# RAVI KAPUR v. STATE OF RAJASTHAN

- **Citation:** [2012] 10 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 2012-08-16
- **Case number:** Criminal Appeal No. 1838 of 2009
- **Bench:** Swatanter Kumar, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravi-kapur-v-state-of-rajasthan-27943
- **Pages:** 42

## Headnote

A
B
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 appellantaccused u/ss. 279, 337, 338 and 304-A IPC. The
prosecution case was that PW2 made statement (Ex.PH
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 acq

## Text

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[2012] 10 S.C.R. 229
RAVI KAPUR
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1838 of 2009)
AUGUST 16, 2012
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
A
B
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 appellantaccused u/ss. 279, 337, 338 and 304-A IPC. The
prosecution case was that PW2 made statement (Ex.PH
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 1 OJ [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.,
H
'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
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]
c
'An Exhaustive Commentary on Motor Vehicles Act,
1988' by JusticeRajesh Tandon, First Edition, 2010 -
referred to.
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.
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.
B
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] [259B-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
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
F
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] [260D]
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] [264G-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)
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.
F
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
H
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]
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
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
B
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
E
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
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 nonholding of the test identification parade or the nonG
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 eyeB 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
2012 (4) SCALE 526
Relied on
Relied on
Para 37
Para 37
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
No. 1838 of 2009.
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.
Suryanarayana Singh, Pragati Neekhra for the
Respondent.
The Judgment of the Court was delivered by
A
B
c
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 brotherin-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
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
B
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. RNA339 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
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
F
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
A
B
c
D
E
F
G
244
SUPREME COURT REPORTS
[2012J 10 S.C.R.
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
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
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
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
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
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
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 :
c
D
"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
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
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
[SWATANTER KUMAR, J.)
submissions:
247
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
an appeal against an artier of acquittal is very
8
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.
In absence of any evidence on these two counts, the
appellant is entitled to acquittal.
E
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
0 necessary for the Court to first and foremost examine (a) what
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.