TEAM CODE: IMC02

INTRA COLLEGIATE MOOT COURT COMPETITION

KRISTU JAYANTI COLLEGE OF LAW

INTRA COLLEGIATE MOOT COURT COMPETITION-2024

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

UNDER ARTICLE 134 OF THE CONSTITUTION OF INDIA

RAMAMURTHY
(APPELLANT)
V.
UNION OF INDIA
(RESPONDENT)

MEMORIAL SUBMITTED TO THE REGISTRY OF THE HON’BLE

SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

SL.NO CONTENTS PAGE

NO.
1. COVER PAGE 1

2. TABLE OF CONTENTS 2

3. LIST OF ABBREVIATIONS 3

4. INDEX OF AUTHORITIES 4

5. STATEMENT OF JURISDICTION 6

6. STATEMENT OF FACTS 7

7. STATEMENT OF ISSUES 8

8. SUMMARY OF ARGUMENTS 9

9. ARGUMENTS ADVANCED 10

10. PRAYER 20

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LIST OF ABBREVIATIONS

SL.NO ABBREVIATIONS FULL FORM

1. AIR All India Reporter

2. SCC Supreme Court Cases

3. IPC Indian Penal Code

4. UP Uttar Pradesh

5. Hon’ble Honourable

6. & And

7. Ors. Others

8. Anr. Another

9. i.e., That is

10. Dr. Doctor

11. M.P Madhya Pradesh

12. SC Supreme Court

13. SCR Supreme Court Reports

14. v. Versus

INDEX OF AUTHORITIES
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I. TABLE OF CASES:
1. Andrews v. Director of Public Prosecutions, (1937) A.C. 576……………….….15
2. Atmaram & Ors. v. State of M.P, AIR 2012 SC 1956……………………………
11
3. Dr. Om Prakash Rawal v. Justice Amrit Lal Bahri, AIR 1994 HP 27…………...14
4. Jacob Mathew v. State of Punjab & Anr, AIR 2005 SC 3180…………….……..18
5. Krishan Chander v. State of Delhi, AIR 2016 SC
298…………………………...12
6. Malay Kumar Ganguly v. Sukumar Mukherjee & Ors, AIR 2010 10 SCC 647…
16
7. Nanjundappa v. State of Karnataka, Criminal Appeal no. 900 of
2017………….17
8. Noorahammad v. State of Karnataka, AIR 2016 SC
679………………………...11
9. Ouseph v. State of Kerala, 2004 10 SCC 647……………………………………13
10. Pandappa Hanumappa Nanamar v. State of Karnataka, AIR 1997 SC
3663……..12
11. Raja v. State of Karnataka, AIR 2016 SC 4930………………………………….11
12. S.L. Goswami v. State of M.P, 1972 AIR 716…………………………………...14
13. Sat Paul v. Delhi Administration, 1976 AIR 294…………………………...…...10
14. State of UP v. Ramesh Prasad Misra, 1996 SC
2766…………………………….11
15. Syad Akbar v. State of Karnataka, AIR 1979 SC
1848…………………………..18

II. STATUTES REFERRED:

1. The Indian Evidence Act, 1872
2. Indian Penal Code, 1860
3. The Code of Criminal Procedure, 1973

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4. Constitution of India, 1950

III. BOOKS REFERRED:

1. R.K Bangia’s Law of Torts, 26th Edition (2021)
2. Durga Das Basu’s Commentary on Constitution of India, Volume 2, 2007
3. Dr. S.R Myneni’s Law of Crimes, 3rd Edition (2018)

4. Ratanlal & Dhirajlal’s The Law of Evidence, 27th Edition (2019)

5. V. Nageswara Rao’s The Indian Evidence Act, 3rd Edition (2019)
6. Ratanlal & Dhirajlal’s The Law of Torts, 28th Edition (2019)
7. Lexis Nexis’s Criminal Manual (2023)
8. B.M. Gandhi’s Law of Torts, 4th Edition (2011)

IV. WEB SOURCES:

1. legalserviceindia.com
2. indiankanoon.org
3. scconline.com
4. indiankanoon.org
5. legalserviceindia.com
6. freelaw.in
7. lawsisto.com
8. ksbc.org.in
9. jstor.org
10. uianet.org
11. lawyersclubindia.com

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STATEMENT OF JURISDICTION

It is humbly submitted that this Hon’ble Court is vested with the jurisdiction to hear the present
matter under Article 134 of the Constitution of India which reads as follows:

134. Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court-

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him
to death; or

(b) has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to death;
or

(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may
be made in that behalf under clause (1) of article 145 and to such conditions as the High
Court may establish or require.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and
hear appeals from any judgment, final order or sentence in a criminal proceeding of a
High Court in the territory of India subject to such conditions and limitations as may be
specified in such law.

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STATEMENT OF FACTS

Parties to the case:

Ramamurthy ... Appellant v. Union of India …Respondent
Cause of Action:
On 15th July 2022, Ramamurthy, a driver for ABC Travels, was operating a bus on the
Bengaluru-Malur Road, which passed through a village flanked by deep ditches on both sides.
Shanti, residing in the nearby village of Upparahalli, was crossing the road with her four-year-
old daughter, Ammu. Prior to crossing, Shanti halted on the left side, instructing Ammu to return
home. After Shanti safely crossed to the right side, she went out of sight. During this time, the
bus driven by Ramamurthy had slowed down as it approached a narrow bridge a few feet away.
Despite hesitation, she suddenly dashed across the road. In an attempt to avoid a collision,
Ramamurthy blew the horn and swerved the bus to the right. Unfortunately, Ammu came under
the left front wheel and was fatally crushed. Later, a complaint was filed by the village Patel,
Basmal Gowda, at the Upparahalli Police Station. The station house officer registered a case,
conducted an on-site investigation, and gathered statements from witnesses, including passengers
on the bus. Ramamurthy was arrested, and the case proceeded to the Judicial Magistrate 1st
Class in Bengaluru.

Action taken by the Parties:

1. The Appellant of the Case:

Even though the Appellant herein argued that the accident was unavoidable, the
Appellant was convicted. He appealed to the sessions court as well as the High Court,

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where the conviction was upheld. Hence, Ramamurthy has preferred this appeal to the
Hon’ble Supreme Court of India.
2. The Respondent of the Case:
The Respondent herein focused on alleged discrepancies in the witnesses' statements,
which made them hostile. Ramamurthy was ultimately convicted under Section 304-
A of the IPC, with 6month simple imprisonment and Rs. 500 fine. The Case was
appealed to the High Court, which upheld the Sessions Judge's view that the principle
of res ipsa loquitur was applicable to the circumstances of the case
STATEMENT OF ISSUES

1. WHETHER THE COURTS BELOW WERE RIGHT IN DISCARDING THE

EVIDENCE OF THE EYEWITNESSES ON THE GROUND THAT THEY WERE
TREATED HOSTILE BY THE PROSECUTION AND CROSS-EXAMINED?

2. WHETHER THE PRINCIPAL RES IPSA LOQUITUR WAS APPLICABLE IN

CRIMINAL PROCEEDINGS AND, IF SO, WHETHER IT COULD BE INVOKED IN
THE CIRCUMSTANCES OF THE CASE TO PRESUME RASHNESS AND
NEGLIGENCE ON THE APPELLANT'S PART?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE COURTS BELOW WERE RIGHT IN DISCARDING THE EVIDENCE

OF THE EYEWITNESSES ON THE GROUND THAT THEY WERE TREATED
HOSTILE BY THE PROSECUTION AND CROSS-EXAMINED?

It is humbly submitted before this Hon’ble Court that the evidence of the prosecution witnesses
cannot be rejected wholesale merely on the ground that the prosecution had dubbed them hostile
and had cross-examined them. Even in a criminal prosecution when a witness is cross-examined
and contradicted with the leave of the court by the party calling him, his evidence cannot be, as a
matter of law, treated as washed off the record altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his testimony.

ISSUE 2

WHETHER THE PRINCIPLE RES IPSA LOQUITUR WAS APPLICABLE IN

CRIMINAL PROCEEDINGS AND, IF SO, WHETHER IT COULD BE INVOKED IN
THE CIRCUMSTANCES OF THE CASE TO PRESUME RASHNESS AND
NEGLIGENCE ON THE APPELLANT’S PART?

It is humbly submitted before this Hon’ble Court that Res Ipsa Loquitur is a principle which, in
reality, belongs to the law of torts. The primary reasons for non-application of res ipsa loquitur as
an abstract doctrine to criminal trials, are: firstly, in a criminal trial the burden of proving
everything essential to the establishment of the charge against the accused always rests on the
prosecution; secondly, while in civil proceedings a mere preponderance of probability is
sufficient to establish a fact in issue, it is not so in criminal proceedings wherein the presumption
of guilt must amount to such a moral certainty as convinces the mind of the court, as a
reasonable man, beyond all reasonable doubt.

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ARGUMENTS ADVANCED

ISSUE-1 WHETHER THE COURTS BELOW WERE RIGHT IN DISCARDING THE

EVIDENCE OF THE EYEWITNESSES ON THE GROUND THAT THEY WERE
TREATED HOSTILE BY THE PROSECUTION AND CROSS-EXAMINED?

It is humbly submitted before this Hon’ble Court that the evidence of the prosecution witnesses
cannot be rejected wholesale merely on the ground that the prosecution had dubbed them hostile
and had cross-examined them.

A hostile witness is a witness who testifies against the party who has called them to testify. When
the party’s own witness denies giving a statement in his favor before the court, then it is said that
the witness has become hostile. Section 154 of the Indian Evidence Act talks about the hostile
witness. This section enables the court to permit the party to cross-examine his own witness, who
has become hostile. The general rule is that a party can cross-examine opposite-party witnesses,
but it is an exception to this rule. If the witness becomes hostile, then the party may cross-
examine its own witness with the permission of the court. It is the discretionary power of the
court to permit the party to cross-examine its own witness. If the court is satisfied with the fact
that, in the interest of justice and fair hearing, the party must be allowed to cross-examine, then
only the court permits it.

In the case of Sat Paul v. Delhi Administration1, it was held that merely because the prosecution
has chosen to treat his witness as a hostile witness, it cannot make the evidence of such a witness
totally null. The court said that if the witness proves to be an unfavorable witness who has failed
in proving a fact, then the evidence of such a witness can’t be effaced. The court can still rely on
and appreciate the statement made by the hostile witness. It can be accepted as evidence to the
extent that the statement is found to be credible or authentic and inspires credit.

Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave
of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as
washed off the record altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness stands thoroughly discredited or
1
1976 AIR 294

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can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the
credit of the witness has not been completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care, accept, in the light of the other
evidence on the record, that part of his testimony which he finds to be creditworthy and act upon
it. If in a given case, the whole of the testimony of the 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.

Similarly, in the case of Atmaram & Ors. v. State of M.P2, it was held that, inconsistency in the
statement of the prosecution’s witness case cannot make the whole statement invalid. If the judge
feels that the character of the witness has not been completely shaken or that his credit is still
worthy of trust, then with due care and caution, such statement or evidence may be accepted by
the court.

In the case of Noorahammad v. State of Karnataka3, the court did not reject the testimony only
because the prosecution found their witness to be hostile and cross examined the witness.

The instant case is not one where the whole of the testimony of these witnesses was impugned in
cross-examination by the prosecution. It is submitted that their credit, on material points, was
hardly shaken.

In the case of State of UP v. Ramesh Prasad Misra4, it was held that merely because the witness
turned hostile, his evidence cannot be rejected in its entirety. The evidence of a hostile witness
should not be totally rejected if spoken in favour of the prosecution or the accused, but it can be
subjected to close scrutiny and that portion of the evidence which is consistent with the case of
the prosecution or defence may be accepted.

In the case of Raja v. State of Karnataka5, the Hon’ble Supreme Court held that “the evidence of
a hostile witness in all eventualities ought not stand effaced altogether and that the same can be
accepted to the extend found dependable on a careful scrutiny”

2
AIR 2012 SC 1956
3
AIR 2016 SC 679
4
1996 SC 2766
5
AIR 2016 SC 4930

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As held in the case of Pandappa Hanumappa Nanamar v. State of Karnataka 6, the entire
testimony of a prosecution witness, who turns hostile and is cross-examined by the prosecutor
with the leave of the court, is not to be discarded altogether as a matter of law. Cross-
examination of a hostile witness does not completely efface his evidence. The testimony remains
admissible in the trial process.

It may be noted that the police statements of the eye-witnesses were not put specifically, bit by
bit to them by the prosecution, in cross-examination. Only an omnibus question was asked as to
whether they had stated before the police that the accident occurred due to the negligence of the
accused. This was, at best, a matter of inference to be drawn by the Court. The witnesses were
not contradicted with regard to material facts which were the product of their direct sensory
perception. For instance, their version with regard to the speed of the vehicle, the blowing of
horn, the child running across the road and sudden swerving of the vehicle to the right in an
attempt to save the child, etc., was not impeached by the prosecution in cross-examination.

The Hon’ble Supreme court in Krishan Chander v. State of Delhi7 held that "the mere fact that a
witness is declared hostile by the party calling him and allowed to be cross-examined does not
make him an unreliable witness so as to exclude his evidence from consideration altogether."

As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a
prosecution witness cannot be entirely dismissed or rejected solely because the prosecution
labeled the witness as 'hostile' and subjected them to cross-examination.

In short, the credit of the witnesses in the instant case with regard to the substratum of their
examination-in-chief had not been shaken 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.

6
AIR 1997 SUPREME COURT 3663
7
AIR 2016 SC 298

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ISSUE-2 WHETHER THE PRINCIPLE RES IPSA LOQUITUR WAS APPLICABLE IN

CRIMINAL PROCEEDINGS AND, IF SO, WHETHER IT COULD BE INVOKED IN
THE CIRCUMSTANCES OF THE CASE TO PRESUME RASHNESS AND
NEGLIGENCE ON THE APPELLANT’S PART?
It is humbly submitted before this Hon’ble Court that the principle res ipsa loquitur is not
applicable in criminal proceedings firstly because in a criminal trial the burden of proving
everything essential to the establishment of the charge against the accused always rests on the
prosecution and secondly, while in civil proceedings a mere preponderance of probability is
sufficient to establish a fact in issue, it is not so in criminal proceedings wherein the presumption
of guilt must amount to such a moral certainty as convinces the mind of the court, as a
reasonable man, beyond all reasonable doubt.

A. In a criminal trial, the burden of proof is upon the prosecution

The standard of proof is the degree to which a party must prove its case to succeed. The burden
of proof, sometimes known as the “onus”, is the requirement to satisfy that standard. In criminal
cases, the burden of proof is on the prosecution, and the standard required of them is that they
prove the case against the defendant “beyond reasonable doubt”.

Criminal cases involve accusations of violating criminal laws, and the focus is on establishing
the guilt of the accused rather than seeking compensation for harm, as in civil cases. Res ipsa
loquitur is not typically used in criminal cases, as criminal liability requires proof of intent or
criminal negligence, and the prosecution must meet a higher evidentiary standard.

Any person is considered to be innocent unless he or she is proven to be guilty. The presumption
of Innocence is a fundamental principle of criminal jurisprudence which asserts that a person
should be presumed innocent unless and until proved guilty. This means an accused is presumed
to be innocent unless that presumption is rebutted by the prosecution by producing evidence
against the accused which makes him guilty of the specific charge. Hence the court cannot find
an accused to be guilty until proven by the prosecution. If the prosecution fails to prove the
accused's guilt beyond a reasonable doubt, the accused is entitled to an acquittal. This was
determined in the case of Ouseph v. State of Kerala8.

8
2004 10 SCC 647

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Section 101 of the Evidence Act 1872 illustrates the burden of proof in the sense of proving a
case. It lays down that whoever wants a court to give a judgment in his favour as to any legal
right or liability dependent on the existence of some facts, must prove the existence of those
facts. This section is based on the rule, ie incumbit probatio qui dicit, non qui negat- the burden
of proving a fact rests on the party who substantially asserts the affirmative of the issue and not
upon the party who denies it.

In the case of Dr. Om Prakash Rawal vs. Mr. Justice Amrit Lal Bahri9, it was stated that the rule
of evidence as under section 101 of the Indian Evidence Act is based on the well-known maxim
Ei incumbit probatio, qui dicit, non qui negat which means that the burden of proof lies on the
party who asserts, not on him who denies it.

In criminal cases burden of establishing the charge against the accused lies on the prosecution.
Here it is not the accused who has to prove his innocence because he is presumed to be innocent
till his guilt is proved. That is why the prosecution has to prove his case and section 101 comes
into operation.

The principle res ipsa loquitur shifts the burden of proof on the defendant. The court shall
presume negligence on the part of the defendant in such a case unless it includes an appropriate
explanation compatible with his taking reasonable care.

In the case of S.L.Goswami v. State of M.P.10, it was held that “In our view, the onus of proving
all the ingredients of an offence is always; upon the prosecution and at no stage does it shift to
the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases
where the defence of the accused does not appear to be credible or is palpably false that burden
does not become any less. It is only when this burden is discharged that it will be for the accused
to explain or controvert the essential elements in the prosecution case, which would negative it.
It is not however for the accused even at the initial stage to prove something which has to be
eliminated by the prosecution to establish the ingredients of the offence with which he is
charged, and even if the onus shifts upon the accused and the accused has to establish his plea,
the standard of proof is not the same as that which rests upon the prosecution.”

B. There must be a higher degree of negligence to constitute criminal negligence.

9
AIR 1994 HP 27
10
1972 AIR 716

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The jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence the element of mens rea must be shown to exist. The degree of negligence
must be much higher i.e., gross on of a very high degree in criminal negligence. Negligence,
which is neither, gross nor of a very high degree may provide a ground for action in civil law but
cannot be the basis for prosecution in criminal law. Criminal negligence is the gross and culpable
neglect or failure to exercise reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which, having regard to all the
circumstances out of which the charge has arisen.

Lord Atkin in his speech in Andrews v. Director of Public Prosecutions11, stated, "Simple lack of
care such as will constitute civil liability is not enough; for purposes of the criminal law there are
degrees of negligence; and a very high degree of negligence is required to be proved before the
felony is established."

The rashness or negligence must be of such nature so as to be termed as a criminal act of

negligence or rashness. Culpable rashness is acting with the consciousness that the 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 precaution to prevent their happening. The imputability
arises from acting despite the consciousness. 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
circumstances.

In the instant case, the accused had swerved the bus to the extreme right side of the road, where
the unfortunate child, who came running from the left side of the road, struck against the bus and
was fatally knocked down by its left front wheel. This act of the accused shows that he had
exercised reasonable amount of care which a prudent man would exercise and there is no
negligence on his part.

To render a person liable for neglect of duty it must be such a degree of culpability as to amount
to gross negligence on his part. It is not every little slip or mistake that will make a man so liable.
11
(1937) A.C. 576

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In Malay Kumar Ganguly v. Sukumar Mukherjee & Ors.12, the Supreme Court said that the
negligence of the accused shall be high and intense to make him/her liable under Section 304A
of the IPC. A mere lack of care and attention or error in judgment may be civil negligence, but it
is no offence in criminal law because the act of the accused should contain gross negligence.

Res Ipsa Loquitur is a principle, which in reality, belongs to the law of torts and should not be
indiscriminately transposed into the context of criminal proceedings. Res Ipsa Loquitur is a Latin
phrase that means the thing speaks for itself. In cases, where the evidence is itself sufficient to
prove the guilt of the defendant, this maxim is used. It shows that if the defendant was not
negligent, the accident would not have happened. Even in actions in torts, as a rule, it is for the
plaintiff to prove that the injury occurred due to the negligence of the defendant, and the mere
fact that an accident has occurred the cause of which is unknown, is not, evidence of negligence.
But the peculiar circumstances constituting the event or accident in a particular case may
themselves proclaim negligence of somebody as the cause of the accident. Satisfaction of this
condition alone is not sufficient for res ipsa to come into play, and it has to be further satisfied
that the event that caused the accident was within the defendant's control. Thus, the two-fold
requirement for the application of the maxim is that the res must not only speak of negligence
but pin it on the defendant.

It is not a special rule of substantive law; but only an aid in the evaluation of evidence, a means
of estimating logical probability from the circumstances of the accident. In criminal cases, the
burden of proof stands much higher than that of civil matters. In criminal matters, the
circumstances against the accused must be proved and established firmly and it must be
unerringly pointing towards the guilt of the accused.

As a rule, mere proof that an event has happened or an accident has occurred, the cause of which
is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event
or accident, in a particular case, may themselves proclaim in concordant, clear, and unambiguous
voices the negligence of somebody as the cause of the event or accident. It is to such cases that
the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable
explanation as to the cause is coming forth from the defendant.

12
AIR 2010 SC 1162

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Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in
cases of torts, and helps in determining the onus of proof in actions relating to negligence. It
cannot be pressed in service of determining per se the liability for negligence within the domain
of criminal law. Res ipsa loquitur has if at all, a limited application in trial on a charge of
criminal negligence.

In the case of Nanjundappa v. State of Karnataka13, it was held that the principle of res ipsa
loquitur in stricto sensu would not apply in cases falling under Section 304-A of the IPC. After
proving negligence, the prosecution must prove direct nexus between negligence of the accused
and death of the victim to establish the guilt of the accused.

In the instant case, the maxim could have no application. The circumstance of taking the bus
suddenly to the extreme right of the road, which was the reason given by the courts below for
invoking the maxim, did not speak in a clear and unambiguous voice, negligence on the
appellant's part to exercise due care and control. Moreover, the appellant gave a reasonable and
convincing explanation of his conduct in swerving the vehicle to the right, and his version was
fully supported by four prosecution witnesses.

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

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
13
Criminal Appeal no. 900 of 2017

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the bus. Clearly, therefore, the accident occurred not on account of his negligence but due to an
error of judgment in the circumstances of the situation. An error of judgment of this kind which
comes to light only on post-accident reflection is not a true index of negligence. A grave error of
judgment, particularly one apparent as such in the light of after-events is not negligence of the
kind contemplated in Section 304-A of the Indian Penal Code, if the person responsible thought
that he was acting in the best interests of the passengers and of the vehicle he was driving.

It is humbly submitted that it would be useful to advert to the dictum in the case of Syad Akbar
v. State of Karnataka14, in which this Court proceeded on the basis that 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. This Court opined: “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. 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.”

In the case of Jacob Mathew v. State of Punjab & Anr.15 ,the Court also stated, in its view, that
merely because it appears on the fact of the circumstances that there is criminal negligence on
the part of the accused does not make him or her punishable under Section 304A of the IPC by
applying the doctrine of res ipsa loquitur.

It was thus evident that the accident happened due to an error of judgment, and not negligence or
want of driving skill on the part of the accused. An error of judgment of the kind, such as the one
in the instant case, which comes to light only on post-accident reflection, but could not be
foreseen by the accused in that fragmented moment before the accident, is not a sure index of
negligence, particularly, when in taking and executing that decision the accused was acting with
14
AIR 1979 SC 1848
15
AIR 2005 SC 3180

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the knowledge and in the belief that this was the best course to be adopted in the circumstances
for everyone's safety.

Res ipsa loquitur is only a means of estimating logical probability from the circumstances of the
accident. Thus, the prosecution had failed to prove beyond reasonable doubt that the appellant
had caused the death of the child by negligent or rash driving. Here, all happened in a fraction of
a moment. Even if the worst was assumed against the appellant, the highest that could be said
was that a misjudgment on his part too slight to be branded as culpable negligence could well
account for the accident resulting in the death of the child.

PRAYER

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Wherefore, in light of the facts stated, issues raised, arguments advanced, and authorities cited, it
is most humbly prayed before this Hon’ble Supreme Court of India, to adjudge, declare and hold
the following:

1. The impugned judgment of the Trial Court as erroneous.

2. The principle of Res Ipsa Loquitur is not applicable in criminal proceedings.

AND/OR pass any such further or other order/orders as this Hon’ble Court may deem fit and
proper in the interest of Justice, Equity, and good conscience and thereby render justice.

And for this act of kindness and justice, the respondent shall be duty-bound and forever pray.

Place: Bengaluru

Date: February 22, 2024 Counsel for the

Appellant

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