Shashi Pal vs State Of H.P on 3 August, 2026

Himachal Pradesh High Court

Shashi Pal vs State Of H.P on 3 August, 2026

                                                                                  2026:HHC:31935




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                               Cr. Revision No. 375 of 2015
                                               Reserved on: 27.7.2026




                                                                                   .

                                               Date of Decision: 3.8.2026.





    Shashi Pal                                                           ...Petitioner
                                           Versus




                                                      of
    State of H.P.                                                        ...Respondent


    Coram                   rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.
    Whether approved for reporting?1 No.

    For the Petitioner                 :         Mr Naresh K. Sharma, Advocate.
    For the Respondent                 :         Mr Ajit Sharma, Deputy Advocate
                                                 General.



    Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 26.08.2015, passed by the learned Additional Sessions

Judge, Ghumarwin, District Bilaspur, H.P. (learned Appellate

Court), vide which the judgment of conviction dated 13.08.2013

and order of sentence dated 16.08.2013, passed by the learned

Chief Judicial Magistrate, Bilaspur, District Bilaspur, H.P.

(learned Trial Court) were upheld. (The parties shall hereinafter be

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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referred to in the same manner as they were arrayed before the

learned Trial Court for convenience).

.

2. Briefly stated, the facts giving rise to the present

revision are that the police filed a challan before the learned

Trial Court against the accused for the commission of offences

punishable under Sections 279, 337 and 338 of the Indian Penal

of
Code (IPC). It was asserted that a vehicle bearing registration No.

HB-01B-0136 went off the road and fell on the link road on
rt
10.05.2007 at about 12.00 A.M. The occupants of the vehicle

sustained injuries. The name of the driver was found to be

Shashi Pal, and the name of the injured was found to be Kaku

alias Sunil Kumar. They were taken to the hospital. An

intimation was given to the police, and an entry in the daily

diary (Ex.PW8/A) was recorded in the Police Station. ASI Krishan

Chand (PW9) and Constable Pritam Ram were sent to the

hospital for verification. ASI Krishan Chand filed an application,

recorded the statement (Ex.PW2/A) of the informant Prem Lal

(PW2) and sent it to the Police Station, where FIR (Ex.PW7/A)

was registered. Medical examination of Sunil Kumar was

conducted, and it was found that he had sustained simple and

grievous injuries. MLC (Ex.PY) was issued. Medical examination

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of Shashi Pal was conducted, and it was found that he had

sustained simple injuries. MLC (Ex. PX) was issued. ASI Krishan

.

Pal (PW9) went to the spot, prepared the site plan (Ex.PW9/A),

and took the photographs of the spot (Ex.PA to Ex.PJ), whose

negatives are Ex.PK to Ex. PS. Shashi Pal produced the

documents of the vehicle which were seized vide memo

of
(Ex.PW2/B). He recorded the statements of the witnesses as per

their version. Dev Raj (PW6) mechanically examined the vehicle
rt
and found that there was no mechanical defect in it that could

have led to the accident. He issued the report (Ex.PW6/A). After

the completion of investigation, the challan was prepared and

presented before the Court.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of offences

punishable under Sections 279 and 337 of the IPC, to which he

pleaded not guilty and claimed to be tried.

4. The prosecution examined 09 witnesses to prove its

case. Gian Chand (PW1) is the owner of the vehicle, but he did

not support the prosecution case. Prem Lal, informant (PW2),

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also did not support the prosecution case. Sunil Kumar (PW3)

carried the injured to the hospital. Sunil (PW4) is the occupant of

.

the vehicle. Ramtirath (PW5) is the Radiographer who took the

X-rays. Dev Raj (PW6) mechanically examined the vehicle. Ram

Nath (PW7) signed the FIR. HC Suresh Kumar (PW8) proved the

entry in the daily diary. Krishan Chand (PW9) investigated the

of
matter.

5. The accused, in his statement, recorded under
rt
Section 313 of the Code of Criminal Procedure (CrPC), admitted

that he was driving the vehicle and Sunil Kumar was travelling in

it. He admitted that the vehicle had met with an accident. He

stated that the front right tyre burst of the vehicle had led to the

accident. He claimed that he was innocent and was falsely

implicated. He did not produce any evidence in his defence.

6. Learned Trial Court held that the accused had not

disputed that he was driving the vehicle and Sunil Kumar was

travelling in it. It was also not disputed that the vehicle had

fallen off the road. The statement of Sunil Kumar proved that the

accused was driving the vehicle at a high speed and he had

repeatedly requested the accused to slow down the vehicle. The

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plea taken by the accused that the front right tyre burst of the

vehicle had led to the accident was not probable. The accident

.

had caused simple and grievous injuries to Sunil Kumar.

Therefore, learned Trial Court convicted the accused of the

commission of offences punishable under Sections 279 and 237

of the IPC and sentenced him as under: –

of
Conviction Sentence
rt
Section 279 of IPC To undergo rigorous
imprisonment for six months and

to pay a fine of ₹1,000/- and in
default of payment of fine, to
undergo simple imprisonment for
one month.

Section 337 of IPC To undergo simple imprisonment
for six months and to pay a fine of

₹500/- and in default of payment
of fine, to undergo simple

imprisonment for one month.

7. Being aggrieved by the judgment and order to passed

by the learned Trial Court, the accused filed an appeal which was

decided by the learned Additional Sessions Judge, Ghumarwin,

District Bilaspur, HP. (the learned Appellate Court). The learned

Appellate Court concurred with the findings recorded by the

learned Trial Court that the accused was driving the vehicle and

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Sunil Kumar was travelling in it. The Vehicle had left the road

and fallen onto the link road. A principle of res ipsa loquitur

.

would apply to the present case. The burden would shift upon

the accused to show how the accident had taken place. The

explanation provided by the accused that the front right tyre

burst of the vehicle had led to the accident was not proved by any

of
material on record. The sentence imposed by the learned Trial

Court was adequate. No interference was required with the
rt
judgment and order passed by the learned Trial Court. Hence,

the appeal was dismissed.

8. Being aggrieved by the judgment and order passed by

the learned Courts below, the accused has filed the present

revision asserting that the learned Courts below erred in

appreciating the material on record. The testimony of Sunil

Kumar (PW4) does not prove that the accused was driving the

vehicle in a rash or negligent manner. Sunil Kumar stated that

the accused was driving the vehicle at a high speed, but the

approximate speed of the vehicle was not mentioned. There were

various contradictions in the statements of the prosecution

witnesses, which made the prosecution’s case suspect.

Therefore, it was prayed that the present revision be allowed and

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the judgments and order passed by learned Courts below be set

aside.

.

9. I have heard Mr Naresh K. Sharma, learned counsel

for the petitioner/accused and Mr Ajit Sharma, learned Deputy

Advocate General for the respondent/State.

of

10. Mr Naresh K. Sharma, learned counsel for the

petitioner/ accused submitted that the Mechanical Expert has
rt
not ruled out the plea taken by the accused that the accident had

occurred because of the mechanical defect. Sunil Kumar (PW4)

stated that the accident had occurred because of the high speed,

which is not sufficient to constitute negligence. Therefore, he

prayed that the present revision be allowed and the judgments

and order passed by learned Courts below be set aside.

11. Mr Ajit Sharma, learned Deputy Advocate General for

the respondent/State submitted that the vehicle had fallen off

the road and the principle of res ipsa loquitur applied to the

present case. The accused had failed to provide any explanation

for the accident and learned Courts below had rightly held him

to be negligent. There is no infirmity in the judgments and order

passed by learned Courts below. This Court should not

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re-appreciate the evidence while deciding a revision petition.

Hence, he prayed, let the present revision be dismissed.

.

12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon’ble Supreme Court in

of
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional
rt
court is not an appellate court and it can only rectify the patent

defect, errors of jurisdiction or the law. It was observed at page

207-

“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence
brought on record. The High Court in a criminal revision

against conviction is not supposed to exercise the
jurisdiction like the appellate court, and the scope of
interference in revision is extremely narrow. Section 397

of the Criminal Procedure Code (in short “CrPC“) vests
jurisdiction to satisfy itself or himself as to the
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of
any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
that is to be determined on the merits of individual cases.
It is also well settled that while considering the same, the
Revisional Court does not dwell at length upon the facts
and evidence of the case to reverse those findings.

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14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

.

1294, wherein it was observed at page 695:

“14. The power and jurisdiction of the Higher Court under

Section 397 CrPC, which vests the court with the power to
call for and examine records of an inferior court, is for the
purposes of satisfying itself as to the legality and

of
regularities of any proceeding or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law or the perversity which
has crept in such proceedings.

rt

15. It would be apposite to refer to the judgment of this
Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v.

Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687:

(2013) 1 SCC (Cri) 986], where scope of Section 397 has
been considered and succinctly explained as under: (SCC
p. 475, paras 12-13)

“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an

inferior court for the purposes of satisfying itself as
to the legality and regularity of any proceedings or

order made in a case. The object of this provision is
to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error, and it

may not be appropriate for the court to scrutinise
the orders, which, upon the face of it, bear a token
of careful consideration and appear to be in
accordance with law. If one looks into the various
judgments of this Court, it emerges that the
revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous,
there is no compliance with the provisions of law,
the finding recorded is based on no evidence,
material evidence is ignored, or judicial discretion is
exercised arbitrarily or perversely. These are not

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exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional

.

jurisdiction of the higher court is a very limited one and

cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in

mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has

of
been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforesaid. Even the framing of
rt
the charge is a much-advanced stage in the proceedings
under CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018) 8

SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

reappreciate the evidence and come to its conclusions in the

absence of any perversity. It was observed at page 169:

“12. This Court has time and again examined the scope of

Sections 397/401 CrPC and the grounds for exercising the
revisional jurisdiction by the High Court. In State of Kerala
v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC
452: 1999 SCC (Cri) 275], while considering the scope of
the revisional jurisdiction of the High Court, this Court
has laid down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can
call for and examine the record of any proceedings
to satisfy itself as to the correctness, legality or
propriety of any finding, sentence or order. In other
words, the jurisdiction is one of supervisory

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jurisdiction exercised by the High Court for
correcting a miscarriage of justice. But the said
revisional power cannot be equated with the power
of an appellate court, nor can it be treated even as a

.

second appellate jurisdiction. Ordinarily, therefore,
it would not be appropriate for the High Court to
reappreciate the evidence and come to its

conclusion on the same when the evidence has
already been appreciated by the Magistrate as well
as the Sessions Judge in appeal, unless any glaring

of
feature is brought to the notice of the High Court
which would otherwise amount to a gross
miscarriage of justice. On scrutinising the
impugned judgment of the High Court from the
rt
aforesaid standpoint, we have no hesitation in
concluding that the High Court exceeded its

jurisdiction in interfering with the conviction of the
respondent by reappreciating the oral evidence. …”

13. Another judgment which has also been referred
to and relied on by the High Court is the judgment

of this Court in Sanjaysinh Ramrao Chavan v.
Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2
SCC (Cri) 19]. This Court held that the High Court, in

the exercise of revisional jurisdiction, shall not
interfere with the order of the Magistrate unless it

is perverse or wholly unreasonable or there is non-
consideration of any relevant material; the order

cannot be set aside merely on the ground that
another view is possible. The following has been
laid down in para 14: (SCC p. 135)
“14. … Unless the order passed by the
Magistrate is perverse or the view taken by the
court is wholly unreasonable or there is non-
consideration of any relevant material or there
is palpable misreading of records, the
Revisional Court is not justified in setting aside
the order, merely because another view is
possible. The Revisional Court is not meant to

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act as an appellate court. The whole purpose of
the revisional jurisdiction is to preserve the
power in the court to do justice in accordance
with the principles of criminal jurisprudence.

.

The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated
with that of an appeal. Unless the finding of the

court, whose decision is sought to be revised, is
shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or

of
where the decision is based on no material or
where the material facts are wholly ignored or
where the judicial discretion is exercised
rt arbitrarily or capriciously, the courts may not
interfere with the decision in exercise of their
revisional jurisdiction.”

16. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

“16. It is well settled that in the exercise of revisional

jurisdiction under Section 482 of the Criminal Procedure
Code, the High Court does not, in the absence of

perversity, upset concurrent factual findings. It is not for
the Revisional Court to re-analyse and re-interpret the

evidence on record.

17. As held by this Court in Southern Sales & Services v.
Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it
is a well-established principle of law that the Revisional
Court will not interfere even if a wrong order is passed by
a court having jurisdiction, in the absence of a
jurisdictional error. The answer to the first question is,
therefore, in the negative.”

17. A similar view was taken in Sanjabij Tari v. Kishore S.

Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings [See: Bir
Singh(supra)]. This Court is of the view that it is not for

.

the Revisional Court to re-analyse and re-interpret the
evidence on record. As held by this Court in Southern Sales
& Services v. Sauermilch Design and Handels GMBH, (2008)

14 SCC 457, it is a well-established principle of law that
the Revisional Court will not interfere, even if a wrong
order is passed by a Court having jurisdiction, in the

of
absence of a jurisdictional error.

28. Consequently, this Court is of the view that in the
absence of perversity, it was not open to the High Court in
the present case, in revisional jurisdiction, to upset the
rt
concurrent findings of the Trial Court and the Sessions
Court.

18. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

19. Sunil Kumar stated that he was going towards his

home on foot. A vehicle bearing registration No. HP-01B-0136

came, which was being driven by the accused. He boarded the

vehicle. The accused was driving the vehicle at a high speed. It

was suggested to him in the cross-examination that the accused

was driving the vehicle at a normal speed and the accident had

occurred because of the front tyre burst of the vehicle.

20. The statement of this witness that the accused was

driving the vehicle and he had boarded the vehicle was not

challenged in the cross-examination, which means that this

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part of his testimony is accepted to be correct. It was laid down

by the Hon’ble Supreme Court in State of Uttar Pradesh Versus

.

Nahar Singh, 1998 (3) SCC 561 that where the testimony of a

witness is not challenged in the cross-examination, the same

cannot be challenged during the arguments. This position was

reiterated in Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1:

of
(2022) 1 SCC (Cri) 208: 2020 SCC OnLine SC 4, and it was held at

page 34: rt
“58. A witness is required to be cross-examined in a

criminal trial to test his veracity; to discover who he is
and what his position in life is, or to shake his credit, by
injuring his character, although the answer to such
questions may directly or indirectly incriminate him or

may directly or indirectly expose him to a penalty or
forfeiture (Section 146 of the Evidence Act). A witness is
required to be cross-examined to bring forth

inconsistencies and discrepancies, and to prove the
untruthfulness of the witness. A-1 set up a case of his

arrest on 1-9-2014 from 18:50 hrs; therefore, it was
required for him to cross-examine the truthfulness of the

prosecution witnesses with regard to that particular
aspect. The argument that the accused was shown to be
arrested around 19:00 hrs is an incorrect reading of the
arrest form (Ex. 17). In Column 8, it has been specifically
mentioned that the accused was taken into custody on 2-

9-2014 at 14:30 hrs at Wanjri Layout, Police Station,
Kalamna. The time, i.e. 17, 10 hrs, mentioned in Column 2,
appears to be when A-1 was brought to the Police Station,
Lakadganj. As per the IO, A-1 was called for interrogation
as the suspicion was on an employee of Dr Chandak since
the kidnapper was wearing a red colour t-shirt which was

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given by Dr Chandak to his employees. A-1 travelled from
the stage of suspect to an accused only on 2-9-2014.
Since no cross-examination was conducted on any of the
prosecution witnesses about the place and manner of the

.

arrest, the argument that the accused was arrested on 1-
9-2014 at 18:50 hrs is not tenable.

59. The House of Lords, in a judgment reported as Browne

v. Dunn (1893) 6 R 67 (HL), considered the principles of
appreciation of evidence. Lord Chancellor Herschell held
that it is essential to the proper conduct of a cause, where

of
it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct his attention to the
fact by some questions put in cross-examination showing
that imputation is intended to be made, and not to take
rt
his evidence and pass it by as a matter altogether
unchallenged. It was held as under:

“Now, my Lords, I cannot help saying that it seems to
me to be absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a witness is

not speaking the truth on a particular point, to direct
his attention to the fact by some questions put in
cross-examination showing that that imputation is

intended to be made, and not to take his evidence and
pass it by as a matter altogether unchallenged, and

then, when it is impossible for him to explain, as
perhaps he might have been able to do if such
questions had been put to him, the circumstances

which it is suggested indicate that the story he tells
ought not to be believed, to argue that he is a witness
unworthy of credit. My Lords, I have always
understood that if you intend to impeach a witness you
are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open
to him; and, as it seems to me, that is not only a rule of
professional practice in the conduct of a case, but is
essential to fair play and fair dealing with witnesses.
Sometimes reflections have been made upon excessive
cross-examination of witnesses, and it has been

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complained of as undue, but it seems to me that cross-
examination of a witness which errs in the direction of
excess may be far more fair to him than to leave him
without cross-examination, and afterwards, to

.

suggest that he is not a witness of truth, I mean upon a
point on which it is not otherwise perfectly clear that
he has had full notice beforehand that there is an

intention to impeach the credibility of the story which
he is telling.”

60. Lord Halsbury, in a separate but concurring opinion, held as

of
under:

“My Lords, with regard to the manner in which the
evidence was given in this case, I cannot too heartily
rt
express my concurrence with the Lord Chancellor as to
the mode in which a trial should be conducted. To my
mind, nothing would be more absolutely unjust than

not to cross-examine witnesses upon evidence which
they have given, so as to give them notice, and to give
them an opportunity of explanation, and an

opportunity very often to defend their own character,
and, not having given them such an opportunity, to
ask the jury afterwards to disbelieve what they have

said, although not one question has been directed
either to their credit or to the accuracy of the facts they

have deposed to.”

61. This Court, in a judgment reported as State of U.P. v. Nahar
Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850, quoted from Browne

v. Dunn, (1893) 6 R 67 (HL) to hold that in the absence of cross-
examination on the explanation of delay, the evidence of PW 1
remained unchallenged and ought to have been believed by the
High Court. Section 146 of the Evidence Act confers a valuable
right of cross-examining the witness tendered in evidence by
the opposite party. This Court held as under: (State of U.P. v.
Nahar Singh, (1998) 3 SCC 561: 1998 SCC (Cri) 850], SCC pp. 566-
67, para 13)
“13. It may be noted here that part of the statement of
PW 1 was not cross-examined by the accused. In the

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absence of cross-examination on the explanation of
the delay, the evidence of PW 1 remained unchallenged
and ought to have been believed by the High Court.
Section 138 of the Evidence Act confers a valuable right

.

of cross-examining the witness tendered in evidence
by the opposite party. The scope of that provision is
enlarged by Section 146 of the Evidence Act by

allowing a witness to be questioned:

(1) to test his veracity,
(2) to discover who he is and what his position in

of
life is, or
(3) to shake his credit by injuring his character,
although the answer to such questions might tend
rt
directly or indirectly to incriminate him or might
expose or tend directly or indirectly to expose him

to a penalty or forfeiture.”

62. This Court, in a judgment reported in Muddasani Venkata
Narsaiah v. Muddasani Sarojana, (2016) 12 SCC 288: (2017) 1 SCC
(Civ) 268, laid down that the party is obliged to put his case in

cross-examination of witnesses of the opposite party. The rule
of putting one’s version in cross-examination is one of
essential justice and not merely a technical one. It was held as

under: (SCC pp. 294-95, paras 15-16)

“15. Moreover, there was no effective cross-
examination made on the plaintiff’s witnesses with
respect to the factum of execution of the sale deed. PW

1 and PW 2 have not been cross-examined as to the
factum of execution of the sale deed. The cross-
examination is a matter of substance, not of
procedure. One is required to put one’s own version in
the cross-examination of the opponent. The effect of
non-cross-examination is that the statement of the
witness has not been disputed. The effect of not cross-
examining the witnesses has been considered by this
Court in Bhoju Mandal v.Debnath Bhagat, AIR 1963 SC
1906. This Court repelled a submission on the ground
that the same was not put either to the witnesses or

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suggested before the courts below. A party is required
to put his version to the witness. If no such questions
are put, the Court would presume that the witness
account has been accepted as held in Chuni Lal Dwarka

.

Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine
P&H 177: AIR 1958 P&H 440.

16. In Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine

MP 128: AIR 1945 Nag 60, it has been laid down that the
matters sworn to by one party in the pleadings not
challenged either in pleadings or cross-examination

of
by another party must be accepted as fully established.
The High Court of Calcutta in A.E.G. Carapiet v. A.Y.
Derderian, 1960 SCC OnLine Cal 44: AIR 1961 Cal 359 has
laid down that the party is obliged to put his case in
rt
the cross-examination of witnesses of the opposite
party. The rule of putting one’s version in cross-

examination is one of essential justice and not merely
a technical one. A Division Bench of the Nagpur High
Court, Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC
OnLine MP 35: AIR 1950 Nag 83 has laid down that when

attestation is not specifically challenged, and the
witness is not cross-examined regarding details of
attestation, it is sufficient for him to say that the

document was attested. If the other side wants to
challenge that statement, it is their duty, quite apart

from raising it in the pleadings, to cross-examine the
witness along those lines. A Division Bench of the

Patna High Court in Karnidan Sardav.Sailaja Kanta
Mitra, 1940 SCC OnLine Pat 288: AIR 1940 Pat 683 has
laid down that it cannot be too strongly emphasised
that the system of administration of justice allows of
cross-examination of opposite party’s witnesses for
the purpose of testing their evidence, and it must be
assumed that when the witnesses were not tested in
that way, their evidence is to be ordinarily accepted. In
the aforesaid circumstances, the High Court has
gravely erred in law in reversing the findings of the

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first appellate court as to the factum of execution of
the sale deed in favour of the plaintiff.”

21. The accused admitted in his statement recorded

.

under Section 313 of the CrPC that he was driving the vehicle and

Sunil Kumar was travelling in it. It was laid down by the Hon’ble

Supreme Court in State of Maharashtra v. Sukhdev Singh, (1992) 3

of
SCC 700: 1992 SCC (Cri) 705: 1992 SCC OnLine SC 421 that the

Courts can rely upon the statement of the accused recorded
rt
under Section 313 of the Cr.P.C. It was observed at page 742:

“51. That brings us to the question of whether such a
statement recorded under Section 313 of the Code can
constitute the sole basis for conviction. Since no oath is
administered to the accused, the statements made by the

accused will not be evidence stricto sensu. That is why
sub-section (3) says that the accused shall not render
himself liable to punishment if he gives false answers.

Then comes sub-section (4), which reads:

“313. (4) The answers given by the accused may be

taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other

inquiry into, or trial for, any other offence which
such answers may tend to show he has committed.”

Thus, the answers given by the accused in response to his
examination under Section 313 can be taken into
consideration in such an inquiry or trial. This much is
clear on a plain reading of the above sub-section.
Therefore, though not strictly evidence, sub-section (4)
permits that it may be taken into consideration in the said
inquiry or trial. See State of Maharashtra v. R.B. Chowdhari
(1967) 3 SCR 708: AIR 1968 SC 110: 1968 Cri LJ 95. This
Court, in the case of Hate Singh Bhagat Singh v. State of

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M.B. 1951 SCC 1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held
that an answer given by an accused under Section 313
examination can be used for proving his guilt as much as
the evidence given by a prosecution witness. In Narain

.

Singh v. State of Punjab (1963) 3 SCR 678: (1964) 1 Cri LJ
730, this Court held that if the accused confesses to the
commission of the offence with which he is charged, the

Court may, relying upon that confession, proceed to
convict him. To state the exact language in which the
three-Judge bench answered the question, it would be

of
advantageous to reproduce the relevant observations at
pages 684-685:

“Under Section 342 of the Code of Criminal
Procedure by the first sub-section, insofar as it is
rt
material, the Court may at any stage of the enquiry
or trial and after the witnesses for the prosecution

have been examined and before the accused is
called upon for his defence shall put questions to
the accused person for the purpose of enabling him
to explain any circumstance appearing in the

evidence against him. Examination under Section
342 is primarily to be directed to those matters on
which evidence has been led for the prosecution to

ascertain from the accused his version or
explanation, if any, of the incident which forms the

subject-matter of the charge and his defence. By
sub-section (3), the answers given by the accused

may ‘be taken into consideration’ at the enquiry or
the trial. If the accused person in his examination
under Section 342 confesses to the commission of the
offence charged against him the court may, relying
upon that confession, proceed to convict him, but if he
does not confess and in explaining circumstance
appearing in the evidence against him sets up his
own version and seeks to explain his conduct
pleading that he has committed no offence, the
statement of the accused can only be taken into
consideration in its entirety.” (emphasis supplied)

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Sub-section (1) of Section 313 corresponds to sub-section
(1) of Section 342 of the old Code, except that it now
stands bifurcated in two parts with the proviso added
thereto clarifying that in summons cases where the

.

presence of the accused is dispensed with, his
examination under clause (b) may also be dispensed with.
Sub-section (2) of Section 313 reproduces the old sub-

section (4), asd the present sub-section (3) corresponds
to the old sub-section (2) except for the change
necessitated on account of the abolition of the jury

of
system. The present sub-section (4) with which we are
concerned is a verbatim reproduction of the old sub-
section (3). Therefore, the aforesaid observations apply
with equal force.”

rt

22. It was laid down by the Hon’ble Supreme Court in

Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri)

1514: 2002 SCC OnLine SC 933, that the statement made by the

accused under Section 313 Cr.P.C. can be used to lend credence to

the evidence led by the prosecution, but such statement cannot

form the sole basis for conviction. It was observed at page 244:

27. The statement made in defence by the accused under
Section 313 CrPC can certainly be taken aid of to lend

credence to the evidence led by the prosecution, but only
a part of such statement under Section 313 of the Code of
Criminal Procedure cannot be made the sole basis of his
conviction. The law on the subject is almost settled that
the statement under Section 313 CrPC of the accused can
either be relied on in whole or in part. It may also be
possible to rely on the inculpatory part of his statement if
the exculpatory part is found to be false on the basis of
the evidence led by the prosecution. See Nishi Kant Jha v.

State of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp.
357-58, para 23)

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“23. In this case, the exculpatory part of the
statement in Exhibit 6 is not only inherently
improbable but is contradicted by the other
evidence. According to this statement, the injury

.

that the appellant received was caused by the
appellant’s attempt to catch hold of the hand of Lal
Mohan Sharma to prevent the attack on the victim.

This was contradicted by the statement of the
accused himself under Section 342 CrPC to the effect
that he had received the injury in a scuffle with a

of
herdsman. The injury found on his body when he
was examined by the doctor on 13-10-1961
negatives of both these versions. Neither of these
versions accounts for the profuse bleeding which led
rt
to his washing his clothes and having a bath in River
Patro, the amount of bleeding and the washing of

the bloodstains being so considerable as to attract
the attention of Ram Kishore Pandey, PW 17 and
asking him about the cause thereof. The bleeding
was not a simple one as his clothes all got stained

with blood, as also his books, his exercise book, his
belt and his shoes. More than that, the knife which
was discovered on his person was found to have

been stained with blood according to the report of
the Chemical Examiner. According to the post-

mortem report, this knife could have been the cause
of the injuries on the victim. In circumstances like
these, there being enough evidence to reject the

exculpatory part of the statement of the appellant in
Exhibit 6, the High Court had acted rightly in accepting
the inculpatory part and piercing the same with the
other evidence to come to the conclusion that the
appellant was the person responsible for the crime.”
(emphasis supplied)

23. It was laid down in Ramnaresh v. State of Chhattisgarh,

(2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213,

that the statement of the accused under Section 313 Cr.P.C., in so

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far as it supports the prosecution’s case, can be used against

him for recording a conviction. It was observed at page 275: –

.

“52. It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
CrPC is upon the court. One of the main objects of

recording a statement under this provision of the CrPC is
to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put

of
forward his defence, if the accused so desires. But once he
does not avail this opportunity, then consequences in law
must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313
rt
CrPC, insofar as it supports the case of the prosecution,
can be used against him for rendering a conviction. Even

under the latter, he faces the consequences in law.”

24. This position was reiterated in Ashok Debbarma v.

State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC

OnLine SC 199, and it was held that the statement of the accused

recorded under Section 313 of the Cr.P.C. can be used to lend

corroboration to the statements of prosecution witnesses. It was

held at page 761: –

24. We are of the view that, under Section 313 statement,
if the accused admits that, from the evidence of various
witnesses, four persons sustained severe bullet injuries
by the firing by the accused and his associates, that
admission of guilt in Section 313 statement cannot be
brushed aside. This Court in State of Maharashtra v.

Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held
that since no oath is administered to the accused, the
statement made by the accused under Section 313 CrPC
will not be evidence stricto sensu and the accused, of

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course, shall not render himself liable to punishment
merely on the basis of answers given while he was being
examined under Section 313 CrPC. But, sub-section (4)
says that the answers given by the accused in response to

.

his examination under Section 313 CrPC can be taken
into consideration in such an inquiry or trial. This Court
in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951

SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933 held that the
answers given by the accused under Section 313
examination can be used for proving his guilt as much as

of
the evidence given by the prosecution witness. In Narain
Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR
678, this Court held that when the accused confesses to
the commission of the offence with which he is charged,
rt
the court may rely upon the confession and proceed to
convict him.

25. This Court in Mohan Singh v. Prem Singh (2002) 10
SCC 236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para

27)

“27. The statement made in defence by the
accused under Section 313 CrPC can certainly be
taken aid of to lend credence to the evidence led

by the prosecution, but only a part of such
statement under Section 313 CrPC cannot be

made the sole basis of his conviction.”
In this connection, reference may also be made
to the judgments of this Court in Devender

Kumar Singla v. Baldev Krishan Singla (2005) 9
SCC 15: 2005 SCC (Cri) 1185 and Bishnu Prasad
Sinha v. State of Assam (2007) 11 SCC 467: (2008) 1
SCC (Cri) 766. The abovementioned decisions
would indicate that the statement of the accused
under Section 313 CrPC for the admission of his
guilt or confession as such cannot be made the
sole basis for finding the accused guilty, the
reason being he is not making the statement on
oath, but all the same the confession or
admission of guilt can be taken as a piece of

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evidence since the same lends credence to the
evidence led by the prosecution.

26. We may, however, indicate that the answers

.

given by the accused while examining him under

Section 313, fully corroborate the evidence of PW 10
and PW 13 and hence the offences levelled against
the appellant stand proved, and the trial court and
the High Court have rightly found him guilty for the

offences under Sections 326, 436 and 302 read with
Section 34 IPC.”

25. Therefore, the part of the prosecution case that the

of
accused was driving the vehicle at the time of the accident and

Sunil Kumar was travelling in it was duly proved.

rt

26. Sunil Kumar (PW4) stated that the vehicle left the

road and fell. This part was also not challenged in the cross-

examination. It was suggested to him that it was raining and the

accident had occurred because of the tyre burst. Similarly, Prem

Lal (PW2) stated that a vehicle came from Juripattan and fell

onto the link road. Sunil Kumar (PW3) stated that he heard some

noise and went to the spot and found that a vehicle bearing

registration No. HP-01B-0136 had turned turtle, and two

persons were injured. This part of his testimony was also not

challenged. Kishan Chand (PW9) stated that he visited the spot,

prepared the site plan and took the photographs. He stated in his

cross-examination that the vehicle had fallen 100 ft. down the

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road. The site plan (Ex.PW7/A) shows that the vehicle had fallen

on a link road. The photographs (Ex.PA, PD, PC, PH and PJ) also

.

show that the vehicle had turned turtle and fallen off the road.

Therefore, it is duly proved by the evidence on record that the

vehicle had fallen off the road onto the link road.

27. The place of the accident was a 12 ft. wide road as per

of
the site plan (Ex.PW7/A). No curves are visible in the site plan. It

was laid down in Keshav Murti vs. State 2002 Criminal Law 103
rt
(Karnataka) that where the accident had taken place on a wide

road, and the vehicle had left the road, the maxim of res ipsa

loquitur would apply and the burden would shift upon the

accused to explain as to how the accident had taken place. It was

observed:

“Here is a car proceeding from Bangalore to Shimoga. At
the place concerned, there are no other vehicles on the

road. There is no obstruction. The road is of a width of 19
ft. of cement and tar road, with 6 ft. kacha road on either
side. Still, the vehicle hits a roadside tree. Added to that,
there is a report of the IMV Inspector at Ex. P. 5 to the
effect that the accident is not due to any mechanical
defect in the vehicle. In such a situation, an accident of
this nature would prima facie show that the same could
not be accounted for anything other than the negligence
of the driver of the vehicle, i.e., the petitioner. A
presumption in that regard thus arises. In such a case, as
pointed out by the Supreme Court, it is for the petitioner-
driver to explain how the accident occurred without

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negligence on his part. What the petitioner has done in
the course of his examination under Section 313 of the
Criminal Procedure Code is simply denying everything.
He does not say anything, and even to the general

.

question that is asked at the end as to whether he has got
anything to say, he did not choose to say anything, nor
did he care to explain the manner in which the accident

occurred, i.e., in order to rebut the above said
presumption as regards the accident occurring due to his
negligence, and in order to show that accident occurred

of
for a particular reason not attributable to his negligence.
This was, therefore, an appropriate case wherein, on the
basis of a presumption that the Supreme Court was
speaking about, that conviction could be based.”

rt

28. Similarly, it was laid down by the Hon’ble Supreme

Court in Thakur Singh Vs. State of Punjab 2003(9) SCC 208 that

where the accident speaks for itself, it is sufficient for the

prosecution to establish the accident and the burden will shift

upon the accused to explain the same. Thus, where the accused

admits that he was driving the vehicle which fell into a canal,

the burden was upon him to establish that the accident had

taken place due to some circumstances other than his

negligence. It was observed:

“It is admitted that the petitioner himself was driving the
vehicle at the relevant time. It is also admitted that the
bus was driven over a bridge and then it fell into the canal.
In such a situation the doctrine of res ipsa loquitur comes
into play, and the burden shifts onto 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.

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He did not succeed in showing that the accident happened
due to causes other than negligence on his part.”

29. This principle was discussed in detail by the Hon’ble

.

Supreme Court in Ravi Kapur v. State of Rajasthan, (2012) 9 SCC

284 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107: 2012 SCC

OnLine SC 607 and it was held that where the accident by its

of
nature is more consistent its being caused by negligence than by

any other cause mere happening of the accident is per se
rt
sufficient to invoke the principle of res ipsa loquitor and in

absence of any explanation by the driver of the vehicle, he is

liable to be convicted for rash and negligent driving. It was

observed at page 295: –

“(A) Rash and negligent driving

12. 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 seen 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
result. It may not always be possible to determine with
reference to the speed of a vehicle whether a person was
driving rashly or negligently. Both these acts presuppose
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 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

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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 attracted.

13. “Negligence” means omission to do something 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

of
would not do. Negligence is not an absolute term but is 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
rt
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 circumstances which have to be taken into
consideration by the court. In a given case, even not doing
what one ought to do can constitute negligence.

14. 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 on
the road, and this duty attains a higher degree when the
pedestrians happen to be children of tender years. It is

axiomatic to say that while driving 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, maybe either vehicular users or
pedestrians. They are expected to take sufficient care to
avoid danger to others.

15. 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

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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 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 the
consequences of driving dangerously alike the provision
in the IPC that the vehicle is driven in a manner

of
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 concepts of
“culpable rashness” and “culpable negligence” into
rt
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
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 caution
incumbent upon him and that if he had, he would have

had the consciousness. The imputability arises from the
neglect of the civic duty of circumspection. In such a case
the mere fact of accident is prima facie evidence of such

negligence. This maxim suggests that in 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
Motor Vehicles Act, 1988 (1st Edn., 2010).]

16. We have noticed these principles in order to examine
the questions raised in the present case in their correct

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perspective. We may notice that certain doctrines falling
in the realm of accidental civil or tortious jurisprudence
are quite applicable to the cases falling under criminal
jurisprudence like the present one.

.

17. Now, we may refer to some judgments of this Court
which would provide guidance for determinatively
answering such questions. In Alister Anthony Pareira v.

State of Maharashtra [(2012) 2 SCC 648: (2012) 1 SCC (Cri)
953 : (2012) 1 SCC (Civ) 848] where the driver of a vehicle
was driving the vehicle at a high speed at late hours of the

of
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
rt
follows: (SCC pp. 663-64, para 41)
“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 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 may cover the
cases of rash or negligent acts 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 negligent act amounting to culpable homicide
of either description.” (emphasis supplied)

18. Again, in Naresh Giri v. State of M.P. [(2008) 1 SCC 791:

(2008) 1 SCC (Cri) 324], where a train had hit a bus being
driven by the appellant at the railway crossing and the
bus was badly damaged and two persons died, this Court,

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while altering the charges from Section 302 IPC to Section
304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13)
“7. Section 304-A IPC applies to cases where there is

.

no 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 of another person.
Negligence and rashness are essential elements under

of
Section 304-A.

8. Section 304-A carves out a specific offence where
death is caused by doing a rash or negligent act, and
rt
that act does not amount to culpable homicide under
Section 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 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 is not
limited to rash or negligent driving. Any rash or
negligent act whereby the 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 rash 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 deliberation in the mind risking the 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

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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 death of others. 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:

‘1. General principles of the law of negligence. —
Negligence is a specific tort and in any given

of
circumstance is the failure to exercise that care
which the circumstances demand. What amounts to
negligence depends on the facts of each particular
rt
case. It may consist in omitting to do something
which ought to be done or 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 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 risk to be encountered and to the
magnitude of the 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 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

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plaintiff in the circumstances of the case and
damage 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 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

of
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 states of mind
rt
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.”

19. In Mohd. Aynuddin v. State of A.P. [(2000) 7 SCC 72:

2000 SCC (Cri) 1281], 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, held that it was culpable rashness and

criminal negligence and held as under: (SCC pp. 74-75,
paras 7 & 9)

“7. It is a wrong proposition that for any motor
accident negligence of the driver should be presumed.

An accident of such a nature as would prima facie show
that it cannot be accounted for 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 from the
bus while boarding the bus, no presumption of
negligence can be drawn against the driver of the bus.

***

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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 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 indifference as to
the consequences. Criminal negligence is the failure to
exercise duty with reasonable and proper care and

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

of
reasonable and proper care and precaution.”
(B) Attendant circumstances and inference of rash and
negligent driving
rt
20 [Ed.: Para 20 corrected vide Official Corrigendum No.
F.3/Ed.B.J./53/2012 dated 5-9-2012.]. In light of the
above, now we have to examine if negligence in the case

of an accident can be gathered from the attendant
circumstances. We have already held that the doctrine of
res ipsa loquitur is equally applicable to the cases of

accident and not merely to 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 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 proper
evidence, may take assistance of the attendant
circumstances and apply the doctrine of res ipsa loquitur.
The mere fact of the 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 that direct evidence to prove it
exists. In such cases, circumstantial evidence may be
adduced to prove negligence. Circumstantial evidence
consists of facts that necessarily point to negligence as a

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logical conclusion rather than providing an outright
demonstration thereof. Elements of this doctrine may be
stated as:

.

• The event would not have occurred but for

someone’s negligence.

• The evidence on record rules out the possibility
that the actions of the victim or some third party

could be the reason behind the event.
• The accused was negligent and owed a duty of care

of
towards the victim.

21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208:

2004 SCC (Cri) 1183] the petitioner drove a bus rashly and
negligently with 41 passengers, and while crossing a
rt
bridge, the bus fell into the nearby canal resulting in the
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, and it
was going over the bridge when it fell down. The Court
held as under: (SCC p. 209, para 4)

“4. It is admitted that the petitioner himself was
driving the vehicle at the relevant time. It is also

admitted that the bus was driven over a bridge and
then it fell into a canal. In such a situation, the

doctrine of res ipsa loquitur comes into play, and the
burden shifts onto 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 to causes other than negligence on his part.”

22. Still, in Mohd. Aynuddin [(2000) 7 SCC 72: 2000 SCC
(Cri) 1281], this Court has also stated the principle: (SCC p.
74, para 8)
“8. The principle of res ipsa loquitur is only a rule of
evidence to determine the onus of proof in actions
relating to negligence. The said principle has
application only when the nature of the accident and

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the attending circumstances would reasonably lead to
the belief that in the absence of negligence, the
accident would not have occurred and that the thing
which caused injury is shown to have been under the

.

management and control of the alleged wrongdoer.”
It has also been stated that the effect of this maxim,
however, depends upon the cogency of the inferences to

be drawn and must, therefore, vary in each case.”

30. It was laid down by the Hon’ble Supreme Court in B.

of
Nagabhushanam v. State of Karnataka, (2008) 5 SCC 730: (2008) 3

SCC (Cri) 61: 2008 SCC OnLine SC 866 that where the facts speak
rt
for themselves, the accused is under an obligation to explain

how the accident had occurred. It was observed: –

12. Reliance placed by Mr Kulkarni on Syed Akbar v. State
of Karnataka [(1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979

SC 1848] is not apposite. It proceeded on the basis that the
doctrine of res ipsa loquitur stricto sensu would not apply
to a criminal case as its applicability in an action for

injury by negligence is well known. In Syad Akbar [(1980) 1

SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848] this Court
opined: (SCC p. 41, para 30)
“30. Such simplified and pragmatic application of the

notion of res ipsa loquitur, as a part of the general
mode of inferring a fact in issue from another
circumstantial fact, is subject to all the principles, the
satisfaction of which is essential before an accused can
be convicted on the basis of circumstantial evidence
alone. These are: Firstly, all the circumstances,
including the objective circumstances constituting the
accident, from which the inference of guilt is to be
drawn, must be firmly established. Secondly, those
circumstances must be of a determinative tendency
pointing unerringly towards the guilt of the accused.

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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.”

The maxim was not applied having regard to the fact of

the said case and on the finding that it was a case of error
of judgment and the accused gave a reasonable,
convincing explanation of his conduct. The maxim res

of
ipsa loquitur was not found to be applicable. However, we
may notice that the said principle was applied in a case
under the Prevention of Corruption Act in State of A.P. v. C.
Uma Maheswara Rao [(2004) 4 SCC 399: 2004 SCC (Cri)
rt
1276] in the following terms: (SCC p. 408, para 19)
“19. We may note that a three-judge Bench in Raghubir

Singh v. State of Haryana [(1974) 4 SCC 560: 1974 SCC (Cri)
596] held that the very fact that the accused was in
possession of the marked currency notes against an

allegation that he demanded and received the amount is
‘res ipsa loquitur’.”

31. Even this Court held in State of H.P. v. Mast Ram, 2009

SCC OnLine HP 808 that in a case under Section 304-A of IPC, the

driver has a responsibility to show that the accident did not

happen on account of his negligence. The judgment of Saiyad

Akhtar Ali (supra) was explained and was held to be applicable

where the driver had adopted his best course to avoid the

accident. It was observed: –

“16. In a case under section 304-A IPC, the driver has
some responsibility to show that the accident did not
happen on account of his negligence. The principle of res

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ipsa loquitur comes into play and the burden shifts on the
person who was in control of the vehicle at the time of the
accident. In Thakur Singh v. State of Punjab, (2003) 9 SCC
208, the Supreme Court has held as follows: –

.

“It is admitted that the petitioner himself was driving
the vehicle at the relevant time. It is also admitted that
the bus was driven over a bridge and then it fell into a

canal. In such a situation the doctrine of res ipsa
loquitur comes to play, and the burden shifts onto the
man who was in control of the automobile to establish

of
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 to causes other than
negligence on his part”.

rt
Mr Gupta, learned counsel for the respondent, has relied
on Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 in

support of his submission that the principle of res ipsa
loquitur is not applicable in the present case. In Syad
Akbar, the accident took place in spite of the driver

adopting the best course to avoid the accident. In the
present case, the facts are entirely different. Therefore,
Syad Akbar (supra) is not applicable in the facts and

circumstances of the present case. The respondent has
not discharged his burden as held in the Thakur Singh

case and has not succeeded in showing that the accident
took place due to reasons other than his negligence. In his
statement under Section 313 Cr.P.C., he has not said

anything about the cause of the accident. PW-2 and PW-3
have fully proved that the accident took place due to rash
or negligent driving of the respondent at the time of the
accident, which ultimately caused the death of Arushi. It
is a well-settled principle that what matters is the quality
and not the quantity of witnesses. It is thus held that the
prosecution has proved the accusation against the
respondent and he is held guilty of committing an offence
punishable under Sections 279, 304-A IPC.”

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32. In the present case, the accused asserted that the

accident had occurred because of the front tyre burst. However,

.

this fact was not established. HC Dev Raj (PW6) mechanically

examined the vehicle and issued the report (Ex.PW6/A) stating

that the tyres were retreaded, and there was no sign of a burst.

Hence, this report falsifies the plea taken by the accused that the

of
front right tyre of the vehicle had burst. He stated in his cross-

examination that he did not remember that the front right tyre
rt
had burst. This statement will not override the observation

recorded by him immediately after the examination of the

vehicle. Therefore, the report of the Mechanical Expert does not

establish that the accident had occurred because of the

mechanical defect.

33. HC Dev Raj stated that the vehicle would turn

towards the side where the tyre had burst. The site plan

(Ex.PW9/A) shows that the vehicle had fallen towards the left

side. Had the right-side tyre burst, the vehicle would have fallen

towards the right side as per the report of the mechanical expert

and not towards the left side. Hence, the version of the accused

that the right-side tyre had burst is not supported by the

mechanical expert.

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34. Sunil Kumar (PW4) stated in his cross-examination

that he was not aware that the front tyre of the right side had

.

burst, which led to the accident. Thus, he has not accepted the

suggestion made on behalf of the accused that the accident

occurred because of the tyre burst.

35. There is no other evidence to show that the front

of
right tyre of the vehicle had burst and the explanation provided

by the accused was not proved on record.

rt

36. Sunil Kumar (PW4) stated that the vehicle was being

driven at a high speed. It was submitted that his statement

regarding high speed without mentioning the approximate

speed of the vehicle does not show any negligence. This

submission will not help the accused because the prosecution is

not relying upon the statement of Sunil Kumar, but upon the fact

that the accused had failed to provide any explanation for the

accident which he was supposed to provide in the present case.

Hence, the absence of approximate speed by Sunil Kumar will

not help the accused.

37. The accused did not dispute that Sunil Kumar had

sustained injuries. The statement of Sunil Kumar to this effect

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was not challenged in the cross-examination. His MLC was

admitted by the accused. Hence, it was duly proved on record

.

that Sunil Kumar had sustained injuries in the accident.

38. MLC (Ex.PY) mentions that the nature of injuries was

simple and grievous. However, the learned Trial Court convicted

the accused of the commission of an offence punishable under

of
Section 337 of IPC and not Section 338, which was applicable

because of the grievous nature of the injury. However, no appeal
rt
was preferred, and nothing more is required to be said regarding

the suspect.

39. It was submitted that the learned Trial Court erred in

not providing the benefit of the Probation of Offenders Act to the

accused. This submission will not help the accused. It was laid

down by the Hon’ble Supreme Court in Dalbir Singh Versus State

of Haryana (2000) 5 SCC 82 that the benefit of the Probation of

Offenders Act cannot be granted to a person convicted of rash or

negligent driving, and a deterrent sentence is to be awarded to

him. It was observed:

“11. Courts must bear in mind that when any plea is made
based on S. 4 of the PO Act for application to a convicted
person under S. 304-A of I.P.C., road accidents have
proliferated to an alarming extent, and the toll is

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galloping up day by day in India and that no solution is in
sight nor suggested by any quarters to bring them down.
When this Court lamented two decades ago that “more
people die of road accidents than by most diseases, so

.

much so the Indian highways are among the top killers of
the country, the saturation of accidents was not even half
of what it is today. So V. R. Krishna Iyer, J., has suggested

in the said decision, thus :

“Rashness and negligence are relative concepts, not
absolute abstractions. In our current conditions, the

of
law under S. 304-A, I.P.C. and under the rubric of
negligence, must have due regard to the fatal
frequency of rash driving of heavy-duty vehicles
and speeding menaces.”

rt

12. In State of Karnataka v. Krishna alias Raju (1987) 1 SCC
538, this Court did not allow a sentence of fine, imposed

on a driver who was convicted under S. 304-A, I.P.C. to
remain in force although the High Court too had
confirmed the said sentence when an accused was

convicted of the offence of driving a bus callously and
causing the death of a human being. In that case, this
Court enhanced the sentence to rigorous imprisonment

for six months besides imposing a fine.

13. Bearing in mind the galloping trend in road accidents

in India and the devastating consequences of visiting the
victims and their families, Criminal Courts cannot treat
the nature of the offence under S. 304-A, I.P.C. as

attracting the benevolent provisions of S. 4 of the PO Act.
While considering the quantum of sentence to be imposed
for the offence of causing death by rash or negligent
driving of automobiles, one of the prime considerations
should be deterrence. A professional driver pedals the
accelerator of the automobile almost throughout his
working hours. He must constantly inform himself that
he cannot afford to have a single moment of laxity or
inattentiveness when his leg is on the pedal of a vehicle in
locomotion. He cannot and should not take a chance
thinking that rash driving need not necessarily cause an

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accident, or even if any accident occurs, it need not
necessarily result in the death of any human being, or
even if such death ensues, he might not be convicted of
the offence, and lastly, that even if he is convicted, he

.

would be dealt with leniently by the Court. He must
always keep in mind the fear psyche that if he is convicted
of the offence of causing the death of a human being due

to his callous driving of a vehicle, he cannot escape from a
jail sentence. This is the role which the Courts can play,
particularly at the level of trial Courts, for lessening the

of
high rate of motor accidents due to the callous driving of
automobiles.”

40. A similar view was taken in State of Punjab v.

rt
Balwinder Singh, (2012) 2 SCC 182, wherein it was held: –

“13. It is a settled law that sentencing must have a policy
of correction. If anyone has to become a good driver, they
must have better training in traffic laws and moral
responsibility, with special reference to the potential

injury to human life and limb. Considering the increased
number of road accidents, this Court, on several
occasions, has reminded the criminal courts dealing with

the offences relating to motor accidents that they cannot

treat the nature of the offence under Section 304-A IPC as
attracting the benevolent provisions of Section 4 of the
Probation of Offenders Act, 1958. We fully endorse the

view expressed by this Court in Dalbir Singh [(2000) 5 SCC
82: 2004 SCC (Cri) 1208].

41. Similar is the judgment in State of Punjab v. Saurabh

Bakshi, (2015) 5 SCC 182: (2015) 2 SCC (Cri) 751: 2015 SCC OnLine

SC 278, wherein it was observed at page 196:

“25. Before parting with the case, we are compelled to
observe that India has a disreputable record of road
accidents. There is a nonchalant attitude among the

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drivers. They feel that they are the “Emperors of all they
survey”. Drunkenness contributes to careless driving,
where other people become their prey. The poor feel that
their lives are not safe, the pedestrians think of

.

uncertainty, and the civilised persons drive in constant
fear, but are still apprehensive about the obnoxious
attitude of the people who project themselves as “larger

than life”. In such circumstances, we are bound to
observe that the lawmakers should scrutinise, relook and
revisit the sentencing policy in Section 304-A IPC. We say

of
so with immense anguish.”

42. Therefore, the benefit of Probation of Offenders Act

could not have been granted to the accused.

rt

43. Learned Trial Court sentenced the accused to

undergo rigorous imprisonment for 6 months for the

commission of an offence punishable under Section 279 of the

IPC, and to undergo simple imprisonment for 6 months for the

commission of an offence punishable under Section 337 of the

IPC. These are the maximum sentences provided by the

legislature. The learned Trial Court has not mentioned any

reason as to why the maximum sentence was imposed by it.

Considering the circumstances of the case and the fact that the

accident had occurred in the year 2007, the imposition of

maximum sentence is not justified. Hence, the sentence imposed

by the learned Trial Court is liable to be modified.

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44. Considering the circumstances of the case in which

the accident had occurred and the time that has elapsed since

.

the accident, the sentence of 6 months imposed by the learned

Trial Court for the commission of an offence punishable under

Section 279 of the IPC is reduced to 3 months. Similarly, the

sentence of six months imposed by the learned Trial Court for

of
the commission of an offence punishable under Section 337 of

the IPC is also reduced to three months. Hence, the accused will
rt
undergo rigorous imprisonment for three months and pay a fine

of ₹1,000/- and, in default of payment of fine, he will undergo

simple imprisonment for one month for the commission of an

offence punishable under Section 279 of the IPC. Similarly, the

accused will undergo simple imprisonment for three months

and pay a fine of ₹500/- and, in default of payment of fine to

undergo simple imprisonment for one month for the

commission of an offence punishable under Section 337 of the

IPC. Both the substantive sentences of imprisonment shall run

concurrently.

45. Subject to this modification, the rest of the judgment

and order passed by the learned Trial Court are upheld. A

modified warrant be prepared accordingly.

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46. Records of the learned Courts below along with copy

of the judgment be sent back forthwith. Pending applications, if

.

any, also stand disposed of.

(Rakesh Kainthla)

Judge
3rd August, 2026
(Chander)

of
rt

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