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.
Check Out Part 5
As to point nos. 1 to 8.
A) Panchanama :¬
65. PW¬1 Sambha Gauda was running a tea stall near Ram Temple, S.V. Road, Bandra. One Arjun also used to prepare snacks adjoining to the tea stall of PW¬1 Sambha. PW¬1 Sambha Gauda is the witness on spot panchanama. On 28.09.2002 at about 03.00 a.m. he was called by Bandra police near American Laundry on Bandra Hill Road. Police informed him that a car was involved in the accident and made request to act as a panch. PW¬1 and Arjun had gone to the spot. One police officer, not in uniform, was present there. PW¬1 deposed that the said person was Patil. Patil had shown panchas and police the spot of the incident. One big white car entered in the American Laundry. Front portion of the car was damaged. The bumper of the car was also touched the shutter of the laundry. The motor car had climbed three stairs and went in American Laundry. PW¬1 deposed that 4 – 5 persons were also found injured beneath the car.
1 It has come in the evidence of PW¬1 Gauda that the police had measured the spot, collected the colour scratch of the shutter. The rare side of the wheel of the car was sustained with blood. Police collected blood stains from the spot, collected broken glass pieces and also the number plate. Police also packed the said articles. The panchanama was read over to PW¬1 in Hindi and thereafter PW¬1 signed the panchanama as well as Arjun signed the panchanama.
2 PW¬1 Gauda identified the spot panchanama (Exh.28) and also identified the articles 1 to 8 which are described above. The labels affixed on the envelops bear the signatures of PW¬1 Gauda.
3 PW¬1 is also cross¬examined at length by the ld. Advocate for the accused. PW¬1 admitted that he does not possess any licence to run the tea stall. Municipality used to seize the stall and articles of PW¬1 and PW¬1 used to pay fine to B.M.C. PW¬1 stated in cross¬examination that as the police used to call him, he had gone as per the say of police. PW¬1 admitted that in order to avoid conflict with police, he used to go on with the police.
69. The ld. Advocate Mr. Shivade vehemently submitted that the PW¬1 Gauda is the regular panch available for police and therefore, no reliance can be placed on his evidence. The ld. SPP relied on the reported judgment in the case of Deepak Ghanashyam Naik v/s. State of Maharashtra, 1989, CRI.L.J. 1181 “In the said cited case, Arun Madhav Zankar (PW¬2) was called as a panch witness for taking personal search of the appellant. The said panch witness has been attacked by the ld. Advocate for the accused calling him as a professional panch. Panch witness admitted that he had acted as a panch once or twice. It is observed by their Lordships of the Hon’ble High Court are not able to persuade themselves to agree with the submissions of Mr. Sanghani that he is a professional panch because he is not a person doing nothing and under the police obligation to act as a panch witness. In fact, the panch witness has fruits business. No question was put to him in cross¬examination to elicit information about the circumstances in which he happened to act as a panch witness once or twice earlier. In the absence of any question put to him in cross¬examination to seek such an explanation, it is not possible to guess in what circumstances he became a panch witness in one or two trial occasions. It is observed that the panch witness is not an idle person or man without means. He is in fact a businessman and there was no necessity for him to comply with the request of police either for consideration or otherwise or to be in a good books of the police.”
1 In our case in hand, the panch witness is a hawker and he was doing the business of tea and has no necessity to comply with the request of the police either for consideration or otherwise to be in a good books of police, then even he has acted as a panch on some earlier occasions, his evidence cannot be doubted.
2 In cross¬examination PW¬1 Gauda also admitted that panchanama was not drawn in the police station. He had not seen the spot of incident earlier. There is a bakery existed near American Laundry. American Laundry and bakery are adjacent to each other. He also stated that the spot of incident was located on the steps. He signed on the labels on the spot of incident. He does not know timing of panchanama. Panchanama was written down by standing on the footpath on Hill Road. The left tyre of the car was found punctured. The car was found in a same position prior to panchanama and after the panchanama when he left the spot of the incident. PW¬1 also stated that he had not seen whether the car was removed with the help of crane in order to remove the injured. He cannot say whether the injured were removed from the spot prior to drawing panchanama or after conclusion of the panchanama. The injured were found in entangled below the left wheel of the car. He stated that people were trying to leave the car from the spot. PW¬1 stated that it did not happen that the police entered in the car by opening the door of the car and made inspection and police took RC Book, certified copy of New India Insurance, keys in their possession. PW¬1 contradicted portion marked “A” in the panchanama.
1 PW¬1 Gauda also admitted that whatever articles found on the spot were taken in the possession by police and packed in his presence. The police also removed the car with the aid of crane in his presence. PW¬1 also stated that he had not seen whether bumper of the car was removed when the crane was touched to that portion at the time of removing the car. Police also had taken the measurement of the car in his presence. When PW¬1 signed on the panchanama, car was not present near the shutter. Police also had taken the marking of the car and also had taken the measurement of the distance from the place where the car was found till the road and also the distance from the car till the shutter of the American Laundry. PW¬1 Gauda denied in the cross¬examination that no panchanama was drawn in his presence and he signed it, in the police station. PW¬1 Sambha Gauda saw the blood only on the tyre and not on the other place.
2 If the evidence of PW¬1 Sambha Gauda is looked into, I find that his evidence inspires confidence. The spot panchanama was drawn in his presence and there is no reason for him to depose in favour of the prosecution.
B) Whether the evidence of Ravindra Himmatrao Patil recorded before the Additional Chief Metropolitan Magistrate, Bandra, in C.C. No.490/PS/2005 is relevant, admissible u/s.33 of the Indian Evidence Act and can be relied in the proceeding against
the accused :¬
74. This is a crucial aspect of the case as to whether the evidence of Ravindra Himmatrao Patil recorded in the Court of ld. Additional Metropolitan Magistrate is relevant, admissible, and be relied in this case. I have also discussed the events after filing charge¬sheet in the Metropolitan Magistrate Court, Bandra, and thereafter what had happened in para nos.24 to 31 of the judgment. The ld. SPP Mr. Gharat filed an application (Exh.131) for taking the evidence of Ravindra H. Patil and Dr. R.L. Sanap on record. Ravindra Patil was expired in the year 2007. On 07.03.2015 I have decided the said application and in view of the ratio laid down in the case of Bipin Shantilal Panchal Vs. State of Gujarat and Another [(2001) 3 Supreme Court Cases 1] the evidence of Ravindra Patil recorded in the Court of ld. Metropolitan Magistrate is taken on record in the case in hand and it is at Exh.141. Dr. R.L. Sanap performed postmortem on the dead body of Nurulla. Dr. Sanap is reported to be residing in U.S.A. The defence specifically mentioned in the say that the defence is not challenging the injuries caused by the deceased and cause of death mentioned in the postmortem report and no prejudice is caused to the defence if Dr. R.L. Sanap is not examined. So the evidence of Ravindra Patil is taken on record in the present case. The prosecution as well as the accused were granted liberty to refer the said evidence during the examination of Rajendra Kadam (PW¬26) who recorded the complaint of Ravindra Patil and also Investigating Officer Shengal (PW¬27). Further the relevancy and admissibility of the evidence of Ravindra Patil taken on record is to be decided now.
1 It is pertinent to note that the prosecution has examined PW¬25 Kailash Behre, brother of Ravindra Patil (deceased/ complainant). According to PW¬25, Ravindra Patil was the bodyguard of the accused in the year 2002. After the incident, Ravindra Patil was transferred to LA Division, Tardeo. PW¬25 Kailash deposed that Ravindra Patil was not keeping well and he could not recover from the illness and was expired on 03.10.2007. Death Certificate is at Exh.140. The defence also did not seriously dispute about the death of Ravindra Patil.
2 The ld. SPP Mr. Gharat vehemently submitted that the evidence of Ravindra Patil taken on record is relevant and be admitted u/s.33 of the Indian Evidence Act. It is necessary to reproduce Section 33 of the Indian Evidence Act which reads as under:¬
“33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated :
Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the
Sessions Case No.240/2013 Judgment circumstances unreasonable : Provided of the case, the Court considers that the proceedings was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross – examine ; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation – A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused with in the meaning of this section.”
1 It is vehemently submitted by ld. SPP Mr. Gharat that after recording of the evidence of witnesses, the case was committed to the Court of Sessions as the ld. Metropolitan Magistrate was of the opinion that charge u/s.304¬II would be attracted. My Ld. Predecessor again framed the charges including charge u/s.304¬II of the IPC after committal. As discussed in above paras and in view of the various provisions in Cr.P.C. and after hearing the ld. defence Counsel Mr. Shivade and then APP Mr. Kenjalkar, it was decided to take the evidence afresh. The summons was issued to the witnesses including complainant Ravindra Patil, but it was informed to the Court that Ravindra Patil was expired due to Tuberculosis on 03.10.2007.
2 Therefore, the ld. SPP under such circumstances, contended that Sec.33 of the Indian Evidence Act needs to be invoked. According to him, Sec.33 of the Indian Evidence Act provides that the evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a later stage of same judicial proceeding, the truth of the facts which is states, when the witness is dead or cannot be found. According to ld. SPP Mr. Gharat, the evidence of Ravindra Patil as PW¬1 in the case No.490/PS/2005 was completed before the ld. Additional Chief Metropolitan Magistrate on the facts of the case and full opportunity of cross¬examination was given to the accused, which satisfied all the three conditions of the proviso to Sec.33. It is further contended by the ld. SPP that the accused has got full opportunity to rebut the entire evidence of Ravindra Patil. According to ld. SPP Mr. Gharat, facts are to be rebutted, proved or disproved on the touch stone of the cross¬examination. According to ld. SPP, truth of the facts was tested in cross¬examination of the defence. The accused also confronted the every question available with the accused.
79. According to ld. SPP, the evidence of Ravindra Patil would be the same even after framing the charge u/s.304¬II of the IPC. According to ld. SPP,. there are allegations against the accused that on the fateful day of the incident, the accused drove the car in a rash and negligent manner under the influence of liquor and was having knowledge that the labourers were sleeping in front of American Laundry. The accused is residing near the spot of incident and brought up in Mumbai. The FIR was lodged by Ravindra Patil. His examination¬in¬chief was also recorded in view of FIR filed by him. According to ld. SPP, facts of the case would be the same when charge u/s.304¬A of the IPC was framed earlier and after committal, charge u/s.304¬II of the IPC is framed. According to ld. SPP, law imposes certain duties on the person not to drive the car under the influence of liquor and in callous and negligent manner. Moreover, the person also knows that without driving licence, one should not drive the vehicle. So what else would be the knowledge.
80. The defence of the accused is that the accused was not driving the vehicle, DW¬1 Ashok Singh was driving the vehicle. Charge u/s Sec.304¬II of the IPC is framed in this case that the accused drove the car in rash and negligent manner under the influence of alcohol with the knowledge that people are sleeping in front of American express Cleaners and the accused was having knowledge that by driving the vehicle in rash and negligent manner under influence of liquor he was likely to cause death and caused death of Nurulla Shaikh. In the evidence, Ravindra Patil stated all the facts of the incident. So even if charge u/s.304¬II of IPC is framed in the present case, the facts would be the same. The defence also cross¬examined Ravindra Patil in the Metropolitan Magistrate Court exhaustively and substantively on the various dates. The omissions were also brought on record by the defence. Suggestion was also given to complainant Ravindra Patil that the accused was not driving the vehicle in drunken state. Suggestion was also given to the complainant that the accused was not driving the car in the beginning of incident night. Suggestion was also given to the complainant that on 01.10.2002 his supplementary statement was recorded in order to involve the accused in the case.
1 So fullest opportunity is given to the accused to cross¬examine Ravindra Patil in the Additional Chief Metropolitan Magistrate Court and the said opportunity was availed by the accused. So it cannot be said that the accused was not having opportunity to cross¬examine Ravindra Patil.
2 Now question remains about knowledge. As stated by me above, the law imposes certain duties on any person that he should not drive the vehicle under the influence of liquor and also without licence. Every person is having the same knowledge. These are the important ingredients of Sec. 304¬II of the I.P.C. So every person has knowledge about the above things and the accused exhaustively cross¬examined the complainant by putting suggestion that the accused was not driving the vehicle and he was not in a drunken state of health. So in my opinion, it will be safe to admit the evidence of Ravindra Patil in case in hand u/s.33 of the Indian Evidence Act. The ingredients of Sec.33 are fully attracted in our case pertaining to the evidence of Ravindra Patil.
3 The ld. SPP also relied on the judgment of 1881 Indian Law Reporter, page 42, in the matter of petition of Rocha Mohato (Appellant) ¬The Empress v. Rochia Mohato. It is necessary to reproduce some portion of the said case and the same is as follows:¬
“This is an appeal from a conviction by a jury in respect of which we can only interfere if there has been some error of law or misdirection by the Judge. Now it is alleged that we ought to interfere on two grounds: first, that evidence has been wrongly placed before the jury ; and secondly, that in certain particulars there has been a misdirection, or rather a want of direction by the Judge. With respect to the first ground that improper evidence has been placed before the jury, the complaint is, that the depositions of two witnesses who were examined before the Magistrate were improperly allowed by the Judge to be put in by the prosecution and used in the Sessions Court under the following circumstances : One of these witnesses was the person whom the defendant and his party were accused of assaulting, and who has since died. Now, before the Magistrate the only complaint was a charge of grievous hurt. But in consequence of the death of the person who was hurt viz., Khedroo, other charges were added before the Sessions Judge, ¬viz, a charge of murder and a charge of culpable homicide not amounting to murder. In consequence of these additional charges, it is argued that, under S. 33 of the Evidence Act, the questions in issue before the Sessions Court, and before the Magistrate, were not substantially the same in the two proceedings. As a matter of fact, the prisoner has only been convicted of grievous hurt; and therefore the issue that was before the Magistrate was only issue that has been decided against the accused by the jury. It appears to us, that, by “the questions in issue,” it is not intended that, in a case where the prisoner injured dies subsequently to the enquiry before the Magistrate, his evidence is not to be used before the Sessions Court, because in consequence of his death other charges are framed against the accused. We are of opinion that the evidence of the deceased in this case was admissible under s. 33, and even if it were not admissible under s. 33, that it would be admissible under the first clause of s. 32 of the Evidence Act. The question whether the proviso to s. 33 is applicable, ¬that is, whether the questions at issue are substantially the same, ¬depends upon whether the same evidence is applicable, although different consequences may follow from the same act. Now, here the act was the strokes of a sword which, though it did not immediately cause the death of the deceased person, yet conduced to bring about that result subsequently. In consequence of the person having died, the gravity of the offence became presumptively increased ; but the evidence to prove the act with which the accused was charged remained precisely the same. We therefore think that this evidence was properly admitted under s. 33.”
84. The ld. SPP also relied on the case of The State V/s. Suraj Bali & Ors. [1982 CRI.L.J. 1223 (Allahabad High Court, Lucknow Bench)] wherein it is held as under:¬
“Evidence Act (1872), Section 33¬Deposition of a dead witness¬Admissibility – Direction by Appellant Court for commitment under Section 423 (1) (b) Criminal P. C. after setting aside conviction – Former proceedings in trial Court not rendered illegal – commitment to Sessions – Death of a witness – His deposition in first trial – Admissible in Sessions Court. Where an appellant Court, after setting aside conviction, directs the trial Magistrate under Section 423(1) (b), Criminal P. C. to commit the accused to Sessions Court, the former proceedings in the trial Court are not rendered without jurisdiction and illegal and a deposition of a witness in those proceedings can be brought on record in the Sessions Court under section 33 of the Evidence Act if the witness is dead.”
85. In this case, the opposite parties Suraj Bali, Misri Lal, Ramanand, Sadgu, Shankar and Motilal were prosecuted under Sections 147, 342, 324 / 149, 323/149 of the Indian Penal Code before the Judicial Magistrate, Lucknow. The Magistrate recorded the statements of the various witnesses including that of one Ramchandra (PW¬2). The ld. Magistrate convicted and sentenced the opposite parties to undergo various terms of the imprisonment. The opposite parties appealed and the appellate court was of the view that the evidence indicated the alleged commission of an offence u/s.387 of the Indian Penal Code which was exclusively triable by the Court of Sessions. The conviction was set aside and the matter was remanded to the ld. Magistrate with a direction that he should commit the case to the Court of Sessions on a proper charge. The case was committed u/s.387 of the IPC. It transpired that PW¬2 Ramchandra (who had been examined by the Magistrate) died before, he could be examined at the trial before the Assistant Sessions Judge. The Public Prosecutor presented an application to examine father of Ramchandra to prove the latter death to enable the prosecution to apply for the transference of the deposition of Ramchandra from the record of the Court of the Magistrate on to the record of the Sessions Trial as evidence u/s.33 of the Evidence Act. The said application was rejected. It is held in para 7 by the Hon’ble High Court as under:¬
“7. The learned Assistant Sessions Judge was to my mind not correct when he rejected the application. It is, therefore, directed that the State shall have the liberty to lead evidence to prove that Ram Chandra is dead and to bring his earlier deposition on the record under Section 33 Evidence Act. As to what value should attach to that statement is for the trial Court to decide, and not for this Court.”
86. The ld. SPP also relied on the case of Ramvilas and others v/s. State of Madhya Pradesh (1985 CRI. L.J. 1773). “(A) Evidence Act (1 of 1872), S. 33¬Applicability – Essential requirements.
For admissibility of the recorded evidence of a person in accordance with S. 33, one of the essential requirements is that ‘the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable’ . The allegation has to be legally proved like any other fact and the burden or proof rests upon the party which invokes the section. (Para 9) Where S. 33 was sought to be invoked in respect of a prosecution witness on the ground of her death it was held that it was for the prosecution to prove the alleged death of that witness according to law and it cannot be said that her death was impliedly admitted by not challenging the report regarding her death. In a criminal case, it is not open to the accused to waive its proof. Consent for want of objection on the part of the accused or his counsel to the deposition of a witness being brought on record under the said section cannot make it admissible, if it is not otherwise so. Thus, when the death was not proved by the prosecution, it was not entitled to resort to S. 33 (para 9) Also S. 33 contemplates (i) a subsequent judicial proceeding in which that person has to be examined as a witness or (ii) a subsequent stage at which that person has to be examined as a witness in the same judicial proceeding as the case may be. (para 10)”
87. In the said case, the appellants were charged with the alleged offences u/s.148, 302, 149, 307/149 and 395/397 of the Indian Penal Code. After holding a trial, the appellants were convicted. The conviction is based on the solitary testimony of Mrs. Gangadevi (PW¬27) and few pieces of circumstantial evidence. Her evidence was recorded on 07.01.1981 on which date she was examined in chief, cross¬examined and discharged. Her dying declaration was recorded on 25.12.1981 by the Executive Magistrate Mr. Pandey (DW¬2). That statement had not been filed by the prosecution nor had a copy thereof delivered to any of the appellants. The application was filed on 02.02.1981 by the appellants for recalling of PW¬7 Gangadevi. The said application was rejected by the Sessions Court, but in Revision the Hon’ble High Court allowed the application. The Sessions Court directed Gangadevi (PW¬7) to re¬summon for further cross¬examination and posted the case to 05.03.1981. The matter was adjourned from time to time. When the matter was fixed on 23.04.1981, the summons report of Gangadevi had been written to the effect that she had died on 08.04.1981. In the above mentioned circumstances, it is contended on behalf of the appellants that the testimony of PW¬7 cannot be read in evidence u/s.33 of the Evidence Act.
In the said case, it is held as under:¬“10. But, in our opinion, in the circumstances of the present case, recourse to the said section is not necessary to give relevancy to the testimony of Mst. Gangadevi ((P.W.7) as we shall presently show. No decision of the Supreme Court or this Court on this point has been brought to our notice. The rule contained in the section is an administrative expedient for doing justice between litigants in a particular situation. The court requires a litigant to furnish evidence of the primary grade if it is within his power to do so. So long, therefore, as the proponent can reasonably be required to cause a witness to repeat his evidence regarding admissible facts given on a former occasion the Court insists that the witness himself be produce. In other words, primary evidence is insisted upon until a satisfactory necessity for offering secondary evidence is made out. When the proponent’s necessity for producing evidence of secondary grade is established, the right to submit it is recognised by the Court so long as the original evidence is attainable, evidence which is merely substitutionary in its nature cannot be received. The section states the circumstances and conditions under which secondary evidence of oral testimony may be given. Under those circumstances and conditions, the section makes relevant the evidence already given by a person (i) in a prior judicial proceeding or before any person authorised by law to take it or (ii) at an earlier stage of the same judicial proceeding. That is to say, if a party wants to give the evidence of the same person (i) in a subsequent judicial proceeding or (ii) at a subsequent stage of the proceeding as the case may be, his evidence already recorded earlier can be considered and he need not be examined in the subsequent judicial proceeding or at the subsequent stage of the same judicial proceeding as the case may be if the circumstances and conditions mentioned in the section are fulfilled. The section contemplates (i) a subsequent judicial proceeding in which that person has to be examined as a witness or (ii) subsequent stage at which that person has to be examined as a witness in the same judicial proceeding as the case may be. In the present case, there is no question of a subsequent judicial proceeding. Here, the question is whether, in the sessions trial, there was any stage at which it was necessary for the prosecution to give evidence of Mst. Gangadevi (P.W.7) again. Her evidence had already been recorded at the trial on 7¬1¬1981 under S. 231 of the Cr. P.C. 1973 read with S. 137 of the Evidence Act and there was no subsequent stage for giving her evidence. As there was no subsequent stage for giving her evidence, there was no occasion for invoking S. 33 of the Evidence Act for giving relevancy to her evidence recorded on 7¬1¬1981. The relevancy was never lost by it as it was the evidence of primary grade given at the trial.
S. 33 abid states the circumstances under which secondary evidence of oral testimony may be given. When evidence of primary grade has been adduced, there is no occasion to invoke or resort to that section.
11. The fact, however, remains that the appellants were deprived of the opportunity to further cross¬examine Mst. Gangadevi (P.W.7) in the light of her earlier statement dt. 25¬12¬1979 (Ex.D¬5) recorded by the Executive Magistrate Sanskar Pande (D.W.2). That opportunity was directed to be given to them vide order dated 20¬2¬1981 in the criminal revision referred to in para No. 7 above. That statement (Ex.D¬5) could be made use of by the appellants only for contradicting her under S. 145 of the Evidence Act. It has, therefore, to be examined as to how far the appellants are adversely affected or prejudiced thereby. Reference to her testimony becomes necessary at this stage.”
1 I have gone through the cited case and with due respect, I find that the facts in the case of Ramvilas and others v/s. State of Maharashtra (cited supra) are not applicable to the facts of the case in hand. In our case, the evidence was recorded afresh, after framing the charge u/s.304¬II of the IPC after committal. Complainant Ravindra Patil is expired. He has stated the facts in his evidence before the ld. Metropolitan Magistrate as to how the accident took place. Those facts would be the same for the charge u/s.304¬II of the IPC. In view of the ingredients of Section 33 of the Indian Evidence Act and in view of the judgment in case of 1881 Indian Law Reporter and The State V/s. Suraj Bali & Ors. (cited supra), the evidence of Ravindra Patil is relevant, and admitted and is taken on record u/s.33 of the Indian Evidence Act in the case in hand. As to what value should attach to the said evidence is to be discussed later on.
2 The ld. Advocate Mr. Shivade vehemently argued that the essential conditions of Sec.33 are not fulfilled by the prosecution. It is contended that the charge and nature of the offence in both the trials are different. The ingredients of Sec.304¬A and 304¬II of the Indian Penal Code are dramatically opposite in respect of mens rea. The offence u/s.304¬A requires an act of omission while Sec.304¬II requires an act of commission. It is also argued by ld. Advocate Mr. Shivade that the accused did not get proper opportunity for cross¬examination with reference to the charge or issues.
1 Ld. Advocate Mr. Shivade vehemently submitted that in the earlier trial the accused was facing the lighter charge. Sec. 304¬A of the IPC punishable with two years or fine. According to ld. Advocate Mr. Shivade, the cross-examination is always permitted to the extend of charge and accused is not supposed to anticipate all the potential charges and cross¬examined accordingly. The earlier evidence was recorded in the absence of the accused. According to Mr. Shivade, the accused is now facing a grave charge of culpable homicide not amounting to murder, punishment provided upto 10 years or fine. Ravindra Patil has not been cross¬examined in this case. It is contended that the evidence of Patil was tendered at the fag end. Further according to Mr. Shivade, issues involved in both the cases are not substantially the same.
2 The ld. Advocate further contended that the provisions of Section 33 of Indian Evidence Act are not complied with in this case, because the accused in the first proceeding had no right or opportunity to cross examine Patil in relation to offence of Section 304, Part II as the earlier trial was only for Section 304¬A and other lesser charges. Therefore, even if the Sessions Court trial is between the same parties recourse cannot be taken to Section 33.
- Further it is argued by ld. Advocate Mr. Shivade that the question and issue in the Magisterial trial and the Sessions Court trial are not substantially the same because the question of intention or knowledge of the accused in relation to the act done by him was completely irrelevant in the trial u/s.304¬A while they are essential in Sec.304¬II of the IPC. According to Mr. Shivade, there is always substantial difference between the act causing the death and the act causing the injury. According to Mr. Shivade, in the present case, the case of the accused is that he was not driving. Further according to Mr. Shivade it is also necessary to note the provisions of Section 304¬I which required that the act causing death is done with the intention of causing death or causing such bodily injuries as is likely to cause death. Part¬II of Sec.304 also contemplates an act done which results in death of the person with the knowledge that such act is likely to cause death, but without any intention to cause death or such bodily injury is likely to cause death. According to Mr. Shivade, therefore, all this is not required to prove, if the person is tried u/s.304¬A of the IPC whether he had intention or not, whether he had any knowledge or not. Hence, according to Mr. Shivade, offences u/s.304¬A and 304¬II are different and are not substantially the same. Section 304¬A is an independent charge, it is not lesser offence than Section 304¬II of the IPC. Hence, according to Mr. Shivade, the evidence of Patil cannot be held relevant and read in Sessions Court trial. It is contended that the Magisterial trial and, after committal, a Sessions trial is not a later stage of the same judicial proceeding and therefore, Sec.33 of Evidence Act cannot be invoked. According to Mr. Shivade, the accused is deprived of substantial right to cross-examine Patil.
1 I am afraid to accept the contentions of ld. Advocate Mr. Shivade. As discussed above by me, the facts are to be rebutted in cross¬examination. The complainant Patil has narrated in his evidence about the facts as to how the accident took place. There are allegations against the accused about driving the vehicle in rash and negligent manner under intoxication. The accused exhaustively cross¬examined Patil before the ld. Additional Chief Metropolitan Magistrate Court. Under Section 304¬II, knowledge plays the important role. As discussed above, every prudent man is having knowledge that he should not drive the vehicle under the influence of alcohol or without having licence. Every prudent man is having knowledge about the consequences of breach of the above duty. The accused is also resident of same vicinity wherein the spot of incident is located. The accused used to pass from nearby the spot of incident. So the accused was having knowledge that people used to sleep in front of American Express Cleaners. The Hon’ble Apex Court also held in the land mark judgment of Alister Anthony Pareira V/s. State of Maharashtra that in Mumbai, people do sleep on the pavements.
2 Ld. Advocate Mr. Shivade relied on the case of Willie (William) Slaney V/s. State of Madhya Pradesh (AIR 1956 SC 116). In the said case, it is held as under:¬
“12. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well¬established notions of natural justice that a trial or that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.”
95. It is most important to note here that the evidence of Ravindra Patil would be the same as to the facts of the incident which he has stated and therefore, no prejudice would be caused to the accused when the evidence of Ravindra Patil is relevant, taken on record u/s 33 of Indian Evidence Act. It is presumed that every person has knowledge that one should not drive the vehicle under influence of liquor and also without licence. So under such circumstances, the arguments of Mr. Shivade that the accused was prejudiced for want of cross¬examination of Patil in view of framing charge u/s Sec.304¬II of the IPC cannot be accepted. The accused had cross¬examined exhaustively and substantially Ravindra Patil before the Additional Chief Metropolitan Magistrate and also suggested him that the accused was not driving the vehicle under the influence of liquor. Omissions and improvements are also brought during cross¬examination. What would be the effect of omissions and improvements is another aspect. But in my opinion, the evidence of Ravindra Patil is complete evidence. The facts deposed by him would not be changed, even the charge u/s.304¬II of the IPC is framed. Moreover, ld. Advocate Mr. Shivade also contended that the entire prosecution u/s.304¬II of the IPC revolves around the intention and knowledge of the accused. I am also afraid to accept the said contention on the ground that u/s.304¬II of the IPC, the question of intention does not arise. So after considering all the submissions of ld. SPP Mr. Gharat and ld. Advocate Mr. Shivade, after considering the provisions of Sec.33 of the Indian Evidence Act and also having regard to the nature of the facts pertaining to the incident stated by complainant Ravindra Patil and also the opportunity availed by the defence fully to cross¬examine, I find that this is the perfect case wherein evidence of Ravindra Patil would be relevant and admissible u/s.33 of the Indian Evidence Act in case in hand.