IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.567 of 2002 Decided on: July 3, 2009. State of H.P …Appellant Versus Janak Raj …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. V.D. Khidtta, Advocate. Surjit Singh, Judge (oral) Heard and gone through the record. 2. State has appealed against the judgment dated 30.5.2002 of learned Chief Judicial Magistrate, whereby respondent Janak Raj, who was charged with and tried for offences, under Sections 279 and 304-A IPC, has been acquitted. 3. Case of the prosecution, which led to the trial of the respondent, was that on 16.12.1995, he was driving Bus No. HP-37-0491, belonging to HRTC. When the bus reached a place near Manpul, Nadaun, it slowed down, on a signal given by deceased Suhru Ram, who wanted to board it. When said Suhru Ram tried to board the bus, its speed was accelerated due to which he fell down. One of his legs was overrun by a tyre of the bus. He was taken to the hospital, where he Whether reporters of the local papers may be allowed to see the judgment? …2… succumbed to his injuries, within a couple of hours. Doctor, who attended upon Suhru Ram, when he was still alive, gave a ring to SHO, Police Station, Nadaun, who reached the spot and recorded statement Ext. PW8 /A of Suhru Ram. As per that statement, he signalled for stopping of the bus, as he wanted to board it and when he was boarding it, the bus started again and he fell from the window of the bus and sustained injuries on his legs. 4. Prosecution, besides proving dying declaration Ext.PW8/A, examined two eye witnesses PW-3 Rasil Singh and PW-5 Milkhi Ram. PW-3 Rasil Singh did not support the prosecution version. PW-5 Milkhi Ram stated that when bus reached near the site of the accident, it slowed down and when Suhru Ram was trying to board it, its speed was accelerated because of which Suhru Ram fell from the window of the bus and sustained injuries. 5. Dying declaration has been proved by PW-8 Inspector Achharpal Singh, who was posted as SHO, Police Station, Nadaun, during those days. The witness has stated that he recorded the statement at hospital. As per medical evidence, in the form of testimony of PW-1 Dr. Savitri Katwal, both the legs of the deceased were fractured. As regards left leg, both the bones were found broken. According to PW-9 Dr. H.S. Shekhon, cause of death was shock, caused due to pain. Death had taken place within three hours of the occurrence of the accident. Now, when the cause of death was on account of pain, resulting from fracture of legs and there is …3… no evidence on record, indicating that the deceased was fit to make a statement, it cannot be said that the deceased was, in fact, in fit state of mind to make a statement or even if he was speaking, whether he was in a position to recollect and state the incident correctly. This is especially so when eye witnesses account is different from the contents of the dying declaration. 6. According PW-5 Milkhi Ram bus had only slowed down, meaning thereby that it had not been brought to a complete halt, as recorded in Ext.PW8/A. PW-3 Rasil Singh testified that the bus had stopped at a workshop, as some repair was to be carried out and that after it had started moving, deceased tried to board it, but could not succeed and fell down. I also find that the time of recording Ext. PW8/A, noted below the signature of PW-8 Inspector Achharpal Singh, has been changed by overwriting. This change is not only in Ext. PW8/A, but also in the FIR, which is based on the said statement. All these things make the dying declaration doubtful. 7. For the foregoing reasons, I do not consider this to be a fit case for interference with the judgment of acquittal. Hence, the appeal is dismissed. July 3, 2009 (ss) ( Surjit Singh ), J.