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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C) The most important and crucial point to be ascertained is that whether the accused was driving the car on the intervening night of 27.09.2002 and 28.09.2002.
1 The ld. Advocate Mr. Shivade vehemently submitted that Ravindra Patil being a sole eye witness to the incident, his evidence should be scrutinized with great care and caution. Moreover the evidence of Patil is also to be analysed and appreciated whether it does inspires confidence.
97. The ld. Advocate Mr. Shivade relied on the case of Vadivelu Thevar V/s. State of Madras (AIR 1957 SC 614), wherein it is held that,
“Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
2 The ld. Advocate Mr. Shivade also relied on the case of
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.”
Birappa & Anr. V/s. State of Karnataka [(2010) 12 SCC 182]
wherein it is held as under:¬
“Witnesses¬¬¬¬¬Solitary eyewitness¬¬¬Appreciation of testimony of ¬¬¬Held, where prosecution story rests on single eyewitness, such witness must inspire full confidence, which was not the case herein, where conduct of sole eyewitness was unnatural¬Conviction reversed.
The conduct of PW 1 was clearly unnatural which makes his evidence extremely suspicious. As per the prosecution story he had seen his brother being cut up at about 6.00 p.m. at a place half a kilometre away from the village near a temple and in an area which was heavily populated (as Konnur was a large village) and he had rushed home at 6.00 p.m. and then returned at
8.00 p.m. to look for his brother. PW 1 in his evidence did not utter a single word as to the places he had visited while in search or the inquires he had made from the neighbourhood which had a chemist shop, a tea shop, a liquor vend and several residential houses in the fields along a very busy road. Thus, PW 1 was perhaps not an eyewitness and he had lodged the FIR only after the dead body had been discovered. This perhaps explains the delay in the lodging of the FIR.”
99. The ld. SPP Mr. Gharat would submit that the evidence of Ravindra Patil is totally trustworthy, credible and believable and cannot be discarded in proof that the accused was driving the vehicle at the time of incident. Further the ld. SPP also submits that it is the specific and pointed defence of the accused that DW¬1 Ashok Singh was driving the vehicle.
1 The ld. Advocate Mr. Shivade relied on the reported judgment of the Hon’ble Apex Court in case of State of Haryana v/s. Ram Singh in Criminal Appeal No.78 of 1999 with Rai Sahab and Another Vs. State of Haryana in Criminal Appeal No.79 of 1999 [(2002) 2 Supreme Court Cases 426. Relying on the said authority, ld. Advocate Mr. Shivade submitted that the evidence tendered by the defence witnesses cannot always be termed to be tainted one. The defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witness on a par with that of prosecution.
2 So as stated above, let us appreciate the evidence adduced by the prosecution to demonstrate that it was the accused who was driving the vehicle and also let us appreciate the evidence of DW¬1 Ashok Singh that he was driving the vehicle in order to come to the conclusion who either of two was driving the vehicle.
3 The evidence of Ravindra Patil is now taken on record in this case being relevant u/s.33 of the Indian Evidence Act. As per his version, he was the bodyguard working with the accused from 28.08.2002. He used to remain along with the accused as a part of the duty. On 27.09.2002 complainant Ravindra Patil joined the duty at 08.00 p.m. As per his version at about 09.30 p.m. on 27.09.2002 accused and Kamal Khan came out side the residence. They told complainant Ravindra Patil that they are going to visit Rain Bar. The accused is having Toyota Land Cruiser car bearing no.MH¬02¬DA¬32. Complainant Patil, Kamal Khan sat in the car and the accused drove the car. The accused reached at Rain Bar. The accused asked Ravindra Patil to wait out side and the accused and Kamal Khan went inside the Hotel. The visit of Rain Bar is admitted by the accused u/s.313 of the Cr. P.C., but he denied that he was driving the vehicle.
1 The bodyguard of Mr. Sohel Khan (PW¬6 Balu Laxman) also met complainant Ravindra Patil out side the hotel. Sohel Khan had also come in Hotel Rain Bar. At about 01.30 a.m. accused and Kamal came out side Rain Hotel.
2 The evidence further reveals that Kamal sat on rear side, the accused sat on the driver’s seat and complainant sat on the seat near the driver’s seat. The car reached near J.W. Mariot Hotel. The accused and Kamal Khan went inside the Hotel. Complainant Patil waited out side. At about 02.15 a.m. the accused and Kamal Khan came out side the hotel. The accused then sat on the steering of his car. The complainant sat near the driver’s seat. The complainant asked the accused whether he will drive the car. The accused neglected complainant Patil. Kamal was sitting at the rear side of driver seat. The vehicle came on the St. Andrews Road which was driven by the accused. Complainant Patil stated in his evidence that the accused was drunk and driving the motor car at 90 to 100 km per hour. Before coming at the junction of Hill Road, complainant told the accused to lower the speed in view of the right turn ahead. The accused neglected the say of complainant and he could not control the car while taking right turn and vehicle went on the footpath. The people were sleeping on the foot path. The motor car ran over the persons sleeping on the footpath and climbed the three steps of American Laundry and gave dash to the shutter of American Express shop (Laundry). The motor car broke the shutter and went inside about 3 and ½ ft.
1 There was shouting of the people and the people gathered there. The people surrounded the car. However, with great difficulty, complainant, accused and Kamal went out of the car. People were in angry mood. The complainant Patil showed his identity card and told that he is police personnel, therefore, they were pacified. The accused Salman and Kamal ran away.
2 Complainant Patil went to the motor car and saw below it and noticed one person seriously injured having multiple injuries and four injured persons below the car who were trying to come out.
3 Complainant Patil then informed to the Control Room. Within 5 minutes, Bandra police came there. Police rescued the injured persons and body of the dead person was sent to Bhabha hospital. The injured were taken to the hospital. Complainant Patil pointed out the place to the police.
4 Complainant Patil went to Bandra Police Station and lodged the complaint. FIR is at Exh.P¬1. According to complainant Patil, the accused was in drunken state and could not control the speed while taking turn. Further supplementary statement of Patil was recorded on 01.10.2002.
1 So if the evidence of Patil is looked into, he has deposed that the vehicle was driven by the accused. In cross¬examination of ld. Advocate Shri Sampat Mehta, complainant Patil admitted that the injured were below the car and the police rescued them from beneath the car and sent to the hospital. Complainant Patil also stated that the dead body of the person was taken out from beneath the car and was sent to the hospital. The police also drew the panchanama of the incident place and then returned to Bandra Police Station. Complainant Patil also admitted that he went to Bandra Police Station and lodged the complaint with Yadav and Kadam (PW¬26). According to complainant, his complaint was read over to him and the contents were true and correct. It has come in the cross¬examination that the incident had taken place before about 1 hour of recording his complaint. So it appears that the complaint was lodged immediately after the incident and there was no delay.
2 Ld. Advocate Mr. Shivade relied on the case of Sucha Singh V/s. State of Punjab [(2009) 11 SCC 584] wherein it is held as under: “In FIR, informant PW 4 stating that his mother sold illicit liquor to maintain her children, while in his evidence he stating that she sold only two bottles of liquor occasionally¬¬¬¬Held, if brothers had nothing to do with sale of liquor, as rightly held by trial court, motive must be held to have not been proved ¬¬¬-Moreover, PW 5 had categorically denied that his mother sold any liquor or earned her livelihood by doing liquor work¬¬¬Further, there were significant contradictions in matter of number of injuries, time and place of occurrence, sequence of events, manner of identification of accused ¬¬¬¬There was also lack of motive and false implication of co¬accused M ¬¬¬¬PW 4 had made vital contradictions in his FIR vis¬a¬vis the supplementary statement when it was found that right hand of M was amputated and he was not in a position to inflict any injury¬¬¬Hence, impugned judgment reversing the judgment of acquittal and convicting appellant cannot be maintained.”
111. During cross¬examination, there are some omissions and improvements brought on record. PW¬1 admitted that he has not stated in FIR that the accused was in drunken state and was driving the vehicle. However, in FIR (Exh.P¬1), there is mention that the accused Salman Khan was driving the vehicle. There is also no mention in the FIR that complainant Patil asked the accused to lower the speed of the car as right turn is coming. However in supplementary statement, the said fact is mentioned. Complainant also stated that there is no mention in FIR that the accused was driving the motor car in high speed and was in drunken state and could not control the speed of the car while taking turn. However, on going through the complaint (Exh.P¬1), there is mention that the accused was driving the vehicle in high speed and he could not control the vehicle while turning on the Hill Road. The vehicle went straight towards the shop on the junction and ran over the persons sleeping on the footpath and on the stairs and rammed the shutter of American Express. It appears that the complainant did not mention in the FIR that the accused was in drunken condition. However, in supplementary statement, there is mention that complainant noticed in view of the body language of the accused that he might have consumed the alcohol.
112. Reliance is placed in 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)]. In the said case, it is observed as under:¬
“(b) Contents of FIR¬A first information is not meant to be encyclopaedic.
12. In the First Information Report all the accused persons were named and overt acts on their part were also stated at some length. Each and every detail of the incident was not necessary to be sated. A First Information Report is not meant to be encyclopaedic. While considering the effect of some omissions in the First Information Report on the part of the informant, a Court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the Court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the Court applies certain well¬known principles of caution.
13. Once, however, a First Information Report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof. If furthermore the purported entry in the general diary, which had not been produced, is not treated to be a First Information Report, only because some enquiries have been made, the same by itself would not vitiate the entire trial. Enquiries are required to be made for several reasons.; one of them is to ascertain the truth or otherwise of the incident and the second to apprehend the accused persons. Arrest of accused persons, as expeditiously as possible, leads to a better investigation. Accused No. 1 was a Sarpanch of the village. Accused no. 2 is a fair Price Shop dealer. Accused No. 3 was also admittedly a well¬known person. It is also not denied and disputed that other accuse were also related to him.
In view of the fact that such an incident had taken place, indisputably it would immediately be known to the villagers. Those who hold some respectable position in the village and particularly those who are concerned with the administration of Panchayat were expected to be present.”
1 Complainant Patil also stated in cross¬examination that the vehicle Land Cruiser did not stop from Hotel J.W. Mariot to the place of incident, once started. Further there is also omission to state in the complaint that the accused neglected the say of complainant to lower the speed. However the said fact is mentioned in supplementary statement of Patil dated 1.10.2002.
2 Complainant Patil denied that the accused was not driving the car from beginning. He also denied that the accused was neither drunk nor driven the car. He also denied that the accused was not driving the car at the speed of 90 to 100 km per hour in the incident night. He also denied that he did not tell the accused to drive the car slowly when it came near junction of St. Andrew Road and Hill Road.
3 Complainant Patil also admitted in cross¬examination that there was hue and cry in media, like T.V. press against the accused after happening the incident. He also admitted that the reporters of the newspapers and T.V. channels were taking the interviews of the persons. Complainant Patil also admitted that reporter of Mid¬Day had come to him for taking interview of the incident dated 28.09.2002 and he narrated the reporter the incident taken place. The reporter also noted down what complainant had answered him. The reporter also read over to him what they wrote. Complainant also admitted that on next day i.e. 30.09.2002 interview was printed and published in Mid¬day along with photographs. It appears that during cross¬examination the questions were asked to the complainant Patil about interview. The Ld. SPP objected defence to put questions to complainant on the alleged interview.
1 A question was asked to the complainant Patil during cross¬examination whether the complainant has stated to the reporter of Mid¬Day whether Altaf was on the wheel when Salman and Kamal returned from Rain Bar and started to Salman’s house by car. Complainant replied that he does not remember. The interview was given to Mid¬Day. Another question was asked to the complainant as to whether the complainant stated before the reporter of Mid¬day that after returning from J.W. Mariot Hotel, Salman sat on the driver’s seat of the car. Complainant replied that he has stated so.
2 Another question was asked to the complainant whether he had stated to the reporter that the accused was driving the vehicle at the speed of 70 km per hour. Complainant replied that he does not remember. Further question was asked to the complainant whether he has stated to the reporter that Land Cruiser was about to hit at the electric poll. Complainant replied that he has stated so to the reporter. The copy of the Mid¬Day is produced on record, subject to objection. The ld. SPP also objected showing the copy of the Mid¬Day newspaper to the witness, during evidence recorded in the court of Additional Chief Metropolitan, Bandra.
1 Further complainant admitted that he stated to the reporter that Salman shouted saying, “gadi nahi ghum rahi (car is not turning)” and then he lost the control of the vehicle and then he rammed to the American Express Laundry. Further complainant also admitted to have stated to the reporter that mob of 50 people gathered on the spot, started pelting the stones. Complainant also admitted to have stated to the reporter that Salman requested to public to listen but the angry mob kept throwing the stones. Complainant also admitted to have stated to the reporter of Mid¬Day that in the meanwhile, Kamal escaped in the crowd and minutes later Salman got into autorickshaw and left. So it appears that the above cross¬examination is concentrated on the so called interview by the complainant to the Mid¬day newspaper. The copy of Mid¬day newspaper dated 30.09.2002 is produced on record and marked as D¬1, subject to proving by appropriate evidence. However, the defence failed to take steps to prove the said copy by appropriate evidence, the said material cannot be considered in evidence. The reporter who had taken the alleged interview is not examined by the defence. The defence has not chosen to examine the concerned reporter and therefore, the question by the reporter to complainant and his reply becomes inadmissible in evidence.
2 The ld. SPP relied on the reported judgment of the Hon’ble Apex Court in case of Tukaram S. Dighole Vs. Manikrao Shivaji Kokate in civil appellate jurisdiction in Civil Appeal No.2829 of 2008 decided on 05.02.2010. The appeal u/s.116¬A of the representation of People Act 1951 is directed against the final judgment and order dated 25.01.2008 rendered by the High Court of Judicature at Bombay in Election Petition No.13 of 2004 preferred by appellant challenged in the election of the respondent of the Lok Sabha from 69, Sinnar Parliamentary Constituency in State of Maharashtra has been dismissed. The short question for consideration was whether the tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of the appeal by the respondent to the voters to vote on communal ground amounting to a corrupt practice within a meaning of Sec.123(3) of the Act.
1 It is observed that the petitioner has produced the cassette on record. However, the petitioner has produced no evidence to indicate that a cassette was true reproduction of the original speeches. The cassette is not a public document. No evidence to indicate that the cassette was obtained from Election Commission. The petitioner who examined himself has not adverted to this video recording in his examination¬in¬chief. The petitioner has not proved the receipt issued by the Election Commission and failed to prove that VHS cassette was the public document. That being the position, it is not possible to rely on the contents of the cassette. It is held that in the absence of any cogent evidence regarding the source and the manner of its accusation, the authenticity of the cassette was not proved and could not be read in evidence despite of the fact that the cassette is a public document.
2 In our case in hand, the reporter who had taken interview of the complainant is not examined. The Mid¬Day paper (Exh.D¬1) is not proved in accordance with law. The contents of the interview are also not proved. I find substance in the submission of ld. SPP that the question by reporter to the complainant and its reply becomes inadmissible in evidence.
1 In the present case, admittedly, the complainant Patil was working with the accused. Nothing was brought on record that the relations of the complainant with accused were spoiled. Even it is not the case that complainant would have stood benefited by implicating the accused in a false case like the promise of being promoted or increasing his salary or benefit of any other sort.
2 The complainant Patil, therefore, has to be considered as impartial witness, in absence of any suggestion to cast reasonable doubt on his evidence that he is intentionally deposing false against the accused.
3 No suggestion was given to complainant Patil in cross examination that Altaf was driving the vehicle from the house of accused upto Rain Bar and thereafter till J.W. Mariot. Even no suggestion was given to the complainant Patil that as Altaf was having giddiness he informed Ashok (DW¬1) and called Ashok to J.W. Mariot to take the accused to his house. The defence fails to put their case to the complainant Patil during cross¬examination.
4 During cross¬examination specific suggestion was given to the complainant that the accused was not driving the car “from the beginning” in the incident night. According to ld. SPP to consider the said suggestion in correct prospective, the defence has admitted that at some point of time, the accused took charge of the car driving. According to ld. SPP, the said evidence is required to be read in consonance with the question in cross¬examination. On page 7 top line, “the incident motor car did not stop from Hotel Mariot to the place of incident once started”. This in other words, means that the person who took the control of the wheels of the vehicle from J.W. Mariot hotel was driving the car till the time of the incident. According to the ld. SPP, even in defence version that Altaf was driving the car is accepted and the illogical and false evidence of DW¬1 is discarded, there does not remain any excuse to conclude that the accused was not driving the vehicle. According to the ld. SPP, the defence itself has shut the possibilities that neither Kamal Khan nor complainant was driving the vehicle at the time of accident in absence of any suggestion to any of the witnesses and on their own admission of the specific defence of driving by Ashok Singh who has proved to be self condemn liar.
126. Ld. Advocate Mr. Shivade relied on the case of Yudhishtir V/s. State of Madhya Pradesh [(1971) 3 SCC 436] wherein it is held as under:¬
“25. In fact the learned Sessions Judge has also held that the evidence of P. Ws. 1 and 6 to the effect that after coming out of the house of Bamdeo they had told the people assembled outside that all the four accused persons had killed Surajkunwar cannot be believed. Similarly the learned Sessions Judge has also held that these two witnesses cannot be believed on the point that along with Bamdeo the appellants had also actively participated in causing the death of Surajkunwar.
26. Normally on the basis of the above finding recorded by the learned Sessions Judge, on would expect the Court to hold the appellants not guilty of murder. But curiously the learned Sessions Judge proceeds on the basis that though the evidence of P. Ws. 1 and 6 itself would not be sufficient to convict the appellants, some corroboration will have to be found in other independent evidence. We are unable to appreciate this reasoning of the learned Sessions Judge. Corroboration for any evidence given by a witness may be found necessary when a Court is not inclined to reject the evidence of the witness to be false. A Court may be willing to act on the evidence of a witness but it may be of the view that the witness is an interested one and it may not be safe to act on that evidence alone. In such circumstances, in order to enable the Court to act on that evidence, it may seek corroboration from other independent evidence or circumstances. When evidence of a witness, as in this case of P. Ws. 1 and 5 has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances. If there was any other evidence implicating the appellants, it was open to the Court to consider such evidence even after rejecting as false the evidence of P.Ws. 1 and 6.”
1 According to ld. SPP Mr. Gharat, because of improvements in the version of complainant, it cannot be disbelieved that the accused was driving the vehicle at the relevant time since the complainant has no reason to falsely implicate the accused like animus or grudge. On the contrary, presence of the complainant is natural and admitted. The complainant has to accompany the accused wherever accused went for shooting, hotel party in night and day.
2 So if the evidence of complainant and cross¬examination is looked into, the evidence of complainant shows that at the time of accident, the accused was driving the vehicle cannot be discarded as false and untrustworthy and unbelievable. On the contrary, the same is fully trustworthy, credible and natural since the presence of the complainant along with accused stands justified and complainant has no animus and grudge to falsely implicate the accused in a serious offence.
3 Further through the cross¬examination it is brought on record that within 5 to 10 minutes police arrived. The dead body was removed beneath the car and panchanama was prepared. The said version corroborates the substantive evidence of panch witness PW¬1 Sambha Gauda. I find that facts cited in [(1971),3 SCC 436] are not applicable to our case in hand.
4 The prosecution also relied on the version of the injured witnesses PW¬2 Muslim Shaikh (Exh.32), PW¬3 Mannu Khan (Exh.33), PW¬4 Mohd. Kalim Iqbal Pathan (Exh.36) and PW¬11 Mohd. Abdulla Shaikh (Exh.53). Accused also admitted u/s.313 of the Cr. P.C. that in the incident, the people were injured. He also admitted that the injured were working in the bakery. In the incident, Nurulla was expired. The statements of PW¬2, PW¬3, and PW¬4 were also recorded u/s.164 of the Cr. P.C. by the ld. Magistrate (Exh.35,36 & 37). The defence also admitted postmortem report of Nurulla (Exh.20). Exh. 149 is also given to the postmortem report of Nurulla in the evidence of PW¬27 I.O]. The defence also admitted the injury certificates of Abdulla Rauf Shaikh [ (Exh. 21) (Exh. 155 given in the evidence of I.O) ], injury certificate of Mohd. Abdul Pathan [ (Exh. 22) (Exh. 151 is given to the said certificate in the evidence of the I.O) ], injury certificate of Muslim Niyamat Shaikh [ (Exh. 23) (Exh. 156 is given to the said certificate in the evidence of I.O) ]. Exh. 152 is the medical certificate of Mannubhai given in the evidence of I.O.
131. PW¬2 Muslim Shaikh sustained the grievous injury to his left leg. He was operated on his left leg and rod was inserted. PW¬3 Mannu Khan received the injury on his right leg and PW¬4 received the injury on his right side leg and on left hand. Both these witnesses were sleeping on the same bed. PW¬11 Mohd. Abdulla was sleeping on the same bed with the deceased Nurulla and he sustained fracture to his right leg. Muslim Shaikh suffered injury over his left leg. The car ran over the person of Nurulla Mehboob Shaikh and he was crushed below the tyre. Nurulla succumbed to injury on the spot after some time of the incident.
1 The ld. SPP Mr. Gharat relied on the judgment reported in the case of Bharwada Bhoginbhai Hirjibhai V/s. State of Gujarat (AIR 1983 SC 753) and the judgment reported in Boya Ganganna V/s. State of Andhra Pradesh (AIR 1976 SC 1541). The Hon’ble Supreme Court observed that “Minor contradictions are bound to be there when ignorant and illiterate women are giving evidence. Even in case of trained and educated persons memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnesses by another though both are present at the place of offence. It is not right to reject the testimony of such witnesses merely on the ground of minor contradictions.”
2 The acceptance of injury certificate in evidence goes to show that the victim suffered the injuries in the same incident and also shows the presence of witnesses at the time of the incident. What is challenged is the opportunity to see. The ld. Advocate Mr. Shivade vehemently submitted that PW¬2, 3 and 4 alleged that they saw the accused getting out from the driver’s side. It would have been impossible for any of them to have seen who was getting out from which door, as they were under the vehicle. It is contended on behalf of accused that in fact, the accused got down from the driver’s seat door being the last of four people in the car in view of the evidence of Ram Asare Pandey. According to prosecution, the car was occupied by three persons at the time of incident who were Ravindra Patil (Bodyguard of the accused), singer Kamal Khan (friend of accused) and the accused himself. It is pertinent to note that Kamal Khan was occupying the back seat in the car throughout is not challenged.
1 There is also no dispute that the injured witnesses and deceased were serving in American Bakery. As per the version of PW¬2 Muslim, at about 02.45 a.m. he alongwith Mannu, Salim and Nurulla were sleeping near American Laundry. He heard the sound and found himself beneath the car. The wheel of the car passed over his left leg. Bakery people helped the injured to remove from beneath the car. PW¬2 also deposed that people were saying that Salman Khan was got down from the car. PW¬2 was asked to sit down near the left side of the car. One person also got down from the left side of the car saying he was a police man. People then released Salman Khan. Nurulla (deceased), Abdul, Mannu Khan, Kalim were found beneath the car. PW¬2 brought to the hospital by police. His statement was also recorded by Bandra Police. PW¬2 saw accused getting down from the right side of the car.
2 Ld. Advocate Mr. Shivade relied on the case of R. Shaji V/s. State of Kerala [(2013) 14 SCC 266], wherein it is held as under:¬
- The learned Senior Counsel for the appellant has urged that statements of certain witnesses were recorded under Section 164 CrPC before the Magistrate, namely, Kalampasha (PW 61) and Dinesh M. Pillai (PW¬62). The said statements were not put on record before the trial court, and the same were not marked. Thus, the trial stood vitiated as the accused has been denied an opportunity to contradict the aforementioned statements of the witnesses, which were made under oath before the Magistrates, which though are not in the nature of substantive evidence, could well be used for the purpose of corroboration and contradiction. Denial of such opportunity is against the requisites of a fair trial.”
1 In our case, statements u/s.164 of the Cr. PC of the witnesses are on record and also accused got an opportunity to contradict the statements.
2 Ld. Advocate Mr. Shivade vehemently submitted that no reliance can be kept on the version of PW¬2 Muslim Shaikh in view of omissions and improvements. In cross¬examination PW¬2 stated that after two and half months of the incident, he had gone to Bandra Police Station and his statement was recorded there. PW¬2 also stated in cross¬examination that after one day from discharging him from hospital, he went to his native place Uttar Pradesh and returned to Mumbai on 26.04.2014 from Uttar Pradesh, after going on the next day of the discharge from the hospital. PW¬2 further stated that on 20.12.2006 he was not present in Mumbai and does not recollect whether his statement was recorded in Police Station on 20.12.2006. He again stated that his statement was not recorded on 20.12.2006. He again deposed that the fact that his statement was recorded in Police station on 20.12.2006 is correct. He admitted that he has not stated during the course of evidence that he had not seen anybody getting down from the car. Exh.35 is the certified copy of the statement of PW¬2 recorded on 20.12.2006 in the Court of Metropolitan Magistrate. He contradicted portion marked “A” in his statement dated 20.12.2006. There is no mention in the statement recorded on 20.12.2006 that Salman has got down from the car. Further there is no mention in the statement dated 20.12.2006 that people caught Salman and at that time, one person got down from the car and told that he is police and therefore, people released Salman. PW¬2 also admitted that within a span of 5 to 10 minutes injured reached in Bhabha Hospital. He denied that he was told that he would get enough compensation, therefore, he was asked to tell the name of Salman. So there appears to be improvement made by the witness in the evidence. The ld. SPP Gharat also did not rely much on the version of PW¬2. However, it is a fact that PW¬2 is a rustic witness and he was injured in the incident. His medical certificate is also admitted by the defence.
- The prosecution also relied heavily on the evidence of PW¬3 Mannu Khan (Exh.33). He also deposed that he along with other injured witnesses and deceased were sleeping near American Laundry. According to him, he was sleeping on Ota (Platform). Suddenly he heard big noise and found himself beneath the car. The car was on his person. Kalim, Muslim, Abdulla and Nurulla found beneath the car. The injured were crying. Many people came there and bakery people rescued PW¬3 beneath the car. After some time, people gathered on the spot and saying accused came from the car.
1 According to PW¬3 Mannu Khan, the car was white in colour and there were three persons sitting in the car. The accused got down from the driver’s seat. One bodyguard was also got down from the car. Third person also got down from the back portion of the car. The evidence of PW¬3 also reveals that bakery people caught Salman on the road. Salman was so drunk that he fell down. He stood but again fell down and again he stood and ran away from the spot.
2 PW¬3 Mannu was also brought in the hospital and discharged after some time. Abdulla and Muslim were admitted in the hospital. His statement was recorded in police station as well as u/s.164 of the Cr. P.C. before Bandra Metropolitan Magistrate. Exh.34 is the statement recorded before Metropolitan Magistrate and it bears his signature.
3 In cross¬examination PW¬3 Mannu stated that after 2 – 4 days of the incident, his statement was recorded. He is unable to tell length of the ota (platform) and according to him, two people can easily accommodate on ota. PW¬3 further deposed that the American Bakery was also having ota (platform). He stated that one cannot sleep on the stairs. He is unable to tell whether the road passing in front of the bakery is St. Andrews Road. However, he admitted that Holy Family Hospital located on Hill Road at the right side in front of the bakery and at the distance of 200 ft. away from the bakery.
4 PW¬3 Mannu then stated in cross¬examination about recording of his statement u/s.164 pf the Cr. P.C. According to him, the police have shown the statement to Bandra Court and stated that it is the statement of PW¬3. According to PW¬3, after perusing the statement, the Magistrate asked PW¬3 the questions. PW¬3 told to the Magistrate as per statement and thereafter his signature was taken on the statement.
1 PW¬3 Mannu Khan remained on the spot for a period of one hour after the incident. Within 10 – 15 minutes police arrived on the spot after the accident. According to PW¬3 Mannu, his head was towards American Bakery and his legs were towards the Dairy when he was lying. Similar is the position of Kalim. According to him, he woke up after hearing the noise and started feeling paid in his body. The front right side of the car was resting on the ota and left side was resting in between stairs of American Laundry and Bakery. The right leg of PW¬3 was stuck on the front right wheel of the car. According to PW¬3, he could not move from the place till the car was lifted. The same was the position of Kalim. The right foot of PW¬3 was stuck under the wheel. PW¬3 was removed first than Kalim. PW¬3 further stated that back side of the car was resting on the footpath which was in level with the road. As back tyres of the car were resting on the road, this evidence strikes of the defence that the doors of the car were so stuck and jammed with the shutter that the same could not be opened to come out.
2 According to PW¬3 Mannu, the car was lifted by holding the bumper at the time of removing PW¬3 and he could remove the leg. PW¬3 further stated that police also called the crane in order to remove the car. Within 15 minutes of the incident, crane was arrived on the spot. Nurulla was removed from beneath the car after removing the car by crane. The car was lifted with the aid of crane and 15 minutes time required to remove the car by crane.
145. So if the evidence of PW¬3 Mannu is looked into, it can be said that PW¬3 was rescued from beneath the car before arrival of the crane. According to him, after 15 minutes of the incident, Salman came out of the car. There is omission in the statement before police on the part by PW¬3 to the effect that bakery people caught Salman. The said fact is also not mentioned in the statement recorded u/s.164 of the Cr.
P.C. Pw¬3 did not state before police that Salman was drunk and he fell down and again stood up. The said fact is also not mentioned in the statement recorded u/s.164 of the Cr. P.C. PW¬3 also unable to tell about the position of front left door of the car with reference to the shutter of the Laundry. He is also unable to say at what distance the front tyre and back tyre were located from the shutter. PW¬3 had not seen the stone pelting on the car. PW¬3 stated in cross¬examination that after running away from the spot by Salman, the car was removed by the crane.
146. PW¬3 Mannu had not seen the bodyguard earlier and he admitted that the police told him at the time of recording his statement that bodyguard was present in the car and therefore, he thought that whatever police have told must be correct. There is also omission on the part of PW¬3 to state in the statement before the Magistrate that third person got down from the back side of the car and also the said fact does not find place in the police statement. In cross¬examination PW¬3 stated that third person got down from the back side of the car by left side.
1 PW¬3 Mannu admitted that due to incident, he was unable to think, shocked and confused. After 3¬4 hours of treatment, he again came to the spot. He denied that on the say of police, he is stating that Salman got down from the driver side. Though there are some omissions brought in the evidence of PW-3, in my opinion, that will not affect his evidence. We have to read whole evidence of PW¬3.
2 PW¬4 Mohd. Kalim Iqbal Pathan is also examined by the prosecution. He also deposed that he was sleeping in front of American Laundry. Mannu Khan was also sleeping near him. PW¬4 heard a big noise and he noticed that one vehicle was over his person. He sustained injury on his right side leg and on his left hand. The other injured and deceased Nurulla were found beneath the car. Bakery people helped to remove injured from beneath the car. PW¬4 also stated in cross¬examination that the accused got down from the right side of the car. Many people were telling Salman get down from the car, thereby Salman got down from the car and ran away from the spot. Salman Khan ran away from the spot after seeing the crowd. One police bodyguard was also present in the car and he was Patil. Statement of PW¬4 was also recorded in Bandra Court u/s.164 of the Cr. P.C. (Exh.37). PW¬4 also stated that the accused is the same person who got down from the right side of the car.
1 PW¬3 Mannu and PW¬4 Mohd. Kalim have deposed that they were made to sit near laundry after the accident. The defence has brought on record in cross¬examination that the back tyres of the car were resting on the road i.e. at the end of the stairs. This evidence strikes of defence that doors of the car were so stuck and jammed with the shutter that the same could not be opened to come out. PW¬4 also pleads ignorance about the number of the persons occupying the car.
2 PW¬4 Mohd. Kalim also stated in cross¬examination that after 4¬5 days of the incident, police recorded his statement. PW¬4 also stated that the news of the incident was published in the newspapers on the next day of the incident. PW¬4 stated that the police had shown him the statement. PW¬4 stated that he cannot say what had written in the statement but admitted that he thought, whatever written by the police was true. He is unable to tell when he was called in Bandra Court to record the statement u/s.164 of the Cr. P.C. PW¬4 admitted that the police told him that the statement is to be recorded in Bandra Court like a statement recorded in police station. He does not know what was written in the statement before the Magistrate, but he signed out the statement because of police and the Magistrate. He admitted in cross-examination that he was sleeping on ota (platform of American Laundry).
3 PW¬4 Mohd. Kalim also stated in cross¬examination that he heard the big noise and he was not knowing what had happened. His left hand was stuck on the bumper of vehicle. Bakery man helped PW¬4 to get away from beneath the car. Bumper was not separated from the car. After 10 – 15 minutes PW¬4 was succeeded to get away from beneath the car. He stated that he was under the shock due to the accident. First Mannu was rescued thereafter PW¬4 was rescued. Car was at the distance of 5 to 7 ft away from the place where PW¬4 was sleeping. According to PW¬4, people did not lift the car. After arrival of crane, the car was lifted. He stated that back tyre of the car was burst. He is unable to tell whether portion marked “A” was stated before the Magistrate while recording the statement. He cannot say whether the bakery people pushed the car. The incident of removing the car by crane was done after 15 minutes of the incident.
1 PW¬4 Mohd. Kalim further stated in cross¬examination that he had not seen bodyguard of Salman prior to the incident. People were telling that bodyguard of Salman. Bodyguard was present on the spot after the incident for about 15 minutes and then he left the spot and did not return till the time PW¬4 was present. PW¬4 stated that the road was extended upto the stairs.
2 It has come in the cross¬examination that PW¬4 Mohd. Kalim had seen both the tyres of the vehicle resting on the stairs upto the shutter. The vehicle went to the shutter and the shutter was bent. Both the corners of the bumper touched the shutter. Back tyres of the vehicle were resting at the end of the stairs. This evidence strikes of the defence that the doors of the car were so stuck or jammed with the shutter that the same could not be opened to come out. PW¬4 also had not seen who were sitting on the car. After 10 minutes of the incident, Salman got down from the car. The witness has denied the suggestion, two persons in addition to Salman ran away from the spot. The second person ran away after Salman. Salman Khan remained on the spot for 5 to 10 minutes period. PW¬4 cannot say whether two persons ran away from the car. He cannot say portion marked A¬1 stated before the Magistrate by him. He cannot say why portion marked “A” was written in the statement u/s.164 of the Cr. P.C. He also cannot say whether portion marked “A” was correctly recorded in examination¬in¬chief before the Metropolitan Magistrate.
1 PW¬4 Mohd. Kalim denied the suggestion that he had not seen Salman Khan getting down from the right side portion of the car. He also denied that police tutored him to state against the accused in order to claim more compensation.
2 So the evidence of PW¬3 Mannu Khan finds corroboration through PW¬4 Mohd. Kalim on the material particulars about sustaining injuries in the accident and saw accused Salman Khan getting down from the right side portion of the car (driver side).
3 PW¬11 Mohd. Abdulla Shaikh is also injured in the incident and according to him, he along with other injured witnesses were sleeping near American Laundry. Nurulla (deceased) was also sleeping along with him. He also deposed that at about 02.30 a.m. suddenly some heavy object was passed from his leg and his right leg was fractured. Kalim, Mannu and Nurulla sustained injuries in the incident. The injured cried for help, thereby bakery men, taxi driver rescued the injured by removing from beneath the car. PW¬11 was also rescued by Bakery men, taxi driver from beneath the car.
1 The evidence of PW¬11 Mohd. Abdulla Shaikh further reveals that bakery man and taxi driver were telling that the accident was caused by Salman Khan. PW¬11 had seen Salman Khan after he was rescued. Two persons were also with him, but he does not know who were they. According to him, Nurulla was also with him in Bhabha Hospital and he was also crying in pain
2 In cross¬examination PW¬11 Mohd. Abdulla Shaikh stated that in the incident he and Nurulla were entangled in the car. After accident, because of driving, PW¬11 found himself and Nurulla at the short distance from the place where they were sleeping. PW¬11 also stated that after the accident, sleeping position of the persons was shifted. Salman Khan was standing there, prior to leaving the spot by PW¬11 to the hospital. PW¬11 was lying for a period of 10 to 15 minutes beneath the car. He does not know how car was lifted. Till the car was lifted, PW¬11 and Nurulla were crying for help. After half an hour of the accident, PW¬11 was brought in Bhabha Hospital. There is omission on the part of PW¬11 to state in the statement before the police that the bakery man and taxi driver were saying that the accident was caused by Salman Khan. The said fact is not mentioned in his statement.
3 If the evidence of PW¬11 Mohd. Abdulla Shaikh is looked into, he has specifically deposed that two persons were with Salman. No suggestion was given by the defence about the four persons travelling by the car. PW¬11 also sustained the grievous hurt to his right leg. So if the evidence of PW¬3 Mannu Khan and PW¬4 Mohd. Kalim is looked into, they were rescued from beneath the car prior to arrival of the crane and they were conscious. They sustained minor injuries. It has come in the evidence of PW¬3 that there were three persons in the car and the accused got down from the driver’s side. So also PW¬4 corroborated the evidence of PW¬3 that accused getting down from the right side of the car and many people were asking accused to get down from the car. Though PW¬4 did not know whether the car climbed the stairs, however, it is a matter of common sense that unless the car climbs the stairs, how it would run over the injured sleeping on the otla (platform) near the shutter and would ram into the shutter.
160. In cross¬examination complainant Patil admitted that left side of the incident motor car was pressed and there was no condition of the incident motor car to open the left side doors. Complainant Patil also stated in his examination in chief that after accident with great difficulty “we went out of the motor car”. No specific details are given how complainant came out from the car. However, in view of the cross-examination of PW¬3 and PW¬4, it is brought on record that the back tyres of the car were resting at the end of the stairs i.e. on the road. This evidence strikes of the defence that the doors of the car were stuck and jammed and the same could not be opened to come out. Salman Khan also stated in statement recorded u/s.313 of the Cr. P.C. that he did get down from the driver side of the car. He also stated in the written statement filed u/s.313 of the Cr. P.C. that as left front side door was jammed, he crossed over to the driver seat from the front left seat where he had been sitting and got out from the driver’s door. So it is established that Salman Khan got down from the right side door i.e. from the driver’s door.
1 There is also evidence of PW¬13 Amin Kasam Shaikh. He also knew the injured. He also used to sleep near A¬1 Bakery. He heard big noise as about 2.30 am. He went towards the direction of American Laundry. He saw one vehicle went in American Bakery. He saw Muslim and Abdul were found beneath the car. He removed Muslim from beneath the car. He called rickshaw and Muslim was made to sit in the rickshaw. Kalim Mohd. and Mannu Khan were the other injured. There is also omission on his part to state in the statement that he called rickshaw which was standing near the joint of Andrews Road and Hill Road. He also deposed that people were telling Salman “Come out from the car”. His evidence corroborates evidence of other injured persons about sustaining the injuries by them.
2 PW¬8 Ram Asare Pandey was running a Dairy at the time of the incident on Hill Road, Bandra (W.). On 27.09.2002, at about 10.30 p.m. he closed the dairy. At about 02.45 a.m. he heard the big noise and he saw people were crying “Mar gaye Mar Gaye”. People were running from A¬1 Bakery towards American Laundry. PW¬8 also went there and saw white colour car rammed the shutter of American Express Laundry. One person was found dead and four persons were injured. According to him, the injured were working in the bakery. He saw accused getting down from the right front side of the car. One police person was present in the car who told his name as ‘Patil’. Police came on the spot and sent the injured persons to Bhabha Hospital. PW¬8 stated that two persons were present in the car in addition to Salman Khan and police constable Patil, but he does not know who were those persons.
1 In cross¬examination PW¬8 Ram Pandey stated that his statement was recorded after 4 – 5 days of the incident. He also admitted that the Tar Road was touching to the first stair of American Bakery and American Laundry. According to PW¬8, within half minute time, one can reach from his dairy to American Bakery. He saw 50 to 60 people gathered there standing around the car. The people who were below the car were crying for help. He also admitted that left front door of the car was so touched to American Bakery, it could not be opened and it was jammed with the shutter. People were trying to pull the car and people were succeeded to open the right front side of the door. People who gathered on the spot were angry in mood and pelted stones on the car.
2 In cross¬examination PW¬8 Ram Pandey also stated that when Salman got down from the car, he saw the car and Patil was standing out side the car near the driving side. Prior to Salman getting down, Patil was standing near the car. Francis who stays in his building was also present on the spot. Francis helped Salman to leave the spot. PW¬8 further stated that he does not know where two people sitting in the car, besides Salman and police constable Patil had gone.
3 As per the prosecution story, there were only three persons i.e. Salman Khan, Patil and Kamal Khan while travelling in the car. If according to ld. Advocate Mr. Shivade that fourth person would be the driver, then the driver would not be sitting in the car. If really the driver was there, he would have standing out side the car. Even defence never suggested PW¬8 to the effect that the fourth person was the driver in the car or the vehicle was driven by Ashok Singh.
1 It is pertinent to note that PW¬7 Francis is an important independent witness. Both prosecution as well as defence relied on his evidence. In cross¬examination it has come on record for a period of half an hour, PW¬7 remained on the spot. He also knew the people who were present on the spot. That during half an hour period of remaining on the spot, PW¬7 did not see Ram Pandey on the spot. He stated specifically in the cross¬examination that during half an hour period he did not see Ram Pandey on the spot. So fact that, PW¬8 Ram Asare Pandey visited the spot and if really he had seen four persons sitting in the car including Salman and his bodyguard raises a doubt.
2 There is also evidence of PW¬9 Rizwan Rakhangi. He was the Manager of Rain Bar & Restaurant. He has deposed about the visit of accused, Sohel Khan to Rain Bar. After returning Salman Khan from Rain Bar, he accompanied Salman Khan and Sohel Khan. In cross¬examination he saw four persons including Salman sitting in the car.
3 It is pertinent to note that from Rain Bar and Restaurant Salman Khan visited J.W. Mariot. No suggestion was given to the said witness as to whether Altaf was driving the car. It is the case of the accused that Altaf drove the car from his house upto J.W. Mariot via Rain Bar Restaurant. At J.W. Mariot, Altaf felt giddiness thereby he called Ashok to take Salman to the house. So who was the fourth person other than bodyguard Patil, Salman Khan and Kamal Khan sitting in the car. If according to defence the fourth person was Altaf, then it ought to have been suggested to the witnesses, but that is not done. Even complainant Patil never stated in his evidence that Altaf was driving the vehicle upto J.W. Mariot from the house. Even there was no suggestion given to Ravindra Patil on behalf of the defence. It has come on record only when accused u/s.313 of the Cr. P.C. stated about Altaf.
1 There is also evidence of PW¬6 Balu Laxman Muthe. He was bodyguard of Sohel Khan and was on night duty on 27.09.2002. According to him, at about 10.30 p.m. Sohel Khan started to go to Rain Bar by car. PW¬6 Balu was with him. Sohel Khan went inside the bar. PW¬6 was asked to stand outside the restaurant. After sometime, Salman Khan and his friend also came with bodyguard. The name of friend was Kamal Khan. Salman Khan entered in the restaurant and PW¬6 and Ravindra Patil were chitchatting out side the restaurant. At about 01.45 a.m. Salman Khan and Sohel Khan came out. Kamal Khan and Vikram Phadnis also came out. Sohel Khan, Vikram Phadnis and PW¬6 returned to Galaxy Apartment at about 02.00 a.m.
2 PW¬6 Balu Muthe admitted in cross¬examination that after 15 minutes of entering Sohel Khan in the restaurant, Salman Khan arrived near Rain Bar. PW¬6 was standing near the gate of restaurant. PW¬6 stated that he had not seen the car of Salman Khan near the restaurant.
1 If really Altaf drove the vehicle by taking Salman at Rain Bar, then PW¬6 Balu would have noticed the said fact or would have stated about Altaf in his evidence. Defence never suggested PW¬6 Balu that vehicle was driven by Altaf upto Rain Bar Restaurant.
2 PW¬12 Kalpesh Verma was entrusted with the duty of Parking Assistant in J.W. Mariot Hotel. He used to park the owner driven car in the porch area. The parking of the owner driven car is also termed as “valet parking”. According to him, at the time of parking the owner driven car, one tag is to be delivered to the owner and another tag with the key used to remain with the hotel. At the time of leaving the hotel, the owner return the tag to the hotel and after matching the key with tag number, the vehicle used to deliver in the possession of the owner.
3 As per the version of PW¬12 Kalpesh Verma, his colleague Yogesh had parked the Land Cruiser vehicle in the valet parking. He also saw Salman coming out from the hotel. PW¬12 told his colleague Yogesh to give the key as PW¬12 was to take out the vehicle from valet parking. According to PW¬12, Land Cruiser was parked in the porch of the hotel. PW¬12 then took the vehicle back in reverse position. Salman came and sat on the driver’s seat. Two persons were with Salman Khan. One was Kamal Khan. Third person was the bodyguard of Salman Khan. Kamal Khat sat on the back seat of the driver’s seat. According to PW¬12, when he handed over the car to Salman, he saw bodyguard (Patil) was standing near the driver side door. When PW¬12 tried to close the door, Salman asked how many colleagues of PW¬12 were there. PW¬12 replied that 4 – 5 colleagues of him were there. Salman took Rs.500/¬from Kamal and gave PW¬12 by way of tip. PW¬12 then closed the driver side door and then left the place for keeping the money in a box available in the desk in porch area. When PW¬12 returned to the hotel, he did not see the car.
1 If the above evidence is looked into, then it was quite natural that bodyguard Patil was standing near the driver side door. When Salman sat on the driver’s seat. Patil being bodyguard was entrusted the duty of security of Salman Khan. Therefore, he was standing near the driver side door. Further when the key was given by Salman Khan, it is presumed that Salman Khan started to leave the place. Tip is to be given at the time when one leaves the place. PW¬12 nowhere stated about the presence of fourth person.
2 In cross¬examination PW¬12 Kalpesh Verma admitted that there is cabin existing on the left side of porch. One security guard is deployed on the cabin. The keys having tags available in cabin. Entrance door is double door and 15 to 20 ft. in width. One has to enter from the entrance gate and for leaving hotel, exist door is provided. There is also a door available on the left side of the entrance gate for taking luggage, articles in the hotel. PW¬12 also stated in cross¬examination that in the lobby of the porch, four pillars are existing and there may be distance of 100 ft. between two pillars existing in post lobby. The vehicles are not allowed to park in front of the entrance lobby.
1 According to PW¬12 Kalpesh Verma, one can reach parking slot from the key cabin within one or two minutes. He also admitted that near about 100 to 150 vehicles used to arrive in the hotel.
2 PW¬12 Kalpesh Verma also admitted that on the tag, the date is mentioned as well as time of arrival and departure is mentioned. There is also mentioned car number, name of valet driver mentioned on the tag. Valet driver used to sign the tag. At the time of handing over the car, the person who hands over the car also signs on the tag.
3 Further PW¬12 Kalpesh Verma stated in cross¬examination that during investigation, police took the tag. According to PW¬12, parking tag is the evidence regarding parking the vehicle as well as returning the vehicle at the time of leaving the hotel to the person who takes the vehicle. PW¬12 stated that in the present case, the person who parked the Land Cruised filled the parking tag and PW¬12 did not fill the tag at the time of parking. Name of Yogesh Kadam was mentioned on the tag.
4 PW¬12 Kalpesh Verma further admitted that the doors of the car used to close so that there should not be any obstacle for other cars passing near the car. The person sitting in the car is not allowed to remain open the door till the other occupants are arrived as it may cause obstruction to the other cars passing nearby. Pw¬12 also admitted that he did not see at what time and in what manner the Land Cruiser left the hotel. He stated in cross¬examination that Kamal Khan sat on the back portion of the car behind Salman Khan. Nobody sat near Kamal Khan on the left side in the back portion of the car. PW¬12 some how improved in cross¬examination that he was remembering at the time of giving statement that on which portion of the back seat Kamal Khan was sitting and he sat behind Salman Khan. PW¬12 stated that Kamal Khan sat back side of the car on left side. He denied that he is deposing false that Salman Khan was sitting on driver’s seat.
1 If entire evidence of PW¬12 Kalpesh Verma is looked into, one finds that there were only three persons i.e. Salman Khan, Kamal Khan and bodyguard Patil present in the car. Salman Khan sat on the driver’s seat. He gave Rs.500/¬tip to PW¬12 Kalpesh. The tip used to be given at the time of leaving the place. According to defence, DW¬1 Ashok came and took the charge of the vehicle. However, this fact cannot be digested because PW¬12 Kalpesh could have noticed Ashok coming in the porch near the car. Moreover, it has come in the cross¬examination that one can reach parking slot from the key cabin within one or two minutes. It is highly improbable that PW¬12 would not have noticed Ashok if really he had come at the place where car was standing. What would be the effect of non production of the parking tag and non examination of Yogesh Kadam will be discussed later on.
2 It is not the case of the accused that since beginning Altaf was at the wheel when Salman Khan started for going to Rain Bar Restaurant from his house along with complainant Patil and Kamal Khan. It is also not the specific defence since beginning of the accused that the Ashok was driving the vehicle from J.W. Mariot. It is also not the defence of the accused since the beginning that Altaf felt giddiness and informed Ashok to come to J.W. Mariot in order to reach Salman to his house. It is pertinent to note that in the evidence of PW¬8 Pandey and in cross examination of PW¬9 Rizwan, it has come on record about the presence of four persons including Salman Khan, his bodyguard and Kamal Khan. It seems that the defence then developed the theory that the fourth person must be a driver and the car was driven by him. Such inference cannot be probable and acceptable. The defence has to put his case specifically, positively since beginning which is not done in the present case. Defence cannot take the advantage of the improvements of the witnesses which is made in our case regarding four persons. It is pertinent to note that it was never suggested to any prosecution witness since beginning about Altaf driving the vehicle from the house of Salman Khan till Rain Bar Restaurant and thereafter upto J.W. Mariot. At J.W. Mariot, Ashok Singh took the charge of vehicle. So it cannot be acceptable, there was fourth person present in the car and he was a driver in the absence of positive suggestions to the witnesses.
182. Now turning to the most important twist of the case brought in the case by defence when Salman Khan examined u/s.313 of the Cr. P.C. Salman Khan stated u/s.313 of the Cr. P.C. that on 27.09.2002 at about 11.00 p.m. he went to Rain Bar on calling of his brother Sohel. Kamal, bodyguard Patil were with Salman and the car was driven by Altaf. Salman sat on the left front side next to Altaf who drove the car to Rain Bar. After spending some time in Rain Bar, Salman Khan went to J.W. Mariot Hotel at Juhu. At about 01.30 a.m. on 28.09.2002, Altaf told Salman that he was not feeling well thereby he called Ashok and Altaf would leave the car keys with the hotel valet. Valet then brought the car to the porch, but Ashok had not reached. So Salman waited for him by sitting on the driver’s seat and put on air conditioner. Patil was standing next to the car. After arrival of Ashok, Salman sat on the front left seat. Kamal continued sitting on back left sit and Ravindra Patil sat behind the driver.
183. It is pertinent to note that the fact about Altaf and Ashok driving the vehicle came on record for the first time after stating by Salman u/s.313 of the Cr. P.C. Till the statement recorded u/s.313 of the Cr. P.C. not a single suggestion was given to any of the prosecution witnesses examined so far. Even in the statement u/s.313 of the Cr.
P.C. Salman never disclosed the name of the witness to whom he wanted to examine. Then the accused examined Ashok Singh (DW¬1) in defence. DW¬1 Ashok stated in his evidence that he is working as a driver with Salim Khan, father of accused, since 1990. There were no fixed duty hours of work but whenever services are required, DW¬1 was called. Altaf and Datta were two drivers working in the year 2002.
184. DW¬1 Ashok narrated in his version that on 27.09.2002 he was sleeping in his house and he received phone call from Altaf at about
01.30 to 01.45 a.m. Altaf then informed DW¬1 that Altaf was not feeling well and he left the keys with valet parking. DW¬1 after changing his clothes, went by rickshaw to J.W. Mariot from Andheri. He went to porch of the hotel and saw Land Cruiser vehicle standing in the porch. DW¬1 saw bodyguard Patil standing outside the vehicle and he saw Salman sitting on the driver’s seat and A.C. was on. DW¬1 then sat on driver’s seat. Salman Khan went to the seat next to the driver’s seat. Ravindra Patil, bodyguard, sat behind him in the back portion of the car and fourth person was Kamal Khan sitting behind Salman Khan.
1 DW¬1 Ashok then deposed that he took the vehicle on Linking Road, on Gonsalves Road and took right turn for going to Hill Road. Vehicle came on the Hill Road and proceeded at some distance then front left tyre of the vehicle burst, thereby vehicle pulled towards the left side. Steering wheel became hard to turn up. According to DW¬1, he tried to apply the breaks, but by then the vehicle had climbed the stairs of the Laundry. The vehicle then stopped.
2 DW¬1 Ashok Singh further deposed that he got down from the driver’s side. Salman tried to open the door at the left side, but the left door was jammed. There were people beneath the car who were shouting. Salman also got down from the car from driver’s side. PW¬1 and Salman tried to lift the car to rescue the people found beneath the car, but car did not move. Salman also told DW¬1 to inform police. In the meantime public gave pull and push to DW¬1 and also Ravindra Patil who got down from the car. DW¬1 then proceeded to Bandra Police Station but it was told that police had already left the spot. DW¬1 narrated the incident to police station. DW¬1 was asked to sit in the police station. At about 10.30 am on 28.9.2002 Salman came to the police station and DW¬1 informed that police did not entertain his complaint. Police then took Salman outside by arresting him and Salman returned to police station at about 4.30 pm.
1 DW¬1 Ashok Singh is cross examined at length by Ld. SPP Shri Gharat. DW¬1 stated that the Land Cruiser Vehicle is a model land Cruiser laxis and engine is V¬8. The vehicle has power steering, power brakes, power windows, ABS brake system etc. The said vehicle is also called as SUV (Sport utility vehicle). DW¬1 admitted that the said vehicle is bigger than other Sport Utility Vehicle. The tyres of the Land Cruiser were radial and were having a large width in size. The said vehicle is a strong vehicle and also runs on the road like muddy and marshy places, on stones and uneven surface. The shock absorbing system of the Land Cruiser was very good. There was indicator panel facility provided in the vehicle. DW¬1 also admitted that if the engine oil, coolant and brake oil are found decreasing, then the said fact is indicated on the panel. He also admitted that if anything found wrong hand brake, timing brake, wrong in the brakes, the said fact is indicated on the panel indicator.
2 DW¬1 Ashok also admitted that Salman Khan used to provide help to the needy persons including staff members. DW¬1 also admitted that he was devoted to Salman Khan.
3 DW¬1 Ashok also admitted that he was knowing if he committed wrong then he has to visit police station. DW¬1 also knew that if the case is filed then witnesses are to be deposed in the Court and the Court then pronounce the verdict. DW¬1 stated that he came to know later on that one person lost his life and four persons were injured in the accident. DW¬1 admitted that he came to know about the said fact after few hours of the incident.
1 If really DW¬1 Ashok was driving the vehicle at the time of accident, then after the accident, at that very moment DW¬1 would know that one person has lost his life and four persons were injured in the accident.
2 DW¬1 Ashok also admitted that he came to know in the police station that Salman Khan was arrested by police. DW¬1 also came to know that Salman Khan was prosecuted and chargesheet was filed and Salman Khan is being tried. Salman Khan was released on bail on the same day and was again re-arrested and was detained in jail.
3 DW¬1 Ashok also admitted that he know how Salman Khan is busy and also about the time value of the Salman Khan being a leading actor.
4 DW¬1 Ashok also admitted in the cross examination that he felt bad that accident occurred when he was driving the vehicle and Salman had to attend the dates of hearing in the court. DW¬1 also admitted that Salman Khan did not tell him to keep mum and he will face the prosecution.
5 DW¬1 Ashok also admitted that he was aware that Salman khan had engaged the advocate to defend him. DW¬1 also stated that he felt that accident occurred when he was driving the vehicle, but Salman Khan had to face consequences and also his valuable time was lost. DW¬1 also admitted that he never thought to seek help from Salman Khan in the present matter.
1 Questions were also asked by Ld. SPP to the DW¬1 Ashok during his cross examination. DW¬1 stated that he was not aware what he had to seek any help from the lawyer. DW¬1 stated that he did not visit advocate or seek any help from any understandable person. DW¬1 also stated that he was always thinking that wrong was going on as DW¬1 committed the accident but he did not know what to do.
2 A question was asked to DW¬1 Ashok that since September¬2002 till recording his evidence as a defence witness, can DW¬1 assign any reason as to why DW¬1 did not come to the Court on his own to narrate the truth ? DW¬1 replied that, he was not having any understanding nor did it strike to him that he has to come in the Court. DW¬1 further deposed that Salim Khan told him to go to the Court and to tell the truth. DW¬1 also stated that has has come to the court on the say of Salim Khan.
3 DW¬1 Ashok also admitted that he watch television in the house and also read newspapers about Salman Khan.
4 Question again asked to DW¬1 Ashok “whether you have told news media that whatever was going on was wrong ?” DW¬1 answered the question “I was not having understanding and also I am not aware about it, therefore I did not tell news media. Then questions were asked during cross examination to the witness at to what precautions driver should take. DW¬1 stated that he used to drive vehicle as per the situation on the road and traffic. He also admitted that whenever he reaches near T Junction he has to release the accelerator in order to lower the speed of the vehicle. While approaching the junction, DW¬1 had to apply the brakes to reduce the speed while taking the turn. If the vehicle is in speed, then DW¬1 have to release the accelerator to reduce the speed. Further DW¬1 has to look towards the right direction and also from the left side about incoming vehicles and after verifying he have to take the right turn. DW¬1 stated that at that moment generally the vehicle would have maintain the speed at about 20¬30 km per hour.
1 DW¬1 Ashok also admitted that the road till the spot of incident is a tar road and smooth to drive the car. The tyres of the vehicle were strong. The tyre may get burst if comes in contact with the pointed object or with sharp edge. DW¬1 stated that he did not receive any signal on the panel indicator before the incident. DW¬1 then asked after arrival in J. W. Mariot, DW¬1 asked Salman whether to take vehicle to his house. Salman did not tell him that he was in hurry to go some place. According to DW¬1 within one or two minutes he reached near the car from the gate and he was not attentive to see whether any person is passing from near him through the ingate of the hotel.
2 DW¬1 Ashok also stated that there was a security cabin near the gate and there were entry gate and exit gate to the hotel.
3 Though DW¬1 Ashok was not attentive to see any person passing from near him through the ingate of the hotel, however if really he had visited the J. W. Mariot then DW¬1 could have noticed by PW-12 Kalpesh. DW¬1 also stated that in the porch area the driver may wait for one and two minutes in a car and can open the door if another vehicle does not come.
1 Further DW¬1 Ashok Singh also stated in the cross examination that in the incident he was hearing the shout from the people beneath the car. According to him nobody was found near the front tyre of the car and under the tyre. DW¬1 was not present at at time of removing injured from beneath the car. He went away from the spot prior to Salman.
2 Further DW¬1 Ashok also stated that after the incident people gave pull and push to him and to Ravindra Patil and pull and push was not given to Kamal and Salman Khan. Witness volunteers that there were speed breakers on St. Anderws Road and there was only one speed breaker near Holly Family Hospital.
3 DW¬1 Ashok also admitted that when Salman came to the police station at about 10.30 am at that time media persons and crowd were standing in front of the police station. DW¬1 also replied to the question asked by SPP Shri Gharat that he did not tell the media persons or mob standing in front o the police station as he as in police station and also he cannot say something against the police.
4 DW¬1 Ashok also stated that he was not having understanding or knowledge to tell media or people that police did not listen him. AT about 4.30 pm when he left the police station and after Salman Khan was bailed out he was with Salman Khan. DW¬1 also replied to the question that there was no fear in his mind when he joined Salman Khan. After joining Salman Khan, DW¬1 and Salman Khan left the police station. Media persons came running to snap the pictures. DW¬1 also replied to the question that he was not having understanding or he was not knowing to tell the media persons about what had happened.
1 DW¬1 Ashok also admitted that prior to taking the vehicle in hand, he used to check the vehicle. DW¬1 also volunteers that he used to check oil, water, tyre in order to ascertain whether there is air in the tyre or not. After switching the engine, DW¬1 used to see on the panel whether the vehicle is okay in all respects. He also admitted that whenever he starts the Land Cruiser, he used to check panel indicator. He also admitted that Salman was helpful to police. There was no reason for police to harass and trouble Salman. DW¬1 denied the suggestion that the story put forth by the defence about driving the vehicle first by Altaf and thereafter by DW¬1 is fabricated, false and after thought.
2 It is further submitted by the ld. Advocate Mr. Shivade that the accused being an actor used to busy in the shooting and it will be highly impossible that the accused could drive in the night. According to Mr. Shivade, there were Ashok, Datta and Altaf were working as drivers with the family the accused. Ld. SPP vehemently submitted that on the contrary, the lighter mood of the accused is admitted if the acceptance of fact that, on the date of accident, the accused enjoyed at Rain Bar initially and thereafter before starting for home, had visited the J.W. Mariot Hotel. According to the ld. SPP, the defence has miserably failed to establish the convincing defence that the tired person after a very busy and hectic continued day schedule, would keep late nights to enjoy in Restaurant and Hotels, then only the question as to he would have the mood to drive would arise. I find substance in the submission of ld. SPP and therefore, the submission of Mr. Shivade that it is highly improbable that the accused would drive the vehicle in the night cannot be accepted.
1 The ld. Advocate Mr. Shivade vehemently submitted that the accused has examined DW¬1 Ashok Singh at the proper time. After closure of prosecution evidence, the stage has come to record statement u/s.313 of the Cr. P.C. So according to Mr. Shivade, it cannot be called as “twist” in the case. According to Mr. Shivade, if suppose the trial concluded in the Metropolitan Magistrate Court, then in that court also after closure of the prosecution evidence, defence would have examined the witness. Further according to Mr. Shivade it is not expected to take the mike in hand to address to media that the incident had not taken place because of fault of the accused, but it was a pure accident. Further the accused was not driving the vehicle and because of the tyre burst, the alleged incident took place and for that, no one can be held at fault.
2 The ld. SPP vehemently submitted that the evidence of DW¬1 Ashok is liable to be thrown away as threshold. After more than a decade, DW¬1 came forward to state in what manner the accident took place and the accused was not at fault. According to Mr. Gharat, ld. SPP, can such evidence is probable, appealable and agreeable to the conscious of a prudent man. According to Mr.Gharat, conduct of the witness is to be seen as this witness came in the Court on the instructions of Salim Khan and not his own accord. According to Mr. Gharat, the witness has deposed that Salim Khan told him “to tell truth” and therefore, he came to the court. According to Mr. Gharat, “why the truth was not disclosed since beginning.” Further according to Mr. Gharat, DW¬1 is serving with the family of the accused and the family of the accused is fully aware that DW¬1 is the culprit and the accused, innocent son of the family, inspite was being arrested twice, kept in custody for days and thereafter making trips to the court, the services of DW¬1 were accepted and he continued to serve the family as the honest man and accused was suffering, can it be probable and appealable to the conscious of the prudent man. According to Mr. Shivade, can it be accepted that Mr. Salim Khan, father of the accused, waited with calm and quiet mind, bearing and tolerating before his eyes the sufferings to which his son was put by the ordinary driver during all this period of 12 years, till the turn of the defence witness came and the said culprit driver kept serving the family throughout entire period of more than 12 years. Can accused also tolerate such person and pulled down with him, who without any shame, continued to serve the accused throughout all these years. According to Mr. Gharat, “the thought which prompted the family to send the said driver for evidence, on the date, why was not prompted throughout these years. Even the witness was having ample opportunity to approach the Advocate at least of Salman Khan, to approach the police, if not to the police then to the court and if not to the court, then to media who was few feet away when the witness claims to have made him to sit on the bench out side of the police station till 04.30 p.m. from 03.00 a.m. after the incident. Even after accused was bailed out, the witness was with accused faced the camera of the media and press, but failed to declare that the accused was innocent and he was the culprit and kept total silence thereafter for more than 12 years is not acceptable to any prudent man with logic and the witness has proved that he is lying on oath. The ld. SPP sought prayer that notice be issued to him for showing reason as to why DW¬1 should not be prosecuted for the offence of perjury.
210. The ld. Advocate Mr. Shivade also relied on the reported judgment State of Haryana v/s. Ram Singh [(2002) 2 Supreme Court Cases 426. In this case, it is held that how the evidence of defence witness can be appreciated.
“19. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram
– no independent witness could be found in the aforesaid context – is it deliberate or is it sheer coincidence ¬this is where the relevance of the passage from Sarkar on Evidences comes on. The ingenuity devised by the prosecutor knew no bounds – can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be, more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same have been tailor¬made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully hereinbefore. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omnipresent. Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the court has to consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from the village for about 2/3 days and is murdered on 21¬1¬1992 itself. There is defence evidence on record by DW¬3 Raja Ram that Manphool was murdered on 21¬1¬1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21¬1¬192 itself and DW¬3 Raja Ram had even come to attend the condolence and it is by reason therefore Raja Ram’s evidence was not accepted. Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one – the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW¬10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself – what more is expected of the defence case : a doubt or a certainty – jurisprudentially a doubt would be enough : when such a suggestions has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet – it is the prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence – this itself is a circumstance, which cannot but be termed to be suspicious in nature.”
1 On going through the above cited case law, I find that it is rather helpful to the case of the prosecution. The Hon’ble High Court rejected the contention by fact that it was not suggested Gudram or Joluram that murder has taken place on 21.01.1992 itself and DW¬3 Rajaram had even come to condolence and it is by reason therefore, Rajaram’s evidence was not accepted. The Hon’ble Apex Court observed suggestion was there to prosecution witness, in particular PW¬10 Gholuram his father Manphool was missing for about 2 / 3 days prior to day of occurrence itself. What more is expected of the defence case, a doubt or a certainty, juries prudentially the doubt would be enough. when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence.
2 In our case in hand, no suggestion was given to the complainant Patil that Altaf was driving the vehicle from the house of Accused upto Rain Bar and thereafter to J.W.Mariot. No suggestion was given to complainant Patil that Altaf felt giddiness and he informed Ashok in the night to come to J.W. Mariot to take Salman to his house. No suggestion was given to complainant Patil that Ashok then drove the vehicle and while driving the vehicle by Ashok, the tyre burst, thereby Ashok could not control the vehicle resulting in the incident. No suggestion was given to the complainant Patil that it was a pure accident and Ashok was not at fault.
1 Further it is important to note here that the injured witnesses who were examined before me, also nowhere suggested by defence during cross¬examination that Ashok was driving the vehicle and as the tyre was burst the vehicle could not be controlled resulting in incident. No suggestion was given to the independent witness PW¬7 Francis that Ashok was driving the vehicle and the accident was occurred due to bursting of the tyre.
2 In this case, PW¬26 Kadam recorded FIR. PW¬26 Kadam and Investigating Officer PW¬27 Shengal were examined before me. No suggestion was given to PW¬26 Rajendra Kadam that accused was not driving the vehicle. It was never suggested to PW¬26 Kadam that at the time of incident, DW¬1 Ashok was driving the vehicle. It was not suggested to PW¬26 Kadam that front left side tyre was burst resulting the accident. It was never suggested to PW¬26 Kadam that initially Altaf was driving the vehicle from the house of Salman upto J.W. Mariot and as he felt giddiness, he called Ashok to J.W. Mariot.
3 It is also important to mention that the defence also never suggested to the Investigating Officer that initially Altaf was driving the vehicle from the house of accused upto J.W. Mariot Hotel on the day of incident. Thereafter Altaf called Ashok to J.W. Mriot Hotel as he felt giddiness. No suggestion was given to Investigating Officer PW¬27 that Ashok driving the vehicle. No suggestion was given to Investigating Officer that left front tyre was burst. No suggestion was given to the Investigating Officer that accused was not driving the vehicle.
1 So it appears that absolutely defence never put their case to the complainant Patil or thereafter to all the witnesses examined before me. When the accused knew that accident occurred when Ashok was driving the vehicle, then it ought have been brought on record by giving suggestion or by putting the case to the prosecution witnesses. Surprisingly, till the statement of accused u/s.313 is recorded, for the first time, after a period of 13 years, the fact is brought on record by the defence that the vehicle was in fact driven on the day of incident by DW¬1 Ashok.
2 It is important to note here that u/s.313 Salman Khan stated that he wants to examine witness in his defence, but he did not specify on what ground the witnesses are to be examined and also about his name. So after a period of 13 years, an attempt was made by defence to demonstrate that the vehicle in fact was driven by DW¬1 Ashok. The defence relied on the case of (2002) 2 SCC 426. It helps to the prosecution. Having regard to the para 19 of the said judgment, in our case also, the accused never put their case, rather never made any specific suggestions to the prosecution witnesses that earlier Altaf was driving the vehicle, thereafter Ashok was driving the vehicle and there was tyre burst.
3 In our case, where the prosecution case is partially supported by the statement of the accused i.e. accident admitted to have occurred, people were injured and on top of it, the cross¬examination of the prosecution witnesses does not establish any consistent line of the defence.
1 So having regard to the defence evidence, I am of the opinion that the said witness DW¬1 appears to be a got up witness that too after a period of 13 years. It has brought on record that Ashok was driving the vehicle. Such defence evidence cannot be accepted as it is not probable, appealable and agreeable to the conscious of common prudent man, hence, it is liable to be discarded straight way.
2 It is further argued by ld. Advocate Mr. Shivade that according to DW¬1 Ashok, the car was taken on Linking Road, then on Gonsalves Road and took the right turn for going to Hill Road. The vehicle came on the Hill Road and the vehicle proceeded at some distance at Hill Road, when front left tyre of the vehicle was burst. So according to defence, the vehicle also travelled on Gonsalves Road. It is pertinent to note that as per the complaint lodged by Ravindra Himmatrao Patil, at the time of the incident, the vehicle was coming by Andrews Road and while turning towards right side of Hill Road, the accused could not control the vehicle and went towards the American Express shop. It is pertinent to note that there is word mentioned Gonsalves Road, which is also scratched and also initial was made near scratching and the St. Andrews Road mentioned. There was no cross¬examination to the complainant Patil that the vehicle came by Gonsalves Road. Even no suggestion was given to Investigating Officer PW¬27 Shengal as well as PW¬26 Kadam who recorded FIR about Gonsalves Road. The evidence of DW¬1 is discarded from taking into consideration and therefore, the argument advanced by ld. Advocate Mr. Shivade that DW¬1 Ashok was driving the vehicle and the vehicle
was travelled on Gonsalves Road cannot be accepted. The map is also brought on record by ld. Advocate during the course of argument. As the evidence of DW¬1 Ashok is rejected from taking into consideration, the map showing the situation of the road by which DW¬1 Ashok drove the vehicle is also of no use.
221. One more circumstance is also noticed by me when I have gone through the Record and Proceeding of this case. In the Court of Metropolitan Magistrate an application Exh.26 is filed by the prosecution on 14.03.2011 that charge u/.s.304¬II of IPC be framed against the accused and the case may be committed to the Court of Sessions. The accused submitted a detailed reply Exh.28 on oath to the application for prosecution. The said reply is notarized filed on 31.03.2011. During the course of argument, attention of the ld. Advocate for the defene is drawn to para 2 of the reply. Para (2) of the reply is reproduced as under:¬
“2. The Accused submits that it is regrettable that an accident has taken place resulting in the death of one person. The alleged incident had taken place at mid¬night, when it was extremely dark and many people had gathered at the scene of the accident. Prima facie, it is amply clear that there was absence of any motive or intention to kill someone. The act as alleged is not an act of culpable homicide but an unfortunate incident, beyond the control of the accused, such as an act of God.”
1 The ld. Advocate for the defence contended that the unfortunate incident beyond the control of the accused means the accused was not driving the vehicle. It is pertinent to note that in reply nowhere it is mentioned that Ashok was driving the vehicle. According to Mr. Shivade, after closure of prosecution evidence, the accused is entitled to lead defence evidence. There is no dispute in the said proposition. However, the specifically pointed defence that Ashok was driving the vehicle and there was a tyre burst was never put to Ravindra Patil who was admittedly present in the car. When this Court examined 27 witnesses, the said specifically pointed defence about driving the vehicle by Ashok was also not put to the independent witnesses, PW¬26 who recorded FIR of Ravindra Patil and also to the Investigating Officer PW¬27 Shengal.
2 The ld. Advocate for the accused also relied on the reported judgment in case of Des Raj v/s. The State of Punjab [1971(3) Supreme Court Cases 235].
3 In this case, the appellant was charged u/s.406 of the Indian Penal Code for having committed criminal breach of trust of Rs.4,000/¬entrusted to him. It appears that Banga Urban Co¬operative Thrift and Credit Society, Banga, passed a resolution to raise a loan of Rs.4,000/¬from Nawanwsher Central Co-operative Bank, Banga. The society authorized appellant, a member of society to receive Rs.4,000/¬from the bank on the basis of promissory note executed by some members on behalf of the society. According to the Manager of the Bank, security of the society Mehngaram had accompanied the appellant when payment was made to him in the bank and also attested the signatures of the persons on the management of the co¬operative society. The resolution does not contain any instruction as to what appellant had to do with the money, but according to the President of the society, the appellant had to pay money to the Cashier Balvir Singh who would make the entry in the accounts. Balvir Singh unfortunately is dead. Notice was issued to the appellant that he had withdrawn amount of Rs.4,000/¬but the amount so received not entered in the book of the society. Reply was given by the appellant that amount was given to Mengaram, Secretary of the society and he did not know as to whether the entry was taken into the account. According to the appellant money was paid to the Secretary Mengaram in the presence of Sarwanram, Piara Singh and Satlam Singh at the retail shop of Sarwanram. The appellant examined these three witnesses in his defence. DW¬1 Sarwanram stated that appellant paid the money in his presence to Mengaram, but he did approach to the police and told them that the payment had been made in his presence, but he did not make any written application to anybody.
225. DW¬2 Piara Singh also deposed that Rs.4,000/¬was paid to the Secretary by the appellant, but no question was put to him. DW¬3 Satnam Singh also supported the defence story. The ld. Magistrate disbelieved the defence witnesses on the ground that they had not represented at the earliest to any higher authorities against false implication of the appellant.
“9. This Court ordinarily does not go into the question of facts and appreciate the evidence but in this case both the Trial Court and the learned Sessions Judge have, relying on conjectures and surmises, disbelieved the evidence of the defence witnesses. In the first place, they did not give due weight to the fact that Meghna Ram had, in fact, accompanied the appellant to the Bank. He knew about the resolution and the receipt of the money. If the money had not been paid, it is surprising that nobody came to know about it till the audit of the accounts of the Society. This sum had been borrowed by the Society and the money had to be utilised for non¬agricultural purposes. It seems to us that the defence version cannot be disbelieved merely because if the money had not been paid, as stated by the appellant, it would have been expected that the non¬payment would be known to the President and the Cashier much sooner. In our view the only foolish thing the appellant did was what he delivered the money and did not take the receipt from Meghna Ram. As stated above the evidence of the defence witnesses has been disbelieved on pure conjectures and surmises. It is not common, as far as we are aware, that the persons who are witnesses to a transaction go about complaining to the higher authorities if the transaction is impugned. We cannot allow a person to be convicted on mere suspicion and we are accordingly constrained to allow the appeal.”
1 Relying on the said authority, Mr. Shivade vehemently submitted that it is argued by ld. SPP that as accused or DW¬1 did not make any complaint to higher authorities that it was Ashok who was driving the vehicle, inference cannot be drawn even if not mentioning before media or not lodging any complaint, can the evidence of the defence witness be disbelieved on pure conjunctures and surmises.
2 It is pertinent to note that in our case, since beginning the accused never put up his defence demonstrating that the vehicle was driven by DW¬1 Ashok and the accused was not driving the vehicle. Even the accused nowhere demonstrated by suggesting the witnesses that Altaf was driving the vehicle initially. I find that the facts of the cited case are not applicable to the case in hand.
3 So after analyzing the evidence of complainant Patil, I am of the opinion that there is no reason for the complainant to state false against the accused. The ground put forth by the accused that because of pressure of media, the accused is falsely implicated does not appeal to the conscious of the prudent man. The evidence of DW¬1 is rejected by me from consideration. He is got up witness. Admittedly, it is nobody’s case that complainant Patil or Kamal Khan drove the vehicle on the day of incident. So only irresistible inference can be drawn that it is the accused only who drove the vehicle at the time of the incident.
4 It is pertinent to note that the injured witnesses also deposed that the accused got down from the right side of the car i.e. from the driver’s side. It is established that the accused, Kamal Khan and complainant Patil were only in the car. The accused admitted the incident and also admitted that the people were injured, but Ashok Singh was driving the vehicle. The said evidence is already discarded from taking into consideration.
1 In this case, the important witness is PW¬7 Francis Fernandes. The accused also submitted the further written statement u/s.313 of the Cr. P.C. (Exh.171¬A). In para 11 of the written statement it is mentioned by the accused that Francis asked accused to leave the spot as the crowd was getting violent and they had beaten Ravindra Patil and Ashok. The accused then left the place by a car stopped by Francis’s wife. Kamal had already gone away.
2 It is pertinent to note that the evidence of PW¬7 Francis is recorded at Exh.46. He never stated in examination¬in¬chief about presence of Ashok on the spot. He also never stated that people assaulted Patil and Ashok. It was never suggested to PW¬7 Francis during his cross¬examination that Ashok was also present on the spot and the people from the mob also assaulted complainant Ravindra Patil and Ashok. So the defence taken by the accused appears to be contradictory.
3 It is further contended by ld. Advocate Mr. Shivade that complaint of Ravindra Patil cannot be treated as FIR as the same is not first in point of time and thus, cannot be used for corroboration. According to Mr. Shivade, the FIR was registered at about 05.45 a.m. i.e. 3 hours of the incident. Further it is submitted that VHS register is not produced by the prosecution to show that whether Patil had phoned the Control Room or Ashok Singh had phoned the Control Room. According to Mr. Shivade, collection of information in respect of the calls could have thrown some light i.e. the name of the caller and the details of the information communicated by the caller. This information depending upon its nature could have been treated as First Information Report. Further according to Mr. Shivade, complainant Patil did not disclose the incident to police prior to filing of complaint.
233. It is pertinent to note that after the accident, the complainant Patil remained on the spot till arrival of Kadam. PSI Kadam rushed to the spot, drawn panchanama, made inquiry with complainant and then complaint of Patil was recorded in police station. I find that no irregularity is committed. It is the duty of the police to rush to the spot first in order to render help to the victim or injured in the incident. In this regard, the reliance is placed on the reported judgment of the Hon’ble Apex Court in case of Animireddy Venkata Ramana and others V/s. Public Prosecutor, High Court of Andhra Pradesh [(2008) 5 Supreme Court Cases 368] wherein it is held as under:¬
“A. Criminal Procedure Code, 1973¬¬¬Ss. 154, 156 & 157 and 162¬¬FIR¬¬¬¬Need not precede the information regarding commission of cognizable offence received by the officer in charge of a police station which required him to reach the place of occurrence as early as possible.
B. Criminal Procedure Code, 1973—S.154¬¬¬FIR¬¬¬General diary¬¬¬Held, general diary containing noting of a report regarding cognizable offence, cannot be treated as FIR.
C. Criminal Procedure Code, 1973 – Ss. 154 and 162 – FIR – Telephonic information received by IO – Later FIR recorded – Held, telephonic information not in the nature of FIR.
11. The dead body of the deceased was brought down from the bus and taken to the house. The conductor of the bus sent an information to the Depot Manager of the State Road Transport Corporation at Tuni. The investigating officer was also informed. A report to that effect might have been noted in the general diary but the same could not have been treated to be an FIR. When an information is received by an officer in charge of a police station, he in terms of the provisions of the Code was expected to reach the place of occurrence as early as possible. It was not necessary for him to take that step only on the basis of a first information report. An information received in regard to commission of a cognizable offence is not required to be preceded by a first information report. Duty of the State to protect the life of an injured as also an endeavour on the part of the responsible police officer to reach the place of occurrence in a situation of this nature is his implicit duty and responsibility. If some incident had taken place in a bus, the officers of Road Transport Corporation also could not ignore the same. They reached the place of occurrence in another bus at about 1 a.m. The deceased and the
injured were only then shifted to Tuni Hospital.
12. A first information report was recorded at about 3 o’clock in the night. In the aforementioned situation, it cannot be said that the information received by the investigating officer on the telephone was of such a nature and contained such details which would amount to a first information report so as to attract the provisions of Section 162 of the Code.”
234. Ld. Advocate Mr. Shivade relied on the case of Dr. V. Rugmini V/s. State of Kerala & Ors. (1987 Cri. L.J. 200) wherein it is held as under:¬
“When information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later. The other proposition emerging from those decisions is that the statements made by witnesses to the police prior to the formal registration of the FIR will fall within the scope of S. 162 of the Code.”
2 Considering the facts and circumstances and considering ratio in the judgment (2008) 5 Supreme Court Cases 368, I find that complaint of Patil is the FIR (Exh.P¬1) which is proved in accordance with law. Hence, submission of ld. Advocate Mr. Shivade cannot be accepted.
- Further ld. Advocate Mr. Shivade submitted that the report was lodged at belated stage. According to him, on 29.09.2002, PW¬19 Keskar, RTO Inspector, demanded the document from the police. Police told him that the papers were not ready. Copy of the FIR was not available. The documents were being prepared. According to Mr. Shivade, copy of the FIR was not sent to the Magistrate within time. According to PW¬27 Shengal, Investigating Officer, the copy of the FIR was sent within the time. According to ld. Advocate Mr. Shivade, PW¬27 Shengal, attempted to give vague excuse that it was holiday and therefore, the FIR could not have been sent. Ld. Advocate Mr. Shivade placed reliance on the case of Bir Singh and others V/s. State of Uttar Pradesh [(1977 ) 4 SCC 420] wherein it is held as under:¬
“In these circumstances we place no reliance on the evidence of this witness. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P. P. and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.P’s office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of PW 5 Umesh Chandra Verma the Investigating Officer.”
1 It is pertinent to note that 28.9.2002 was a fourth Saturday and 29.9.2002 was a Sunday. Though there is no evidence on the record to show that when the copy of FIR was sent to the Magistrate, I am of the opinion that, that would not hamper the case of prosecution as there was no delay to lodge the complaint by Patil.
2 Further ld. Advocate Mr. Shivade relied on the case of Marudanal Aagusti V/s. State of Kerala [(1980) 4 SCC 425 : AIR 1980 SC 638] wherein it is held as under:¬“Criminal Procedure Code, 1973¬¬¬Section 154¬¬¬¬FIR¬¬¬¬Once FIR is held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse¬¬¬Omission to mention names of eyewitnesses in FIR giving minute details, and unexplained delay in despatch of the FIR to magistrate besides other infirmities, held, would throw serious doubt on prosecution case.”
239. Further ld. Advocate Mr. Shivade relied on the case of Ganesh Bhavan Patel & anr. V/s. State of Maharashtra [(1978) 4 SCC 371] wherein it is held as under:¬“Delay in recording F.I.R., on facts, held fatal to the prosecution case.”
240. From the evidence it transpires that after drawing panchanama, immediately FIR was lodged by complainant Patil. Hence, it cannot be said that FIR is lodged at belated stage. Looking to the evidence, the FIR was lodged promptly after drawing the panchanama. Hence, I find no substance in the submission of ld. Advocate Mr. Shivade. There is no reason for the police to lodge the FIR at belated stage against the accused. In view of the seriousness of the incident, the FIR was lodged promptly by Ravindra Patil who remained on the spot after the incident till arrival of police and also shown the spot to the police.
241. Most important and vital aspect of the case is, who was driving the vehicle at the time of the accident. Considering the above evidence, I conclude that, it was the accused Salman Khan who was driving the vehicle at the time of the accident. Evidence of complainant Patil, PW¬3, PW¬4, PW¬11 corroborate with each other on material particulars. PW¬2, PW¬3 & PW¬11 injured in the evidence. Complainant Patil is a natural witness who was present at a time of the incident. It is established beyond reasonable doubt by the prosecution that accused was driving the vehicle. Defence of the accused that DW¬1 Ashok was driving the vehicle cannot be accepted. The prosecution also alleged that accused was under influence of liquor and also without licence and drove the vehicle in rash and negligent manner. I will discuss the said aspect at the appropriate stage in my judgment.
D) Theory of tyre bursting:¬
242. The accused also raised a defence that the accident occurred because of the front left tyre burst, thereby the car was pulled to the left side, DW¬1 Ashok tried to apply the brake and he tried to control the car, but by then the car was climbed on the stairs of American Express Laundry and hit the shutter and stopped. There was no footpath outside the American Express Laundry at that time.
243. It is pertinent to note that after the incident and after drawing panchanama, the car was removed from the spot with the aid of crane and brought in front of Bandra Police Station. PW¬19 Rajendra Sadashiv Keskar is the R.T.O. Inspector who inspected the said vehicle. Admittedly, there was no mechanical defect noticed in the car. The said fact is also admitted by the defence during the course of argument. The ld. Advocate Mr. Shivade heavily criticized the evidence of Pw¬19 Rajendra Keskar on the ground that the said witness has repeatedly given contradictory answers during course of cross-examination, knowing that one of the answers was false. According to Mr. Shivade, the said witness has no regard to the truth and has molded his defence to suit false case of the prosecution. According to Mr. Shivade, the prosecution also criticized the said expert and also demanded action against him. Ld. Advocate Mr. Shivade relied on the case of Abinashchandra Sarkar V/s. Emperor (ILR 65 Cal 18) wherein it is held as under:¬
“The Crown has suggested, through not in so many words, that we ought to look with suspicion upon the evidence of these witnesses, because they belonged to a faction in the company which was not favourably disposed towards N. C. Chaudhuri. A more unusual and a more impossible suggestion, I have never heard advanced. These are witnesses produced by the Crown and put forward as witnesses of truth in support of the case for the prosecution. It has not been suggested that they turned hostile, nor during the whole trial were they treated as hostile witnesses, nor has any one openly suggested that they were not truthful witnesses. The prosecution cannot be permitted to blow hot and cold as best it suits them, If these were not truthful witnesses, they ought never to have been called by the prosecution and so recommended to the court as witnesses of truth. There is no reason whatever for preferring the evidence of N. C. Chaudhuri to theirs, in fact the case as a whole leads me rather to regard his evidence with suspicion than otherwise.”
1 Further it is contended by Mr. Shivade that the witness Rajendra Keskar has not used the proforma prescribed by the Motor Vehicle Act. This renders his report incomplete and bad in law. According to Mr. Shivade, new proforma requires to be inspected the site as well as the condition of the tyres and the road at the time of accident, which the witness did not do.
2 Further it is contended that the story given by the witness about test drive of the vehicle is improbable. Further according to Mr. Shivade, PW¬19 Keskar in his examination¬in¬chief changed the story of deflation a front left tyre and substituted a new story of having less air in the left front wheel. According to Mr. Shivade, this improvement is to be covered up the obvious, non¬performance of a test drive by this witness. According to Mr. Shivade, PW¬26 Kadam admitted that the tyre was burst and the rim was exposed. According to Mr. Shivade, it would be an impossible task to take a test drive. Hence, it is contended by Mr. Shivade that if the prosecution introduced a story of less air, and gives up a story of deflation of tyre, then there is no reason why the court should not accept the story put forth by the defence i.e. bursting of the tyre.
1 Further it is contended by Mr. Shivade, that the burst tyre was never sent to the Forensic Laboratory or any tyre expert to find out the impact was internal or external (from within). According to Mr. Shivade, the ld. Advocate, the condition of the edges of the burst tyre could have thrown some light as to whether margins of the burst are averted or inverted just like entry and exist wound of a bullet. Further according to Mr. Shivade, PW¬19 Keskar admitted that if a pointed stone comes in contact with tyre, it can be burst and car will pull to the side of the tyre. Further in that event, steering will become hard. According to Mr. Shivade, all these admissions clearly support the defence of the accused. Further it is argued by Mr. Shivade that sudden tyre burst and restricted movements of steering will definitely result in to the loss of control and accident.
2 The ld. SPP Mr. Gharat vehemently submitted that the car involved in the accident was sturdy and tough vehicle and had radial and tubeless tyres. The vehicle can be driven if one tyre is punctured, as deposed by the witness. According to SPP Mr. Gharat, the accused could not control the vehicle on turning as the vehicle was in speed and then went on the footpath and caused injuries to the poor bakery people and also caused injuries to the poor bakery people sleeping on the platform and climbed the stair of American Express and dashed against the shutter.
1 PW¬19 Rajendra Keskar has deposed that he joined as a Motor Vehicle Inspector in 1999 in R.T. O. Department. On 29.09.2002 at about 09.30 a.m. he had inspected the vehicle involved in the accident standing in front of Bandra Police Station. He inspected the vehicle from all angles and externally noticed the damage caused to the left side fender, left head light was broken and the front bumper was missing, noticed scratches on the left side of wield shield glass, right side glass was broken. He also noticed less in front left tyre, he checked the oil, coolant, checked mechanical leakage, electrical connections and noticed all to be intact.
2 Further the evidence of Pw¬19 Keskar reveals that he tried to start engine by inserting the key and engine started after inserting the key.
3 PW¬19 also did not notice any defect in the hand break, hydrolic power steering. The brakes were found in tact in order. He did not notice
4 PW¬19 Keskar took the test drive by driving the vehicle about ½ km. He prepared the report (Exh.84). According to PW¬19, the vehicle was found in the order. The tyres of the vehicle were in good condition. The sensors of the car were not showing that the tyres were in bad condition or whether there was any leakage in engine.
1 PW¬19 Keskar also stated that in case of a minor puncture, or in case of any impact, there may be chances of decreasing the air in the tyre. He also stated that in case of hydrolic power steering the vehicle would not go to left or right after applying the brake immediately, however, in case of less air in tyre, the vehicle would divert little bit to the left side. If a driver turned the vehicle towards right side, it would turn towards right side in the case where there would be less air existing in the tyre.
2 PW¬19 Keskar also admitted that he was having experience of 4 years in examining the vehicles.
3 PW¬19 Keskar has gone through grueling cross¬examination. He admitted that there are provisions mentioned in the Motor Vehicles Act and the Rules regarding the vehicles involved in the accident. He also admitted that the particular proforma in respect of the accidental case is prescribed in the Maharashtra Motor Vehicles Rule, 1989, but he did not utilize the said proforma.
4 It is pertinent to note that PW¬19 stated in cross¬examination that he visited the spot after 15 days of the incident at the time of going near the site of the incident. He did not prepare a document mentioned in proforma about his visit to the spot. According to PW¬19, he had seen the spot by passing near the spot of the incident, like others. It appears that PW¬19 had seen the spot while going along with his friend and 2¬3 seconds required to see the spot. It is highly improbable that one can see the spot within 2 – 3 seconds.
1 It is pertinent to note that PW¬19 had also undergone training in Research Institute, Ahmednagar, for a period of one day. The vehicle was Tata Indica on which training was given. PW¬19 stated that actual training of imported cars was not given to him. The vehicle MH¬01¬DA¬32 was an imported car. He also examined Land Cruiser vehicle for the first time and till the date of evidence, he did not examine any Land Cruiser vehicle. The said vehicle comes under Sport Utility Vehicle. He also admitted that as per proforma in the year 1994, the proforma is required to be prepared regarding inspection of the vehicle. He also admitted that he did not visit the spot of the incident, but again he stated that he visited the spot after 15 days of the incident at the time of going near the site of the accident. The ld. Advocate Mr. Shivade vehemently submitted that the approach of the witness to his work is required to be seen. According to Mr. Shivade, the witness ought to have visited the place of incident before making inspection of the vehicle.
2 Further according to Mr. Shivade, PW¬19 Keskar seen the spot within 2 – 3 seconds. Further the witness stated that he inspected the vehicle probably on Saturday. Further according to him, record is prepared regarding inspection of the vehicle in the office of the RTO as well as in the concerned police station. He admitted that for the first time he had examined Land Cruiser and till today, he did not examine any other Land Cruiser vehicle. He submitted that as per law, proforma is required to be prepared regarding inspection of vehicle.
1 It is pertinent to note that the vehicle involved in the incident was removed and brought before the Bandra Police Station and therefore, according to PW¬19 Keskar, he could not inspect the vehicle on the spot.
2 Further PW¬19 Keskar admitted that the format which he had prepared is not as per the format prescribed in the Maharashtra Motor Vehicles Rules. The said witness volunteers that he used the format given by the Government. During the course of evidence, the proforma from Maharashtra Motor Vehicles Rules, 1989 was shown. According to witness, the said proforma may be more exhaustive than the proforma used by him.
3 PW¬19 Keskar also admitted that he came to know in the morning of 28.09.2002 that the incident had occurred. He had inspected the vehicle on the same day of the incident. He demanded the C.R. register from the police. Copy of the FIR was not available. Police told him that the documents were being prepared. One Imtiyaz was senior to him who accompanied PW¬19 to Bandra Police Station. On 28.09.2002 at about 09.00 to 09.30 a.m. key of the car was delivered to the witness for inspecting the vehicle. Imtiyaz was telling him as to whether PW¬19 had checked the particular thing or not in the vehicle. PW¬19 also asked Imtiyaz about technical words such as fender, side running board.
4 Further it has come in the evidence that PW¬19 Keskar returned the key to the officer within 20 minutes from the movement it was received. Next day also PW¬19 visited Bandra Police Station in order to see case papers and Inspector Kadam was not available. PW¬19 did not receive the particulars of the car either on 28.09.2002 or 29.09.2002, he could not fill the particulars of the car in the accident report. He admits that he did not have the details of the validity of the car, motor driving licence and also about the name of the driver. He also had not taken the photographs of the vehicle at the time of inspecting, nor the police took the photographs of the vehicle. PW¬19 obtained the accident form from Imtiyaz Khan. On 28.09.2002 due to emergency call, there was no accident form available with him. According to PW¬19, on 29.09.2002 he carried accident form along with him till the police station. The first copy is to be given to the police station. The second copy remains with R.T.O. office and third copy remains with the record. PW¬19 also stated in cross¬examination that he had filled the information regarding inspection carried out on 28.09.2002. He further stated that as his accident form book was utilized completely, he had taken the accident form from Mr. Imtiyaz. He also admitted that accident form is the only evidence about what he had done while inspecting the vehicle.
- There are some omissions brought on record by the defence. It appears that earlier evidence of PW-19 Keskar was recorded before the Metropolitan Magistrate. PW¬19 admitted that he did not depose before the Magistrate that he went beneath the car in order to see whether there was any damage caused to the car and he checked the oil, coolant, mechanical leakages and electrical connections. A question was asked to the witness about the types of oils and also about the viscosity of the oil.
1 Further PW¬19 Keskar also admitted that there is no mention by him in the accident report form that electrical connections were checked, oils, coolant, mechanical leakages were checked and all found to intact.
2 In cross¬examination PW¬19 Keskar also stated that he had examined front left side tyre for a period of one or two minutes by pressing it by hands. He noticed front left side tyre deflated. He also admitted that one cannot predict how accident occurred because of condition of the tyres. He admits that tyre is one of the factors in the accident. He also admitted that neither he mentioned in the accident report form that the tyres were found good in condition, nor he stated before the Metropolitan Magistrate about it. He also admitted that he is not the expert of the rubber of the tyre and tyre. He also cannot tell the category of the tyre inspected by him such as tubeless, radial, run flat, tyre with tubes. He also admitted that if the vehicle is in a position to drive, the vehicles are then removed by driving, otherwise vehicles are removed by towing. He also admitted that in front tyre of the vehicle found to be puncture, in that situation, the vehicle may be removed from towing. He admitted that as per the Motor Vehicles Rules, the vehicle is to be preserved in its original condition till inspection is over.
3 According to PW¬19 Keskar, air pressure measures in LBS and he cannot say exactly how much air pressure was existing. Normally the tyre examined by him in respect of the vehicle in question. The reason given by PW¬19 is that the vehicle is imported. There is no mention in the accident report form about the air pressure found in the tyre at the time of the inspection. PW¬19 also did not verify from the police as to whether the bumper had gone. PW¬19 also admitted that he did not remove the front tyre for sending it to laboratory in order to ascertain the reason of deflation of tyre. PW¬19 admitted that while running the car, if pointed stone comes in contact with the tyre, then tyre may be deflated.
1 PW¬19 Keskar also admitted that he did not prepare report of inspection immediately. After 24 hours of inspection, he had written the accident report form.
2 PW¬19 Keskar also stated that while calculating the speed of vehicle, the engine horse power is not relevant. Witness again says that engine horse power is relevant for the calculation of speed of vehicle. He stated that one statement is correct and one statement is wrong. Immediately he came to know that he made wrong statement. According to him, horse power is not relevant for calculation of the speed is not correct.
3 It has come in the cross¬examination that PSI Kadam did not give papers to PW¬19 Keskar about panchanama of the car when demanded by him as Kadam was to record the statements of the witnesses.
4 PW¬19 Keskar also admitted in cross¬examination that if a car hits an object in speed, then there would be more impact and then in that event, damage would be more. In slow speed, the damage caused would be less in the incident. PW¬19 stated that air bags are safety features but were not deployed in the incident. Sensors are available at the front side of the car. To deploy the air bags and to send the signal to the sensors come under the operation of electronic system in the car. PW¬19 admitted that he had not stated in the accident report form or deposed before the Metropolitan Magistrate court that he checked the electronic signal and they were in order or not. He also admitted that if the vehicle was not in speed, then in that event, the air bags would not deploy.
270. PW¬19 Keskar also stated that the vehicle was having front brakes and there is also Anti¬lock Braking System (ABS) available in the car. ABS is useful in order to operate the brakes to all four wheels simultaneously and also to prevent the car from skidding in the incident. PW¬19 admitted that if the tyre is deflated then in that even the vehicle would tilt in that direction, depending upon the air pressure in the tyre. If the front left tyre is deflated in running condition, then the car will be pulled towards the left side. He also stated that electronic control unit, electronic power steering, power system and electronic control model were existing in the car inspected by him. He also admitted that in case the tyre is punctured and at the same time if there is leakage failure, then in that case, the car would tilt more. He also admitted that in case of puncture of tyre or leakage failure, the control of the power steering may be affected slightly. Again witness says that in case of puncture or leakage failure, the steering control would not be affected. So the witness gave two different answers.
1 PW¬19 Keskar stated that he cannot say whether if a car it tilted after puncture or failure of leakage, then the steering of the car would be affected.
2 Then PW¬19 stated about the test driving. He stated that he placed the key in the car and engine was started by start button. It has come in the evidence that the key which was given to him was an electronic key. The key requires to be placed in side the car. He further stated that he does not remember whether the slot is available for inserting the key. He deposed that engine started in a single push of the button.
3 It is pertinent to note that PW¬19 stated that after putting the key in the slot, engine was started, but subsequently, he stated that by pressing the ignition button, the engine started. He then deposed the manner he took the test drive of the car. According to him, he went to half kilometer towards Hill Road and 45 minutes are required to reach half kilometer distance. He denied that the road on which the test drive was taken was the busy road. PW¬19 further stated the if the front tyre is found deflated, then the vehicle would be driven like a vehicle which runs normally. If the second tyre is found deflated, then the engine would require more power to run the vehicle. If the third tyre is also found deflated then in that event the vehicle will move. Further he stated that he cannot say how much time would be required for complete deflation of the front tyre inspected by him, if it is punctured. He also admitted that if the front left tyre is found deflated then steering will become hard while taking turn towards right side.
1 PW¬19 also admitted that there is no mention in the accident report form that inspite of finding less air, in left side portion, he was in a position to drive the car. There is no mention in the accident report form that he drove the vehicle about half kilometer and then parked the vehicle. He also stated that he has not mentioned in the accident report form that the tyres of the vehicle were found in good condition and the sensors of the car were not showing that the tyres were in bad condition and whether there was any leakage in the engine.
2 In cross¬examination PW¬19 Keskar denied that he never inspected the vehicle and given false report on the say of Police and Imtiyaz. He also denied that the left tyre of the vehicle was deflated, therefore, the vehicle was not in a position to be driven. He also denied that left front tyre was found burst. The ld. Advocate Mr. Shivade vehemently submitted that PW¬19 no where stated in evidence that front left side tyre deflated due to the impact. Though it is mentioned in the accident report form, but PW¬19 no where deposed the said fact. According to Mr. Shivade, the accident report form is not as per the Maharashtra Motor Vehicle Rules 1989.
3 According to me, the said accident report form (Exh.84) is duly exhibited during the course of evidence and it bears the signature of the witness. So one can keep reliance on the accident report form.
- Ld. Advocate Mr. Shivade relied on the case of The Branch Manager, National Insurance Company Limited, Pudukkottai V/s. Janaki and others [2011 (1) TN MAC 366]. In the said case, it is held in para 11 as under:¬
- Thus, it is proved that there was bursting of front tyre of the Car. While driving, once the right side front tyre bursts that would lead to the loss of control of the vehicle. It was an admitted fact that the deceased driver attempted to overtake a bullock Cart and at that time, the tyre burst took place. It was the case of the Appellant¬Insurance Company that at the time of accident, a bus came in the opposite direction. However, the insurance Company is not able to give the details of the alleged bus that came in the opposite direction. These are all the aggravative factors. Already the driver lost the control due to tyre burst and the Car went to the right side of the road and crossed the mud portion and thereafter, hit against a banian tree. Therefore, the aforesaid evidence, more particularly Exh. A4, would make it clear that the driver was not responsible for the accident. The driver could not be stated to be negligent in causing the accident. The accident was due to the front right side tyre burst.
- The defence comes with the story that there was a sudden burst of front left tyre and the steering became hard and thereby car had climbed the stairs and hit the shutter. Pw¬19 Keskar denied that the tyre was burst. In panchanama also, there is mention that front left tyre was punctured. PW¬1 Sambha Gauda is the witness on panchanama (Exh.28). In cross¬examination by the accused, PW¬1 stated that left tyre of the car was found punctured. The said fact is brought in the cross¬examination of PW¬1 Gauda. No suggestion was given to him that the front left tyre was found burst. PW¬26 Kadam stated differently in cross¬examination that front left tyre was burst and only wheel base had remained. However, on perusal of photograph (Art.F), the front left tyre was found to be punctured and was not found to be burst, displaying wheel base.
- The ld. Advocate Mr. Shivade vehemently submitted that after accident, internal parts of the vehicle show no damage and there was some damage to the left head light and dent on the left side. Further the fiber bumper was intact. According to him, there is evidence of two witnesses admitting that after the incident the bumper was attached to the car and it came up only when the car was lifted by crane tying the hook to the bumper. Further according to Mr. Shivade, fiber bumper would not survive, if the car hits against the stationary object with a speed of 90 to 100 k.m. per hour. Further ld. Advocate Mr. Shivade submitted that PW¬19 admitted that high speed would cause more damage whereas low speed would cause low damage. It is pertinent to note that the vehicle was brought from abroad in the year 2000. So it appears to be new vehicle at the time of incident. The vehicle has power steering automatic. The vehicle is having power brakes, power window. The vehicle was having ABS System. The tyres of Land Cruiser were tubeless. The said fact is admitted by DW¬1 Ashok Singh. Further the car is sturdy and sport utility vehicle. The tyre was having large width in size. It also runs of the road, on stones and on uneven surface.
1 Further it is contended by ld. Advocate Mr. Shivade that in the incident, air bags of the vehicle were not deployed. According to Mr. Shivade, this demonstrates that the vehicle was not in speed and there was no impact. It is pertinent to note that the vehicle after dashing Nurulla and running over him and over other labourers climbed three stairs of American Express and also rammed the shutter. In that process, the speed of the vehicle may be slowed down and the possibility of not deploying air bags cannot be ruled out.
2 Further it is vehemently submitted by ld. Advocate Mr. Shivade that the RTO Inspector Mr. Keskar did not take test drive. RTO Inspector admitted that there is no mention in the accident report form that he had taken the test drive. There appears to be a contradictory version in order to start the vehicle by the witness. PW¬19 Keskar stated that he insert the ignition key in the ignition slot initially. However during the course of evidence he stated that he pushed the button to start the engine after pressing the electronic key in the car. If really Keskar had taken the test drive, he would have mentioned in the accident report. So evidence in respect of taking test drive is not satisfactory. However that does not mean that the testimony of the Keskar is liable to be thrown away. Admittedly there was no mechanical defect in the vehicle. According to the defence the tyre was burst which is denied by PW¬19 Keskar. On perusal of the photograph (Article F), it would reveal that tyre was not burst. Though according to Shri Shivade the wheel base is exposed but the photograph article F no where shows the said fact. Moreover when the car ran over the persons and the front tyres dashed against the stairs of the American Express and car had climbed two-three stairs of the Laundry, in that case possibility of front tyre deflated cannot be ruled out.
1 The ld. Advocate Mr. Shivade also contended that RTO Inspector PW¬19 Keskar used the old proforma. According to ld. Advocate Mr. Shivade, as per Maharashtra Motor Vehicles Rules 1989, the inspection of the vehicle must be shown in the proforma prescribed under the said Rules. Though RTO Inspector did not use the proforma as contemplated by the Motor Vehicles Rules 1989 and appears to be used old proforma, in my opinion, that will not fatal to the case of prosecution as admittedly, there was no mechanical defect in the vehicle. Only disputable point is whether the left front tyre was burst or not.
2 If the argument of Mr. Shivade is accepted that the car was not in speed, then, it is very difficult to digest that when the car was in slow speed, the tyre would burst. If the vehicle was driven slowly according to Mr. Shivade, then the vehicle was having the ABS system and if the brakes were applied, then in that circumstances, the question of skidding the vehicle does not arise.
3 Moreover, it is brought on record that the tyres of the vehicle were tubeless. If the tyres were tubeless and if punctured, the tubeless tyres let the air out slowly. But in tube tyres (normal tyres), the deflation is fast, thereby damaging the tyre and the tube. So the deflation is fast in tube tyres thereby damaging the tyre. However, in tubeless tyres, which the vehicle was having at the time of incident, some time will require for complete deflation.
- It is also pertinent to note that if the vehicle was going in slow speed as argued by Mr. Shivade, then the vehicle could be stopped by applying brakes and the vehicle could not be skid due to ABS system. However, what happened on our case is that the vehicle leaves the road went on the footpath ran over the persons sleeping on the footpath and climbed 2¬3 stairs of American Express. It means that the vehicle was in speed, however, after running over the bakery persons and climbing the stairs would naturally affect the speed of the vehicle and its impact. However, some noise would occur which was heard by PW¬7 Francis who had rushed to the spot. So the argument of Mr. Shivade that the tyre was burst is ruled out. The vehicle could not be controlled while turning on the Hill Road and the vehicle went straight on the footpath and climbed 2 ¬3 stairs of American Express Laundry. So naturally speed of the vehicle would have slowed down after running over the labourers and climbing 2¬3 stairs and in that, the possibility of not receiving damage more to car cannot be ruled out. So it cannot be said that the accident occurred due to tyre bursting. The accident occurred due to rash and negligent driving while not controlling the vehicle properly on the turning. If according to Mr. Shivade the tyre was burst and only wheel base remained, then in that circumstance, it will be impossible that car will climb 2 – 3 stairs. It means that there must be less air in the tyre enabling vehicle to climb over 2¬3 stairs. Even Art. F shows that the tyre was not burst and contention that only wheel base remained is not correct. Considering the evidence, the theory of the front left tyre burst cannot be accepted. The facts in the cited case [2011 (1) TN MAC 366] will not be applicable to our case at hand.
E) Evidence of alcohol consumption:¬
1 The prosecution claims that at the time of incident, when the accused was driving the vehicle, he was under the influence of liquor. The prosecution has examined PW¬5 Malay, Waiter working in the Rain Bar & Restaurant, PW¬9 Rizwan Rakhangi, Manager at the relevant time in Rain Bar & Restaurant. The prosecution also claims that there is evidence of PW¬20 Dr. Pawar who has extracted blood sample for alcohol test from Salman and after sealing the bottle as per procedure maintained in J.J. Hospital, the said sealed blood sample was also sent to the Forensic Science Laboratory, Kalina. Pw¬18 had analyzed the blood sample and found 62 mg. ethyl alcohol in the blood of accused.
2 It is pertinent to note that the accused never disputed his visit to Rain Bar & Restaurant at about 11.00 p.m. It is the defence of the accused that he only drank water. According to ld. Advocate Mr. Shivade, there is no evidence to show that the accused drank alcohol in the Rain Bar & Restaurant.
3 The evidence of PW¬5 Malay Bag reveals that on 27.09.2002 he was on duty in the bar as steward, he used to provide food and beverage to the customers. As per his version, at about 12.00 mid night, Salman Khan and his friends visited the bar. There was rush in the bar. 200 to 250 customers were present in the bar. Salman Khan and his friends were standing at the bar counter. It is pertinent to note that Sohel Khan also visited in the night on 27.09.2002 to Rain Bar. PW¬6 Balu Muthe, bodyguard of Sohel Khan, also confirmed the said fact. It is also not disputed by the accused that Sohel Khan visited Rain Bar & Restaurant.
289. The evidence of PW¬5 Malay Bag further reveals that Salman Khan and his friends were standing in the Bar. They gave order to the Manager. Manager asked PW¬5 to provide service to Salman Khan and his friends. PW¬5 kept Baccardi and white rum and cocktail on the table. Prawns, Chickens were also ordered and supplied by PW¬5. The friends of Salman Khan also ordered prawns, chicken. At about
01.10 a.m. Salman Khan and his friends left the Bar. According to PW¬5, Salman Khan is a regular visitor of Bar, therefore, he knew him.
290. Ld. Advocate Mr. Shivade also cross¬examined PW¬5 Malay at length. There is no dispute that at the relevant time, there was big event going on in the bar. PW¬5 admits that bill for the order is to be prepared on the computer. Hall of Rain Bar might be admeasuring 20 ft x 20 ft. in area. There is also a bar counter in the hall where drinks are supplied directly to the customers. Pw¬5 Malay Bag in his examination¬in¬chief stated that Salman and his friends were standing at Bar counter. So if really Salman Khan and his friends did not want to consume alcohol, what was occasion for them to stand at bar counter where drinks are supplied. Further in cross¬examination PW¬5 stated that the tabled are arranged in the hall. The customers occupying the table are reflected in the column covered in the bill. PW¬5 and other Stewards who used to take orders of food and beverages supplied information at the time of preparation of bills. If a single customer is occupying one table, then the said person comes under the column covered as one. If 8 customers occupied the table, then the said customers came under the column covered in the bill. Every table is allotted a number in order to identify at the time of the preparation of bill and the said table number is also displayed in bill. At Bar counter person would take order for providing bills, as particular number is also mentioned in the bill. If two persons took the order at the bar counter then there is different code of two persons.
291. In cross¬examination Pw¬5 Malay is admitted that if an order is given to provide the drink at the table occupied by 8 – 9 persons, then some persons sitting on the table may consume the drink, others may not. The order for the drinks was given by the friends of Salman and not by Salman. There were dim lights existing in the hall and loud music was playing. Pw¬5 admitted that one cannot see from one table to other table which customers were consuming food or beverage. Further PW¬5 admitted that the place where Salman and his friends were sitting was not visible from the place where Rizwan was standing. As Salman and his friends were standing in the hall, table number could not be reflected in the bill.
1 PW¬9 Rizwan also deposed that at about 11.00 p.m. Salman Khan, Sohel Khan and their friends visited Hotel Rain Bar. They gave order to PW¬5 Malay. As restaurant was full, Salman and Sohel Khan were standing in front of Service Counter. Drinks and snacks were provided on the standing bar counter.
2 It has come in examination¬in¬chief on record of PW¬9 Rizwan that he had seen Salman possessing white colour glass. In cross¬examination PW¬9 admitted that the bill only shows the order given by the person occupied by the particular table. No name of the customer is generated in the bill and the name of the person who pays the money of bill, also does not reflect in the bill.
3 Further PW¬9 Rizwan admitted that table nos.38, 40, 13 and 18 were different and also placed at different place in the restaurant. According to PW¬9, police had visited the bar and told to give the bills on 27.09.2002. The police had inspected the bills by which the alcohol was ordered by the customers. Police had given PW¬9 four bills inspected by the police and told PW¬9 to sign.
4 In cross¬examination PW¬9 Rizwan stated that Bacardi rum looks like water. Salman Khan was drinking clear liquid. PW¬9 stated that clear liquid looks like water. Relying on his cross¬examination, it is argued by the ld. SPP that by no stretch of imagination, it can be said that Salman Khan was drinking only water. It has come on record in the evidence that Salman Khan is a regular visitor to Rain Bar. No one in the night may visit the bar for the purpose of drinking water. According to Mr. SPP, 0.062 mg. ethyl alcohol was found in the blood of Salman and therefore, it can safely be inferred that it was Salman who drank backardi rum which looks like water. I have also gone through the bills produced on record which was seized by Pw¬27 Shengal, Investigating Officer. Even for the sake of moment, the said bill excludes from the consideration, when it shows the different table number in the hall and Salman and his friends were standing at the bar counter, however, the fact remains that the accused drank clear liquid which looks like bacardi rum and the said fact is also corroborated by presence of alcohol in the blood sample of the accused.
296. Further ld. Advocate Mr. Shivade vehemently argued that PW¬9 Rizwan admitted that Salman Khan was found walking normally while leaving Rain Bar. When person consumed liquor or drink, then while talking with the said person one can smell alcohol from the said person. According to Mr. Shivade, ld. Advocate, PW¬9 admitted that he did not notice any smell of alcohol from Salman. Further ld. Advocate Mr. Shivade also contended that from Rain Bar the accused went to
J.W. Mariot and if really the accused had consumed alcohol, then the said fact was also noticed by PW¬12 Kalpesh Verma, parking assistant of the porch where car of Salman was parked. Further it has come in the evidence of complainant Patil (Exh.141) that Salman was drank. However, there is omission on his part to mention in the FIR lodged by him. However, in supplementary statement recorded on 01.10.2002 complainant Patil deposed that the body language of Salman was looking as such as he drank alcohol. However, we have to scrutinize the evidence of Doctor who is an expert in order to come to the correct finding as to whether 0.062 mg. ethyl alcohol was found in the blood of Salman.
1 Now turning to the evidence of PW¬20 Dr. Pawar. The Ld. Adv. Shri Shivade also criticized the evidence of PW¬20 Dr. Pawar. The evidence of PW¬20 Dr. Pawar reveals that he was on duty on 28.09.2002 from 02.00 p.m. to 06.00 p.m. Salman Khan was brought to the Casualty Department of J. J. Hospital. PC 2895 and PC Salunke (PW¬22) were with Salman Khan. Salman Khan was brought to J.J. Hospital for extracting blood sample for alcohol test. The memo of police station is also identified by PW-20. The ld. Advocate Mr. Shivade objected for giving exhibit to the said memo. According to me, when witness deposed that the accused was sent along with memo by Bandra Police Station, and also when Salman admitted u/s.313 of the Cr. P.C. that his blood was extracted in the J.J. Hospital, the ground of objection taken by defence about exhibiting memo does not survive.
2 PW¬20 DR. Pawar also clinically examined Salman Khan. The accused denied to have consumed alcohol. According to PW¬20, breath was smelling alcohol. Pupils of accused were slightly dilated, git was normal, speech was found coherent. Pw¬20 also asked Salman for verbal consent of extracting the sample. Identity mark of accused was noted. His left thumb impression was obtained on the register as well as his signature was taken.
3 The ld. Advocate Mr. Shivade vehemently submitted that it was incumbent on the part of Dr. Pawar to obtain the written consent from Salman. Moreover, there is silence about oral consent taken in the evidence of PW¬20 recorded before the Metropolitan Magistrate. In my opinion that will not affect the evidence of PW¬20 Pawar adduced before this Court.
1 Then PW¬20 Pawar narrated in evidence about extracting the blood. The blood sample was sealed in his presence by Ward Boy, as per the standard procedure maintained in J. J. Hospital.
2 As per the version of PW¬20 Dr. Pawar, one phial was having oxalate preservative and other phial was plain. Blood sample was taken from Anterial Cubital Fossa of the right hand of Salman. 6 cc blood was transferred from Salman and out of it, 3 cc each was transferred to two phials respectively.
3 The ld. Advocate Mr. Shivade vehemently submitted that the accused was firstly sent to Bhabha Hospital. The accused u/s.313 of the Cr. P.C. also stated that his blood sample was taken in Bhabha Hospital. Further it is contended by Mr. Shivade that there was no alcohol noticed in the blood taken at Bhabha Hospital, therefore, accused was sent to J.J. Hospital.
4 I find no substance in the submission of Mr. Shivade on the reason that no suggestion was given to Dr. Pawar at the time of extracting the blood of accused that there is also a mark on the hand of the accused for extracting the blood sample. The judicial notice can be taken that whenever one subjected for blood sample, then after taking blood sample, a very small piece of sticking plaster is applied to the place from where blood was extracted. However, no suggestion was given to Dr. Pawar that in Bhabha Hospital, blood was taken.
1 Further the Investigating Officer Shengal also stated that PSI Suryavanshi informed him that there was no facility of blood extraction in Bhabha Hospital at the relevant time. Ld. Advocate Mr. Shivade submitted that the said evidence is hearsay evidence. I find that it was the duty of the Investigating Officer to explain as to why blood sample was not taken in Bhabha Hospital. We have to go to root of the case and therefore, according to me, it will not be hearsay evidence. Even though PSI Suryavanshi is not examined by prosecution, no efforts were made by the defence to call the record from Bhabha Hospital about Salman Khan. When the accused examined DW¬1 Ashok in his defence to demonstrate that Ashok was driving the vehicle, then the accused would have examined the witness from Bhabha Hospital. One who alleged or assert then it is incumbent on the part of the accused to show that the blood was taken in the Bhabha Hospital. Further it is highly improbable that one can notice presence of alcohol in the sample when initially it was drawn before doing analysis of the blood sample. So I find no force in the argument of Mr. Shivade that blood sample was also taken in Bhabha Hospital.
2 It is also important to note here that ld. Advocate Mr. Shivade while arguing also attacked on the sealing process by ward boy. According to him, the actor’s blood sample sent for alcohol analysis could have been handled by Government hospital ward boy who was drunk. It is also argued that “we have heard that in many Government hospital ward boys are drunk on duty”. According to Mr. Shivade, if ward boy was drunk and had touched the tape at a timing of sealing, the chances of contaminating sample bottle cannot be ruled out.
1 I find no substance in the submission of Mr. Shivade that what is the evidence on record led by accused in support of allegation against ward boy. The blood phials were sealed in presence of PW¬20 Dr. Pawar by ward boy and anything if found otherwise, PW¬20 would not have allowed the said ward boy to do the sealing.
2 It has come in the evidence of PW¬20 Dr. Pawar that the blood sample was transferred from syringe to two phials. Bottles were capped by white colour bandage (sticking plaster). The seal of lakh was put on the upper and lower end of both the phials. The labeling of EPR number about the date, time and PC number was done and it was wrapped along with two phials. PW¬20 also signed on the label. The signature of the accused was obtained on EPR register. Signature of PSI Salunke (Pw¬22) as well as signature of PC 27451 was also obtained on EPR register. He also obtained the initial and thumb impression of the accused and also the police officers on form “A” and “B”.
3 There are entries in the EPR register regarding collection of the blood sample of the accused. OPD form (Exh.98) is in the handwriting of PW¬20 Dr. Pawar. He also brought original casualty register in the Court at the time of examination. PW¬20 also highlighted all the entries in the register in examination of the accused. Exh.99 are the entries in EPR register. There is also a thumb impression of accused obtained in the said entry.
1 Exh.100 and Exh.100¬A are the form A and B in the handwriting of Dr. Pawar and signed by him. It is also gave form “A” and “B” in a sealed envelop along with sealed bottled to Bandra Police Station for chemical analysis. PW¬20 also signed on the two seals.
2 There is grueling cross¬examination on behalf of the accused conducted by Advocate Mr. Shivade. PW¬20 Dr. Pawar denied that in the year 2002, there was glass injection syringe utilized. It is pertinent to note that a judicial notice can be taken that “disposable syringe termed as use and throw came in existence and they were available in the year 2002”. When PW¬20 denied that in the year 2002, there were glass injections utilized, it means that at that time, disposable syringe were utilized. The judicial notice of the said aspect can be taken.
3 The ld. Advocate for the accused contended that PW¬20 Dr. Pawar committed breach of the rules of Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, more particularly Rule (3) and (4).
4 The ld. Advocate Mr. Shivade also relied on the reported judgment of Hon’ble Bombay High Court in case of Tulsiram Gangaram Raykar V/s. The State of Maharashtra [1977 U.C.R. (Bom.) 532] Criminal Revision Application No.38 of 1975, with Criminal Revision Application No. 544 of 1975, decided on 28¬1¬76.
In the said case, it is held as under:¬“Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, Rules, 3, 4 and 5.¬¬¬Procedure for taking and testing blood. Rule 3 refers to provision of Sec. 129A of the Act, and empowers Medical Officer to collect the blood of such person and furnish to officer by whom he was produced, in a certificate, in Form A, containing his examination. Rule 4, deals with manner of collection and forwarding of blood. The Rules are mandatory, in the view taken by Supreme Court. The question is whether words of Medical Officer, should be acted upon without corroboration ; when he speaks to contents of his own certificate. Held, some of these symptoms would appear in a person who has consumed toddy. Doctor’s evidence cannot be accepted beyond impeach, and introduces an element of doubt, to which, the accused would be entitled.”
313. Mr. Shivade also relied on the reported judgment in case of State of Maharashtra v/s. Raghunath Madhavrao Marathe [1986(3) Bom C.R. 341 (Aurangabad Bench)] Criminal Appeal No. 161 of 1985, decided on 28¬8¬1986. In the said case, it is held as under:¬
“(A) Bombay Prohibition Act, 1949, Sec. 66(1) (b) & (2)¬¬¬Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, R 4¬¬¬¬Charge under section 66(1) (b)¬¬¬Acquittal ¬¬¬Validity¬¬¬¬Non¬compliance with requirements of Rule 4 of Blood Test Rules¬¬¬Presumption under section 66(2) not available ¬¬¬Acquittal valid.
The Doctor did not say in his evidence that syringe was sterilized. He also did not say in his evidence that no alcohol was touched by him at any stage while extracting the blood from the body of the accused. He further did not say in his evidence that the blood collected in the syringe was transferred into a phial containing anticoagulant and preservative and that the phial was then shaken vigorously to dissolve the anticoagulant and preservative in the blood. Held the accused would be liable to be acquitted of offence punishable under section 66(1)(b), as important precautions were not taken in collecting the blood to be sent for chemical analysis. Except pointing out that the Chemical Analyser would not have been able to carry out his analysis and would not have sent his report and would have made a grievance about the blood being not in proper condition, no positive material was placed to show that there was substantial compliance with the above requirement of Rule 4. Further, if the report of the chemical analysis could not be accepted as correct for non¬compliance with the requirement of Rule 4 the presumption under section 66(2) would not be available to the prosecution as it is clear from section 129¬A and 129¬B, that it his report is to be read as evidence, then it has to be in the manner prescribed under Rule 4. It is open to the prosecution to establish its case without treating it as presumptive evidence under the aforesaid provisions. Even if the said report could be used as evidence under section 293 of the Code of Criminal Procedure the said report does not show whether the above requirements of the rule were substantially complied with. Only because the report the shows that certain conclusions are arrived at, it would not follow that the blood was in proper conditions and that the results of the chemical analysis were correct. Therefore, the accused was rightly acquitted.”
314. Mr. Shivade also relied on the reported judgment in case of Shravan Ganpat Randhir V/s. State of Maharashtra (1979 Bom. C.R. 419) Criminal Revision Application No. 177 of 1979, decided on 10¬7¬1979. In the said case, it is held as under:¬
“(B) Bombay Prohibition Act, 1949, Secs. 66(2)¬¬¬Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, Rr. 4 & 5¬¬¬Collection and forwarding of blood¬¬¬¬Presumption under section 66(2) of the Act¬¬¬Held, prosecution solely relying on report of Medical Analyser for blood concentration, will not be entitled to benefit of presumption under section 66(2) of the Act. Requirements in the Rule 4 are mandatory as was held by Gujarat High Court in ruling referred two in absence of any evidence of compliance, held, report of Medical Analyser will lose all evidential value.
There is absolutely no evidence before the Court to come to an conclusion in favour of the prosecution that the syringe in question was sterilized in the present case with boiling water before being used for taking the blood. Nor is there any evidence before the Court to come to a conclusion in favour of the prosecution that the Medical Officer cleaned with sterilized water and swabbed the skin surface of that part of the body from which blood was intended to be drawn. Nor is there any evidence before the Court to come to a positive conclusion in favour of the prosecution that the blood collected in the syringe was transferred into a phial containing anti coagulant and preservative nor any evidence before the Court to conclude that the phial was then shaken vigorously to dissolve anti¬coagulant and preservative in the blood. These indeed are important requirements, if the report of the chemical Analyser is to be simplicity relied upon by the Court in order to reach conclusion one way or the other in a prosecution as of the instant nature. (Para 6)”
1 In all these cases, charge u/s.66(1)(B) of the Bombay Prohibition Act was framed. In our case in hand, no charge is framed u/s.66(1)(B) of the Bombay Prohibition Act. However, the charge is framed against the accused u/s.185 of the Motor Vehicle Act.
2 It is pertinent to note that after framing the charge by my ld. Predecessor, neither prosecution nor defence made any grievance before me that charge u/s.66(1)(B) was not framed before adducing evidence. Reliance is placed on the landmark judgment of the Aliester Pareira V/s. State of Maharashtra in Criminal Appeal No.430 of 2007 filed by State of Maharashtra against Aliester Pareira with Criminal Appeal No.566 of 2007 State of Maharashtra through Khar Police Station v/s. Aliester Pareira with Criminal Appeal 475/07 filed by Alister Pareira against State of Maharashtra.
All these three appeals came to be decided by the Hon’ble Lordships of the Division Bench. It is observed by Their Lordships of the Division Bench of the Hon’ble High Court, Bombay in para 66 that “the argument on behalf of the accused that non compliance of the statutory provisions prescribed in the rules framed under Bombay Prohibition Act could vitiate the trial is also without merit. Firstly though the accused was not charged for the offence punishable u/s.66(1)(B) of the Bombay Prohibition Act, both parties stood to the trial without any protest. In our opinion and for the purpose of the present case, relevant provisions of law have been substantially complied with. The blood sample was taken by the Medical Officer and it was examined by the Chemical Analyzer as per the rules and procedure. Reliance on some of the cases cited on behalf of the accused to substantiate the plea that in such accident cases only offence that would be made out would be Sec.304¬A of the IPC, is without substance and merit. Every case has to be examined on its own facts.”
1 In the present case, there is no charge u/s.66(1)(B) of the Bombay Prohibition Act. The charge u/s.185 of the Motor Vehicle Act is framed. If alcohol percentage is higher than .30 mg. in blood then provisions u/s 185 Motor Vehicle Act would be attracted.
2 Further in our case, Dr. Pawar denied in the cross¬examination that the glass syringe was utilized. As discussed above the judicial notice can be taken that disposable syringes, use and throw commonly called are used. Therefore, though the Doctor did not state in his evidence that the syringe was sterilized is of no consequence. Further in cross¬examination Dr. Pawar admitted that without applying antiseptic at the place where blood sample was taken taken from Salman, so the theory of applying spirit or antiseptic at the place before drawing the blood is also ruled out. Even the Doctor has stated that he transferred 3 c.c. blood of Salman into a phial having oxalate preservative and 3 cc blood in plain phial. So substantial compliance is made by Dr. Pawar. What will be effect of non adding 5 gms of sodium fluoride in blood sample and its effect would be a question to be discussed later on in the judgment. Moreover, as stated above the charge is not framed u/s.66(1)(B), therefore, blood test rules of the year 1959 are not applicable to our case in hand.
1 Exh.98 is the OPD form and one can call it as case paper. No thumb impression was obtained on the said form. Back portion of Exh.98 about Salman Khan is a carbon copy. It appears that Dr. Pawar had written the word “for blood collection” on the back portion of Exh.98 as it was not imprint. According to Mr. Shivade, Exh.98 is the fabricated copy. In Exh.98 case papers, there is no mention about the consent obtained from accused prior to his examination. PW¬20 also admitted that the dilation of the pupils is not conclusive test of consumption of alcohol. He also admitted that on the back portion of Exh.98 there is no mention that breath smells alcohol. In EPR register, it is mentioned to that effect. PW¬20 also cannot say why the word “alcohol” was not imprint on the back portion of Exh.98. If really the said case paper was the fabricated document as argued by ld. Advocate Mr. Shivade, then it would be very easier to Dr. Pawar to write about alcohol by ball pen. This is not done by Dr. Pawar. Dr. Pawar has no enmity or grudge against the accused to implicate accused.
2 Dr. Pawar admitted that he does not know about the blood test rules. In my opinion, every Doctor who takes the blood in prohibition case must know about the rules for taking sample. However, in view of the above discussion, the evidence of Dr. Pawar cannot be thrown away.
3 PW¬20 Pawar also gave evidence in the Metropolitan Magistrate Court. He had carried EPR register along with him in the Court of Magistrate at the time of giving evidence. He also admitted that there is an endorsement in his handwriting on 20.11.2010 that copy of the Art. B case paper marked in the lower Court regarding true copy and he endorsed that contents in Art. B i.e. case papers are as per EPR book. Art. B is at Exh.103. It is pertinent to note that accused was examined in J.J. Hospital and according to Mr. Shivade, the evidence as regards the examination of accused is contradictory. PW¬20 Dr. Pawar denied that the accused was discharged at about 02.30 p.m. from the room. Portion marked “A” also shown to him from the cross¬examination that at about 02.30 after collecting the blood sample the patient was discharged from the room, is recorded as per his say. Portion marked “A” is at Exh.104.
322. PW¬20 also admitted that Salman Khan brought at 02.25
p.m. In cross¬examination he admitted that at the relevant time, no blood special kit for collection of blood was provided. He also admitted that the place for keeping phials is in examination room. The syringes were also kept near phials in examination room. He also admitted that rubber stoppers are provided for phials or bottles. He also cannot say who brought the box containing phials from store room in examination room. The two bottles were kept by him on the platform in examination room till he draw the blood. The phial is having oxalate preservative is having white colour. He cannot comment whether preservative used in the phial to prevent fermentation, coagulation and also enzamatic reaction in the blood. The preservative also used to prevent haemolysis. Witness stated that the phial which was having oxalate was a labelled phial. The oxalate keeps the blood whole in tact. He admitted that after extracting of blood, the process of coagulation of blood starts. However, he unable to tell how much time would require for coagulation, the blood transferred in phial.
1 PW¬20 Dr. Pawar also admitted that oxalate is known as Anticoagulant of the blood. Therefore, in the medical field, the oxalate is called as preservative.
2 PW¬20 Dr. Pawar also stated that he heard about sodium fluoride for collecting of the blood for testing the blood sugar level. According to him, prior to sealing the plain bottle of 3 cc blood, coagulation of blood must have started. He cannot say whether if alcohol test is done, when the percentage of alcohol would find more in serum than rest of the blood components. He also unable to tell whether oxalate preservative is not used in phial, then in that case, in the blood, fermentation, coagulation, enzamative reaction and haemolysis would ensue.
3 Further Pw¬20 Pawar also admitted that in the atmosphere as well as the vicinity there are different microorganisms existing. He cannot comment whether a glass of juice is kept open, without any cover or lid, then the process of spoiling the juice will start. PW¬20 also stated that he heard that beer is manufactured by fermentation process. Fermentation process is common and natural in everyday’s life i.e. because of yeast. Yeast is a microorganism and is available every where, when one touches, in air. After opening the cover or lid of the juice bottle, the juice exposes to the air. PW¬20 unable to comment whether if the fermentation is caused in respect of the juice, there would be alcohol fermentation. According to him, if the conditions are right, blood would ferment. He cannot say the quantity of oxalate in grams used in phial. He presumed that quantity of oxalate in phial is correct as per the size of phial. Even he cannot tell how much quantity of the oxalate is required for the particular of blood in C.C.
1 PW¬20 also admitted that protocol is defined as what sort of care, precaution and procedure is to be following while drawing the blood sample. He also stated that micro organism are not visible by necked eye. According to him, at one side of sticking plaster, there is adhesive gum existing. Adhesive side of the sticking plaster is pasted with the bottle or phial at the time of wrapping it. PW¬20 also stated in cross¬examination that the ward boy had cut the sticking plaster from the roll for wrapping the bottle. The time was not noted. Two phials were wrapped and sealed by ward boy within 2 to 3 minutes time. PW¬20 also admitted that the constable to whom he delivered the sample is supposed to be keep the custody of the sample till the sample reaches to the C.A.
2 PW¬20 Dr. Pawar also admitted that as per the memo (Exh.97), Bandra police requested him to take blood sample. He put the time 03.00 p.m. below the signature. He also did the clinical examination of the accused.
3 According to PW¬20, 5 to 6 minutes time is required to note the entry in register and 4 minutes time is required to fill form “A” and “B” together. PW¬20 stated that he started extracting the blood from Salman around 3.00 p.m. According to PW¬20, as per Exh.102, the time of sealing is written as 02.25 p.m. Witness also stated that it is the EPR number and time was written while preparing the number. Further PW¬20 admitted in Exh.102, time of drawing the blood mentioned as 02.30
p.m. which is correct.
1 Ld. Advocate Mr. Shivade vehemently submitted that there is a discrepancy about timing of drawing blood. It is pertinent to note that Salman Khan also admitted u/s.313 of the Cr. PC that in J.J. Hospital blood was extracted. Salman Khan never stated u/s.313 of the Cr.P.C. that Dr. Pawar drew blood for two times. Even if there appears any discrepancy about the time mentioned in the case paper about drawing blood of Salman, I find that that would not vitiate the case of prosecution, when accused admitted u/s.313 of the Cr. P.C. about extracting the blood by Dr. Pawar.
2 Further PW¬20 Pawar also stated that the lakh is melted by a ward boy in front of him at the time of doing the seal. 1 minute time was required for ward boy for putting the lakh on phial and also putting the seal. During the course of evidence, the witness is shown Second Edition Book of Writer Shri V.V. Pillay of “Comprehensive Medical Toxicology”. He was shown para 3(a). He agree with the column 3(a) which is “Several antihistaminic, decongestant, multivitamin, and cough syrups contain varying percentage of alcohol (2 to 25%). Mouthwash is base of alcohol. He also agrees that “Solven for after¬shaves, colognes, mouthwashes and perfumes, the alcohol content in these is variably (15 to 80%).
- The defence also put some computerized research papers to PW¬20. He stated that he is not aware about “blood alcohol concentration in plasma were approximately 11% higher than the whole blood and those in supernatant sample were about 5% higher”. According to witness, he has not read the research paper. It was also suggested to the witness that some hospitals may only test the serum . Producing blood alcohol concentration for blood sample, one may produce blood alcohol count levels upto 25% higher than the whole blood results. Further according to PW¬20 he has not read the research papers. Further PW¬20 is also not aware when it was suggested, “when human blood decomposes, naturally occurring microbes can change the sugar in blood in alcohol. This is the same type of fermentation that occurs in the manufacture of beverage and alcohol. Further portion now shown to him is from research papers as follows:¬
“Clearly, the risk of fermentation will vary according to the mount of preservative used. However, it will also be directly affected by the length of time the sample is stored, and by the temperature at which it is stored. Sodium Fluoride of 1 percent or less concentration is stable for only about two days, Dr. Kay’s article concludes that less than 1 percent sodium fluoride (100 mg/10 ml blood) “can allow microorganisms to grow and can also inhibit glycolysis and thus provide and thus provide glucose for the unkilled microorganisms to ferment into alcohol.” Dr. Dubowsky, however, reflects common law enforcement practice in recommending that 15 mg/10 ml blood is sufficient. An Australian study concluded that 1 percent of sodium fluoride was the only preservative and strength found effective in preventing fermentation. That study also concluded that, despite the presence of preservative. “significant increase in the concentration of ethyl alcohol may occur when blood samples taken at autopsy are left at room temperature for two days.”
1 PW¬20 Dr. Pawar stated that paper shown to him is from research paper and he is not expert in Forensic Medicine.
2 Further portion shown to him from research paper as follows:¬“As has been previously indicated, the production of alcohol in blood caused by among other agencies, yeasts such as Candida albicans, is a constant problem. As researchers have observed. C. albicans is commonly found in man, usually in the oral cavity and digestive tract, and less commonly in the vaginal tract of women. Though generally harmless, it can manifest itself as a pathogen. The organism has been called the most common and most serious pathogen of man. The legal ramifications of this are obvious. If an organism common to man is capable of producing ethyl alcohol in stored blood, the question arises. Are the results of alcohol analysis reflective of an individual’s level of intoxication or post¬testing fermentation?”
1 Further PW¬20 Pawar stated that he cannot agree or disagree with the portion. He is not a post¬graduate person and therefore, cannot opine about what has mentioned in the portion which is reproduced above.
2 During cross¬examination, PW¬20 stated that he cannot say if fermentation occurs in the blood then to what extent percentage of blood would notice in the blood analysis. He cannot say candida albicans is one of the organism shown for fermentation of blood sample inside the tube. PW¬20 stated that blood gets fermented, then it would produce the alcohol and it is possible that it can cause false high test result of the alcohol. According to him, haemolysis is the breakage of the red blood cells membrane and haemolysis is a common occurrence in blood sample. It may cause fermentation.
3 According to him, Sodium fluoride is one of the preservative preventing fermentation and glycolysis in the blood. During evidence, Civil Medical Code was shown to the witness and according to him, he has not read it. There are directions given in Maharashtra Civil Medical Code that in prohibition cases, the Medical Officers should take 5 mg. of sodium fluoride and 15 mg of potassium oxalate as anti¬coagulant for 5 ml. of the blood to be collected in it.
4 According to PW¬20 he had taken 3 cc blood sample each in in two phials totaling 6 cc. Because of the practice following in J.J. Hospital, he had not put 5 cc of blood in the phial. According to him, in order to draw correct conclusion, it is necessary to send two phials to Chemical Analyzer.
1 PW¬20 Pawar stated that if there is no preservative in the phial and phial is stored without refrigeration, then decomposition would start. He also admitted that Sodium Fluoride is one of the preservative used for prevention of glycolysis which may prevent fermentation. He cannot tell what changes would occur in sample having no sodium fluoride used as preservative.
2 Further in cross¬examination PW¬20 stated that Exh.100 and Exh.101 are the labels according to him. Exh.100 And Exh.101 were not having seal or lakh. He also stated he has not mentioned in Exh.102 that two phials were sealed.
3 Further PW¬20 also admitted that there is no distinction written on the two labels as to which phial is having oxalate and which phial is a plain phial. He cannot say as to whether Exh.100 and Exh.101 are the labels were pasted on phials having oxalate or pasted on plain phial. There is no marking on the plain phial whether the preservative has added or not. Further there is no endorsement in Form “A” and “B” that sealed envelops were sent and also in EPR register (Exh.99). Further there is no mention in (Exh.99) EPR Register that two sealed phials were handed over to PC 2985 and his acknowledgment taken on the register. He admits that it is necessary to write the buckle number and signature is to be obtained in whose custody said sample of blood is delivered. PSI Salunke (PW¬22) was present at that time. In Exh.98, it was written that the blood sample was handed over to PC 2985 and PSI Salunke.
1 PW¬20 Pawar also admitted that there is no endorsement in the case papers (Exh.98) that the sample was sealed and was handed over to PC 2985 and PSI Salunke and also no endorsement in form “A” and “B” to that effect.
2 In cross¬examination, suggestions were given to PW¬20 that he did not follow the rules and regulations and he is deposing falsely that he obtained the blood sample from Salman and also sealed in his presence. Further he has not stated in the evidence recorded before the Metropolitan Magistrate, Bandra, that he had obtained verbal consent from Salman for extracting the blood sample. He also stated that it did not happen that two sealed phials and form “A” and “B” were put in one envelop which was sealed by lakh. It is pertinent to note that the defence never put suggestion to the said witness that the accused never consumed any alcohol.
3 PW¬22 Vijay Salunke took Salman Khan on 28.09.2002 to
J.J. Hospital for medical examination for blood alcohol test. He also identified report (Exh.97). According to him, Medical Officer drawn the blood from Salman at the request of Bandra police. After extraction the blood sample was given by Medical Officer in the possession of Constable to deliver the said envelop in to the possession of PW¬27 Shengal. In cross¬examination he stated that he does not recollect the name of constable to whom the blood sample was delivered by the Medical Officer after extracting from Salman Khan. PW¬22 also admitted in the cross-examination that in his presence, the constable has handed over the blood sample to PW¬27 Shengal. So it is established on record that after extraction blood sample was given to PW¬27 Shengal.