TaxTMI 
TaxTMI 
2012 (8) TMI 1250
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....-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 'Indian Penal Code') was registered against the accused Ravi Kapur. The Investigating Officer, PW11, conducted the investigation, prepared the site plan, Ex. P3, and recorded the sta....
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....werved towards kuchha side of the road. This witness has mentioned in his first information report that driver of the Bus No. RNA-339 hit the jeep with intention to kill the persons travelling in the accidented jeep. He has further stated that he identified the driver of the bus and he was accused Ravi Kapur. He was identified by the passers-by also and they also disclosed his name. Therefore, now this Court has to see whether facts disclosed by this witness in his parcha statement - first information report, stand fully proved or not? Conclusion which can be drawn from perusal of examination in chief of this witness is that this witness has stated in statement before court that Maruti car was ahead of all and the jeep in which he was sitting was behind the Maruti car and the jeep which met with the accident was in behind (sic) the above vehicles. Therefore, in the circumstances there is contradiction in the statements of this witness given by him in his parcha statement and in court with regard to fact as to whether the accidented jeep was in front or rear of the aforesaid vehicles. In his statement in court he states that the jeep in which he was sitting was behind the accidented....
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....otice Under Section 133 of M.V. Act to the owner of vehicle. Therefore, in these circumstances, it is apparent from statements of this witness that neither notice Under Section 133 of M.V. Act was given to owner of the bus nor identification proceedings of accused were held. Although persons at the spot had told that Ravi Kapur was driver of the bus, but prosecution has not produced and examined any such independent witness who was present at the spot at the time of this accident who could have explained that Ravi Kapur was driving the bus No. RNA-339. Infact prosecution ought to have recorded the statements of eye witnesses and produced them in court which could have corroborated statement of P.W. 2-Sukhdev that Ravi Kapur was driving Bus No. RNA-339 at the time of accident and also the identification proceedings of accused were very necessary because both the witnesses who have been produced by prosecution, have not identified accused Ravi Kapur or that the accident was caused to rash and negligent driver of the bus by Ravi Kapur. One of the witness has stated that he saw the driver running away from the spot, but he has not stated that he saw the driver of the bus hitting the je....
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....be set aside. The Learned Counsel has raised the following submissions: (a) It is a settled principle of law that the Appellate Court should normally not interfere with the judgment of acquittal unless it is perverse and contrary to the evidence on record. The scope of an appeal against an order of acquittal is very limited and the High Court, in the present case, has exceeded its jurisdiction in reversing the judgment of acquittal passed by the Trial Court. (b) There is no evidence on record to identify or link the accused with the commission of the offence, i.e., whether or not he was driving the said vehicle. In fact, according to the Counsel, there is no direct evidence to show that the accused Ravi Kapur was driving the bus involved in the accident. (c) Even if it is presumed that the accused was the person driving the bus at the relevant time, still there is no evidence to prove that he drove the bus rashly and negligently. In absence of any evidence on these two counts, the Appellant is entitled to acquittal. 8. While refuting the above-said arguments, the Learned Counsel appearing for the State has contended that there are eye-witnesses to t....
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....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 Indian Penal Code is attracted. 11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence. 12. The Court has to adopt another parameter, i.e., 'reasonable....
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....ivic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]. 14. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortuous jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one. 15. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In the case of Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state a....
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....cide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this Section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death ....
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....the risk and nevertheless deciding to ignore it. 17. In the case of Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72, wherein the Appellant was driving a bus and while a passenger was boarding the bus, the bus was driven which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act held that it was culpable rashness and criminal negligence and held as under: 7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus. 9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care a....
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.... Court applied the doctrine of res ipsa loquitur since admittedly the Petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under: 4. It is admitted that the Petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part. 20. Still, in the case of Mohd. Aynuddin (supra), this Court has also stated the principle: 8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused in....
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.... was getting down from the bus and that this fact was not in his statement (Exhibit P2) because he did not remember. The passersby had told him the name of the driver which was recorded in Exhibit P2. He stated that Exhibit P3, the site plan, was not prepared in his presence and his signatures were obtained in the hospital. 22. PW1, Ms. Sheela Gupta, stated that Joga Singh and relatives were going in another vehicle ahead of the vehicle in which she was travelling. It collided with the bus. She was unconscious and she did not see anybody or the driver of the bus. 23. PW3, Subhash Chawla, in his examination, admitted the accident but stated that he did not know the name of the driver of the bus and also that the jeep behind him was giving horns and as soon as the jeep in the middle reached the accident took place. He was declared hostile. 24. PW4, Multan Singh, has also similarly stated the facts leading to the accident. He stated that he was sitting in the second jeep. According to him, the bus came with speed from the side of Delhi road. It was a private bus and it hit the jeep. The bus was coming on the wrong side and it hit the front of the jeep. He also got injuries on....
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....dam-bandh), the accident had taken place at point 1 and point 8 where the bus was parked was at a distance which clearly show that the bus had been moved after the accident. Applying the principle of res ipsa loquitur, it can safely be inferred that it was a serious accident that occurred at a turning point in which number of people had died. After the accident, the bus driver moved the bus away to a different point. If what is submitted on behalf of the Appellant had even an iota of truth in it, the most appropriate conduct of the bus driver would have been to leave the vehicle at the place of accident to show that he was on the extreme left side of the road (his proper side for driving) and the jeep which was trying to overtake the other vehicle had come on the wrong side of the road resulting in the accident. This would have been a very material circumstance and relevant conduct of the driver. 28. All the witnesses, PW1, PW2 and PW4, have so stated. There is consistency in the statement of the witnesses that the accused was driving the vehicle and after parking the vehicle at a place away from the place of occurrence, he had run away. We have no reason to disbelieve the state....
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....e caused by the actual impact resulting from the accident itself. The Court held as under: 6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of coincidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the m....
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....n addition, they had also stated that the passersby had informed them that the accused was driving the bus and, in fact, he was the owner of the bus. One fact of this statement is established that the bus in question was given on superdari to the accused. It is also stated by these persons that after they had seen the accused, he had run away from the place where he parked the vehicle. These witnesses also identified the accused in the Court. It is not the case of the accused before us that he had been shown to the witnesses prior to his being identified in the Court. The Court identification itself is a good identification in the eyes of law. It is not always necessary that it must be preceded by the test identification parade. It will always depend upon the facts and circumstances of a given case. In one case, it may not even be necessary to hold the test identification parade while in the other, it may be essential to do so. Thus, no straightjacket formula can be stated in this regard. We may refer to a judgment of this Court in the case of Shyamal Ghosh v. State of West Bengal 2012 (6) SCALE 381 wherein this Court has held that the Code of Criminal Procedure, 1973 (for short "C....
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....dentification 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 prosecut....
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....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 and Ors. 2012 (4) SCALE 526, this Court held as under: 36. The High Court has acquitted some accused while accepting the plea of alibi taken by them. Against the judgment of acquittal, onus is on the prosecution to show that the finding recorded by the High Court is perverse and requires correction by this Court, in exercise of its powers under Article 136 of the Constitution of India. This Court has repeatedly held that an appellate Court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to such accused under the fundamental principles of criminal jurisprudence, i.e., that every person shall be presumed to be innocent unless proved guilty before the court and secondly, that a lower court, upon due appreciation of all evidence has found in favour of his innocence. Merely because another view is possible, it wo....
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....e of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 39. In C. Antony v. K.G. Raghavan Nair (2003) 1 SCC 1, this Court held: 6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it ....