Karnataka High Court
B.C. Ramachandra S/O Chikkashetty vs State Of Karnataka By Channarayapatna ... on 13 July, 2006
Equivalent citations: 2007CRILJ475
Author: B.S. Patil
Bench: B.S. Patil
ORDER
B.S. Patil, J
1. The revision petitioner is convicted for the offences punishable Under Section 279, 337 and 304-A IPC. He is sentenced to undergo simple imprisonment for different periods and to pay fine for the aforesaid offences. The judgment and order convicting the accused, having been affirmed in appeal by the Sessions Judge, the revision petitioner is before this Court challenging the same.
2. The case of the prosecution is that on 03.05.1996 at about 5.00 p.m. on Bangalore - Mangalore Road near old bus stand of Chennarayapatna town, the accused drove the fire engine bearing registration No. KA-01-G-8093 in a rash and negligent manner so as to endanger human life and dashed against Bhyravesbwara hotel building and against a pedestrian by name Krishna who was standing in front of the said hotel resulting in the death of said Krishna on the spot and damage to the hotel Several others were also allegedly injured. The accused was charged for the offences Under Sections 279, 337 and 304-A IPC. As the accused pleaded not guilty, the prosecution examined as many as 14 witnesses as PWs-1 to 14 and produced Exs. P. 1 to 16. The JMFC., Chennarayapatna, by the judgment dated 12.04.2002 convicted the accused for an the offences for which he was subjected to trial. The Magistrate applied the principle of res ipsa loquitur the facts speak for themselves' to infer culpable negligence against the driver of the fire engine. Although as many as 7 eye-witnesses in PWs-4 to 8, 11 and 12 were examined, except PW-6 all the other witnesses turned hostile. None of them supported the case of the prosecution and no allegations of reckless and negligent act on the part of the driver of the fire engine was alleged. PW-6-Suresh is the only eye-witness who is not treated hostile. But he has also admitted in the cross-examination that he could not say whether the accident occurred due to the fault of the driver of the fire engine. Thus, the evidence of the eye-witness placed before the Court did not support the prosecution in establishing the reckless and negligent act on the part of the driver. The trial Court refers to the statement of the accused recorded Under Section 313 of the Cr.P.C. as a piece of corroborative evidence to come to the conclusion that admittedly the offending vehicle was taken to the right side of the road which is the wrong side to the driver and that he did so in order to avoid a head-on collision with an upcoming lorry. Placing reliance on the mahazar drawn and having due regard to the feet that the circumstances as evidenced on the spot including the fact that the vehicle was taken to the wrong side and had dashed against a hotel and injured PW-5-Jayamma, the trial Court inferred that despite the absence of eye witness account supporting the caw of the prosecution, the circumstantial evidence was enough to hold the accused guilty as the principle of res ipsa loquitur applied to the case.
3. In appeal the Sessions Judge concurred with the findings recorded by the trial Court giving an additional reasoning stating that having regard to the application of the principle of res ipsa loquitur it was for the accused to justify his action of taking the vehicle to the right side of the road. In paragraph 24 of the judgment, the appellate court observes that the accused did not adduce any evidence to show that at the time of the accident, a KSRTC bus was standing on the left side of the road and that he was crossing the bus taking the fire engine to his right side and at that time, a tony came from the opposite side in a high speed. Though the evidence of PWs-4, 7, 8 and 12 supported the version of the accused and probabilised the explanation given by him in his statement Under Section 313, the Courts below disbelieved their version stating that they were the colleagues of the accused and therefore their version cannot be taken to corroborate the explanation given by the accused.
Thus, the learned Sessions Judge has proceeded on the principle of res ipsa loquitur and further holding that the accused failed to lead any evidence to establish that the circumstances did warrant him to take the vehicle to the right side.
4. Learned Counsel for the petitioner very strongly contends that the very approach adopted by both the Courts applying the principle of res ipsa loquitur for proof of criminal negligence is illegal. In this regard, he has placed reliance on two judgments of the Apex Court in the cases of Syad Akbar v. State of Karnataka and Jacob Mathew v. State of Punjab and Anr AIR 2005 SCW 3685. He has further submitted that in the wake of the entire evidence adduced by the prosecution going against the case put forward by it and in view of the explanation offered by the accused in his statement Under Section 313 which leads to a reasonable hypothesis excluding the guilt of the accused, the Courts below were not justified in blindly placing reliance on a principle which is inapplicable in criminal matters.
5. Learned Government Pleader supports the findings recorded by the Courts below.
6. Upon hearing the learned Counsel appearing for the parties and on careful perusal of the entire records, the only point that arises for consideration is:
Whether the judgmental under challenge recording conviction against the accused suffer from any manifest illegality warranting interference in this revision?
7. The prosecution has in all examined 14 witnesses. Out of them PWs-4 to 8. 11 and 12 are the eye witnesses. PWs-4, 7, 8 and 12 are the officials engaged in the Fire Engine Department present in the vehicle when the accident took place and who have also sustained simple injuries. PW-5, 6 and 11 are the independent witnesses out of whom PW-11 is the first informant who has lodged the complaint and PW-5 is an injured witness. Except Pw-6, all other eye-witnesses have turned hostile and have been treated so by the prosecution. Upon careful perusal of the evidence of these witnesses, it is clear that they have not supported the case of the prosecution either in the examination-in-chief or in the cross-examination. The contents of statements recorded Under Section 161 are also not methodically confronted to these witnesses to elicit the truth. So far as PW-11 the first Informant is concerned, he has stated in the examination-in-chief that after learning the fact that the fire engine had dashed against his hotel he went and saw to learn that one person had died but he did not directly see the accident. In the cross-examination by the prosecutor, he has stated that he was unaware of what were the contents of the complaint lodged by him. Thus, it is clear that the informant has virtually given a go by to the accusations made by him while lodging the complaint. PW-6 who is the only eye witness who has not been treated hostile and who is also an independent witness has stated in his evidence that the fire engine hit the cyclist and thereafter dashed against his shop. In the examination-in-chief he does not attribute any reckless or negligent act to the accused. He does not even say that the vehicle was driven in high speed. Therefore, as rightly contended by the learned Counsel for the petitioner there was absolutely no material, by way of evidence, from the eye witnesses to attribute culpable recklessness or negligence on the part of the accused, Both the Courts have accepted this fact and they have found that the case of the prosecution is not supported by the eye-witnesses. The trial Court has however recorded a finding that looking to the nature of the accident that had taken place and the injuries sustained, coupled with the fact that the vehicle was taken to the right side of the road and dashed against the shop and the hotel killing the cyclist who was standing away from the road, it would attract the principle of res ipsa loquitur to the case on hand and therefore the accused should be held guilty of the offence alleged against him. In this connection, it also placed reliance on the statement of the accused recorded Under Section 313 of the Cr.P.C. to corroborate the feet that he had taken the vehicle to the right side which had resulted in the accident
8. It is seen from the statement made Under Section 313 of the Cr.P.C. by the accused that he has explained the reason why he had to take the vehicle to the extreme right side leaving the road portion. According to him, when the fire engine had approached a sweet stall situated near the old bus stand of Chennarayapatna one KSRTC bus was seen parked on the left side of the road and passengers were alighting from there. Having seen the bus from a distance, he took the vehicle to the right side so as to overtake the bus. At that time, he suddenly noticed a lorry coming in high speed in front of him. In order to avoid a head on collision with the lorry he took the vehicle to the right as he found that there was sufficient apace available to the right side. In that process, the lorry hit the hind side of the fire engine. Thus, in sum and substance, the explanation offered by the accused is that he had to take the vehicle to the light side in order to avoid a head cm collision with the up coming lorry. This statement given Under Section 313 of the Code is taken by the trial Court to corroborate the Spot Panchanama the damage caused to the shops and the killing of the cyclist to press into service, the principle of res ipsa loquitur to state that the facts spoke for themselves. It has thus proceeded to convict the accused ignoring the eye witnesses account which did not support the prosecution.
9. The appellate court having held that all the eye witnesses had deposed against the prosecution and did not support the case of the prosecution has also proceeded on the principle of res ipsa loquitur to hold that the nature of the accident was such that the circumstances spoke for themselves and it was inevitable to hold that the accused was guilty of the offence. While arriving at such a conclusion, the appellate court has held at paragraph 21 of the judgment that the evidence of PWs-4, 7, 8 and 12 which supported the explanation offered by the accused for taking the vehicle to the right aide to avoid a head-on collision with the up coming lorry was rightly disbelieved on the ground that all these witnesses were the colleagues of the accused and were the inmates of the fire fighter.
10. It has to be seen that, on the one hand the eyewitnesses did not support the case of the prosecution, on the other so far as PWS-4 to 7, 8 and 12 are concerned they corroborated the explanation given by the accused stating that he was compelled to take the vehicle to the right side leaving the road, in order to avoid a head-on collision with the lorry. It is therefore clear that even assuming that the principle of res ipsa loquitur can be pressed into service in a case like this, there was sufficient explanation offered by the accused to explain why he had to take the vehicle to the wrong side. This explanation given by the accused is corroborated by PWs-4, 7, 8 and 12. That being so, ignoring this aspect, the principle of res ipsa loquitur could not be applied stating that the facts spoke for themselves in as much as such facts were capable of being explained by the accused which he has done in the instant case. It is also necessary at this juncture to refer to the law governing the application of the principle of res ipsa loquitur to the criminal cases. In the decision in the case of Syad Akbar v. State of Karnataka , Apex Court while stating that the principle of res ipsa loquitur (things speak for themselves) is a principle which in reality belongs to the law of torts has stated thus in paragraph 27:
27. According to the other line of approach, res ipsa loquitur is not a special rule of substantive law; that functionally, it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue prom circumstances proved in evidence". In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it (Russel V. London & South-Western Railway Co. (1908) 24 TLR 548 only means, that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable circumstantial evidence atone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency ponting unerringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilty. That is to say, they should be incompatible with his innocence and inferentiallly exclude all reasonable doubt about this guilt.
11. Dealing with the foots invoked in that case where also the driver had suddenly taken the vehicle to the extreme fight of the road, the Apex Court observed at paragraph 32 as under:
32. In our opinion, this circumstance of taking the vehicle suddenly to the extreme right of the road, did not bespeak, negligence or dereliction of duty to exercise due care and control, on the part of the accused, in dear and unambiguous voice. Nor could it be said, that the cause of swerving the vehicle to the right, was unknown. The accused gave a reasonably convincing explanation of his conduct in doing so, and his version was fully supported by Jour prosecution witnesses who had seen the occurrence. In these circumstances, the maxim res ipsa liquitur could have no manner of application.
12. It is thus clear that the principle of res ipsa loquitur has limited application in the domain of criminal law. An Useful reference can also be made to the decision of the Apex Court in the case of Jacob Mathew v. State of Punjab and Anr. (AIR 2005 SCW 3685). White reiterating the fact that the principle of res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, the Apex Court has held that it has limited application in trial on charges of criminal negligence. The Apex Court has also held in paragraph 49 that a case initiated for an offence Under Section 304-A cannot be decided solely on the basis of this rule. Learned Counsel for the petitioner has specifically drawn the attention of the Court to paragraph 28 of the decision cited supra wherein it is stated that in criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur.
13. It is necessary at this stage to refer to a decision of this Court in the case of Ishwar Sadeppa Nandennavar v. State of Karnataka, Rep. By Its State Public Prosecutor, Bangalore wherein the principle of Res-ipsa Loquitur invoked by the Courts below has been approved in the facts and circumstances of the said case wherein the accused in his 313 statement did not give any explanation as to how the alleged accident took place according to him. Apart from the same, in the said case the evidence on record proved that the offending vehicle came from the opposite direction by overtaking another truck and dashed against the bus resulting in death of 11 passengers and serious injuries to 17 others. The evidence of the driver of the bus was found amply corroborated with the evidence of the injured passengers in the bus. In the wake of the said materials, this Court refused to interfere with the judgments of the courts below recording conviction. Therefore, it was not a case where conviction was based solely on the strength of principle of Res Ipsa Loquitur. In addition, as already stated above, there was absolutely no explanation whatsoever by the accused in his statement Under Section 313 of the Code.
14. In the instant case, as already adverted to above, the accused has given plausible explanation justifying his act to take the vehicle to the extreme right This is corroborated by the evidence of PWs-4 to 7, Sand 12. The Courts below in such circumstances were not at all justified in applying the principle of res ipsa loquitur to base the conviction, as laid down in the two aforementioned judgments of the Apex Court The rule of res ipsa loquitur has a limited role and limited application in criminal matters. If an explanation is offered by the accused which explains the circumstances then the burden is on the prosecution to show that the explanation offered could not be believed and that the other evidence was sufficient to hold the accused guilty of the offence. In the instant case, no such evidence is available pointing at the guilt of the accused. Therefore, the approach adopted by the Courts below is manifestly illegal leading to failure of justice. The prosecution has failed to establish the guilt of the accused. Hence the conviction recorded against the accused is not sustainable. Hence, I pass the following;
ORDER The revision petition is allowed The judgments of both the Courts recording conviction are set aside. The accused is acquitted of the offences. His bail bond and the surety offered shall stand cancelled. He is entitled for refund of the fine amount, if any, deposited by him.