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Himachal Pradesh High Court · body

2016 DIGILAW 1420 (HP)

Karam Chand v. State of Himachal Pradesh

2016-07-18

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant revision petition stands preferred hereat by the accused his standing aggrieved by the concurrently recorded renditions of both the Courts below whereby he stands convicted and consequently sentenced in the manner as encapsulated therein for his committing an offence punishable under Sections 279 of the Indian Penal Code. 2. The brief facts of the case are that on 3.8.2001 a telephonic message was received at Police Station Kumarsain from a bus conductor at Khekhar at about 5.45 p.m. about the collision between a bus and truck. Thereafter the I.O. Madan Singh accompanied by another police official proceeded to the spot where the complainant Devki Nandan lodged statement under Section 154 Cr.P.C alleging therein that he was driver of bus bearing No. HP-51-4774 and on that day he started from Shimla to Rampur at 1 p.m. and when reached near Khekhar at 5.15 p.m. a truck bearing No. HP-22-4444 coming from Rampur side with a fast speed hit the bus driven by him. The truck driver appeared under intoxication and committed accident due to rash and negligent driving. On the basis of this statement F.I.R was recorded. The Investigating Officer prepared site plan and during investigation blood and urine samples of the petitioner were also collected and after completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused challan was prepared and filed in the Court. 3. Notice of accusation stood put to the accused by the learned trial Court for his committing offences punishable under Sections 279 IPC, and Sections 181 and 185 of the Motor Vehicles Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. However, he chose to lead Ext.DX, copy of driving license, in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing offences punishable under Section 279 IPC besides convicted him for his committing offences punishable under Sections 181 and 185 of the Motor Vehicles Act. However, he chose to lead Ext.DX, copy of driving license, in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing offences punishable under Section 279 IPC besides convicted him for his committing offences punishable under Sections 181 and 185 of the Motor Vehicles Act. However, the learned appellate Court acquitted the accused for his committing offences under Section 181 and 185 of the Motor Vehicles Act whereas it sustained his conviction under Section 279 IPC. 6. The accused stands aggrieved by the findings of conviction recorded by both the Courts below for his committing an offence punishable under Section 279 of the Indian Penal Code. 7. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by both the Courts below standing not based on a proper appreciation of evidence on record, rather theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal. 8. On the other hand, the learned Deputy Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. 9. This Court with the able assistance of the learned counsel on either side has with studied care and incision evaluated the entire evidence on record. 10. Truck bearing No. HP-22-4444 driven at the relevant time by the accused collided at the site of occurrence with the bus driven by the complainant/ victim. The accident which occurred inter se the vehicles aforesaid stands canvassed by the prosecution to be a sequel to the accused negligently driving the truck aforesaid. It is apparent from a perusal of the report of the FSL concerned qua 162.2 milligram and 270.3 milligram per-centum of alcohol standing detected in the respective blood and urine samples of the accused/revisionist. The accident which occurred inter se the vehicles aforesaid stands canvassed by the prosecution to be a sequel to the accused negligently driving the truck aforesaid. It is apparent from a perusal of the report of the FSL concerned qua 162.2 milligram and 270.3 milligram per-centum of alcohol standing detected in the respective blood and urine samples of the accused/revisionist. The presence of heavy quantum of alcohol in the blood and urine samples of the accused per se rendered him to stand deprived of his cognitive faculties also hence he stood disabled to manoeuvre his vehicle bereft of his plying it in adherence to the norms of due care and caution. The inference aforesaid stands garnered by the provisions of Section 185 of the Motor Vehicles Act, which stands extracted hereinafter:- 185. Driving by a drunken person or by a person under the influence of drugs.– Whoever, while driving, or attempting to drive, a motor vehicle - [(a) has, in his blood, alcohol exceeding 30 mg. Per 100 ml. of blood detected in a test by a breath analyser, or ] (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two year, or with fine which may extend to three thousand rupees, or with both. wherein there is a marked display qua percentum of alcohol beyond 30 mg. per 100 ml. in the relevant blood sample of the accused being a grossly impermissible limit, rendering the presence of 162.2 ml.gram percentum of alcohol, as displayed by FSL report, in the blood samples of the accused to be excessively beyond the statutory permissible limit. Apparently, the legislature while prescribing therein the permissible limit of presence of alcohol in the blood samples of the accused had in mind the salutary purpose of only minimality of presence of alcohol in the blood sample of the accused not depriving him of his cognitive faculties nor rendering him handicapped to safely ply his vehicle on the road. Apparently, the legislature while prescribing therein the permissible limit of presence of alcohol in the blood samples of the accused had in mind the salutary purpose of only minimality of presence of alcohol in the blood sample of the accused not depriving him of his cognitive faculties nor rendering him handicapped to safely ply his vehicle on the road. Contrarily, when the presence of percentum of alcohol in the blood sample of the accused is beyond the statutory limit prescribed in the apt provisions concomitantly statutorily rendered him to be incapable of exercising proper control of his vehicle. As a corollary with a grossly statutorily impermissible percentum of alcohol standing detected in the relevant blood sample of the accused coaxes this Court to conclude of the accused per se standing statutorily mandated to stand deprived of his cognitive faculties also weans a conclusion of his not safely plying his vehicle at the relevant site of occurrence rather his departing from adhering to the standards of due care and caution. In aftermath with the statute underpinning un-rebuttable presumption of the accused on his blood sample holding alcohol beyond the statutorily prescribed limit, statutory limit whereof as held in the relevant blood sample of the accused stands palpably breached, in sequel with the unrebuttable statutory presumption of his hence being incapable of exercising proper control over his vehicle warranting its standing drawn negates the submissions of the learned counsel for the petitioner of yet his not being negligent in driving his vehicle. With the conclusion formed hereinabove of the accused standing deprived of his cognitive faculties given the factum of excessive presence of alcohol in his blood sample, he is to be also concluded to wander astray from the appropriate portion of the road to its inappropriate portion whereat the vehicle driven by the accused was alone enjoined to occupy. In sequel, the collision which occurred inter se the vehicle driven by the accused with the vehicle driven by the complainant is to be concluded to stand aroused by the negligent manner of driving of the apposite vehicle by the accused. In sequel, the collision which occurred inter se the vehicle driven by the accused with the vehicle driven by the complainant is to be concluded to stand aroused by the negligent manner of driving of the apposite vehicle by the accused. Furthermore, the eye witnesses to the occurrence in their respective depositions on oath ascribe therein with harmony an inculpatory role to the accused constituted by his swerving his vehicle to the inappropriate side of the road whereat the vehicle driven by the complainant was located hence begetting a collision inter se both the vehicles. The depositions of the eye witnesses to the occurrence qua the ill fated occurrence standing begotten by the negligent manner of driving of the accused, deposition whereof as stand comprised in their respective examinations in chief remain unstained by theirs making any communications in contradiction thereto in their respective cross-examination. Consequently, the depositions rendered qua the ill fated occurrence by the eye witnesses thereto acquire credibility. Lastly, the counsel for the accused/revisionist has submitted of with PW-8 deposing qua his at the time his examining the accused his observing him to be inebriated yet his voicing therein of the accused not displaying any visible signs of his being under its influence renders the apposite findings recorded by the FSL concerned to stand rebutted. However, when the opinion aforesaid voiced by PW-8 in his deposition emanated on his visually discerning the demeanor of the accused whereas it did not obviously spur from his subjecting the blood and urine samples of the accused to analyses, samples whereof on theirs standing analyzed by the FSL, Junga unraveled qua presence respectively in the blood and urine samples of the accused of 162.2 mg.gram and 270.3 mg.gram percentum of alcohol renders it to acquire prominence its constituting the best evidence in portrayal of the accused/revisionist labouring under the influence of alcohol. Imperatively when the report of the FSL holds evidentiary leverage contrarily the testimony of PW-8 in rebuttal thereof will not, it, remaining unanvilled on the relevant tests, be construed to be holding any sinew to repel the personifications existing in the report of the FSL. Imperatively when the report of the FSL holds evidentiary leverage contrarily the testimony of PW-8 in rebuttal thereof will not, it, remaining unanvilled on the relevant tests, be construed to be holding any sinew to repel the personifications existing in the report of the FSL. Also with the fastening of statutory presumption of negligence upon the accused arising from the statutorily impermissible limit of alcohol held in his relevant blood sample, gross impermissibility whereof stands displayed in the report of the FSL, renders the statutory presumption of negligence imputed hence to the accused to stand galvanized with full might vis-a-vis the accused. In sequel the concurrently recorded findings of conviction and sentence against him by both the Courts below under Section 279 IPC stand affirmed. 11. In view of the above discussion, I find no merit in this petition, which is accordingly dismissed. The judgment of conviction and sentence recorded against the accused by the learned Additional Sessions Judge, Kinnaur at Rampur District Shimla is maintained and affirmed. As the accused/revisionist is on bail, his bail bonds are cancelled. He be taken into custody forthwith to suffer the sentence. Necessary follow up action be taken by the Registry forthwith.