Res Ipsa Loquitur

The case

Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, decided on 25 July 1979.

Facts. The appellant was driving a bus along a village road with deep ditches on either side. A mother crossed ahead of him and went out of sight. Her daughter, a girl of four, followed at a distance, hesitated at the roadside and then dashed across suddenly. The bus had slowed because a narrow bridge lay a few feet ahead. The driver sounded his horn and swerved to the right, but the child came under the left front wheel and was killed. The prosecution declared all its eye-witnesses hostile and cross-examined them. The Sessions Judge and the High Court held that even if that evidence were discarded entirely, the circumstances and nature of the accident were enough, on res ipsa loquitur, to establish rash and negligent driving.

Held, on the witnesses. Evidence cannot be rejected wholesale merely because the party calling a witness declared him hostile and cross-examined him. It is for the judge of fact to decide in each case whether the witness stands thoroughly discredited or can still be believed as to part of his testimony.

Held, on the maxim. Res ipsa loquitur is more a convenient label for certain fact situations than an abstract legal doctrine, and it belongs in reality to the law of torts. Its two-fold requirement is that the res must bespeak negligence and pin it on the defendant, which needs the event to have been within his control. The first of the two approaches above, the presumption that shifts the burden, cannot be invoked in a criminal trial, for two reasons: in a criminal trial the burden of proving everything essential to the charge always rests on the prosecution, and while a preponderance of probability suffices in a civil case a criminal court must be convinced beyond all reasonable doubt. Further, where negligence is an ingredient of the offence, the negligence proved must be culpable or gross and not merely an error of judgment.

Held, on what survives. The second approach may be used. As a convenient aid in the assessment of evidence and in drawing a permissive inference, the maxim can be invoked in a criminal trial where the accused's negligence is a fact in issue, and doing so does not conflict with the law of evidence. But it is subject to every condition that governs a conviction on circumstantial evidence alone: all the circumstances, including the objective circumstances of the accident, must be firmly established; they must be of a determinative tendency pointing unerringly to the guilt of the accused; and they must make the chain so complete that no reasonable hypothesis other than guilt remains.

Why it matters here. It is the direct answer to the printed question, and it is the case that draws the line: the maxim survives in a criminal court only as a way of reasoning, never as a way of relieving the prosecution of its burden.

The point was repeated in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, whose eighth conclusion is that res ipsa loquitur is only a rule of evidence, operates in the domain of civil law, cannot be pressed into service to determine liability for negligence in the criminal law, and has at most a limited application on a charge of criminal negligence.

Where the evidence statute fits

The Bharatiya Sakshya Adhiniyam, 2023 supplies the framework the maxim has to fit inside.

Section 104 provides for the burden of proof: whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In a criminal case that is the prosecution.

Section 119 provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. That is a permissive power to infer, and it is exactly the doorway through which the second, weaker form of the maxim enters a criminal trial.

So the correct statement is that res ipsa loquitur in an Indian criminal court is not a doctrine at all: it is an application of the court's ordinary power to presume a fact.

Worked example

A lorry mounts an empty pavement in daylight and kills a pedestrian standing against a wall. The driver is prosecuted. There are no eye-witnesses.

Would the maxim assist a civil claim? Yes. Lorries do not mount pavements in the ordinary course of things without negligence, and the lorry was in the driver's control. The two-fold requirement is satisfied.

Does it prove the criminal charge? No. The prosecution still has to prove gross negligence beyond reasonable doubt, and the maxim cannot shift that burden.

What may the court do with the circumstances? Under section 119 it may presume what is likely, having regard to the common course of natural events. If the circumstances are firmly established, point unerringly to the driver's gross negligence, and leave no reasonable hypothesis consistent with innocence, a conviction may follow.

What would defeat it? A hypothesis consistent with innocence that the circumstances do not exclude: a mechanical failure that could not have been foreseen, a sudden medical event, or another vehicle forcing him off the road. On the tort side those would have to be proved by the defendant; on the criminal side it is enough that they are not excluded.

What it does NOT mean

It does not mean the accident proves the offence. The Court said the mere fact that an accident has happened, the cause of which is unknown, is not evidence of negligence even in tort.

It does not shift the burden in a criminal case. That is the first approach, and it is the one Syad Akbar excluded.

It is not a doctrine of Indian criminal law. It is a label for a way of reasoning, admitted through the ordinary power to presume a fact.

And it does not lower the degree of negligence required. Where negligence is an ingredient, it must still be culpable or gross.

Quick revision

• Res ipsa loquitur: the thing speaks for itself. A tort maxim.
• Two-fold requirement: the res must bespeak negligence and pin it on the defendant, which needs the event to have been within his control.
• Two approaches: a presumption of law shifting the burden; and an aid to evaluating evidence permitting an inference of fact.
• Syad Akbar (1979): the first cannot be used in a criminal trial, because the burden always rests on the prosecution and the standard is beyond reasonable doubt; the second may, subject to every condition governing a conviction on circumstantial evidence.
• Those conditions: the circumstances must be firmly established, of a determinative tendency pointing unerringly to guilt, and must exclude every other reasonable hypothesis.
• Jacob Mathew (2005), conclusion eight: the maxim is only a rule of evidence, operates in civil law, and has at most a limited application on a charge of criminal negligence.
• The statutory doorway is section 119 of the Bharatiya Sakshya Adhiniyam, the power to presume, read against section 104, the burden of proof.

Test yourself

1. Translate the maxim and give its two-fold requirement. The thing speaks for itself. The occurrence must both bespeak negligence and pin it on the defendant, which requires that the thing causing the accident was within his control.

2. Why can the presumption form of the maxim not operate in a criminal trial? Because the burden of proving everything essential to the charge always rests on the prosecution, and because a criminal court must be satisfied beyond reasonable doubt while a civil court decides on a preponderance of probabilities.

3. What form of the maxim does survive, and subject to what? Its use as an aid to evaluating evidence and drawing a permissive inference, subject to the conditions for a conviction on circumstantial evidence: firmly established circumstances, of a determinative tendency, excluding every reasonable hypothesis but guilt.

4. Which provision of the evidence statute is the doorway for that surviving use? Section 119 of the Bharatiya Sakshya Adhiniyam, under which the court may presume the existence of a fact it thinks likely to have happened, having regard to the common course of natural events and human conduct.