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Karnataka High Court
Judges : B.S.Patil
B.C.RAMACHANDRA CHIKKASHETTY - Appellant
Versus
STATE OF KARNATAKA - Respondent
Criminal Revision Petition 75 Of 2006
Decided On : 07/13/2006
Advocates Appeared :
Satish R.Girji, Venkatesh R.Bhagat
Cases Referred: AIR 1979 SC 1848; AIR 2005 SCW 3685; ILR 2004 Kar 1459.
Indian Penal Code, 1860 -Negligence -Section 279 -Negligence -Res ipsa loquitur - Application of - Eye witness deposed as to how the incident occurred which was against prosecution and in favour of accused -Still, trial Court applied the maxim and convicted accused - If justified - Held, approach adopted by Courts below was manifestly illegal leading to failure of justice. [B. S. Patil, J]: The accused has given plausible explanation justifying his act to take the vehicle to the extreme right. This is corroborated by the evidence of PW S-4 to 7, 8 and 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.
Cases Referred: AIR 1979 SC 1848; AIR 2005 SCW 3685; ILR 2004 Kar 1459.
Criminal Law -Negligence -Negligence -Res ipsa loquitur -Application of -Eye witness deposed as to how the incident occurred which was against prosecution and in favour of accused -Still, trial Court applied the maxim and convicted accused -If justified -Held, approach adopted by Courts below was manifestly illegal leading to failure of justice.
Cases Referred: AIR 1979 SC 1848; AIR 2005 SCW 3685; ILR 2004 Kar 1459.
Trial Procedure -Negligence -Negligence -Res ipsa loquitur - Application of - Eye witness deposed as to how the incident occurred which was against prosecution and in favour of accused - still, trial Court applied the maxim and convicted accused - If justified - Held, approach adopted by Courts below was manifestly illegal leading to failure of justice.
Cases Referred: AIR 1979 SC 1848; AIR 2005 SCW 3685; ILR 2004 Kar 1459.
Legal Maxims -Res ipsa loquitur -Res ipsa loquitur -Applicability - If facts are capable of being explained by accused, the maxim is not applicable.
Cases Referred: AIR 1979 SC 1848; AIR 2005 SCW 3685; ILR 2004 Kar 1459.vv
Legal Maxims -Res ipsa loquitur -Res ipsa loquitur -Application - Principles. Settled Principles: 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. 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 alone. 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 pointing 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 accuseds guilt. That is to say, they should be incompatible with his innocence and inferentially exclude all reasonable doubt about this guilt. In our opinion, this circumstance of taking the vehicle suddenly to the extremes right of the road, did not be speak negligence or dereliction of duty to exercise due care and control, on the part of the accused, in clear 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 four prosecution witnesses who had seen the occurrence. In these circumstances, the maxim res ipsa loquitur could have no manner of application [AIR 1979 SC 1848].
( 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 Ju
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