Ventripadu Ramaiah vs State of A.P.

A. Gopal Rao, J.—This revision is directed against the judgment dated 10.12.1991, in Crl. Appeal 133/89, on the file of the I Addl. Sessions Judge, Krishna at Machilapatnam, confirming the conviction and sentence of the petitioner imposed by the Judicial First Class Magistrate, Kailkaluru, by judgment dated 16.5.1989 in C.C.No. 161/87, for the offences Under Sections 304-A and 338 IPC and Section 89(b) r/w Section 118 of the Motor Vehicles Act. The learned Megistrate convicted and sentenced the petitioner u/s 304-A IPC to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default to suffer R.I for three months; u/s 338 IPC to suffer R.I. for three months and to pay a fine of Rs. 500/-; u/s 89(b) r/w Section 118 of the Motor Vehicles Act to suffer R.I for one month. On appeal, the conviction and sentence of the petitioner/accused for the above mentioned offences was confirmed by the lower Appellate Court. Aggrieved by the same, the present revision is filed.

The facts necessary are that : The tractor AHK 327, along with the trailer AHK 328, which was being driven by the petitioner/accused from Kurada to Penduru was involved in an accident on 12.6.1986 at 4 a.m. near Venkataswara Rice Mill in Upparagudem village. The trailer got delinked from the tractor and the tractor rammed into the house of the deceased and ran-over him while he was sleeping on a cot. Mother of the deceased, who was also sleeping nearby, sustained grievous injuries. At 9. a.m. on the same day, a report was given to the police by P.W.2. Later, the police laid a charge-Sheet against the accused/petitioner.

In order to prove its case, prosecution in all examined P.Ws. 1 to 13 and marked Exs. P.1 to P. 12. The accused/petitioner has examined none and marked no documents. Material objects 1 and 2 were marked by the prosecution.

Out of the 13 witnesses examined by the prosecution, P. W. 2 is the mother of the victim. P.W.2 is the person that gave the report, Ex. P.1. P.Ws. 3 and 4 are the eye witnesses, who later turned hostile.

P.W. 1 in her evidence deposed that she did not see as to who was driving the tractor. The accused/petitioner gave a statement/report to the police, Ex. P. 10, wherein, in addition to stating that he was driving the tractor at the time when the accident took place, he gave facts as to how the accident took place. It must be noted that this statement/ report, Ex. P. 10, was given by the accused/petitioner subsequent to the commencement of the investigation by police, on the basis of Ex. P.l report given at 9 a.m. by P.W.2.

Both the courts below, on an appreciation of the entire evidence on record held that the petitioner/accused was guilty of the offences with which he was charged and convicted and sentenced him, as already mentioned.

Sri C. Padmanabha learned Counsel for the petitioner contends that Ex. P. 10 statement/report given by the petitioner/accused during the course of investigation is not admissible in evidence as it is hit by the provisions of Section 162. Cr.P.C. and Section 25 of the Evidence Act. He also contends that when the petitioner/accused was being examined u/s 313 Cr.P.C., he was not questioned about the statement/report given by him under Ex. P. 10 and, therefore that statement/report, Ex. P. 10 cannot be used against the accused/petitioner, as laid down u/s 21 of the Evidence Act.

The learned Public Prosecutor contends that the statement/report Ex. P. 10, made by the accused/petitioner is only a statement in compliance with the provisions of Section 89 of the Motor Vehicles Act and, therefore, it cannot be considered as a confession made by the accused/petitioner and hence Ex. P. 10 statement/report is admissible in evidence.

In Faddi v. State of Madhya Pradesh AIR 1964 SC 1852 it was held:

Admissions are admissible in evidence u/s 21 of the Evidence Act. Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and whcih is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. Section 21 provides that admissions are relevant and may be proved as against a person who makes them.

In Aghnoo Nagesia Vs. State of Bihar, the Supreme Court observed:

On a plain construction of Section 24 proof of all the admissions of incre-minating facts contained in a confessional statement made under inducement, threat or promise is excluded by the section. In the same way, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to'' a police officer or made by him while in custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.

It was further held:

Where the First Information Report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 2,5 is lifted by Section 27.

In Natesan In re : (1968) M.LJ. (Cri) 122, the Madras High Court held:

If the first information given to a police officer amounts to a confession any incriminating fact mentioned therein, if it has got a bearing either directly or indirectly with the confession, such fact, even though it maybe an admission will be inadmissible. If on the other hand, the first information does not amount to a confession, any adimission made therein can be proved against the maker thereof u/s 21 the Evidence Act.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Supreme Court observed:

Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against the accused is put to him in his examination u/s 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him.

In the instant case, admittedly, Ex. P. 10 statement/report made by the accused/petitioner-herein was after the investigation was commenced on the basis of Ex. P. 1 report given to the police by P.W. 2 Except Ex. P. 10, there is no other acceptable evidence on record to hold that the tractor was being driven, at the relevant point of time when the accident took place, by the accused/petitioner-herein. Since Ex. P. 10, statement/report is made during the course of investigation, it must be considered as a confession made by the accused/petitioner regarding the fact that he was driving the tractor, at the time of the incident, which got involved in the accident. Since it is a confessional statement, it is not admissible in evidence u/s 25 of the Evidence Act. Even assuming that it is not a confessional statement, still the statement made by the petitioner/accused under Ex .P. 10 was not put to the petitioner/accused for his explanation when he was examined u/s 313 Cr.P.C. Therefore, Ex. P. 10 cannot be used against the petitioner/accused for the purpose of convicting him for the offences with which he stood charged (vide Sharad v. State of Maharashtra) (supra).

For all the above reasons. I hold that the convictions and sentences of the petitioner/accused for the offences Under Sections 304-A and 338 IPC and u/s 89(f)) r/w Section 118 of the Motor Vehicles Act are not sustainable and are accordingly set aside. The fine amount, if any, paid by the petitioner/accused shall be refunded to him.

The criminal case is thus, allowed.