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Ravi Kapur Vs. State of Rajasthan

Supreme Court Of India Criminal Appeal /1838/2009

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This is a criminal appeal filed before the Supreme Court of India by the accused against the order of the High Court. The trial court initially convicted the accused ...

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Page 1 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 12

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 20

April, 1991 stating that at about 9.15 a.m.

on that very day, he was going in a jeep to Govindgarh from Alwar

Page 2 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,

Page 3 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 11

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

Page 4 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

Page 5 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

Page 6 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

Page 7 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 12

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

Page 8 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

Page 9 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 28

October, 1999, in regard to

Page 10 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 24

June, 1999 vide its

above-mentioned judgment dated 11

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

Page 11 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.

Page 12 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

Page 13 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

Page 14 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

Page 15 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.”

Page 16 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

Page 17 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

Page 18 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.”

Page 19 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.”

Page 20 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 held 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

Page 21 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

Page 22 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

Page 23 document that on 20

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

Page 24 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

Page 25 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

Page 26 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

Page 27 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

Page 28 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

Page 29 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

Page 30 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

Page 31 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

Page 32 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

Page 33 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].

Page 34 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

Page 35 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,

Page 36 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

Page 37 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

Page 38 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

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