Himachal Pradesh High Court
State Of H.P vs Krishan Lal on 16 September, 2024
Neutral Citation No. ( 2024:HHC:8595 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 189 of 2011
Date of Decision: 13.9.2024
.
State of H.P. ...Appellant.
Versus
Krishan Lal ...Respondent.
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Mr. Prashant Sen, Deputy Advocate
General.
For the Respondent : Mr. Arun Kaushal, Advocate.
Rakesh Kainthla, Judge (Oral):
The State is aggrieved by the judgment dated
31.7.2010, passed by learned Judicial Magistrate First Class,
Court No.II, Shimla (learned Trial Court) vide which the
respondent (accused before the learned Trial Court) was
acquitted of the commission of offences punishable under
Sections 279, 337, 338 and 304-A of the Indian Penal Code (IPC).
(The parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience).
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:8595 )
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan before the learned
.
Trial Court for the commission of offences punishable under
Sections 279, 337, 338 and 304-A of IPC and Section 186 of the
Motor Vehicle Act. It was asserted that an intimation was
received in Police Post, Sunni on 30.8.2006 at 4.20 pm that a
vehicle bearing registration No. HP-01-3243 had met with an
accident at place Thachi. The police recorded entry no. 11, dated
30.8.2006 (Ex.PW10/A) and sent HC Prem Lal (PW11), Constable
Raghubir Singh and Constable Tek Chand to the spot for
verification. They were informed on the way that the injured
were taken to the hospital. They went to Civil Hospital, Suni,
where they met injured Mohan Lal (PW6) who revealed that he,
Yog Raj and Virender Sharma (PW3) had boarded the vehicle
bearing registration No. HP-01A-3243 which was being driven
by the accused Krishan Lal alias Babli. Paras Ram, Kesar Dass
and Hem Raj were already occupying the vehicle. When the
vehicle went half a kilometre ahead, the accused could not
control the vehicle due to its high speed and the vehicle fell into
a gorge. Mohan Lal and other occupants of the vehicle sustained
injuries. Yog Raj, Paras Ram and Besar Dutt died on the spot. The
Neutral Citation No. ( 2024:HHC:8595 )
accident had taken place due to the negligence of the accused.
The police reduced the statement into writing (Ex.PW6/A) and
.
sent it to the Police Station, where FIR (Ex.PW11/C) was
registered. HC Prem Lal (PW11) conducted the investigation. He
prepared the site plan (Ex.PW11/A) and took the photographs
(Ex. PA to PE, whose negatives are PF to PJ) on the spot. He
seized the vehicle bearing registration No. HP-01A-3243 vide
memo (Ex.PW2/A). He applied for a medical examination of the
injured. Dr Gopal Chauhan (PW4) conducted the medical
examination of Mohan Lal and found that he had sustained
simple injuries that could have been caused by a blunt-edged
weapon within less than 24 hours of the examination. He issued
MLC (Ex.PW4/A). He also conducted postmortem examinations
of the dead bodies of Paras Ram, Yog Raj and Besar Dutt. He
found that Paras Ram had died due to traumatic shock caused by
the head injury which could have been caused in a roadside
accident. He issued the report (Ex.PW4/A). According to his
opinion, the death had taken place immediately after sustaining
injuries. He also examined Yog Raj and found that he had also
died due to traumatic shock caused by the head injury, which
could have been caused in a roadside accident. He issued the
Neutral Citation No. ( 2024:HHC:8595 )
report (Ex.PW4/D). He found that Besar Dutt had died due to
traumatic asphyxia caused by the fracture of the ribs of the right
.
chest leading to hemothorax in the right chest and haemorrhage
of the right lung. These injuries were possible in a roadside
accident. He issued his report (Ex.PW4/D). One of the injured,
namely Virender was admitted to IGMC, Shimla with a
compound fracture. His discharge slip (Ex.PW5/A) was issued by
Dr. Des Raj Chandel (PW5). Sanju was admitted to the
Neurosurgery Department of IGMC, Shimla and the CT scan of
his head revealed Extra Dural Hematoma. Dr. Rakesh (PW6)
issued his discharge card. These documents were seized by HC
Prem Lal. The documents of the vehicle were seized vide memo
(Ex.PW8/A). The mechanical examination of the vehicle was
conducted by Rajinder Singh (PW15), who found that there was
no mechanical defect in the vehicle that would lead to the
accident. He issued a report (Ex.PW15/A). The statements of the
witnesses were recorded as per their version and after the
completion of the investigation, the challan was prepared and it
was presented before the Court of Learned Judicial Magistrate
First Class-II, Shimla.
Neutral Citation No. ( 2024:HHC:8595 )
3. Learned Trial Court put a Notice of Accusation to the
accused for the commission of offences punishable under
.
Sections 279, 337, 338 and 304-A of IPC. The accused pleaded
not guilty and claimed to be tried.
4. The prosecution examined 16 witnesses to prove its
case. Sanju (PW1), Virender Sharma (PW3), Mohan Lal (PW6)
and Anju (PW12) were the occupants of the vehicle. Gauri
Shankar (PW2) is the witness to the recovery of the vehicle.
Dr Gopal Chauhan (PW4) conducted a medical examination of
the injured and postmortem examination of the dead bodies.
Dr. Des Raj Chandel (PW5) treated the injured Virender at IGMC,
Shimla. Dr. Rakesh Roshan (PW6) was posted in Neurosurgery,
where Sanju was treated. Nirmal Singh (PW7) is the witness to
recovery. Roshan Lal (PW8) is the witness to the recovery of the
documents. Basti Ram (PW9) and Pawan Kumar (PW11)
produced the record. HC Prem Lal (PW11) conducted the
investigation. HC Shiv Kumar (PW13) proved the entries in the
daily diary. Uma Sharma (PW14) is the owner of the vehicle who
proved that the accused was driving the vehicle at the time of
the accident. Rajinder Singh (PW15) conducted the mechanical
examination of the vehicle.
Neutral Citation No. ( 2024:HHC:8595 )
5. The accused in his statement recorded under Section
313 of Cr.P.C. admitted that he was driving the vehicle and Paras
.
Ram, Besar Dutt, Hem Raj, Mohan Lal, Yog Raj, Virender and
Anju were travelling in the vehicle. He denied that he was
driving the vehicle in a rash and negligent manner which led to
the accident. He admitted that the occupants of the vehicle had
sustained injuries and Yog Raj, Paras Ram and Besar Dutt died
due to the accident. He admitted that their medical examination
was conducted. He also admitted that the vehicle was seized by
the police along with documents. He denied the rest of the
prosecution case. He stated that he was innocent and that he was
falsely implicated. He was not driving the vehicle in a rash and
negligent manner and the accident occurred due to the sudden
collapse of the retaining wall. No defence was sought to be
adduced by the accused.
6. Learned Trial Court held that the plea taken by the
accused that the retaining wall on the road gave way leading to
the accident was plausible because of the statements of Sanju
(PW1), Virender Sharma (PW3), Mohan Lal (PW6) and Anju
(PW12), who admitted in their cross-examination that danga on
the road suddenly gave way due to which the vehicle fell. If two
Neutral Citation No. ( 2024:HHC:8595 )
versions appear on the record, the version in favour of the
accused has to be accepted as correct. The evidence of the
.
prosecution was insufficient to prove that the accident occurred
due to the negligence of the accused. Hence, the accused was
acquitted of the commission of offences punishable under
Sections 279, 337, 338 and 304-A of IPC.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present appeal
asserting that the learned Trial Court failed to appreciate the
prosecution evidence in its proper perspective. Unrealistic
standards were set to evaluate direct and cogent prosecution
evidence. The testimonies of the prosecution witnesses were
wrongly discarded. Virender Sharma (PW3), Mohan Lal (PW6)
and Smt. Anju Sharma (PW12) had categorically stated that the
accused was driving the vehicle at a high speed which led to the
accident. Virender Sharma (PW3) and Prem Lal (PW11) did not
support the defence version that the accident occurred due to
the collapse of the retaining wall. The road was 10 ft. wide and
driving the vehicle towards the kacha portion of the road at a
high speed shows the negligence of the accused. It was proved
on record that it was raining and the accused should have been
Neutral Citation No. ( 2024:HHC:8595 )
vigilant and cautious while driving the vehicle but he failed to do
so. No two views appeared on record and learned Trial Court
.
erred in holding otherwise. Hence it was prayed that the present
appeal be allowed and the judgment passed by the learned Trial
Court be set aside.
8. I have heard Mr. Prashant Sen, learned Deputy
Advocate General, for the appellant/State and Mr. Arun Kaushal,
learned counsel for the respondent/accused.
9. Mr. Prashant Sen, learned Deputy Advocate General,
for the appellant/State submitted that the prosecution witnesses
had deposed about the rashness and negligence of the accused.
Learned Trial Court erred in holding that the accident had taken
place due to the collapse of a retaining wall. The Investigating
Officer categorically denied this fact in his cross-examination
and the site plan does not depict the collapse of the retaining
wall. The view taken by the learned trial court is perverse and
unsustainable. Therefore, he prayed that the present appeal be
allowed and the judgment passed by the learned Trial Court be
set aside.
Neutral Citation No. ( 2024:HHC:8595 )
10. Mr. Arun Kaushal, learned counsel for the
respondent/accused supported the judgment passed by the
.
learned Trial Court and submitted that no interference is
required with it. He submitted that the prosecution is under an
obligation to prove its case beyond reasonable doubt and this
burden never shifts upon the accused. The principle of res ipsa
loquitor does not apply to criminal law and the mere use of the
high speed does not lead to an inference of rashness or
negligence. He relied upon the judgments of the Hon'ble
Supreme Court in S.L. Goswami (Dr) v. State of M.P., (1972) 3 SCC
22, Syad Akbar v. State of Karnataka [(1980) 1 SCC 30: 1980 SCC
(Cri) 59: AIR 1979 SC 1848], Nanjudappa Vs. State of Karnataka
(2022) SCC Online SC 628, Abdul Subhan Vs. State of NCT Delhi
(2006) SCC Online Delhi 1132 and Badri Prasad Tiwari Vs. State
(1993) SCC Online Orissa 256 in support of his submission.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment
of acquittal. It was laid down by the Hon'ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine
Neutral Citation No. ( 2024:HHC:8595 )
SC 130 that while deciding an appeal against acquittal, the High
Court should see whether the evidence was properly appreciated
.
on record or not; second whether the finding of the Court is
illegal or affected by the error of law or fact and thirdly; whether
the view taken by the Trial Court was a possible view, which
could have been taken based on the material on record. The
Court will not lightly interfere with the judgment of acquittal. It
was observed: r
"25. We may first discuss the position of law regarding
the scope of intervention in a criminal appeal. For, that is
the foundation of this challenge. It is the cardinal
principle of criminal jurisprudence that there is a
presumption of innocence in favour of the accused unless
proven guilty. The presumption continues at all stages of
the trial and finally culminates into a fact when the case
ends in acquittal. The presumption of innocence gets
concretised when the case ends in acquittal. It is so
because once the trial court, on appreciation of the
evidence on record, finds that the accused was not guilty,
the presumption gets strengthened and a higher
threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that
in the exercise of appellate powers, there is no inhibition
on the High Court to reappreciate or re-visit the evidence
on record. However, the power of the High Court to
reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first
and foremost question to be asked is whether the trial
court thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of evidence.
Neutral Citation No. ( 2024:HHC:8595 )
The second point for consideration is whether the finding
of the trial court is illegal or affected by an error of law or
fact. If not, the third consideration is whether the view
taken by the trial court is a fairly possible view. A decision
.
of acquittal is not meant to be reversed on a mere
difference of opinion. What is required is an illegality or
perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
"two-views theory" has been judicially recognised by the
courts and it comes into play when the appreciation of
evidence results in two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of the innocence of the accused is in itself a
reasonable doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence.
Therefore, when two views are possible, following the
one in favour of the innocence of the accused is the safest
course of action. Furthermore, it is also settled that if the
view of the trial court, in a case of acquittal, is a plausible
view, it is not open for the High Court to convict the
accused by reappreciating the evidence. If such a course is
permissible, it would make it practically impossible to
settle the rights and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC
pp. 236-37, para 13)
"13. Considering the reasons given by the trial court
and on an appraisal of the evidence, in our considered
view, the view taken by the trial court was a possible
one. Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of
T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid
down that as the appreciation of evidence made by the
trial court while recording the acquittal is a reasonable
view, it is not permissible to interfere in appeal. The
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duty of the High Court while reversing the acquittal
has been dealt with by this Court, thus : (SCC p. 643,
para 9)
.
'9. ... We are constrained to observe that the High
Court was dealing with an appeal against acquittal.
It was required to deal with various grounds on
which acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles
while dealing with appeal against acquittal have
been overlooked by the High Court. If the
appreciation of evidence by the trial court did not
suffer from any flaw, as indeed none has been
pointed out in the impugned judgment, the order of
acquittal could not have been set aside. The view
taken by the learned trial court was a reasonable
view and even if by any stretch of imagination, it
could be said that another view was possible, that
was not a ground sound enough to set aside an
order of acquittal.'"
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P.,
(2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble
Supreme Court analysed the relevant decisions and
summarised the approach of the appellate court while
deciding an appeal from the order of acquittal. It observed
thus: (SCC p. 297, para 7)
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal,
the reasons which had weighed with the trial court
in acquitting the accused must be dealt with, in case
the appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).
Neutral Citation No. ( 2024:HHC:8595 )
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of
U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR
.
1955 SC 807]).
7.3. If two views are possible from the evidence
on record, the appellate court must be
extremely slow in interfering with the appeal
against acquittal (see Sambasivan v. State of
Kerala [Sambasivan v. State of Kerala, (1998) 5
SCC 412: 1998 SCC (Cri) 1320])."
13.
The present appeal has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
14. It was submitted that the principle of res ipsa loquitor
does not apply to the criminal case and a conviction cannot be
recorded based on this principle. Reliance was placed upon the
judgment of Syad Akbar(supra), wherein it was observed: -
"26. From the above conspectus, two lines of approach in
regard to the application and effect of the maxim res ipsa
loquitur are discernible. 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 an 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,
overturns or in fair visibility runs into an obstacle; or
brushes the branches of an overhanging tree, resulting in
injury, or where there is a duty on the defendant to
exercise care, and the circumstances in which the injury
complained of happened are such that with the exercise
of the requisite care no risk would in the ordinary course
Neutral Citation No. ( 2024:HHC:8595 )
ensue, the burden shifts or is 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 a
presumption of law and fact arising against the defendant
.
from the constituent circumstances of the accident itself,
which bespeak the negligence of the defendant. This is
the view taken in several decisions of English courts. [For
instance, see Burke v. Manchester, Sheffield & Lincolnshire
Rail Co. [(1870) 22 LJ 442]; Moore v. R. Fox & Sons [(1956) 1
QB 596: (1956) 1 All ER 182]. Also see paras 70, 79 and 80
of Halsbury's Laws of England, Third Edn., Vol. 28, and the
rulings mentioned in the footnotes thereunder.]
27. According to the other line of approach, res ipsa
loquitur is not a special rule of substantive law;
functionally, it is only an aid in the evaluation of
evidence, "an application of the general method of
inferring one or more facts in issue from circumstances
proved in evidence". In 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
a permissive 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. Res Ipsa is only a means of
estimating logical probability from the circumstances of
the accident. Looking from this angle, the phrase (as Lord
Justice Kennedy put it [Russel v. London & South Western
Railway Co, (1908) 24 TLR 548]) only means, "that there
is, in the circumstances of the particular case, some
evidence which, viewed not as a matter of conjecture, but
of reasonable argument, makes it more probable that
there was some negligence, upon the facts as shown and
undisputed, than that the occurrence took place without
negligence .... It means that the circumstances are, so to
speak, eloquent of the negligence of somebody who
brought about the state of things which is complained
of".
Neutral Citation No. ( 2024:HHC:8595 )
19. As a rule, mere proof that an event has happened or an
accident has occurred, the cause of which is unknown, is
not evidence of negligence. But the peculiar
circumstances constituting the event or accident, in a
.
particular case, may themselves proclaim in concordant,
clear and unambiguous voices the negligence of
somebody as the cause of the event or accident. It is in
such cases that the maxim res ipsa loquitur may apply if
the cause of the accident is unknown and no reasonable
explanation as to the cause is coming forth from the
defendant. To emphasise the point, it may be reiterated
that in such cases, the event or accident must be of a kind
that does not happen in the ordinary course of things if
those who have the management and control use due
care. But, according to some decisions, satisfaction of this
condition alone is not sufficient for res ipsa to come into
play and it has to be further satisfied that the event which
caused the accident was within the defendant's control.
The reason for this second requirement is that where the
defendant has control of the thing which caused the
injury, he is in a better position than the plaintiff to
explain how the accident occurred. Instances of such
special kind of accidents which "tell their own story" of
being offsprings of negligence, are furnished by cases,
such as where a motor vehicle mounts or projects over a
pavement and hurts somebody there or travelling in the
vehicle; one car ramming another from behind, or even a
head-on collision on the wrong side of the road. (See per
Lord Normand in Barkway v. South Wales Transport
Co. [(1950) 1 All ER 392, 399]; Cream v. Smith [(1961) 8 AER
349]; Richley v. Faull [(1965) 1 WLR 1454: (1965) 3 All ER
109])
20. Thus, for the application of the maxim res ipsa
loquitur "no less important a requirement is that the res
must not only bespeak negligence, but pin it on the
defendant".
21. It is now to be seen, how does res ipsa loquitur fits in
with the conceptual pattern of the Indian Evidence Act.
Neutral Citation No. ( 2024:HHC:8595 )
Under the Act, the general rule is that the burden of
proving negligence as the cause of the accident lies on the
party who alleges it. But that party can take advantage of
presumptions which may be available to him, to lighten
.
that burden. Presumptions are of three types:
(i) Permissive presumptions or presumptions of
fact.
(ii) Compelling presumptions or presumptions of
law (rebuttable).
(iii) Irrebuttable presumption of law or conclusive
proof.
Classes (i), (ii) and (iii) are indicated in clauses (1), (2) and
(3) respectively, of Section 4, Evidence Act.
"Presumptions of fact" are inferences of certain fact
patterns drawn from the experience and observation of
the common course of nature, the constitution of the
human mind, the springs of human action, the usages
and habits of society and the ordinary course of human
affairs. Section 114 is a general section dealing with
presumptions of this kind. It is not obligatory for the
Court to draw a presumption of fact. In respect of such
presumptions, the Act allows the judge discretion in each
case to decide whether the fact which under Section 114
may be presumed has been proved by virtue of that
presumption.
28. In our opinion, for reasons that follow, 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 a negligent
or rash act. The primary reasons for the non-application
of this abstract doctrine of res ipsa loquitur to criminal
trials are: Firstly, in a criminal trial, the burden of
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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 the 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".
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
the assessment of evidence, in drawing permissive
inferences under Section 114 of the 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 favour of the alleged
negligence (among other ingredients of the offence with
which the accused stands charged), such a high degree of
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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."
15. A careful reading of the judgment does not support
the submission that the principle of res ipsa loquitor does not
apply to criminal law. Hon'ble Supreme Court itself rejected the
contention that the principle of res ipsa loquitor does not apply
to criminal law in B. Nagabhushanam v. State of Karnataka,
(2008) 5 SCC 730: (2008) 3 SCC (Cri) 61: 2008 SCC OnLine SC 866
Neutral Citation No. ( 2024:HHC:8595 )
and restricted the judgment of Syad Akbar (supra) to its facts. It
was observed at page 734:
.
12. Reliance placed by Mr Kulkarni on Syad Akbar v. State
of Karnataka [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979
SC 1848] is not apposite. It proceeded on the basis that the
doctrine of res ipsa loquitur stricto sensu would not apply
to a criminal case as its applicability in an action for
injury by negligence is well known. In Syad Akbar [(1980) 1
SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] this Court
opined: (SCC p. 41, para 30)
"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 should 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."
The maxim was not applied having regard to the fact of
the said case and on the finding that it was a case of error
of judgment and the accused gave a reasonable,
convincing explanation of his conduct. The maxim res
ipsa loquitur was not found to be applicable. However, we
may notice that the said principle was applied in a case
under the Prevention of Corruption Act in State of A.P. v. C.
Neutral Citation No. ( 2024:HHC:8595 )
Uma Maheswara Rao [(2004) 4 SCC 399: 2004 SCC (Cri)
1276] in the following terms: (SCC p. 408, para 19)
"19. We may note that a three-judge Bench in Raghubir
.
Singh v. State of Haryana [(1974) 4 SCC 560: 1974 SCC
(Cri) 596] held that the very fact that the accused was
in possession of the marked currency notes against an
allegation that he demanded and received the amount
is 'res ipsa loquitur'."
16. It was laid down by the Hon'ble Supreme Court in
Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri)
748: 2008 SCC OnLine SC 1026 that the doctrine of res ipsa
loquitor providing for reverse burden applies to the criminal
law. It was observed at page 445:
"49. The doctrine of res ipsa loquitur providing for a
reverse burden has been applied not only in civil
proceedings but also in criminal proceedings.
(See Alimuddin v. King Emperor [1945 Nag LJ 300].)
In Home Office v. Dorset Yacht Co. Ltd. [1970 AC 1004: (1970)
2 WLR 1140: (1970) 2 All ER 294 (HL)] the House of Lords
developed the common law principle and evolved a
presumptive duty to care.
50. It is, however, of some interest to note that in Syad
Akbar v. State of Karnataka [(1980) 1 SCC 30: 1980 SCC (Cri)
59: AIR 1979 SC 1848] this Court held: (SCC p. 40, para 28)
"28. In our opinion, for reasons that follow, 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
Neutral Citation No. ( 2024:HHC:8595 )
causing injury or death by negligent or rash act. The
primary reasons for the 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 the negligence of
somebody. Secondly, there is a marked difference as to
the effect [Ed.: Emphasis in original.] 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 AC
576: (1937) 2 All ER 552 (HL)], '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."
(emphasis supplied)
The said dicta were followed in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1: 2005 SCC (Cri) 1369]. We may,
however, notice that the principle of res ipsa loquitur has
been applied in State of A.P. v. C. Uma Maheswara
Rao [(2004) 4 SCC 399: 2004 SCC (Cri) 1276] (see also B.
Neutral Citation No. ( 2024:HHC:8595 )
Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 :
(2008) 3 SCC (Cri) 61 : (2008) 7 Scale 716] ).
17. It was laid down in Keshav Murti vs. State 2002
.
Criminal Law 103 (Karnataka) that where the accident had taken
place on a wide road and the vehicle had left the road, the maxim
of res ipsa loquitur would apply and the burden would shift upon
the accused to explain as to how the accident had taken place. It
was observed:
"Here is a car proceeding from Bangalore to Shimoga. At
the place concerned, there are no other vehicles on the
road. There is no obstruction. The road is of a width of 19
ft. of cement and tar road, with 6 ft. kacha road on either
side. Still, the vehicle hits a roadside tree. Added to that,
there is a report of IMV Inspector at Ex. P. 5 to the effect
that the accident is not due to any mechanical defect in
the vehicle. In such a situation, an accident of this nature
would prima facie show that the same could not be
accounted for anything other than the negligence of the
driver of the vehicle i.e., the petitioner. A presumption in
that regard thus arises. In such a case, as pointed out by
the Supreme Court, it is for the petitioner-driver to
explain how the accident occurred without negligence on
his part. What the petitioner has done in the course of his
examination under Section 313 of the Criminal Procedure
Code is, simply denying everything. He does not say
anything, and even to the general question that is asked
at the end as to whether he has got anything to say, he did
not choose to say anything, nor did he care to explain the
manner in which the accident occurred, i.e., in order to
rebut the above said presumption as regards the accident
occurring due to his negligence, and in order to show that
accident occurred for a particular reason not attributable
to his negligence. This was, therefore, an appropriate case
Neutral Citation No. ( 2024:HHC:8595 )
wherein, on the basis of a presumption that the Supreme
Court was speaking about that conviction could be
based."
.
18. Similarly, it was laid down by the Hon'ble Supreme
Court in Thakur Singh Vs. State of Punjab 2003(9) SCC 208 that
where the accident speaks for itself, it is sufficient for the
prosecution to establish the accident and the burden will shift
upon the accused to explain the cause of accident. Thus, where
the accused admits that he was driving the vehicle which fell
into a canal, the burden was upon him to establish that the
accident had taken place due to some circumstances other than
his negligence. It was observed:
"It is admitted that the petitioner himself was driving the
vehicle at the relevant time. It is also admitted that the
bus was driven over a bridge and then it fell into the canal.
In such a situation the doctrine of res ipsa loquitur comes
into play and the burden shifts 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.
He did not succeed in showing that the accident happened
due to causes other than negligence on his part."
19. This principle was discussed in detail by the Hon'ble
Supreme Court in Ravi Kapur v. State of Rajasthan, (2012) 9 SCC
284 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107: 2012 SCC
OnLine SC 607 and it was held that where the accident by its
nature is more consistent its being caused by negligence than by
Neutral Citation No. ( 2024:HHC:8595 )
any other cause mere happening of the accident is per se
sufficient to invoke the principle of res ipsa loquitor and in
.
absence of any explanation by the driver of the vehicle, he is
liable to be convicted for rash and negligent driving. It was
observed at page 295: -
"(A) Rash and negligent driving
12. Rash and negligent driving has to be examined in the
light of the facts and circumstances of a given case. It is a
fact incapable of being construed or seen in isolation. It
must be examined in light of the attendant
circumstances. A person who drives a vehicle on the road
is liable to be held responsible for the act as well as for the
result. It may not be always possible to determine with
reference to the speed of a vehicle whether a person was
driving rashly or negligently. Both these acts presuppose
abnormal conduct. Even when one is driving a vehicle at a
slow speed but recklessly and negligently, it would
amount to "rash and negligent driving" within the
meaning of the language of Section 279 IPC. That is why
the legislature in its wisdom has used the words "manner
so rash or negligent as to endanger human life". The
preliminary conditions, thus, are that (a) it is the manner
in which the vehicle is driven; (b) it be driven either
rashly or negligently; and (c) such rash or negligent
driving should be such as to endanger human life. Once
these ingredients are satisfied, the penalty contemplated
under Section 279 IPC is attracted.
13. "Negligence" means omission to do something which
a reasonable and prudent person guided by the
considerations which ordinarily regulate human affairs
would do or doing something which a prudent and
reasonable person guided by similar considerations
would not do. Negligence is not an absolute term but is a
relative one; it is rather a comparative term. It is difficult
Neutral Citation No. ( 2024:HHC:8595 )
to state with precision any mathematically exact formula
by which negligence or lack of it can be infallibly
measured in a given case. Whether there exists negligence
per se or the course of conduct amounts to negligence will
.
normally depend upon the attending and surrounding
facts and circumstances which have to be taken into
consideration by the court. In a given case, even not doing
what one was ought to do can constitute negligence.
14. The court has to adopt another parameter i.e.
"reasonable care" in determining the question of
negligence or contributory negligence. The doctrine of
reasonable care imposes an obligation or a duty upon a
person (for example a driver) to care for the pedestrian on
the road and this duty attains a higher degree when the
pedestrians happen to be children of tender years. It is
axiomatic to say that while driving a vehicle on a public
way, there is an implicit duty cast on the drivers to see
that their driving does not endanger the life of the right
users of the road, maybe either vehicular users or
pedestrians. They are expected to take sufficient care to
avoid danger to others.
15. The other principle that is pressed in aid by the courts
in such cases is the doctrine of res ipsa loquitur. This
doctrine serves two purposes -- one that an accident may
by its nature be more consistent with its being caused by
negligence for which the opposite party is responsible
than by any other causes and that in such a case, the mere
fact of the accident is prima facie evidence of such
negligence. Secondly, it is to avoid hardship in cases
where the claimant is able to prove the accident but
cannot prove how the accident occurred. The courts have
also applied the principle of res ipsa loquitur in cases
where no direct evidence was brought on record. The Act
itself contains a provision which concerns with the
consequences of driving dangerously alike the provision
in IPC that the vehicle is driven in a manner dangerous to
public life. Where a person does such an offence he is
punished as per the provisions of Section 184 of the Act.
The courts have also taken the concepts of "culpable
Neutral Citation No. ( 2024:HHC:8595 )
rashness" and "culpable negligence" into consideration
in cases of road accidents. "Culpable rashness" is acting
with the consciousness that mischievous and illegal
consequences may follow but with the hope that they will
.
not and often with the belief that the actor has taken
sufficient precautions to prevent their happening. The
imputability arises from acting despite consciousness
(luxuria). "Culpable negligence" is acting without the
consciousness that the illegal and mischievous effect will
follow, but in circumstances which show that the actor
has not exercised the caution incumbent upon him and
that if he had, he would have had the consciousness. The
imputability arises from the neglect of the civic duty of
circumspection. In such a case the mere fact of accident is
prima facie evidence of such negligence. This maxim
suggests that in the circumstances of a given case, the res
speaks and is eloquent because the facts stand
unexplained, with the result that the natural and
reasonable inference from the facts, not a conjectural
inference, shows that the act is attributable to some
person's negligent conduct. [Ref. Justice Rajesh
Tandon's An Exhaustive Commentary on Motor Vehicles Act,
1988 (1st Edn., 2010).]
16. We have noticed these principles in order to examine
the questions raised in the present case in their correct
perspective. We may notice that certain doctrines falling
in the realm of accidental civil or tortious jurisprudence,
are quite applicable to the cases falling under criminal
jurisprudence like the present one.
17. Now, we may refer to some judgments of this Court
which would provide guidance for determinatively
answering such questions. In Alister Anthony
Pareira v. State of Maharashtra [(2012) 2 SCC 648 : (2012) 1
SCC (Cri) 953 : (2012) 1 SCC (Civ) 848] where the driver of a
vehicle was driving the vehicle at a high speed at late
hours of the night in a drunken state and killed seven
labourers sleeping on the pavement, injuring other eight,
this Court dismissing the appeal, laid down the tests to
Neutral Citation No. ( 2024:HHC:8595 )
determine criminal culpability on the basis of
"knowledge", as follows: (SCC pp. 663-64, para 41)
"41. Rash or negligent driving on a public road with
.
the knowledge of the dangerous character and the
likely effect of the act and resulting in death may fall
in the category of culpable homicide not amounting to
murder. A person, doing an act of rash or negligent
driving, if aware of a risk that a particular consequence
is likely to result and that result occurs, may be held
guilty not only of the act but also of the result. As a matter
of law--in view of the provisions of IPC--the cases
which fall within the last clause of Section 299 but not
within clause 'Fourthly' of Section 300 may cover the
cases of rash or negligent acts done with the
knowledge of the likelihood of its dangerous
consequences and may entail punishment under
Section 304 Part II IPC. Section 304-A IPC takes out of
its ambit the cases of death of any person by doing any
rash or negligent act amounting to culpable homicide
of either description."
(emphasis supplied)
18. Again, in Naresh Giri v. State of M.P. [(2008) 1 SCC 791:
(2008) 1 SCC (Cri) 324], where a train had hit a bus being
driven by the appellant at the railway crossing and the
bus was badly damaged and two persons died, this Court,
while altering the charges from Section 302 IPC to Section
304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13)
"7. Section 304-A IPC applies to cases where there is
no intention to cause death and no knowledge that the
act done in all probability will cause death. The
provision is directed at offences outside the range of
Sections 299 and 300 IPC. Section 304-A applies only
to such acts which are rash and negligent and are
directly the cause of death of another person.
Negligence and rashness are essential elements under
Section 304-A.
8. Section 304-A carves out a specific offence where
death is caused by doing a rash or negligent act and
Neutral Citation No. ( 2024:HHC:8595 )
that act does not amount to culpable homicide under
Section 299 or murder under Section 300. If a person
wilfully drives a motor vehicle into the midst of a
crowd and thereby causes death to some person, it will
.
not be a case of mere rash and negligent driving and
the act will amount to culpable homicide. Doing an act
with the intent to kill a person or knowledge that
doing an act was likely to cause a person's death is
culpable homicide. When intent or knowledge is the
direct motivating force of the act, Section 304-A has to
make room for the graver and more serious charge of
culpable homicide. The provision of this section is not
limited to rash or negligent driving. Any rash or
negligent act whereby the death of any person is
caused becomes punishable. Two elements either of
which or both of which may be proved to establish the
guilt of an accused are rashness/negligence; a person
may cause death by a rash or negligent act which may
have nothing to do with driving at all. Negligence and
rashness to be punishable in terms of Section 304-A
must be attributable to a state of mind wherein the
criminality arises because of no error in judgment but
of deliberation in the mind risking the crime as well as
the life of the person who may lose his life as a result
of the crime. Section 304-A discloses that criminality
may be that apart from any mens rea, there may be no
motive or intention still a person may venture or
practise such rashness or negligence which may cause
the death of others. The death so caused is not the
determining factor.
9. What constitutes negligence has been analysed
in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1
(p. 3), as follows:
'1. General principles of the law of negligence.--
Negligence is a specific tort and in any given
circumstance is the failure to exercise that care
which the circumstances demand. What amounts to
negligence depends on the facts of each particular
case. It may consist in omitting to do something
Neutral Citation No. ( 2024:HHC:8595 )
which ought to be done or doing something which
ought to be done either in a different manner or not
at all. Where there is no duty to exercise care,
negligence in the popular sense has no legal
.
consequence. Where there is a duty to exercise care,
reasonable care must be taken to avoid acts or
omissions which can be reasonably foreseen to be
likely to cause physical injury to persons or
property. The degree of care required in the
particular case depends on the surrounding
circumstances and may vary according to the
amount of risk to be encountered and to the
magnitude of the prospective injury. The duty of
care is owed only to those persons who are in the
area of foreseeable danger; the fact that the act of
the defendant violated his duty of care to a third
person does not enable the plaintiff who is also
injured by the same act to claim unless he is also
within the area of foreseeable danger. The same act
or omission may accordingly in some
circumstances involve liability as being negligent,
although in other circumstances it will not do so.
The material considerations are the absence of care
which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and
damage suffered by the plaintiff, together with a
demonstrable relation of cause and effect between
the two.'
***
13. According to the dictionary meaning 'reckless'
means 'careless', regardless or heedless of the
possible harmful consequences of one's acts. It
presupposes that if thought was given to the matter by
the doer before the act was done, it would have been
apparent to him that there was a real risk of its having
the relevant harmful consequences; but, granted this,
recklessness covers a whole range of states of mind
from failing to give any thought at all to whether or
not there is any risk of those harmful consequences, to
Neutral Citation No. ( 2024:HHC:8595 )
recognising the existence of the risk and nevertheless
deciding to ignore it."
19. In Mohd. Aynuddin v. State of A.P. [(2000) 7 SCC 72:
.
2000 SCC (Cri) 1281], the appellant was driving a bus and
while a passenger was boarding the bus, the bus was
driven which resulted in the fall of the passenger and the
rear wheel of the bus ran over the passenger. This Court,
drawing the distinction between a rash act and a
negligent act held that it was culpable rashness and
criminal negligence and held as under: (SCC pp. 74-75,
paras 7 & 9)
"7. It is a wrong proposition that for any motor
accident negligence of the driver should be presumed.
An accident of such a nature as would prima facie show
that it cannot be accounted to anything other than the
negligence of the driver of the vehicle may create a
presumption and in such a case the driver has to
explain how the accident happened without negligence
on his part. Merely because a passenger fell down from
the bus while boarding the bus, no presumption of
negligence can be drawn against the driver of the bus.
***
9. A rash act is primarily an overhasty act. It is opposed
to a deliberate act. Still, a rash act can be a deliberate
act in the sense that it was done without due care and
caution. Culpable rashness lies in running the risk of
doing an act with recklessness and indifference as to
the consequences. Criminal negligence is the failure to
exercise duty with reasonable and proper care and
precaution guarding against injury to the public
generally or to any individual in particular. It is the
imperative duty of the driver of a vehicle to adopt such
reasonable and proper care and precaution."
(B) Attendant circumstances and inference of rash and
negligent driving
20 [Ed.: Para 20 corrected vide Official Corrigendum No.
F.3/Ed.B.J./53/2012 dated 5-9-2012.]. In light of the
above, now we have to examine if negligence in the case
Neutral Citation No. ( 2024:HHC:8595 )
of an accident can be gathered from the attendant
circumstances. We have already held that the doctrine of
res ipsa loquitur is equally applicable to the cases of
accident and not merely to civil jurisprudence. Thus,
.
these principles can equally be extended to criminal cases
provided the attendant circumstances and basic facts are
proved. It may also be noticed that either the accident
must be proved by proper and cogent evidence or it
should be an admitted fact before this principle can be
applied. This doctrine comes to aid at a subsequent stage
where it is not clear as to how and due to whose
negligence, the accident occurred. The factum of accident
having been established, the court with the aid of proper
evidence may take assistance of the attendant
circumstances and apply the doctrine of res ipsa loquitur.
The mere fact of the occurrence of an accident does not
necessarily imply that it must be owed to someone's
negligence. In cases where negligence is the primary
cause, it may not always be that direct evidence to prove it
exists. In such cases, the circumstantial evidence may be
adduced to prove negligence. Circumstantial evidence
consists of facts that necessarily point to negligence as a
logical conclusion rather than providing an outright
demonstration thereof. Elements of this doctrine may be
stated as:
• The event would not have occurred but for
someone's negligence.
• The evidence on record rules out the possibility
that the actions of the victim or some third party
could be the reason behind the event.
• The accused was negligent and owed a duty of care
towards the victim.
21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208:
2004 SCC (Cri) 1183] the petitioner drove a bus rashly and
negligently with 41 passengers and while crossing a
bridge, the bus fell into the nearby canal resulting in the
death of all the passengers. The Court applied the
doctrine of res ipsa loquitur since admittedly the
Neutral Citation No. ( 2024:HHC:8595 )
petitioner was driving the bus at the relevant time and it
was going over the bridge when it fell down. The Court
held as under: (SCC p. 209, para 4)
.
"4. It is admitted that the petitioner himself was
driving the vehicle at the relevant time. It is also
admitted that the bus was driven over a bridge and
then it fell into a canal. In such a situation the doctrine
of res ipsa loquitur comes into play and the burden
shifts 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. He
did not succeed in showing that the accident happened
due to causes other than negligence on his part."
22. Still, in Mohd. Aynuddin [(2000) 7 SCC 72: 2000 SCC
(Cri) 1281], this Court has also stated the principle: (SCC p.
74, para 8)
"8. The principle of res ipsa loquitur is only a rule of
evidence to determine the onus of proof in actions
relating to negligence. 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."
It has also been stated that the effect of this maxim,
however, depends upon the cogency of the inferences to
be drawn and must, therefore, vary in each case."
20. Even this Court held in State of H.P. v. Mast Ram, 2009
SCC OnLine HP 808 that in a case under Section 304-A of IPC, the
driver has a responsibility to show that the accident did not
happen on account of his negligence. The judgment of Saiyad
Akhtar Ali (supra) was explained and was held to be applicable
Neutral Citation No. ( 2024:HHC:8595 )
where the driver had adopted his best course to avoid the
accident. It was observed: -
.
"16. In a case under section 304-A IPC, the driver has
some responsibility to show that the accident did not
happen on account of his negligence. The principle of res
ipsa loquitur comes into play and the burden shifts on the
person who was in control of the vehicle at the time of the
accident. In Thakur Singh v. State of Punjab, (2003) 9 SCC
208, the Supreme Court has held as follows: -
"It is admitted that the petitioner himself was driving
the vehicle at the relevant time. It is also admitted that
the bus was driven over a bridge and then it fell into a
canal. In such a situation the doctrine of res ipsa
loquitur comes to play and the burden shifts 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. He did not succeed in showing
that the accident happened due to causes other than
negligence on his part".
Mr Gupta learned counsel for the respondent has relied
on Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 in
support of his submission that the principle of res ipsa
loquitur is not applicable in the present case. In Syad
Akbar, the accident took place in spite of the driver
adopting the best course to avoid the accident. In the
present case, the facts are entirely different.
Therefore, Syad Akbar (supra) is not applicable in the
facts and circumstances of the present case. The
respondent has not discharged his burden as held
in Thakur Singh case and has not succeeded in showing
that the accident took place due to reasons other than his
negligence. In his statement under Section 313 Cr.P.C. he
has not said anything about the cause of the accident.
PW-2 and PW-3 have fully proved that the accident took
place due to rash or negligent driving of the respondent at
the time of the accident, which ultimately caused the
Neutral Citation No. ( 2024:HHC:8595 )
death of Arushi. It is a well-settled principle what matters
is the quality and not the quantity of witnesses. It is thus
held that prosecution has proved the accusation against
the respondent and he is held guilty of committing an
.
offence punishable under Sections 279, 304-A IPC."
21. The judgment in Nanjudappa (supra) cited on behalf
of the respondent/accused dealt with the case where a telephone
wire got detached and fell on an 11 KV Power line leading to a
short circuit. In these circumstances, the Hon'ble Supreme Court
held that in the absence of the evidence, the accused could not be
convicted by invoking the principle of res ipsa loquitor, especially
where no report of the inspection conducted by a technical
expert was brought on record.
22. There can be no dispute with the proposition of law
laid down in S.L. Goswami (supra) that in a criminal trial, the
onus is upon the prosecution to prove its case beyond a
reasonable doubt; however, the burden can shift to the accused
to prove his innocence after some foundational facts have been
laid. It was laid down by the Hon'ble Supreme Court in Noor Aga
v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748: 2008
SCC OnLine SC 1026 that many legislations provide the burden of
establishing certain facts upon the accused. It was observed at
page 441:
Neutral Citation No. ( 2024:HHC:8595 )
"35. A right to be presumed innocent, subject to the
establishment of certain foundational facts and burden of
proof, to a certain extent, can be placed on an accused. It
must be construed as having regard to the other
.
international conventions and having regard to the fact
that it has been held to be constitutional. Thus, a statute
may be constitutional but a prosecution thereunder may
not be held to be one. Indisputably, civil liberties and the
rights of citizens must be upheld.
36. A fundamental right is not absolute in terms.
xxxxxxxx
40. The provision for reverse burden is not only provided
for under special Acts like the present one but also under
general statutes like the Penal Code. The Evidence Act
provides for such a burden on an accused in certain
matters, as, for example, under Sections 113-A and 113-B
thereof. Even otherwise, this Court, having regard to the
factual scenario involved in cases e.g. where the husband
is said to have killed his wife when both were in the same
room, the burden is shifted to the accused. Enforcement
of the law, on the one hand, and protection of citizens
from the operation of injustice in the hands of the law
enforcement machinery, on the other, is, thus, required
to be balanced. The constitutionality of a penal provision
placing the burden of proof on an accused, thus, must be
tested on the anvil of the State's responsibility to protect
innocent citizens. The court must assess the importance
of the right being limited to our society and this must be
weighed against the purpose of the limitation. The
purpose of the limitation is the reason for the law or
conduct which limits the right. (See S v. Dlamini [(1999) 4
SA 623: (1999) 7 BCLR 771 (CC)] .) While, however, saying
so, we are not unmindful of serious criticism made by the
academies in this behalf.
41. In Glanville William's Text Book of Criminal Law (2nd
Edn., p. 56), it is stated:
"Harking back again to Woolmington [Woolmington v.
Director of Public Prosecutions, 1935 AC 462: 1935 All ER
Neutral Citation No. ( 2024:HHC:8595 )
Rep 1 (HL)], it will be remembered that Viscount
Sankey said that 'it is the duty of the prosecution to
prove the prisoner's guilt, subject to the defence of
insanity and subject also to any statutory exception'....
.
... Many statutes shift the persuasive burden. It has
become almost a matter of routine for Parliament, in
respect of the most trivial offences as well as some
serious ones, to enact that the onus of proving a
particular fact shall rest on the defendant so that he
can be convicted 'unless he proves' it."
But then, the decisions rendered in different jurisdictions
are replete with cases where the validity of the provisions
raising a presumption against an accused, has been
upheld.
42. The presumption raised in a case of this nature is one
for shifting the burden subject to fulfilment of the
conditions precedent therefor.
43. The issue of reverse burden vis-à-vis the human
rights regime must also be noticed. The approach of the
common law is that it is the duty of the prosecution to
prove a person guilty. Indisputably, this common law
principle was subject to parliamentary legislation to the
contrary. The concern now shown worldwide is that
Parliaments have frequently been making inroads on the
basic presumption of innocence. Unfortunately, unlike
other countries, no systematic study has been made in
India as to how many offences are triable in the court
where the legal burden is on the accused. In the United
Kingdom, it is stated that about 40% of the offences
triable in the Crown Court appear to violate the
presumption. (See "The Presumption of Innocence in
English Criminal Law", 1996, CRIM. L. REV. 306, at p. 309.)
23. This position was reiterated in Achhar Singh v. State of
H.P., (2021) 5 SCC 543: 2021 SCC OnLine SC 368 wherein it was
observed at page 551:
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"14. It is fundamental in criminal jurisprudence that
every person is presumed to be innocent until proven
guilty, for criminal accusations can be hurled at anyone
without him being a criminal. The suspect is therefore
.
considered to be innocent in the interregnum between
accusation and judgment. History reveals that the burden
on the accuser to prove the guilt of the accused has its
roots in ancient times. The Babylonian Code of
Hammurabi (1792-1750 B.C.), one of the oldest written
codes of law put the burden of proof on the accuser.
Roman Law coined the principle of actori
incumbit (onus) probatio (the burden of proof weighs on
the plaintiff) i.e. presumed innocence of the accused.
In Woolmington v. Director of Public
Prosecutions [Woolmington v. Director of Public
Prosecutions, 1935 AC 462 (HL)], the House of Lords held
that the duty of the prosecution to prove the prisoner's
guilt was the "golden thread" throughout the web of
English Criminal Law. Today, Article 11 of the Universal
Declaration of Human Rights, 1948, Article 14 of the
International Covenant on Civil and Political Rights, 1966
and Article 6 of the European Convention on Human
Rights, 1950 all mandate the presumption of innocence of
the accused.
15. A characteristic feature of common law criminal
jurisprudence in India is also that an accused must be
presumed to be innocent till the contrary is proved. It is
obligatory for the prosecution to establish the guilt of the
accused save where the presumption of innocence has
been statutorily dispensed with, for example, under
Section 113-B of the Evidence Act, 1872. Regardless
thereto, the "right of silence" guaranteed under Article
20(3) of the Constitution is one of the facets of presumed
innocence. The constitutional mandate read with the
scheme of the Code of Criminal Procedure, 1973 amplifies
that the presumption of innocence until the accused is
proved to be guilty is an integral part of the Indian
criminal justice system. This presumption of innocence is
doubled when a competent court analyses the material
Neutral Citation No. ( 2024:HHC:8595 )
evidence, examines witnesses and acquits the accused.
Keeping this cardinal principle of invaluable rights in
mind, the appellate courts have evolved a self-restraint
policy whereunder, when two reasonable and possible
.
views arise, the one favourable to the accused is adopted
while respecting the trial court's proximity to the
witnesses and direct interaction with evidence. In such
cases, interference is not thrusted unless perversity is
detected in the decision-making process."
24. Thus, the principle that the prosecution is required to
prove its case beyond reasonable doubt does not run counter to
the applicability of the doctrine of res ipsa loquitor.
25. The prosecution has come up with a case in which the
accused was negligent because he was driving the vehicle at a
high speed and failed to control the vehicle. This fact was
asserted in the statement of Mohan Lal (Ex.PW6/A) which was
converted into the FIR as well as the charge sheet filed before the
Court under Section 173 of the Code of Criminal Procedure.
Virender Sharma (PW3) stated in his examination-in-chief that
the accident occurred due to the high speed and negligence of
the accused. Similarly, Mohan Lal (PW6) stated in his
examination-in-chief that the accident occurred due to the high
speed and negligence of the accused. Anju Sharma (PW12) stated
in her examination-in-chief that the accused was driving the
vehicle at a high speed due to which the vehicle fell into the
Neutral Citation No. ( 2024:HHC:8595 )
gorge. A heavy reliance was placed upon these testimonies to
submit that the prosecution case was proved beyond reasonable
.
doubt.
26. It was laid down by the Hon'ble Supreme Court in
Mohanta Lal Saha v. State of West Bengal, 1968 ACJ 124 that the
use of the term high-speed amounts to nothing unless the
notion of the speed of the witness is to be ascertained from him.
It was observed:
"Prafulla Kumar Dey, no doubt, in court stated that the
appellant's bus was coming at high speed; but this
statement appears to be an improvement on his earlier
evidence given during the investigation when he did not
mention to the investigating officer that the bus was
running at high speed. Further, no attempt was made to
find out what this witness understood by high speed. To
one man a speed of even 10 or 20 miles per hour may
appear to be high, while to another even a speed of 25 or
30 miles per hour may appear to be reasonable speed. On
the evidence in this case, therefore, it could not be held
that the appellant was driving the bus at a speed which
would justify holding that he was driving the bus rashly
and negligently."
27. It was held in State of Karnataka v. Satish, (1998) 8 SCC
493: 1998 SCC (Cri) 1508 that the use of the term high speed is not
sufficient to infer rashness or negligence. It was observed:
4. Merely because the truck was being driven at a "high
speed" does not bespeak either "negligence" or
"rashness" by itself. None of the witnesses examined by
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the prosecution could give any indication, even
approximately as to what they meant by "high speed".
"High speed" is a relative term. It was for the prosecution
to bring on record material to establish as to what it
.
meant by "high speed" in the facts and circumstances of
the case. In a criminal trial, the burden of providing
everything essential to the establishment of the charge
against an accused always rests on the prosecution and
there is a presumption of innocence in favour of the
accused until the contrary is proved. Criminality is not to
be presumed, subject of course to some statutory
exceptions. There is no such statutory exception pleaded
in the present case. In the absence of any material on the
record, no presumption of "rashness" or "negligence"
could be drawn by invoking the maxim "res ipsa
loquitur". 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."
28. This Court took a similar view in State of H.P. v. Amar
Nath, Latest HLJ 2018 (HP) Suppl. 763, and held as under:-
"18 It would be noticed that the instant is a case where
apart from the bare statement of PW-1 that the vehicle
was being driven by the petitioner at a high speed, there
was no attempt made to establish that there was any rash
and negligent act on the part of the driver of the vehicle.
"High speed" is an expression which is relative and
subjective. Therefore, merely because the vehicle was
being driven at a high speed does not mean that the driver
was driving rashly and negligently."
29. A similar view was taken in Yash Pal Rana v. State of
Himachal Pradesh Latest HLJ 2019 (HP) (Suppl.) 171, wherein it
was observed:-
Neutral Citation No. ( 2024:HHC:8595 )
"9. Leaving everything aside, this Court finds no specific
evidence led on record by the prosecution to prove rash
and negligent driving by the petitioner-accused. As has
been taken note of above, PW-1 in a very casual manner
.
has only stated that the offending vehicle was being
driven at high speed, but high speed cannot be a criteria
to conclude rash and negligent driving, rather to prove
guilt, if any, under Section 279 IPC, it is/was incumbent
upon the prosecution to prove act of rashness and
negligent so as to endanger the human life. But in the
case at hand, the prosecution has not been able to place
on record specific evidence, if any, with regard to rash
and negligent acts, if any of the accused, which
endangered human life.
30. Thus, no advantage can be derived from the use of
the term high speed by the witnesses.
31. The statements of the witnesses that the accident
occurred due to the negligence of the accused will not help the
prosecution because a witness is not permitted to derive any
inference from the facts but he is supposed to place the facts
before the court, leaving the jury or the judge, when he is sitting
without the jury, to draw the inferences. The statement of a
witness that the driver of the vehicle was negligent is an
inference, which cannot be drawn by the witness. It was laid
down by Goddard LJ in Hollington vs. Hawthorn 1943 KB 507 at
595 that a witness cannot depose about negligence. It was
observed:
Neutral Citation No. ( 2024:HHC:8595 )
"It frequently happens that a bystander has a full and
complete view of an accident. It is beyond question that
while he may inform the court of everything he saw; he
may not express any opinion on whether either or both of
.
the parties were negligent. The reason commonly
assigned is that this is the precise question the court has
to decide, but in truth, it is because his opinion is not
relevant. Any fact that he can prove is relevant but his
opinion is not."
32. Similar is the judgment in State of H.P. vs. Niti Raj
2009 Cr.L.J. 1922 (HP) where it was held:
"It is not necessary for a witness to say that the driver of
an offending vehicle was driving the vehicle rashly. The
issue whether the vehicle was being driven in a rash and
negligent manner is a conclusion to be drawn on the basis
of evidence led before the Court."
33. Therefore, the statement of the witness as that the
driver was negligent by itself without anything more do not
constitute legally admissible evidence upon which a reliance can
be placed by the Court of law to base its judgment.
34. Sanju (PW1) admitted in his cross-examination that
the weather was inclement on the date of the accident and it was
raining. The driver was driving the vehicle at a slow speed due to
raining. He could not tell that the retaining wall collapsed which
led to the accident.
Neutral Citation No. ( 2024:HHC:8595 )
35. Virender Sharma (PW3) admitted in his cross-
examination that it was raining on the date of the accident and
.
the accused was not driving the vehicle at a high speed.
36. Mohan Lal (PW6) admitted in his cross-examination
that it was raining on the date of the accident, the accused was
not driving the vehicle at a high speed and the accident occurred
due to the collapse of the retaining wall.
37. Anju Sharma (PW12) admitted that it was raining for
1-2 days before the accident and the retaining wall collapsed at
the place of the accident. She admitted that the accident had
taken place due to the collapse of a retaining wall.
38. Thus, the witnesses Sanju (PW1), Virender Sharma
(PW3) and Mohan Lal (PW6) admitted in their cross-
examination that the speed of the vehicle was not high. Sanju
(PW-1), Mohan Lal (PW 6) and Anju Sharma (PW 12) admitted in
their examination that the accident occurred due to the collapse
of the retaining wall leading to the accident. Significantly, they
were not re-examined by the prosecution which means that
their version in the cross-examination regarding the speed of
the vehicle being slow due to the rain and the collapse of the
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retaining wall leading to the accident was not challenged by the
prosecution.
.
39. In Javed Masood vs. State of Rajasthan (2010) 3 SCC
538, the prosecution came up with a specific version that the
incident was witnessed by three witnesses Husain Lal (PW-4),
Rayees (PW-14) and Ayub Bhai (PW-6). When PW-6 Ayub Bhai
appeared in the Court, he stated that he saw some crowd and
came to know on inquiries that the deceased was lying
completely soaked in blood. He telephoned other persons who
came after some time. This witness was not declared hostile. He
was not even re-examined by the prosecution. It was held that
his testimony made the prosecution case doubtful regarding the
presence of other persons and it would not be proper to rely on
their testimonies. It was observed:
"This witness did not support the prosecution case. He
was not subjected to any cross-examination by the
prosecution. His evidence remained unimpeached. There
is no reason to disbelieve the evidence of PW-6 and no
valid reason has been suggested as to why his evidence
cannot be relied on and taken into consideration. The
evidence of PW-6, if it is to be taken into consideration,
makes the presence of PWs 5, 13 and 14 highly doubtful at
the scene of occurrence. We do not find any reason
whatsoever to discard the evidence of PW-6 who is an
independent witness. His evidence is binding on the
prosecution as it is. No reason, much less valid reason has
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been stated by the Division Bench as to how evidence of
PW-6 can be ignored.
13. In the present case, the prosecution never declared
.
PWs 6, 18, 29 and 30 "hostile". Their evidence did not
support the prosecution. Instead, it supported the
defence. There is nothing in the law that precludes the
defence to rely on their evidence. This court in Mukhtiar
Ahmed Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258
observed:
"30. A similar question came up for consideration
before this Court in Raja Ram v. the State of
Rajasthan, (2005) 5 SCC 272. In that case, the
evidence of the Doctor who was examined as a
prosecution witness showed that the deceased was
being told by one K that she should implicate the
accused or else she might have to face prosecution.
The Doctor was not declared "hostile". The High
Court, however, convicted the accused. This Court
held that it was open to the defence to rely on the
evidence of the Doctor and it was binding on the
prosecution.
31. In the present case, evidence of PW1 Ved
Prakash Goel destroyed the genesis of the
prosecution that he had given his Maruti car to
police in which police had gone to Bahai Temple
and apprehended the accused. When Goel did not
support that case, the accused can rely on that
evidence."
40. Similar is the judgment in Ram Sewak vs. State
2004(11) SCC 259 wherein it was held that when a discrepancy
had cropped up in the cross-examination which was not
clarified in the cross-examination, the benefit of the said
discrepancy would go to the defence. It was observed:
Neutral Citation No. ( 2024:HHC:8595 )
"Even assuming that there is some doubt as to the
interpretation of this part of his evidence since the same
is not clarified by the prosecution by way of re-
examination, the benefit of the doubt should go to the
.
defence which has in specific terms taken a stand that the
FIR came into being only after the dead body was
recovered."
41. Therefore, testimonies of the witnesses in their
cross-examination that the accident had taken place due to the
collapse of a retaining wall remained un-shattered and learned
Trial Court was justified in holding that it was a probable version
on record, the benefit of which has to be granted to the accused.
42. Rajinder Singh (PW15) conducted the mechanical
examination of the vehicle and could not recollect whether the
retaining wall had collapsed in the place of the accident or not,
however, he admitted that the vehicle would become
uncontrollable in case of the collapse of the retaining wall. His
statement shows that the collapse of the retaining wall will lead
to the accident and a satisfactory explanation for the accident
appears on the record.
43. Prem Lal (PW11) denied in his cross-examination
that the retaining wall was seen collapsed at the place of the
accident. Reference was made to his statement and the site plan
(Ext.PW11/A) prepared by him, in which there was no reference
Neutral Citation No. ( 2024:HHC:8595 )
to the collapse of the retaining wall. The statement of this
witness will not help the prosecution in view of the statements
.
of other witnesses produced by the prosecution who stated
about the collapse of the retaining wall. The learned Trial Court
had rightly pointed out that when two views appear on the
record, one which is in favour of the defence has to be taken as
correct. The genesis of this principle lies in another principle
that the prosecution has to prove its case beyond reasonable
doubt and when a doubt crops up by any material on record, the
prosecution has failed to discharge the requisite standard of
proof.
44. No other point was urged.
45. Thus, the learned Trial Court had taken a reasonable
view which could have been taken based on the material placed
before it and no interference is required with the same while
deciding an appeal against the acquittal.
46. Consequently, the present appeal fails and the same
is dismissed.
47. The respondent/accused is in custody. He is ordered
to be released immediately, if not required in any other case.
Neutral Citation No. ( 2024:HHC:8595 )
48. The record of the learned Trial Court be returned
forthwith. Pending application(s), if any, also stand(s) disposed
.
of.
(Rakesh Kainthla)
Judge
13th September, 2024
(Chander)
r to
