JUDGMENT
B.N. Krishnan, J.
1. The State has preferred this appeal against the order of acquittal of respondent hereby by J.M.C. Bhatkal in C.C. No. 74 of 1985 in respect of the charges under Section 304-A I.P.C. and Section 116 of the Motor Vehicles Act.
2. The charge against the accused-respondent was, that on 7.8.1985 at 5.45 P.M. he drove lorry bearing registration No. MYE-5506, in a rash or negligent manner on Bhatkal-Honnavar road near Bailur-Doddabalase Cross Road and dashed against one Lakshmi wife of Charge Sheet Witness No. 4 and caused her death and therefore is guilty of the offence under Section 304A I.P.C. and 116 of the Motor Vehicles Act. The accused pleaded not guilty and eleven witnesses were examined for the prosecution and after examination of the accused purportedly under Section 313 Cr.P.C. the Magistrate recorded an order of acquittal. After having gone through the evidence and also the judgment of the learned Magistrate, we concur with the final order of acquittal, though for reason altogether different from the ones assigned by the learned Magistrate.
3. Out of the eleven witnesses examined by the prosecution, P.Ws. 1, 2 and 4 are eye witnesses to the accident and P.Ws. 3, 5, 7 and 8 are the persons who are stated to have come to the spot immediately after the accident. P.W. 6 is the husband of the deceased and P.W. 9 is the A.S.I. who registered the case and P.W. 10 is the motor vehicle inspector who examined the vehicle involved in the accident and P.W. 11 is the Dy.S.P. Who has investigated and filed the charge sheet. It may be noticed that though the eyewitnesses to the accident speak about the driver of the vehicle involved in the accident, none of them stated anything about accused being the driver of the vehicle involved in the accident at the relevant time. No other witness has given any material by virtue of which it could be said that accused was driving the vehicle in question at the time of the accident. The learned Addl. State Public Prosecutor could not dispute this aspect of the matter though, he tried to contend that the name of the accused is found as the driver of the vehicle, in the report of the Motor Vehicles Inspector, marked as Ex.P4. The name of the accused is mentioned in it as ‘driver of the vehicle’ can be made put and the mere mention of his name therein cannot be used as substantive evidence to hold that accused was driving the vehicle at the time of the accident. None of the prosecution witnesses has identified the accused as the person who was driving the vehicle involved in the accident at that time. However, he urged that in the course of his examination under Section 313 Cr.P.C. the accused has admitted that he was driving the vehicle in question and he has come forward with a certain explanation as to how the accident happened and therefore the lacuna in the evidence of the prosecution witness in this regard has been overcome by this admission of the accused in the course of his examination under Section 313 Cr.P.C. (for short the Code).
4. Therefore, it has to be seen in the first instance whether the learned Magistrate has right in examining the accused under Section 313 of the Code at all, under the circumstances, and whether the Court could act upon that portion of the Statement of the accused made in reply to the questions put to him under Section 313 of the Code. We may usefully extract Section 313 of the Code, which reads as hereunder:
313. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court–
(a) May at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under Sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) 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.
A mere look at this section indicates that only if there are any circumstances appearing in the evidence against the accused, the Court could proceed to examine the accused under this Section for the purpose of enabling him to personally explain the same. When there is absolutely no circumstance appearing against the accused, it appears to us that there would be no scope for the Magistrate to examine the accused under this Section. The decision in Re Grandhe Sarabhayya and Ors. A.I.R. 1943 Madras 408 is directly on this point and it has been observed therein with reference to Section 342 of Code of Criminal Procedure, 1898, as here in under:
If there were no circumstances appearing against accused 3 in the evidence, then unquestionably the learned Sessions Judge should not have put him any questions at all; because Section 342 says that the Court shall put questions to the accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him. Any statement made by an accused person as a result of questions improperly put to him could not therefore be taken into account against him.
In the decision of the former High Court of My sore in M. Khivaraj v. State of My sore A.I.R. 1955 My sore 128 it has been pointed out that when the evidence does not disclose a prima facie case against an accused, his examination Section 342 Cr.P.C. is not only unnecessary but also illegal as the object of that section is to enable the Court to ascertain from the accused of the of the explanation he may have or desire to give regarding any fact stated by a witness or a circumstance appearing against him and if there is no incriminating circumstance which the accused has to explain, then, examination under that Section becomes unnecessary and it would be improper to question the accused under those circumstances. We entirely agree with these observations of the Madras High Court and the decision of the former High Court of My sore. Therefore, the examination of the accused in the present case was not only necessary but was illegal and there is no scope for the court to act upon the admission made by the accused in reply to such questioning.
5. Apart from the above aspect, it may also be noticed that under Section 313 of the Code, the answers given by the accused may be taken into consideration and that cannot take the plea of evidence that has to be adduced by the prosecution. If there is absolutely no evidence implicating the accused, the answer given by the accused in reply to the questions under Section 313 Cr.P.C. cannot take the place of evidence against him. In the decision of the Supreme Court in Ganeshmal Jashraj v. Government of Gujarat and Anr. after close of evidence of the prosecution and his examination under Section 313 Cr.P.C. the accused submitted an application admitting his guilt and praying that since he was poor and that was his first offence, leniency should be shown to him. The Magistrate after considering the evidence let on behalf of the prosecution came to the conclusion that the guilt of the accused had been made out. The learned Magistrate did not act solely on the admission of guilt made by the accused in that case. But, nevertheless, it was pointed out by the Supreme Court that when there was an admission of guilt of accused at that stage, the entire approach of the Court to assess evidence was likely to be different and it was obvious that the approach of the Magistrate was affected by the admission of guilt made by the accused and therefore it was not right to sustain in the conviction of the accused in that Case. That show that the plea of guilt made at that stage not only was not liable to be accepted by the Court but even if it affects the approach of the Court in appreciating the evidence, the same was held to have vitiated the judgment of the Magistrate. This also supports our view that any admission made by the accused at that stage cannot form the sole basis for convicting the accused under such circumstances. In the decision of this Court in State of My sore v. Bantra Kunjanna it has been pointed out that the plea of guilt of the accused at the stage of Section 342 of the Code, despite he having pleaded not guilty at the appropriate stage was not sufficient in the absence of evidence to bring home the guilt of the accused to convict him and the order of conviction recorded in that case was set aside.
6. In the first instance, the examination of the accused under Section 313 of the case in the present case was wholly illegal and the answer given by the accused in reply to such questioning cannot be put to any kind of use against him and even otherwise if it could be looked into, it cannot take the place of evidence which the prosecution was expected to adduce to bring home the guilt of the accused. Hence in any view of the matter, it is clear that the accused was entitled to the order of acquittal. Therefore, we see no merit in this appeal.
7. Accordingly, the appeal is dismissed.
