In the High Court of Punjab & Haryana at Chandigarh Crl. Revision No. 62 of 1994 Date of decision: April 02, 2008 Matu Ram ... Petitioner versus State of Haryana ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. D.S. Bali, Sr. Advocate with Mr. Namit Gautam, Advocate for the petitioner. Mr. Praduman Yadav, DAG, Haryana for the respondent. A.N. Jindal, J It is another bizarre incident where the innocent men and children were caught by surprise when the accused-petitioner Matu Ram (hereinafter referred to as 'the accused') ran over his bus bearing registration No. HYA-9404 rendering three persons dead and five injured and also destroying the property owned by Megh Raj and Tulsi Ram witnesses, as a result of which he along with one Abhey Ram was tried. Ultimately, both the accused were convicted vide judgment dated 17/18.5.1993 passed by the Judicial Magistrate Ist Class, Safidon and sentenced as under :- Matu Ram U/s 304-A IPC : To undergo rigorous imprisonment for two years and six months and to pay fine of Rs.3000/-. U/s 279 IPC : To undergo rigorous imprisonment for three months. U/s 337 IPC : To undergo rigorous imprisonment for six months. U/s 427 IPC : To undergo rigorous imprisonment for one year. Crl. Revision No. 62 of 1994 -2- *** Accused Abhey Singh was also awarded the similar sentence with the aid of Section 109 IPC. However, he was acquitted by the learned Appellate Court vide its judgment dated 22.1.1994, whereas conviction and sentence against the petitioner Matu Ram was ordered to be maintained. On 11.9.1985 at about 6.30 pm, when Megh Raj was present in front of his house, the complainant Ram Kumar came there and they were talking. Some people were sitting on the cot on the extreme left side of the road and smoking from Hukka and some children were also playing nearby. The accused while driving his bus bearing registration No.HYA-9404, rashly and negligently, brought his bus off the road and struck against the cot, as a result of which Puran Chand died at the spot, whereas, Tulsi Ram and Kaidara Ram succumbed to their injuries in the hospital. Siri Kishan, Subhash, Bhira, Renu and Sushila also suffered injuries. On the aforesaid statement Ex.PA made by Ram Kumar, FIR Ex.PA/1 was recorded under Sections 279/304-A/427 IPC. The case was investigated and report under Section 173 Cr.P.C. was presented in the Court. The accused were charged under Sections 304-A/279/337/427/ 109 IPC, to which they opted to contest. The prosecution in all examined 15 witnesses. In their statements under Section 313 Cr.P.C. they denied the allegations and pleaded their false implication. Abhey Ram while admitting the occurrence stated that actually he was driving the vehicle at the time of the accident. The trial ended in conviction of the petitioner and Abhey Ram. Crl. Revision No. 62 of 1994 -3- *** However, Abhey Ram was acquitted in appeal. Heard. The only argument advanced by the learned counsel for the petitioner is that it was not the petitioner on the steering wheel but as per the admissions of Abhey Ram himself that he was on the steering wheel, the learned Appellate Court fell in error while acquitting Abhey Ram of the charges, whereas, on the basis of the admission made by Abhey Ram, he could safely be convicted instead of the petitioner. He has further urged that even Krishan (PW3) also stated that Abhey Ram was driving the vehicle at the time of accident, therefore, there is no reason to discard his testimony qua this aspect. Having given my thoughtful consideration to the aforesaid contention and after hearing learned Deputy Advocate General, Haryana, I fail to persuade myself with the argument raised by the learned counsel for the petitioner. While taking the start, the initial version given by Ram Kumar complainant in his statement Ex.PA, the name of the driver is mentioned as Matu Ram. It was not the night time but was just evening time and the witnesses had the opportunity to identify the accused. Further more, the explanation has come forth from the mouth of Ram Kumar (PW2) that he knew Matu Ram since earlier, therefore, he could identify him. Similarly, Megh Raj (PW4), Bhira (PW6) and Subhash (PW8) have made consistent depositions regarding identity of the accused. May that it be, Abhey Ram was regular driver and Matu Ram petitioner was a mechanic but the criminal liability could be imposed against the person who being in charge of the vehicle was acting at the time of occurrence towards the commission of crime and not the person actually deputed for duty. The Crl. Revision No. 62 of 1994 -4- *** identification of the perpetrator of the crime is to be made by the witnesses and none else. In the present case, Ram Kumar (PW2), Megh Raj (PW4), Bhira (PW6) and Subhash (PW8), out of whom Bhira (PW6) and Subhash (PW8) are the injured eye witnesses, whereas property of Megh Raj (PW4) was damaged as a result of the accident, therefore, they would be the last persons to involve a false person while substituting the real culprits. All of them have unerringly pointed towards the petitioner as the perpetrator of the crime. Krishan (PW3) could give a twist to the statement by naming Abhey Ram, but it seems that he could be prevailed upon later on to give such twist but unblemished testimony of other witnesses could not be sacrficed at the costs of his twisted testimony. As such, I am unable to agree with the contention of the learned counsel for the petitioner that it is the case of mistaken identity. Now coming to the admission made by Abhey Ram in his statement under Section 313 Cr.P.C. that is also of no consequence. This Court observed in case Mohan Singh Balwant Singh vs. State, 1964 PLR 1230 which reads as under :- “A confession by a co-accused is not evidence within the contemplation of Section 3. It is evidence only in the sense in which a court is empowered under Section 30 to take it into consideration against the person making the confession as well as against such other person who may be jointly tried with him for the same offence. The legal position, therefore, in respect of such a confession is that the court cannot deal with the Crl. Revision No. 62 of 1994 -5- *** examination of such confessional statement, the stage of considering it arises only after the evidence has been considered and found to be satisfactory. Again it must never be forgotten that even when the court takes it into consideration, such a confessional statement is a material of a very weak type, for the statement is not made in the presence of the accused persons and has not been subjected to cross examination.” There are three types of confessions :- (i)Recorded during enquiry or trial (under Section 164 Cr.P.C.) (ii)Recorded at the stage of charge. (iii)Under Section 313 Cr.P.C. Or subsequently. The first category of confession has a limited scope as it could be used for the purpose of extending pardon provided it is not exculpatory and is believed to have been made genuinely. The second category of confession can be used against the accused himself if it is inculpatory and his conviction could be based on it but still the court had the discretion and could exercise its satisfaction over making of such confession and ask for evidence. The third category of confession is of no consequence for the following reasons :- (i)The confession of co-accused being recorded without oath is not evidence within the contemplation under Section 3 of the Evidence Act. (ii)It is made after the evidence is complete and considered. Crl. Revision No. 62 of 1994 -6- *** In any case, this confession recorded after the prosecution evidence is completed is very weak as the statement under Section 313 Cr.P.C. being not on oath, the prosecution had no opportunity of cross examination. Much emphasis has been laid by the learned counsel for the petitioner while urging that as a matter of fact, Abhey Ram had confessed in his statement under Section 313 Cr.P.C. that he was driving the vehicle and not Matu Ram, therefore, both the Courts below fell in error in convicting the petitioner. There is no denying a fact that Matu Ram having made no such confessional statement during enquiry or at the time of evidence that he was driving the vehicle but at the fag end, after the evidence was completed, he made this statement under Section 313 Cr.P.C. It was the case of the prosecution from the very beginning that it was Matu Ram who was driving the vehicle and Abhey Ram abetted the commission of crime. Had there been any truth in such confessional statement then he would have come forward immediately to make statement under Section 164 Cr.P.C. or to confess at the time of framing of charge against him, therefore, confession made in the statement under Section 313 Cr.P.C. at the fag end of the case, when the prosecution has concluded the trial against Matu Ram being the main accused in the case, came forward to make such statement, which cannot be believed. It is well settled that statement under Section 313 Cr.P.C. Cannot form the sole base of conviction but the effect thereof may be considered in the light of other statement brought on record. Similar observations were made in case Mohan Singh vs. Prem Singh Crl. Revision No. 62 of 1994 -7- *** (2002) 10 SCC 236, State of U.P. vs. Lakhmi (1998) 4 SCC 336 and Rattan Singh vs. State of H.P. (1997) 4 SCC 161. The Apex Court in case Sidharath and others vs. State of Bihar, 2005 (4) RCR (Crl.) 651, observed as under :- “It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh vs. State of Madhya Pradesh, AIR 1952 SC 159 held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the concession he would not be prepared to accept.” Statement of the accused was without oath and could not form a Crl. Revision No. 62 of 1994 -8- *** part of the evidence as defined in Section 3 of the Evidence Act. The same appears to have been made after completion of the evidence, when it was detected by Abhey Ram that the prosecution has not led any evidence against him, as such he appears to have made this confessional statement merely to save Matu Ram from the legal punishment which may have been awarded on appreciation of evidence led by the prosecution pursuant to the charge framed against him. No other argument has been raised and no law has been cited. For the foregoing reasons, finding no merits in the petition, the same is hereby dismissed. April 02, 2008 (A.N. Jindal) deepak Judge To be referred to the reporter: Yes/No.