Supreme Court of India
RAVI KAPURversusSTATE OF RAJASTHAN
- Citation
- 2012 INSC 333
- Decided
- 16 August 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
The Supreme Court held that the High Court was correct in overturning the trial court’s acquittal because the consistent eyewitness testimony, corroborated by documentary evidence and the doctrine of res ipsa loquitur, established the accused’s rash and negligent driving, and the procedural omissions did not prejudice the prosecution.
Summary
The appellant Ravi Kapur was charged under IPC sections 279, 337, 338 and 304A for a bus accident that caused multiple deaths and injuries. The trial court acquitted him, holding that the prosecution failed to prove his identity as the driver and that procedural lapses, such as the absence of a test identification parade and non‑service of notice under MVA s.133, created prejudice. On appeal, the High Court convicted him, relying on consistent eye‑witness testimony, documentary evidence and the doctrine of res ipsa loquitur to infer rash and negligent driving. The Supreme Court upheld the High Court, ruling that minor variations in witness statements are immaterial, the lack of a test parade or notice did not prejudice the case, and the appellate court may interfere with an acquittal when the evidence shows a perverse finding. Consequently, the appeal was dismissed and the conviction affirmed.
Issues considered
- The sufficiency of eye‑witness and documentary evidence to prove the accused drove the bus rashly and negligently under IPC s.279, 337, 338 and 304A.
- Whether minor inconsistencies in witness statements are material to the prosecution case.
- Applicability of the doctrine of res ipsa loquitur in a criminal motor‑accident case.
- Effect of non‑service of notice under Motor Vehicles Act s.133 on the prosecution’s case.
- Whether a test identification parade is mandatory for conviction.
- The scope of appellate review of a judgment of acquittal under Article 136.
- The purpose and legal effect of Section 313 CrPC in the trial process.
- Definition and assessment of ‘rash and negligent driving’ and ‘negligence’ under the IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 279, s. 304A, s. 337, s. 338
- Motor Vehicles Act, 1988s. 133
Subjects
motor accidentrash and negligent drivingres ipsa loquiturtest identification paradeSection 133 noticeSection 313 CrPCappellate review of acquittalnegligenceIPC 279IPC 304Aevidence appraisal
Judgment
[2012] 10 S.C.R. 229
RAVI KAPUR A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1838 of 2009)
AUGUST 16, 2012
B
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - ss. 279, 337, 338 and 304A -
Prosecution under - Motor accident - Resulting in many C
deaths and injuries to many - Eye-witnesses to the incident
-Driver-accused identified by the witnesses - Acquittal by trial
court - Conviction by High Court - On appeal, held: Evidence
of the witnesses are consistent and supported by
unchallenged documentary evidence - Minor variations in the D
statements of witnesses are not material - Applying the
principle of res ipsa loquitur, it can be inferred thfa it was a
serious accident causing many deaths - Therefore conviction
justified.
Code of Criminal Procedure, 1973 - s. 313 - Nature and E
purpose of - Held: Provisions of s. 313 are not mere formality
or purposeless - The provision has dual purpose to
discharge firstly to put the entire material parts of the
incriminating evidence before the accused and secondly to
provide opportunity to accused to explain his version of the F
case.
Criminal Trial - Contradictory statements - Evidentiary
value - Held: The contradictions have to be material and
substantial so as to adversely affect the prosecution case. G
Test Identification Parade - Necessity to hold - Held:
Necessity depends on the facts and circumstances of the
case - Court identification is as good identification in the eyes
of law - It is not always necessary that it must be preceded
229 H
230 SUPREME COURT REPORTS [2012] 10 S.C R
A by Tl Parade.
Negligence - Determination of - Held: Negligence is not
an absolute but relative term - Determination of existence of
negligence per se or whether the course of conduct amounts
to negligence, would depend upon the attending and
8 surrounding facts - While determining the question of
negligence and contributory negligence, court to adopt the
parameter of 'reasonable care'.
Motor Vehicles Act, 1988 - s. 133 - Non-serving of
c notice under - Whether would adversely affect the prosecution
u/ss. 279,337, 338 and 304A /PC - Held: On facts, no
prejudice caused to the accused by non-serving thereof
Appeal - Appeal against acquittal - Interference with -
Propriety of - Held: Normally, the appellate court should be
D reluctant to interfere with the judgment of acquittal - But this
is not an absolute rule - On facts, High Court rightly interfered
with acquittal order passed by trial court as the same suffered
from errors of law and in appreciation of evidence.
E Doctrines:
Doctrine of reasonable care - Applicability of
Doctrine of res ipsa loquitur- Applicability of, to accident
cases.
F Words and Phrases:
'Rash and negligent driving' - Meaning of
'Negligence' - Meaning of
G 'Cu/pabale rashness' and 'Culpable negligence' -
Meaning of
Prosecution was initiated against the appellant-
accused u/ss. 279, 337, 338 and 304-A IPC. The
prosecution case was that PW2 made statement (Ex.P-
H
RAVI KAPUR v. STATE OF RAJASTHAN 231
2) to the police that when he and his family were going A
to attend marriage of their relative, the jeep in which his
family members were boarded and which was going
ahead of his jeep, collided with a bus which was coming
at a very high speed, resulting in many deaths. He named
the appellant-accused as the driver of the bus. According B
to him the accused took the bus towards large pits in the
agricultural fields, and after parking the bus ran away.
There were four eye-witnesses to the incident.
Trial court by its order dated 24.6.1999 convicted the C
accused. But after the matter was remanded by Special
Judge on the issues of non-holding of Test Identification
Parade and non-examination of the doctor, the trial court
by its order dated 11.6.2006, acquitted the accused. It
held that the prosecution failed to prove its case and that
in absence of notice u/s. 133 Motor Vehicles Act, it could D
not be proved that the accused was actually driving the
bus at the relevant time. High Court convicted the
accused.
In appeal to this Court, appellant contended that E
High Court exceeded its jurisdiction in reversing the
judgment of acquittal; that there was no evidence to
identify or link the accused with the commission of the
offence; and that there was no evidence to prove that he
drove the bus rashly and negligently.
F
Dismissing the appeal, the Court
HELD: 1.1. Rash and negligent driving has to be
examined in the light of the facts and circumstances of a
given case. It is a fact incapable of being construed or G
seen in isolation. It must be examined in the 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
H
232 SUPREME COURT REPORTS [2012) 10 S.C.R.
A whether a person was driving rashly and negligently.
Both these acts presuppose an abnormal conduct. Even
when ·one is driving 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
B Section 279 IPC. 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
C rash or negligent driving should be such as to endanger
human life. Once these ingredients are satisfied, the
penalty contemplated under Section 279 IPC is attracted.
[Para 1OJ [248-E-H]
1.2. 'Negligence' means omission to do something
D 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. Negiigence is not an absolute term but is
E 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
F 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. [Para 11] [249-A-C)
G 1.3. 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
H
RAVI KAPUR v. STATE OF RAJASTHAN 233
on the road and this duty attains a higher degree when A
the pedestrian happen to be children of tender years.
[Para 12) [249-D]
1.4. The other principle that is pressed in aid by the
courts in such cases is the doctrine of res ipsa loquitur.
8
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 fact of the accident is prima facie evidence
of such negligence. Secondly, it is to avoid hardship in C
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 D
the consequences of driving dangerously alike the
provision in the IPC 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 E
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 F
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 G
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 H
234 SUPREME COURT REPORTS [2012) 10 S.C.R.
A 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
B attributable to some person's negligent conduct. [Para
13] [249-G-H 250-A·E]
'An Exhaustive Commentary on Motor Vehicles Act,
1988' by JusticeRajesh Tandon, First Edition, 2010 -
referred to.
c
1.5. The doctrine of res ipsa loquitur is equally
applicable to the cases of accident and not merely to the
civil jurisprudence. Thus, these principles can equally be
extended to criminal cases provided the attendant
0 circumstances and basic facts are proved. Either the
accident must be proved by proper and cogent evidence
or it should be an admitted fact before this principle can
be applied. This doctrine comes to aid at a subsequent
stage where it is not clear as to how and due to whose
E negligence the accident occurred. The factum of accident
having been established, the Court with the aid of proper
evidence may take assistance of the attendant
circumstances and apply the doctrine of res ipsa loquitur.
The mere fact of occurrence of an accident does not
necessarily imply that it must be owed to someone's
F negligence. In cases where negligence is the primary
cause, it may not always be that direct evidence to prove
it exists. In such cases, the circumstantial evidence may
be adduced to prove negligence. Circumstantial evidence
consists of facts that necessarily point to negligence as
G a logical conclusion rather than providing an outright
demonstration thereof. Elements of this doctrine may be
stated as : (1) The event would not have occurred but for
someone's negligence. (2) The evidence on record rules
out the possibility that actions of the victim or some third
H party could be the reason behind the event and (3)
RAVI KAPUR v. STATE OF RAJASTHAN 235
Accused was negligent and owed a duty of care towards A
the victim. [Para 18] [255-A-F]
Mohd. Aynuddin alias Miyam v. State of.AP. (2000) 7
SCC 72: 2000(2) Suppl. SCR 15; Thakur Singh v. State of
Punjab (2003) 9 SCC 208 - relied on.
B
Alister Anthony Pareira v. State of Maharashtra (2012)
2 SCC 648; Naresh Giri v. State of M. P. (2008) 1 SCC
791 :2007 (11) SCR 987 - referred to.
2.1. It cannot be said that there are contradictions in
the statements of the witnesses and the site plan Exhibit C
P29/P3 does not exhibit any negligence on behalf of the
appellant. The bus in question was certainly involved in
the accident; in fact, there is no serious dispute that the
accident between the jeep and the bus took place at the
place of occurrence. Applying the principle of res ipsa D
/oquitur, 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. [Para 27] [259-
B-E] E
2.2. 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. The statements of these
F
witnesses which are fully supported by the documentary
evidence, Exhibit P2, to which there was hardly any
challenge during the cross-examination of PW11. There
is no serious or material contradiction in the statements
of the prosecution witnesses much less in Exhibit P2, the G
parcha statement of PW2. Minor variations are bound to
occur in the statements of the witnesses when their
statements are recorded after a considerable lapse from
the date of occurrence. The Court can also not ignore the
fact that these witnesses are not very educated persons.
The truthfulness of the witnesses is also demonstrated H
236 SUPREME COURT REPORTS (2012] 10 S.C.R.
A from the fact that PW1, even in her examination-in-chief,
stated that she was unconscious and did not see the
• driver. Thus, the three witnesses, i.e., PW1, PW2 and PW4
have given a correct eye account of the accident. Their
statements are worthy of credence and there is no
B occasion for the Court to disbelieve these witnesses.
[Para 28] [259-G-H; 260-A-C]
2.3. It is a settled principle that the variations in the
statements of witnesses which are neither material nor
serious enough to affect the case of the prosecution
C adversely, are to be ignored by the courts. [Para 28] [260-
D]
State v..Saravanan .and Anr. (2008) 17 SCC 587: 2008
(14) SCR 405; Sunil Kumar Sambhudaya/ Gupta v. State of
D Maharasthtra (2010) 13 SCC 657: 2010 (15) SCR 452 -
relied on.
2.4. It is also a settled principle that statements of the
witnesses have to be read as a whole and the court
should not pick up a sentence in isolation from the entire
E statement and ignoring its proper reference, use the same
against or in favour of a party. The contradictions have
to be material and substantial so as to adversely affect
the case of the prosecution. [Para 28] [260-E-FJ
F Atmaram and Ors. vs. State of Madhya Pradesh (2012)
5 sec 738 - referred to.
2.5. The statements of the witnesses who met with
an accident while travelling in a vehicle or those of the
people who were travelling in the vehicle driven nearby,
G should be taken and understood in their correct
perspective, as it is not necessary that the occupants of
the vehicle should be looking in the same direction. They
might have been attracted only by the noise or the
disturbance caused by the actual impact resulting from
H the accident itself. [Para 29] [260-G-H; 261-A]
RAVI KAPUR v. STATE OF RAJASTHAN 237
2.6. It was not necessary to hold the test iden~fication A
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, B
he got down from the bus and ran away. [Para 33] [264-
G-H; 265-A]
2.7. In the present case, the accused was seen by
PW2 and PW4. These witnesses also identified the
accused in the Court. It is not the case of the accused C
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 D
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. [Para 32] [262-G-H; 263-A] E
Nageshwar Shri Krishna Ghobe v. State of Maharasthra
(1973) 4 SCC 23: 1973 (2) SCR 377; My/adimmal Surendran
and Ors. v. State of Kera/a (2010) 11 SCC 129: 2010 (10)
SCR 916; Shyama/ Ghosh v. State of West Bengal 2012 (6)
F
SCALE 381 - relied on.
Mui/a and Anr. v. State of Uttar Pradesh (2010) 3 SCC
508: 2010 (2) SCR 633; Amit v. State of Uttar Pradesh
(2012) 4 sec 107 - referred to.
3.1. The High Court has rightly rejected the plea that G
the Court should draw adverse inference against the
prosecution as the investigating officer did not serve
notice under Section 133 of Motor Vehicles Act upon the
owner of the vehicle. The plea was rejected on the .b~sis
_!hat the driver of the vehicle was identified at the place H
238 SUPREME COURT REPORTS [2012] 10 S.C.R.
A of occurrence and even passersby had informed the
prosecution witnesses that the driver-accused was the
owner of the vehicle~ The name of the accused was duly
recorded in the FIR itself. This fact remained undisputed.
It was also argued that the accused was not driving the
s vehicle, though it was not disputed that he is the
registered owner of the vehicle in question. If that be so,
when the statement of the accused under Section 313 of
the Cr.P.C. was recorded by the Trial Court, except denial,
he did not state anything further. For reasons best known
c to the accused, instead of stating as to whom he had
given his vehicle for being driven on that date, he
preferred to maintain silence and denied the case of the
prosecution. [Para 34] [265-B-D]
3.2. It is true that the prosecution is required to prove
D its case beyond reasonable doubt but the provisions of
Section 313 Cr.P .C. are not a mere formality or
purposeless. They have a dual purpose to discharge,
firstly, that the entire material parts of the incriminating
evidence should be put to the accused in accordance
E with law and, secondly, to provide an opportunity to the
accused to explain his conduct or his version of the case.
To provide this opportunity to the accused is the
mandatory duty of the Court. If the accused deliberately
fails to avail this opportunity, then the consequences in
F law have to follow, particularly when it would be expected
of the accused in the normal course of conduct to
disclose certain facts which may be within his personal
knowledge and have a bearing on the case. [Para 35]
[265-E-G]
G 3.3. No prejudice has been caused to the accused by
non-serving of the notice under Section 133 of the Act
and, in any case, the accused cannot take any advantage
thereof. [Para 36] [265-H; 266-A]
H 4. No doubt, the Court of appeal would normally be
RAVI KAPUR v. STATE OF RAJASTHAN 239
I reluctant to interfere with the judgment of acquittal but A
· this is not an absolute rule. In the present case, there
were more than sufficient reasons for the High Court to
interfere with the judgment of acquittal recorded by the
trial court. It was not a case of non-availability of evidence
or presence of material and serious contradictions B
proving fatal to the case of the prosecution. There was
no plausible reason before the trial court to disbelieve the
eye account given by PW2 and PW4 and the court could
not have ignored the fact that the accused had been duly
identified at the place of occurrence and even in the court. c
The trial court has certainly fallen in error of law and
appreciation of evidence. Once the trial court has ignored
material piece of evidence and failed to appreciate the
prosecution evidence in its correct perspective,
particularly when the prosecution has proved its case
0
beyond reasonable doubt, then it would amount to failure
of justice. In some cases, such error in appreciation of
evidence may even amount to recording of perverse
finding. The trial court had first delivered its judgment on
24th June, 1999 convicting the accused of the offences.
However, on appeal, the matter was remanded on two E
grounds, i.e., considering the effect of non-holding of test
identification parade and not examining the doctor. Upon
remand, the trial court had taken a different view than
what was taken by it earlier and vide judgment dated 11th
May, 2006, it had acquitted the accused. This itself F
became a ground for interference by the High Court in
the judgment of acquittal recorded by the trial court. From
the judgment of the trial court, there does not appear to
be any substantial discussion on the effect of non-
holding of the test identification parade or the non- G
examination of the doctor. On the contrary, the trial court
passed its judgment on certain assumptions. None of the
witnesses, not even the accused,· in his statement, had
stated that the jeep was at a fast speed but still the trial
court recorded a finding that the jeep was at a fast speed H
240 SUPREME COURT REPORTS [2012] 10 S.C.R.
A and was not being driven properly. The trial court also
recorded that a suspicion arises as to whether the
accused was actually driving the bus at the time of the
accident or not and identification was very important. The
trial court could ignore the statement of the eye-
B witnesses, particularly when they were reliable,
trustworthy and gave the most appropriate eye account
of the accident. The judgment of the trial court, therefore,
suffered from errors of law and in appreciation of
evidence both. The interference by the High Court with
c the judgment of acquittal passed by the trial court does
not suffer from any jurisdictional error. [Paras 37, 38 and
39] [266-B; 269-E-H; 270-A-G]
State of U.P. v. Banne and Anr. (2009) 4 SCC 271; State
of Haryana v. Shakuntala and Ors. 2012 (4) SCALE 526 -
D relied on.
Case Law Reference:
(2012) 2 sec 648 Referred to Para 15
E 2007 (11) SCR 987 Referred to Para 16
2000 (2) Suppl. SCR 15 Relied on Para 17
(2003) 9 sec 208 Relied on Para 19
2008 (14) SCR 405 Relied on Para 28
F
2010 (15) SCR 452 Relied on Para 28
(2012) 5 sec 738 Referred to Para 28
1973 (2) SCR 377 Relied on Para 29
G 2010 (2) SCR 633 Referred to Para 30
(2012) 4 sec 101 Referred to Para 30
2010 (10) SCR 916 Relied on Para 31
H 2012 (6) SCALE 381 Relied on Para 32
RAVI KAPUR v. STATE OF RAJASTHAN 241
(2009) 4 sec 211 Relied on Para 37 A
2012 (4) SCALE 526 Relied on Para 37
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1838 of 2009.
B
From the Judgment & Order dated 12.8.2008 of the High
Court of Rajasthan at Jaipur Bench, in S.B. Crl. Appeal No. 589
of 2007.
P.S. Patwalia, Shankar Divate for the Appellant.
c
Suryanarayana Singh, Pragati Neekhra for the
Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is D
directed against the judgment of the High Court of Judicature
for Rajasthan at Jaipur Bench, Jaipur, dated 12th August, 2008.
2. The facts giving rise to the present appeal in brief are :
One Sukhdev Singh, PW2, had informed and made a E
statement, parcha bayan, Ex.P2, to the police at the police
station M.l.A. Alwar on 20tlT 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
F
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 G
coming from Baggad Tiraya side at a very high speed. The
driver of the Maruti car imm~diately turned his car to one side
to save himself and the bus C(ashed 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 H
242 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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 'IPC') was
registered against the accused Ravi Kapur. The Investigating
C Officer, PW11, conducted the investigation, prepared the site
plan, Ex.P3, and recorded the statement of various witnesses.
A chargesheet [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
D IPC. 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
E Officer himself. Upon closing of the case of the prosecution, all
the incriminating evidence against the accused was put before
him and his statemet1t 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,
F 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 above-mentioned charges. At this stage itself,
we may refer to the relevant extract of the judgment of the trial
G 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
H officer. The Court has to consider testimonies adduced by
RAVI KAPUR v. STATE OF RAJASTHAN 243
[SWATANTER KUMAR, J.]
these witnesses and has to see whether it is proved from A
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 B
lodged first information report has stated in his parcha
statement Ex.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 c
distance of 20 Ft. from each other. One bus came no. RNA-
339 towards them near Sagar tiraha 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
0
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 E
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 F
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 G
above vehicles. Therefore, in the circumstances there is
contradiction in the statements of this witnes~ 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 H
244 SUPREME COURT REPORTS [2012J 10 S.C.R.
A 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
B 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
c 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
D 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
E the jeep by the driver of the jeep. Because 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
F 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
G
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 over-taking of the middle vehicle.
RAVI KAPUR v. STATE OF RAJASTHAN 245
[SWATANTER KUMAR, J.]
Whereas this witness ought to have been proved that the A
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 B
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 c
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 0
Kapur was driving the bus no. RNA-339. lnfact 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 E
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 F
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 G
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 H
246 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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'),
B 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 PW.2 Sukh Dev
Singh, Multhan Singh P.W.4 stated that the accused
c 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 Vehicle
upon the owner has no relevancy. As such, in the light of
the statement of PW.2 Sukh Dev Singh and P.W.4 Multhan
D Singh no identification parade is necessary. The FIR
Ex. P.1 shows that the name of the accused respondent
has already mentioned."
6. The High Court convicted the accused under Section
E 304-A IPC 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
IPC, awarding him six months simple imprisonment with fine
of Rs.1000/-, in default of payment of fine to undergo one month
F simple imprisonment and one month simple imprisonment with
fine of Rs.500/-, in default of payment of fine to undergo 15
days rigorous 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.
G
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
H be set aside. The learned counsel has raised the following
RAVI KAPUR v. STATE OF RAJASTHAN 247
[SWATANTER KUMAR, J.)
submissions: A
(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
8
an appeal against an artier 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 c
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. o
(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.
E
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 F
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 G
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 H
248 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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 PW2, PW4 and PW11 clearly establish
the case of rash and negligent driving by the accused. There
is no material contradiction between the statements of the
B 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
C 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
0
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
E 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 re.suit.
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.
F Even when one is driving 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 IPC. That is why the legislature in its wisdom has used the
words 'manner so rash or negligent as to endanger human life'.
G 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 IPC is
H attracted.
RAVI KAPUR v. STATE OF RAJASTHAN 249
[SWATANTER KUMAR, J.]
11. 'Negligence' means omission to do something which A
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 B
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 c
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 D
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
~ttains a higher degree when the pedestrian happen to be
children of tender years. It is axiomatic to say that while driving E
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. F
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 G
causes and that in such a case, the mere 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 acsident occurred. The
courts have also applied the principle of res ipsa loquitur in H
250 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
IPC that the vehicle is driven in a manner dangerous to public
life. Where a person does such an offence he is punished as
B 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
c 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
0
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
E 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
F 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
G 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
H such questions. In the case of Alister Anthony Pareira v. State
RAVI KAPUR v. STATE OF RAJASTHAN 251
[SWATANTER KUMAR, J.]
of Maharashtra [(2012) 2 SCC 648] where the driver of a 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
appeal, laid down the tests to determine criminal culpability on
the basis of 'knowledge', as follows : B
"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 C
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 D
may cover the cases of rash or negligent act done with the
knowledge of the likelihood of its dangerous
consequences and may entail punishment under Section
304 Part II IPC. Section 304-A IPC takes out of its ambit
the cases of death of any person by doing any rash or E
negligent act amounting to culpable homicide of either
description."
16. Again, in the case of Naresh Giri v. State of M.P.
[(2008) 1 sec 791], where a train had hit a bus being driven
F
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 IPC to Section 304-A IPC, observed
"7. Section 304-A IPC applies to cases where there is no G
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 IPC. Section 304-A applies only to such acts which
are rash and negligent and are directly the cause of death H
252 SUPREME COURT REPORTS [2012) 10 S.C.R.
A 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
B
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
c 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
D 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
E ;ash 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
F 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
G death of other. The death so caused is not the determining
factor.
9. What constitutes negligence has been analysed in
Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p.
3), as follows:
H
RAVI KAPUR v. STATE OF RAJASTHAN 253
[SWATANTER KUMAR, J.]
"1. General principles of the law of negligence.- A
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 B
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 c
which can be reasonably foreseen to be likely to cause
physical 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 0
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 care
to a third person does not enable the plaintiff who is also
injured by the same act to claim unless he is also within
E
the area of foreseeable danger. The same act or omission
may accordingly in some circumstances involve liability as
being negligent, although in other circumstances it will not
do so. The material considerations are the absence of
care which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and damage F
suffered by the plaintiff, together with a demonstrable
relation of cause and effect between the two."
13. According to the dictionary meaning "reckless" means
"careless", regardless or heedless of the possible harmful G
consequences of one's acts. It presupposes that if thought
was given to the matter by the doer before the act was
done, it would have been apparent to him that there was
a real risk of its having the relevant harmful consequences;
but, granted this, recklessness covers a whole range of H
•
254 SUPREME COURT REPORTS [2012] 10 S.C.R.
A states of mind from failing to give any thought at all to
whether or not there is any risk of those harmful
consequences, to recognising the existence of the risk and
nevertheless deciding to ignore it."
17. In the case of Mohd. Aynuddin alias Miyam v. State
B 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
C 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
D 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,
E
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
F in the sense that it was done without due care and caution.
Culpable rashness lies in running the risk of doing an act
with recklessness and with indifference as to the
consequences. Criminal negligence is the failure to
exercise duty with reasonable and proper care and
G precaution guarding against injury to the public generally
or to any individual in particular. It is the imperative duty of
the driver of a vehicle to adopt such reasonable and proper
care and precaution."
18. In light of the above, now we have to examine if
H negligence in the case of an accident can be gathered from
RAVI KAPUR v. STATE OF RAJASTHAN 255
[SWATANTER KUMAR, J.]
the attendant circumstances. We have already held that the A
doctrine of res ipsa loquitur is equally applicable to the cases
of accident and not merely to the civil jurisprudence. Thus, these
principles can equally be extended to criminal cases provided
the attendant circumstances and basic facts are proved. It may
also be noticed that either the accident must be proved by B
proper and cogent evidence or it should be an admitted fact
before this principle can be applied. This doctrine comes to aid
at a subsequent stage where it is not clear as to how and due
to whose negligence the accident occurred. The factum of
accident having been established, the Court with the aid of c
proper evidence may take assistance of the attendant
circumstances and apply the doctrine of res ipsa loquitur. The
mere fact of occurrence of an accident does not necessarily
imply that it must be owed to someone's negligence. In cases
where negligence is the primary cause, it may not always be
0
that direct evidence to prove it exists. In such cases, the
circumstantial evidence may be adduced to prove negligence.
Circumstantial evidence consists of facts that necessarily point
to negligence as a logical conclusion rather than providing an
outright demonstration thereof. Elements of this doctrine may E
be stated as :
> The event would not have occurred but for
someone's negligence.
> The evidence on record rules out the possibility that
actions of the victim or some third party could be F
the reason behind the event.
> Accused was negligent and owed a duty of care
towards the victim.
19. In the case of Thakur Singh v. State of Punjab [(2003) G
9 sec 208], the petitioner drove a bus rashly and negligently
with 41 passangers and while crossing a bridge, the bus fell
into the nearby canal resulting in death of all the passengers.
The Court applied the doctrine of res ipsa loquitur since
admittedly the petitioner was driving the bus at the relevant time H
256 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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
B 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
c 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
D 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
E the thing which caused injury is shown to have been under
the management and control of the alleged wrongdoer."
21. It has also been stated that the effect of this maxim,
however, depends upon the cogency of the inferences to be
F drawn and must, therefore, vary in each case. In light of these
principles, let us examine the facts of the present case and the
evidence on record. The contention raised is that there is not
even an iota of evidence to show that either the accused was
driving the vehicle or, as alleged, he was driving the same
rashly and negligently. The concerned police officer had
G recorded 'Parcha statement' (Exhibit P2) of Sukhdev, who in
Court was examined as PW2. In furtherance to this statement,
a First Information Report (FIR) was registered. It was stated
in this document that on 20th April, 1991, Sukhdev was going
from Alwar to Govindgarh sitting in the jeep to attend the
H marriage of his brother-in-law. It was at aqout 9.15 a.m. when
RAVI KAPUR v. STATE OF RAJASTHAN 257
[SWATANTER KUMAR, J.]
they reached near crossing of Bagad Tiraya, ahead of that jeep A
was one jeep RNA 638 in which his wife and other family
members were travelling. One more Maruti van was running
ahead of that jeep. A bus RNA 339 was approaching in fast
speed from the side of Baggad. Maruti van which having saved
itself took to the side and the driver of the Bus with an intention B
to kill the passengers collided with the jeep RNA 638. Chet
Kaur, Rinki, Geeta and the driver died at the spot and the
condition of the rest, i.e., Niranjan Singh, Lahori Singh, Kailash,
Vainto and Tinku was serious. They were admitted to hospital.
At the time of the accident, the bus was being driven by Ravi c
Kumar (Kapur) who was identified by the passersby who told
his name to Sukhdev. Along with him, others sitting in the jeep
also identified the bus driver. The driver parked the vehicle
beneath the pit on the road and fled away. Upon his
examination as PW2, this witness stated that the Maruti van got 0
down on the kachha road side and even their own jeep was
pulled to the kachha side but the third jeep collided with the bus
from the front side. He identified that the accused person in the
Court was driving the bus himself and confirmed his statement
in parcha bayan (statement), Exhibit P2. He was subjected to
a detailed cross-examination in which he admitted that he did E
not see the bus driver while sitting in the jeep, though he had
seen the accused while the accused 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 F
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 G
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 H
258 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 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. l-le stated that he was sitting in the
8
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 his head and back. When he
got down and stood, he saw the driver running away. Though
C he was injured, he claims to have seen the driver and confirmed
that the said driver was present in Court and identified the
accused. In his cross-examination, he stated that on collision,
he heard sound like cracker burst.
0 25. PW11, Sohan Lal, is the investigating officer who
confirmed having written the 'parcha statement' in furtherance
to which he proceeded to the site and thereafter recorded the
FIR No.119/91 under Section 304 IPC. He prepared the site
plan, Exhibit P29/P3 of the place of occurrence, prepared
E inquest reports and seized bus No.RNA 339 vide seizure
memo Exhibit P31 and the jeep vide seizure memo Exhibit
P32. In his cross-examination, he admitted that the place of
occurrence was a turn around. He did not remember whether
the jeep hit the front of the bus and it was not recorded in Exhibit
F P32 as to which portion of the jeep hit the bus. He stated, "I
don't know whether driver Ravi Kapur was present at the spot
or not. I don't know whether the bus passengers were there or
not. But bus was there. I tried to inquire from the passengers
but they had already left. Test identification of accused was not
got done from the injured because all the people present at the
G spot had already told me about the accused".
26. According to the learned counsel appearing for the
appellant, there are contradictions in the statements of these
witnesses and the site plan Exhibit P29/P3 does not exhibit any
H negligence on behalf of the appellant. The appellant was not
RAVI KAPUR v. STATE OF RAJASTHAN 259
[SWATANTER KUMAR, J.]
driving the vehicle involved in the accident and as such he is A
entitled to acquittal.
27. We are not impressed with this contention. Firstly, the
bus was seized vide seizure memo Exhibit P31 and was later
on given on superdari to the owner of the bus, i.e., the accused.
This bus was certainly involved in the accident, in fact, there is
B
no serious dispute before us that the accident between the jeep
RNA 638 and the bus RNA 339 took place at the place of
occurrence. If one examines Exhibit P29/P3, it is clear that it
was a narrow road which was about 18 ft. in width and the
accident had occurred at a turning point of the road. The C
accident took place at point 8. The jeep in which number of
people died remained stationed at or around point XA while
the point 8 shows mud divider (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 D
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 E
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 F
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 G
vehicle at a place away from the place of occurrence, he had
run away. We have no reason to disbelieve the statements of
these witnesses which are fully supported by the documentary
evidence, Exhibit P2, to which there was hardly any challenge
during the cross-examination of PW11. We are unable to notice H
260 SUPREME COURT REPORTS [2012] 10 S.C.R.
A any serious or material contradiction in the state·ments of the
prosecution witnesses much less in Exhibit P2, the parcha
statement of PW2. Minor variations are bound to occur in the
statements of the witnesses when their statements are recorded
after a considerable lapse from the date of occurrence. The
B Court can also not ignore the fact that these witnesses are not
very educated persons. The truthfulness of the witnesses is also
demonstrated from the fact that PW1, even in her examination-
in-chief, stated that she was unconscious and did not see the
driver. Nothing prevented her from making a statement that she
C had actually seen the accused. Thus, we have no hesitation in
holding that the three witnesses, i.e., PW1, PW2 and PW4
have given a correct eye account of the accident. We find their
statements worthy of credence and there is no occasion for the
Court to disbelieve these witnesses. It is a settled principle that
the variations in the statements of witnesses which are neither
0
material nor serious enough to affect the case of the
prosecution adversely are to be ignored by the courts. {Ref.
State v. Saravanan and Anr. [(2008) 17 SCC 587]; and Suni/
Kumar Sambhudaya/ Gupta v. State of Maharasthtra [(2010
13 SCC 657]}. It is also a settled principle that statements of
E the witnesses have to be read as a whole and the Court should
not pick up a sentence in isolation from the entire statement
and ignoring its proper reference, use the same against or in
favour of a party. The contradictions have to be material and
substantial so as to adversely affect the case of the
F prosecution. Reference in this regard can be made to
Atmaram & Ors. v. State of Madhya Pradesh [(2012) 5 SCC
738].
29. In the case of Nageshwar Shri Krishna Ghobe v. State
G of Maharasthra [(1973) 4 SCC 23], this Court observed that
the statements of the witnesses who met with an accident while
travelling in a vehicle or those of the people who were travelling
in the vehicle driven nearby should be taken and understood
in their correct perspective as it is not necessary that the
H occupants of the vehicle should be looking in the sarne
RAVI KAPUR v. STATE OF RAJASTHAN 261
[SWATANTER KUMAR, J.]
direction. They might have been attracted only by the noise or A
the disturbance 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
B
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 c
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 D
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 E
persons may feel disinclined to take any further interest in
the matter, whatever be the reason for this disinclination.
If, however, they do feel interested in going to the spot in
their curiosity to know some thing more, then what they may
happen to see there, would lead them to form some F
opinion or impression as to what in all likelihood must have
led to the accident. Evidence of such persons, therefore,
requires close scrutiny for finding out what they actually saw
and what may be the result of their imaginative inference.
Apart from the eye-witnesses, the only person who can be G
considered to be truly capable of satisfactorily explaining
as to the circumstances leading to accidents like the
present is the driver tlimself or in certain circumstances to
some extent the person who is injured. In the present case
the person who died in the accident is obviously not
H
262 SUPREME COURT REPORTS [2012] 10 S.C.R.
A available for giving evidence. The bhaiya (Harbansingh)
has also not been produced as a witness. Indeed, failure
to produce him in this case has been the principal ground
of attack by Shri Pardiwala and he has questioned the
bona fides and the fairness of the prosecution as also the
B trustworthiness of the version given by the other witnesses."
30. The learned counsel for the appellant, while relying
upon the judgment of this Court in the case of Mui/a & Anr. v.
State of Uttar Pradesh [(2010) 3 SCC 508] and Amit v. State
of Uttar Pradesh [(2012) 4 sec 107], argued that none of the
C witnesses had actually seen the a_ccused driving the vehicle
and, therefore, in absence of the test identification parade, it
has to be held that the accused was not driving the vehicle and
that he was not identified. In the case of Mui/a (supra), relied
upon by the learned counsel, the Court had observed that it is
D desirable that a test identification parade should be conducted
as soon as possible after the arrest of the accused to avoid
any mistake on the part of the witnesses.
31. On the other hand, to contra this submission, the
E learned counsel appearing for the State relied on the judgment
of this Court in the case of Myladimmal Surendran & Ors. v.
State of Kera/a [(2010) 11 SCC 129] to say that the test
identification parade in the facts and circumstances of the case
was not necessary and in any case no prejudice has been
caused to the accused and holding of test identification parade
F is not always necessary.
32. In the present case, the accused had been seen by
PW2 and PW4. In addition, they had also stated that the
passersby had informed them that the accused was driving the
G bus and, in fact, he was the owner of the bus. One fact of this
statement is estaolished 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
H the accused in the Court. It is not the case of the accused before
RAVI KAPUR v. STATE OF RAJASTHAN 263
[SWATANTER KUMAR, J.]
us that he had been shown to the witnesses prior to his being A
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 B
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 C
Procedure, 1973 (for short "Cr.P.C.) does not oblige the
investigating agency to necessarily hold the test identification
parade without exception. The Court held as under:
"55. On behalf of accused Shyamal, it was also contended
that despite the identification parade being held, he was D
not identified by the witnesses and also that the
identifica,tion parade had been held after undue delay and
even when details about the incident had already been
telecasted on the television. Thus, the Court should not rely
upon the identification of the accused persons as the E
persons involved in the commission of the crime and they
should be given the benefit of doubt.
56. The whole idea of a Test Identification Parade is that
witnesses who claim to have seen the culprits at the time
of occurrence are to identify them from the midst of other F
persons without any aid or any other source. The test is
done to check upon their veracity. In other words, the main
object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses
based upon first impression and also to enable the G
prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime.
57. It is equally correct that the CrPC does not oblige the
investigating agency to necessarily hold the Test H
264 SUPREME COURT REPORTS [2012] 10 S.C.R.
A Identification Parade. Failure to hold the test identification
parade while in police custody, does not by itself render
the evidence of identification in court inadmissible or
unacceptable. There have been numerous cases where the
accused is identified by the witnesses in the court for the
B first time. One of the views taken is that identification in
court for the first time alone may not form the basis of
conviction, but this is not an absolute rule. The purpose of
the Test Identification Parade is to test and strengthen the
trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
c corroboration of the sworn testimony of the witnesses in
court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings.
This rule of prudence is, however subjected to exceptions.
Reference can be made to Munshi Singh Gautam v.
D State of M.P.[(2005) 9 SCC 631], Sheo Shankar Singh
v State of Jharkhand and Anr. [(2011) 3 SCC 654].
58. Identification Parade is a tool of investigation and is
used primarily to strengthen the case of the prosecution
E 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
F
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."
G 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
H reasonable period, when after parking the bus, he got down
RAVI KAPUR v. STATE OF RAJASTHAN 265
[SWATANTER KUMAR, J.)
from the bus and ran away. A
34. Equally without merit is the contention on behalf of the
appellant that the Court should draw adverse inference against
the prosecution as the investigating officer did not serve notice
under Section 133 of the Act upon the owner of the vehicle. The
8
High Court has rightly rejected this contention on the basis that
the driver of the vehicle was identified at the place of occurrence
and even passersby had informed the prosecution witnesses
that the driver, Ravi Kapur, was the owner of the vehicle. The
name of the accused was duly recorded in the FIR itself. This
fact remained undisputed. With some emphasis, it was even C
argued before us that he was not driving the vehicle, though it
was not disputed that he is the registered owner of the vehicle
in question. If that be so, when the statement of the accused
under Section 313 of the Cr.P.C. was recorded by the Trial
Court, except denial, he did not state anything further. For D
reasons best known to the accused, instead of stating as to
whom he had given his vehicle for being driven on that date,
he preferred to maintain silence and denied the case of the
prosecution.
E
35. It is true that the prosecution is required to prove its
case beyond reasonable doubt but the provisions of Section
313 Cr.P.C. are not a mere formality or purposeless. They have
a dual purpose to discharge, firstly, that the entire material parts
of the incriminating evidence should be put to the accused in
F
accordance with law and, secondly, to provide an opportunity
to the accused to explain his conduct or his version of the case.
To provide this opportunity to the accused is the mandatory duty
of the Court. If the accused deliberately fails to avail this
opportunity, then the consequences in law have to follow,
particularly when it would be expected of the accused in the G
normal course of conduct to disclose certain facts which may
be within his personal knowledge and have a bearing on the
case.
36. In our considered view, no prejudice has been caused H
266 SUPREME COURT REPORTS [2012] 10 S.C.R.
A to the accused by non-serving of the notice under Section 133
of the Act and, in any case, the accused cannot take any
advantage thereof.
37. Lastly, we may proceed to discuss the first contention
raised on behalf of the accused. No doubt, the Court of appeal
8 would normally be reluctant to interfere with the judgment of
acquittal but this is not an absolute rule and has a number of
well accepted exceptions. In the case of State of UP v. Banne
& Anr. [(2009) 4 SCC 271], the Court held that even the
Supreme Court would be justified in interfering with the
C 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
& Ors. [2012 (4) SCALE 526], this Court held as under:
D "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
E
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,
F 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 would be no reason for this Court to
G interfere with the order of acquittal.
37. In Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007)
7 SCC 625], this Court held as under:-
"28. Regarding setting aside acquittal by the High
H Court, the learned Counsel for the appellant relied
RAVI KAPUR v. STATE OF RAJASTHAN 267
[SWATANTER KUMAR, J.]
upon Kunju Muhammed v. State of Kera/a (2004) A
9 SCC 193, Kashi Ram v. State of MP. AIR 2001
SC 2902 and Meena v. State of Maharashtra
2000 Cri LJ 2273. In our opinion, the law is well
settled. An appeal against acquittal is also an
appeal under the Code and an Appellate Court has 8
every power to reappreciate, review and reconsider
the evidence as a whole before it. It is, no doubt,
true that there is presumption of innocence in favour
of the accused and that presumption is reinforced
by an order of acquittal recorded by the Trial Court. C
But that is not the end of the matter. It is for the
Appellate Court to keep in view the relevant
principles of law, to reappreciate and reweigh the
evidence as a whole and to come to its own
conclusion on such evidence in consonance with the
principles of criminal jurisprudence." D
38. In Chandrappa v. State of Kamataka [(2007) 4 SCC
415], this Court held as under:-
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the E
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon F
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on G
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions", H
268 SUPREME COURT REPORTS (2012) 10 S.C.R.
A "glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere with
B acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
c 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
D 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
E 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
F 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
G 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
H judgment which led it to hold that the acquittal is not
RAVI KAPUR v. STATE OF RAJASTHAN 269
[SWATANTER KUMAR, J.]
justified. In those line of cases this Court has also A
held that the appellate court must also bear in mind
the fact that the trial court had the benefit of seeing
the witnesses in the witness box and the
presumption of innocence is not weakened by the
order of acquittal, and in such cases if two B
reasonable conclusions can be reached on the
basis of the evidence on record, the appellate court
should not disturb the finding of the trial court. (See
Bhim Singh Rup Singh v. State of Maharashtra
and Dharamdeo Singh v. State of Bihar. )" c
40. The State has not been able to make out a case of
exception to the above settled principles. It was for the
State to show that the High Court has completely fallen in
error of law or that judgment in relation to these accused
was palpably erroneous, perverse or untenable. None of D
these parameters are satisfied in the appeal preferred by
the State against the acquittal of three accused."
38. In the present case, there are more than sufficient
1
reasons for the High Court to interfere with the judgment of E
acquittal recorded by the Trial Court. Probably, this issue was
not even raised before the High Court and that is why we find
that there are hardly any reasons recorded in the judgment of
the High Court impugned in the present appeal. Be that as it
may, it was not a case of non-availability of evidence or
F
presence of material and serious contradictions proving fatal
to the case of the prosecution. There was no plausible reason
before the Trial Court to disbelieve the eye account given by
PW2 and PW4 and the Court could not have ignored the fact
that the accused had been duly identified at the place of
occurrence and even in the Court. The Trial Court has certainly G
fallen in error of law and appreciation of evidence. Once the
Trial Court has ignored material piece of evidence and failed
to appreciate the prosecution evidence in its correct
perspective, particularly when the prosecution has proved its
case beyond reasonable doubt, then it would amount to failure H
270 SUPREME COURT REPORTS [2012) 10 S.C.R.
A of justice. In some cases, such error in appreciation of evidence
may even amount to recording of perverse finding. We may also
notice at the cost of repetition that the Trial Court had first
delivered its judgment on 24th June, 1999 convicting the
accused of the offences. However, on appeal, the matter was
B remanded on two grounds, i.e., considering the effect of non-
holding of test identification parade and not examining the
doctor. Upon remand, the Trial Court had taken a different view
than what was taken by it earlier and vide judgment dated 11th
May, 2006, it had acquitted the accused. This itself became a
c ground for interference by the High Court in the judgment of
acquittal recorded by the Trial Court. From the judgment of the
Trial Court, there does not appear to be any substantial
discussion on the effect of non-holding of the test identification
parade or the non-examination of the doctor. On the contrary,
the Trial Court passed its judgment on certain assumptions.
0
None of the witnesses, not even the accused, in his statement,
had stated that the jeep was at a fast speed but still the Trial
Court recorded a finding that the jeep was at a fast speed and
was not being driven properly. The Trial Court also recorded
E that a suspicion arises as to whether Ravi Kapur was actually
driving the bus at the time of the accident or not and
identification was very important.
39. We are unable to understand as to how the Trial Court
could ignore the statement of the eye-witnesses, particularly
F when they were reliable, trustworthy and gave the most
appropriate eye account of the accident. The judgment of the
Trial Court, therefore, suffered from errors of law and in
appreciation of evidence both. The interference by the High
Court with the judgment of acquittal passed by the Trial Court
G does not suffer from any jurisdictional error.
40. For the reasons afore-recorded, we find no merit in the
present appeal. The same is dismissed accordingly.
K.K.T. Appeal dismissed.
H
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