Gauhati High Court
Md. Farid Miah vs State Of Tripura on 11 January, 2002
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT H.K.K. Singh, J.
1. This revision petition under Section 397/401 of CrPC arises from the Judgment and order dated 30.5.1996 passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Apeal No. 20(2) of 1996, thereby upholding the conviction recorded by the learned Chief Judicial Magistrate, South Tripura, Udaipur against the petitioner for the offence under Section 279/337/427 IPC, but modifying the sentence to six months R. I. for the offence under Section 279 IPC, three months R.I. for the offence under Section 337 IPC (to run concurrently) and a fine of Rs. 2,000 for the offence under Section 427 IPC, in default to suffer two months S.I. The learned Chief Judicial Magistrate, South Tripura, Udaipur by his Judgment and order dated 12.3.1996 in G.R. Case No. 100/1995 convicted the accused-petitioner for the offence punishable under Section 279/337/427 IPC and passed the sentence to one year R.I. for the offence under Section 279 IPC, three months R.I. for the offence under Section 337 IPC and a fine of Rs. 2,000 for the offence under Section 427 IPC, in default to suffer three months' S.I.
2. On 11.5.1995 at about 8.00 p.m. while Smt. Manju Sinha (PW1) along with her daugher Smt. Ambalika Kar (PW 8) were travelling in a Rickshaw driven by All Ashrab Miah (PW 7) they were knocked down near Gada Chowmohani by an Ambessador car bearing registration No. TRA-2119 being driven by the present accused-petitioner in a rash and negligent way from the opposite direction, as a result of which the passengers as well as the Rickshaw puller sustained servere injuries and the Rickshaw was also completely damaged. The injured were shifted to hospital. Therefore, police registered R.K. Pur P.S. Case No: 90/95, dated 11.5.1995 under Section 279/33B IPC on getting the FIR and after completion of investigation the police submitted Charge-sheet and after trial the accused was convicted for the offence under Section 279/337/427 IPC as noted above and on appeal the learned Sesssions Judge upheld the conviction though slightly modified the sentence imposed by the trial Court.
3. Mr. B. Das, learned senior counsel for the petitioner raised only one point in the present revision petition. According to the learned senior counsel, there was no legally admissible evidence against the accused for commission of the crime. The learned senior counsel has submitted that the plea of the accused-petitioner was that he was not the driver of the offending vehicle. According to the accused, as per his statement recorded under Section 313 of CrPC one Hafiz Miah was driving the vehicle when the accident happened. Mr. Das has also submitted that this explanation/statement made by the accused-petitioner is fully supported by the statement of the Rickshaw puller himself (PW 7). Taking me throught the Judgment of the Courts below, statement of the accused recorded under Section 313 of CrPC and also the statement of the witnesses, particularly the statement of Ali Ashrab Miah (PW 7), the learned senior counsel has submitted that PW 7 in his deposition stated that one Hafiz Miah was the driver of the vehicle. It is true, in his statement before the Court, PW 7, who was the Rickshaw puller of the Rickshaw on which PW 1 and PW 8 were travelling, stated that he was knocked down by a Taxi bearing No. TRA-2119 which was coming at an abnormal high speed and he fell down on the ground and his right hand and right leg were injured and he lost his sense, but subsequently he learnt that the driver was one Hafiz Miah. Before the court he also stated that he could not identify the accused-person (petitioner) due to his poor eye sight. The learned counsel also has submitted that all the witnesses produced and examined on behalf of the prosecution only testified regarding offence. Damage caused to the Rickshaw and injury caused to the passengers and the Rickshaw puller as noted above.
4. In this case 13 witnesses were examined, out of which PW1, PW 7 and PW 8, as stated above are the injured persons. PW 2, PW 3, PW 9 and PW 10 are the eye witnesses, who saw the occurrence as per prosecution and there witnesses testified regarding the occurrence, but no one specifically stated that the accused was the driver of the offending vehicle. PW 4 is the Motor Vehicle Inspector, who examined the offending vehicle and gave the report that at the time of accident there was no mechanical dis-order of vehicle No. TRA-2119. PW 5 is the Doctor, who examined the Rickshaw puller and found fracture of the bone. PW 13 is the owner of the offending vehicle, who testfied that the accused Md. Farid Miah was the driver of the offending vehicle bearing No. TRA-2119 on the date of accident, i.e., on 11.5.1995. PW 13 also identified her declaration (Ext. M.O. /3) which she made regarding the accident.
5. Learned Chief Judicial Magistrate, South Tripura, Udaipur in his Judgment, regarding identity of the accused person, has recorded that the statement of the PW 13, statement made by the accused person at the time of making his plea under Section 251 CrPC and other materials and circumstances established that the accused Md. Farid Miah was the driver of the concerned vehicle and as such the accused was held guilty of the offence.
6. The owner of the vehicle, PW 13 has clearly stated that accused Md. Farid Miah was the driver of the vehicle and he was driving the vehicle on 11.5.1995 when the accident occurred at Chanban, Udaipur, Agartala road. The witness also identified the declaration (Ext. M.O./3) made by her in which she declared that the accused was driving the vehicle on the date and time of accident. According to the learned Chief Judicial Magistrate, this statement of the owner (PW 13) is supported by the circumstances that the accused surrendered before the police along with his certificates and papers and claiming himself to be the driver of the vehicle at the time of accident. Again the learned Chief Judicial Magistrate in his Judgment has recorded that at the time of explanation of the accusation of the offences to the accused under Section 251 of CrPC, the accused stated that he was driving the vehicle at a normal speed and there was no negligent on his part and according to the driver, the Rickshaw dashed on his vehicle. Hence, the learned Chief Judicial Magistrate came to the conclusion that the accused was driving the vehicle at the time of accident. The Statement made by the accused in response to the question asked under Section 251 of CrPC is important. If the accused pleads guilty to the offence accused against him, the accused may be convicted under Section 252 of CrPC. The words "whether he pleads guilty or any defence to make" indicate that the accused besides making his plea of guilty or not guilty he may make statement by way of defence and these statements are relevant though it may not be the sole basis for conviction in case the accused has not pleaded guilty. In the present case, the accused has not pleaded guilty of the offence accused against him but he stated that he was driving the vehicle in a normal and proper way with due care and cautions, that means, according to him, he was driving the vehicle at the time of accident. This fact may be looked into by the Court at the time of finding as to whether the accused was driving the vehicle at the time of accident. It may be mentioned here that though the statement made under Section 251/ 252 of CrPC may not come within the definition of the term evidence appearing in Section 3 of the Evidence Act. Still this statement under Section 251/252 of CrPC may be considered as a matter to find out whether a fact has been proved or not within the definition of word "proved" in Section 3 of the Evidence Act.
7. As noted above, the Rickshaw puller (PW 7) stated that one Hafiz Ali was the driver of the vehicle. He also stated that he become unconscious when the Ambassador car hit the Rickshaw. He was having a poor eye sight and again he stated that he subsequently come to know that one Hafiz Ali was the driver. This part of the statement of PW 7 was found to be not reliable by the learned Chief Judicial Magistrate I do not find any perversity in the said finding of the learned Chief Judicial Magistrate. The statement of the PW 7 is that later on he came to know that one Hafiz Ali was the driver of the Vehicle, means, he knew of this fact from some other persons or sources.
8. Section 60 of the Evidence Act states that oral evidence must be direct. Here the oral statement of the Rickshaw puller (PW 7) regarding the identity of the driver of the offending vehicle cannot be said to be direct because according to him he could not identify the driver at the time of accident, but only he subsequenlty learnt that one Hafiz Ali was the driver. Here, even if the source is disclosed, it can only be said that it is a hear-say evidence. Thus, his statement regarding identity of the driver cannot be acted upon and accordingly I do not find any error in the reasoning of the learned Chief Judicial Magistrate in disbelieving the statement of the PW 7. The theory of two prosecution story, i.e., the accused drove the vehicle or one Hafiz Ali drove the vehicle do not come into play in the present case as the satement of PW 7 that Hafiz Ali was driving the vehicle has not been acted upon by the learned Chief Judicial Magistrate and rightly so.
9. On the admissiblity of the declaration (Ext. M.O./3) it appears that it is a declaration/statement made by the owner of the concerned vehicle as required under section 133 of the Motor Vehicles Act. Section 133 of the Motor Vehicles Act is reproduced below :-
"133. Duty of owner of motor vehicle to give information. - The owner of a motor vehicle, the driver or conductor of which is accused of any offence under this Act shall, on the demand of any police officer authorised in this behalf by the State Government, give all Information regarding the name and address of, and the licence held by, the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him."
10. The above section casts the duty upon the owner, driver etc. to give all information regarding name, address, licence etc. of his as indicated in the Section. This section is applicable in case of any offence under the Motor Vehicles Act. Section 187 of the Motor Vehicle Act, also provides that violation of the provision of Section 133 is an offence and it is punishable with imprisonment which may extend to three months, or with fine. This provision is for the purpose of facilitating in the conduct of investigation/prosecution of the offence under Motor Vehicles Act, and also for other purposes like Motor Accident Claims etc.
11. The aforesaid statement in the form of declaration may only be used in the trial for the offence under IPC, if the statement is admissible under the relevant law. It is clear that the present statement was made on 18.5.1995, i.e., after investigation of the offence had started. Thus, this statement to the police at most will come within the ambit of Section 161 of CrPC and hence, it is hit by the provision of Section 162 of CrPC.
12. From the above, I find that the conclusion reached by the learned Chief Judicial Magistrate that the accused was driving the vehicle and he committed the offence does not call for interference. The learned Chief Judicial Magistrate has relied upon the statement of PW 13 which is supported by the conduct of the accused in surrendering himself to the police and also he made statement under Section 251 of CrPC though retracted in his statement under Section 313 of CrPC without any reason. Mr. Das submitted for release of the accused on probation, I find that ground given by the Courts below for not resorting to provision under Section 360 of CrPC and provision of Probation of Offender Act may not be interfered with.
13. Accordingly, I do not find any reason to interfere with the Judgment passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 20(2) of 1996. The revision petition is accordingly rejected.
14. The accused-petitioner is directed to surrender before the learned Chief Judicial Magistrate, South Tripura, Udaipur within a period of two weeks from today.