The central legal point established in the judgment is the requirement for conclusive evidence in cases of alleged rash and negligent driving under the influence of alcohol, and the extension of the benefit of doubt in the absence of such evidence.

JUDGMENT

Vivek Singh Thakur, J. - Instant appeal has been preferred by the State of Himachal Pradesh against judgment dated 07.11.2008, passed by learned Judicial Magistrate 1st Class, Court No.3, Shimla, H.P., in Cr. Case No.2/2 of 2007, titled as State vs. Shankar Singh, whereby respondent-accused has been acquitted of notice of accusation under Section 279 of the Indian Penal Code (in short 'IPC') and Section 185 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act'), in case FIR No. 233 of 2006, dated 25.11.2006, registered in Police Station West Shimla.

2. Prosecution case in nutshell is that on 25.11.2006, at about 7.30 p.m. respondent-accused had caused accident by driving truck Mazda bearing registration No.HP-63-1120 in rash and negligent manner, on the public way, near Victory Tunnel and had hit the railing and pedestrian path. It is further case of the prosecution that at that time respondent-accused was under influence of alcohol.

3. As per prosecution case, respondent-accused was apprehended on the spot by PW-3 Ankur Kanwar and PW.4 Paras and was handed over to the police in presence of number of persons, who had gathered on the spot.

4. On the basis of statement of PW.3 Ankur Kanwar, recorded under Section 154 of the Criminal Procedure Code (in short Cr.P.C.), FIR was registered and investigation was carried out. After completion of investigation, finding prima facie complicity of respondent-accused in commission of offences under Section 279 IPC and 185 of M.V. Act, challan was presented in the Court.

5. To prove its case, prosecution has examined ten witnesses. After recording statement of respondent-accused under Section 313 Cr.P.C., one witness in defence was also examined by respondent-accused.

6. Defence of the respondent-accused is that he was not driving the vehicle in rash and negligent manner, but driver of another vehicle coming from opposite side, with high speed, did not use dipper causing obstruction to vision of the respondent-accused and, thus, he had driven his vehicle towards the railing, where there was pit and one tyre of vehicle being driven by respondent-accused went in the pit causing the accident in which there was no rashness and/or negligence on the part of the respondent-accused.

7. In prosecution case, PW.1 is Dr.Amita Bhatnagar, who had medically examined the respondent-accused immediately after the accident. PW.3 Ankur Kanwar and PW.4 Paras are complainant and eye witnesses to the accident. Whereas, PW.2 Sanjay Thakur is owner of the vehicle, and he, as per prosecution evidence particularly as per statements of PW.3 Ankur Kanwar and PW.4 Paras, had also reached on the spot immediately after the accident. PW.5 Joginder Singh is serving as a Head Constable, Mechanic in Police Department, who had inspected the vehicle immediately after the accident. PW.10 Nikka Ram is Investigating Officer. Other witnesses are formal in nature, who had performed their role in completion of investigation.

8. To prove allegation that respondent-accused was driving vehicle under influence of alcohol, prosecution has relied upon medical evidence as well as evidence of PW.1 Dr.Amita Bhatnagar. So far as medical evidence is concerned, though it is claimed that blood and urine samples of respondent-accused were taken, however, report of State Forensic Science Laboratory (SFSL) has not seen light of the day, as it has not been referred and exhibited in statements of either witness, rather PW.1 Dr.Amita Bhatnagar has admitted that no such report is available on record. Dr. Amita Bhatnagar has stated that respondent-accused was brought to her with alleged history of alcoholic consumption, who, at the time of examination, was conscious, cooperative and well oriented in time and place. Though, she has also stated that alcoholic smell was present, however, with further statement in cross-examination that when patient was brought to her he was conscious and well behaved.

9. Pw.2 Sanjay Thakur in his cross-exa