STATE v. KRISHAN LAL

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2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of offences punishable under Sections 279, 337, 338 and 304-A of IPC and Section 186 of the Motor Vehicle Act. It was asserted that an intimation was received in Police Post, Sunni on 30.8.2006 at 4.20 pm that a vehicle bearing registration No. HP-01-3243 had met with an accident at place Thachi. The police recorded entry no. 11, dated 30.8.2006 (Ex.PW10/A) and sent HC Prem Lal (PW11), Constable Raghubir Singh and Constable Tek Chand to the spot for verification. They were informed on the way that the injured were taken to the hospital. They went to Civil Hospital, Suni, where they met injured Mohan Lal (PW6) who revealed that he, Yog Raj and Virender Sharma (PW3) had boarded the vehicle bearing registration No. HP-01A-3243 which was being driven by the accused Krishan Lal alias Babli. Paras Ram, Kesar Dass and Hem Raj were already occupying the vehicle. When the vehicle went half a kilometre ahead, the accused could not control the vehicle due to its high speed and the vehicle fell into a gorge. Mohan Lal and other occupants of the vehicle sustained injuries. Yog Raj, Paras Ram and Besar Dutt died on the spot. The

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accident had taken place due to the negligence of the accused. The police reduced the statement into writing (Ex.PW6/A) and sent it to the Police Station, where FIR (Ex.PW11/C) was registered. HC Prem Lal (PW11) conducted the investigation. He prepared the site plan (Ex.PW11/A) and took the photographs (Ex. PA to PE, whose negatives are PF to PJ) on the spot. He seized the vehicle bearing registration No. HP-01A-3243 vide memo (Ex.PW2/A). He applied for a medical examination of the injured. Dr Gopal Chauhan (PW4) conducted the medical examination of Mohan Lal and found that he had sustained simple injuries that c uld have been caused by a blunt-edged weapon within less than 24 hours of the examination. He issued MLC (Ex.PW4/A). He also conducted postmortem examinations of the dead bodies of Paras Ram, Yog Raj and Besar Dutt. He found that Paras Ram had died due to traumatic shock caused by the head injury which could have been caused in a roadside accident. He issued the report (Ex.PW4/A). According to his opinion, the death had taken place immediately after sustaining injuries. He also examined Yog Raj and found that he had also died due to traumatic shock caused by the head injury, which could have been caused in a roadside accident. He issued the

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report (Ex.PW4/D). He found that Besar Dutt had died due to traumatic asphyxia caused by the fracture of the ribs of the right chest leading to hemothorax in the right chest and haemorrhage of the right lung. These injuries were possible in a roadside accident. He issued his report (Ex.PW4/D). One of the injured, namely Virender was admitted to IGMC, Shimla with a compound fracture. His discharge slip (Ex.PW5/A) was issued by Dr. Des Raj Chandel (PW5). Sanju was admitted to the Neurosurgery Department of IGMC, Shimla and the CT scan of his head revealed Extra D ral Hematoma. Dr. Rakesh (PW6) issued his discharge card. These documents were seized by HC Prem Lal. The documents of the vehicle were seized vide memo (Ex.PW8/A). The mechanical examination of the vehicle was conducted by Rajinder Singh (PW15), who found that there was no mechanical defect in the vehicle that would lead to the accident. He issued a report (Ex.PW15/A). The statements of the witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and it was presented before the Court of Learned Judicial Magistrate First Class-II, Shimla.

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3. Learned Trial Court put a Notice of Accusation to the accused for the commission of offences punishable under Sections 279, 337, 338 and 304-A of IPC. The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 16 witnesses to prove its case. Sanju (PW1), Virender Sharma (PW3), Mohan Lal (PW6) and Anju (PW12) were the occupants of the vehicle. Gauri Shankar (PW2) is the witness to the recovery of the vehicle. Dr Gopal Chauhan (PW4) conducted a medical examination of the injured and postmortem examination of the dead bodies. Dr. Des Raj Chandel (PW5) treated the injured Virender at IGMC, Shimla. Dr. Rakesh Roshan (PW6) was posted in Neurosurgery, where Sanju was treated. Nirmal Singh (PW7) is the witness to recovery. Roshan Lal (PW8) is the witness to the recovery of the documents. Basti Ram (PW9) and Pawan Kumar (PW11) produced the record. HC Prem Lal (PW11) conducted the investigation. HC Shiv Kumar (PW13) proved the entries in the daily diary. Uma Sharma (PW14) is the owner of the vehicle who proved that the accused was driving the vehicle at the time of the accident. Rajinder Singh (PW15) conducted the mechanical examination of the vehicle.

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5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was driving the vehicle and Paras Ram, Besar Dutt, Hem Raj, Mohan Lal, Yog Raj, Virender and Anju were travelling in the vehicle. He denied that he was driving the vehicle in a rash and negligent manner which led to the accident. He admitted that the occupants of the vehicle had sustained injuries and Yog Raj, Paras Ram and Besar Dutt died due to the accident. He admitted that their medical examination was conducted. He also admitted that the vehicle was seized by the police along with doc ments. He denied the rest of the prosecution case. He stated that he was innocent and that he was falsely implicated. He was not driving the vehicle in a rash and negligent manner and the accident occurred due to the sudden collapse of the retaining wall. No defence was sought to be adduced by the accused.

6. Learned Trial Court held that the plea taken by the accused that the retaining wall on the road gave way leading to the accident was plausible because of the statements of Sanju (PW1), Virender Sharma (PW3), Mohan Lal (PW6) and Anju (PW12), who admitted in their cross-examination that danga on the road suddenly gave way due to which the vehicle fell. If two

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versions appear on the record, the version in favour of the accused has to be accepted as correct. The evidence of the prosecution was insufficient to prove that the accident occurred due to the negligence of the accused. Hence, the accused was acquitted of the commission of offences punishable under Sections 279, 337, 338 and 304-A of IPC.

7. Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court failed to appreciate the prosecution evidence in its proper perspective. Unrealistic standards were set to evaluate direct and cogent prosecution evidence. The testimonies of the prosecution witnesses were wrongly discarded. Virender Sharma (PW3), Mohan Lal (PW6) and Smt. Anju Sharma (PW12) had categorically stated that the accused was driving the vehicle at a high speed which led to the accident. Virender Sharma (PW3) and Prem Lal (PW11) did not support the defence version that the accident occurred due to the collapse of the retaining wall. The road was 10 ft. wide and driving the vehicle towards the kacha portion of the road at a high speed shows the negligence of the accused. It was proved on record that it was raining and the accused should have been

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vigilant and cautious while driving the vehicle but he failed to do so. No two views appeared on record and learned Trial Court erred in holding otherwise. Hence it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8. I have heard Mr. Prashant Sen, learned Deputy Advocate General, for the appellant/State and Mr. Arun Kaushal, learned counsel for the respondent/accused.

9. Mr. Prashant Sen, learned Deputy Advocate General, for the appellant/State submitted that the prosecution witnesses had deposed about the rashness and negligence of the accused. Learned Trial Court erred in holding that the accident had taken place due to the collapse of a retaining wall. The Investigating Officer categorically denied this fact in his cross-examination and the site plan does not depict the collapse of the retaining wall. The view taken by the learned trial court is perverse and unsustainable. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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10. Mr. Arun Kaushal, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with it. He submitted that the prosecution is under an obligation to prove its case beyond reasonable doubt and this burden never shifts upon the accused. The principle of res ipsa loquitor does not apply to criminal law and the mere use of the high speed does not lead to an inference of rashness or negligence. He relied upon the judgments of the Hon'ble Supreme Court in Dr S.L Goswami v. State Of Madhya Pradesh ., (1972) 3 SCC 22, Syad Akbar v. State Of Karnataka . [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848], Nanjudappa Vs. State of Karnataka (2022) SCC Online SC 628, Abdul Subhan Vs. State of NCT Delhi (2006) SCC Online Delhi 1132 and Badri Prasad Tiwari Vs. State (1993) SCC Online Orissa 256 in support of his submission.

11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in

Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine

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SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:

"25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence.

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The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The

"two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13)

"13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The

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duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : (SCC p. 643, para 9)

'9. … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.'"

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

"7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :

(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :

(2021) 1 SCC (Cri) 395] ).

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7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR

1955 SC 807]).

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."

13. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

14. It was submitted that the principle of res ipsa loquitor does not apply to the criminal case and a conviction cannot be recorded based on this principle. Reliance was placed upon the judgment of Syad Akbar(supra), wherein it was observed: -

"26. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway, overturns or in fair visibility runs into an obstacle; or brushes the branches of an overhanging tree, resulting in injury, or where there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course

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ensue, the burden shifts or is in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak the negligence of the defendant. This is the view taken in several decisions of English courts. [For instance, see Burke v. Manchester, Sheffield & Lincolnshire Rail Co. [(1870) 22 LJ 442]; Moore v. R. Fox & Sons [(1956) 1 QB 596: (1956) 1 All ER 182]. Also see paras 70, 79 and 80 of Halsbury's Laws of England, Third Edn., Vol. 28, and the rulings mentioned in the footnotes thereunder.]

27. According to the other line of approach, res ipsa loquitur is not a special rule of substantive law; functionally, it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence". In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res Ipsa is only a means of estimating logical probability from the circumstances of the accident. Looking from this angle, the phrase (as Lord Justice Kennedy put it [Russel v. London & South Western Railway Co, (1908) 24 TLR 548]) only means, "that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence .... It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of".

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19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is in such cases that the maxim res ipsa loquitur may apply if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind that does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. [(1950) 1 All ER 392, 399]; Cream v. Smith [(1961) 8 AER 349]; Richley v. Faull [(1965) 1 WLR 1454: (1965) 3 All ER

109])

20. Thus, for the application of the maxim res ipsa loquitur "no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant".

21. It is now to be seen, how does res ipsa loquitur fits in with the conceptual pattern of the Indian Evidence Act.

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Under the Act, the general rule is that the burden of proving negligence as the cause of the accident lies on the party who alleges it. But that party can take advantage of presumptions which may be available to him, to lighten that burden. Presumptions are of three types:

(i) Permissive presumptions or presumptions of fact.

(ii) Compelling presumptions or presumptions of law (rebuttable).

(iii) Irrebuttable presumption of law or conclusive proof.

Classes (i), (ii) and (iii) are indicated in clauses (1), (2) and

(3) respectively, of Section 4, Evidence Act.

"Presumptions of fact" are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and the ordinary course of human affairs. Section 114 is a general section dealing with presumptions of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumptions, the Act allows the judge discretion in each case to decide whether the fact which under Section 114 may be presumed has been proved by virtue of that presumption.

28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by a negligent or rash act. The primary reasons for the non-application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of

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proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of the negligence of somebody. Secondly, there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions [(1937) 2 All ER 552: 1937 AC 576], "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case".

29. However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in the assessment of evidence, in drawing permissive inferences under Section 114 of the Evidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of

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probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence.

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

15. A careful reading of the judgment does not support the submission that the principle of res ipsa loquitor does not apply to criminal law. Hon'ble Supreme Court itself rejected the contention that the principle of res ipsa loquitor does not apply to criminal law in B. Nagabhushanam v. State of Karnataka, (2008) 5 SCC 730: (2008) 3 SCC (Cri) 61: 2008 SCC OnLine SC 866

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and restricted the judgment of Syad Akbar (supra) to its facts. It was observed at page 734:

12. Reliance placed by Mr Kulkarni on Syad Akbar v. State Of Karnataka . [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] is not apposite. It proceeded on the basis that the doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] this Court opined: (SCC p. 41, para 30)

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

The maxim was not applied having regard to the fact of the said case and on the finding that it was a case of error of judgment and the accused gave a reasonable, convincing explanation of his conduct. The maxim res ipsa loquitur was not found to be applicable. However, we may notice that the said principle was applied in a case under the Prevention of Corruption Act in State of A.P. v. C.

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Uma Maheswara Rao [(2004) 4 SCC 399: 2004 SCC (Cri) 1276] in the following terms: (SCC p. 408, para 19)

"19. We may note that a three-judge Bench in Raghubir Singh v. State of Haryana [(1974) 4 SCC 560: 1974 SCC (Cri) 596] held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is 'res ipsa loquitur'."

16. It was laid down by the Hon'ble Supreme Court in

Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026 that the doctrine of res ipsa loquitor providing for reverse burden applies to the criminal law. It was observed at page 445:

"49. The doctrine of res ipsa loquitur providing for a reverse burden has been applied not only in civil proceedings but also in criminal proceedings. (See Alimuddin v. King Emperor [1945 Nag LJ 300].) In Home Office v. Dorset Yacht Co. Ltd. [1970 AC 1004: (1970)

2 WLR 1140: (1970) 2 All ER 294 (HL)] the House of Lords developed the common law principle and evolved a presumptive duty to care.

50. It is, however, of some interest to note that in Syad Akbar v. State of Karnataka [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] this Court held: (SCC p. 40, para 28)

"28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for

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

(emphasis supplied)

The said dicta were followed in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1: 2005 SCC (Cri) 1369]. We may, however, notice that the principle of res ipsa loquitur has been applied in State of A.P. v. C. Uma Maheswara Rao [(2004) 4 SCC 399: 2004 SCC (Cri) 1276] (see also B.

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Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730 :

(2008) 3 SCC (Cri) 61 : (2008) 7 Scale 716] ).

17. It was laid down in Keshav Murti vs. State 2002 Criminal Law 103 (Karnataka) that where the accident had taken place on a wide road and the vehicle had left the road, the maxim of res ipsa loquitur would apply and the burden would shift upon the accused to explain as to how the accident had taken place. It was observed:

"Here is a car proceeding from Bangalore to Shimoga. At the place concerned, there are no other vehicles on the road. There is no obstruction. The road is of a width of 19 ft. of cement and tar road, with 6 ft. kacha road on either side. Still, the vehicle hits a roadside tree. Added to that, there is a report of IMV Inspector at Ex. P. 5 to the effect that the accident is not due to any mechanical defect in the vehicle. In such a situation, an accident of this nature would prima facie show that the same could not be accounted for anything other than the negligence of the driver of the vehicle i.e., the petitioner. A presumption in that regard thus arises. In such a case, as pointed out by the Supreme Court, it is for the petitioner-driver to explain how the accident occurred without negligence on his part. What the petitioner has done in the course of his examination under Section 313 of the Criminal Procedure Code is, simply denying everything. He does not say anything, and even to the general question that is asked at the end as to whether he has got anything to say, he did not choose to say anything, nor did he care to explain the manner in which the accident occurred, i.e., in order to rebut the above said presumption as regards the accident occurring due to his negligence, and in order to show that accident occurred for a particular reason not attributable to his negligence. This was, therefore, an appropriate case

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wherein, on the basis of a presumption that the Supreme Court was speaking about that conviction could be based."

18. Similarly, it was laid down by the Hon'ble Supreme Court in Thakur Singh Vs. State of Punjab 2003(9) SCC 208 that where the accident speaks for itself, it is sufficient for the prosecution to establish the accident and the burden will shift upon the accused to explain the cause of accident. Thus, where the accused admits that he was driving the vehicle which fell into a canal, the burden was upon him to establish that the accident had taken place due to some circumstances other than his negligence. It was observed:

"It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into the canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part."

19. This principle was discussed in detail by the Hon'ble Supreme Court in Ravi Kapur v. State Of Rajasthan ., (2012) 9 SCC 284 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107: 2012 SCC OnLine SC 607 and it was held that where the accident by its nature is more consistent its being caused by negligence than by

24

any other cause mere happening of the accident is per se sufficient to invoke the principle of res ipsa loquitor and in absence of any explanation by the driver of the vehicle, he is liable to be convicted for rash and negligent driving. It was observed at page 295: -

"(A) Rash and negligent driving

12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant

circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly or negligently. Both these acts presuppose abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to "rash and negligent driving" within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life". The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

13. "Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult

25

to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.

14. The court has to adopt another parameter i.e.

"reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, maybe either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes — one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concepts of "culpable

26

rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that in the circumstances of a given case, the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).]

16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one.

17. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 : (2012) 1 SCC (Civ) 848] where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, this Court dismissing the appeal, laid down the tests to

27

determine criminal culpability on the basis of

"knowledge", as follows: (SCC pp. 663-64, para 41)

"41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law—in view of the provisions of IPC—the cases which fall within the last clause of Section 299 but not within clause 'Fourthly' of Section 300 may cover the cases of rash or negligent acts done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description."

(emphasis supplied)

18. Again, in Naresh Giri v. State Of M.P .. [(2008) 1 SCC 791:

(2008) 1 SCC (Cri) 324], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 302 IPC to Section 304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13)

"7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.

8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and

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that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby the death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of others. The death so caused is not the determining factor.

9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows:

'1. General principles of the law of negligence.— Negligence is a specific tort and in any given circumstance is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something

29

which ought to be done or doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances and may vary according to the amount of risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some

circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.'

***

13. According to the dictionary meaning 'reckless' means 'careless', regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to

30

recognising the existence of the risk and nevertheless deciding to ignore it."

19. In Mohammed Aynuddin Alias Miyam v. State Of A.P .. [(2000) 7 SCC 72:

2000 SCC (Cri) 1281], the appellant was driving a bus and while a passenger was boarding the bus, the bus was driven which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act held that it was culpable rashness and criminal negligence and held as under: (SCC pp. 74-75, paras 7 & 9)

"7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus. ***

9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."

(B) Attendant circumstances and inference of rash and negligent driving

20 [Ed.: Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./53/2012 dated 5-9-2012.]. In light of the above, now we have to examine if negligence in the case

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of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence, the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of the occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:

• The event would not have occurred but for someone's negligence.

• The evidence on record rules out the possibility that the actions of the victim or some third party could be the reason behind the event.

• The accused was negligent and owed a duty of care towards the victim.

21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208:

2004 SCC (Cri) 1183] the petitioner drove a bus rashly and negligently with 41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting in the death of all the passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the

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petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under: (SCC p. 209, para 4)

"4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into a canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part."

22. Still, in Mohd. Aynuddin [(2000) 7 SCC 72: 2000 SCC (Cri) 1281], this Court has also stated the principle: (SCC p. 74, para 8)

"8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer."

It has also been stated that the effect of this maxim, however, depends upon the cogency of the inferences to be drawn and must, therefore, vary in each case."

20. Even this Court held in State Of Himachal Pradesh v. Mast Ram, 2009 SCC OnLine HP 808 that in a case under Section 304-A of IPC, the driver has a responsibility to show that the accident did not happen on account of his negligence. The judgment of Saiyad Akhtar Ali (supra) was explained and was held to be applicable

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where the driver had adopted his best course to avoid the accident. It was observed: -

"16. In a case under section 304-A IPC, the driver has some responsibility to show that the accident did not happen on account of his negligence. The principle of res ipsa loquitur comes into play and the burden shifts on the person who was in control of the vehicle at the time of the accident. In Thakur Singh v. State of Punjab, (2003) 9 SCC 208, the Supreme Court has held as follows: -

"It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into a canal. In such a situation the doctrine of res ipsa loquitur comes to play and the burden shifts onto the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part".

Mr Gupta learned counsel for the respondent has relied on Syad Akbar v. State Of Karnataka ., AIR 1979 SC 1848 in support of his submission that the principle of res ipsa loquitur is not applicable in the present case. In Syad Akbar, the accident took place in spite of the driver adopting the best course to avoid the accident. In the present case, the facts are entirely different. Therefore, Syad Akbar (supra) is not applicable in the facts and circumstances of the present case. The respondent has not discharged his burden as held in Thakur Singh case and has not succeeded in showing that the accident took place due to reasons other than his negligence. In his statement under Section 313 Cr.P.C. he has not said anything about the cause of the accident. PW-2 and PW-3 have fully proved that the accident took place due to rash or negligent driving of the respondent at the time of the accident, which ultimately caused the

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death of Arushi. It is a well-settled principle what matters is the quality and not the quantity of witnesses. It is thus held that prosecution has proved the accusation against the respondent and he is held guilty of committing an offence punishable under Sections 279, 304-A IPC."

21. The judgment in Nanjudappa (supra) cited on behalf of the respondent/accused dealt with the case where a telephone wire got detached and fell on an 11 KV Power line leading to a short circuit. In these circumstances, the Hon'ble Supreme Court held that in the absence of the evidence, the accused could not be convicted by invoking the principle of res ipsa loquitor, especially where no report of the inspection conducted by a technical expert was brought on record.

22. There can be no dispute with the proposition of law laid down in S.L. Goswami (supra) that in a criminal trial, the onus is upon the prosecution to prove its case beyond a reasonable doubt; however, the burden can shift to the accused to prove his innocence after some foundational facts have been laid. It was laid down by the Hon'ble Supreme Court in Noor Aga

v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026 that many legislations provide the burden of establishing certain facts upon the accused. It was observed at page 441:

35

"35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed as having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and the rights of citizens must be upheld.

36. A fundamental right is not absolute in terms. xxxxxxxx

40. The provision for reverse burden is not only provided for under special Acts like the present one but also under general statutes like the Penal Code. The Evidence Act provides for such a burden on an accused in certain matters, as, for example, under Sections 113-A and 113-B thereof. Even otherwise, this Court, having regard to the factual scenario involved in cases e.g. where the husband is said to have killed his wife when both were in the same room, the burden is shifted to the accused. Enforcement of the law, on the one hand, and protection of citizens from the operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. The constitutionality of a penal provision placing the burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right. (See S v. Dlamini [(1999) 4 SA 623: (1999) 7 BCLR 771 (CC)] .) While, however, saying so, we are not unmindful of serious criticism made by the academies in this behalf.

41. In Glanville William's Text Book of Criminal Law (2nd Edn., p. 56), it is stated:

"Harking back again to Woolmington [Woolmington v. Director of Public Prosecutions, 1935 AC 462: 1935 All ER

36

Rep 1 (HL)], it will be remembered that Viscount Sankey said that 'it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and subject also to any statutory exception'…. … Many statutes shift the persuasive burden. It has become almost a matter of routine for Parliament, in respect of the most trivial offences as well as some serious ones, to enact that the onus of proving a particular fact shall rest on the defendant so that he can be convicted 'unless he proves' it."

But then, the decisions rendered in different jurisdictions are replete with cases where the validity of the provisions raising a presumption against an accused, has been upheld.

42. The presumption raised in a case of this nature is one for shifting the burden subject to fulfilment of the conditions precedent therefor.

43. The issue of reverse burden vis-à-vis the human rights regime must also be noticed. The approach of the common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments have frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries, no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom, it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See "The Presumption of Innocence in English Criminal Law", 1996, CRIM. L. REV. 306, at p. 309.)

23. This position was reiterated in Achhar Singh v. State of H.P., (2021) 5 SCC 543: 2021 SCC OnLine SC 368 wherein it was observed at page 551:

37

"14. It is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty, for criminal accusations can be hurled at anyone without him being a criminal. The suspect is therefore considered to be innocent in the interregnum between accusation and judgment. History reveals that the burden on the accuser to prove the guilt of the accused has its roots in ancient times. The Babylonian Code of Hammurabi (1792-1750 B.C.), one of the oldest written codes of law put the burden of proof on the accuser. Roman Law coined the principle of actori incumbit (onus) probatio (the burden of proof weighs on the plaintiff) i.e. presumed innocence of the accused. In Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 (HL)], the House of Lords held that the duty of the prosecution to prove the prisoner's guilt was the "golden thread" throughout the web of English Criminal Law. Today, Article 11 of the Universal Declaration of Human Rights, 1948, Article 14 of the International Covenant on Civil and Political Rights, 1966 and Article 6 of the European Convention on Human Rights, 1950 all mandate the presumption of innocence of the accused.

15. A characteristic feature of common law criminal jurisprudence in India is also that an accused must be presumed to be innocent till the contrary is proved. It is obligatory for the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. Regardless thereto, the "right of silence" guaranteed under Article 20(3) of the Constitution is one of the facets of presumed innocence. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 amplifies that the presumption of innocence until the accused is proved to be guilty is an integral part of the Indian criminal justice system. This presumption of innocence is doubled when a competent court analyses the material

38

evidence, examines witnesses and acquits the accused. Keeping this cardinal principle of invaluable rights in mind, the appellate courts have evolved a self-restraint policy whereunder, when two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial court's proximity to the witnesses and direct interaction with evidence. In such cases, interference is not thrusted unless perversity is detected in the decision-making process."

24. Thus, the principle that the prosecution is required to prove its case beyond reasonable doubt does not run counter to the applicability of the doctrine of res ipsa loquitor.

25. The prosecution has come up with a case in which the accused was negligent because he was driving the vehicle at a high speed and failed to control the vehicle. This fact was asserted in the statement of Mohan Lal (Ex.PW6/A) which was converted into the FIR as well as the charge sheet filed before the Court under Section 173 of the Code of Criminal Procedure. Virender Sharma (PW3) stated in his examination-in-chief that the accident occurred due to the high speed and negligence of the accused. Similarly, Mohan Lal (PW6) stated in his examination-in-chief that the accident occurred due to the high speed and negligence of the accused. Anju Sharma (PW12) stated in her examination-in-chief that the accused was driving the vehicle at a high speed due to which the vehicle fell into the

39

gorge. A heavy reliance was placed upon these testimonies to submit that the prosecution case was proved beyond reasonable doubt.

26. It was laid down by the Hon'ble Supreme Court in

Mohanta Lal Saha v. State of West Bengal, 1968 ACJ 124 that the use of the term high-speed amounts to nothing unless the notion of the speed of the witness is to be ascertained from him. It was observed:

"Prafulla Kumar Dey, no doubt, in court stated that the appellant's bus was coming at high speed; but this statement appears to be an improvement on his earlier evidence given during the investigation when he did not mention to the investigating officer that the bus was running at high speed. Further, no attempt was made to find out what this witness understood by high speed. To one man a speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently."

27. It was held in State of Karnataka v. Satish, (1998) 8 SCC 493: 1998 SCC (Cri) 1508 that the use of the term high speed is not sufficient to infer rashness or negligence. It was observed:

4. Merely because the truck was being driven at a "high speed" does not bespeak either "negligence" or

"rashness" by itself. None of the witnesses examined by

40

the prosecution could give any indication, even approximately as to what they meant by "high speed".

"High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence"

could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure."

28. This Court took a similar view in State of H.P. v. Amar Nath, Latest HLJ 2018 (HP) Suppl. 763, and held as under:-

"18 It would be noticed that the instant is a case where apart from the bare statement of PW-1 that the vehicle was being driven by the petitioner at a high speed, there was no attempt made to establish that there was any rash and negligent act on the part of the driver of the vehicle.

"High speed" is an expression which is relative and subjective. Therefore, merely because the vehicle was being driven at a high speed does not mean that the driver was driving rashly and negligently."

29. A similar view was taken in Yash Pal Rana v. State of Himachal Pradesh Latest HLJ 2019 (HP) (Suppl.) 171, wherein it was observed:-

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"9. Leaving everything aside, this Court finds no specific evidence led on record by the prosecution to prove rash and negligent driving by the petitioner-accused. As has been taken note of above, PW-1 in a very casual manner has only stated that the offending vehicle was being driven at high speed, but high speed cannot be a criteria to conclude rash and negligent driving, rather to prove guilt, if any, under Section 279 IPC, it is/was incumbent upon the prosecution to prove act of rashness and negligent so as to endanger the human life. But in the case at hand, the prosecution has not been able to place on record specific evidence, if any, with regard to rash and negligent acts, if any f the accused, which endangered human life.

30. Thus, no advantage can be derived from the use of the term high speed by the witnesses.

31. The statements of the witnesses that the accident occurred due to the negligence of the accused will not help the prosecution because a witness is not permitted to derive any inference from the facts but he is supposed to place the facts before the court, leaving the jury or the judge, when he is sitting without the jury, to draw the inferences. The statement of a witness that the driver of the vehicle was negligent is an inference, which cannot be drawn by the witness. It was laid down by Goddard LJ in Hollington vs. Hawthorn 1943 KB 507 at 595 that a witness cannot depose about negligence. It was observed:

42

"It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw; he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant but his opinion is not."

32. Similar is the judgment in State of H.P. vs. Niti Raj 2009 Cr.L.J. 1922 (HP) where it was held:

"It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court."

33. Therefore, the statement of the witness as that the driver was negligent by itself without anything more do not constitute legally admissible evidence upon which a reliance can be placed by the Court of law to base its judgment.

34. Sanju (PW1) admitted in his cross-examination that the weather was inclement on the date of the accident and it was raining. The driver was driving the vehicle at a slow speed due to raining. He could not tell that the retaining wall collapsed which led to the accident.

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35. Virender Sharma (PW3) admitted in his cross- examination that it was raining on the date of the accident and the accused was not driving the vehicle at a high speed.

36. Mohan Lal (PW6) admitted in his cross-examination that it was raining on the date of the accident, the accused was not driving the vehicle at a high speed and the accident occurred due to the collapse of the retaining wall.

37. Anju Sharma (PW12) admitted that it was raining for 1-2 days before the accident and the retaining wall collapsed at the place of the accident. She admitted that the accident had taken place due to the collapse of a retaining wall.

38. Thus, the witnesses Sanju (PW1), Virender Sharma (PW3) and Mohan Lal (PW6) admitted in their cross- examination that the speed of the vehicle was not high. Sanju (PW-1), Mohan Lal (PW 6) and Anju Sharma (PW 12) admitted in their examination that the accident occurred due to the collapse of the retaining wall leading to the accident. Significantly, they were not re-examined by the prosecution which means that their version in the cross-examination regarding the speed of the vehicle being slow due to the rain and the collapse of the

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retaining wall leading to the accident was not challenged by the prosecution.

39. In Javed Masood vs. State of Rajasthan (2010) 3 SCC 538, the prosecution came up with a specific version that the incident was witnessed by three witnesses Husain Lal (PW-4), Rayees (PW-14) and Ayub Bhai (PW-6). When PW-6 Ayub Bhai appeared in the Court, he stated that he saw some crowd and came to know on inquiries that the deceased was lying completely soaked in blood. He telephoned other persons who came after some time. This witness was not declared hostile. He was not even re-examined by the prosecution. It was held that his testimony made the prosecution case doubtful regarding the presence of other persons and it would not be proper to rely on their testimonies. It was observed:

"This witness did not support the prosecution case. He was not subjected to any cross-examination by the prosecution. His evidence remained unimpeached. There is no reason to disbelieve the evidence of PW-6 and no valid reason has been suggested as to why his evidence cannot be relied on and taken into consideration. The evidence of PW-6, if it is to be taken into consideration, makes the presence of PWs 5, 13 and 14 highly doubtful at the scene of occurrence. We do not find any reason whatsoever to discard the evidence of PW-6 who is an independent witness. His evidence is binding on the prosecution as it is. No reason, much less valid reason has

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been stated by the Division Bench as to how evidence of PW-6 can be ignored.

13. In the present case, the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in the law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258

observed:

"30. A similar question came up for consideration before this Court in Raja Ram v. the State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.

31. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence."

40. Similar is the judgment in Ram Sewak vs. State 2004(11) SCC 259 wherein it was held that when a discrepancy had cropped up in the cross-examination which was not clarified in the cross-examination, the benefit of the said discrepancy would go to the defence. It was observed:

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"Even assuming that there is some doubt as to the interpretation of this part of his evidence since the same is not clarified by the prosecution by way of re- examination, the benefit of the doubt should go to the defence which has in specific terms taken a stand that the FIR came into being only after the dead body was recovered."

41. Therefore, testimonies of the witnesses in their cross-examination that the accident had taken place due to the collapse of a retaining wall remained un-shattered and learned Trial Court was justified in holding that it was a probable version on record, the benefit of which has to be granted to the accused.

42. Rajinder Singh (PW15) conducted the mechanical examination of the vehicle and could not recollect whether the retaining wall had collapsed in the place of the accident or not, however, he admitted that the vehicle would become uncontrollable in case of the collapse of the retaining wall. His statement shows that the collapse of the retaining wall will lead to the accident and a satisfactory explanation for the accident appears on the record.

43. Prem Lal (PW11) denied in his cross-examination that the retaining wall was seen collapsed at the place of the accident. Reference was made to his statement and the site plan (Ext.PW11/A) prepared by him, in which there was no reference

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to the collapse of the retaining wall. The statement of this witness will not help the prosecution in view of the statements of other witnesses produced by the prosecution who stated about the collapse of the retaining wall. The learned Trial Court had rightly pointed out that when two views appear on the record, one which is in favour of the defence has to be taken as correct. The genesis of this principle lies in another principle that the prosecution has to prove its case beyond reasonable doubt and when a doubt crops up by any material on record, the prosecution has failed to discharge the requisite standard of proof.

44. No other point was urged.

45. Thus, the learned Trial Court had taken a reasonable view which could have been taken based on the material placed before it and no interference is required with the same while deciding an appeal against the acquittal.

46. Consequently, the present appeal fails and the same is dismissed.

47. The respondent/accused is in custody. He is ordered to be released immediately, if not required in any other case.

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48. The record of the learned Trial Court be returned forthwith. Pending application(s), if any, also stand(s) disposed of.

(Rakesh Kainthla) Judge