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2018 DIGILAW 1195 (KAR)

Chand Basha S/o. Honnur Sab v. State of Karnataka

2018-12-13

MOHAMMAD NAWAZ

body2018
ORDER : The accused/petitioner has preferred this revision petition challenging the correctness and legality of the concurrent findings recorded by the Courts below, whereby the Court of Chief Judicial Magistrate, Bellary by judgment and order dated 26.04.2008 in Criminal Case No.165 of 2007 convicted him for the offences punishable under Sections 279, 337 and 304A of IPC, which was confirmed in Criminal Appeal No.91 of 2008 dated 27.01.2011 by the Court of II Additional Sessions Judge, Bellary. 2. The case of the prosecution is that, on 17.11.2006 at about 5.40 a.m. the complainant i.e., PW-1 was proceeding to attend the tuition class on his Motor Cycle bearing No.KA-34/R-970. Near Lakshmi Bakery, his friend Amit met him and at his request he took him as a pillion rider and when they were thus proceeding by the side of KSRTC bus depot near Anjineya Temple, at that time, the KSRTC bus driven by the accused came in a high speed from backside and even though PW-1 took his two wheeler towards left side of the road, the bus driver without reducing the speed of the bus dashed against the motor cycle. On account of which the pillion rider-Amit fell on the road and PW-1 proceeded further and fell on the right side of the road. The bus ran over on the head of Amit as a result of which he succumbed to the injuries on the spot. Thereby the accused committed offences punishable under Sections 279, 337 and 304A of IPC. 3. The accused pleaded not guilty to the accusation made against him. Trial was held, wherein, the prosecution examined PW-1 to PW-8 and got marked Ex.P-1 to Ex.P-11 to substantiate the accusation made against the accused/petitioner. 4. The defence of the accused was one of total denial, however, he did not choose to lead any evidence on his behalf. 5. The trial Court after considering the evidence and material on record was pleased to hold the accused guilty of the offences punishable under Sections 279, 337 and 304A of IPC and passed the following sentences : For the offence punishable under Section 279 of IPC, accused was sentenced to pay fine of Rs.1,000/-and in default, he was directed to undergo Simple Imprisonment for a period of 30 days. For the offence punishable under Section 337 of IPC, he was sentenced to pay fine of Rs.500/-and in default, he was directed to undergo Simple Imprisonment for a period of 15 days. For the offence punishable under Section 304A of IPC, accused was sentenced to undergo Simple Imprisonment for a period of one year and to pay fine of Rs.2,000/-and in default, he was directed to undergo Simple Imprisonment for a another period of 60 days. 6. The appeal preferred by the accused before the Court of II Additional Sessions Judge, Bellary in Criminal Appeal No.91 of 2008 came to be dismissed by judgment and order dated 27.01.2011 thereby confirming the conviction and sentence passed by the trial Court. 7. It is the contention of the learned counsel for the petitioner that there are material contradictions in the evidence of PWs-1 to 3, who are said to be the eyewitnesses to the incident. PW-1 is the rider of the motor cycle in which the deceased was traveling as a pillion rider however, he was not possessing the Driving Licence and he was a minor at the time of incident, which is admitted by the PW-1 himself in his evidence and therefore submits that the accident was on account of the fault of PW-1. He submits that from the material on record, it can be said that the motor cycle in question was behind the bus and when PW1 tried to overtake the bus, he lost control and the deceased came under the wheels of the bus. Therefore, he submits that there is no rash or negligence on the part of the accused, accordingly, he seeks to allow the petition. 8. The learned HCGP appearing for the respondent-State submits that, merely because the rider of the motor cycle i.e., PW-1 was not possessing any Driving Licence to drive a two wheeler, it does not mean that the accused/petitioner was not rash or negligent in driving. He submits that, PW-1 has categorically stated that the accused has rashly driven the bus and the said bus came from behind and dashed to the motor cycle. He submits that PWs-2 and 3 have also stated that the bus dashed to the motor cycle from behind and therefore he submits that the accident occurred only on account of rash and negligent driving by the driver of the bus. 9. He submits that PWs-2 and 3 have also stated that the bus dashed to the motor cycle from behind and therefore he submits that the accident occurred only on account of rash and negligent driving by the driver of the bus. 9. The Courts below have concurrently held that the bus dashed from the backside to the Bike of PW-1 and the said bus joined the main road from the depot. It is also observed by the Courts below that the two wheeler was proceeding in front of the bus and there is no dispute regarding the fact that, the accident occurred near the 1st depot gate in front of Anjineya Temple. It was held that the accused drove the vehicle in a high speed and entered the main road from KSRTC depot without getting the road cleared and he dashed to the Bike of PW-1. 10. The findings recorded by the Courts below was on the basis of the evidence of PWs-1 to 3 and 8 and spot panchanama and sketch at Ex.P-8 and Ex.P-10. 11. It is no doubt true that, the trial Court based on the evidence on record and after giving reasons came to the conclusion that the prosecution was able to prove the guilt of the accused and that there is direct nexus between the negligent act of driving on the part of accused and death of Amit, but, it is quite disturbing to see the manner in which the statement under Section 313 of Cr.P.C was recorded by the trial Court. 12. It is well settled that the object of recording the statement of the accused under Section 313 of Cr.P.C is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. It is a mandatory obligation upon the Court and besides ensuring the compliance therewith the Court has to keep in mind that the accused gets a fair chance to explain his conduct. It is a mandatory obligation upon the Court and besides ensuring the compliance therewith the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of offence. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. 13. The Hon’ble Supreme Court in the case of Ravi Kapur Vs. State of Rajasthan, reported in (2012) 9 SCC 284 at paragraph No.39 has held as under : “39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case.” 14. It is no doubt true that the accused has not given any explanation while his statement was recorded under Section 313 of Cr.P.C. However on a perusal of the statement recorded under Section 313 of Cr.P.C, it cannot be said that, the entire material parts of the incriminating evidence were put to the accused. In the statement under Section 313 of Cr.P.C recorded initially, the trial Court has put a common and a combined question with regard to the evidence of PW-1 to PW-3, though the evidence of the said witnesses is not similar to each other. Even in the statement recorded subsequently the entire incriminating evidence appeared in the evidence of the prosecution witnesses has not been put to the accused as required under law. 15. Even in the statement recorded subsequently the entire incriminating evidence appeared in the evidence of the prosecution witnesses has not been put to the accused as required under law. 15. In that view of the matter, I am of the view that, the statement recorded under Section 313 of Cr.P.C in this case by the trial Court cannot be said to be in accordance with law. Hence, I am of the considered view that, the impugned judgment and order passed by the Courts below cannot be sustained. Accordingly, I deem it proper to remand the matter back to the trial Court with a direction to proceed from the stage of recording of statement under Section 313 of Cr.P.C and to record the statement of the accused by putting all the incriminating evidence appeared against the accused during the course of recording of evidence, in accordance with law and then proceed to pass the judgment. Accordingly, I pass the following order : ORDER The impugned judgment and order of conviction and sentence dated 26.04.2008 passed in Criminal Case No.165 of 2007 on the file of Chief Judicial Magistrate, Bellary and the judgment and order dated 27.01.2011 passed in Criminal Appeal No.91 of 2008 on the file of II Additional Sessions Judge, Bellary are hereby set aside and matter is remanded back to the trial Court for fresh disposal. The trial Court shall proceed from the stage of recording of statement of the accused under Section 313 of Cr.P.C and dispose of the case within three months from the date of receipt of the copy of this order.