Paul George vs State
2006 Latest Caselaw 1035 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. By way of this revision petition, the petitioner is challenging the order and judgment dated 19.9.2001 passed by the learned Additional Sessions Judge whereby the petitioner's appeal against the order passed by the learned Metropolitan Magistrate against the petitioner has been dismissed. The petitioner was convicted by the learned trial court under Section 279 read with Section 304-A IPC and was sentenced to nine months Simple Imprisonment and a fine of Rs.5,000/-.

2. The facts in brief are that on 29.6.1992, the petitioner who was a Head Constable serving with the Delhi Police, was directed to go to the Police Headquarters at ITO from Police Station Kashmiri Gate to convey a message from the Communications Wing at Police Station Kashmiri Gate for the Police Headquarters at ITO. On that date, the petitioner who was a driver carried the message while driving an Alwyn Nissan Mini Truck bearing Registration No DDL- 6462. He is said to have been accompanied by another Head Constable. On 29.6.1992 itself at about 6. 00 p.m., one Hans Kumar was returning from his office on his scooter bearing Registration No. HNE-3892 and his friend Atma Ram (since deceased) was sitting on the pillion seat of the said scooter. When the scooter was under the railway bridge on the Ring Road going towards Jamuna Bazar, the said mini truck driven by the petitioner is reported to have come from the opposite direction, crossed over the road divider and hit the scooter on the rear. It is the case of the prosecution that thereafter, the driver of the said government vehicle (mini truck) attempted to steer it back onto the road running from Jamna Bazar towards Rajghat. While doing so, the said mini truck hit an electric pole and came to a halt. The Mechanical Inspection Report revealed that the front right wheel of the said mini truck was damaged in such a way that the wheels were jammed and the vehicle had to come to a stop. When the said Government mini truck hit the scooter, the said Atma Ram sustained injuries. The Police Control Room (PCR) van was called and Atma Ram was taken to Jai Prakash Narain Hospital. Subsequently, the said Atma Ram passed away having succumbed to the injuries received due to the impact. As the petitioner was found driving the said mini truck bearing Registration No. DDL-6462, he was convicted of offences under Section 279 read with Section 304-A IPC for having driven the vehicle rashly or negligently.

3. Earlier by an order dated 25.0.2001 a learned Single Judge of this Court had dismissed this Revision Petition. The petitioner being aggrieved by the said order of dismissal filed a Special Leave Petition before the Supreme Court. Before the Supreme Court, the petitioner herein urged that the Criminal Revision Petition had been dismissed by the High Court by virtue of the order dated 25.9.2001 which was a non-speaking order. It was submitted before the Supreme Court that one of the pleas raised before the High Court was that the prosecution of the petitioner was bad for want of sanction by the competent authority. It was contended that the petitioner had been working in the police department as a driver and at the time of occurrence, he was driving an official vehicle in performance of an official duty and, therefore, he had been acting under the colour of duty. Accordingly, it was submitted that it was obligatory to obtain sanction before initiation of prosecution under Section 140 of the Delhi Police Act. It was also urged before the Supreme Court that the petitioner had also taken the point before the High Court that there were no eye witnesses to state that there was rash or negligent driving on the part of the petitioner and that the trial court as well as the appellate court had erred in fastening guilt upon the petitioner only by application of the maxim res ipsa loquitur. After granting leave to appeal, the Supreme Court, by virtue of its judgment dated 21.1.2002 [Paul George v State: ] set aside the order dated 25.9.2001 essentially on the ground that no reasons were given for the dismissal of the revision petition. The Supreme Court remanded the case to this Court for its disposal afresh. It also ordered that the petitioner be released on bail forthwith during pendency of the revision before this Court. It is in these circumstances, that the present revision petition has been heard and is being decided afresh in accordance with law as directed by the Supreme Court.

4. The first point raised by the learned Counsel for the petitioner is with regard to the absence of sanction under Section 197 of the Criminal Procedure Code, 1973 (hreinafter referred to as the Code). It may be pointed out, at this stage that in the first round, as would be evident from the Supreme Court decision in Paul George v State (supra), the point of absence of sanction was taken with regard to the provisions of Section 140 of the Delhi Police Act but here the question with regard to absence of sanction has been agitated in the context of the provisions of Section 197 of the Code. The learned Counsel appearing on behalf of the petitioner had fairly conceded that Section 140 of the Delhi Police Act would not come into play. He, however, urged that the point of absence of sanction remained all the same but, with reference to the provisions of Section 197 of the Code.

5. The case of the petitioner before this Court is that the petitioner was acting or purporting to act in discharge of his official duties as a driver of the vehicle when this incident happened. Therefore, in terms of Section 197 of the Code, sanction was required before prosecution could be initiated against the present petitioner. The learned Counsel for the petitioner pointed out that admittedly no such sanction had been taken and, in the absence of sanction, the entire prosecution stood vitiated. The learned Counsel for the petitioner referred to a decision of the Supreme Court in the case of Sankaran Moitra V. Sadhna Das and in particular to paragraphs 14, 15, 16 and 17 thereof in an attempt to demonstrate that the petitioner who was driving the said govt. vehicle and was carrying a message from the Communications Wing at PS Kashmiri Gate to the Police Headquarters at ITO was, in fact, acting in an official capacity in furtherance of his official duties. He submitted that the incident happened while he was doing so and, therefore, Section 197 of the Code was clearly attracted and sanction was necessary. No such sanction having been taken, the entire prosecution would be bad and therefore, the order of conviction upheld by the Additional Sessions Judge on appeal would have to be set aside.

6. Ms. Richa Kappor who appeared on behalf of the State submitted that while it is a fact that no sanction has been obtained before prosecuting the present petitioner, no such sanction was necessary inasmuch as the provisions of Section 197 Cr.PC are not attracted in this case. Firstly, she submitted that act of driving fast and crossing over the divider and going on the wrong side of the road cannot be said to be an act included in the performance of duties or in the discharge of official duties. She relied upon a decision of the Supreme Court in the case of Matajog Dobey V. H.C. Bhari where the Supreme Court laid down the scope of the protection afforded by Section 197 of the Code in the following terms : There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

7. This observation of the Supreme Court in the case of Matajog Dobey (supra), has been followed in the case of Balbir Singh V. D.N. Kadian and Anr. as would be evident from paragraph 3 of the said decision.

8. The learned Counsel for the State further referred to a decision of the Supreme Court in the case of Bhagwan Prasad Srivastava V. N.P. Mishra 1970 CRL LJ 1401. In particular, she referred to paragraph 3 of the said decision wherein the Supreme Court observed that :- In our view, it is not the duty which requires examination so much as the act because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set-up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles.

9. The learned Counsel for the State further relied upon a decision of a learned Single Judge of this Court in the case of Inspector Rati Ram V. State passed in Crl Rev Petition No. 44/2000.

10. Secondly, the learned Counsel for the State submitted that the protection under Section 197 of the Code is attracted only in the case of a judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government She submitted that the protection under Section 197 is available not to all public servants but to only those public servants who cannot be removed from their office save by or with the sanction of the Government. She submitted that the petitioner being a mere head constable was not required to be removed after sanction of the Government nor was he required to be removed by the Government. A head constable serving in the Delhi Police could be removed from his office by a competent authority. In this context, she referred to a decision of the Supreme Court in the case of K. Ch Prasad v Smt. Vanalatha Devi and Ors. . The Supreme Court, referring to Section 197 of the Code observed that this Section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. The public servant concerned in the case before the Supreme Court was an officer of a Nationalised Bank. He was removable from his office by a competent authority and no sanction of the Government was necessary. It was contended before the Supreme Court that the competent authority who could remove the said officer of the bank derived his power under regulations and those regulations ultimately derived their authority from an act of Parliament which implied that the regulations were framed with the approval of the Central Government and, therefore, the said officer was a public servant as contemplated under Section 197 of the Code. The Supreme Court repelled this argument and held that even though the competent authority derived his power to remove such an officer from the regulations, it still did not mean that the said officer could not be removed from his service by anyone except the government or with the sanction of the government.

11. Ms Kapur then relied upon another decision of the Supreme Court in the case of Dr Laxmansingh Himatsingh Vaghela v Naresh Kumar Chandrashanker Jah and Anr. .In paragraph 5 of the said judgment the Supreme Court observed that Section 197 of the Code clearly intends to draw a line between public servants and to provide that only in the case of higher ranks the sanction of the Government for their prosecution would be necessary. In the case before the Supreme Court,the public servant was a laboratory officer in the service and pay of the Municipal Corporation of Ahmadabad. The Court held that the said public servant was not an employee of the State Government and was not employed in connection with the affairs of the State. The Court, therefore, held that he would not be a public servant covered under Section 197 of the Code.

12. Thirdly, it was contended by the learned Counsel for the State that by virtue of the provisions of Section 465 of the Code the non-obtaining of sanction would not vitiate the entire proceedings and the conviction and sentence cannot be set aside merely because of an irregularity with regard to obtaining of sanction unless the Court came to the conclusion that a failure of justice has, in fact, been occasioned thereby. Section 465 of the Code, reads as under:-

465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

13. The learned Counsel for the State submitted that in the corresponding provisions under the old Code of 1898 the words or any error or in any sanction or prosecution were absent. According to her the legal position under the old Code was that any defect in sanction was incurable and a prosecution launched on a defective sanction or in the absence of any sanction would be void ab initio. However, the position is different under the present Code inasmuch as the words any error or irregularity in any sanction for prosecution have been intentionally and specifically included in Section 465. She referred to the decision of the Supreme Court in the case of Kalpnath Rai v State:1998 Crl. Law Journal 369 wherein the Supreme Court was of the following view:-

26. In the corresponding provision under the old Code (of 1898) the words or any error or irregularity in any sanction for the prosecution were absent. Legal position under the old Code, as settled by the decisions of various Courts, was that any defect in action was not curable and hence the prosecution itself would have been void. [vide Dr. Hori Ram Singh v Emperor , Gokulchand Dwarkadas Morarka v The King AIR 1948 CP 82, Shreekantiah Ramayya Manipalli, v State of Bombay ].

27. When parliament enacted the present Code they advisedly incorporated the words any error or irregularity in any sanction for the prosecution in Section 465 of the present Code as they wanted to prevent failure of prosecution on the mere ground of any error or irregularity in the sanction for prosecutions. An error or irregularity in a sanction may, nevertheless, vitiate the prosecution only if such error or irregularity has occasioned failure of justice.

With regard to Sub-section (2) of Section 465 of the Code the Supreme Court further observed as under:-

29, Sub-section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that the Court shall have regard to the fact that objection has been raised at the earlier stage in the proceedings. It is only one of the consideration to be weighed but it does not means that if objection was raised at the earlier stage, for that very reasons the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.

14. Lastly, the learned Counsel for the State referred to the decision of the Supreme Court in the case of Central Bureau of Investigation v V.K. Sehgal and Anr. . In that case, the Supreme Court, referring to the provisions of Section 465 of the Code, observed that a Court of Appeal or revision is debarred from reversing a finding (or even an order of conviction or sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. It was further observed that for determining whether want of valid sanction had in fact occasioned failure of justice, Sub-section (2) of Section 465 enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. The Supreme Court clearly held that even if he had raised any such objection at an early stage it is hardly sufficient to conclude that there was failure of justice as that has to be determined on the facts of each case. But, an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. In view of these observations the Supreme Court held:-

11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

15. Considering the arguments advanced by the learned Counsel for the petitioner as well as those advanced by the learned Counsel for the State, I am of the view that the petitioner cannot take any advantage of the fact that no sanction was obtained in the present case. I am of this view even if it is assumed that the petitioner was a public servant who was not removable from his office save by or with the sanction of the Government. The conclusion would remain the same even if it is further assumed that the offence which is alleged to have been committed by him was so committed while he was acting or purporting to act in the discharge of his official duty. In another words, even if it is assumed for the sake of argument that sanction was to be taken under Section 197 of the Code, my conclusion would remain the same. This is because in view of the express provisions of Section 465 of the Code, merely because there is an error or irregularity in the sanction for prosecution, it would not ipso facto entitle a Court of Appeal or Revision to reverse the order of conviction and sentence unless and until it is established that such error or irregularity has resulted in a failure of justice. The Supreme Court in CBI v V.K.Sehgal (supra) has settled the issue that an accused who did not raise the objection with regard to the absence of sanction cannot possibly sustain such a plea made for the first time before an Appellate Court or a Court exercising revisional jurisdiction. As observed by the Supreme Court in the said decision, where an accused fails to raise the question of a valid sanction the trial would normally proceed to its logical end by the trial Court making a judicial scrutiny of the entire materials. If that ends in conviction then there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant. This is exactly what has happened in the present case. The petitioner herein did not raise any objection qua sanction before the trial Court of before the Appellate Court. The question of sanction was raised for the first time before this Court and that is clearly unsustainable in view of the dictum of the Supreme Court. As observed by the Supreme Court the very purpose of requiring a sanction is to provide a scheme to safeguard public servants from frivolous, mala fide or vindictive prosecution on the allegation that they have committed offences in the discharge of their official duties. But once this administrative faltering is replaced by a judicial filtering process conducted during a full-blown trial, the requirement of providing for initial sanction would lose its relevance. It is for this reason, according to the Supreme Court, that a bridle has been placed upon the Appellate and Revisional fora by virtue of Section 465 of the Code preventing them from reversing, inter alia, orders of conviction and sentence merely on account of any error or irregularity in any sanction for prosecution. The trial having concluded and even the Appellate Court having examined the materials, there can be no question of any failure of justice being occasioned by the absence of sanction under Section 197. This is a conclusion which has been arrived at on the assumption that a sanction under Section 197 is required in the present case. Therefore, I need not examine the arguments of counsel with respect to the issue whether such a sanction was required or not. Even if it were so required, in view of what has been discussed above, it is of no help to the petitioner.

16. I now come to the second objection taken by the learned Counsel for the petitioner. He submitted that the Appellate Court confirmed the conviction of the present petitioner by only invoking the principle of res ipsa loquitur. The learned Counsel for the petitioner drew my attention straightway to the following portion of the impugned judgment of the Appellate Court:-

Merely because PW-1 did not speak specifically that the offending vehicle was being driven at a fast speed or it was being driven in a rash and negligent manner does not mean that the offending vehicle was not rash or negligent. In accident cases, the principle of RES IPSA LOQUITUR is fully applicable. In this case the offending vehicle jumped over the central verge of the road, again it was taken on the other side and hit against the electric pole and the scooter is the prima facie evidence to presume that the accused was driving the offending vehicle in a rash and negligent manner. There is no explanation of the accused/appellant as to why and how he jumped the offending vehicle over the central verge and again he struck against the electric pole.

17. After referring to the aforesaid portion of the impugned judgment, the learned Counsel for the petitioner submitted that the principle of res ipsa loquitur has no application in criminal cases inasmuch as it is a fundamental rule of criminal law that an accused is presumed to be innocent unless otherwise proved by the prosecution. He submitted that it has been held by the Supreme Court in Jacob Mathew v State of Punjab: that no presumption of rashness or negligence can be drawn by invoking the maxim res ipsa loquitur.

18. He further submitted that in order to convict a person of an offence under Section 304A IPC or Section 279 IPC, the prosecution must prove that the accused was driving the vehicle in a rash or negligent manner. He submitted that admittedly, PW-1 has not stated anywhere in the evidence that the offending vehicle was driven in a rash and negligent manner. He also referred to the Supreme Court decision in the case of State of Karnataka v. Satish to submit that in the absence of any material on record no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur. In that case the Supreme Court found that there was no evidence on record to establish negligence or rashness in driving the vehicle on the part of the accused and, therefore, the Supreme Court found that the accused was rightly acquitted by the High Court. In sum and substance, the learned Counsel for the petitioner submits that no presumption can be drawn and it is for the prosecution to prove and establish rashness or negligence on the part of the accused before a conviction under Section 304A or Section 279 IPC can be sustained against the petitioner.

19. In response to this argument, the learned Counsel for the State submits that this plea is wholly misconceived and misplaced. She submitted that the plea advanced by the learned Counsel for the petitioner that there is no eye witness for alleging rash and negligent driving on the part of the petitioner and that the Court below had erred in fastening guilt upon the petitioner, has no basis. She submitted that in the present case the accused was driving the mini truck in a rash and negligent manner inasmuch as he drove the mini truck over the divider, came on the wrong lane and hit the scooter in the rear. The vehicle driven by the accused and the scooter were in opposite directions The scooter was being driven in its lane at a normal speed and it was the accused who crossed the central verge and hit the pillion rider of the scooter causing him to die. She further submitted that in the course of the trial, the prosecution had examined PW-1 who was the driver of the scooter and was an eye witness to the incident. She stated that the said prosecution witness may not have used the words rash and negligence, but has fully supported the prosecution case. The Mechanical Inspection Report of both the vehicles also establish that the accident was caused by the accused who was caught at the spot and was driving the Alwyn Nissan mini truck. She further submitted that the postmortem report also goes to establish that the death has been caused because of blunt force impact and the ribs of the deceased were broken in several places because of it. As regards the plea in respect of the maxim res ipsa loquitur, she submitted that it is only a rule of evidence and is employed to determine the onus of proof in actions relating to negligence. She relied upon the decision of the Supreme Court in the case of Thakur Singh v State of Punjab: (2003) 9 SCC 308 to submit that the doctrine of res ipsa loquitur comes into play and when it does so, the burden shifts on to the person who was in control of the vehicle to establish that the accident did not happen on account of any negligence on his part. She submitted that in the present case there is an eye witness to the incident. On the other hand, upon application of the principle of res ipsa loquitur, the burden having shifted on to the accused, nothing has been shown by the petitioner to enable the Court to conclude that the impact did not happen on account of any rashness or negligence on his part. Therefore, the impugned order cannot be faulted and the the conviction and sentence ought to be maintained.

19. The maxim res ipsa loquitur, as observed by the Supreme Court in Shyam Sunder v State of Rajasthan: , is stated in its classical form by Erle, CJ in Scott v London and St. Katherine Docks: (1865) 3 HandC 596, 601 as follows:-

Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

20. In Shyam Sunder (supra), the Supreme Court observed that the maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption of an argument on the evidence. According to the Supreme Court the maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent the injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the defendant. The Supreme Court further observed that the plaintiff merely proves the result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendants, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. The decision in Shyam Sunder (supra) of course, was in respect of the negligence under torts.

21. In Syad Akbar v State of Karnataka: , the Supreme Court considered the question as to whether the principle of res ipsa loquitur is applicable to criminal proceedings and if so, could it be invoked in the circumstances of the case in favor of the prosecution to presume rashness and negligence on the part of the accused The Supreme Court after examining the various authorities, Indian and English, deduced two lines of approach with regard to the application and effect of the maxim res ipsa loquitur. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway, or overturns or in fair visibility runs into an obstacle resulting in an injury and the circumstances in which the injury complained of are such that with the exercise of the requisite care no risk would, in the ordinary course ensue, the burden shifts in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of the presumption of law and fact arising against the defendant from the circumstances of the accident itself, which bespeak negligence of the defendant. According to the Supreme Court, the other line of approach is that res ipsa loquitur is not a special rule of substantive law and that functionally it is only an aid in the evaluation of evidence. As per this view the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of an inference of fact, as distinguished from a mandatory presumption properly so- called, having regard to the totality of the circumstances and probabilities of the case. In the words of the Supreme Court, res ipsa loquitur is only a means of estimating logical probability from the circumstances of the accident.

22. In Syad Akbar (supra), the Supreme Court held that:-

The first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident tells its own story of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz., the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) 2 All ER 552 : 1937 AC 576, simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied `reckless' most nearly covers the case.

23. The other approach which permits the use of the maxim only for inferential purpose was, however, accepted by the Supreme Court in the following words:-

29 However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under Section 114, Evidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favor of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence.

30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.

24. In State of Karnataka v Satish: , the Supreme Court was considering a case where a truck driving at a high speed had turned turtle and fifteen persons lost their lives as a result of it. After holding that the respondent was driving the truck at a high speed, the trial Court and the Appellate Court pressed into service the doctrine of res ipsa loquitur to hold the respondent guilty. The High Court, however, had acquitted the driver of the truck. The Supreme Court concurred with the view taken by the High Court and observed that merely because the truck was being driven at a high speed did not bespeak of either negligence or rashness by itself. The Supreme Court observed that in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. It observed that criminality is not to be presumed, subject of course, to some statutory exceptions. The Supreme Court concluded, on the facts of the case before it, that in the absence of any material on record, no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur. The Court observed that there is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Court observed that the Motor Vehicle Inspector who inspected the vehicle had submitted a report was not examined nor was the report forthcoming from the record. In these circumstances, the Court found this to be a serious infirmity and lacuna in the prosecution case and thereby agreed with the order of the acquittal passed by the High Court.

25. In Mohammed Aynuddin Alias Miyam v State of A.P: a passenger fell of the bus and was crushed under its rear wheel. The Supreme Court observed that the principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. It held that 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. The Court had also observed that it is a wrong proposition that for any motor accident negligence of the driver should be presumed. In that case the accused was acquitted.

26. In Thakur Singh v State of Punjab: , a bus which was being driven by the accused over a bridge fell into a canal. All its forty one passengers died. In this case, the Supreme Court held that in such a situation the doctrine of res ipsa loquitur would come into play and the burden shifted onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part, the Court did not interfere with his conviction under Section 304A IPC. This case is apparently a departure from the principles enunciated in Syad Akbar (supra). But, will be of no use to the petitioner in view of the larger bench decision of the Supreme Court in Jacob Mathew (infra).

27. In Jacob Mathew v State of Punjab: , the Supreme Court was concerned with the case of a doctor's negligence. The Supreme Court held that res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. It further held that in criminal proceedings, the burden of proving negligence which is an essential ingredient of the offence lies on the prosecution and that such ingredient cannot be said to have been proved or made out by resorting to the said rule. The Supreme Court came out with its clearest statement with regard to the applicability of the maxim in criminal proceedings in the following words:-

In our opinion, the case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.

28. From the above discussion it becomes clear that a conviction under Section 304-A read with Section 279 IPC cannot be founded merely on the principle of res ipsa loquitur. The principle, at best, can be applied only as an aid in the evaluation of evidence as held by the Supreme Court in the case of Syad Akbar (supra). It only operates in the field of criminal law as being of use as an inference of fact, as distinguished, from a mandatory presumption requiring a shift of the burden of proof onto the defendant. Strictly speaking, in criminal proceedings, the principle cannot be employed to shift the burden of proof onto the defendant and, therefore, it would be wrong to regard it as a rule of evidence insofar as criminal proceedings are concerned. Liability in torts can be based on a preponderance of probabilities and, therefore, such a presumption can be invoked. In criminal proceedings a conviction can only be sustained on proof beyond reasonable doubt unless of course the statute itself provides for a presumption. In the present case, there is no such statutory presumption and, therefore, the petitioner's conviction would have to be based not merely on the principle of res ipsa loquitur but on clear proof of rashness or negligence on his part.

29. The learned Additional Sessions Judge in the impugned judgment has undoubtedly used the expression res ipsa loquitur and has stated that in an an accident case the principle of res ipsa loquitur is fully applicable. It also appears that it is upon the application of this principle that the conviction of the petitioner has been upheld. To this extent, the impugned decision is contrary to the law declared by the Supreme Court as discussed above. That is because the principle of res ipsa loquitur by itself cannot be employed in criminal proceedings to sustain a conviction of a person under Section 304A read with Section 279 IPC. The prosecution has to establish by positive proof that the accused did drive the vehicle in a rash and negligent manner. It appears that the Appellate Court employed the principle of res ipsa loquitur as a rule of evidence as it is done in civil cases under torts law. That is not permissible in criminal proceedings. However, the matter does not end here. The Trial Court did not employ the principle of res ipsa loquitur at all. Although, in the Trial Court's judgment, it is observed that it was for the petitioner to explain as to what caused the vehicle to ascend the central verge and onto the lane on which the scooter was proceeding from Rajghat towards Jamuna Bazar. The Trial Court observed that the explanation given by the Petitioner was that the engine belt had broken. But, the Mechanical Inspection Report Ext. PW-1/A did not show that the engine belt had broken. The Trial Court further observed that from the statement of PW-1 (Hans Kumar), it stood proved that the mini truck ascended the midverge. The Trial Court examined the photographs and came to the conclusion that the petitioner could not control his vehicle and this was due only because of rash and negligent driving of this vehicle. He held that the accused failed to take care of the probable danger to human life while driving the vehicle. He concluded that the prosecution had fully established its case against the accused for commission of offences under Sections 279 and 304-A IPC.

31. I have also examined the statement of PW1 who has clearly stated in examination-in-chief as follows:- On 29.6.1992 I had started from connaught Place on my scooter No. HNE-3892 at about 6.00 p.m. I was coming from the side of Rajghat towards Jamna Bazar side. As I crossed under the Rly. Pul and Alwyn Nissan DDL-6462 came from the side of Jamna Bazar and crossed the divider and came to our side. The said vehicle hit our scooter and tried to go back the way it had come. Shri Atma Ram was sitting behind me on the two wheeler scooter at that time. Due to the impact Shri Atma Ram fell down and received injury on his head. The right side of the Alwyn Nissan had perhaps hit the scooter when half of the scooter had already passed.

The said PW1 (Hans Kumar), in his cross-examination confirmed the incident in the following words:-

I had seen the Allwyn Nissan Vehicle jumping the divider with my own eyes and coming in my lane and immediately thereafter he hit my scooter. The Alwyn Nissan had hit the street pole when it was trying to go back.

32. Considering the statement of PW1 who is an eye witness, the prosecution has been able to establish that the offending vehicle jumped over the central verge, came onto the lane on which PW1 was driving his scooter and hit the rear portion of the scooter and particularly the pillion rider, Atma Ram, who sustained injuries and subsequently died. Employing the principle of res ipsa loquitur, not as a rule of evidence, but merely by way of permissive inference in the manner explained in Syad Akbar (supra), coupled with the ocular testimony of PW1 (Hans Kumar), for which there are no reasons to disbelieve, it does appear to me that the prosecution has been able to establish its case under Section 304A and 279 IPC. The conviction therefore, cannot be interfered with.

33. As regards the sentence, I note that the petitioner has already suffered the ordeal of a trial for a long period of time. The incident was of 1992 and we are in 2006. The petitioner has been in custody for a period of over five months before he was released on bail by virtue of orders of the Court. The sentence imposed is only of nine months' simple imprisonment. The amount of fine has already been deposited. Considering these factors, I feel that it would be appropriate to reduce the sentence to the period already undergone. No further imprisonment would be necessary in this case.

34. With the aforesaid modification in the sentence this Revision Petition is dismissed.