S.Ali Ahmad, J.

1. The petitioner is a truck driver. He has been convicted under Sections 279, 337 and 304-A, I.P.C. and sentenced to undergo rigorous imprisonment for two years under Sec.304-A, I.P.C. and to rigorous imprisonment for four months under Sec.337, I.P.C. No separate sentence has been passed under Section 279, I.P.C

2. The prosecution case in brief is that, on 21-4-64 the informant (P. W. 12) along with others had gone to Pahiezaghat for the cremation of his mother. After the cremation, the party returned or foot for their home. At Hajipur however, they hired truck No. BRF 2983 for their village. The prosecution case is that when the truck reached Gothia Bridge north of village Mahamroadpore, it dashed against a tree due to rash and negligent driving of the petitioner. As a result of the accident three persons died at the spot and one died in the hospital. It is said that the accident took place on account of the truck being driven in a negligent manner and at a high speed. After the accident, the informant went to Mahua police station where his fardbeyan was recorded. On the basis of the fardbeyan, the Mahua police drew up a first Information report and registered a case and took up investigation. After completing investigation, the police submitted chargesheet and the petitioner was out up on trial.

3. The defence of the petitioner is that he is innocent and has been falsely implicated in the case. His positive defence further is that he was not driving truck No. BRF 2983 at the time the accident took place To support his version. a defence witness also has been examined.

4. The trial court held that the petitioner was driving the truck in a negligent manner and at a high speed. It accordingly convicted the petitioner as indicated above. On appeal, the appellate court upheld the conviction and sentence imposed by the trial court. Hence the present application.

5. In support of the application Mr. Fanish Singh has contended that the trial itself is vitiated on account of non-compliance with the mandatory provisions of Sec.353 of the Cr. P. C., inasmuch as P.Ws. 8 and 9 were not examined by the trial court in presence of the petitioner. According to him the personal attendance of the petitioner had been dispensed with under Sec. 540-A of the Code of Criminal Procedure. A perusal of the order sheet dated 10th March, 1966 shows that P.W. 8 Posan Balha was examined, cross-examined and discharged and P.W. 9 Shiva Sahu who was tendered was also cross-examined and discharged. My attention has, however, been drawn to the deposition of these two witnesses (P.Ws. 8 and 9). It appears therefrom that P.W. 8 was examined-in-chief, but nobody turned up-to cross-examine him. A certificate has, however, been giver that the evidence was read over to the witness in presence of the accused. This obviously is incorrect. As it appears from the order sheet, the petitioner was on representation under Sec. 540-A, Cr. P. C. and was not present in court. Even the pleader engaged toy the petitioner does not appear to have been present when P.Ws. 8 and 9 were examined-in-chief. Sec.353 of the Cr. P. C. is as follows:

Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

A perusal of this section will show that the evidence of witnesses has to be recorded in presence of the accused or when personal attendance has been dispensed with in presence of his pleader. I have indicated above that personal attendance of the petitioner had been dispensed with. It was, therefore, necessary that evidence of these two witnesses should have been taken in presence of his pleader. In case the pleader was not present, the trial court should have adjourned the case on that day and should have directed the petitioner to attend the court on the next date fixed, so that the eviden