IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 588 of 2004. Decided on: September 26, 2011. ____________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Rameshwar Dass …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? Yes. For the appellant : Mr. P. M. Negi, Learned Deputy Advocate General. For the respondent : Mr. R. K. Gautam, Sr.Advocate with Mr. Vikrant Chandel Advocate and Mr. Inder Sharma, Advocate, vice Mr. N.K. Thakur, Advocate. _______________________________________________________ SURINDER SINGH, J (oral): The Learned Trial Court acquitted the respondent/accused for the offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code and also under Section 184 of the Motor Vehicles Act, 1988 in Cr. Case No. 104-I/97/ 272-II/97 decided on 13.9.2004. The State felt aggrieved by the acquittal of the respondent/accused, as such filed the present appeal. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Heard and gone through the evidence on record. 3. The case of the prosecution as emerges from the evidence on record can be stated thus. On 19.10.1996 at around 1:30 PM, a Haryana Roadways bus bearing registration No.HR-0-3-8681 was being driven by the respondent/accused allegedly in a rash and negligent manner and near the place known as Dhaliara, it rolled down and fell into a deep gorge causing simple as well as grievous injuries to its passengers, namely Santosh Kumari, Kehar Singh, Jagdish Singh, Rakesh, Tek Singh, Megh Raj, Rakesh, Sher Singh and also caused the death of Ms. Alka Devi. The injured were medically examined in the hospital. Their MLCs’ were obtained by the police. 4. The grievous injuries were subject to the X-Ray. The police was informed about the accident. They reached the spot. The dead body of Ms. Alka was lying at the spot. The police prepared the inquest papers and autopsy of the dead body of said Ms. Alka Devi was performed. - 3 - 5. The police took the photographs of the place of accident. The vehicle was also got mechanically examined. The police also prepared site plan of the place of the accident. 6. The respondent/accused was arrested and granted bail. After recording statements of the witnesses, Challan was prepared against the respondent/accused for the offences aforesaid and ultimately presented in the Court for his trial. On finding prima facie case against the respondent/ accused, he was accordingly charge-sheeted for the offences as mentioned above. The respondent/ accused pleaded not guilty and claimed trial, but thereafter he failed to put in appearance, as such, he was declared Proclaimed Offender and the evidence was recorded in his absence as per the provisions of Section 299 of the Code of Criminal Procedure. 7. The respondent/accused was apprehended and produced before the Learned Trial Court on 18.4.2004. The Learned - 4 - Counsel for the accused/respondent agreed to examine the witnesses who were already examined in absence of the accused. 8. The respondent/accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the allegations of rash and negligent driving of the bus by him. However, he pleaded innocence. According to him, the accident occurred due to the mechanical defect in the bus. In the cross- examination of this witnesses, the specific stand taken by him is attributable to the steering lock, which resulted into the accident. 9. After appreciating the statements, no evidence in defence was led. 10. On conclusion of evidence, the Learned Trial Court held that the prosecution failed to prove the rash and negligent driving of the respondent/accused, as such, he was acquitted. 11. The evidence on record is re-appreciated by me. Legally, the statements of the witnesses examined in the absence of the - 5 - respondent/accused, does not constitute any evidence. However, for the purpose of Section 299 of the Code of Criminal Procedure, when the accused has absconded, and that there is no immediate prospect of arresting him, the Court competent to [try or commit for trial] such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. The object and scope of the said Section is absolutely clear. This Section is based on the principle that important evidence is not lost and the Section engrafts an exception on the general rule that - 6 - all the evidence against the accused should be tendered in Court in his presence. The value of the evidence recorded under this Section has to be judged like any other evidence given by the witnesses at the trial. The evidence recorded under this Section should not be judged by the same standard by which a dying declaration is adjudged. However, apart from admitting the evidence of the witnesses, it must be proved that the witness is dead, or incapable of giving evidence or cannot be found or his presence cannot be procured without delay expense or inconvenience or is beyond the limits of India. It is equally settled that mere report that a particular person is dead is not enough to prove his death onus to prove is on the party who whishes to tender evidence. The mechanic who had mechanically examined the accidental bus, was stated to have died. Without the proof of his death certificate another witness Sher Singh has not been shown - 7 - to have died or that his presence could not have been procured, as aforesaid. 12. Whereas PW-6 Sh. Kehar Singh was passenger in the said bus and stated that when he was going through the newspaper, he heard a sound, thereafter the bus rolled down and fell into a gorge. He was declared hostile by the prosecution, but he stuck to the above statement. In his cross-examination conducted by the accused, he admitted that in case the steering of the vehicle is locked, it will go towards the same direction in which it stands locked. 13. Even, PW-8 Suresh Kumar turned hostile to the prosecution. He did not say anything about the rash or negligent driving by the respondent/accused. 14. PW-10 Jagdish Singh was the another passenger of the said bus. He stated that the bus was in a high speed. It went off the road and rolled down into a gorge. In his cross- examination, he expressed his ignorance that the accident in question was attributable to - 8 - the steering lock. Even during the trial, he could not identify the accused who at that time was driving the bus. 15. The prosecution also did not prove the medico legal certificates or the death certificate of Ms. Alka in the said accident. The Doctors who had performed autopsy had also not been examined during the trial of the case. Even, the postmortem report remained not proved. There is only a statement of the Learned Public Prosecutor to the effect that since these documents stand admitted by the counsel for the accused thus, he tendered it in evidence. Whereas only the provisions of Section 294 which in its particular circumstance dispenses with the formal proof of certain documents in the manner provided therein and there is no admission and denial of the documents aforesaid. 16. Therefore, in my considered view, the offences charged against the accused stand not proved beyond the reasonable doubt in absence of the reliable evidence regarding - 9 - rash or negligent driving of the bus. Thus the judgment of acquittal passed by the learned Trial Court against the respondent/accused cannot be interfered as the findings of acquittal are borne out from the record. The appeal sans merits and is accordingly dismissed. 17. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 18. Send down the records. (Surinder Singh), Judge. September 26, 2011. k.sharma