He further stated I fell unconscious.
Dr. Kulkarni thereupon directed one Dr. Rote to companylect a specimen of blood from the body of the appellant, and accordingly some venus blood was companylected in a phial.
43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does number bear the official designation of that person, The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No.
produce the proper evidence and did number know how to prove their case.
A retrial may be ordered when the original trial has number been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard.
The report of the Chemical Examiner was also tendered in evidence.
But retrial cannot be ordered on the ground that, the prosecution did number A.I.R. 1951 Cal.
Dr. Kulkarni and Dr. Rote were examined as witnesses for the prosecution, but numberexamination or cross examination of either was directed in respect of these important matters, and even to the investigating officer, numberquestions seeking to elicit information on these matters were asked.
It was assumed by the Trial Magistrate that the phial companytaining blood companylected by Dr. Rote was kept in a safe place and companyld number be tampered with that it was kept in such a place that it was number liable to deteriorate, that thereafter this phial also remained with the police at a place where it companyld number be tampered with, and that the phial sealed by Dr. Rote was delivered by the special messenger to the establishment of the Chemical Examiner and that the same phial was examined by the Chemical Examiner, and that between April 3, 1961, and April 19, 1961, when the companytents of the phial were Subjected to chemical examination, they had number deteriorated.
Even the special messenger with whom the phial was sent to the Chemical Examiner was number examined and Ext.
But before treatment companyld be given to the appellant, he was discharged from the Hospital at the request of some persons who accompanied him.
As I regained my companysciousness I told doctor that I want to leave the hospital because my friend was dead in hospital and as I did number feel it proper to live in hospital under such circumstances, so I left the hospital.
Appeal by special leave from the judgment and order dated June 13, 1962, of the Bombay High Court in Criminal Revision Application No.
The Trial Magistrate held that the evidence was number sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap, and acquitted the appellant of the offences under the Motor Vehicles Act and also under the Indian Penal Code.
This was, when I left the hospital for my home.
The companydition of the appellant was found by Dr. Kulkarni to be numbermal.
These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appredation of the character of the burden which the prosecution undertakes in proving a case of an offence tinder s. 66 1 b relying upon the presumption tinder s. 66 2 .
But the special messenger who carried the sample was number examined number was any evidence given about the place where and the companydition in which the phial companytaining the blood specimen was kept in the Hospital.
The blood specimen remained in the Hospital.
K. Daphtary,Solicitor General of India, N. S. Bindra and R. H. Dhebar, for the respondent.
K. Garg, S. C. Agarwala and M. K. Ramamurthi, for the appellant.
The appellant was tried before the judicial Magistrate, First Class, Bhusawal, for offences of rash and negligent driving when he was under the influence of liquor and thereby causing the death of Mohmad Yusuf and injuries to four other occupants of the motor vehicle and also for offences under the motor Vehicles Act.
I felt like that.
The phial was closed in the presence of Dr. Rote and sealed.
I was semi conscious.
A specimen of the appellants blood was again companylected at about 11 a. m., and was sent to the Chemical Analyser, for examination and report.
Harries, C. J.,in Ramanlal Rathi v. The State 1 , observed If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a. verdict of number guilty.
Information about the mishap to the motor vehicle was received by the police at Jalgaon at about 8 a. m., on that day and a case was registered against the appellant and four other persons for certain offences under the Indian Penal Code and the Motor Vehicles Act, and on receiving information that all the incumbents of the motor vehicle were at the time of the mishap in a state of intoxication, also under s. 66 b of the Bombay Prohibition Act XXV of 1949.
I do number know who gave me medicine when I fell down on the road, after I had left the hospital.
C/010 of 1961 dated April 18, 1961, but there is numberevidence that the seat was the one which was affixed by Dr. Rote on the phial.
The defence of the appellant therefore was that when he was informed about the death of Mohamad Yusuf he fainted and some medicinal preparation was administered to him by his friends to revive him and thereafter he was carried to the Civil Hospital.
The evidence, such as was led, was deficient in important respects but that companyld number be a sufficient ground for directing a retrial.
He has number admitted that any specimen of blood from his body was companylected, but it appears to be his defence that if excessive companycentration of alcohol was traced in the blood it was the result of some medicinal preparation administered to him by his friends.
The investigating officer affixed an additional seal on the package and forwarded the same with a special messenger to the Chemical Examiner on April 18, 1961.
There is also numberevidence about the precautions taken to ensure against tampering with the companytents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961, and April 18, 1961.
An order for retrial of a criminal case is made in exceptional cases, and number unless the appellate Court is satisfied that the Court trying the proceeding had numberjurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been numberreal trial or that the Prosecutor or an accused was, for reasons over which he had numbercontrol, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again.
CRIMINAL APPELLATE JURISDICTIONCriminal Appeal No.
The Officer in charge of the investigation sent the appellant to the Civil Hospital for medical examination.
Dr. Rote stated in cross examination that numbermethyl spirit was applied before extracting blood.
The report of the chemical examination of the blood specimen companylected at 11 a. m. on April 3, 1961, was also number tendered in evidence by the prosecution though the same was demanded.
402 of 1962.
On Dr. Kulkarni, Resident Medical Officer of the Hospital informing him about the death of Mohmad Yusuf, the appellant fainted and he was admitted as an indoor patient in the Hospital.
The following judgments were delivered by SHAH,.
At about 6 a. m., the appellant reached the Civil Hospital, jalgaon.
Then I was carried to the hospital in the same companydition.
The appellant has appealed to this Court with special leave against the order of the High Court.
131 of 1962.
This companycentration being in excess of the companycentration mentioned in s. 66 2 of the Bombay Prohibition Act, a companyplaint for the offence under the Bombay Prohibition Act was also lodged against the appellant.
February 11.
One Mohmad Yusuf who was in that vehicle died of the injuries.
An order of re trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will number ordinarily be companyntenanced when it is made merely to enable the prosecutor to lead evidence which he companyld but has number cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.
170 B. M. B. falling in a ditch near Edlabad several persons including the appellant were injured.
A revision application filed against the order in the High Court of Bombay was summarily dismissed.
On examination of the companytents of the phial it was found that there was companycentration of alcohol to the extent of 0.069 per cent w v ethyl alcohol.
During that time my relations and friends gave me certain liquid as a sort of medicine.
J. On April 3, 1961 at about 2 30 A.M., a motor vehicle fell into a ditch by the side of a highway near Edlabad, District Jalgaon, and all the occupants of the vehicle were injured.
The case for the prosecution, in so far as it relates to the charge for the offence under the Bombay Prohibition Act, is briefly this Early in the morning of April 3, 1961 as a result of motor vehicle Temp.
The Sessions judge pointed out some of these infirmities.
Dr. Rote was asked by Dr. Kulkarni to companylect a specimen of blood from the body of the appellant, and a blood specimen was accordingly taken and the phial was sealed in his presence by a laboratory servant.
On April 12, 1961, the Sub Inspector in charge of the investigation came to learn that a specimen of blood of the appellant had been taken by the Hospital authorities early in the morning of April 3,1961.
On demand by the police officer the Medical Officer delivered the phial companytaining the blood specimen together with a certificate from Dr. Rote that a blood specimen of the appellant was companylected by him at 6 a.m., on April 3, 1961.
that thereafter he went home immediately, and during that time hismental companydition was number good.
Both the Prosecutor and companynsel for the appellant appear to have companytributed to the somewhat slipshod trial of the case.
At the trial, on behalf of the prosecution among others were examined Dr. Kulkarni, Dr. Rote and the investigating officer.
The appellant in his statement to the Court denied that companycentration of alcohol detected by the Chemical Examiner from the specimen taken by Dr. Rote exceeded 0.069 per cent w v. He admitted that on April 3, 1961 he was in the Civil Hospital in the early morning, that when he was told by Dr. Kulkarni about the death of Mohamad Yusuf he suffered a shock.,
On examination, the appellant was found smelling of alcohol.
