Indian Kanoon - Search engine for Indian Law

8. Being aggrieved by the concurrent findings of conviction and impugned sentence of imprisonment, the revision petitioner/accused has preferred this appeal.

9. Heard the learned counsel for the revision petitioner/accused and the learned High Court Government Pleader (HCGP) appearing for the Respondent-State. Perused the records.

10. Learned counsel for the revision petitioner/accused would contend that the judgment of conviction passed by the trial Court and affirmed by the Sessions Court, is perverse. He would contend that the prosecution has relied on the evidence of PWs. 1 & 2 alone, who are not eyewitnesses, as the said fact has been elicited in their cross-examination itself. He would also contend that there is collision between the Indigo Car and the Tanker in question and the driver of the Indigo Car was under intoxicated state of mind. He would also contend that there is inconsistency in the evidence of PWs.1 & 2 regarding they seeing the dead bodies in the light of mobile and torch. Further, the learned counsel has invited the attention of the Court to the cross-examination of Motor Vehicle Inspector, wherein it is elicited that fuel tank of the Tanker was damaged. He has also invited the attention of the Court to the Inquest Mahazar and according to him, the entire burden is on the prosecution to prove the guilt of accused beyond all reasonable doubt and the accused need not to give any explanation in this regard. He would also contend that, inconsistent defences taken before the Trial Court will not come to the assistance of the prosecution. Hence, he would contend that the judgment of conviction and order of sentence passed by both the courts below are erroneous, arbitrary and capricious and as such, he would seek for indulgence by this Court by setting aside the impugned judgment by acquitting the accused.

- 12 -

that inconsistent defence was taken. One defence was regarding actionable negligence on the part of the driver of Indigo Car, being under intoxicated state of mind, hitting the Tanker. However, the second defence was, the driver of the Indigo Car drove it in rash and negligent manner and he being unable to control the vehicle, it over-turned and then hit the fuel tank of the Tanker. No doubt, the accused is at liberty take inconsistent defences. But, however when he is supposed to explain certain aspects within his knowledge under Section 106 of Indian Evidence Act, he is required to explain the same, and otherwise, he is not supposed to take inconsistent defences in this regard.

16. PWs. 1 & 2 have deposed regarding actionable negligence on the part of the accused and they also identified the accused as the driver of the offending vehicle at the time of accident. The statement of PWs. 1 & 2 that the accused being driver of the

- 13 -

offending vehicle was not disputed or denied. They claim that the car over-took them and subsequently, there was head on collision, as the Tanker moved on wrong side. This is again evident from Ex.P15, which is the sketch of scene of offence. On perusal of sketch of scene of offence, it is evident that, at the accident spot, road is running from East towards West and the Indigo Car was moving towards Ghataprabha, while Tanker was moving towards Hukkeri. Collision was on the Northern side of the road and it is for the accused to explain as to why he moved the Tanker on wrong side. No doubt, the accused is not supposed to prove his defence beyond all reasonable doubt. But, he is required to prove his defence on the basis of preponderance of probabilities. But, interestingly, the accused is taking inconsistent defences and he did not explain as to how the accident has occurred and what precautions he has taken to avoid the accident.

- 15 -

petitioner/accused. But, he is not prepared to explain anything in this regard. Under such circumstances, adverse inference is required to be drawn as against accused regarding his conduct.

18. In the decision reported in (2012) 9 SCC 284 (Ravi Kapur Vs. State of Rajasthan), the Hon'ble Apex Court has laid down certain guidelines and held that, provisions of Section 313 of Cr.P.C. are not mere formality or purposeless. It is further observed that, the purpose of said provision is to provide an opportunity to the accused, which is mandatory duty of the Court to explain the circumstances. This 313 statement assumes more importance especially in accident cases when the burden is casted on accused under Section 106 of the Indian Evidence Act, as he has to explain the facts within his knowledge. But, in the instant case, the accused is not prepared to explain as to how the accident has occurred. But, on the contrary, he went on taking inconsistent defences. Though the