-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 430 OF 2007 The State of Maharashtra ) through Khar Police Station )...Appellant versus Alister Anthony Pareira ) 1, Silvaraj, 43 Carter Road, ) Bandra (West), Mumbai. )..Respondent WITH CRIMINAL APPEAL NO. 566 OF 2007 The State of Maharashtra ) through Khar Police Station )..Appellant versus Alister Anthony Pareira ) 1, Silvaraj, 43 Carter Road, ) Bandra (West), Mumbai. )..Respondent WITH CRIMINAL APPEAL NO. 475 OF 2007 Alister Anthony Pereira ) aged 21 years, residing at ) Silvaraj, 43 , St. Paul Road, ) Bandra, Mumbai. )..Appellant -2- versus The State of Maharashtra ) through Khar Police Station )..Respondent. Mr. Ravi Kadam, Advocate General, with Mr. S.R. Borulkar, Public Prosecutor, for the State. Mrs. Manjula Rao for the respondent in Appeal Nos.430 and 566 of 2007 and for the appellant in Appeal No. 475 of 2007. Mr. S.Y. Katkade, amicus curiae, for the labourers/victims. CORAM: SWATANTER KUMAR, C.J. & SMT. RANJANA DESAI, J. Judgment reserved on : July 27, 2007 Judgment delivered on: September 06,2007 JUDGMENT (Per Swatanter Kumar, C.J.): I. Facts Alister Anthony Pereira was charged and faced trial in accordance with law, for offences punishable under Sections 304 Part II and 338 of the Indian Penal Code (“IPC”). The learned 1st Adhoc Additional Sessions Judge, Sewree, Mumbai, vide his judgment and order of conviction dated 13th April, 2007, found the accused guilty of -3- offences punishable under Sections 304 A and 337 of the IPC and sentenced him to suffer simple imprisonment for a term of six months and to pay a fine of Rs.5,00,000/- for the offence under section 304A and to suffer 15 days simple imprisonment for offence under Section 337 of IPC. Against the above judgment dated 13th April, 2007, the State filed two different appeals. Appeal No. 566 of 2007 was filed under Section 378 (3) read with Rule 19 of Chapter XXVI of the Bombay High Court (A.S.) Rules, 1960, along with Criminal Application No. 1524 of 2007 for leave to file Appeal against the order acquitting the accused of the offences punishable under Sections 304 Part II and 338 of the IPC. Criminal Appeal No. 430 of 2007 was filed by the State praying for leave under Section 377 (1) of the Code of Criminal Procedure, 1973, for enhancement of the sentence awarded by the trial court vide order of sentence dated 13th April, 2007. Criminal Appeal No. 475 of 2007 was filed by the accused for setting aside the conviction and order of sentence passed against him under Section 304 A and 337 of the Indian Penal Code vide judgment and order dated 13th April, 2007, in Sessions Case No. 59/07. 2. By the order dated 6th June, 2007, leave to file appeal against the -4- judgment of the trial Court dated 13th April, 2007, in Sessions Case No.59 of 2007, was granted to the State, whereafter all the appeals were heard together and they are being disposed of by this common judgment. 3. First Information Report (FIR) No. 436 of 2006 dated 12th November, 2006 was recorded in furtherance to the statement of P.W.2, Panchanadan Pareamalai. The statement of this witness was recorded at Exhibit 13. In the gist recorded by the Investigating Officer, it is stated that the accused while driving his own Car No. MH-01-R- 580 under the influence of liquor caused accident and death of 7 persons and injured other 8 persons. The statement of Panchanandan (P.W.2) is attached to the form of FIR recorded under Sections 304 (II), 279, 337, 338, 336, 427 of the IPC and Sections 66 (1) (b) of the Bombay Prohibition Act. Panchanandan (P.W.2), in his statement stated that he was working with New India Construction Company and 9 labourers were working under him. Temporary hutments were constructed near Railway Colony. The labourers were sleeping on footpath. At about 3.30 a.m. on 12th November, 2006, he saw some persons driving a car with tape recorder on at high pitch and they were -5- also making noise. The car went at high speed and met with an accident on Carter Road while going back towards Bandra Side. The driver took the car suddenly towards the left side of the road and ran over the people sleeping on the footpath and also dashed against the huts. The car crushed seven persons and injured eight persons. He raised hue and cry and reported the matter to the police. He saw that the front wheel of the car was damaged and even number plate of the car was broken. One girl and two boys got down from the car and ran away from the spot and in the meanwhile a police van came there. He informed the police of the accident whereafter the police van removed three persons who were still sitting in the car of the accused. The person who was driving the car was asked his name, etc. by the police and he gave his name as Alister Anthony Pereira. The accused and other persons were drunk and were taken into custody by the police. After some time, the police vehicles came there and took the injured to the hospital and he accompanied those persons. The doctor upon their examination declared six persons dead. One person was admitted in the Intensive Care Unit, some were admitted for treatment at the Hospital and others were discharged after first aid. According to the FIR, the statement was recorded on the computer and was duly -6- explained to Panchanandan (P.W.2) in Hindi and Marathi which he found to be correct and signed the same. 4. The case of the prosecution further is that from the car a bottle was recovered, contents of which were subjected to chemical analysis and it was found that it contained 42 per cent v/v ethyl alcohol vide report of the C.A. at Exhibit-48. The blood sample of the accused was taken and sent for analysis. The report is at Exhibit-49 in which it was found that the blood of the accused contained 0.112% W/V ethyl alcohol. Pravin Sajjan Mohite (P.W.12) was the Photographer who took photographs of the scene of offence. The photographs were also taken by the Vehicle Inspector who submitted his report at Exhibit-42. The panchanama was prepared in presence of panchas. After recording the statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973, (Cr.P.C.) along with the reports and other documents, charge-sheet (challan) was filed under Section 173 of the Cr.P.C. before the Court of competent jurisdiction. The learned Magistrate found that the offences mentioned in the charge-sheet were exclusively triable by the Court of Sessions and consequently committed the case to the Court of Sessions for trial. -7- 5. Upon appearance of the accused and after supply of documents, the learned Sessions Judge vide his order dated 12th March, 2007 framed the following charges against the accused. “ That on 12.11.2006 between 3.45 to 4.00 a.m. you have driven the Car bearing No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons slept over footpath and thereby caused the death of eight persons who were sleeping on footpath at Carter Road, Bandra (W), Mumbai and thereby committed an offence punishable under Section 304 Part II IPC which is within my cognizance. Secondly, on the above date, time and place you have driven the vehicle in rashly and negligent manner and thereby caused grievous injury to seven persons who were sleeping on footpath and thereby committed an offence punishable under Section 338 of IPC which is within my cognizance. And you are hereby directed that you be tried by me for the above charges.” To the above charge, the accused pleaded not guilty and claimed to be tried. 6. The prosecution examined 18 witnesses in support of its case -8- and tendered various documents including postmortem notes (Exhibit- 18), medical certificates (Exhibits-33 to 40), FIR (Exhibit-13) and panchnama (Exhibit-28). The incriminating material appearing in the evidence was put to the accused in his statement recorded under Section 313 of the Cr.P.C. on 12th April, 2007, wherein the accused stated that he did not want to lead any defence and also stated that there was failure of the engine of the car as a result of which the car went out of his control and dashed the road divider. He could not control the vehicle and made attempts to stop the car by applying brakes but in vain. 7. As already noticed, the trial Court vide its judgment and order dated 13th April, 2007, acquitted accused of offence punishable under Section 304 Part-II of IPC and found the accused guilty of offence punishable under Sections 304-A and 337 of IPC and sentenced him, while denying him the benefit of the provisions of Section 4 of the Probation of Offenders Act. The operative part of the order reads thus: “ Accused Alister Anthony Pareira is hereby acquitted for an offence punishable under Section 304 Part II IPC and Section 338 of IPC. -9- Accused Alister Anthony Pareira is hereby convicted for an offence punishable under Section 304A of IPC and sentenced to suffer simple imprisonment of six months with fine of Rs. 5,00,000/- (Rupees Five lakhs only), in default, further to suffer one month simple imprisonment. After depositing the amount of fine, Rs. 4,50,000/- (Rupees Four Lakhs Fifty thousand only) be distributed between the legal heirs of deceased and injured in ratio of 2: 1 after appeal period is over. Accused Alister Anthony Pareira is further convicted for the offence punishable under Section 337 of IPC and sentenced to suffer simple imprisonment of 15 days. Both the sentences to run concurrently. Accused is entitled for set off. The property which was found in the vehicle be returned to the accused Alister Anthony Pareira, after appeal period is over. “ 8. At this stage itself, we may refer to certain findings recorded by the trial Court in the judgment impugned in the present appeals. 9. While granting benefit to the accused it noticed that the police had not collected evidence about consumption of alcohol by the accused. The Court then proceeded to record that the accused had consumed alcohol but it cannot be said that he was under the influence -10- of alcohol, so knowledge could not be attributed to the accused. The Court found that the accused was entitled to acquittal under section 304(II) IPC and the reason given by the trial Court for that purpose reads as under: “19. It is certain that case will not fall under Section 304 Part II of IPC, as knowledge cannot be gathered from the circumstances, as the alleged incident took place during late night hence no question of having knowledge of sleeping of persons on footpath do arise. So it is certain that offence under Section 304 Part II will not attract. 20. At the most, case will fall under Section 304 Part A IPC, so I am required to consider, whether the rash and negligent of driving of the car by the accused lead to the death of seven persons or not when defence admitted about accident.” The above findings were recorded by the Court after holding that the prosecution had proved that accused had consumed alcohol and the vehicle was being driven at a high speed and also on the statement of the accused that he lost control of the vehicle due to engine failure and was not able to control the vehicle. This fact itself proves rash and negligent driving by the accused and that the accident was not an act of God. The Court also noticed the report of the Motor Vehicle Inspector, -11- Rajendra Sawant (P.W.15) who stated that he had not noticed any damage to the brake or any mechanical defect at the time of inspection of the vehicle in question. After noticing certain other lacunae, the judgment under appeals was passed by the trial Court. 10. In our considered view, the learned trial Court ignored material evidence, did not refer to the exhibited documents and even the statement of witnesses. As such, the trial Court has fallen in error of law as well as in appreciation of evidence. It would be necessary for this court to examine the scope and meaning of the word `knowledge' appearing in Section 304 Part II of IPC as well as the attributability of knowledge to the accused and the advantage the prosecution may be entitled to on the basis of the admissions recorded in the statement under section 313 of IPC. II. Ambit, scope and relevance of statement of an accused recorded under section 313 of the Code of Criminal Procedure. 11. Every provision is introduced in the statute book by the -12- Legislature with a specific purpose and object. The court is empowered under section 313 of the Code of Criminal Procedure, (hereinafter referred to as the “Code”) to examine the accused personally to explain any circumstance appearing in evidence against him. The statement could be recorded without previously warning the accused or with due notice to him. By making a statement, which is recorded without administering oath, or refusing to answer or even giving false answer to the questions, the accused does not render himself liable to punishment. Sub-section (4) of section 313 of the Code clearly postulates that the answers given by an accused may be taken into consideration in such inquiry or trial, and even can be used in other inquiry or trial against him for any other offence, which such answers may tend to show that the accused has committed. Thus, there is a clear object underlying this provision to provide the accused a fair opportunity of not only knowing the circumstance but also to give explanation, if he so chooses, in reply to such circumstances as they appear in the evidence against him. The intention is for furtherance of justice. The accused is given an opportunity to render explanation but with every right to remain silent. Such right is duly protected. The court is normally under an obligation to put the incriminating evidence against -13- the accused while recording such a statement. 12. The legislative intent behind this section appears to have twin objects, firstly, to provide an opportunity to the accused to explain the circumstances appearing against him and secondly for the court to have an opportunity to examine the accused to elicit explanation from the accused, which may be free from fear of being trapped for an embarrassing admission or statement. The proper methodology to be adopted by the court while recording statement of the accused under section 313 of the Code is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and inviting his explanation, provided the accused is willing to explain his conduct. Certainly the purpose is not either to question or cross-examine the accused in relation to the prosecution case. The accused has the option to remain silent, or to state the circumstances showing his innocence even by offering proper explanation or defence, which in his view would help him to achieve the paramount benefit of fair trial. It is not a mere formality but is a mandate of law. Where the Court has to comply with this requirement of -14- substantive law, there it is equally true that the Court is not expected to put to the accused each and every circumstance which is not on record or even inferences which are brought on record by the prosecution to establish the guilt of the accused. Reasonable approach has to be adopted to ensure that the object of the section is achieved and possibility of the principle being extended to impracticable and imaginary limits is avoided. 13. It is a settled position in law that while complying with the mandatory requirement of section 313, the court is not expected to put every material to the accused. It has to be confined to the circumstances appearing in the substantial evidence, which, in the opinion of the court, require explanation by the accused. In the case of Bakhshish Singh Dhaliwal vs The State of Punjab, AIR 1967 SC 752, where the court was concerned with the scope of section 342 of the Code, 1898 (equivalent to Section 313 of the present Code), it was held as under: “It was also submitted that these War Diaries were not put to the accused when he was examined under S.342 of the -15- Code of Criminal Procedure and consequently, their use to the prejudice to the appellant to record findings against him was not justified. This submission is clearly based on a misapprehension of the scope of section 342 Cr.P.C. Under that provision, questions are put to an accused to enable him to explain any circumstance appearing in the evidence against him, and for that purpose, the accused is also to be questioned generally on the case, after the witnesses for the prosecution have been examined and before he is called on for his defence. These War Diaries were not circumstances appearing in evidence against the appellant. They were, in fact, evidence of circumstances which were put to the accused when he was examined under S 342 Cr.P.C. It was not at all necessary that each separate piece of evidence in support of a circumstance should be put to the accused and he should be questioned in respect of it under the section, and consequently, the High Court committed no irregularity at all in treating these War Diaries as part of the evidence against the appellant”. 14. The object and scope of this salutary provision has received varied judicial interpretations. Of course, with the passage of time and development of law, it has been given a wider meaning and certain new dimensions in regard to the utilisation of the statement made by the accused under this provision in aid of the case of the prosecution, which otherwise is proved on its own merits. Every error or omission in complying with this section would not vitiate the trial. Inadequate examination of the accused, may cause prejudice to the accused or may -16- have material effect on the prosecution case, but it would essentially depend upon facts and circumstances of a given case. Some Courts have even taken a view that non compliance of the section in its strict construction, per se, is not sufficient to adversely affect the prosecution case and even an order of conviction can sustain, unless it is positively shown that such non-compliance was actually prejudicial to the interest of the accused. In a case where medical evidence was not put to the accused, but his attention was actually drawn to the fact that the evidence discloses that the victim died as a result of the injury caused to her by the accused, the court held that no prejudice was caused to the accused and thus neither the trial nor the conviction was vitiated (Dulal Nayak vs State of West Bengal) 1987 Criminal Law Journal 1561= 1987 (2) Crime 342. The the Supreme Court in the case of Ajit Kumar Chowdhry vs State of Bihar, AIR 1972 SC 2058, held that if the accused denies the recovery then omission to ask further question in relation to the stolen property would not cause any prejudice to the accused as the basic fact already stands denied by the accused. The omission to put report of the Director, Central Food Laboratory, to the accused cannot vitiate the proceedings when it is shown that the accused was aware of the report, which was brought to his attention in his statement -17- (Hariram vs State of Maharashtra 1977 Criminal Law Journal 383). In substance there has to be substantial compliance with the statutory requirement while ensuring that the accused has suffered no prejudice as a result of any irregularity in the recording of statement under section 313 of the Code. Of course it must not be an illegality like not putting material or substantial piece of evidence forming the very basis of the charge which, apparently causes prejudice to the interest of the accused in receiving fair trial. 15. In the case of Bibhuti Bhusan Das Gupta and anr. vs. State of West Bengal, AIR 1969 SC 381, the Supreme Court explained the scheme of this provision as under: “... Sub-section (1) of section 342 consists of two parts. The first part gives a discretion to the court to question the accused at any stage of an inquiry or trial without previously warning him. Under the second part the court is required to question him generally on the case after the witnesses for the prosecution have been examined and before he is called for the defence. The second part is mandatory and imposes upon the court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words. He is not bound to answer or give false answers, but if he refuses to answer or gives false -18- answers, the consequences may be serious, for under sub-section (2) the court may draw such inference from the refusal or the false answer as it thinks fit. Under sub- section (3) the answers given by the accused may be taken into consideration in the inquiry or trial. His statement is material upon which the court may act, and which may prove his innocence, (see State of Maharashtra v Laxman Jairam, 1962 Supp 3 SCR 230= (AIR 1962 SC 1204). Under sub-section (4) no oath is administered to him. The reason is that when he is examined under section 342-A he is not a witness. Before section 342-A was enacted, he was not a competent witness for the defence. His statement under section 342 was intended to take the place of what he could say in his own way in the witness box. (see Hate Singh v State of Madhya Pradesh, Bharat, AIR 1953 SC 468, at p 470). Under section 342-A he is now a competent witness. But the provisions of section 342-A do not affect the value of his examination under s.342. Under sub-section (3) of S 342 his answers may be put in evidence for or against him in other inquiries or trials for other offences. For instance, if in a trial for murder he says that he concealed the dead body and did not kill the victim his statement may be used as evidence against him in a subsequent trial for an offence under section 201”. 16. Still in the case of Rattan Singh vs State of Himachal Pradesh, AIR 1997 SC 768, the Supreme Court, while considering the effect of the statement under section 313, held as under: -19- “Learned counsel for the appellant tried to make out much from the fact that no finger impression of Sheela Devi was found on the gun. We do not find any consequence on account of it in this case. In fact, appellant did not seriously dispute when the trial Judge put the question to him regarding that circumstance during his examination under section 313 of th Code of Criminal Procedure (question no. 25 related to the evidence that gun was produced by Sheela Devi and was taken into possession by the police. The answer was taken into possession by the police. The answer given by the appellant to that question was “I do not know”). Examination of the accused under section 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent