Check Out Part 4
44. It is vehemently submitted by ld. SPP Mr. Gharat that the prosecution has proved the charges levelled against the accused beyond reasonable doubt that on the intervening night of 27.09.2002 and 28.09.2002, the accused drove the vehicle Land Cruiser car bearing no. MH¬01¬DA¬32 in a rash and negligent manner and was having knowledge that the poor bakery workers were sleeping in front of American Express Cleaners, ran over the car over them and the vehicle climbed on the stairs of the American Express Cleaners and rammed into the shutter of the said laundry. So according to ld. SPP Mr. Gharat, the accused had the knowledge that the said persons were sleeping at the same place daily. Inspite of the knowledge, the accused drove his car in high speed and did not take require care thereby killing Nurulla on the spot and injured four persons, out of which two received grievous injuries. Further according to ld. SPP Mr. Gharat, the accused having brought up in the said area has full knowledge of the topography of the said area, since the accused is residing in the Bandra there from last 35 years.
1 According to ld. SPP Mr. Gharat, it is not disputed that from his house, accused went to the Rain Bar & Restaurant. From Rain Bar Restaurant, the accused then went to J.W. Mariot. According to ld. SPP, the prosecution claims that the accused was driving the vehicle on the day of the incident, but the defence comes with a stand that the vehicle was driven by D.W. 1 Ashok Singh (driver), and not by the accused. The ld. SPP also vehemently submitted that the accused had consumed Bacardi Rum in the Rain Bar Restaurant which gets corroborated by noticing the alcohol to the extent of 62 m.g. in the blood of the accused. Shri Gharat further contended that there is no dispute that the blood of Salman Khan was extracted in J.J. Hospital by PW¬20 Dr. Pawar. According to Shri Gharat, the blood extracted for alcohol test was as per the procedure and also there was proper sealing of the blood sample and it was sent for forwarding to Forensic Science Laboratory, Kalina. Further it is contended by ld. SPP Mr. Gharat that PW¬19 Rajendra Keskar did not find any mechanical fault in the vehicle and found less air in the front wheel tyre. According to ld. SPP, the defence claimed that the accident occurred due to bursting of front left tyre and it was only a pure accident cannot be established.
2 According to the ld. SPP, there is also evidence of the injured witnesses to demonstrate that the accused got down from the right driver side portion of the car to establish that it was the accused only who was driving the vehicle at the time of incident and none else. Further according to ld. SPP, there is no dispute that the four injured witnesses sustained injuries in the same incident, at the same place and at the same time. According to ld. SPP Mr. Gharat, the death of Nurulla occurred on the spot due to the dash by the vehicle. The ld. SPP further contended that the spot panchanama is also proved and various articles were recovered. Further it is contended that Ravindra Patil, who was body guard of the accused, lodged the complaint (Exh.P¬1) immediately after the incident against the accused. His evidence was also recorded before the ld. Metropolitan Magistrate and he was also cross¬examined at length. The complainant Ravindra Patil was expired in the year 2007. His evidence u/s.33 of the Indian Evidence Act is relevant and can be relied, after framing charge under Section 304¬II of the I.P.C. According to Mr. Gharat, the evidence of Ravindra Patil inspires confidence and trustworthy.
1 Further it is contended by Mr. Gharat that though there are some omissions, contradictions appeared in the evidence of prosecution witnesses that can be ignored because according to Mr. Gharat, the injured witnesses were labours and illiteratend. They belong to the lower strata. Further it is contended that though there are some lapses, errors noticed in the investigation, that can be ignored and the Court has to evaluate the entire evidence.
2 Further it is contended by ld. SPP Mr. Gharat that the accused had admitted about the occurrence of the accident and also about the bakery workers sustained injuries. However, the specific and pointed defence taken by the accused u/s.313 of the Code of Criminal Procedure is that the defence witness Ashok Singh (DW¬1) was driving the vehicle at the time of the incident. According to Mr. Gharat, the evidence of D.W. 1 Ashok Singh on the point of issue of driving the car is the substantive evidence.
1 The ld. SPP Mr. Gharat contended that the cross¬examination of all the prosecution witnesses and the probabilities attempted to be brought on record is the material, revolving around the main substantive evidence of the defence that Ashok Singh was driving the car. Therefore, once the main substantive evidence fails, nothing remains to be corroborated.
2 Further according to the ld. SPP Mr. Gharat that, a cardinal principle of law is that the prosecution case shall stand on his own legs. According to ld. SPP Mr. Gharat, it is true, if the accused faces the trial with his mouth shut and hands tied, the guilt of the accused is to be decided on the basis of the proof of evidence beyond all reasonable doubt. According to Mr. Gharat, the interpretation of the term “Reasonable Doubt”, when it seen from the judgments of the Apex Court, it shows that the moment the accused frees his hands and opens his mouth by way of specific defence, the said evidence jumps into the arena of appreciation, balancing and weighing the evidence and becomes the decisive factor for the entire case. According to Mr. Gharat, therefore, when such defence material proves to be illogical and unacceptable, the prosecution case cannot be thrown out as unbelievable. The reason is that the accused has his own stance shuts the other doors to peep through to derive the conclusions favourable to him and to get the benefit of trifling lapses and inconsistencies in the evidence of the prosecution witnesses.
1 According to ld. SPP Gharat, thus, when the defence is specific and other possibilities are ruled out, the question of fixing the liability is only by two ways i.e. as to whether the prosecution story that the accused was driving the vehicle or the specific defence, that Ashok Singh (DW¬1) was driving the vehicle. When either of these stories is accepted, the alternate story stands automatically discarded in the light of the fact that no other possibility of any other person driving the car is brought on record.
2 According to ld. SPP Mr. Gharat, the evidence of DW¬1 Ashok Singh cannot be accepted as he is a got up witness. Till the statement u/s.313 of the Cr. P.C. is recorded, nothing is brought on record to demonstrate that DW¬1 Ashok Singh was driving the vehicle. According to ld. SPP Mr. Gharat, the defence never suggested to any of the prosecution witnesses examined to the effect that the D.W.¬1 Ashok Singh was driving the vehicle at the time of the accident. Hence, according to ld. SPP, the evidence of DW¬1 Ashok Singh is liable to be discarded from taking into consideration. His conduct is illogical, unnatural, inconsistent and not convincing to the conscious of ordinary prudent man.
3 According to ld. SPP Mr. Gharat, if the entire prosecution evidence is looked into, it will demonstrate that the prosecution has proved the charges against the accused beyond reasonable doubt. The defence raised by the accused is liable to be discarded as the evidence of a liar.
1 The ld. Advocate Mr. Shivade strongly refuted the charges levelled against the accused. According to Mr. Shivade, the ld. Advocate, the prosecution miserably failed to prove the charges levelled against the accused beyond reasonable doubt. The ld. Advocate Mr. Shivade vehemently submitted that Ravindra Patil is a sole solitary eye witness to the alleged incident. His evidence was recorded when the accused faced the charge u/s.304¬A of the IPC. After examining 16 witnesses in the Court of Metropolitan Magistrate, the case was committed to the Court of Sessions. In Sessions Court, retrial was held. The complainant Patil was expired in the year 2007. It is contended by Mr. Shivade that the evidence of Ravindra Patil is inadmissible under Section 33 of the Indian Evidence Act. It is further contended that the provisions of Sec.33 of the Indian Evidence Act are not complied with in this case because accused in first proceeding had no opportunity to cross¬examine Patil in relation to the offence u/s.304¬II as the earlier trial was in relation to the offence 304¬A and other sections. Therefore, even if the Sessions Court trial is between the same parties, the recourse cannot be taken to Sec.33. Further according to Mr. Shivade, ld. Counsel, the question and issue in the Magisterial trial and the Sessions Court trial are not substantially the same.
2 Further it is contended that the accused was not driving the vehicle as alleged by the prosecution. DW¬1 Ashok Singh was driving the vehicle at the time of the accident. Further it is contended that the car of the accused came to Hill Road via Manual Gonsalves Road driven by DW¬1 Ashok Singh. The said road is parallel to St. Andrews Road and it meets Hill Road before St. Andrews Road. It is contended that there was a sudden tyre burst of the front left tyre and the steering became hard and before driver took turn, the car had climbed the stairs and hit the shutter.
56. It is contended that PW¬19 Rajendra Keskar examined the car involved in the accident, but the evidence of PW¬19 Keskar does not inspire confidence. According to Mr. Shivade, ld. Advocate, the prosecution has criticized the said expert and even demanded the action against him. According to Mr. Shivade, thus, it was a pure accident for which no one can be blamed. Further it is contended by ld. Advocate Mr. Shivade that if the evidence of complainant Patil is appreciated, then, one can infer that the said evidence does not inspire confidence as the evidence is of the material improvements. There are also omissions in the evidence of Patil and therefore, the ld. Advocate Mr. Shivade urged that it is extremely unsafe to rely on such evidence. It is further contended that the FIR lodged is also at belated stage as the copy of the FIR was not dispatched to the Court of Metropolitan Magistrate within stipulated period as required by law. It is further contended by ld. Advocate Mr. Shivade that the interview given by Patil to Mid¬Day published on 30.09.2002 which was admitted by Patil and states that driver Altaf was at the wheel. According to ld. Advocate Mr. Shivade, Altaf was having giddiness at J.W. Mariot Hotel, therefore, he informed Ashok to come to J.W. Mariot Hotel in order to reach the accused at his residence. While returning to the home from J.W. Mariot Hotel, the alleged accident had occurred. According to defence, the incident is a pure accident.
1 Further it is contended that the injured witnesses were under the vehicle, therefore, it was highly improbable that they were in a position to see the accused getting down from the right side portion of the car. Further it is contended that the prosecution has not examined Yogesh Verma and other witnesses from J. W. Marriot.
2 Further it is contended by ld. Advocate Mr. Shivade that after the accident, the mob gathered on the spot which became furious. The persons gathered were armed with the rods and stones. There was danger to the life of accused, therefore, PW¬7 Francis has taken the accused away from the mob and the accused was made to sit in the car stopped by wife of PW¬7 in order to leave the place. So according to Mr. Shivade, by no stretch of imagination, it can be said that the accused ran away from the spot. According to ld. Advocate Mr. Shivade, story of the prosecution that the accused had consumed alcohol is a fabricated story. The accused never consumed alcohol in Rain Bar Restaurant. There is no strong evidence to that effect adduced by the prosecution. It is contended that the accused was taken to Bhabha Hospital. However, no medical reports of Bhabha Hospital are produced on record. It is contended that IO PW¬27 Shengal has attempted to improve the case by saying that API Suryavanshi disclosed that facility of blood extraction was not available in Bhabha Hospital. Further it is contended that Dr. Shashikant Pawar who draw the blood from the accused did not find accused under the influence of alcohol. It is also argued that the Medical Officer Dr. Pawar did not follow the prescribed procedure for extracting the blood, thereby there is violation of Rule 3 and 4 of Bombay Prohibition (Medical & Blood) Rules 1959, provides these precautions. Further it is also contended that the blood sample was sealed by the ward boy and what precautions were taken by the ward boy while sealing are not forthcoming. Further it is contended that preservative Sodium Fluoride was not added in the sample in order to prevent fermentation. If the preservative is not added, then it will give rise to the fermentation in the blood which generates alcohol, thereby it may affect end result.
1 Ld. Counsel Mr. Shivade attacked heavily on the evidence of PW¬18 Bhalshankar who analyzed the blood sample of the accused. It is contended that the blood samples were despatched not within time to the Laboratory. The manner in which the blood samples were kept in police station is also suspicious. No refrigeration was provided in the police station. According to ld. Advocate Shri Shivade, the evidence of PW¬18 Bhalshankar is highly unsatisfactory. PW¬18 cannot say how he conducted modified diffusion oxidation method. 4 ml blood was found after measuring by PW¬18 Bhalshankar, but however, 6 cc blood was sent. According to Mr. Shivade, PW¬18 Bhalshankar did not take proper precautions. According to Mr. Shivade, the evidence of PW¬18 is suffered from lot of infirmities and therefore, his evidence cannot be accepted and such, the evidence of alcohol consumption needs to be excluded from consideration.
2 Further it is contended by ld. Advocate Mr. Shivade that death of Nurulla was not due to the dash given by the vehicle. According to Shri Shivade, the crane was called to remove the vehicle. When the crane was applied, the bumper came up due to weight of the car and car fell down. According to Mr. Shivade, Nurulla sustained injuries due to fall of vehicle. It is contended that there are circumstances to show that Nurulla was alive after the accident. So it is contended that the death of Nurulla was not caused due to rash and negligent driving. It is also vehemently submitted by ld. Advocate Mr. Shivade that there are lapses, latches and errors in the investigation which is fatal to the case of prosecution. According to Mr. Shivade, there is no evidence of finger prints produced on record by the prosecution though the finger prints of the accused were sent for comparison with the finger prints appearing on the steering wheel. No photographs of the vehicle are taken about its position after the accident. The front left tyre of the vehicle was not sent to the Laboratory for examination. No parking tag was produced on record which is a valid piece of evidence to show about parking of the vehicle in J.W. Mariot Hotel. Further there are belated statements recorded during investigation. The supplementary statement of Ravindra Patil, bodyguard, was recorded on 01.10.2002 where he made improvements to bring the case against the accused u/s.304¬II of the IPC. The Investigating Officer did not record the statements of the Security Guard in the J.W. Mariot as well as Yogesh Kadam. Yogesh Kadam was the Valet at J.W. Mariot Hotel who, according to prosecution, took the car to Valet Park. The name of Yogesh Kadam was written on Valet tag and the prosecution alleged that the tag was given to the accused by Yogesh Kadam. So according to ld. Advocate Mr. Shivade, the evidence of Yogesh Kadam was crucial and by not examining him, adverse inference can be drawn against the prosecution. Lastly it is submitted that the accused is falsely implicated on the pressure of the media.
61. According to ld. Advocate Mr. Shivade, the media, mob was gathered in front of the police station and if the police had named the driver Ashok as accused, there would have been allegations from the mob as well as the media that the police are attempting to save Salman Khan. Hence, according to ld. Advocate, therefore, naming Salman Khan was the best available option for police and strongest possible reason why they implicated the accused. So according to defence, the evidence of DW¬1 inspires confidence and he was examined at the right time after conclusion of prosecution evidence and after recording statement of the accused u/s.313 of the Cr. P.C. The stage to examine defence witness would come after recording statement of the accused. This is exactly done in the present case. So according to ld. Advocate for the accused, the accused has demonstrated that it was DW¬1 who drove the vehicle. The evidence led by accused is probable and acceptable. Ld. Advocate Mr. Shivade would submit that Investigating Officer interrogated Ashok Singh, but did not record his statement which itself demonstrates how the police are interested in filing the case against Salman Khan. Further it is contended that the evidence led by the prosecution is suffered from infirmities, contradictions and omissions and does inspire confidence at all. The evidence of Ravindra Patil in the Court of Metropolitan Magistrate cannot be admitted and read in Sessions Trial. Lapses, errors and lacunas created in the prosecution story rendered the prosecution case invalid and not worthy to be accepted. Lastly, it is submitted that there is always presumption of innocence in favour of the accused and according to Mr. Shivade, if totality of evidence is taken into consideration, it can safely be said that the prosecution miserably failed to prove the charge levelled against the accused beyond reasonable doubt and therefore, the accused is entitled for acquittal.
62. In this case, the admitted facts are that, the accused visited Rain Bar & Restaurant. Bodyguard Ravindra Patil was with accused. Accused then visited J.W. Mariot Hotel. The accident occurred and the vehicle climbed the stairs of American Express Laundry and ran over the persons and went into the shutter of American Express Laundry. The defence also admitted the following documents:¬
(i) Cause of Death Certificate of deceased Nurulla (Exh.19),
(ii) P.M. report of deceased Nurulla (Exh.20 [Exh.149]),
(iii) Inquest panchanama (Exh.150),
(iv) Injury Certificates of Kalim Mohammad Pathan (Exh.151), Munnabhai Khan (Exh.152), Abdul Rauf Sheikh (Exh.155) and Muslim Shaikh (Exh.156),
(v) C.A. Reports (Exh.157¬A to 157¬E),
(vi) In the incident, Nurulla Sheikh was expired and four others were injured. The car Land Cruiser was belonging to the accused.
(vii) The third occupant of the car was one Mr. Kamal Khan who was singer and was occupying the back seat of the car.
(viii) The accused was arrested on 28.09.2002.
(ix) The accused was sent for medical examination to Bhabha Hospital and thereafter at about 01.30 p.m. was sent to Sir J.J. Hospital.
(x) The accused admitted that his blood was extracted in J.J. Hospital.
63. The prosecution has tendered in evidence the following articles:¬
(i) The Fiber piece of vehicle (Art.1),
(ii) Soil on tyre (Art.2),
(iii) Bloodstained soil (Art.3),
(iv) Pieces of Fiber Glass (Art.4),
(v) Piece of plastic along with label (Art.5),
(vi) Color scratched from shutter (Art.6),
(vii) Soil from spot (Art.7),
(viii) Glass of headlight (Art.8),
(ix) Colour photos of shutter shown to PW¬1 by defence (Art.9).
64. In the light of the above said admitted facts, the evidence of the prosecution is required to be evaluated and scrutinized to ascertain as to whether the same is acceptable to say that the prosecution has proved the guilt of the accused beyond all reasonable doubt and also to see as to whether the defence put forth by the accused can be accepted on the touch stone of the logic of an ordinary prudent man. Thus the Court has to see if the defence stands sustained on the theory of preponderance of probability or the depositions of the witnesses do not give room to the doubts which can be said as reasonable doubts.