We are first to report the full text of Salman Khan Hit and Run Case Judgement in Full length. Mr. Sachin Vaze, Ex Cop of Mumbai, who runs a law firm in Thane City provided us the copy of this judgement.
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- PW¬21 Sharad Bapu Borade had brought the blood sample of accused to C. A. Laboratory. As per his version, investigating officer Shri Kadam gave him two sealed envelopes. One envelope was having two bottles and one envelope was having a letter. Exh. 80 is the said letter. PW¬21 also made endorsement on the back of the letter Exh. 80 that he received the letter of Police Station along with Form ‘A’ & ‘B’ and also he deposited two sealed bottles of blood. The endorsement is at Exh. 80¬A. He also signed below the endorsement. He also obtained the acknowledgment from the Laboratory for delivering the bottles. During cross examination, Exh. 102 shown to the witness which is a letter written by Casualty Medical Officer to C. A. The receiving clerk put an endorsement about the receipt of the bottles and also his buckle number was mentioned in the endorsement made by him. PW¬21 stated that the form was returned to him, which he submitted to the Police Station. Generally, the letters written to the C. A. from Police Station need not return to police station. In my opinion that would not hamper the case of the prosecution. PW¬21 was also examined in the Court of Metropolitan Magistrate. He denied that Rajendra Kadam gave him one sealed envelope and two sealed bottles. According to him portion marked ‘A’ read over to him from his deposition is not correct. He also denied that he was asked to carry the bottles in iron box. He contradicted portion marked ‘B’. He stated that it did not happen that the sample bottles were not covered with the seal. He also contradicted portion marked ‘C’. In my opinion though PW¬21 contradicted portion marked ‘A’ to ‘C’ from his evidence recorded in the Court of Metropolitan Magistrate, that would not affect his evidence before me on material fact of carrying the blood sample to Kalina.
1 Another crucial evidence is of PW¬18 Assistant Chemical Analyser Dattatray Bhalshankar. The ld. Advocate Mr. Shivade heavily criticized the said evidence. According to ld. Advocate Mr. Shivade, after going through the entire evidence, one may find that, PW¬18 Bhalshankar is not an expert, has no qualification of an expert, did not take proper precautions. There is discrepancy about the seals and method of analysis. The ld. SPP would contend that nowhere during cross¬examination the witness has been confronted about any laps in taking precaution in actual analysis of the blood sent to him for analysis. According to Mr. Gharat, ld. SPP, the rule of evidence is repeated that when a particular thing is required to be done in a particular manner, presumption is that, it is done and performed in that particular manner only. According to him, if the other side wants to rebut the same, the onus is upon them to show that, that particular thing is not done or not performed in that particular way and there is lapse in the performance of the duty.
2 As per the version of PW¬18 Bhalshankar, in the year 2001, he came to Mumbai as an Assistant Chemical Analyzer in Forensic Science Laboratory. He has analyzed 1000 cases till 2002. On 30.09.2002, he had received a blood bottle along with the letter from Bandra Police Station. Form “A” and “B” were also sent along with the said letter. According to him, it bears stamp of his office on the same letter about receiving the letter of Bandra Police Station, the analysis of the blood was sought by Bandra Police Station in order to ascertain percentage of the alcohol in the blood sample sent for analysis.
1 The evidence of PW¬18 further reveals that he also ascertained whether form “A” or “B” were attached with the letter or not. According to him, the blood phial was found sealed. The seal was found in tact. He also put the number “AL – 171/02” on the said letter. He signed the letter after ascertaining about the sealed bottle whether it was intact or not. The noting is in his handwriting on the letter “one sealed phial sent in tact as per the copy sent (blood in two phials)”. PW¬18 also affixed two labels on the letter dated 28.09.2002 removed from the blood bottle. The labels were removed from the blood bottle and affixed on the letter dated 28.09.2002 form “B”.
2 PW¬18 Dr. Bhalshankar also deposed that after receiving the blood phial, it was kept in the fridge. On 01.10.2002 PW¬18 analyzed the blood phial and used the modified diffusion oxidation method. Pw¬18 also measured the quantity of the blood which was admeasuring 4 ml. According to him, the preservative was added in the blood phial. He also conducted marpholin test. He also took the noting of the test. According to him, the test result was found positive. According to him, he then started analysis of the blood to ascertain the percentage of the alcohol.
1 PW¬18 Bhalshankar found 62 milligrams (Mg) of ethyl alcohol in the blood which was analyzed by him. According to him, 62 mg. of ethyl alcohol was found in 100 ml. of the blood. In general 30 milligrams (mg) ethyl alcohol might be found in the blood of human being. Percentage of the methyl alcohol may be increased upto 40 to 42 mg., if the medical treatment is taken by the person. PW¬18 prepared the report (Exh.81).
2 In cross¬examination PW¬18 Bhalshankar stated that he was working in Prohibition Department between 2003 to 2008 at Pune. Further he stated that he cannot say how many samples were analyzed by him till today in his career. He also admitted that private samples other than referred by the Government are also received by the Laboratory for the analysis purpose. He also admitted that with the advancement of Science, the procedure of analysis changes. He also admitted that Head Space technology is utilized to determine alcohol percentage. He also stated that he also heard about the Gas Chromatography. He cannot say whether Liquid Gas Chromatography is also a method used to detect exact percentage of alcohol in the blood. He cannot say whether Gas Chromatography method is used in Laboratory in Mumbai since prior to 2002. He cannot say whether Gas Chromatography method is fairly accurate to determine alcohol percentage. He also admitted that Chemical Analysers working in the Forensic Laboratory should update themselves. He also admitted that he did not update himself in respect of Gas Chromatography, Liquid Gas Chromatography and Head Space technology. Further in cross¬examination, PW¬18 stated that he did B.Sc. in general Chemistry. In 1980 he has joined as a Scientific Assistant in Forensic Laboratory. He has not obtained degree, diploma or certificate course in Forensic Science. He did not do any research. He also analyzed the cases from Excise Department.
1 PW¬18 further stated in his evidence that the reaction mixture is the first stage of starting analysis. While preparing reaction mixture, blood sample is kept in the refrigerator. According to him, after preparing the reaction mixture, one hour period is required for completing the procedure for analysis. Further he cannot say the time when he began to prepare reaction mixture. It is impossible for the witness to state about the time after a gap of 13 years. He is also unable to tell when he began to prepare reaction mixture in the morning, afternoon or evening. Further he cannot tell whether completion of blood sample analysis was in the morning, afternoon or evening.
2 During cross¬examination PW¬18 also stated that while doing the analysis, he made noting. At the time of evidence, he had brought the noting. PW¬18 further stated that the Police Constable had brought the blood sample to him. There is a Section situated on the ground floor of the Laboratory for receiving the samples. He then volunteers that at the first floor the samples are received. He also verified from seeing the bottle whether it is containing the blood. The ld. Advocate Mr. Shivade submitted that PW¬20 Dr. Pawar wrapped sticking plasters from the bottle, how one can notice if bottle was containing the blood. PW¬18 admitted that there is reference of only one bottle in the letter. However, during further cross¬examination he stated that there were two blood bottles wrapped by the tape. According to him, the blood bottle which was showed to him was wrapped by plastic tixo strip. Much was argued by ld. Advocate Mr. Shivade that Dr. Pawar had wrapped sticking plaster, but PW¬18 stated about the plastic tixo strip and therefore, doubt is created. I do not find any force in the submission on the ground that even if PW¬18 stated about the plastic tixo strip, PW¬18 might be stating about the plastic tixo strip instead of sticking plaster that too after 13 years period.
1 The evidence of PW¬18 Bhalshankar further reveals that the name of Salman Khan was written on blood sample bottle. He also admitted that after receiving the sample, the sample has to be analyzed as expeditiously as possible and if there is a delay, then the sample would deteriorate. As per the Civil Medical Code, blood sample is to be sent within 7 days from police station for analysis. In our case, on 28.09.2002 blood sample was taken and it was deposited in the police station. On 30.09.2002 blood sample of accused was sent to C.A. in Laboratory. On 30.09.2002 the blood sample was kept in fridge. On 01.10.2002 PW¬18 analyzed the blood. So it can be said that there was no delay for analyzing the sample.
2 PW¬18 also admitted that there was no mention on the label that preservative was added or not. According to him, he came to know from the papers that the blood of Salman was extracted on 28.09.2002. PW¬18 further stated in cross¬examination that “the blood is extracted and without adding preservative the blood, the blood lasts for the period of two days, if properly sealed by the Doctor who extracted the blood”. It is pertinent to note that PW¬20 Dr. Pawar had sealed the bottles and also PW¬18 Bhalshankar also noticed the blood bottles in tact.
- PW¬18 also stated that Sodium fluoride is a preservative to be added in the blood sample. There was no reference about Sodium Fluoride in the paper. During evidence a book of Garriori’s Medicolegal Aspects of Alcohol, 6th Edition, Page No.285, 10.4 was shown to the witness. PW¬18 stated that he is not in agreement with 10.4,
“Preservation of Biological Specimens, Sodium Fluoride has historically been used to prevent microorganisms from causing the loss or gain of ethanol in biological specimens”. Further PW¬18 was also in agreement with the propositions 10.4 in the book of Garriori’s Medicolegal Aspects of Alcohol, “These reports indicated that at room temperature sodium fluoride did not prevent the production of some ethanol”.
- On the day of analysis, PW¬18 Bhalshankar removed the tape and saw two blood bottles. He measured the blood in both the bottles by same pipette. There was milimetre marking on the pipette. 4 ml blood was measured. According to PW¬20 Dr. Pawar, he withdrew 6 c.c. PW¬18 also stated that it is not always that there used to be difference between quantity of blood sent by Medical Officer for analysis and the blood noticed at the time of analysis. PW¬18 further stated that in all cases there used to be difference in the quantity of blood sent for examination and at the time of measuring it for analysis.
- Ld. Advocate Mr. Shivade argued much on the said difference. It is pertinent to note that the blood was measured by pipette. There must be one or two drops of the blood might be remained in the pipette or there may be some minor difference in calibration of the syringe for drawing the blood with the calibration of measuring the blood. It is pertinent to note that 0.5 ml blood is necessary for defused oxidation method test. PW¬18 also took 0.5 ml blood sample out of the blood sample. So even if there appears to be some difference in the quantity of blood sent and received, that will not vitiate the blood analysis. Dr. Mahal a landmark authority in the process of analysis in his paper also stated that 0.5 ml blood sample is used for modified diffusion oxidation method. Further there is also an endorsement on Exh.102 letter sent by Dr. Pawar to the Laboratory. There is also an endorsement by Pw¬18 on the said letter (Exh.102), “one sealed phial, Seal intact as per copy.” (Blood in two phials). Even there is also an endorsement of constable buckle no.20419 that sealed bottles were deposited. Much argued by ld. Advocate Mr. Shivade that in (Exh.80) letter sent by PW¬27 Investigating Officer Shengal to Chemical Analyzer that in the said letter it is mentioned about sealed bottle of the blood and sealed envelop is sent along with Constable buckle no.20419 (PW¬21). According to ld. Advocate Mr. Shivade, whether blood sample was in one bottle or two bottles sent to C.A. In view of the evidence brought on record, there were two bottles sent wrapped together by sticking plaster and even on Exh.102, there is an endorsement of PW¬18 about blood in two phials and one sealed phial, seal intact. So it goes to show that two bottles were together wrapped by sticking plaster and it was sealed.
1 PW¬18 further stated in cross¬examination that he analyzed the blood bottles. He further stated that the Doctor extracting the blood should send only one blood sample and also should not incorrectly preserve the blood sample. He also admitted that there are Government instructions that Sodium fluoride should be added in the blood sample. There is no mention in Exh.102 that Sodium fluoride was added as preservative in the blood sample. It will be a serious mistake, if Sodium Fluoride is not added in the blood sample.
2 PW¬18 also stated that haemolysis means, there would be coagulation of the blood and in analysis of the blood where haemolysis occurs, result would not be accurate. It is pertinent to note that in our case, the phial in which 3 cc blood was transferred by PW¬20 Dr. Pawar is a labelled bottle having oxalate preservative. Potassium Oxalate prevents haemolysis. PW¬18 further stated that after extracting the blood from the person and after it comes in contact with air, the blood would coagulate. It is pertinent to note that PW¬20 Dr. Pawar after extracting the blood immediately transferred the blood from syringe into the phial having oxalate preservative. So in that situation, question of coagulation will not arise.
3 PW¬18 Bhalshankar further stated that in morpholine test one cannot ascertain the percentage of alcohol in the blood. He also stated that morpholine test is useless for ascertaining the percentage of alcohol in blood. Much was argued by ld. Advocate Mr. Shivade that PW¬18 Bhalshankar deposed in the evidence before Metropolitan Magistrate that he used the Morpholine test and does not mention about modified diffusion oxidation method. Pw¬18 denied that analysis was made by him by morpholine test. He contradicted portion marked “A” in the certified copy of his evidence (Exh.128) produced on record. It is pertinent to note that in his report (Exh.81), there is mention that modified diffusion oxidation method was used and morpholine test was positive. So modified diffusion oxidation method was utilized to ascertain the percentage of the alcohol in the blood. In my opinion, the evidence of PW¬18 cannot be thrown away on the ground that he denied to have stated before the Metropolitan Magistrate about doing analysis by morpholine test.
- The evidence of PW¬18 Bhalshankar further reveals that Dr. Mahal had developed the method of modified diffusion oxidation. Dr. Mahal had brought in existence the said method and he was the Director of Forensic Science Laboratory. The ld. Advocate Mr. Shivade vehemently submitted that PW¬18 also did not state correctly the formulas. Even ld. Advocate Mr. Shivade stated that PW¬18 Bhalshankar did not go through the papers of Dr. Mahal. Much argued was ld. Advocate for accused that PW¬18 Bhalshankar is unable to tell whether the phial was sterile or not. It is pertinent to note that the labelled phial was provided for transferring the blood after extraction. It is presumed that the labelled phials were proper in order to receive the blood for collection. Pw¬18 Bhalshankar also unable to tell the strength of Sulphuric acid and at what stage of analysis iodine is used. According to Mr. Shivade, PW¬18 does not know about the idometric and isometric titration . He stated that the titration which is conducted in the process of modified diffusion oxidation method is called as oxidation titration. According to PW¬18, after completing the process of oxidation, potassium iodide is to be added.
1 Further PW¬18 Bhalshankar also stated that the solutions which are used for analysis are prepared earlier before process of analysis and the solutions prepared can be utilized for one or two weeks. Pw¬18 is unable to tell the name of the person who has prepared the solution before analysis. According to PW¬18 Bhalshankar, the person who was knowing the reason for what purpose the solutions prepared were, to be utilized. Potassium dichromate and sulfuric acid were the solutions. Pw¬18 also stated that he had not prepared the solution of potassium dichromate and whatever solution was available, he used it. No question was asked to the witness that solutions were unfit for analysis. When a particular thing is required to be done in a particular manner, presumption is that it is done and performed in that particular manner only. So whatever solutions are prepared in Laboratory were prepared in a particular manner, required in the Laboratory.
2 There was grueling cross¬examination of PW¬18 Bhalshankar. Questions were asked to him about the weighing balance used in the Laboratory. PW¬18 is also unable to tell difference between mechanical and electric balance. The ld. Advocate Mr. Shivade contended that the Laboratory at Kalina is not having the ISO mark. PW¬18 Bhalshankar is unable to tell whether Directorate of Forensic Science, Mumbai, is not accredited to the National Accreditation Board for testing and calibration in Laboratories. Further PW¬18 Bhalshankar is unable to tell the difference between qualitative analysis and quantitative analysis. Pw¬18 also stated that modified diffusion oxidation method was used first, thereafter Liquid Gas Chromatography and Gas Chromatography was introduced in 1997. Thereafter Head Space Technology was used. He cannot tell whether in which category, accuracy was increased in alcohol test examination. He is also unable to tell how 0.1 N solution of Sodium dichromate is prepared and also
0.5 Sodium Thiosulphate solution without going through the book.
- The ld. Advocate Mr. Shivade vehemently submitted that no reliance can be placed on the evidence of PW¬18 Bhalshankar as he cannot tell how he conducted the modified diffusion oxidation method test. It is pertinent to note that PW¬18 was subjected to grueling cross¬examination. He is the person who was going to retire shortly and working in Forensic Science Laboratory since many years. Generally, Chemical Analysers are not subjected to cross¬examination in view of the fact that their reports are directly admissible in evidence as proved u/s.293 of the Cr. P. C. So under the grueling cross¬examination, if the witness is unable to tell the formulas and also about the test, that does not mean that he is not expert and does not know anything. He had conducted the test which is required to be done in a particular manner and presumption is that, it is done and performed in that particular manner only. Therefore, in my opinion, even if the witness under the heat of cross¬examination is unable to tell the formulas or the method, no doubt can be raised against him. There is no reason for him to state lie against the accused. It is also important to note that the witness had brought the noting of the examination at the time of his evidence. It was never suggested to the witness that modified diffusion oxidation method has proved to be a wrong method for determining the alcohol percentage. Even it was never suggested that the procedure applied by the witness is incorrect. Merely because advanced techniques are not used, opinion cannot be faulted, unless the technique used is faulty.
1 PW¬18 Bhalshankar further stated in cross¬examination that he cannot say who had made calibration of the apparatus and equipments at the relevant time. He also cannot tell whether at the relevant time, calibration of apparatus and equipments used in the present case was done or not. It was also asked to the witness that there are marking on glass pipette, burette and measuring cylinder. Further PW¬18 cannot say during passage of time, markings gradually become faint. It is never suggested to the witness during cross¬examination that there were faint markings on the apparatus.
2 Further PW¬18 Bhalshankar also unable to tell about sublimation of the process. According to him, iodine solution is kept in dark colour bottle and he also cannot tell why iodine solution is not kept in normal glass bottle. He also cannot tell whether strong light, nitrite and copper irons, catalyzes in the process of reaction. According to him, titration using Sodium Thiosulphate is known as idometric titration. He also admitted that colour of the indicator near the end point depends upon the perception of individual. Further PW¬18 unable to tell whether the perception of colour is misjudged, then in that event, there would be error in the result. He also admitted that different persons have different sensitivity to the colours. He admitted that if volume is misread, the end result would be incorrect. He also admitted that by seeing the volume either in pipette or burette the angle in which the analyst sees, it is important. He also admitted that if the angle is faulty, then the reading of the volume would be faulty. He also admitted that while reading the volume in burette scale, the upper reading and the lower reading in the burette , the condition of light would differ in the process. and because of the lighting condition there may be error found in the result of analysis. He also admitted that if two different solutions are transferred by one pipette, then two different solutions may be contemplated and if wrong concentration solution is used, the end result would be incorrect. Nothing is put during cross-examination of the witness that there were errors made by him during analysis.
1 PW¬18 Bhalshankar also admitted that if glass apparatus is not properly wetted by the solution, they can form the droplet on the glass surface and in that exact volume measuring would be impossible. No suggestion is given to the witness in cross¬examination that no proper procedure was followed by him during the analysis. Nothing brought on record to show that the apparatus used for analysis was contaminated. No suggestion was given to the witness that he did not read the reading properly at the time of analysis.
2 Further PW¬18 Bhalshankar also stated in cross examination that during test he had separately measured the blood quantity of phials by pipette. He cannot say whether he firstly measured the blood sample from the bottle containing preservative or from the plain bottle. He also admitted that there was a rubber stopper existing in the phial not containing the preservative. He denied that he does not know about chemical analysis and the report was prepared as per the direction of the police. He denied that the blood sample was contaminated and not in a position of testing. He denied that the blood samples were sent back on the first day of receiving the same by his office and thereafter the bottles were changed and tampered blood was sent to the Laboratory for analysis. PW¬18 denied that on the strength of tampered blood, false report was prepared by him. If the evidence of PW¬18 Bhalshankar is looked into, it is full of “ifs and buts”. Nowhere it was suggested to C.A. whether he has committed any lapse in taking precaution in actual analysis of the blood. For the sake of repetition it is again said that if a particular thing is required to be done in a particular manner, presumption is that it is done and performed in that particular manner. Merely because the advanced techniques are not used, opinion cannot be faulted, unless the technique used is faulty.
- Ld. SPP argued that the deposition is confined to propositions only not furthering the defence, but only testing the knowledge of the Doctor as an expert. According to ld. SPP, so far as the confrontation of the Doctor with the extracts from the books and research papers, the same documents have not been produced in evidence on record and no effort is made first to prove that the person whose opinion is shown to the witness is an expert and his opinion is acclaimed opinion in the field accepted by the expert. According to ld. SPP, in absence of such evidence, there is no proof that authority referred to is really the authority. The ld. SPP relied on 1997 SC 1307 Pratap Mishra v/s. State of Orissa and Bhagwandas v/s State of Rajasthan AIR 1957 Supreme Court 589. It is held in the said judgments that, it cannot be said that opinions of these authors were given in regard to the circumstances exactly similar to those which arose in the case or before us or is this a satisfactory way of the disposing of evidence of an expert unless the passages which are sought to discredit his opinion, are put to him establishing that the authors are standard and their opinions are sustained in the field. According to ld. SPP, knowledge of the C.A. has been tested during cross¬examination, as if knowledge of a research scholar, the same is not sufficient to discard the evidence unless the actual fault is found in his evidence.
- Considering the entire evidence of PW¬18 Dr. Bhalshankar and though he cannot be in a position to state process of modified diffusion oxidation method and also about formulas, it cannot be said that the evidence of C.A. is doubtful. Since long he is doing the analysis. In our case, PW¬18 has a long experience while working in the Laboratory and under grueling cross¬examination he is unable to tell about formulas, modified diffusion oxidation method, but in my opinion, that would not render his evidence doubtful. There is no reason for PW¬18 to speak otherwise against the accused. The suggestions given by defence to PW¬18 during cross¬examination that the blood samples were sent back along with the letter on the first day of receiving the same in the office and the bottles were changed and tampered blood was sent to Laboratory for analysis is devoid of any substance and cannot be accepted. There is no reason for the Forensic Science Laboratory to do such alleged act against the accused.
1 According to ld. Advocate Mr. Shivade, Sodium Fluoride preservative was not added in the blood. However, the blood which was transferred after extracting from accused by PW¬20 Dr. Pawar in the phial containing oxalate which is a preservative preventing coagulation. The samples were also sealed properly. PW¬18 Bhalshankar also found seal intact. Ld. Advocate Mr. Shivade also contended that proper custody of the bottles is not established. According to him, the manner in which the sample was kept in the police station is also suspicious. It is argued that according to PW¬21 Borade, Carrier, PSI Kadam gave him the sample bottle which was kept near almera in the common hall where other samples like viscera were kept. PW¬21 Borade also admitted that there was no refrigerator or air conditioner in the police station.
2 According to ld. Advocate Mr. Shivade, Investigating Officer PW¬27 Shengal made material improvement that there is fridge in his anti chamber and bottle of blood was kept in the fridge. According to the ld. SPP, the evidence of the Doctor finds corroboration from the evidence of PW¬21 Borade who carried the blood samples to C.A. According to ld. SPP Mr. Gharat, since the fridge was in the anti chamber of PW¬27, ignorance of PW-21 Borade cannot be disbelieved.
- PW¬18 Bhalshankar has stated that the blood if extracted and without adding preservative, the blood lasts for two days if properly sealed by the Doctor who extracted the blood. There is no cross¬examination on this particular evidence. As per the Civil Medical Code, blood sample is to be sent within 7 days from police station for analysis. In our case, on 28.09.2002 blood sample was taken and it was deposited in the police station. On 30.09.2002 blood sample of accused was sent to C.A. in Laboratory. On 30.09.2002 the blood sample was kept in fridge. On 01.10.2002 PW¬18 analyzed the blood. So it can be said that there was no delay for analyzing the sample. It is pertinent to note that on 28.09.2002 blood sample was taken, the blood sample was transferred to the labelled phial having oxalate which prevents coagulation. The blood remained whole in tact. According to Mr. Shivade, by not adding Sodium Fluoride as preservative in blood sample, the possibility of blood fermentation and producing the alcohol cannot be ruled out. It is pertinent to note that the blood sample is having oxalate as a preservative which prevents coagulation and also sealed properly. For a period of two days, the blood sample remained in police station. There appears to be contradictory evidence regarding keeping the sample in the fridge. According to PW¬18 Bhalshankar, Chemical Analyser, .30 mg is the ethyl alcohol level might be found in the blood of human being. The percentage of the ethyl alcohol may be increased upto 40 to 42 mg if the medical treatment is taken by the person. The defence never suggested to PW¬18 that the accused was on medication. The blood was extracted on 28.09.2002 and sent to Kalina on 30.09.2002. In laboratory, it was kept in fridge till its analysis. So in between the period, even if the process of fermentation is started, it will not be doubled than normal. It is pertinent to note that the accused had consumed the alcohol at about 01.00 to 01.30 a.m. and at about
03.00 p.m. his blood was extracted. After the incident the accused was not arrested till 10.30 a.m. and therefore, his breath analysis test was not done, nor his blood was taken immediately after the accident. However, some traces of the alcohol noticed in his blood. If the accused would have arrested immediately after the incident and if his blood was extracted, then the percentage of the alcohol in his blood would be more. As per the Civil Medical Code, abnormal delay in collecting the blood renders the blood sample useless, if collected after undue delay, such as 8 to 12 hours. However, in the landmark reported case of State Through PS Lodhi Colony Versus Sanjeev Nanda [(2012) 3 Supreme Court Cases (Cri) 899, (2012) 8 Supreme Court Cases 450]. In this case also, the accused drove the vehicle BMW in a rash and negligent manner under intoxication and 6 persons died and one person was injured in the incident. The incident had occurred at about 4.00 a.m. and his blood was taken at about 12.29 p.m. However, certain amount of alcoholic contents were still found in his blood to the extent of 0.115 which was equivalent to 115 mg per 100 ml of blood. In our case in hand, the charge is under Section 85 of the Motor Vehicles Act. If the alcohol percentage is more than .30, then Section 85 of the Motor Vehicle Act would be attracted. So even if for the sake of argument some fermentation would have started, it will not be doubled that the normal percentage. The bottle was having oxalate preservative and was sealed properly, within two days it was despatched to the Laboratory. In Laboratory, bottle was kept in fridge till blood analysis.
- The ld. Advocate Mr. Shivade contended that if really Salman Khan consumed the alcohol, then the complainant Patil would have noticed the said fact. According to Mr. Shivade, in FIR, there is no mention that Salman Khan was under influence of liquor. According to Mr. Shivade, Patil in his evidence deposed that Salman Khan was drunk. It is pertinent to note that supplementary statement of complainant Patil was recorded by PW¬27 Shengal on 01.10.2002. This statement was recorded by Shengal when he took charge of the case. His statement recorded on 01.10.2002 where in there is mentioned that body language of Salman Khan looks like that he might have consumed the alcohol. Further it is not necessary that all the details of the offence must be stated in FIR. In this regard, reliance is placed on the case of
Animireddy Venkata Ramana and others V/s. Public Prosecutor, High Court of Andhra Pradesh [2008(4) Mh. L.J. (Cri.)1 (Supreme Court)]. So in view of the above discussion, even if complainant Patil did not mention in FIR that the accused was under the influence of liquor while driving the vehicle, evidence of Patil cannot be discarded to that effect or doubted. Complainant Patil is impartial, natural witness happened to be present at the time of incident.
- Further it is also submitted by the ld. Advocate Mr. Shivade that PW¬9 Rizwan who was the Manager of Rain Bar, also escorted Sohel and Salman Khan while leaving the Restaurant. In cross¬examination, PW¬9 Rizwan Rakhangi stated that Salman Khan was found walking normally and also he did not notice any smell of alcohol from Salman. According to ld. Advocate Mr. Shivade, even PW¬12 Kalpesh Verma, Parking Assistant, who happened to be received the tip of Rs.500/¬from Salman also never stated that Salman was smelling alcohol. PW¬15 Alok @ Chikky Panday also stated in the cross examination that after hearing the news of accident he went to the Salman’s house. He hugged him. According to him Salman was not smelling alcohol. It appears that PW¬15 Alok Panday knew Salman since 35 years and therefore possibly he is deposing in favour of the accused.
- According to Mr. Shivade, all these above facts would demonstrate that Salman was not under influence of liquor. Further ld. Advocate Mr. Shivade, blood sample of the accused was extracted after 12 hours and it is highly improbable that the accused was smelling alcohol after 12 hours. It is vehemently submitted by Mr. Shivade, if in fact the accused has consumed the quantity of alcohol, that would result in test result produced by the accused. (Blood sample collected more than 12 hours after the alleged consumption). It is impossible to believe that he could have driven the vehicle all the way upto the accident spot without hitting anything and the route is about 8 kms., the cars parked on his side of the road, having over 10 significant turns and people and cars crossing the road. I am afraid to accept the argument of Mr. Shivade on the ground that finding the alcohol in the blood is a conclusive proof to demonstrate that the the person had consumed the alcohol. Even if PW¬9 Rakhangi and PW¬12 Kalpesh did not notice any smell, that would not establish that the accused had not consumed the alcohol. Further according to Mr. Shivade, if really the accused was under intoxication, the accused could have dashed prior to reaching of the spot. I am afraid to accept the argument on the ground that it is extremely difficult to assess when the liquor would show its effect. In this regard, reliance is also placed on the reported judgment of the Hon’ble Apex Court in case of State v/s. Sanjeev Nanda [(2012) 3 Supreme Court Cases (Cri) 899].
“26. After having critically gone through the evidence available on record, we have no doubt in our mind that the accident had occurred solely and wholly on account of rash and negligent driving of BMW car by the respondent, at a high speed, who was also intoxicated at that point of time. This fact has been admitted by the respondent¬accused at the appellate stage in the High Court that at the relevant point of time, the respondent was driving the vehicle and had caused the accident but even then, it would be only his rash and negligent act, attracting Section 304¬A IPC only. Even though it is difficult to come to the aforesaid conclusion, since he was in an inebriated condition. For the simple reason that he had already driven almost 16 km from the place where he had started, to the point where he actually met with the accident without encountering any untoward incident would not go absolutely in favour of the respondent. There is no evidence on record that they had consumed more liquor on their way also. No such material objects were recovered from the vehicle, to suggest that even while driving they were consuming liquor. One may fail to understand if one could drive safely for a distance of 16 km, then whether the effect of intoxication would rise all of a sudden so as to find the respondent totally out of control. There is nothing of that sort but it cannot be denied that he must have been a little tipsy because of the drinks he had consumed some time back. It is, indeed, extremely difficult to assess or judge when liquor would show its effect or would be at its peak. It varies from person to person.”
377. Considering the evidence of accused visiting Rain Bar, thereafter J. W. Mariot and considering the evidence of Medical officer and Asst. Chemical Analyser, I am of the opinion that it can safely be inferred that at a time of driving the vehicle accused was under intoxication.
F) Fingerprint evidence:¬
378. It is also argued by ld. Advocate Mr. Shivade that the prosecution has suppressed to bring on record the evidence of finger print of the accused. According to Mr. Shivade, PW¬27 Shengal admitted in his cross¬examination that the finger prints of the accused were taken and Forensic team inspected the vehicle. PW¬27 in his cross¬examination stated that he had called Forensic team for examination of vehicle. PW¬27 further stated that he does not know whether finger prints were obtained from the car. PW¬27 had sent the fingerprints to the fingerprint expert. He had not given direction to ascertain the fingerprint of the accused on the steering. He also does not know whether Forensic Expert had taken the fingerprint from the steering. So there is no evidence whether the fingerprint expert had collected the fingerprints from the steering or not. On perusal of panchanama of spot (Exh.28), panchanama was drawn on the spot and also after opening the door, inner inspection of the car was taken and also RC Book, New India Insurance were taken in possession. In that process, the possibility of coming in contact with the steering cannot be ruled out. In such situation, the evidence of fingerprint would be of no use. Moreover, it is also not known whether fingerprints were collected or not from the steering. So in my opinion non production of evidence relating to fingerprint is not fatal to the case of prosecution, when there is a direct evidence on record to show that accused was driving the vehicle.
G) Death of Nurulla Mehboob Sharif:¬
- During the course of argument, the ld. Advocate Mr. Shivade contended that the death of Nurulla is not because of dash of Toyota Land Cruiser, but due to falling of the car at the time of lifting car by crane. According to Mr. Shivade, PW¬11 Mohd. Shaikh was sleeping near deceased Nurulla. PW¬11 Mohd. Abdulla Shaikh admitted that Nurulla was sleeping along with him. According to PW¬11, Mannu, Kalim, Muslim were also injured. All cried for help. Bakery men, taxi driver rescued from beneath the car. In cross¬examination PW¬11 stated that Nurulla was sleeping near his side. PW¬11 and Nurulla were entangled in the car. After accident, because of the dragging, PW¬11 found himself and Nurulla at the short distance from the place where they were sleeping. After accident sleeping position of the injured were shifted. He was lying beneath the car for the period of 10 to 15 minutes. He does not know how car was lifted. When the car was lifted, PW¬11 and Nurulla were crying for help. The ld. Advocate Mr. Shivade much harp on this particular piece of evidence stating that till the car was lifted, Nurulla was alive. The ld. Advocate Mr. Shivade contended that PW¬8 Ram Asare Pandey stated in the cross¬examination that the car was taken away with the aid of crane from the spot in order to clear the spot. The injured were asked to sit near the bakery. He also stated that when car tried to lift by crane, bumper of the car came out, thereby car again fell down. So according to ld. Advocate Mr. Shivade, the possibility cannot be ruled out that Nurulla died because of fall of car. PW¬26 Kadam who drawn the panchanama and who was present on the spot stated in the cross¬examination that the vehicle was lifted with the help of crane. The hook of the crane was applied to the bumper of the car in order to lift the car. He cannot say whether while lifting the car by crane, the bumper was broken and car fell down on the ground. He denied the suggestion that the bumper of the car was not fallen in the accident, but it was fallen when the car was lifted. PW¬26 further stated that the car was lifted to the extent of 2 – 3 ft. with the aid of crane. He cannot say from which part of the bumper the hook of the crane slipped away. Bumper was broken. He denied that the car was lifted again with the aid of crane by applying the hook of the crane to the grill behind the bumper.
- It is pertinent to note that Mr. Shivade developed the argument of causing the death of Nurulla by falling of car on the cross¬examination of PW¬11. In cross¬examination as stated above, PW¬11 stated that, “till the car was lifted, myself and Nurulla were crying for help.” According to Mr. Shivade, while lifting the car by crane, the car slipped and had fallen and in that, possibility of death of Nurulla cannot be ruled out. It is important to note here that in examination¬in¬chief PW¬11 also deposed that Nurulla was with him in Bhabha Hospital and he was crying in pain. How it is possible that Nurulla was alive in the hospital and he was crying in pain. Further no suggestion was given to the Investigating Officer PW¬27 Shengal and PW¬26 Kadam who was very present at the time when car was lifted or any other injured witness including PW¬11 that the car was slipped at the time of lifting by crane and had fallen and due to that, Nurulla was expired. So in my opinion, it was an imaginary submission which is without any valid and legal evidence. Further which part of the vehicle had fallen on the which part of the Nurulla is also not established by defence. On perusal of the postmortem report the Nurulla sustained multiple crash injuries over head, neck, chest, abdomen. Both arms crushed, skull head crushed completely, thorax, heart, lung crushed completely. In my opinion all these can be possible when a severe dash was given by the car. The car ran over the sleeping Nurulla over his head and chest portion. If Nurulla sustained these crush injuries the evidence of PW¬11 that Nurulla was crying in pain in the hospital cannot be accepted. Evidence of PW¬11 (in cross examination) that till the car was lifted Nurulla was also crying for help is also cannot be accepted. Moreover PW¬11 was already rescued by bakery men, taxi driver from beneath the car. Only dead body of Nurulla was on the spot. Suppose as per the argument of Shri Shivade car was lifted at a distance of 1 to 2 ft. and it slipped and again fallen then there is no evidence to show that by which portion of the car Nurulla sustained injuries.
- PW¬1 Sambha Gauda was a witness on panchanama. As per his version motor car had climbed three stairs. The rare side wheel of the car also sustained with blood. The car was found in the same position prior to panchanama and after the panchanama when he left the spot. Further he also saw crane standing nearby. He had not seen whether the car was removed with the help of crane in order to remove the injured. Further PW¬1 also admitted that police had removed the car with the aid of crane in his presence and he had not seen whether the bumper of the car was removed when the crane was touched to that portion at a time of removing the car. No specific suggestion was given to the said witness that the car had fallen when it was trying to lift by the crane and in that Nurulla was injured. On the perusal of panchanama (Exh. 28) there is mentioned in the panchanama (Exh. 28) that near the back left tyre of the vehicle a dead body was found. One Lungi and bloodstained Baniyan was also noticed on the body. Further left tyre was also found punctured sustaining blood. So it appears that front left tyre and back tyre ran over the Nurulla in the incident, crushing the upper portion of the body and in my opinion the death of Nurulla was on the spot. The submission of Shri Shivade cannot be accepted that Nurulla might have died when the car slipped at a time of lifting by the crane. The said suggestion was never given to any of the witnesses. Hence in my opinion Nurulla was expired because of the dash and running over his body by car when he was sleeping.
- The Ld. Adv. Shri Shivade further contended that there was no footpath and the tar road extended till the stairs of the American Express Cleaners. PW¬3 Munna and PW¬4 Kalim were sleeping on the otala (platform). Mohd. Abdulla Shaikh, Nurulla were sleeping near in front of the American Laundry. In Mumbai generally the space before the shop is used by the pedestrians for walking. The injured witnesses including deceased were sleeping near the American Laundry. According to Shri Shivade there was no bloodstain whatsoever on the bed sheet or the pillow was found of the deceased. That does not mean that Nurulla did not sustain any injuries from the car. It appears that the pillow, bed sheets did not seize by the police. Even police did not seize the Baniyan, Underwear and the Lungi worn by the deceased after inquest panchanama. Further during panchanama, the blood sample also collected from the blood accumulated on the spot. So all these goes to establish that the death of the Nurulla took place on the spot after dash to him by the car and after running over him and also the other labours were injured in the same incident. Non seizure of bed sheet and pillow will not at all hamper the case of prosecution. So the arguments advanced by Shri Shivade that the death of Nurulla was not because of the dash of the car involved in the accident cannot be accepted.
H) Accused was not possessing driving licence:¬
- There is also a charge against the accused that accused was driving the vehicle without driving licence at the time of the accident. The Investigating Officer PW¬27 Shengal in his evidence deposed that he demanded licence from the accused, but the accused did not produce the licence. The prosecution in order to prove the charge, has examined PW¬23 Raghuvir Singh Bilawar. As per the version of PW¬23 Bilawar, he is working in RTO Department and was qualified for the said post through Maharashtra Public Service Commission Examination. He has narrated in his evidence that RTO office used to issue learning licence, permanent licence, issuance of fitness certificate, permit to the transport vehicles, etc. PW¬23 also deposed that the learning licence is to be issued for a period of 6 months thereafter permanent licence required to be obtained from R.T.O. 20 years period is the validity of the licence for the light vehicle or age upto 50 years of the person. After attending the age of 50 years, the licence holder also get further 5 years validity of licence by renewing the same. Further PW¬23 also deposed that at the time of taking permanent licence, the person has to submit learning licence and is also required to fill application in Form 4. Address and age proof is required to be submitted. The person who wants to get permanent licence has to submit test fee. According to PW¬23, then RTO Inspector takes driving test of the person applying for permanent licence. PW¬23 further deposed that, if a person is having permanent licence, then he cannot apply for new licence for the same category of vehicle. The person has to declare the information while submitting the application for learning licence that he is not holding the licence of particular category of vehicle for which he applies.
- The evidence of PW¬23 Bilawar further reveals that Andheri RTO received a letter from Bandra Police Station for inquiry of the licence of Salman Khan. PW¬23 has examined the record in RTO office pertaining to the driving licence of accused. He also checked the registers maintained in RTO office, Andheri. According to PW¬23, as per the record maintained in RTO office, on 17.08.2004 permanent licence was issued to the accused. The number of the licence is MH¬02¬2004/B/786. As per the record, the validity of the licence is till 26.12.2015. The address is 111/A, Galaxy Apartment, Band Stand, Bandra. PW¬23 also brought register pertaining to the record of the licence of the accused. Certified copy of the extract of the driving licence is also produced on record which is at Exh.121.
1 PW¬23 Bilawar further stated in his evidence that new licence is given to the accused bearing No.MH¬02¬2004/B/786. Prior to issuance of the said licence, no licence was issued to the accused. Further according to him, the validity of the application Form No.4 is for the period of 5 years and thereafter the application Form No.4 is liable to be destroyed. Exh.120 is the letter issued by Transfer Officer Prabhakar Bhalerao authorizing PW¬23 Bilawar to give the evidence.
2 PW¬23 Bilawar is also cross¬examined at length by ld. Advocate Mr. Shivade. He admitted that some of the pages were missing from the register. During the course of cross¬examination, the entry in the name of accused was shown to the witness. The portion on which photo is affixed is torn. PW¬23 also admitted that the portion on the page is having signature of Salman is also found torn. He is unable to tell in whose handwriting the entries are. PW¬23 denied that the entry in the name of accused in the register is fabricated and false record is created. The question is why RTO office will create false record in the name of accused ?
3 If the cross¬examination of PW¬23 Bilawar is looked into, nothing is brought on record by the defence to discard the evidence of PW¬23. It is pertinent to note that there is a charge against the accused that at the time of incident, the accused was not holding the licence. The prosecution also examined PW-23 Bilawar. According to him, as per record, licence was issued to the accused on 17.08.2004 and the validity till 26.12.2015. Prior to 17.08.2004 no licence was issued to Salman Khan. The alleged incident occurred in the intervening night between 27.09.2002 to 28.09.2002. The burden shifts on the accused to demonstrate that he was having licence on the day of the incident. However, nothing is produced by the accused to show that he was possessing the licence. If the accused was having the licence on the day of the incident, then he could have produced it. Non production of licence itself demonstrates that the accused was not possessing the licence. In my opinion, the prosecution has proved beyond reasonable doubt that on the day of incident, the accused was not having valid driving licence. Ld. Advocate Mr. Shivade contended that as Ashok was driving the vehicle, question of producing driving licence was not arise. I am afraid to accept such argument. I am of the opinion that the prosecution has proved the charge against the accused that he was not possessing the driving licence at the time of driving the vehicle at the time of incident.
- The Investigating Officer PW¬27 Shengal also produced on record reply written by RTO, Andheri, dated 03.10.2002 and RTO, Wadala, dated 14.10.2002 (Exh.161 colly.). Respective RTO informed Bandra Police Station that no driving licence was issued to Salman Khan. The ld. Advocate Mr. Shivade objected to give exhibit to the said reply. It is pertinent to note that PW¬27 on 03.10.2002 sent letter to RTO and called information regarding the licence. So in pursuance of the letter, replies were given. Though the prosecution has not examined the RTO, Andheri, and RTO, Wadala, who wrote the letters, however, the prosecution has examined PW¬23 Bilawar to show that the licence was not issued to the accused prior to 2004. As discussed above, the accused also not produced the licence on record.
I) Conduct of the accused
- The conduct of the accused after the incident by not taking reasonable steps to provide medical aid to the victims and also failed to give information about accident to the police is the circumstance against him. There is also a charge against the accused that after the mishap, the accused did not render medical help to the victims, nor report to the police about the incident. The ld. SPP Mr. Gharat vehemently submitted that the accused fled away from the spot after the incident, neglecting the injured from providing any medical help and also failed to report the police. According to the ld. SPP Mr. Gharat, the accused is a renowned actor and famous in the society. Had he been not guilty, what prevented him from staying back to calm down the people and tell them that the action would being taken against the driver, if really Ashok was driving. Further according to the ld. SPP, when accused was not driving the vehicle, according to him then why he left the place. Ld. Advocate Mr. Shivade vehemently contended that after the accident, the people gathered on the spot. People became furious as the bakery men became injured and were beneath the car. According to Mr. Shivade, there is every apprehension that if the accused remained on the spot, the possibility of occurring untoward incident with him cannot be ruled out. Ld. Advocate Mr. Shivade drawn my attention to the cross¬examination of PW¬7 Francis. As per his version, the accused was surrounded by mob. One bhaiya was possessing rod. Salman recognized PW¬7 and told him, “Commander save me.” Thereafter Salman and PW¬7 walked towards the house and wife of PW¬7 then succeeded in stopping the taxi by which Salman went away. According to the ld. SPP, when it is the case of the accused that he was not driving the vehicle and Ashok was driving the vehicle, then he could have persuaded the people gathered on the spot. PW¬8 Pandey also nowhere stated that there was apprehension from the people to Salman.
1 PW¬4 Mohd. Kalim also stated that the accused got down from the car and ran away from the spot after seeing the crowd. He also stated in cross¬examination that Salman Khan remained on the spot for about 5 to 10 minutes. Many people gathered near Salman. PW¬8 also stated in cross¬examination that as people were in angry mood, Salman was sent by another car so that people would not cause hurt to him.
2 It is pertinent to note that the accused also submitted his further written statement u/s.313 of the Cr. P.C. (Exh.171¬A). The accused mentioned in the statement that large crowd was gathered who were hostile as started attacking and throwing stones. Francis and his wife asked Salman to leave the place as crowd became violent and they beaten Ravindra and Ashok. However, it is pertinent to note that PW¬7 Francis nowhere stated in his evidence about the said fact. He never stated that the driver Ashok and Patil were beaten by the crowd. As argued by ld. SPP, the accused is well known actor and everybody knows him. If according to the accused he did not commit accident, then he could have convinced people that action will be taken against the driver. The accused did not wait for police on the spot, but left the spot. Instead of visiting police station, the accused went to his house and till 10.30 a.m. he hided himself. This shows one of the circumstances against the accused about his involvement in the offence. If really the accused did not commit any wrong, he could have visited the police station immediately and lodged the information about the incident. It is pertinent to note that the accused did not take any positive steps by visiting hospital to see the injured and provide medical aid to them and to come on the spot again with police.
1 The accused is a renowned Film Actor and he could do anything to provide help to the injured. If a ghastly accident takes place, wherein one person was crushed and four were injured and in spite of that, the person whose vehicle was involved in the accident hided himself till he is arrested, this itself shows the conduct of the accused.
2 In State (through PS Lodhi Colony, New Delhi) v/s Sanjeev Nanda , [(2012) 3 Supreme Court Cases (Cri) 899, (2012) 8 Supreme Court Cases 450, reliance is place by Hon’ble Apex Court on the judgment in a case Parmanand Katara V. Union of India [(1989) 4 SCC 286]. “95. This Court in Parmanand Katara V. Union of India pointed out that it is the duty of every citizen to help a motor accident victim, more so when one is the cause of the accident, or is involved in that particular accident. Situations may be there, in a highly charged atmosphere or due to mob fury, the driver may flee from the place, if there is real danger to his life, but he cannot shirk his responsibility of informing the police or other authorised persons or good Samaritans forthwith, so that human lives could be saved. Failure to do so may lead to serious consequences, as we see in the instance case. Passengers who are in the vehicle which met with an accident, have equal responsibility to inform the police about the factum of the accident, in case of failure to do so, they are aiding the crime and screening the offender from legal punishment”.
- This is another circumstance against the accused in our case by not informing police and also not providing any help to the injured persons. Even he did not visit the hospital to see what happened to the injured.
J) Section 304(II), its essential ingredients and effect, knowledge etc.:¬
- The Ld. Adv. Shri Shivade relied on many case laws which are as follows. The ld. Advocate Mr. Shivade relied on the case of Basappa V/s. State of Karnataka [(2014) 5 Supreme Court Cases 154]. In this case, the Hon’ble Apex Court held that “High Court itself has acquitted appellant u/s.187 of the M.V. Act on the ground of no evidence, held conviction u/s.279 and 304(A) of IPC cannot be sustained.”
2 Ld. Advocate Mr. Shivade relied on the case of Ravi Kapur v. State of Rajasthan (2012) 9 Supreme Court Cases 284. In the said case, it is held that rash and negligent driving has to be established in the light of facts and circumstances of a given case. Speed of vehicle is not always determinative. Reckless and negligent driving at slow speed is also possible.
- The ld. Advocate Mr. Shivade relied on the case of Guru Basavraj v/s. State of Karnataka [(2012) 8 Supreme Court Cases
- In the said case, it is held that the accident occurred due to that detachment of the tailor from tractor and distance to which tractor moved after detachment vividly reveals that vehicle in question was driven recklessly and high speed.
- The ld. Advocate Mr. Shivade relied on the case of Kuldeep Singh V/s. State of Himachal Pradesh [(2008) 14 Supreme Court Cases 795). In the said case, it is held that the appellant driver drove the vehicle carrying more than 50 persons at high speed on the public road as a result he lost the control and vehicle went off the road and rolled down the field leaving four persons dead and several other injured. The Hon’ble Apex Court held that the appellant was rightly convicted u/s.304¬A, 279, 337 of IPC and 185 of M.V. Act. No leniency and interference in the sentence called for.
2 The ld. Advocate Mr. Shivade relied on the case of Naresh Giri V/s. State of M.P. [(2008) 1 Supreme Court Cases 791. In this case, the bus driven by the appellant was hit by a train as a result, two persons died and several passengers got injured. Charges were framed u/s.302 and alternatively, u/s.304, 325 and 323 of the IPC. It is held that 302 prima facie has no application. Criminal Revision filed by the appellant. Charges stand altered to Sec.304¬A along with Section 279 of the IPC.
- The ld. Advocate Mr. Shivade relied on the case of Prabhakaran V/s. State of Kerala [(2007) 14 Supreme Court Cases 269. In this case, appellant was the driver running over a boy aged 10 years crossing the road along with other school children in a queue. Appellant ignoring passengers and pedestrians cries cautioning him to stop, but appellant drove the bus at speed and caused the death of the boy. Trial Court and High Court convicted the appellant u/s.304¬II of the IPC on the basis that the accused acted with the knowledge that it was likely to cause death. Hence, it is held that Section 304¬A speaks of causing death by negligence. It applies to rash and negligent act and does not apply to the cases where death has been voluntarily caused. It only applies to the case in which without any such intention or knowledge the death is caused by what is described in rash and negligent act. Hence appropriate action would be u/s.304¬A of the IPC.
- Ld. Advocate Mr. Shivade relied on the case of Benny Francis and others v/s. State of Kerala (Criminal Appeal No.79 of 1990 decided on 07.02.1991 by the Hon’ble High Court of Kerala). It is held that conviction u/s.304¬A of the IPC without charge was not possible. Section 304¬A of the IPC was not minor offence constituting only some of the several particulars of major offence punishable under Second Part of Section 304 of the IPC.
1 Ld. Advocate Mr. Shivade relied on the case of State of Gujarat v/s. Haidarali Kalubhai [1976 Supreme Court Cases (Cri) 211]. In this case, deceased along with Head Constable and two constables were resting on the cot in the hotel by the side of the highway. The appellant came to the spot on his truck. The appellant alleged to have driven the truck in a full speed against the deceased cot overthrowing him and caused his death. Sessions Court convicted the appellant u/s.304¬II which was altered to Sec.304¬A by the High Court. The appeal was prepared to the Hon’ble Apex Court. It is held that the facts disclosed in the prosecution evidence do not make out the case of any willful or deliberate act on the part of the accused and Sec.304¬A by its own definition totally excludes the ingredients Section 299 or 300 of IPC. It is held by the Hon’ble Apex Court that no error was committed by the High Court in holding that the case falls under Section 304¬A of the IPC and not under Section 304¬II of the IPC. I have gone through the cited case laws and I am of the opinion that the case laws are not applicable to our case at hand.
2 There are two landmark judgments of the Hon’ble Apex Court on the aspect of rash and negligent driving, driving under consumption of the alcohol, about the knowledge of the act, failing to give information to police after accident and also neglected the injured and did not provide any medical help. The landmark judgments are
(1) The State of Maharashtra V/s. Alister Anthony Pareira in Criminal Appeal No. 430/07 with The State of Maharashtra V/s Alister Anthony Pareira in criminal appeal no. 566/07 with Criminal Appeal No. 475/2007 decided on 6.9.2007 and (2) State through PS Lodhi Colony, New Delhi V/s. Sanjeev Nanda [(2012) 3 Supreme Court Cases (Cri) 899, (2012) 8 Supreme Court Cases 450) ] in Criminal Appeal No. 1168 of 2012. The judgment of the Hon’ble Bombay High Court in case of Alister Pareira is also confirmed by Hon’ble Apex Court in Criminal Appeal Nos. 1318¬1320 of 2007, decided on 12.1.2012.
1 In both these cases the accused drove the vehicle in rash and negligent manner under influence of the liquor and caused death of the persons. In the case of Alister Anthony Pareira, the Alister Pareira drove the vehicle in rash and negligent manner and caused death of 6 persons and injured others. These persons were sleeping on the footpath. The accused Alister Pareira was having knowledge that the people in Mumbai used to sleep on the footpath. The ratio laid down in the case of Alister Pareira is also applicable to our case. In Sanjeev Nanda’s case also it is held that the accused drove the vehicle in the rash and negligent manner under intoxication and caused death of 7 persons. The accused was also having knowledge about the consequence of his act. He fled from the spot and did not render any help to the injured. In both the cases the accused was convicted u/s 304 (II) of the IPC. In Alister Pareira case the accused was also convicted u/s 337, 338 of the IPC.
2 In our case also the charges against the accused is that the accused drove the Land Cruiser vehicle in rash and negligent manner in speed, under intoxication, at about 2.45 a.m. while taking right turn on the Hill Road from St. Andrews Road, he could not control the vehicle and went straight and ran over the poor bakery persons sleeping in front of the American Express Laundry. The car ran over them and also climbed the three stairs of the American Express Laundry. Nurulla was crushed and died on the spot and two bakery persons sustained simple injuries and two bakery persons sustained grievous injuries. Accused was not holding license. He also left the place within 5 to 10 minutes and did not visit police station for informing the incident nor to the hospital to see the injured. Even he did not provide any medical facility to the poor injured persons. Accused is a well known Cinema actor of Bollywood.
1 In our case also the accused is charged u/s 304 (II), 337, 338 of IPC and 181, 185 & 187 of Motor Vehicle Act.
2 In the Landmark judgment of Alister Pareira, Their Lordships of the Hon’ble High Court discussed the provisions of Section 304 (II) of IPC, about the knowledge which is the important constituent of Section 304 (II) IPC. As the principle laid down in the judgment of Alister Pareira which is also applicable to our case, it is necessary to reproduced some of the paras of the said judgment.
“31. Under Section 304(II), whoever commits culpable homicide not amounting to murder can be punished with imprisonment of either description for a term which may extend to 10 years or with fine or with both, if the act is done with knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury, as is likely to cause death. A bare reading of this provision shows that there are three essential ingredients of the offence punishable under section 304(II); (a) accused must commit a culpable homicide not amounting to murder, (b) the act is done with knowledge that it is likely to cause death and (c) but without any intention to cause death.
- Section 299 of IPC defines culpable homicide as whoever causes death by doing an act with the intention of causing death or with an intention of causing such bodily injury, as is likely to cause death or with the knowledge that it is likely by such act to cause death. Illustration (b) to section 299 indicates the kind of cases, which will fall within the ambit of section 299. A culpable homicide which is not a murder within the contemplation of the provisions of section 300 can alone fall within the scope of section 304(II). ‘Knowledge’ and ‘intention’ are the deciphering and distinguishing factors. If an act is done with knowledge but without intention, then it would fall under section 304(II), but if there is intention for committing offence of culpable homicide, it would take it beyond the purview of this provision. The provision of section 304 falls into two different classes; one where offence is committed with intention of causing death or bodily injury as is likely to cause death providing life imprisonment or imprisonment for a term which may extend to 10 years with fine. The other part is relatable to the act which is done with knowledge that it is likely to cause death but where the element of intention is absent. There it prescribes different punishment of lesser gravity. The act done with knowledge of the end result being of the kind where the doer had reason to believe that the “actus reus” would result into an offence, the knowledge would be attributable to the offender. The court may, in a given set of facts, attribute to the intoxicated man same knowledge as if he was quite sober. This may not be quite true so far as the intention is concerned. ‘Knowledge’ is an expression of wide connotation and is capable of varied interpretation in the context of the facts and circumstances of a given case. While doing an act, knowledge of consequence would be attributable to the accused, if it falls within the normal behaviour of the person of common prudence. It is difficult to state with certainty any essential constituent of ‘knowledge’ but this aspect can safely be examined in the light of various judicial pronouncements and settled canons of criminal jurisprudence.
- In a given circumstance ‘knowledge’ may be construed quite differently from the expression ‘knowing’. Knowledge is of a lesser degree while ‘knowing’ is of a definite connotation and it must be established that the offender knew about it. Knowledge has also been explained in the Judicial Dictionary by K.J. Aiyar’s as under:
“Knowledge – A clear and certain perception of that which exists.
¬Knowledge includes either personal knowledge or knowledge derived from documents. No restriction can be read in the word ‘knowledge’ that it ought to be derived by ocular seeing of the event. Magistrate can take cognizance of the offence of his own knowledge derived from the police papers, FIR, and the final report under section 169.”
- One of the meanings given in the Oxford Dictionary of the word ‘knowledge’ is: “The fact of knowing a thing, state, etc or (in general sense person, acquaintance, familiarity gained by experience”). Acquaintance with a fact, perception, or certain information of a fact or matter, state of being aware or informed, consciousness (of anything). The object is usually a proposition expressed or implied, e.g., the knowledge that a person is poor, knowledge of his poverty.”
- ‘Knowledge’ is again distinguishable from ‘reason to believe’. The term ‘knowledge’ contains higher degree while the term ‘reason to believe’ is a matter of lesser degree. In the first, the person has direct appeal to his sense, while in the latter, there is sufficient cause to believe. While determining knowledge in relation to an event, the conduct of the person prior to and at the time of the event is of relevant consideration. Actus reus requires that to constitute a crime there must be a result brought about by human conduct, to physical event, which law prohibits. When an individual pursues or follows a line of conduct, he is expected to produce certain results. Final events or results may be the outcome of different events or it may be the result of a single act. If the end result is prohibited in law and if knowledge would have to be construed in the events of that case in relation to the evidence on record, the onus obviously is on the prosecution to prove the chain of acts even to attribute knowledge to the accused. The concept of ‘knowledge’ has to be understood and applied to the facts of a given case in complete contra¬distinction to the words ‘information’ or ‘reasons to believe’. There may be difference of degree but that difference has to be kept in mind, as that alone is the paramount consideration even at the stage of framing charge whether under Sections 300, 302 or 304 and for that matter, 304(I) or (II) of the IPC (See Commentary by K.D. Gaur, 3rd edition on IPC and Commentary on IPC by Ratanlal Dhirajlal, 31st enlarged edition of 2006).
- The Supreme Court and various High Courts have also explained the word ‘knowledge’. To establish knowledge as an ingredient of criminal offence, there has to be an affirmative or circumstantial evidence to bring home to the accused that he had knowledge of his acts. What a person of normal and ordinary prudence foresee by utilization of his sense directly, would be knowledge. In the case of Jairaj vs. State of Tamil Nadu, AIR 1976 SC 1519, the Supreme Court observed that knowledge of the likelihood of the death of the person is contemplated in law. Under section 304(II), if the result of the criminal act is death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of criminal act, then there is no reason why section 34 should not be read with second part of section 304 to make each of such persons individually liable. [Afrahim Sheikh and ors. Vs. State of West Bengal (1964) 6 SCR 172].
1 It will be useful to refer to the facts of a case titled State of Gujarat vs. Haidarali Kalubhai, 1976(1) SCC 889, which had not been argued during the course of the hearing of this case. In that case the accused was charged for an offence under section 304 II on the allegation that he had caused death of a police officer lying on a cot from where he was thrown out. According to the accused and as per his statement under section 313 of the Code, when he was reversing the vehicle, other truck was standing and while making his way to the narrow passage, the accelerator got stuck and the truck then went in high speed resulting in the accident. When the driver heard the noise, the cleaner of the truck told him that he had stuck the truck against a cot and people were injured. That obviously was a case of negligent driving simpliciter, as is clear from the attendant circumstances and no knowledge could be attributable to the accused in the facts and circumstances of the case that his reversing the vehicle could cause fatal accident, unlike the facts of the present case where direct evidence as well as attendant circumstances clearly demonstrate that safely an inference of knowledge could be drawn.
2 Another important aspect which has to be examined is that all persons are deemed to be in the knowledge of law. What is prohibited in law and what is an offence in law, are matters of public knowledge. Ignorance of law is not a valid defence when the person is committing an act or omission, which would result in an act prohibited in law. Therefore, the offender cannot take the plea of ignorance in that regard. It will be useful also to notice the judgment of the Supreme Court in the case of Joti Prasad vs. State of Haryana (AIR 1993 SC 1167), where counterfeit court fee stamps were recovered from the possession of the accused, a licenced stamp vendor. The accused alleged that he had purchased the stamps from the treasury, but did not produce register of such purchase. The accused also did not make any effort to summon the record of the treasury. The court held that it would be proper to infer that the accused has knowledge or reason to believe that the stamps were counterfeit.
- The concept of rash and negligent driving simpliciter can be attributable where there are no other attendant circumstances of culpable factors indicating additional conduct, act, omission or commission on the part of the offender, pre and post accident. ‘Knowledge’ is a concept which would get attracted in the above circumstances as the case would fall beyond the known canons of rash and negligent driving simpliciter. Getting drunk and under the influence of liquor using a big stick or other weapon for giving blow on the head of a person resulting in death, would obviously be an act done with knowledge that the act would or is likely to cause death. Merely because an automotive car or scooter is involved in the same process would not by itself take the offence outside the scope of section 304(II) of IPC. The court would have to examine this in the light of the evidence led by the prosecution, defence, if any, the links provided by the accused himself in his statement under section 313 and attendant proven circumstances of the case.
- In our case, the accused admitted the incident but denied that he was driving the vehicle. According to him his driver DW¬1 Ashok was driving the vehicle on Hill Road. According to him it was a pure accident as left front tyre of the vehicle was burst thereby the steering became hard and vehicle went on the bakery labours sleeping in front of the American Express Laundry and vehicle climbed two¬three stairs. The defence of the accused is rejected by me from taking into consideration. The prosecution beyond reasonable doubt proved that the accused was driving the vehicle. In the incident Nurulla was expired and four persons were injured. The accused is a resident of Banrda. The spot of incident is also located at a 200 meters from his house. PW¬6 Balu Muthe, a bodyguard of Sohel Khan, the brother of accused also stated at about 3.00 am, one person came running near Galaxy Apartment and informed that Salman Khan’s car met with an accident near the junction of St. Andrews Road and Hill Road. He also stated in the cross examination that within 2¬3 minutes one can reach at the spot of the incident from the Galaxy Apartment. The said evidence remained unchallenged. So spot of incident is very close near the house of the accused. The accused is brought up in the Mumbai and residing in Bandra since many years. He is also acquainted with the topography of the Bandra area. As the spot of incident is located near the house, the accused was knowing that the poor bakery labours used to sleep in front of American Express Laundry. Further PW¬5 Malay Bag, waiter in the Rain Bar restaurant also deposed that Salman Khan is the regular visitor of the Bar which is located in Juhu. On the day of incident also the accused visited the Rain Bar, thereafter J. W. Mariot and while returning at about 2.45 a.m. the accident took place. So accused is knowing very well the route from his house upto to Rain Bar and J. W. Marriot. It appears that when the accused is visiting Rain Bar and J. W. Marriot, as he is the regular visitor of the Rain Bar, it can be said that accused also used to travel in the night. In such situation and also the spot of incident is very near to the place of residence of accused, it can be said that the accused is having knowledge that the people are sleeping in front of the American Express Laundry.
- The accused is well known Cine Actor and also accused was having knowledge that one should not drive the vehicle without license. The accused was also having knowledge that one should not drive the vehicle under consumption of the liquor that too in the late night. These are the basic rules. As the accused is the regular customer of the Rain Bar, accused might have gone number of times from near American Express Laundry. Even PW¬17 Mark Marshal D’souza who is working in the American Express Laundry also stated that the said laundry is located on Hill Road and also St. Andrews Road is running opposite to the Laundry. He also used to see Salman Khan sometimes from Hill Road. Salman Khan used to pass near from his laundry. The said evidence also remained unchallenged. In short the accused was having knowledge that the poor labours were sleeping in front of the American Express Laundry. The accused was also having knowledge that he was not possessing license to drive the car at a time of incident. The accused was also possessing knowledge that he should not drive the car under alcohol consumption. There was 0.062 mg. alcohol was noticed in the blood of the accused. When the person was consumed alcohol and was driving the car in late night, it was difficult for the person to concentrate in the night and that he had a knowledge that there is every likelihood of his meeting with an accident resulting in death or injuries to others particularly those sleeping on the footpath. The knowledge of such fact can neither be far away from the reality, in any case, would squarely fall within the term of “knowledge” appearing in section 304 (II) of IPC. Keeping in mind the facts and circumstances of the present case the event resulting from such acts, omission and offences would be within the knowledge of the offender. I find that our case squarely fall within a term of “knowledge” appearing in section 304 (II) IPC.
K) Latches, lapses, errors in the investigation:¬
1 Ld. Advocate Mr. Shivade vehemently submitted that there are many latches, lapses, errors in the investigation. According to ld. Advocate Mr. Shivade, the parking tag, which is important piece of evidence, is not on record. Further the photographs of the vehicle and its position in the incident were also not taken. No photographs of stairs of American Express on which the vehicle was resting were taken. The statements of Yogesh Verma, working in J.W. Mariot, Security Guard of J.W. Mariot were not recorded when the car of the accused parked in the premises of J.W. Mariot. The bedsheets, pillow, clothes of the deceased were also not seized. Further it is contended by Mr. Shivade that the left front tyre was also not sent to the Laboratory for examination. Hence, on all these grounds, it is submitted that the prosecution story is not free from any doubt.
2 As against this, it is contended by the ld. SPP Mr. Gharat that non examination of the Yogesh Kadam is not fatal to the case of prosecution. The prosecution has examined PW¬12 Kalpesh who was also Parking Assistant. Further it is submitted by the ld. SPP that non examination of witnesses from J.W. Mariot Hotel is also not fatal to the case of prosecution. The Investigating Officer has recorded statements of the injured witnesses within 3 to 4 days of the incident. These witnesses are impartial witnesses and also sufferer in the incident and they were under mental shock and also were in confuse state of mind in the manner in which the incident taken place. Even though some delay is caused to record the statement, that would not be fatal to the case of prosecution. So far as parking tag is concerned, according to ld. SPP, PW¬12 Kalpesh is examined. There is no dispute that the car was parking in the premises of J.W. Mariot. PW¬12 Kalpesh had given the car in possession of the accused. There is direct evidence of PW¬12 Kalpesh who saw accused sitting on the driver’s seat and the accused had given the tip of Rs.500/¬to him. According to ld. SPP Mr. Gharat, tip is to be given when one leaves from the place. In such situation, non production of the parking tag and non examination of Yogesh Kadam will not fatal to the case of prosecution. Further according to ld. SPP Mr. Gharat, the defence put forth by the accused about bursting of the tyre is also ruled out. The accident was occurred due to rash and negligent driving while turning the vehicle without taking proper care and attention, having knowledge that the people were sleeping in front of American Express cleaners. Hence, even if front left tyre not sent to the laboratory for examination, it will not fatal to the case of prosecution.
- The ld. Advocate Shri Shivade further submitted that the prosecution has not examined API Yadav, Senior Police Officer, who recorded FIR along with PW¬26 PSI Kadam. Shri Shivade drawn my attention to the cross¬examination of complainant Patil wherein Patil has stated that he lodged the complaint with API Yadav and PSI Kadam. According to ld. Advocate as the prosecution did not examine API Yadav, the accused has been deprived of the opportunity of cross¬examine API Yadav on the point of FIR. In my opinion, though prosecution has not examined API Yadav, I find that no prejudice would be caused to the accused as prosecution has examined PSI Kadam. PSI Kadam has recorded FIR of complainant Patil. Further PSI Kadam also drawn spot panchanama and on that ground also, he was cross examined. Further non examination of the witnesses from J. W. Marriot will not invalid the case of the prosecution. Reliance is placed on the reported judgment in Karnel Singh V/s State of M.P. [1995 (5) SCC 518], the court, despite the fact that there was improper investigation held as under :
“5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating office if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well the accused, would have recorded the statements of the two witnesses and would have drawn up proper seizure memo in regard to the “chaddi”. That is the reason why we have said that the investigation was slipshod and defective.
- We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer.
To acquit solely on the ground would be adding insult to injury”.
1 It is pertinent to note that Kamal Khan was also travelling in the car at the time of the incident. He is originally British Citizen. He is a Singer and used to visit India for singing. He is not examined by the prosecution. During the course of arguments, neither prosecution nor defence advanced argument regarding the examination of Kamal Khan.
2 While concluding, I find that it is established beyond reasonable doubt by prosecution that, accused was driving the vehicle at the time of the accident. The defence of the accused that DW¬1 was driving is discarded from consideration. DW¬1 Ashok Singh is a got up witness who has come to help the accused on the instruction of Salim Khan, the father of the accused. After 13 years for the first time u/s 313 of Cr. PC accused has stated that initially Altaf and thereafter Ashok Singh was driving the vehicle. The accused never suggested his case in cross examination to complainant Patil. Near about 27 witnesses are examined before me. Accused never suggested to any of these witnesses during cross examination that initially Altaf was driving the vehicle from his house in the night of 27.9.2002 upto Rain Bar and thereafter to J. W. Mariot. It was also never suggested to any of the witnesses that at J. W. Mariot, Altaf was having giddiness therefore, he contacted Ashok Singh to come to J. W. Mariot to reach accused at his house. It was also never suggested to any of the witnesses that Ashok Singh was driving the vehicle and the tyre was burst resulting in the incident. The accused never suggested to the PW¬26 Kadam who recorded FIR of the complainant as well as PW¬27 Investigating Officer Shengal that tyre was burst and at that time Ashok was driving the vehicle. Even defence never suggested to any of the witness examined before me that accused was not driving the vehicle at the time of incident and he was not under the intoxication. Only it was suggested to complainant Patil whose evidence was recorded before Metropolitan Magistrate, Bandra. The said evidence is relevant and admitted u/s 33 of the Evidence Act. So defence fails to put his case to the prosecution witnesses. The said aspect is also dealt in the Landmark case of the
Alister Pereira V/s State of Maharashtra.
1 The accused was also having knowledge being the resident of same locality that poor labourers used to sleep in front of American Express Cleaners. It is also brought on record that accused is regular visitor to the Rain Bar. The accused was also having knowledge that one should not drive the vehicle after consuming the alcohol. The accused was also having knowledge that one should not drive the vehicle without license. The accused after the accident did not wait on the spot and instead of going to police station for lodging information, went to his house. Till 10.30 am the accused did not make himself available in police station or went to see the injured in the hospital. The accused is a well known artist, it was possible for him to provide medical help to the poor people, but he didn’t. For not visiting the police station is that accused was under the consumption of the alcohol.
2 The Ld. Advocate Shri Shivade submitted that evidence of Patil is recorded in the absence of accused. It appears that Hon’ble High Court exempted accused as per the roznama recorded in the Court of Metropolitan Magistrate. Accused was exempted so accused cannot raise the ground that in his absence evidence was recorded. Further his advocate was present at the time of recording the evidence of Patil. Much argued by Ld. Adv Shri Shivade that for a distance of 7¬8 Km. at a speed of 90¬100 very little time would be required, but according to him 30 minutes time was required to reach the spot of the incident. So according to him the vehicle was not in speed. If really the vehicle was not in speed the bursting of the tyre would not arise and vehicle could have been stopped on the spot by applying the brakes as the car was having ABS system. It means that the vehicle was in speed and while taking right turn on the Hill Road from St. Andrews Road, the accused lost his control and went straight on the people sleeping in front of the American Express Laundry, amount to rash and negligent driving . Even the accused was not in the position to think in order to apply the brakes and the vehicle climbed the stairs after crushing one Nurulla and injuring four persons. So it goes to establish that the accused must have been a little tipsy because of the drinks he had consumed some time back. It is, indeed, extremely difficult to assess or judge when liquor would show its effect or would be at its peak. It varies from person to person.
- So considering all angles of the case, going through the ocular, documentary and expert evidence minutely and after hearing the arguments of Ld. SPP and Ld. defence councils at length, I conclude that the offence u/s 304 (II) of IPC is made out against the accused as Nurulla was died because of the dash of the vehicle. Accused drove the vehicle in a rash and negligent manner and under influence of the liquor, caused death of Nurulla and also caused grievous hurt to Mohd. Abdulla Shaikh and Muslim Shaikh and caused simple injuries to Mannu Khan and Mohd. Kalim Pathan. Accused being resident of the same area was having the knowledge that injured used to sleep in front of American Express Laundry. Hence in view of the documentary, ocular and expert evidence as referred above, clearly show that accused committed offence of culpable homicide not amounting to murder with the knowledge that the acts/injuries caused by him, seen in the light of manner in which he drove the car in rash and negligent manner, while taking right turn on the Hill Road from St. Andrews Road under the influence of the liquor would cause death or likely to cause death. In fact accused caused the death of Nurulla and also caused grievous injuries and simple injuries to the other labours. Hence I hold him guilty punishable under Section 304 (II), 338 and 337 of the IPC. Accused was not holding the valid license and therefore he also committed an offence punishable under Section 181 of the Motor Vehicles Act, 1988. Accused also failed to provide medical help to the injured and also failed to give information or report to the police about the incident thereby accused committed an offence punishable u/s 187 of Motor Vehicles Act, 1988. There was alcohol noticed to the extent of
0.062 % m.g., which is exceeding 30 m.g. per 100 m.l., therefore, accused also committed an offence punishable under Section 185 of Motor Vehicles, Act, 1988.
- I take pause to hear the accused on the point of sentence.
Additional Sessions Judge Date : 06.05.2015 Gr. Bombay
1 Heard the accused Salman Khan on the point of sentence. He left discretion on the Court to pass order of sentence.
2 I have also heard Mr. Shivade, ld. Advocate for the accused, at length. Ld. Advocate Mr. Shivade relied on the case of State Through PS Lodhi Colony Versus Sanjeev Nanda [(2012) 8 Supreme Court Cases 450] and also on the case of Alister Anthony Pareira V/s. State of Maharashtra (2012) 2 SCC 648. Relying on these authorities, it is submitted that in Alister Pareira case, Alister Pareira was convicted for the offence punishable u/s.304¬II of the IPC and sentenced to suffer
R.I. for three years. So also in the case of Sanjeev Nanda, the Trial Court awarded the sentence of two years. The matter reached upto the Hon’ble Supreme Court. The Hon’ble Apex Court did not incline to enhance the sentence of two years already served, but respondent (Sanjeev Nanda) was directed to deposit Rs.50 Lacs with Central Government for providing compensation to the victims in motor accident cases where drivers/owners of the vehicles are not traceable. (Deposit of this amount was in addition to civil settlement already arrived at by respondent with victims), (ii) to render community service of two years to be arranged by Minister of Social Justice.
“The Supreme Court while ordering respondent driver to do community service and to contribute to welfare fund for hit¬and¬run cases, has not referred to any particular provision of law under which such course of action has been adopted. This has perhaps been done by exercising the Supreme Court’s omnibus power under Article 142 of the Constitution to do complete justice in a case before it. It therefore remains to be seen whether lower courts, particularly, trial courts exercising original jurisdiction in criminal matters, can pass such kind of orders. The position may be clarified in some future case.”
- Further it is contended by the ld. Advocate Mr. Shivade that in the case of Alister Pareira, 7 persons were died in the accident and 8 persons were injured. Mr.Shivade also submitted that in the case of Sanjeev Nanda, 6 persons lost their lives in the accident. The punishment imposed in Alister Pareira is of 3 years and Rs.8.5 lacs compensation was awarded. The punishment awarded against Sanjeev Nanda is already stated by me. According to ld. Advocate Mr. Shivade, in our case, only one person is died and two persons sustained grievous injuries and two persons sustained simple injuries. According to Mr. Shivade, if the trend of cases is looked into, the driver/accused was not convicted more than 3 years period. Mr. Shivade further vehemently submitted that the accused also deposited Rs.19 lacs amount in the Hon’ble High Court in one public service litigation in the year 2002. Mr. Shivade further submitted that the accused did not challenge the order of depositing the amount in the Hon’ble Supreme Court. It is contended by ld. Advocate Mr. Shivade that the accused is ready to deposit the compensation, if awarded by this Court, but the accused should not be punished for more than 3 years. The reason given by ld. Advocate Mr. Shivade is that the accused formed a foundation termed as “Being Human”, a Charitable Trust. The object of the said foundation is religious, educational, medical, relief and other objects. Many needed people receive the money for recovery of their ailments, surgery, etc. According to ld. Advocate Mr. Shivade, if accused is sent in jail for more than 3 years, then the work of “Human Being” foundation would be affected at a great length.
1 Further according to ld. Advocate Mr. Shivade, the accused is also attending the Court since the year 2003 and no delay is caused by him to prolong the trial. Further the accused made himself available during the trial and the accused never remained absent without permission of the Court.
2 Ld. Advocate Mr. Shivade also cited the judgment of the State of Punjab V/s. Balwinder Singh and others [(2012) 2 Supreme Court Cases 182] wherein 5 persons travelling in the bus died in the accident. In this case, the Trial Court convicted the accused and sentenced them for two years each. The sentence upheld by the Sessions Judge. The Hon’ble High Court considering that the accused had suffered a protracted trial for about 17 years and had undergone custody for 15 days, reduced quantum of sentence to period already undergone, but enhancing fine amount to Rs.25,000/¬each. The Hon’ble Apex Court observed that sentencing must have correctional policy and has element of deterrence. The Hon’ble Apex Court imposed 6 months R.I. and fine of Rs.5,000/¬.
- The ld. Advocate Mr. Shivade also relied on the case of State of Karnataka v/s. Sharanappa [(2002) 3 Supreme Court Cases 738]. In this case also, there was death of 4 occupants of the car. The Hon’ble High Court in revision awarded a lesser sentence. The Hon’ble Supreme Court observed that having regard to the serious nature of the accident, High Court’s interference with the sentence was not warranted. It is held by the Hon’ble Apex Court that the sentence should be proportionate to the gravity of the offence and should have deterrent effect. The Court should exercise its discretion in awarding sentence in the larger interest of the society.
2 The ld. Advocate Mr. Shivade also gave a list of the cases u/s.304¬II of the IPC in which the punishment upto 3 months, 6 months, etc. In short, according to Mr. Shivade, the punishment imposed in the cases is not more than 2 years. According to Mr. Shivade, in Alister Pareira case also, there was death of 7 persons and 8 persons were injured. The sentence imposed on the accused Alister Pareira is of 3 years. It is pertinent to note that in Alister Pareira case, Trial Court convicted the accused and awarded the punishment u/s.304¬II of the IPC for a term of 6 months. The Trial Court held that the offence u/s.304¬II of the IPC is not made out. The Division Bench of the Hon’ble High Court after re¬appreciating the evidence, concluded that the offence u/s.304¬II of the IPC is made out and sentence of 3 years imprisonment was awarded. The Hon’ble Apex Court also confirmed the judgment of the Division Bench of the Hon’ble High Court, Bombay. However, it is observed by the Hon’ble Supreme Court that no appeal has been preferred by the State for enhancement of the sentence. One letter is also produced on record written to Dr. Reshma Shetty, M.D., Douglas Kondziolka, in respect of Salman Khan. In the said letter, it is mentioned that “he (Salman Khan) has an aneurysm off the basilar artery, and we would recommend consideration of treatment for this.”
- Mr. Shivade, ld. Advocate for the accused, also relied on the case of Dalbir Singh Versus State of Haryana [(2000) 5 Supreme Court Cases 82]. It is held that Section 4 of the Probation of Offenders Act cannot be treated as applicable to the offence u/s. 304¬II of the IPC. It is observed by the Hon’ble Apex Court while considering the quantum of sentence as under:¬
“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304¬A IPC as attracting the benevolent provisions of Section 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 a rash driving need not necessarily cause any 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 his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the 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 high rate of motor accidents due to callous driving of automobiles.”
1 In short, it is prayed that the accused is ready to pay compensation, if directed by this Court, but looking to the sentence awarded in other cases, the accused should not be awarded harsh sentence of imprisonment.
2 As against this, it is vehemently submitted by the ld. SPP that in the present case, one person lost the life and four other persons are injured. It is further contended that fortunately other four persons also escaped from the death. According to ld. SPP, now a days, automobiles are the death traps. Innocent persons without any fault sustained injuries and succumbed and lost the life. According to ld. SPP, looking to the manner in which the incident taken place, no leniency be shown to the accused. The ld. SPP Mr. Gharat also relied on the reported judgment of the Hon’ble Apex Court in case of State of Punjab v/s. Saurabh Bakshi dated 30.03.2015 in Criminal Appeal No.520/15 (arising out of SLP Criminal No.5825/2014) wherein it is held as under:¬‘18. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a non¬challant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re¬look and re¬visit the sentencing policy in Section 304A, IPC. We say so with immense anguish.’
- It is observed by the Hon’ble Division Bench of the Hon’ble Bombay High Court in case of Alister Pareira v/s. State of Maharashtra as under:¬
“85. Thus, the Court has to consider the question of quantum of punishment guided by the accepted precepts of criminal jurisprudence. The punishment inflicted upon an accused should not be so lenient as to result in rendering the administration of criminal justice a laughing stock. It should also not be so harsh that it hurts the judicial conscience. Punishment in substance should be punitive so as to act as a deterrent for commission of such crimes and must be founded on the concept of reasonableness relatable to the given facts and circumstances of the case.”
- Having given my anxious thought to the arguments advanced by ld. Advocate Mr. Shivade and ld. SPP Mr. Gharat and also having regard to the nature of the offence and the manner in which the incident had taken place, I find that submission of ld. Advocate Mr. Shivade cannot be accepted. One cannot compare the punishment awarded in the different cases. In some cases, punishment awarded not more than 2 years does not mean that in the present case also the court has to pass similar punishment. Facts of every case are different as laid down by the Division Bench of the Hon’ble High Court in Alister Pareira case in para 85. The Court has to consider the question of quantum of punishment guided by the accepted precepts of criminal jurisprudence. As Shri Shivade made submission at bar that the accused deposited Rs.19 Lacs in the proceeding in the Hon’ble High Court way back in the year 2002, in my opinion, in such situation, it will not be proper to direct the accused again to pay compensation. Hence, in my opinion, the following order would meet the ends of justice. Thus, I answer all the points accordingly and proceed to pass the following order:¬
1. Accused Salman Salim Khan is convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.304¬II of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for a period of five (5) years and to pay fine of Rs.25,000/¬(Rupees Twenty Five Thousand only), in default to suffer Rigorous Imprisonment for a period of six (6) months.
1 Accused Salman Salim Khan is also convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.338 of the Indian Penal Code and sentenced to suffer Simple Imprisonment for a period of one (1) year and to pay fine of Rs.500/¬(Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of one (1) month.
2 Accused Salman Salim Khan is also convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.337 of the Indian Penal Code and sentenced to suffer Simple Imprisonment for a period of three (3) months and to pay fine of Rs.500/¬(Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of one (1) month.
3 Accused Salman Salim Khan is also convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.134 r/w. Sec.187 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of two (2) months and to pay fine of Rs.500/¬(Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of fifteen (15) days.
1 Accused Salman Salim Khan is also convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.185 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of six (6) months and to pay fine of Rs.2,000/¬(Rupees Two Thousand only), in default to suffer Simple Imprisonment for a period of one (1) month.
2 Accused Salman Salim Khan is also convicted u/s.235(2) of the Code of Criminal Procedure for the offence punishable u/s.3(1) r/w. 181 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of two (2) months and to pay fine of Rs.500/¬(Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of seven (7) days.
3 All the substantive sentences shall run concurrently.
4 The accused is on bail. He shall surrender his bail bonds.
5 Set off be given to the accused u/s.428 of the Code of Criminal Procedure for the period undergone by him in the prison.
6 The seized articles be destroyed after appeal period is over.
7 Unmarked articles, if any, be destroyed after appeal period is over.
- The vehicle was returned to the accused Salman Khan on Supurtnama (Bond). The Supurtnama (Bond) be cancelled after appeal period.
Judgment is dictated and pronounced in open Court.
Additional Sessions Judge Date : 06.05.2015 Gr. Bombay
Date of dictation : 21 to 24.04.2015, 27 to 30.04.2015 & 02 & 06.05.2015 Date of Transcription : 21 to 24.04.2015, 27 to 30.04.2015 & 02 & 06.05.2015 Date of signature : 06.05.2015 Date of delivery to C.C.S. :