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Petitioner: RAVI KAPUR VS Respondent: STATE OF RAJASTHAN
Court Name: Supreme Court of India Judge(s): Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla Title: RAVI KAPUR vs STATE OF RAJASTHAN Case No.: Criminal Appeal NO,1838 of 2009 Date of Judgment:2012-08-16 Reported As: 2013 SCMR 480 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SWATANTER KUMAR, J.---The present appeal is directed against the judgment of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, dated 12th August, 2008. ' ' The facts giving rise to the present appeal in brief are:-- ' One Sukhdev Singh, P.W.2, had informed and made a statement, parcha bayan, Exh.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 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 Exh.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, P.W.11, conducted the investigation, prepared the site plan, Exh.P3, and recorded the statement of various witnesses. A
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charge-sheet [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, I.P.C. 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 abovementioned 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 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 Exh.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 Baggad Tiraya 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? Cohclusion 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 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
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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 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 overtaking of the middle vehicle. Whereas this witness ought to have been moved 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. In fact prosecution ought to have recorded the statements of eyewitnesses 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 due to rash and negligent driving of the bus by Ravi Kapur. One of the witnesses 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 P.W.2 Sukh Dev Singh, Multan 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 Vehicles Act upon the owner has no relevancy. As such, in the light of the statement of P.W.2 Sukh Dev Singh and P.W.4 Multan Singh no identification parade is necessary. The F.I.R. Exh.P.1 shows that the name of the, accused respondent has already mentioned." 6. The High Court convicted the accused under section 304-A, I.P.C. 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 I.P.C., awarding him six months simple imprisonment with fine of Rs,1,000, 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
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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 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 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 P.W.2, P.W.4 and P.W.11 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 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 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, I.P.C. 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, I.P.C. 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 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 D 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 I.P.C. 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 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 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: (AIR 2012 SC (Cri) 419: 2012 AIR SCW 930)] 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
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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' dode with the knowledge of the likelihood of its dangerous consequences and may entail punishment under section 304, Part II, I.P.C. Section 304-A, I.P.C. 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." 16. Again, in the case of Naresh Giri v. State of M.P. [(2008) 1 SCC 791 : (AIR 2007 SC (Supp) 1190: 2007 AIR SCW 7104)], 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, I.P.C. To section 304-A, I.P.C., observed:-- "7. Section 304-A, I.P.C. 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, I.P.C. 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 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. ' 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
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injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of 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…
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