CR.R/175/2002 of HARI CHAND Vs STATE on 26 December 2008

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

The Hon’ble Mr. Justice Deepak Gupta, Judge.

Whether approved for reporting?[1] No.

Per Deepak Gupta, J. (Oral):

This criminal revision is directed against the judgment of the learned Sessions Judge, Bilaspur dated 18.9.2002 whereby he dismissed the appeal filed by the present petitioner and upheld the judgment of the learned Addl. Chief Judicial Magistrate, Ghumarwin, District Bilaspur whereby the petitioner was convicted for having committed an offences punishable under Section 279 Indian Penal Code and Section 185 of the Motor Vehicle Act,1988 and was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs .500/- 1Whether the reports of the local papers may be allowed to see the Judgment ?. yes.

for the offence under Section 279 I.P.C. and fine of Rs.200/- for the offence punishable under Section 185 of the Motor Vehicle Act,1988.

2. Admitted facts of the case are that the petitioner was a driver with the Himachal Roadways Transport Corporation (HRTC). On 25.2.1995 the petitioner was deployed with the Bus bearing No. HP-06 2039 plying on Rampur-Jammu route. At about 10.30 p.m. the bus reached Ghumarwin. The crew of the bus as also the passengers of the bus took dinner. Then the bus left for Jammu and accused was driving the bus.

3. This bus met with an accident on the bridge across the Shir-khad. No injury was caused to any persons. The bus struck the railing of the bridge and the passengers cried for safety. The prosecution version is that the accident occurred due to the rash and negligent driving of the accused and it is alleged that the accused was drunk when the accident took place. The accused denied these allegations and according to him the accident took place due to a mechanical defect.

4. The prosecution in this case has examined a number of witnesses. PW 1 to 4 and PW-8 are the witnesses who were passengers in the bus and all of them have unambiguously stated that the petitioner/accused was driving the bus in a rash and negligent manner after Ghumarwin. PW Nos.1, 2 and 4 have not stated any thing about the petitioner/accused being drunk. However, on a suggestion being put to them in cross examination, they stated that the petitioner/accused had not taken any liquor in their presence. PW8 was also traveling in the bus. He stated that after the bus started from Ghumarwin the driver was driving the same at a fast speed. Near the turning of the Shir-Khud bridge the driver applied the brakes with great force and took a sharp turn and thereafter hit the railing of the bridge. Thereupon, the passengers in the bus raised a hue and cry and had asked the accused to stop the bus but the accused did not do so. He drove the bus ahead and again hit the railings . Again this witness along with other passengers asked the accused to stop the bus but the driver of the bus did not do so. The accused did not pay any heed towards their requests. He finally stopped the bus after crossing the bridge. The driver was taken to the police station. Thereafter, the driver was examined by the medical officer. It would be pertinent to quote the statement of the doctor:- “Stated that I am posted as M.O.,D.H.Ghumarwin since,1991. On 26.2.95 I examined at 12.40 a.m. Hari Chand S/o Shri

5. Saunu Ram on police request and on examination Hari Chand found to be drowsy and unable to support himself . The level of alertness was very poor and reaction sluggish. He was talking very little and was unable to answer the questions adequately and his speech was slurred. His breath was smelling of alcohol. The person was unable to stand or walk without support. He was unable to sit on a stool and was sitting on the ground with hung head . Accordingly to my opinion the person was heavily intoxicated due to consumption of alcohol. I issued MLC Ex.P3/A which bears my signature.

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Hari Chand was produced to me by C. Geeta Ram. It is incorrect to suggest that I have issued wrong MLC at the instance of police. It is incorrect that Hari Chand was not under intoxication”.

One of the witnesses examined by the

prosecution is PW-5 who was deputed to drive the bus in question after incident. This witness was cross examined and in his cross examination he has stated that the ‘U’ Bolt of the bus was loose and therefore, the brake system was not working properly. It was on account of loose ‘U’ Bolt of the bus that this bus had struck against the railing of the bridge.

6. Shri Vinay Thakur, learned counsel argued that both the Courts below have not appreciated the statement of PW-5.. He also argued that though the blood sample of the accused was allegedly taken but no report has been filed in court. He, therefore, submits that it cannot be presumed that the petitioner/accused was drunk and the accident took place due to the fact that ‘U’ Bolt was loose and the petitioner/accused was not at fault. 7. Both the Courts below have came to the conclusion that the petitioner was dunk and that the accident occurred due to his rash and negligent driving. In exercise of revisional jurisdiction this Court does not go into to the facts of the case. However, at the instance of Shri Vinay Thakur, learned counsel for the petitioner I have gone through the entire evidence led by the parties.

8. On perusal of the entire evidence it is apparent that after the bus left Ghumarwin the driver was driving the same at a high speed. Judicial notice can be taken of the fact that the bridge over the Shir- Khud comes after the road slopes downwards and is at 90 degree angle to the road. On such a sharp turn the driver is expected to maintain a slow speed. It has come on record that not only was the speed high but the driver applied the brakes in such a manner that he lost control over the bus and then hit the railings twice. It was fortunate that the bus did not go into the khud and if that had happened, many lives could have been lost.

8. In this case, some vigilant passengers asked the driver to stop the bus. They virtually forced the driver to do so. They were responsible persons and scared to travel any further with such a drunk driver . They handed over the driver to the police. Medical examination conducted by PW3 clearly shows that not only had the driver consumed liquor but he was highly intoxicated. 9. True, it is that the prosecution has failed to produce the report from the laboratory which would have been clinching evidence but for the fault of the prosecution alone the accused can not be set free, especially, when there is a clear evidence of the expert witness i.e. the doctor that the accused was drunk. The statement of the Doctor clearly shows that the petitioner was not even able to stand erect at the relevant time. In such a situation the absence of the blood sample cannot help the accused.

10. In the case of a driver, especially a driver driving a public service vehicle, drinking during duty hours can lead to catastrophic results. That is why now the Indian Penal Code has been amended and the offence has been made punishable with stringent punishment. There can not be any misplaced sympathy in such cases. In fact as observed by the appellate Court the petitioner has been dealt with leniently by the trial Court.

11. Keeping in view the above discussion I find no merit in this petition which is rejected. The petitioner is directed to surrender and undergo the sentence imposed upon him.

December 26 , 2008

(Rita).

( Deepak Gupta), J.