IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 550 of 2003 Date of decision: 05.07.2010 State of H.P. ... Appellant Versus Mohan Singh and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. Pt. Om Prakash, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate 1st Class, Jawali, dated 26.5.2003, vide which the respondents were acquitted of the charge framed against them under Sections 337, 338 and 304-A I.P.C. read with Section 154 and 173 of Indian Railway Act. 2. Briefly stated, the facts of the case are that on 7.12.1991, at 3.30 P.M., S.I. Gulab Singh came to know from the school children that passenger train No. 3 P.B., which was going from Pathankot to Baijnath, met with an accident near Dehar Khad. The Station House Officer immediately reached the spot and found that two bogies have been derailed and turned turtle, due to which 18 1Whether reporters of Local Papers may be allowed to see the judgment? 2 persons died on the spot and about 60-65 persons were injured. He also learnt that the accident had taken place due to rash or negligent driving of the driver of the train. On this basis, a report was lodged by the police and after investigation, the challan was filed against both the respondents i.e. driver and co-driver of the train and the respondents were tried by the learned trial Court, leading to their acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the record of the case, it is clear that the case pertains to the rash or negligent driving of the train by the respondents. To substantiate their case, the prosecution had examined 34 witnesses and a reference can be made to the material witnesses to determine as to whether rash or negligent driving could be attributed to the respondents or not. 5. PW-24 Mehar Chand, one of the passenger, who was also injured in the accident, has stated that the speed of the train became suddenly fast and the railway engine tilted to one side and the many passengers were crushed under the engine. He has admitted that the train was over crowded on the fateful day. Many passengers were traveling on the foot-rests, due to which the bogies have tilted to one side. PW-7 Om Vir Singh, Foreman, had issued certificate Ext. PW7/A, vide which he found the engine in a working condition having no fault. He admitted that he had not checked the engine on 7.12.1991, the date of the accident. PW-9 Maginder Paul, Foreman, had handed over speedometer record register and speedometer ledger to the police. 3 6. The prosecution had also examined PW-11 S.P. Gupta, Divisional Commercial Manager, who learnt from the passengers that the train was in a very high speed and while negotiating the curve, some of the Bogies derailed. The Speedograph of engine was taken into possession in his presence and on the basis of the analysis of the speed it was found that the train was being driven at a very high speed and the accident took place due to the negligence of the railway driver. However, he admitted that he cannot analyse the speedograph himself as he is not a technical person. No witness has been examined by the prosecution who had analysed the speedograph and had opined that as to what was the speed of the vehicle at the relevant time, which was very material. 7. According to PW-15 O.P. Dogra, Guard of the ill-fated train, the speed of the train was 28 to 30 K.M. per hour and the prescribed speed limit was 36 K.M. per hour. There were seven ‘barats, in the train, due to which, there was heavy rush and the passengers were traveling by standing on the foot rests. According to him, due to over crowding and foot-board riding, the train had derailed, for which the driver was not at fault. He has not supported the prosecution story. PW-19 Brij Mohan, ticket checker has also not supported the prosecution story. 8. PW-27 Ram Krishan Mahajan, ticket checker, has also stated that he had checked then train on the fateful day When the train was going down, its speed was quite high, due to which train turned turtle. However, during cross-examination, he has shown his 4 ignorance as to whether the accident took place due to fast driving of the driver of the train or not. PW 29 Jai Singh, Incharge Ferozpur Division, had admitted that train can derail due to over crowding. PW-30 Prem Paul has stated that many passengers were hanging and standing on the foot rests. 9. From the above discussion of the evidence of the material witnesses, it is clear that there is no specific evidence on record to prove as to what was the speed of the train at the relevant time. It has also come up on record that the train was over crowded and that was opined by some of the witnesses to be the reason for derailment and turning turtle. There are no positive statements made by any witness as to the cause of the accident or that it was due to over speeding by the respondents. There was no positive evidence to prove the charge of rash or negligent driving and as such, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case, cannot be termed as perverse in the absence of specific evidence on record regarding rash or negligent driving or the cause of the accident. 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. However, the Railways Authorities are at liberty to consider the question if it would be proper in the facts and circumstances of the case after lapse of so many years, to hold an enquiry in regard to rash or negligent driving and take suitable action 5 If they do so, they may decide this question in all fairness and proceed with the mater in accordance with rules. With these observations, the appeal filed by the appellant is dismissed. ( V.K. Ahuja ), July 05, 2010 Judge (BSS) 6