Bombay High Court
Salman Salim Khan vs The State Of Maharashtra on 10 December, 2015
Bench: A.R. Joshi
1 CR APEAL-572-2015-JUDGMENT.doc
Deshmane and
Ladda(PS)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 572 of 2015
Salman Salim Khan,
Age about 49 yrs, Occ.-Actor,
Resident of 111A, Galaxy Apartments,
B.J. Road, Bandra (West),
Mumbai-400 050. ..APPELLANT.
(Orig. Accused)
Versus.
The State of Maharashtra,
(Through:-
Bandra Police Station) ..RESPONDENT.
WITH
CRIMINAL APPLICATION No. 1041 of 2015
IN
CRIMINAL APPEAL No. 572 of 2015
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..............
Mr Amit Desai, Senior Counsel with Mr Anand Desai,
Mr Nirav Shah, Mr Munaf Virjee, Ms Chandrima
Mitra, Ms Manasi Vyas, Mr Nausher Kohli, Mr
Niranjan Mundargi, Mr Gopala K. Shenoy, Mr Manhar
Saini i/by DSK Legal for the Appellant.
Mr S.K.Shinde, Public Prosecutor with Mrs P.H.
Kantharia, Mr.Deepak Thakare and Mr S.H. Yadav,
APP for the Respondent-State.
..............
CORAM : A.R.JOSHI, J.
DATED : 7th, 8th, 9th and 10th DECEMBER, 2015
ORAL JUDGMENT:
th
DICTATION ON 7 DECEMBER, 2015
:
1. Present Criminal Appeal is preferred by the
appellant/accused challenging the judgment and order
of conviction dated 6.5.2015. Said order of conviction
was passed by the Sessions Court at Bombay in
Sessions Case No.240 of 2013. By the impugned
judgment and order the appellant/accused was
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convicted for various offences and sentenced to suffer
respective imprisonments and was also directed to pay
fine. Following is the operative part of the judgment
and order :
"1. Accused Salman Salim Khan is
convicted u/s.235(2) of the Code of
Criminal Procedure for the offence
punishable u/s.304 II of the Indian
Penal Code and sentenced to suffer
Rigorous Imprisonment for a period of
five (5) years and to pay fine of
Rs.25,000/ (Rupees Twenty Five
Thousand only), in default to suffer
Rigorous Imprisonment for a period of
six (6) months.
2. Accused Salman Salim Khan is
also convicted u/s.235(2) of the Code
of Criminal Procedure for the offence
punishable u/s.338 of the Indian Penal
Code and sentenced to suffer Simple
Imprisonment for a period of one
(1) year and to pay fine of
Rs.500/ (Rupees Five Hundred only),
in default to suffer Simple Imprisonment
for a period of one (1) month.
3. Accused Salman Salim Khan is
also convicted u/s.235(2) of the Code
of Criminal Procedure for the offence
punishable u/s.337 of the Indian Penal
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Code and sentenced to suffer Simple
Imprisonment for a period of three (3)
months and to pay fine of Rs.500/
(Rupees Five Hundred only), in default
to suffer Simple Imprisonment for a
period of one (1) month.
4. Accused Salman Salim Khan is
also convicted u/s.235(2) of the Code
of Criminal Procedure for the offence
punishable u/s.134 r/w. Sec.187 of the
Motor Vehicles Act, 1988 and sentenced
to suffer Simple Imprisonment for a
period of two (2) months and to
pay fine of Rs.500/ (Rupees Five
Hundred only), in default to
suffer Simple Imprisonment for a
period of fifteen (15) days.
5. Accused Salman Salim Khan is
also convicted u/s.235(2) of the Code
of Criminal Procedure for the offence
punishable u/s.185 of the Motor
Vehicles Act, 1988 and sentenced
to suffer Simple Imprisonment for
a period of six (6) months and
to pay fine of Rs.2,000/ (Rupees
Two Thousand only), in default to
suffer Simple Imprisonment for a
period of one (1) month.
6. Accused Salman Salim Khan is
also convicted u/s.235(2) of the Code
of Criminal Procedure for the offence
punishable u/s.3(1) r/w. 181 of the
Motor Vehicles Act, 1988 and sentenced
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to suffer Simple Imprisonment for a
period of two (2) months and to
pay fine of Rs.500/ (Rupees Five
Hundred only), in default to
suffer Simple Imprisonment for a
period of seven (7) days.
7. All the substantive sentences
shall run concurrently.
8. The accused is on bail. He shall
surrender his bail bonds.
9. ig Set off be given to the
accused u/s.428 of the Code of
Criminal Procedure for the period
undergone by him in the prison.
10. The seized articles be destroyed
after appeal period is over.
11. Unmarked articles, if any, be
destroyed after appeal period is over.
12. The vehicle was returned to the
accused Salman Khan on Supurtnama
(bond). The Supurtnama (Bond) be
cancelled after appeal period."
2. Reportedly, the fine amounts are already paid
and the present appellant/accused is granted bail
during pendency of appeal.
3. Being aggrieved by the judgment and order of
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conviction, present appeal is preferred on various
grounds. Those grounds have been dealt with
hereunder at the appropriate place.
4. Present appellant was granted bail during
pendency of the appeal and by consent of the parties
the hearing of the appeal was expedited by this Court
vide order dated 8.5.2015 (Coram : A.M. Thipsay, J.).
Under this premise, present appeal was taken for final
hearing and the rival arguments were heard at length.
It is specifically mentioned that though the appeal is
challenging the conviction for the main offence
punishable under Section 304 Part II of IPC, various
other aspects were also argued as to the involvement
of the appellant as a driver of the motor vehicle
involved in the incident and whether he was under the
influence of alcohol or whether it was pure and simple
accident due to bursting of the tyre of the vehicle. As
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such, considering the scope of the matter and
considering the conviction of the appellant awarded
by the Sessions Court after examination of 27
witnesses, learned Senior Counsel for the appellant
argued the matter since 30.7.2015. Initially the
matter was started for arguments on 30.7.2015 and
was taken on 5.8.2015, 6.8.2015 and 7.8.2015.
Thereafter it so happened that various objections were
raised on behalf of the appellant as to the manner in
which the paper book of the appeal was prepared and
as such time was consumed in between and after the
final paper-book in four volumes is prepared by the
office of the Court. The appeal was then taken for
arguments from 21.9.2015 and the hearing lasted till
4.12.2015.
5. It is the case of prosecution that the present
appellant, a famous film star of Hindi cinemas drove
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the motor vehicle Toyota Land Cruiser (Registration
No.MH 01-DA-32) (hereinafter referred to as "the said
car".) He drove the said car on the night between
27.9.2002 and 28.9.2002. Specifically it is the case of
the prosecution that at early hours of 28.9.2002, he
drove the said car in high speed and in rash and
negligent manner and that time he was under the
influence of alcohol. It is the case of prosecution that
on the night of 27.9.2002 at about 9:30 p.m. or so the
appellant took out the said car. He was accompanied
by his friend one Kamal Khan (not examined in the
present matter) and his police bodyguard one
Ravindra Himmatrao Patil (since deceased).
According to the case of prosecution the
appellant/accused was driving the said car from his
house at Galaxy Apartments Bandra and firstly visited
Rain Bar. In the Rain Bar the appellant and his friend
Kamal Khan went inside and his bodyguard Ravindra
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Patil remained outside. It is also the case of
prosecution that brother of the appellant one Sohail
Khan also visited Rain Bar at the relevant time and the
bodyguard of Sohail Khan was present outside the
Rain Bar. Name of said bodyguard of Sohail Khan is
Balu Laxman Muthe (PW-6).
6.
It is the prosecution's case that at Rain Bar
various eatables and drinks were served to the
appellant and his friend and others. This service was
given by one waiter by name Malay Bag (PW-5), who
was then on duty at Rain Bar. After consuming the
food and drinks which included alcohol (Bacardi), a
White Rum and some cocktails, the appellant and his
friend left Rain Bar and then visited hotel JW Marriott.
Again according to the case of prosecution the
appellant/accused was driving the said car and his
bodyguard Ravindra Patil sat by the side of driver's
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seat in the front and the friend Kamal Khan sat at the
rear seat. At hotel JW Marriott the appellant/accused
and his friend went inside and again Ravindra Patil
remained outside.
7. According to the case of prosecution at about
2:15 a.m. or so on 28.9.2002 the appellant and his
friend Kamal Khan came out of hotel JW Marriott.
Again the appellant sat on the driver seat and his
bodyguard Ravindra Patil sat by his side on the frond
seat and Kamal Khan sat at the rear and they started
coming back to the house of the appellant via St.
Andrews Road and Hill Road. It is also specific case of
the prosecution that at that time the appellant was
under the influence of alcohol and was driving the car
at very high speed of about 90 to 100 km. per hour.
Ravindra Patil, the bodyguard, cautioned him to lower
down the speed but the appellant did not pay any
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heed. Consequently the appellant lost his control over
the car while negotiating the right turn at the junction
of St. Andrews Road and Hill Road. The appellant
dashed the said car on the shutters of American
Laundry which is situate at the junction. Said impact
resulted in the death of one person by name Nurulla
and injuries to four persons who are PW-2, PW-3, PW-
4 and PW-11. The deceased and the injured were
sleeping on the platform in front of American Laundry.
Due to the impact there was a loud noise and there
was a sort of commotion that followed. Many people
gathered on the spot after hearing the noise and they
saw the appellant coming out from the car. They also
saw that few persons were below the car and
apparently under the tyre. They noticed that one
person was seriously injured and he subsequently died
and four persons sustained injuries. Out of them two
persons received grievous injuries and two persons
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received simple injuries.
8. It is also the case of prosecution that the mob
which was gathered on the spot after the incident was
rather furious and apparently there was manhandling
of the inmates of the car including Ravindra Patil,
police bodyguard of the appellant. Said bodyguard
sensing the seriousness of the situation showed his
police identity card and proclaimed that he was a
police officer. As such, he pacified the people who had
gathered there who were angry and aggressive. It is
also the case of the prosecution that the appellant and
his friend Kamal Khan ran away from the spot without
giving any help to the persons involved in the incident.
In the meantime intimation was given to Bandra Police
and within few minutes the police persons arrived at
the spot and took charge of the situation. The incident
of impact of the car on the shutters of American
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Laundry happened around 2:45 a.m. on 28.9.2002.
When the police persons arrived on the spot the
bodyguard Ravindra Patil was also present there. A
crane was called and the car was lifted and taken
aside. The injured persons were rescued from beneath
the car and taken to Bhabha Hospital for medical
treatment and examination. One person was found
dead. Subsequently he was identified as one Nurulla.
Dead body of Nurulla was taken to Bhabha hospital
and some blood samples from the dead body were
collected for analysis.
9. The statements of injured persons were
recorded during investigation. However prior to that
the spot panchnama (Exhibit-28) was conducted after
the spot was shown by Ravindra Patil. The spot
panchnama was conducted under the supervision and
directions of police inspector Rajendra Kadam (PW-
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26). PW-1 one Sambha Gavda was one of the panch
witnesses. Various articles were collected from the
spot like broken glass pieces, piece of shutter of
American Express Laundry, blood stained soil etc..
The documents concerning the car like RTO and
insurance papers were also collected. Key of the car
was also taken charge of by the police.
10. Ravindra Patil, the bodyguard of the
appellant was enquired at Bandra Police Station. He
lodged his complaint. It was later on marked as
Exhibit-P-1 during the recording of the evidence before
the Metropolitan Magistrate Court when the case was
first tried there when the main offence against the
present appellant/accused was punishable under
Section 304A of IPC. It so happened that initially on
lodging of the FIR the main charge was for the offence
under Section 304A of IPC. However various
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subsequent events occurred and there was application
of applying section 304 Part II of IPC. The events
which took place from lodging of the FIR in the matter
till case was committed to the Court of Sessions, shall
be detailed hereunder at the appropriate place.
During investigation, police took steps to search the
appellant by visiting his house but he could not be
found. Subsequently the appellant/accused was
arrested in the morning of 28.9.2002. According to
prosecution, initially the appellant was taken to
Bhabha hospital for taking his blood sample as it was
the case of prosecution that the appellant was under
the influence of alcohol and driving the car in rash
and negligent manner and thereby caused the
incident, killing one person and injuring four persons.
Though according to the prosecution the appellant
was taken first to Bhabha hospital for extracting blood
for alcohol test, it is also the case of prosecution that
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the blood could not be extracted at Bhabha hospital
for want of proper equipments and facility. This
aspect shall also be dealt with hereunder as to
whether this fact has been established by the
prosecution by any cognate evidence and it is also to
be ascertained whether this case of prosecution can be
accepted in the light of the factual position that
Bhabha hospital does have ICU unit and also
admittedly the blood of the deceased Nurulla was
extracted there for testing. The fact remains that as
the blood could not be extracted at Bhabha hospital,
the appellant was taken to JJ Hospital in the afternoon
of 28.9.2002 at about 1:30 p.m. or so. His blood
samples were collected at JJ Hospital by one Dr.
Shashikant Pawar (PW-20). Said blood samples along
with requisite forms A & B as per the Bombay
Prohibition (Medical Examination and Blood Test)
Rules, 1959 were given in the custody of police
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constable and they were taken to Bandra Police
Station. It is also the case of prosecution that though
the blood samples were collected and received from JJ
Hospital in the afternoon of 28.9.2002 they were
immediately not sent to the Chemical Analyzer's office
at Kalina, Santacruz as the CA office was closed.
Consequently the blood samples were sent to the
office of CA on 30.9.2002. Admittedly samples
remained in the custody of the police in the meantime.
They were kept in the chamber of PI Shengal (PW-27).
The condition in which the blood samples were kept
was a crucial aspect and much emphasis was placed
on this by the learned Senior Counsel for the appellant
as to the storage of said biological evidence. This
aspect shall also be dealt with in detail when minutely
the arguments advanced on behalf of the appellant
will be considered for analyzing the case of
prosecution as to drunken driving and causing death
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and injuries.
11. As mentioned above, the blood samples
reached the CA office on Monday i.e. 30.9.2002 and
on the next day i.e. on 1.10.2002 the analysis report
was received by the police. According to the said
report (Exh.81) the blood contained 0.062% w/v of
ethyl alcohol i.e. weight by volume 62 mg per
thousand ml.
12. Initially the investigation was conducted by
PW-26 one Rajendra Kadam, then working as PSI
Bandra Police Station. Subsequent investigation
from 1.10.2002 was conducted by Sr. P.I. Kisan
Shengal (PW-27). However, he is also the police
officer who visited the spot immediately after the
incident as he was informed by PSI Kadam over
telephone regarding the incident.
13. During investigation, statements of various
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witnesses were recorded. The motor vehicle involved
in the incident was also inspected by Motor Vehicle
Inspector (PW-19) Rajendra Sadashiv Keskar.
According to him he inspected the vehicle on
29.9.2002 at about 9:30 a.m. and gave his report
which is at Exh.84. It is the specific evidence of this
witness appearing in notes of evidence in paragraph-3
of his evidence recorded before the Sessions Court.
There is certain variance in the substantive evidence of
this witness. This is because of some answers given by
him in his cross-examination. This variance is as to on
which date or dates he examined the vehicle. Again
this aspect was much emphasized by the learned
Senior Counsel for the appellant and the same shall be
dealt hereunder at the appropriate place.
14. During investigation Sr. P.I. Shengal (PW-27)
visited Rain Bar and recorded the statements of the
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waiter Malay Bag (PW-5) and manager Rizwan
Rakhangi (PW-9). Certain bills from the Rain Bar
were collected during the investigation in order to
establish that the drinks containing alcohol were
ordered and consumed by the appellant and his
friends who were accompanying him and were with
him in Rain Bar. PW-27 Kisan Shengal also visited the
hotel JW Marriott and recorded statements of one
Kalpesh Verma (PW-12). He was then working as a
parking assistant at JW Marriott hotel. PW-27 Kisan
Shengal also collected the parking tag from the hotel.
At this juncture it is also necessary to point out that
said parking tag was not seized and apparently there
was no panchnama drawn for alleged seizure of the
parking tag and this factual position has been
substantiated by evidence of PW-27.
15. During investigation, enquiries were made
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with RTO Tardeo and also Andheri RTO seeking
information on whether driving licence was obtained
by the appellant. It was reported back by said RTO
offices that the appellant was not given any driving
license by said offices. At this juncture it must be
mentioned that even it is not the case of the appellant
that he had a valid motor driving license in his name
as on the date of the incident.
16. During investigation, statements of some of
the witnesses were also recorded under Section 164 of
Cr.P.C., before the Metropolitan Magistrate Court
No.12, Bandra. Statement of one Kamal Khan, a
friend of the appellant, was also recorded under
Section 161 of Cr.P.C. on 4.10.2002. At this juncture it
must be mentioned that this Kamal Khan was all along
accompanying the appellant on that night between
27.9.2002 and 28.9.2002 i.e. from 9:30 p.m. on
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27.9.2002 till the happening of the incident at about
2:45 a.m. on 28.9.2002. Again at this juncture it must
be mentioned that though said Kamal Khan was the
important eye witness and all along present in the car
and was accompanying the appellant and his
bodyguard Ravindra Patil, said Kamal Khan was not
examined even before the Metropolitan Magistrate
Court when the matter was before the M.M. Court or
before the Sessions Court when the matter was
committed to it. This aspect shall also be dealt in
detail as at the fag end of the arguments in this
appeal, an application was preferred on behalf of the
appellant under Section 391 of Cr.P.C.. By said
application request was made to the Court to call said
Kamal Khan as a court witness mentioning that his
substantive evidence before the Court would throw
light on the factual position, more so when the first
informant Ravindra Patil was not available for cross-
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examination before Sessions Court when the Sessions
Case was tried. The evidence of Ravindra Patil before
the Metropolitan Magistrate Court recorded in the
year 2007 was accepted by the Sessions Court under
Section 33 of the Evidence Act. The said application
under Section 391 of Cr.P.C. is dismissed by this Court.
This aspect shall also be dealt in detail while
appreciating the arguments advanced on behalf of the
appellant.
17. On 1.10.2002 supplementary statement of
Ravindra Patil (since deceased) bodyguard of the
appellant, was recorded. It must be mentioned that
for the first time the prosecution came with a case that
the appellant had consumed alcohol during the
incident on 28.9.2002. Apparently this theory of the
appellant consuming alcohol came in the
supplementary statement of Ravindra Patil recorded
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on 1.10.2002 and it is admittedly not present in the
first information report which was immediately
recorded after the incident of 28.9.2002. Of course
this aspect needs careful scrutiny when the defence of
the appellant is that he was not under the influence of
alcohol and moreover he was not driving the said car.
This aspect shall also be dealt in detail at the
appropriate place.
18. On 7.10.2002 Section 304 Part II of IPC was
added by the investigating agency. This information
was provided to the concerned Magistrate Court which
was then dealing with the remand application of the
appellant/accused. Earlier the appellant was released
on bail on his production before the Metropolitan
Magistrate Court and subsequently when Section 304
Part II of IPC was added he again voluntarily
surrendered to the police on 7.10.2002 and then was
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released on bail.
19. After completion of investigation charge-sheet
was filed before 12th Metropolitan Magistrate Court,
Bandra on 21.10.2002. On 31.1.2003 the case was
committed to the Court of Sessions as the offence then
applied under Section 304 Part II of IPC was
exclusively triable by the Court of Sessions. The
appellant/accused filed Misc. Application
No.463/2003 before the Sessions Court contending
that the provisions of Section 304 Part II of IPC cannot
be attracted on the facts and circumstances of the case
alleged against him. Said application was heard and
rejected by the Sessions Court. The Sessions Court
framed the charges against the appellant/accused for
the offences punishable under Sections 304 Part II,
308, 279, 337, 338, 427 of IPC and under Section
134(a) & (b) read with Section 187 read with Sections
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181 and 185 of M.V.Act, 1988. In fact the offence
under Section 66(i)(b) of the Bombay Prohibition Act
was also framed.
20. The appellant/accused pleaded not guilty to
the charges. However, he did prefer Criminal Writ
Petition No.2467 of 2003 before this Court. Said
petition was apparently under Section 482 of Cr.P.C..
It was allowed by this Court and the order of the
Sessions Court to the extent of framing charge under
Section 304 Part II of IPC was quashed and set aside.
This order was challenged by the State before the
Apex Court by filing Criminal Appeal No.1508 of
2003.
21. The Hon'ble Apex Court set aside the order of
this Court as well as the order of the trial Court and
kept the issue of framing of the charge under Section
304 Part II of IPC, open and to be decided at the
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appropriate stage by the learned Metropolitan
Magistrate Court as by that time it was the factual
position that the learned Metropolitan Magistrate
Court, Bandra had already framed fresh charges
including the main charge for the offence under
Section 304A of IPC. This was the action taken by
M.M. Court in consonance with the order of this Court
quashing the charge for the offence under Section 304
Part II of IPC. The Hon'ble Apex Court felt it
appropriate to set aside the finding in regard to
sufficiency or otherwise of the material to frame the
charge for the offence punishable under Section 304
Part II of IPC. The Apex Court thought it appropriate
that said issue would be left open to be decided by the
Court trying the offence under Section 304A of IPC
and to alter or change any such charge at appropriate
stage based on the evidence produced by the
prosecution.
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22. Under the above premise, the matter was
taken before the Metropolitan Magistrate Court at
Bandra and almost 17 witnesses were examined.
Without much going into the details as to the evidence
of those witnesses, suffice it to say that after the
examination of 17 witnesses and admittedly when
only the investigating officers were to be examined,
the prosecution thought it fit to file an application for
adding the charge under Section 304 Part II of IPC.
Accordingly said application was made and
entertained by the Metropolitan Magistrate Court and
allowed. In the result, the case was committed to the
Court of Sessions and it was held by the Magistrate
that the material then brought on record does indicate
that it is a case of framing of charge under Section 304
Part II of IPC. The matter reached the Sessions Court
on about 31.1.2013 and it was numbered as Sessions
Case No.204 of 2013 and only after hearing and
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recording evidence of 27 prosecution witnesses and
one defence witness, the Sessions Court passed the
order of conviction which is impugned in the present
appeal.
23. When the matter was thus committed to the
Court of Sessions and when the charge was framed, a
plea was taken on behalf of the appellant for discharge
under Section 227 of Cr.P.C. which was rejected by the
Sessions Court. Thereafter detailed charge was
framed on 24.7.2013. For the sake of ready reference
said detailed charge is reproduced hereunder as it is of
much significance inasmuch as there is no charge for
the offence under Section 66(i)(b) of Bombay
Prohibition Act. Heads of charge reads as under :
"That on 28/09/2002 at about 2:45
a.m., near American Express Cleaners,
St. Andrews Road and Ramdas Nayak
Marg (Hill Road), Bandra (West),
Mumbai - 400 050:-
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Firstly : committed culpable homicide
not amounting to murder by causing
death of Nurulla Mehboob Shaikh by
driving your Toyata Land Cruiser
bearing No. MH-01-DA-32, in rash or
negligent manner and in drunken
condition, with the knowledge that by
the driving of supra car in supra
manner and condition, you were likely
to cause death and thereby committed
an offence punishable under Sec. 304
Part II of IPC, and within the
cognizance of this Court;
Secondly :- by driving said car rashly
or negligently so as to endanger
human life or personal safety of others
caused hurt to Kalim Mohd Pathan
and Munna Malai Khan, aged 24 & 29
respectively and thereby committed an
offence punishable under section 337
I.P.C., and within the cognizance of this
Court;
Thirdly :- by the said act of driving
car rashly or negligently as to
endanger human life or the personal
safety of others, caused grievous hurt
to Abdul Rauf Shaikh aged 18 years
and one Muslim Niyamat Shaikh aged
17 years and thereby caused an offence
punishable under section 338 of I.P.C.,
and within the cognizance of this
Court.
Fourthly : while driving the said car
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in public place you were not holding a
valid driving licence and thereby
committed an offence U/s. 3(1) of
Motor Vehicles Act, 1988 and
punishable U/s. 181 of said Act and
within the cognizance of this Court.
Fifthly :- That at the aforesaid date,
time and place you did not take
reasonable steps to secure medical aid
to the victim persons by conveying
them to nearest medical practitioner or
hospital and thereby committed offence
U/s. 134 of Motor Vehicles Act, 1988,
P/U/S. 187 of Motor Vehicles Act,
1988 and within the cognizance of this
court.
Sixthly :- failed to give information
about the incident / report /
circumstances of the occurrence of
incident to the police and thereby you
committed offence punishable U/S.
187 of Motor Vehicles Act, 1988 and
within the cognizance of this court.
Seventhly :- That you had in your
blood, alcohol exceeding 30 mg. Per
100 ml. i.e. .062% mg and that you
were under the influence of alcohol to
that extent so as to incapable of
exercising proper control over supra
vehicle and thereby you committed
offence punishable U/s. 185 of Motor
Vehicles Act, 1988.
I hereby direct that you be tried by
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this Court on the aforesaid charges.
NOTE: I have not framed charge of
the offence punishable U/s. 427 of IPC
because for committing mischief
contemplated by Sec. 427 of Cr.P.C.
intention is required. This was held in
Brij Mohan Kishansing Pardeshi Vs.
State of Maharashtra, 2006,
Cri.L.J. 1614."
24. The appellant/accused pleaded not guilty to
the said charge and claimed to be tried. Total 27
prosecution witnesses were examined. After recording
of the statement of the appellant/accused under
Section 313 of Cr.P.C., one defence witness by name
Ashok Singh (DW-1) was examined on behalf of the
defence. According to the defence this Ashok Singh
was driving the vehicle from JW Marriot hotel till the
spot of incident and again according to the defence he
was so driving in place of earlier driver by name Altaf.
25. During pendency of the trial and after
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framing of the charge, a question arose before the
Sessions Court as to whether the evidence earlier
recorded before the Metropolitan Magistrate Court,
when the charge was mainly for the offence
punishable under Section 304A of IPC, is to be treated
as an evidence in the sessions case after the committal.
That time rival arguments were heard. Import of
section 323 of Cr.P.C. and the provisions of Chapter
XVIII and the provisions of Sections 225 to 235 of
Cr.P.C. were discussed and considered. Consequently
the Sessions Court passed a detailed order on
5.12.2013 ordering fresh trial against the accused
thereby not accepting the evidence of the earlier
recorded prosecution witnesses i.e. 17 witnesses
recorded before the Metropolitan Magistrate Court.
This order is apparently not challenged by both the
parties and under this premise, total 27 prosecution
witnesses were examined and one defence witness
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was examined before the Sessions Court. Considering
the substantive evidence sufficient to establish the
guilt of the appellant/accused for the charges framed
against him and considering the effect of defence
witness and rejecting the evidence of the defence
witness even on preponderance of probabilities, the
trial Court convicted the appellant/accused for all the
charges as mentioned earlier at the threshold of this
judgment.
During the arguments various issues were
26.
raised by the learned Senior Counsel for the appellant.
Broadly the argument is based on three propositions :
(a) Firstly, that the appellant was not driving the
vehicle;
(b) Secondly, he was not drunk and was not under
the influence of alcohol at the time of incident;
and
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(c) Thirdly, it was pure and simple accident as left
side front tyre of the car burst thus the car
was beyond the control of the driver and met
with an accident.
27. Apart from the above three broad
propositions, it is also argued that there is incorrect
application of penal section 304 Part II of IPC and also
that the evidence before M.M. Court of one Ravindra
Patil (since deceased) should not have been taken help
of by the Sessions Court under Section 33 of the
Evidence Act. It was so argued on the factual position
that the evidence of Ravindra Patil was recorded
before the Metropolitan Magistrate when the main
charge was under Section 304A of IPC and before the
Sessions Court the main charge was for the offence
under Section 304 Part II of IPC and by the time the
matter reached the Sessions Court or even much
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earlier in the year 2007 said Ravindra Patil died and
was not available for cross-examination before the
Sessions Court. His evidence recorded before the
Metropolitan Magistrate was accepted as a substantive
evidence under Section 33 of the Evidence Act.
28. In order to appreciate the broad submissions
on behalf of the defence, the effect of the prosecution
evidence is required to be summarized. Broadly, the
following position of examination of witnesses vis-a-
vis the effect of their evidence can be chalked out.
[A] WITNESSES ON THE POINT THAT THE
APPELLANT/ACCUSED WAS DRIVING THE
CAR / COMING OUT OF THE CAR :
PW-2 injured witness one Muslim Niyamat Shaikh
who sustained grievous injury;
PW-3 injured witness Mannu Khan who received
injuries on his right leg. At this juncture it must be
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mentioned that the injuries sustained by this witness
are grievous injuries inasmuch as there was a fracture
of proximal phalynx of his right leg as apparent from
his medical certificate Exh.152.
PW-4 injured witness Mohd. Kalim Iqbal Patra who
received simple injuries to his right leg and left hand.
PW-11 injured witness Mohd Abdulla Shaikh who
received grievous injury and sustained abrasion.
29. Apart from the above witnesses, important
witness to the prosecution on this aspect of driving is
the police bodyguard i.e. Ravindra Patil. He was
examined before the Metropolitan Magistrate Court on
different dates and specifically on 5.1.2006, 2.2.2006,
6.2.2006 and thereafter on 16.3.2006. He is the
person who lodged First Information Report and
initially the main offence under Section 304A of IPC
was registered. He was examined before the
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Metropolitan Magistrate Court when the main charge
was under Section 304A of IPC and not under Section
304 Part II of IPC. His evidence was subsequently
accepted by the Sessions Court under Section 33 of
the Evidence Act as mentioned earlier.
30. Apart from the above witnesses, there are
other witnesses concerning the driving of the said car
by the appellant. Though these are not the witnesses
who actually saw the appellant driving the car they
are concerning the circumstances which according to
the prosecution establishes that the only inference
that can be drawn is that the appellant was driving the
vehicle and no other person. Said witnesses are - PW-
8 one Ramsare Ramdeo Pande who visited the spot
after hearing of the noise of the impact, PW-12
Kalpesh Verma working as parking assistant at JW
Marriott Hotel and apparently saw the appellant
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coming out of JW Marriott hotel and sitting on the
driver seat of the car.
[B] WITNESSES ON THE ASPECT OF
CONSUMPTION OF ALCOHOL BY THE
APPELLANT/ACCUSED :
PW-3 injured Mannu Khan. According to this witness
the appellant/accused was drunk during the incident
and due to drunkenness he fell down on the ground
twice and again woke up and ran away.
PW-5 Malay Bag, the waiter working in Rain Bar and
Restaurant.
PW-9 Rizwan Ali Rakhani, the Manager of Rain Bar
and Restaurant.
31. On this aspect of drunkenness of the
appellant, according to the prosecution, their other
important witness is Ravindra Patil, the bodyguard of
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the appellant. According to the prosecution, apart
from the point of appellant driving the car, this witness
is also on the point of consumption of alcohol by the
appellant. According to this witness in his substantive
evidence before the Metropolitan Magistrate Court he
has stated that the appellant/accused was under the
influence of alcohol.
32. There is another set of witnesses examined by
the prosecution and their evidence relate to the case of
prosecution as to the appellant/accused was under the
influence of alcohol during the incident. The said
witnesses are :
PW-20 Dr. Shashikant Pawar, Medical Officer from JJ
Hospital. He extracted the blood from the appellant
for alcohol test on 28.9.2002 at around 2:30 p.m. and
sent the blood sample to the CA office through police
constable.
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PW-18 one Dattatraya Balshankar, is the Assistant
Chemical Examiner from the office of CA at Kalina.
He analyzed the blood sample sent by the
Investigating Officer and gave his report (Exh.81) and
that the blood sample contained 0.062 mg of alcohol
w/v.
PW-21 is one Sharad Borade, a Police Naik then
attached to Bandra police station, who carried the
blood samples from Bandra Police Station to the office
of CA.
PW-22 is then PSI attached to Bandra Police Station
who brought the appellant/accused with other police
staff to JJ Hospital for clinical examination and also
for drawing blood sample for alcohol test.
[C] WITNESSES ON THE ASPECT OF BURSTING
OF TYRE OF THE CAR:
PW-19 Rajendra Keskar who is the RTO Inspector who
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inspected the vehicle i.e. the car involved in the
incident and gave inspection report (Exh.84). This
witness stated that the tyres of the vehicle were found
in good condition and only stated that the left side
front tyre was deflated.
PW-1 is the panch witness Sambha Gowda regarding
spot of incident. According to him, as mentioned in
his substantive evidence, the left side tyre of the car
was found punctured. It is also so mentioned in the
spot panchnama (Exh.28).
PW-8 Ramsare Pande stated that the left side tyre of
the car was found burst.
PW-13 Amin Shaikh stated that the tyre of the car was
found burst.
PW-26 Rajendra Kadam, investigating officer stated
that the vehicle involved in the accident had burst tyre
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and it was not in a position to be driven. He further
stated that the front left side tyre of the car was burst.
PW-27 Kisan Shengal stated that it was not possible
for him to send the front side left tyre of the car to the
forensic laboratory for ascertaining the accident and
cause of burst.
33.
Again on this aspect of bursting / puncture of
the left side front tyre of the car there is mention in
the spot panchnama (Exh.28) mentioning that the tyre
was punctured. As against this, the FIR given by
Ravindra Patil mentions the word burst.
34. Apart from the above, on this issue of
bursting/puncture of tyre DW-1 one Ashok Singh, a
defence witness, is also of much significance. He was
examined on behalf of the appellant/accused to
establish the defence firstly that the appellant was not
driving the vehicle and secondly that the incident
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occurred because of the bursting of the left side front
tyre of the car prior to car reaching the spot of the
incident.
[D] WITNESSES ON SPEED OF THE CAR AND
ROUTE TAKEN BY IT TILL REACHING THE
SPOT OF INCIDENT :
The speed of the car is also one of the significant
factors in the present case. So also the route taken by
the vehicle is also a significant factor.
Ravindra Patil is the prosecution witness who
mentioned that the car was being driven at the speed
of 90-100 km per hour.
The factual position is that there were no break
marks on the spot and there is no mention in the spot
panchnama to that effect.
35. The damage to the car is also not so extensive
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as it is apparent from the vehicle inspection report
(Exh.84) prepared by RTO Inspector PW-19 Rajendra
Keskar so as to establish that the impact happened at
90-100 km/ph.
36. So far as the route taken by the car, it is an
admitted position and substantiated by the evidence of
Investigating Officer and mainly PW-27 Mr. Shengal
i.e. the FIR at two places the route by which the car
was driven is mentioned as from "St. Andrews Road"
to "Hill Road". However, it is also an admitted
position that the initial words were "Manuel
Gonsalves" and these words are cancelled by slanting
marks and above these words "St. Andrews" is written.
It is significant that though this factual position is
admitted by PW-27 there is no explanation as to why
this alteration was made though it was the defence
that the vehicle took the route via Manuel Gonsalves
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road and the vehicle came to the Hill Road by taking
right turn from Manuel Gonsalves road and not from
St. Andrews Road.
37. Another argument on behalf of the appellant
was as to whether on given facts Section 304 Part II of
IPC is applicable or not. This aspect also shall be dealt
in detail at the appropriate place as in fact it is the
appreciation of the material available before the trial
Court as to acceptance or otherwise of knowledge of
the accused or whether simplicitor fact situation that
driving in a drunken condition can be accepted as a
knowledge that such driving is likely to cause death of
human being if the vehicle meets with an accident.
On this aspect two authorities are taken shelter of, in
fact by both the sides. First one is in the case of
Alister Anthony Pareira vs. State of Maharashtra
(2012) 2 SCC 648 and second one in the case of
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State vs Sanjiv Nanda (2012) 8 SCC 450. The ratio
of these authorities including the rival arguments
shall be dealt in detail when dealing with this aspect
of applicability or otherwise of Section 304 Part II of
IPC to the present matter.
38. Apart from the broad and other ancillary
points argued on behalf of the appellant there are still
other points argued such as whether the death of
Nurulla was on account of the incident or whether it
was by falling of a car when being lifted with the help
of a crane.
39. After having broad analysis of the arguments
on behalf of the appellant and the different
circumstances to be examined in the present case, the
broad arguments on behalf of the prosecution are
required to be mentioned so that the scope of the
present appeal can be ascertained. Broadly there is an
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argument on behalf of the State by learned Public
Prosecutor on three main defences raised on behalf of
the appellant i.e. who was driving, secondly whether
the appellant/accused was under the influence of
alcohol and thirdly whether it was a pure and simple
accident. It is also much argued on behalf of the
prosecution that the recourse to Section 33 of the
Evidence Act was rightly taken by the Sessions Court
while accepting the testimony of Ravindra Patil which
was recorded in the Metropolitan Magistrate Court
and it is further canvassed that the questions which
arise were substantially the same before the
proceeding at Metropolitan Magistrate Court level and
in the Sessions Case. This is so argued on the
applicability of Section 33 of the Evidence Act still in
the light of the factual position that before the
Metropolitan Magistrate Court the main charge was
under Section 304A of IPC and the main charge
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before the Sessions Court was under Section 304 Part
II of IPC.
40. Apart from the above, it is also argued on
behalf of the State that the theory of left side front
door of the car was in jammed condition and therefore
could not be opened during the incident, cannot be
accepted. Moreover, it is submitted that also the
theory of bursting of the left side front tyre prior to the
incident is also required to be discarded more so in
view of the report of the RTO Inspector (Exh.84). It is
also submitted that the speed of the car was 90-100
kms per hour as stated by Ravindra Patil in his
evidence before the Metropolitan Magistrate Court.
41. Apart from the above, the main thrust of
arguments on behalf of the State was on the conduct
of the accused immediately after the incident and also
conduct on the part of the defence witness Ashok
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Singh who allegedly was driving the vehicle from
hotel JW Marriott till the spot of incident. It is also
argued much that the minor contradictions and
omissions or even improvements by the prosecution
witnesses and mainly by the injured cannot be taken
as a mitigating circumstance to the case of the
prosecution. Various authorities were cited, which
shall be dealt in detail while analyzing the argument
of the learned Public Prosecutor in order to ascertain
whether the prosecution has reached that standard of
proof required to establish the guilt of the appellant
for the offences charged and mainly the offence
charged under Section 304 Part II of IPC.
42. It must be mentioned that during the
arguments learned Public Prosecutor did not argue
much on the collection of the hotel bills from hotel JW
Mariott and it was so taken by the learned Counsel for
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the appellant that this aspect of collection of
documentary evidence as to consumption of alcohol by
the appellant, has been given go bye by the
prosecution. Though it is so, as not much emphasis
was placed by the prosecution on this documentary
evidence of bills, this aspect is nevertheless being dealt
critically at appropriate place. This is more so when in
the present matter there is an argument on behalf of
the appellant that the investigating agency was bent
upon to collect the material against the
appellant/accused in order to establish the charge of
drunkenness apart from the charge that he was driving
the vehicle and it was the argument on behalf of the
appellant that it was definitely an attempt on the part
of the investigating agency to fabricate the said bills so
as to suit their case of consumption of alcohol by the
appellant.
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43. During the arguments, learned Public
Prosecutor also submitted that the theory of the
appellant that one Ashok Singh was driving the
vehicle can be negated in view of absence of any such
case put to any of the prosecution witnesses and more
so when PW-7 Fransis Fernandez does not mention
regarding the presence of Ashok Singh on the spot.
The defence evidence of DW-1 Ashok Singh was also
assailed by the prosecution on various aspects more
particularly that DW-1 does not mention at which spot
the left side front tyre of the car burst when the car
was on the Hill Road. Also DW-1 did not mention at
what time he reached JW Marriott hotel to relieve the
earlier driver one Mr. Altaf. Also much is argued on
the conduct of said DW-1 in not explaining to anybody
either to media or to the police or even to the Court
during the course of the trial that he was driving the
vehicle and not the appellant/accused.
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44. Now having the broad analysis the
substantive evidence before the Sessions Court vis-a-
vis the arguments on behalf of the appellant and the
State, a detailed analysis of the evidence and its
acceptability and the trustworthiness of the witnesses
is required to be done on the broad three aspects as to
who was driving, whether the appellant was drunk
and whether it was an accident. So also the other
allied submissions are also required to be dealt in
detail.
ASPECT OF DRIVING :
45. Admittedly in the said incident one person by
name Nurulla died and four persons i.e. PW-2, PW-3,
PW-4 and PW-11 sustained injuries. It is also an
admitted position that the post mortem report of the
deceased Nurulla is accepted. So also the injury
certificates of PW-2, PW-3, PW-4 and PW-11 were
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accepted by the defence and they were accordingly
marked as exhibits. The post mortem report is
Exh.149/20. Coming to the substantive evidence of
PW-2 Muslim Shaikh according to him the incident
took place at about 2:45 a.m. and he and other injured
witnesses and deceased Nurulla were sleeping near
American Laundry and he heard a noise and found
himself beneath the car. The wheel of the car passed
over his left leg. The bakery people helped to remove
him from beneath the car and many people had
gathered on the spot. He further stated that the
people gathered were saying that Salman Khan got
down from the car. According to this witness one
person also got down from the left side of the car
saying that he was a police. According to this witness,
the people caught hold of the accused, but,
subsequently released him. Other injured and
deceased Nurulla were also found beneath the car and
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then the police appeared and brought him to Bhabha
hospital. It is significant to note that this witness
further stated that he was at Bhabha hospital for a
period of two and half months and in the hospital he
knew that Nurulla had expired. Thereafter according
to him Bandra police recorded his statement. Again it
is significant to note that at the end of his
examination-in-chief this witness has stated that he
saw accused getting down from the right side of the
car. Specifically he does not mention anything about
the accused getting down from the car from the front
right or rear right. This substantive evidence of PW-2
was assailed on behalf of the appellant/accused and it
was brought on record that earlier this witness had
stated before the Metropolitan Magistrate Court when
his evidence was then recorded that he did not see
anybody getting down from the car. During the cross-
examination it has been brought on record that after
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two and half months he had gone to Bandra and his
only one statement was recorded. By pointing this
out, cross-examination appearing in para-3 of the
notes of evidence in the paper book page PW-2/4 it is
submitted on behalf of the appellant that this witness
was not available to the police immediately as
according to him he had left Bombay. His further
cross-examination also revealed that his statement was
not shown to him by the police and he did not read
the statement at any time. In the cross-examination it
has been brought on record that the doctor asked him
about the incident but he was in pain and was not in a
position to speak. According to this witness he
returned to Mumbai on 26.4.2014 from U.P. And prior
to that he had not been to Mumbai. He further stated
that he was not present in Mumbai on 20.12.2006.
However, subsequently changed his version and stated
that his statement was recorded in Bandra Court on
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20.12.2006. Then again he stated that his evidence
was recorded in Bandra Court on that date. But
according to him the oath was not administered to
him at that time. Moreover during his cross-
examination it is brought on record that before the
Metropolitan Magistrate Court he had not mentioned
that accused had got down from the car. As such by
taking recourse to Section 145 of the Evidence Act,
this witness was cross-examined on behalf of the
defence during the trial before the Sessions Court vis-
a-vis his earlier statement recorded before the M.M.
Court, Bandra during the initial trial when the offence
was for Section 304A of IPC.
46. The final effect of the statement of this PW-2
even accepting his omission, goes to show that he saw
the accused coming out of the car from a right side
door. Two things are possible from his statement, one
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is admitted position that he sustained injuries as
depicted in his medical examination papers and
secondly that he was under the car when the impact
occurred. Other injured and deceased Nurulla were
also under the car and the incident was at the wee
hours of 2:45 a.m. on 28.9.2002. He was in the
hospital and was in pain and unable to talk to the
doctor although according to him he mentioned before
the Metropolitan Magistrate Court that he saw the
accused coming out from the car from the right side. It
is not so appearing in his statement. In fact the
evidence of this witness as to the accused coming out
of the car from the right side may not be of much
significance for the simple reason that this position of
the appellant coming out of the car from the driver's
seat is accepted and it is so accepted while answering
the question under Section 313 of Cr.P.C.. Though on
this aspect the learned Public Prosecutor had argued
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that this answer is required to be taken against the
appellant, needless to mention that this answer is
required to be construed in juxtaposition of the other
explanation given by the appellant/accused in his
statement under Section 313 of Cr.P.C.. This aspect as
to the compulsive circumstances for the appellant to
come out of the vehicle from the front right side door,
are required to be construed in detail hereunder at the
appropriate stage and it is regarding defence placed
before the Court by way of factual position and
admissions given by the prosecution witnesses that the
left side front door of the car was jammed and was not
in a condition to be opened. Thus rendering even a
person sitting by the left side of the driver to come out
of the vehicle from the driver's seat.
47. Now coming to the substantive evidence of
PW-3 one Mannu Khan and who is apparently an
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important witness of the prosecution, it must be said
that said Mannu Khan had also sustained injuries to
his left foot and there was a fracture to the proximal
phalynx. Substantive evidence of this witness in chief
is regarding the happenings of the event at about 2:30
a.m. to 2:45 a.m. on 28.9.2002 and that time he was
sitting on the platform of the American Laundry. He
suddenly heard a noise and found himself beneath
the car. The said car was on his person. According to
him, he and other injured and also deceased Nurulla
were found beneath the said car and when he opened
the eyes he found that all were crying and many
people had gathered there and the people pushed the
said car and rescued him from beneath the car. In the
substantive evidence in the chief he specifically
mentioned that the accused got down from the drivers
seat and one bodyguard also got down from the said
car. This witness also talked of a third person who got
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down from the back portion of the car. He further
stated that the bakery people caught hold of accused
on the road. Now the crucial evidence of this witness
in the chief which was vehemently assailed on behalf
of the appellant, is to the effect as follows :
"Salman was so drunk that he fell
down. Salman Khan stood but he
again fell down and again he stood
and ran away from the spot."
48. According to the case of the prosecution,
statement of this witness was recorded under section
164 of Cr.P.C. on 5th October, 2002. But, still it is the
factual position that he was not examined before the
M.M.Court at Bandra and his evidence was recorded
for the first time before the Sessions Court on
6.5.2014. During the cross-examination, it is brought
on record, as is appearing in paragraph 6 in the notes
of evidence, that one day prior to recording of his
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evidence he was called by the police to come to
Bandra Court. First, he went to Bandra police station
and thereafter to Bandra Court, where his statement
under section 164 of Cr.P.C. was recorded. It is his
specific evidence in the cross-examination that the
police had shown one statement to Bandra Court and
stated that it was his statement. According to this
witness, after perusing the said statement, Magistrate
asked him some questions and this witness told as per
the contents of the statement and thereafter his
signature was obtained on the statement. He further
disclosed in the cross-examination that he was not
knowing in which language statement was recorded.
He could not even answer whether the statement was
in handwritten or in type written form. He specifically
answered that he signed on the papers where he was
asked to sign and further answered that he was not
knowing whether the statement contained the
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information known to him or not. All this material,
which is brought on record during his cross-
examination, goes to show that he was called by the
police and before the Magistrate he was questioned
and an earlier prepared statement was endorsed. The
question remains, whether this witness has given a
truthful account either in his examination-in-chief or
in his cross-examination. This is more so, as the
crucial evidence in the examination-in-chief of this
witness, as reproduced earlier to the effect that the
accused was drunk and fell twice and then ran away, is
in fact an omission and this omission has been brought
on record during his cross-examination and
subsequently by asking to the officer. Moreover, it is
pertinent to note that in the cross-examination this
witness has stated in what manner his statement
under section 164 of Cr.P.C. was recorded. If still an
allowance is required to be given to this witness, who
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apparently, according to the prosecution is a rustic
witness and not an educated person, but still it is a
factual position that there was a scope available to the
prosecution to counter check the truthfulness or
otherwise of the answers given by this witness during
his cross-examination and this could have been done
by examination of the concerned M.M. Court. It is an
admitted position that a summons to the said
Magistrate was also prayed for by the prosecution vide
letter Exh.87 which is dated 15.12.2014. As such, a
step was taken by the prosecution to call the
concerned Magistrate before the Court and to find out
the truth or veracity in the evidence of PW 3. On said
application, apparently, no orders were passed by the
trial Court and one Constable Mane was allowed to be
called but he was also not examined as he was not
available and, therefore, the factual position remains
that the substantive evidence of said PW 3, the major
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part of his testimony as to the falling down of the
accused twice and then running away is an omission
and only after 12 years of the incident does the
witness give his testimony before the Sessions Court.
At the cost of repetition, it must be mentioned that he
was not examined before the M.M.Court when the
main charge was under section 304-A of IPC. Further,
in the cross-examination, he has answered and it is
appearing in paragraph 7 in the notes of evidence that
he could not move from the place till the time the car
was lifted. Definitely, the circumstances after that
incident were such that all the injured and even
deceased Nurulla were under the said vehicle and it
was the wee hours of 2:45 a.m. in the morning and
the injured witnesses could realise coming of the
vehicle on their persons only when the impact
occurred and when they sustained injuries. During the
arguments, the learned Public Prosecutor submitted
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that said PW 3 is, in fact, a natural witness and had
seen the incident and in fact also seen the accused
driving the car. In order to substantiate his argument,
the learned Public Prosecutor stated that said PW 3
was the person who received minor injuries and he
had all the opportunities to see how the incident had
occurred. So far as injuries of this witness and their
nature is concerned, the medical certificate Exh.150 is
of much importance. It shows that this injured was
referred to emergency operation and his x-ray shows a
fracture of proximal phalanx of greater toe, right side.
In the column under the description of the injuries, it
is mentioned as "grievous". Definitely, any fracture is
taken as "grievous injury" as per section 320 of IPC
which defines "grievous hurt". The injury described,
seventhly in Section 320 is :- "fracture or dislocation
of a bone or tooth". This kind of injury is designated as
"grievous". Much is argued on behalf of the State that
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the degree of gravity of injury may differ and the
fracture of a proximal phalanx of a toe may not be
that grievous or serious enough than the fracture of
any other bone of the body. For the time being, if it is
accepted, still the other circumstances under which
this witness has sustained injury, cannot be over
looked more so in the light of the major omission as
detailed earlier.
49. Now coming to PW 4 injured Mohd.Kalim
Iqbal Pathan, he had simple injury on his right leg and
left hand. His injuries are admitted which are
described in medical certificate Exh.151. Clinically
there was no fracture and he had the abrasion on fore
arm and left elbow. He has superficial infused wound,
which is skin deep and having length of 1.5 cm on the
left hand and thumb and had minor abrasion on right
foot and right elbow. This witness has seen the
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accused coming out of the car from the right side. He
stated that he signed the statement under section 164
of Cr.P.C. recorded before the Magistrate as told by the
police and the Magistrate. He also gave the same
circumstances as to the timing and how he learnt
regarding the impact. He was sleeping in front of
American Laundry. PW 3 Mannu was also sleeping
near him. He heard a noise and saw one vehicle over
his person. He was beneath the car and other injured
including PW 3 and also deceased Nurulla were also
found beneath the car. After hearing the noise, bakery
people came to the spot and they helped to remove
the injured from beneath the car. According to him,
many people were telling that accused got down from
the car. Also, according to this witness, accused, then
ran away from the spot after seeing the crowd. One
police guard was also present in the car. Then, this
witness was brought down to Bhabha hospital for
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treatment. Again, it is significant to note that at the
end of his examination-in-chief again this witness
mentions to the effect that "the accused is the same
person who got down from the right side of the car".
At the cost of repetition, it can be mentioned that it is
the own defence of the accused that he himself came
from the front side driver's seat in order to get out of
the car after the incident. So the fact that this witness
told that the accused came out of the car from the
right side is not of much significance, when all these
witnesses say that they saw the accused coming out of
the car only after the incident and not that anybody
saw the accused actually driving the vehicle and
bringing the said vehicle to the spot. During the cross-
examination, this witness has stated that he signed on
the statement under section 164 of Cr.P.C. because of
the police and the Magistrate. This reference is to the
statement under section 164 of Cr.P.C. In fact, he is
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also the witness who answered during the cross-
examination that he heard a big noise and was not
knowing what had happened and his left hand was
stuck in the bumper of the vehicle and he was unable
to make movement. He further answered that due to
darkness he was not knowing whether the vehicle
climbed the stairs or not. The cumulative effect of this
witness goes to show that he sustained injuries and,
apparently, he knew that the accused came out of the
car from the right side. In any event, this substantive
evidence of PW 4 may not be of much significance so
far as the case of the prosecution is concerned as to
driving and that also under the influence of alcohol by
the appellant. However, during the cross-examination
still another admission is taken from this witness and
this witness in paragraph 8 in his notes of evidence
states to the following effect:
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"It did not happen that two persons
ran away from the car. The second
person ran away from the spot after
Salman. Two persons were there in the
car. I cannot say whether two persons
ran away from the car."
50. By pointing out this admission, it is strongly
argued on behalf of the appellant that this is the
witness who talked of four persons present in the said
car during the incident and it is further argued that
the theory of four persons in the car is not later
developed but it is put to the witnesses and also to this
witness PW 4. Of course, this aspect of three persons
or four persons in the car shall be dealt in detail
afterwards while dealing with the arguments
advanced on behalf of the defence.
51. Now, the last injured witness examined is PW
11 Mohd. Abdulla. He also sustained grievous injury
to his right leg as injury certificate is also accepted by
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the defence and which is at Exh.155. He had fractured
tibia fibula of 8x3 cms, middle third right side. This
patient was also referred for operation. Apart from the
fracture he had abrasion on the left forearm. Again
this witness gave the same account as to the time and
how the incident had occurred when he was sleeping
along with other injured persons near American
Laundry. According to him, at about 2:30 a.m. some
heavy object had passed over his leg. He tried to
rescue himself but could not succeed. His right leg was
fractured. All the injured cried for help. Bakery men
and taxi driver rescued them by removing them from
beneath the car. According to this witness, bakery
men and taxi driver were telling that accident was
caused by the accused. He had specifically answered
that he had seen the accused only after he was
rescued. He further stated that two persons were with
him i.e. with the accused but he does not know who
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they were. This witness, due to his severe injuries, was
hospitalized in Bhaba Hospital for one and half month.
Though in the examination-in-chief this witness has
stated that bakery men and taxi driver were saying
that accident was caused by the accused and though
according to him, he stated to that effect while
recording his statement by the police, this part of his
evidence is brought on record during his cross-
examination as an omission and he could not assign
any reason how that part of his evidence is not
appearing in his statement. His evidence to this effect
is, in fact, insignificant that bakery men and taxi
driver were telling that the accused caused the
accident. Even this statement is also an omission when
his evidence was recorded before the Sessions Court.
In fact, accepting this statement also it is to be treated
as hear-say as the same was not to his personal
knowledge and moreover the value is diminished by
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way of omission.
52. The cumulative effect of these injured
witnesses PW 2, 3, 4 and 11, as detailed above was
referred in the course of arguments on behalf of the
appellant and it is submitted that definitely an attempt
has been made by the Investigating agency through
these witnesses to show that they had seen the
accused coming out of the car and then to presume
that he was the person driving the car. Placing reliance
on the testimonies of these witnesses, as mentioned in
examination-in-chief, learned Public Prosecutor stated
that those are the injured witnesses and the testimony
of injured witnesses assumes much importance
inasmuch as they are the natural witnesses to the
incident. Of course, there cannot be a different view as
to the importance of an injured witness, so far as how
the injuries have been sustained by them and by what
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means. Of course, this importance is heightened when
the questions are regarding an assault and a fight
between the persons and under such circumstances
the evidence of an injured person assumes much
importance. Moreover, sustaining of an injury is also a
fact leading to the conclusion that he was one of the
parties to the incident of assault. In the instant case,
however, there is no dispute that these witnesses
sustained injuries in the incident, but the question is
as to who was responsible. Said question cannot be
answered by the factual position that they received
injuries in this incident.
53. Again on the above aspect, learned Senior
Counsel for the appellant stated that the natural
conduct of any injured in an accident is required to be
considered. Specifically when the incident occurred in
the circumstances as in the present case as running
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over by a car at the wee hours, the natural conduct
would be to save oneself or to get rescued from the
situation as early as possible and not that the person
would give much importance to the allied facts.
Moreover, PW 11, the last injured, examined before
the Court only mentioned that people were telling that
the accused caused an accident. As such, in fact,
whatever he had heard was told by him but that is
also apparently hit by the aspect of hear-say.
54. Apart from the above, it is brought to the
notice of this Court during the argument on behalf of
the appellant that there is inter se variance in the
substantive evidence of these witnesses. PW 3 says,
which is in fact an omission, that the accused was so
drunk that he fell twice and then stood up and ran
away. However, PW 2 and 4 did not mention
anything to that effect. In fact, out of these four
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witnesses except PW 3 nobody speaks about the
drunkenness of the appellant-accused much less his
falling down on the spot twice and then running away.
55. During the arguments, learned Public
Prosecutor for the State stated that these witnesses do
not talk of four persons travelling in the car or coming
out of the car after the incident. The learned Chief
Prosecutor wanted to suggest that non mentioning by
these witnesses about four persons is required to be
taken as a mitigating circumstance to the defence of
the accused. However, a distinction is required to be
drawn between said witnesses remaining silent about
a particular fact and the said witnesses specifically
answering something that they did not notice four
persons but only noticed three persons. These are two
different things. Remaining silent may have two
implications, either he has seen but has not told and
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secondly that he had not seen at all. When a witness
answers that he did not see four persons, then there is
more positive effect that the witness has seen only
three persons and only three were travelling. In any
way, these witnesses remaining silent about how
many persons were travelling in the car, cannot be
taken as a mitigating circumstance to the defence of
the accused as argued on behalf of the State. For that
purposes the other material evidence is required to be
dealt with appropriately. Of course, it is a factual
position that these witnesses are also silent as to what
the police guard i.e. Ravindra Patil and also Kamal
Khan were doing during the incident. If they are silent
on these two persons and if the argument of the State
is to be accepted then it must be said that these two
persons were also not on the spot. However, the case
of the prosecution is contrary to this and admitted
even by the accused that the police guard Ravindra
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Patil and also Kamal Khan were the persons travelling
in the car since 9:30 p.m. on 27.9.2002 up to the
incident of 28.9.2002.
56. By pointing out the evidence and the answers
given by the witnesses, discussed above, it is
submitted on behalf of the appellant that the
investigation is not fair in the present case and there is
a exaggeration brought before the Court through
them, mainly from the evidence of PW 3. The
following authorities are cited on the aspect that the
investigation should be fair and what are the
consequences of a tainted investigation.
1] (2010) 12 SCC 254
(Babubhai V. State of Gujarat & Ors)
2] (2002) 6 SCC 81
(Krishna Mochi & Ors vs. State of Bihar)
3] AIR 1973 SC 2773
(Kali Ram V. State of Himachal Pradesh)
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57. In support of the arguments on behalf of the
State the learned Public Prosecutor placed reliance on
the following authorities:-
1] (1983) 3 SCC 217
[Bharwada Bhoginbhai Hirjibhai Vs.State
of Gujarat] : It is on the aspect of
discrepancies in the evidence of witnesses
whether fatal to the case of the prosecution
when they are not going to the root of the
matter;
2] (2010) 10 SCC 259
[Abdul Sayeed Vs. State of Madhya
Pradesh] : This authority is on the
appreciation of the evidence of the injured
witnesses as natural witnesses and more
credence be given to their testimonies;
3] (2003) SCC (Cri) 121
[Mohar & Anr vs. State of U.P.] :Again
this authority is on the appreciation of the
evidence of an injured witnesses and the
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analysis of their evidence though there are
minor discrepancies;
4] (2015) 1 SCC 323
[State of Karnataka vs. Suvarnamma &
Anr] : This authority is also on the minor
discrepancies in the evidence which may not
be fatal to the case of the prosecution;
58.
Needless to mention that in the ratios
propounded by the superior Courts on the fact
situation of a case, is not squarely binding when the
facts of a case at hand are different and can be
distinguished.
59. Also it is to be ascertained whether the minor
contradictions and discrepancies may attain much
importance as to discredit a particular witness and if
the contradictions and discrepancies are not going to
the root of the matter then the evidence of such
witness may not be thrown away. Bearing in mind the
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ratio of the authorities cited above, in the opinion of
this Court the omissions in the present case definitely
cannot be considered as minor and not going to the
root, specifically for the simple reason that the
evidence of PW 3 Mannukhan who is apparently the
main witness out of the four injured, according to the
case of the prosecution giving the detailed account as
to the involvement of the appellant that also in the
drunken state. At the cost of repetition, again, it must
be mentioned that the evidence of said PW 3 as to the
drunkenness of the appellant to such an extent as to
falling down twice and then running away is, in fact,
an omission and for the first time after 12 years this
witness is coming before the Court, telling so.
Otherwise also this evidence of PW 3 is to be viewed
in juxtaposition of the case of the prosecution as
depicted in the FIR and as per the evidence of police
guard Ravindra Patil. Of course, it is to be ascertained
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and analysed by this Court, whether the Sessions
Court was right in accepting the evidence of Ravindra
Patil under section 33 of the Indian Evidence Act. Still
for the sake of argument at least at this stage said
evidence is acceptable without there being any cross-
examination, still the concept of drunkenness of the
appellant is not mentioned in the FIR and this is an
admitted position. The FIR is silent regarding
drunkenness. It only speaks regarding driving at high
speed. If the evidence of PW 3, the injured, is to be
construed as to such heavy drinking and falling twice
on the spot by the appellant, then, definitely this
aspect must not have been lost sight of by Ravindra
Patil while he gave his FIR and this concept of alcohol
which came in the investigation papers only on
1.10.2002, would have come in the case immediately
on lodging of the FIR. Again this aspect as to
drunkenness shall also be critically examined
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henceforth at appropriate place when that argument
shall be dealt with, considering the evidence of the
prosecution witnesses and the evidence of the other
material as to the drawing of the blood sample and
the report of Chemical Analyser.
60. In view of the above, it cannot be said that
the evidence of these injured PW 2, 3, 4 and 11 is
devoid of any discrepancies going to the root of the
matter. Moreover, the effect of their evidence can be
construed at the end after analyzing the entire
evidence of the prosecution witnesses on the different
aspects which are required to be dealt in detail
considering the arguments on behalf of the appellant.
61. Apart from the above injured witnesses, the
substantive evidence of the other witnesses i.e. PW 8
Ramasare Pande and PW 12 Kalpesh Sarju Verma is
required to be examined concerning the aspect of the
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appellant driving the vehicle during the incident. PW 8
was examined by the prosecution in order to show
that the appellant-accused was driving the vehicle
during the incident. As such the substantive
evidence, recorded before the Sessions Court, goes to
show that according to him, he saw the accused
getting down from the right front side of the car and
one police person was also present in the car and he
told his name as Patil. This is a witness who is a
resident on the first floor of Pande Dairy and his dairy
is situated in the vicinity of scene of the incident. So
far as actual incident is concerned at about 2:45 a.m.
on 28.9.2002 when he heard a big noise, he woke up
and came down from the first floor. He saw the people
making hue and cry as somebody was killed. People
were running towards American Bakery and American
Express Laundry. He also went there and saw the
white coloured car rammed in the American Express
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Laundry. He remembers last two digits of registration
number of the vehicle as "32". According to him, many
people gathered there. One person was found dead
and two persons were injured and they were
unconscious and two more persons were also injured.
He was knowing the injured persons as they were
working in the bakery. Only significance of his
evidence is that he saw the accused getting down from
the right side of the car and one police person was
also present there. However, it is still curious to note
that this witness in fact in examination-in-chief itself
further went on to say the following:
"Two persons were also present in the
car in addition to Salman and police
constable Patil but I do not know who
were those two persons."
62. Much reliance was placed by learned Senior
Counsel on this answer of this witness in examination-
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in-chief. This is in consonance with the theory
propounded by the appellant that there were four
persons in the car so as to probablize his defence that
his driver was there and who drove the car. This is
more so as admittedly according to the prosecution,
Ravindra Patil, the appellant-accused and also his
friend Kamal Khan were definitely in the car. Now this
PW 8 had given a story that he saw two more persons
in the car in addition to the accused and Police guard
Patil. Apparently, this answer in the examination-in-
chief itself is required to be construed and in the light
of this answer the earlier answer of this witness that
he saw the accused getting down from the right front
side of the car is to be critically examined in the light
of other material. It is accused's own defence that he
got down from the driver's side after the incident to
come out of the car. As such the effect of the testimony
of PW 8, in fact, goes to show the probability of the
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case of the defence, argued on behalf of the appellant.
On this argument, learned Public Prosecutor for the
State stated that this answer of the witness PW 8 in his
examination-in-chief is required to be construed, as
an attempt by the defence to interfere with the
prosecution witnesses. Without there being any other
material to support this submission it is difficult to
accept this argument and only because the witness of
the prosecution in examination-in-chief itself had
given some answer which apparently supports the
theory of the accused it cannot always be said that this
witness has already been won over. Moreover, after
examination of this witness in chief and also in the
cross-examination there was an opportunity for the
prosecution to re-examine him to get clarification on
this anomaly or the abnormal answer given by him.
But this has not been done by the prosecution. In fact,
there is nothing brought before the Court that the
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prosecution wants to disown this witness. Then,
consequently, the evidence of this witness is required
to be construed as per the plain meaning which can be
ascertained from his evidence.
63. One more thing of significance, so far as the
evidence of PW 8 is concerned, is required to be
mentioned. Now, another answer is given by this
witness in his cross-examination and the said evidence
is coming in paragraph no.4 of his notes of evidence
at the end and it is to the following effect:
"Left front door of the car was so
touched to the shutter to the American
Bakery, it could not be opened and it
was jammed in the shutter. People were
trying to pull the car and people were
succeeded opening the right front side
of the door. There was hue and cry on
the spot. People who gathered on the
spot, were in angry mood. People pelted
the stones on the car."
64. Again, it must be mentioned that this answer
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taken in the cross-examination is probablizing the
theory of the appellant-accused that the left side front
door of the car was jammed and so he could not come
out of the car but came out from the front right side
door. Even on this answer in the cross-examination
the prosecution should have sought further
clarification from the witness on re-examination. But
again he has not been disowned and the said material
remains on the record. Not only this evidence but still
at the end of paragraph 5 in the cross-examination this
witness has answered to the following effect:
"I do not know where two people sitting in
the car, besides Salman and police
constable Patil, had gone."
65. This is, in fact, the reiteration of the theory of
the appellant of four persons present in the car though
this answer may not directly show that fourth person
was the driver. But the answer does mention that
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according to this witness there were four persons
including the appellant and Ravindra Patil. Apart from
above, still one more answer in paragraph 6 of his
notes of evidence is to the effect :-
"The left front tyre of the car was
found burst."
66.
This is again the apparent defence of the
appellant that the loss of control over the car was due
to bursting of left front tyre. Even after this answer
also there could have been remedial steps taken by the
prosecution to clarify the position or to disown the
witness by putting him questions in the nature of
cross-examination saying that apparently he has been
won over by the accused. But again this has not been
done and only during the arguments in the present
appeal the learned Public Prosecutor stated that the
evidence of this witness so far as these answers given,
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is required to be critically examined and not to be
taken as a help to the defence of the appellant.
67. Now coming to the substantive evidence of
PW 7 again there is argument on behalf of the
prosecution that this witness is a partisan witness and
in fact in stead of supporting the case of the
prosecution he has assisted the appellant-accused in
propounding the theory of the defence. This is the
argument at this appellate stage and it is difficult to
understand. If it was the evidence of this witness then
why was he examined. Apparently, he was examined
for the reason that he was present on the spot and
there was some conversation between him and the
accused to the following effect:
"Salman recognized me and told me,
Commander save me"
68. Earlier in examination-in-chief itself this
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witness has stated that at the time of the incident he
was sleeping in his house and he knows the accused
since his childhood and the accused calls him by
name "Commander". After hearing the noise, he got
up and then came to the spot. As the people were
shouting for help, he came near American Cleaners
shop. He saw the accused surrounded by mob and one
person was possessing rod in his hand, he pulled that
person back, also another person who was also having
rod in his hand. At that time, according to this witness,
the accused recognized this witness from the mob and
uttered the words "Commander save me". The
substantive evidence of this witness is required to be
construed in the natural way as he has told. His entire
evidence does not suggest in any way either driving of
the said car by the appellant-accused or the appellant
was drunk at the relevant time. When this was the
factual position brought to the notice of learned Public
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Prosecutor, he tried to argue that the very words of the
appellant-accused "Commander save me" imply that
the appellant-accused has done something wrong and
in fact had committed something objectionable so as
to get himself freed from the clutches of the angry
mob. In the considered view of this Court, this
argument if to be accepted, then it would be a wild
imagination and putting the view of the prosecution in
the mouth of the witness.
69. Counter to this argument, learned Senior
Counsel for the appellant stated that clear evidence of
PW 7 goes to show that appellant-accused was in need
of help, true and he was rather in distress but by no
stretch of imagination it can be said that this was on
account of he himself driving and causing the incident.
By pointing out the other circumstances as to the
angry mood of the mob and the two persons having
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rods in hand and they were pulled by PW 7, it is
further argued that the request for saving himself
came from the appellant, on account of a particular
incident and to save himself from the fury of the mob
as the people have spotted him coming out of the car.
The request for saving came from the appellant-
accused. During the cross-examination this PW 7 had
specifically answered that he did not find the accused
smelling of alcohol during the period when he was
with him. He further stated that the accused was
looking normal and was able to walk normally. This
answer is required to be viewed in juxtaposition of the
substantive evidence of PW 3 injured witness as to the
accused was so drunk, he fell twice on the ground and
then ran way. So also this evidence is to be viewed in
the factual position that the FIR is silent about
consumption of alcohol and the theory of alcohol
comes only after 1.10.2002. Also this evidence is
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required to be viewed in juxtaposition of the other
evidence of PW 9 Rakhangi, the Manger from the Rain
Bar. Evidence of that witness shall be critically
examined later on when dealing with the allegations
of consumption of alcohol at the Rain Bar and
collection of bills by the police during investigation.
70.
Again it is curious to note that even this
witness is not disowned by the prosecution. In the
cross-examination though this witness has stated, as
mentioned earlier, no questions were put to this
witness in the nature of cross-examination by the
prosecution, more so when specific substantive
evidence of this witness in his last paragraph of the
cross-examination shows to the following effect:-
"There were 10 to 12 speed breakers
on St Andrews Road in front of Holy
Family Hospital at the relevant time.
At the relevant time road repairs in
front of American Bakery and rubbles
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were lying in front of American
Bakery."
71. Again this evidence is apparently supportive
to the defence of the accused that there was bursting
of the tyre. Moreover, the answer given by the witness
as to 10 to 12 speed breakers on St. Andrews Road has
much significance than what it appears, for the reason
that the case of the prosecution was that the appellant
was driving the car at the speed of 90 to 100
kilometers per hour and he had taken the route to his
home and come on the Hill Road from St. Andrews
Road. It is admitted position that St.Andrews Road is
in front of the American Bakery and there is Holy
Family Hospital. Some guidelines regarding existence
of speed breakers, also brought to the notice of this
Court, by the prosecution. These guidelines mention
various places, including hospital, where speed
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breakers were required to be installed. As such, this
situation probablizes the defence that the car was not
at the high speed, or if at all in high speed, had not
come from the St.Andrews Road. The defence of the
accused is that the car came on Hill Road from
'Michael Gonsalvez Road'. In any event, the cumulative
effect of the substantive evidence of PW 7 does not
further the case of the prosecution on any count,
either on the driving the car or on the consumption of
alcohol. In spite of this situation, this witness is not
disowned by the prosecution.
72. When the aforesaid was the effect of
substantive evidence of PW 7, an attempt has been
made on behalf of the prosecution by taking shelter of
the answer given by PW 7 in his cross-examination in
paragraph 4. It is to the following effect.
"Salman and two others were present
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there"
73. By taking shelter of this answer, it is stated on
behalf of the prosecution that this witness is silent on
the presence of fourth person in the car. However,
definitely, this witness was not for the purpose of
establishing that how many persons were in the car.
Moreover, there is no positive evidence of this witness
that he saw only three persons in the car and not four.
What he answered in the cross-examination is that
'Salman and two others were present there'. In fact,
this answer does not suggest that the accused and two
others were present in the car. "Present there" means
"present on the spot". As earlier discussed by this
Court there is a subtle difference between the silence
of a witness on a particular aspect and positive answer
given by him and as such the silence of this witness as
to the fourth person without there being anything
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brought on record to ask him the questions regarding
the fourth person, this answer cannot be taken to
further the case of the prosecution that there were
only three persons in the car. At the most, it can be
said that this is not a witness from whom it could be
established that the appellant was driving the car.
Moreover, his other answers in the cross-examination
were contrary to the case of the prosecution.
74. Now, one more witness who is relevant in the
case of the prosecution as to who was driving the
vehicle from JW Marriott Hotel to the scene of the
incident is PW 12 Kalpesh Verma who is working as a
parking assistant at JW Marriott Hotel and saw the
appellant coming out of the hotel and sat on the
driver's seat of the car. In fact, the evidence of this
witness is required to be critically examined and still if
it accepted and of course which is an admitted
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position that at some point of time the appellant-
accused was sitting on the driver's seat of the car when
the car was halted in front of JW Marriott Hotel, still it
is a different thing that a person sitting on a driver's
seat drove away the car himself. Moreover, this aspect
also touches the another circumstance regarding the
valet parking in the said hotel JW Marriott. This can
be dealt in detail. At this stage, it is to be mentioned
that the parking tag allegedly given to the appellant
for valet parking is not produced before the Court,
much less it was taken charge of under any
panchnama.
DICTATION ON 8 DECEMBER, 2015
th
:
75. The substantive evidence of PW-12 Kalpesh
Verma goes to show that during October, 2002 he was
serving in JW Marriot Hotel, Juhu as a parking
assistant. He used to park the owner driven car in the
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porch area and basement of the hotel. According to
him he was on duty on 28.9.2002. He also gave his
duty hours on that day from 7:00 p.m. to 7:00 a.m..
According to him his colleague Yogesh had parked the
Toyota Land Cruiser vehicle in valet parking. The
reference to the Toyota Land Cruiser vehicle is with
respect to the car involved in the present matter.
Further evidence of said PW-12 discloses that he saw
the appellant/accused coming out from the hotel. He
told his colleague Yogesh to give the key as PW-12 was
to take out the vehicle from valet parking. Said
vehicle was parked in the porch of the hotel. Said
witness then took the vehicle in reverse condition.
Thereafter according to this witness the
appellant/accused came and sat on the driver seat.
Two persons were also with Salman. This witness
identified one of them as Kamal Khan who was a
Singer. According to this witness, the third person was
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the bodyguard of the accused. When this witness
handed over the car to the accused he saw the
bodyguard standing near the door of the driver seat.
When this witness tried to close the door, the accused
asked him as to how many colleagues were there and
on knowing that there were 4-5 colleagues of this
witness, a tip of Rs.500/- was given to him by the
accused. This witness then closed the door and went
for keeping the money in the box. When this witness
returned to the hotel, he did not see the car. This was
the substantive evidence much emphasized by the
learned Public Prosecutor for the State mentioning
that this witness has seen the appellant/accused
sitting on the driver seat and then within short time
this witness saw the car leaving the porch. By pointing
out this it is submitted on behalf of the State that this
is the witness who saw Salman Khan sitting on the
driver seat and then the door of the car was closed.
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This witness has seen only three persons including the
accused, further pointed out by the prosecution from
his examination-in-chief. As mentioned earlier the
substantive evidence of this witness in chief does not
take us further than the position that he saw the
accused sitting on the driver seat and the door was
closed. At this juncture this witness went in the
interior of the hotel to keep the tip money in the box
available in the desk. Learned Public Prosecutor tries
to argue that once this witness has seen the accused
sitting on the driver seat and after some time when he
saw that the car had already left, logically it is to be
accepted that the accused drove away the car from JW
Marriott hotel. This argument is required to be
critically examined in the light of the factual position
and also in order to see whether there is any
corroboration to what the witness had stated and
mainly on the point as to the valet parking. Of course,
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the aspect of the valet parking shall be separately
dealt with but suffice it to say at this juncture that said
parking tag has not been produced before the Court
though during recording of the evidence of said PW-12
the Investigating Officer Shri Shengal (PW-27) tried to
search the tag in the muddemal articles and after
searching he could not find the tag and ultimately it
was not produced before the Court. Even there is no
panchnama for seizure of the said tag from the
custody of the JW Marriott hotel establishment. The
main question remains as to who had seen the
appellant/accused coming to JW Marriott and giving
the car for valet parking, on the premise that the
appellant/accused was himself driving and it was the
car not driven by the driver but was owner driven at
that particular time. Substantive evidence of PW-12
does not show that he saw the appellant/accused
coming to JW Marriott hotel driving the car himself.
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The person who could have thrown light on this is
definitely one Yogesh who had parked the car as
stated by said PW-12. But, admittedly said Yogesh is
not examined in the present case. Also there is
nothing to show whether this person by name Yogesh
was interrogated by the police. According to this
witness PW-12, the key of the vehicle was given by
Yogesh and then the car was brought in reverse
condition which was parked in the porch. During the
cross-examination it is brought on record that there
was a security cabin and one guard was deployed in
the said cabin and the cabin was installed on the left
side of the porch. Definitely additional evidence could
have been gathered in order to substantiate what has
been seen by said PW-12 and what is to be implied
from his evidence as suggested by the prosecution.
Again admittedly this security guard or anybody from
that cabin is not examined. A passing reference is also
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required to be made so far as this witness is concerned
as to whether he had noticed anything like drunken
condition of the appellant/accused. Though this
aspect can also be dealt in detail while coming to the
aspect of consumption of alcohol at this juncture it
may be mentioned that this PW-12 is silent on the
condition of the appellant/accused when he came out
of JW Marriott hotel.
76. Apart from the above, certain answers are
obtained from this witness (PW-12) during the cross
examination and this part of the evidence is appearing
in paragraph-11 of the notes of evidence of this
witness. The substantive evidence of this witness
reads thus :
" I did not see at what time and in
what manner the Land Cruzer left the
J.W. Marriot Hotel. Kamal Khan sat
in the back portion of the car behind
Salman Khan. Nobody sat near
Kamal Khan on the left side in the
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back portion of the car. Police asked
me during recording my statement
where Kamal Khan sat. I was
remembering at the time of giving my
statement that on which portion of
the back seat Kamal Khan was sitting
and he sat behind Salman Khan.
Kamal Khan sat in the back portion of
the car on the left side."
77. By pointing out this admission given by this
witness, learned Senior Counsel for the appellant
submitted that the seat arrangement as stated by this
witness suggest that the appellant/accused was sitting
on the left side of the front seat i.e. towards the left
side of the driver's seat as Kamal Khan was sitting
behind him in the back portion on the left side. Even
after this material extracted from his cross-
examination no attempt has been made on behalf of
the prosecution to get clarification for the anomaly
created in the answers, one given in the examination-
in-chief and another at the end of the cross-
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examination. Without confronting this witness with
the questions in the nature of cross-examination, now
it cannot be accepted on behalf of the State as argued
that apparently this witness has deviated from his
earlier statement to the police and has partially
supported the defence. The foundation for
appreciating this argument has not been created while
recording the evidence of this witness by the
prosecution.
78. Lastly, it is argued on behalf of the appellant
that the testimony of this PW-12 is doubtful for the
reason that he had specifically mentioned that on
28.9.2002 he was on duty from 7:00 p.m. to 7:00
a.m.. As such, it is further argued that this witness
wants to tell that he joined the duty on 28.9.2002 at
7:00 p.m.. Of course, there is no explanation taken by
the prosecution on his statement that on 28.9.2002 his
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duty hours were from 7:00 p.m. to 7:00 a.m.. It is
argued on behalf of the State that allowance is
required to be given in favour of this witness as to
making an apparent mistake for giving the duty hours.
Otherwise also it is argued that it may be treated as a
typographical error. One thing is certain that the
witness had given the statement before the police and
also he deposed before the Court and mentioned his
duty hours for 28.9.2002. Giving some allowance to
this witness as to making an error in the duty hours
either on 28.9.2002 or on 27.9.2002, on that count it
is not to be said that this witness was not on duty on
that night but as mentioned earlier the effect of his
evidence does not in any way lead this Court to imply
that the appellant/accused drove the car and left JW
Marriott hotel on that night.
79. Moreover, the contradiction arising from the
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statement given in evidence in chief as compared to
the one given in the cross-examination as to the
seating position of the accused, creates a substantial
doubt in respect of whether the accused drove the
vehicle. This doubt is further enhanced as admittedly,
this witness was not present when the vehicle was
driven away ultimately.
THEORY OF CONSUMPTION OF ALCOHOL
80. As mentioned in earlier part of this judgment,
the substantive evidence of mainly two witnesses i.e.
PW-5 Malay Bag and PW-9 Rizwan Rakhangi is
required to be critically examined and then the
evidence of PW-20 Dr. Shashikant Pawar, the Medical
Officer from JJ Hospital and PW-18 Assistant Chemical
Analyzer Dattatray Balashankar from the CA office is
required to be discussed hereunder. Of course, again a
passing reference is required to be made regarding the
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evidence of PW-3 Mannu Khan. His evidence is
critically examined earlier on the aspect as to who was
driving the vehicle. Without going into much details
suffice it to say that said PW-3 has stated that he had
seen the appellant/accused falling on the ground on
the spot of incident twice then again standing up and
running away from the spot and according to PW-3 it
was due to consumption of alcohol by the appellant.
81. Coming to the substantive evidence of PW-5
Malay Bag it is seen that he was working in the Rain
Bar Restaurant as a waiter and was on duty on the
night of 27.9.2002. There was rush in the bar and
according to him about 200-250 customers were
present. According to him, the area of the bar was
admeasuring about 20 ft. X 20 ft.. According to this
witness, the appellant/accused and his friends were
standing at the bar counter. It is brought on record
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from the evidence that if all the tables and chairs are
fully occupied by other customers, the remaining
customers used to stand at the counter to be served
then and there. According to this witness he kept
Bacardi White Rum and cocktail on the counter and
also served some eatables. According to him at about
1:10 a.m. the accused and his friends left the bar. This
witness further deposed that the accused was the
regular visitor to the bar and on that relevant night he
was having many friends with him and the drinks and
food was ordered for all of them.
82. The evidence of the above witness PW-5 is
also required to be examined in the light of the
evidence given by PW-9 Rizwan Rakhangi, the
Manager of the Rain Bar. According to this PW-9
when he was working in the Rain Bar as Manager at
about 11:00 p.m. he saw the accused, his brother
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Sohail Khan and their friends visited the bar.
According to this witness, the accused was standing
near the table. That time some marketing event was
going on in the restaurant and the tables were already
occupied when the accused and his friends arrived in
the bar. Also according to this witness as the
restaurant was full, the accused, his brother Sohail
Khan and others were standing in front of the service
counter and the drinks and snacks were provided on
the said standing bar counter. According to this
witness he had seen the accused possessing white
coloured glass and at about 1:15 a.m. left the Rain
Bar.
83. Now the substantive evidence of PW-5 and
PW-9, as mentioned above, go to show that the
appellant/accused visited the Rain Bar on the night of
27.9.2002 and left at early hours of 28.9.2002. Drinks
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and eatables were ordered and they were consumed.
By pointing out this evidence, during the arguments
learned Public Prosecutor stated that this evidence is
required to be construed along with the circumstances
then prevalent and mainly the circumstance that the
accused was having a white coloured glass in hand.
During the cross-examination it is brought on record
that the accused was drinking clear liquid and the
clear liquid looked like water. Even it is brought on
record that the Bacardi Rum looks like water. By
specifically pointing out this it is argued on behalf of
the State that it is to be accepted that the accused was
drinking Bacardi Rum. This is more so, further argued
that visit of the appellant/accused was to the bar
where the liquors were being supplied to the
customers. It is further argued that according to PW-5
the accused was the regular customer of the bar. As
such it is argued that the cumulative effect of PW-5
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and PW-9 is required to be accepted on the fact that
the accused had consumed alcohol in the said bar.
84. Counter to these arguments, learned Senior
Counsel for the appellant vehemently submitted that
always it cannot be conclusively presumed that every
person visiting the bar necessarily consumes alcohol.
Apart from the circumstances narrated by PW-5 and
PW-9 there must be some other circumstance either
by way of bills for consuming alcohol or by direct
evidence of a waiter showing that he supplied Bacardi
rum and said Bacardi rum was in fact consumed by
the appellant/accused. Admittedly there is no such
direct evidence of PW-5 or for that matter of PW-9.
According to PW-5, he served the drinks and the
eatables on the bar counter and according to him
those were for the entire group consisting of the
accused, his friend Kamal Khan and others.
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85. Now apart from the above evidence there is
another material brought on record by the prosecution
by way of four bills which are marked as Exhibit-50A,
50B, 50C and 50D during recording of evidence before
the Sessions Court. At this juncture it is to be
mentioned that the trial Court had marked these bills
as Exhibits and accepted their evidential value in
order to establish that these bills were for the drinks
and eatables ordered and consumed by the accused
and his friends. In fact these bills were collected
subsequently by the officer and there is substantive
evidence of PW-9 on this aspect and this evidence of
PW-9 and the factual position as to the accused and
his friends not occupying any tables, render these bills
devoid of any substance. On the contrary, production
of such bills before the trial Court is in fact possibly an
attempt to create documents to suit the case of
prosecution. The reason for this is based on the
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following material brought on record. Substantive
evidence of PW-9 during cross-examination goes to
show that the bills were being generated on a
computer system and the name of the customer is not
generated in the bill. Even also name of a person who
pays the amount also does not reflect in the bill. It is
further the evidence of PW-9 that if the customer is
standing near the bar counter then there is no table
number mentioned or reflected in the bill. Table
number is being mentioned only in case of a customer
sitting at a table. Also code number of the captain or
steward is generated in the bill when such captain or
steward serves the order. Further substantive evidence
of PW-9 is reproduced hereunder in order to see under
which circumstances said bills were collected by the
police:
"Prior to recording of my statement,
police had visited the restaurant and
told us to give the bills of date
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27.9.2002. The police had inspected
the bills by which the alcohol was
ordered by the customers. Police had
given me the four bills, out of the
bills, which were inspected by the
police. Police took out the bills and
asked me to sign. I thought what
police did was the correct regarding
the bills."
86. In the light of this evidence, the bills which
are Exhibit-50A to 50D are carefully examined. Said
respective bills give the table numbers as under : 38,
40, 30 and 18. All the bills give the cover (number of
persons) as one. The bills give the captain code
number respectively as 02, 02, 02 and 48. First two
bills Exhibit-50A & 50B are only for food, and third
and fourth bills Exhibit-50C and Exhibit-50D are for
liquor. The total of these bills is Rs.6376/-. The
glaring anomaly is regarding the mentioning of the
table numbers in the bills. Four different table
numbers are given as mentioned above. However, the
cover for which the bill is mentioned as one. So by
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plain reading of the bills it can be construed that each
bill is for one person only and each bill is for the
person sitting on a particular table number. Another
glaring circumstance that said bills show the date
27.9.2002 but according to PW-9, the accused and his
friends left Rain Bar at about 1:10 a.m. i.e. on
28.9.2002. There is no explanation forthcoming from
the prosecution that the payment for the bills was
made when it was prior to 12:00 mid night of
27.9.2002 and then the persons overstayed and left
the bar at 1:00 a.m. or so. There is no explanation by
the prosecution by adducing evidence to show that as
per rule Rain Bar took its last order prior to midnight
and permitted its patrons to remain in the bar even
beyond midnight. Otherwise logically it is to be
accepted that when a person finishes his drinking and
eating and when he has to go out of the bar then he
makes the payment. If this logical circumstance is
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accepted then there is anomaly that said bills have a
date as 27.9.2002 and not 28.9.2002. Moreover these
bills are not taken under panchnama as admitted by
the police officer and also stated by PW-9.
87. Apart from the above there is still glaring
defect in the said bills. There is an endorsement in
handwriting on the bill which is marked Exhibit-50A.
This endorsement at the top of the bill reads thus :
"They were total eight of us including Salman, Sohail
and friend". And at the end, there is an endorsement
on the said bill "Total 6376. Bill paid by Sohail Khan".
88. Admittedly according to the case of
prosecution these were the duplicate bills obtained
from the computer system of the hotel and as such it
was necessary on the part of the investigating agency
to establish these bills as per the procedure laid down
by Section 65B of the Evidence Act. On this aspect
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ratio of the following authority is taken shelter of on
behalf of the appellant : (2014) 10 SCC 473 - Anvar
P.V. vs. P.K. Basheer and others. Sections 65A, 65B
and 62 deal with the proof of the electronic record
and as to the primary and secondary evidence and
admissibility of the same. Apparently as per the case
of prosecution Exhibits-50A to 50D are the secondary
evidence of the original bills either generated in the
computer system and given to a customer or obtained,
returned back from the customer after the payment.
As per Section 65-B (4) it is mandatory pre-
requirement to obtain a certificate. The observations
of the Apex Court are reproduced hereunder :
"Electronic record produced for the
inspection of the court is documentary
evidence Under Section 3 of the
Evidence Act, 1872 (the Evidence
Act). Any documentary evidence by
way of an electronic record under the
Evidence Act, in view of Sections 59
and 65-A, can be proved only in
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accordance with the procedure
prescribed Under Section 65-B of the
Evidence Act. The purpose of these
provisions is to sanctify secondary
evidence in electronic form generated
by a computer. The very admissibility
of electronic record which is called as
"computer output", depends on the
satisfaction of the four conditions
prescribed under Section 65-B(2) of
the Evidence Act. (Paras 7 and 14)
ig Under Section 65-B(4) of the
Evidence Act, if it is desired to give a
statement in any proceedings
pertaining to an electronic record, it is
permissible provided the following
conditions are satisfied:
(a) There must be a certificate which
should identify the electronic record
containing the statement;
(b) The certificate must describe the
manner in which the electronic record
was produced;
(c) The certificate must furnish the
particulars of the device involved in
the production of that record;
(d) The certificate must deal with the
applicable conditions mentioned
under Section 65-B(2) of the Evidence
Act; and
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(e) The certificate must be signed by a
person occupying a responsible official
position in relation to the operation of
the relevant device. (Para 15)
89. Considering the legal position as mentioned
above and also the factual position in the present case
as to production and acceptance of the bills Exhibits-
50A to 50D before the trial Court it must be said that
the trial Court has not done that analysis whether this
secondary evidence can be accepted. Trial Court
simply accepted the correctness and genuineness of
the bills in order to come to the conclusion regarding
the drunkenness of the appellant. In fact there is no
discussion on this relevant sections of 65A, 65B and
65C of the Evidence Act while dealing with the said
bills.
90. By pointing out the above, it is submitted on
behalf of the appellant that it was definitely an
attempt on the part of the investigating agency to
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fabricate the bills and to get them before the Court to
support their case of consumption of alcohol by the
appellant. Definitely collecting any material like the
bills in the present matter during investigation and
creating any document, are two different things.
Latter one is definitely highly objectionable and leads
to the conclusion of fabrication of document and as
such it destroys the case of prosecution if there is an
element of fabrication of the document. In the present
matter the endorsement at the top and bottom of the
bill Exhibit-50A have not been explained by any
witness, even by PW-9 as to why and how a customer
will write on a bill or even a copy of the bill that the
bill is for himself and his friends and how the
endorsement as it is appearing at the end of bill
Exhibit-50A will occur that anybody will write the
total of the bills and make an endorsement as to who
had paid the bills. Definitely the bills Exhibits 50A to
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50D were subsequently procured from the computer
system and then the Investigating Officer had got the
said endorsement done but still there is nothing on
record as to who and how said endorsements were
taken. Said endorsement are original and they are in
ink whereas all the bills are printed and they are
computer printouts. As such for these detailed reasons
it is required to be mentioned that there is no cognate
material before the Court from PW-5 and PW-9 to
establish that on that night the appellant/accused had
consumed alcoholic beverage. Moreover, the
cumulative effect of the substantive evidence of PW-5
and PW-9 goes to show that when a customer is served
at the counter/bar, the bill generated has no table
number. A bill has a table number only when a
customer is served at a table. Further, from the
evidence of PW-5 and PW-9 it is ascertained that the
accused and his friends were served at the
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bar/counter. Then in light of such facts, the
prosecution has failed to explain how the bills with
table numbers (that too four different table numbers)
indicate or prove that the accused was drunk. Further,
the prosecution has not disowned these witnesses.
91. When the above position was noticed by the
learned Public Prosecutor during the arguments as to
the evidential value of the bills, he conceded the
position and did not argue on the proof of the bills by
way of taking shelter of the bills to substantiate the
case of drinking. Though this conceding position was
taken by the State, still it is argued on behalf of the
appellant that mere conceding will not serve the
purpose once it is established that a positive attempt
has been made by the investigating agency to fabricate
the bills and produce them before the Court to be used
as evidence to further the charge of drunkenness. Of
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course this submission has much weight and is
required to be dealt in the light of the further material
by way of evidence of PW-20 the doctor from JJ
Hospital and PW-18 Assistant Chemical Analyzer.
EXTRACTION OF BLOOD & ITS CHEMICAL ANALYSIS:
92. PW-20 had drawn the blood sample of the
appellant/accused at JJ Hospital and then
subsequently the sample was sent to the Chemical
Analyzer and the analysis was done by PW-18.
However prior to going to PW-20, evidence of one
more witness PW-22 is required to be construed. Said
PW-22 is Vijay Salunke, then PSI attached to Bandra
Police Station. On 28.9.2002 he was on duty at the
police station. Investigating Officer Shri Shengal (PW-
27) directed him to take the accused along with police
staff to JJ Hospital for medical examination. On that
afternoon he took the accused to JJ Hospital along
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with the report and requested for taking blood sample
for alcohol test. He identified the report as Exhibit-97.
According to him the Medical Officer had taken blood
sample from the accused and it was delivered to a
constable. Admittedly this constable who took the
delivery is not examined before the Court. After
taking delivery of the samples said PW-22 returned to
the police station along with the accused and the
constable. Said constable delivered said envelope
containing blood sample into the possession of PI
Shengal (PW-27). During cross-examination this
witness had stated that the blood sample was not
given in his custody by the Medical Officer and also
this witness could not tell the name of the constable to
whom the blood sample was delivered. As against
this evidence of PW-22, it is case of PW-27
Investigating Officer that he asked PI Suryawanshi to
take the accused to JJ Hospital whereas PW-22 is
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silent about the presence of PI Suryawanshi at the JJ
Hospital along with the appellant/accused.
93. Now coming to PW-20 Dr. Shashikant Pawar
in his evidence according to him extracted the blood
sample from the appellant/accused. He talked of PSI
Salunkhe (PW-22) and one constable PC No.2985
coming to JJ Hospital along with the
appellant/accused. According to this witness he took
the history from the accused about alcohol
consumption but it was denied. Then he made
examination of the breath and noticed that the breath
was smelling of alcohol. Pupils of the accused were
slightly dilated and his gait was normal. His speech
was found coherent. This witness asked the accused
for verbal consent for extracting the blood. He
obtained left thumb impression of the accused on his
register, so also obtained signature and then
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proceeded for collecting the blood sample. It is
significant to note that this witness has in one
sentence gave the procedure as to how he collected
the blood. His words are "I extracted the blood.
(Witness is deposing after going through the Casualty
Register). After taking blood sample, I directed my office
ward boy to seal the blood sample in my presence. The
bottle was sealed as per the standard procedure
maintained by the hospital. There were two containers
called phials. One phial was having oxalate preservative
and other phial was plain". After this the witness
further deposed that "Bottles(phials) 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 labelling of EPR number about, date, time
and PC number was done and it was wrapped around
the two phials. I also put my signature on the label."
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94. According to this witness, the signature of the
accused was obtained on the EPR register and also
signature of PSI Salunkhe as well as signature of one
PC-27451 was obtained on the EPR register. This
witness also filled two forms "A" and "B" for sending to
C.A. Kalina after filling the contents of the said forms.
According to this witness, he obtained the initials and
thumb impressions of the accused and also of police
persons on the form "A" and form "B". He made
entries in the EPR register regarding collection of
blood and also filled OPD forms. The OPD form is
Exhibit-98 produced before the trial Court and form
"A" and form "B" are Exhibit-101 and Exhibit-102.
95. This witness (PW-20) was cross-examined at
length and mainly on the procedure as to in what
manner the blood sample for alcohol test is required
to have been taken and what precautions are to be
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taken for preserving the blood sample till it reaches
the laboratory for testing. During the cross-
examination it is brought on record that on the OPD
form there was no thumb impression of the
appellant/accused obtained and only a circle is drawn
in place of the thumb impression. Even another
discrepancy is also brought on record regarding non-
appearance of the word "alcohol" on the back portion
of the OPD form when according to the witness back
portion of the OPD form was filled when the entries
were made in the EPR register by inserting carbon
paper. Substantive evidence of this witness appearing
in paragraph-6 in the notes of evidence is reproduced
hereunder for the sake of ready reference in order to
throw light as to how the entire process of collection
of blood was so casually done by the Medical Officer
attached to J.J. Hospital. Said evidence reads thus :
"There is no signature of Salman
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Khan as well as his thumb impression
obtained on OPD form / case paper
(Exh.98). It is true there is a circle
made on Exh.98 for obtaining the
thumb impression of the patient and
also the signature. It was my duty to
obtain the thumb impression as well
as signature on the OPD form
(Exh.98). Back portion of Exh.98
about the examination of Salman
Khan is a carbon copy. "for blood
collection" word though appeared in
the register might have not imprinted
on the back portion of the OPD form
therefore I have written in my
handwriting the word "for blood
collection". Case paper is checked
from the register word by word and
thereafter signature is made on the
case paper."
96. At the above juncture the EPR register Exh.99
was shown to the witness along with the backside of
the OPD form Exh.98 and the witness answered to the
following effect:
"It is true there appears to be gap
between the word "gait" and "speech
coherent" seen in the back portion of
the Exh.98, but there appears to be
no gap seen in between the word
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"gait" and "speech coherent" in the
EPR register entry (Exh.99). It is true
by placing carbon between register
and the case paper and the words
"gait" and "speech coherent" are
written simultaneously, then there
should not be gap found between the
words in the copy (Exh.98)."
97. Further this witness has answered that on
the case paper Exh.98 there is no mention that the
consent of the patient, the accused was obtained prior
to his clinical examination or extraction of the blood.
According to this witness the consent of the patient is
mandatory to be obtained prior to his examination
and in fact it is the requirement of law. Further
regarding not having the word "alcohol" at the
backside of the OPD form, the evidence of this witness
in the cross-examination is of much importance which
reads thus :
"It is true in case paper Exh.98 the
important factor in clinical
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examination was breath smell
alcohol. I carefully wrote the clinical
observation in my case paper. It is
true in back portion of Exh.98, there
is no mention that breath smells
alcohol. It is correct to say that
besides smell of alcohol there can be
other smells found from the mouth."
. Further this witness has answered :
"It is true from the case paper Exh.98
it cannot be said that the patient
Salman Khan was smelling alcohol.
According to me the word "alcohol"
was not printed on the back portion
of Exh.98. I cannot say why the word
alcohol was not imprint on the back
portion of Exh.98. I had compared
the entries mentioned in Exh.98 with
the entries mentioned in EPR register.
It is true that while verifying the
entries in the back portion of Exh.98
with EPR register, I made entry with
ball pen on back portion of Exh.98
which was not imprint while writing."
98. By pointing out these answers of PW-20 it is
strongly submitted on behalf of the appellant that
there is manipulation and insertion of word "alcohol"
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in the OPD papers and apparently such word "alcohol"
could not have been also present in the original EPR
register. The fact remains that PW-20 has not given
any explanation as to why the word "alcohol" is
missing from the backside of the OPD paper which is
Exhibit-98.
99.
By pointing out the main glaring defect thus
suggestive of fabrication, the learned Senior Counsel
for the appellant made various submissions that
according to PW-20 the thumb impression and
signature of the accused was taken on the EPR register
but was not proved by sending the signature and
thumb impression for forensic expert / handwriting
expert. On this aspect, learned Public Prosecutor for
the State stated that it is not a case of the
appellant/accused that his blood was not drawn at JJ
Hospital. Definitely it is not a case that the blood was
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not drawn at JJ Hospital but still it is argued on behalf
of the appellant that the mandatory requirements or at
least the important procedural aspects are required to
be followed when a person is asked to give his blood
for the purpose of a particular test when apparently
such examination may be used against him in a Court.
It is further argued that in fact asking for the
extraction of the blood for alcohol consumption is
asking a person to procure the material which
ultimately may be used against him and if this is the
ratio behind it then consent of the person is required
to be obtained. The submission on behalf of the
appellant was that though the blood was collected
there was no apparent consent given by him and more
so his thumb impression or signature were not
appearing on the OPD paper which is Exhibit-98.
Further more the cross-examination of PW-20 in
paragraph-20 is brought to the notice of the Court
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during argument that according to this witness there
was no specimen seal of lakh sent to the CA. By
pointing this out, it is stated that form "B" which is
Exhibit-102 bears the facsimile of lakh and there is no
explanation as to how this facsimile of lakh is
appearing in Exhibit-102. In fact sending of such
facsimile of lakh seal on form "B" is a counter check in
order to rule out tampering of the sample and to
ensure the authenticity that the same sample which is
extracted by the Medical officer reaches the chemical
analysis laboratory.
100. Form "B" and for that matter form "A" are the
requirements as per the rules under the Bombay
Prohibition (Medical Examination and Blood Test)
Rules and as such said form "B" is to be filled by the
doctor / medical officer extracting the blood for the
alcohol test and said form is addressed to the
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Chemical Analyzer to Government of Maharashtra.
One of the aspects to access the authenticity is the
facsimile of lakh seal which is to be impressed on form
"B", in this case on Exhibit-102 and the same seal with
lakh is required to be affixed on the blood sample
phial / bottle which is to be sent to CA. At the CA
office, the concerned Analyst examines the facsimile of
lakh seal from form "B" and after comparing it with
lakh seal of the sample bottle / phial he ascertains the
authenticity by visual inspection that both the seals
are same and there is no tampering. Further more it is
brought to the notice of the Court that form "A", which
is Exhibit-101, in the present case bear the signature
of one police constable PC-27451 and according to the
case of prosecution he was the constable who took
said blood samples and form "A" and form "B" from JJ
Hospital. However, this constable No.27451 is not
examined in the case. Apparently from the signature
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appearing on Exhibit-101 form "A" said PC-27451 is
the same constable by name Mane but significantly
enough the number of another police constable is
mentioned on both these forms "A" and "B" i.e. 101
and 102 and the said constable's PC number is 2985
from Bandra police station.
101.
According to the case of prosecution along
with PSI Salunkhe this constable No.2985 was sent to
JJ Hospital along with the appellant/accused for
extraction of blood. Neither this constable No.2985
nor any constable No.27451 were examined in the
present case. Apparently this was one of the links
required to have been established when the matter is
concerning biological evidence.
102. During the arguments it is argued that in case
of appreciation of biological evidence a chain of
custody is required to be established and if it is not
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established then the biological evidence is not
trustworthy and is required to be discarded as
apparently it is the evidence as that of an expert
witness. Following authorities are cited on behalf of
the appellant :
[I] MANU/MH/1360/2014
[Manoj Mahadev Gawade Vs. The State of
Maharashtra]
[II] 2012 SCC OnLine Del 3375
[Vinay Kumar Vs. State ]
[III] 212(2014)DLT99
[State through Reference Vs. Ram Singh &
Ors. AND Pawan Kumar Gupta Vs. State]
103. Another factual position is brought to the
notice of this Court as apparent from the substantive
evidence of PW-20 Dr. Pawar. This witness agrees in
the cross-examination that as per the contents of form-
A and form-B, the two phials and said forms were kept
in one sealed envelope. This witness talks of single
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sealed envelope containing form-A and form-B and
two phials of blood. As against this the substantive
evidence of the police head constable Sharad Borade
(PW-21) (No.2019) say that the investigating officer
Rajendra Kadam (PW-26) called him and gave two
sealed envelopes and asked him to deliver them to the
office of the CA. As per Exhibit-80 there is mention of
one sealed phial so also as per the CA report there is
mention of one phial but as per the evidence of PW-20
he sent two phials with form-A and form-B. Much is
also argued about the sealing of the phials at the J.J.
Hospital and admittedly according to PW-20 doctor
the ward boy sealed the sample bottles. Though it
was so the sealing process was told by PW-20 and not
by the ward boy as the ward boy was not examined.
By pointing out this, it is submitted that the evidence
of doctor PW-20 on the aspect of sealing is hear-say
and in fact this hear-say is on the material aspect
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which goes to the root of the matter touching the
authenticity of the blood sample which reached the CA
office. Considering this evidence of PW-20 and the
anomaly in the OPD form and absence of word
"alcohol" and absence of the thumb impression and
signature on OPD form, in the opinion of this Court no
requisite and necessary care as required, was taken by
PW-20 while taking blood sample. There are other
aspects also which lead to the reasonable doubt as to
authenticity of the sample and those aspects are
regarding what was received at the CA office and what
happened to the form-B (Exh.102), whether it reached
back to the police station through PW-21 Head
Constable Borade or whether it remained with CA
office. Also there is anomaly as to how this Exhibit-
102 form-B came in the custody of police when it was
produced before the Court initially when the matter
was before the Metropolitan Magistrate Court. These
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other anomalies and the subsequent evidence mainly
that of PW-18 is now required to be discussed which
again goes to the root of the matter as to whether
what was sent to the CA was the same sample which
was extracted at JJ Hospital and whether there was
any authentic labeling and sealing of the sample.
Moreover, the discrepancy as to the total quantity of
the blood is also required to be discussed when it was
6 ml extracted at JJ Hospital, 3 ml in each phial, and
total four mls received at the CA office.
104. In view of the above, now the evidence of
PW-18 is of much importance. PW 18 Dattatraya
Khobrajirao Bhalshankar was working as an Assistant
Chemical Analyser at Forensic Science Laboratory at
Kalina, Santacruz. As per his evidence he had received
one case from Bandra Police Station on 30.9.2002. He
received one bottle along with letter from Bandra
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Police Station. It was the blood extracted from the JJ
hospital. He received the letter from Bandra Police
Station along with the sealed envelope. Senior
Inspector of Bandra Police Station, Shri Shengal (PW
27) had given a forwarding letter dated 30.9.2002,
addressed to the Chemical Analyser at Kalina,
Santacruz ascertained whether Form "A" and "B" were
attached with the letter. Also he ascertained whether
blood phial was sealed or not. According to him, it
was found sealed and seal was found intact. He put
the number on the letter as AL-171/02.
105. He also made noting on the letter to the
following effect "One sealed phial, seal intact as per
copy sent (blood in two phials)". This witness talked
of Form B which is Exh. 102. before the trial Court. It
is significant to note that he talks of blood sample, in
singular, though subsequently he mentioned that while
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writing his endorsement he had mentioned in the
bracket (blood in two phials). According to this
witness, he affixed the two labels which were found
on the phials and put them on the Form- "B" at the
bottom. In fact, these are the sticking plasters which
were prepared according to PW no. 20, giving the EPR
number, date and time and PC number and also bear
the signature of PW 20. According to this witness, PW
18, he removed the labels from the blood bottle and
affixed on the letter Form- "B". Thereafter, he kept the
blood phials in the refrigerator. Further the evidence
of this witness shows that on 1.10.2002 he analysed
the blood phials. He used the "Modified Diffusion
Oxidation Method" for analyzing the blood.
Accordingly, he prepared the report as to his findings.
He identified the said report as Exh.81 which is having
same ML Case No. AL-171-2002. The contents of the
said report are very significant. He also made a noting
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on the report there is specific mention of one sealed
phial received from Police Naik No. 20419. This CA
report is addressed to the Medical Officer, Sir JJ Group
of Hospital, Mumbai. Opening words of this report
reads as under :-
"Your letter No. JJH/VA/191/202
dated 28.9.2002 forwarding of EPR
containing blood of Shri Salman
Salim Khan bearing certificate No.
EPR/5452/Label/ Salman Salim
Khan received here on 30.9.2002,
with messenger Shri PN No. 20419
of one sealed EPR, seals intact as per
copy sent."
106. The said CA report is in fact a printed format
where the variables are the letter number, date, name
of the person, date of receipt, EPR number and the
name of the messenger and the quantity of the article.
The final result of the test of the blood is as under:
"The blood contained 0.062 per cent
W/v of ethyl alcohol (Sixty Two mg)."
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107. On the next page of the report the method of
data and actual date and reasons leading to the result
of blood analysis were mentioned. The method of
analysis is: Modified Diffusion Oxidation Method,
Analytical Chemistry, 1959. In the said report there is
a printed format material regarding reference for the
said Modified Diffusion Oxidation Method and the
said reference is of MODI - A TEXT BOOK OF
MEDICAL JURISPRUDENCE AND TOXICOLOGY, 1977.
What is significant in the said report on page no.2 is
the quantity of blood received and measured. It is 4
ML. This information is given in paragraph no. 3.
Paragraph no. 4 of the report says that "preservative
used" - "Oxalate on the forwarding letter and not on
blood phial." In paragraph no. 5 it is mentioned
"Morpholine test - positive. There is special note at
the end of this report and which is also in a printed
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usual format to the effect "the blood sample was
stored in refrigerator from the time it was received in
the Laboratory, till it was taken for analysis."
108. By pointing out these specific contents of the
CA report Exh.81, various points were raised on behalf
of the appellant by learned Senior Counsel. So also
the attention of this Court is drawn towards the
specific evidence of PW 18 that he removed the
sticking plasters from the sample bottle containing
blood received along with Form-B Exh.102 and pasted
them at the bottom of said Form. There is no specific
evidence on which day he did this procedure.
Apparently, he did this prior to taking of the sample
for analysis. Admittedly, the analysis was done on
1.10.2002 and the removing the sticking plasters from
the sample sent through the police station and
received from the constable, was done prior to that
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and definitely on the receipt of the sample by the CA
office. On this aspect, now coming to the substantive
evidence of PW No. 21 Sharad Borade, it can be seen
that when he was on duty on 30.9.2002 at Bandra
Police Station, I.O. Rajendra Kadam called him and
gave two sealed envelopes. One envelope was having
two bottles and one envelope was having a letter. The
said envelopes were given to him by Rajendra Kadam
for carrying to the CA Office, Kalina. He then handed
over the envelopes to the Laboratory. He identified the
forwarding letter given by the police at Exh.80 as he
made an endorsement at the back of said letter to the
effect that he delivered forwarding letter from the
police station along with Form "A" and "B" to the CA
office. This Sharad Borade is Head Constable No.
20419. He identified his endorsement as mentioned
above, as Exh.80-A. In fact, it is surprising to note that
Exh.80 is a letter addressed by PI Shengal to Chemical
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Analyser, Kalina Santacruz. However, the
acknowledgement or a sort of endorsement made by
PW 21 i.e. the Constable who carried the sample and
the letters to CA, is appearing on the back of the same
letter and, in fact, he got back that letter to the Police
Station that is what is his evidence at the end of
paragraph 1 in the notes of evidence. His evidence
reads thus :
"Now I am shown Exh.80. I say that
letter is the same. I also made
endorsement on the back of the letter
(Exh.80) that I received the letter of
police station along with Form "A"
and Form "B" and also I deposited
two sealed bottles of blood of accused.
The endorsement is at Exh.80-A. I
also signed below the endorsement. I
also obtained the acknowledgement
from Kalina Laboratory about
delivering the bottles. I handed over
the letter along with the
acknowledgement to the Investigating
Officer about delivering the bottles
and the letter to Laboratory, Kalina."
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109. In fact, there could not have been any
endorsement mentioning that he handed over Form
"A" and "B" as those Forms were kept in sealed
envelopes as per the evidence of PW 20 Dr Shashikant
Pawar from Sir JJ Hospital. There was nothing for the
Constable Borade to know that he was taking Form "A"
and "B" and giving such endorsement on Exh.80. What
he was given is the sealed envelope containing letters
and another envelope containing two bottles (phials).
Another anomalous thing is that the said Exh.80
should form part of the record of the Forensic Science
Laboratory, as it was addressed to the Laboratory and
on the back of it there could not have been any
endorsement by the carrier i.e. PW 21. In fact, this
anomalous situation has not been explained by the
prosecution. Exhibit 80 which was produced before
the Sessions Court is in fact the original letter and not
the office copy. This fact is ascertained from the record
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of proceeding of the trial Court. Had it been the office
copy, then, PW 21 taking it back to the police station
along with his endorsement as to "delivery" to the
office of CA, would have been probable and
acceptable. But the original letter addressed to the CA
for no official purpose should go back to the police
station but it should remain with the CA office and
during recording of the evidence should come from
the custody of the Chemical Analyser. Initially, this
letter was produced before the M.M. Court when the
trial was for the main offence under section 304-A of
IPC. Then, it was apparently marked as P-19, which
has now become Exh.80 in the Sessions Court trial.
The anomaly in the prosecution evidence does not
stop here, but this witness PW 21 further went on to
say now during cross-examination that he brought
back the Form "B" which is Exh.102 to the Police
Station and this happened on 30.9.2002. His evidence
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to that effect reads thus :
"Exhibit 102 shown to the witness.
The receiving clerk put an
endorsement about receipt of the
bottle and also my buckle number
was mentioned in the endorsement,
(B.No. 80429). Buckle number was
mentioned in the endorsement made
by him and the same Form was
returned to me. I then submitted the
same Form to the Police Station. I do
not know when the labels were put on
Exh.102. The labels were not put on
Exh.102 in my presence. I do not
know how the labels were affixed on
Exh.102. handed over Exh.102 to
Inspector Kadam. I do not know
whether there were labels on Exh.102,
when I delivered the letter to Kadam.
During five minutes, the endorsement
"one sealed phial seal intact as per
copy sent (blood in two phials)" was
not made in my presence by the
receiving clerk on Exh.102."
110. In fact, this substantive evidence of PW 21
contradict the case of PW 18 as discussed above, as
according to PW 18 he removed the sticking plasters
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from the sealed bottle and pasted them at the bottom
of Exh.102 - Form- "B". If PW 21 had taken back
Form- "B" (Exh.102) on 30.9.2002 itself after
delivering the samples to the receiving clerk at the
laboratory, then, this Form-B could not have been
available before PW 18 so as to put the sticking
plasters on it prior to taking the sample for analysis.
111. By pointing out the above, the evidence as
brought before the Sessions Court, it is submitted on
behalf of the appellant that there was manipulation in
the blood sample and what was extracted at Sir JJ
Hospital had not reached the CA office. In order to
further this argument, the following factual position is
brought to the notice of this Court during arguments
and it is appearing from the evidence. According to
PW 20 Dr Shashikant Pawar from Sir JJ Hospital one
sealed envelope was given but at the police station
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two sealed envelopes were given to PW 21. According
to PW 21 Borade, he gave two envelopes to the
Laboratory. It is significant to note that the receiving
clerk from the CA office is not examined, otherwise
this discrepancy as to whether, in fact, PW 21 got back
the original Exh.102 from the CA office, or it still
remained with the CA, till the sample and the said
Form-B Exh.102 reaches the hands of PW 18 could
have been clarified. This is, in fact, a missing link in
the biological evidence which is required to have been
established by the prosecution while placing reliance
on the test report Exh.81. Further more, a striking
variance as to the factual position, how the sealing
was done is brought to the notice of this Court and it
is observed that the sealing of the blood sample was
done by the ward boy at JJ Hospital. Initially, white
bandage was tied on the phials, then the lakh seal was
applied on the top and bottom and then thereafter
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sticking plaster was wrapped and on which the
relevant information regarding EPR number, date,
time, etc. was mentioned. According to PW 18, he
removed the labels i.e. the sticking plaster and fixed
them on the Form "B" (Exh.102). Prior to that he
talked of a Tixo tape, which according to him was the
tape with which sealing was done on the phials. PW
18 does not talk of red wax seal but he talked of Tixo
tape. Now, the specific evidence of PW 20 on this
aspect is appearing in paragraph no. 2 of his notes of
evidence to the following effect:-
"Bottles (phials) 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 date, time and PC number and
it was wrapped around the two
phials".
112. As against this, according to PW 18 in
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paragraph no. 13 of his evidence had stated that the
constable brought two bottles which were wrapped by
Tixo tape. PW 18 talked of constable directly giving
him a sample bottle whereas said PC PW 21 talked of
delivery of bottle to the receiving clerk. The Receiving
Clerk is not examined by the prosecution. Now,
according to PW 20 Dr Pawar, he collected blood in
two phials each containing 3 ml. and in one phial he
added oxalate preservative and other phial was plain.
According to PW 18 Dattatraya Bhalshankar, in his
cross-examination he admitted that he received 4 ml.
of blood for analysis which he measured by taking the
quantity from both the phials and he measured
apparently by the same pipette. (Glan apparatus used
in laboratory for chemical analysis). This is significant
for the reason that one phial, according to doctor, was
containing Oxalate in the blood and another phial
contained plain blood. In fact, greater care should
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have been taken by the analyst PW 18. His evidence is
to be accepted as that of an expert's evidence and in
order to place reliance on the same so as to its
authenticity, in fact, the handling of the sample and
the stages through which the sample passed from the
stage of taking of the blood at Sir JJ Hospital and
reaching the CA office was of an immense importance.
Even for this reason Form "B" or for that matter the
Rules under the Bombay Prohibition (Medical
Examination and Blood Test) Rules, 1959 contemplate
a special procedure in order to ascertain the
authenticity that what is extracted at the hospital is
reaching the laboratory. In the Form-B (Exh. 102)
there is buckle number of the constable PC No. 2985
from Bandra Police station, mentioned as a carrier.
This constable is not examined. In fact, the Format of
Form "B" also mention that the messenger could also
be from Sir JJ Hospital. But, apparently, this mode is
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not chosen by the doctor PW 20 and the sample was
given in the custody of the constable. It being a
biological sample and apparently immediately on the
day of the receipt of the sample i.e. 28.9.2002 it was
not delivered to the office of Chemical Analyser,
utmost care was necessary to have been taken by the
Investigating Agency when the sample is routed
through the police.
113. On the above aspect, again a glaring anomaly
is required to be considered. Though it is the case of
the prosecution that on 28.9.2002 and 29.9.2002, the
CA office was closed as these were the days falling on
Saturday and Sunday and though the sample could
not have been sent immediately to the CA, the sample
was required to have been placed in a secured
condition so as to rule out any possibility of internal
fermentation of the blood sample. Otherwise the final
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results would not be accurate. Otherwise also, as
argued on behalf of the appellant, a special messenger
could have been sent and the office of the CA could
have been requested to accept the biological sample
even on the office closure days. But this procedure is
not adopted. In fact, it is unfortunate, if it is a fact,
that the office of CA will entirely remain close for not
accepting any emergent samples, in case of exigencies.
But, apparently, it is seen from the material on record
and what is produced before the Court by the
Investigating Agency that the sample was not sent on
28.9.2002 but it was sent on 1.10.2002 that also with
the above referred anomalies as to number of phials
and more particularly the quantity.
114. Again the anomaly does not stop here. There
is the evidence of the IO PW 27 that the sample was
kept in his anti-chamber in refrigerator, from
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28.9.2002 till it was given to PW 21 Borade. Nothing
is brought on record by the prosecution that in fact
such arrangement of having a refrigerator at the anti
chamber of a police officer at Bandra Police Station
was officially done. Even if such arrangement is
unofficially done, then also there is nothing on record
to show that there was such refrigerator kept. It is
another question whether any such refrigerator can be
kept in the anti chamber of a police officer at the
police station and if it is required to be done for some
official purpose, then there should be an official record
to that effect. However, the investigating agency
wanted to believe that the said sample was kept in
refrigerator with the police station from evening of
28.9.2002 till morning of 1.10.2002.
115. Apart from the above, still, another anomaly
as to whether there was any preservative in the blood
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sample. The substantive evidence of PW 20 a doctor
from JJ hospital shows that he added 'Oxalate' in one
of the phials containing 3 cc of blood. Another phial
was not having any additive but having only the plain
blood 3 cc. Even the CA report mention regarding
presence of 'Oxalate' in one phial and it is, in fact, the
factual position that the Oxalate is being used as
anticoagulant and not as a preservative. This is
specifically accepted by the expert PW 18. He further
stated that preservative is required to be added in the
blood sample in order to rule out the possibility of the
generation of any other alcoholic substances in the
sample itself due to its degeneration. Needless to
mention that the effect of an 'anticoagulant' is
different than the effect of a 'preservative'. The usually
used preservative even according to PW 18 and
according to the Chemistry so far as analysis of blood
for alcohol is Sodium Fluoride (NaF). It is, in fact,
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astonishing to see that the expert witness PW 18 was
not in a position to give correct chemical formula of
Sodium Fluoride and he mentions the formula as Na 2
SO4. Na2SO4 is actually 'Sodium Sulphate' and
formulae for Sodium Fluoride is 'NaF'. A common man
may forget about niceties of Chemistry but the expert
from the Forensic Science Laboratory giving this type
of evidence before the Court depicts some other
picture. Lack of knowledge on the part of an expert
may not always be disastrous in case of analysis of
minor things. But here what was to be established by
the prosecution was the drunkenness and percentage
of the alcohol in the blood sample of the appellant. On
all these anomalies, it is tried to be argued on behalf
of the State that though the CA is giving his evidence
as an expert, he need not know all the chemical
reactions or formulas, he may not be in a position to
give the details as to how a particular analysis can be
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done. But it is to be seen whether he has followed the
procedure which was prescribed under the law.
116. According to the prosecution, the CA report
Exh.81 is required to be accepted as to containing the
alcohol twice the limit than that is permitted by law.
To further this argument, it is submitted on behalf of
the State that even the Rules 4 and 5 under the
Bombay Prohibition (Medical Examination and Blood
Test) Rules, 1959 do not mandate that the said rules
are mandatory but they are directory. On this aspect,
various authorities are cited on behalf of the appellant
and it is submitted that though the rules are not
mandatory, the procedural aspect is required to be
strictly followed. Though the rules say, for example,
that minimum 5 ml of the blood is necessary to be sent
to the laboratory, in some cases, if less quantity is
received then this anomaly, itself, will not negate the
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effect of the tests report. Following are the authorities
on the procedure to be followed in drawing of a blood
sample for 'alcohol' and substantial compliance of Rule
4 as per Section 129-A of the Bombay Prohibition Act.
(1) 1979 Bom C.R. 419
[Shravan Ganpat v. The State of Maharashtra]
(2) 1979 Bom.C.R. 263
[Ashok Hariba More vs. The State of
Maharashtra] : This authority deals with Rule 4
(2) of the Bombay Prohibition (Medical
Examination and Blood Test )Rules, 1959 and
specify that sample of blood shall be forwarded
for test either by Post or with a special messenger
and shall be accompanied by Form "B".
(3) 1977 U.C.R. (Bom.) 532
[Tulsiram Gangaram Raykar Vs. The State of
Maharashtra]
(4) 1967 Mh.L.J. 13
[Bankatlal V. State]
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(5) AIR 1967 Guj 219, (1967) 8 GLR 31.
[Karansingh Balubha Vs. State of
Gujarat)
(6) 1980 Bom.C.R. 947
[Suresh Shankar Chavan Vs. The State of
Maharashtra]
(7) AIR 1980 SC 1314
[State of Rajasthan Vs. Daulat Ram)
(8) AIR 1967 Bombay 218
[Narayan Krishnaji Marulkar & Anr Vs. State]
(9) 1986 (3) Bom.C.R. 341 (Aurangabad Bench)
[The State of Maharashtra Vs. Raghunath
Madhavrao Marathe]
117. From the above authorities it is not certain
that Rule 4 is mandatory but, of course, there cannot
be any compromise on the aspect when a particular
procedure is to be applied and which goes to the root
of the matter, then fulfillment of that procedure is
required to be established by material on record. Here
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the main anomaly is not that when 5 ml of blood is
necessary for the tests and 4 ml is received by PW 18
Bhalshankar, but the anomaly is what is sent by the
doctor is 6 ml and what is received by the CA is 4 ml.
Moreover, there is anomaly regarding how the sample
was received by the CA PW 18. At the cost of
repetition, it must be mentioned that he received the
sample from one Constable. However, the police
constable PW 21 is silent on the aspect and he talked
of giving sample to the receiving clerk. By pointing out
this, it is submitted on behalf of the appellant that if it
is required to be accepted that both these witnesses
are right on this aspect, then, some other constable
must have reached the CA with the sample because
PW 21 was not the constable who gave the sample to
PW 18. In fact, this controversy could have been
resolved by examining the receiving clerk from the
office of CA but he is not produced before the Court in
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order to establish the link and to suggest that the
constable PW 21 is not giving the correct evidence but
he gave the sample to PW 18 directly. However, the
fact remains that whatever evidence adduced before
the Court is required to be viewed with the anomalies
which are pointed out above.
118.
Again on the above aspect as to the
drunkenness and testing of the blood of the appellant
for alcohol content, it is again significant to note that
except Dr Pawar PW 20, no other witness of the
prosecution is saying that the accused was smelling of
alcohol. Even Ravindra Patil did not mention this
while giving his FIR that the accused was drunk and
drove the vehicle. PW no. 20 Dr Pawar in his report
and in his evidence before the Court did mention to
the following effect :-
"I noticed breath was smelling alcohol."
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119. This answer was in reference to the clinical
examination of the appellant-accused. But this
evidence is required to be viewed in juxtaposition of
the factual position discussed earlier regarding the
word "alcohol" not appearing at the back of the OPD
paper Exh.98 though apparently it is appearing on the
EPR register.
120. One more aspect on this alcohol consumption
and the tests and the precautions to be taken while
taking the sample and the carrying out the analysis, is
required to be mentioned. It is argued on behalf of the
State that the rules under the Bombay Prohibition
(Medical Examination and Blood Tests) Rules, 1959
cannot be applicable in the present case as there is no
charge in the present case for the offence under
section 66 (1) (b) of the Bombay Prohibition Act,
1949. On this aspect, it is to be seen that initially
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when the matter was before the M.M.Court, main
charge was under section 304-A of IPC, the charge
under section 66 (1)(b) under the Bombay Prohibition
Act was also framed. Secondly, the procedure adopted
by PW 18 Dr Pawar from Sir JJ Hospital was regrading
sending of Form "A" and Form "B" along with the
sample presupposes that there should have been
compliance of the said rules. Thirdly, when the matter
was before the Sessions Court after the committal and
when the charge was framed initially, the charge was
framed under section 66 (1)(b) of the Bombay
Prohibition Act also. But when the matter came before
this Court challenging the applicability of Section 304
Part II of IPC, this Court took a view that section 304
Part II of IPC is not applicable. But, consequently, the
said order was challenged before the Apex Court as
detailed earlier and the matter again came back and
was heard before the M.M. Court. Ultimately, before
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the M.M. Court present PW 18 and 20 were also
examined. This charge under section 66 (1)(b) of the
Bombay Prohibition Act was already framed. Then it
so happened that after 17 witnesses the matter was
again sent back to the Sessions Court on committal. At
this stage, the charge under section 66 (1)(b) was not
framed. There was no explanation from the
prosecution as to why this charge under section 66 (1)
(b) though earlier framed when the appellant-accused
was tried before the M.M.Court, not so framed before
the Sessions Court. In any event, the argument by the
State that for non framing of a charge under section
66 (1)(b) under the Prohibition Act, the Rules under
the Bombay Prohibition (Medical Examination and
Blood Test) Rules, 1959 are of no significance, cannot
sustain. The question is whether the investigation was
proceeding in a particular direction for proving a
charge u/s 66 (1)(b) of the Bombay Prohibition Act.
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Then in that event it was incumbent upon the
prosecution to follow the procedure. In any event, this
is the aspect which is required to be considered and in
fact it must be held that this goes to the root of the
matter as to the consumption of alcohol by the
appellant and it must be said that the evidence of the
prosecution had not reached that standard of proof for
establishing that the blood collected from the
appellant-accused was having that percentage as
mentioned in Exh.81.
121. On above aspect itself, another circumstance
is required to be mentioned as to initially the
appellant was sent to Bhaba Hospital according to the
Investigating Agency. However, no document was
produced before the Court as to report from the Bhaba
Hospital that the facility of taking the blood is not
available or the requisite equipments are not there.
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This stand of the Investigating Agency is required to
be examined in view of the factual position that the
blood of a deceased Nurulla was taken at Bhaba
Hospital for analysis. Of course, it is the argument on
behalf of the State that the procedure for taking blood
of a deceased and the procedure of blood to be
extracted from a living being and that also for analysis
of alcohol, are different and require different
expertize, then also there should have been a report
before the Court that the said facility was not available
at Bhaba Hospital and the blood could not be
extracted there for that purpose. Of course, this is one
of the circumstances argued on behalf of the appellant
in order to show the quality of the investigation for
showing the procedural lapses.
122. This aspect was also dealt with before the
Sessions Court. However, apparently the Sessions
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Court came with a different analysis saying that the
judicial notice could have been taken that if the blood
is extracted from a person then always there should be
a sticking plaster on his arm or on the part from where
the blood is extracted. By no stretch of any
imagination can it be said that this is a concept for
taking a judicial notice. However, exactly that has
been done by the trial Court. In any event, the factual
position as referred to above indicate as resulted in the
above finding of this Court as to non-establishment of
the fact of consumption of alcohol by the appellant-
accused.
TYRE BURSTING :
123. Now, coming to the third major aspect as to
whether it was a pure and simple accident due to
bursting of the left front side tyre of the car and
whether the said defence raised on behalf of the
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appellant-accused is probable or not. On this aspect,
the major substantive evidence is that of PW 19 Arjun
Kesker, the RTO Inspector and also that of defence
witness Ashok Singh. PW 19 is the RTO Inspector who
inspected the vehicle involved in the accident and
gave his report at Exh.84. At the cost of repetition, it
is to be mentioned that at about 9:30 a.m. he had
inspected the vehicle on 29.9.2002. Then the vehicle
was standing in front of Bandra Police Station. Firstly,
he checked the vehicle from all the angles from
outside and recorded damages, scratches found on the
vehicle. Externally he noticed that the damage was
caused to the left side and front bumper was found
missing. He also noticed left head light as well as side
light was broken. The electrical wires of the bulb were
found outside. He noticed scratches on the wind shield
glass. Right side mirror was also found broken. Now
the specific observations of this witness are coming in
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paragraph no. 5 of his evidence before the Sessions
Court. He also went beneath the car in order to see
whether any damage was caused to the car from
below. He also opened the bonnet which was bent. He
checked oil, coolant and also checked mechanical
defects, electrical connections and noticed and found
all intact. The result of this examination apparently
lead to the conclusion that there was no much damage
except the front left side damage and loss of the
bumper from the front side. This fact is important in
the light of the case of the prosecution that during the
incident the vehicle was being driven at the speed of
90 to 100 km per hour. This is also important and to
be viewed in juxtaposition of the situation as stated
by PW 7 and PW 15 that there were speed breakers on
the St.Andrews Road near Holy Family Hospital. This
is again more significant when it is the case of the
prosecution that the vehicle took the rout from
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J.W.Marriott Hotel till the house of the appellant via
St.Andrews Road and Hill Road. Apparently, the
accident occurred at the junction of St. Andrews Road
and Hill Road. As such, considering installation of the
speed breakers as stated by the witnesses and
considering the speed, alleged to be 90 to 100 km per
hour, and considering the damage which is now
observed, it is difficult to assess as to whether the
things had happened as depicted by the case of the
prosecution. The effect of a speed breaker can be
understood by the condition of the vehicle when
running in at speed of 90 to 100 km per hour and if
with this speed the vehicle collides with any stationery
object like in this case it collided with the shutter of
American Laundry then the result of impact would be
very disastrous so far as damage of the vehicle. This is
more so when apparently there are no break marks on
the spot and nothing to that effect is appearing in the
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panchnama, or there is no evidence of any witnesses
as to finding of break marks on the road or anything
to suggest that the vehicle may have slowed down.
With this basic understanding, the evidence of PW 19
is to be analyzed. Also it is to be seen in the light of
the evidence of the other witnesses as to the puncture
or bursting of the left side front tyre. Again, it is to be
seen that this RTO Inspector PW 19 has not stated
anything regarding the left side door whether in
damaged condition or inoperable in any manner. This
witness further say that he opened the driver's side
door for checking the vehicle. He tried to start the
engine by inserting the key of the ignition. The engine
started after inserting the key for ignition. He also
checked whether hand break was functioning. After
checking various other parameters regarding engine
and hydraulic connection for power steering and
noticing that everything was intact, he checked the
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electrical signal and found them in order. He also
found the gear box in order. Then, according to him,
he took the vehicle for test drive. At this time, this
witness was questioned, still in the examination-in-
chief that instead of finding less air in the left front
side wheel, whether he was in a position to drive the
car. To this he answered that he was in a position to
drive the car in spite of the less air in the left front
tyre. At this juncture, it must be mentioned that there
are various witnesses who deposed as to finding the
left front tyre either punctured or burst. Without going
much into details of the answers by these witnesses,
suffice it to say that PW 1 in para 7 stated "left tyre of
the car was found punctured". PW 8 in para no. 6 has
stated, "the left front tyre of the car was found burst."
PW 13 in paragraph no. 3 stated "the tyre of the car
was found burst". PW 26 the police officer had
specifically stated and agreed that the vehicle involved
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in the accident was towed from the spot of the
accident as it was not in a position to be driven. The
same police officer further stated that the left front
tyre of the car was burst. The last prosecution
witness PW 27 Police Officer Shengal stated to the
following effect:-
"It was not possible for me to send the
front left tyre to the Forensic Lab for
ascertaining the extent and cause of
the burst."
124. By the above, this witness accepted that the
tyre was burst but he did not take any measures to
find out the cause, much less to ascertain whether it
was due to the impact of the incident or because of
the bursting the incident occurred i.e. whether it is the
final result of the incident occurred, or it is the cause
for the incident."
125. Now coming back to the evidence of PW 19,
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during the course of cross-examination he had given
altogether a different story as to on which day he
examined the vehicle and which day he gave the
report at Exh.84. According to this witness, he came
to know about the incident when he received the call
on 29.9.2002. He enquired with the police about the
incident but they could not tell him about the incident.
He had asked the police about the papers as to how
the incident took place but the police told him that the
papers were not ready. He demanded the CR
registered from police but copy of FIR was not
available. Police told him that the documents were
being prepared. He further stated that he did not see
the case papers. Now, a very different story is given by
this witness during cross-examination which is
appearing in paragraph 12 of his notes of evidence to
the following effect:
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"It is true that I came to know that on
the morning of 28.9.2002 that an
accident had occurred. I also made a
call to the control room on 29.9.2002
as to whether an inspection of the
vehicle involved in the accident is to
be carried or not. I had inspected the
vehicle on the same day of the
occurrence of the incident. Control
room gave information to me about
the incident on 28.9.2002."
126.
During further cross-examination, he also
answered that he knew one police officer Imtiaz. He
was Inspector working with him and was senior to
him. According to this witness, Imtiyaz also
accompanied to Bandra Police Station. Imtiyaz came
with him as he was residing near Bandra Police
station. According to this witness, it happened on
28.9.2002 at about 9:00 to 9:30 a.m. This witness
further answered that the officer who gave him the
key for inspection of that vehicle was standing with
Imtiaz and Imtiaz had also seen the vehicle. According
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to this witness, Imtiaz told him whether he checked a
particular thing in the vehicle or not. This witness
returned the key to the officer within 20 minutes from
the moment key was given to him. On the next day of
this inspection he visited Bandra Police Station at
about 4:00 p.m. to 5:00 p.m. and remained there for
half an hour. Apparently, then he prepared the report.
In fact, this is totally in variance to his earlier story
given in paragraph no.3 in his examination-in-chief
that he inspected the vehicle at 9:30 a.m. on
29.9.2002. Admittedly, this witness has not been
declared hostile and is not put the questions in the
nature of cross-examination by the learned Prosecutor
during the trial. The variance in the substantive
evidence of this witness has not been explained by the
prosecution by taking answers from him. As such this
witness was also not disowned by the prosecution.
This raises a reasonable doubt whether in fact the
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inspection of the vehicle was done by him as stated.
More so by driving the vehicle when it was admittedly
immobilized and was required to have been taken
from the spot of the incident to the police station by
towing. Considering these circumstances and the
evidence of the other witnesses mentioned above, it is
difficult to accept that the left side front tyre of the
vehicle was not punctured or burst. Now the question
remains whether the bursting of the tyre was prior to
the incident or it was the bursting due to the impact
of the car on the platform in front of the American
Bakery.
th th
DICTATION ON 9 AND 10
DECEMBER, 2015:
127. In view of the above observations it is
ascertained that the vehicle involved in the accident
had a punctured / burst tyre and in fact this position
has been depicted by various witnesses as discussed in
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detail above. Though on this count the substantive
evidence of PW-19 and also the documentary evidence
of vehicle examination report states otherwise, it must
be said that the report (Exhibit-84) apparently is not
in the form prescribed for the road traffic accident
report. In order to ascertain now as to the cause of
such bursting of a tyre whether it was the bursting
prior to the incident or whether the tyre burst because
of the incident and impact of the vehicle on the
shutter of American Express Laundry and while
climbing the platform, it was incumbent upon the
investigating agency to call for the report from the
Forensic Science Experts. In fact apparently as per the
evidence of PW-27 Police Officer Shengal in
paragraph-30 of his evidence had specifically stated to
the following effect :
"I had called the Forensic team for
examination of the vehicle. I do not
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recollect their names or expertise
today. I do not know whether finger
prints were obtained from the car. I
had taken the finger prints of accused.
I had sent the same to the finger print
experts. I had not given direction to
ascertain the finger prints of the
accused on the steering."
128. If these steps were taken by the investigating
agency calling for the Forensic Science team for
inspection of the vehicle then definitely it was
required to ascertain the cause of bursting of the left
side front tyre. In this context the defence of the
accused is required to be seen. Needless to mention
that in a criminal trial it is the duty of the prosecution
to establish its own case and there is no obligation by
law on the accused to prove his innocence and even if
he chooses to record any defence witness then the
burden of establishing the defence can be discharged
by the material which need not be satisfying the test of
evidence beyond reasonable doubt. It is well settled
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that the defence can establish its case if at all the
defence chooses to, by way of giving evidence which
satisfy the standard of preponderance of probability. In
fact with this understanding the entire evidence of
defence witness DW-1 Ashok Singh is required to be
viewed. In paragraph-3 a specific case is pleaded by
DW-1 and which is reproduced hereunder :
"I then took the vehicle on Linking
Road, then on Gonsalves Road and
took the right turn for going to Hill
Road. Our vehicle came on Hill Road.
Our vehicle proceeded at some
distance on hill Road, then the front
left tyre of our vehicle burst, thereby
our vehicle pulled towards the left
side. I tried to turn my steering wheel
but it had become hard to turn. I also
tried to apply the brakes, but by then
the vehicle had climbed the stairs of
the Laundry. Our vehicle then
stopped."
129. By placing this defence material before the
Court through DW-1, it is tried to establish on behalf
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of the appellant/accused during the trial, that the
vehicle was being driven by DW-1 as he was the fourth
person in the vehicle and after proceeding on the Hill
Road by taking a turn from Gonsalves road, the left
front tyre of the vehicle burst. Of course, in a running
vehicle when one of the tyres burst then the vehicle is
pulled towards the side on which the tyre is burst. In
fact this is the science and action of a moving vehicle
is governed by the laws of physics. The turning
radius of a vehicle depends upon the speed of the
vehicle and also the weight of the vehicle. As such the
theory putforth before the Court during the trial
through DW-1 was that the left side front tyre burst
and due to which the vehicle pulled towards the left
and then was uncontrollable thus resulting in the
accident. During the arguments on behalf of the
State, counter to this defence evidence, learned Public
Prosecutor stated that no where in the examination-in-
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chief DW-1 had stated that exactly at which point on
the road the left front tyre burst. Again in support of
this submission alleging that the false theory being
propounded by the defence, learned Public Prosecutor
further drew attention of this Court towards the
answer given by Ravindra Patil during his cross-
examination. Of course the admissibility or otherwise
of substantive evidence of Ravindra Patil which was
recorded before the Metropolitan Magistrate Court, is
yet to be scrutinized hereafter, but, for the sake of
argument the answer given by Ravindra Patil to the
suggestion can be analyzed. The substantive evidence
of Ravindra Patil which is appearing in the notes of
evidence during his cross-examination reads thus :
"It is true that front left side tyre of
the incident motor car was burst at
the place of the incident. It is true
that left side of the incident motor car
was pressed. It is true that there was
no condition of the incident motor car
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to open the left side door."
130. By pointing the first answer as to the tyre
burst at the place of the incident, it is tried to argue
that this answer is required to be taken as the burst is
due to the incident. If this is the meaning to be given
to the answer then there must be some supporting
material required to have been brought before the
Court during the investigation and in fact there was
an opportunity for the investigating agency to get this
material by way of sending the said tyre for the
forensic examination as to whether some outside
foreign pointed object got inserted in the tyre or the
tyre has burst because of the impact and the pressure
of some hard object like a cement platform. Without
this forensic material though the forensic team was
called to inspect the vehicle specially, it is difficult to
accept the submission on behalf of the State that the
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answer given by Ravindra Patil is to be construed as
the bursting of the tyre was due to the impact. If there
are two views possible, needless to mention that a
view which supports the accused is required to be
considered still considering the onus on the defence to
establish its case on preponderance of probabilities.
131.
In the considered view of this Court on this
aspect of bursting of tyre it is not conclusively
established by the State that the bursting was only
because of the impact of the vehicle either on the
cement platform in front of the bakery or due to any
other object before that. Moreover there is another
check for substantiating this conclusion is that except
the damage to the left front show of the car and
missing of the bumper from the front side and some
destruction of some electrical lights, the RTO officer
(PW-19) did not find any damage to the vehicle from
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beneath. In fact according to him the vehicle was in a
running condition and he had taken a test drive also.
As such, the arguments on behalf of the defence as to
the bursting of tyre cannot be thrown away only
because no accurate details are given by DW-1 in his
examination-in-chief as to at exactly which point on
the Hill road the tyre burst. In fact this mitigating
circumstance to the case of prosecution is to be viewed
apart from the other material which is earlier
discussed and also yet to be discussed in later part of
this judgment.
SECTION 33 OF EVIDENCE ACT :
132. Now the important aspect of the matter is
required to be dealt with and that is the acceptability
of the evidence of Ravindra Patil under Section 33 of
the Evidence Act. In fact this is the crucial aspect as
apart from this testimony of Ravindra Patil, the
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prosecution case rests only on the substantive
evidence of the injured eye witnesses concerning the
driving of the vehicle and eye witnesses from the Rain
Bar on the aspect of drunkenness. As such, the
substantive evidence of Ravindra Patil is of utmost
importance and in fact he is the first informant in the
matter as he lodged his complaint within two hours of
occurrence of the incident. The situation for taking
recourse to Section 33 of the Evidence Act occurred
because of the specific circumstances in the present
case. As detailed earlier in the beginning of this
judgment, the matter was before the Metropolitan
Magistrate Court and 17 prosecution witnesses were
examined. Ravindra Patil was in fact PW-1 as he is the
first informant, admittedly when the main charge was
for the offence under Section 304A of IPC.
Consequently there was no charge of culpable
homicide not amounting to murder, specifically a
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charge under Section 304 Part II of IPC i.e.
requirement of knowledge, though there is no
intention, that a person may die due to the act
committed by the person.
133. Firstly the provisions of Section 33 of the
Evidence Act can be seen which reads thus :
"33. Relevancy of certain evidence
for proving, in subsequent proceeding,
the truth of facts therein stated.--
Evidence given by a witness in a judicial
proceeding, or before any person
authorized by law to take it, is relevant for
the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of
the facts which it states, when the witness
is dead or cannot be found, or is incapable
of giving evidence, or is kept out of the way
by the adverse party, or if his presence
cannot be obtained without an amount of
delay or expense which, under the
circumstances of the case, the Court
considers unreasonable:
Provided--
that the proceeding was between
the same parties or their representatives in
interest;
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that the adverse party in the first
proceeding had the right and opportunity
to cross-examine;
that the questions in issue were
substantially the same in the first as in the
second proceeding.
Explanation.--A criminal trial or inquiry
shall be deemed to be a proceeding between
the prosecutor and the accused within the
meaning of this section."
134.
A broad proposition can be formulated from
the above definition firstly that the evidence of a
witness in earlier proceedings must be in a judicial
proceeding or before any person authorized by law to
take it. Secondly, said evidence can be considered as
relevant for proving in subsequent judicial proceeding
or in a later stage of the same proceeding when said
witness is dead or not found or incapable of giving
evidence or is kept out of way by the adverse party or
if his presence cannot be obtained without an amount
of delay or expense.
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135. In the present case the evidence of Ravindra
Patil was recorded during the trial before the
Metropolitan Magistrate Court. By pointing this out, it
is submitted on behalf of the State that this is the
evidence recorded in a judicial proceeding. Of course,
a different view is canvassed on behalf of the
appellant that though the proceeding was initially a
judicial proceeding, what was recorded during that
proceeding subsequently loses its character as
recording in any judicial proceeding when the said
proceeding was required to have been stopped at the
Metropolitan Magistrate Court level as there was a
committal order passed and further proceeding after
the committal order is in fact a denovo proceeding.
This aspect was also to be dealt accordingly. The
important requirement for accepting the evidence
from the earlier judicial proceeding in the later part of
the proceeding or in the subsequent judicial
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proceeding is that the question in issue must be
substantially the same in the first as in the second
proceeding. Much was argued by rival sides on this
proviso whether the issues involved in both the
matters, firstly before the Metropolitan Magistrate
Court and secondly before the Sessions Court were
substantially the same. Here the question is the
substantial similarity of the issues and not the material
required for establishment of the issues. The issue
before the Metropolitan Magistrate Court was
definitely whether there was an offence committed
under Section 304A of IPC whereas the issue before
the Sessions Court was commission of the offence
under Section 304 Part II of IPC. The provisions of
Section 304A and Section 304 Part II of IPC can be
reproduced with advantage :
"304A. Causing death by negligence.--
Whoever causes the death of any person by
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doing any rash or negligent act not
amounting to culpable homicide, shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both."
CLASSIFICATION OF OFFENCE
Punishment - Imprisonment for 2 years,
or fine, or both - Cognizable - Bailable -
Triable by Magistrate of the first class -
non-compoundable."
"304. Punishment for culpable
homicide not amounting to murder.--
Whoever commits culpable homicide not
amounting to murder shall be punished
with imprisonment for life, or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death,
or with imprisonment of either
description for a term, which may extend
to ten years, or with fine, or with both, if
the act is done with the knowledge that it
is likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death.
CLASSIFICATION OF OFFENCE
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Para I : ----
Para II : Punishment - Imprisonment for
10 years, or fine, or both - Cognizable -
Non-bailable - Triable by Court of Session
- Non-compoundable."
136. By plain reading of these Sections, as
reproduced above, Section 304A completely excludes
the culpable homicide whereas section 304 either Part
I or Part II postulate that it is a culpable homicide not
amounting to murder. In other words, Section 304
contemplates that though the act is not a murder but
it must be a culpable homicide whereas section 304A
says what is not culpable homicide and done in a
particular manner as mentioned in the section, is
punishable under Section 304A of IPC. This is the
difference between the two sections. This issue which
was required to have been decided by the trial Court
and which goes to the root of the matter that the
questions in issue were substantially the same in the
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first as in the second matter. The meaning of
'substantially the same' cannot be taken as fulfilled
when the basic ingredients of the offences are
different. In other words coming to this case, the
basic ingredient of the offence under Section 304A of
IPC was rash and negligent act causing death but this
act is not at all a culpable homicide so the import of
Section 304 is limited to the extent of rashness and
negligence and then causing the death. Something
more is necessary for the act to be termed as a
culpable homicide and culpable homicide is defined in
Section 299 of IPC. Moreover, the distinction between
these two sections lies in the penal effect, in the sense
for the offence under Section 304A of IPC the
maximum punishment is upto two years or with fine
or both. As such it is a lighter offence than compared
to section 304 IPC. Even apart from the punishment
the offence under Section 304A is bailable and triable
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by the Magistrate of First Class whereas the offence
under Section 304 Part II, as in this case, attracts the
maximum punishment for imprisonment of 10 years
or with fine or with both and it is a non-bailable
offence. The ingredients to satisfy the respective
offences are wholly different. The nature of these
offences are in fact different and it cannot be said that
the questions in issue are substantially the same when
the issues were tried before the Metropolitan
Magistrate Court and the issues were tried before the
Sessions Court more particularly when one is not a
culpable homicide at all while the other is culpable
homicide, although not amounting to murder. As
such, if this proviso to section 33 of the Evidence Act is
not satisfied then the result is required to be accepted
that no recourse to Section 33 of the Evidence Act can
be taken for reading the evidence of Ravindra Patil in
the Sessions Court trial.
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137. More so the above aspect can be viewed in
different perspective. It so happened that after
committal the question arose before the Sessions
Court for recording of the evidence and whether the
evidence recorded before the M.M. Court could be
taken as an evidence and the sessions case can
proceed on this. Earlier in the preliminary paragraphs
of this judgment this aspect has been dealt in detail as
to in what manner the Sessions Court directed the
denovo trial thus not accepting the evidence of all 17
prosecution witnesses. If by operation of law and by
committal proceedings the earlier evidence recorded
before the Metropolitan Magistrate Court cannot be
considered as a valid evidence to establish the case
against the accused, then it is difficult to accept that
how part of that evidence can be accepted under
different provision if the mandate of Section 33 of the
Evidence Act is not fully complied. Moreover it is
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significant to note that said Ravindra Patil died on
3.10.2007 and prior to that he was examined before
the Metropolitan Magistrate Court. The last witness
before the Metropolitan Magistrate Court was
examined on or about 25.2.2011 i.e. witness No.17.
In fact much prior to the year 2011, Ravindra Patil had
already expired. However admittedly this position
was not brought to the notice of the Sessions Court
when the sessions trial commenced and almost 24
prosecution witnesses were examined. Still it is
pertinent to note in the present sessions case that the
usual procedure of recording of the evidence has not
been followed. Of course, there cannot be any
straight jacket formula as to examination of witnesses
in a particular manner but when the witness is a first
informant and when the entire case of prosecution
rests on his evidence then it is the first thing for the
prosecution to bring him before the Court if available
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and then to proceed further with the matter, more so
when it is sessions trial. In fact Ravindra Patil was
then a Constable working in the Bombay Police Force
and at some point of time he was dismissed from
service and was not available before Metropolitan
Magistrate Court for giving evidence after his earlier
evidence was recorded. But still it is not explained by
the prosecution as to on which date did it learn
regarding the death of Ravindra Patil. Subsequently
his brother PW-25 Kailas was examined by the
prosecution on 7.3.2015 and through him the death
certificate (Exhibit-140) of Ravindra Patil was
produced on record. It is also pertinent to note that
even till recording of 24 witnesses before the Sessions
Court, not for a single time did the Sessions Court
enquire as to the whereabouts of the first informant
and why so far he was not examined. If the death of
Ravindra Patil was not known to the police and also
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to the Court then the first endeavour to be made by
the prosecution was to examine Ravindra Patil or to
search for him and then report to the Court his
unavailability due to his death. Whatever it might be,
but the fact remains that said Ravindra Patil died on
3.10.2007 when the matter was still with the
Metropolitan Magistrate Court. The application for
taking his evidence on record under Section 33 of the
Evidence Act was filed by the prosecution (below
Exhibit-131). It may not be of specific importance but
the timing of said application (Exhibit-131), by the
prosecution for taking evidence of Ravindra Patil on
record in the Sessions Court, is crucial i.e after
recording of evidence of 24 witnesses although
Ravindra Patil was named as the first witness in the
witness list. The appellant/accused filed his reply vide
Exhibit-136 and the order was passed by the Court
allowing the reading of the evidence of Ravindra Patil
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in the sessions case but reserving its admissibility till
the final decision of the sessions case.
138. The learned Senior Counsel for the appellant
strongly takes exception to this procedure adopted by
the Sessions Court contending that had the decision
of admissibility decided at the very threshold of the
sessions case and although not at the starting of the
trial, but even at the time of passing the orders on
Exhibit-131, then also there would have been an
opportunity for the appellant/accused to take an
appropriate stand and either to re-call earlier
witnesses and to take appropriate steps for putting
forth the defence. However, this opportunity was lost
because of the adjudication by the Sessions Court at
the time of final judgment, accepting the admissibility
of the evidence and relying on the same that also for
the purpose of decision on the main charge of Section
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304 Part II of IPC when admittedly the evidence
earlier recorded was at the time of the main charge
under Section 304A of IPC before the Magistrate
Court.
139. In the considered view of this Court the
mandate of Section 33 of Evidence Act is not fulfilled
and evidence of Ravindra Patil cannot be taken as an
evidence in the Sessions trial. In any event though
this Court has come to the conclusion as to the
erroneous allowing of the application under Section
33 of the Evidence Act by the trial Court, still if the
evidence of Ravindra Patil is to be considered, still
alternatively the effect of the evidence of Ravindra
Patil can be discussed in order to see whether the
prosecution has established its case beyond reasonable
doubt.
140. Following authority is placed before the Court
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on behalf of the appellant on the aspect that retrial
wipes earlier evidence, as under :
[I] AIR 1963 SC 1531
[Ukha Kolhe Vs. State of Maharashtra]
141. Numerous authorities are also cited on the
aspect as to the applicability of the evidence under
Section 33 of the Evidence Act, as under :
[I] (1962) 3 SCR 328
[Payare Lal vs. State of Punjab]: This
authority is on the aspect that one who hear
has to decide. Paragraph-6 of this authority
reads thus :
"6. There is no controversy that the
general principle of law is that a
Judge or Magistrate can decide a case
only on evidence taken by him.
Section 350 of the Code is a statutory
departure from this principle. That
section so far as material was at the
date S. Jagjit Singh decided the case
in these terms :
"350. Whenever any
Magistrate, after having heard
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and recorded the whole or any
part of the evidence in an
inquiry or a trial, ceases to
exercise jurisdiction therein,
and is succeeded by another
Magistrate who has and who
exercises such jurisdictions, the
Magistrate so succeeding may
act on the evidence so recorded
by his predecessor, or partly
recorded by his predecessor and
partly recorded by himself or he
may resummon the witnesses
and recommence the inquiry or
trial."
It is only if this provision was
available to S. Jagjit Singh that the
course taken by him can be
supported."
[II] (1992) 1 SCC 279
[R.S. Nayak vs. A.R. Antulay & others]: This
authority is on the effect on the case on transfer.
In this case of R.S. Nayak v. A.R. Antulay, though
the matter was earlier heard before the Judge of
the Bombay High Court, that also on the
directions of the Apex Court, subsequently the
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matter was transferred from the High Court to the
Special Court designated to try the cases under
the Prevention of Corruption Act. Under those
circumstances the earlier recorded evidence of
almost 57 witnesses before the High Court was
not taken into consideration and denovo trial was
ordered.
[III] 2008(5) Bom. C.R. 367
[Padam Chandra Singhi & Ors. Vs. Praful B.
Desai (Dr.) & Ors.] : This authority is on the
aspect as to use of Section 33 of the Evidence
Act. It is held that recourse to this section to be
taken only in exceptional circumstances and
when the condition in the said section by way
of provisos are fully complied. It is observed in
the said authority in paragraphs-15 and 16 as
under :
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"15. The depositions are in general
admissible only after proof that the
persons who made them cannot be
produced before the Court to give
evidence. It is only in cases where
the production of the primary
evidence is beyond the party's
power that secondary evidence of
oral testimony is admissible.
16. It is an elementary right of a
litigant in civil suit that a witness,
who is to testify against him,
should give his evidence before the
Court trying the case, the adverse
party gets an opportunity to cross-
examine at the same time so that
the Court has the opportunity of
seeing the witness and observing
his demeanour and can, thus, form
a better opinion as to his reliability
rather than reading a statement or
deposition given by that witness in
a previous judicial proceeding or in
an early stage of the same judicial
proceeding."
[IV] 1945 [Vol.XLVIII] 284 PRIVY COUNCIL
[Chainchal Sikngh vs. Emperor]: The
observations of the Privy Council in the above
authority, while dealing with Section 33 of the
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Evidence Act, reads thus :
"Where it is desired to have recourse
to this section on the ground that a
witness is incapable of giving
evidence, that fact must be proved,
and proved strictly. It is an
elementary right of an accused
person or a litigant in a civil suit
that a witness who is to testify
against him should give his evidence
before the Court trying the case
which then has the opportunity of
seeing the witness and observing his
demeanour and can thus form a
better opinion as to his reliability
than is possible from reading a
statement or deposition. It is
necessary that provision should be
made for exceptional cases where it
is impossible for the witness to be
before the Court, and it is only by a
statutory provision that this can be
achieved. But the Court must be
careful to see that the conditions on
which the statute permits previous
evidence given by the witness to be
read are strictly proved."
[V] (1988) 2 SCC 602
[A.R. Antulay Vs. R.S. Nayak & Anr.]: This is
another authority and it relates to earlier
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authority (R.S. Nayak v. A.R. Antulay & Ors.,
(1992) 1 SCC 279). Again this authority speaks
that earlier evidence not to be accepted when
the Forum is changed.
[VI] (2014) 10 SCC 494
[J.V. Baharuni & Anr. Vs. State of Gujarat &
Anr.]: This authority postulates that whenever
there is an order of denovo trial, earlier
evidence is erased. Of course the ratio of this
authority is applicable when specifically there is
a case of denovo trial. But the principle behind
the ratio remains the same that when the
Forum is changed the earlier evidence cannot
be taken shelter of unless it is expressly
provided by the law.
[VII] 2011(3) UC 1941
[Nitinbhai Saevatilal Shah & Anr. Vs.
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Manubhai Manjibhai Panchal & Anr.] : In
this case the reference is made to the decision
in Payare Lal vs. State of Punjab, AIR 1962 SC
690. The view endorsed in the Payare Lal's
case is mentioned in paragraph-16 of this case
which reads thus :
"16. The cardinal principal of
law in criminal trial is that it
is a right of an accused that his
case should be decided by a
Judge who has heard the
whole of it. ....."
[VIII] AIR 1964 SC 1673
[The State of Uttar Pradesh vs. Sabir Ali &
Anr.] : The ratio in this authority is that the
trial conducted by a Court having no
jurisdiction is void.
[IX] AIR 1928 CALCUTTA 183
[Budhu Tatua Vs. Emperor] : This authority is
also on the ratio that where part of the
evidence in a case is recorded by a Magistrate
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who has no jurisdiction, and part of the
evidence by a Magistrate who has jurisdiction,
conviction is illegal and retrial is necessary.
[X] AIR 1926 Lah 582
[Buta Singh vs. Emperor]: The ratio of this
authority is that after committal of a case,
earlier evidence is not to be looked into by the
Court to which the case is committed.
[XI] (1976) 1 SCC 889
[State of Gujarat vs. Haidarali Kalubhai] :
This authority distinguishes Section 304A and
Section 304 Part II of IPC. The observations in
paragraph-10 of this authority reads thus :
"10. Section 304-A by its own
definition totally excludes the
ingredients of Section 299 or
Section 300 I.P.C. Doing an act
with the intent to kill a person
or knowledge that doing of an
act was likely to cause a
person's death are ingredients
of the offence of culpable
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homicide. When intent or
knowledge as described above
is the direct motivating force
of the act complained of,
Section 304-A has to make
room for the graver and more
serious charge of culpable
homicide. ...."
[XII] 1994 Supp (2) SCC 67
[Balwant Singh Vs. State of Punjab & Anr.]
[XIII] (2008) 14 SCC 479
[Mahadev Prasad Kaushik vs. State of Uttar
Pradesh & Anr.] : Both these authorities
distinguish Section 304A and 304 Part II of IPC.
The ratio of these authorities is Section 304A of
IPC applies to the offences outside the range of
Sections 299 and 300 of IPC.
142. One authority is also cited on behalf of the
State as to under which circumstances recourse to
Section 33 of the Evidence Act can be taken, as
under :
[I] (1881) ILR 7 Cal 42
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[Rochia Mohata vs. Unknown]
From the said authority, following
observations were brought to the notice of
this Court by learned Public Prosecutor :
"The question whether the proviso to
Section 33 is applicable, that is,
whether the questions at issue are
substantially the same, depends upon
whether the same evidence is
applicable, although different
consequences may follow from the
same act. Now, here the act was the
stroke of a sword which, though it
did not immediately cause the death
of the deceased person, yet conducted
to bring about that result
subsequently. In consequence of the
person having died, the gravity of the
offence became presumptively
increased; but the evidence to prove
the act with which the accused was
charged remained precisely the same.
We therefore think that this evidence
was properly admitted under Section
33."
EFFECT OF RAVINDRA PATIL'S EVIDENCE :
143. Ravindra Patil's evidence was recorded before
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the Metropolitan Magistrate Court specifically on
5.1.2006, 2.2.2006 and 6.6.2006. Thereafter the
matter was adjourned to 7.2.2006 when the witness
was under cross-examination. Subsequently it so
happened that he did not remain present before the
Court and apparently NBW was directed to be issued
against him and he was taken in custody and then his
evidence was lastly recorded on 16.3.2006 and he was
re-examined by the learned Prosecutor. On 28.9.2002
according to this witness he was attached to
Protection Branch and was deputed as bodyguard for
the accused. He joined his duty at about 8:00 p.m. on
27.9.2002. On that night at 9:30 p.m. the accused
and Kamal Khan came outside their room at their
residence and told that they were to go for a party at
Rain Hotel, Juhu. Ravindra Patil further stated that
Toyota Land Cruiser car bearing No. MH 01 DA 32 was
driven by the appellant/accused and they three went
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to Rain Bar Hotel. He was asked to wait outside and
the accused and Kamal Khan went inside. That time
bodyguard of Sohail Khan met Ravindra Patil outside
the hotel and the said bodyguard told that Sohail
Khan had also come there. According to Ravindra
Patil at 1:30 a.m. the accused and Kamal Khan came
out of the Rain Bar. Then the accused sat on the
driver's seat of Toyota Land Cruiser. Ravindra Patil sat
by his side in the front seat and Kamal Khan sat at the
rear seat. Then they went to JW Marriott hotel. Also
Kamal Khan went inside and Ravindra Patil waited
outside. They came out of the hotel at 2:15 a.m. i.e.
early hours of 28.9.2002. The appellant/accused sat
at the steering wheel of the Land Cruiser and again
Ravindra Patil took seat by the side of the driver's seat.
Ravindra Patil then asked the accused whether he
would drive the car, the accused neglected his
question and then they drove the car and came on the
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St. Andrews road. According to the further
substantive evidence of Ravindra Patil, the accused
was drunk and was driving his motor car at a speed of
90 - 100 km per hour. According to this witness
before coming to the junction of Hill Road he told the
accused to lower the speed of the motor car as the
right turn was ahead. Again according to this witness,
the accused neglected him. The accused could not
control the motor car while taking the right turn and
went on the foot path. The people were sleeping on
the foot path. The motor car ran over the persons
sleeping on the foot path and climbed the three stairs
and dashed into the shutter of the shop, namely,
American Express. The motor car broke the shutter
and went inside about 3 and ½ feet. There were
shouts of the people and as such people gathered
there. Further this witness stated that due to the
incident, the people who had gathered there became
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furious and they started manhandling the inmates of
the car. Said Ravindra Patil disclosed his identity as a
police officer and thus pacified the mob. Ravindra
Patil further stated that the accused and Kamal Khan
ran away. He went to the motor car and looked below
it. He saw one person seriously injured having
multiple injuries below the motor car. He also saw
four injured persons below the car who were trying to
come out. Then he phoned the control room and
within five minutes, Bandra police reached there. The
police rescued the injured persons and the body of the
deceased person was sent to Bhabha hospital. Then
Ravindra Patil showed the place of incident to the
police and then went to Bandra police station to lodge
the complaint. According to this witness the incident
had taken place due to high speed and the accused
was drunk and was driving and could not control the
vehicle while taking the turn. The FIR was marked as
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Exhibit-P1 before the Metropolitan Magistrate Court
and it was so taken on record in the Sessions Case
also. It is a factual position that various improvements
were brought on record and those improvements were
on the vital aspect firstly as to the drunkenness,
secondly as to Ravindra Patil cautioning the
appellant/accused to lower the speed and initially
Ravindra Patil asking the accused whether he will
drive the car. These are the improvements brought on
record during the cross-examination and the
important improvement in fact going to the basis of
the case of the prosecution as to drunken driving, is
that the accused was drunk. In fact it is an admitted
position that even in the first information report there
is no whisper as to the appellant/accused being drunk
during the incident. The entire FIR is regarding
driving by the appellant and the speed of the car as to
90 - 100 km. per hour.
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144. By pointing out the above mainly the
omission on the fact of alcohol consumption by the
appellant it is submitted by learned Senior Counsel for
the appellant that something had happened in
between lodging of the FIR on 28.9.2002 and
1.10.2002. The date 1.10.2002 is significant as on
that date the supplementary statement of Ravindra
Patil was recorded. There was nothing brought on
record as to what was the occasion for supplementary
statement when the FIR was lodged and the matter
was proceeded. In fact what was inserted by way of
supplementary statement is the element of
consumption of alcohol. Even during the arguments it
is stated that there are other improvements also
though might not be of much importance but to the
effect that Ravindra Patil called the control room and
he showed the spot. Also during the arguments it is
pointed out that on the aspect as to the speed of the
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car. The following answers given by Ravindra Patil
during his cross-examination can be reproduced with
advantage :
"I cannot say the name of the road on
which the incident car driven from
Hotel J.W. Marriot to the place of the
incident. I am also unable to tell how
many turns towards the left side or
right side were taken by the incident
car during the journey from hotel
J.W. Marriot to the place of the
incident. The distance between J.W.
Marriot Hotel to the place of the
incident is about 7 k.m. to 8 k.m.
The incident motor car did not stop
from hotel Marriot to the place of
incident, once started. It is true that
vehicle travelling by the speed of 90 to
100 per kilometer per hour will
require 8 to 10 minutes to pass the
distance of 7 to 8 kilometers. We
started from hotel Mariot at about
2:15 a.m. on the incident night. It is
true that the incident is shown to
have taken place at 2:45 a.m. on the
incident night."
145. By pointing out the above substantive
evidence of Ravindra Patil it is submitted on behalf of
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the appellant that if the speed of the car as depicted
by the witness is taken as 90 to 100 kms per hour then
the distance of maximum 8 kms can be covered by 7
to 8 minutes. If still giving some allowance as to the
exact speed whether correctly mentioned or not and
allowance to the exact distance between J.W Marriot
and the place of the incident, still it is difficult to
perceive that a car will take half an hour to reach the
spot of incident. If the timings are accepted and in
fact are required to be accepted because of the
documentary evidence then the car had taken 30
minutes non stop from JW Marriott hotel to the place
of the incident and that is the distance of about 7 to 8
kms., so definitely it can be ascertained that the speed
of the car was not as told by the witness as 90 to 100
kms per hour. At the cost of repetition it must be
mentioned that even this aspect has been dealt with
earlier when the damage to the car was ascertained
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vis-a-vis the speed of the car and mentioning of PW-7
that there were speed beakers on St. Andrews road.
146. Apart from the above there is another strange
factual position which is required to be mentioned
inasmuch as after giving evidence before the
Metropolitan Magistrate Court on 5.1.2006 and when
the witness answered that his further statement was
recorded by the police on 1.10.2002, a question was
put by the learned Prosecutor to the witness to the
effect :
"What did you say before the police?"
147. The question was objected to by the learned
defence counsel, being not admissible. However
apparently said question was allowed by the trial
Court by giving a reason that the question is not a
leading one. It must be mentioned that whatever a
witness states before the police is hit by section 161 of
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Cr.P.C. and only that statement can be considered as
provided under Section 162 of Cr.P.C.. In fact with
that understanding of the basic criminal law the
defence counsel has raised the objection but
unfortunately that has been overruled by the Sessions
Court as the Sessions Court lost sight of this situation
as to the statement before the police and the
significance of it. So it could not have gone on record
what a witness stated to the police but the learned
Judge took it as not a leading question and then
allowed the answer. Still the strange situation does
not stop there. After allowance by the sessions court
the witness answered that :
"I have stated before the police what I
remembered after the lodging the
complaint with Bandra Police."
148. Apparently it so happened that with this
answer also the learned prosecutor was not satisfied
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and asked further question which was again objected
by the Counsel for the defence and subject to objection
the question was allowed. The question and answer is
reproduced hereunder :
"Ques. What do you remember after
filing your complaint ?
Ans. Mr. Ashok Singh is in
employment as a driver with the
accused Salman Khan. He works as
driver with the accused Salman Khan.
He works as driver in day duty. The
accused drives his motor car in the
night."
149. In fact for the first time before the
Metropolitan Magistrate Court apparently the name of
said Ashok Singh has appeared when Ravindra Patil
gave his answer to the question as to what he
remembered after filing of the complaint. Again
apparently that time there was no answer coming
from the witness possibly regarding drunkenness
though it was the case of the prosecution. Even
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thereafter, the episode of question and answer
continued and the learned prosecutor went on asking
questions as to what the witness said next but the
witness also gave answers and talked of something
else but not about the 'drunkenness'. The last answer
of the witness prior to the prosecutor asking
permission to put the leading question to this witness,
was to the question 'whether you stated anything
more' and then the answer was 'nothing more than
what is stated above'. At this juncture, permission was
asked to put the leading question to this witness by
the prosecution. The Metropolitan Magistrate Court
then placed a note on record to the following effect :
"Heard Spl. P.P. According to him, such
question can be put when the witness has
not supported on material point and
before declaring him hostile after taking
his answer. (Considering both the sides, I
am of the opinion that such leading
question can be asked with the permission
of the Court. Hence, objection is over
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ruled.)"
150. Even still the leading questions were asked.
The last answer of this witness was that "My
supplementary statement was recorded as per my say."
151. By pointing out the above conduct of the
witness Ravindra Patil it is strongly submitted on
behalf of the appellant that it is in fact an unnatural
conduct on the part of Ravindra Patil to say so,
mentioning the things which he did not mention while
giving his First Information Report or while giving his
supplementary statement. This witness has improved
on the material aspect firstly as to the 'drunkenness' of
the accused and secondly as to this witness cautioning
the accused to drive slowly. It is further argued that it
is more strange that from this witness the name of
Ashok Singh came on record and that also with the
explanation that he was the driver in the employment
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with the accused and works as a driver in the day
duty. At this juncture it must be said that the
substantive evidence of PW-27 officer Shengal does
indicate the presence of Ashok Singh at the police
station apparently immediately after the incident and
Ashok Singh was present till the arrival of the
appellant/accused at the police station. But still it is a
factual position that the investigating officer has not
recorded the statement of Ashok Singh though his
presence at the police station was accepted at the
early hours of 28.9.2002.
152. Again at this juncture it is to be mentioned
that there is interpolation in the contents of the First
Information Report regarding the route taken by the
car while coming to the Hill Road. The earlier written
words as to "Manuel Gonsalves" are deleted and the
words "St. Andrews" have been inserted. This is done
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at two places where this reference is coming in the
FIR. At the cost of repetition, it must be mentioned
that there is no explanation from the investigating
agency or by the Investigating Officer or the officer
who recorded the FIR as to how the change of name in
the route has appeared in the First Information
Report. This circumstance is to be viewed in
juxtaposition with the defence of the accused that the
vehicle had taken the route from Manuel Gonsalves
road and then came to Hill Road. Even this is the
substantive evidence of DW-1 as detailed earlier in
paragraph-3 of his evidence before the Sessions
Court :
"3. I then took the vehicle on Linking
Road, then on Gonsalves Road and
took the right turn for going to Hill
Road. Our vehicle came on Hill Road.
Our vehicle proceeded at some
distance on hill Road, then the front
left tyre of our vehicle burst, thereby
our vehicle pulled towards the left
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side. I tried to turn my steering wheel
but it had become hard to turn. I also
tried to apply the brakes, but by then
the vehicle had climbed the stairs of
the Laundry. Our vehicle then
stopped."
153. Considering all the above aspects as to
changing the route of the vehicle from Manuel
Gonsalves road to St. Andrews road while coming to
the Hill Road, non mentioning about drunkenness of
the appellant in the First Information Report and the
story of drunkenness coming only on 1.10.2002 and in
fact on the same day receipt of the report from CA and
mainly considering that the cross-examination of
Ravindra Patil was only before the Metropolitan
Magistrates Court and when the charge was under
Section 304A of IPC, it is to be held that the evidence
of Ravindra Patil is of very weak type. Though subject
to the argument as to applicability or otherwise of
Section 33 of the Evidence Act, his evidence is to be
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accepted on the factum of driving of the vehicle then
considering the type of this witness, an independent
corroboration is required to support what he stated
before the Metropolitan Magistrate Court.
154. Needless to mention that in criminal trials
when a particular fact is established before the Court
through ocular evidence there are three types of
witnesses. As endorsed by the Apex Court in number
of decisions, said three types are (1) wholly reliable
witness, (2) partially reliable witness, and (3) wholly
unreliable witness. It is a cardinal principle of
criminal jurisprudence that so far as the wholly
reliable witness is concerned, if the Court accepts his
version and accepts the truthfulness depending on the
circumstances then the conviction on the sole
testimony can be possible. In other words the wholly
reliable witness can be the basis for conviction of an
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accused but when it comes to partially reliable witness
then independent corroboration is needed and if the
witness is wholly unreliable then there is no question
of asking for corroboration to the version of said
witness. In the opinion of this Court Ravindra Patil is
a witness who cannot be considered as a wholly
reliable witness for various anomalies and
improvements brought on record and the conduct of
this witness shown before the Court during the trial
for the offence under Section 304A of IPC. Still if he is
considered as a partially reliable witness then there is
definitely a need for independent corroboration and in
the considered view of this Court on the actual driving
of the vehicle by the appellant/accused apart from this
witness there is no other witness saying that the
appellant/accused was in fact driving the vehicle. This
is more so as this Court has earlier analyzed the
substantive evidence of PW-2, PW-3, PW-4, PW-11 and
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also the parking assistant at JW Marriott PW-12
Kalpesh Verma. Again this circumstance is to be
viewed in juxtaposition of the evidence of other
witnesses i.e. PW-7 and PW-8 as to mentioning of four
persons in the car.
DEFENCE WITNESS ASHOK SINGH :
155. Now coming to the evidence of DW-1 Ashok
Singh much is argued and it is submitted on behalf of
the State that the testimony of this witness is required
to be discarded in toto as he is a got up witness and in
fact his conduct is such that he is not giving the truth
but has been brought before the Court after 13 years
of the incident and that also before the Sessions Court
for the first time. Certain basic arguments advanced
on behalf of the State to discredit this witness can be
narrated as under :
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156. It is argued that this witness has not
mentioned exactly at which spot the tyre of the vehicle
burst when the vehicle was on the Hill Road. He also
did not specifically mention as to at what time he
reached JW Marriott hotel in order to replace the
earlier driver Altaf. Even he is a person who did not
immediately disclose that he was driving the vehicle
and more so when the case was lodged against the
appellant/accused i.e. his master and that also for the
serious offence of killing one person and injuring four
persons. It is further stated that all this conduct of
DW-1 renders himself as a wholly un-reliable witness
and got up witness and his evidence does not inspire
confidence.
157. Counter to above arguments, various aspects
were placed before the Court and learned Senior
Counsel argued at length mentioning under what
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circumstances DW-1 came before the Court only after
13 years. It is argued on behalf of the appellant that
the natural tendency of any human being is not to
own any criminal act. It is rather the attempt of
everybody to avoid any allegations of criminal act and
not to get oneself involved in it of his own. By
pointing out this it is submitted on behalf of the
appellant that in fact though it is an exceptional case
that a defence witness is coming before the Court and
accepting the blame on himself but the evidence of
this witness is to be treated equally as the treatment
being given to the prosecution witnesses. In
elaborating this argument it is submitted on behalf of
the appellant that always the defence witness may not
be looked with same premeditated mind and his
evidence is to be analyzed as that of other witnesses.
Moreover further argument that as per the cardinal
principle of criminal law the defence is required to be
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established by placing certain facts which are
acceptable on preponderance of probabilities. In
support of these submissions following authorities are
cited before the Court :
[I] (2002) 2 SCC 426
[State of Haryana vs. Ram Singh]
[II] (1976) 4 SCC 233
[Sri Rabindra Kumar Dey vs. State of Orissa]
[III] 1971(3) SCC 235
[Des Raj Vs. The State of Punjab]
158. Further it is argued on the conduct of this
DW-1 as to not approaching any Court for saying that
he was driving the vehicle and not the accused. The
substantive evidence of this witness goes to show that
he was a driver in the employment of father of the
appellant and since 1990 he was working with Salim
Khan, the father of the accused. There were no fix
duty hours for him but whenever his services were
required he was being called. In the year 2002, there
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were two other drivers working along with him by
name Altaf and Dutta. On the night of 27.9.2002 he
was sleeping in his house. He received a phone call
from Altaf at about 1:30 a.m. to 1:45 a.m. on
28.9.2002. Altaf told him to come to JW Marriott
hotel as the accused had come there. Altaf also told
him that he was not feeling well and he left the keys
with the valet parking. DW-1 then got up and
changed his clothes and went to JW Marriott hotel.
He went to the porch and saw the Land Cruiser
vehicle. He saw the bodyguard i.e. Ravindra Patil who
was standing outside the vehicle. The engine of the
Land Cruiser was on. He opened the door of the
vehicle and he saw the accused sitting on the driver's
seat and the AC was on. He then sat on the driver's
seat and the accused went to the seat besides that of
the driver. Ravindra Patil sat behind the driver's seat
in the back portion. According to this DW-1 the fourth
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person was Kamal Khan and he was sitting behind
Salman Khan at the back portion. Then on the actual
happening of the event, the evidence of this witness in
para-3 has already been discussed as to the route
taken for coming to Hill Road. Thereafter after the
incident also the substantive evidence of this witness is
of much importance to be seen. He further stated that
due to the incident he was in shock. He opened the
door by his side and got down. According to him the
accused tried to open the door from his side but the
left door was jammed. This witness saw the people
beneath the car who were shouting. People started
assembling near the car. The accused got down from
the car from the driver's seat. This witness and the
accused tried to lift the car to rescue the people found
beneath the car but the car did not move. According
to this witness the accused told him to inform the
police. In the meantime people that had gathered
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there gave "pull and push" to said DW-1 and also to
Ravindra Patil who by then had got down from the car.
This witness has dialed 100 number and informed the
police about the incident. He then proceeded to
Bandra police station. There he was told that the
police had already left for the spot. He narrated the
incident to the police. However, he was asked to sit
till 10:30 a.m. when the accused came to the police
station. He talked to the accused that he had already
told the police about the incident but the police did
not entertain him. According to this witness he told
the accused that he was suspecting some foul play and
police then took the accused by arresting him.
159. In fact, this is the sum and substance of the
examination-in-chief of this witness in which he
indicates that when he arrived at the JW Marriott
hotel he saw the accused sitting on the driver seat and
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the door of the car was closed and the air conditioner
was on. In fact this position is in consonance with
what is told by the parking assistant at JW Marriott
hotel, PW-12 Kalpesh Verma. Even in the evidence of
this witness he has mentioned regarding the route
taken via Gonsalves road and there is a cross reference
in order to find out probability of this by way of
alteration in the first information report and which is
accepted by the investigating officer and apparently
there is no explanation as to the change of the name
from Manuel Gonsalves road to St. Andrews road in
the FIR. Though this witness was cross-examined by
the learned prosecutor on various aspects including his
conduct, from the date of the incident till he came to
Sessions Court for giving evidence, there is no specific
cross-examination that this witness did not take the
route via Manuel Gonsalves road.
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160. Apart from the above on various objections
raised on behalf of the State as to belated examination
of this witness it is submitted on behalf of the
appellant that in fact the stage of recording of defence
witness comes only after the entire evidence of the
prosecution is over and the statements of the accused
are recorded under Section 313 of Cr.P.C. Only at that
stage as per the criminal procedure of trial of sessions
case and for that matter all the criminal cases that the
accused is asked if he wants to adduce any material in
his defence. In the present matter it is seen that when
the matter was before the Metropolitan Magistrate
Court only 17 witnesses were examined and still two
investigating officers were remained to be examined
and at that stage on the application of the prosecution
the issue was taken as to applicability of Section 304
Part II of IPC and then the matter was transferred to
the Court of Sessions by committal. As such, before
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the Metropolitan Magistrate Court there was no scope
for the defence witness to be examined as that stage
had not then arisen. So far as recording of evidence of
defence witness in the Sessions case again the stage
was after recording of the statement of the accused
under Section 313 of Cr.P.C. and prior to that there
could not be any possibility of asking the defence
witness to be examined. Apparently a wrong
impression has been created and that too expressed by
the learned Prosecutor before the Sessions Court that
the defence witness is coming after 13 years and
apparently this aspect has been highlighted by various
agencies and the media coming to the conclusion that
this is a belated defence. In fact apparently the trial
Court i.e. Sessions Court also was carried away by this
impression of belated recording of the evidence. The
criminal procedure is otherwise and it is required to be
honored and followed. As such argument leveled by
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the State that the witness is coming at the fag end
cannot be accepted as an argument of substance, more
so when the defence is not at all to establish his case
and if at all to putforth any evidence i.e. to be only to
the extent of acceptance under preponderance of
probabilities.
161.
Lastly on this point it is argued on behalf of
the State that if not before the Court for giving the
evidence but at least a person could have approached
some other institutions. By this argument learned
Prosecutor presupposes that this defence witness
should have gone to the Media. In each and every
circumstance and situation everybody is not expected
to rush to the media though in the recent years the
media is considered as a fourth pillar of the
Constitution. Much responsibility is on the media and
when a person approaches the media then apparently
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an impression is created in the mind of general public
that whatever he is telling is having some ring of truth
and the matter is required to be taken to task by the
appropriate agencies. Without commenting much on
this, suffice it to say that not going to any external
authorities than the Court of law, cannot be
considered as a deficiency when the witness is coming
before the Court at an appropriate stage to mention
what had happened. In that event his evidence is to be
appreciated with rather care with the principle that his
evidence is to be accepted on the touchstone of
preponderance of probabilities. Even as per PI
Shengal (PW-27), DW-1 was present at the police
station immediately after the incident and remained
there thereafter and was interrogated but his
statement was not recorded.
162. Here it is not a question of believing or
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disbelieving a defence given, but here the question is
whether the prosecution has established its case as to
driving by the appellant/accused that also drunken
driving. As such, with the above observations it must
be said that the evidence of defence witness is to be
viewed with such caution and to see whether on those
probabilities putforth by the defence witness whether
the prosecution has established its case beyond
reasonable doubt.
NON-EXAMINATION OF KAMAL KHAN :
163. With these observations now the another
concept is required to be taken as to whether on non-
examination of Kamal Khan an adverse inference can
be drawn. Prior to coming to this aspect as to non-
examination of Kamal Khan and whether adverse
inference can be drawn, certain basic factual position
is required to be narrated. According to the case of
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prosecution there were only three persons in the car
since night of 27.9.2002 till early hours of 28.9.2002
and they were the appellant/accused, Ravindra Patil
and Kamal Khan. As against this, the probable
defence of the accused is that there was fourth person
and he was driver. Now during the trial before the
Sessions Court the position was very clear that
Ravindra Patil was no more and the appellant/accused
being an accused could not have given evidence to
show as to who was driving. The only option
remained was that of Kamal Khan. According to the
defence there was fourth person and the appropriate
steps were taken for examining that fourth person but
so far as the prosecution is concerned when Ravindra
Patil was not available for cross-examination and
when his evidence was accepted under Section 33 of
the Evidence Act before the Sessions Court it was
incumbent upon the prosecution to put forth before
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the Court the factual aspects by way of direct evidence
and only the evidence of Kamal Khan was the other
direct evidence then available.
164. In view of the above factual position as to
according to the case of the prosecution out of three
persons travelling in the car only the person Kamal
Khan was not examined and the evidence of Ravindra
Patil was taken from the M.M. Court from the earlier
proceeding. As such, during the arguments of this
Appeal at the fag end an application was preferred on
behalf of the appellant for examining said Kamal Khan
as a Court witness under provisions of Section 391 of
Cr.P.C. Said application was preferred on 16.11.2015
at the conclusion of defence arguments. It remained
pending for few dates as by that time the arguments
on behalf of the State were started and in progress.
Detailed reply was filed by the State opposing the
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application by submitting the main contention that it
is not necessary to call Kamal Khan for the evidence as
a Court witness. It was also specifically mentioned in
the reply that various steps were taken when the
matter was pending before the M.M. Court but he
could not be examined. In the reply, it is mentioned in
paragraph 9 therein that even a look out notice was
issued against Kamal Khan. No explanation was given
by the prosecution as to for what reason said look out
notice was taken out. It was further contended that
even before the Sessions Court process was issued
against Kamal Khan. However, the summons could not
be served at the address known to the police from the
statement of Kamal Khan which was recorded in the
year 2002. The report dated 24.6.2014, according to
the case of the prosecution, throws light that Kamal
Khan was not found at the address and the said place
is occupied by some-one else. Copy of said report was
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filed along with reply of the State. By this it was tried
to establish by the State that they took the steps for
serving the process against Kamal Khan but for want
of his whereabouts he could not be examined before
the Sessions Court. It was the submission that in the
absence of evidence of Kamal Khan also, the case of
the prosecution can be taken as established as has
been done by the Sessions Court. The application was
also objected by the State on the ground that now at
this belated stage, the appellant-accused cannot claim
examination of Kamal Khan. Said application was
dealt with by this Court and a detailed order is passed
on 30.11.2015. This Court held that considering the
purport of section 391 of Cr.P.C., it is not a dire need
for examination of Kamal Khan as a court witness in
order to assist the Court to come to a just decision. At
that juncture, there was no question of drawing
adverse inference for non-examination of Kamal Khan
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as argued by the State and in fact that aspect was kept
pending till the final adjudication of the appeal and as
such under this premise the present aspect is being
dealt with as during the course of arguments, learned
Senior Counsel for the appellant vehemently
submitted that on non-examination of Kamal Khan by
the prosecution, adverse inference is required to be
drawn. As such it be treated as mitigating
circumstance to the case of the prosecution. Though at
the time of deciding the application under section 391
of Cr.P.C., this Court held it not necessary to call Kamal
Khan as a court witness, now at this stage an inference
is required to be drawn further argued. Considering
the manner in which the prosecution has taken steps
to bring Kamal Khan before the trial Court for
recording of his evidence.
165. In fact, it is certain that according to the
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prosecution, Kamal Khan was the only person, apart
from Ravindra Patil, to throw light on the factual
position as to who was driving. This is more so, when
the evidence of Ravindra Patil was to be critically
discussed and having less evidential value because of
no opportunity of cross-examination in Sessions Court.
Examination of an eye-witness and when the case is
on a very limited number of eye-witnesses, as in the
present case, according to the prosecution of two
witnesses, non-examination of one of the eye-
witnesses is definitely detrimental to the case of the
prosecution, if otherwise the prosecution is not coming
with a stand that the said witness has been won over
and definitely not available in spite of due diligence
to secure his presence.
166. In the present case, both the things as
mentioned above are to be tested, whether it was just
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and proper for the prosecution to bring Kamal Khan
before the Sessions Court and to record his evidence
by that way the corroboration could have been
obtained on the vital aspect of driving and also on
drunkenness. Definitely, the substantive evidence of
Ravindra Patil as accepted by the Sessions Court was
of a weak type so far as the drunkenness is concerned,
due to improvements. Under such circumstances, non-
examination of Kamal Khan may apparently mean that
he was withheld by the prosecution. This is more so
for the reason that the process issued against Kamal
Khan was on the address written in his statement
under section 161 of Cr.P.C recorded in the year 2002
i.e. immediately after the incident. In fact, many
events had followed after the year 2002 and
specifically in the year 2008 when the matter was
before the M.M. Court for trial for the offence under
section 304-A of IPC. It is admitted position and
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which is brought on record on behalf of the appellant
that on three occasions Kamal Khan was before the
M.M. Court with his application asking for permission
to go out of India and then coming back within a
particular time. These dates are 26.8.2008, 18.9.2008
and 12.11.2008. On these occasions before the M.M.
Court the then latest address at Mumbai and also the
permanent address at U.K. was given by Kamal Khan.
Admittedly, Kamal Khan was British National, even at
the time of incident of 2002 and his permanent
residence was at U.K. At least by these applications the
latest address was known to the prosecution.
However, apparently, no care was taken to secure the
presence of Kamal Khan by sending the process for his
attendance on the said new addresses. Instead, the
process was issued on the address which was of the
year 2002. This conduct on the part of the
Investigating Agency leads to the conclusion that the
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investigation was not desirous of bringing Kamal Khan
before the Court for giving evidence. Whatever might
be the reason for not bringing him before the Court,
the fact remains that he was one of the eye-witnesses
to the incident and should have thrown light on the
factual circumstances and more so when the defence
of the appellant-accused was spelt out much earlier as
to driving of the vehicle by the fourth person by name
Ashok Singh. Even apparently, the name of Ashok
Singh has already appeared in the record when the
matter was before the M.M. Court. As earlier seen,
during examination Ravindra Patil had taken his name
as one of the drivers driving only during the day time.
As such presence of fourth person and that also of
Ashok Singh was the defence of the accused and
known to the investigating agency. However, an
apparently futile attempt was made for service on
Kamal Khan on the address of 2002 and not on the
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address which was given to M.M. Court in the year
2008.
167. Now, again coming to the conduct of the
Investigating agency, a reference is required to be
made about the affidavit filed by ACP of Bandra
Division. Said affidavit is dated 23.11.2015. Along
with affidavit at Exh.D a xerox copy of the letter dated
24.6.2014 addressed by Senior PI Bandra Police
Station to the Sessions Court No. 16 Mumbai is
attached. This letter is the report of outcome of the
summons issued against the witnesses including
Kamal Khan. Name of Kamal Khan is mentioned at
serial No.3 in these witnesses. What was pointed out
on behalf of the appellant-accused by the learned
Senior Counsel was that apparently this report is not
forming part of the Court record of the Sessions Case.
Factually this position was checked and learned
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prosecutor in the appeal admitted that apparently this
original report is not forming part of the court record
of the Sessions Court. This Court has also examined
the Roznama of the relevant dates including the date
of 24.6.2014 but there is no mention regarding filing
of this report before the Sessions Court. Of course, at
this juncture, this Court does not want to endorse the
view that this application itself is entirely fabricated
and placed before the High Court only for the first
time. This is for the reason that by inadvertence also
any such report may be lost while the matter is before
the Sessions Court. Unless there is concrete material
this Court is not inclined to initiate any action for
fabrication of this report. However, the fact remains
that the conduct of the Investigating Agency can be
seen from this circumstance. Definitely, the process
was not issued at the known address of Kamal Khan
and an attempt was made to serve him on the address
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of 2002. Apparently, for certain purpose this witness
was withheld by the prosecution and as such in the
considered view of this Court a necessary adverse
inference is required to be drawn against the
prosecution for non-examination of Kamal Khan as a
prosecution witness. Coming back to the application
under section 391 of Cr.P.C., the same was filed by the
appellant-accused at the fag end of the present appeal.
Be that as it may, the same was strongly opposed by
the prosecution. Taking an over all view, this court
rejected the said application on 30/11/2015 on the
grounds contained in the said order and more
particularly that on the basis of already available
material it was not a case where a just verdict would
not be possible unless Kamal Khan is examined. Power
under section 391 is not to be invoked casually and
the refusal thereof does not preclude the Court from
drawing adverse inference, on the basis that such
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witness was not examined during trial despite ample
opportunity. Though, it is so, independently also the
case of the prosecution is being analyzed and is being
appropriately dealt with keeping aside this aspect of
adverse inference on the non-examination of Kamal
Khan.
168.
To substantiate the argument on behalf of
the appellant, the following authorities are cited :-
1) AIR 1954 SC 51
(Habeeb Mohammad Vs. State of Hyderabad)
2) (2012) 4 SCC 722
(Govindraju Alias Govinda Vs. State by
Shrirampuram Police Station & Anr)
3) (2014) 11 Supreme Court Cases 335
(Joginder Singh Vs. State of Haryana)
4) AIR 1956 SC 35
(The Member, Board of Revenue Vs.
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Arthur Paul Benthali)
5) 2001 (2) A.W.C. 1447 (S.C.)
Oriental Insurance Co. Ltd vs. Hansrajbhai V.
Kodala (S.C.)
6) (2010) 13 SCC 657
(Sunil Kumar Sambhudayal Gupta (Dr) and
Ors Vs. State of Maharashtra)
169. Even on this issue the following authority is
cited on behalf of the State:-
2001 6 SCC 145
(Takhaji Hiraji Vs. Thakore Kubersing
Chamansingh & Ors)
170. Now coming, apparently to the last
submission i.e. applicability of Section 304 Part II of
IPC, in the present case, a great deal of arguments
were advanced before the Court by the rival sides by
taking shelter of two authorities. A reference to these
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authorities was earlier made by this Court. However,
this issue will be discussed rather at length. The first
authority is (2012) 2 SCC 648 (Alister Anthony
Pareira Vs. State of Maharashtra) and another (2012)
8 SCC (State through PS Lodhi Colony, New Delhi Vs.
Sanjeev Nanda.
171.
Prior to discussing the ratios of the above
authorities, it must be mentioned at the threshold that
each and every case is to be determined on its own
fact situation and applicability or otherwise of a penal
section is to be considered on those facts and there
cannot be any particular formula that on certain
circumstances a particular penal section is a must to
be applied. This is more so when it is tried to argue
on behalf of the State on the authority in Alister
Pareira. Certain factual position in the said case can
be mentioned in order to appreciate the finding of the
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Hon'ble Supreme Court in that matter. The facts of the
said case are that on the South-North Road at the east
side of Carter Road, Bandra (West), Mumbai in the
early hours of 12.11.2006 between 3:45 a.m. to 4:00
a.m. a car ran into the pavement killing seven persons
and causing injuries to eight persons. The appellant,
Alister Anthony Pareira was at the wheels. The
appellant was, at that time, found in drunken
condition. The trial Court convicted him under
Sections 304-A and 337 of IPC and sentenced him to
simple imprisonment for six months with fine of Rs.5
lakhs for the former offence, and fifteen days' simple
imprisonment for the latter. However, it acquitted him
of the offences under sections 304 Part II and 338 of
IPC. The High Court set aside the acquittal of the
appellant under section 304 of IPC and convicted him
for the offences under sections 304 Part II, 338 and
337 of IPC. It sentenced him to three years' rigorous
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imprisonment with a fine of Rs. 5 lakhs for the offence
under section 304 Part II, one year rigorous
imprisonment and six months' rigorous imprisonment
for the offences under sections 338 and 337 IPC
respectively. The fine imposed by the trial court had by
then been distributed to the families of the victims.
The appellant therein then filed the appeal. It was the
appeal preferred by the accused Alister Anthony
Pareira challenging the order of the High Court.
However, the final decision of the Hon'ble Supreme
Court was that the offence under section 304 Part II of
IPC was proved. Another observation in the said
authority reads thus :-
"One of the prime objectives of the
criminal law is imposition of
appropriate, adequate, just and
proportionate sentence commensurate
with the nature and gravity of crime
and the manner in which the crime is
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done. There is no straitjacket formula
for sentencing an accused on proof of
crime. The courts have evolved certain
principles: the twin objectives of the
sentencing policy are deterrence and
correction. What sentence would meet
the ends of justice depends on the facts
and circumstances of each case and
the court must keep in mind the
gravity of the crime, motive for the
crime, nature of the offence and all
other attendant circumstances."
172. In the said authority another case was
discussed by the Apex Court and that is Prabhakaran
Vs. State of Kerala (2009) 1 SCC (Cri) 873
"45. In Prabhakaran v. State of
Kerala this Court was concerned with
the appeal filed by a convict who was
found guilty of the offence punishable
under Section 304 Part II Indian
Penal Code. In that case, the bus
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driven by the convict ran over a boy
aged 10 years. The prosecution case
was that bus was being driven by the
Appellant therein at the enormous
speed and although the passengers
had cautioned the driver to stop as
they had seen children crossing the
road in a queue, the driver ran over
the student on his head. It was
alleged that the driver had real
intention to cause death of persons to
whom harm may be caused on the
bus hitting them. He was charged
with offence punishable under Section
302 Indian Penal Code. The Trial
Court found that no intention had
been proved in the case but at the
same time the accused acted with the
knowledge that it was likely to cause
death, and, therefore, convicted the
accused of culpable homicide not
amounting to murder punishable
under Section 304 Part II Indian
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Penal Code and sentenced him to
undergo rigorous imprisonment for
five years and pay a fine of Rs.
15,000/- with a default sentence of
imprisonment for three years. The
High Court dismissed the appeal and
the matter reached this Court."
"46. While observing that Section
304A speaks of causing death by
negligence and applies to rash and
negligent acts and does not apply to
cases where there is an intention to
cause death or knowledge that the act
will in all probability cause death and
that Section 304A only applies to
cases in which without any such
intention or knowledge death is
caused by a rash and negligent act,
on the factual scenario of the case, it
was held that the appropriate
conviction would be under Section
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304A Indian Penal Code and not
Section 304 Part II Indian Penal
Code. Prabhakaran does not say in
absolute terms that in no case of an
automobile accident that results in
death of a person due to rash and
negligent act of the driver, the
conviction can be maintained for the
offence under Section 304 Part II
Indian Penal Code even if such act
(rash or negligent) was done with the
knowledge that by such act of his,
death was likely to be caused.
Prabhakaran turned on its own
facts."
173. At the end of paragraph no. 46 the Hon'ble
Apex Court has expressed its view that Prabhakaran's
case turned on its own facts. The facts of
Prabhakaran's case are also discussed in paragraph 45
as detailed above.
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174. The above reasoning either in Prabhakaran
case or in the Alister Pareira case, again endorse the
view that each case obviously has to be decided on its
own facts and whether the person had a knowledge or
not is to be seen considering the circumstances.
175. Another observations in the said authority
which are appearing in paragraph no.41 in the Alister
Pareira's matter are reproduced :-
"Rash or negligent driving on a public
road with the knowledge of the
dangerous character and the likely
effect of the act and resulting in death
may fall in the category of culpable
homicide not amounting to murder. A
person, doing an act of rash or
negligent driving, if aware of a risk
that a particular consequence is likely
to result and that result occurs, may
be held guilty not only of the act but
also of the result. As a matter of law -
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in view of the provisions of the Indian
Penal Code - the cases which fall
within last clause of Section 299 but
not within clause 'fourthly' of Section
300 may cover the cases of rash or
negligent act done with the knowledge
of the likelihood of its dangerous
consequences and may entail
punishment under Section 304 Part II
Indian Penal Code. Section 304A
Indian Penal Code takes out of its
ambit the cases of death of any person
by doing any rash or negligent act
amounting to culpable homicide of
either description."
176. In fact, this observations of the Apex Court
are also to be construed and to be accepted when the
earlier issue as to applicability of Section 33 of the
Evidence Act has been discussed by this Court and it is
in respect of the requirement of that section in the
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proviso that the "questions in issue were the same in
the first and second proceeding." Though it is argued
on behalf of the State that in view of the ratio
propounded by Alister Pareira's case, in each and every
case of drunken driving and causing death of a person
section 304 Part II of IPC may not be applicable.
177.
Again on the specific circumstances of the
case in the matter of Alister Pareira, the Hon'ble Apex
Court has upheld the order of this Court for conviction
of the appellant for the offence under section 304 Part
II of IPC. The circumstances were very dreadful.
Paragraph no.71 of the authority depicts the
circumstances. The vehicle was lying in the middle of
the road between the road divider and footpath on the
Carter Road at about 50 feet from the north side of
Varun Cooperative Housing Society gate and about
110 feet from railway quarters gate on the south side.
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The front wheel of the car was broken and mudguard
was pressed. The spot panchnama shows 70 feet long
brake marks in a curve from west side of the road
divider towards footpath on eastern side. It is further
seen from the spot panchnama that a tempo, mud
digger and two trucks were parked on the road
between the railway quarters gate and Varun
Cooperative Housing Society gate near the accident
spot. That was a case in which the spot panchnama
was duly proved by PW 11 and 16. There is nothing in
the cross-examination of these witnesses to doubt their
presence or veracity. The long brake marks in curve
show that the vehicle was being driven by the
appellant at high speed; the appellant had lost control
of the speeding vehicle resulting in the accident and,
consequently, seven deaths and injury to eight persons.
178. In the said authority in paragraph 76 a
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reference is made by the Apex Court regarding notice
taken by the High Court as to the people sleeping on
pavements. The said paragraph 76 is reproduced
hereunder :-
"The High Court took judicial notice of
the fact that in Mumbai people do
sleep on pavements. The accused was
also aware of the fact that at the place
of occurrence people sleep as the
accused was resident of that area. The
High Court took note of the fact that
the accused had admitted the accident
and his explanation was that the
accident occurred due to mechanical
failure and the defect that was
developed in the vehicle but found his
explanation improbable and
unacceptable. The High Court also
observed that the factum of high and
reckless speed was evident from the
brake marks at the site. The speeding
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car could not be stopped by him
instantaneously."
179. Of course, though in Alister Pareira, the
Hon'ble Apex Court has come to the conclusion of
maintaining the charge under section 304 Part II of
IPC, it was on the fact situation of that matter, wherein
the vehicle was heavily damaged. So far as matter in
hand is concerned almost, entire evidence of the
prosecution has been discussed in this appeal and
various observations have been made by this Court. In
the considered view of this Court based on the
decision of Alister Pareira, present matter cannot be
taken as a case in which there is application of penal
section 304 Part II of IPC. Of course, in fact, this is for
the academic interest as this Court has already come
to the conclusion as to the failure of the prosecution to
bring that material on record to establish beyond
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reasonable doubt that the appellant accused was
driving the vehicle, further more that he was under
the influence of alcohol. Moreover, there is still a
doubt created as to whether the incident has occurred
due to the bursting of the tyre prior to the incident or
the tyre got burst after the incident.
180.
So far as the ratio in the another case of
Sanjeev Nanda (2012) 8 SCC 450. It was also the
punishment for the offence under section 304 Part II
of IPC and on special circumstances of that case the
Hon'ble Apex Court had given the finding as to
applicability of Section 304 Part II. Specific
observations in paragraph no.29 of that authority are
of much significance which read thus :
"It has also come on record that seven
persons were standing close to the
middle of the road. One would not
expect such a group, at least, at that
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place of the road, that too in the wee
hours of the morning, on such a
wintry night. There is every possibility
of the accused failing to see them on
the road. Looking to all this, it can be
safely assumed that he had no
intention of causing bodily injuries to
them but he had certainly knowledge
that causing such injuries and fleeing
away from the scene of accident, may
ultimately result in their deaths."
181. Again in the considered view of this Court,
ratios in Alister Pareira's case and Sanjeev Nanda's
case are to be construed in the light of specific facts of
those cases.
182. Now coming to some minor points as to
examination of a panch witness, drawing of a site map
and the discrepancies in the site map vis-a-vis the
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factual position and the presence or otherwise of the
footpath at the scene of offence and the topography of
the area of the occurrence of the incident certain
observations are required to be made prior to
disposing of the appeal;
183. PW 1 is the panch witness, one Sambha
Gauda he was running a tea stall near one temple at
St. Andrews Road, Bandra. At about 3:00 a.m. he was
called on the spot on 28.9.2002 by Bandra Police and
was informed that one car was involved in the
accident and to act as pancha. He and another person
by name Arjun, apparently his friend, both, attended
the spot. The important part of his substantive
evidence is to the effect that the front portion of the
car was damaged. The bumper of the car also touched
the shutter of American Laundry. Five persons were
beneath the car. Car had climbed the stairs and went
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in the American Laundry. The police had measured
the spot. According to him, the police collected broken
glass pieces and also number plate and also took
charge of these articles and also collected the blood
stains. Then, according to him, spot panchnama was
drawn and he identified it as Exh.28. During cross-
examination he had specifically answered that the left
tyre of the car was found punctured. Further, he
answered that it did not happen that the police
entered in the car by opening the door of the car for
inspection and that police found RC book, certified
copy of New India Assurance and Police took
possession of these documents and key of the car. This
witness denied the police having done so and also
when confronted with the portion mark "A" from the
panchnama he stated that it was not correctly
recorded. He further stated that he had not measured
the spot personally and that police had done the
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marking in his presence. Another important admission
he gave is that the police in his presence did not take
charge of the portion of the shutter. Whereas in his
evidence the portion of a shutter is produced before
the Court and by pointing it out it is submitted on
behalf of the appellant that, in fact, there is a
tampering of the article and various articles were not
seized during the panchnama but they were done
subsequently seized. This is significant enough when
according to the case of the prosecution and as stated
by Ravindra Patil the car had entered the American
Express Laundry by dashing into the shutter and car
entered to the extent of 3 and ½ feet inside. As
against this, the evidence of this person did not
mention anything regarding breaking of the shutter
of the laundry and the car going inside the shop
premises. The piece of the shutter is produced before
the trial Court. It is not the piece obtained by cutting it
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from the entire shutter. It is also not seen having any
puncture except that it is slightly bent. This factual
position is not in consonance with the case of
prosecution as to puncture to the shutter by dash from
the car.
184. Apart from the above, it is also brought to the
notice of this Court that another pancha, according to
this witness and according to the panchnama Exh.28 is
by name Arjun and his address is given as Antop Hill,
Sion Koliwada.
185. By pointing this out, it is submitted that in
the absence of any material on record by the
investigating agency as to how this person by name
Arjun was brought from Antop Hill, Sion, Koliwada at
3:00 a.m. on 28.9.2002 at Bandra, the presence of
said second pancha renders the entire panchnama
doubtful.
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186. After analysis of the substantive evidence of
PW 1 panch witness Sambha Gauda, now a reference
is required to be made regarding the arguments as to
the topography of the area where the incident had
occurred and also whether there was a cement
platform in front of the American Bakery and whether
there were any steps i.e. sort of stair-case and whether
there was a footpath. Also the aspect as to the
interview given by Ravindra Patil to the Mid Day on
29.9.2002 and which is printed and published on
30.9.2002, can be discussed in short. As earlier entire
evidence of the prosecution on various aspects has
been dealt with in detail, thus, holding that the
evidence brought before the Court by the prosecution
has not reached that standard of proof which is
required to establish the guilt of the present
appellant-accused beyond reasonable doubt, no much
importance can be given to the argument on minor
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points as to the discrepancies appearing in the site
map vis-a-vis the contents of the spot panchnana. Site
map is at Exh.143 before the Sessions Court and it was
prepared by the officer, when, in fact, the vehicle was
not on the spot and it was already removed to Bandra
Police Station. There is variance in the substantive
evidence of the prosecution witnesses and mainly of
the injured persons and also of the police officer. PW 3
stated that the right front side tyre was resting on the
Ota (platform). According to him, left tyre was in
between the laundry and the bakery. PW 4 in his
evidence has stated that both the corners of the
bumper touched the shutter. Back tyres of the vehicle
were resting at the end of the stairs. Also, according
to him, both front tyres of the vehicle were resting on
the stairs up to the shutter. According to the police
officer PW 26, vehicle Land Cruiser had climbed three
stairs and the right front wheel was resting on the
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stairs of the Laundry. In fact, what is depicted in the
site map Exh.143 is not what is appearing from the
substantive evidence of these witnesses. Moreover, in
fact, it is also not in consonance with what is stated by
Ravindra Patil that the car had gone inside the shop to
the extent of 3½ feet thereby puncturing the shutter of
the laundry. As such this map also does not show the
correct position and as such apparently it is also one of
the mitigating circumstances to the case of the
prosecution.
187. Now coming to the interview given to the
newspaper Mid-Day by Ravindra Patil, various
questions were asked to him and in fact one of the
questions was "whether you have stated to the
Reporter of Mid-Day that Altaf was on the wheel when
Salman and Kamalkhan returned from Rain Bar and
started to Salman's house by car." Ravindra Patil has
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answered this question to the following effect :
"I do not remember the interview
given to Mid-Day".
188. The next question asked was that whether
Salman Khan returned from JW Marriott after 15
minutes and sat on driver's seat of his motor car. The
answer was "I have stated so". Further there was a
question as to whether this witness has stated to the
reporter of Mid-Day that Salmankhan i.e. the accused
was driving the motor car at the speed of 70 km per
hour. To this question witness answered, "I do not
remember". By pointing to these questions and
answers, it is submitted on behalf of the appellant-
accused that this witness has conveniently answered
to the question that he does not remember and those
answers are to the questions as to the driving by Altaf
and speed of the car was 70 km per hour when it was
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driven from JW Marriott Hotel back to home. As
against this, further argued that the answer of this
witness Ravindra Patil to the questions that in the
valet parking of JW Marriott Hotel car was halted, the
accused sat on driver's seat and the witness answered
in the affirmative. By pointing this out, it is submitted
that the answers "I do not remember" are required to
be construed that he was not sure whether what was
asked, did actually happen or not. His answer is not
negative to the questions regarding Altaf and
regarding speed of car 70 km/hr. Of course, this
argument was strongly objected by the learned Public
Prosecutor on various counts, firstly it is submitted
that the Reporter of the Mid-Day is not brought
before the Court to establish the factum that there
was, in fact, interview taken and taken in a particular
manner contending the circumstances which were put
to Ravindra Patil during his cross-examination. In
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fact, as per Section 145 of the Evidence Act if at all the
witness is to be contradicted then only the said earlier
statement of the witness is required to be shown to
him. Otherwise, the witness can be asked questions
on his earlier statement. As such, considering this
legal position and considering the answers given by
Ravindra Patil and acceptance by him that he did give
interview to the Mid-Day on 29.9.2002, in the opinion
of this Court, though what is argued on this aspect
cannot be accepted on behalf of the appellant-accused
but still the conduct of Ravindra Patil can be seen by
way of the answers given. Otherwise also this Court
has earlier held as to the non-admissibility of the
evidence of Ravindra Patil under section 33 of the
Evidence Act.
189. Now, the last argument advanced on behalf of
the appellant-accused is that death of Nurulla was not
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due to the accident or due to the driving of the
vehicle. During the arguments, it is submitted that
there is substantive evidence of witnesses to show that
the crane was brought on the spot to lift the vehicle
which was immobilized and also had a burst left front
tyre. It is an admitted position that crane was called
to lift the vehicle and place it aside so that the injured
beneath the vehicle could be removed. That time the
body of Nurulla was also removed from beneath the
vehicle. The argument on behalf of the appellant is
that death of Nurulla was because of falling of the
vehicle while it was being attempted to be lifted by
using a crane. That type of evidence has also come on
record that at one point of time the vehicle slipped
from the hook of the crane and fell again on the
ground. Apparently, the body of Nurulla was below
the vehicle. By pointing this out, it is tried to suggest
that by that time said Nurulla was alive and his death
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was only due to the heavy impact of the vehicle when
it fell down due to slipping from the hook of the crane.
As against this argument learned Public Prosecutor
brought to the attention of this Court, the injuries
reported in postmortem report. The postmortem
report is Exh.149 before the Sessions Court. Column
no. 16 of the postmortem report show both arms
crushed and lower legs extended. Column no. 17
regarding surface wounds and injuries show multiple
crushed injuries over head, neck, chest and abdomen.
All internal organs crushed badly. So far as column 19
is concerned regarding injuries on the head and skull,
the finding is "crushed completely." The same finding
is for thorax, lungs and other parts of the body. Even
the abdomen was crushed completely. Even the spine
and spinal cord were crushed up to T-20 and cause of
death was haemorrage and shock due to multiple
crushed injuries (unnatural). Apparently, by single fall
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of a heavy vehicle whatever might be the weight of the
vehicle, as suggested on behalf of the appellant, such
type of injuries are not possible and on this count
argument on behalf of the appellant cannot be
accepted that the death of Nurulla was due to falling
of the vehicle when it was tried to be lifted. It must be
taken that the death was due to the running over by
the vehicle when Nurulla was sleeping on the
platform. Though this is the finding from the
postmortem report and after analyzing the evidence
and arguments on this point, still it will not lead this
Court to hold more than this as earlier this Court has
held that the prosecution has failed to establish the
case against the accused on all the counts as to driving
that also in a drunken state.
190. Now, again this Court needs to consider
whether the offence punishable under section 134 of
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the Motor Vehicles Act read with section 187 of the
said Act is to be attracted so far as the present
appellant-accused is concerned. Though this court has
held that the prosecution has failed to establish that
the appellant-accused was driving the vehicle during
the incident, still it is a factual position that he was
present in the vehicle and this position cannot be
negated. As such, the import of section 134 of the
Motor Vehicles Act, 1988 is required to be construed.
Section 134 reads thus :
"When any person is injured or any
property of a third party is damaged,
as a result of an accident in which a
motor vehicle is involved, the driver of
the vehicle or other person in charge
of the vehicle shall-
(a) unless it is not practicable to do
so on account of mob fury or any
other reason beyond his control, take
all reasonable steps to secure medical
attention for the injured person, [by
conveying him to the nearest medical
practitioner or hospital, and it shall
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be the duty of every registered medical
practitioner or the doctor on the duty
in the hospital immediately to attend
to the injured person and render
medical aid or treatment without
waiting for any procedural
formalities], unless the injured person
or his guardian, in case he is a minor,
desires otherwise;
(b) give on demand by a police officer
any information required by him, or,
if no police officer is present, report
the circumstances of the occurrence,
including the circumstances, if any,
for not taking reasonable steps to
secure medical attention as required
under clause (a), at the nearest police
station as soon as possible, and in
any case within twenty-four hours of
the occurrence;
[(c) give the following information in
writing to the insurer, who has issued
the certificates of insurance, about the
occurrence of the accident, namely:-
(i) insurance policy number and
period of its validity;
(ii) date, time and place of
accident;
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(iii) particulars of the persons
injured or killed in the accident;
(iv) name of the driver and the
particulars of his driving licence.
Explanation. - For the purposes of this
section the expression "driver"
includes the owner of the vehicle.]"
191.
The above section contemplates that there
was a duty imposed by law on a person to give
medical assistance / help and this duty is cast not only
on the driver of the vehicle but also every person in-
charge of the vehicle. Though it is not established that
the appellant-accused was driving the vehicle still he
comes under the later part as 'a person in-charge of
the vehicle' and as per the explanation to the said
section, 'driver' includes the owner of the vehicle. Now
the question arises whether the circumstances on the
spot were such that the act of the appellant-accused in
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leaving the spot without apparently giving any
medical assistance or to take reasonable steps to
secure the medical aid to the injured. On this aspect,
it is submitted on behalf of the appellant that after the
incident a mob of many people had gathered and the
mob was in aggressive mood and some of the
members were also armed with rods and other
articles. Even according to the witnesses and also the
injured who had been on the spot, the mob was
furious and in fact there could have been a law and
order problem and it in fact happened as the mob had
spotted the appellant-accused coming out of the
vehicle and the vehicle had caused death of one
person and injuries to other four persons. As such
considering this argument and the factual position
that the circumstances were such that in order to
escape from the fury of the mob and these
circumstances were beyond the control of the
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appellant, no such appropriate steps were taken to
secure the medical aid to the injured persons. Of
course, on this aspect, it is argued by learned Public
Prosecutor that if not immediately after the incident
but subsequently also there is no step taken by the
appellant to see what is the condition of the injured
and whether they require any medical help. In fact,
the law requires as mandated by section 134 of the
Motor Vehicles Act that such aid is required to be
given by the driver and also the other persons in-
charge of the vehicle when any person is injured or
any property of a third party is damaged as a result of
the accident in which motor vehicle is involved. So
this presupposes that such assistance is immediately
given at the time of the incident and in near proximity
in time. As such, in the considered view of this Court,
even this charge under section 134 of the Motor
Vehicles Act cannot be attracted in the present case
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considering the circumstances.
192. Now, in summing up, it must be mentioned
that on the main broad aspects as to the driving and
drunkenness the prosecution has not brought that
material on record to point out only the guilt of the
appellant-accused as almost entire evidence of the
prosecution is in the nature of circumstantial evidence
though the evidence of Ravindra Patil can be
considered as a evidence of a direct nature, still this
Court has earlier held as to its inadmissibility and has
subsequently also marshalled his evidence as to his
evidential value.
193. While arriving at the above findings this
Court is not oblivious of the perception or the opinion
of members of general public. However, it is well
settled principle that a Court must decide the case on
the material brought on record and which can be
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accepted as an evidence as per the procedure laid
down by law. The court shall not be swayed away by
any popular belief that a particular person considering
his avocation, profession or standing, must have
committed such an offence and must be held guilty.
The Court is expected to be impervious to the pressure
from the public and also from the Media. It is for
good reasons that the law of Evidence has no place for
the general public opinion as a factor that should
weigh with the Court while deciding a case at hand.
Probably because such opinion or such perception is
many a times gathered on the basis of the
information/news that is constantly being told /
broadcasted by the Media and other institutions. It
often happens that a proposition that is repeatedly
fed to the general public has the possibility of
achieving the status of 'truth'. This is as far as the
general public at large is concerned. However, this so
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called 'truth' i.e. the proposition is required to be
proved before a Court of law and in which the
established principles of law of evidence are required
to be followed. Even the basic cardinal principle of
Criminal Jurisprudence and the burden on the
prosecution cannot be forgotten and any strong
suspicion cannot be considered as a material to hold a
person guilty of a particular offence. Bearing in mind
the above principles, in the considered view of this
Court, the prosecution has failed to establish its case
of all charges.
194. Needless to mention that in every criminal
trial the burden of establishing the guilt of an accused
is on the prosecution and that guilt is to be proved
beyond reasonable doubt. The benefit of every
reasonable doubt which arises out of the evidence
adduced, must necessarily be given in favour of the
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accused. In this case, considering the various
weaknesses in the case of the prosecution, various
shortcomings such as non-examination of necessary
and appropriate witnesses, the omissions and
contradictions in the evidence of the injured witnesses
which go to the root of the matter, definitely a doubt
has arisen as to the involvement of the appellant for
the offences with which he is charged. On the basis of
this type of evidence the appellant cannot be convicted
though the apparent perception might be different as
appearing in the mind of a common man. Moreover,
from the careful analysis of the evidence collected
during the investigation without expressing any
conclusive opinion this Court feels that there are
following hypothesis possible:
195. Firstly, though the investigation might be
impartial, it was conducted in such a careless a faulty
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manner with scant regard to the established procedure
laid down in law more particularly, the procedure
required for establishing the chain of evidence when
the case is based on the biological evidence, or, ii)
secondly, the investigation was so conducted to loosen
the prosecution case.
196.
Existence of any of the above hypothesis is, in
fact, highly deplorable but always it is a duty of the
Court to weigh the evidence which is brought before it
and to ascertain whether the offences are proved
against the accused beyond reasonable doubt.
197. Lastly, in the considered view of this Court,
the appreciation of the evidence as is done by the trial
Court in the present matter is not proper and legal as
per the settled principles of Criminal Jurisprudence.
For example, it can be said without giving all the
details that the trial Court had erred in accepting the
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Bills which were recovered without there being any
panchnama and the bills altogether saddled with the
fabrication. Secondly, evidence of Ravindra Patil was
not marshalled properly and thirdly evidence to
establish biological chain regarding alcohol
consumption is not appreciated as per the mandate of
law. As such, consequently, it must be said that this is
not a case in which the prosecution has successfully
established its case for all the charges and as such
resultantly the appeal is required to be disposed of
with the following order :-
:: O R D E R ::
1) Criminal Appeal No. 572 of 2015 preferred
by appellant Salman Salim Khan is allowed;
2) The impugned judgment and order dated
6th May, 2015 passed in Sessions Case No. 240 of 2013
is hereby quashed and set aside;
3) The appellant-accused Salman Salim Khan
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is acquitted of all the charges. The bail bonds of the
accused shall stand cancelled;
4) If the fine amounts which are imposed in
view of the impugned judgment and order, are already
paid, the same shall be refunded back to him;
5) In view of the provisions of Section 437-A
of Cr.P.C., the appellant shall execute a P.R. bond in the
sum of Rs.25,000/- (Rupees Twenty Five Thousand)
with one or two sureties in the like amount;
6) On the request on behalf of the appellant-
accused provisionally a cash security of Rs.25,000/-
(Rupees Twenty Five Thousand only), shall be
accepted by the office for a period of two weeks and
within this time the surety procedure shall be
completed. The bail procedure be complied before the
office of this Court;
7) As the bail bonds of the appellant-accused
stand cancelled, which were given at the time of
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admission of the appeal, Bandra Police Station is
directed to hand over the Passport of the appellant to
him on proper identification;
8) Appeal is disposed of accordingly. Criminal
Application No. 1041 of 2015 does not survive in view
of disposal of appeal and hence it is accordingly
disposed of.
(A.R. JOSHI,J)
TRANSCRIBED BY :
DESHMANE AND LADDA (PS)
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