RAVI KAPUR Vs STATE OF RAJASTHAN
Bench: SWATANTER KUMAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001838-001838 / 2009
Diary number: 35080 / 2008
Advocates: SHANKAR DIVATE Vs
PRAGATI NEEKHRA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1838 OF 2009
Ravi Kapur … Appellant
Versus
State of Rajasthan … Respondent
J U D G M E N T
Swatanter Kumar, J .
1. The present appeal is directed against the judgment of the
High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur,
dated 12th August, 2008.
2. The facts giving rise to the present appeal in brief are :
One Sukhdev Singh, PW2, had informed and made a
statement, parcha bayan, Ex.P2, to the police at the police station
M.I.A. Alwar on 20th April, 1991 stating that at about 9.15 a.m.
on that very day, he was going in a jeep to Govindgarh from Alwar
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to attend the marriage of his brother-in-law, Joga Singh. When
they reached Baggad Tiraya, one jeep bearing no. RNA-638 was
also going ahead of his jeep and in the said jeep, his wife, Chet
Kaur, daughter Rinki, father-in-law, Lahori Singh, mother-in-law,
Gita and paternal uncle father-in-law (Fufi sasur) Niranjan Singh
and his wife Kailashwati and his brother-in-law Multan Singh and
his son Tinku were travelling. A maruti car was also going ahead
of them. Bus No. RNA 339 was coming from Baggad Tiraya side
at a very high speed. The driver of the Maruti car immediately
turned his car to one side to save himself and the bus crashed
into the jeep bearing no. RNA-638. As a result of this fatal
accident, Chet Kaur, Rinki, Geeta and the jeep driver died on the
spot. The condition of the other occupants of the jeep,
particularly Lahori Singh, Niranjan Singh, Kailashwanti and
Tinku was very critical and they were admitted to the hospital
where they later died. According to this witness, the bus was
being driven by Ravi Kapur who took the bus towards large pits
in the agricultural fields and after parking the bus there, he ran
away from the spot.
3. On the basis of Ex.P2, a case under Section 304-A of the
Indian Penal Code, 1860 (for short, the ‘IPC’) was registered
against the accused Ravi Kapur. The Investigating Officer, PW11,
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conducted the investigation, prepared the site plan, Ex.P3, and
recorded the statement of various witnesses. A chargesheet
[report under Section 173 of the Code of Criminal Procedure,
1973 (for short the ‘Cr.P.C.’)] was filed against the accused under
Sections 279, 337, 338 and 304-A IPC. The court framed charges
against the accused and he was put to trial.
4. The prosecution examined as many as 11 witnesses
including four eye-witnesses, doctors and the Investigating Officer
himself. Upon closing of the case of the prosecution, all the
incriminating evidence against the accused was put before him
and his statement under Section 313 of the Cr.P.C. was recorded
wherein he took the stand of complete denial and stated that the
case of the prosecution was false. The trial court, vide its
judgment dated 11th May, 2006, held that the prosecution has not
been able to prove its case beyond reasonable doubt and the
accused was entitled to an order of acquittal. Consequently, the
Court acquitted the accused Ravi Kapur of all the above-
mentioned charges. At this stage itself, we may refer to the
relevant extract of the judgment of the trial court, which is the
reasoning for acquitting the accused:
“Now only 3 witnesses remain to be considered in the instant case, viz., P.W.2- Sukhdev Singh; P.W.4-Multan Singh and
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P.W.11-Sohan Lal who is the investigating officer. The Court has to consider testimonies adduced by these witnesses and has to see whether it is proved from the statements of these witnesses that accused was driving the bus rashly and negligently and hit the jeep or not and whether accused Ravi Kapur was driving the said bus no.RNA- 339 at the time of the accident or not? In this regard, P.W.2-Sukhdev Singh who is also the person who lodged first information report has stated in his parcha statement Ex.P2 (sic) that one Maruti Van was gone ahead of jeep which had met with the accident and his jeep was behind the said jeep involved in accident. All these three vehicles were on one side of the road and were at a distance of 20 Ft. from each other. One bus came no. RNA-339 towards them near Bagar tiraha and this bus was driven rashly and negligently and directly hit the jeep. However, the Maruti car which was ahead of accident jeep and the jeep in which he was travelling and which was behind the accident jeep, escaped in the said accident by bus. Both these vehicles swerved towards kuchha side of the road. This witness has mentioned in his first information report that driver of the Bus no.RNA-339 hit the jeep with intention to kill the persons travelling in the accidented jeep. He has further stated that he identified the driver of the bus and he was accused Ravi Kapur. He was identified by the passers-by also and they also disclosed his name. Therefore, now this Court has to see whether facts disclosed by this witness in his parcha statement – first information report, stand fully proved or not? Conclusion which can be drawn from perusal of examination in chief of this witness is that this witness has stated in statement before court that Maruti car was ahead of all and the jeep in which he was sitting was behind the Maruti car and the jeep which met with
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the accident was in behind (sic) the above vehicles. Therefore, in the circumstances there is contradiction in the statements of this witness given by him in his parcha statement and in court with regard to fact as to whether the accidented jeep was in front or rear of the aforesaid vehicles. In his statement in court he states that the jeep in which he was sitting was behind the accidented jeep and he himself was sitting behind driver’s seat. Therefore, in such circumstances it cannot be safely accepted that this witness has actually seen the accident. Because there are material self- contradictions regarding the fact as to whether the jeep of this witness was ahead or behind the accidented jeep….
…In the circumstances it is not clear from the statements of this witness whether driver of the bus was negligent, what was the speed of the bus and accidented jeep was in its right side of the road. This witness also states that there was one jeep and a maruti car ahead the accidented jeep, but drivers of both these vehicles saved their vehicles from the bus and therefore the bus hit the jeep in which this witness was sitting. Court has to see that if driver of the bus was actually driving the bus rashly and negligently, then why he did not collide with the jeep and maruti car which were plying ahead the accidented jeep and why it collided with the accidented jeep. The court has also to consider whether the accident was due to over-taking of the jeep by the driver of the jeep. Because witnesses who appeared on behalf of prosecution have stated that right side of bus suffered moch. But prosecution has not filed any mechanical expert report nor has produced any expert witness in this regard which could have proved that the bus actually hit the jeep from front. It is also not clear whether any loss was caused to bus in
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front or not. Conclusion which can be drawn out from perusal of statement made by P.W.11-Sohan Lal/investigating officer in his cross examination, is that accident took place at a place where there was a turn/crossing on road and therefore both the drivers of the bus as well as jeep ought to have been careful and cautious. Moreover it is also not clear from statement of this witness that the bus had actually collided with the front portion of jeep. He has stated that accident could have been caused due to over-taking of the middle vehicle. Whereas this witness ought to have been proved that the accident is a head-on collision between bus and jeep. Apart from this, this witness did not conduct identification proceedings of the accused because the persons present at the spot had told him that Ravi Kapur is the accused and he is the owner and driver of the bus. This witness has not clarified as to why he did not send any notice under Section 133 of M.V. Act to the owner of vehicle. Therefore, in these circumstances, it is apparent from statements of this witness that neither notice under Section 133 of M.V.Act was given to owner of the bus nor identification proceedings of accused were held. Although persons at the spot had told that Ravi Kapur was driver of the bus, but prosecution has not produced and examined any such independent witness who was present at the spot at the time of this accident who could have explained that Ravi Kapur was driving the bus no. RNA-339. Infact prosecution ought to have recorded the statements of eye witnesses and produced them in court which could have corroborated statement of P.W.2-Sukhdev that Ravi Kapur was driving Bus No.RNA-339 at the time of accident and also the identification proceedings of accused were very necessary because both the witnesses who have been produced by prosecution, have not identified
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accused Ravi Kapur or that the accident was caused to rash and negligent driver of the bus by Ravi Kapur. One of the witness has stated that he saw the driver running away from the spot, but he has not stated that he saw the driver of the bus hitting the jeep. Notice under Section 133 of the M.V. Act was very necessary which could have proved that Ravi Kapur was actually driving the bus no.RNA-339 at the time of accident. Moreover, none of the prosecution witnesses have explained that the bus was being driven rashly and negligently….”
5. The above findings recorded by the trial court were reversed
by the High Court, which set aside the judgment of acquittal.
Upon appreciating the evidence, the High Court, vide its judgment
dated 12th August, 2008, came to the conclusion that the
judgment of the trial court was incorrect and while particularly
dealing with the issue of grant of notice under Section 133 of the
Motor Vehicles Act, 1988 (for short, ‘the Act’), the Court held as
under :
“Now so far as notice under section 133 of the Motor Vehicles Act was concerned which was not served upon the owner, because the statement of PW.2 Sukh Dev Singh, Multhan Singh P.W.4 stated that the accused respondent was the driver and they have identified him on the spot as well as in the court also. In such situation, service of notice under section 133 of the Motor Vehicle upon the owner has no relevancy. As such, in the light of the statement of PW.2 Sukh Dev Singh and P.W.4 Multhan Singh no identification parade is necessary. The FIR
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Ex.P.1 shows that the name of the accused respondent has already mentioned.”
6. The High Court convicted the accused under Section 304-A
IPC and awarded him simple imprisonment for two years with
fine of Rs.5000/-, in default of payment of fine, to undergo
further imprisonment of six months. The Court also convicted
the accused for offences under Sections 279 and 337 of the IPC,
awarding him six months simple imprisonment with fine of
Rs.1000/-, in default of payment of fine to undergo one month
simple imprisonment and one month simple imprisonment with
fine of Rs.500/-, in default of payment of fine to undergo 15 days
rigorous imprisonment, respectively. Aggrieved from the judgment
of conviction and order of sentence passed by the High Court, the
present Special Leave Petition has been filed.
7. Mr. Patwalia, learned senior advocate appearing for the
appellant, while raising a challenge to the judgment of the High
Court, has prayed that the judgment of acquittal recorded by the
Trial Court be restored and the judgment of the High Court be set
aside. The learned counsel has raised the following submissions:
(a) It is a settled principle of law that the Appellate Court
should normally not interfere with the judgment of
acquittal unless it is perverse and contrary to the evidence
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on record. The scope of an appeal against an order of
acquittal is very limited and the High Court, in the present
case, has exceeded its jurisdiction in reversing the
judgment of acquittal passed by the Trial Court.
(b) There is no evidence on record to identify or link the
accused with the commission of the offence, i.e., whether or
not he was driving the said vehicle. In fact, according to
the counsel, there is no direct evidence to show that the
accused Ravi Kapur was driving the bus involved in the
accident.
(c) Even if it is presumed that the accused was the person
driving the bus at the relevant time, still there is no
evidence to prove that he drove the bus rashly and
negligently.
In absence of any evidence on these two counts, the
appellant is entitled to acquittal.
8. While refuting the above-said arguments, the learned
counsel appearing for the State has contended that there are eye-
witnesses to the occurrence who have categorically stated the
entire incident. After the case had been remanded by the Court
of Special Judge, by order dated 28th October, 1999, in regard to
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the issue of non-holding the test identification parade and non-
examination of the doctor, the Trial Court had disturbed its own
earlier judgment of conviction dated 24th June, 1999 vide its
above-mentioned judgment dated 11th May, 2006. This
subsequent judgment of the Trial Court was challenged before the
High Court. The High Court reversed the judgment of acquittal to
that of conviction. This itself shows that there were apparent
errors and complete lack of proper appreciation of evidence in the
later judgment of the Trial Court. Therefore, that judgment
should not be restored by this Court. According to him, the
statements of PW2, PW4 and PW11 clearly establish the case of
rash and negligent driving by the accused. There is no material
contradiction between the statements of the witnesses and the
parcha statement, etc. The judgment of the High Court does not
call for any interference by this Court.
9. Firstly, we would discuss the last contention raised on
behalf of the appellant, as it relates to appreciation of evidence by
this Court, particularly keeping in view the fact that the
impugned judgment is a judgment of reversal against the
judgment of acquittal.
10. In order to examine the merit or otherwise of contentions (b)
and (c) raised on behalf of the appellant, it is necessary for the
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Court to first and foremost examine (a) what is rash and negligent
driving; and (b) whether it can be gathered from the attendant
circumstances. Rash and negligent driving has to be examined in
light of the facts and circumstances of a given case. It is a fact
incapable of being construed or seen in isolation. It must be
examined in light of the attendant circumstances. A person who
drives a vehicle on the road is liable to be held responsible for the
act as well as for the result. It may not be always possible to
determine with reference to the speed of a vehicle whether a
person was driving rashly and negligently. Both these acts
presuppose an abnormal conduct. Even when one is driving a
vehicle at a slow speed but recklessly and negligently, it would
amount to ‘rash and negligent driving’ within the meaning of the
language of Section 279 IPC. That is why the legislature in its
wisdom has used the words ‘manner so rash or negligent as to
endanger human life’. The preliminary conditions, thus, are that
(a) it is the manner in which the vehicle is driven; (b) it be driven
either rashly or negligently; and (c) such rash or negligent driving
should be such as to endanger human life. Once these
ingredients are satisfied, the penalty contemplated under Section
279 IPC is attracted.
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11. ‘Negligence’ means omission to do something which a
reasonable and prudent person guided by the considerations
which ordinarily regulate human affairs would do or doing
something which a prudent and reasonable person guided by
similar considerations would not do. Negligence is not an
absolute term but is a relative one; it is rather a comparative
term. It is difficult to state with precision any mathematically
exact formula by which negligence or lack of it can be infallibly
measured in a given case. Whether there exists negligence per se
or the course of conduct amounts to negligence will normally
depend upon the attending and surrounding facts and
circumstances which have to be taken into consideration by the
Court. In a given case, even not doing what one was ought to do
can constitute negligence.
12. The Court has to adopt another parameter, i.e., ‘reasonable
care’ in determining the question of negligence or contributory
negligence. The doctrine of reasonable care imposes an obligation
or a duty upon a person (for example a driver) to care for the
pedestrian on the road and this duty attains a higher degree
when the pedestrian happen to be children of tender years. It is
axiomatic to say that while driving a vehicle on a public way,
there is an implicit duty cast on the drivers to see that their
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driving does not endanger the life of the right users of the road,
may be either vehicular users or pedestrians. They are expected
to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in
such cases is the doctrine of res ipsa loquitur. This doctrine
serves two purposes – one that an accident may by its nature be
more consistent with its being caused by negligence for which the
opposite party is responsible than by any other causes and that
in such a case, the mere fact of the accident is prima facie
evidence of such negligence. Secondly, it is to avoid hardship in
cases where the claimant is able to prove the accident but cannot
prove how the accident occurred. The courts have also applied
the principle of res ipsa loquitur in cases where no direct evidence
was brought on record. The Act itself contains a provision which
concerns with the consequences of driving dangerously alike the
provision in the IPC that the vehicle is driven in a manner
dangerous to public life. Where a person does such an offence he
is punished as per the provisions of Section 184 of the Act. The
courts have also taken the concept of ‘culpable rashness’ and
‘culpable negligence’ into consideration in cases of road accidents.
‘Culpable rashness’ is acting with the consciousness that
mischievous and illegal consequences may follow but with the
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hope that they will not and often with the belief that the actor has
taken sufficient precautions to prevent their happening. The
imputability arises from acting despite consciousness (luxuria).
‘Culpable negligence’ is acting without the consciousness that the
illegal and mischievous effect will follow, but in circumstances
which show that the actor has not exercised the caution
incumbent upon him and that if he had, he would have had the
consciousness. The imputability arises from the neglect of civic
duty of circumspection. In such a case the mere fact of accident
is prima facie evidence of such negligence. This maxim suggests
that on the circumstances of a given case the res speaks and is
eloquent because the facts stand unexplained, with the result
that the natural and reasonable inference from the facts, not a
conjectural inference, shows that the act is attributable to some
person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An
Exhaustive Commentary on Motor Vehicles Act, 1988’ (First Edition,
2010].
14. We have noticed these principles in order to examine the
questions raised in the present case in their correct perspective.
We may notice that certain doctrines falling in the realm of
accidental civil or tortuous jurisprudence, are quite applicable to
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the cases falling under criminal jurisprudence like the present
one.
15. Now, we may refer to some judgments of this Court which
would provide guidance for determinatively answering such
questions. In the case of Alister Anthony Pareira v. State of
Maharashtra [(2012) 2 SCC 648] where the driver of a vehicle was
driving the vehicle at a high speed at late hours of the night in a
drunken state and killed seven labourers sleeping on the
pavement, injuring other eight, this Court dismissing the appeal,
laid down the tests to determine criminal culpability on the basis
of ‘knowledge’, as follows :
“41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result . As a matter of law—in view of the provisions of IPC—the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.”
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16. Again, in the case of Naresh Giri v. State of M.P. [(2008) 1
SCC 791], where a train had hit a bus being driven by the
appellant at the railway crossing and the bus was badly damaged
and two persons died, this Court, while altering the charges from
Section 302 IPC to Section 304-A IPC, observed :
“7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes
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punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows:
“1. General principles of the law of negligence.—Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in
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the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.”
13. According to the dictionary meaning “reckless” means “careless”, regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it.”
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17. In the case of Mohd. Aynuddin alias Miyam v. State of A.P.
[(2000) 7 SCC 72], wherein the appellant was driving a bus and
while a passenger was boarding the bus, the bus was driven
which resulted in the fall of the passenger and the rear wheel of
the bus ran over the passenger. This Court, drawing the
distinction between a rash act and a negligent act held that it was
culpable rashness and criminal negligence and held as under :
“7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.
9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.”
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18. In light of the above, now we have to examine if negligence in
the case of an accident can be gathered from the attendant
circumstances. We have already held that the doctrine of res ipsa
loquitur is equally applicable to the cases of accident and not
merely to the civil jurisprudence. Thus, these principles can
equally be extended to criminal cases provided the attendant
circumstances and basic facts are proved. It may also be noticed
that either the accident must be proved by proper and cogent
evidence or it should be an admitted fact before this principle can
be applied. This doctrine comes to aid at a subsequent stage
where it is not clear as to how and due to whose negligence the
accident occurred. The factum of accident having been
established, the Court with the aid of proper evidence may take
assistance of the attendant circumstances and apply the doctrine
of res ipsa loquitur. The mere fact of occurrence of an accident
does not necessarily imply that it must be owed to someone’s
negligence. In cases where negligence is the primary cause, it
may not always be that direct evidence to prove it exists. In such
cases, the circumstantial evidence may be adduced to prove
negligence. Circumstantial evidence consists of facts that
necessarily point to negligence as a logical conclusion rather than
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providing an outright demonstration thereof. Elements of this
doctrine may be stated as :
The event would not have occurred but for someone’s
negligence.
The evidence on record rules out the possibility that
actions of the victim or some third party could be the
reason behind the event.
Accused was negligent and owed a duty of care towards
the victim.
19. In the case of Thakur Singh v. State of Punjab [(2003) 9 SCC
208], the petitioner drove a bus rashly and negligently with 41
passangers and while crossing a bridge, the bus fell into the
nearby canal resulting in death of all the passengers. The Court
applied the doctrine of res ipsa loquitur since admittedly the
petitioner was driving the bus at the relevant time and it was
going over the bridge when it fell down. The Court held as under:
“4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did
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not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.”
20. Still, in the case of Mohd. Aynuddin (supra), this Court has
also stated the principle :
“8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.”
21. It has also been stated that the effect of this maxim,
however, depends upon the cogency of the inferences to be drawn
and must, therefore, vary in each case. In light of these
principles, let us examine the facts of the present case and the
evidence on record. The contention raised is that there is not
even an iota of evidence to show that either the accused was
driving the vehicle or, as alleged, he was driving the same rashly
and negligently. The concerned police officer had recorded
‘Parcha statement’ (Exhibit P2) of Sukhdev, who in Court was
examined as PW2. In furtherance to this statement, a First
Information Report (FIR) was registered. It was stated in this
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document that on 20th April, 1991, Sukhdev was going from Alwar
to Govindgarh sitting in the jeep to attend the marriage of his
brother-in-law. It was at about 9.15 a.m. when they reached near
crossing of Bagad Tiraya, ahead of that jeep was one jeep RNA
638 in which his wife and other family members were travelling.
One more Maruti van was running ahead of that jeep. A bus RNA
339 was approaching in fast speed from the side of Baggad.
Maruti van which having saved itself took to the side and the
driver of the Bus with an intention to kill the passengers collided
with the jeep RNA 638. Chet Kaur, Rinki, Geeta and the driver
died at the spot and the condition of the rest, i.e., Niranjan Singh,
Lahori Singh, Kailash, Vainto and Tinku was serious. They were
admitted to hospital. At the time of the accident, the bus was
being driven by Ravi Kumar (Kapur) who was identified by the
passersby who told his name to Sukhdev. Along with him, others
sitting in the jeep also identified the bus driver. The driver parked
the vehicle beneath the pit on the road and fled away. Upon his
examination as PW2, this witness stated that the Maruti van got
down on the kachha road side and even their own jeep was pulled
to the kachha side but the third jeep collided with the bus from
the front side. He identified that the accused person in the Court
was driving the bus himself and confirmed his statement in
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parcha bayan (statement), Exhibit P2. He was subjected to a
detailed cross-examination in which he admitted that he did not
see the bus driver while sitting in the jeep, though he had seen
the accused while the accused was getting down from the bus and
that this fact was not in his statement (Exhibit P2) because he did
not remember. The passersby had told him the name of the
driver which was recorded in Exhibit P2. He stated that Exhibit
P3, the site plan, was not prepared in his presence and his
signatures were obtained in the hospital.
22. PW1, Ms. Sheela Gupta, stated that Joga Singh and relatives
were going in another vehicle ahead of the vehicle in which she
was travelling. It collided with the bus. She was unconscious and
she did not see anybody or the driver of the bus.
23. PW3, Subhash Chawla, in his examination, admitted the
accident but stated that he did not know the name of the driver of
the bus and also that the jeep behind him was giving horns and
as soon as the jeep in the middle reached the accident took place.
He was declared hostile.
24. PW4, Multan Singh, has also similarly stated the facts
leading to the accident. He stated that he was sitting in the
second jeep. According to him, the bus came with speed from the
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side of Delhi road. It was a private bus and it hit the jeep. The
bus was coming on the wrong side and it hit the front of the jeep.
He also got injuries on his head and back. When he got down
and stood, he saw the driver running away. Though he was
injured, he claims to have seen the driver and confirmed that the
said driver was present in Court and identified the accused. In
his cross-examination, he stated that on collision, he heard sound
like cracker burst.
25. PW11, Sohan Lal, is the investigating officer who confirmed
having written the ‘parcha statement’ in furtherance to which he
proceeded to the site and thereafter recorded the FIR No.119/91
under Section 304 IPC. He prepared the site plan, Exhibit
P29/P3 of the place of occurrence, prepared inquest reports and
seized bus No.RNA 339 vide seizure memo Exhibit P31 and the
jeep vide seizure memo Exhibit P32. In his cross-examination, he
admitted that the place of occurrence was a turn around. He did
not remember whether the jeep hit the front of the bus and it was
not recorded in Exhibit P32 as to which portion of the jeep hit the
bus. He stated, “I don’t know whether driver Ravi Kapur was
present at the spot or not. I don’t know whether the bus
passengers were there or not. But bus was there. I tried to
inquire from the passengers but they had already left. Test
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identification of accused was not got done from the injured
because all the people present at the spot had already told me
about the accused”.
26. According to the learned counsel appearing for the appellant,
there are contradictions in the statements of these witnesses and
the site plan Exhibit P29/P3 does not exhibit any negligence on
behalf of the appellant. The appellant was not driving the vehicle
involved in the accident and as such he is entitled to acquittal.
27. We are not impressed with this contention. Firstly, the bus
was seized vide seizure memo Exhibit P31 and was later on given
on superdari to the owner of the bus, i.e., the accused. This bus
was certainly involved in the accident, in fact, there is no serious
dispute before us that the accident between the jeep RNA 638 and
the bus RNA 339 took place at the place of occurrence. If one
examines Exhibit P29/P3, it is clear that it was a narrow road
which was about 18 ft. in width and the accident had occurred at
a turning point of the road. The accident took place at point 8.
The jeep in which number of people died remained stationed at or
around point XA while the point 8 shows mud divider (dam-
bandh), the accident had taken place at point 1 and point 8 where
the bus was parked was at a distance which clearly show that the
bus had been moved after the accident. Applying the principle of
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res ipsa loquitur, it can safely be inferred that it was a serious
accident that occurred at a turning point in which number of
people had died. After the accident, the bus driver moved the bus
away to a different point. If what is submitted on behalf of the
appellant had even an iota of truth in it, the most appropriate
conduct of the bus driver would have been to leave the vehicle at
the place of accident to show that he was on the extreme left side
of the road (his proper side for driving) and the jeep which was
trying to overtake the other vehicle had come on the wrong side of
the road resulting in the accident. This would have been a very
material circumstance and relevant conduct of the driver.
28. All the witnesses, PW1, PW2 and PW4, have so stated.
There is consistency in the statement of the witnesses that the
accused was driving the vehicle and after parking the vehicle at a
place away from the place of occurrence, he had run away. We
have no reason to disbelieve the statements of these witnesses
which are fully supported by the documentary evidence, Exhibit
P2, to which there was hardly any challenge during the cross-
examination of PW11. We are unable to notice any serious or
material contradiction in the statements of the prosecution
witnesses much less in Exhibit P2, the parcha statement of PW2.
Minor variations are bound to occur in the statements of the
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witnesses when their statements are recorded after a considerable
lapse from the date of occurrence. The Court can also not ignore
the fact that these witnesses are not very educated persons. The
truthfulness of the witnesses is also demonstrated from the fact
that PW1, even in her examination-in-chief, stated that she was
unconscious and did not see the driver. Nothing prevented her
from making a statement that she had actually seen the accused.
Thus, we have no hesitation in holding that the three witnesses,
i.e., PW1, PW2 and PW4 have given a correct eye account of the
accident. We find their statements worthy of credence and there
is no occasion for the Court to disbelieve these witnesses. It is a
settled principle that the variations in the statements of witnesses
which are neither material nor serious enough to affect the case of
the prosecution adversely are to be ignored by the courts. {Ref.
State v. Saravanan and Anr. [(2008) 17 SCC 587]; and Sunil
Kumar Sambhudayal Gupta v. State of Maharasthtra [(2010 13
SCC 657]}. It is also a settled principle that statements of the
witnesses have to be read as a whole and the Court should not
pick up a sentence in isolation from the entire statement and
ignoring its proper reference, use the same against or in favour of
a party. The contradictions have to be material and substantial
so as to adversely affect the case of the prosecution. Reference in
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this regard can be made to Atmaram & Ors. v. State of Madhya
Pradesh [(2012) 5 SCC 738].
29. In the case of Nageshwar Shri Krishna Ghobe v. State of
Maharasthra [(1973) 4 SCC 23], this Court observed that the
statements of the witnesses who met with an accident while
travelling in a vehicle or those of the people who were travelling in
the vehicle driven nearby should be taken and understood in their
correct perspective as it is not necessary that the occupants of the
vehicle should be looking in the same direction. They might have
been attracted only by the noise or the disturbance caused by the
actual impact resulting from the accident itself. The Court held
as under :
“6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom — and it is only a matter of coincidence — that a person may already be looking in the
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direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.”
30. The learned counsel for the appellant, while relying upon the
judgment of this Court in the case of Mulla & Anr. v. State of Uttar
Pradesh [(2010) 3 SCC 508] and Amit v. State of Uttar Pradesh
[(2012) 4 SCC 107], argued that none of the witnesses had
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actually seen the accused driving the vehicle and, therefore, in
absence of the test identification parade, it has to be held that the
accused was not driving the vehicle and that he was not
identified. In the case of Mulla (supra), relied upon by the learned
counsel, the Court had observed that it is desirable that a test
identification parade should be conducted as soon as possible
after the arrest of the accused to avoid any mistake on the part of
the witnesses.
31. On the other hand, to contra this submission, the learned
counsel appearing for the State relied on the judgment of this
Court in the case of Myladimmal Surendran & Ors. v. State of
Kerala [(2010) 11 SCC 129] to say that the test identification
parade in the facts and circumstances of the case was not
necessary and in any case no prejudice has been caused to the
accused and holding of test identification parade is not always
necessary.
32. In the present case, the accused had been seen by PW2 and
PW4. In addition, they had also stated that the passersby had
informed them that the accused was driving the bus and, in fact,
he was the owner of the bus. One fact of this statement is
established that the bus in question was given on superdari to the
accused. It is also stated by these persons that after they had
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seen the accused, he had run away from the place where he
parked the vehicle. These witnesses also identified the accused in
the Court. It is not the case of the accused before us that he had
been shown to the witnesses prior to his being identified in the
Court. The Court identification itself is a good identification in the
eyes of law. It is not always necessary that it must be preceded
by the test identification parade. It will always depend upon the
facts and circumstances of a given case. In one case, it may not
even be necessary to hold the test identification parade while in
the other, it may be essential to do so. Thus, no straightjacket
formula can be stated in this regard. We may refer to a judgment
of this Court in the case of Shyamal Ghosh v. State of West Bengal
[2012 (6) SCALE 381] wherein this Court has held that the Code
of Criminal Procedure, 1973 (for short “Cr.P.C.) does not oblige
the investigating agency to necessarily hold the test identification
parade without exception. The Court held as under :
“55. On behalf of accused Shyamal, it was also contended that despite the identification parade being held, he was not identified by the witnesses and also that the identification parade had been held after undue delay and even when details about the incident had already been telecasted on the television. Thus, the Court should not rely upon the identification of the accused persons as the persons involved in the commission of the
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crime and they should be given the benefit of doubt.
56. The whole idea of a Test Identification Parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
57. It is equally correct that the CrPC does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P.[(2005) 9 SCC 631], Sheo Shankar Singh v State of Jharkhand and Anr. [(2011) 3 SCC 654].
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58. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.”
33. In our considered view, it was not necessary to hold the test
identification parade of the appellant for two reasons. Firstly, the
appellant was already known to the passersby who had recognized
him while driving the bus and had stated his name and, secondly,
he was duly seen, though for a short but reasonable period, when
after parking the bus, he got down from the bus and ran away.
34. Equally without merit is the contention on behalf of the
appellant that the Court should draw adverse inference against
the prosecution as the investigating officer did not serve notice
under Section 133 of the Act upon the owner of the vehicle. The
High Court has rightly rejected this contention on the basis that
the driver of the vehicle was identified at the place of occurrence
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and even passersby had informed the prosecution witnesses that
the driver, Ravi Kapur, was the owner of the vehicle. The name of
the accused was duly recorded in the FIR itself. This fact
remained undisputed. With some emphasis, it was even argued
before us that he was not driving the vehicle, though it was not
disputed that he is the registered owner of the vehicle in question.
If that be so, when the statement of the accused under Section
313 of the Cr.P.C. was recorded by the Trial Court, except denial,
he did not state anything further. For reasons best known to the
accused, instead of stating as to whom he had given his vehicle
for being driven on that date, he preferred to maintain silence and
denied the case of the prosecution.
35. It is true that the prosecution is required to prove its case
beyond reasonable doubt but the provisions of Section 313
Cr.P.C. are not a mere formality or purposeless. They have a dual
purpose to discharge, firstly, that the entire material parts of the
incriminating evidence should be put to the accused in
accordance with law and, secondly, to provide an opportunity to
the accused to explain his conduct or his version of the case. To
provide this opportunity to the accused is the mandatory duty of
the Court. If the accused deliberately fails to avail this
opportunity, then the consequences in law have to follow,
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particularly when it would be expected of the accused in the
normal course of conduct to disclose certain facts which may be
within his personal knowledge and have a bearing on the case.
36. In our considered view, no prejudice has been caused to the
accused by non-serving of the notice under Section 133 of the Act
and, in any case, the accused cannot take any advantage thereof.
37. Lastly, we may proceed to discuss the first contention raised
on behalf of the accused. No doubt, the Court of appeal would
normally be reluctant to interfere with the judgment of acquittal
but this is not an absolute rule and has a number of well accepted
exceptions. In the case of State of UP v. Banne & Anr. [(2009) 4
SCC 271], the Court held that even the Supreme Court would be
justified in interfering with the judgment of acquittal of the High
Court but only when there are very substantial and compelling
reasons to discard the High Court’s decision. In the case of State
of Haryana v. Shakuntala & Ors. [2012 (4) SCALE 526], this
Court held as under :
“36. The High Court has acquitted some accused while accepting the plea of alibi taken by them. Against the judgment of acquittal, onus is on the prosecution to show that the finding recorded by the High Court is perverse and requires correction by this Court, in exercise of its powers under Article 136 of the Constitution of India. This Court
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has repeatedly held that an appellate Court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to such accused under the fundamental principles of criminal jurisprudence, i.e., that every person shall be presumed to be innocent unless proved guilty before the court and secondly, that a lower court, upon due appreciation of all evidence has found in favour of his innocence. Merely because another view is possible, it would be no reason for this Court to interfere with the order of acquittal.
37. In Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007) 7 SCC 625], this Court held as under:-
“28. Regarding setting aside acquittal by the High Court, the learned Counsel for the appellant relied upon Kunju Muhammed v. State of Kerala (2004) 9 SCC 193, Kashi Ram v. State of M.P. AIR 2001 SC 2902 and Meena v. State of Maharashtra 2000 Cri LJ 2273. In our opinion, the law is well settled. An appeal against acquittal is also an appeal under the Code and an Appellate Court has every power to reappreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the Trial Court. But that is not the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence in
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consonance with the principles of criminal jurisprudence.”
38. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415], this Court held as under:-
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to
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interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
39. In C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC 1], this Court held :-
“6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of
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acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court. (See Bhim Singh Rup Singh v. State of Maharashtra1 and Dharamdeo Singh v. State of Bihar.)”
40. The State has not been able to make out a case of exception to the above settled principles. It was for the State to show that the High Court has completely fallen in error of law or that judgment in relation to these accused was palpably erroneous, perverse or untenable. None of these parameters are satisfied in the appeal preferred by the State against the acquittal of three accused.”
38. In the present case, there are more than sufficient reasons
for the High Court to interfere with the judgment of acquittal
recorded by the Trial Court. Probably, this issue was not even
raised before the High Court and that is why we find that there
are hardly any reasons recorded in the judgment of the High
Court impugned in the present appeal. Be that as it may, it was
not a case of non-availability of evidence or presence of material
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and serious contradictions proving fatal to the case of the
prosecution. There was no plausible reason before the Trial Court
to disbelieve the eye account given by PW2 and PW4 and the
Court could not have ignored the fact that the accused had been
duly identified at the place of occurrence and even in the Court.
The Trial Court has certainly fallen in error of law and
appreciation of evidence. Once the Trial Court has ignored
material piece of evidence and failed to appreciate the prosecution
evidence in its correct perspective, particularly when the
prosecution has proved its case beyond reasonable doubt, then it
would amount to failure of justice. In some cases, such error in
appreciation of evidence may even amount to recording of
perverse finding. We may also notice at the cost of repetition that
the Trial Court had first delivered its judgment on 24th June, 1999
convicting the accused of the offences. However, on appeal, the
matter was remanded on two grounds, i.e., considering the effect
of non-holding of test identification parade and not examining the
doctor. Upon remand, the Trial Court had taken a different view
than what was taken by it earlier and vide judgment dated 11th
May, 2006, it had acquitted the accused. This itself became a
ground for interference by the High Court in the judgment of
acquittal recorded by the Trial Court. From the judgment of the
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Trial Court, there does not appear to be any substantial
discussion on the effect of non-holding of the test identification
parade or the non-examination of the doctor. On the contrary,
the Trial Court passed its judgment on certain assumptions.
None of the witnesses, not even the accused, in his statement,
had stated that the jeep was at a fast speed but still the Trial
Court recorded a finding that the jeep was at a fast speed and was
not being driven properly. The Trial Court also recorded that a
suspicion arises as to whether Ravi Kapur was actually driving
the bus at the time of the accident or not and identification was
very important.
39. We are unable to understand as to how the Trial Court could
ignore the statement of the eye-witnesses, particularly when they
were reliable, trustworthy and gave the most appropriate eye
account of the accident. The judgment of the Trial Court,
therefore, suffered from errors of law and in appreciation of
evidence both. The interference by the High Court with the
judgment of acquittal passed by the Trial Court does not suffer
from any jurisdictional error.
40. For the reasons afore-recorded, we find no merit in the
present appeal. The same is dismissed accordingly.
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………...….…………......................J. (Swatanter Kumar)
………...….…………......................J. (Fakkir Mohamed Ibrahim Kalifulla)
New Delhi, August 16, 2012
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