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2015 DIGILAW 55 (CHH)

Chheduram v. State Of Chhattisgarh

2015-02-18

MANINDRA MOHAN SHRIVASTAVA

body2015
ORDER Manindra Mohan Shrivastava, J. 1. This appeal is directed against impugned judgment dated 14-1-04 passed in appeal whereby the judgment of conviction dated 20-3-02 passed by the Additional Chief Judicial Magistrate, Sakti in criminal case No. 420/95 convicting the appellant under Section 304-A of IPC has been affirmed. Learned counsel for the applicant argued that the Courts below have recorded a finding of guilt only on the basis of presumption without there being any evidence led by the prosecution that the incident was a result of rash and negligent act on the part of the appellant. Learned counsel for the applicant argues that all the witness of the prosecution have stated that the vehicle was driven slowly by the applicant and it was unfortunate incident in which Raju Bareth, a young boy of eight years moving along the road was hit by the vehicle. He submits that the two established circumstances that the vehicle was driven slowly and the deceased was a child barely aged eight years, go against the case of the prosecution and render improbable that the accident was a result of rash and negligent act of the applicant. 2. On the other hand, learned State counsel supports the judgment passed by the Courts below and submits that the applicant was driving a truck and having seen a child of eight years, reasonable degree of caution and care required the applicant to drive the vehicle in such a manner as to save the child but the fact that the child was crushed by the truck itself is a proof of rash and negligent act on the part of the applicant, resulting in death of a young child of eight years. 3. The applicant has been convicted of commission of offence 304-A, IPC which being relevant is extracted here in below-- "304-A -- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 4. A bare perusal of the aforesaid provision reveals that in order to sustain conviction for commission of offence under Section 304-A, IPC, the prosecution is required to prove following ingredients-- a) That there was a death of the person in question; b) That the accused caused such death; c) That such act of the accused was rash and negligent and it did not amount to culpable homicide. At this juncture, it would be apposite to recapitulate principles applicable in the matter of appreciation of evidence before accused is held guilty of rash and negligent act. 5. In the case of Smt. Manju Baradia v. State of Chhattisgarh, 2001(2) CGLJ 154 : (2001 Cri. LJ 3762 (Chh.), this Court relying upon various judgments of the Supreme Court held— 18. In the matter of Bhalchandra and another v. The State of Maharashtra, AIR 1968 SC 1319 , it has been observed as under— "The criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted." 20. In the matter of Mrs. Shakila Khader etc. v. Nausher Gama and another, AIR 1975 SC 1324 , the Supreme Court has observed as under- "The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overstate other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle traveling on that side of the road." 21. xxxxxxxxxxxxxxxxxx 22. xxxxxxxxxxxxxxxxxx 23. ...............In the matter of Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 , the Court has considered the question of applicability of principles of res ipsa loquitur . It would be necessary to quote paragraphs 26 to 30 of the said judgment: "26. xxxxxxxxxxxxxxxxxx 22. xxxxxxxxxxxxxxxxxx 23. ...............In the matter of Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 , the Court has considered the question of applicability of principles of res ipsa loquitur . It would be necessary to quote paragraphs 26 to 30 of the said judgment: "26. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway or overturns or in fair visibility runs into an obstacle; or brushes the branches of an overhanging tree, resulting in injury, or where there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in the first instance, on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts (For instance, see Burke v. Manchester, Sheffield and Lincolnshire Rly. Co. (1870) 22 LT 442; Moore v. Fox (R) & Sons(1956) 1 QB 596. Also see paras 70, 79 and 80 of Halsbury's Laws of England, Third Edition, Vol. 28, and the rulings mentioned in the Foot Notes thereunder). 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 from circumstances proved in evidence. In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. 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 means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it). Russell v. London and South -- Western Rly. 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 argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that occurrence took place without negligence...............It means that the circumstances are, so to speak eloquent of the negligence of somebody who brought about the state of thing which is complained of." 28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot as such be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are : Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof, in civil criminal proceedings. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof, in civil criminal proceedings. In Civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in Criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director Public Prosecutions (1937) 2 All ER 552 : 1937 AC 576"simple lack of care such as will constitute civil liability, is not enough" for liability under the Criminal Law" a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most merely covers the case." 29. However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under S. 114, Evidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability as distinguished from a mere possibility has been established which will convince reasonable mean with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence. 30. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence. 30. Such simplified and pragmatic application of the notion of res ipsa loquitur , as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are : Firstly all the circumstances, including the objective circumstances constituting the accident from which the inference of guilty is to be drawn, must be firmly established. Secondly, those circumstances must be of determinative tendency pointing unerringly towards the guilt of the accused. Thirdly the circumstances should make a chain so complete that they cannot reasonable raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubts about his guilt. 24. The Supreme Court has clearly observed that principles of res ipsa loquitur are not special rule of substantive law, but is only an aid in the evaluation of evidence, according to the Supreme Court, this principle 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. 25. Again in the matter of N.K.V. Bros. (P.) Ltd. v. M. Karumai Ammal and others etc., AIR 1980 SC 1354 , while considering the question in a different context in relation to Section 110-B of the Motor Vehicles Act, 1939, the Supreme Court observed that the requirement of culpable rashness under Section304-A, IPC is more drastic than negligence sufficient under the law of tort to create liability. 28. In the matter of Mohammed Aynuddin alias Miyam v. State of Andhra Pradesh, (JT-2000 (8) SC 317 : AIR 2000 SC 2511 ) the Supreme Court has observed that it would be a wrong proposition that for any motor accident negligence of the driver should be presumed. 28. In the matter of Mohammed Aynuddin alias Miyam v. State of Andhra Pradesh, (JT-2000 (8) SC 317 : AIR 2000 SC 2511 ) the Supreme Court has observed that it would be 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. The Supreme Court further observed that the principles 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 wrong doer. 6. Therefore, in order to sustain conviction under Section 304-A, IPC, one of the essential requirements is proof beyond reasonable doubt that the accident was a result of rash and negligent act of the accused. 7. A survey of the aforesaid decision and the provisions laid down by the Courts lead to conclusion that merely because an accident has happened and a person has died, there cannot be any presumption nor is there any presumption under the law that the vehicle was driven by the driver in a rash and negligent manner which resulted in death. The prosecution is required to prove by unimpeachable evidence though the circumstances of the case lead to conclusion that the accused did not take reasonable care and caution, which in the given circumstances, he was required to observe and it was on the failure on the part of the accused to take reasonable care and caution of the degree in the given circumstance that the accident happened. 8. Applying the foresaid principles, the evidence in the present case is required to be analyzed. 9. Dilharan (PW 1) has stated that the offender vehicle was going ahead of him driven by the applicant and his nephew was crushed by the truck. 8. Applying the foresaid principles, the evidence in the present case is required to be analyzed. 9. Dilharan (PW 1) has stated that the offender vehicle was going ahead of him driven by the applicant and his nephew was crushed by the truck. He has stated that he did not have the child in his notice but when incident happened, then he paid attention and report was lodged. In the cross-examination, this witness has stated that the vehicle was driven with slow speed. He has also stated that the place of incident was turning of the road. Except this, there is nothing in his evidence to say that the applicant was driving the vehicle rashly or negligently. Shyamlal (PW 2) has seen the dead body of the child and not an eye-witness of the incident. 10. Similarly, Firat Ram (PW 3) has also not seen the incident. Teejram (PW 5) has stated that the child fell down due to dash by the truck. In his cross-examination, he states that at the time of incident, he was behind the offender vehicle. He has stated that the vehicle was driven slowly and it was a turning, due to which accident happened. Ramdhan (PW 6) has also stated in his cross-examination that the accident happened in his presence and admitted that the vehicle was being driven slowly by the applicant. He has not stated anything to prove rash and negligent act on the part of the applicant. 11. From the aforesaid evidence led by the prosecution, there is nothing to prove that the accident was a result of rash and negligent act on the part of the applicant, on the contrary the evidence of the prosecution is that the vehicle was being driven slowly. As to how the accident happened, has not been proved by the prosecution, much less any rash and negligent driving on the part of the applicant. In view of above, conviction of the applicant cannot be sustained. The revision petition is accordingly allowed. Conviction of the applicant is set aside and he is acquitted of the charges. Bail bonds stands discharged.