1. Accused who suffered an order of conviction for the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code, in C.C.No.264/2011 dated 08.02.20213 on the file of the II Addl. Civil Judge and JMFC-III, Tumakuru, confirmed in Crl.A.No.39/2013 dated 24.08.2015 on the file of the VI Addl. District and Sessions Judge, Tumakuru, is the revision petitioner.

2. Facts in a nutshell for disposal of the present criminal revision petition are as under:

2.1 A complaint came to be lodged with Kora Police Station, Tumakuru, alleging that on 22.10.2011 at about 4.00 pm when C.H.Vinay Kumar @ Vinayaka, Nirmala, Paramesha, C.G.Shivayogi and Veeranna Shivappa Banagar, were travelling in a car bearing registration No.KA-27/M-2753 from Bengaluru to Ranibennur, accused being the driver of the lorry bearing registration No.KA-04/C-7938 drove the same in a rash and negligent manner and all of a sudden took right turn without giving any signal, on N.H.4 road near Linganahalli gate and dashed against the car bearing registration No.KA-27 M-2753. As a result of the said impact, Vinay Kumar @ Vinayaka sustained simple injuries on his left leg and right side of the chest, Nirmala sustained simple injuries on the legs and middle of her body, Paramesha sustained simple injuries on his right shoulder and near right eye brow and Shivayogi also sustained simple injuries to his right thigh and nose.

2.2. Further, Veeranna Shivappa Banagar, sustained grievous injuries on his head and other parts of the body. He was shifted to Tumakuru District Hospital for treatment. After treating him for some time, as per the advise of the doctors, injured was shifted to Fortis Hospital, Bengaluru.

2.3 However, despite best treatment, on 24.10.2010 at about 11.20 am, Veeranna Shivappa Banagar lost his life in the hospital.

3. Based on the complaint, Kora police registered a case in Crime No.164/2010. After registering the case, police conducted detailed investigation and the Circle Inspector of Tumakuru Rural Police Station filed the charge sheet against the accused for the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code.

4. Learned Trial Magistrate took cognizance of the offences and summoned the accused, who appeared before the learned Trial Magistrate. After compliance of the provisions of Section 207 of the Code of Criminal Procedure, plea was recorded. Accused pleaded not guilty and therefore, trial was held.

5. In order to bring home the guilt of the accused, prosecution in all examined ten witnesses viz., Paramesh, Shivayogi, Vinay Kumar @ Vinayaka, who are the injured witnesses in the same accident, Raju, Lakshman, Manjunath-the circumstantial and panch witnesses, Dr.Nagendrappa and Dr. Veerabhadraiah who have issued the wound certificate and post mortem report and the Investigation Officers viz., Ramakrishnaiah and Kalleshappa, as P.Ws.1 to 10.

6. The prosecution placed on record 16 documentary evidence on record which were exhibited and marked as Exs.P.1 to P.16 comprising of complaint, spot mahazar, inquest mahazar, IMV report, post mortem report, wound certificates, FIR, requisition, rough sketch, notice, reply notice and indemnity bond of the owner of the lorry.

7. Learned Trial Magistrate thereafter recorded the accused statement in detail by putting across the incriminatory materials calling for his explanation. Accused denied all the incriminatory circumstances including the accident. Accused did not furnish any written submission as is contemplated under Section 313(4) of the Code of Criminal Procedure nor he got examined himself as a defence witness.

8. Thereafter, learned Trial Magistrate heard the parties and on appreciation of the material evidence on record, convicted the accused for the aforesaid offences and sentenced as under:

“Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offences punishable under Sections 279, 337 and 304A of IPC.

The accused is sentenced to pay fine of Rs.750/- for the offence punishable under Section 279 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 15 days.

The accused is sentenced to pay fine of Rs.400/- for the offence punishable under Section 337 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 10 days.

The accused is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.2,000/- for the offence punishable under Section 304A of IPC. In default of payment of fine, he shall undergo simple imprisonment for 30 days.

His bail bond and surety bond cancelled forthwith. Supply free copy of this Judgment to the accused.”

9. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.39/2013. Said appeal also came to be dismissed on merits.

10. Being further aggrieved by the same, accused has preferred the present revision petition.

11. Sri B.B.Patil for Sri Prakash R. Garasangi, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused for the aforesaid offences and sought for setting aside the impugned judgments.

12. He further contended that, even in the absence of any explanation offered by the accused, the Court cannot ipso facto convict the accused for the offence punishable under Section 304A of the Indian Penal Code and therefore, sought for allowing the revision petition.

13. He further contended that in the event this Court upholding the Order of conviction, the sentence of imprisonment ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court needs a relook and this Court may enhance the fine amount and set-aside the imprisonment period and sought for allowing the revision petition to that extent.

14. In support of his arguments, learned counsel for the revision petitioner has placed reliance on the following judgments:

"(i) Just Rights for Children Alliance & another vs. s. Harish and others reported in 2024 SCC Online SC 2611.

(ii) Sukhpal Singh vs. NCT of Delhi reported in 2024 SCC Online SC 800.

(iii) Darshan Singh vs. State of Punjab reported in (2024)3 SCC 164.

(iv) Wazir Khan vs. State of Uttarakhand reported in (2023) 8 SCC 597.

(v) Pappu vs. State of Uttar Pradesh reported in (2022)10 SCC 321.

(vi) Mallikarjun & others vs. State of Karnataka reported in (2019) 8 SCC 359.

(vii) Uppala Bixam @ Bixmiah vs. State of Andhra Pradesh reported in (2019) 13 SCC 802.

(viii) Khekh Ram vs. State of Himachal Pradesh reported in (2018)1 SCC 202.

(ix) Yogesh Singh vs. Mahabeer Singh and others reported in (2017)11 SCC 195.

(x) Noorahammad and others vs. State of Karnataka reported in (2016)3 SCC 325.

(xi) Rajiv Singh vs. State of Bihar reported in (2015)16 SCC 369.

(xii) Ramesh vs. State through Inspector of Police reported in (2014)9 SCC 392.

(xiii) Phula Singh vs. State of Himachal Pradesh reported in (2014)4 SCC 9.

(xiv) Rajkumar vs. State of Madhya Pradesh reported in (2014)5 SCC 353.

(xv) Bakhshish Singh vs. State of Punjab & another reported in (2013)12 SCC 187.

(xvi) Raj Kumar Singh vs. State of Rajasthan reported in (2013)5 SCC 722.

(xvii) Ashok Kumar vs. State of Haryana reported in (2010)12 SCC 350.

(xviii) Ishwar Sadeppa Nandennavar vs. State of Karnataka reported in ILR 2004 KAR 1459.

(xix) Mohammed Aynuddin vs. State of Andhra Pradesh reported in (2000)7 SCC 72."

15. Per contra, Smt.Waheeda M.M. learned High Court Government Pleader supports the impugned Orders and opposes the revision grounds emphatically.

16. She further contended that the learned Trial Magistrate as well as the learned Judge in the First Appellate Court placed reliance on the oral evidence of injured witnesses who have been examined as P.WS.1 to 3 and they have withstood the searching cross-examination.

17. No useful material is elicited in such cross- examination to controvert the case of the prosecution. She also pointed out that there is no explanation offered by the accused nor any version of accused is placed on record as to the incident which has been rightly considered by the learned Trial Magistrate and learned Judge in the First Appellate Court while convicting the accused and passing appropriate sentence and sought for dismissal of revision petition in toto.

18. She further contended that the decisions placed on record by the learned counsel for the revision petitioner have no relevance to the case on hand and therefore, same would not improve the case of the accused to any extent and sought for dismissal of the revision petition in toto.

19. Having heard the parties, this Court perused the material on record meticulously.

20. On such perusal of the material on record, the following points would arise for consideration:

(i) Whether the revision petitioner has made out a case that the impugned judgments are suffering from legal infirmity and perversity and thus calls for interference by this Court

(ii) Whether the sentence is excessive

(iii) What Order

21. REGARDING POINT No.1: It is crystal clear that the road traffic accident occurred on 22.10.2011 at about 4.00 pm wherein the inmates of the car have suffered injuries and one Veeranna Shivappa Banagar sustained grievous injuries on his head and shoulder and he was shifted to Tumakuru District Hospital and then to Fortis Hospital and he lost his life on 24.10.2010 at about 11.20 am. These aspects have been established by the prosecution by placing cogent and convincing evidence on record.

22. It is also established that the lorry bearing registration No.KA-04/C-7938 took sudden right turn on the National Highway without giving any signal or indication that the lorry is turning to the right hand side and thereby dashed against the car bearing registration No.KA-27/M-2753 is established by placing cogent and convincing evidence on record.

23. The material on record also discloses that the revision petitioner/accused was the driver of the lorry at the time of the accident. The IMV report marked at Ex.P.5 clearly shows that there was no mechanical defect and Inspector of Motor Vehicles has specifically opined that the accident is not due to any mechanical defects in either of the motor vehicles.

24. The injured eye witnesses are examined on behalf of the prosecution as P.W.1, P.W.2 and P.W.3.

25. In the cross-examination of P.W.1, witness has answered that he is unable to estimate the width of the road. But the road has got a median. He denied the suggestion that tipper lorry was moving from opposite side. On the contrary he has specifically answered that the tipper lorry (offending vehicle) was also moving in the same direction and without giving any signal took a turn. He denied the suggestion that he could not find out as to what happened, as he was sitting in the rear seat of the car. He denied the suggestion that accident has occurred on account of rash and negligent driving of the driver of the car. He admits that car had sustained sufficient damages. He has specifically answered that the tipper lorry which was moving on the left side of the road took a sudden right turn. He has also answered that the tipper lorry had not indicated the taking of right turn by switching on the indicator lamp or gave hand signal.

26. In the cross-examination of P.W.2, suggestion made to him that the accident has occurred on account of rash and negligent driving of the driver of the car is denied. He also deposed that there was no indicator lamp switched on by the driver of the tipper lorry.

27. In the cross-examination of P.W.3, similar suggestions were made and he admits that tipper lorry did not had any goods at the time of the accident.

28. Admittedly, the charge sheet came to be filed against the driver of the tipper lorry which was not challenged. The injured witnesses did not nurture any previous enmity or animosity against the accused/ revision petitioner to falsely implicate him in the incident.

29. It is consistent say of the injured eye witnesses that the driver of the tipper lorry took a sudden right turn without proper indication on the high way road, ultimately resulting in car dashing against the lorry.

30. Therefore, from the attendant facts and circumstances of the case, learned Trial Magistrate was thus justified in convicting the accused taking note of the fact that the accused did not offer any explanation to the incriminatory circumstances nor placed his version on record.

31. The learned Judge in the First Appellate Court re- appreciating the above factual aspects, dismissed the appeal of the accused.

32. Sri B.B.Patil, learned counsel for the revision petitioner while addressing arguments on merits, referred to number of decisions stated supra and submitted that it is the prosecution which has to establish its case by placing positive evidence on record and mere non explanation by accused should not ipso facto result in conviction of the accused.

33. Per contra, learned High Court Government Pleader contended that taking note of the dictum of the Hon’ble Apex Court in the case of Ravi Kapur vs. State of Rajasthan reported in (2012)9 SCC 284, the approach of the learned Trial Magistrate which was re-appreciated by the learned Judge in the First Appellate Court is just and proper.

34. To appreciate the rival contentions of the parties, with regard to the non explanation of the incriminatory materials, it is necessary for this Court to bestow its attention to the judgments relied on by the learned counsel for the revision petitioner.

35. Among them, in the case of Just Rights for Children Alliance and another vs. S.Harish and others reported in 2024 SCC Online SC 2611, relevant portion is at paragraph 167 which reads as under:

“167. Traditionally, it is the prosecution who bears the burden of proving every element in a particular offence, including the accused's mental state, beyond a reasonable doubt. In order to establish the commission of any offence, the prosecution must stand on its own legs i.e., the onus lies on the prosecution to prove beyond reasonable doubt not just the wrongful act but also the wrongful intention of the person in doing such an act. However, in certain offences particularly economic offences or inchoate offences like possession of child pornography where apart from the actus reus there exists no other material to depict or demonstrate the mens rea, it is too difficult for the prosecution to look into the mind of the accused to cull out with certainty what his intention was or could have been for doing a particular act let alone cogently establish the same beyond a reasonable doubt. Due to the elusive and concealed nature of such offences there is often little to no direct evidence available to establish what was in fact in the mind of the accused at the time when the particular act in question occurred or that the said act was done only with a particular intention.”

36. Likewise, in the case of Wazir Khan vs. State of Uttarakhand reported in (2023)8 SCC 597, relevant portion is culled out hereunder:

“20. This Court in Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34 of the report :

“31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

23. When the attention of the convict appellant Wazir Khan was drawn to the incriminating circumstances that inculpated him in the crime, he failed to offer appropriate explanation or gave a false answer. The same can be counted as providing a missing link for completing a chain of circumstances.

24. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”

37. In the case of Pappu vs. State of Uttar Pradesh reported in (2022) 10 SCC 321, the relevant paragraphs are culled out hereunder:

“75. The learned counsel for the appellant has particularly relied upon paras 159 to 161 of the said decision in Sharad Birdhichand Sarda [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] . In that part of the judgment, this Court dealt with a contention urged by the Additional Solicitor General that if the defence case is false, it would constitute an additional link so as to fortify the prosecution case. While not accepting such a contention, this Court said as follows : (SCC pp. 187-88, paras 159-61) “159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case [Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35 : 1981 SCC (Cri) 315] , SCC at p. 39 wherein this Court observed thus : (SCC p. 43, para 30) ‘30. … Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.’ 161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71] . Unfortunately, however, the High Court also seems to have misconstrued this decision and used the socalled false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71] , the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor General.” (emphasis in original) 109. It has unnecessarily been argued with reference to Raj Kumar Singh [Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812] that the circumstances not put to the accused in his examination under Section 313CrPC cannot be used against him. The said decision has no application to the present case, particularly when we find that all the material and incriminating circumstances have indeed been put to the appellant.”

38. In the case of Khekh Ram vs. State of Himachal Pradesh reported in (2018) 1 SCC 202, Hon’ble Apex Court has dealt with the common proposition as to proof of fact how to be established and how to be appreciated in a criminal trial.

39. In the case of Yogesh Singh vs. Mahabeer Singh and others reported in (2017)11 SCC 195, in paragraph 49, it is held as under:

“49. We feel that no such prejudice has been caused to the accused on account of the failure of this Court to examine them under Section 313 on the facts alleged by the prosecution since they were not incriminating in nature. In any case, Nar Singh v. State of Haryana [Nar Singh v. State of Haryana, (2015) 1 SCC 496 : (2015) 1 SCC (Cri) 699] is an authority for the proposition that accused is not per se entitled for acquittal on the ground of non-compliance with mandatory provisions of Section 313 CrPC.”

40. In the case of Noorahammad & ors vs. State of Karnataka reported in (2016)3 SCC 325, the Hon’ble Apex Court dealt with the actual proof and in a criminal case prosecution has to travel a long distance between ‘may be true’ and ‘must be true’.

41. In the case of Rajiv Singh vs. State of Bihar reported in (2015)16 SCC 369, the Hon’ble Apex Court was of the opinion that canon of criminal justice is within the course ‘fouler the crime higher the proof’.

42. In the case of Ramesh vs. State through Inspector of Police reported in (2014)9 SCC 392, in paragraph 28, it is held as under:

28. It has been held by five-Judge Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29] as under: (AIR p. 30, para 5)

“5. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71] and it is as follows: (AIR pp. 345- 46, para 10) '10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'”

43. In the case of Phula Singh vs. State of Himachal Pradesh reported in (2014)4 SCC 9, the question of explanation under Section 313 of the Code of Criminal Procedure regarding the incriminatory materials has been considered by the Hon’ble Apex Court in paragraph 11 which reads as under:

“11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh [(2012) 4 SCC 257], Munish Mubar v. State of Haryana [(2012) 10 SCC 464] and Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722].)”

44. Likewise, in the case of Rajkumar vs. State of Madhya Pradesh reported in (2014)5 SCC 353, at paragraphs 22 and 24, it has been held as under:

22. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh [(2012) 4 SCC 257] , Munish Mubar v. State of Haryana [(2012) 10 SCC 464] and Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722].)

24. In Prithipal Singh v. State of Punjab [(2012) 1 SCC 10] , this Court relying on its earlier judgment in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382] , held as under : (Prithipal Singh case [(2012) 1 SCC 10] , SCC p. 30, para 53) “53. … if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.” (emphasis in original)”

45. In the case of Raj Kumar Singh vs. State of Rajasthan reported in (2013)5 SCC 722, the Hon’ble Apex Court at paragraphs 30, 31 and 34, has held as under:

30. In a criminal trial, the purpose of examining the accused person under Section 313 CrPC is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and have to be excluded from consideration.

31. In State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 705] this Court observed as under : (SCC p. 741, para 49)

“49. … if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.”

34. In State of M.P. v. Ramesh [(2011) 4 SCC 786] this Court held as under : (SCC p. 796, para 28)

“28. The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.” (emphasis supplied)

46. In the case of Ashok Kumar vs. State of Haryana reported in (2010)12 SCC 350 the Hon’ble Apex Court considered the effect of recording accused statement and how it can be made use of, in paragraphs 29 to 33, as under:

29. Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised, within a narrow compass we may refer to the statement of the accused made under Section 313 CrPC. It is a settled principle of law that dual purpose is sought to be achieved when the courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of CrPC. Furthermore, the statement under Section 313 CrPC can be used by the Court insofar as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 CrPC.

30. Let us examine the essential features of this section and the principles of law as enunciated by the judgments of this Court, which are the guiding factor for proper application and consequences which shall flow from the provisions of Section 313 CrPC. As already noticed, the object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime.

31. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

32. The statement of the accused can be used to test the veracity of the exculpatory part of the admission, if any, made by the accused. It can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313(4) CrPC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 CrPC as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.

33. Another important caution that the courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 CrPC as it cannot be regarded as a substantive piece of evidence. In Vijendrajit Ayodhya Prasad Goel v. State of Bombay [AIR 1953 SC 247] , the Court held as under : (AIR p. 248, para 3)

“3. … As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.”

47. In the case of Ishwar Sadeppa Nandennavar vs. State of Karnataka reported in ILR 2004 KAR 1459, this Court also took into consideration the purpose of recording accused statement under Section 313 of Code of Criminal Procedure, and in paragraph 7, has held as under:

“7. On perusal of the evidence led by the prosecution especially that of the complainant driver examined as P.W. 5 the facts as narrated in the complaint as even substantiated through the evidence of other injured passengers of the Bus. It is primafacie apparent that while the complainant P.W. 5 was driving the Bus, the Tempo vehicle came from the opposite direction by overtaking another truck and dashed against the Bus resulting in death of 11 passengers and serious injuries to 17 others. The evidence of P.W. 5 has been amply corroborated by the passengers in the Bus who have sustained injuries and the investigating officer has further shown from his investigating report and deposition before the Court as to the accused petitioner being negligent and rashing driving. As against this prima-facie material, absolutely no explanation has been offered by the accused while he had the last opportunity of explaining when questioned under Section 313 Cr. P.C. As held by the Apex Court in the case of Rattan Singh v. State of H.P. [1997 SCC (Cri) 525 : 1997 Crl. L.J. 833.] “Examination of the accused under Section313 Cr. P.C., answers given by the accused to the questions put to him during such examination have a practical utility for the Criminal Courts. Apart from affording an opportunity to the accused to explain the incriminating circumstances, the answers would also help the Court in appreciating the entire evidence adduced in the Court.”

48. In the case of Mohammed Aynuddin vs. State of Andhra Pradesh reported in (2000)7 SCC 72, at paragraphs 7 to 9 it has been held as under:

7. 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. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.

8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.

9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

49. In the case of Ravi Kapur vs. State of Rajasthan reported in (2012)9 SCC 284 in paragraph 39, it has been held as under:

“39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 CrPC are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case.”

50. On careful perusal of the principles of law enunciated in the aforesaid decisions, the gist thereof can be summarized as under:

(i) In every prosecution, unless the prosecution enjoys the presumption, innocence of the accused is to be presumed and prosecution is expected to place cogent and convincing evidence on record to establish the charges leveled against the accused beyond reasonable doubt.

(ii) This rule cannot be diluted even in case of charges the leveled against the accused under Sections 279 and 304A of the Indian Penal Code.

(iii) But, as held in the case of Ravi Kapur supra, it is the bounden duty of the learned Trial Magistrate to put across the incriminatory materials while recording the accused statement under Section 313 of the Code of Criminal Procedure.

51. It is also found from the aforesaid judgments that recording of the accused statement under Section 313 of the Code of Criminal Procedure is not purposeless or an empty formality. Needless to emphasize that it serves dual purpose.

52. Firstly, the prosecution has to establish its case by placing cogent evidence on record and such incriminatory materials found in the case of the prosecution evidence must be put to the accused distinctly and accused has to be afforded an opportunity to explain the incriminatory circumstances.

53. The second and important object of recording of the accused statement is to afford an opportunity for the accused to place his version about the incident especially in road traffic accident cases.

54. If the accused deliberately fails to utilize such an opportunity, then consequences in law has to be followed.

55. In the case of hand, P.Ws.1 to 3 being the injured eye witnesses have supported the case of the prosecution and they withstood searching cross-examination as referred to supra.

56. Admittedly, accused is a stranger to the prosecution witnesses and there was no previous enmity or animosity for them to falsely implicate the accused in the case.

57. Further, for the reasons best known to the accused he did not challenge the charge sheet filed by the police.

58. Crowning all these aspects of the matter, accused failed to offer any explanation whatsoever while recording the accused statement either in the form of written submission as is contemplated under Section 313(4) of the Code of Criminal Procedure nor examined himself.

59. In other words, accused deliberately failed to utilize the opportunity that was granted to him by the learned Trial Magistrate and therefore, learned Trial Magistrate was justified in convicting the accused.

60. The decisions relied on by the accused in the cases of Sukhpal Singh, Darshan Singh, Mallikarjun, Uppala Bixam, Bakhshish Singh, supra, are of no consequence in accepting the arguments put forward on behalf of the accused.

61. Even in the cases which have been relied on by the learned counsel for the accused referred to supra, the general principles as to the criminal trial has been reiterated in number of decisions and effect of the answers to be obtained while recording accused statement has been dealt by the Hon’ble Apex Court.

62. In none of those decisions it has been held that even in the absence of any explanation, accused can walk away with an order of acquittal.

63. Therefore, viewed from any angle, the question of setting aside the Order of conviction passed against the accused for the offence punishable under Section 279 and 304A of the Indian Penal Code can be set-aside, that too, in the revisional jurisdiction. Accordingly, point No.1 is answered in the negative.

64. REGARDING POINT No.2: In the case on hand, three of the inmates of the car have got injured and one person has lost his life. Therefore, order of sentence ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court needs no interference. More so, having regard to the fact that there are no mitigating circumstances placed on record. Accordingly, point No.2 is also answered in the negative.

65. REGARDING POINT No.3: In view of the finding of this Court on point Nos.1 and 2 above, the following:

ORDER

(i) The Criminal Revision Petition is meritless and is hereby dismissed. No order as to costs.

(ii) Time is granted till 20th January 2025 for the accused to surrender before the learned Trial Magistrate to serve the sentence.