ORDER
The Court
1. On 16-7-1996 at about 1.00 a.m., Ambassador car KA-04/7515, proceeding from Bangalore towards Shimoga, being driven by the petitioner-accused, hit a roadside tree near Kerekodi Halli Village, resulting in the death of two persons travelling in the car, in addition to causing hurt to one another occupant and grievous hurt to another occupant of the car. In that regard, the petitioner came to be prosecuted at C.C. No. 651 of 1996, on the file of the learned Judicial Magistrate First Class, Arsikere, for offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code. In course of trial, one of the injured was examined as P.W. 1, two witnesses to the scene of offence mahazar were examined as P.Ws. 2 and 3 and Investigating Officer was examined as P.W. 4, with the post-mortem report, inquest report, wound certificates, IMV report, spot mahazar, another post-mortem report, rough sketch and complaint, having been got marked as Exs. P. 1 to P. 10. On appreciation of this evidence on record, the learned Magistrate convicted the petitioner of all the said offences, viz., Sections 279, 337, 338 and 304-A of the IPC and quite wrongly passed omnibus sentence in respect of all the four offences as S.I. for six months.
Petitioner's appeal before the learned Sessions Judge at Cri. A. No. 20 of 1998, on the file of the learned Additional Sessions Judge, Hassan, came to be dismissed. Though the mistake that the learned Magistrate had committed in passing such omnibus sentence for several offences together, was noticed by the learned Sessions Judge, he did not proceed to correct it.
The petitioner is now before this Court under Section 397 of the Criminal Procedure Code.
2. Among the four prosecution witnesses, only witness to speak to the manner in which the accident occurred is P.W. 1-Thippaiah. One of the occupants of the car having initially states that the petitioner was driving the car in speed, and that, the accident occurred due to rashness and negligence of the petitioner, he states in cross-examination that, prior to the accident he was asleep, and that, only on hearing of the sound of impact that he woke up. That would virtually rule out his evidence as regards the manner in which the accident occurred. The other three witnesses are not examined as eye-witnesses. The position then would be that there would be no one to speak to the manner in which the accident occurred. Ms. Anjana Sundar, the learned Counsel for the petitioner-accused, would therefore submit that, there could be no presumption of an accident having occurred due to rashness and negligence of the driver, and that, that is an aspect that has to be proved by the prosecution beyond reasonable doubt by leading evidence in that regard. This position cannot be disputed. There are however certain circumstances which cannot be lost sight of. Even after waking up after hearing the sound of impact, P.W. 1 does not speak to the presence of any other vehicles in the area concerned. The spot mahazar at Ex. P. 6 would show that the width of the cement and tar portion of the road at the place of the occurrence was 19 ft. with 6 ft. kacha road on either side. It could therefore be seen that, at about 1.00 a.m. in the night, on a road of a total width of 19 ft. with 6 ft. kacha road on either side, with no other vehicles in the area, the car hits the roadside tree. As the Supreme Court points out in Mohammed Aynuddin alias Miyam v. State of Andhra Pradesh, an accident of such a nature would prima facie show that it cannot be accounted to any reason other than to the negligence of the driver of the vehicle may create a presumption, and in such a case, the driver has to explain how the accident was for a reason other than his negligence. This is what the Supreme Court states in paragraph 6 of the judgment.--
'It is a wrong proposition that for any motor accident, negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption, and in such a case, the driver has to explain how the accident happened without negligence on his part'.
In the light of this ratio of the decision of the Supreme Court, the facts of the present case could be seen. Here is a car proceeding from Bangalore to Shimoga. At the place concerned, there are no other vehicles on the road. There is no obstruction. The road is of a width of 19 ft. of cement and tar road, with 6 ft. kacha road on either side. Still, the vehicle hits a roadside tree. Added to that, there is a report of IMV Inspector at Ex. P. 5 to the effect that the accident is not due to any mechanical defect in the vehicle. In such a situation, an accident of this nature would prima facie show that the same could not be accounted to anything other than the negligence of the driver of the vehicle i.e., the petitioner. A presumption in that regard thus arises. In such a case, as pointed out by the Supreme Court, it is for the petitioner-driver to explain how the accident occurred without the negligence on his part. What the petitioner has done in course of his examination under Section 313 of the Criminal Procedure Code is, simply denying everything. He does not say anything, and even to the general question that is asked at the end as to whether he has got anything to say, he did not choose to say anything, nor did he care to explain the manner in which the accident occurred, i.e., in order to rebut the above said presumption as regards the accident occurring due to his negligence, and in order to show that accident occurred for a particular reason not attributable to his negligence. This was, therefore, an appropriate case wherein, on the basis of presumption that the Supreme Court was speaking about that conviction could be based. However, at this juncture, Ms. Anjana Sundar, the learned Counsel for the petitioner would draw my attention to the very unsatisfactory manner of the Trial Court recording the statement of the petitioner-accused under Section 313 of the Criminal Procedure Code.
As said earlier, four witnesses came to be examined in support of the case of the prosecution. P.W. 1 was an eye-witness, P.Ws. 2 and 3 were the witnesses to the spot mahazar and P.W. 4, Investigating Officer. What the learned Magistrate has done in course of examination of petitioner-accused under Section 313 of the Criminal Procedure Code is, to frame four questions in respect of 4 witnesses. In question No. 1, the learned Magistrate has clubbed together the entire evidence of P.W. 1 running to nearly half a page starting from his evidence relating to, who all left Bangalore, ending with specifying as to who had died in the accident. It was in-between somewhere insignificantly that the aspect of the petitioner's negligent driving of the car is scrambled into. The second question similarly related to what all P.W. 2 stated. The third question related to what P.W. 3 stated. The fourth question related to what P.W. 4 had stated. In fact, the evidence of the Investigating Officer, P.W. 4 referred to what all he did from 16-7-1996 to 30-8-1996, stating in-between what he did on each different date. All these are made into one single question by narrating in brief the entire evidence of P.W. 4 and styling it as one question i.e., question No. 4.
The evidence of P.Ws. 1 and 4 in particular consisted of several circumstances appearing against the petitioner-accused, and it was necessary for the learned Magistrate under Section 313 of the Criminal Procedure Code to enable the petitioner-accused personally to explain each of those circumstances appearing in the evidence against the petitioner-accused. It was in respect of such a statement under Section 313 of the Criminal Procedure Code that a Division Bench of this Court in State v. Dasharath and Ors., had this to say.--
'It will appear from the questions put to the accused that several circumstances which appeared from the evidence on record and which related to even different dates have been included in one question and the explanation of the accused sought. In our view, the manner in which the accused has been questioned by the Court under Section 313 of the Code leaves much to be desired and the manner in which the accused has been examined, in our view, did not afford to the accused a just and fair opportunity to explain the circumstances appearing against him. Several distinct matters have been mixed up in a single question. Some of the important circumstances appearing against the accused have not been put to him with specificity. We are therefore of the view that the case should be sent back to the Court of the Special Judge, Bellary, for examination of the accused afresh under Section 313 of the Code'.
The same observations that the Division Bench made as above cannot but apply to the examination under Section 313 of the CriminalProcedure Code of the petitioner-accused made herein by the learnedMagistrate.
There is one other aspect while we are on the examination of the accused under Section 313 of the Criminal Procedure Code. As noticed earlier, there is a Motor Vehicle Inspector's report at Ex. P. 5 that the accident is not due to any mechanical defect. Ms. Anjana Sundar, learned Counsel for the petitioner-accused, took exception to the non-examination of the Motor Vehicle Inspector. It would not be open to an accused to take such exception to non-examination of Motor Vehicle Inspector after allowing the Motor Vehicle Inspector's report to be brought on record as an exhibit by consent, or at any rate, without objection. The said Motor Vehicle Inspector's report therefore, in such circumstances, without the examination of the Motor Vehicle Inspector as a witness, would be available as a piece of evidence. If that were to be so, the opinion of the Motor Vehicle Inspector as regards the accident being not due to any mechanical defect, was a circumstance appearing in the evidence against the petitioner-accused, and the learned Magistrate was duty-bound, while examining the petitioner-accused under Section 313 of the Criminal Procedure Code, to put this factor as one of the questions to enable the petitioner-accused to explain the said circumstance appearing in the evidence against him. Without doing so, it would not he open to the Trial Court to make use of the said Motor Vehicle Inspector's report as a piece of evidence against the petitioner-accused. It is in that view of the matter also that the examination of the petitioner-accused under Section 313 of the Criminal Procedure Code has to be found fault with.
3. From the above discussion, it could be seen that but for the defective examination of the petitioner-accused under Section 313 of the Criminal Procedure Code, the circumstances in which the accident occurred could have been taken as prima facie showing that it could not be accounted to anything other than the negligence of the driver. But, to rebut that presumption, it was necessary for the learned Magistrate to afford an opportunity to the accused-driver to explain as to how the accident occurred without the negligence on his part. That occasion would arise by correct recording of the examination of the accused under Section 313 of the Criminal Procedure Code. Not only that the learned Magistrate has not attended to that aspect correctly, but has even omitted to draw the attention of the petitioner-accused to a particular circumstance appearing in the evidence against the petitioner-accused, viz., Motor Vehicle Inspector's report, thereby depriving the petitioner-accused of an opportunity to personally explain the said circumstance appearing against him. The inevitable course in a situation like this one is the one adopted by the Division Bench of this Court in the above said decision in Dasharath's. case, supra, viz., setting aside the conviction and sentence as imposed by the learned Magistrate and as affirmed by the learned Sessions Judge, and to remit the matter to the learned Sessions Judge to re-examine the petitioner-accused afresh under Section 313 of the Criminal Procedure Code, and to proceed in accordance with law to conclude the trial and to pronounce the judgment.
4. Conviction of the petitioner of offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code and the sentence as imposed by the learned Magistrate and as affirmed by the learned Sessions Judge, are set aside. The matter is remitted to the learned Magistrate to re-examine the petitioner-accused afresh under Section 313 of the Criminal Procedure Code, and thereafter to proceed in accordance with law, to conclude the trial and pronounce its judgment. While pronouncing the judgment, it would be necessary to caution that whatever has been stated in this order with regard to merits, shall not influence the learned Trial Judge.
5. Petition disposed off accordingly.