REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1838 OF 2009
Ravi Kapur … Appellant
Versus
State of Rajasthan … Respondent
J U D G M E N T
Swatanter Kumar, J.
1. The present appeal is directed against the judgment of the High Court
of Judicature for Rajasthan at Jaipur Bench, Jaipur, dated 12th August,
2008.
2. The facts giving rise to the present appeal in brief are :
One Sukhdev Singh, PW2, had informed and made a statement, parcha
bayan, Ex.P2, to the police at the police station M.I.A. Alwar on 20th
April, 1991 stating that at about 9.15 a.m. on that very day, he was going
in a jeep to Govindgarh from Alwar to attend the marriage of his brother-in-
law, Joga Singh. When they reached Baggad Tiraya, one jeep bearing no. RNA-
638 was also going ahead of his jeep and in the said jeep, his wife, Chet
Kaur, daughter Rinki, father-in-law, Lahori Singh, mother-in-law, Gita and
paternal uncle father-in-law (Fufi sasur) Niranjan Singh and his wife
Kailashwati and his brother-in-law Multan Singh and his son Tinku were
travelling. A maruti car was also going ahead of them. Bus No. RNA 339
was coming from Baggad Tiraya side at a very high speed. The driver of the
Maruti car immediately turned his car to one side to save himself and the
bus crashed into the jeep bearing no. RNA-638. As a result of this fatal
accident, Chet Kaur, Rinki, Geeta and the jeep driver died on the spot.
The condition of the other occupants of the jeep, particularly Lahori
Singh, Niranjan Singh, Kailashwanti and Tinku was very critical and they
were admitted to the hospital where they later died. According to this
witness, the bus was being driven by Ravi Kapur who took the bus towards
large pits in the agricultural fields and after parking the bus there, he
ran away from the spot.
3. On the basis of Ex.P2, a case under Section 304-A of the Indian Penal
Code, 1860 (for short, the ‘IPC’) was registered against the accused Ravi
Kapur. The Investigating Officer, PW11, conducted the investigation,
prepared the site plan, Ex.P3, and recorded the statement of various
witnesses. A chargesheet [report under Section 173 of the Code of Criminal
Procedure, 1973 (for short the ‘Cr.P.C.’)] was filed against the accused
under Sections 279, 337, 338 and 304-A IPC. The court framed charges
against the accused and he was put to trial.
4. The prosecution examined as many as 11 witnesses including four eye-
witnesses, doctors and the Investigating Officer himself. Upon closing of
the case of the prosecution, all the incriminating evidence against the
accused was put before him and his statement under Section 313 of the
Cr.P.C. was recorded wherein he took the stand of complete denial and
stated that the case of the prosecution was false. The trial court, vide
its judgment dated 11th May, 2006, held that the prosecution has not been
able to prove its case beyond reasonable doubt and the accused was entitled
to an order of acquittal. Consequently, the Court acquitted the accused
Ravi Kapur of all the above-mentioned charges. At this stage itself, we
may refer to the relevant extract of the judgment of the trial court, which
is the reasoning for acquitting the accused:
“Now only 3 witnesses remain to be considered in the instant
case, viz., P.W.2-Sukhdev Singh; P.W.4-Multan Singh and P.W.11-
Sohan Lal who is the investigating officer. The Court has to
consider testimonies adduced by these witnesses and has to see
whether it is proved from the statements of these witnesses that
accused was driving the bus rashly and negligently and hit the
jeep or not and whether accused Ravi Kapur was driving the said
bus no.RNA-339 at the time of the accident or not? In this
regard, P.W.2-Sukhdev Singh who is also the person who lodged
first information report has stated in his parcha statement
Ex.P2 (sic) that one Maruti Van was gone ahead of jeep which had
met with the accident and his jeep was behind the said jeep
involved in accident. All these three vehicles were on one side
of the road and were at a distance of 20 Ft. from each other.
One bus came no. RNA-339 towards them near Bagar tiraha and this
bus was driven rashly and negligently and directly hit the jeep.
However, the Maruti car which was ahead of accident jeep and
the jeep in which he was travelling and which was behind the
accident jeep, escaped in the said accident by bus. Both these
vehicles swerved towards kuchha side of the road. This witness
has mentioned in his first information report that driver of the
Bus no.RNA-339 hit the jeep with intention to kill the persons
travelling in the accidented jeep. He has further stated that
he identified the driver of the bus and he was accused Ravi
Kapur. He was identified by the passers-by also and they also
disclosed his name. Therefore, now this Court has to see
whether facts disclosed by this witness in his parcha statement
– first information report, stand fully proved or not?
Conclusion which can be drawn from perusal of examination in
chief of this witness is that this witness has stated in
statement before court that Maruti car was ahead of all and the
jeep in which he was sitting was behind the Maruti car and the
jeep which met with the accident was in behind (sic) the above
vehicles. Therefore, in the circumstances there is
contradiction in the statements of this witness given by him in
his parcha statement and in court with regard to fact as to
whether the accidented jeep was in front or rear of the
aforesaid vehicles. In his statement in court he states that
the jeep in which he was sitting was behind the accidented jeep
and he himself was sitting behind driver’s seat. Therefore, in
such circumstances it cannot be safely accepted that this
witness has actually seen the accident. Because there are
material self-contradictions regarding the fact as to whether
the jeep of this witness was ahead or behind the accidented
jeep….
…In the circumstances it is not clear from the statements of
this witness whether driver of the bus was negligent, what was
the speed of the bus and accidented jeep was in its right side
of the road. This witness also states that there was one jeep
and a maruti car ahead the accidented jeep, but drivers of both
these vehicles saved their vehicles from the bus and therefore
the bus hit the jeep in which this witness was sitting. Court
has to see that if driver of the bus was actually driving the
bus rashly and negligently, then why he did not collide with the
jeep and maruti car which were plying ahead the accidented jeep
and why it collided with the accidented jeep. The court has
also to consider whether the accident was due to over-taking of
the jeep by the driver of the jeep. Because witnesses who
appeared on behalf of prosecution have stated that right side of
bus suffered moch. But prosecution has not filed any mechanical
expert report nor has produced any expert witness in this regard
which could have proved that the bus actually hit the jeep from
front. It is also not clear whether any loss was caused to bus
in front or not. Conclusion which can be drawn out from perusal
of statement made by P.W.11-Sohan Lal/investigating officer in
his cross examination, is that accident took place at a place
where there was a turn/crossing on road and therefore both the
drivers of the bus as well as jeep ought to have been careful
and cautious. Moreover it is also not clear from statement of
this witness that the bus had actually collided with the front
portion of jeep. He has stated that accident could have been
caused due to over-taking of the middle vehicle. Whereas this
witness ought to have been proved that the accident is a head-on
collision between bus and jeep. Apart from this, this witness
did not conduct identification proceedings of the accused
because the persons present at the spot had told him that Ravi
Kapur is the accused and he is the owner and driver of the bus.
This witness has not clarified as to why he did not send any
notice under Section 133 of M.V. Act to the owner of vehicle.
Therefore, in these circumstances, it is apparent from
statements of this witness that neither notice under Section 133
of M.V.Act was given to owner of the bus nor identification
proceedings of accused were held. Although persons at the spot
had told that Ravi Kapur was driver of the bus, but prosecution
has not produced and examined any such independent witness who
was present at the spot at the time of this accident who could
have explained that Ravi Kapur was driving the bus no. RNA-339.
Infact prosecution ought to have recorded the statements of eye
witnesses and produced them in court which could have
corroborated statement of P.W.2-Sukhdev that Ravi Kapur was
driving Bus No.RNA-339 at the time of accident and also the
identification proceedings of accused were very necessary
because both the witnesses who have been produced by
prosecution, have not identified accused Ravi Kapur or that the
accident was caused to rash and negligent driver of the bus by
Ravi Kapur. One of the witness has stated that he saw the
driver running away from the spot, but he has not stated that he
saw the driver of the bus hitting the jeep. Notice under
Section 133 of the M.V. Act was very necessary which could have
proved that Ravi Kapur was actually driving the bus no.RNA-339
at the time of accident. Moreover, none of the prosecution
witnesses have explained that the bus was being driven rashly
and negligently….”
5. The above findings recorded by the trial court were reversed by the
High Court, which set aside the judgment of acquittal. Upon appreciating
the evidence, the High Court, vide its judgment dated 12th August, 2008,
came to the conclusion that the judgment of the trial court was incorrect
and while particularly dealing with the issue of grant of notice under
Section 133 of the Motor Vehicles Act, 1988 (for short, ‘the Act’), the
Court held as under :
“Now so far as notice under section 133 of the Motor Vehicles
Act was concerned which was not served upon the owner, because
the statement of PW.2 Sukh Dev Singh, Multhan Singh P.W.4 stated
that the accused respondent was the driver and they have
identified him on the spot as well as in the court also. In
such situation, service of notice under section 133 of the Motor
Vehicle upon the owner has no relevancy. As such, in the light
of the statement of PW.2 Sukh Dev Singh and P.W.4 Multhan Singh
no identification parade is necessary. The FIR Ex.P.1 shows
that the name of the accused respondent has already mentioned.”
6. The High Court convicted the accused under Section 304-A IPC and
awarded him simple imprisonment for two years with fine of Rs.5000/-, in
default of payment of fine, to undergo further imprisonment of six months.
The Court also convicted the accused for offences under Sections 279 and
337 of the IPC, awarding him six months simple imprisonment with fine of
Rs.1000/-, in default of payment of fine to undergo one month simple
imprisonment and one month simple imprisonment with fine of Rs.500/-, in
default of payment of fine to undergo 15 days rigorous imprisonment,
respectively. Aggrieved from the judgment of conviction and order of
sentence passed by the High Court, the present Special Leave Petition has
been filed.
7. Mr. Patwalia, learned senior advocate appearing for the appellant,
while raising a challenge to the judgment of the High Court, has prayed
that the judgment of acquittal recorded by the Trial Court be restored and
the judgment of the High Court be set aside. The learned counsel has
raised the following submissions:
(a) It is a settled principle of law that the Appellate Court should
normally not interfere with the judgment of acquittal unless it is
perverse and contrary to the evidence on record. The scope of an
appeal against an order of acquittal is very limited and the High
Court, in the present case, has exceeded its jurisdiction in
reversing the judgment of acquittal passed by the Trial Court.
(b) There is no evidence on record to identify or link the accused with
the commission of the offence, i.e., whether or not he was driving
the said vehicle. In fact, according to the counsel, there is no
direct evidence to show that the accused Ravi Kapur was driving the
bus involved in the accident.
(c) Even if it is presumed that the accused was the person driving the
bus at the relevant time, still there is no evidence to prove that he
drove the bus rashly and negligently.
In absence of any evidence on these two counts, the appellant is
entitled to acquittal.
8. While refuting the above-said arguments, the learned counsel
appearing for the State has contended that there are eye-witnesses to the
occurrence who have categorically stated the entire incident. After the
case had been remanded by the Court of Special Judge, by order dated 28th
October, 1999, in regard to the issue of non-holding the test
identification parade and non-examination of the doctor, the Trial Court
had disturbed its own earlier judgment of conviction dated 24th June, 1999
vide its above-mentioned judgment dated 11th May, 2006. This subsequent
judgment of the Trial Court was challenged before the High Court. The High
Court reversed the judgment of acquittal to that of conviction. This
itself shows that there were apparent errors and complete lack of proper
appreciation of evidence in the later judgment of the Trial Court.
Therefore, that judgment should not be restored by this Court. According
to him, the statements of PW2, PW4 and PW11 clearly establish the case of
rash and negligent driving by the accused. There is no material
contradiction between the statements of the witnesses and the parcha
statement, etc. The judgment of the High Court does not call for any
interference by this Court.
9. Firstly, we would discuss the last contention raised on behalf of the
appellant, as it relates to appreciation of evidence by this Court,
particularly keeping in view the fact that the impugned judgment is a
judgment of reversal against the judgment of acquittal.
10. In order to examine the merit or otherwise of contentions (b) and (c)
raised on behalf of the appellant, it is necessary for the Court to first
and foremost examine (a) what is rash and negligent driving; and (b)
whether it can be gathered from the attendant circumstances. Rash and
negligent driving has to be examined in 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 and negligently. Both these acts
presuppose an 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.
11. ‘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 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.
12. 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 pedestrian 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, may be
either vehicular users or pedestrians. They are expected to take
sufficient care to avoid danger to others.
13. 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 the 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 concept of ‘culpable 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 civic duty of circumspection.
In such a case the mere fact of accident is prima facie evidence of such
negligence. This maxim suggests that on 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’ (First Edition, 2010].
14. 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 tortuous
jurisprudence, are quite applicable to the cases falling under criminal
jurisprudence like the present one.
15. Now, we may refer to some judgments of this Court which would provide
guidance for determinatively answering such questions. In the case of
Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] 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 determine criminal culpability on the basis of
‘knowledge’, as follows :
“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 act 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.”
16. Again, in the case of Naresh Giri v. State of M.P. [(2008) 1 SCC
791], 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 :
“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 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 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 a 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 other. 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
circumstances 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 which ought to be done
or in 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 the
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 recognising the existence of
the risk and nevertheless deciding to ignore it.”
17. In the case of Mohd. Aynuddin alias Miyam v. State of A.P. [(2000) 7
SCC 72], wherein 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 :
“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 with 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.”
18. In light of the above, now we have to examine if negligence in the
case of an accident can be gathered from the attendant circumstances. We
have already abused that the doctrine of res ipsa loquitur is equally
applicable to the cases of accident and not merely to the 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 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 actions of
the victim or some third party could be the reason behind the
event.
? Accused was negligent and owed a duty of care towards the victim.
19. In the case of Thakur Singh v. State of Punjab [(2003) 9 SCC 208],
the petitioner drove a bus rashly and negligently with 41 passangers and
while crossing a bridge, the bus fell into the nearby canal resulting in
death of all the passengers. The Court applied the doctrine of res ipsa
loquitur since admittedly the 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:
“4. It is admitted that the petitioner himself was driving the
vehicle at the relevant time. It is also admitted that bus was
driven over a bridge and then it fell into canal. In such a
situation the doctrine of res ipsa loquitur comes into play and
the burden shifts on to 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.”
20. Still, in the case of Mohd. Aynuddin (supra), this Court has also
stated the principle :
“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.”
21. 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. In light of these principles, let us examine the facts
of the present case and the evidence on record. The contention raised is
that there is not even an iota of evidence to show that either the accused
was driving the vehicle or, as alleged, he was driving the same rashly and
negligently. The concerned police officer had recorded ‘Parcha statement’
(Exhibit P2) of Sukhdev, who in Court was examined as PW2. In furtherance
to this statement, a First Information Report (FIR) was registered. It was
stated in this document that on 20th April, 1991, Sukhdev was going from
Alwar to Govindgarh sitting in the jeep to attend the marriage of his
brother-in-law. It was at about 9.15 a.m. when they reached near crossing
of Bagad Tiraya, ahead of that jeep was one jeep RNA 638 in which his wife
and other family members were travelling. One more Maruti van was running
ahead of that jeep. A bus RNA 339 was approaching in fast speed from the
side of Baggad. Maruti van which having saved itself took to the side and
the driver of the Bus with an intention to kill the passengers collided
with the jeep RNA 638. Chet Kaur, Rinki, Geeta and the driver died at the
spot and the condition of the rest, i.e., Niranjan Singh, Lahori Singh,
Kailash, Vainto and Tinku was serious. They were admitted to hospital. At
the time of the accident, the bus was being driven by Ravi Kumar (Kapur)
who was identified by the passersby who told his name to Sukhdev. Along
with him, others sitting in the jeep also identified the bus driver. The
driver parked the vehicle beneath the pit on the road and fled away. Upon
his examination as PW2, this witness stated that the Maruti van got down on
the kachha road side and even their own jeep was pulled to the kachha side
but the third jeep collided with the bus from the front side. He
identified that the accused person in the Court was driving the bus himself
and confirmed his statement in parcha bayan (statement), Exhibit P2. He
was subjected to a detailed cross-examination in which he admitted that he
did not see the bus driver while sitting in the jeep, though he had seen
the accused while the accused was getting down from the bus and that this
fact was not in his statement (Exhibit P2) because he did not remember.
The passersby had told him the name of the driver which was recorded in
Exhibit P2. He stated that Exhibit P3, the site plan, was not prepared in
his presence and his signatures were obtained in the hospital.
22. PW1, Ms. Sheela Gupta, stated that Joga Singh and relatives were
going in another vehicle ahead of the vehicle in which she was travelling.
It collided with the bus. She was unconscious and she did not see anybody
or the driver of the bus.
23. PW3, Subhash Chawla, in his examination, admitted the accident but
stated that he did not know the name of the driver of the bus and also that
the jeep behind him was giving horns and as soon as the jeep in the middle
reached the accident took place. He was declared hostile.
24. PW4, Multan Singh, has also similarly stated the facts leading to the
accident. He stated that he was sitting in the second jeep. According to
him, the bus came with speed from the side of Delhi road. It was a private
bus and it hit the jeep. The bus was coming on the wrong side and it hit
the front of the jeep. He also got injuries on his head and back. When
he got down and stood, he saw the driver running away. Though he was
injured, he claims to have seen the driver and confirmed that the said
driver was present in Court and identified the accused. In his cross-
examination, he stated that on collision, he heard sound like cracker
burst.
25. PW11, Sohan Lal, is the investigating officer who confirmed having
written the ‘parcha statement’ in furtherance to which he proceeded to the
site and thereafter recorded the FIR No.119/91 under Section 304 IPC. He
prepared the site plan, Exhibit P29/P3 of the place of occurrence, prepared
inquest reports and seized bus No.RNA 339 vide seizure memo Exhibit P31 and
the jeep vide seizure memo Exhibit P32. In his cross-examination, he
admitted that the place of occurrence was a turn around. He did not
remember whether the jeep hit the front of the bus and it was not recorded
in Exhibit P32 as to which portion of the jeep hit the bus. He stated, “I
don’t know whether driver Ravi Kapur was present at the spot or not. I
don’t know whether the bus passengers were there or not. But bus was there.
I tried to inquire from the passengers but they had already left. Test
identification of accused was not got done from the injured because all the
people present at the spot had already told me about the accused”.
26. According to the learned counsel appearing for the appellant, there
are contradictions in the statements of these witnesses and the site plan
Exhibit P29/P3 does not exhibit any negligence on behalf of the appellant.
The appellant was not driving the vehicle involved in the accident and as
such he is entitled to acquittal.
27. We are not impressed with this contention. Firstly, the bus was
seized vide seizure memo Exhibit P31 and was later on given on superdari to
the owner of the bus, i.e., the accused. This bus was certainly involved
in the accident, in fact, there is no serious dispute before us that the
accident between the jeep RNA 638 and the bus RNA 339 took place at the
place of occurrence. If one examines Exhibit P29/P3, it is clear that it
was a narrow road which was about 18 ft. in width and the accident had
occurred at a turning point of the road. The accident took place at point
8. The jeep in which number of people died remained stationed at or around
point XA while the point 8 shows mud divider (dam-bandh), the accident had
taken place at point 1 and point 8 where the bus was parked was at a
distance which clearly show that the bus had been moved after the accident.
Applying the principle of res ipsa loquitur, it can safely be inferred
that it was a serious accident that occurred at a turning point in which
number of people had died. After the accident, the bus driver moved the
bus away to a different point. If what is submitted on behalf of the
appellant had even an iota of truth in it, the most appropriate conduct of
the bus driver would have been to leave the vehicle at the place of
accident to show that he was on the extreme left side of the road (his
proper side for driving) and the jeep which was trying to overtake the
other vehicle had come on the wrong side of the road resulting in the
accident. This would have been a very material circumstance and relevant
conduct of the driver.
28. All the witnesses, PW1, PW2 and PW4, have so stated. There is
consistency in the statement of the witnesses that the accused was driving
the vehicle and after parking the vehicle at a place away from the place of
occurrence, he had run away. We have no reason to disbelieve the
statements of these witnesses which are fully supported by the documentary
evidence, Exhibit P2, to which there was hardly any challenge during the
cross-examination of PW11. We are unable to notice any serious or material
contradiction in the statements of the prosecution witnesses much less in
Exhibit P2, the parcha statement of PW2. Minor variations are bound to
occur in the statements of the witnesses when their statements are recorded
after a considerable lapse from the date of occurrence. The Court can also
not ignore the fact that these witnesses are not very educated persons.
The truthfulness of the witnesses is also demonstrated from the fact that
PW1, even in her examination-in-chief, stated that she was unconscious and
did not see the driver. Nothing prevented her from making a statement that
she had actually seen the accused. Thus, we have no hesitation in holding
that the three witnesses, i.e., PW1, PW2 and PW4 have given a correct eye
account of the accident. We find their statements worthy of credence and
there is no occasion for the Court to disbelieve these witnesses. It is a
settled principle that the variations in the statements of witnesses which
are neither material nor serious enough to affect the case of the
prosecution adversely are to be ignored by the courts. {Ref. State v.
Saravanan and Anr. [(2008) 17 SCC 587]; and Sunil Kumar Sambhudayal Gupta
v. State of Maharasthtra [(2010 13 SCC 657]}. It is also a settled
principle that statements of the witnesses have to be read as a whole and
the Court should not pick up a sentence in isolation from the entire
statement and ignoring its proper reference, use the same against or in
favour of a party. The contradictions have to be material and substantial
so as to adversely affect the case of the prosecution. Reference in this
regard can be made to Atmaram & Ors. v. State of Madhya Pradesh [(2012) 5
SCC 738].
29. In the case of Nageshwar Shri Krishna Ghobe v. State of Maharasthra
[(1973) 4 SCC 23], this Court observed that the statements of the witnesses
who met with an accident while travelling in a vehicle or those of the
people who were travelling in the vehicle driven nearby should be taken and
understood in their correct perspective as it is not necessary that the
occupants of the vehicle should be looking in the same direction. They
might have been attracted only by the noise or the disturbance caused by
the actual impact resulting from the accident itself. The Court held as
under :
“6. In cases of road accidents by fast moving vehicles it is
ordinarily difficult to find witnesses who would be in a
position to affirm positively the sequence of vital events
during the few moments immediately preceding the actual
accident, from which its true cause can be ascertained. When
accidents take place on the road, people using the road or who
may happen to be in close vicinity would normally be busy in
their own pre-occupations and in the normal course their
attention would be attracted only by the noise or the
disturbance caused by the actual impact resulting from the
accident itself. It is only then that they would look towards
the direction of the noise and see what had happened. It is
seldom — and it is only a matter of coincidence — that a person
may already be looking in the direction of the accident and may
for that reason be in a position to see and later describe the
sequence of events in which the accident occurred. At times it
may also happen that after casually witnessing the occurrence
those persons may feel disinclined to take any further interest
in the matter, whatever be the reason for this disinclination.
If, however, they do feel interested in going to the spot in
their curiosity to know some thing more, then what they may
happen to see there, would lead them to form some opinion or
impression as to what in all likelihood must have led to the
accident. Evidence of such persons, therefore, requires close
scrutiny for finding out what they actually saw and what may be
the result of their imaginative inference. Apart from the eye-
witnesses, the only person who can be considered to be truly
capable of satisfactorily explaining as to the circumstances
leading to accidents like the present is the driver himself or
in certain circumstances to some extent the person who is
injured. In the present case the person who died in the accident
is obviously not available for giving evidence. The bhaiya
(Harbansingh) has also not been produced as a witness. Indeed,
failure to produce him in this case has been the principal
ground of attack by Shri Pardiwala and he has questioned the
bona fides and the fairness of the prosecution as also the
trustworthiness of the version given by the other witnesses.”
30. The learned counsel for the appellant, while relying upon the
judgment of this Court in the case of Mulla & Anr. v. State of Uttar
Pradesh [(2010) 3 SCC 508] and Amit v. State of Uttar Pradesh [(2012) 4 SCC
107], argued that none of the witnesses had actually seen the accused
driving the vehicle and, therefore, in absence of the test identification
parade, it has to be held that the accused was not driving the vehicle and
that he was not identified. In the case of Mulla (supra), relied upon by
the learned counsel, the Court had observed that it is desirable that a
test identification parade should be conducted as soon as possible after
the arrest of the accused to avoid any mistake on the part of the
witnesses.
31. On the other hand, to contra this submission, the learned counsel
appearing for the State relied on the judgment of this Court in the case of
Myladimmal Surendran & Ors. v. State of Kerala [(2010) 11 SCC 129] to say
that the test identification parade in the facts and circumstances of the
case was not necessary and in any case no prejudice has been caused to the
accused and holding of test identification parade is not always necessary.
32. In the present case, the accused had been seen by PW2 and PW4. In
addition, they had also stated that the passersby had informed them that
the accused was driving the bus and, in fact, he was the owner of the bus.
One fact of this statement is established that the bus in question was
given on superdari to the accused. It is also stated by these persons that
after they had seen the accused, he had run away from the place where he
parked the vehicle. These witnesses also identified the accused in the
Court. It is not the case of the accused before us that he had been shown
to the witnesses prior to his being identified in the Court. The Court
identification itself is a good identification in the eyes of law. It is
not always necessary that it must be preceded by the test identification
parade. It will always depend upon the facts and circumstances of a given
case. In one case, it may not even be necessary to hold the test
identification parade while in the other, it may be essential to do so.
Thus, no straightjacket formula can be stated in this regard. We may refer
to a judgment of this Court in the case of Shyamal Ghosh v. State of West
Bengal [2012 (6) SCALE 381] wherein this Court has held that the Code of
Criminal Procedure, 1973 (for short “Cr.P.C.) does not oblige the
investigating agency to necessarily hold the test identification parade
without exception. The Court held as under :
“55. On behalf of accused Shyamal, it was also contended that
despite the identification parade being held, he was not
identified by the witnesses and also that the identification
parade had been held after undue delay and even when details
about the incident had already been telecasted on the
television. Thus, the Court should not rely upon the
identification of the accused persons as the persons involved in
the commission of the crime and they should be given the benefit
of doubt.
56. The whole idea of a Test Identification Parade is that
witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check
upon their veracity. In other words, the main object of holding
an identification parade, during the investigation stage, is to
test the memory of the witnesses based upon first impression and
also to enable the prosecution to decide whether all or any of
them could be cited as eyewitnesses of the crime.
57. It is equally correct that the CrPC does not oblige the
investigating agency to necessarily hold the Test Identification
Parade. Failure to hold the test identification parade while
in police custody, does not by itself render the evidence of
identification in court inadmissible or unacceptable. There
have been numerous cases where the accused is identified by the
witnesses in the court for the first time. One of the views
taken is that identification in court for the first time alone
may not form the basis of conviction, but this is not an
absolute rule. The purpose of the Test Identification Parade is
to test and strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of the witnesses
in court as to the identity of the accused who are strangers to
them, in the form of earlier identification proceedings. This
rule of prudence is, however subjected to exceptions.
Reference can be made to Munshi Singh Gautam v. State of
M.P.[(2005) 9 SCC 631], Sheo Shankar Singh v State of Jharkhand
and Anr. [(2011) 3 SCC 654].
58. Identification Parade is a tool of investigation and is
used primarily to strengthen the case of the prosecution on the
one hand and to make doubly sure that persons named accused in
the case are actually the culprits. The Identification Parade
primarily belongs to the stage of investigation by the police.
The fact that a particular witness has been able to identify the
accused at an identification parade is only a circumstance
corroborative of the identification in court. Thus, it is only
a relevant consideration which may be examined by the court in
view of other attendant circumstances and corroborative evidence
with reference to the facts of a given case.”
33. In our considered view, it was not necessary to hold the test
identification parade of the appellant for two reasons. Firstly, the
appellant was already known to the passersby who had recognized him while
driving the bus and had stated his name and, secondly, he was duly seen,
though for a short but reasonable period, when after parking the bus, he
got down from the bus and ran away.
34. Equally without merit is the contention on behalf of the appellant
that the Court should draw adverse inference against the prosecution as the
investigating officer did not serve notice under Section 133 of the Act
upon the owner of the vehicle. The High Court has rightly rejected this
contention on the basis that the driver of the vehicle was identified at
the place of occurrence and even passersby had informed the prosecution
witnesses that the driver, Ravi Kapur, was the owner of the vehicle. The
name of the accused was duly recorded in the FIR itself. This fact
remained undisputed. With some emphasis, it was even argued before us that
he was not driving the vehicle, though it was not disputed that he is the
registered owner of the vehicle in question. If that be so, when the
statement of the accused under Section 313 of the Cr.P.C. was recorded by
the Trial Court, except denial, he did not state anything further. For
reasons best known to the accused, instead of stating as to whom he had
given his vehicle for being driven on that date, he preferred to maintain
silence and denied the case of the prosecution.
35. It is true that the prosecution is required to prove its case beyond
reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere
formality or purposeless. They have a dual purpose to discharge, firstly,
that the entire material parts of the incriminating evidence should be put
to the accused in accordance with law and, secondly, to provide an
opportunity to the accused to explain his conduct or his version of the
case. To provide this opportunity to the accused is the mandatory duty of
the Court. If the accused deliberately fails to avail this opportunity,
then the consequences in law have to follow, particularly when it would be
expected of the accused in the normal course of conduct to disclose certain
facts which may be within his personal knowledge and have a bearing on the
case.
36. In our considered view, no prejudice has been caused to the accused
by non-serving of the notice under Section 133 of the Act and, in any case,
the accused cannot take any advantage thereof.
37. Lastly, we may proceed to discuss the first contention raised on
behalf of the accused. No doubt, the Court of appeal would normally be
reluctant to interfere with the judgment of acquittal but this is not an
absolute rule and has a number of well accepted exceptions. In the case of
State of UP v. Banne & Anr. [(2009) 4 SCC 271], the Court held that even
the Supreme Court would be justified in interfering with the judgment of
acquittal of the High Court but only when there are very substantial and
compelling reasons to discard the High Court’s decision. In the case of
State of Haryana v. Shakuntala & Ors. [2012 (4) SCALE 526], this Court
held as under :
“36. The High Court has acquitted some accused while accepting
the plea of alibi taken by them. Against the judgment of
acquittal, onus is on the prosecution to show that the finding
recorded by the High Court is perverse and requires correction
by this Court, in exercise of its powers under Article 136 of
the Constitution of India. This Court has repeatedly held that
an appellate Court must bear in mind that in case of acquittal,
there is a double presumption in favour of the accused.
Firstly, the presumption of innocence is available to such
accused under the fundamental principles of criminal
jurisprudence, i.e., that every person shall be presumed to be
innocent unless proved guilty before the court and secondly,
that a lower court, upon due appreciation of all evidence has
found in favour of his innocence. Merely because another view
is possible, it would be no reason for this Court to interfere
with the order of acquittal.
37. In Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007) 7
SCC 625], this Court held as under:-
“28. Regarding setting aside acquittal by the High Court,
the learned Counsel for the appellant relied upon Kunju
Muhammed v. State of Kerala (2004) 9 SCC 193, Kashi Ram v.
State of M.P. AIR 2001 SC 2902 and Meena v. State of
Maharashtra 2000 Cri LJ 2273. In our opinion, the law is
well settled. An appeal against acquittal is also an
appeal under the Code and an Appellate Court has every
power to reappreciate, review and reconsider the evidence
as a whole before it. It is, no doubt, true that there is
presumption of innocence in favour of the accused and that
presumption is reinforced by an order of acquittal recorded
by the Trial Court. But that is not the end of the
matter. It is for the Appellate Court to keep in view the
relevant principles of law, to reappreciate and reweigh the
evidence as a whole and to come to its own conclusion on
such evidence in consonance with the principles of criminal
jurisprudence.”
38. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415],
this Court held as under:-
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded
by the trial court.”
39. In C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC 1], this
Court held :-
“6. This Court in a number of cases has held that
though the appellate court has full power to review
the evidence upon which the order of acquittal is
founded, still while exercising such an appellate
power in a case of acquittal, the appellate court,
should not only consider every matter on record having
a bearing on the question of fact and the reasons
given by the courts below in support of its order of
acquittal, it must express its reasons in the judgment
which led it to hold that the acquittal is not
justified. In those line of cases this Court has also
held that the appellate court must also bear in mind
the fact that the trial court had the benefit of
seeing the witnesses in the witness box and the
presumption of innocence is not weakened by the order
of acquittal, and in such cases if two reasonable
conclusions can be reached on the basis of the
evidence on record, the appellate court should not
disturb the finding of the trial court. (See Bhim
Singh Rup Singh v. State of Maharashtra1 and Dharamdeo
Singh v. State of Bihar.)”
40. The State has not been able to make out a case of
exception to the above settled principles. It was for the State
to show that the High Court has completely fallen in error of
law or that judgment in relation to these accused was palpably
erroneous, perverse or untenable. None of these parameters are
satisfied in the appeal preferred by the State against the
acquittal of three accused.”
38. In the present case, there are more than sufficient reasons for the
High Court to interfere with the judgment of acquittal recorded by the
Trial Court. Probably, this issue was not even raised before the High
Court and that is why we find that there are hardly any reasons recorded in
the judgment of the High Court impugned in the present appeal. Be that as
it may, it was not a case of non-availability of evidence or presence of
material and serious contradictions proving fatal to the case of the
prosecution. There was no plausible reason before the Trial Court to
disbelieve the eye account given by PW2 and PW4 and the Court could not
have ignored the fact that the accused had been duly identified at the
place of occurrence and even in the Court. The Trial Court has certainly
fallen in error of law and appreciation of evidence. Once the Trial Court
has ignored material piece of evidence and failed to appreciate the
prosecution evidence in its correct perspective, particularly when the
prosecution has proved its case beyond reasonable doubt, then it would
amount to failure of justice. In some cases, such error in appreciation of
evidence may even amount to recording of perverse finding. We may also
notice at the cost of repetition that the Trial Court had first delivered
its judgment on 24th June, 1999 convicting the accused of the offences.
However, on appeal, the matter was remanded on two grounds, i.e.,
considering the effect of non-holding of test identification parade and not
examining the doctor. Upon remand, the Trial Court had taken a different
view than what was taken by it earlier and vide judgment dated 11th May,
2006, it had acquitted the accused. This itself became a ground for
interference by the High Court in the judgment of acquittal recorded by the
Trial Court. From the judgment of the Trial Court, there does not appear
to be any substantial discussion on the effect of non-holding of the test
identification parade or the non-examination of the doctor. On the
contrary, the Trial Court passed its judgment on certain assumptions. None
of the witnesses, not even the accused, in his statement, had stated that
the jeep was at a fast speed but still the Trial Court recorded a finding
that the jeep was at a fast speed and was not being driven properly. The
Trial Court also recorded that a suspicion arises as to whether Ravi Kapur
was actually driving the bus at the time of the accident or not and
identification was very important.
39. We are unable to understand as to how the Trial Court could ignore
the statement of the eye-witnesses, particularly when they were reliable,
trustworthy and gave the most appropriate eye account of the accident. The
judgment of the Trial Court, therefore, suffered from errors of law and in
appreciation of evidence both. The interference by the High Court with the
judgment of acquittal passed by the Trial Court does not suffer from any
jurisdictional error.
40. For the reasons afore-recorded, we find no merit in the present
appeal. The same is dismissed accordingly.
………...….…………......................J.
(Swatanter Kumar)
………...….…………......................J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
August 16, 2012
