By N. C. Jain, Advocate
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The Word
1. The maxim res ipsa loquitur is used as an aid to
evidence when the fact situation speaks for itself or tells its own story.
Literally meaning, ‘thing speaks for itself’ the latin maxim eases the burden of
establishing an abstract situation or a mental state when the event by its very
nature points glaringly to the existence of such a state. It is used as an aid
in the evaluation of evidence and in appropriate cases, a substitute for
evidence itself at least shifting the onus of proof to the accused.
2. Res ipsa loquitur is a rule of evidence which in
reality belongs to the law of torts. There are two lines of approach, as held by
the Supreme Court in Syad Akbar v. State of Karnataka, 1979 AIR 1848, in
regard to the application and effect of the maxim. According to the first, the
maxim, wherever it applies, operates as an exception to the general rule that
the burden of proof of the alleged negligence is, in the first instance, on the
plaintiff. In such a case the burden shifts to the defendant to disprove his
liability. According to the other line of approach ‘Res ipsa loquitur’ is
not a rule of substantive law; but only an aid in the evaluation of evidence, a
means of estimating logical probability from the circumstances of the event. It
does not require raising of any presumption of law which must shift the onus on
to the defendant. It only allows the drawing of a permissive inference of fact,
as distinguished from a mandatory presumption, having regard to the totality of
the circumstances and the probabilities of the case. The Courts do not generally
favour invoking the first line of approach in the trial of criminal cases as an
abstract doctrine, for the reason that in a criminal trial the burden of proving
everything essential to the establishment of the charge rests on the
prosecution. Also, while in civil proceedings, a mere preponderance of
probability is sufficient to establish a fact in issue, it is not so in criminal
proceedings where the presumption of guilt must amount to such a moral certainty
as convinces the Court beyond all reasonable doubt.
3. The other line of approach treating the maxim as a
convenient aid in assessment of evidence and in drawing permissive inferences
under the Evidence Act does not conflict with the provisions and principles of
the Evidence Act peculiar to criminal jurisprudence if inferring a fact in issue
from another circumstantial fact is subjected to satisfaction of essential
conditions for an accused to be convicted on the basis of circumstantial
evidence alone. As held by Lahoti J in Jacob Mathew v. State of Punjab and
Anr., (2005) INSC 390 (5.8.2005), res ipsa loquitur is only a rule of
evidence and operates in the domain of civil law specially in case of torts and
helps in determining the onus of proof in action relating to negligence. It
cannot be pressed in service for 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.
4. In cases, however, where because of the very nature of the
event the plaintiff can only prove the accident, but cannot prove how it
happened to establish negligence, the rule of res ipsa loquitur has been
invoked. In Pressing Co. Pvt. Ltd. and Another (AIR 1977 SC 1735) the Apex Court
observed :
“The normal rule is that it is for the plaintiff to prove
negligence, but as in some cases considerable hardship is caused to the
plaintiff as the true cause of the accident is not known to him, but is solely
within the knowledge of the defendant who caused it, the plaintiff can prove
the accident but cannot prove how it happened to establish negligence on the
part of the defendant. This hardship is sought to be avoided by applying the
principle of res ipsa loquitur. The general purport of the word res
ipsa loquitur is that the accident ‘speaks for itself’ or tells its own
story.”
5. In Syad Akbar case (supra) when the driver of a bus
was charged of causing the death of a child by negligent driving and where the
eye witness was treated hostile, the Sessions Judge applied ‘res ipsa
loquitur’ and held the accused guilty. The view was affirmed by the High
Court. After considering the facts of the case in detail and various judicial
pronouncements of Indian and foreign authorities regarding its application in
criminal cases, the Apex Court set aside the conviction awarded on the basis of
application of res Ipsa loquitur only.
6. Even though the principle is applied with great caution in
criminal cases, its application is not ruled out in cases with high probability
and where the defendant does not come forward to rebut the inference. In a case
where the conductor of a bus had committed similar misconduct 36 times prior to
the time he was found guilty, the Court observed “Be that as it may, the
principle of res ipsa loquitur, namely, the facts speak for themselves is
clearly applicable in the instant case [B. S. Hullikatti (2001) 2 SCC 574]. In
State of Punjab v. Modern Cultivators, Ladwa 1965 AIR 17, damages were
claimed for defendant’s negligence which caused break in the bank of canal. The
Supreme Court upheld the application of res ipsa loquitur holding that
there would not have been a breach in the bank of the canal if those in
management took proper care and the breach itself would be prima facie
proof of negligence. Similarly where damages were claimed by the heirs of three
persons who died as a result of the collapse of the clock tower in Chandni Chawk
Delhi, the SC upheld invoking the rule for the reason that the mere fact that
there was a fall of clock tower, which was exclusively under the ownership and
control of the appellant would justify raising an inference of negligence so as
to establish a prima facie case against the appellant (Municipal
Corporation of Delhi v. Subhagwanti and Ors., 1966 AIR 1750).
7. The application of the maxim was examined in cases of
corruption where the accused is trapped and caught. The following observations
of Krishna Iyer J in Rughubir Singh v. State of Haryana, 1974 AIR 1516
are often relied upon in such cases :
“But we may notice that even if the statutory presumption is unavailable, Courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master has in his hands a marked currency note made over to him by a passenger whose bedding has been detained by him for which no credible explanation is forthcoming and he is caught red-handed with the note, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstance. We need not, therefore, scrutinize the substance of the argument based on the inapplicability of S. 4 of the Evidence Act.”
Following the aforesaid observations, the Court in State of AP v. V. Vasudeva Rao, (2003) INSC 560 (13.11.03), where an Asstt. Collector, Weights and Measures was trapped for demanding bribe, 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.
8. Commenting on growing dependence on res ipsa loquitur in case of driver’s negligence, the Supreme Court in Shyam Sunder & Others v. The State of Rajasthan, (1974) INSC 53 observed that over the years the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding know ledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance.
9. Proceeding for imposition of penalties under the Income-tax Act and other fiscal legislation, as distinguished from prosecution, are not criminal in nature. They are quasi criminal, but require existence of mens rea to be shown. The standard of proof for imposition of penalty is not as rigorous as that for prosecution which proceeds on proof of commission or omission beyond doubt. Penalties for any default under the Act are dictated by preponderance of probabilities as appearing from totality of circumstances. In cases where the fact situation is found to be res ipsa loquitur decisively pointing to such pre-ponderance of probabilities, the burden cast on Assessing Officer is considerably discharged in matters of penalty, which is not the case when prosecution proceedings are launched for any offence.
