Delhi District Court
State vs . Karan on 15 November, 2018
IN THE COURT OF SH. JASJEET KAUR: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE/NORTH DISTRICT, ROHINI COURT/DELHI
STATE VS. Karan
FIR No.64/11
P.S. Mahendra Park
Date of institution of case :24.05.2012
Date on which case reserved for judgment :15.11.2018
Date of judgment :15.11.2018
JUDGMENT :
a) Date of offence :20.03.2011
b) Offence complained of :U/s 279/337/304A IPC & 128/177 MV Act
c) Name of complainant : SI Surender Singh,
No.4874-D, PS Mahendra Park
d) Name of accused, his parentage, :Karan,
& address S/o Sh. Surender Kumar,
R/o H.No.453/1, Civil Hospital,
Circular Road, Shahdara, Delhi.
e) Plea of accused : Pleaded not guilty.
f) Final order : 15.11.2018
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. On 20.03.2011 at 3.20 p.m an accident had taken place at the intersection of Mukarba Chowk Flyover on Grand Trunk Karnal Road (hereinafter referred to as GT Karnal Road) leading towards Sindhu Border in which one motorcycle bearing registration number DL 5S AB 8642 had struck against a road side wall and as a consequence of FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 collision of the offending motorcycle with the road side wall, one person named, Pintoo had lost his life whereas another person named, Izhar has sustained simple injuries on his person. It is the case of the prosecution that accused Karan was driving one motorcycle bearing registration number DL 5S AB 8642, in a rash and negligent manner with two pillion riders and when the said car had reached at the crossing of Mukarba Chowk Flyover on GT Karnal Road leading towards Sindhu Border, the accused has suddenly hit his motorcycle against a road side wall due to which pillion rider, named, Izhar had sustained simple injuries on his person whereas another pillion rider travelling on the said motorcycle, namely, Pintoo had sustained fatal injury.
2. On these facts a case was registered against accused on the basis of statement of complainant Izhar Mark X-1, vide FIR bearing no.64/11 of PS Mahendra Park ExPW5/A. During the course of investigation, the offending motorcycle was seized vide seizure memo dated 23.03.2011 and was mechanically inspected by Retd. ASI Devender Kumar, vide mechanical inspection report Mark Y-1 After the completion of investigation, charge sheet was filed against accused Karan for the alleged commission of offences of causing death by rash and negligent driving of a motor vehicle on a public road and allowing two pillion riders to travel on a motor vehicle having capacity of sitting of two persons punishable u/s 279/304A of the Indian Penal Code, 1860 (hereinafter also referred to as IPC) and Section 128 and 177 of Motor Vehicle Act 1988 (hereinafter referred to as MV Act).
3. During the course of trial notice of accusation u/s 251 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr. P.C.) for the alleged commission of aforementioned offences punishable u/s FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 279/337/304A of IPC and 128/177 of Motor Vehicle Act 1988 was served upon the accused on 21.02.2013 to which the accused had pleaded not guilty and had claimed trial.
4. Upon the accused pleading not guilty to the notice u/s 251 Cr.P.C. served upon him, an opportunity was given to prosecution to prove its case by leading evidence in support of the same. Prosecution examined seven witnesses in order to prove its case. A brief account on the depositions made by the witnesses of prosecution is reproduced below:-
5. PW1 Jitender Singh deposed that on 22.03.2011 at the mortuary of Babu Jagjivan Ram Memorial Hospital, he had identified the dead body of his cousin (Uncle's Son), namely, Pintoo vide identification memo ExPW1/A. He stated that subsequently he alongwith his relatives namely, Sunder Singh, Sonu, and Kalyan Singh had obtained the body of his cousin Pintoo vide handing over memo ExPW1/B. Sh. Mukesh Kumar, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-
1.
6. PW-2 Sunder Singh deposed that on 22.03.2011 at the mortuary of Babu Jagjivan Ram Memorial Hospital, he had identified the dead body of his relative, namely, Pintoo vide identification memo ExPW2/A. He stated that subsequently he alongwith his relative, namely, Jitender Singh had obtained the body of his cousin Pintoo vide handing over memo ExPW1/B. Accused Karan had not availed the opportunity given to him by the court to cross examine PW-2.
7. PW-3 Dr. Amit Shaukeen deposed that on 21.03.2011, while working at Maharshi Balmiki Hospital as Medial Officer he had medically examined one victim of road traffic accident, namely, Pintoo, FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 vide MLC no.1157/2011, dated 21.03.2011 ExPW3/A whereby he had given an opinion that patient Pintoo had been brought dead to the hospital. He stated that after preparing MLC of the injured, he had referred his body to forensic expert for postmortem. Mukesh Kumar, learned counsel for the accused had not availed the opportunity to cross examine PW-1.
8. PW-4 Dr. R.S. Mishra, deposed that on 20.03.2011, he was performing duty as a Chief Medical Officer at Babu Jagjivan Ram Memorial Hospital, when three injured persons, namely Izhar, S/o Sh. Habib, Karan and Pintoo were medically examined at the said hospital by various doctors working under his supervision. He stated that patient Izhar was medically examined by Junior Resident Doctor Umakant, vide MLC bearing no.23023 ExPW4/A and was referred to Senior Resident Surgery, Dr. Yatender Singh for further treatment whereas patient / accused Karan had been medically examined by Junior Resident Doctor Ajeet Tripathi and Senior Resident Orthopedic, Dr. Rajesh vide MLC No.23022 ExPW4/B. He further deposed that patient Pintoo had also been medically examined by Junior Resident Doctor Ajeet Tripathi and Senior Resident Orthopedic, Dr. Rajesh vide MLC No.23021 ExPW4/C. Sh. Mukesh Kumar, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-4.
9. PW-5 Insp. Rajesh Kumar deposed on 21.03.2011 while working as a duty officer at PS Mahendra Park from 4 PM to 12 mid night, he had registered FIR No.64/11 ExPW4/A in the present matter at about 7.50 PM on the basis of DD no.40A received from IO SI Surender. He proved his endorsement on DD no.40A ExPW5/B. Sh. Mukesh Kumar, learned counsel for the accused had not availed the opportunity given FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 to him by the court to cross examine PW-5.
10. PW-6 ASI Jagmohan deposed that on 20.03.2011, while working as a duty officer at PS Mahendra Park from 8 am to 4 pm at about 3.40 PM, he had received verbal intimation from wireless operator about slipping (fall) of one motorcycle at Mukarba Chowk Flyover and had reduced the said information into writing vide DD No.40A ExPW6/A. he stated that after recording the information regarding accident in the form of DD No.40A, he had telephonically conveyed the said intimation regarding accident to IO SI Surender Kumar. Sh. Mukesh Kumar, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-6.
11. PW-7 Izhar deposed that in the year 2011, while residing at the house of Sh.Gyanendra at Village Nangli Poona in Delhi, he used to visit Karan Pappu Hotel (Dhaba) for having food and due to this reason he had developed friendly relations with the owner of said hotel, namely Sh. Papoo. He stated that on the day of festival of Holi in the year 2011, he alongwith Sh. Karan and one Pintoo had gone to Village Bhalaswa Jahangirpuri, Delhi on a motorcycle. He deposed that Pintoo was under the influence of Alcohol and when they were returning back to Nangli Poona, one cow had suddenly come in front of the motorcycle and in order to save the cow accused Karan who was driving the motorcycle in question had hit the same against the divider of the road due to which all three of them, including, himself, Karan and Pintoo had fell down along with the motorcycle. He stated that accused Karan was driving his motorcycle at a speed of about 30 KM Per hour and had not committed any fault or any rash and negligent act in driving the motorcycle in question. He deposed that after the occurrence of the above mentioned accident, he had lost his FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 consciousness and had regained the same at BJRM Hospital.
PW-7 was cross examined by Ld. APP for the State with the permission of the court as he had resiled from his earlier statement given to police officials under the provisions of section 161 of CrPC.
In his cross examination by learned APP for the State, PW-17 denied the suggestion that while returning from Village Bhalaswa he had refused to ride on the motorcycle in question and had told his friends that he would walk to Village Nangli Poona. He further denied the suggestion that Pintoo was highly intoxicated and was driving the motorcycle in a zig zag manner. He also denied the suggestion that he had been forcibly made to sit on the motorcycle in question by Pintoo and while driving the motorcycle in question in a dangerous manner, accused Karan had hit the same against a wall on the road due to which all of them had fell down and he had lost his consciousness. He further denied the suggestion that all three of them had been taken to BJRM Hospital by PCR Van and from the said hospital, all three of them had gone back to their respective houses in one TSR. He categorically denied the suggestion that the above mentioned accident had taken place due to rash and negligent driving the motorcycle in question by accused Karan despite being confronted with his statement under Section 161 of CrPC Mark X-1 from portion A to A-1 wherein the above mentioned facts had been recorded.
PW-7, however, admitted that he had subsequently come to know that due to grievous injuries sustained by Sh. Pintoo, the said Sh. Pintoo had been taken to Maharishi Valmiki Hospital, Pooth Khurd, Delhi, where he had succumbed to the injuries sustained by him. He denied the suggestion that the registration number of the offending motrocyle on which he was riding was DL 5S AB 8642. He expressed his inability to identify the offending motorcycle despite being shown its FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 photographs Mark X-2 and X-3. He, however, admitted that the accused Karan was present in photographs Mark X-2 and Mark X-3. Accused Karan was exempted from personal appearance at the time of recording of deposition of PW-7 as the accused had chosen not to dispute his identity and even otherwise PW-7 Izhar had correctly identified accused Karan from photographs Mark X-2 and X-3. Sh. Mukesh Kumar, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-7.
12. On 02.11.2018, vide separate statement made by the accused u/s 294 of CrPC, the accused had admitted the mechanical inspection report of the offending motorcycle Mark Y-1 and the recording of daily diary entry no.18A dated 21.03.2011 Mark Y-2 respectively. Accordingly, the mechanical inspector, namely, ASI Devender Kumar who had mechanically inspected the motorcycle involved in the accident in question and the daily diary writer who had recorded DD no.18A of 21.03.2011 were dropped from the list of witness.
13. After the prosecution closed its evidence an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against him in the evidence of prosecution in his statement u/s. 313 CrP.C. recorded on 15.11.2018. In his statement u/s 313 Cr.PC. accused Karan had denied all the incriminating circumstances that were put to him and had submitted that he had been falsely implicated in the present case. The accused had claimed in his defence that he had not caused the accident in question and the same had occurred due to unfortunate circumstances. He further claimed that he was not driving the offending vehicle in a rash and negligent manner at the time of occurrence of the alleged accident. He however, FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 admitted that two pillion riders were sitting behind him on his motorcycle at the time of occurrence of accident in question. Accused had preferred not to lead any evidence in his defence.
14. Final arguments have been heard from learned APP for State and learned counsel for accused, during the course of the day, today on 15.11.2018.
15. Learned APP for State has argued that prosecution has proved its case against the accused by examining one material witness, that is PW-7 Izhar who has supported the case of the prosecution by deposing that on 20.03.2011 at 3.20 p.m an accident had taken place at the intersection of Mukarba Chowk Flyover on Grand Trunk Karnal Road leading towards Sindhu Border in which one motorcycle bearing registration number DL 5S AB 8642 being driven by accused Karan on which two pillion riders were sitting had struck against a road side wall and as a consequence of collision of the offending motorcycle with the road side wall, the said motorcycle has fell down and PW-7 Izhar had sustained simple injuries, whereas another person traveling on the said motorcycle, namely, Pintoo had lost his life. Learned APP for the State has further submitted that the eye witness, that is PW-7 Izhar has correctly identified the accused to be driver of the offending vehicle from his photograph Mark X-2 and X-3 and even otherwise the accused has chosen not to dispute his identity and thus, there is sufficient incriminating evidence against the accused in the present case and therefore the accused deserves to be held guilty for the commission of offences punishable under Section 279/337/304 A of IPC as well as for the commission of offences of permitting triple riding on a two wheeled motor vehicle meant for use by two people only punishable under Section 128/177 of Motor Vehicle Act.
FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23
16. Per contra, Learned counsel for the accused has advanced following arguments in defence of the accused.
17. Firstly it has been argued in defence of the accused that although PW-7 Izhar has correctly identified the accused to be the driver of the offending vehicle, however he has not attributed any rash and negligent act upon the accused and therefore, no incriminating evidence has come on record against the accused in the entire deposition of PW-7 whereby a finding can be arrived at to the effect that accused was driving his motorcycle in a rash and negligent manner. With these submissions learned counsel for the accused has prayed that the accused deserve to be acquitted in respect of charges framed against him for the commission of offences punishable u/S 279/337/304A IPC.
18. Secondly, it has been submitted in defence of the accused that prosecution has not only failed to prove that the accused was driving the offending vehicle in a rash and negligent manner at the time of occurrence of the alleged accident but has also led no evidence of its own to establish that the offending motorcycle, a vehicle having seating capacity of two persons was being used for travel by three persons at the time of occurrence of the alleged accident and in this regard the admission made by the accused in his statement u/S 313 Cr.P.C. of the fact that three persons were sitting on the motorcycle in question at the time of occurrence of the alleged accident cannot be used as an incriminating evidence against the accused for the purpose of arriving at a finding of guilt against him for the commission of offence of permitting triple riding on as vehicle having seating capacity of two persons punishable under Section 128/177 of MV Act.
19. I have considered the rival submissions of learned APP for State FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 as well as of the learned counsel for the accused. Before embarking upon an appreciation of entire evidence led by prosecution in support of its case, I shall examine the relevant provisions of section 279/337/304A of IPC and 128/177 of Motor Vehicle Act applicable to the facts and circumstances of the present case.
20. In order to establish criminal liability for the commission of offences punishable u/s 279/337/304A of IPC and 128/177 of Motor Vehicle Act, it was necessary for prosecution to establish that the accused was driving the offending vehicle on a public way in a manner so rash and negligent as to endanger the human life and personal safety of others and while so driving his vehicle the accused had caused an accident resulting in either simple or fatal injuries on the person of the victim of the said accident. In other words, firstly, prosecution had to prove beyond reasonable doubt that the accident in question has been caused by the offending vehicle being driven by the accused. Secondly, prosecution was also required to prove that the impugned vehicle was being driven in a rash and negligent manner at the time of occurrence of the accident in question. Thirdly, prosecution was required to establish that the act of the accused of driving his vehicle rashly and negligently was the proximate and the most immediate cause of the injuries sustained by the victim of the accident in question. Lastly, prosecution was also supposed to establish that at the time of occurrence of the accident in question, three persons were riding on a motor vehicle meant for use by two people. In this context, sections 337, 338 and 304A of IPC and 128/177 of Motor Vehicle Act provide as under:-
279. Rash driving or riding on a public way -
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337. Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
304A. Causing death by negligence--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 128 and 177 of The Motor Vehicles Act, 1988
128. Safety measures for drivers and pillion riders.--
(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.
Section 177 in The Motor Vehicles Act, 1988
177. General provision for punishment of offences.--Whoever contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence be punishable for the first offence FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees.
21. In the light of aforecited provisions of section 279/337/304A of IPC it can be safely concluded that in order to hold any person guilty for the commission of offences punishable under section 279/337/304A IPC firstly, it is imperative for prosecution to establish the identity of the offending vehicle and its driver beyond reasonable doubt. Secondly, prosecution is required to establish that the offending vehicle was being driven in a rash and negligent manner by the accused. Thirdly, prosecution is expected to prove that the act of the accused of driving his vehicle in rash and negligent manner was the proximate and most immediate cause of the injuries sustained by the victim of the accident in question. In other words, prosecution is expected to prove that the injuries detected on the person of the victim should have emanated from the act of the accused of driving his vehicle in a rash and negligent manner. Fourthly, prosecution was also supposed to establish that at the time of occurrence of the accident in question, three persons were riding on a motor vehicle meant for use by two people.
22. Having referred to the relevant provisions of law, I shall now examine the two arguments advance in defence of accused in the light of legal provisions and law of precedents.
23. Firstly, it has been argued in defence of the accused that although PW-7 Izhar has correctly identified the accused to be the driver of the offending vehicle, however he has not attributed any rash and negligent act upon the accused and therefore, no incriminating evidence has come on record against the accused in the entire FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 deposition of PW-7 whereby a finding can be arrived at to the effect that accused was driving his motorcycle in a rash and negligent manner and therefore the accused deserve to be acquitted in respect of charges framed against him for the committing of offences punishable u/S 279/337/304A IPC.
24. In the present case the case of prosecution rest on the testimony of one witness, that is, PW-1 Izhar who has only partially supported the case of prosecution on facts by deposing that on the day of occurrence, an accident had taken place in which the motorcycle being driven by accused Karan on which PW-7 Izhar and one Pintoo were tavelling as pillion riders had struck against the divider of the road and had fell down due to which he himself had sustained simple injuries whereas the other pillion rider namely Pintoo had sustained fatal injuries. He has, however, claimed that no rash and negligent act had been committed by the driver of the motorcycle in question, that is, accused Karan and had clarified that accused Karan had struck the motorcycle against the divider of the road in order to save a cow which had suddenly come in front of their motorcycle. Specific deposition of PW-7 Izhar is reproduced below in this context :-
"'While we all were returning back to village Nangli Poona, suddenly one cow came in front of a motorcycle and in order to save the same out motorcycle hit against the divider due to which we all fell down. He motorcycle was being driven by accused Karan at a speed of around 30 KMPH. There was no fault on the part of accused Karan in driving the motorcycle".
25. From a perusal of above cited extract of the testimony of PW-7 Izhar it is evident that although PW-7 had named accused Karan to be the driver of the offending vehicle, however he had not attributed any rash and negligent act upon accused Karan and had categorically FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 stated that accused Karan was driving his motorcycle properly without committing any fault at a speed of 30 KMPH.
26. In order to prove its case against the accused beyond reasonable doubt for the commission of offences punishable under section 279/337/304A of IPC, prosecution was not only required to establish the identity of the accused beyond reasonable doubt but was also required to attribute any specific act of rashness or negligence upon the accused to make him criminally liable for the commission of above mentioned offences.
27. In this context, it has been held in the case of Vinod Kumar Vs. State (Delhi) 2011 (4) JCC 2786 decided on 13.10.2011 that driving a vehicle on public road is no offence unless the driver of a vehicle involved in a road accident commits any specific act of rashness or negligence which results in occurrence of an accident. Observations made in para 7 and 8 of the judgement are noteworthy in this context and are reproduced below:-
7. No Evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to proved the rashness and negligence of the Peti-
tioner. No photographs of the spot or the bus have been taken. PW10 the alleged eyewitness to the in- cident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the petitioner. There is no evi- dence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the petitioner, especially when the area was a crowded one.
FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23
8. The essential ingredients to constitute an offence punishable under section 279 IPC are that there must be rash and negligent driving or finding on public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person for an offence under section 304-A, the act of accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide. The prosecution in the present case has failed to prove how the act of the petitioner was rash or negligent to bring the same under the purview of Section 279/304-A IPC.
28. In the light of above cited opinion expressed by Hon'ble High Court of Delhi in the case of Vinod Kumar Vs. State (Delhi) 2011 (4) JCC 2786 decided on 13.10.2011, I am of the considered opinion that prosecution's success in establishing the identity of the accused as the person who was driving the motorcycle in question at the time of occurrence of the accident in question in which the motorcycle in question had collided against a road side wall and had fell down as a consequence of which one pillion rider, namely, PW-7 Izhar had sustained a simple injuries whereas another pillion rider named, Pintoo had sustained fatal injuries cannot be used to hold the accused criminally liable for the commission of offences punishable under section 279/337/304A of IPC as driving a vehicle on a public road is not an offence in itself unless any specific act of rashness and negligence is committed by the driver of such a vehicle while driving the same on a public road. However, in the present case the only eyewitness of prosecution, namely, PW-7 Izhar has not attributed any specific act of rashness and negligence on the driver of the offending vehicle and therefore there is no material on record to arrive at a finding of guilt against the accused for the commission of offences punishable u/S 279/337/304A IPC.
FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23
29. Having arrived at the conclusion that there is no material on record to hold the accused guilty for the commission of offences punishable u/S 279/337/304A IPC, I shall now examine the entire evidence led by the prosecution for proving the commission of offences punishable u/S 128/177 of Motor Vehicle Act in the light of second arguments advanced by learned defence counsel.
30. Secondly, learned counsel for the accused has argued that there is no incriminating evidence against the accused in respect of commission of offences punishable u/S 128/177 of MV Act from his own statement U/s 313 Cr.P.C. wherein the accused had admitted that at the time of occurrence of the alleged accident two pillion riders were sitting on the motorcycle being driven by the accused. Learned counsel for the accused has further agued that the statement of an accused U/s 313 Cr.P.C. is not his evidence, therefore, the same can neither be relied upon as a piece of incriminating evidence against the accused nor be used to arrive at a finding of guilt against the accused.
31. In respect of second argument advanced by learned defence counsel it is pertinent to mention that a perusal of court record shows that the statement of accused U/s 313 Cr.P.C. is not the only piece of incriminating evidence against the accused. In fact prosecution has led independent evidence against the accused in the form of testimony of PW7 Izhar who was a victim of the alleged accident and had partly supported the case of prosecution by deposing that at the time of occurrence of the alleged accident, he along with another pillion rider namely Pintoo was traveling on the offending motorcycle being driven by the accused.
32. In fact, it is trite law that although an accused person cannot be held guilty of having committed any offence only on the basis of his FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 own statement U/s 313 Cr.P.C. However, the statement of the an accused u/s 313 CrPC can be used against an accused person when the same is substantiated or corroborated by other independent evidence.
33. Similar observations were made by Hon'ble Supreme Court in the case of State of UP Vs. Laxmi 1998 (4) Supreme Court Cases 336 wherein the Hon'ble appex court had cautioned that inculpatory admissions made by an accused persons cannot be altogether brushed aside merely because they were advanced as a defence strategy by the accused. However, the said admissions made by an accused persons cannot be made the sole basis for arriving at a finding of guilt against the accused. Observation made in para 8 of the judgement are noteworthy in this context and are reproduced below:-
8.As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value or utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases the accused would offer some explanations to incriminative circumstances. In very rare instances the accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the court gets the advantage of knowing his version about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him there FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.
34. A Similar opinion was expressed by Hon'ble Supreme Court of India in the case of Mohan singh Vs. Prem Singh and Anr, (2002) 10 Supreme Court Cases 236, wherein the Hon'ble Supreme Court of India had reiterated that although a statement made by an accused person is not a substantive piece of evidence or a substitute for the evidence of prosecution, however, the same can certainly be used as an aid to lend credence to the evidence led by prosecution. Relevant observations made in para 27 and 30 of the judgement are pertinent to note in this context and are reproduced below:
27.The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction.
The law on the subject is almost settled that statement under Section 313 CrPC of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha vs. State of Bihar : (SCC pp357- 58, para 23).
23."In this case the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 CrPC to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was exclaimed by the doctor on 13.10.1961 negatives both these versions. Neither of FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in River Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, PW17 and asking him about the cause thereof. The bleeding was not a simple one a his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Exhibit 6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime."
30.The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.
35. A similar opinion was also expressed by Hon'ble Punjab and Haryana High Court in the case of Tehal Singh Vs State of Punjab, (P&H) (D.B.) 2003(3) R.C.R.(Criminal) 202:2003(2) Cri. CC.406 wherein the Hon'ble Punjab and Haryana High Court had observed FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 that a statement of accused U/s 313 Cr.P.C. would be a relevant piece of evidence when the same lends substantial support to the case of prosecution. Observations made in para 18 of judgement are noteworthy in this context and are reproduced below:-
18. It is a settled principle of law that statement of an accused under section 313 Cr.P.C. can be looked into by the court and would be a relevant evidence to be taken into consideration insofar as it lends support substantially to the case of the prosecution. However, such a statement cannot be itself be made the ground for conviction of accused, Reference in this regard can be made to the judgment of the Supreme Court in the case of State of U.P V Lakhmi, 1998(1) (Criminal) 754 (SC):JT 1998 (1) SC 679.
36. In yet another case of Bishnu Prasad Sinha and Anr Vs State of Assam AIR 2007 SUPREME COURT 848, the Hon'ble appex court had similarly observed that the statement of accused u/s 313 Cr.PC can be looked into in the light of other evidence brought on record by the prosecution but cannot form the sole basis of conviction of an accused. The relevant extract of observations made by Hon'ble Apex court in para 34 of the judgement is reproduced below:-
34.It is well settled that statements under section 313 of the Code of criminal procedure, cannot form the sole basis of conviction; but the effect thereof may be considered in the light of other evidence brought on record. (See Mohan Singh Vs. Prem Singh (2002) 10 SCC 236 state of U.P. Vs Lakhmi (1998) 4 SCC 336 and Rattan Singh Vs State of HP (1997) 4 SCC 161
37. A similar opinion was also expressed by Hon'ble Apex court in the case of Ratan Singh Vs. State of HP,(1997)4 Supreme Court FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 Cases 161 wherein the Hon'ble Apex court had cautioned that examination of accused u/s 313 Cr.PC is not an empty formality and can be of practical utility to criminal courts in appreciation of the entire evidence led by prosecution. Observations made in para 20 of the judgement passed in this case are noteworthy in this context and are reproduced below:
20. Examination of the accused under section 313 of the code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the court in appreciating the entire evidence adduced in the court during trial. Ex P-1-gun-admittedly belongs to the assailant.
Therefore, when PW 10 said in court that she succeeded in snatching it from the assailant and she surrendered it to the police, we see no reason to disbelieve her, particularly in view of the evasive answer given by the appellant to the question concerned.
38. In the light of aforecited opinion expressed by Hon'ble Supreme Court of India and Hon'ble High court of Punjab and Haryana in the decided cases of State of UP Vs. Laxmi 1998 (4) supreme Court Cases 336, Mohan singh Vs. Prem Singh and Anr, (2002) 10 Supreme Court Cases 236, Bishnu Prasad Sinha and Anr. State of Assam AIR 2007 SUPREME COURT 848, Ratan Singh Vs. State of HP,(1997)4 Supreme Court cases 161 and Tehal Singh Vs State of Punjab, (P&H) (D.B.) 2003(3) R.C.R.(Criminal) 202:2003(2) Cri. CC.406, I am of the considered opinion that although a statement made by the accused u/s 313 Cr.PC is not a substantive piece of evidence and cannot form the sole basis of arriving at a finding of guilt FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 against an accused. However, when the said statement made by accused lends substantial credence to the other independent evidence led by prosecution, the same can be used for the purpose of arriving at a finding of guilt against the accused in corroboration with the evidence of prosecution.
39. In the present case, the evidence led by prosecution to prove that the accused had allowed a motorcycle having seating capacity of two persons to be used for travel by three persons in the form of deposition of PW7 Izhar who being the eye witness had categorically stated that at the time of occurrence of the alleged accident he alongwith another pillion rider namely Pintoo was sitting on the offending motorcycle has been corroborated with the admission made by the accused in his statement u/s 313 Cr.PC. Hence, the said statement made by the accused u/s 313 Cr.PC can be used to lend credence to the story of prosecution. In view of the facts and circumstances detailed above I find no merit in the second argument advanced by learned counsel for accused to the effect that the statement of accused u/s 313 Cr.PC is the only piece of evidence against the accused in the present case and the same cannot be used to arrive at a finding of guilt against the accused.
40. Thus, prosecution has led sufficient evidence to prove that accused had permitted two pillion riders to sit on the motorcycle being driven by him and had thereby committed the offences punishable u/S 128/177 MV Act. However, prosecution has failed to lead reliable and admissible evidence to prove the commission of offences punishable u/S 279/337/304A IPC by the accused. In these circumstances accused Karan stands acquitted in respect of all the charges levelled against him for the commission of offence punishable under section FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23 279/337/304A IPC for want of sufficient incriminating evidence against him. He is however held guilty and convicted for the commission of offences punishable u/S 128/177 MV Act.
41. At the request of learned counsel for the accused, matter be recalled at 1.00 pm for arguments on point of quantum of sentence.
Digitally signed by JASJEET JASJEET KAUR
KAUR Date: 2018.11.20
13:13:46 +0530
Announced in open court (Jasjeet Kaur)
on 15.11.2018 ACMM (North): Rohini, Delhi
FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23
STATE VS. Karan
FIR No.64/11
U/s 279/337/304A IPC & 128/177 MV Act
P.S. Mahendra Park
15.11.2018
Present: Ld. APP for State.
Accused in person with Ld. Counsel Mr. Mukesh Kumar Final arguments heard.
Vide separate judgment announced in the open court, the accused has been acquitted in respect of the charges levelled against him for the commission of offence punishable under section 279/337/304A IPC for want of sufficient incriminating evidence against him. He has, however, been held guilty and convicted for the commission of offences u/S 128/177 MV Act.
At request, learned counsel for convict matter be recalled at 1 PM for arguments on the point of quantum of sentence.
(JASJEET KAUR)
ACMM(North): Rohini/15.05.2018
at 1 pm
Present: Ld. APP for State.
Convict in person with Ld. Counsel Mr. M.S. Dahiya. Arguments on the point of quantum of sentnce heard.
Vide separate order on the point of quantum of sentence of even date, convict has been sentenced to pay fine of Rs.100/- and to remain in custody till rising of the court for commission of offence punishable under section 128/177 of MV Act. In default of payment of fine, convict shall undergo simple imprisonment of ten days. Fine paid.
In compliance of provisions of section 437A Cr.PC accused Karan is admitted to bail on furnishing bail bond in the sum of Rs.25,000/- with one surety in the like amount.
Bail bond furnished and same is accepted.
It is clarified that accused Karan and his surety shall remain bound by the personal bond and surety bond respectively furnished by them for the next six months with effect from today.
File be consigned to record room after compliance of necessary formalities.
(JASJEET KAUR) ACMM(North): Rohini/15.11.2018 FIR No. 64/11 State Vs. Karan PS Mahendra Park 24/23