Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
SYAD AKBAR
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT25/07/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1979 AIR 1848 1980 SCR (1) 25
1980 SCC (1) 30
CITATOR INFO :
R 1986 SC1769 (5)
RF 1991 SC1853 (6)
ACT:
Evidence Act-Res ipsa loquitur-If applicable in
criminal trials-Appellant driving a bus on a narrow road
with deep ditches on both sides-A child suddenly attempts to
cross the road-Bus swerved to right-Child crushed to death-
Prosecution declared eye witness hostile-Driver-If could be
held negligent.
Hostile witnesses-Cross-examined by prosecution-Their
evidence-If could be treated as washed off the record.
HEADNOTE:
The appellant, who was a driver of a bus, was driving
the vehicle by a road which ran through a village. On either
side of the road there were deep ditches. A mother who was
going from the village on the left side of the road to the
fields on the right, was being followed at some distance by
her daughter (the deceased), a girl of four years. Before
crossing the road the mother stopped on the left side and
remonstrated with the girl to go home. Then crossing the
road at that point the mother descended on the right side of
the road and went out of sight. In the meantime the bus had
slowed down because a few feet away it had to cross a narrow
bridge. The child, which by then reached the left side of
the road, seemed to be in two minds whether to cross the
road or go back. She, however, dashed across the road with a
suddenness. The driver blew the horn and to save the chlild
from accident swerved the vehicle to the right. But the
child by then came under the left front wheel and was
crushed to death.
The appellant’s defence was that the accident could not
be avoided in the circumstances of the case despite the best
care taken by him to avoid it.
Alleging that there were considerable discrepancies in
the statements of the eye-witnesses, between what they
stated to the police and what they stated at the trial, the
prosecution attempted to impeach their credit and treated
all of them as hostile.
The Sessions Judge agreed with the view of the trial
court about the unreliability of the eye-witnesses, mainly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
because they had been treated ’hostile’ and cross-examined
by the prosecution. He concluded that even if the evidence
of the eye-witnesses, who had been treated by the
prosecution as hostile, was discarded in its entirety, then
also on the principle of res ipsa loquitur, the circumstance
and nature of the accident itself, was sufficient to hold
that the accident was due to rash and negligent driving by
the accused.
The High Court affirmed the view of the Sessions Judge
that the principle of res ipsa loquitur was attracted to the
facts of the case.
In appeal to this Court the two questions for
consideration were: (i) whether the courts below were right
in discarding the evidence of the eye wit-
96
nesses on the ground that they were treated hostile by the
prosecution and cross-examined; and (ii) whether the
principle res ipsa loquitur was applicable in criminal
proceedings and, if so, whether it could be invoked in the
circumstances of the case to presume rashness and negligence
on the appellant’s part.
Allowing the appeal,
^
HELD: 1. The evidence of the prosecution witnesses
cannot be rejected wholesale merely on the ground that the
prosecution had dubbed them hostile and had cross-examined
them. Even in a criminal prosecution when a witness is
cross-examined and contradicted with the leave of the court
by the party calling him, his evidence cannot be, as a
matter of law, treated as washed off the record altogether.
It is for the Judge of fact to consider in each case whether
as a result of such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be
believed in regard to a part of his testimony. If, in a
given case, the whole of the testimony of the witness is
impugned and in the process the witness stands totally
discredited, the Judge should as a matter of prudence
discard his evidence in toto. [101F-H]
Sat Paul v. Delhi Administration [1976] 2 S.C.R. 11,
followed.
In the instant case the courts below were not justified
in brushing aside the testimony of the witnesses. The eye
witnesses were only asked omnibus questions and were not
contradicted on material facts and their credit with regard
to their testimony in examination-in-chief had not been
shaken in cross-examination.
2. (a) Res ipsa loquitur, which is more of a convenient
label to describe certain peculiar fact-situations, rather
than an abstract legal doctrine, belongs, in reality, to the
law of torts. Even in actions in torts, as a rule, it is for
the plaintiff to prove that the injury occurred due to the
negligence of the defendant, and the mere fact that 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 negligence of somebody as cause of the
accident. 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. Thus, the two-fold
requirement for the application of the maxim is that the res
must not only bespeak negligence but pin it on the
defendant. [103B-E]
(b) (i) There are two lines of approach in regard to
the application and effect of the maxim, res ipsa loquitur.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
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, 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 arising against the defendant from the
constituent circumstances of the accident itself, which
bespeak negligence of the defendant. [105f; 106A-B]
Moore v. R. Fox & Sons, [1956] 1 Q.B. 596; Halsbury’s
Laws of England, Vol. 28, 3rd Edn., referred to.
97
(ii) According to the other line of approach res ipsa
loquitur is not a special rule of substantive law; but only
an aid in the evaluation of evidence, a means of estimating
logical probability from the circumstances of the accident.
In this view, res ipsa does not require the raising of any
presumption of law which must shift the onus on to the
defendant. It only allows the drawing of a permissive
inference of fact as distinguished from a mandatory
presumption, having regard to the totality of the
circumstances and the probabilities of the case. [106 C-D]
(c) The first line of approach cannot 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 non-application of res ipsa loquitur as
an abstract doctrine 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; secondly, while in civil
proceedings a mere preponderance of probability is
sufficient to establish a fact in issue, it is not so in
criminal proceedings wherein the presumption 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 negligence merely based upon an
error of judgment. [107A-B]
Andrews v. Director of Public Prosecutions, [1937] 2
All. E.R. 552: [1937] AC 576, referred to
(d) (i) Understood in the broad, general sense as by
the other line of approach-only as a convenient
ratiocinative aid in assessment of evidence and in drawing
permissive inferences under s. 114, Evidence Act, res ipsa
loquitur can be usefully invoked in the trial of criminal
cases wherein the negligence of the accused is a fact in
issue. Such functional use of the maxim will not conflict
with the provisions and principles of the Evidence Act,
peculiar to criminal jurisprudence. [107G]
(ii) However 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 conditions the
satisfaction of which is essential before an accused can be
convicted on the basis of circumstantial evidence alone.
These conditions are: (i) All the circumstances including
the objective circumstances constituting the accident, must
be firmly established; (ii) those circumstances must be of a
determinative tendency pointing unerringly towards the guilt
of the accused, and (iii) the circumstances should make the
chain so complete that they cannot reasonably raise any
other hypothesis save that of the guilt of the accused.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
[108A-B]
In the instant case, the maxim could have no
application. The circumstance of taking the bus suddenly to
the extreme right of the road, which was the reason given by
the courts below for invoking the maxim, did not bespeak in
clear and unambiguous voice, negligence on the appellant’s
part to exercise due care and control. Moreover, the
appellant gave a reasonable and convincing explanation of
his conduct in swerving the vehicle to the right and his
version was fully supported by four prosecution witnesses.
98
The mother firmly told the child to return home and
then crossed the road and descended the deep ditch on the
right side. The child was undecided for a while but then,
suddenly ran across the road. The appellant who had slowed
down the vehicle earlier, suddenly saw the child at a short
distance ahead of the bus. It was difficult for him to judge
with any degree of accuracy whether the child would go back
or dash forward. The question for the driver at that point
of time was whether to swerve to the left or to the right.
The road was narrow with deep ditches on both sides. To
swerve to the extreme left would have meant taking as much
risk of rolling the bus down the ditch as swerving it to the
extreme right. He could not, without incurring far greater
risk to many in the bus, take the vehicle off-course further
to the right beyond the point he did. Had the bus gone
further than it did, towards the right, it would have met
with a much bigger disaster. His calculations went wrong and
he failed in his attempt to avoid the accident. Clearly,
therefore, the accident occurred not on account of his
negligence but due to an error of judgement in the
circumstances of the situation. An error of judgment of this
kind which comes to light only on post-accident reflection,
is not a true index of negligence. A grave error of
judgment, particularly one apparent as such in the light of
after-events, is not negligence of the kind contemplated in
Section 304-A Penal Code, if the person responsible thought
that he was acting in the best interests of the passengers
and of the vehicle he was driving. Here, all happened in a
fraction of a moment. Even if the worst was assumed against
the appellant, the highest that could be said was that a
misjudgment on his part too slight to be branded as culpable
negligence could well account for the accident resulting in
the death of the child.
Horabin v. British Overseas Airways Corporation, [1952]
2 QBD 1016; referred to.
In the circumstances, the prosecution had failed to
prove beyond reasonable doubt that the appellant had caused
the death of the child by negligent or rash driving. [110G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
456 of 1978.
Appeal by Special Leave from the Judgment and Order
dated 22-3-1978 of the Karnataka High Court in Criminal
Revision Petition No. 357/77.
S.S. Javali, B.P. Singh and A.K. Srivastava for the
Appellant.
M. Veerappa and J.R. Dass for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. By a short order we had allowed this
appeal by special leave directed against a judgment, dated
March 22, 1978, of the High Court of Karnataka, and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
acquitted the appellant. We now give our reasons in support
of that Order:
On March 18, 1974 at about 8.30 p.m., the appellant was
driving a passenger bus No. MYM-5859 on Dharampura-Hiriyur
Road towards
99
Hiriyur. When the bus reached at a place from where a kacha
path bifurcates for villages Hariyabbe, a girl named
Gundamma, aged 4 years, ran across the road. The appellant
swerved the vehicle towards the extreme right side of the
road. In spite of it, the child was hit and died at the
spot. A complaint was lodged by the Patel of the village,
Gunde Gowda, at Hariyabbe Police Station. The Station House
Officer (P.W. 7) after registering a case, reached the spot
and sent the dead body of the child for post-mortem
examination, and recorded the statements of witnesses,
including some of the passengers in the Bus.
On these facts, the appellant was sent up for trial
before the Judicial Magistrate, 1st Class, Chitradurga, who
convicted him under Section 304A of the Indian Penal Code
and sentenced him to six months’ simple imprisonment with a
fine of Rs. 500/- and in default, to one month’s
imprisonment.
At the trial, the prosecution examined 11 witnesses.
The parents of the deceased child were also examined, but
they were admittedly not eye-witnesses of the occurrence.
P.W. 2, a passer-by, and P.W. 5, P.W. 6 and P.W. 9, who were
passengers in the bus at the material time, were examined as
eye-witnesses by the prosecution.
The substance of the story that emerges from the
testimony of these eye-witnesses, taken as a whole, was that
at the material time the accused was driving the bus slowly
as there was a narrow bridge 30 feet ahead. The mother (P.W.
4) came from the habitation of the village to go to the
field across the road at some distance, where her husband
was working. The ill-fated child was following the mother.
Before crossing the road, the mother asked the child not to
come after her but to return home, but, when the mother had
crossed the road and descended into the deep ditch on the
other side, the child crying ’Amman’ suddenly dashed across
the road to join her mother. The accused in order to save
the child swerved the vehicle to the extreme right side of
the road. According to the eye-witnesses, excepting one, the
accused blew the horn, also. But the child was caught under
the left front wheel of the vehicle and was crushed to
death. It was further evident from the statement of G.
Ramakrishnappa (P.W. 5) that if the appellant had taken the
bus beyond the point where the child was hit, the bus would
have fallen into the deep ditch, along with the passengers.
The Public Prosecutor, however, treated all the four
eye-witnesses as hostile, and cross-examined them to impeach
their credit, with the permission of the Court. The Public
Prosecutor did not contradict
100
them with their Police Statements with regard to the facts
that the vehicle was coming slowly; that the child came
suddenly on the road and that the driver had swerved the
vehicle towards the extreme right to save her, but was
unable to do so. The only portion of the Police statements
of the eye-witnesses, with which they were specifically
confronted, was that before the Police they had stated that
the accident took place due to the negligence of the
accused, while at the trial they were saying something to
the contrary.
During his examination under Section 313 Cr.P.C., the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
appellant stated that he was driving the vehicle slowly, and
the child came on the road from the left, all of a sudden,
to cross it; that in order to avoid a collision with the
child, he immediately swerved the vehicle towards the right
side of the road, but he failed to save the child. Thus the
defence plea was that the accident could not be avoided in
the circumstances, in spite of the care taken. The trial
court held that the eye-witnesses were not speaking the
truth.
In appeal, the Sessions Judge agreed with the trial
court about the unreliability of the eye-witnesses. In spite
of it, he upheld the conviction with these observations:
"This is a case where the principle res ipsa
loquitur should be invoked because the passengers in
the bus are not giving out the truth and their evidence
is made highly improbable....Though P.W. 2 has been
treated hostile by the prosecution, the fact that the
child was following the mother finds corroboration in
their (P.W. 2 and P.W. 4) evidence. So, now, if the
driver of the vehicle could see the mother and child
coming from village and he has dashed against the child
on the extreme right side of the road on the kutcha
portion, it is suggestive of rash and negligent
driving. The evidence of P.Ws. 2, 5, 6 and 9 who have
been treated hostile by the prosecution even though
discarded in entirety still it must be held that the
material on the record is sufficient to hold that the
accused was both rash and negligent in driving the
vehicle at that point."
In Revision, the High Court also endorsed the view
taken by the Sessions Judge that the principle of res ipsa
loquitur was attracted to the facts of the case.
Thus, two questions arise for consideration; First
whether the courts below were right in discarding entirely
the evidence of the said eye-witnesses merely on the ground
that they were treated as hostile by
101
the prosecution and cross-examined. Second, whether the
principle of res ipsa loquitur is applicable in criminal
proceedings. If so, could it be invoked in the circumstances
of the case in favour of the prosecution to presume rashness
and negligence on the part of the accused ?
In regard to the first question, it may be noted that
the police statements of the eye-witnesses were not put
specifically, bit by bit to them by the prosecution, in
cross-examination. Only an omnibus question was asked as to
whether they had stated before the police that the accident
occurred due to the negligence of the accused. This was, at
best, a matter of inference to be drawn by the Court. The
witnesses were not contradicted with regard to material
facts which were the product of their direct sensory
perception. For instance, their version with regard to the
speed of the vehicle, the blowing of horn, the child running
across the road and sudden swerving of the vehicle to the
right in an attempt to save the child, etc., was not
impeached by the prosecution in cross-examination. In short,
the credit of these witnesses with regard to the substratum
of their examination-in-chief had not been shaken in cross-
examination by the prosecution.
As a legal proposition, it is now settled by the
decisions of this Court, that the evidence of a prosecution
witness cannot be rejected wholesale, merely on the ground
that the prosecution had dubbed him ’hostile’ and had cross-
examined him. We need say no more than reiterate what this
Court said on this point in Sat Paul v. Delhi Administration
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
(1):
"Even in a criminal prosecution when a witness is
cross-examined and contradicted with the leave of the
Court, by the party calling him, his evidence cannot,
as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-examination
and contradiction, the witness stands thoroughly
discredited or can still be believed in regard to a
part of his testimony. If the Judge finds that in the
process, the credit of the witness has not been
completely shaken, he may, after reading and
considering the evidence of the witness, as a whole,
with due caution and care, accept, in the light of the
other evidence on the record, that part of his
testimony which he finds to be credit worthy and act
upon it. If in a given case, the whole of the testimony
of the witness is impugned, and in the process, the
witness
102
stands squarely and totally discredited, the Judge
should, as a matter of prudence, discard his evidence
in toto."
The instant case is not one where the whole of the
testimony of these witnesses was impugned in cross-
examination by the prosecution. Their credit, on material
points, was hardly shaken. The courts below, therefore, were
not justified in brushing aside their testimony.
Coming to the second question, it may be observed that
res ipsa loquitur (thing speaks for itself) is a principle
which, in reality, belongs to the law of torts.
The jurisprudential status and functional utility of
res ipsa loquitur have been the subject of much debate. In
Ballard v North British Railway Co.,(1) Lord Shaw said,
nobody would have called it a principle if it had not been
in Latin. While warning against the tendency to magnify this
expression into a rule of substantive law, the Noble Lord
conceded that thus Latin phrase "simply has place in that
scheme of, and search for, causation upon which the mind
sets itself working". In the same case, Lord Dunedan
emphasised: "It is not safe to take the remarks which have
been made as to the principle of res ipsa loquitur in one
class of cases and apply them indiscriminately to another
class".
No less an authority than the authors of "Salmond on
the Law of Torts", (15th Edn. by R.F. Houston, p. 310) have
suggested not to treat this maxim as a special rule of
evidence. This is what they say:
"Much of the confusion is due to a failure to
appreciate that cases where res ipsa loquitur applies
may vary enormously in the strength, significance and
cogency of the res proved..... Looked at in this light,
it is not easy to see why the maxim should be treated
as a special part of the law of evidence."
Lord Dunedan, in Ballard’s case, (supra) thought it no
more a rule of evidence than a means of shifting the onus to
prove negligence. Lord Atkin in Mc Gowan v. Stott(2) treated
it as equivalent to a statement that on the facts in
evidence the plaintiff has satisfied the burden of proof
enough to shift it on to the defendant.
John G. Fleming (in his ’Law of Torts’, 5th Edn., page
302) thinks it as "no more than a convenient label to
describe situations where, notwithstanding the plaintiff’s
inability to establish the exact cause of the accident, the
fact of the accident by itself is sufficient, in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
103
the absence of an explanation, to justify the conclusion
that most probably the defendant was negligent and that his
negligence caused the injury".
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 to 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 which 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 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 off-springs
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.(1); Cream v. Smith(2) and Richlev
v. Fanll(3).
Thus, for the application of the maxim res ipsa
loquitur "no less important a requirement is that the res
must not only be speak negligence, but pin it on the
defendant."
It is now to be seen, how does res ipsa loquitur fit in
with the conceptual pattern of the Indian Evidence Act.
Under the Act, the general rule is that the burden of
proving negligence as 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:
104
(i) Permissive presumptions or presumptions of fact.
(ii) Compelling presumptions or presumptions of law
(rebut-table).
(iii) Irrebuttable presumption of law or ’conclusive
proof’.
Clauses (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 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 a discretion in each case to decide whether the fact
which under section 114 may be presumed has been proved by
virtue of that presumption.
In case of a ’Presumption of Law’ no discretion has
been left to the Court, and it is bound to presume the fact
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
as proved until evidence is given by the party interested to
rebut or disprove it. Instances of such presumptions are to
be found in sections 79, 80, 81, 83, 85, 89 and 105,
Evidence Act.
The distinction between the effect of the first and the
second kind of presumptions on the burden of proof, is
important. Presumptions of Fact merely affect the "burden of
going forward with the evidence." ’Presumptions of Law’,
however, "go so far as to shift the legal burden of proof so
that, in the absence of evidence sufficient to rebut it on a
balance of probability, a verdict must be directed".
(Fleming).
Though some decisions particularly of Courts in England
are inclined to adopt a somewhat different approach the
predominant view held by Courts in United States, Australia
and Canada (See Temple v. Terrace & Co., (1) G.I.O. v.
Fredrichberg(2); United Motors Service v. Hutson(3) seems to
be that the maxim res ipsa loquitur raises only a
’Permissive Presumption’ exemplifying merely "the general
principle of inferring a fact in issue from circumstantial
evidence where the circumstances are meagre but
significant". On this reasoning, Fleming has opined that
"the maxim is based merely on an estimate of logical
probability in a particular case not on any overriding legal
policy that controls initial allocation of the burden of
proof or, by means of man-
105
datory presumptions, its reallocation regardless of the
probabilities of the particular instance". Fleming, then
illustrates this proposition, by giving an example, which
for our purpose, is pertinent:
".....If a Truck suddenly swerves across the road
and knocks into a car drawn up on the shoulder of the
opposite side, this would without more raise an
inference of negligence against the driver. Yet the
plaintiff would fail, if the Trier of the fact at the
end of the case deems it no less probable that the
accident was caused by an unexpectable break of the
steering arm than by culpable maintenance of the wheel
assembly."
(Emphasis supplied)
From what has been said above, it is clear that even in
an action in torts, if the defendant gives no rebutting
evidence but a reasonable explanation, equally consistent
with the presence as well as with the absence of negligence,
the presumptions or inferences based on res ipsa loquitur
can no longer be sustained. The burden of proving the
affirmative, that the defendant was negligent and the
accident occurred by his negligence, still remains with the
plaintiff; and in such a situation it will be for the Court
to determine at the time of judgment whether the proven or
undisputed facts, as a whole, disclose negligence. [See
Ballard’s case (supra); The Kite(1); Per Evatt J. in Davis
v. Bunn(2), Mummary v. Irvings Proprietary Ltd. (Australia)
(3); Winnipeg Electrical Company Ltd. v. Jacob Geal(4) See
also: Brown v. Rolls Royce Ltd.(5); Hendersons v. Henry E.
Jenkins and Sons(6).
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
without apparent cause leaves the highway, or 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
106
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 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 arising
against the defendant from the constituent circumstances of
the accident itself, which bespeak negligence of the
defendant. This is the view taken in several decisions of
English Courts. [For instance, see Burke v. Manchester,
Sheffield & Lincolshire Rail Co.,(1) Moore v. R. Fox &
Sons(2). Also see Paras 70, 79 and 80 of Halsbury’s Laws of
England, Third Edition, Vol. 28, and the rulings mentioned
in the Foot Notes thereunder].
According to the other line of approach, res ipsa
loquitur is not a special rule of substantive Law; that
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. Looked at from this angle,
the phrase (as Lord Justice Kennedy put it(3) 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 thing which is complained of."
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
107
by negligent or rash act. The primary reasons for non-
application of this abstract doctrine of res ipsa loquitur
to criminal trials are: Firstly, in a criminal trial, the
burden of proving everything essential to the establishment
of the charge against the accused always rests on the
prosecution, as every man is presumed to be innocent. Until
the contrary is proved, and criminality is never to be
presumed subject to statutory exception. No such statutory
exception has been made by requiring the drawing of a
mandatory presumption of negligence against the accused
where the accident "tells its own story" of negligence of
somebody. Secondly, there is a marked difference as to the
effect of evidence, viz. the proof in civil and criminal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
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(1),
"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".
However, shorn of its doctrinaire features, understood
in the broad, general sense, as by the other line of
decisions, only as a convenient ratiocinative aid in
assessment of evidence, in drawing permissive inferences
under section 114, Evidence Act, from the circumstances of
the particular case, including the constituent circumstances
of the accident, established in evidence, with a view to
come to a conclusion at the time of judgment whether or not,
in favour of the alleged negligence (among other ingredients
of the offence with which the accused stands charged), such
a high degree of probability, as distinguished from a mere
possibility has been established which will convince
reasonable men with regard to the existence of that fact
beyond reasonable doubt. Such harnessed, functional use of
the maxim will not conflict with the provisions and the
principles of the Evidence Act relating to the burden of
proof and other cognate matters, peculiar to criminal
jurisprudence.
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
108
satisfaction of which is essential before an accused can be
convicted on the basis of circumstantial evidence alone.
Those 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.
Let us now see whether the appellant, in the instant
case, could with the aid of res ipsa, as explained and
described in the preceding paragraph, be held guilty of
causing death by negligent or rash driving. The primary
reason given by the courts below for invoking the maxim is
that the appellant had swerved the bus to the extreme right
side of the road, where the unfortunate child, who came
running from the left side of the road, struck against the
bus and was fatally knocked down by its left front wheel.
In our opinion, this circumstance of taking the vehicle
suddenly to the extreme right of the road, did not bespeak
negligence or dereliction of duty to exercise due care and
control, on the part of the accused in clear and unambiguous
voice. Nor could it be said, that the cause of swerving the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
vehicle to the right, was unknown. The accused gave a
reasonably convincing explanation of his conduct in doing
so, and his version was fully supported by four prosecution
witnesses who had seen the occurrence. In these
circumstances, the maxim res ipsa loquitur could have no
manner of application.
The picture of the occurrence that can be gathered and
pieced together from the statement of the accused recorded
under section 313, Criminal Procedure Code, and the
testimony of the eyewitnesses, is that when the mother was
about to cross the road, she firmly told the child who was
following her at some distance, not to follow her, but to
return home. The child it seems, stopped for a moment in the
road, probably on its left side, while the mother went
ahead, crossed the road and descended into the deep ditch on
the other side from where, according to her own admission,
she could not see the bus approaching the scene of
occurrence. The child was, it seems, for the moment
undecided as to whether it should go back or go forward
after the mother, and then ran or was poised to run onwards
the right of the road. It was just at this juncture the
accused, who according to the passenger-witnesses was
driving the vehicle slowly, suddenly saw
109
the child a short distance ahead of the bus, in the road. In
that situation, it was extremely difficult, even for a
cautious and skilled driver in the position of the accused,
to foresee and judge with accuracy as to whether the child
would go back to the left or shoot forward to the right side
of the road. In that split second he had to decide about the
better course to be adopted to avoid a collision with the
child. Whether it was better to swerve the vehicle to the
extreme left or to the extreme right side of the road, that
was the question for his instant decision. It was in
evidence that the metalled road there was hardly 12 feet in
width, and there were very deep ditches on both sides of the
road. Since the child was at that critical moment,
initially, in the road more towards the left-side, the
accused might have thought that if he tried to run past the
child from the extreme left, there was every risk of the bus
rolling down into the ditch. He therefore, thought that the
best way to avoid the ditches and to avoid the collision and
forestall the move of the child would be to steer the
vehicle to the extreme right side, and thus pass and dodge
the child by a parabolic manouver. But there was a limit to
it. He could not, without incurring far greater risk of harm
to many in the bus, take the vehicle off-course further to
the right, beyond the point he did. It was in evidence (Vide
PW 5) that there was a very deep ditch on the right of the
road, close to the scene of the accident, and that if the
bus had gone further towards that side, it would have met
with disaster of a far bigger magnitude, resulting in death
or injury to the passengers and damage to the vehicle.
Unfortunately, his calculations went wrong and he failed in
his attempt to avoid the accident.
It was thus evident that the accident happened due to
an error of judgment, and not negligence or want of driving
skill on the part of the accused. An error of judgment of
the kind, such as the one in the instant case, which comes
to light only on post-accident reflection, but could not be
foreseen by the accused in that fragmented moment before the
accident, is not a sure index of negligence, particularly,
when in taking and executing that decision the accused was
acting with the knowledge and in the belief that this was
the best course to be adopted in the circumstances for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
everyone’s safety.
In Horabin v. British Overseas Airways Corporation(1)
the Court was required to consider, more or less an
analogous question, namely: whether an act done contrary to
instructions or standards, necessarily constitutes willful
misconduct on the part of the person doing the act. Borry J.
answered this question in the negative, with the following
observations:
110
"The mere fact that an act was done contrary to a plan
or to instructions, or even to the standards of safe-flying,
to the knowledge of the person doing it, does not establish
willful misconduct on his part, unless it is shown that he
knew that he was doing something contrary to the best
interests of the passengers and of his employers or
involving them in a greater risk than if he had not done it.
A grave error of judgment, particularly one apparent as such
in the light of after events, is not willful misconduct if
the person responsible thought he was acting in the best
interest of the passengers and of the aircraft."
(Emphasis supplied)
Though Horabin was a case arising out of an aircraft
accident and the observations extracted above were made in
the context of an allegation of ’willful misconduct’, yet
the reasoning employed and the principle enunciated,
particularly in the last sentence which has now been
underlined are applicable to the facts of the case before
us. The ’willful misconduct’ or ’willful default’ in issue
in Horabin’s case was not very different from a change of
negligence, because ’negligence’ has two meanings in the law
of tort: it may mean either a mental element which is to be
inferred from one of the modes in which some torts are
committed, or it may mean an independent tort which consists
of breach of a legal duty to take care which results in
damage, undesired by the defendant." (See Earl Jowitt’s
Dictionary of England Law)
As in Horabin, here also, the accused had swerved the
vehicle to the extreme right side of the road, not only to
avoid collision with the ill-fated child but also to avoid
the risk of the vehicle falling into deep ditches on either
side of the road, with the resultant possibility of far
greater harm to the passengers in the bus.
After going through the English translation of the
evidence of the witnesses, furnished by the counsel and
closely analysing the happening and its circumstances in the
light of arguments advanced on both side, we are of opinion
that the prosecution had failed to prove beyond reasonable
doubt that the appellant had caused the death of the child
by negligent or rash driving. All happened in fraction of a
moment; and even if the worst was assumed against the
appellant, the highest that could be said was that a
misjudgment on his part too slight to be branded as culpable
negligence, could well account for the accident resulting in
the death of the child.
These, then, are the reasons which we give in support
of our Order by which we had allowed Syad Akbar’s appeal and
acquitted him.
P.B.R. Appeal allowed.
111