Pawan vs State of Chhattisgarh

D.R. Deshmukh, J.—At the request of learned Counsel for the parties, this criminal revision was heard finally at the stage of admission.

This criminal revision is directed against the judgment dated 23-7-2009 delivered by the Additional Sessions Judge, (FTC), Dhamtari, District Dhamtari in Criminal Appeal No. 06/2009 whereby conviction of the applicant under Sections 279, 338 and 304-A of the IPC and the sentence of fine of Rs. 1,000/- each under Sections 279 and 338 of the IPC and RI for one year and fine of Rs. 1,000/- each for two offences u/s 304-A of the IPC awarded by the Judicial Magistrate First Class, Dhamtari in Criminal Case No. 171/2008, vide judgment dated 5-2-2009 was affirmed.

Brief facts are that on 10-2-2008 at about 6.30 p.m., the applicant was driving jeep No. C.G. 07-T/0780 (henceforth "the jeep"), Ashok was a passenger in the jeep. Devnarayan was riding the motorcycle No. C.G. 07-K/3907 (henceforth "the motorcycle") with one Suresh Kumar as a pillion rider. Between Bedhwa and Patharia, the applicant drove the jeep in a rash and negligent manner and dashed the motorcycle, resulting in death of Devnarayan, driver of the motorcycle and Ashok, the passenger travelling in the jeep.

For providing culpable negligence of the applicant, the prosecution adduced evidence of Suresh Kumar (P.W. 2) who deposed that the jeep had dashed the motorcycle which was being driven below the tar of the road. It was also stated by Suresh Kumar (P.W. 2) that the jeep was being driven in a high speed and dashed the motorcycle from the front. Ishwar (P.W. 4) stated that after the accident, the jeep had turned turtle on the spot which was indicative of the uncontrollable speed at which the jeep was being driven. In the examination of the accused u/s 313 of the Cr.PC (henceforth "the Code"), the above-mentioned facts were not put to the applicant.

Shri Y.C. Sharma, learned Counsel for the applicant argued that the applicant has been seriously prejudiced in his defence as no opportunity was given by the Trial Judge by putting the facts mentioned above in Para 4 to the applicant while examining him u/s 313 of Code. On this premise, learned Counsel for the applicant argued that conviction of the applicant under Sections 279, 338 and 304-A of the IPC and the sentences awarded thereunder by the learned Trial Judge was liable to be set aside and the matter should be remanded to the Judicial Magistrate First Class, Dhamtari with suitable directions.

Shri P.R. Patankar, Panel Lawyer for the State did not oppose the prayer while submitting that the learned Trial Judge ought to have put the facts constituting culpable negligence to the applicant while examining him u/s 313 of the Code.

In Ajay Singh v. State of Maharashtra 2007 AIR SCW 3845, the Supreme Court held as under:

The purpose of Section 313 of the Code is set out in its opening words ''for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him''. In Hate Singh Bhagat Singh Vs. State of Madhya Bharat, , it has been laid down by Bose, J., that the statements of accused persons recorded u/s 313 of the Code ''are among the most important matters to be considered at the trial''. It was pointed out that the statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement u/s 313 has to be considered in the same way as if Section 315 is not there.

The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.

The word ''generality'' in Sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused''s failure to explain what he was never asked to explain is bad in law. The whole object of the enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.

Having considered rival submissions, I have perused the record of Criminal Case No. 171/2008. By not putting the facts constituting culpable negligence of the applicant, appearing in prosecution evidence, the Trial Court has acted in a manner wholly contrary to law. It is, therefore, a fit case in which the matter should be remanded for re-trial of the applicant/accused from the stage of examination of the accused u/s 313 of the Code.

Accordingly, the criminal revision is allowed. Conviction of the applicant under Sections 279, 338 and 304-A of the IPC and the sentences awarded thereunder by the learned Judicial Magistrate First Class in Criminal Case No. 171/2008 and affirmed by the Additional Sessions Judge, (FTC), Dhamtari in Criminal Appeal No. 06/2009 are set aside. The matter is remanded to the Judicial Magistrate First Class for proceeding afresh from the stage of recording of statements u/s 313 of the Code. The applicant, who is in jail, shall be released from the custody forthwith, if not required in any other case, and shall appear before the Judicial Magistrate First Class, Dhamtari on 28-10-2009.