KANTILAL SHIVABHAI THAKKUR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application is directed against the judgment by the learned Metropolitan Magistrate Ahmedabad convicting the applicant for offences punishable under Sec. 279 and Sec. 304A I. P. Code and sentencing to undergo rigorous imprisonment fir one month and fine of Rs. 100.00 in default rigorous imprisonment for 7 days for the offence punishable under Sec. 279 I. P. Code and rigorous imprisonment for three months and fine of Rs. 250.00 in default rigorous imprisonment for 15 days for the offence punishable under Sec. 304A I. P. Code and against the judgment by the Additional Sessions Judge in appeal confirming the conviction and the sentence of the applicant. Both the Courts have held that the applicant was driving the truck No. CTF 2485 at about 6.10 A M. on 22/10/1979 at the public place at Acher Cross Roads on Ahmedabad Kalol Road in a rash and negligent manner and by such driving caused death of Tulsibhai Ishwarbhai who was proceeding on a cycle. The Courts below relied on the evidence of eye witnesses Ganpatram and Mankuram and specifically the evidence of Mankuram who stated that the truck was being driven in a high speed and in a zig-zag manner and dashed with the traffic island and proceeded towards the right hand side It is clear from the evidence that the truck was being driven in a high speed and rashly and negligently and dashed with the traffic island and proceeded towards the right hand side and dashed with the cyclist causing his death and then proceeded ahead and dashed with the cabins on the right 11 site of the road.

(2.) Shri S. V. Raju learned Advocate for the applicant submits that the Courts below erred in holding that the applicant was driving the truck. In submission of Shri Raju the statement made by the applicant before the P. S. I. Gadhavi should not have been considered as evidence as it is hit by the provisions of Sec. 25 of the Evidence Act. Shri Raju also submitted that the further statement recorded under Sec. 313 of the Criminal Procedure Code in which the applicant admitted to have been driving the truck should also not have been relied on as evidence by the Courts below. According to the prosecution immediately after the accident the petitioner rushed to the Police Station and informed Inspector Gadhavi who was incharge of the Police Station about the accident and therefore P.S.I. Gadhavi went to the scene of occurrence. It is also stated that the applicant made statement before P. S. I. Gadhavi at the Police Station that he was driving the truck and the cyclist was injured and people have collected and therefore he had rashed to the Police Station. Admissibility of that particular statement is objected to by the learned Advocate for the petitioner. It is true that any confessional statement made by the accused before the Police is not admissible in evidence under Sec. 25 of the Evidence Act and therefore the confessional part of the statement should not hive been considered as an admissible evidence. However the fact remains that the applicant went to the Police Station at about 6.15 A. M. and gave information about the accident. That much part of the evidence of P. S. I. Gadhavi is admissible under Sec. 8 of the Evidence Act as the conduct of the applicant. It is however clear that the petitioner in statement recorded under Sec. 313 of the Code of Criminal Procedure came out with the definite admission that he was driving the truck. He stated that he was proceeding with the truck and one cyclist Was proceeding and to save the cyclist he had taken the truck towards the right hand side and the truck dashed with the pillar. It is therefore admitted by the applicant that he was driving the truck. Shri Raju learned Advocate for the applicant however submitted that even that part of the statement of the applicant cannot be separated and cannot be accepted in evidence. To substantiate the submission Shri Raju relied on the decision in Buli Dei v. State 1963 (2) Cri LJ 470. Referring to the provisions of Sec. 313 of the Code of Criminal Procedure it is submitted that the purpose of recording further statement is to enable the accused to explain the circumstances. As provided in sub-sec. (4) of Sec. 313 the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for any other offence which such answers may tend to show he has committed It is therefore clear that the answers can be taken into consideration in a trial. In this particular case the applicant came out with the clear case that he was driving the truck and therefore there was no reason as such for the Courts below not to accept that part of the admission of the applicant. Considering the evidence and the admission of the applicant the Courts below rightly held that the applicant was driving the truck.

(3.) In Buli Dei v. State 1963 (2) Cri.LJ 470 referred to by Shri Raju learned Advocate for the applicant a Division Bench of the Orissa High Court vas considering the provisions of Sec. 342 of the Code of Criminal Procedure 1898 and after referring to the two decisions of the Supreme Court in Vijendrajit v. State of Bombay AIR 1953 SC 247 and in Karnail Singh v. State of Punjab AIR 1954 SC 204 observed that the two decisions of the Supreme Court clearly establish the principle that if the entire statement relates to two different facts the admission with regard to one fact may be accepted while the admission with regard to the other part may be rejected. Considering the facts of the case it is observed that: