been reflected in Ex. PW 7/B. In revision, it is too late for the petitioner to submit that since unit of blood has not been mentioned in Ex. PW 7/B or in Ex. PW 3/B, therefore, it cannot be said that prosecution has not proved that petitioner was not under the influence of alcohol when he caused the accident. The percentage of alcohol may be relevant for an offence, punishable under Section 185 of the Motor Vehicles Act, but it cannot be said that if a person is not under the influence of alcohol, he cannot be rash and negligent in causing the accident. However, in the present case, the prosecution has proved that petitioner was under the influence of alcohol when he caused the accident by hitting the scooter against PW 5 Anju Bala and caused injuries on her person as detailed in her MLC Ex. PW 3/A. 13. The two courts below have rightly appreciated the material on record in convicting and sentencing the petitioner. It has not been established by the petitioner that view taken by the two courts below is perverse. In criminal revision, the evidence cannot be re-appreciated unless perversity is shown in the judgement, which has not been shown by the petitioner. There is no substance in the revision and the same is dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender immediately to serve out the sentence imposed by the trial court and as upheld by the learned lower appellate court.