Gujarat High Court
Kantilal Shiva Bhai Thakkur vs State Of Gujarat on 8 December, 1989
Equivalent citations: II(1990)ACC594
JUDGMENT P.M. Chauhan, J.
1. This Revision Application is directed against the judgment by the learned Metropolitan Magistrate, Ahmedabad, convicting the applicant for offences punishable under Section 279 and Section 304 A. I.P. Code, and sentencing to undergo rigorous imprisonment for one month and fine of Rs. 100/- in default rigorous imprisonment for 7 days for the offence punishable under Section 279 I.P. Code and rigorous imprisonment for three months and fine of Rs. 250/- in default rigorous imprisonment for 15 days for the offence punishable under Section 304A. I.P. Code and against the judgment by the Additional Sessions judge, in appeal, confirming the conviction and the sentence of the applicant. Both the Courts have held that the applicant was driving the truck No. CTF 2485 at about 6.10 A.M. on October 22, 1979 at the public place at Acher Cross Roads on Ahmedabad Kalol Road in a rash and negligent manner and by such driving, caused death of Tulsibhai Ishwarbhai who was proceeding on a cycle. The Courts below relied on the evidence of eye witnesses Ganpatram and Mankuram, and specifically the evidence of Mankuram, who stated that the truck was being driven in a high speed and in a zig-zig manner and dashed with the traffic island and proceeded towards the right hand side. It is clear from the evidence that the truck was being driven in a high speed and rashly and negligently and dashed with the traffic island and proceeded towards the right hand side and dashed with the cyclist, causing his death, and then proceeded ahead and dashed with the cabins on the right hand side of the road.
2. Shri S. v. Raju learned Advocate for the applicant, submits that the Courts below erred in holding that the applicant was driving the truck. In submission of Shri Raju, the statement made by the applicant before the P.S.I. Gadhavi should not have been considered as evidence as it is hit by the provisions of Section 25 of the Evidence Act. Shri Raju also submitted that the further statement recorded under Section 313 of the Criminal Procedure Code, in which the applicant admitted to have been driving the truck, should also not have been relied on as evidence by the Courts below. According to the prosecution, immediately after the accident, the petitioner rushed to the Police Station and informed Inspector Gadhavi, who was in charge of the Police Station, about the accident and, therefore, P.S.I. Gadhavi went to the scene of occurrence. It is also stated that the applicant statement before P.S. I. Gadhavi at the Police Station that he was driving the truck and the cyclist was injured and people have collected and therefore, he had rushed to the Police Station. Admissibility of that particular statement is objected to by the learned Advocate for the petitioner. It is true that any confessional statement made by the accused before the Police is not admissible in evidence under Section 25 of the Evidence Act and, therefore, the confessional part of the Statement should not have been considered as an admissible evidence. However, the fact remains that the applicant went to the Police Station at about 6.15 A.M. and gave information about the accident. That much part of the evidence of P.S.I Gadhavi is admissible under Section 8 of the Evidence Act as the conduct of the applicant. It is, however, clear that the petitioner in statement recorded under Section 313 of the Code of Criminal procedure came out with the definite admission that he was driving the truck. He stated that he was proceeding with the truck and one cyclist was proceeding and to save the cyclist, he had taken the truck towards the right hand side, and the truck dashed with the pillar. It is, therefore, admitted by the applicant that he was driving the truck. Shri Raju, learned Advocate for the applicant, however, submitted that even that part of the statement of the applicant cannot be separated and cannot be accepted in evidence. To substantiate the submission, Shri Raju relied on the decision in Buli Dei v. State 1963 (2) Crl LJ 470. Referring to the provision of Section 313 of the Code of Criminal Procedure, it is submitted that the purpose of recording further statement is to enable the accused to explain the circumstances. As provided in Sub-section (4) of Section 313 the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. It is, therefore, clear that the answers can be taken into consideration in a trial. In this particular case, the applicant came out with the clear case that he was driving the truck and, therefore, there was no reason as such for the Courts below not to accept that part of the admission of the applicant. Considering the evidence and the admission of the applicant, the Courts below rightly held that the applicant was driving the truck.
3. In Bull Dei v. State 1963 (2) Crl. LJ 470, referred to by Shri Raju, learned Advocate for the applicant, a Division Bench of the Orissa High Court was considering the provisions of Section 342 of the Code of Criminal procedure, 1898, and after referring to the two decisions of the Supreme Court in Vijendrajit v. State of Bombay and in Karnail Singh v. State of Punjab AIR 1954 SC 204, observed that the two decisions of the Supreme Court clearly establish the principle that if the entire statement relates to two different facts,, the admission with regard to one fact may be accepted while the admission with regard to one fact may be accepted while the admission with regard to the other part may be rejected. Considering the facts of the case, it is observed that:
This case directly illustrates the point that even though the entire admission relates to one act, a part of it may be accepted and the other part rejected, provided there is satisfactory prosecution evidence for accepting the inculpatory part and rejecting the exculpatory part.
Shri Raju, referring to this observation, submits that the inculpatory part is required to be corroborated by the other evidence and only after that it can be accepted. The observation does not clearly bear out that interpretation and the submission of Shri Raju, therefore, deserves to be rejected, Considering the facts of the instant case, there is sufficient evidence on the record to hold that the applicant was driving the truck. The contention that the prosecution has failed to establish that the applicant was arriving the truck is repelled.
4. It is submitted that the learned Sessions Judge replied on the principle of res ipsa loquitur but that principle being the principle applicable to the torts should not be made applicable in criminal proceedings. Before adverting to that submission, the factual aspect relied on by the Courts below and specifically the learned Magistrate may be shortly discussed. The prosecution relied on the evidence of witness Harchandbhai, whose shop was damaged by the dash of the truck and also on testimony of witnesses Ganpatram and Mankuram have clearly stated that the truck was proceeding in a zig zag manner and in such a manner that it was not under the control of the applicant. The learned magistrate considered this aspect and specifically observed that the truck was being driven in a high speed and in a zig zag manner and rightly observed that the applicant was driving the truck rashly and negligently. It is also clear that the truck was being driven in a high speed so that it was beyond the control of the driver. The learned trial Judge has rightly relied on the evidence of both the witnesses and has rightly held that the truck was being driven by the applicant rashly and negligently in a public place. The learned Additional Sessions Judge, on appreciation of the evidence, also endorsed that finding. Considering the evidence, I agree with the finding by the Courts below and do not for any reason to differ from them. In view of that, question of application of the principle of res ipsa loquitur does not arise.
5. It was urged before the learned Additional Sessions Judge that the principle of res psa loquitur is not applicable in such cases and in support of the contention, reliance was laced on Syed Akhtar v. State of Karnataka . Shri Raju, learned Advocate for the applicant, has also urged the same contention before me. The penultimate observations by their Lordships of the Supreme Court in paragraph 30 are:
30. Such simplified and pragmatic application of the notion of res ipsa loquitur as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.
From the above observations, it is clear that even in a criminal trial, the notion of res ipsa loquitur can be considered but subject to the conditions specified by their Lordships, as above. It is urged that the very fact that the truck proceeded towards the right hand side is not sufficient to hold the rash and negligent driving of the applicant. As discussed above, that is not the only circumstance on which the prosecution has relied, but also on the unassailable evidence, which is very clear, and from that, the rash and negligent driving of the applicant is established.
6. It is submitted that the learned Magistrate should have extended the benefit of probation under Section 360 of the Code of Criminal Procedure to the applicant and it was obligatory on the learned Magistrate to consider the circumstance and the fact that the applicant was aged about 22 years at the time of incident. It is true that under Section 360, Code of Criminal Procedure, in case a person above 21 years of age is convicted of the offence punishable with fine only or with imprisonment for a term of seven years or less, if it appears to the Court before which he is convicted, regard being had to the age, character and antecedents of the offender and to the circumstances in which the offence was committed, that it was expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period as the Court may direct and in the meantime to keep the peace and be of good behaviour. It is, however, for the Court convicting the accused to consider all these circumstances. Before the learned Magistrate all the relevant circumstances, including the age were pleaded to extend the benefit of probation to the applicant, but the learned Magistrate, considering the circumstances of the case, refused to extend that benefit It is true that the learned Magistrate has not recorded extensive reasons for that but from the observation by the learned Magistrate, it is evident that considering the circumstances that benefit is not extended. The applicant drove the heavy vehicle, the truck, in such a rash and negligent manner that not only he dashed the truck with the pillar and killed one person, but also dashed with the cabins on the right hand side of the road. The learned Magistrate and the Sessions Judge have rightly not extended the benefit and I also not find any circumstances to extend the benefit of probation to the applicant In Ratan Singh v. State of Punjab , Their Lordships of the Supreme Court refused even to interfere with sentence of two years, rigorous imprisonment ordered to the truck driver, observing that:
3.This, however, does not excuse the accused from his rash driving of a blind Leviathan in berserk locomotion. If we may adapt the words of lord Greene M.R. It scarcely lies in the mouth of truck driver who plays with fire to complain of burnt fingers'. Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 364-A I.P.C. and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitur, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift. Looked at from this angle, we are convinced that the present case deserves no consideration on the question of conviction.
In State of Karnataka v. Krishna alias Raju , their Lordships of the Supreme Court even enhanced the sentence to 6 months' rigorous imprisonment and fine of Rs. 1,000/- in default rigorous imprisonment for two months for an offence punishable under Section 304A, I.P. Code criticising the lenient view to imposing fine by the Magistrate and confirming it by High Court. This Court in Somabhai v. State of Gujarat 1988(2) GLR 995, following observations in Rattan Singh (supra) and Krishna (supra) and referring several judgments of this High Court, repelled the prayer for extending the benefit and releasing on probation. That submission of Shri Raju, therefore, should be rejected.
7. The last contention is that the learned Magistrate should not have imposed separate sentences for the offence under Section 279 and 304 A, I.P. Code. In M.H. Mohmedali v. State , it is observed that in such cases, the accused can be rightly convicted for each of the two offences under Section 304A and Section 279, I.P. Code, but punishment for minor offences under Section 279 cannot be passed in view of the provisions contained in Section 71 of the Indian Penal Code. The sentence under Section 279, I.P. Code was, therefore, set aside. That judgment is subsequently followed by this Court in Criminal Revision Application No. 340 of 1976, decided on July 1, 1977. Section 71, I.P. Code specifically provides that when several acts of which one or more than one would by itself or themselves constitute an offence constitute, when combined, a different offence, the offender shall not be punished with more severe punishment than the Court which tries him could award for any one of such offences. Rash or negligent act is the main ingredient or gist of offences under Section 279. I.P. Code and also of offence punishable under Section 304A, I.P. Code. Offence punishable under Section 279, I.P. Code is committed by rash and negligent driving of vehicle on any public way, so as to endanger human life or to be likely to cause hurt or injury to any other person, while offence punishable under Section 304A, I.P. Code is committed by causing death of any person, by doing any rash or negligent act not amounting to culpable homicide. Rash and negligent act is the gist of both the offences. However, offences punishable under Sections. 279 and 304A, I.P. Code, being distinct, the accused can be convicted for both the offences, but the question is one of punishment depending, in its turn, on question whether the provisions of Section 71 are attracted or not. In the instant case, provisions of Section 71 I.P. Code are attracted as the death is caused by rash and negligent act by driving vehicle. In view of the above discussion and also law laid down by this Court, the conviction under Section 279, I.P. Code is rightly recorded, but the separate sentence for that offence should not have been imposed. The sentence of imprisonment for one month and fine of Rs. 100/- in default rigorous imprisonment for 7 days for the offence punishable under Section 279, I.P. Code is, therefore, set aside. Revision Application is partly allowed to the above extent, setting aside the sentence imposed for the offence punishable under Section 279, I.P. Code only. Except that, Revision Application is dismissed. Bail bond cancelled. The applicant will surrender within four weeks.