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TMI Blog1979 (7) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse Officer (P.W. 7) after registering a case, reached the spot and sent the dead body of the child for post-mortem examination, and recorded the statements of witnesses, including some of the passengers in the Bus. 3. On these facts, the appellant was sent up for trial before the Judicial Magistrate, 1st Class, Chitradurga, who convicted him under Section 304A of the Indian Penal Code and sentenced him to six months' simple imprisonment with a fine of ₹ 500/- and in default, to one month's imprisonment. 4. At the trial, the prosecution examined 11 witnesses. The parents of the deceased child were also examined, but they were admittedly not eye-witnesses of the occurrence. P.W. 2, a passer-by, and P.W. 5, P.W. 6 and P.W. 9, who were passengers in the bus at the material time, were examined as eye-witnesses by the prosecution. 5. The substance of the story that emerges from the testimony of these eye-witnesses, taken as a whole, was that at the material time the accused was driving the bus slowly as there was a narrow bridge 30 feet ahead. the mother (P.W. 4) came from the habitation of the village to go to the field across the road at some distance, where he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not giving out the truth and their evidence is made highly improbable....Though P.W. 2 has been treated hostile by the prosecution, the fact that the child was following the mother finds corroboration in their (P.W. 2 and P.W. 4) evidence. So, now, if the driver of the vehicle could see the mother and child coming from village and he has dashed against the child on the extreme right side of the road on the kutcha portion, it is suggestive of rash and negligent driving. The evidence of P.Ws. 2, 5, 6 and 9 who have been treated hostile by the prosecution even though discarded in entirety still it must be held that the material on the record is sufficient to hold that the accused was both rash and negligent in driving the vehicle at that point. 9. In Revision, the High Court also endorsed the view taken by the Sessions Judge that the principle of res ipsa loquitur was, attracted to the facts of the case. 10. Thus, two questions arise for consideration; First whether the courts below were right in discarding entirely the evidence of the said eyewitnesses merely on the ground that they were treated as hostile by the prosecution and cross-examined. Second, whether the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. 13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony. 14. Coming to the second question, it may be observed that res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the law of torts. 15. The jurisprudential status and functional utility of res ipsa loquitur have been the subject of much debate. In Ballard v North British Railway Co. [1923] S C 43 Lord Shaw said, nobody would have called it a principle if it had not been in Latin. . While warning against the tendency to magnify this expression into a rule of substantive law, the Noble Lord conceded that this Latin phrase simply has place in that scheme of, and search for, causation upon which the mind sets itself working . In the same case, Lord Dunedan emphasised : It is not safe to take the remarks whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing caused, the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which tell their own story of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on-collision on the wrong side of the road. See per Lord Normand in Barkway v. South Wales Transport Co. [1950] 1 All. E.R. 392 ; Cream v. Smith [1961] 8 All. E.R. 349 and Richlev v. Fanll [1965] 1 W.L.R. 1454. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only be speak negligence, but pin it on the defendant. 20. It is now to be seen, how does res ipsa loquitur fit in with the conceptual pattern of the Indian Evidence Act. Under the Act, the general rule is that the burden of proving negligence as cause of the accident, lies on the party who alleges it. But that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fleming has opined that the maxim is based merely on an estimate of logical probability in a particular case not on any overriding legal policy that controls initial allocation of the burden of proof or, by means of mandatory presumptions, its reallocation regardless of the probabilities of the particular instance . Fleming, then illustrates this proposition, by giving an example, which for our purpose, is pertinent: ...If a Truck suddenly swerves across the road and knocks into a car drawn up on the shoulder of the opposite side, this would without more raise an inference of negligence against the driver. Yet the plaintiff would fail, if the Trier of the fact at the end of the case deems it no less probable that the accident was caused by an unexpectable break of the steering arm than by culpable maintenance of the wheel assembly. (Emphasis supplied) 24. From what has been said above, it is clear that even in an action in torts, if the defendant gives no rebutting evidence but a reasonable explanation, equally consistent with the presence as well as with the absence of negligence, the presumptions or inferences based on res ipsa loquitur can no longer be sustained. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral method of inferring one or more facts in issue from circumstances proved in evidence . In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it Russell v. London and South-Western Railway Co. [1908] 24 T.L.R. 548 only means, 'that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable chat there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence.... It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of thing which is complained of. 27. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability, as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence; Act relating to the burden of proof and other cognate matters, peculiar to criminal jurisprudence. 29. 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 of the basis circumstantial evidence alone. Those are : Firstly, all the circumstances, including the objective circumstances constituting the accident, from which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the road. It was just at this juncture the accused, who according to the passenger-witnesses was driving the vehicle slowly, suddenly saw the child a short distance ahead of the bus, in the road. In that situation, it Was extremely difficult, even for a cautious and skilled driver is the position of the accused, to foresee and judge with accuracy as to whether the child Would go back to the left or shoot forward to the right side 6f the road. In that split second he had to decide about the better course to be adopted to avoid a collision with the child. Whether it was better to swerve the vehicle to the extreme left or to the extreme tight side of the road, that was the question for his instant decision. It was in evidence that the metalled road (there was hardly 12 feet in width, and there were very deep ditches on both sides of the road. Since the child was at that critical moment, initially, in the road more towards the left-side, the accused might have thought that if he tried to run past the child from the extreme left, there was every risk of the bus rolling down into the ditch. He therefore, thought that the best way to avoid the ditches and to avoid the collision and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Horabin was a case arising out of an aircraft accident and the observations extracted above were made in the context of an allegation of 'wilful misconduct', yet the reasoning employed and the principle enunciated, particularly in the last sentence which has now been underlined are applicable to the facts of the case before us. The 'wilful misconduct' or 'wilful default' in issue in Horabin's case was not very different from a change of negligence, because 'negligence' has two meanings in the law of tort : it may mean either a mental element which is to be inferred from one of the modes in which some torts are committed, or it. may mean an independent tort which consists of breach of a legal duty to take care which results in damage, undesired by the defendant. (See Earl Jowitt's Dictionary of England Law) 36. As in Horabin, here also, the accused had swerved the vehicle to the extreme right side of the road, not only to avoid collision with the ill-fated child but also to avoid the risk of the vehicle falling into deep ditches on either side of the road, with the resultant possibility of far greater harm to the passengers in the bus. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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