SYAD AKBAR v. STATE OF KARNATAKA (2)

Citation: [1980] 1 S.C.R. 95

Court: Supreme Court of India

Bench: R.S. SARKARIA, R.S. PATHAK

Case summary

By a short order we had allowed this appeal by special leave directed against a judgment, dated March 22, 1978, of the High Court of Karnataka, and acquitted the appellant.

Judgment text

SYAD AKBAR v• • STATE OF KARNATAKA July 25, 1979 [R. S. SARKARIA AND R. S. PATHAK, JJ. ] Evidence Act-Res ipsa loquitur-If applicable in criminal trials-Appellani driving a bus 011 a narrow road with deep ditches on both sides-A child suddenly atte1npts to cross the road-Bus swerved to riglzt-Child crushed to death- Prosecution declared eye witness hostile-Driver-If could be held negligent. Hostile witnesses-Cross-examined by prosecution-Their evidence-If could be treated as washed off the record. The appellant, who was a driver of a bus, was driving the vehicle by road which ran through a ' Andrews v. Director of Public Prosecutions, [1937] 2 All. E. R. . S52: [1937] AC 576, referred to --t (d) (i) Und\! rstood in the broad, general sense as by the other line of approach-. 1nly as a convenient ratiocinative aid in assessment of evidence a. nd in drawing permissive inferences under s. 114, Evidence Act, re.

s ipsa loquitur Ecan be usefully invoked in the trial of criminal cases wherein the negligence· of the accused is a fact in issue. Such functional use vf the n1axim will not conflict with the provisions and principles of the Evidence Act, peculiar to criminal jurisprudence. [107G] (ii). However such sin1plified and pragmatic application of the notion of F re. ~ ipsa loquitur as a part of the general nlode of inf~rring a fact in issue . ) ,. fron1 another circumstantial fact, is subject to all the conditions the satisfa-ction of which is essential before an accused can be convicted on the basi. 5 of circumstantial evidence alone. These conditions are : (i) All the circumstances including the objcclive circumstance.

s constituting the accident, must be finnly esta·hlishcd; (ii) those circumstances must be of a determinative' tendency pointing unerringly towards the guilt of the accused, and (iii) the circurr1~tances c;;hould G: make the chain so complete that they cannot reasonably raise any other hypothesis save that of the guilt of the accused. [108A-B] In the instant case, the n1a·xim could have no application. The circumstance of taking the bus suddenly to the extreme right of the road, which was the reascn given by th~ courts below for invoking the maxim, Jid not bespeak in clear and unambiguous vo-ice, negligence on the appellant's part to exercise due care and conhol. ? \Ioreover, the appellant ga·ve a reasonable and convincing explanation of his conduct in swerving the vehicle to the right aed his version, \Vas fully supported by four prosecution witnesses. ( The mother firmly told the child to return home and then crossed the road and descended the deep ditch on the right side.

The child ·~:as undecided for a while but then, suddenly ran across the road. The appellant who had slowed • down the vehicle earlier, suddenly saw the child at a short distance ahead of the .. bus. It was difficult for him to judge with any degree of accuracy whether the child ,.. ,ould go back or da~h forward. The question for the driver at that point of time was ·whether to swerve to the left or to the right. The road was narrow \Vilh deep ditches on both sides. To swerve to the extreme left \\'otild have nieant taking as much risk of rolling the bus down the ditch as swerving it to the extreme right. He could not, without incurring far greater risk to many in the bus, take the vehicle off-course further to the right beyond the point he did. Had the bus gone further than it Jid, towards the right, it would haove met \Vith a much bigger disaster. His calculations went wrong and he failed in his attempt to avoid the accident.

Clearly, th'erefore, the accident occ11Trt planation, to justify the conclusion that most ~ probably the defendant was negligent and that his negligenc0 caused the injury". ' I As a rule, mere proof that an event has happened or an accident ~ ,. has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear ~ ,' and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa /oquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated, that in such cases, the event or acciclent must be of a kind which does not happen in the mdinary course of things if those who have the management and control use due care.

But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it boas to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is 1hat wl1ere the defendant has control of the thing caused the injury, he is in a better position than the plaintiff to explain how the ~ccident occurred. Instances of such special kind of accidents which "tell their own story" of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects -r over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on-collision on ~ the wrong side of the road. Seelper Lord Normand in Barkway v. 2 South Wales Transport Co. ('); Cream v. Smith( ) and Richlev v. Fanll('). Th•1s.

for the application of the maxim res ipsa loquitur "no less important a requirement is that the res must not only be speak negli- • ). " gence, but pin it on the defendant. " "It is now to be seen, how does res ipsa loquitur fit in with the conceptual pattern of the Indian Evidence Act. Under the Act, the general mle is that the burden of proving negligence as cause of the accident, lies on the party who alle~s it. But that party can take advantage of presumptions which may be available to him, to lighten th. at burden. Presumptions are of three types : (I) [1950j I All. E. R. 392 at 399. (2) [1961] 8 All. E. R. 349. (3) [1965] I W. L. R. 1454. 8-475 SCl/79 ' • (i) Permissive presumptions or presumptions of fact. (ii) Compelling presumptions or presumptions of law (rebut-table). (iii) Irrebuttable presumption of law or 'conclusive '1toof. '. · ·Cl•auses (i), (ii) and (iii) are indicated in clauses (1), (2) and (3) respectively, of Section 4, Evidence Act.

'Presumptions ol fact' are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitulion of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs.. Section 114 is a general section dealing with presumptions of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumptions, the Act allows the judge a discretion in each case to decide whether the fact which under section 114 may be presumed has been proved by virtue of that presumption. In case of a 'Presumption of Law' no discretion h'is been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprov0 it. Instances ot such presumptions are to be found in sections 79, 80, 81, 83, 85, 89 and 105, Evidence Act.

The distinction between the effect of the first and the second kind of presumptions on the burden of proof, is important. Presumptions of Fact merely affect the "bur reasoning, Fleming has opined that "the maxim is based merely on an estimate of logical probability in a particular case not on any overriding legal policy that controls initial allocation of the burdeu of proof or, by means of mau- ---·------ (! ) . [1966] 57 D. L. R. 2d 63. (2) [1968] ll C. L. R. 403. (3) [1937] S. C. R. 294 SYAD AKBAR v. KARNATAKA (Sarkaria, J. ) )05 datory presumptions, its reallocation regardless of the probabilities of,the particular instance". Fleming, then illustrates this proposition, by giving an example, which for our purpose, is pertinent : " .... If a Truck suddenly swerves across the road and knocks into· a car drawn up on the shoulder of the opposite side, this would without more raise an inference of negligence against the driver.

Yet the plaintiff would fail, if the Trier of the fact at the end of the case deems it no less probable tlrat the accident was caused by an unexpcctablc break of the steering arm than by culpable maintenance of the wheel assembly. " (Emphasis supplied) From what has been said above, it is clear that even in an action in torts, if the defendant gives no rebutting evidence but a reasonable explanation, equally consistent with the presence as well as with the absence of negligence, the presumptions or inferences based o,n res ipsa loquitur can no longer be sustained. The burden of proving the affirmative, that the defendant was negligent and the accident occurred by his negligence, still remains with the plaintiff; and in such a situation it will be for the Cour1 to determine at the time of judgment whether the proven or undisputed facts, as a whole, disclose negligence. [See Ballard's case (supra); The Kite(! ); Per Evatt J. in Davis v. Bunn('), Mummary v. Irvings Proprietary Ltd.

(Australia)('); Winnipeg E/ect,rical Company Ltd. v. Jacob Geal(') See also : Brown v. Rolls 6 Royce Ltd. ('); Hendersons v. Henry E. Jenkins and Sons( ). From the above conspectus, two lines 9f approach in regard to t11e application and tffeet of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies it operates as an exception to the general rule that the burden of proof of tile alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway, or overturns, or in fair visibility runs into an obstacle; or brnshes the branches of an overhanging tree, resulting in injury or where 1here is a duty on the defendant to exercise care; ·and (1) [1933] p. 154. (2) [1936] 56 C. L. R. 246 at 267. (3) [1956] 96 C. L. R. 99. (4) AIR 1932 p. c, 246. (5) [1960] 1 All. E. R. 577.

(6) [1970] A. E. 282. the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in lhe first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts. [For instance, see Burke 1 v. Manchester, Sheffield & Lincolshire Rail Co. ,( ) Moore v. R. Fox & Sons('). Also see Paras 70, 79 and 80 of Halsbury's Laws of England, Third Edition, Vol. 28, and the rulings mentioned in the Foot Notes thereunder].

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 or 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 cnly, 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(•) only moons, 'that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence. . . . It :nean> that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of thing which is complained of.

" In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down t)iat the application of the maxim shifts or casts even in the first instance, the bnrden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where t1e accused stands charged for causing injury or death (I) [1870122 L. J. 442. (2) [1956] I. Q. B. 596. (3) Russell v. London and South-Western Railway Co. [1908] 24 T. L. R. 54g SYAD AKBAR v. KARNATAKA (Sarkaria, J. ) 107 by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are : Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent.

Until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own stocy" of negligence 01 somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable 1nnowu 1snw l[! n'il JO no1suns1ad ~l! l 's1lUJpaaJ01d JUU! W! l(l D! 1nq 'iqnop to such a moral certainty as convinces the mind of the Court, as reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution mnst be culpable or gross and not the negligence merely based upon an error of judgment.

As pointed out by Lord 1 Atkin in Andrews v. Director of Public Prosecutions( ), "simple Jack of care such as will constitute civil liability, is not enough;" for liabilllY under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied, 'rec~less' most ne2. riy covers the case''.

However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line Of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under section 114, Evidence Act, from the circumstances ot the particular case, including the constituent circumstances of the acci- ' dent, established in evidence, with a view to come to a conclusion at the time of judgment whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such h11rnessed, fu:1ctional use of the maxim will not conffict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cogn. ate matters, peculiar to criminal jurisprudence.

Such simplified and pragmatic application of the notion of res ipm loquitur, as a rart of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the (I) [1937] 2 All E. R. 552-[1937] AC 576 satisfaction of which is essential before an accused ran be cecnvicted on the basis of circumstantial evidence alone. Those are : Firstly, all the citcnmstances, including the objective circumstances constituting . the ... accident, from which the inference of guilt is to be drawn, must be fiirt1ly" established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused·s guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.

Let us now see whether the appellant, in the instant case, could with the aid of res ipsa, as explained and described in the preceding paragraph, be held guilty of causing death by negligent or rash driving. The primary reason given by the courts below for invoking the maxhn is that tlie appellant had swerved the bus to the extreme right side c'il' the road, where the unfortunate child, who came running from the left side of the road, struck against the bus and was fatally knocked down by its left· front wheel. In our opinion, this circumstance of taking the vehicle suddenly to the extreme right of the road, did not bespeak negligence or dereliction of duty to exercise due care and control, on the part of the accused in clear and u11ambig11ous voice. Nor could it be said, that the cause ' of swerving the vehide 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 bave no manner of application. The picture of the occurrence that can be gathered and pieced together from the statement of the accused recorded under section 3 l 3, Criminal Procedure Code, and the testimony of the eyewitnesses, is that when the mother was about to cross the road, she firmly told the child vcho was following her at some distance, not to follow her, but to return home. The child it seems, stopped for a moment in the road. probably on its left side, while the mother went ahead, crossed the road and descended into the deep ditch on the other side from where, according to her own admission, she could not see the bus approaching the scene of occurrence.

The child was, it seems, for the moment undecided as to whether it should go back or go forward after the mother, and then ·ran or was poised to run •awards the right of the road. It was just at this juncture the accused, who according to the passenger-witnesses was driving the vehicle slowly, suddenly saw . SYAD AKBAR v. KARNATAKA (Sarkaria, !. ) 109 the child . a £hort distance ahead of the bus, in the road. In that situation, it was extremely difficult, even for a mutious and skilled driver in the position of the accused, to foresee and judge with accuracy as to whether the child would go back to the left or shoot forward to the right side of the road. In that split second he had to decide about the better course to be adopted to avoid a collision with the ____... child. Whether it was better to swerve the vehicle to the extreme left or to the extreme right side of the road, that was the question for his instant decision. It was in evidence that the metalled road ( .

~re was hardly 12 feet in width, and there were very deep ditches on both sides of the road. Since the child was at that critical moment, initiaily, in the road more towards the left-side, the accused might have thought that if he tried to run past the child from the extreme left, there was every risk of the bus roiling down into the ditch. He therefore, thought that the best way to avoid the ditches and to avoid the collision and forestall the mo'. •o of the child would be to steer tl1e vehicle to the extreme right side, and thus pass and dodge the child by a parabolic manouver. But there was a limit to it. He could not, without incur- Jjng far greater risk of harm to many in the bus, take thei vehicle off-course further to the right, beyond the point he did. It was in evidence (Vide PW 5) that there was a very deep ditch on the right of the road, close to the scene of the accident, e.

nd that if uie bus had gone further towards tl1at side, it would have met with disaster of a far bigger magnitude, resulting in death or injury to the passengers and damage to the whicle. Unfortunately, his calculations went wrong and he failed in his attempt to avoid the accident. It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one in the instant case, which comes to light only on post-accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decisiO! Il the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety. Jn Ilorabin v.

British Overseas Ai~ays Corporation(') the Court was required to consider, more or less an analogous question, namely : whether an act don~ contrary to instructions or standards, necessarily constitutes wilful misconduct on the part of the person doing the act. Borry J. answered this question in 'the negative, with the following observations : (1): 1952] 2 Q. B. D. 1016. /'-- "The mere fact that an act was done contrary to a plan or to ( instructions, or even to the standards of safe-flying, to the knowledge of the person doing it, does not establish wilful misconduct 0n his part, unless it is shown that he knew that he was doing something contrary to the best interests of the passengers and of his employers or involving them in a greater risk than if he had not done it.

A grave error of 8 iudgment, particularly one apparent as such in the light of after events, is not wilful misconduct if the person responsible thought he was acting in the best interest of the passengers and· of the aircraft. " (Emphasis supplied) Though Horabin was a case arising out of an aircraft accident and the observations extracted above were made in the context of an allegation of 'wilful misconduct', yet the reasoning employed and the principle enunciated, particularly in the last sentence which has now been underlined are applicable to the facts of the case before us.

The 'wilful misconduct' or 'wilful default' in issue in HorabinJs case was not very different from a change of negligence, because 'negligence' has two meanings in the law of tort : it may mean either a mental element which is to be inferred from one of the modes in which some torts are committed, or it may mean an independent tort which consists of breach of a legal duty to take care which results m damage, undesired ,___ by the defendant. " (See Earl Jowitt's Dictionary of England Law) As in f-Jorabi11, here also, the accused had swerved •be vehicle to the extreme right side of the road, not only to avoid collision with the ill-fated child but also to avoid the risk of the vehicle falling into deep ditches on either side of the road, with the resultant possibility of far greater harm to the passengers in the bus.

After going through the English translation of the evidence of the witnesses, furnished by the counsel and closely analysing the happening and its circumstances in the light of arguments advanced on both side, we are of opinion that the prosecution had failed to prove beyond reasonable doubt that the appellant had caused the death of the child by negligent or rash driving. All happened in fraction of a moment; and even if the worst was assumed against the appellant, the highest that could be said was that a misjudgment on his part too slight to be branded as culpable negligence, could well account for the accident resulting in the death of the child. These, then, are the reasons which we give in support of our Order by which we had allowed Syad Akbar's appeal and acquitted him. P. B. R. Appeal allowed.