Delhi High Court
Sanjeev Nanda vs The State on 12 May, 2009
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 807/2008
Judgment reserved on: 12.05.2009
% Judgment delivered on: ,2009
Sanjeev Nanda ...... Appellant
Through: Mr. Ram Jethmalani, Sr. Advocate
and Mr. Siddharth Luthra, Sr. Advocate with
Mr. R.N. Karanjawala, Mr. Sandeep Kapur,
Mr. Saurab Ajay Gupta, Ms. Lataa
Krishnamurti, Mr. Rajat Wadhwa , Mr. Mehul
Milind Gupta, Mr. Shivel Trehan, Madhav
Khurana , Mr. Arndam Mukherjee, Ms. P.R.
Mala, Mr. Saurabh Gupta, Ms. Joyeeta
Banerjee and Mr. Rajdeep Banerjee for the
appellant.
versus
The State ..... Respondent
Through: Mr. Pawan Sharma, Addl. P.P. for
State
And
Crl. Appeal No. 767/2008
Rajiv Gupta ...... Appellant.
Through: Mr. D.C. Mathur, Senior Advocate
with Mr. Mohit Mathur
versus
State(Govt. of NCT of Delhi) ..... Respondent
Through: Mr. Pawan Sharma, Addl. P.P. for
State
And
Crl. Appeal No. 871/2008
Bhola Nath & Anr. ...... Appellant.
Crl. No. 807/2008 Page 1 of 274
Through: Mr. S.S.Gandhi, Senior Advocate
with Mr. Abhilash Mathur
versus
State(Govt. of NCT of Delhi) ..... Respondent
Through: Mr. Pawan Sharma, Addl. P.P. for
State
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
KAILASH GAMBHIR, J.
*
"The miracle is not to fly in air or to travel to the moon,
but to walk on the earth", says a Chinese proverb.
1. The increase in vehicular traffic alongwith the population of
Delhi has grown much faster since the time Maruti Company has
flooded the market with their brand of cars for the middle class of
the society. Although the capital of the country is dominated by the
middle and lower class, but the presence of rich and affluent is no
less visible when one looks at the roads of Delhi to find large number
of high class luxurious cars, including the Mercedes and BMWs. The
traditional mode of travelling by tangas, bicycles, rickshaws, two
wheelers is coming to gradual extinct except in the interiors of some
localities.
2. Except for a few hours between midnight to dawn, one cannot
see even a patch of earth but vehicles and vehicles either running or
stranded in traffic jams on Delhi roads. This ever increasing
vehicular explosion in traffic is due to the rapid increase of human
population primarily due to continuous migration of people in search
of their livelihood from adjoining states and from far flung areas. In
this unmanageable crowd, what we have lost is humanity, morals,
our age old rich culture, tradition, ethos and path of truthfulness and
righteousness as shown to us by saints and scriptures. Of all the
maladies afflicting India, the malady of inner decay reigns supreme.
There is a weakening of our moral fibre and ethical values.
Corruption, red tapism, callousness, casualness and crumbling
moralities dominate our public life instead of much needed culture of
care, compassion, empathy, and catholicity.
3. Drunken driving, insensitivity and apathy of the Government
for public safety on roads; poor, faulty and ill equipped police
investigation; growing interference of media in criminal trials; media
hype; hostile and dishonest witnesses; falling standards of legal
profession, filthy use of money power by rich and mighty; unholy
nexus between defence counsel and State appointed Special Public
Prosecutors are some of the issues that cropped up in this infamous
case known as the BMW case.
Brief Facts
4. In this background, it would be relevant to briefly put forth the
facts of the case before delving upon the contentions of counsel for
the parties, which are as under:
5. At about 4:00 am on the cold wintry morning of 10/1/1999, the
accused Sanjeev Nanda in an inebriated state, without an Indian
driving licence while driving a brand new BMW car bearing
registration no. M 312 LYP caused an accident at the Lodhi Road in
which 6 persons, including three police officers were trampled to
death and one person was injured. After causing the accident, the
accused Sanjeev Nanda fled away from the accident spot and parked
the accidental car at 50 Golf Links at the residence of his friend
Siddharth Gupta. The accused has been convicted u/S. 304 (II) IPC
and sentenced to 5 years imprisonment by the trial court for culpable
homicide not amounting to murder. Accused Siddharth Gupta was
discharged by this Court and accused Manik Kapoor was acquitted
by the trial court. Accused Rajiv Gupta, Bhola Nath and Shyam Singh
Rana have been convicted by the trial court u/S. 201 (II) IPC for
causing disappearance of evidence of offence committed by accused.
Aggrieved with the said orders of conviction & sentence dated
2/9/2008 passed by the learned trial judge, the appellant Sanjeev
Nanda preferred appeal bearing Crl. A. No. 807/2008; Rajiv Gupta
preferred appeal bearing Crl. A. No. 767/2008; and Bhola Nath and
Shyam Singh Rana preferred appeal bearing Crl. A. No. 871/2008.
6. First, I will deal with the Crl. A. No. 807/2008 and then I will
deal with Crl. A. Nos. 767/2008 and 871/2008.
Crl. A. No. 807/2008
Arguments of the appellant
7. At the outset of his arguments, Mr. Ram Jethmalani, learned
Senior Advocate with a view to narrow down the controversy very
fairly admitted to the factum of accident and the fact that the
accused No.1 Sanjeev Nanda was at the driving seat of the
offending BMW car bearing registration no. M-312 LYP. The
submission of Mr. Jethmalani was that the accused is an absolutely
honest person and in his very first encounter with the police, he
truthfully and honestly disclosed in his statement recorded under
Section 161 of Code of Criminal Procedure that the said unfortunate
accident in which six persons had died and one was injured had
occurred when he was driving the said vehicle on the said fateful
morning. The contention of the senior counsel for the appellant was
that except for the said disclosure statement of the appellant, the
prosecution had no evidence to implicate the appellant for the
offences charged against him. He fiercely attacked the judgment
of the trial Court on all fronts. As per him, it is a case where
prosecution totally failed to prove its case, the trial judge failed to
appreciate facts in the right perspective, misapplied law, indulged in
self research to give strength to the prosecution theory, assumed the
role of an expert though not being an expert after viewing the
videography of the site, attached undue weightage to the testimony
of one of the most discredited witnesses and displayed his prejudice
against the rich and mighty, blaming the accused for the ills and
misdeeds of greedy lawyers and so on and so forth.
8. The first and foremost attack of the Senior counsel for the
appellant was denial of fair and speedy trial to the accused. As
per counsel, fair trial has been held to include speedy trial.
Commenting on the speedy trial, learned counsel argued that it is a
right granted to every accused under Article 21 of the Constitution of
India and also can be traced to Section 309 of the Cr.P.C. Section
309 is a partial embodiment of the requirement of speedy trial and
any delay in the trial would be a negation of the fundamental right
of the accused to have speedy trial, the counsel contended. In every
enquiry and trial, the proceedings have to be held as expeditiously
as possible and if the law enforcing agency fails to abide by the said
mandate of law, then it is incongruous for the State to expect the
citizens to abide by the law. Giving a detailed account as to how
and in what manner the proceedings before the trial Court were
held, the counsel submitted that based on the narration of day to
day account of the said case the entire delay is attributable to the
prosecution. The trial was sometimes adjourned for weeks and
months together. The trial which easily could have been concluded
within a period of 4-5 years at the most, took more than 9 years,
ruining the entire career of the accused, both educationally and
professionally. Not only the career, the accused also lost his
precious adolescent life. He could have been a free man long ago
and could have rehabilitated himself in the society, had the trial
proceeded in a speedy and expeditious manner.
9. In support of his arguments, counsel for the appellant
laid much stress on the authoritative pronouncements by the
Constitutional Bench of the Apex Court in Abdul Rehman Antulay
Vs. R.S. Nayak and Anr., AIR 1992 SC 1701 and Pankaj Kumar
Vs. State of Maharashtra & Ors., Manu S.C. 7818/2008
10. Counsel for the appellant also referred to the Privy
Council judgment reported in Herbert Bell Vs. Director of
Public Prosecutions & Anr. (1985) A.C. 937. Relevant paras of
the said judgment are reproduced as under:
―Thus, their Lordships accept the submission of the respondents that in general
the courts of Jamaica are best equipped to decide whether in any particular case delay
from whatever cause contravenes the fundamental right granted by the Constitution of
Jamaica. The respondents explained and their Lordships accept, that a particular
current problem arises from the difficulty in securing the attendance of witnesses.
Witnesses absent themselves through ignorance or fear, sometimes influenced by
intimidation, crude or subtle. The courts of Jamaica must constantly balance the claim
of the accused to be tried, *954 notwithstanding the absence of witnesses, against the
possibility, unproved and unprovable in many cases, that the absence of a necessary
witness has been procured or encouraged by someone acting in the interests of the
accused. The courts seek to prevent exploitation of the rights conferred by the
Constitution and to weigh the rights of the accused to be tried against the public
interest in ensuring that the trial should only take place when the guilt or innocence of
the accused can fairly be established by all the relevant evidence. The Board will
therefore be reluctant to disagree with the considered view of the Court of Appeal of
Jamaica that the right of an accused to a fair hearing within a reasonable time has not
been infringed. But since no court is infallible, there remain the power and the duty of
the Board to correct any error of principle and to reverse a decision which, in the
opinion of the Board, could only have been reached by the reliance on some irrelevant
consideration or by ignoring some decisive consideration.
................But their Lordships consider that in the present case the courts fell
into error when they compared the delay which occurred after the order for a retrial
with the average delay which occurs between arrest and trial. The applicant was
arrested in May 1977. His trial was defective. The court of Appeal which heard his
appeal against conviction at the first trial could have upheld the conviction if they had
been satisfied, notwithstanding the defective conduct of the trial, there had been no
miscarriage of justice involved in the conviction. The Court of Appeal quashed the
conviction in March 1979 and ordered a retrial. The members of the Court of a Appeal
must therefore have considered that the applicant might be acquitted. The applicant
having been arrested, detained and submitted to a defective trial and conviction had,
through no fault of his own, endured two wasted years and must for the second time
prepare to undergo a trial. In these circumstances there was an urgency about the
retrial which did not apply to the first trial. A period of delay which might be reasonable
as between arrest and trial is not necessarily reasonable between an order for retrial
and the retrial itself. Far from recognizing any urgency, the Full Court excused delay
which occurred after March 1979 on the ground that it was partly due in their words to
―bureaucratic bungling.
Moreover in the present proceedings the Full Court and the Court of
Appeal not only over looked the significance of the fact that the applicant *955 was
complaining of delay in the context of a retrial, but also over looked the significance of
the fact that on 10 November 1981 the applicant had been discharged. When
Chambers J. discharged the applicant on 10 November 1981 the judge must have been
satisfied and the prosecution does not appeal to have disputed that, whatever the
reasons for the unavailibity of the witnesses at that time, any further delay would be
unfair to the applicant and that he was entitled to be discharged in the light of all that
had happened to him since his arrest in 1977. If that had not been the position, the
prosecution would have sought and the judge might have granted a further
adjournment. If fairness required the applicant to be discharge don 10 November 1981
fairness required that he should not be rearrested in February 1982. Although the
provisions of the Constitution may not have been present to the mind of the judge, his
discharge of the applicant can only be construed in the circumstances of the present
case as recognition of the fact that the applicant had not been afforded a fair hearing
within a reasonable time.
Provided that the courts of Jamaica recognized that a retrial required urgency,
the Board would not normally interfere with a finding of those courts that a particular
period of delay after an order for a retrial did not contravene the constitutional right of an
accused to trial within a reasonable time. But in the present case their Lordships
conclude that the decisions of the courts of Jamaica were flawed by failure to recognize
the significance of the discharge by the judge. In these circumstances their Lordships
will humbly advise Her Majesty that the appeal should be allowed and that the
applicant is entitled to a declaration that Section 20(1) of the Jamaica (Constitution)
order in Council 1962 which afforded the applicant and right to a fair hearing within a
reasonable time by an independent and impartial court established by law has been
infringed.
Their Lordships were reminded by counsel, the Director of Public Prosecutions
and the Solicitor General, of the traditional and invariable adherence by the authorities
of Jamaica to the spirit and letter of the advise tendered by the Board. In these
circumstances, it would not be appropriate to accede to the request by the applicant
that the Board should order that the applicant be discharged and not tried again on the
original or any.....‖
11. Delving upon his arguments on the second limb of the fair
trial, the counsel submitted that besides being denied speedy
justice, the appellant has also been denied a fair trial. Learned
counsel contended that the trial judge may be most honest and
upright, but still may not be fair because of his own philosophy,
ideas and prejudices. Counsel submitted that fairness is not only
possessing physical integrity or honesty , not submitting to
pressures of any kind including extra judicial pressure but, it is much
more.
12. Counsel for the appellant invited attention to Section 20 of the
Jamaica (Constitutional) Order, to buttress his submission that the
said section provides that whenever any person is charged with a
criminal offence then such a person is entitled to fair hearing
within a reasonable time by an independent and impartial Court
established by law. Section 20 of said Jamaica Constitution as
referred in Herbert Bell Vs. Director of Public Prosecutions &
Anr.- (1985) A.C. 937 is referred as under:
―Section 20 sets out the provisions which by Section 13 are afforded to secure
the protection of law and provides, inter alia:
Whenever any person is charged with a criminal offence he shall, unless the
charge is withdrawn, be afforded a fair hearing within a reasonable time by an
independent and impartial court established by law.‖
13. Giving detail of series of instances of judicial unfairness on the
part of the trial judge and the prosecution, which as per the
counsel totally vitiated the entire trial and the final judgment, the
counsel submitted that various observations made by the trial judge
would show that the judgment given by him in the present case is
more clouded by his personal prejudices than backed by his
judicious approach. The entire conduct of the prosecution was
utterly dishonest and the investigation was conducted in a most
unfair and corrupt manner, the counsel submitted. The attention of
the Court was particularly invited to the observations made by the
trial court at pages 122 and 104 of the impugned judgment. The
trial court, it was argued has blamed the appellant for the alleged
unethical acts and nexus between the defence counsel and the
State prosecutor. Counsel for the appellant took strong exception to
the observations made by the trial judge on pages 45, 72,116, 117,
122, 123, 124 of the judgment.
14. Citing further instances of unfair approach of the trial Court,
the counsel submitted that the audience given by the learned judge
to the most dishonest witness Mr. Sunil Kulkarni in his chamber on
11.7.99 when copies of certain letters already addressed by Mr.
Kulkarni to the said judge had been given to the Judge. It is the
grossest contempt of Court when a judge conducting the criminal
trial speaks in private to the prosecution witness and what
privately he would have said was neither known to the prosecution
nor to the accused, the counsel contended. The judge should have
denied such audience to the said witness or in all fairness should
have disclosed the entire conversation having taken place in the
chamber to the prosecution as well as to the defence. It was quite
surprising that the learned judge not only gave him a hearing in the
chamber and then at his instance addressed a letter to the Police
Commissioner. Obviously the learned judge felt convinced by the
interview of the witness and perhaps believed him to be an honest
man who deserved to be protected. The learned judge did not
appreciate that the examination of the witness had commenced on
14.5.2007 and continued till 17 and 29th May, 2007, whereafter, it
was resumed on 11.7.2007. The said audience was given by the
learned judge on 11.7.2007 after the case was adjourned. No
revelation was made by the Judge even on the next date i.e.
29.7.2009 and only a passing reference was made by the judge
about the said meeting of the witness with him, during final
arguments. The learned Judge also called for the judgment of the
High Court in the matter of alleged misconduct of prosecution
counsel Mr. I.U. Khan and defence counsel Mr. R.K. Anand and
allowed his judicial mind to be influenced and moulded by the said
judgment, without affording any opportunity to the accused. The
learned judge has made reference to the said judgment of the High
Court to draw unwarranted inferences. The contention of the counsel
for the appellant was that the accused and his family members
were victims of the said incident of alleged extortion between the
defence counsel and prosecution counsel but they never bribed any
one. Continuing his attack on the unfair trial, counsel further
submitted that the learned Judge could have also exercised his
power under Section 311 Cr.P.C. to call other witness i.e. Gauri
Shankar Tiwari who on electronic media accused Kulkarni of being
a cheat and not being in Delhi on the date of the accident, when
after a gap of about eight years the learned Judge could decide to
recall Mr. Sunil Kulkarni who was a dropped witness, so far
prosecution was concerned. The Court could have easily confronted
Mr. Kulkarni with the version of said Mr. Gauri Shankar Tiwari ,
who disputed his presence in Delhi and called him a cheat.
15. On the unfair trial and on the alleged injudicious approach of
the learned judge and his unwarranted observations in the judgment
affecting the fair trial, counsel placed reliance on the following
judgments.
(1) Datar Singh Vs. State of Punjab-(1975) 4 SCC
(2) Sharad Birdhichand Sarda Vs. State of
Maharashtra-(1984) 4 SCC 116 and
(3) Chandran @Surendran & Anr. Vs. State of
Kerala-(1991) Suppl. 1 SCC 39.
16. Counsel for the appellant was no less vociferous on the
conduct of the prosecution who according to him was equally guilty
for not ensuring fair trial to the accused. The prosecution in a
most surreptitious manner did not produce the PCR messages with
regard to the incident in question depriving the accused to his
unbridled right of fair trial. The case of the prosecution is that PW-1
Hari Shankar who was working as an attendant in the petrol pump
was the first one to inform the police about the said incident. One of
the injured person Mr. Manoj PW-2 was taken in the PCR vehicle
referred as Eagle-11 where three police officers PW-24, PW-34 and
PW-36 were present and were sending the messages through
wireless. These police officials also flashed the oral statement of one
victim PW-2 Mr. Manoj who in his statement stated that he was not
able to tell about the said incident and about the accused who was
driving the offending vehicle. These police control room messages
as per the counsel for the appellant were deliberately not filed by
the prosecution along with the charge sheet and not made part of
the FIR, with the sole objective to misdirect the investigation so as
to implicate the appellant for a higher degree of crime which he
never committed. These documents ought to have been disclosed by
the prosecution to the defence and they should have been formed
part of the challan and that suppression of such vital documents on
the part of the prosecution is in itself a circumstance sufficient
enough to vitiate the entire trial. It is a matter of record that these
PCR messages were placed on record by the prosecution after an
application to this fact was moved by the appellant and they were
proved on record, almost at the stage of conclusion of trial. The trial
court also dealt with the PCR messages selectively as it ignored the
material evidence based on these messages, which were of more
significance between 5.23 A.M and 5.27 A.M.
17. Placing reliance on Rule 16 of the Bar Council of India
Rules, the counsel for the appellant contended that said rule has
brazenly been violated by the prosecutor and the State in this case
before the trial Court. For proper appreciation of the argument of
the counsel for the appellant, Rule 16 is reproduced as under:
―16. An advocate appearing for the prosecution of a criminal trial shall so
conduct the prosecution that it does not lead to conviction of the innocent. The
suppression of material capable of establishing the innocence of the accuse shall be
scrupulously avoided.‖
18. Counsel further submitted that although Britain has no
written Constitution but they have signed European Convention &
Human Rights which clearly mentions that every accused person is
entitled to a fair trial.
19. Counsel for the appellant also placed reliance on Rule A-252 of
the Attorney General Guidelines in support of his arguments. The
same is referred as under:
―A-252-Generally, material can be considered to potentially undermine
the prosecution case if it has an adverse effect on the strength of the prosecution case.
This will include anything that tends to show a fact inconsistent with he elements of the
case that must be provided by the prosecution. Material can have an adverse effect on
the strength of the prosecution case:
by the use made of it in cross-examination; and
by its capacity to suggest any potential submissions that could lead to ;
the exclusion of evidence;
a stay of proceedings;
a court on tribunal finding that any public authority had acted incompatibly with the
defendant's right under the ECHR.
37. In deciding what material might undermine the prosecution case, the
prosecution should pay particular attention to material that has potential to weaken the
prosecution case or is inconsistent with it. Examples are:
i. any material casting doubt upon the accuracy of any prosecution
evidence;
ii. any material which may point to another person, whether charged or
not (including a co-accused) having involvement in the commission of the offence;
iii. any material which may cast doubt upon the reliability of a confession.
iv. any material that might go to the credibility of a prosecution witness;
v. any material that might support a defence that is either raised by the
defence or apparent from the prosecution papers. If the material might undermine the
prosecution case it should be disclosed at this stage even though it suggests a defence
inconsistent with or alternative to one already advanced by the accused or his solicitor:
vi. any material which may have a bearing on the admissibility of any
prosecution evidence.
It should also be borne in mind that while items of material viewed in isolation
may not be considered to potentially undermine the prosecution case, several items
together can have that effect.
38. Experience suggests that any item which relates to the defendant's
mental or physical health, his intellectual capacity, or to any ill treatment which the
defendant may have suffered when in the investigator's custody is likely t have the
potential for casting doubt on the reliability of an accused's purported confession, and
prosecutors should pay particular attention to any such item in the possession of the
prosecution.‖
20. Counsel thus submitted that fair trial is a trial which includes
fair disclosure of any material which may be relevant for
investigation so as to give a fair chance to the defence to establish
his innocence in the criminal trial. Counsel thus urged that fair trial
in this case has been denied not only by the trial judge but equally
by the prosecution, and therefore, the findings given by the learned
Judge in such an unfair trial cannot be sustained in the eyes of law.
In support of his arguments, counsel for the appellant placed
reliance on the judgment of the Apex Court in Datar Singh Vs.
The State of Punjab, 1975 (4) SCC 272. Relevant para of the
same is reproduced as under:
―3. It is often difficult for courts of law to arrive at the real truth in
criminal cases. The judicial process can only operate on the firm foundations of actual
and credible evidence on record. Mere suspicion or suspicious circumstances, cannot
relieve the prosecution of its primary duty of proving its case against an accused person
beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or
prejudice against a person accused of the very reprehensible crime of patricide. They
cannot even act on some conviction that an accused person has committed a crime
unless his offence is proved by satisfactory evidence of it on record. If the pieces of
evidence on which the prosecution chooses to rest its case are so brittle that they
crumble when subjected to close and critical examination so that the whole
superstructure build on such insecure foundations collapses, proof of some
incriminating circumstances, which might have given support to merely defective
evidence cannot avert a failure of the prosecution case.‖
21. The next submission made by Mr. Ram Jethmalani Senior
Advocate for the appellant was with regard to the prosecution
evidence and contended that except the disclosure statement of the
appellant , which in any case is not admissible, the prosecution
miserably failed to prove their case against the appellant by any
other reliable evidence. The focus of attack of the counsel for the
appellant was primarily on the three witnesses who as per the
prosecution were key witnesses, the same being PW-1 Mr. Hari
Shankar, PW-2 Mr. Manoj and court witness Mr. Sunil Kulkarni.
22. PW-1 Mr. Hari Shankar was declared a hostile witness. He
was an employee of petrol pump known as Car Care Centre, Lodi
Road. He testified that one vehicle was coming from the side of
Nizamuddin. He also testified that in the accident some person fell
down on the road and died after receiving injuries. He also testified
that he was so frightened after seeing the accident that he
immediately went back to petrol pump. As per the counsel for the
appellant, false story was put into the mouth of this witness by the
prosecution as clearly he was not a witness to the actual incident.
Admittedly, he came on the road after hearing the sound of „thud‟
which would mean that the accident had already taken place and
sound of „thud‟ was heard by him after the accident. The deposition
of this witness before the court clearly goes to show that false story
was put into his mouth by the prosecution whereas the fact of
accident was clearly not known to him. His deposition is that he was
not a witness of the actual impact or anything prior thereto.
Certainly, the man was not standing out on the road but was at the
petrol pump and it must have taken him at least one minute time to
come out on the road after hearing the said sound. The use of
expression „perhaps‟ by this witness stating that „perhaps it has
caused the accident‟ could not have been given by a person who was
a witness to the accident. Use of expression „perhaps‟ thus itself
puts the credibility of the witness to question. However, in
desperate need of finding a witness the said PW-1Mr. Hari Shankar
was made an eye witness by the prosecution. Little did the
prosecution realise that what made the said witness to come to the
site of the accident was a noise which was created because of the
impact of the accident, therefore, such a witness could not have
been a witness to the accident, prior to the collision or at the time
of the impact. The FIR in the present case was lodged at 7.10 A.M.
in the morning of 10.1.99 and as per the Rukka, sent by S.I. Kailash
Chand no witness was available which fact would show that even
Hari Shankar was not present there at the site. Counsel thus
submitted that this witness who completely retracted from his
statement recorded under Section 161 of the Cr.P.C. would clearly
show that his statement was falsely recorded by the police under
Section 161 Cr.P.C., in desperate need to create an eye witness of
the accident.
23. Second important witness as per the prosecution was PW-2 Mr.
Manoj Malik who in his deposition stated that in the month of
January 1999 he was staying at CGO Complex, Lodi Road and was
working there at the Dhaba of one Kailash. He testified that he
was going towards the railway station along with his two friends
when they were stopped by the police at the site of the incident.
He further testified that he was standing in the middle of the road
when one truck had hit them due to which three police officials and
two of his friends were killed while he himself got injured. As per
the counsel for the appellant, the conduct of the prosecution in the
case of PW-2 Manoj Malik is much more objectionable than their
dubious conduct in the case of PW-1 Hari Shankar. This was the
witness who was injured but was conscious when taken in PCR Van
and upon inquiry about the accident at 5.27 A.M. by PW-36 he
clearly stated that he did not know anything about the accident.
This revelation by PW-2 Manoj Malik at 5.27 A.M. was deliberately
suppressed by the prosecution and he was made an eye-witness by
the police not realizing that already he had given the said
statement to the Police Control Room officials. In his deposition
this witness mentioned about the existence of fog and to that
extent, the evidence of the hostile witness would be admissible as
per the settled legal position, counsel for the appellant contended.
24. This part of the evidence of PW-2 stating presence of the fog
is also corroborated from the evidence of meteorological department
adduced through PW-2 deposing about the presence of mist in the
early morning of 10.1.1999, senior counsel contended. Counsel for
the appellant further stated that due to the presence of the fog as
referred to by PW-2 in his deposition and also by the meteorological
department the said witness PW-2 could not have noticed the
offending car approaching at a fast speed towards the place of
accident due to the poor visibility. Counsel submitted that this
witness PW-2 who could be the only eye witness to the exact
circumstances leading to the accident, once having said to the police
officials of PCR van that he was not aware of anything about the
accident, inevitably leads to the only conclusion, that he could not
see the accident either due to the presence of the fog or on account
of the impact of high powered lights of the BMW car. Counsel thus
submitted that statements of said two witnesses under Section 161
Cr.P.C. were nothing but bundle of lies recorded at the instance of
the police and the said statements were also in complete
contradiction to the messages recorded by the PCR officials.
Counsel for the appellant thus submitted that the entire evidence
was fabricated by the police with a view to falsely implicate the
appellant for a crime punishable for non-bailable offence which he
had never committed. Counsel for the appellant drew attention of
this Court to the depositions of PW-34 and PW-36 who in their
depositions committed an act of perjury by falsely stating that the
said witness PW-2 Manoj Malik had told them while being carried in
the PCR van that he saw one big black car coming from the side of
Lodi Hotel at a very fast speed being driven in a zig-zag manner and
on seeing such car, he had shouted „Bachaao-Bachaao‟ but the car
ran over the persons standing at that place. The relevant portions of
statement of PW-34 Constable Shadi Ram is reproduced below:
―...............Then we took that injured whose name was disclosed by
that injured himself on way ot hospital as Manoj who was conscious at that time. On the
way incharge Davinder Singh had asked that injured Manoj as to what had happened
and then Manoj told him that he was going to Nizamuddin Railway Station to leave his
companion Gulab at the station. Manoj also told that two other persons were also
going with them and when they reached in front of car care centre some police men
were present there. He further told that in charge that at that time one black coloured
car of big size came and had stuck against them and that car had come at a very fast
speed. (objected to by the defence council as being here say as Manoj himself has
been examined already and he has not claimed so). Manoj was then taken to the
AIIMS hospital. After getting Manoj admitted in AIIMS we came back to the spot that
is place of the incident. At the spot Inspector Jagdish Pandey and SHO had also
reached when we came back from AIIMS.‖
25. The relevant portions of statement of PW-36 ASI
Devender Singh is reproduced below:
―...............On the way I asked Manoj as to with what he had met with the accident. He
told me that one big black coloured car had come from the side of Lodhi Hotel at a very
fast speed and which was being driven in a gick zack manner and on seeing that car
being driven in that manner he had shouted ‗Bachao-Bachao' but that car was driven
over them who were standing at that place and he informed me that one Gulab Singh of
his Village and one other person from his Village were with him at the time of accident
besides four other persons....‖
26. The third important witness as per the prosecution to nail
the appellant is the Court witness Mr. Sunil Kulkarni. With all the
vehemence at his command Mr. Jethmalani, raised a challenge to
the credibility and creditworthiness of the said witness. Mr. Sunil
Kumar was introduced as one of the key prosecution witnesses
who as per the prosecution witnessed the accident himself. He in
fact was the only witness who could give detailed account of the
exact sequence of events which led to causing the said accident. His
statement under Section 161 Cr.P.C. was recorded by the police on
15.1.99 and by the Metropolitan Magistrate under Section 164
Cr.P.C. on 21.1.99. However, this witness was dropped by the
prosecution itself on the ground that he was showing undue anxiety
for his early examination as a witness and also because of the fact
that the said witness leveled serious allegations against the police in
his application before the trial Court on 13.9.99. For better
appreciation of the facts, relevant portion of the said order dated
30.9.99 is reproduced as under:
―PW Sunil Kulkarni who was bound down on the last date is present
along with Shri B.R. Handa Senior Advocate Shri I.U. Khan, Spl. P.P. however has
today submitted that on instructions from the State he gives up PW Sunil Kulkarni
considering the manner in which he has been appearing in court and has been
showing his anxiety for his early examination as a witness which is quite unusual and
also in view of the averments made by this witness in his application which was filed by
him on 13.9.99 leveling allegations against police. Mr. Khan has submitted that there
is full justification in the circumstances, in which the witness has been conducting
himself for the decision taken by the prosecution to drop him and no adverse inference
should be drawn against the prosecution for this decision. In view of the submission of
Mr. Khan the witness Sunil Kulkarni stands discharged.―
27. So far the act of the prosecution in dropping the said
witness was concerned, no fault can be found with the same, counsel
for the appellant submitted but to recall such a witness that too
by the Court itself after a gap of about eight years was no doubt an
astounding fact on the earth, the counsel contended. Vide order
dated 19.3.2007, the trial Court recalled its earlier order to summon
Sunil Kulkarni as a Court witness, and pursuant thereto his
examination started on 17.5.2007 and continued till 11.7.2007. The
objectionable meeting of the witness with the Court took place on
11.7.2007 and none of the parties were apprised about the
deliberations of the meeting having taken place between the Court
and the star witness of the prosecution who was earlier dropped due
to unusual circumstances. The proceedings of such meeting
remained under wrap and came to be known to the appellant only
during the final hearing. One of the serious objections taken by the
counsel for the appellant was about the said closed door meeting
between the Court and the prosecution witness. As per the counsel
for the appellant, this itself vitiates the trial, besides being an act
of contempt of Court. The essence of fair trial lies in open public
trial, on which our adversarial judicial system rests and no trial
can take place at the back of the parties, the counsel contended. It
might be possible that many observations made by the trial Court
may be on account of the prejudice caused in the mind of the Court
in view of the unknown conversation between the said witness and
the presiding judge of the Court. It is only under certain
circumstances, a hearing in camera is permissible, but not
otherwise, counsel contended. Instead of initiating contempt
proceedings against the said witness the meeting had struck a very
sympathetic chord in as much as the learned judge felt inclined to
direct police protection to him. Public trial and an open hearing to
the public at large as well as to the parties are the essential
features of our jurisprudence and any deviation from such
established procedure will certainly vitiate a trial, counsel for the
appellant contended.
28. Mounting further attack on the deposition of the said
Court witness, counsel submitted that his entire deposition is full of
falsehood and self concoctions. He checked out from his hotel on
9.1.99 at about 12.30 P.M., disclosing the place of destination as
„Solan‟; after landing in Delhi on 7.1.99 by Goa Express to meet
some Minister of State in connection with a vigilance case of his
friend. He initially stayed in a hotel namely „Ajanta‟ in Phaharganj
and thereafter shifted to one Shiva Hotel. Instead of going to „Solan‟
he met one of his friends, Mr. Sushil Kataria at New Delhi railway
station and had diner with him, and was free from the dinner by
3.45 A.M. in the morning of 10.1.99. After the said dinner both of
them sat near Shiv Mandir, near Maharishi Raman Marg and kept
sitting around a bonefire lit by three wheeler drivers. Since Mr.
Kulkarni could not get any three wheeler he started walking on foot
towards Nizamuddin railway station so as to hire some auto
rickshaw to reach his hotel. As he was trying to find out some three
wheeler, he was going by the side of the divider, when he saw a
group of people who were standing in the middle of the road talking
to each other. At that very point of time he saw very heavy lights of
some vehicle coming from the opposite direction, but could not see
much because of the powerful lights. As per the witness the said
vehicle, which was a black car hit those people who were standing
on the road and as a result of the same, few persons were flung in
the air and the remaining fell by the side of the car. He heard the
sound of application of brakes and thereafter, heard one more
sound, which appeared to him to have been caused after being hit by
the same car. At that time, he was 62-70 feet away from the spot.
He further saw 3-4 persons coming out of the said car to see the
damage caused to the car. All the three persons sat in the car again
reversed the car a bit and then sped away from the right side of the
witness. This witness tried to wake up the persons sleeping in the
petrol pump, but nobody woke up from their sleep. He could not see
PCO or telephone in the vicinity. After walking some distance he got
an auto rickshaw, hired the same and went to the Nizamuddin
railway station. He also tried to dial 100 number from the railway
station but could not succeed because all the five public telephones
lying installed at the railway station were not in a working condition.
He boarded Chattisgarh express and went to Bhopal to meet another
person with the name of Kataria. He came back after 2-3 days to
Delhi and made a telephonic call to Mr. Amod Kanth, Joint
Commissioner of Police or perhaps to DCP Mr. Srivastava. The said
Joint Commissioner Mr. Amod Kanth immediately called him to
Police Headquarter where he narrated everything to Mr. Kanth. Mr.
Amod Kanth directed the witness Mr. Kulkarni to meet DCP
Srivastava. The witness was given accommodation to stay in the
police station Lodi Colony itself. The next day, in the morning he
was shown the BMW car stationed in the Lodi Colony police station.
His statement under Section 161 Cr.P.C. was recorded by the police.
He was produced by the police in the Court and his statement
under Section 164 Cr.P.C. was recorded by the Metropolitan
Magistrate. The police had arranged the TIP but the same did not
take place.
29. Following objections were raised by the counsel for the
appellant to discredit the deposition of the said Court witness Mr.
Kulkarni as borne out from his written submission:
"1. If he was an eye witness he would wait for the police and not leave
for Bhopal he had no urgent business of any kind.
2. Is it conceivable that all alone he tried to move the injured and did
not shout for held. He would at least talk to Manoj and another who were alive.
He would wait for a passing car and summon help.
3. Came to meet a minister in connection with a vigilance case but
then meets a friend to start a mushroom business. But on the 9th he has gone to
New Delhi Station. Obviously he wanted to leave Delhi. But he met Sushil
Kataria and abandoned the idea of travelling. From 1 P.M. what did he do till
dinner time? No interrogation, no evidence.
4. How dinner till 3.45 A.M. Both sat on a public road warming
themselves with a free bon fire lit up by other poor rickshaw drivers.
5. Then he is alone, does not go with his bosom friend, nor did that
fellow invite him.
6. Suddenly he wants rickshaw to reach his Hotel. Which hotel he
had checked out.
7. Went to the Petrol Pump and tried to wake up persons sleeping
there but did not succeed.
He did not meet or see Hari Shankar PW-1
8. The light of the car prevented him from seeing clearly.
9. Ultimately gets a rickshaw but does not go to the hotel. Why did
he go to station-to leave for Bhopal to meet whom-Again Kataria.
10. Stayed in Bhopal for two-three days. No explanation of what he
did there with or without Kataria.
11. Returned to Delhi called police officers Amod Kanth DCP
Srivastava. Called yet no statement recorded. Instead police sent him to the spot.
There he met DCP Vivek Gogia, Vimlesh Yadav and IO Kailash chand. They
confirmed his story from the scene and their record. No statement recorded.
12. Slept at the police station. No statement next morning. They
showed him the car BMW.
13. Police were concocting a false case. Exclude Sidharth Gupta.
He never knew any names. (619 & 621)
Name of Sanjeev brought in under pressure.
14. 164 statement of PW 56/3. Some parts are under pressure. He had
seen three come out of the car but mentioned only 2 in the statement.
15. Admits pressure of police upto 164 statement being recorded.
16. Persons were standing in the middle of the road.
17. Denied his statement of 31.3.99 Ex. CW1/PB.
18. 11.7.2007-shown site plan.
19. High speed but not excessive.
20. Luggage of the 6 victims was scattered on the road.
Concocted story. Whose luggage? Why six? Where is it mentioned.
30. Based on the above objections, the counsel for the appellant
submitted that Mr. Sunil Kulkarni had dinner with one Mr. Kataria
which went on till 3.45 A.M., without knowing where the dinner had
taken place, he sat around the bonfire along with three wheeler
drivers but could not get a three wheeler so as to reach back to the
hotel. He is the only witness who talks of reversal of the car, which
is not even the case set up by the prosecution in their substantive or
non-substantive evidence. If the evidence of this witness is believed
who deposed that none of the employee of the petrol pump had
woken up, then the evidence of PW-1 Mr. Hari Shankar goes, whose
presence being an employee of the petrol pump located near the site
of the accident, cannot be of any doubt. The evidence of Mr. Hari
Shanker PW-1 appeared to be more natural as he was on duty at
the petrol pump and he heard the sound of impact and thereafter
rang up his employer who in turn contacted the police the senior
counsel contended. The prosecution failed to prove that no public
telephone was available in the said vicinity or five telephones
installed at the railway station were out of order or that he could
not come across even a single constable at the railway station. The
prosecution also failed to give any reason as to why the evidence of
the said witness was not immediately recorded when he had
approached the Joint Commissioner of Police on his return from
Bhopal and enough time was consumed by the police to record his
statement on the lines suggested by the police, the senior counsel
argued. The delay on the part of the police in recording his
statement clearly shows that the fabrication was in progress to
record the statement of the said Court witness in a manner which
suited the prosecution. The witness also failed to explain as to why
he had gone to Bhopal although he was destined to go to Solan and
why from Bhopal also necessary information was not given by him
about the said incident.
31. Continuing with his fierce attack on the credibility of the said
witness Mr. Jethmalani, learned Senior Advocate submitted that if
the entire conduct of the said witness is taken into account, then one
cannot but conclude that he was not an eye witness to the said
incident. As per his deposition he had tried to shift the injured to
the divider, and if it is accepted as correct then why there was no
trace of blood on his clothes and in fact why his clothes were not
seized by the police; why the Joint Commissioner of Police Mr. Amod
Kanth did not record the statement of Mr. Kulkarni immediately
when he met him at the police headquarter. Every police official
owes a legal duty to record the statement of any witness without any
loss of time. Counsel for the appellant placed reliance on the
judgment of Maruti Rama Naik Vs. State of
Maharashtra,2003(10) SCC 670 in support of his argument.
Counsel thus submitted that the statement of said witness recorded
under Section 161 was in violation of principles envisaged under
Section 162 itself as his statement was recorded after a delay of 2-3
days when he was under complete control of the police. The police
wrongly directed him to give an application in writing under his
signatures. Counsel further submitted that it is a settled legal
position that if witness‟s signatures are taken on Section 161
statement then the same is certainly a breach of Section 162 Cr.P.C.
The signing of the statement by the said witness and the same
having been accepted by the prosecution itself vitiates the testimony
of the said witness. In any event two admissions were made by the
said witness also on which the defence has placed reliance. Firstly,
in his deposition he had stated that the light of the car prevented him
to see clearly. He had admitted that the police pressurized him to
exclude certain names and such conduct of the police would clearly
show that there was a clear attempt on their part to set up a false
case against the accused. He had also admitted that at the time of
recording his statement under Section 164 Cr.P.C. he was under
pressure. Counsel also submitted that the testimony of the witness
was totally untruthful when he says that group of persons were
standing in the middle of the road and their luggage was also
scattered on the road. Counsel thus urged that to rely on the
testimony of such a witness would be the most hazardous thing to
do. In support of his argument counsel for the appellant placed
reliance on State of U.P. Vs. Babul Nath (1994) 6 SCC 29 and
Baij Nath Prasad Vs. Madan Mohan Das AIR 1952, Allahabad
108.
32. Even when he arranged the sting operation he was trying to
find out how much money he would be able to extract. It is a fact on
record that so far the appellant accused is concerned, the
statements of PW-1 and PW-2 were recorded when he was in jail.
Even the conversation in sting operation is with regard to the
attempts being made to extract money but in fact nothing was paid
by the appellant or on his behalf by anybody else.
33. The next ground of challenge made by the counsel for the
appellant pertains to wrongly connecting the appellant with the
commission of offence punishable under Section 304 Part-II Indian
Penal Code on the premise that the appellant was driving the
offending vehicle in a highly drunken state of intoxication beyond
reasonable limits. As per the medical report produced on record, the
appellant was found to have 0.115% w/v, the quantity of alcohol in
his blood. No evidence was produced on record to prove that the
accused was intoxicated in the sense in which intoxication is
understood under Section 85 of the Indian Penal Code, nor in the
sense of having his ability to control the motor vehicle getting
substantially impaired as a result of intake of alcohol in terms of
requirement of Section 185 (1) (a) of the M.V. Act. Section 185(1) (a)
of the Motor Vehicles Act prescribes artificial limit beyond which
one must not go, submitted learned Senior counsel. Section 185 (1)
(a) was introduced after 1994 amendment and prior to the said
amendment even the consumption of one sip of alcohol was made
punishable for driving the vehicle. This small consumption was
found by the legislature totally reasonable and it was thought that
the people must be allowed to drive after consuming a little quantity
of alcohol which in the said amendment they put it at 30 mg in 100
ml of blood. The said Section 185 (1) (a) also introduced a test for
analyzing the alcohol content in one‟s blood through the mechanism
of breath analyzer. No charges against the appellant were framed
either under Sections 183, 184 and 185 of the Motor Vehicles Act,
but to determine as to whether the appellant had consumed the
alcohol in excess of the quantity prescribed, the recourse has to be
taken to Section 185 (1) (a) of the M.V. Act, the counsel for the
appellant contended. Once the Statute itself provides a particular
method or mechanism to be used to ascertain the intake of alcohol,
then no other method or mechanism could be deployed by the
prosecution to find out the quantity of intake of alcohol in the body
of the appellant at the time of the accident. Counsel for the
appellant placed reliance on the decision of the House of Lords in
Rowlands Vs. Hamilton (1971) 1 AER 1089 and Gumbley Vs.
Cunningham 1989 (1) AER 5 in support of his arguments. The
said decision of the House of Lords is in conformity with the
principle laid down by the Privy Council in Nazir Ahmed Vs. King
Emperor AIR 1936 PC 253, which was followed by our Supreme
Court in State of U.P. Vs. Singhara Singh, AIR 1964 SC 358.
Counsel submitted that the mechanism of test provided under the
Statute was only to be adhered to by the prosecution and not to
any other test disregarding the mandate of the Statute. Counsel for
the appellant further submitted that even if the presence of
alcohol determined through inadmissible evidence of blood test is
taken as correct, then, admittedly the same was found at 0.115%.
The presence of quantity of the alcohol as per the medical test again
cannot be accurate because out of the same 0.020 has to be
deducted on account of the presence of non-alcoholic substances
like aldehydes and Ketones in every human body. This has been
proved on record in defence evidence through examination of an
expert as well as with the help of text books on medical
jurisprudence. Even no reliance can be placed on the report of the
blood samples as admittedly out of two samples, taken on 10.1.99,
one sample was sent for blood grouping but the Government
laboratory reported that the analysis was not possible because the
blood was found to be putrefied. In any event of the matter it was
for the prosecution to have established in evidence to remove the
said doubts and prove the fact that the appellant had consumed the
liquor in excess than the laid down limit of presence of 30 mg in
100 ml of blood under Section 185 (1) (a) of the M.V. Act. In
criminal case by adopting the principle of back tracking, one can
find that how successfully the prosecution has been able to
establish its case. In a criminal trial, any incriminating
circumstance has to be established with the help of evidence and
evidence means such evidence which can be contradicted by the
defence. Reference is made to the decision of the Apex Court in
Pritam Singh Vs. State of Punjab, AIR 1956 SC 415. The
accused in the present case was examined in the hospital at 12.29
P.M. on 10.1.99 and the symptoms described by PW-10, Dr. T. Milo
did not establish any kind of intoxication and rather absence of
intoxication could be easily made out from his symptoms. The
appellant was found coherent in his speech, absolutely oriented and
cooperative and these findings of Dr. T. Milo were enough to show
that the appellant was not intoxicated at least above the level of
presence of alcohol provided under Section 185 (1) (a) of the M.V.
Act. In this regard counsel for the appellant invited attention of this
Court to the medical certificate Ex. PW-10/G. The appellant
accused was in his proper senses is also borne out from the fact that
at 7.00 A.M. in the morning of 10.1.99, the police had recorded his
long confessional statement and trouble free statement given by him
clearly proved sobriety on the part of the appellant and absence of
any intoxication in his body. Even in the examination of the
appellant under Section 313, no question was put to him to suggest
that he was excessively drunk on that date, which further proves
the fact that intake of the alcohol by the appellant was much below
the prescribed limit. Another strong factor to show that the
appellant was quite sober and was in his full senses is the fact that
he could drive the car for more than 16 k.m. without any hassle or
causing any kind of mishap on its way prior to reaching at the place
of accident. The appellant also applied the brakes immediately
and stopped the car within a few meters and this again shows
complete orientation of the mind of the appellant. In support of his
argument, counsel for the appellant placed reliance on Narayanan
Nair Vs. State, AIR 1952 Tranvancore (Cochin) 239, Bachubhai
Hassanalli Karyani Vs. State of Maharashtra 1971 (3) SCC
930 and Rajavalse M. Vs. State 1999 Crl.LJ. 58(Kant). Counsel
for the appellant further submitted that the presence of quantity of
alcohol of 0.115% is absolutely near the safety point and that the
trial Court committed an error by holding that the same was beyond
the prescribed limit. Counsel thus submitted that with the presence
of the said quantity of alcohol, the appellant could not have been
considered a person excessively drunk for which much more vital
symptoms were required to be proved by the prosecution.
34. Finding fault with the judgment of the learned trial Court,
Mr. Jethmalani, counsel for the appellant pointed out that many
judgments of the Apex Court and other courts were cited before
the learned trial Court, but the learned judge misconstrued the
rationale and import of those judgments. The learned trial Court
distinguished them on the ground that none of those cases pertained
to drunken driving. Counsel further submitted that there is no
breach of law if a person drives a vehicle after consuming liquor
because the law permits to drive with intake of liquor up to certain
amount of limit. It is only when one takes something more than the
required limit then one can be held guilty of committing breach of
legal duty punishable under Section 185 M.V. Act, but even taking
the liquor in excess, above the prescribed limit under Section 185
M.V. Act in itself would not render the act as intentional, deliberate
or willful, as illegally held by the learned trial Court and even
otherwise drunkenness has not been established by the prosecution
in the present case, the counsel contended.
35. The next submission of the counsel for the appellant was
against the alleged perverse finding of the trial court to hold that the
vehicle was being driven by the appellant recklessly and at an
excessive speed. As per the counsel for the appellant, it is well
recognized fact that the oral evidence of witnesses on the issue of
„speed‟ whether given by the bystanders or passengers travelling in
the vehicle is notoriously unreliable. Speed of the vehicle involved
in the accident essentially has to be determined from circumstantial
evidence especially scientific evidence and not on the basis of oral
evidence. The learned trial judge failed to apply the principles laid
down by the Apex Court in this regard in Jagdish Chander Vs.
State of Delhi 1973 (2) SCC 203 and State of Karnataka Vs.
Satish (1998) 8 SCC 493. The Apex Court in the said case held
that to substantiate the charge of rash driving, investigation should
be conducted on scientific lines. For instance, there should be
examination of the skid marks of the vehicle on the road and
secondly, the position of victims. The Apex Court also observed that
the witnesses who deposed that they saw the accident in question
need to be carefully scrutinized because such witnesses only
observed the incident after their attention was drawn to the impact
resulting from the collision. The statements of such witnesses to a
large extent are influenced by what they imagined must have
happened and not from what they have practically seen happening.
Counsel thus submitted that most important piece of circumstantial
evidence are skid marks. Counsel for the appellant referred to page
998 of the Forensic Science in Criminal Investigation and trials by
Dr. B.R. Sharma, 4th Edition paragraph 16.6.3. The author in the
said book has also dealt with the concept of reaction time. The
reaction time is the time which the driver takes to apply the
brakes fully after he perceives the necessity to apply brakes. This
reaction time as per the author varies with different individuals but
0.5 to 0.8 seconds is a normal reaction time. Giving example, the
counsel submitted that if the vehicle is moving at a speed of 60
K.M. per hour, the distance travelled in reaction time would be 8 to
15 meters. The FIR in the present case shows the skid marks of the
car to a distance of 38 to 40 ft. which means approximately 12
meters. According to the graph of skid marks describing length in
meters for the said reaction time corresponding to speed in
kilometer, the speed in the facts of the present case would come to
around 42 k.m. per hour. Such a speed on a lonely road at 4.30
A.M. on the wintry morning by no means can be considered either
excessive or dangerous or reckless. Even if the conclusion
regarding the skid marks is corroborated by the evidence of sole eye
witness Mr. Sunil Kulkarni whom the trial court had believed, is
taken into account, he also nowhere stated that the speed was
excessive, rather he stated the same was high only. The
evidence of two other witnesses PW-1 and PW-2 also does not
support the theory of excessive speed to carry the prosecution case
any further. In the impugned judgment the learned Judge concluded
that the car was at an extremely high speed when it hit the
unfortunate persons. He comes to this conclusion by his own
inference from the facts mentioned in FIR that dead bodies were
strewn over a large area. No expert had said this and the learned
judge had converted himself into an expert which is against all
judicial norms. The forensic laboratory report dated 21.7.99 placed
on record before the trial court clearly states that no facility is
available with the said laboratory to determine the speed of the
vehicle with the help of mechanical devices or instruments. Counsel
for the appellant drew attention of this court to the observations
made in the said report, which are reproduced as under.
"(b) Facilities do not exist to determine the co-efficient of friction of the road
hence speed of the vehicle could not be determined."
36. This admission on the part of the prosecution is a clear pointer
to the fact that no scientific evidence was available to prove the
speed.
37. Counsel for the appellant also contended that the learned
Judge assigned to himself the role of expert by examining the video
tape as after viewing the said video, the learned trial Court could
notice the marks demonstrating reversal of the car. As per the
counsel for the appellant marks of reversal are never disclosed by
the skid marks. The skid marks are caused due to the sudden
application of brakes and therefore, they appear because of the
friction, however, when you reverse the car you do not produce
such marks as are caused while moving forward after application of
brakes. Counsel thus submitted that the learned Judge became an
expert to draw a conclusion after viewing the video that the
vehicle had reversed after hitting the victims to support the theory
which was not even propounded by the prosecution. The learned
Judge could see even what the prosecution did not see and for which
even the defence got no opportunity to contradict or destroy. It is
a disclosure by the judge himself which came to the notice of the
defence only after reading the judgment. The counsel also pointed
out that FIR mentions that the skid marks are 38 to 40 feet, this
clearly shows carelessness on the part of the investigating agency as
they did not even measure the said marks rather estimated the same.
He urged that where allegations of high speed are made, the least
that was expected of investigating agency was to give accurate
length of skid marks.
38. Counsel for the appellant further found fault with the
observations of the learned trial judge in finding the speed of the
vehicle excessive, based on the report of the meteorological office
wherein they have disclosed the visibility of one thousand meters
at 5.30 A.M. on the morning of 10.1.99. The contention of the
counsel for the appellant is that this is a misreading of the
certificate of the meteorological office by the Court, as the said
certificate clearly speaks of the presence of „mist‟. Counsel further
submitted that presence of „mist also gets corroborated from the
statement of Mr. Kulkarni who also deposed about the presence of
fog on the said morning of 10.1.99. Counsel placed reliance on
page 45 of Observer‟s Handbook (Meteorological Office, London)4th
edition in support of his argument that thousand meters visibility is
considered as poor visibility. This distance of one thousand meters
can be covered in a few seconds i.e. around 90 seconds if the car is
moving with a velocity of 40 k.m. per hour.
39. The learned judge committed another grave error by holding
that at the time of the offence it cannot be said that the accused
could not have seen the few persons standing on the road, the
counsel contended. The Court also wrongly observed that after
being hit by BMW car, three persons got entangled in it but still
the accused kept on driving the vehicle for quite a long distance.
The trial court failed to appreciate that the accused was not
reasonably expected to know that at that hour of the morning that a
group of persons would be present in the middle of the road and
amongst those would be three policemen examining the luggage of
the others. The court also failed to note that the accused had
immediately applied brakes and stopped the car. Counsel further
submitted that it was the duty of the learned judge to ask himself as
to why neither the policemen nor the other private persons saw the
car with lights on, coming towards them from Nizammudin side so
that they could take some steps to avoid the accident. Even after
the driver had noticed the presence of the persons standing on the
road, it is quite obvious and natural that the brakes did not operate
immediately and the vehicle must have covered some distance before
finally coming to a halt. To support his argument, counsel for the
appellant derived support from the decision of the Apex Court in
Mahadeo Hari Lokre Vs. State of Maharashtra, 1972 (4) SCC
758, wherein the Apex Court set aside the conviction order under
Section 304-A after a bus driver ran over the pedestrian, causing
death because the pedestrian suddenly crossed the road, without
taking note of the approaching vehicle. The Apex Court in the facts
of that case observed that the driver, however, slowly he may be
driving may not be in a position to avert the accident.
40. Elaborating his argument on the failure of the prosecution to
prove excessive speed, the counsel further submitted that even if a
vehicle is driven at a high speed, the same itself would not lead to
an inference that the driver was negligent and rash. In support of his
argument counsel for the appellant placed reliance on the judgment
of the Apex Court in State of Karnataka Vs. Satish, 1998 (8)
SCC 493 where the Apex Court has held that mere driving of truck
at a high speed does not lead to an inference that negligent and rash
driving has caused the incident resulting in death and injuries to a
number of persons. The Apex Court in the said case upheld the
order of acquittal passed by the High Court while two courts below
held the accused guilty under Section 304-A IPC and other cognate
offences. On the same legal principle, this Court in Abdul Subhan
Vs. State (NCT of Delhi), 2007 Crl.L.J 1089 also took the similar
view. Even no such question of suggesting excessive speed was put
to the accused during his examination under Section 313 of the Crl.
P.C. contended counsel for the appellant.
41. Based on the above submissions, counsel for the appellant
submitted that prosecution miserably failed to prove that the
petitioner was driving the offending vehicle at a highly excessive
speed.
42. Counsel for the appellant also took serious exception to the
conduct of the judge who had examined the police file and police
diary to reach his conclusions in the face of the admitted legal
position that police diary cannot be used as evidence.
43. The next limb of argument of the counsel for the appellant
relates to the presence of fog/mist on the wintry morning of
10.1.99, which as per the counsel for the appellant was ignored by
the trial court. Counsel for the appellant invited attention of this
court to the certificate given by the office of the meteorological
department proved on record as Ex. PW15/B, wherein they have
clearly stated the presence of „mist‟ on the said day with visibility of
one thousand meters. PW-2 Mr. Manoj Malik in his cross
examination also disclosed the presence of fog on the said day.
Counsel for the appellant also found fault with the report of the
meteorological department wherein they have disclosed the visibility
at the distance of one thousand meters on the ground that the said
visibility was not present at the place near the accident but the
same was at Safdarjung Airport. The portion of the said
examination in chief of PW-15 Mr.S.C. Gupta, Director
Meteorological office Safdarjung Airport is reproduced as under:
―As per the report given by me the visibility on that day at 5.30 A.M. was
thousand meters at Safdarjung Airport.‖
44. In his cross-examination also the said witness stated that the
visibility was thousand meters on account of the presence of the
„mist‟ which remains at the height of up to five hundred meters from
the ground level. The said witness also stated that the concentration
of the mist at lower height from the ground level is more and there
is only a little changed concentration of the mist up to the next five
hundred meters. The contention of the counsel for the appellant was
that because of the presence of the mist at the lower level, one may
not be able to see the human beings on the road, but although may
be able to see the stars in the sky. Counsel for the appellant further
submitted that the learned APP in his cross examination to PW-2
himself suggested that there was no light on the street and there was
fog. Taking a contrary stand to the said stand of the prosecution, the
court observed that it was nobody‟s case that lights were not on at
the site of the accident. Counsel thus submitted that the trial court
has ignored the presence of fog and mist which was a vital factor to
be taken into consideration, before giving finding on the exact
circumstances leading to the occurrence of the said accident. The
court‟s findings that it was clear with no mist and there was lot of
visibility at the spot at the time of the occurrence of the offence
are contrary to the certificate given by the meteorological
department and also to the suggestion given by the prosecutor in
the cross-examination of PW2. Counsel for the appellant although
admitted that the appellant should have taken a precaution of
dipping the lights of his car due to the presence of the fog and
because of not dipping the said lights certainly the presence of fog
must have affected the visibility of the appellant in not finding the
presence of victims, in the middle of the road from a distance.
45. Coming to the last leg of his submission, counsel for the
appellant in his scathing attack on the judgment, disputed the
finding of the learned trial court in holding the appellant guilty for
committing an offence under Section 304 (II) of the Indian Penal
Code. Differing with the reasoning given by the trial court, counsel
submitted that the culpable homicide referred under Section 299 of
the Indian Penal Code would become murder if it satisfies the
requirements of four clauses of Section 300 IPC and even if it
satisfies four clauses, then again it may be reduced to culpable
homicide not amounting to murder if the facts attract any of the
exceptions of Section 300 Indian Penal Code. Clearly Section 304-A
deals with those cases where death of a person takes place by
committing rash and negligent act and not such acts as would
constitute the offence of culpable homicide not amounting to murder.
Whether a particular act amounts to culpable homicide or not such
an act must necessarily fall either in Section 299 or in Section 300
of the Indian Penal Code. Counsel for the appellant submitted that
the learned trial judge got much carried away with the judgment of
the Bombay High Court in the case of State of Maharashtra Vs.
Alister Anthony Pareira - MANU/MH/0655/2007 where the
Division Bench of Bombay High Court in the facts of the said case,
where the accused while driving his car ran over people sleeping
on the footpath resulting into the death of seven persons and causing
injuries to eight persons, reversed the conviction and sentence
awarded by the trial Court under Section 304-A and convicted the
accused under Section 304-II of Indian Penal Code. Distinguishing
the facts of the said Pareira‟s case (supra) with the present case,
the counsel submitted that knowledge of people sleeping on the
footpath during the night could be attributed to the accused in that
case but no such knowledge can be attributed to the appellant in
the present case who could never visualize the presence of
policemen and private persons in the middle of the road on the
chilly morning of 10.1.99. The Judgment of the Bombay High Court
is also under challenge before the Apex Court, where already the
Apex Court had granted special leave to appeal, the counsel
contended. The learned trial judge also misconstrued the
observations of the apex Court in the matter of State of Gujarat Vs.
Haidarali Kalubhai 1976 (1) SCC 889, wherein the Apex Court
held that if a person drives a motor vehicle into the midst of the
group and thereby causes death to some persons then such a case
will not be a case of mere rash and negligent driving and the said
act will amount to culpable homicide. Learned trial judge also by
drawing a wrong analogy of Section 300(4) of IPC and Illustration
of the same reached to the conclusion that the case in hand is
covered not under Section 304-A but under Section 304-II Indian
Penal code. Infact, in the ultimate analysis, the trial Court although
held the said act on the part of the appellant as an act of gross
recklessness but still held him guilty under Section 304-II IPC. The
contention of the counsel for the appellant was that with the said
finding of the learned trial Court the only section which could be
applied is Section 304-A and not Section 304-II of IPC. Counsel for
the appellant also contended that the Legislature imputes particular
kind of degree of knowledge in Section 299 and Section 300 of
Indian Penal Code. Although the knowledge imputed in sub-section
(4) of Section 300 is of the highest degree than the knowledge
imputed under Section 299 of the Indian Penal Code, yet one thing
is certain, to attract these provisions the person must possess some
actual knowledge that commission of his act would likely result in
causing death or the commission of the act is so imminently
dangerous that it must, in all probability cause death or such bodily
injury as is likely to cause death but such kind of knowledge cannot
be attributed to the appellant that too for the death of the persons
standing in the middle of the road, whose presence the appellant
could never perceive. In other words, the act of the offender must
be a willful act and the reference to „such act‟ under Section 299 of
the IPC refers to an „act‟ which is either intentional or which is
known to the accused. The counsel urged that S. 304 (II) does not
talk of Knowledge but talks of actual good knowledge. For attracting
Section 304-II, IPC the act of the offender must be willful and the
offender must have the complete knowledge that if a particular act
is done by him then the same is likely to cause death or to cause
bodily injury as is likely to cause death. Knowledge is the
motivating factor to attract Section 304-II IPC. In support of his
submissions, counsel for the appellant placed reliance on the
following English Authorities as well as judgments of the Apex
Court:-
1. R. Vs. Eoars-(1962) 3 All ER 1086
2. R.Vs. Thorpe- (1972) 1 ALL ER 926
3. R. Vs. Murphy-(1980) 2 ALL ER 325
4. R. Vs. Lawrence-(1981) 1 ALL ER 974
5. R. Vs. Boswell-(1984)3 ALL ER 353
6. State of Gujarat Vs. Haiderali Kalubhai-(1976) 1 SCC 889
7. State of Karnataka Vs. Satish-(1998) 8 SCC 493
8. Mahadeo Hari Lokre Vs.State of Maharashtra
(1972) 4 SCC 758.
9. R. Vs. M.C. Bride-(1961) 3 ALL ER 6
10. R. Vs. Guiltoyle-(1973) 2 ALL ER 844
46. Counsel for the appellant also submitted that offence of
causing death by reckless driving was created for the first time in
England in 1977. In 1977, the Britishers amended the Road Traffic
Act, to substitute the word „danger‟ with that of „recklessness‟, while
Section 304-A of Indian Penal Code which is the only substantive
provision to deal with the accident cases, uses the expression „rash
or negligent‟.
47. Lastly, on award of sentence, counsel for the appellant
submitted that the appellant has suffered immensely and in all
earnestness he felt remorseful over what had happened to the
poor persons and their families on account of the said tragic
accident. The appellant in fact is a victim at the hands of the
prosecution who created false evidence against the appellant and
the prosecution itself is a sinner who did their best to blame the
appellant even for the offence which he never committed. The
appellant has a very good character and during the period of his
incarceration, there was no complaint against him and rather he got
excellent reports from the jail authorities. He has already suitably
compensated the families of the victims by granting compensation
to the extent of Rs. 65 lacs. The said act of the appellant is the first
offence and according to the well established principles of
jurisprudence of law, the highest punishment should not be inflicted
on the first offender. The counsel also averred that the American
driving licence was taken as a circumstance by the trial court to give
five years sentence. He submitted that same is completely beyond
the settled principles of criminal jurisprudence.
Arguments of the Respondent
48. Stoutly refuting the submissions of Mr. Ram Jethmalani, Mr.
Pawan Sharma, Additional Public Prosecutor representing the State
fully supported the order of conviction and the sentence passed by
the trial Court. Commencing his arguments, counsel pointed out
that the future of the family of those killed has been plunged into
complete darkness consequent upon the accident on the fateful
morning of 10th January, 1999. As per the public prosecutor, the
police came into action after the information about the said accident
was received and registered vide DD No. 27-A immediately
whereafter SI Kailash Chand posted at P.S. Lodhi Colony on
emergency duty rushed to the spot along with one Constable Jagan
Lal. On reaching the spot he found three deadbodies lying scattered
on the road. One leg of the deceased constable was lying at one
place while abdomen of the other deceased was lying scattered at
another place. Rough site plan of the spot of accident was prepared
by the said sub inspector which was duly proved on record as Ex.
PW 58/B. As per the prosecutor, this site plan was never challenged
by the defence during the trial. After arrival of the said Sub
Inspector Kailash Chand, Jagdish Pandey from Police Control Room
also reached there who saw the trails of the oil reaching from the
site of the accident to 50, Golf Links, where ultimately the said car
was found parked inside the Kothi in a badly damaged condition.
Some human flesh and blood was also found on the vehicle. Forensic
team was summoned and videography of the site of the accident as
well as of the damaged car and of the Bungalow where the said car
was parked was taken. Rajiv Gupta, one of the other co-accused in
the connected appeal, disclosed that the said offending car was
parked there by none else but the appellant Sanjeev Nanda. All the
accused persons were taken for medical examination at 12.20 a.m.
on 10.1.1999, in AIIMS where blood samples of appellant Sanjeev
Nanda were taken and in the said report it was found that the
appellant was heavily drunk. Rukka was prepared by SI Kailash
Chand which was proved on record as Ex. PW 58/A after the
registration of DD. Explaining the purpose of DD, the Public
Prosecutor submitted that the only purpose of the DD is to inform
the police so that the police officer may proceed to rush to the spot
to probe the matter. As per the Prosecutor, the only purpose of the
DD is to put the police into motion. The recovery memo of articles
seized by SI Kailash Chand from the spot was also proved on record
which remained unchallenged by the defence. The contention of the
public prosecutor is that if the testimony of SI Kailash Chand and
that of SI Jagannath supported by the said site plan and recovery
memo is taken into consideration then the same would clearly show
how the said barbaric accident had occurred and after causing the
said accident how the appellant had fled from the spot.
49. The State prosecutor, Mr. Pawan Sharma further submitted
that the three eye witnesses cited by the prosecution were later on
examined as PW 1 Hari Shankar and PW 2 Mr. Manoj Malik while
Mr. Sunil Kulkarni appeared as a court witness. Counsel further
submitted that although the said two witnesses; PW 1 Hari Shankar
and PW-2 Manoj Malik turned hostile but still as per the settled legal
position, the testimony of the hostile witnesses cannot be rejected in
entirety.
50. Counsel for the State then categorized his submissions in
reply to certain specific contentions raised by the petitioner.
Dealing with the issue of speedy and fair trial the state counsel
submitted that during the entire period of trial no lapse or delay can
be attributed on the part of the prosecution. The proceedings for
consideration of charge were held between 14.5.1999 to 17.7.1999
and on 2.8.1999 charges were framed against the appellant and
other accused persons. During the aforesaid period on 14 dates the
accused persons argued their case while on three dates the
prosecution made their submissions on framing of charges. Three
times there was no electricity in the court, two times the ld.
Presiding officer was on leave and on one date the ld. Judge
adjourned the proceedings because of "no time left". During the said
period also one application was moved by the appellant under
Section 311 Cr.P.C. and on one of the dates defence counsel took
time. The prosecution evidence was completed between 2nd August,
1999 to 22nd August, 2003 and during this period request for
adjournment was made by the accused nine times. On 38 hearings
prosecution witnesses were examined. Request for adjournment by
the State was made four times and at least on eight occasions the
case was adjourned due to "no time left". Only on two occasions no
witnesses were present and at least on three dates there was a joint
request for adjournment. The case was also adjourned 7 times
because the trial court records were summoned by the High Court.
The matter was once adjourned because of the Republic Day
arrangements. Adjournments were also taken for various other
multiple reasons for which prosecution cannot be blamed.
Application for exemption was moved by Mr. Rajiv Gupta at least ten
times and the appellant moved similar application at least 12 times.
Ld. Presiding Officer was on leave at least for five times. The defence
evidence was completed between 24.10.2005 to 5.5.2008 and during
this period the matter was adjourned 12 times at the request of the
defence. During this period the ld. Judge exercised his power under
Section 311 Cr.p.c. to summon Sunil Kulkarni as a court witness.
Supplementary chargesheet was also filed during the said period.
Final arguments were heard between 5.5.2008 to 2.9.2008. The final
arguments were addressed by the State counsel at least on eight
hearings while the defence counsel made their submissions on 15
dates. The order of conviction and sentence was passed on 2.9.2008
and 5.9.2008, respectively. After giving a detailed account of the
court proceedings, counsel submitted that there has not been any
delay on the part of the prosecution and the appellant cannot
complain that he was either denied the speedy trial or fair trial. In
support of his argument counsel for the State placed reliance on the
judgment of the Apex Court reported in 2002 III AD (S.C.) 634 P.
Ramachandra Rao Vs. State of Karnataka. The contention of the
counsel for the State was that the guidelines laid down by the Apex
Court in A.R. Antulay‟s case are not exhaustive but only
illustrative and the Apex Court has clearly observed in the above
decision that the guidelines in the Antulay‟s case are not intended
to operate like hard and fast rules or be applied like a strait-jacket
formula. Special emphasis was laid by the State counsel on para 32
of the said judgment referred as under:
―32. For all the foregoing reasons, we are of the opinion that in Common Cause case
(I)3 [as modified in Common Cause (II)4] and Raj Deo Sharma (I)1 and (II)2 the Court
could not have prescribed periods of limitation beyond which the trial of a criminal case
or a criminal proceeding cannot continue and must mandatorily be closed followed by
an order acquitting or discharging the accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case5 is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the
right to speedy trial laid down as guidelines in A.R. Antulay case5 adequately take care
of right to speedy trial. We uphold and reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay case5 are not exhaustive but only
illustrative. They are not intended to operate as hard-and-fast rules or to be applied like
a straitjacket formula. Their applicability would depend on the fact situation of each
case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an
outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation
prescribed in the several directions made in Common Cause (I)3, Raj Deo Sharma (I)1
and Raj Deo Sharma (II)2 could not have been so prescribed or drawn and are not
good law. The criminal courts are not obliged to terminate trial or criminal proceedings
merely on account of lapse of time, as prescribed by the directions made in Common
Cause case (I)3, Raj Deo Sharma case (I)1 and (II)2. At the most the periods of time
prescribed in those decisions can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be persuaded to apply their judicial
mind to the facts and circumstances of the case before them and determine by taking
into consideration the several relevant factors as pointed out in A.R. Antulay case5 and
decide whether the trial or proceedings have become so inordinately delayed as to be
called oppressive and unwarranted. Such time-limits cannot and will not by themselves
be treated by any court as a bar to further continuance of the trial or proceedings and as
mandatorily obliging the court to terminate the same and acquit or discharge the
accused.
(5) The criminal courts should exercise their available powers, such as those under
Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to
speedy trial. A watchful and diligent trial Judge can prove to be a better protector of
such right than any guidelines. In appropriate cases, jurisdiction of the High Court under
Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking
appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State
Governments of their constitutional obligation to strengthen the judiciary --
quantitatively and qualitatively -- by providing requisite funds, manpower and
infrastructure. We hope and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated 19-9-2000 and 26-4-
2001 in the abovesaid terms.‖
51. The State counsel also placed reliance on the judgment of the
Apex Court reported in State Vs. Dr. Narayan Waman 2002 (3)
AD Crl. SC 770 with specific reference to para 9 of the same which
is referred as under:-
―9. While considering the question of delay the court has a duty to see whether the
prolongation was on account of any delaying tactics adopted by the accused and other
relevant aspects which contributed to the delay. Number of witnesses examined,
volume of documents likely to be exhibited, nature and complexity of the offence which
is under investigation or adjudication are some of the relevant factors. There can be no
empirical formula of universal application in such matters. Each case has to be judged
in its own background and special features, if any. No generalization is possible and
should be done. It has also to be borne in mind that the criminal courts exercise
available powers such as those under Sections 309, 311 and 258 CrPC to effectuate
right to speedy trial.‖
52. And also the judgment of the Apex Court in S.P. Vs. B.
Sriniwas 2008 (3) JCC 2115 and Himanshu Singh Sabharwal
Vs. State of M.P. AIR 2008 SC1943.
53. Based on the above judgments and on the legal proposition laid
in the above judgments, the counsel for the State submitted that the
appellant cannot complain that he was denied fair and speedy trial
by the court. Counsel also submitted that it is not only the
appellant/accused who is entitled to the fair trial but the victims as
well.
54. Counsel for the State also submitted that all human beings are
prone to commit some errors and therefore, minor discrepancies in
the depositions of prosecution witnesses cannot be given undue
weightage. Counsel for the State further submitted that the
presence of PW 2 Manoj Malik cannot be disputed on the said fateful
morning as he himself was the victim of the accident. The contention
of the counsel for the State is that the testimony of injured person
cannot be equated with Mr. Sunil Kulkarni who happened to have
seen the accident.
55. The witness PW1 in his deposition clearly stated that he was
sitting in the petrol pump when on hearing the noise he came out
and saw one vehicle coming from Nizamuddin side, causing the said
accident. He also clearly deposed that as a result of the accident
some people received injuries and some died also. He also
categorically stated that the vehicle was coming at a fast speed.
Counsel further submitted that this witness PW 1 Hari Shankar was
the first person who had informed the happening of the said
occurrence and his entire testimony cannot be brushed aside
because of some minor variations in his stand. In fact, as per the
Prosecutor, he was wrongly declared as a hostile witness.
56. Even the testimony of PW 2 Manoj Malik cannot be discarded
in entirety as he has supported the prosecution case fully except the
fact that he took somersault when he deposed that infact the
offending vehicle was not a car but a truck. This minor
contradiction in the testimony of PW 2 would not render his entire
testimony uncreditworthy, more particularly, when the defence is
no more disputing the involvement of appellant causing the said
accident.
57. Commenting upon the creditability of court witness Mr. Sunil
Kulkarni, Mr. Pawan Sharma, Addl. Public Prosecutor, contended
that the said witness may be a crook or may have criminal
antecedents but so far the present case is concerned he is a truthful
witness.
58. On the conduct of the court witness Sunil Kulkarni counsel for
the State submitted that the prosecution has been able to prove that
the said witness was present at the spot and once having proved so,
the other antecedents of the said witness even if they are shoddy are
of no consequence. Simply because of the fact that he immediately
did not inform the police about the said incident or went to Bhopal
without any information to the police cannot lead to infer that he was
a planted witness. Counsel for the State placed reliance on the
judgment of the Apex Court in 2005 SC Crl. 51 State of U.P. Vs. F.
Khan & Ors .
59. Counsel further submitted that no doubt that the court has to
see the statement of such a witness with great caution and care but
solely based on the shady character of the witness, his testimony
cannot be ignored, more particularly, when deposition of such a
witness is corroborated by other circumstances. The presence of the
said court witness Mr. Kulkarni in Delhi cannot be denied as PW 42
Ms. Alka, receptionist of Hotel Shiva Continental duly proved this
fact in her deposition by proving the hotel records.
60. Dwelling on his arguments further on the realiability of witness
Mr. Sunil Kulkarni counsel for the State submitted that the said
witness was discharged by the prosecution on account of the fact
that he was showing undue anxiety for getting his statement
recorded but such stand of the prosecution could not have come in
the way of unfettered powers of the court under Section 313 of the
Code of Criminal procedure to examine any witness or to call and
examine any witness so as to find out the truth to impart justice. As
per the counsel even a witness whose statement under Section 161
of the Code of Criminal Procedure is not recorded can also be called
as a witness by the court in exercise of powers conferred under
Section 311 of the Code of Criminal Procedure. Counsel further
submitted that the trial court called this witness on 29.5.2007 when
this witness was cross-examined at length not only by the defence
but by the prosecution as well and he stood the test of being a
truthful witness in his entire deposition before the trial court.
Counsel further submitted that this witness has no enmity with any
of the accused persons and has no relations with any of the police
officials. Counsel strongly placed reliance on the judgment of the
Apex Court reported in AIR 2004 SC 3114 Zahira Habibullah Vs.
State where also the witness turned hostile and the prosecutor also
colluded with the defence and the Hon‟ble Apex Court directed fresh
trial of the case. Special reference was made to paras 2, 13, 36 &
38 of the said judgment which are reproduced as under:-
―2. The present appeals have several unusual features and some of them pose very
serious questions of far-reaching consequences. The case is commonly to be known as
―Best Bakery Case‖. One of the appeals is by Zahira who claims to be an eyewitness to
macabre killings allegedly as a result of communal frenzy. She made statements and
filed affidavits after completion of trial and judgment by the trial court, alleging that
during trial she was forced to depose falsely and turn hostile on account of threats and
coercion. That raises an important issue regarding witness protection besides the
quality and credibility of the evidence before court. The other rather unusual question
interestingly raised by the State of Gujarat itself relates to improper conduct of trial by
the Public Prosecutor. Last, but not the least, that the role of the investigating agency
itself was perfunctory and not impartial. Though its role is perceived differently by the
parties, there is unanimity in their stand that it was tainted, biased and not fair. While
the accused persons accuse it for alleged false implication, the victims' relatives like
Zahira allege its efforts to be merely to protect the accused.
13. Statement of one eyewitness was recorded on 4-3-2002 by PI Baria at S.S.G.
Hospital, Vadodara disclosing names of five accused persons and when he was sought
to be examined before the Court, summons were issued to this person on 27-4-2003 for
examination on 9-5-2003. It could not be served on the ground that he had left for his
native place in Uttar Pradesh. Therefore, fresh summons were issued on 9-6-2003 for
recording his evidence on the next day i.e. on 10-6-2003, giving only one day's time.
When it could not be served, then summons were issued on 13-6-2003 for remaining
present before the court on 16-6-2003. It could not be also served for the same
reasons. Ultimately, the Public Prosecutor gave purshis for dropping him as witness and
surprisingly the same was granted by the trial court. This goes to show that both the
Public Prosecutor as well as the court were not only oblivious but also failed to
discharge their duties. An important witness was not examined by the prosecutor on the
ground that he, Sahejadkhan Hasankhan (PW 48) was of unsound mind. Though the
witness was present, the Public Prosecutor dropped him on the ground that he was not
mentally fit to depose. When such an application was made by the prosecution for
dropping on the ground of mental deficiency, it was the duty of the learned trial Judge to
at least make some minimum efforts to find out as to whether he was actually of
unsound mind or not, by getting him examined by the Civil Surgeon or a doctor from the
Psychiatric Department. This witness (PW 48) has received serious injuries and the
doctor Meena (PW 9) examined him. She has not stated in her evidence that he was
mentally deficient. The police has also not reported that this witness was of unsound
mind. During investigation also it was never stated that he was of unsound mind. His
statement was recorded on 6-3-2002.
36. The principle of fair trial now informs and energises many areas of the law. It is
reflected in numerous rules and practices. It is a constant, ongoing development
process continually adapted to new and changing circumstances, and exigencies of the
situation -- peculiar at times and related to the nature of crime, persons involved --
directly or operating behind, social impact and societal needs and even so many
powerful balancing factors which may come in the way of administration of criminal
justice system.
38. This Court has often emphasised that in a criminal case the fate of the proceedings
cannot always be left entirely in the hands of the parties, crimes being public wrongs in
breach and violation of public rights and duties, which affect the whole community as a
community and are harmful to the society in general. The concept of fair trial entails
familiar triangulation of interests of the accused, the victim and the society and it is the
community that acts through the State and prosecuting agencies. Interests of society
are not to be treated completely with disdain and as persona non grata. Courts have
always been considered to have an overriding duty to maintain public confidence in the
administration of justice -- often referred to as the duty to vindicate and uphold the
―majesty of the law‖. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting its
ability to function as a court of law in the future as in the case before it. If a criminal
court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. Courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still possible, except at the risk
of undermining the fair name and standing of the judges as impartial and independent
adjudicators.‖
61. Drawing strength from the said decision counsel submitted
that in similar circumstances, the trial court had exercised the power
to summon the said witness although dropped by the prosecution.
62. For antecedent of witnesses, relevance of testimony of expert
witnesses etc., counsel for the State referred following judgments:-
AIR 2005 SC 44 State of M.P. Vs. Dharkole (Para 15-B)
2006 CrLJ 413 SC Saidu Mohd. Vs. State (Para 29)
1987 CAR 335 (SC) Dalbir Singh Vs. State (para 17)
AIR 2003 SC 785 Sanjay Bhan Vs. State
(1995) 57 DLT 399 Naresh Kumar Vs. State (paras
12,20, & 21)
AIR 2001 SC 3955 State of Punjab Vs. Nyaydeep
(para12)
2005 SCC (Crl) State of U.P. Vs. Farid Khan page 51
63. Taking strong exception to the stand taken by the counsel for
the appellant during the course of his arguments that he will proceed
with the admission that Sanjeev Nanda was driving the BMW car on
the said fateful day, Mr. Pawan Sharma, lamented that no such plea
can be introduced by the defence in the appeal when such a defence
was never set up before the trial court. Throughout the trial, the
case of the defence was that the said BMW car was not involved in
the accident as would be evident from the suggestions given by the
defence in the cross-examination of various witnesses examined by
the prosecution. Therefore, in the appeal the defence cannot
introduce a new plea completely contrary to the stand of the defence
taken before the trial court. In the appeal the defence has tried to
build a case to bring the same within the four corners of Section 304-
A of the Indian Penal Code while before the trial court the accident
in question itself was denied by the defence. The precious time of
the trial court would not have been wasted, had the appellant taken
this defence before the trial court.
64. Counsel for the State further contended that conduct of the
appellant in his refusal to participate in the TIP proceedings further
goes to show that he was never truthful in his defence. The
contention of the State counsel is that refusal on his part to join the
TIP proceedings merely on the ground that his photographs had
appeared in electronic and print media was not a valid ground as
per the settled legal position and this refusal on the part of the
appellant itself clearly proves that he was not only driving the vehicle
but was driving in a heavily drunken state and at excessive speed.
65. Another plea taken by the defence in the appeal that there was
presence of heavy fog in the early morning of 10.1.1999 also does
not find support from their case set up in the trial court as no such
suggestion was given by the defence to PW 15 Dr. S.C. Gupta. Only
PW 2 in his cross-examination had disclosed the presence of fog but
not on account of any suggestion given by the defence in his cross-
examination. Counsel thus contended that the theory of fog being
propounded by the defence in the appeal cannot be accepted at this
stage. No such suggestion was given by the defence with regard to
the alleged presence of fog on the fateful day to any of the witnesses
examined by the prosecution and therefore, new plea taken by the
defence at an appellate stage cannot be appreciated, counsel
contended. Counsel for the respondent State placed reliance on the
judgment of the Apex Court reported in 1988 CAR SC page 63
(para 10) Darshan Singh Vs. State of Punjab , 2005 (2) LRD
(Delhi) DB.
66. The counsel also urged that the videography proved on record
totally belies the story of the defence. Report of Dr. Rajinder Singh
remained unrebutted by the defence in the trial, contended Ld. Addl.
P.P. The counsel also averred that the brakes were not applied by
the appellant before the impact.
67. Refuting the submission of Mr. Ram Jethmalani, attributing
mysterious presence of the police on the intervening night of 9-10th
of January, 1999, counsel for the State submitted that the testimony
of Mr. Bannu Singh (PW 53) clearly proves that the constable who
died on that day was on duty. PW 2 Manoj Kumar also corroborated
the testimony of PW 53.
In this regard counsel relied on following judgments.
1. AIR 1974 SC 639 Sri Chand Batra Vs. State,
2. 1967 Crl.L.J. Page 785 Para 13 Thimmiah
Vs. State
68. Counsel for the respondent further submitted that the
prosecution has successfully proved that the appellant was heavily
drunk. Counsel for the State placed reliance on the judgment
reported in Longpokalakpam Vs. State,1975 Crl.L.J. 1088.
69. To establish the fact that the appellant was driving the
offending vehicle in a drunken condition counsel invited attention of
this court to the replies given by the accused to the question Nos.
11,38, 45,90 & 92 putforth by the court at the time of recording
statement of the accused under Section 313 Cr.P.C. and the same
are as under:-
Q. 11 It is also in evidence against you that there is evidence that BMW car being
No. M-312 LYP was involved in this accident on 10.1.1999, Because of the accident,
the injured and the deceased were found scattered at different places between the
radius of 100/150 feet. What have you to say?
Ans. It is incorrect.
Q.38 It is in evidence against you that SI Kailash Chand PW 58 directed SI Hullas
Giri PW to go to Defence Colony for bringing you to Golf Links who returned along with
three persons including you, Manik Kapur and Siddharth Gupta who immediately on
their arrival asked Rajiv Gupta accused ‗KYA GARI DHUL GAI HAI'. All the three,
including you, were interrogated. It was also noticed that you were in intoxication state
and smelling alcohol and having injuries on your lips/face. Your disclosure statement
was recorded which is Exht. PW 58/A. What have you to say?
Ans. It is incorrect. From my house at Defence Colony I was straightaway taken to
P.S. While Police came to my house to take me away. I was assaulted by the police
and therefore I have injuries on my face. At that time my friend Manik Kapoor and
Siddarth Gupta were not with me. My grand father, mother and domestic servants were
present in the house.
Q. 45 It is in evidence against you that on 10.1.99 after getting the Medical
examination of all the six accused persons including you were brought back to 50 Golf
Links and after interrogations and being satisfied, sufficient incriminating evidence has
come, you and your other co-accused were arrested and were personally searched and
memo were prepared. The personal search memos are Exht. PW 37/B to Ext. PW
37/G. SI Kailash Chand explained the grounds of arrest to you and other co-accused.
The BMW Car bearing No. M 312 LYP was taken into possession vide memo Ex. PW
37/H Seizure Memo of Tirpal is Exhibit PW 37/J and that of flesh pieces exihibit PW
37/K. Some blood was lifted from the Car and was kept in a sealed pulanda with the
seal of K.C. Details of lifting the blood were recorded in the memo Ex. PW 37/L. All the
accused persons were brought to the Police Station and were kept in the lock up and
the case property was deposited in the Mal Khana of the Police Station. What have you
to say?
Ans. I was not brought to 50 Golf Links however I was arrested and I am not aware
of what documents at what time were prepared by the police. After medical
examination I was brought by the Police to P.S.
Q.90 Why this case against you?
Ans. It is a false case.
Q.92 Anything else you want to say?
Ans. I was falsely implicated in this case. I am innocent. Since the car belongs to
my sister I was made accused in this case. I was not involved in this accident nor I
had driven the said car. I was assaulted while I was arrested by the police.
70. Contrary to the said stand, the appellant in cross-examination
of PW 37 Const. Jagan Lal gave a suggestion that he was first taken
to 50 Golf Links and in answer to question 45 the appellant said that
he was not brought to 50 Golf Links. The contention of the counsel
for the State was that the appellant is not a truthful witness and if
the accused gave false answers under Section 313 of the Code of
Criminal Procedure then for that the advantage goes to the
prosecution and not to the defence. Another false stand taken
by the accused was that they were straightway brought to the police
station and were never taken to 50, Golf Links where the offending
vehicle was parked. In fact the said false stand of the defence
bridges the missing Links in the prosecution case. Even in answer to
question 92 he has stated that he was falsely implicated in this case
and he was innocent since the car belonged to his sister & this again
goes to show that the appellant was dishonest and only now he has
taken the plea that he alone had caused the said accident.
71. Counsel for the State further submitted that only at the stage
of appeal before this court admission of accident is made and
during the course of entire trial before the trial court, the accident
was being denied by the appellant. Counsel for the State further
submitted that this admission on the part of the defence has merely
been made to claim leniency from this court, therefore, such an
admission on the part of the appellant at the stage of appeal will be
of no help to him when the prosecution has already proved its case
under Section 304 Part-II of the IPC. He also urged that in a similar
case, the Division Bench of this court has in Nehru Jain Vs. State
of NCT of Delhi-2005(1) JCC 261 turned down such an argument
and convicted the appellant under Section 304 Part-II.
72. Counsel for the State further took an exception to the approach
of the ld. Counsel for the appellant attacking the conduct of the Ld.
Trial judge instead of confining his attack only on the impugned
judgment of conviction and sentence.
73. Counsel further submitted that the defence has tried to base
his arguments primarily on foreign judgments, literature and certain
authors‟ and books without taking care of putting the relevant
questions to the witnesses examined by the prosecution. Counsel
thus submitted that defence cannot build his case based on such
material which material was not placed before the trial court and
even no such case was built up by the defence before the trial court.
Counsel reiterated his submission so far the authenticity of the
blood samples and the report submitted by Dr. Madhulika Sharma
PW 16 and the testimony of doctor PW 10 Dr. T. Milo are concerned
which remained unchallenged and unrebutted. No suggestion was
given to the said witnesses that they had not properly seized the
blood samples of the appellant or their report was wrong. The
contention of the counsel for the State was that the finding of the
Expert witness cannot be ignored or overlooked by the court on the
basis of certain opinions and views expressed in some books and
commentaries. In support of his argument counsel for the State
placed reliance on the following judgments reported in State Vs.
Santosh Kumar 2007 Cr.LJ 964 , Ram Bali Vs. State AIR 2004
SC 2329, Nehru Jain Vs. State 2005 (1) JCC 261 and State of
U.P. Vs. Man Singh 2003 Volume I AD (Crl.) SC 61.
74. On the submission of the counsel for the appellant that since
the appellant had safely travelled about 16 kilometres without
causing any accident from Sainik Farm to Lodi Road, counsel for the
State placed reliance on the judgment of the Apex court in AIR 1965
SC 1616 Kurban Hussain Vs. State : 1965 (2) Cr.L.J. 555.
The contention of the counsel for the State is that simply because of
the fact that no untoward incident had taken place prior to the
occurrence of the accident cannot lead to this conclusion that the
appellant was sober and not in a drunken state.
75. On the next submission of the counsel for the appellant that
material questions were not put to the accused under Section 313
Cr.P.C. , the counsel for the State submitted that if no prejudice is
caused by not putting certain questions under Section 313 Cr.p.C.
then the conviction cannot be set aside on this sole ground. Even in
the absence of such questions being not asked by the trial court, the
appellate court has ample powers to examine such accused again by
way of additional evidence. Reliance was placed by the counsel for
the State on the judgments of the Apex Court reported in Rambha
Vs. State 2001 (2) AD Crl. SC page 68, Baba Vs. State 2002 (9)
SCC 567, State of Punjab Vs. Naib Din 2001 SC page 3955.
76. Counsel for the State further submitted that all incriminating
questions were put to the accused persons and the appellant cannot
raise a grievance that some of the related questions or in the form as
being suggested by the appellant were not put to the accused by the
Trial court.
77. On the submission of the counsel for the appellant that the
blood group of the appellant was not ascertained by the prosecution,
counsel for the State submitted that the report of the forensic expert
reported that blood on the jersy and steering wheel was of group „B‟.
The contention of the counsel for the State was that once the
presence of blood of the appellant was ascertained then proof of a
Rh factor of the blood i.e. B+ or B- was not required to be
mentioned. Counsel for the State placed reliance on the judgments
in 2001 SCC (Crl.) 323 (para 20) Gura Singh Vs. State of
Rajasthan and 42 (1990) DLT 211 (para 22B) Balwan Vs. State.
78. On the submission of the counsel for the appellant on the
failure of the prosecution to place on record the PCR messages and
the contradiction in the PCR messages and the statements of
material witnesses, counsel for the State submitted that evidentiary
value of PCR messages cannot be equated either with the
statements made by the witnesses under Section 161 of the Code of
Criminal Procedure or their depositions made before the Court.
Counsel for the State further submitted that such PCR messages are
precise and cryptic and are sent just for information purposes to
pick victims of accident to take them to hospital or for other desired
actions. Counsel for the State further submitted that persons who
had recorded the messages were not examined to prove the said
PCR messages. Counsel thus submitted that evidentiary value of
these messages is absolutely „nil‟. In support of his argument
counsel for the State placed reliance on the judgments reported in
AIR 2003 SC 4414 (para 11) Damodar Vs. State of Rajasthan &
State Vs. Laxman etc. 28 (1985) DLT (page 500 ).
79. As regards case diary, counsel for the respondent submitted
that the trial court before passing the order of conviction and
sentence had already gone through the case diaries and therefore
every conceivable material was available with the trial court before
passing the final order. Reliance was placed on the judgment of the
Supreme Court in AIR 1989 SC 144 Mukund Lal Vs. UOI.
80. On the crucial submission of counsel for the appellant that at
best the offence committed by the appellant would attract Section
304-A IPC and not section 304 part -II IPC, counsel for the State
submitted that the accident caused is not a case of rash and
negligent act on the part of the appellant. Counsel submitted that
the sequence of events as disclosed in the FIR and more aptly shown
in the site plan, proved on record, clearly goes to show that the
appellant was driving the said vehicle in a heavily drunken state and
at an excessive speed beyond the prescribed limits and thus he had
sufficient knowledge that such an act would endanger lives of people
on road. As per CFSL report proved on record he first struck against
the persons who were standing on one side of the road and then
moved 40-45 steps and then again struck on central verge and after
striking on central verge again went ahead and as per the
videography proved on record, the court also took into consideration
the reversal of car resulting into crushing the bodies already
entangled with the car. Counsel for the State also placed reliance
on the deposition of Mr. Manohar Lal (PW 24) wherein he deposed
that when he had asked Manoj Kumar (PW 2) as to how he had
received injuries he was told that one big car of black colour had
come at a very fast speed from the side of Lodhi Road in a zigzag
manner and despite their shouting BACHAO BACHAO, the driver of
the car did not care and struck against him. The contention of the
counsel for the State is that the said statement given by Mr. Manoj
Kumar (PW 2) to PW 24 is a relevant fact and is admissible in
evidence, under Section 6 of the Evidence Act. In support of his
argument counsel for State placed reliance on the following
judgments:-
Radha Krishan Vs. State 1987 CAR 349 (SC) ;
Rathnashalvan Vs. State 2007 Crl.J. 1451; State Vs. Bhagaben
1987 CAR 209 SC; Nehru Jain Vs. State 2005 (1) JCC 611;
2005 (1) JCC 261.
81. Based on the above submissions counsel for the State
submitted that the appellant was rightly convicted under Section 304
Part-II of IPC and sentenced accordingly.
82. With regard to the submission of the counsel for the appellant
that the learned Judge unnecessarily got carried away with the
feeling that the investigation took place under pressure, counsel for
the State submitted that in the given facts and circumstances of the
case, the trial court rightly commented upon the various aspects of
the case as were noticed by the court and no fault can be found with
the same. Counsel for the State placed reliance on the judgment
reported in State (through CBI) Vs. Santosh Kumar Singh 2007
Crl. L.J. 964.
Rejoinder by the appellant
83. In his rejoinder to the submissions made by the State counsel,
Mr. Ram Jethmalani, Senior Advocate sought to distinguish the
Zahira‟s case also known as Gujarat Best Bakery‟s case with the
case in hand by contending that Zahira‟s case was confronted with
an extraordinary situation where the Apex court found the trial to be
absolutely farce and mock while in the present case, the situation is
totally incomparable. Elaborating his argument further, the counsel
contended that in the instant case the prosecution started with
fabrication by concealing facts not only from the accused but from
the court as well. Manoj Malik(PW 2) who is the star witness of the
prosecution was in fact the first person questioned by PW 24
Manohar Lal and PW 34 Sadhi Ram when he was being taken in the
PCR Van, called Eagle 11. It was quite natural for the said police
officials of PCR Van to have questioned PW 2 Manoj Malik once he
was found present at the site of the accident in an injured state.
Counsel thus urged that the statement of PW2 Manoj Malik made in
the PCR to PW 36 Davinder Singh and PW34 Sadhi Ram unfolds the
prosecution case and it was the duty of the prosecution to have
supplied the said statement to the accused after making the same
as a part of police report under Section 173 Cr.P.C. Counsel
further submitted that since the defence was not aware of the said
statement of Manoj, therefore, all the material witnesses i.e. PW 24
Manohar Lal, PW 34 and PW 36 were examined in the absence of the
said statement and moreover the said three police officers in fact
committed perjury by giving false statements in complete
contradiction to what Mr. Manoj had disclosed in his statement in
the PCR Van. Counsel thus submitted that the case of the
prosecution started with dishonest investigation. It is only when a
written application was made by the defence, copy of the said PCR
messages were made available to the defence. The trial judge also
acted in a most unfair manner by not dealing with the said part of
PCR messages dealing with the statement of Manoj and also by not
making any observation on the conduct of the prosecution in
suppressing the said PCR messages. Counsel for the appellant also
referred to a subsequent decision of the Apex Court reported in
2005 (1) SCC 115, Satyajit Banerjee Vs. State of Bengal,
wherein after referring to Zahira‟s case the Apex Court held that
Zahira‟s case had an extraordinary situation wherein extraordinary
remedy was suggested by the court by holding a fresh trial. The
unfair trial as per the counsel for the appellant in the present case is
peculiar on its own facts and it cannot be assumed that the
investigation in the present case was conducted in a clean and
honest manner.
84. Reiterating his submission with regard to the denial of speedy
trial to the appellant accused, the counsel pointed that seven Judges
Bench in Zahira Habibulla‟s case was not constituted to examine
the correctness of the Constitution Bench‟s Decision in Antulay‟s
case and in fact validity and correctness of the findings given in
Antulay‟ case were upheld by the Seven Judges bench. Counsel thus
submitted that it is the solemn duty of every court to effectuate &
ensure expeditious and speedy trial as envisaged under Sections 309
and 258 of the Code of Criminal Procedure and long delay of nine
years certainly has jeopardized the said invaluable right of speedy
trial of the appellant who remained in custody for more than 20
months. The best part of the life of the appellant who was just a
young man of 20 years of age (D.O.B. 17.1.1978) has gone waste.
Besides ruining his love life, this was the only period when he was to
undergo proper education to look for better employment avenues.
Counsel for the appellant contended that Section 258 of the Code of
Criminal Procedure is a salutary provision which applies to
summons case, in which the punishment is not more than two years,
and for an offence which is punishable for a period of two years the
trial for the same cannot go on for a period of ten years. What
more can be a reflection on the prosecution when in such a case of
accident they have filed three charge sheets. In such a case the trial
court ought to have taken recourse to Section 258 of the Code of
Criminal Procedure to put an end to such protracted and unfair trial.
Another example of unfair trial on the part of the trial court is that it
had referred the judgment of the High Court probing the conduct of
the defence counsel and the prosecutor without calling for any
explanation from the accused. The said judgment of the High Court
was absolutely extraneous and could not have influenced the mind
of the court to draw a hostile inference against the appellant.
85. Countering the argument of the State counsel on videography,
counsel for the appellant submitted that Video is a secondary
evidence of the scene of occurrence. By viewing the video the court
in fact examined the scene of the offence as was shown by the
prosecution. The law in this regard is well settled that such an
inspection by the court can only take place under Section 310 of the
Code of Criminal Procedure. The right to such an inspection or
for local investigation is given to the court to better and properly
appreciate the evidence placed before the court that too after due
notice to both the parties. The legislature was conscious of such
extraordinary right being given to the Magistrate for local
inspection which could influence the judge to form a particular
perception and therefore such a local inspection was envisaged only
after due notice to both the parties so that the judge‟s perception
could be formed with the proper assistance of both the parties. He
urged that in the present case the trial judge viewed the videography
and formed his own opinion without the defence knowing in what
context and on what basis such an opinion was formed by the judge.
The judge in fact has made himself as a witness and such a course
adopted by the trial judge vitiates the trial proceedings. In support
of his argument counsel for the appellant placed reliance on the
following judgments:-
Lalu Vs. State AIR 1960 Calcutta 776 , Manik Chand
Vs. Bhubneshwar Prasad AIR 1961 Patna 278, Keisam Kumar
Singh Vs. State of Manipur 1985 (3) SCC 676 , Satyajit
Banerjee Vs. State of W.B. 2005 (1) SCC 115.
86. Counsel for the appellant further submitted that the skid marks
arise only when the brakes are applied that too by a speeding car.
If the car is stationary and if the same is reversed it would produce
reversal marks. If such reversal marks can be discovered, then may
be some scientifically expert person based on some scientific
investigation could trace out the same but not the judge who has no
such expertise in the field. Counsel thus submitted that this whole
discovery by the Ld. Trial court of the reversal marks is an act of his
poor imagination and therefore, the findings of the trial court after
viewing the said video by correlating the same with the evidence of
the said court witness Mr. Kulkarni are absolutely perverse and
illegal vitiating the entire proceedings.
87. Not disputing the legal proposition that even the evidence of a
sole witness can lead to the conviction of accused, the counsel
contended that an evidence of a sole witness has to be above board,
totally honest and fully supported by other circumstances. But as far
as the facts of the present case are concerned, the presence of
Kulkarni at the scene of the offence is not only doubtful but is totally
incapable of being believed even after taking into consideration the
other circumstances of the case as set up by the prosecution. If the
presence of Kulkarni is accepted then the presence of PW1 Hari
Shankar would become doubtful. The evidence of Hari Shankar
who was on duty at petrol pump cannot be doubted at least on one
point that he was present at the petrol pump on the cold wintery
morning and his attention was drawn only when he had heard the
noise. This witness alone had informed his employer about the
accident who in turn had contacted the police. Contrary to his
deposition, Mr. Kulkarni said that he went to the petrol pump
where he found everybody was sleeping. He even could not make
any telephone call from the petrol pump and evidence of such a
witness whose presence gets destroyed with the evidence of Hari
Shankar was believed by the court to accept the theory of reversal of
the offending vehicle. This witness was dropped by the prosecution
in the year 1999 but was examined as a court witness in the year
2007. Counsel thus submitted that the evidence of Mr. Kulkarni was
absolutely untrustworthy and unreliable.
88. Dealing with the argument of the State prosecutor that why the
experts were not cross-examined so as to challenge their findings on
the presence of particular quantity of alcohol in the blood of the
appellant, counsel for the appellant submitted that the appellant in
fact does not assail the said findings so far the presence of 0.115% of
alcohol shown in the blood sample of the appellant is concerned.
The contention of the counsel for the appellant was that the said
presence of Alcohol in the blood of the appellant does not impair
one‟s ability to drive the vehicle, rather the presence of such a
quantity of Alcohol is consistent to maintain sobriety. In a criminal
case, it was for the prosecution to have proved that the appellant
was not sober but was heavily drunk but the prosecution miserably
failed to discharge such an onus.
89. Negativing the contention of the State prosecutor that one
cannot place reliance on the medical jurisprudence or other text
books to prove any point, counsel for the appellant took great
exception to such an argument as the help of text books can always
be resorted to for better appreciation of the points in issue. In
support of his argument counsel for the appellant placed reliance on
the judgment of the Apex Court in Sharad Birdichand Sarda Vs.
State of Maharashtra 1984 (4) SCC 116 (paras 40, 42, 44 and
page 140) and Tumahole Bereng Vs. The King, AIR 1949 Privy
Counsel page 172.
90. Even the court witness Kulkarni in his deposition clearly stated
that the speed was fast but not excessive and based on no material
the ld. Trial judge presumed the speed of the offending vehicle
excessive.
91. Countering the argument of the counsel for the State with
regard to the counsel submission that the accused can always use
his disclosure statement or the confession made therein to draw
support in his favour but the same cannot be used by the prosecution
to use the same against the accused as per the mandate of Section
25 of the Indian Evidence Act.
92. Drawing further distinction between Section 302, 304-Part-1
and Part-II and Section 304-A of Indian Penal Code, the counsel
contended that even behind any intentional act, the determining
factor would be the desire of the accused behind such an intentional
act to ascertain whether his particular act falls under Section 302
IPC , 304 or 304-A of Indian Penal Code. While distinguishing the
facts of the case in Shankar Narayan Bhadolkar (Supra),
judgment relied upon by counsel for the State, Mr. Jethmalani,
Senior Advocate urged that if one intentionally shoots a person who
refuses to stay at night in his home and as a result of the injury the
person dies, the question would arise whether the accused in such a
case had the necessary desire to kill the visitor so as to book him
under Section 302 IPC or whether the accused never intended to kill
him but his purpose was to force his stay at night, then the offence
applicable would be Section 304-A and not Section 302 or 304 IPC.
Counsel thus submitted that in the case in hand the appellant did not
drive his vehicle intentionally into a group of persons to whom he
had seen and therefore the element of accompanying desire to cause
death is absolutely missing in the facts of the present case and the
offence necessarily would be Section 304-A instead of Section 304
Part-II of IPC.
Discussion
93. I have heard learned Senior counsel Mr. Ram Jethmalani, led
by battery of lawyers representing the appellant Mr. Sanjeev Nanda
in criminal appeal No. 807/2008; and Mr. Pawan Sharma, Additional
Public Prosecutor for the State.
94. Very extensive arguments were addressed by Mr. Ram
Jethmalani, Senior counsel appearing for the appellant so as to
assail and shatter the reasoning and conclusions arrived at by the
learned Trial Court in passing the order of conviction and sentence
against the appellants, and equally by Mr. Pawan Sharma, APP for
the State.
95. As already noticed, to narrow down the controversy Mr. Ram
Jethmalani very fairly conceded at the threshold of the arguments
that he would proceed in the matter by admitting the factum of the
accident and the appellant being on the driver seat on the fateful
morning of 10th January, 1999, when the horrifying incident had
taken place. This admission on the part of the counsel for the
appellant would mean that the appellant gives up his right to
challenge the findings of the Lower Court so far as the factum of
accident by the appellant while driving BMW car bearing registration
No. M 312LYP resulting in death of six persons and injury to one
person on the morning of 10th January, 1999 near Car Care Centre
petrol pump at Lodhi Road is concerned, despite the fact that several
contentions have been raised by the appellant denying his
involvement in the accident in the grounds of appeal. Counsel for the
State raised a dispute that this admission amounts to raising a new
plea before the Appellate Court. In this regard this court is of the
view that since from the material on record the trial court correctly
found the involvement of appellant in causing the said ghastly
accident while driving BMW Car bearing registration No. M 312 LYP
on the tragic morning of 10.1.99, thus the said admission is
immaterial. Be that as it may, this admission on the part of the
accused cannot be construed as taking or introducing a new plea as
the appellant after the trial of the case can always admit his guilt and
the prosecution at least cannot raise a plea to challenge such an
admission on the part of the accused. This may not be true in a case
where the accused at the appellate stage introduces a new plea to
evade conviction. The judgment of Nehru Jain (Supra) is not of any
support to the counsel as it relates to some other issues.
1. Unfair trial
(a)Speedy trial
96. This brings me to deal with the first submission of the counsel
for the appellant claiming denial of speedy and fair trial to the
appellant as enshrined under Article 21 of the Constitution of India.
In the entire grounds of appeal nowhere the appellant has raised any
grievance either with regard to the alleged denial of fair trial or the
speedy trial. However, the issue being purely legal deserves proper
consideration.
97. First, I would like to deal with the contentions raised by the
counsel for the appellant with regard to the denial of speedy trial.
Contention of the counsel for the appellant was that the right to
speedy trial is granted to every accused under Article 21 of the
Constitution of India and Section 309 of the Code of Criminal
Procedure is partial embodiment of the same. As per the counsel for
the appellant the prosecution has taken more than 8 years time in
completing the trial without their being any lapse on the part of the
appellant accused. The initial chargesheet in the case was filed on
25th March, 1999 while second and third chargesheets were filed on
3rd September, 2006 and 18th September, 2007. The first prosecution
witness was examined on 18th August, 1999 and last prosecution
witness was examined on 28.8.2003. It took nearly 19 months for
examination of the appellant starting on 2.1.2004 and ending on 5 th
October, 2005. The case for the defence evidence was listed on 24th
October, 2005, but later a supplementary chargesheet was filed on
3rd September, 2006. The first defence witness then came to be
examined on 7th October, 2007. After conducting fresh examination
of the appellant under Section 313 Code of Criminal Procedure on
19.11.2007 and after the start of defence evidence again, the
appellant was again examined to record his statement under Section
313 of the Code of Criminal Procedure. Final arguments in the case
started on 1.7.2008 and the judgment was delivered on 2nd
September, 2008. Contention of the counsel for the appellant was
that the entire career of the appellant got ruined educationally,
professionally as well as on his matrimonial front. The appellant lost
his precious adolescent life either by remaining behind bar or facing
the ordeal of trial. Strong reliance was placed by the counsel for the
appellant on the Constitutional Bench decision of the Apex Court in
A.R. Antuley‟s case (Supra) and Pankaj Kumar‟s case (supra)
On the other hand Mr. Pawan Sharma, APP for the State gave
detailed account of day to day hearing before the Trial Court and
submitted that no delay has been caused by the prosecution and the
adjournments, if any, had taken place before the Trial Court were for
multiple reasons beyond the control of the prosecution for which the
appellant cannot claim denial of the speedy trial.
98. In support of his arguments Public Prosecutor of the State
placed reliance on the judgments of the Apex Court reported in 2002
III AD (S.C.) 634 P. Ramachandra Rao Vs. State of Karnataka.
The contention of the State Prosecutor was that the guidelines laid
down by the Apex Court in A.R. Antulay‟s case (supra) are not
exhaustive but only illustrative and are not to be applied like a strait
jacket formula. Counsel for the State also placed reliance on the
other judgments of the Apex Court reported in 2002 (3) AD Crl. SC
770 State Vs. Dr. Narayan Waman; 2008 (3) JCC 2115 S.P. Vs.
B. Sriniwas and AIR 2008 SC 1943 Himanshu Singh Sabharwal
Vs. State of M.P. Counsel also submitted that it is not the accused
alone who is entitled to speedy and fair trial but equally the victims
also expect the trial to be fair and expeditious.
99. The framers of our Constitution made no provision to
recognize the right to speedy trial as one of the fundamental rights
under the Constitution of India unlike the VI amendment to the U.S.
Constitution which expressly recognizes this right. The VI
amendment to the U.S. Constitution declares inter alia that "in all
criminal prosecutions the accused shall enjoy the right to speedy
trial". Article 21 of the Constitution of India received a wider
interpretation in Mrs. Maneka Gandhi v. Union of India and Anr.
AIR 1978 SC 597 and its horizons were broadened further in
Hussainara Khatoon and Ors. v. Home Secretary, State of
Bihar 1978 SC 1360. Delivering the judgment in the said case
Hon‟ble Mr. Justice Bhagwati observed as under:-
―We think that even under our Constitution, though speedy trial is not specifically
enumerated as a fundamental right, it is implicit in the broad sweep and content of
Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India9. We have
held in that case that Article 21 confers a fundamental right on every person not to be
deprived of his life or liberty except in accordance with the requirement of that article
that some semblance of a procedure should be prescribed by law, but that the
procedure should be ‗reasonable, fair and just'. If a person is deprived of his liberty
under a procedure which is not ‗reasonable, fair or just', such deprivation would be
violative of his fundamental right under Article 21 and he would be entitled to enforce
such fundamental right and secure his release. Now obviously procedure prescribed by
law for depriving a person of his liberty cannot be ‗reasonable, fair or just' unless that
procedure ensures a speedy trial for determination of the guilt of such person. No
procedure which does not ensure a reasonably quick trial can be regarded as
‗reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no
doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an
integral and essential part of the fundamental right of life and liberty enshrined in Article
21.‖
100. Without there being any dissent on the fundamentals laid
down in Hussainara Khatoon‟s case (supra) the scope of Article
21 again came up for consideration before the Constitutional Bench
in Abdul Rehman Antulay Vs. R.S. Nayak and Anr., AIR 1992
SC 1701 where the question was raised that no such right of speedy
trial flows from Article 21 of the Constitution of India and the right if
at all there, is an amorphous one, while on the other hand
supporters of the said right went a step forward to claim laying down
of upper time limit beyond which criminal trial should be not allowed
to proceed. Needless to state that Mr. Ram Jethmalani, Senior
Advocate also represented one of the appellants in the criminal
appeals argued before the Constitutional Bench, representing the
view of those who did not recognize the right to speedy trial flowing
from Article 21 of the Constitution of India once the same having not
been specifically recognized unlike in the U.S. Constitution. After
referring to the number of decisions of the Apex Court and the
American Law on the subject, the Apex Court laid down the
following 11 guidelines but with a word of caution that guidelines are
not exhaustive as it was difficult to foresee all situations nor was it
possible to lay down any hard and fast rules. The guidelines framed
by the Apex Court in the said case are reproduced as under:-
―86. In view of the above discussion, the following propositions emerge, meant to serve
as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult
to foresee all situations. Nor is it possible to lay down any hard and fast rules. These
propositions are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily. Right to speedy trial is the right of the accused.
The fact that a speedy trial is also in public interest or that it serves the social interest
also, does not make it any the less the right of the accused. It is in the interest of all
concerned that the guilt or innocence of the accused is determined as quickly as
possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the
stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court
has understood this right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of view of the
accused are:
(a) the period of remand and pre-conviction detention should be as short
as possible. In other words, the accused should not be subjected to unnecessary or
unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused
to defend himself, whether on account of death, disappearance or non-availability of
witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the accused who is
interested in delaying the proceedings. As is often pointed out, ―delay is a known
defence tactic‖. Since the burden of proving the guilt of the accused lies upon the
prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses,
disappearance of evidence by lapse of time really work against the interest of the
prosecution. Of course, there may be cases where the prosecution, for whatever
reason, also delays the proceedings. Therefore, in every case, where the right to
speedy trial is alleged to have been infringed, the first question to be put and answered
is -- who is responsible for the delay? Proceedings taken by either party in good faith,
to vindicate their rights and interest, as perceived by them, cannot be treated as
delaying tactics nor can the time taken in pursuing such proceedings be counted
towards delay. It goes without saying that frivolous proceedings or proceedings taken
merely for delaying the day of reckoning cannot be treated as proceedings taken in
good faith. The mere fact that an application/petition is admitted and an order of stay
granted by a superior court is by itself no proof that the proceeding is not frivolous. Very
often these stays are obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in violation of Right
to Speedy Trial) one must have regard to all the attendant circumstances, including
nature of offence, number of accused and witnesses, the workload of the court
concerned, prevailing local conditions and so on -- what is called, the systemic delays.
It is true that it is the obligation of the State to ensure a speedy trial and State includes
judiciary as well, but a realistic and practical approach should be adopted in such
matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice the accused. Some delays
may indeed work to his advantage. As has been observed by Powell, J. in Barker22 ―it
cannot be said how long a delay is too long in a system where justice is supposed to be
swift but deliberate‖. The same idea has been stated by White, J. in U.S. v. Ewell39 in
the following words:
‗... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with
delays, and has orderly expedition, rather than mere speed, as its essential ingredients;
and whether delay in completing a prosecution amounts to an unconstitutional
deprivation of rights depends upon all the circumstances.'
However, inordinately long delay may be taken as presumptive proof of prejudice. In
this context, the fact of incarceration of accused will also be a relevant fact. The
prosecution should not be allowed to become a persecution. But when does the
prosecution become persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the ‗demand' rule. An accused
cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an
accused's plea of denial of speedy trial cannot be defeated by saying that the accused
did at no time demand a speedy trial. If in a given case, he did make such a demand
and yet he was not tried speedily, it would be a plus point in his favour, but the mere
non-asking for a speedy trial cannot be put against the accused. Even in USA, the
relevance of demand rule has been substantially watered down in Barker22 and other
succeeding cases.
(8) Ultimately, the court has to balance and weigh the several relevant factors --
‗balancing test' or ‗balancing process' -- and determine in each case whether the right
to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy
trial of an accused has been infringed the charges or the conviction, as the case may
be, shall be quashed. But this is not the only course open. The nature of the offence
and other circumstances in a given case may be such that quashing of proceedings
may not be in the interest of justice. In such a case, it is open to the court to make such
other appropriate order -- including an order to conclude the trial within a fixed time
where the trial is not concluded or reducing the sentence where the trial has concluded
-- as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any
such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift
the burden of proving justification on to the shoulders of the prosecution. In every case
of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify
and explain the delay. At the same time, it is the duty of the court to weigh all the
circumstances of a given case before pronouncing upon the complaint. The Supreme
Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the
Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the
guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account,
should first be addressed to the High Court. Even if the High Court entertains such a
plea, ordinarily it should not stay the proceedings, except in a case of grave and
exceptional nature. Such proceedings in High Court must, however, be disposed of on a
priority basis.‖
101. Mr. Ram Jethmalani, Senior Advocate for the appellant placed
strong reliance on the aforesaid guidelines to claim acquittal of the
accused, who has been denied speedy trial by the Trial Court on
account of unexplained and unreasonable delay of about 9 years in
concluding the trial ruining the bright career of the appellant on
educational, professional and matrimonial front. On the other hand
Mr. Pawan Sharma, APP for the State placed reliance on the
judgment of the Apex Court in P. Ramachandra Rao‟s case
(supra) to buttress his argument that the guidelines laid down in
A.R. Antulay‟s case are not exhaustive but only illustrative and they
cannot be applied like a strait jacket formula. Specific reference was
made to para 32 of the said judgment, which is referred as under:-
―For all the foregoing reasons, we are of the opinion that in Common Cause case (I)3
[as modified in Common Cause (II)4] and Raj Deo Sharma (I)1 and (II)2 the Court could
not have prescribed periods of limitation beyond which the trial of a criminal case or a
criminal proceeding cannot continue and must mandatorily be closed followed by an
order acquitting or discharging the accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case5 is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the
right to speedy trial laid down as guidelines in A.R. Antulay case5 adequately take care
of right to speedy trial. We uphold and reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay case5 are not exhaustive but only
illustrative. They are not intended to operate as hard-and-fast rules or to be applied like
a straitjacket formula. Their applicability would depend on the fact situation of each
case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an
outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation
prescribed in the several directions made in Common Cause (I)3, Raj Deo Sharma (I)1
and Raj Deo Sharma (II)2 could not have been so prescribed or drawn and are not
good law. The criminal courts are not obliged to terminate trial or criminal proceedings
merely on account of lapse of time, as prescribed by the directions made in Common
Cause case (I)3, Raj Deo Sharma case (I)1 and (II)2. At the most the periods of time
prescribed in those decisions can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be persuaded to apply their judicial
mind to the facts and circumstances of the case before them and determine by taking
into consideration the several relevant factors as pointed out in A.R. Antulay case5 and
decide whether the trial or proceedings have become so inordinately delayed as to be
called oppressive and unwarranted. Such time-limits cannot and will not by themselves
be treated by any court as a bar to further continuance of the trial or proceedings and as
mandatorily obliging the court to terminate the same and acquit or discharge the
accused.
(5) The criminal courts should exercise their available powers, such as those under
Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to
speedy trial. A watchful and diligent trial Judge can prove to be a better protector of
such right than any guidelines. In appropriate cases, jurisdiction of the High Court under
Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking
appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State
Governments of their constitutional obligation to strengthen the judiciary --
quantitatively and qualitatively -- by providing requisite funds, manpower and
infrastructure. We hope and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated 19-9-2000 and 26-4-
2001 in the abovesaid terms.‖
102. On the same lines the Apex Court in Dr. Narayan
Waman‟s case (supra) observed as under:-
―9. While considering the question of delay the court has a duty to see whether
the prolongation was on account of any delaying tactics adopted by the accused and
other relevant aspects which contributed to the delay. Number of witnesses examined,
volume of documents likely to be exhibited, nature and complexity of the offence which
is under investigation or adjudication are some of the relevant factors. There can be no
empirical formula of universal application in such matters. Each case has to be judged
in its own background and special features, if any. No generalization is possible and
should be done. It has also to be borne in mind that the criminal courts exercise
available powers such as those under Sections 309, 311 and 258 CrPC to effectuate
right to speedy trial.‖
103. Reference is also made to paras 7 and 8 of B. Sriniwas‟s
case (supra), which are reproduced as under:-
―7. There is no general and wide proposition of law formulated that whenever
there is delay on the part of the investigating agency in completing the investigation,
such a delay can be a ground for quashing the FIR. It would be difficult to formulate
inflexible guidelines or rigid principles in determining as to whether the accused has
been deprived of fair trial on account of delay or protracted investigation; it would
depend on various factors including whether such a delay was reasonably long or
caused deliberately or intentionally to hamper the defence of the accused or whether
the delay was inevitable in the nature of things or whether it was due to dilatory tactics
adopted by the accused. It would depend upon certain peculiar facts and circumstances
of each case i.e. the volume of evidence collected by the investigating agency, the
nature and gravity of the offence for which the accused has been charge-sheeted in a
given case. The nexus between whole and some of the above factors is of considerable
relevance. Therefore, whether the accused has been deprived of fair trial on account of
protracted investigation has to come on facts. He has also to establish that he had no
role in the delay. Every delay does not necessarily occur because of the accused.
8. A seven-Judge Bench of this Court in P. Ramachandra Rao v. State of Karnataka2
affirmed the view taken in Abdul Rehman Antulay v. R.S. Nayak3 and clarified
confusion created by certain observations in Common Cause, A Registered Society v.
Union of India4, Common Cause, A Registered Society v. Union of India5, Raj Deo
Sharma v. State of Bihar6 and Raj Deo Sharma (II) v. State of Bihar7. It was observed
that the decision in A.R. Antulay case3 still holds the field and the guidelines laid down
in the said case are not exhaustive but only illustrative. They are not intended to
operate as hard-and-fast rules or to be applied like a straitjacket formula. Their
applicability would depend on the factual situations of each case. It is difficult to foresee
all situations and no generalisation can be made. It has also been held that it is neither
advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for
conclusion of all criminal proceedings. Whenever there is any allegation of violation of
right to speedy trial the court has to perform by balancing the act by taking into
consideration all attending circumstances and to decide whether the right to speedy trial
has been denied in a given case. As noted above, one month after the order relating to
investigation and lodging of FIR, a petition under Section 482 of the Code was filed
before the High Court.‖
104. In another recent case reported in Manu/SC/7818/2008
Pankaj Kumar Vs State of Maharashtra and Ors. the Apex Court
has referred to all the aforesaid judgments and came to the following
conclusion:-
―17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions
is an inalienable right under Article 21 of the Constitution. This right is applicable not
only to the actual proceedings in court but also includes within its sweep the preceding
police investigations as well. The right to speedy trial extends equally to all criminal
persecutions and is not confined to any particular category of cases. In every case,
where the right to speedy trial is alleged to have been infringed, the court has to
perform the balancing act upon taking into consideration all the attendant
circumstances, enumerated above, and determine in each case whether the right to
speedy trial has been denied in a given case. Where the court comes to the conclusion
that the right to speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, may be quashed unless the court feels that having
regard to the nature of offence and other relevant circumstances, quashing of
proceedings may not be in the interest of justice. In such a situation, it is open to the
court to make an appropriate order as it may deem just and equitable including fixation
of time for conclusion of trial.‖
105. Truth is the cherished principle and is the guiding star of the
Indian criminal justice system. For justice to be done truth must
prevail. Truth is the soul of justice. The sole idea of criminal justice
system is to see that justice is done. Justice will be said to be done
when no innocent person is punished and the guilty person is not
allowed to go scot free.
106. For dispensation of criminal justice, India follows the
accusatorial or adversarial system of common law. In the
accusatorial or adversarial system the accused is presumed to be
innocent; prosecution and defence each put their case; judge acts as
an impartial umpire and while acting as a neutral umpire sees
whether the prosecution has been able to prove its case beyond
reasonable doubt or not.
107. In India, the entire burden to prove the accused guilty so that
he does not go unpunished is upon the prosecution. While seeing
that the rights of the accused are not infringed it is equally essential
to see that the victims and the family of the victims of the crime are
not ignored as the very purpose behind the concept of duties of the
State and its organs are that the law and order is maintained in the
state and the grievance of the victims should not go without redress.
108. In this regard, it would be worthwhile to refer to para 13 of the
judgment of the Hon‟ble Apex Court entitled State of Maharashtra
Vs. Dr. Praful B. Desai -- (2003) 4 SCC 601 :-
13. One needs to set out the approach which a court must adopt in deciding such
questions. It must be remembered that the first duty of the court is to do justice. As has
been held by this Court in the case of Nageshwar Shri Krishna Ghobe v. State of
Maharashtra 5 courts must endeavour to find the truth. It has been held that there would
be failure of justice not only by an unjust conviction but also by acquittal of the guilty for
unjustified failure to produce available evidence. Of course the rights of the accused
have to be kept in mind and safeguarded, but they should not be overemphasized to the
extent of forgetting that the victims also have rights.
109. The golden right of speedy trial enshrined in Article 21 of the
Constitution of India stands duly recognized in Section 309 of the
Code of Criminal Procedure and as per counsel for the appellant the
said provision is in fact a partial embodiment of the mandate of
Article 21 of the Constitution of India. Section 309 of the Code of
Criminal Procedure is reproduced as under:-
"Section 309 CrPC
―309. Power to postpone or adjourn proceedings.-- (1) In every inquiry or trial, the
proceedings shall be held as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be continued from day to day
until all the witnesses in attendance have been examined, unless the court finds the
adjournment of the same beyond the following day to be necessary for reasons to be
recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the
same on such terms as it thinks fit, for such time as it considers reasonable, and may
by a warrant remand the accused if in custody:
Provided that no magistrate shall remand an accused person to custody under this
section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or
postponement shall be granted, without examining them, except for special reasons to
be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the
accused person to show cause against the sentence proposed to be imposed on him.‖
110. With the aforesaid legal position there does not remain even an
iota of doubt that the right to speedy trial in all criminal proceedings
is an inalienable right not only flowing from Article 21 of the
Constitution of India, but is a well recognized right under Section
309 of the Code of Criminal Procedure. It is both in the interest of
accused as well of the society that a criminal case is concluded as
expeditiously as feasible. Societal interest lies in punishing the guilty
and exoneration of the innocent, but one cannot shut his eyes from
the cumbersome procedure involved before the final culmination of
the trial proceedings. „Justice delayed is justice denied‟ is a popular
adage. But not in every case delay in trial results in denial of justice
and it is only when there is an inordinate delay which is proved to be
oppressive and unwarranted. It is the right of both, the accused and
the victims that the trial should culminate as expeditiously as
possible. But there are certain factors which we cannot ignore while
considering whether the delay in trial was oppressive and
unjustifiable.
111. The principal reasons which can contribute delay in trial have
been dealt by the Supreme Court in P. Ramachandra Rao‟ case
(supra) in paras 22 and 23 of the judgment which are referred as
under:-
―22. A perception of the cause for delay at the trial and in conclusion of criminal
proceedings is necessary so as to appreciate whether setting up bars of limitation
entailing termination of trial or proceedings can be justified. The root cause for delay in
dispensation of justice in our country is poor judge-population ratio. The Law
Commission of India in its 120th Report on Manpower Planning in Judiciary (July 1987),
based on its survey, regretted that in spite of Article 39-A being added as a major
directive principle in the Constitution by the Forty-second Amendment (1976), obliging
the State to secure such operation of legal system as promotes justice and to ensure
that opportunities for securing justice are not denied to any citizen, several
reorganisation proposals in the field of administration of justice in India have been
basically patchwork, ad hoc and unsystematic solutions to the problem. The judge-
population ratio in India (based on the 1971 census) was only 10.5 Judges per million
population while such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and
107 in United States. The Law Commission suggested that India required 107 judges
per million of the Indian population; however, to begin with, the judge strength needed
to be raised to fivefold i.e. 50 judges per million population in a period of five years but
in any case, not going beyond ten years. Touch of sad sarcasm is difficult to hide when
the Law Commission observed (in its 120th Report, ibid.) that adequate reorganisation
of the Indian judiciary is at the one and at the same time everybody's concern and,
therefore, nobody's concern. There are other factors contributing to the delay at the
trial. In A.R. Antulay case5 vide para 83, the Constitution Bench has noted that in spite
of having proposed to go on with the trial of a case, five days a week and week after
week, it may not be possible to conclude the trial for reasons viz. (1) non-availability of
the counsel, (2) non-availability of the accused, (3) interlocutory proceedings, and (4)
other systemic delays. In addition, the Court noted that in certain cases there may be a
large number of witnesses and in some offences, by their very nature, the evidence
may be lengthy. In Kartar Singh v. State of Punjab8 another Constitution Bench opined
that the delay is dependent on the circumstances of each case because reasons for
delay will vary, such as (i) delay in investigation on account of the widespread
ramifications of the crime and its designed network either nationally or internationally,
(ii) the deliberate absence of witness or witnesses, (iii) crowded dockets on the file of
the court etc. In Raj Deo Sharma (II)2 in the dissenting opinion of M.B. Shah, J., the
reasons for delay have been summarized as, (1) dilatory proceedings; (2) absence of
effective steps towards radical simplification and streamlining of criminal procedure; (3)
multitier appeals/revision applications and diversion to disposal of interlocutory matters;
(4) heavy dockets, mounting arrears, delayed service of process; and (5) judiciary,
starved by executive by neglect of basic necessities and amenities, enabling smooth
functioning.
23. Several cases coming to our notice while hearing appeals, petitions and
miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart
from inadequate judge strength, other factors contributing to the delay at the trial.
Generally speaking, these are: (i) absence of, or delay in appointment of, Public
Prosecutors proportionate with the number of courts/cases; (ii) absence of or belated
service of summons and warrants on the accused/witnesses; (iii) non-production of
undertrial prisoners in the court; (iv) presiding Judges proceeding on leave, though the
cases are fixed for trial; (v) strikes by members of the Bar; and (vi) counsel engaged by
the accused suddenly declining to appear or seeking an adjournment for personal
reasons or personal inconvenience. It is common knowledge that appointments of
Public Prosecutors are politicized. By convention, Government Advocates and Public
Prosecutors were appointed by the executive on the recommendation of or in
consultation with the head of the judicial administration at the relevant level but
gradually the executive has started bypassing the merit-based recommendations of, or
process of consultation with, District and Sessions Judges. For non-service of
summons/orders and non-production of undertrial prisoners, the usual reasons
assigned are shortage of police personnel and police people being busy in VIP duties or
law and order duties. These can hardly be valid reasons for not making the requisite
police personnel available for assisting the courts in expediting the trial. The members
of the Bar shall also have to realize and remind themselves of their professional
obligation -- legal and ethical, that having accepted a brief for an accused, they have
no justification to decline or avoid appearing at the trial when the case is taken up for
hearing by the court. All these factors demonstrate that the goal of speedy justice can
be achieved by a combined and result-oriented collective thinking and action on the part
of the legislature, the judiciary, the executive and representative bodies of members of
the Bar.‖
112. Based on the above legal principles, let me examine the facts of
the present case to see whether the prolongation in the trial was on
account of dilatory tactics adopted by the prosecution for any
extraneous reasons or the delay took place due to multiple factors
involved in the gradual progress of the trial. Mr. Ram Jethmalani has
put the blame on the prosecution on account of the fact that
supplementary chargesheets were filed by the prosecution after
about a lapse of 7 years i.e. 3rd September, 2006 and 18th September,
2007, which led to the examination of the accused under Section 313
Cr.P.C. on three different occasions. Counsel for the appellant also
raised grievance that various adjournments were taken by the
prosecution, which led to causing unnecessary delay firstly in
completing the prosecution evidence and then the defence evidence
which could not take place for a period of 2 ½ years due to the filing
of supplementary chargesheet by the prosecution. No doubt, under
Section 173 of the Code of Criminal Procedure the police is expected
to complete the investigation with all promptness and without any
unnecessary delay and in the present case there has been
unreasonable delay so far the filing of the chargesheets on 3rd
September, 2006 and 18th September, 2007 are concerned. However,
at the same time both the chargesheets were filed because of the
necessity of carrying out further scientific investigation first for the
collection of the blood samples of the appellant/accused and then for
carrying out the comparison of finger prints of the accused persons
with the result of the comparison of the chance prints of the accused
persons, who were occupants of the offending vehicle. Necessary
applications were moved by the prosecution before the Trial Court so
as to take blood sample of the appellant and for taking finger prints
of the accused persons facing the trial and needless to mention that
necessary directions were given by the Trial Court keeping in view
the mandate of Section 173 (8) of the Code of Criminal Procedure,
which permits the police to carry out further investigation even after
filing a report under Section 173 (2) of the Code of Criminal
Procedure. The learned Trial Court in its order dated 19th July, 2006
clearly observed that carrying out any scientific investigation does
not cause prejudice to any party. The Court also observed that the
investigating agency does not require any direction from the Court
for taking blood sample of the accused as the investigating agency
was fully empowered to do the same under Section 173(8) of the
Code of Criminal Procedure even during the pendency of the trial.
The filing of the chargesheet was opposed by the counsel
representing the appellant and then also the Court observed that
there is no substance in the arguments advanced by the learned
counsel for the accused as already the Court observed that
Investigating Officer is at liberty to carry out further investigation of
the case under Section 173(8) of the Code of Criminal Procedure. It
is thus evident that the two supplementary chargesheets were filed
by the police under Section 173(8) of the Code of Criminal Procedure
and the senior counsel for the appellant failed to satisfy this Court as
to how the filing of the said two supplementary chargesheets has
prejudiced the case of the appellant by just recording subsequent
statements of the appellant under Section 313 of the Code of
Criminal Procedure. When the documents were filed along with the
supplementary chargesheet dated 3.9.2006 the defence counsel
sought time to move an application to examine more witnesses and
also sought time to examine the summoned witnesses as was borne
out of the order dated 4.9.2006, which is reproduced as under:-
―In view of admission of the documents, the prosecution does not want to
examine any witness concerning above stated documents. Now this court wants to put
a few questions U/S 313 Cr.P.C. in view of the further evidence. However, Ld defence
counsel submits that since some new material has come on record, he wants to move
an application U/S 311 Cr.P.C. to further summon a few witnesses and submits that
further questions U/S 313 Cr.P.C. be recorded after decision of the application or
examination of the witnesses, if any, summoned by this court U/S 311 CrPC.
It is submitted by Ld defence counsel that defence witness namely Sumitra
Nanda and Karan Singh are present, however, he would like to examine him after
further recording of statement U/S 313 CrPC. To come up for further proceedings on
16.10.06.‖
113. In the intervening proceedings the Court had summoned
Sunil Kulkarni in exercise of its powers under Section 311 Cr.P.C.
and statement of the appellant under Section 313 was recorded by
the Court on 19.11.2007. The aforesaid delay in filing the
supplementary chargesheet and the consequent examination of the
appellant/accused under Section 313 Cr.P.C. in my view has not
caused any prejudice to the appellant and has not caused such delay
so as to make him entitled to claim acquittal on this ground. In
Antulay‟s case (supra) as well as the other judgments cited above,
the Apex Court has clearly held that every case has to be examined
on its own facts and the Court has to perform balancing act after
taking into consideration all the attendant circumstances. The Apex
Court has also held that each and every delay does not necessarily
prejudice the accused and many delays can be attributed to the
delays in the system, which occur due to the multiple factors, due to
filing of various applications by the parties, challenge made to the
various orders before the Court, heavy dockets of the Court,
Presiding Officer on leave, advocates of either side not available due
to their pre-occupation in other Courts or for their own personal
reasons and many other unforeseen situations. The detailed account
placed on record by the State counsel of day to day hearing before
the Trial Court does exemplify that on many dates the Court file was
not received by the Trial Court due to pendency of the proceedings
before the High Court, on many dates one or the other application of
the prosecution or the accused was pending consideration, on many
dates even the Presiding Officer was on leave. However, the perusal
of the Court proceedings clearly reveal that on most of the dates
effective proceeding took place and, therefore, the instant case
cannot be considered to be a case of denial of speedy trial to the
appellant accused. This contention of the counsel for the appellant is
thus not sustainable and is rejected.
114. In any event of the matter, the appellant himself must share
the burden of causing delay in the matter as with a view to
hoodwink the prosecution and to escape from the clutches of law, he
denied the factum of accident. It is only at the stage of final
arguments before the trial court and in appeal, the appellant turned
honest to accept occurrence of the said horrifying accident while
driving BMW Car bearing registration No. M-312-LYP. Certainly, a
lot of time could have been saved had the accused been honest from
day one and admitted his guilt.
(b) Judicial Unfairness
115. Let me now examine the second limb of argument of the
counsel for the appellant claiming denial of fair trial to the
accused/appellant. Counsel for the appellant very strenuously urged
that due to the judicial unfairness on the part of the trial judge and
the prosecution, the entire trial held before the trial court stood
vitiated. The arguments raised by the counsel for the appellant in
this regard can be categorized in the following terms:-
( a) Unwarranted observations made by the court in the final
judgment which reflects personal prejudice and bias of the judge
over-influenced by the conduct of the investigation, conduct of the
defence counsel and of the public prosecutor, demeanor of witnesses
and for all these ills placed blame on the appellant on account of his
belonging to a rich and influential family.
(b) The audience given by the Learned Judge to Mr. Sunil Kulkarni,
the court witness in his chamber on 11.7.1999 without making
disclosure to either of the parties till during the course of final
arguments when passing reference of the said meeting was made by
the judge during the course of final arguments.
(c) Reference made to the High Court Judgment in „Sting
Operation case‟ without affording any opportunity to the accused.
(d) Non-production and non-disclosure of the PCR messages ,
more particularly in reference to the statement of PW 2 Manoj Malik
victim of the accident recorded by the police officials of the PCR Van
and flashed to the police control room.
116. In support of his arguments with regard to the unfair trial,
counsel for the appellant placed reliance on Section 20 of the
Jamaica (Constitutional) Order as referred in Herbert Bell Vs.
Director of Public Prosecutions & Anrs. (1985) A.C. 937 and
decision in Datar Singh Vs. State of Punjab (Supra), Sharad
Birdhichand Sarda Vs. State of Maharashtra (Supra) and
Chandran @ Surendran and Anr. Vs. State of Kerala (Supra).
Counsel for the appellant also placed reliance on Rule 16 of Bar
Council of India Rules & Guideline A- 252 of the Attorney General
Guidelines.
117. Mr. Pawan Sharma, Addl. P.P. for the State, on the other hand,
vehemently opposed the said contention raised by the counsel for the
appellant and submitted that the approach of the trial court was
absolutely fair and judicious. Fully supporting the trial judge for the
observations made by him in the final judgment, counsel for the
State submitted that presiding officer cannot remain a mute
spectator to various happenings taking place surrounding the case in
hand and is required to take active interest to elicit all relevant
material to find out the truth and to administer justice with all
fairness and impartiality. Counsel for the State placed reliance on
the judgment of the Apex Court reported in AIR 2004 SC 3114
Zahira Habibullah H. Shaikh Vs. State of Gujarat.
118. Free and fair trial is sine-qua-non of Article 21 of the
Constitution of India. If the criminal trial is not free and fair and not
free from the bias, then the confidence of the public in the judicial
fairness of a judge and the justice delivery system would be shaken.
Denial to fair trial is as much injustice to the accused as to the
victim and the society. No trial can be treated as a fair trial unless
there is an impartial judge conducting the trial, an honest and fair
defence counsel and equally honest and fair public prosecutor. Fair
trial necessarily includes fair and proper opportunity to the
prosecutor to prove guilt of the accused and opportunity to the
accused to prove his innocence.
119. Before dealing with the rational of the said court observations,
it would be appropriate to reproduce the observations of the trial
court as objected to by the counsel for the appellant which are as
under:-
―(Page 45) ―This trial poses greater questions as to what is the
meaning of fair trial and how should the court proceed when the witnesses are being
won over and the trial is being hijacked by the high and mighty. The trial saw many
dramatic twists and turns and it is an eloquent witnesses to a common state of affairs in
the criminal trials. Of course all the trials do not get the publicity as the present one.
This is case where it is needed that the entire criminal justice system should sit up to
find effective ways and means to tackle a situation whether wealthy and highly paced
persons are able to thwart the entire course of justice and thereafter at the end, claim
benefit of doubt as a matter of right. This is a trial in which entire criminal justice system
crumbled, though a hope for justice still remained because of the watchful eyes of
vigilant fourth estate.‖
(ii) Page72- ―I make it clear that entire evidence in this
case has to be appreciated in the backdrop of the circumstances that accused persons
have indulged in winning over the witnesses to such an extent that even the victim of
this offence is testifying that offending vehicle was a truck.
(iii) Page 116-117- I have already stated that this particular case
is one of those cases which highlights the degradation which has crept into the criminal
justice system. Conduct of the investigating agency is also under shadow of doubt. A
careful perusal of the entire Investigation and the case diaries as well as the judicial
record, it would become abundantly clear that although initially the police acted with a
great responsiveness which is expected from a law enforcing agency. But very soon a
great deal of reluctance on the part of the investigating officer starts appearing in the
case. Though from outward, it was a show of strength and determination but the silent
termites had started eating the wood from inside.
―(iv) Page 122-123- But after perusal of the entire judicial file and police file, I am of
the considered opinion that this is simply not a case of hobnobbing between defence
counsel and prosecution but also at some stage in the back ground, the Investigating
Officer has been influenced who being, deliberately indulged in such perfunctory
investigation that it causes serious prejudice to the prosecution. In background of these
circumstances, the evidence on record has to be assessed. The principle of weighing
the evidence on golden scales cannot be applied here because this trial is an example
where the entire criminal justice and entire trial has been hijacked by the rich and
influential accused persons. Once this scenario is emerging, taking technical view of
the facts and circumstances is bound to lead to miscarriage of justice .‖
―(v) Page 123-124. However this was high profile case and the record shows that
the same was being monitored by the top police officers. Therefore, such level of
inefficiency is not incidental, rather to my mind, the same appears to be deliberate. In
such state of affair, the court has only one option i.e. to abandon the narrow and
winding lane of technicalities and travel on the royal road of justice.‖
120. The role of a judge in dispensation of justice after ascertaining
the true facts no doubt is very difficult one. In the pious process of
unraveling the truth so as to achieve the ultimate goal of dispensing
justice between the parties the judge cannot keep himself
unconcerned and oblivious to various happenings taking place during
the progress of trial of any case. No doubt he has to remain very
vigilant, cautious, fair and impartial, and not to give even slightest of
impression that he is biased or prejudiced either due to his own
personal convictions or views in favour of one or the other party.
This, however, would not mean that judge will simply shut his own
eyes and be a mute spectator, acting like a robot or a recording
machine to just deliver what stands feeded by the parties. Although,
the courts are required to remain totally unstirred, unaffected and
unmoved amidst storms and tribulations of various corrupt and
flagitious activities happening around them involving of the police,
prosecutor or the defence counsel or even the whirlwind publicity of
a high profile case which affects public opinion and motivates media
trial but it cannot be expected of them not to deprecate or condemn
such misdeeds of those culprits hell bent to pollute the stream of
judicial process. A man after becoming a Judge, in any case, does
not become a passionless thinking machine not to react to certain
situations. The recent judgment of the Apex Court in Zahira‟s case
(Supra) although was given in its own peculiar facts but is an
answer to the aforesaid objections raised by the counsel for the
appellant. It would be worthwhile to reproduce para No.38 of the
same as under:-
38. This Court has often emphasised that in a criminal case the fate of the proceedings
cannot always be left entirely in the hands of the parties, crimes being public wrongs in
breach and violation of public rights and duties, which affect the whole community as a
community and are harmful to the society in general. The concept of fair trial entails
familiar triangulation of interests of the accused, the victim and the society and it is the
community that acts through the State and prosecuting agencies. Interests of society
are not to be treated completely with disdain and as persona non grata. Courts have
always been considered to have an overriding duty to maintain public confidence in the
administration of justice -- often referred to as the duty to vindicate and uphold the
―majesty of the law‖. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting its
ability to function as a court of law in the future as in the case before it. If a criminal
court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. Courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still possible, except at the risk
of undermining the fair name and standing of the judges as impartial and independent
adjudicators.
121. The first and the primary duty of a Judge is to do justice. For
a common man truth and justice are synonymous. So when truth
fails justice also fails. Criminal Justice System in India accords
highest importance to truth and for this reason, alone our National
Emblem, "Ashoka Sthambha" has the inscribed motto, "Satyameva
Jayate" (Truth alone succeeds).
122. The Hon‟ble Apex Court has condemned the passive role
played by Judges and emphasized the importance and legal duty of a
Judge to take an active role in proceedings in order to find the truth
to administer justice and to prevent the truth from becoming a
casualty. A Judge is also duty bound to act with impartiality and
before he gives an opinion or sits to decide the issues between the
parties, he should be sure that there is no bias against or for either
of the parties to the lis. For a judge to properly discharge this duty
the concept of independence of judiciary is in existence and it
includes ability and duty of a Judge to decide each case according to
an objective evaluation and application of the law, without the
influence of outside factors.
123. If the courts are to impart justice in a free, fair and effective
manner then the presiding judge cannot afford to remain a mute
spectator totally oblivious to the various happenings taking place
around him, more particularly, concerning a particular case being
tried by him. The fair trial is possible only when the court takes
active interest and elicit all relevant information and material
necessary so as to find out the truth for achieving the ultimate goal
of dispensing justice with all fairness and impartiality to both the
parties.
124. In the facts of the present case, where two material witnesses
took a somersault and circumstances under which the prosecution
had dropped star witness, Mr. Sunil Kulkarni who was later
summoned as a court witness, the trial court also could not have
remained oblivious to the sting operation carried out by NDTV
exposing the unholy nexus between the defence and the prosecution
and no doubt the media publicity due to the involvement of an
accused not only because of being a protege of a rich businessman
but also being the grand-son of one of the national hero Admiral
S.M. Nanda and so on and so forth and therefore, no fault can be
found with the aforesaid comments made by the court not at interim
stage but in the final judgment. Merely because a Judge actively
participates in the proceedings would not mean that he is not
neutral and has deviated from the path of truth. Throughout the
ages and in all societies, impartiality has been regarded as the
essence of the administration of justice. A departure from
appropriate standards of civility and judicial detachment may result
in criticism of a Judge. The courts are not expected to suppress their
convictions, feelings and views if they are relevant to the controversy
and based on materials on record not merely for suggesting
corrective measures but also to expose all those who failed to
perform their duties diligently, truthfully or for ulterior and exterior
reasons. Indisputably, the courts have to be careful, cautious and
must exercise restraint in making any observations which are not
germane to the controversy in hand or reflect the bias, prejudice and
predilections of a judge and if such a course is allowed to happen
then it will put the entire justice delivery system into danger by such
personalized views of a judge. Further, it would lead to loss of
public‟s faith in judicial system if the courts overreach or transgress
the unwritten rules of self regulation and self restraint in the judicial
behavior. In Abani Kanta Ray v. State of Orissa-1995 Supp (4)
SCC 169, the norms of judicial propriety and restraint needed in
discharge of judicial functions were indicated as under:
"What we have said above is nothing new and is only a reiteration of the established
norms of judicial propriety and restraint expected from everyone discharging judicial
functions. Use of intemperate language or making disparaging remarks against anyone
unless that be the requirement for deciding the case, is inconsistent with judicial
behaviour. Written words in judicial orders form permanent record which make it even
more necessary to practise self-restraint in exercise of judicial power while making
written orders. It is helpful to recall this facet to remind ourselves and avoid pitfalls
arising even from provocation at times."
Justice H.R. Khanna in an article on "Judicial Activism" (The Hindu dated 28-9-1995)
has indicated the duty of a Judge and the source of strength of the law courts. He said:
"A Judge like Epictetus, it has been aptly put, must recognise the impropriety of being
emotionally affected by what is not under one's control. The courts, it is also pointed
out, have to be much more circumspect in seeing that they do not overstep the limits of
their powers because to them is assigned the function of being the guardian of the
Constitution. It is a faith and trust reposed by the framers of the Constitution in the
courts and their position in this respect is akin to that of a trustee. When the other
agencies or wings of the State overstep their limits, the aggrieved parties can always
approach the courts and seek redress against such transgression.
When, however, the courts themselves are guilty of such transgression, to which forum
would the aggrieved parties appeal?
* * *
The courts have, I submit, to earn reverence through the test of truth...."
125. Section 165 of the Indian Evidence Act confers vast and wide
powers on presiding officers of the court to elicit all necessary
materials by playing an active role to achieve the ultimate objective
of searching the truth.
126. In view of the above discussion, I do not find that the learned
trial court exceeded or over-reached the aforesaid parameters in
making certain observations in the order under challenge.
127. The next submission of the counsel for the appellant claiming
unfair trial is on account of the audience given by the trial judge to
the court witness Mr. Sunil Kulkarni in his chamber on 11.7.1999.
The grievance of the appellant was that how the court could grant
such a private audience to a witness whose credibility was already
under great suspicion. Such a witness in his private audience could
have influenced the mind of a judge to make him believe the
otherwise unbelievable version or to create a bias or prejudice in his
mind against the accused, the senior counsel argued. Counsel for
the appellant also urged that in fact such private audience has led
the court to pass the aforesaid observations in the final judgment.
Before dealing with this aspect, it would be necessary to give the
brief background as to under what circumstances such an audience
was given by the court to the said witness Mr. Kulkarni.
128. Mr. Sunil Kulkarni claimed himself to be an eyewitness of the
accident which took place on the morning of 10.1.1999. This
witness without contacting the police after the incident alleged to
have boarded a train to Bhopal and returned back to Delhi on
15.01.1999. After coming back to Delhi, he contacted the then Joint
Commissioner of Police in his office to disclose that he had witnessed
the said incident on the said fateful morning. The Joint
Commissioner of Police directed him to report before the concerned
DCP who in turn sent him to the SHO P.S. Lodhi Colony where his
statement under Section 161 Cr.P.C. was recorded after 5 days of
the accident. This witness also made a voluntary statement before
the Magistrate under Section 164 Cr.P.C. after 11 days of the
accident. For the prosecution this was an important witness being
an eyewitness of the accident. This prosecution witness was dropped
by the prosecution. The prosecutor representing the State
represented before the court that the said witness has been showing
his anxiety for his early examination which conduct of the witness as
per the prosecution was taken to be quite unusual and also the fact
that he had leveled serious allegations against the police in his
application dated 13.9.1999. This witness was already enjoying
police protection as he had complained of some danger to his life at
the hands of the police. It is also pertinent to mention here that
another incident had occurred in the precincts of Patiala House
Courts itself involving members of NDBA , on the one hand, and the
police, on the other hand, which led to the registration of an FIR
No.450/1999 u/S 186/353/450/332/147/149/225 IPC on 23.9.2009.
This incident had taken place when Mumbai Police with the
assistance of local police came to arrest the said witness being
accused in crime No. 207/99 under Section 420 IPC and the said
arrest was resisted by the bar members who apprehended illegal
arrest of the said prosecution witness. After a gap of about 8 years,
this witness was summoned by the court in exercise of powers under
Section 311 Cr.p.c. vide orders dated 19.3.2007. He was partly
examined on 14.5.2007 and was bound down to appear for
17.5.2007. Vide orders dated 14.5.2007 court also gave directions to
the SHO of P.S. Lodhi Colony to provide security to the said witness.
His examination-in-chief was recorded on 17.5.2007 but his cross-
examination was deferred in terms of some order of the High Court.
The said witness again stated that he required police protection till
the next date and accordingly directions were given by the court to
the police to provide security to the said witness till the completion
of his evidence. The said witness was partly cross-examined on
29.5.2007 and the matter was adjourned for further cross-
examination on 31.5.2007. In the meanwhile on 30.5.2007 NDTV
had conducted a sting operation. In the said sting operation, the
electronic media had shown certain pictures as to highlight that the
defence counsel and the public prosecutor were trying to win over
the said court witness to testify in such a manner to help accused
Sanjeev Nanda. In view of the said sting operation, the main
prosecutor and the additional public prosecutor withdrew from the
said case and vide orders dated 31.5.2007 the court observed as
under:-
―If the newspaper report mentioned above regarding the NDTV telecast and the
accusations made in the said telecast are false, it would in deed be a very serious
matter. However, I accusations are correct and truthful, the implications would be more
serious because any effort to win over a witness prejudices and interferes with the true
course of judicial proceedings and also tends to obstruct the administration of justice.‖
129. One Mr. Rajiv Mohan , Additional P.P. was replaced in place of
the earlier prosecutors and the said court witness was cross-
examined by the newly appointed special public prosecutor on
11.7.2007. His further cross-examination was deferred for
13.7.2007. It is on 11.7.2007 the said witness sought audience from
the court which was given by the presiding Judge in his chamber.
Mr. Ram Jethmalani counsel for the appellant raised serious
objections to such a private audience given by the judge to the court
witness. The police and the public prosecutor showed their
complete ignorance about the letters lying under sealed cover in the
trial court record. The letter purported to have been sent by the
Court to the Commissioner of Police and the letters handed over by
the court witness to the presiding judge are lying in a sealed
envelope. The said sealed envelope was directed to be opened by
this court and access to the letters was granted to counsel for both
the parties. The said envelope contained one letter dated 11.7.2007
addressed by the presiding judge to the Commissioner of Police. In
the said letter, the court brought to the notice of the Commissioner
of Police the grievance of the court witness against the public
prosecutor and the defence counsel who as per him were threatening
and blackmailing him so as to support them in the matter concerning
sting operation. Along with the said letter copies of letters dated
22.6.2007 and 2.7.2007 written by Mr. Sunil Kulkarni were found
and one letter written by the Stenographer to the court was in the
sealed envelope.
130. This audience given by the court to the court witness has been
castigated as the secretive method adopted by the court totally in
negation to the Constitutional guarantee granted under Article 21 of
the Constitution of India to every citizen for free, fair and open trial.
The contention of the counsel for the appellant was that close trials
breed suspicion, prejudice and arbitrariness. Counsel for the
appellant placed reliance on an authoritative pronouncement of
American Supreme Court in (1980) 448 US 555 - Richmond
Newspapers INC, et al Vs. Commonwealth of Virginia; and the
judgment of our Apex Court and High Court in J. Vasudevan Vs.
T.R. Dhananjaya 1995 (6) SCC 249, AIR (39) 1952 All 108 -
Baij Nath Prasad Vs. Madan Mohan Das and AIR 1936 P.C.
246, Lillian Mc Pharson Vs. Oran Leo Mc Pharson.
131. Openness is inherent in the very nature of the criminal trial
under our system of justice. Without disputing the principles of
open public trial being an integral part of American legal system and
our own legal system and also considering the observation of the
Apex Court in J. Vasudevan (Supra) coming heavily on a
government officer‟s meeting a judge of the Supreme Court at his
residence and disapproval of the action of a judge in Lillian Mc
Pharson‟s case (Supra) where the judge instead of sitting in a
regular court room preferred to sit in a library to conduct the court
proceedings, I am of the view that the audience granted by the court
to the witness so far the facts of the present case are concerned
stands on a completely different footing.
132. Here is a case where as per the sting operation by NDTV, the
defence counsel and the State prosecutor were allegedly shown to
be in unholy nexus so as to enter into a deal to win over the witness
for toying the line of defence in his evidence. This witness was
already summoned as a court witness and was to be examined on
11.7.2007 when by that time the said sting operation had taken
place. Without commenting upon the credibility of this witness at
this point of time which will be discussed later it is an undeniable
fact that witnesses are an important part and parcel of the
administration of justice. The witness performs an important public
duty of assisting the court in discovering the truth and deciding on
the guilt or otherwise of the accused in the case. Such a witness
sacrifices his time and takes the trouble to travel all the way to the
court to give evidence. Eventually, such a witness incurrs the
displeasure of persons against whom he gives evidence. He takes all
these troubles and puts himself to risk not for any personal benefit
but to advance the cause of justice. They are often threatened and
face danger not only to their life but also to their family members.
But instead of being showered with due courtesy they are not treated
pleasantly.
133. Section 165 of the Indian Evidence Act fully empowers the
court to call any witness or any party for production of any
document at any stage of the proceedings for a just decision of the
case. Section 311 Cr.P.C. and Section 165 of the Evidence Act,
therefore, confer very vast and wide powers on the court to elicit all
necessary information by playing an active role in the evidence
collecting process. Section 311 Cr.P.C. also gives discretion to the
court to summon any person as a witness.
134. Now the said witness whose evidence was considered material
by the Court felt threatened not only at the hands of the defence
counsel but also at the hands of the public prosecutor as well. It
cannot be lost sight of the fact that prior to the said audience, sting
operation involving the trio i.e. Court witness, defence counsel and
the prosecutor had already taken place and in this background the
Court witness Mr. Kulkarni might not have mustered enough courage
to apprise the Judge in open Court about the threats received by him
from the side of the public prosecutor and the defence counsel
coercing him to support them in the matter concerning sting
operation. It appears that the counsel for the appellant has tried to
read too much into the said audience between the Court and the
witness, but when the sealed envelop was opened in Court nothing
substantial was found to attribute or cast any aspersions on the
conduct of the Judge. One must be very restraint and careful before
commenting on any Judge unless the conduct of a Judge is so
reprehensible warranting condemnation. Faith of the public can be
badly shaken in judiciary, if in a very casual or cavalier fashion
aspersions are cast on the conduct of the Judges, who at times are
constrained to take unpleasant decisions in due discharge of their
judicial functions.
135. As already stated above, witness is a most important person
who comes forward to depose in the societal interest and he
deserves all protection of the State as well as of the Court. A witness
is an indispensable aid in the justice dispensation system in any
civilized society. A witness happens to be the eyes and ears of the
Court. Hon‟ble Supreme Court in Swaransingh Vs. State of
Punjab AIR 2000 SC 2017 expressed deep concern about the
predicament of a witness in the following words: -
―A criminal case is built on the edifice of evidence, evidence that is admissible in law.
For that witnesses are required, whether it is direct evidence or circumstantial evidence.
Here are the witnesses who are a harassed lot. A witness in a criminal trial may come
from a far-off place to find the case adjourned. He has to come to the Court many times
and at what cost to his own-self and his family is not difficult to fathom. It has become
more or less a fashion to have a criminal case adjourned again and again till the
witness tires and he gives up. It is the game of unscrupulous lawyers to get
adjournments for one excuse or the other till a witness is won over or is tired. Not only
that a witness is threatened; he is abducted; he is maimed; he is done away with; or
even bribed. There is no protection for him. In adjourning the matter without any valid
cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not
treated with respect in the Court. He is pushed out from the crowded courtroom by the
peon. He waits for the whole day and then he finds that the matter adjourned. He has
no place to sit and no place even to have a glass of water. And when he does appear in
Court, he is subjected to unchecked and prolonged examination and cross-examination
and finds himself in a hapless situation. For all these reasons and others a person
abhors becoming a witness. It is the administration of justice that suffers. Then
appropriate diet money for a witness is a far cry. Here again the process of harassment
starts and he decides not to get the diet money at all.‖
136. The witness in our Courts does not receive deserving and
desired place and the respect and this is one of the major reasons
that many of the witnesses do not come forward to give their
statements as they feel threatened firstly, at the hands of the police
and then the humiliating treatment they get in Courts. Witness are
not supposed to stand in the Courts like criminals or to face the
punishment of standing in the Courts for hours together or to take
round of the Courts on more than one day. Recently, Hon‟ble
Supreme Court in "Best Bakery‟s Case", (Zahira Habibulla H.
Sheikh and Another Vs. State of Gujarat and Others(2004) 4
SCC 158) came down heavily on the State administration in general
and the investigating agency in particular for rashly and negligently
handling their duties and abdicating their responsibilities. The
categorical finding is that the whole machinery of a State failed in
maintaining the confidence of public in the justice delivery system.
While disscussing the reality about the witness hostility, one of the
predominant points taken note of by the Hon‟ble Supreme Court is
the lack of witness protection and the relating laws in our country. It
has been observed that if the witness himself is incapacitated from
acting as eyes and ears of justice, the trial gets putrefied and
paralyzed. Following excerpt from the said decision will be
appropriate in this context:
― The incapacitation may be due to several factors like the witness being not in a
position for reasons beyond control to speak the truth in the court or due to negligence
or ignorance or some corrupt collusion. Time has become ripe to act on account of
numerous experiences faced by the courts on account of frequent turning of witnesses
as hostile, either due to threats, coercion, lures and monetary considerations at the
instance of those in power, their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingeniously adopted to smother and stifle truth
and realities coming out to surface rendering truth and justice to become ultimate
casualties. Broader public and societal interests require that the victims of the crime
who are not ordinarily parties to prosecution and the interests of State represented by
their prosecuting agencies do not suffer even in slow process but irreversibly and
irretrievably, which if allowed would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for anarchy, oppression and
injustice resulting in complete breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the Constitution. There comes the
need for protecting the witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that ultimate truth is presented before
the court and justice triumphs and that the trial is not reduced to a mockery.‖
137. Few days back in Javed Alam vs. State of Chattisgarh &
Anr. in Crl. A. No. 1240/2006 decided on 8/5/2009, the Hon‟ble Apex
Court sounded the alarm on the growing trend of witnesses turning
hostile in criminal cases involving the rich and influential, stressing
that justice would remain a far cry unless a witness protection
mechanism was put in place and observed as under:
8. It is a classic case of deficiency in the criminal justice system to protect the witnesses
from being threatened by accused. As appears from the record, the witnesses are the
classmates of the deceased who were there with her. As appeared from the evidence of
witnesses they backed out from what was stated during investigation. The statement
made before the Police during investigation is no evidence. Unfortunately, in cases
involving influential people the common experience is that witnesses do not come
forward because of fear and pressure. ..................The plight of the girls who were
under pressure depicts the tremendous need for witness protection in our country if
criminal justice administration has to be a reality................‖
138. It is no time for slumber. It is high time that we wake up and
act for the protection of the citizens who appear before the courts to
testify so as to render a helping hand in the dispensation of justice.
Best Bakery Case, Jessica Lal murder case and many other like
cases, if repeated, would shatter the strength and credibility of our
criminal justice system. Every country is expected to make laws to
meet the situations prevalent in that country. However, there is
nothing wrong, rather it is wise, in imbibing the spirit shown by
other countries in the matter of witness protection. No nation can
afford to expose its righteous and morally elated citizens to the peril
of being haunted or harassed by anti social elements, for the simple
reason that they testified the truth in a court of law. If the State
continues to turn a blind eye to the ground realties, the plight of an
honest witness will be pathetic and calamitous. Not only the honest
witnesses need full protection of the State, but at the same time
dishonest witnesses need to be dealt with an iron hand. No leniency
and indulgence should be shown to such a witness who with impunity
has the audacity to utter falsehood after taking oath. Such a witness
derails the trial which can result in miscarriage of justice and
consequently bring miseries to victim of crime. Present is not the
only case where witness has adduced false evidence in misleading
the Court and thus causing interference in the due discharge of
justice. This evil of perjury has assumed alarming proportions in
cases depending on oral evidence and in order to deal with this
menace effectively in a given case the Courts must take re-course to
Section 340 Cr.P.C. (summary procedure for trial for giving false
evidence) more frequently. Therefore, the State must give serious
thought to protect the interest of witnesses and to introduce suitable
legislation in this regard at the earliest so that the witnesses are not
discouraged to come forward to give evidence for fear of
harassment, humiliation and danger to their lives.
139. In view of the above discussion, I do not find that any prejudice
was caused to the appellant because of the audience granted by the
Court to the said witness on 11th July, 2007 so as to take up this
matter with the Commissioner of Police for granting him due
protection. To draw inference that something more than that must
have transpired between the witness and Court so as to prejudice
and influence the mind of the Court is not only wholly illogical but is
based on mere imagination. Judges who are entrusted with the pious
and noble task of dispensing justice are presumed to be fair,
judicious and honest whether sitting in the open Court or inside their
chambers and it cannot be expected of them that in the chambers
they will indulge into any act which will disrepute or sully their
image. It often happens that the parties to the litigation in certain
situations do approach the Court even in chambers and there is
nothing wrong in entertaining any genuine request in exceptional
circumstances in a chamber if situation so warrants. Nonetheless, I
find myself in agreement with the counsel for the appellant that it
was bounden legal duty of the Court to have recorded necessary
proceedings with regard to the said audience granted to the Court
witness and also to have apprised the newly appointed public
prosecutor as well as the counsel representing the accused persons.
A judge administers justice. The holder of office of the judge should,
therefore, be above the conduct of ordinary mortals in the society.
The first and foremost expectation from him is that his actions have
to be just. This expectation itself is the fountain source of all that can
be put in the realm of canons of judicial ethics. The legal maxim
„Actus Curiae Neminem Gravabit‟ which means an act of the
court shall prejudice no man depicts the duty of a judge to be just.
The notions of fairness and impartiality give rise to certain special
norms for judges. These norms are designed so that he remains
independent and uninfluenced. The standards of judicial behavior,
both on and off the Bench, are normally high. There cannot,
however, be any fixed or set principles, but an unwritten code of
conduct of well-established traditions, norms and principles which
govern the conduct of a judicial officer. The conduct that tends to
undermine the public confidence in the character, integrity or
impartiality of the Judge must be eschewed. To keep the stream of
justice clean and pure, the Judge must be endowed with sterling
character, impeccable integrity and upright behavior. It is expected
of him to voluntarily set forth wholesome standards of conduct
reaffirming his devotion to higher responsibilities.
140. There has to be a proper record of every proceedings, which
takes place in Court as in Court proceedings nothing can be held
back from the parties or their counsels representing them and
nothing can be withheld on the premise of being private between
the Court or any of the parties or even the witnesses. To this limited
extent I am of the view, the trial court went wrong. However, since
in the said audience granted by the Court only a letter was
addressed to the Commissioner of Police seeking protection of the
said Court witness, therefore, non-recording of the proceedings
cannot be said to have caused prejudice to the rights of the
appellant and thus the plea of unfair trial on this count deserves to
be rejected.
141. Grievance was also raised by the counsel for the appellant that
the Court allowed its judicious mind to be influenced and moulded by
the judgment of the Division Bench of the High Court in the sting
operation case, bearing W.P. (Crl.) No. 796/2007, without affording
any opportunity to the accused. Indisputably, the sting operation
carried out by the NDTV revolved around the said Court witness,
who was allegedly being influenced through the alleged nexus of the
defence and Special Public Prosecutor appearing before the Court.
The Division Bench of the High Court took suo muto notice of the
said reporting of sting operation in the electronic media in W.P.
(Crl.) No. 796/2007. Even the Trial Judge had set up an enquiry and
the Managing Director NDTV had produced before the Court three
chips and five CDs containing the said material and the unedited
version of the sting operation was seen in the chamber of the trial
court as indicated in the order dated 1st June 2007. Without
commenting on the role of the defence and State Public Prosecutor
who have already been held guilty of committing criminal contempt
of Court, by the Division Bench of this court, matter being sub-
judice before the Hon‟ble Supreme Court, I can only say that no fault
can be found with the Trial Judge if a passing reference to the
judgment of this High Court was made in the impugned judgment.
The copy of the said judgment was produced before the Trial Court
by none else but by Mr. Ramesh Gupta, Senior Advocate who was
representing counsel for the appellant before the Trial Court and it
cannot be said that the appellant was taken by surprise to find
certain observations made in the impugned judgment about the
decision of the said High Court case in the sting operation. I also do
not subscribe to the view of the counsel for the appellant that the
said judgment of the High Court had influenced its judicial mind to
reach the final conclusions, which are in fact based on various other
factors independent of the said High Court judgment.
(c) Conduct of prosecution
142. The last contention of the counsel for the appellant so far the
allegation of unfair trial is concerned relates to suppression of PCR
messages by the prosecution and as per the counsel for the appellant
it deprived the accused of his unbridled right to fair trial. The PCR
messages as per the counsel for the appellant were of great
significance for the accused to prove his defence as one of the
victims of the said accident himself denied knowing anything with
regard to the exact facts leading to the accident in question in his
first encounter with the police when he was being taken in PCR van.
Counsel for the appellant further attributed dishonesty of the police
officials of the PCR van, who entered in the witness box as PW 24
Const. Manohar Lal; PW 34 Const. Sadhu Ram and PW 36 ASI
Davinder Singh and deposed that Manoj Kumar when being taken in
the PCR van had told them that one big black colour car had come
from the side of the Lodhi Road at a very fast speed in a zig zag
manner and struck against them. Counsel for the appellant placed
reliance on Rule 16 of the Bar Council of India Rules and Rule A-252
of the Attorney General Guidelines in support of his arguments.
Counsel for the State on the other hand did not attach much
importance to these PCR messages which as per him are of no
evidentiary value as such PCR messages are primarily given just to
inform the police to bring them into action to reach at the place of
occurrence.
143. It is not in dispute that these messages were never placed by
the prosecution before the directions in this regard were given by
the trial judge on the application moved by the defence. It is further
not in dispute that at about 5.27 a.m. on the morning of 10th January,
1999 message from police officials of police control room van known
as E-11 was sent to the main control room informing that one Manoj
Kumar s/o Mr. M.C. Malik C/o Kailash Gupta came to roam around
and was fully conscious and knew nothing about the accident. This
very Manoj Kumar in his statement under Section 161 Cr.P.C. gave a
detailed account as to how the accident on the morning of 10 th
January, 1999 had occurred. In his statement he averred that on the
morning of 10th January, 1999 around 4.15 a.m. he along with Nasir,
Mehndi Hassan and Gulam left his place for Nizamuddin Railway
Station when at about 4.30 a.m. they reached near petrol pump,
Lodhi Road, they were stopped by three police officials who started
enquiring from them and at that point of time, from the side of
Nizamuddin, a dark black car came like a lightning and hit them, as
a result he (Manoj) fell down from the bonnet of the car. This witness
when he appeared in the court as PW2 turned hostile. In his
testimony before the court, he took a contrary stand and attributed
the accident to one truck instead of BMW car. The Trial Court has
believed the testimony of this PW2 Manoj Malik in so far the same
corroborates to the scene of crime and other facts set up by the
prosecution except with regard to the nature of the offending
vehicle. Before embarking upon the question as to whether the
suppression of PCR messages by the prosecution can be termed as
dishonest leading to unfair trial it would be appropriate to first
decide as to what is the evidentiary value of such PCR messages. The
Apex Court in Ramasinh Bavaji Jadeja vs State of Gujarat (1994)
2 SCC 685 while dealing with the similar issue, where the appellant
accused claimed that his name was not disclosed by the Head
Constable when he informed about the incident on telephone to the
police official at control room, the Court held as follows:-
6. Now the question which has to be examined is as to whether the cryptic
information given on telephone by Head Constable can be held to be the first
information report of the occurrence. Section 154 of the Code of Criminal Procedure
(hereinafter referred to as the ‗Code') requires an officer in charge of a police station to
reduce to writing every information relating to the commission of a cognizable offence, if
given orally to such officer. It further requires that such information, which has been
reduced to writing shall be read over to the informant and the information reduced to
writing or given in writing by the person concerned shall be signed by the person giving
it. Section 2(h) defines investigation to include all the proceedings under the Code for
the collection of evidence conducted by a police officer or by any other person (other
than a Magistrate), who is authorised by a Magistrate in this behalf.
7. From time to time, controversy has been raised, as to at what stage the investigation
commences. That has to be considered and examined on the facts of each case,
especially, when the information of a cognizable offence has been given on telephone.
If the telephonic message is cryptic in nature and the officer in charge, proceeds to the
place of occurrence on basis of that information to find out the details of the nature of
the offence itself, then it cannot be said that the information, which had been received
by him on telephone, shall be deemed to be first information report. The object and
purpose of giving such telephonic message is not to lodge the first information report,
but to request the officer in charge of the police station to reach the place of occurrence.
On the other hand, if the information given on telephone is not cryptic and on basis of
that information, the officer in charge, is prima facie satisfied about the commission of a
cognizable offence and he proceeds from the police station after recording such
information, to investigate such offence then any statement made by any person in
respect of the said offence including about the participants, shall be deemed to be a
statement made by a person to the police officer ―in the course of investigation‖,
covered by Section 162 of the Code. That statement cannot be treated as first
information report. But any telephonic information about commission of a cognizable
offence irrespective of the nature and details of such information cannot be treated as
first information report. This can be illustrated. In a busy market place, a murder is
committed. Any person in the market, including one of the shop-owners, telephones to
the nearest police station, informing the officer in charge, about the murder, without
knowing the details of the murder, the accused or the victim. On basis of that
information, the officer in charge, reaches the place where the offence is alleged to
have been committed. Can it be said that before leaving the police station, he has
recorded the first information report? In some cases the information given may be that a
person has been shot at or stabbed. It cannot be said that in such a situation, the
moment the officer in charge leaves the police station, the investigation has
commenced. In normal course, he has first to find out the person who can give the
details of the offence, before such officer is expected to collect the evidence in respect
of the said offence.
144. Yet another case reported in (1994) 2 SCC 220 Dhananjoy
Chatterjee alias Dhana vs. State of West Bengal the Apex Court
held that the cryptic telephone messages received in the police
station from the father of the deceased had only made police agency
run to the place of the occurrence and the investigation commenced
thereafter, observed as under:-
9. We are unable to agree with the opinion of the High Court. The cryptic telephonic
message received at the police station from Nagardas PW 4 had only made the police
agency to rush to the place of occurrence and record the statement of Yashmoti PW 3
and thereafter commence the investigation as was admitted by the investigating officer
in his testimony which testimony was not challenged during the cross-examination of
the investigating officer. The High Court failed to notice that the vague and indefinite
information given on the telephone which made the investigating agency only to rush to
the scene of occurrence could not be treated as a first information report under Section
154 of the CrPC. The unchallenged statement of the investigating officer that he
commenced the investigation only after recording the statement of PW 3 Yashmoti
unmistakably shows that it was that statement which alone could be treated as the first
information report. The High Court fell in error in observing that the statement of PW 3
Yashmoti was recorded ―after the investigation had already commenced‖. There is no
material on the record for the above opinion of the High Court. The cryptic telephonic
message given to the police by Nagardas PW 4 was only with the object of informing
the police so that it could reach the spot. The investigation in the case only started after
the statement of PW 3 Yashmoti was recorded. Though initially Mr Ganguli did try to
support the finding of the High Court but in the face of the evidence on the record and
more particularly in the absence of any challenge to the testimony of the investigating
officer, in fairness to Mr Ganguli, we must record that he rightly did not pursue that
argument any further. We, therefore, find ourselves unable to agree with the opinion of
the High Court and hold that the statement of Yashmoti PW 3, recorded by the
investigating officer PW 28, was rightly treated as FIR in this case by the prosecution
and the trial court.
145. In the light of the aforesaid legal position, no significance can
be attached to the fact that these PCR messages were not placed by
the prosecution along with the police report filed under Section 173
of the Code of Criminal Procedure or thereafter as these PCR
messages just set the police machinery into motion so as to make
them reach the place of occurrence or to take the victims to the
hospital or to bring them into action for taking measures as the
circumstances of the case may warrant.
146. I, therefore, find myself in agreement with the counsel for the
State that no evidentiary value can be attached to such cryptic
statements. In any case, such statements cannot be considered at a
higher pedestal than statements made under Section 161 Cr.P.C. It
is also worthwhile to mention here that at no stage defence sought
reexamination of PW -2, PW-24, PW -34 and PW-36 after PCR
messages were placed on record. In the absence of the aforesaid
omission on the part of the defence, the plea that non-disclosure and
non-production of PCR messages by the prosecution has vitiated the
trial or it amounts to unfair trial cannot be accepted.
147. Moreover, the PCR messages, so far the facts of this case are
concerned, fall in the category of hearsay evidence in relation to the
police officer who flashed the said message to the Central control
room. Since the PCR messages flashed by the police officer were
nothing more than what they learnt from PW2 and as they had no
personal knowledge of the same, they were clearly hearsay evidence.
148. It is well established that hearsay evidence is no evidence and
thus inadmissible. Section 6 of the Evidence Act is an exception to
the rule of evidence that hearsay evidence is not admissible. The rule
of res gestae is an exception to the principle of hearsay evidence.
The test for applying the rule of res gestae is that the statement
should be spontaneous and should form part of the same transaction
ruling out any possibility of concoction.
149. As discussed above, it is clear that PCR messages are not
res gestae and form part of hearsay evidence and thus are
inadmissible in evidence. Therefore, statement given by PW 24 Mr.
Manohar Lal regarding statement of PW2 while being taken in Eagle
11 PCR Van is not admissible.
150. Furthermore, so far Rule 16 of Bar Council of India Rules
and Rule A-252 of the Attorney General Guidelines are concerned
there cannot be any dispute that it is the bounden duty of the
prosecution and the counsel representing the State to place every
material on record even if such a material weakens the prosecution
case and it is for the State counsel to conduct the prosecution in a
manner that no innocent suffers any punishment. If the said initial
cryptic PCR messages are accorded any significance, then any lapse
or negligence on the part of the initial informer making any
irresponsible statement can prove fatal to the prosecution or even to
the defence. In any event of the matter, since the defence itself
failed to seek re-examination of the concerned witnesses so as to
test the credibility of the said statement of PW2 made to the police
officials of the PCR van, therefore, the objection raised by the
counsel for the appellant at this stage is totally misplaced.
Witnesses
151. The next contention raised by the counsel for the appellant
relates to the alleged failure of the prosecution to prove the case as
set up by them in the chargesheet. The prosecution case has mainly
rested its case on the shoulders of three important witnesses i.e.
PW1 Hari Shankar, an employee of petrol pump known as Car Care
centre, Lodhi Road, PW2 Manoj Malik, an employee of a hotel owned
by one Kailash Chand and Court witness Mr. Sunil Kulkarni, resident
of Mumbai. For better appreciation, I feel it appropriate to discuss
their role separately.
PW1: Hari Shankar
152. This witness in his statement recorded under Section 161
Cr.P.C. stated that he was an employee with Car Care Centre, Lodhi
Road for the past about 12 years and he was on night duty from 2.00
p.m. to 6.00 a.m. on 9th -10th January, 1999 and while he was present
at the petrol pump at about 4.30- a.m. he saw that one black
coloured imported car came from the side of the Nizamuddin like
lightening in the clouds and hit 6-7 persons out of which three were
police men. He also stated that because of the impact 2-3 persons fell
on the bonnet of the car while others came underneath the car. As
per him, while those on the bonnet fell down and those underneath
the car got dragged for some distance as the car did not stop till
after it had struck against the divider whereafter one person came
out of the car and then again entered the car to flee away from the
spot. This witness in his deposition before the Court took a stand that
while he was sitting inside the petrol pump on the morning of 10 th
January, 1999 he heard some noise and on hearing the same he came
and saw one vehicle coming from the side of Nizamuddin having met
with an accident in front of the petrol pump. He also deposed that he
came inside the petrol pump and rang up his owner who in turn
informed the police whereafter the police reached the site of
accident in about 20 minutes. He also deposed that he got so much
frightened and went inside the petrol pump and then did not come
out till the time of his interrogation by the police.
153. This witness was declared as hostile witness as he took an
inconsistent stand in the evidence contrary to his statement recorded
under Section 161 of the Code of Criminal Procedure. As per the
counsel for the appellant this witness was not the witness to the
accident as admittedly he came on the road after hearing some
noise. That must be sound created by the impact. Counsel also
claimed that the prosecution had put a false story in his mouth to
make him an eye witness of the accident and his deposition made in
the Court is more near to the truth than his statement given under
Section 161 Cr.P.C. On the other hand counsel for the State
submitted that although PW1 was declared as hostile witness but still
to a large extent he supported the case of the prosecution and to that
extent his testimony cannot be disbelieved. Now, since the factum of
the accident is not in dispute, therefore, the deposition of PW 1 so far
the same shows his presence at the petrol pump on the morning of
10th January, 1999 and his being a witness to the site of accident
cannot be doubted. I agree with the submission of the senior
counsel for the appellant that he must have rushed to the road after
hearing the noise of "thud", which must have been caused the car
had hit the victims on the road. The deposition of this witness stating
that vehicle had come at a fast speed also does not inspire any
confidence and appears to be imaginative as witness was not
present on the road to testify the speed of the vehicle. It is evident
that after having witnessed the ghastly scene of crime, any prudent
person would assume the speed of the vehicle as "fast" and not
"normal".
154. Based on the above discussion, in my view the testimony of
PW1 can be believed only to the extent that he had seen the
involvement of BMW car in causing the said horrifying accident after
he had entered the road after having heard the noise of impact.
PW 2: Manoj Malik
155. PW 2 Manoj Malik was also declared a hostile witness because
of his retraction from a very important fact of substituting the
offending vehicle from "BMW" car to a "truck". The learned Trial
Court has taken a considerable support from the testimony of Manoj
Malik PW2 in believing the prosecution theory as well as the theory
of reversal of car propounded by the Court witness Sunil Kulkarni in
his deposition before the Court. As per the counsel for the appellant
the prosecution acted in a most mala fide and high handed manner in
putting the prosecution case in his mouth by suppressing the fact
that he at the very first available opportunity completely denied to
have witnessed the accident when he was being taken by the PCR
officials in their van at about 5.47 a.m. on 10th January, 1999.
Counsel for the State on the other hand placed reliance on his entire
deposition which proves the prosecution story except that of his
retraction made with regard to the nature of the vehicle involved in
the accident.
156. I have already discussed above that the cryptic messages
which were sent primarily for the police to come into action have no
evidentiary value. Nevertheless, the depositions of PW 24, 34 and 36,
who were present in the PCR van at the time of taking PW 2 Manoj to
the hospital, have falsely deposed that on the way to the hospital
Manoj told them that one big car of black colour came at a very fast
speed from the side of the Lodhi Hotel in a zig zag manner and had
struck against him and other victims of the accident. This may be the
version of Manoj Kumar PW 2 when his statement under Section 161
Cr.P.C. was recorded but to say that he made such a statement on
his way while being taken to the hospital is nothing but an utter
falsehood on the part of these police officials who as per even on the
basis of their own PCR messages. In any event of the matter, the
testimony of PW2 so far it proves the occurrence of the accident can
be safely relied upon. So far the incriminating statement of this
witness stating that the vehicle was coming at a very fast speed from
Nizamuddin side and his deposition as to the presence of the fog on
the said morning are concerned, the same will be discussed in the
later part of this judgment. The testimony of PW 2 thus can be
believed to the extent that he, being a victim of the crime, was a
witness to the accident and of the scene of the crime. His testimony
that he was hit by the truck gets itself falsified because of the
admission of the appellant admitting the factum of the accident by
him while driving the BMW car.
Court witness: Mr. Sunil Kulkarni
157. Credibility of this witness was seriously challenged by the
Senior counsel for the appellant. Even the Trial Court described his
character direct from the novel of Charles Dicken‟s and has very
strange aspect to his personality, but still he gave undue weightage
and credit to his testimony believing him to be an eye witness of the
said accident. The testimony of this witness was believed by the
Court as his statement recorded under Section 164 of the Cr.P.C.
and the evidence given by him as a court witness to a very large
extent corroborated by statement given by PW2 Manoj Malik and
the scene of crime as proved in the site plan Exhibit PW 58/B and
the videography of the scene of the crime as placed on record by the
prosecution. Learned Trial Court even went to the extent of giving
much credence to the new theory propounded by this Court witness
that the said BMW car had taken a reverse after finding such fact
corroborated from the evidence of Manoj Malik PW 2 and on the
basis of reversal tyre marks found visible by the Presiding Judge
himself, after viewing the video. It needs to be mentioned here that
this theory of the reversal of car was introduced by this court
witness alone for the first time in his deposition before the Court
and prior to this it was neither the case of prosecution nor of this
Court witness when he had given his statement under Section 161 of
the Code of Criminal Procedure and Section 164 of the Code of
Criminal Procedure. The Trial Court although in the impugned
judgment has stated that the testimony of the witness was read by
him time and again very carefully and the same duly tallied with the
site plan Exhibit PW 58/B and the scene of crime as appearing in
videography, but I feel otherwise. The more I read the statement of
this Court witness, the more dishonesty, falsehood and crookedness
of this man flows out. This witness has been introduced as a chance
witness to the scene of crime and how his presence in the wee hours
of morning of 10th January, 1999 has been shown is itself
flabbergasting and mind boggling. Counsel for the appellant
highlighted many instances to expose the conduct and character of
this witness clearly reflected in his unsavory and unpalatable
statements and depositions with no plausible explanation to the
same coming forth from the side of the State Prosecutor.
158. This witness checked out from his hotel on 9.1.2009 at about
12.30 p.m. disclosing his place of destination at Solan but he did not
go to Solan at all. He came to Delhi on 7.1.1999 to meet some
Minister of State in connection with some vigilance case of his
unnamed friend, but nowhere he disclosed when he met the Minsiter
or which Minister and on what date and at what time. On 9 th January,
1999 after checking out from the hotel he went to see a movie at
Sheela theatre but did not disclose whether in fact he had seen any
movie or not. Thereafter, he spent one hour time at Delhi station,
which must be New Delhi Railway Station being near to Sheela
theatre, wherefrom he made some STD calls. At about 11.30 p.m. he
went to Lodhi Colony so as to meet his friend Mr. Sushil whose
address he could not remember. Here also it looks highly improbable
that the person who had checked out from his hotel at 12.30 p.m.
and even had seen some movie at Sheela theatre, would kill his time
upto 11.30 p.m., after spending just one hour at New Delhi Railway
station. Nowhere this witness gave any particulars of Mr. Sushil
Kataria nor the police made any efforts in this regard so as to test
the credibility of this Court witness. In his statement under Section
164 Cr.P.C. he stated that he went to the residence of Mr. Sushil at
about 12.00 A. M. in the night where he stayed from 12.00 A.M. to
3.45 A.M., while in his statement before the Court he deposed that
he met one of his friends namely Sushil Kataria at New Delhi Railway
station and he had dinner with him and was free by 3.45 a.m. on the
night of 10.1.1999. In his statement under Section 164 Cr.P.C. he
stated that he left for Nizamuddin Railway Station from the
residence of his friend at Lodhi Road around 4.00 a.m. or 4.15 a.m.
so as to board Chattisgarh Express for going to Bhopal and since he
could not get any auto on his way, therefore, he went on foot to
Nizamuddin Railway Station. In his deposition before the Court he
deposed that after having dinner with Sushil both of them sat near
Shiv Mandir at Maharishi Raman Marg around a bonfire lit by three
wheeler drivers. He was sitting with the three wheeler drivers but
still he was not able to get an auto rikshaw so as to move towards
Nizamuddin Railway Station. In his statement under Section 164
Cr.P.C. he stated that when he reached in front of HUDCO building
at Lodhi Road and was walking on the central verge then from the
opposite direction a vehicle at a very fast speed was seen by him
coming towards the petrol pump and had hit 5-6 persons who were
standing near petrol pump. He also stated that the vehicle was being
driven in a zig zag manner and the impact was so forceful that 2-3
persons were flown by the impact of the said car and later fell down.
While in his deposition before the Court he deposed that he saw a
group of people who were standing in the middle of the said road and
they were talking to each other when from the opposite direction
very heavy lights of some vehicle were seen by him and then the said
vehicle which was of black colour had hit those people standing on
the road. In his statement under Section 161 he stated that after
moving a distance of 200 -300 ft the car stopped near the central
verge when the driver came out from his seat and saw the vehicle
from front and back side so as to assess the damage to the car. He
also saw some persons underneath the car when the person from the
co-driver seat also got down and screamed "Sanjeev let us rush" and
thereafter, after crushing the men under the vehicle fled from the
spot. It would be relevant to mention here that this witness in his
cross-examination in the Court deposed that he was forced to take
the name of Sanjeev under pressure of the police in his statement
recorded under Section 164 Cr.P.C. This is also surprising as at the
time of recording of his statement under Section 164 Cr.P.C. he
stated that the concerned Magistrate was quite courteous to him and
he was even offered a cup of tea by the Magistrate, but still could not
tell the Magistrate that he was under pressure from the police. In his
statement before the Court, he deposed that three or so persons
came out of the said car and were seen moving in front and back of
the car to assess the damage, they then sat in the car and after
taking a bit reverse, drove away the car with a speed from his right
side.
159. In his statement recorded under Section 164 Cr.P.C., he
stated that he was at a distance of 300 ft. from the first impact
while in his statement before the Court the distance disclosed by him
is 60 to 70 ft. away from the spot of the accident. According to him,
he also tried to wake up the persons sleeping in the petrol pump
but they did not wake up from their sleep. This version of court
witness goes contrary to the deposition of PW-1 Hari Shankar who in
his deposition stated that after hearing the impact, he came on the
road and witnessed the scene of crime. Essentially, Hari Shankar
is not a chance witness who was on a night duty at the petrol pump
and his presence at the petrol pump looks more natural and
therefore, the above statement of court witness deposing that
everybody were asleep at the petrol pump and they did not wake up
although due efforts were made by the court witness appears to be
absolutely illogical and inappropriate. It is highly improbable that a
person on a night duty at a petrol pump would sleep and other
persons did not wake up despite alleged efforts made by the court
witness. It is also highly unbelievable that the court witness when
reached Nizamuddin railway station found all the five public
telephones lying installed there not in the working condition. He
boarded Chattisgarh Express so as to meet one person named
Kataria but again he was never in possession of any railway ticket
nor he had disclosed any particulars of his friend named Kataria. It
is again amazing to note that when he came back after 2-3 days he
directly made a telephone call to an officer not less than a Joint
Commissioner, Delhi Police. It is also fascinating to note that the
said witness was treated as a guest by the police for 2-3 days. No
explanation has come forth from the State as to why the statement of
this court witness was recorded on 15.1.99 after a gap of 2-3 days
although the witness remained throughout available with the police.
He also resiled from his earlier statement given under Section 164 of
the Cr. P.C., stating that the vehicle was coming in a zigzag manner.
He also took a different stand in his deposition before the Court,
when he stated that he heard the voice „Sanch‟/‟Sanz‟ while in his
statement recorded under Section 164 Cr.P.C., he clearly stated that
the voice heard by him was „Sanjiv let us go‟. Later on in his cross
examination before the Court he disclosed that the name of
„Sanjiv‟ was mentioned by him because of some pressure from the
Police Headquarter. He, in his cross-examination before the Court,
also disputed the fact of the appellant coming out from the driving
seat after the incident. He also admitted in his deposition before the
court that the police kept on deliberating with him before finally
recording his statement under Section 164 Cr.P.C. It was also
strange on his part when he deposed that he had identified the
appellant being one of the occupants of the car because of his
cognitive faculties although he had only seen the physique of the
occupants and not their faces.
160. The said court witness was earlier dropped by the prosecution
as the prosecution was under the apprehension that he already
stood won over by the defence. He was examined as a court
witness after a gap of 7-8 years when all of a sudden the court felt
the necessity of summoning him as a court witness in exercise of
powers under Section 311 Cr.P.C. This is the witness who was
accused in Crime No. 271/99, at Bombay under Section 420 IPC.
This is a witness against whom one Gaurishankar had given an
interview on electronic media saying that Mr. Kulkarni was present
in Mumbai on the date of the said accident (acquaintance with Mr.
Gaurishankar has not been denied by the court witness in his
deposition before the court). This is the witness who was sought to
be arrested by the Bombay Police when some altercation between
the police and advocates took place in the precincts of Patiala House
Court. This is the witness who kept on changing his stand and was
shown in sting operation carried out by the NDTV, negotiating a deal
for helping out the defence. The defence treats such a witness
totally unreliable and untrustworthy, while the prosecution on the
other hand considers this witness as a totally reliable one even if his
other antecedents may not be of any creditworthiness.
161. The APP for the State placed reliance on the judgment of the
Apex Court in Balbir Singh & Ors. Vs. State of Punjab 335 in
support of his proposition that the testimony of a witness even if his
character is not above suspicion, cannot be rejected. Counsel for the
State also placed reliance on the judgment of the Supreme Court in
State of U.P. Vs. Farid Khan, 2005 SCC (Cr) 51, in support of his
proposition that merely because the witness has got a criminal
background, his testimony cannot be thrown out if otherwise his
testimony gets sufficient corroboration from the circumstantial
evidence and from the evidence of other witnesses. The APP for the
State relied upon the judgment of this court in Naresh Kumar
Vs. State, 57(1995) DLT 399, to support his argument that once
the court felt satisfied that there was no lapse on the part of the
investigating agency in recording the FIR even though no eye
witness was then available but put up later to support the
prosecution case, then statement of such a witness cannot be
treated as unreliable.
162. Counsel for the appellant placed reliance on the judgment of
the Apex court in Maruti Ramnaik Vs. State of Maharashtra,
2003 (10) SCC 670 in support of his argument that the testimony
of a witness who fails to explain delay on his part in recording his
statement cannot be relied upon after such a witness claims to have
seen the incident of crime.
163. At this juncture I deem it appropriate to analyse the legal
position as to the relevancy to the evidence of a chance witness.
164. Many a times, the witness does not live near the place of the
crime or there is no reason for him to be present at that particular
time and place and in fact if he is an outsider, such a person is called
a "chance witness" in legal parlance.
165. On the basis of the aforesaid discussion, it is manifest that
Sunil Kulkarni is a shady character who, in order to hog the
limelight, made his entry on the scene on 15.1.1999 and was
produced by the prosecution as its star witness. He utterly failed to
prove his presence at the wee hours of wintry morning of
10/1/1999. The story as given by him was wholly unconvincing,
illogical and irrational so as to inspire any confidence. Thus his
testimony cannot be relied upon. In this regard in Baldev Singh Vs.
State of MP (2003)9 SCC 45, the Apex Court, where chance
witness failed to assign any convincing reason for being at the place
of incident at that abnormal hour of the day in full summer, held that
testimony of such witnesses could not be relied upon.
166. The expression `chance witness' is borrowed from the
countries where every man's home is considered his castle and
everyone must have an explanation for his presence elsewhere or in
another man's castle. In Thangaiya Vs.State of Tamil Nadu (2005
Cri.L.J. 684) the Apex Court indicated as under:-
"In a murder trial by describing the independent witnesses as `chance witnesses' it
cannot be implied thereby that their evidence is suspicious and their presence at the
scene doubtful. Murders are not committed with previous notice to witnesses; soliciting
their presence. If murder is committed in a dwelling house, the inmates of the house are
natural witnesses. If murder is committed in a street, only passers-by will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the ground that
they are mere `chance witnesses'. The expression `chance witness' is borrowed from
countries where every man's home is considered his castle and everyone must have an
explanation for his elsewhere or in another man's castle. It is quite unsuitable an
expression in a country where people are less formal and more casual, at any rate in
the matter explaining their presence. In instant case, the plea of the accused that PW-3
was `chance witness' who has not explained how he happened to be at the alleged
place of occurrence, it has to be noted that the said witness was an independent
witness. There was not even a suggestion to the witness that he had any animosity
towards the accused. Therefore, there is no substance in the plea that evidence of
independent witness which is clear and cogent is to be discarded."
167. Although, some caution is required to be exercised in case of
chance witnesses, but merely because a witness is a chance witness
does not entail that his testimony should be discarded forthwith. The
evidence of a chance witness is not necessarily incredible or
unbelievable but it only requires cautious and close scrutiny. It
requires a close scrutiny of the evidence of a chance witness before
relying upon it. In this regard the Apex Court observed as under in
State of Punjab v. Gurdip Singh, (1996) 7 SCC 163:
―8. So far as PW 6 Madhuban is concerned, it appears to us that he is a chance witness
and although he has stated that when the accused had been loudly giving suggestion to
the deceased to commit suicide by burning or by drowning he could hear the same from
his friend's house, his evidence should not be accepted. None of the neighbours has
been examined in this case. The evidence of the said chance witness without being
corroborated by any other independent witness does not inspire confidence. For
the aforesaid facts, we do not find any reason to take a contrary view and the appeal,
therefore, fails and is dismissed.‖
168. As mentioned above and in view of the foregoing discussion,
the presence of Kulkarni as a chance witness at the site of accident
on the wintry morning of 10.1.99 at about 4.30 A.M. with his filmy
style story from hotel to station and then to Lodhi Road and then to
the site of crime is utterly unbelievable to be relied upon.
169. Without disputing the legal propositions settled in the
aforesaid judgments, the first and foremost duty of the court was to
critically examine the credibility and the reliability of the said
witness so far his claim of personal presence at the time of the
accident was concerned, and then the question of his corroboration
with the scene of the crime as disclosed in the site plan or his
corroboration with the other witnesses could have been analyzed to
give credence to his testimony. The manner in which this witness
has tried to demonstrate his presence exactly at the time when the
BMW car had entered the Lodhi Road from Nizamuddin side would
show that he masterminded the sequence of unreliable evidence
starting from the time when he checked out from his hotel to visit
Sheila Theatre, then spending time from 12.00 A.M. to 3.45 A.M.
with his friend at Lodhi Road and then spending time warming
himself in the company of auto drivers around the bonfire, then
walking on foot in search of auto so as to exactly enter the scene co-
inciding with the timings of the said accident. He was destined to
go to Solan but then ultimately boarded a train for Bhopal. He was
not in a position to contact the police, could not wake up the
employees of petrol pump, could not find PCO on his way from Lodhi
Road to Nizamuddin railway station as all the PCO‟s at that point of
time went out of order. He could not come across even a single
police constable on his way to Nizamuddin railway station or even at
the railway station itself where even in night hours normally the
police officials remain on duty. He even did not contact the police
after boarding the train to Bhopal, then after coming from Bhopal he
straightway came in the contact with the officer of the rank of Joint
Commissioner of Police who directed him to meet the DCP, then the
local police officials. He still did not prefer to give his statement or
to write a complaint till 15.1.99, although remained as a guest of
police for 2-3 days. If witness of such a character can be relied upon
as a truthful witness then one will have to give a different meaning
to falsehood or to dishonesty. Before believing any part of his
testimony and before looking for corroboration to his testimony with
the testimony of other witnesses or the scene of the crime, the Trial
Court should have at the first instance satisfied itself without any
element of doubt about his presence at the scene of the crime. If his
very presence as has been held by this Court was utterly doubtful
then his entire testimony falls to the ground. By no stretch of
imagination, after going through his statements under Sections 161,
164 and before the Court, the presence of said witness at the scene
of crime can be believed.
170. In my considered view, Mr. Sunil Kulkarni is the most
dishonest, unreliable, untrustworthy and untruthful witness. His
entry in the case is as dramatic as could happen only in our
Bollywood movies. It appears that he introduced himself as a
witness of the scene of the crime not without any extraneous
reasons. Finding involvement of an accused from a rich and affluent
family, he jumped into the fray may be to make a fortune. As noted
above, the manner in which the police had been hob-nobbing with
this witness even the motive of police appears to me to be a suspect.
The defence for their apparent motive also tried to fiddle with this
witness. In any event of the matter, his presence at the scene of the
crime is as false as the existence of a $3 bill.
171. In view of the above discussion, the deposition of court witness
Sunil Kulkarni is thrown out lock, stock and barrel.
3. Intoxication
172. Challenging the findings of the learned trial court, on the
intoxication, counsel for the appellant submitted that there is no
evidence on record to prove that the appellant was intoxicated in the
sense in which intoxication is understood under Section 85 IPC nor
in the sense of his ability to control the motor vehicle substantially
impaired as a result of taking of alcohol as laid down by Section
185(1) of the M.V. Act. Number of other objections were taken by
the counsel for the appellant which have already been referred
above in the submissions raised by the counsel.
(a) Blood reports and validity of test conducted
173. Counsel for the State, on the other hand, placed reliance on
the evidence of PW-16 and of the FSL report duly proved on record
as Ex.16/A by the said PW-16, Dr. Madhulika Sharma, Sr. Scientific
Officer. Since the counsel for the appellant has proceeded with his
arguments after accepting the presence of 0.115% alcohol in the
blood sample of the appellant as opined by PW-16, Dr. Madhulika
Sharma, Sr. Scientific Officer, therefore, various contentions raised
by the parties with regard to the procedure adopted by the
prosecution for the collection of the blood samples or on the final
report of the blood sample has become inconsequential. The counsel
for the appellant has also made a strong challenge to the
methodology of test of blood samples adopted by the prosecution in
preference to the method prescribed under Section 185 of the
M.V.Act, which prescribes such tests only with the help of breath
analyzer. Counsel for the appellant also placed reliance on the
judgments reported as Rowlands Vs. Hamilton, 1971 (1) AER
1089 and Gumbley Vs. Cunningham, 1989 (1) ALL ER 5 in
support of his arguments.
174. No doubt under Section 185 of M.V.Act, the test prescribed is
through a breath analyzer and in the present case the test through
the mechanism of breath analyzer was not carried out. Under
Section 185 of M.V. Act if in the blood of an offender alcohol
exceeding 30 mg per 100 ml of blood is detected then, such an
offence has been made punishable for the first offence with
imprisonment for a term which may extend to 1-6 months or with
fine which may extend to Rs.1000 to 2000. It would be appropriate
to reproduce Section 185 of the M.V. Act as under.
―185. Driving by a drunken person or by a person under the influence of drugs.
Whoever, while driving, or attempting to drive, a motor vehicle,-
1[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test
by a breath analyser, or]
(b) is under this influence of a drug to such an extent as to be incapable of exercising
proper control over the vehicle,
shall be punishable for the first offence with imprisonment for a term which may extend
to six months, or with fine which may extend to two thousand rupees, or with both; and
for a second or subsequent offence, if committed within three years of the commission
of the previous similar offence, with imprisonment for a term which may extend to two
years, or with fine which may extend to three thousand rupees, or with both.
Explanation.-For the purposes of this section, the drug or drugs specified by the Central
Government in this behalf, by notification in the Official Gazette, shall be deemed to
render a person incapable of exercising proper control over a motor vehicle.‖
175. The language of said Section would show that the „breath
analyzer‟ test is required to be carried out only when the person is
attempting to drive the vehicle or while he is driving the offending
vehicle, therefore, it is apparent that the breath analyzer test is a
kind of instant test to be conducted on the spot, through which the
presence of alcohol in the blood of the offender can be determined
instantly so that the offender may be prosecuted for drunken
driving but not after a gap. But in the instant case, the appellant
had fled from the site of the accident and was taken to AIIMS
hospital at 12.29 P.M., on 10.1.99 when his blood sample was taken
by the doctor attending on him. According to Section 45 of the
Indian Evidence Act, opinion of witnesses possessing specialized
knowledge and skills is admissible and therefore, the courts can form
their opinion based on the evidence given by the medical experts and
in the present case the evidence given by Senior Scientific Officer
Dr. Madhulika Sharma which was not effectively rebutted by the
appellant, remained conclusive between the parties. I, therefore,
do not find any merit in the submission of the counsel for the
appellant that the prosecution could not have resorted to the method
of taking blood sample to find out the presence of alcohol in the
blood of the appellant ignoring the method of breath analyzer test as
statutorily prescribed under Section 185 of the M.V. Act.
(b) Blood test allowed under MV Act
176. Furthermore, a bare perusal of Sections 203 and 204 of M.V.
Act would show that for the purpose of offence committed under
Section 185 of M.V. Act, blood sample for laboratory test under
Section 204 of M.V. Act may be collected where the breath test
provided for under Section 203 M.V. Act could not be done as soon
as reasonably practicable after the commission of the crime, due to
the omission, refusal or failure of the offender. Breath analyzer test
is more like a screening test used by police to determine if a person
was driving a vehicle under the influence of alcohol. Sections 203
and 204 M.V. Act are reproduced as under:
―203. Breath tests.- [110] [(1) A police officer in uniform or an officer of the Motor
Vehicles Department, as may be authorised in this behalf by that Department, may
require any person driving or attempting to drive a motor vehicle in a public place to
provide one or more specimens of breath for breath test there or nearby, if such police
officer or officer has any reasonable cause to suspect him of having committed an
offence under Section 185:
Provided that requirement for breath test shall be made (unless, it is made) as soon as
reasonably practicable after the commission of such offence.]
(2) If a motor vehicle is involved in an accident in a public place and a police officer in
uniform has any reasonable cause to suspect that the person who was driving the
motor vehicle at the time of the accident had alcohol in his blood or that he was driving
under the influence of a drug referred to in Section 185 he may require the person so
driving the motor vehicle, to provide a specimen of his breath for a breath test-
(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) in the case of any other person, either at or near the place where the requirement is
made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a
hospital as an indoor patient if the registered medical practitioner in immediate charge
of his case is not first notified of the proposal to make the requirement or objects to the
provision of a specimen on the ground that its provision or the requirement to provide it
would be prejudicial to the proper care or treatment of the patient.
(3) If it appears to a police officer in uniform, in consequence of a breath test carried out
by him on any person under sub-section (1) or sub-section (2) that the device by means
of which the test has been carried out indicates the presence of alcohol in the person's
blood, the police officer may arrest that person without warrant except while that person
is at a hospital as an indoor patient.
(4) If a person, required by a police officer under sub-section (1) or sub-section (2) to
provide a specimen of breath for a breath test, refuses or fails to do so and the police
officer has reasonable cause to suspect him of having alcohol in his blood the police
officer may arrest him without warrant except while he is at a hospital as an indoor
patient.
(5) A person arrested under this section shall while at a police station, be given an
opportunity to provide a specimen of breath for a breath test there.
(6) The results of a breath test made in pursuance of the provisions of this section shall
be admissible in evidence.
Explanation.- For the purposes of this section ―breath test‖, means a test for the
purpose of obtaining an indication of the presence of alcohol in a person's blood carried
out on one or more specimens of breath provided by that person, by means a device of
a type approved by the Central Government by notification in the Official Gazette, for
the purpose of such a test.
204. Laboratory test.- (1) A person who has been arrested under Section 203 may,
while at a police station be required by a police officer to provide to such registered
medical practitioner as may be produced by such police officer, a specimen of his blood
for a laboratory test, if,-
(a) it appears to the police officer that the device, by means of which breath test was
taken in relation to such person, indicates the presence of alcohol in the blood of such
person, or
(b) such person when given the opportunity to submit to a breath test, has refused,
omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the
registered medical practitioner produced by such police officer is a male medical
practitioner, the specimen shall be taken only in the presence of a female, whether a
medical practitioner or not.
(2) A person while at a hospital as an indoor patient may be required by a police officer
to provide at the hospital a specimen of his blood for a laboratory test-
(a) it it appears to the police officer that the device by means of which test is carried out
in relation to the breath of such person indicates the presence of alcohol in the blood of
such person, or
(b) if the person having been required, whether at the hospital or elsewhere, to provide
a specimen of breath for a breath test, has refused, omitted or failed to do so and a
police officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his blood for a
laboratory test under this sub-section if the registered medical practitioner in immediate
charge of his case is not first notified of the proposal to make the requirement or objects
to the provision of such specimen on the ground that its provision or the requirement to
provide it would be prejudicial to the proper care or treatment of the patient.
(3) The results of a laboratory test made in pursuance of this section shall be admissible
in evidence.
Explanation.- For the purposes of this section, ―laboratory test‖ means the analysis of a
specimen of blood made at a laboratory established, maintained or recognised by the
Central Government or a State Government.‖
177. A bare look at the aforesaid two provisions of the M.V. Act
would show that in a case where due to failure, refusal or omission of
a person, breath analyzer has not taken place, the presence of
alcohol in the blood of such person can be ascertained through
Laboratory test of blood sample of such person. It also needs to be
mentioned that with the growth and advancement of science, the
methodology adopted for such investigations cannot be restricted to
the test as prescribed and new methods can always be adopted to
give more authenticity and conclusiveness to such tests. If a
restrictive interpretation is given in this regard, then the same would
be a hindrance to avail the benefits of new technological
developments. Be that as it may, creative interpretation of the
provisions of the statute demands that with the advancement in
science and technology, the court should read the provisions of a
statute in such a manner so as to give complete effect to the same.
178. The two judgments cited by the counsel for the appellant
cannot be of much help in view of the legal position discussed
above. In Rowlands Vs. Hamilton (Supra), the House of Lords
was confronted with a strange situation where the offender had
consumed alcohol after he ceased to drive the vehicle and the
question arose whether the alcohol content at the time of the test
can be ascertained without adjustment of the consumption of
whisky consumed by the offender after having ceased to drive the
vehicle. Dealing with the pre-amended Section 1(1) of the Road
Safety Act 1967, the House of Lords held as under:
―Section 1(1) prescribes the manner in which the proportion of alcohol
in the blood is to be determined. It is the proportion ‗as ascertained from a laboratory
test'. In my opinion, the Act does not permit of it being ascertained in any other way.
The result of the test in this case showed the proportion of alcohol in the respondent's
blood at the time the specimen was provided.
......The language does not, in my view, permit of any other exceeded, is not a
test of the alcohol in the blood resulting solely from the consumption of alcohol before
driving ceased then there must be an acquittal.....‖
179. It is in the aforesaid background, the House of Lords held that
to determine whether the proportion of the alcohol in the blood
exceeded the prescribed limit, the same could be ascertained only
from a laboratory test as statutorily prescribed in Section 1(1) of the
Road Safety Act 1967. It is also worth noticing that in the said case
the offender was facing prosecution under the Road Safety Act
unlike in the instant case where the appellant was facing charge
under Section 304-I IPC and was convicted under Section 304 (II)
IPC and not under Section 185 of the M.V. Act. Similarly, in
Gumbley Vs. Cunningham (Supra), the House of Lords was
dealing with the amended provision of the Road Safety Act to answer
the following question:
―Whether on a true construction of Section 6(1) and Section
10(2) of the Road Traffic Act 1972, as amended, the prosecutor is entitled to adduce
evidence other than by way of the specimen of breath or blood provided by the
accused in order to prove the proportion of alcohol in the accused's breath or blood at
the material time.‖
180. It would be worthwhile to refer the facts of the said case for
better appreciation of the controversy involved therein. The
offender in the said case at about 10.45 P.M. on 7.5.85 left along
with his brother and drove his car at Erdington turn. He drove
erratically for about six miles and about 11.15 P.M. he collided at
high speed with the wall of an underpass in the city centre thereby
killing his brother. He refused specimen of his breath and
between 11.50 and 12.20 P.M. he started vomiting and thereafter
was taken to a nearby general hospital. At 3.35 A.M. at the general
hospital his blood sample was taken for analysis and the analysis
revealed a concentration of not less than 59 mg of alcohol per 100
ml of blood. Since the presence of the alcohol was found less than
the prescribed limit of 80 mg the prosecution sought to establish
that the blood-alcohol concentration in the blood of the offender
must have been in excess of the prescribed limit at the time of the
collision. Relying on some medical evidence, the prosecution sought
to establish that such a person would eliminate alcohol from his
blood stream at between 10 and 25 mg per 100 ml per hour and if
such an elimination of alcohol is taken into consideration then the
presence of alcohol would have been in excess of the prescribed
limit at the time of the collision. It is in this background the House
of Lords held as under:
―I therefore agree with the conclusion reached by the Divisional Court
that those who drive whilst above the prescribed limits cannot necessarily escape
punishment because of the lapse of time. Because back-calculations involve a number
of factors, eg. the individual's personal physiology, the amount, if any, which he has
eaten and the nature of the alcohol which he has drunk, I would indorse the advice
given by the Divisional Court that the prosecution should not seen to rely on evidence
of back-calculations save where the evidence is both easily understood and clearly
establishes the presence of excess alcohol at the time when the accused was driving.
The Divisional Court was clearly right to emphasize that justices must be very careful,
especially where there is conflicting evidence, not to convict unless on the scientific and
other evidence, which they find it safe to rely on, they are sure that an excess of
alcohol was in the defendant's body when he was actually driving as charged.‖
181. It would be thus apparent that decisions of both the
judgments were based in their own peculiar facts and are no
authority to determine the controversy involved in the present case.
The other two judgments in the case of Nazir Ahmad Vs. King
Emperor, AIR 1936 Privy Council 253 (2) and State of U.P. Vs.
Singhara Singh & Ors., AIR 1964, SC 358 are equally not
applicable.
182. It is no more res integra that a decision of a court cannot be
treated as Euclid‟s formula to be read and understood mechanically.
A decision must be considered on the facts of that particular case. In
this regard, the Hon‟ble Apex Court observed as under in Rajbir
Singh Dalal (Dr.) v. Chaudhari Devi Lal University,(2008) 9
SCC 284:
40. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani24 a decision cannot be
relied on without disclosing the factual situation. In the same judgment this Court also
observed: (SCC pp. 584-85, paras 9-12)
―9. Courts should not place reliance on decisions without discussing as to how the
factual situation fits in with the fact situation of the decision on which reliance is placed.
Observations of courts are neither to be read as Euclid's theorems nor as provisions of
the statute and that too taken out of their context. These observations must be read in
the context in which they appear to have been stated. Judgments of courts are not to be
construed as statutes. To interpret words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy discussions but the discussion is
meant to explain and not to define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their words are not to be interpreted as
statutes. In London Graving Dock Co. Ltd. v. Horton25 (AC at p. 761), Lord MacDermot
observed: (All ER p. 14 C-D)
‗The matter cannot, of course, be settled merely by treating the ipsissima verba of
Willes, J. as though they were part of an Act of Parliament and applying the rules of
interpretation appropriate thereto. This is not to detract from the great weight to be
given to the language actually used by that most distinguished judge.'
10. In Home Office v. Dorset Yacht Co. Ltd.26 (All ER p. 297g-h) Lord Reid said, ‗Lord
Atkin's speech ... is not to be treated as if it were a statutory definition. It will require
qualification in new circumstances.' Megarry, J. in Shepherd Homes Ltd. v. Sandham
(No. 2)27, (All ER p. 1274d-e) observed: ‗One must not, of course, construe even a
reserved judgment of Russell, L.J. as if it were an Act of Parliament;' and, in British
Railways Board v. Herrington28 Lord Morris said: (All ER p. 761c)
‗There is always peril in treating the words of a speech or judgment as though they are
words in a legislative enactment, and it is to be remembered that judicial utterances are
made in the setting of the facts of a particular case.'
11. Circumstantial flexibility, one additional or different fact may make a world of
difference between conclusions in two cases. Disposal of cases by blindly placing
reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have
become locus classicus:
‗Each case depends on its own facts and a close similarity between one case and
another is not enough because even a single significant detail may alter the entire
aspect, in deciding such cases, one should avoid the temptation to decide cases (as
said by Cardozo) by matching the colour of one case against the colour of another. To
decide therefore, on which side of the line a case falls, the broad resemblance to
another case is not at all decisive.
* * *
Precedent should be followed only so far as it marks the path of justice, but you must
cut the dead wood and trim off the side branches else you will find yourself lost in
thickets and branches. My plea is to keep the path of justice clear of obstructions which
could impede it.' ‖ (emphasis supplied)
41. In view of the above, we are of the opinion that the decision of this Court in Bhanu
Prasad Panda (Dr.) case1 cannot be read as a Euclid's formula or treated as a
precedent, since it has not given any reason for holding that Political Science and
Public Administration are distinct and separate subjects, and since the aforesaid
decision was given on a concession.‖
183. Based on the above discussion, the contention of the counsel
for the appellant as regards breath analyzer also falls face down
being devoid of any merit.
(c) PW 16 Dr. Madhulika Sharma, Senior Scientific Officer not
rebutted
184. The next important question is whether the appellant had
consumed the liquor beyond the permissible limit and was in a state
of intoxication or drunkenness, impairing his driving ability at the
time of causing the said accident. In the test report submitted by
Dr. Madhulika Sharma, Senior Scientific Officer, FSL she found the
presence of 0.115% weight/volume ethyl alcohol in his blood. The
said test report was duly exhibited as Ex.PW-16/A in the evidence of
PW-16, Dr. Madhulika Sharma. In her cross-examination, PW-16
clearly explained that 0.115 % would be equivalent to 115 mg per
100 ml of blood. In answer to the court question the said witness
also clearly deposed that as per traffic rules if the person is under
the influence of liquor and alcohol content in blood exceeds 30 mg
per 100 ml of blood, the person is said to have committed an offence.
Whereas, in the present case it was much above i.e., 115 mg. The
evidence of the said medical expert was not rebutted as no contrary
suggestion was put to the said witness by the defence disputing the
correctness of the said test report and therefore, the said
unrebutted testimony of the said witness has to be given due
credence. Even the plea of deduction of 0.020% from the said intake
of alcohol on account of aldehyde and ketones is not available to the
appellant as no suggestion in this regard was given by the appellant
to PW 16 during her cross-examination. In this regard, I find support
from two judgments reported as Shri Chand Batra Vs. State of
U.P., AIR 1974 SC 639 and State of Gujarat Vs. Ibrahim
Mohmad, 1975 Crl. L.J. 1089.
(d) Citing books
185. Furthermore, while challenging the authenticity of the blood
samples and the report submitted by Dr. Madhulika Sharma, the
learned senior counsel for the appellant referred to the case of
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116, where the Hon‟ble Apex Court itself preferred to cite some
passages of an eminent psychiatrist, Robert J. Kastenbaum from his
book Death, Society and Human Experience, to analyse the causes,
the circumstances, the moods and emotions that may drive a person
to commit suicide. He has also relied on the judgment delivered by
the Privy Council in Tumahole Bereng and ors. v. The King AIR
1949 PC 172.
186. To substantiate his point on irrelevancy of citing books, the
learned counsel for the State relied upon State (through CBI) v
Santosh Kumar Singh 2007 Cri LJ 964 (Del) (DB), wherein the
Division Bench of this Court referred to the judgments of the Hon‟ble
Supreme Court in Sunder Lal v. State of Madhya Pradesh AIR
1954 SC 28: 1954 Cri LJ 257 and Bhagwan Dass v. State of
Madhya Pradesh AIR 1957 SC 598: 1957 Cri LJ 889 where it
was held that findings of an expert cannot be set aside by a Court by
making a reference to some literature/book without confronting the
expert with them and directing his opinion on it. The division bench
also referred to the case of Gambhir v. State of Maharashtra AIR
1982 SC 1157: 1982 Cri LJ 1243, wherein it was held that the
court should not usurp the function of an expert by arriving at its
own conclusions contrary to the one given by the expert witness.
187. In this context, I find it relevant to refer to the case of State of
Madhya Pradesh v. Sanjay Rai 2004 Cri. L. J. 2006 (SC), where
the Hon‟ble Supreme Court observed the following at para 17 of the
judgment, also referring to its earlier decisions in Sunderlal v. The
State of Madhya Pradesh (supra) and Bhagwan Das and
another v. State of Rajasthan (supra):
―17. It cannot be said that the opinions of these authors were given in regard to
circumstances exactly similar to those which arose in the case now before us nor is this
a satisfactory way of dealing with or disposing of the evidence of an expert examined in
this case unless the passages which are sought to be relied to discredit his opinion are
put to him. This Court in Sunderlal v. The State of Madhya Pradesh (AIR 1954 SC 28),
disapproved of Judges drawing conclusions adverse to the accused by relying upon
such passages in the absence of their being put to medical witnesses. Similar view was
expressed in Bhagwan Das and another v. State of Rajasthan (AIR 1957 SC 589).
Though opinions expressed in text books by specialist authors may be of considerable
assistance and importance for the Court in arriving at the truth, cannot always be
treated or viewed to be either conclusive or final as to what such author says to deprive
even a Court of law to come to an appropriate conclusion of its own on the peculiar
facts proved in a given case. In substance, though such views may have persuasive
value cannot always be considered to be authoritatively binding, even to dispense with
the actual proof otherwise reasonably required of the guilt of the accused in a given
case. Such opinions cannot be elevated to or placed on higher pedestal than the
opinion of an expert examined in Court and the weight ordinarily to which it may be
entitled to or deserves to be given.‖
188. Considering the decisions of Hon‟ble Supreme Court in State
of Madhya Pradesh v. Sanjay Rai (supra), Sunderlal v. The
State of Madhya Pradesh (supra), Bhagwan Das and another v.
State of Rajasthan (supra) and Gambhir v. State of
Maharashtra (supra) and also of the Division Bench of this Court
in State (through CBI) v Santosh Kumar Singh (supra), it
should always be kept in mind that the opinions given in books are
not circumstance-specific and they will have only persuasive value
and they cannot be made binding unless the experts are confronted
to give answer to such opinions of Authors expressed by them in
their textbooks. It cannot be forgotten that the experts of certain
specialized field are expected to be well conversant with the opinions
of authors expressed in various textbooks, to suitably answer the
questions, if asked to them in their cross-examination. Hence, the
counsel for appellant cannot rely upon the theories given in various
books when they were not put to the said expert witness during her
cross-examination.
(e) Whether accused was Sober or intoxicated at the time of
accident
189. Now proceeding with the fact of the presence of 115 mg
of alcohol per 100 ml of blood, the next question would arise as to
whether with the presence of the said quantity of alcohol the
offender could be considered sober or in the state of drunkenness or
intoxication to the level which could result in inpairing his capability
to drive the vehicle at the time of occurrence of the accident.
190. Counsel for the appellant placed reliance on the medical
jurisprudence by Modi‟s Medical Jurisprudence & Toxicology and
Field‟s Expert Evidence to contend that these medical authorities are
unanimous in their view that even if the presence of the said
quantity of alcohol is taken as correct, the same would be consistent
with sobriety and undiminished driving ability. Relevant para from
the Modi‟s Medical Jurisprudence & Toxicology taken from page 315
is reproduced as under:
―It is generally believed that a person with a concentration of 0.1 per cent alcohol in the
blood appears to be gay and vivacious, and those with a concentration of 0.15 per cent
alcohol in the blood are regarded as fit to drive a motor vehicle. This concentration of
alcohol in the blood is regarded as a presumptive limit of safety, and may result from
the rapid consumption of 8 ounces of whisky or 4 to 5 pints of beer. Persons with a
concentration of 0.2 per cent alcohol in the blood, show symptoms of moderate
intoxication where as those with 0.2 to 0.4 per cent are progressively dizzy, delirious,
stuporous and quite drunk, and those with more than 0.5 per cent are dead drunk or
deeply comatose. When the amount of alcohol approaches 0.6 to 0.7 per cent or more
in the blood, death usually ensures from asphyxia. It is a legal offence for a person to
with a blood alcohol level above 0.05 per cent drive a motor vehicle in Norway, above
0.08 per cent in Sweden and in England (Road Safety Act 1967) and above 0.10 per
cent in Denmark, while in many states of USA, 0.15 per cent level results in a
conviction.
Table of Equivalents Methods of Expressing the Concentration of Alcohol
of the Tissues
Milligrams per 100 ml Milliliter per 100 ml Grams per liter Percentage
(w/v) (v/v)
50 63.13 0 0.05
100 126.26 1.0 0.10
150 189.89 1.5 0.15
200 252.52 2.0 0.20
Average specific gravity of alcohol at 20/20 may be taken as 0.7919
Specific gravity=Weight=W i.e 0.7919=50mg.V=50=60.13
Volume V V 0.7919
Concentration of 50 mg/100 mg(w/v) of alcohol will therefore be equivalent to a
concentration of 68.13 ml/100 ml(vv).
Alcohol acts differently on different individuals and also on the same individual at
different times. The action depends mostly on the environment and temperature of the
individuals and upon the degree of dilution of the alcohol consumed. The habitual
drinker usually shows fewer effects from the same dose of alcohol. Barbiturates,
benzodiazepines, antihistamines, tranquilizers, chlorpromazine and insulin, potentiate
the action of alcohol, while epileptics or persons who have suffered from a head injury
may show an increased effect to a small quantity of alcohol.‖
191. Under Section 185 of the Motor Vehicles Act, presence of
alcohol exceeding 30 mg per 100 ml of blood in a person driving the
vehicle and attempting to drive a vehicle has been made punishable
and in the present case the said quantity of blood is much in excess
i.e., 115 mg per 100 ml of blood, therefore, so far the offence under
Section 185 of the M.V. Act is concerned, the appellant could have
been clearly held liable for the said offence but in the present case
the appellant was not charged under Section 185 of M.V. Act and
the presence of alcohol exceeding 30 mg necessarily would not lead
to a conclusion that the offender was in drunken or intoxicated state
to such an extent rendering him incapable to drive the vehicle. The
different countries have laid down different parameters and different
punishments so far the intake of alcohol by the person driving any
vehicle is concerned. In India, prior to the amendment in the year
1994 in Motor Vehicles Act,1988, the drunken driving was totally
prohibited and was punishable under Section 117 of the Motor
Vehicles Act, 1939 and the said rigor was relaxed by putting the
limit if presence of alcohol exceeding 30 mg per 100 ml of blood. In
Sweden, if you drive with alcohol content of 0.02 % you can be
imprisoned up to six months and if the said quantity increases to
0.10 % then you can go to jail for a period of two long years. In
middle east countries like Kuwait, Iran, Saudi Arabia, they do not like
their citizens to drink at all. In Canada if you drive with 0.08% then
you may not be able to drive for one whole year after that and plus
there is a fine. In the U.S.A too, the limit is 0.08%, although it
varies in some of their states. You can also get one year
imprisonment and licene can be suspended on the spot. In Pakistan
also there is total ban of the alcohol and there is no question of any
limit. In China, it is 0.05% and in Hong Kong also it is 0.05%. The
maximum percentage in most of the countries in any case does not
exceed 0.08%. Going by the views of the medical experts given in
Modi‟s Medical Jurisprudence & Toxicology, this issue that under
what circumstances a person can be considered in a state of
intoxication was extensively dealt with in a case reported as
Narayanan Nair Vs. State, AIR 1952 Travancore Cochin 239,
where the accused Superintendent of Fisheries was on his way to
conduct an inquiry into the official irregularities of some inspectors
of Fisheries but was taken into custody on his way as he was found
in the state of intoxication at a public place. Referring to the
Taylor‟s Medical Jurisprudence, Volume II pages 535 and 536, the
court dealt with the subject in detail. It would be relevant to
reproduce the following paras from the said judgment:
―The absorption of alcohol from the stomach and small intestine begins
soon after ingestion. The rate of absorption is dependent upon a number of factors, the
most important being the presence or absence of food in the stomach. Food delays
absorption and the delay is most marked in the presence of fat and protein (haggard
and Greenberg, 1934; Mellanby, 1919). The concentration of alcohol is important, and
generally the stronger the drink the more rapid is its effect. Absorption is usually
complete within the first hour, so that after a single dose the maximum concentration in
the blood is reached within the same period. After absorption, the alcohol is
distributed, more or less evenly throughout the tissues, with the exception of the
bones and fat. Thus by estimating the amount of alcohol in the blood it is possible to
calculate the approximate total quantity in the body at that time and the minimum,
quantity which must have been ingested.
About 90 per cent of the alcohol absorbed is oxidized and the
remaining 10 per cent is excreted, mainly by the kidneys and the lungs. At no
stage in its oxidation is alcohol stored in the tissues and its disappearance
from the blood takes place at a fairly uniform rate, which the rough calculation
may be placed at, 10 c. cm. per hour (o.185 c. cm. per kg. of body weight
(Mellanby, 1919). It to be cleared of alcohol after the ingestion of a single
large whisky. The excretion by the kidney is of importance in that at the time
of secretion the urine has a similar concentration as that in the plasma at the
same time, though higher than that in the blood as a whole, the ratio being
approximately 1.3:1.
The concentration in the blood varies, however, increasing during
absorption and then decreasing with oxidation. It follows, then that the
concentration of alcohol in a given sample of urine will correspond with the
average concentration in the blood during the time the urine has been
collecting in the bladder (Smith and Stewart, 1932). If the concentrations in
the urine and blood are estimated some time after ingestion when the
alcohol in the blood has fallen through oxidation, it may be found that the
urine alcohol is at a higher level. Urine examination may, therefore, be used
instead of blood examination and gives a reasonably accurate idea of the total
alcohol in the body.
A considerable number of investigations have been made in an
endeavor to correlate the alcoholic concentration in the blood with the
behavior of the individual.
It is generally agreed that with concentrations below 0.05 per cent,
there is little change to be observed on clinical examination; at 0.10 per cent,
a number shows mild symptoms and quite possibly some more decided
symptoms. Between this level and 0.2 per cent the number showing decided
symptoms of intoxication increases, and at the latter figure it is to be
expected that practically all will be diagnosed clinically. The critical
concentration seems to lie at or about the 0.15 level and any person with this
amount in his blood can be considered to have imbibed a dangerous amount
of alcohol. With increasing concentrations the symptoms become more
intense and at concentrations beyond 0.2 per cent up to 0.5 per cent there is
likely to be marked inco-ordination, come and possibl
‗Effects of alcohol'. The only acute effect of alcohol which is of any
interest is its effect on the central nervous system. Its first effect appears to
be a depression of the highest evolutionary centres, the centres regulating the
conduct, judgment, and self criticism. It passes progressively downwards
through the centres of earlier evolutionary origin until the motor centres are
reached, and finally it depresses and paralyses the vital centres in the
medulla.
There is first a feeling of well being and a certain slight excitation.
The actions, speech and emotions are less restrained, due to a lowering of
the inhibition normally exercised by the higher centres of the brain. With this
there is increased confidence and a certain carelessness of consequences.
This implies a lack of self-control, which is one of the first things observed
after alcohol, and which is a constant feature of alcoholic poisoning.
When the narcosis has penetrated more deeply the sense
perceptions and skilled movements are effected. The increased loss of the
inhibitory action of the higher centres causes an alternation in the conduct of
the individual according to the dictates of his inherent desires and emotions.
This accounts for the fact that an individual may become morose,
gay, irritable, excitable, pugnacious, sleepy and so on, according the
dominant impulses which have been unleashed by the drug. The reaction
times are somewhat lengthened, and there is a certain clumsiness and inco-
ordination in the finer and more skilled movements shown by slight alteration
in speech and in the finer finger movements.
This passes into a third stage, where the motor and sensory cells
are deeply affected, speed becomes thick and slurring, co-ordination is
markedly affected, causing the patient to stagger and possibly to fall. Finally a
stage is reached where the narcosis affects the whole nervous system, and
the patient passes into a state of coma with stertorous breathing, indicating a
commencing paralysis of the respiratory centre.
The coma gradually lightens into a deep sleep, and the patient, if
left alone, usually recovers in eight to ten hours and wakes up with gastro-
intestinal irritation, and usually nausea, vomiting and severe headache. If the
coma continues for more than ten hours, the prognosis is bad.‖
(3) The accused was not in any condition of coma when
P.W.8 saw him. According to the prosecution, it was also more than five h
ours since he had taken the liquor. He could not, therefore, have been in a
stage of intoxication at 12.50 a.m. P.W.7 himself stated that the accused
pleaded before him to let him free. That would not be the condition of a
person who was in a stage of intoxication. The tests to find out whether a
person is intoxicated or not, are given at pages 613 and 614 of Modi's
Medical Jurisprudence and Toxicology. They are given below:
―In order to ascertain whether a particular individual is drunk or not a
medical practitioner should bear the following points in mind:
1. The quantity taken is no guide.
2. An aggressive odour of alcohol in the breath, unsteady gait, vacant look,
dry and sticky lips, congested eyes, sluggish and dilated pupils, unsteady and
thick voice, talks at random and want a perception of the passage of time are
the usual signs of drunkenness.
3. Drunkenness does not come within the cognizance of the police, unless the
man is dangerous to himself or to his property or that he is annoying or
dangerous to others.
A special committee of the British Medical Association was appointed to
consider the question of the definition and diagnosis of drunkenness. This
committee arrived at the following conclusions and recommendations in
regard to persons accused of being ―drunk‖:
I. That the word ―drunk‖ should always be taken to mean that the person
concerned was so much under the influence of alcohol as to have lost control
of his faculties to such an extent as to render him unable to execute safety
the occupation on which he was engaged at the material time.
II. That it is desirable that a medical practitioner should base his opinion on
the following considerations:
(a) Whether the person concerned has recently consumed alcohol.
(b) Whether the person concerned is so much under the influence of alcohol as to
have lost control of his faculties to such an extent as to render him unable to
execute safely the occupation on which he was engaged at the material time.
(c) Whether his stage is due, wholly or partially, to a pathological condition which
causes symptoms similar to those of alcoholic intoxication, irrespective of the
amount of alcohol consumed.
III. That in the absence of any pathological conditions a person is definitely
under the influence of alcohol if there is a smell of alcoholic liquor in the breath and/or in
the vomited manner (if any) provided there is a combination of all or most of the following
groups of signs or symptoms:
(i) A dry and furred tongue, or conversely, excessive salivation.
(ii) Irregularities in behavior, such as insolence, abusive language,
loquacity, excitement or sullenness, and disorder of dress.
(iii) Suffusion of the conjunctivae & reaction of the pupils. The pupils may
vary from a stage of extreme dilatation to extreme contraction and may be equal or
unequal.
In the opinion of many police surgeons when alcohol in toxic quantity has been
consumed, the pupil reflex to ‗ordinary light' is absent, whereas the pupil will contract in
‗bright light' and remain contracted for an abnormally long time, indicating the delayed
reaction of the pupil.
(iv) Loss of confusion of memory, particularly as regards recent events and
appreciation of time.
(v) Hesitancy and thickness in speech and impaired articulation.
(vi) Tremors and errors of co-ordination and orientation.
IV. That there is no single test by itself which would justify a medical practitioner in
deciding that the amount of alcohol consumed had caused a person to lose control of
his faculties to such an extent as to render him unable to execute safely the occupation
on which he was engaged at the material time. A correct conclusion can only be arrived
at by the result of the consideration of a combination of several tests or observations
such as
General demeanor;
State of the clothing;
Appearance of the conjunctivae;
State of the tongue;
Smell of the breath;
Character of the speech;
Manner of walking, turning sharply, sitting down and arising picking up a pencil or
coin from the floor;
Memory of incidents within the previous few hours and estimation of their time
intervals;
Reaction of the pupils;
Character of the breathing, especially in regard to hiccup.
V. That the following are the tests, upon which taken by themselves, little
stress should be laid in deciding whether or not a person is under the influence of
alcohol:
Presence of tachycardia (rapid pulse);
Repetition of set words or phrases;
Character of handwriting;
Walking along a straight line;
Failure of convergence of the eyes.‖
192. A survey suggests that drunken drivers have been responsible
for the maximum number of road rages and accidents. Although in
India the numbers of cases detected are few, there are too many who
consume alcohol while or before driving. Though the laws to check
the drunken driving do exist in India but they are totally inadequate
to deal with this growing menace to effectively deal with the alcohol-
impaired drivers. The punishment for drunken driving is a meager
950 rupees, which is sufficient to get an offender out on bail even if
he has fatally knocked down or crippled someone. The Parliamentary
Standing Committee on transport, tourism and culture in its 139th
report on motor vehicles (amendment) bill, 2007 recently proposed
making drunken driving a criminal offence of culpable homicide not
amounting to murder under IPC and there is an urgent need for the
State to bring suitable legislation so as to make drunken driving a
more stringent offence. The said recommendation is reproduced as
under:
"The Committee, therefore, recommends that the Government may amend
the necessary legislations to include the deaths due to drunken driving as
culpable homicide not amounting to murder.
The Committee also recommends that if the drunken driver commits an
accident his action should not be construed as mere 'negligence' rather it should
be treated as a premeditated commitment of a crime and the drunken driver
should be punishable under relevant provisions of IPC depending on the
consequences of the accident."
193. Be that as it may, the appellant in the present case was taken
to the AIIMS Hospital for his medical examination on 10.1.99 at
12.29 P.M. and he was found to be oriented, alert, cooperative,
speech coherent, but eyes congested, gait unsteady with the
presence of alcohol. The statement of the appellant was recorded
by the police on the same morning at about 7 A.M. and there was no
complaint of the police that the appellant was not sober or was not
able to give statement due to intoxication.
194. As would be seen from the above, the word "drunk" shall be
taken to mean that the person concerned was so much under the
influence of alcohol as to have lost control of his faculties to such an
extent as to render him unable to execute safely the occupation on
which he is engaged at the material time. It can also be seen from
the above discussion that alcohol acts differently on different
individuals and also on the same individual at different times.
Counsel for the appellant has admitted the presence 0.115% alcohol,
which is equivalent to 115 mg in 100 ml of blood and it has to be
seen whether the said quantity of alcohol in the blood of the
appellant was considered as sober or not. In Modi‟s Medical
Jurisprudence and Toxicology, 22nd Edition, at page 315, 0.15%
alcohol, which is equivalent to 150 mg of alcohol in the blood has
been regarded as fit to drive the motor vehicle, but in Narayan
Nair‟s case (supra), the Cochin High Court while referring to
Taylor‟s Medical Jurisprudence Volume II observed that the
presence of 0.15 mg of alcohol in the blood can be considered a
dangerous amount of alcohol in the blood. It was further observed
that with the increasing concentration, the clinical symptoms in a
person becomes more intense and at the concentration between 0.2
to 0.5% there is likely to be marked incardination, coma and possible
death. In Taylor‟s Principles and Practice of Medical Jurisprudence,
Eleventh Edition at page 426, while discussing the effect of the
different quantities of alcohol in blood with varying symptoms, it has
been observed as follows:-
―Broadly speaking, it is agreed that with concentrations in the blood below 0.05 per
cent, there is little change to be observed on clinical examination; at 0.10 per cent a
number show mild symptoms and a few more decided symptoms. Between this level
and 0.2 per cent the number showing decided symptoms of intoxication increases, and
at the latter figure it is to be expected that practically all will be diagnosed clinically as
being under the influence of alcohol. The critical concentration seems to lie at or about
the 0.15 level and any person with this amount in his blood can be considered to have
imbibed a significant amount of alcohol. With increasing concentrations the symptoms
become more intense and at concentrations beyond 0.2 per cent up to 0.5 per cent
there is likely to be marked incoordination, coma and a danger of death.‖
195. There are thus different medical views but one thing is clear
that the case of the appellant was somewhere in between the level of
sobriety and drunkenness. Now since as per the medical
jurisprudence, consumption of alcohol acts differently on different
individuals and also on the same individual at different times and the
presence of some of the clinical symptoms even at 12.29 p.m. on
10.1.1999 i.e. unsteady gait, eyes congested as opined by PW10
Doctor T. Milo in his MLC report, it cannot be said that the accused
was fit to drive the said BMW car safely on the fateful morning of
10.1.99 at 4.30 a.m. The manner in which the said ghastly accident
has taken place and the scene of accident go to show that the
appellant was under the influence of liquor and was driving the
vehicle most recklessly. Merely because the appellant had driven his
vehicle upto a distance of 16 Kms without any untoward incident is
no ground to believe in itself that he was not in an inebriated state.
More so when it is not known whether he alone continued to drive
the vehicle till the place of accident and no one else drove the same.
196. Based on the above discussion, I am of the view that presence
of 0.115% of alcohol, which in any case is much above the limit of 30
mg prescribed under the Motor Vehicles Act certainly must have
affected his ability to drive the vehicle in a safe manner otherwise
mishap of such a magnitude could not have taken place. Even
otherwise no suggestion was given by the defence to the expert
witness PW16 Dr. Madhulika Sharma, Senior Scientific Officer that
as per Modi‟s Medical Jurisprudence and Toxicology the consumption
of alcohol of 0.115% w/v by the appellant was near sobriety.
4. Conviction under Section 304 (II), IPC - whether
sustainable or should it be altered to that under Section 304 -
A?
197. Coming to the most crucial aspect of the case as to whether the
appellant had been rightly convicted and sentenced for the offence
punishable under Section 304 (II) of the Indian Penal Code or
whether Section 304-A IPC would attract in the facts of the present
case.
(a) Reasoning given by trial court
198. Before I venture to discuss the rival arguments of the parties
on the said contentious issue, let me briefly discuss the reasoning
given by the learned trial court in arriving at the said finding by
holding the appellant guilty of committing an offence under Section
304 (II) IPC. The learned trial court has examined the case from
two different angles i.e., one by keeping the evidence of Sunil
Kulkarni out of purview and secondly by taking into consideration
his evidence. The trial court placed reliance on the judgment of the
Apex Court in State of Gujarat Vs. Haidarali Kalubhai -1976 (1)
SCC 889 to dispel the impression that every case of accident, if
resulting into death would attract criminal liability only under
Section 304-A IPC. The observations of the Apex Court in the said
judgment, as referred to by the trial court are reproduced as
under:
―Section 304A carves out a specific offence where death is caused by
doing a rash or negligent act and that act does not amount to culpable homicide under
Section 299 IPC or murder under Section 300 IPC. If a person willfully drives a motor
vehicle into the midst of a crowd and thereby causes death to some persons, it will not
be a cause of mere rash and negligent driving and the act will amount to culpable
homicide. Each case will, therefore, depend upon the particular facts established
against the accused.‖
199. Based on the said ratio of the judgment, the trial court held
that if situation so warrants reckless driving may also be covered
under Section 300(4) IPC or it may fall under part (3) of Section 299
IPC and if a particular case does not fall in either of the two
situations then the court will consider the question as to whether the
offence under Section 304-A IPC is made out or not. The trial court
also placed reliance on one article with the title „RECKLESSNESS
UNDER THE INDIAN PENAL CODE‟ by Stanley Meng Heong Yeo,
an Australian author, published in Volume 30 of Journal of the Indian
Law Institute, so as to examine the scheme of the Indian Penal Code
dealing with different situations envisaged under part (3) of Section
299 IPC, Section 300(4) IPC and Section 304-A IPC. Serious
objections were raised by the counsel for the appellant to such
reference made by the trial court on such an article without
affording any opportunity to the defence to go through the said
article and to address arguments on the same. I will deal with this
aspect in the later part of my judgment.
200. Referring to three different situations envisaged under the
above provisions, the trial court held that Section 300 (4)
comprehends a situation, where the knowledge required is of first
degree whereby the person committing the act knows that the act is
imminently dangerous that the same would result into death, in all
probability. Such type of act would be punishable under Section
302 IPC as the same involves highest degree of gross recklessness
on the part of the offender. Knowledge of second degree can be
comprehended from part (3) of Section 299 IPC, where the death is
caused by the offender by an act which the offender knows is likely
to cause death. In such type of offence, the court termed the same
as that of substantial gross recklessness and would be punishable
under Section 304 Part (II) of IPC. As far as Section 304-A IPC is
concerned, the knowledge of third degree involves death of a person
but the offender hopes that the same would not occur and such type
of offence would be the lowest degree of gross recklessness and
may be called a rash act. After drawing a distinction of three
various situations contemplated in the above three sections, the
trial court examined as to what type of knowledge the appellant
possessed at the time of commission of the offence. The trial court
gave a detailed account of the scene of the crime as narrated by S.I.
Kailash Chand in the rukka as well as in the site plan proved on
record as Ex.PW58/A and after comparing the same with the scene of
crime, viewed by the presiding judge from the C.D., the court found
that from the scene of crime itself it stands proved beyond doubt that
the appellant had knowledge that the car being driven by him was
dragging 3-4 persons who got entangled under the bonnet of his car.
The trial court also took into consideration the testimony of PW-2
Manoj Malik to come to the conclusion that it is a case of causing
death of human beings by an act of gross recklessness on the part of
the accused Sanjiv Nanda.
201. The trial court also gave a gist of ratio of various Supreme
Court decisions cited by the defence in support of their argument
that the case in hand can only attract Section 304-A IPC, but the
trial court had shot down the said argument of the defence counsel
by holding that all these cases were the cases of simple rash driving
and in none of those cases the drivers were found drunk. The court
also found that in the present case the accused was so heavily drunk
that the knowledge can be validly imputed upon him that if he
drives the vehicle he was likely to cause death of human beings
passing on the road. In fact the court found that the gravity of the
knowledge of the offender was almost touching boundaries of
Section 300 (4) of IPC, but the court held that it would be unjustified
to treat the present case under Section 304-A IPC, and therefore,
would fall within the purview of Section 299 (3) IPC.
202. From the other angle the court examined the issue by taking
into consideration the testimony of the said court witness Mr. Sunil
Kulkarn. Totally ignoring the creditability of said witness, the court
found that his testimony fully supported the scene of crime as well
as the fact of reversal of the car. The theory of reversal of car was
introduced by the court witness for the first time when he gave his
statement before the court and the same was found corroborated by
the court after having viewed the oblique tyre marks from the
videography of the scene of crime. The court thus found that after
taking into account the testimony of Sunil Kulkarni it could be
clearly found out as to in what manner the offence took place and
how the entangled bodies were dragged and then fell one by one on
the road and therefore, based on the testimony of the said court
witness, the court found that the offence committed by the appellant
would fall under part (3) of Section 299 IPC and in no manner the
same could fall under Section 304-A IPC.
203. Therefore, as discussed above, the learned trial court, after
having taken into consideration the circumstantial evidence as well
as the ocular evidence found the appellant having committed the
offence punishable under Section 304 (II) IPC and not under Section
304-A IPC.
(b) Sections 299, 300, 304-A of the Penal Code
204. At this juncture, it would be worthwhile to reproduce Sections
299, 300 and 304-A IPC which are as under:
―299. Culpable homicide -
Whoever causes death by doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.
Explanation 1.-A person who causes bodily injury to another who is labouring
under a disorder, disease or bodily infirmity, and thereby accelerates the death of
that other, shall be deemed to have caused his death.
Explanation 2.-Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death, although by resorting
to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.-The causing of the death of a child in the mother's
womb is not homicide. But it may amount to culpable homicide to cause the death
of a living child, if any part of that child has been brought forth, though the child
may not have breathed or been completely born.
300. Murder -
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention
of causing death, or -
2ndly - If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the person
to whom the harm is caused. or
3rdly - If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death, or
4thly - If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury as
aforesaid.
Exception 1.-When culpable homicide is not murder.-Culpable
homicide is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the person
who gave the provocation or causes the death of any other person by
mistake or accident.
The above exception is subject to the following provisos -
Firstly - That the provocation is not sought or voluntarily provoked
by the offender as an excuse for killing or doing harm to any person.
Secondly - That the provocation is not given by anything
done in obedience to the law, or by a public servant in the lawful exercise
of the powers of such public servant.
Thirdly - That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a question of
fact.
Exception 2.-Culpable homicide is not murder if the offender in
the exercise in good faith of the right of private defence or person or
property, exceeds the power given to him by law and causes the death
of the person against whom he is exercising such right of defence
without premeditation, and without any intention of doing more harm than
is necessary for the purpose of such defence.
Exception 3.-Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him by law,
and causes death by doing an act which he, in good faith, believes to be
lawful and necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose death is caused.
Exception 4.-Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender's having taken undue advantage
or acted in a cruel or unusual manner.
Explanation.-It is immaterial in such cases which party offers the
provocation or commits the first assault.
Exception 5.-Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years, suffers
death or takes the risk of death with his own consent.
304A. Causing death by negligence -
Whoever causes the death of any person by 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.
205. The provision of Section 304-A applies to cases where there is
no intention to cause death and no knowledge that the act done in
all probability will cause death. This provision is thus directed at
offences outside the range of Sections 299 and 300 IPC and
obviously contemplates those cases where neither intention nor
knowledge enters. On the other hand, Section 299 of IPC deals
with those cases in which death of the victim is caused by the
accused with the intention to cause death or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that the act is likely to cause death. In the scheme of
Indian Penal Code culpable homicide is the genus and murder is its
species. All murders are culpable homicide but not vice-versa. The
Indian Penal Code practically recognizes three degrees of culpable
homicide; the first may be termed as culpable homicide of the first
degree; this is the gravest form of culpable homicide which is
defined under Section 300 as „murder‟. The second may be termed
as culpable homicide of the second degree, which is punishable
under Ist Part of Section 304 and then there is culpable homicide of
third degree which can be termed as lowest type of „culpable
homicide‟ and punishment for this is provided under the IInd Part
of Section 304. It needs to be noticed that there is a firm
distinction between the classes of cases contemplated by two
parts of Section 304 IPC. The Ist Part of Section 304 postulates a
more serious class of offences where the court can infer that there
is clear intention to cause death, whereas, the IInd Part of Section
304 contemplates a slightly lesser class of offence where there is a
„knowledge‟ that the act is likely to cause death, but the „intention‟
is completely missing. Thus, in Part-I of Section 304 the mental
element or mens rea is „intention‟ whereas, in Part-II of Section
304 the mens rea is „knowledge‟. In a case where the accused could
have known that the death was likely to be caused but he did not
intend to cause death, it was held that the accused could only be
convicted under the third clause of Section 299, i.e., for „culpable
homicide‟ punishable in Part-II of Section 304 but neither under
Section 302 nor Part-I of Section 304 IPC. „Knowledge‟ thus cannot
be equated with an „intention‟ and as compared to „knowledge‟,
„intention‟ requires something more than mere foresight of the
consequences, mainly the purposeful doing of a thing to achieve a
particular end. In a case where there is no evidence to show any
„knowledge‟ of the likelihood of causing death on the part of the
accused, the IInd part of Section 304 IPC will not apply.
206. For attracting Section 304-A, the first requirement is to rule
out „culpable homicide‟. The Section applies to acts which are not
crime in themselves but rather punishable by reason of death
having been caused, due to rash or negligent act. Section 304-A
thus applies where there is neither „intention‟ to cause death, nor
„knowledge‟ that the act done in all probability would cause death.
When the „intention‟ or „knowledge‟ is the direct motivation of an
act complained of, Section 304-A has to make room for the graver
and more serious charge of „culpable homicide‟. The words used in
Section 304-A „not amounting to culpable homicide‟ in the Section
are very significant and therefore, it must be understood that the
cases of intentional or knowingly inflicted acts of crime, directly and
willfully, are excluded. The Apex Court in Rathnashalvan Vs. State
of Karnataka, (2007) 3 SCC 474, while interpreting Section 304-A
IPC held as under:
―7. Section 304-A applies to cases where there is no intention to cause death and no
knowledge that the act done in all probability will cause death. The provision is directed
at offences outside the range of Sections 299 and 300 IPC. The provision applies only
to such acts which are rash and negligent and are directly cause of death of another
person. Negligence and rashness are essential elements under Section 304-A.
Culpable negligence lies in the failure to exercise reasonable and proper care and the
extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences
will follow but with the hope that it will not. Negligence is a breach of duty imposed by
law. In criminal cases, the amount and degree of negligence are determining factors. A
question whether the accused's conduct amounted to culpable rashness or negligence
depends directly on the question as to what is the amount of care and circumspection
which a prudent and reasonable man would consider it to be sufficient considering all
the circumstances of the case. Criminal rashness means hazarding a dangerous or
wanton act with the knowledge that it is dangerous or wanton and the further knowledge
that it may cause injury but done without any intention to cause injury or knowledge that
it would probably be caused.
8. As noted above, ―rashness‖ consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such a case
in running the risk of doing such an act with recklessness or indifference as to the
consequences. Criminal negligence on the other hand, is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which, having
regard to all the circumstances out of which the charge has arisen it was the imperative
duty of the accused person to have adopted.
9. The distinction has been very aptly pointed out by Holloway, J. in these words:
―Culpable rashness is acting with the consciousness that the mischievous and illegal
consequences may follow, but with the hope that they will not, and often with the belief
that the actor has taken sufficient precautions to prevent their happening. The
imputability arises from acting despite the consciousness (luxuria). Culpable negligence
is acting without the consciousness that the illegal and mischievous effect will follow,
but in circumstances which show that the actor has not exercised the caution incumbent
upon him, and that if he had he would have had the consciousness. The imputability
arises from the neglect of the civic duty of circumspection.‖ (See Nidamarti
Nagabhushanam, In re1, Mad HCR pp. 119-20.)‖
207. On the similar lines the Apex Court in Shankar Narayan
Bhadolkar Vs. State of Maharashtra, (2005) 9 SCC 71 held as
under:
―18. Coming to the plea of the applicability of Section 304-A, it is to be
noted that the said provision relates to death caused by negligence. Section 304-A
applies to cases where there is no intention to cause death and no knowledge that the
act done in all probability will cause death. The provision relates to offences outside the
range of Sections 299 and 300 IPC. It applies only to such acts which are rash and
negligent and are directly the cause of death of another person. Rashness and
negligence are essential elements under Section 304-A. It carves out a specific offence
where death is caused by doing a rash or negligent act and that act does not amount to
culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with
the intent to kill a person or knowledge that doing an act was likely to cause a person's
death is culpable homicide. When the intent or knowledge is the direct motivating force
of the act, Section 304-A IPC has to make room for the graver and more serious charge
of culpable homicide.
19. In order to be encompassed by the protection under Section 304-A there should be
neither intention nor knowledge to cause death. When any of these two elements is
found to be present, Section 304-A has no application. The accused-appellant not only
picked up the gun, unlocked it for use but also put the cartridges and fired from very
close range, aiming at a very vital part of the body.
20. In the background facts as highlighted above, the inevitable conclusion is that
Section 304-A has no application.
208. While drawing the distinction even between rash act and
negligent act, the Apex Court in Bhalachandra Waman Pathe Vs.
The State of Maharashtra, 1968 ACJ 38, held as under:
―An offence under Section 304-A Indian Penal Code may be committed
either by doing a rash act or a negligent act. There is a distinction between a rash act
and a negligent act. In the case of a rash act as observed by straight, J. in Idu Beg's
case the criminality lies in running the risk of doing such an act with recklessness or
indifference as to the consequences. Criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which having
regard to all the circumstances out of which the charge has arisen, it was the imperative
duty of the accused person to have adopted. Negligence is an omission to do
something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent
and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's
case, a culpable rashness is acting with the consciousness that the mischievous and
illegal consequences may follow, but with the hope that they will not, and often with the
belief that the actor has taken sufficient precautions to prevent their happening. The
imputability arises from acting despite the consciousness Culpable negligence is acting
without the consciousness that the illegal and mischievous effect will follow, but in
circumstances which show that the actor has not exercised the caution incumbent upon
him and if he had he would have had the consciousness. The imputability arises from
the neglect of the civil duty of circumspection.‖
209. Counsel for the appellant placed reliance on English judgments
to support his argument that at best the offence committed by the
appellant, can attract Section 304-A and not Section 304-II IPC. In R
v. Evans [1962] 3 All ER 1086, [1963] 1 QB 412, the Court of
Criminal Appeal held that if a driver adopts a manner of driving
which the jury think was dangerous to other road users in all the
circumstances, then on the issue of guilt, it matters not whether he
was deliberately reckless, careless, momentarily inattentive or even
doing his incompetent act.
210. In R v Thorpe [1972] 1 All ER 929, the Court of Appeal held
that the evidence that a driver charged with causing death by
dangerous driving had, prior to the accident, been drinking was
admissible provided that it went far enough to show that the quantity
of alcohol consumed was such that it might adversely affect a
person driving; proof that the alcohol content of the blood of a
person driving exceeded 80 mg per 100 ml (the prescribed limit) was
sufficient to show that the quantity of alcohol consumed was such
that it might adversely affect a person driving, and was therefore
admissible, whether or not, in the case of a particular person driving,
the quantity of alcohol might or might not have affected him.
211. In R v. Murphy [1980] QB 434, [1980] 2 All ER 325, the
accused was convicted by the trial court for the offence of causing
death by driving recklessly. It was observed by the Court of Appeal
that a driver is guilty of driving recklessly if he deliberately
disregards the obligation to drive with due care and attention or is
indifferent as to whether or not he does so and thereby creates a risk
of an accident which a driver driving with due care and attention
would not create. It was further observed that whether or not a man
is driving in defiance of or with indifference to the proper standard
will usually be a matter of inference for the jury on the evidence as
to the manner in which the vehicle was actually driven and as to road
conditions. However, there may be some other explanations such as
a mechanical defect or an inadvertent failure to observe a traffic sign
and so on.
212. In R v. Lawrence [1981] 1 All ER 974, the House of
Lords held that the actus reus of the offence of driving recklessly is
not merely driving without due care and attention but driving in a
manner that creates an obvious and serious risk of causing physical
injury to any other road user or substantial damge to property.
Secondly, the mens rea of the offence is driving in such a manner
without giving any thought to the risk or, having recognized that it
exists, nevertheless taking the risk. It is for the jury to decide
whether the risk created by the accused‟s driving was both obvious
and serious, the standard being that of the ordinary prudent motorist
as represented by themselves.
213. In R v. Boswell [1984] 3 All ER 353, the court of appeal
observed that causing death by reckless driving is a serious offence
and to be guilty for it, the defendant must have created an obvious
and serious risk of injury to the person or damage to property and
have either given no thought to the possibility of that risk when it
would have been obvious to any ordinary person or having seen the
risk nevertheless decided to take it.
214. Counsel for the State, on the other hand, placed reliance on the
judgment of the Division Bench of the Delhi High Court reported as
Nehru Jain Vs. State of NCT of Delhi-2005 (1) JCC 261 to
buttress his argument that even in a case where the act of offender
in its nature is very dangerous and from which „knowledge‟ about
the likely consequences including the death of a human being can
be attributed to him, the offence committed would be „culpable
homicide‟ punishable under Section 304-II and not under Section
304-A IPC. The facts in the said case before the Division bench were
different from the case in hand. The matter before the Division
Bench arose in the background of facts inter alia that in a marriage
procession the accused fired shot from his licensed revolver to add
gaiety to the occasion which led to the death of a member of a band
team. The trial court based on the evidence on record convicted him
under S. 302 IPC and sentenced him for life imprisonment. Matter
when came before the Division Bench, it was confronted with the
question whether the appellant's act of causing death of the
deceased would tantamount to an offence of murder as held by the
trial court or any lesser offence as argued by the counsel for the
defence. The court ruled out the possibility of the offence being
covered under S. 300 IPC as it was not the case of the prosecution
that the accused fired into the crowd of persons constituting the
marriage procession or the band party ahead of it. All that was stated
was that the appellant was firing from his revolver which act, in the
absence of any positive evidence from any quarter to prove that the
fire was directed towards the crowd in total disregard for the safety
of those comprising the same, could not bring the appellant's case
under fourth clause of Section 300 of the IPC. The counsel for the
accused contended that the appellant was firing in the air which,
according to him, was safe as it could not endanger anybody's life.
Knowledge that the appellant's act was likely to cause death could
not, therefore, be attributed to him. That being so, an essential
requirement for an offence to fall under Section 299 of the Code was
missing in the process bringing the appellant's case under Section
304A, the counsel for the accused argued. But the court rejected the
said plea of the counsel for the accused and observed that in the first
place, the circumstances in which three gun shots were fired from
the appellant's revolver were best known to the accused and ought to
have been explained by him. The accused has not, however, done
anything of that kind. On the contrary, he totally denied any
knowledge about the incident and alleged that he was falsely
implicated. The division bench thus held on the basis of the available
evidence that the accused had knowledge that by such act, he was
likely to cause death and thus convicted him under S. 304 Part II.
However, the facts of the instant case where the charge against the
accused was driving the motor vehicle in a drunken state and
therefore, due to dissimilarity of fact situation the said decision of
Division Bench cannot be made applicable to the peculiar facts of the
present case.
215. It is no more res integra, as discussed earlier, that Courts
should not place reliance mechanically on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.
216. Also, the other cases of Sarabjeet Singh & Ors. Vs. State of
U.P. - 1984 SCC (Cri) 151 relied upon by the counsel pertaining to
the issue of whether the act of lifting and throwing of an infant with
force on a cultivated ground causing death after few hours would be
covered under Ss. 302 or 304 II or 304-A IPC; the issue in State of
Orissa vs. Bhagban Barik - 1987 CAR 209 (Sc) in relation to a
lathi blow; issue in Kurban Hassein Mohammedalli Rangawalla
vs. State of Maharashtra - Air 1966 SC 1616 in relation to fire
breaking out in factory; issue in Radha Kishan vs. State of
Haryana - 1987 CAR 349 (SC) in relation to gun shot by a
drunkard on another drunkard; the issue in Maragatham @
Lakshmi - (1962) 2 MLJ 286 in relation to the death of an infant
when her parents attempted to commit suicide by jumping in a well
with the deceased child due to their inability to bear with their
perpetual penury are cases which can be of no help to the
prosecution as the facts of the those cases are entirely different from
the facts of the case at hand.
217. Indisputably, one‟s heart goes out, the way the accident had
occurred resulting into piercing the body parts of some of the
innocent victims. At the time of passing interim order, this Court
had observed that the site looked like a scene of bomb blast, had it
not known that the occurrence was as a result of accident involving
a car. Lot many deaths take place in various metropolitan cities in
our country due to the accidents caused by the drunken drivers and
in most of the cases the spoilt brats of rich families are involved.
The necessary amendment in the Indian Penal Code and the Motor
Vehicles Act is the only solution as suggested by the Parliamentary
Standing Committee on transport, tourism and culture in its 139th
report on the Motor Vehicles (Amendment) Bill, 2007 to effectively
deal with this growing menace of drunken driving, and in the
absence of any proper legislation in the place, neither the
prosecution nor the courts should venture to convert the accident
cases resulting into deaths from Section 304-A of IPC to Section
304(I) or (II) of IPC unless the fact situation clearly proves intention
or knowledge on the part of the accused as held by the Apex Court in
the case of Shankar Narayan Bhadolkar‟s case (supra). So long
as the law is not suitably amended, the State should take stringent
measures to deter drunken driving, but ultimately this menace can
be curbed only by means of legislation.
218. What is generally seen is that a drunken person who may not
be totally fit but still drives his vehicle to boost his confidence level
to give an impression that he is totally fit to drive the vehicle. Such
confidence level is often found more in the young generation. With
the growing culture of late night parties, discotheques and pubs our
younger generation is tilting towards the vice of consuming liquor at
an early age of their lives and as a result on most occasions they not
only play havoc with the innocent lives of other human beings but
also with their own lives. Attributing knowledge to these people
would mean that by driving the vehicle in an inebriated state they
are prepared to take their own lives besides taking the lives of others
on the road. No person in my view will undertake such a
misadventure of running the risk of his own life and with the lives of
others unknown to him.
219. Generally speaking, in motor accident cases involving death of
victims, Section 304-A is the only provision in the statute to be taken
recourse to by the investigating agencies and the accused is made to
face trial under that section alone. In order to depart from this
normal practice, there has to be more incriminating material on
record like motive of crime, or victim and accused being known to
each other and such like circumstances whereby the accused
intended to kill the victim due to some prior animosity by using a
motor vehicle as a weapon of offence to attract Section 300 of the
IPC or the knowledge that his act will in all probability would result
in causing death to attract Section 304, Part II of the IPC.
Before proceeding further, I find it relevant to distinguish the terms
„recklessness‟, „wishfully‟ and „willfully‟ as the trial court has
misconstrued their meanings and held in the impugned judgment
that these terms are synonyms of each other while relying upon the
term „willfully‟ as used by the Hon‟ble Supreme Court in State of
Gujarat v. Haidarali Kalubhai (1976) 1 SCC 889. According to
the Black‟s Law Dictionary, 6th edition, Recklessness means
rashness; heedlessness; wanton conduct. It is the state of mind
accompanying an act, which either pays no regard to its probably or
possibly injurious consequences, or which, though forseeing such
consequences, persists in spite of such knowledge. Recklessness is a
stronger term than mere or ordinary negligence, and to be reckless,
the conduct must be such as to evince disregard of or indifference to
consequences, under circumstances involving danger to life or safety
of others, although no harm was intended. However, „willful‟ as
defined in the dictionary is something which proceeds from a
conscious motion of the will; voluntary; knowingly, deliberate;
intending the result which actually comes to pass; designed;
purposeful; not accidental or involuntary. „Wish‟ has been defined as
an expression of desire. So, a person would act „wishfully‟ with a
desire to do that thing. At a bare perusal of the dictionary meanings
of these terms, I am not able to comprehend as to how the trial court
came to the conclusion that these three terms are synonym to each
other. The term „willfully‟ acknowledges the voluntary act on the part
of the person committing that act. Wishfully recognizes the desire of
the person doing that thing. Therefore, both these terms reflect the
intention on the part of the actor. However, recklessness though a
stronger term than a mere or ordinary negligence, does not involve
either intention or knowledge. It only refers to a man‟s disregard to a
probable or possibly injurious consequence.
220. The facts and circumstances of the present case do not suggest
any intention on the part of the appellant to cause death of six
persons. It is not even the case of the prosecution that either
because of any enmity or other provocation, the appellant could be
said to have intentionally caused the death of these persons or
inflicted an injury which was likely or sufficient in the ordinary
course of nature to cause death. What is argued by the prosecution
which found favor with the trial court was that the appellant must be
presumed to have had the knowledge that his act of driving the
vehicle at a high speed while he was drunk beyond the permissible
limit prescribed under S. 185 MV Act and based on other
circumstantial evidence, was likely to cause death.
(c) Determination of Knowledge of the accused
221. This brings me back to determine the question as to whether
the accused had knowledge at the time of commission of the offence
that his act was likely to cause death of 6 persons and injury to one
person. The prosecution, in this regard, urged that the appellant had
the knowledge that his act of driving the vehicle at a high speed
while he was drunk beyond the permissible limit prescribed under S.
185 MV Act coupled with other circumstantial evidence, placed on
record, without taking adequate safeguards and without proper care
and caution was likely to cause death. Counsel for the appellant, on
the other hand, contended that the appellant was driving the vehicle
on a cold wintry morning of January and it was not expected of him
to know or visualize that a crowd of seven people would be standing
in the middle of the road and according to him, accused will have to
be presumed to have driven the vehicle safely till he reached Lodhi
Road as he had, by then, covered almost a distance of 16 kilometres
without endangering anybody's life. Therefore, knowledge cannot be
attributed to him.
222. Before any discussion is made in this regard, I find support
from the following observations made by the Hon‟ble Supreme Court
in Sadhu Singh Harnam Singh v. State of Pepsu AIR 1954 SC
271:
―10. On a careful reading of the evidence of the eye-witnesses and the different
statements that have been made by them it is quite clear that the incident happened in
a very short time and suddenly. There was no previous enmity between the deceased
and the accused. On the other hand, the accused was very respectful to the Mahant
and was over-anxious to show all hospitality to him. It seems that he was anxious that
the Mahant should not go away from his house without taking meals and spending the
night with him, and seeing that the Mahant was going away, in all probability he let go
his gun without aiming it at the Mahant in order to prevent him from leaving his place by
terrifying him to some extent. It is not possible to believe the embellished version of the
witnesses that Sadhu Singh was present at the altercation between his father and the
Mahant or that he loaded the gun after he himself had intervened in the altercation, or
that there was the conversation alleged by the witness between him and the Mahant. It
also appears that the story that the accused took aim before firing at the Mahant or that
he said that he had never allowed in the past anybody to go like that from his house is a
subsequent introduction in the case to add gravity to the offence committed by the
accused.
*********
12. It seems to us that the High Court was in error in thinking that there was not a single
difference between the statements made by the witnesses in the first information report
and the statements made at the trial, which went to the root of the case. As above
pointed out, the whole version as to the nature and character of the act of the accused
had been completely changed. An act which on the facts stated in the first information
report and on the statements made to the police may well be regarded either accidental
or rash and negligent, has been deliberately made to look like an act of deliberate
murder. If such a difference does not go to the root of the case it is difficult to conceive
what else can fall within that class of cases. We are therefore of the opinion that the
High Court was clearly in error in holding that the accused was guilty of the offence of
murder under Section 302, I. P. C. On the materials placed on the record it could not be
held proved that he had any intention of firing at the Mahant. He seems to have pulled
the trigger without aiming at the Mahant in a state of intoxication in order to see that by
the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and
negligent act on his part or at the worst was an act which would amount to
manslaughter. It could not be held to constitute an offence of murder. No intention of
causing death or an intention of causing such bodily injury as being sufficient in the
ordinary course of nature to cause death could be ascribed to the accused or readily
inferred in the circumstances of this case.
13. The result therefore is that we allow this appeal, set aside the decision of the courts
below and hold the appellant guilty of the offence under Section 304A, I. P. C. In our
opinion, the sentence already undergone by him is sufficient to meet the ends of justice
and we therefore direct that he be released forthwith. Even if the offence were to be
regarded as falling under Section 304, I. P. C., we would not have awarded him a
severer punishment than the imprisonment that he has already undergone.‖
223. In the light of the aforesaid, it follows that if an act is done with
knowledge but without intention, then it would fall under Section
304 Part (II). The act done with knowledge of the end result being of
the kind where the doer had reason to believe that the act would
result into an offence, the knowledge would be attributable to the
offender. `Knowledge' is an expression of wide implication and is
proficient of varied interpretation in the context of the facts and
circumstances of a given case. While doing an act, knowledge of
consequence would be attributable to the accused, if it falls within
the normal behaviour of the person of common prudence.
224. The Concise Oxford English Dictionary; 10th Edition published
by Oxford University Press gives meaning of „knowledge‟ as
information and skills acquired through experience or education; the
sum of what is known; true justified belief as opposed to opinion;
awareness or familiarity gained by experience.
225. The Chambers Dictionary; 1st Edition published by Chambers
Harrap Publishers Ltd. defines `knowledge' as:
226. That which is known; information; instruction; enlightenment;
learning; practical skill; assured belief; acquaintance; cognizance.
227. The Black's Law Dictionary, 6th Edition explains the word
`knowledge' in different contexts and it would be helpful to have a
glance at them with an object to find most appropriate meaning
which can be given to satisfy the requirements of Section 304
Part(II) of IPC.:
Knowledge. Acquaintance with fact or truth People v. Henry 23 Cal App 2d 155, 72, p
2d 915,921.
It has also been defined as act or state of knowing or understanding, Writers v. U S 70
App DC 316, 108, F 2d 837, 840 actual knowledge, notice or information, New York
Underwriters Ins Co. v. Central Union Bank of South Carolina, C.C.A.S.C.65 F 2d 738,
739 assurance of fact or proposition founded on perception by senses, or intuition, clear
perception of that which exists, or of truth, fact or duty, firm belief; Writers v. U S 70 App
DC 316, 106, F 2d 837, 840, guilty knowledge, Gold worthy v. Anderson 92 Colony 446,
21, P 24 718. information of fact, Green v. Stewart 106 Cal App 518, 289 P 940 944,
means of mental impression, Howard v. Whittaker 250 Ky 836, 64, S W 2d 173
miscellaneous information and circumstances which engender belief to moral certainty
or induce state of mind that one considers that he knows, Wise v. Curdes 219 Ind 606,
40, NE 2d 122, 128, notice or knowledge sufficient to exercise attention and put person
on guard and call for inquiry, Iberville Land Co v. Amerada Petroleum Corporation,
C.C.A.La 141 F 2d 384, 389, personal cognisance or knowledge or means of
knowledge, The Chickle DC Pa 54 F Supp 19,20, state of being or having become
aware of fact or truth. Howard v. Whittaker 250 Ky 836 64 SW 2d 173.
When knowledge of the existence of a particular fact is an element of an
offence, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.
Knowledge consists in the perception of the truth of affirmative or negative
propositions, while `belief' admits of all degrees, from the slightest suspicion to the
fullest assurance. The difference between them is ordinarily merely in the degree, to be
judged of by the court, when addressed to the court, by the jury, when addressed to the
jury".
228. The Supreme Court, in the case of Jayprakash v. State (Delhi
Administration) 1991 (2) SCC 32, clearly stated that the
knowledge of the accused is subject of invisible state of mind and
their existence has to be gathered from the circumstances, such as
weapon, force of the attack and other surrounding circumstances.
`Knowledge' being of lesser degree has to depend considerably on
attendant circumstances and awareness of a common man in relation
to the acts and deeds immediately preceding or at the time of
occurrence of the offence.
229. Indisputably, rashness and negligence behind any act or
omission to act can also be discovered on the basis of circumstantial
evidence and then to test the same that in such a given situation
what an ordinary prudent man would have done.
230. Merely because an automotive car or scooter is involved would
not by itself take the offence outside the scope of Section 304 Part
(II) of IPC. The court would have to examine this in the light of the
evidence led by the prosecution, defence, if any, the links provided
by the accused himself in his statement under Section 313 and the
attendant proven circumstances of the case.
231. Before I give my final conclusion as to whether offence under
Section 304 Part (II) is made out or Section 304-A would attract, let
me deal with the other contentions raised by the counsel for the
appellant to examine as to whether the appellant can be attributed
sufficient knowledge, i.e., the act of his driving the vehicle would
result in causing death of six persons.
Circumstantial evidence to determine knowledge: fog,
videography, speed.
232. Before coming to any conclusion as to negligence or rashness
or knowledge on the part of the accused under Section 304 Part
(II), I would discuss three important aspects relating to speed of the
vehicle, fog and videography.
(i) Speed
233. This brings me to deal with the contention of the counsel for
the appellant assailing the finding of the learned trial court holding
that the vehicle was being driven by the appellant at excessively high
speed. Before this court critically analyse the contentions raised by
the counsel for the parties, let me see as on what basis, the learned
trial court has arrived at the said finding. The learned trial court
took into consideration the scene of crime as narrated by S.I. Kailash
Chand in the rukka and in his rough site plan proved on record as
Ex. PW58/B and the testimony of PW-2 Manoj Malik, who in his
deposition stated that the vehicle came at a very fast speed from
Nizamuddin and hit them. The trial court further took into
consideration the deposition of court witness Sunil Kulkarni who in
his testimony testified that the vehicle was at a very-very high speed
and due to the impact of the accident 2 or 3 persons fell on the
bonnet and wind screen of the car.
234. Assailing the said finding of the learned trial court, counsel for
the appellant argued that speed of the vehicle involved in an
accident essentially has to be determined from circumstantial
evidence and especially the scientific evidence and not from oral
evidence. The examination of the skid marks could be the best
evidence to determine the speed of the vehicle, counsel urged.
Referring to the forensic laboratory report dated 21.7.99, the
counsel submitted that in the said report, there is a clear admission
on the part of the State that no facility is available with them to
determine the speed of the vehicle with the help of mechanical
devices or instruments. Counsel also took objection to the conduct of
the learned trial judge who assigned himself the role of an expert to
give his findings about the reversal of the car and existence of
three parallel long blood dragged marks of blood on the road after
having viewed the C.D. of scene of crime.
235. Before carrying any further discussion on the said contention,
it would be appropriate to reproduce the scene of crime as narrated
by S.I. Kailash Chand in rukka as under:
―After the receipt the DD, I along with Ct. Jagan Lal reached the spot
i.e. Car Care Center, Petrol Pump, Lodhi Road, where three persons namely Ct. Ram
Raj-DHG, Ct. Rajan Kumar (CRPF) and unknown age about 35 years were found and
four persons were reported to be shifted to hospital by PCR Van. A broken No. of plate
was found lying. After assembling broken pieces the particulars were revealed as M-
312-LYP and Park Lane and BMW. At the spot the black colour piece of bumper and
rear wind screen and black colour broken piece of the car were found scattered in the
radius of 100/125 ft. Skid marks of a vehicle were seen on the road. The head of
unknown body was found crushed, brain matter was found out side the skull. The body
of Ct. Ram Raj was found crushed due to passing of the vehicle, his right leg was found
detached and was lying at distance of 10'-15'. The abdomen of Rajan Kumar was
found burst and the blood is spread on the road for considerable distance...... On the
spot pieces of flesh was found scattered in a large area. These facts were indicating
that death of these three persons occurred due to forceful impact of vehicle no. M-312,
LYP, there were skid marks upto 30'-40'.......‖
236. The said scene of crime has been further described in the
rough site plan proved on record as Ex. PW58/B and the learned trial
court made the following observations based on the description of
crime as described in the said rough site plan:
―Investigation officer SI Kailash Chand prepared a rough site plan Ex.
PW58/B. As per observation of the IO at point A of site plan was the place where first
impact occurred. Blood is lying at point A. At point B which is at 38 steps away from
point A, blood is lying and there are blood stains and skid marks. At point C on the
middle divider there are friction marks of the tyre. Point C is eight steps away from
point B. At point D one dead body is lying having its right leg amputated. There are
blood and friction/drag marks from point C to D. At point E one dead body is lying near
electric pole no. 12 and blood as well as drag marks are seen. At point F another dead
body is lying and point F is 26 steps away from the point E. From the point E to F the
drag marks and blood are visible. At point G which five steps away from point F, one
amputated leg is lying in front of electric pole no. 13. Pieces of bumper and broken
pieces of glass were lying scattered. Bumper was black colour.
One oil trail was also observed by the Investigating Officer going
towards Madarsa Safdarjang. In this site plan point B is seen at electric pole no.11.
The description of scene of crime as observed in the rukka is
corroborated by the site plan prepared by the Investigating Officer and the videography
done by the police of the scene of crime. Since the site plan is made by Investigating
Officer on his own observations, the same is admissible in evidence. The points where
blood and dead bodies are lying, skid marks and the oil trail prove it clearly that the
offending vehicle was coming from the side of Nizamuddin and after the offence went
towards side of Madarsa Safdarjang. This scene of crime makes it clear that the
offending vehicle first hit the persons standing on the left side (i.e. at point A) of the road
near footpath where some blood is seen lying. Thereafter the vehicle took a right turn
and hit the central verge. The videography scene of crime ( now converted into a CD)
would show that there are three parallel dragged marks of blood on the road up to a
certain distance. As per the rukka and the site plan, thereafter one body is lying and
second body is lying after that and third body is lying at a distance. This leads to only
one conclusion that these persons had been entangled with the car and thereafter they
were dragged by the offending vehicle and they fell one by one and were also got
crushed and amputated. I have already discussed that the offending vehicle was BMW
car driven by accused Sanjeev Nanda...‖
237. There cannot be any two opinions that the said accident
resulting into six deaths and one injured was one of the most ghastly
and gruesome incident especially after noticing the horrifying death
of six persons whose bodies were ripped into pieces with the spread
of blood all around. The Apex Court in Jagdish Chander‟s case
(Supra) dealing with the similar controversy, held in para 7 as
under:
―7. After going through the record to which our attention was drawn, we
cannot help observing that the investigation into the offence in question was not
conducted on scientific lines and it leaves much to be desired. Our attention was not
drawn to any material on the record showing if the tyre marks of the two vehicles on
the road were carefully examined with the object of finding out the approximate
speed and the manner of application of brakes at the time of the collision. Nor were
photographs taken of the position of the site soon after the unfortunate occurrence
which is usually done in the course of efficient investigations. Our attention was no
doubt drawn to the site-plan, Ext. PW 9-A which purports to show that the two
vehicles in question which were coming from opposite directions, started swerving
to their right presumably on seeing each other and that the collision took place at
point ‗A' from where the truck drove straight on the road, while the auto-rickshaw
was driven towards its right to the point ‗B' where Smt Vidya Sharma was standing
with her baby in her arms and her brother by her side. This plan, however, seems to
be a rough plan. Our attention was not invited to any statement of the witnesses
explaining at whose instance various notings were made on this plan. So far as the
witnesses deposing as having seen the occurrence in question are concerned, their
evidence has always to be carefully scrutinised because such witnesses only
observe accidents after their attention is drawn to the impact resulting from the
collision. Their statement about the events immediately preceding the occurrence
are generally and to a very large extent influenced by what they imagine must have
happened. After looking at the plan and going through the evidence to which our
attention was drawn, one forms an impression that both the truck driver and the
appellant were equally guilty of rash and negligent driving. But since the driver of
the truck has been acquitted by the learned Additional Sessions Judge and no
appeal was preferred against his acquittal, we have to take his acquittal to be final.
According to the findings of the three courts below the appellant suddenly turned to
the right without paying proper heed to the truck coming from the opposite direction
and in doing so he was both rash and negligent. Under Article 136 of the
Constitution we should not like to appraise the evidence for ourselves to flee how
far the concurrent conclusion of the three courts below upholding the appellant's act
as rash and negligent is justified. The argument raised before us on behalf of the
appellant on this point relates only to the appreciation of evidence and no serious
legal infirmity was brought to our notice.‖
238. On the similar lines, this court in Abdul Subhan‟s case
(Supra) clearly held that it is for the prosecution to bring on
record sufficient material to establish what is meant by „high
speed‟. This court, in the said case, further observed that merely
because the vehicle was being driven by the offender at a high
speed, the same in itself would not mean that the offender was
driving the vehicle rashly or negligently. Relevant para 7 of the said
judgment is reproduced as under :
―7. At the outset I would like to observe that I am appalled by the investigation,
or shall I say the lack of it, that was carried out in this particular case. I may also note
that I am of the view that the testimony of PW 3 head constable Munim Dutt, even if
taken to be entirely true only leads to the conclusion that the vehicle driven by the
present petitioner was being driven at a high-speed. This in itself does not mean that
the petitioner was driving the vehicle rashly or negligently. Furthermore, the testimony
of PW 3 leads to ambiguities and doubts and, I am afraid, my conscience does not
permit me to convict a person under Section 279/304A IPC on the nature and degree of
evidence that is on record in this case. There are so many questions which remain
unanswered. What is meant by high-speed? Were the traffic lights working or not? Why
was the investigating officer not examined? Why were photographs not taken? Why is
there no evidence with regard to tyre skid marks? Why was the site plan not exhibited?
There are questions which remain unanswered pertaining to the motorcyclist who
unfortunately lost his life in this incident. Was the motorcyclist on Mathura Road? What
was his direction of movement? Was he coming from Sher Shah Road and turning
towards Mathura road? Or, was he on Mathura Road turning towards Sher Shah road?
What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the
path of the petitioner's truck? A host of other questions remain unanswered purely
because the degree of investigation carried out and the quality of investigation carried
out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution
to establish its case beyond reasonable doubt. Unfortunately, in the present case I find
that the prosecution has failed to achieve this standard. On the other hand there are
grave doubts that the petitioner is at all guilty of the offences for which he has been
convicted and sentenced.‖
239. Counsel for the appellant also placed reliance on the
judgment of the Apex Court in State of Karnataka Vs. Satish
(Supra). Para 4 of the said judgment is reproduced as under:
―4. Merely because the truck was being driven at a ―high speed‖ does not bespeak of
either ―negligence‖ or ―rashness‖ by itself. None of the witnesses examined by the
prosecution could give any indication, even approximately, as to what they meant by
―high speed‖. ―High speed‖ is a relative term. It was for the prosecution to bring on
record material to establish as to what it meant by ―high speed‖ in the facts and
circumstances of the case. In a criminal trial, the burden of providing everything
essential to the establishment of the charge against an accused always rests on the
prosecution and there is a presumption of innocence in favour of the accused until the
contrary is proved. Criminality is not to be presumed, subject of course to some
statutory exceptions. There is no such statutory exception pleaded in the present case.
In the absence of any material on the record, no presumption of ―rashness‖ or
―negligence‖ could be drawn by invoking the maxim ―res ipsa loquitur‖. There is
evidence to show that immediately before the truck turned turtle, there was a big jerk. It
is not explained as to whether the jerk was because of the uneven road or mechanical
failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report.
That report is not forthcoming from the record and the Inspector was not examined for
reasons best known to the prosecution. This is a serious infirmity and lacuna in the
prosecution case.‖
240. The concept of skid marks has been explained in Forensic
Science in Criminal Investigation & Trial by Dr. B.R.Sharma. The
relevant para of same is reproduced as under:
―16.6.3. Skid Marks
―When brakes are applied to a vehicle, they lock the wheels
and stop them from revolving. When a vehicle traverses a certain distance with locked
wheels, the vehicle is sad to skid. The marks created by the tyres without revolving are
called skid marks. The friction between the tyres and the surface abrades the tyres
and black tyre material is deposited at the surface, which makes the skid marks easily
discernible and conspicuous. When the vehicle is moving on soft earth, the sudden
application of brakes ploughs through the earth. The skid marks in such cases are
identified from the displacement of earth from the track. When a vehicle is moving in
dust or dirt, the skidding tyres removes the dirt from its path and creates the marks. If
the tyre is moving on a tarry road, it creates the marks in the tar, by pushing away the
tar from its path‖.
241. The said concept of skid marks has also been explained
in the book titled as "An Introduction to Criminalistics" by Charles
E.O‟Hara & James W. Osterburg, published by the Macmillan
Company, New York in the following manner:
―SKID MARKS
When the brakes of a moving car are forcefully applied, the friction
between tire and roadway heats the rubber, depositing a thin layer in the path of the
tires. Sometimes a black mark is formed by displaced surface materials-dust, tar, etc.
Some synthetic tires of high heat resistance exert a cleaning action on the road surface.
These lines are called skidmarks. In a motor vehicle accident the problem which
confronts the investigator is the determination of deficiencies in the brakes or of
negligence on the part of the driver due to excessive speed. Usually the only evidence
present is a set of skidmarks. These marks may be shown to be a measure of the
probable stopping distance.―
242. Another important aspect to be considered in such cases is
the „reaction time‟ which one takes to actually apply the brakes. The
author B.L. Sharma in his book has also dealt with the concept of
„reaction time‟ in the following words:
―Reaction time: It is the time, which the driver takes to apply the
brakes fully after he has perceived the necessity for braking. The reaction time varies
with different individuals. Reaction time 0.5 to 0.8 second is normal. If a vehicle is
moving at a speed of 60 km/h the distance travelled in reaction time is 8 to 15 meters.‖
243. The author Mr. Sharma in the said book has also dealt with
different reaction times depending upon the condition of surface of a
road. This reaction time as per the author of the book varies from
individual to individual, but 0.5 to 0.8 seconds is the normal reaction
time taken by an individual before he stops the vehicle after having
perceived the necessity to stop the vehicle. The said reaction time
would further depend upon the speed of the vehicle. As per the
counsel for the appellant, if the vehicle is moving at a speed of 60
k.m./hour, the distance travelled in the reaction time would be 8 to
15 meters. Counsel also submitted that the skid marks in the
present case as shown in the scene of crime are 38 to 40 feet
which would mean approximately 12 meters and based on the
graph shown in the said book of Forensic Science in Criminal
Investigation & Trials, the speed of the vehicle would come to about
42 k.m., which, as per the counsel, by no means can be considered
as excessive or dangerous especially on an empty road on the wintry
morning of 10.1.99 around 4.30 A.M.
244. It is a matter of serious concern that our scientific laboratories
are still not fully equipped to undertake proper scientific
investigations with the help of modern devices. It is true that one
can hardly get any witness to disclose exactly about the speed of the
vehicle and even if anybody comes forward to state about the speed
of the vehicle, the same would be highly skeptical and of suspicious
character. In most of the cases, the witness to such an incident
forms his own presumptive opinion about the speed of a vehicle
depending upon the resultant havoc a particular accident causes.
The scientific investigation in all such like cases thus assumes
greater importance which necessarily involves the evidence of skid
marks to scientifically determine the speed of the vehicle. No such
scientific investigation was undertaken by the Forensic Science
Laboratory in the present case and rather in the report submitted by
the FSL it was candidly admitted that no such facility is available
with them.
245. In such a helpless situation, the trial court relied upon the
deposition of PW-2 Manoj Malik and took into consideration the
scene of crime as described by S.I.Kailash Chand in his rukka as
well as the rough site plan. Undoubtedly, the speed of the vehicle on
the empty road in the wintry morning with a clear visibility of 1000
meters as opined in the deposition of PW-15 Dr. S.C. Gupta,
Director, Meteorological Department, would have been on the
higher side only. Had the vehicle been not driven at a high speed it
would not have created such an impact resulting into bodies of the
victims being flown in the air or getting entangled under the
bonnet and then thrown at various distances, fragmenting their
body parts with the spread of blood all over the area. Although it is
difficult to assess as to what exactly the speed of the vehicle would
have been, but looking into the scene of the crime and the way the
six victims met their tragic end, certainly the speed of the car must
have been very high. Therefore, I do not find any infirmity or
perversity in such finding of the learned Trial Court so far speed of
the vehicle has been held to be fast and high.
246. Another important question as to whether the appellant was
driving the said offending vehicle so recklessly as to attract part-II
Section 304 IPC will be discussed later under the relevant subject.
(ii) Visibility at the site of accident/Fog
247. One of the arguments advanced by the counsel for the
appellant was that there was presence of „fog/mist‟ on the wintry
morning of 10.1.99 which fact as per the counsel was ignored by the
trial court. The fact of presence of „mist‟ found duly mentioned by
the meteorological department in their report exhibited as
Ex.PW15/B. The meteorological department has mentioned the
factum of „mist‟ on the said morning with visibility of 1000 meters.
The presence of „fog‟ was also disclosed by PW-2 Manoj Malik in
his cross-examination and as per the counsel for the appellant, the
said deposition duly corroborates that part of the said report
submitted by the meteorological department. Counsel for the
appellant also took a stand that the learned APP in cross-
examination of PW-2 himself suggested that there was no light in the
street, and there was „fog‟, but the learned trial court took a contrary
stand by holding that it was nobody‟s case that lights were not
illuminating at the site of the accident. As per the counsel for the
appellant the only fault of the appellant was that he did not dip the
lights of his car which he should have, due to the presence of fog,
and therefore, the presence of „fog‟ must have blurred his visibility
in not finding the presence of the victims in the middle of the road
from some distance.
248. Mr. Pawan Sharma, APP for the State, on the other hand took
a plea that the appellant has introduced this new plea which is not
even taken in the grounds of appeal but is now taken just with a view
to wriggle out from the rigor of law. He contended that this was
never the case of the defence before the trial court that there was
presence of „fog‟ or „mist‟ on the said wintry morning of 10.1.99 and
this would be evident from the fact that no such suggestion was
given by the appellant to any of the prosecution witnesses and not
even to PW-15 Dr. S.C. Gupta, Director, Meteorological Department.
PW-15 Dr. Gupta, in his cross-examination, had vaguely mentioned
about the presence of „fog‟ but the said fact was neither mentioned
by him in examination-in-chief nor any suggestion to this effect was
given by the prosecution during his cross-examination.
249. The presence of „fog‟, no doubt would be a very important
circumstance as far as the cases of accidents are concerned. The
presence of „fog‟ near the surface of earth certainly obscures and
restricts visibility of the person driving any vehicle. „Mist‟ on the
other hand, limits the visibility of a person to a lesser extent. The
definitions of „fog‟ and „mist‟ as given in the Concise Oxford English
Dictionary; 10th Edition published by Oxford University press and
The Chambers Dictionary; 1st Edition published by Chambers Harrap
Publishers Ltd. are as under:
―FOG is a thick cloud of tiny water droplets suspended in the atmosphere at or near the
earth's surface which obscures or restricts visibility.
MIST is a cloud of tiny water droplets in the atmosphere at or near the earth's surface,
limiting visibility to a lesser extent than fog.
The Chambers Dictionary; 1st Edition published by Chambers Harrap Publishers Ltd.
FOG is thick cloudlike mist near the ground.
MIST is a thin fog.‖
250. Had there been presence of „fog‟ on the said fateful morning,
then certainly the defence would have taken shelter and based their
entire case by taking the said plea of presence of „fog. This plea of
„fog‟ which has been taken by the counsel for the appellant during
the course of arguments, does not even find mention in the entire
appeal and therefore, it is quite apparent that the theory of presence
of „fog‟ has been introduced to build a new case so as to give an
impression as if the accident in question had occurred on account
of the poor visibility of the appellant due to the presence of „fog‟.
PW-15, Dr. S.C. Gupta, in his report, nowhere mentioned the
presence of „fog‟. He, in his report, stated that the „weather was
mainly clear sky‟ and the visibility was 1000 metres. He mentioned
the expression ‟mist‟ against the column of weather in his said
report Ex. PW 15/B as already discussed above. „Mist‟ cannot be
equated with „fog‟ as it does not restrict the visibility to that extent
as the „fog‟ does. It cannot be lost sight of the fact that PW-15 Dr.
Gupta in his report clearly stated that the sky was mainly clear and
therefore, mention of „mist‟ in the report is of not much relevance.
In his cross-examination also the said witness clearly stated that it
was due to the presence of „mist‟ that the visibility was 1000 meters
on that day. No doubt, the defence counsel gave suggestion to the
said witness that there was heavy fog at Lodhi Road area at 4.30
A.M. on 10.1.99, but since it was not the defence of the appellant, as
would be apparent from his examination under Section 313 Cr. P.C.,
therefore, no credence can be given to the suggestion given by the
defence in the cross-examination of PW-15. No such suggestion was
also given to PW-2 by the defence and very casually the said witness
mentioned the presence of „fog‟ while taking another contrary
position to depose that there was no light at the place of the
accident. In this regard, it would be useful to refer the relevant
para of judgment of the Apex Court in State of U.P. v. Man
Singh,2003 (I) AD (Crl.) SC 61, where the Apex Court was
confronted with such a similar situation. The same is reproduced as
under:
"11. In our view, this factor which seems to have prevailed with the
High Court in acquitting the accused persons was totally extraneous, being based on
conjectures. It is rather contrary to the evidence on record. Therefore, in our view, the
decision of the High Court cannot be sustained. The theory of fog was introduced
before the High Court for the first time. It is not based on any evidence. In any case the
said theory could not be introduced because the presence of fog leading to the vision of
the eyewitnesses being blurred was never put to the eyewitnesses. The eyewitnesses
were never asked in the cross-examination as to whether there was fog at the time of
the incident, and if so, did it obstruct the eyewitnesses from watching the occurrence.
When this aspect was never put to the witnesses, it cannot be said on the basis of mere
imagination that the vision of the witnesses was obstructed by fog and they could not
have seen the occurrence. The High Court completely erred in accepting this and
doubting the version of the eyewitnesses for this reason alone. The basic fact about the
presence of fog leading to blurring of the vision of the eyewitnesses without being put to
the witnesses during their cross-examination could not have been taken into
consideration. It was the witnesses who were in the best position to say whether there
was fog at the relevant time or not and whether the fog, if present, was enough to
prevent the eyewitnesses from watching the scene of occurrence. The High Court was
not justified in basing its decision on the theory of the presence of fog. On the other
hand it is to be seen that both the eyewitnesses gave detailed account of the incident.
There is hardly any discrepancy in the version of the incident given by the two
witnesses. Without actually witnessing the incident the witnesses could not have given
such details of the occurrence. In our view the eyewitness account of the occurrence
inspires confidence and there is no reason to cast any doubt on the same. It is a case of
brutal murder of a person by a gang of seven persons. The details of the murder
available on record in the shape of eyewitness account of the incident, medical
evidence, mutilated body of the accused with neck and head severed, leave no doubt
about the involvement of the accused-respondents in the crime.‖
251. It is also pertinent to note that defence did not adduce any
evidence to prove presence of „fog‟ on the said wintry morning
which could blur the vision of the appellant. Moreover, the argument
of the senior counsel for the appellant also does not appeal to
common sense, as had the fog been present on the said morning
restraining or blurring the vision of the appellant then the vehicle
could not be driven at such a high speed resulting into killing of six
persons.
252. Based on the above discussion, I am of the considered view
that the visibility of 1000 meters with clear sky as reported by PW-
15 in exhibit PW15/B cannot be doubted and the plea taken by the
counsel for the appellant with regard to the presence of „fog/mist‟ on
the morning of 10.1.99 is repelled.
(iii) Videography for proving reversal marks
253. As regards the issue pertaining to videography that the
videography being akin to local inspection cannot take the place of
evidence unless properly proved on record, not merely with the help
of the person making the video but by the witness who could explain
the scene of crime taken in such video. There can be no dispute that
a videography is a documentary evidence under Section 3 of Indian
Evidence Act and if it is made during investigation then its contents
are treated as statements under S. 162 Cr PC. Thus, the purpose of
videography is only to contradict or corroborate the statements made
by the investigating officer. The trial court took assistance of the
videography to corroborate the statement of Sunil Kulkarni before
the court that the car stopped at point B in the site plan and then
took a reverse before moving ahead. The testimony of kulkarni has
already been discarded by this court as discussed above. Merely
because videography shows certain marks, would not mean that the
same are reversal marks. It is only some expert in the field who
could have said so after having scientifically examining such
reversal marks if any. Furthermore, when I viewed the videography
along with the counsel for the parties, I also possibly could not
exactly know which marks could be treated as „reversal marks‟. It
was also noticed that the area of site was not completely sealed as it
could be seen in the beginning of the video that one Fiat car,
rickshaw and a cycle passing through the site of incident. In the
absence of any such corroborative piece of evidence to prove
reversal marks, it is difficult to believe just by viewing the C.D. that
there existed reversal marks at the site of accident.
254. In a case like the present case, where there was no clinching
and substantive evidence to prove that there were reversal marks at
the site of accident, help of circumstantial evidence could have been
taken to prove the same. In that respect, it is the quality not the
quantity of evidence which is required. Once this case was more
depended on circumstantial evidence, then the Investigating Agency
should have taken the able assistance of specialized persons
possessing requisite expertise to give their opinion on the
existence, non-existence of reversal marks. The factual scenario
emerging from the evidence on record divulge deficiencies during
investigation by the prosecution clearly indicating that no such
assistance was taken by the prosecuting agency. The present case
may not be a solitary case to suffer lapses. There is no perceptible
improvement in the system because of lack of proper and
penetrating investigating/prosecuting agency. The State being the
protector of each individual as well as the whole society, its inaction
to combat the perpetrators of crime by providing window exits to
culprits through such lapses amounts to "magna negligent a
culpaest". The State Government must exercise its authority to avoid
'much ado about nothing'.
Applicability of Section 304-A
255. Negligence is different from rashness. Negligence refers to a
breach of duty, an act done without due care and caution and
dereliction in taking precaution. Whereas, rashness refers to the
consciousness of the person that a mischievous or some illegal
consequences may follow due to his act but at the same time he
hopes that such consequences will not follow. Thus, the element of
consciousness is missing in the case of negligence and
consciousness is an important ingredient in rashness.
256. Now taking into consideration the totality of the circumstances
as discussed above i.e. evidence of the two hostile witnesses, court
witness and the circumstantial evidence, I do not find myself in
agreement with the finding of the learned Trial Court that the
offence committed by the appellant attracts Section 304 part II and
not Section 304 A IPC. Reliance placed by the trial Judge on the
judgment of the Apex Court in State of Gujarat vs Haidarali
Kalubhai (supra) to attract Section 304 part II IPC is clearly
distinguishable. In the case before the Apex Court the accused was
convicted under Section 304 Part II on the allegation that he had
caused death of a police officer lying on cot by hitting him while
reversing his truck at a high speed. The Apex Court while reversing
the finding held that it was a case of negligent driving simplicitor
and no knowledge could be attributed to the accused so as to bring
his case within the meaning of Section 304 Part II IPC. However, the
Apex Court made a passing reference that where a person willfully
drives motor vehicle amidst the crowd and thereby causes death to
some persons then it will not be the case of mere rash and negligent
driving and the act will amount to culpable homicide. The Apex Court
while making the said observations also proposed a note of caution
stating that each case will depend upon the particular facts
established against the accused. No doubt in the present case
appellant caused the accident in which six persons died and one was
injured but it was not a case where the appellant had any knowledge
of the presence of those persons on the road and therefore, no
parallel can be drawn between the circumstances of this case and
the observations of the Apex Court that if a person willfully drives
into a crowd then the case cannot be taken to be one under Section
304-A Indian Penal Code, 1860. It is worth mentioning here and as
already discussed above, the Hon‟ble Supreme Court settled the
legal position as far back as in the year 1954 in the judgment of
Sadhu Singh Harnam Singh (supra) where the accused in a state
of intoxication pulled the trigger of his gun to prevent his revered
guest, who was a „mahant‟ from leaving his place without taking
meals and without spending night with him, but unfortunately the
shot hit the mahant resulting into his death. The Apex Court held
that such an act on the part of the accused was wholly rash and
negligent and no intention of causing death or intention of causing
such bodily injury sufficient to cause death could be ascribed to the
accused and thus held the accused guilty of offence punishable under
Section 304A IPC. In the facts of the present case, the learned Trial
Court without critically examining the entire evidence on record
appears to have got carried away by the testimony of Court witness
Sunil Kulkarni and the video of the scene of crime to give strength to
the theory of reversal of car. Undoubtedly, had there been any
clinching evidence to prove reversal of car by the appellant after
knowing the fact that some of the victims were entangled
underneath the car, the knowledge under Section 304 Part II could
have been imputed to the appellant but the said theory of reversal is
the sole creation of the Court witness which does not find support
from the prosecution version, nor from the site plan Ex. PW 58/B or
from the video of the site. I have already discussed above in detail
that the fact of reversal of the car could have been established by the
prosecution through some expert evidence. Courts are not experts to
give findings on such vexed issues just by watching a video of the
scene of the crime. Indisputably, accidents on roads take place due
to the reckless and negligent driving by all those who not only
endanger their own lives but also endanger the lives of other
persons. Every person who drives a vehicle owes a duty to drive his
vehicle in a most responsible and careful manner strictly observing
the traffic rules and regulations as any rashness on the part of a
driver can prove fatal to many innocent people who more often than
not become victims at the hands of drunken and reckless drivers.
The expression "rash" and "negligent" as used in Section 304A IPC
have been beautifully explained in the recent judgment of the Apex
Court in Prabhakaran vs State of Kerala (2007) 14 SCC 269
6. A negligent act is an act done without doing something which a reasonable man
guided upon those considerations which ordinarily regulate the conduct of human affairs
would do or act which a prudent or reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of
which rashness is the species. It has sometimes been observed that in rashness the
action is done precipitately that the mischievous or illegal consequences may fall, but
with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions1
AC at p. 583 observed as under: (All ER p. 556 C-E)
―Simple lack of care such as will constitute civil liability is not enough. For purposes of
the criminal law there are degrees of negligence, and a very high degree of negligence
is required to be proved before the felony is established. Probably of all the epithets that
can be applied ‗reckless' most nearly covers the case. It is difficult to visualise a case of
death caused by ‗reckless' driving, in the connotation of that term in ordinary speech,
which would not justify a conviction for manslaughter, but it is probably not all-
embracing, for ‗reckless' suggests an indifference to risk, whereas the accused may
have appreciated the risk, and intended to avoid it, and yet shown in the means
adopted to avoid the risk such a high degree of negligence as would justify a
conviction.‖
7. ―7. Section 304-A applies to cases where there is no intention to cause death and no
knowledge that the act done in all probability will cause death. The provision is directed
at offences outside the range of Sections 299 and 300 IPC. The provision applies only
to such acts which are rash and negligent and are directly cause of death of another
person. Negligence and rashness are essential elements under Section 304-A.
Culpable negligence lies in the failure to exercise reasonable and proper care and the
extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences
will follow but with the hope that it will not. Negligence is a breach of duty imposed by
law. In criminal cases, the amount and degree of negligence are determining factors. A
question whether the accused's conduct amounted to culpable rashness or negligence
depends directly on the question as to what is the amount of care and circumspection
which a prudent and reasonable man would consider it to be sufficient considering all
the circumstances of the case. Criminal rashness means hazarding a dangerous or
wanton act with the knowledge that it is dangerous or wanton and the further knowledge
that it may cause injury but done without any intention to cause injury or knowledge that
it would probably be caused.
8. As noted above, 'rashness' consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such a case in
running the risk of doing such an act with recklessness or indifference as to the consequences.
Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either to the public
generally or to an individual in particular, which, having regard to all the circumstances out of
which the charge has arisen it was the imperative duty of the accused person to have adopted."
257. From the aforesaid principles defining "rash" and
"negligence", it is clear that even if any rash act is done precipitately
with the knowledge that the illegal consequences may follow but
with a hope that they will not, still the rashness lies because the
offender in such a case runs the risk of doing an act with
recklessness or indifference as to its consequences. As would be seen
from the above discussion, "negligence" or "rashness" are the
essential ingredients of an offence under Section 304 A IPC.
Culpable negligence lies in the failure to exercise reasonable and
proper care and it will depend upon the facts of each case as to what
extent there is culpable neglect or failure to exercise reasonable care
a proper exercise of which could have averted the evil consequences.
But in criminal rashness, the person is conscious of the fact that he is
undertaking the risk of committing a dangerous or hazardous act,
but at the same time he is hopeful that without causing any harm to
any person he will accomplish or undertake such an act. Thus the
element of consciousness is missing in the case of negligence while
consciousness is an important ingredient of rashness.
258. In the facts of the present case, we cannot attribute knowledge
to the accused. On perusal of the site plan it is manifest that
circumstance of taking the vehicle suddenly to the extreme left of the
road, where all the victims were standing, bespeak negligence or
dereliction of duty to exercise due care and control on the part of the
accused, especially when the accused has come up with no
explanation as to why on a cold wintry morning of January while
driving on the Lodhi Road at 4:30 am, when there was no traffic, he
swerved the car at point A in the site plan, which is just one step
away from the left side pedestrian footpath. Based on the principle
of res ipsa loquitor as enunciated in Mohd. Aynuddin Vs. State of
A.P., (2000) 7 SCC 72, one would find that the appellant was
utterly rash and negligent in driving his vehicle.
259. As discussed above, clearly the speed of the car was high as
can be inferred from the rukka, site plan, also and considering the
fact that there was clear visibility of 1000 meters with sky mainly
clear in the morning of cold winter. A driver who moves the car
forward is expected to keep his eyes ahead and possibly on the sides
also. The duty of care varies from one situation to the other. Duty of
care is evident between drivers of automobiles on the road. Each
individual driver owes a duty of care to each of the other
surrounding people - motorists, cyclists and pedestrians - to prevent
accidents and drive in a reasonable manner. In the case of an
automobile accident, drivers not paying attention or driving
irresponsibly will breach that duty of care. Every road user has a
duty of care to other road users. They must drive responsibly and
carefully so as not to endanger the life or well being of others.
260. Therefore, in the present case even if it is assumed that the
appellant was in a state of drunkenness but still he had taken the
risk of driving the vehicle knowing that his act would endanger the
lives of others, but with the hope that it will not and therefore, the
said act at the highest would be construed as an act of rashness on
his part, which would attract Section 304 A IPC and not Section 304
Part II IPC. Under no circumstances the act of the appellant can
attract Section 304 Part II as per the legal principles settled by the
Apex Court in catena of judgments referred above and also by the
judgments of the English Courts discussed above.
261. At the time of passing an interim order on the bail application
of the appellant this Court had observed that it is a stark reality of
every metropolitan city where lot of deaths take place due to
megalomaniacs on driver‟s seat driving the vehicle while venturing
on the road in an inebriated state. It was also observed that it is high
time that legislature undertakes to have a relook at the present laws
so as to prevent drunken driving and save precious lives of innocent
people and even of those who drive in a drunken state. The
legislature has yet to move in this regard and it would be
appreciated that the Government gives due priority to the issue of
drunken driving in its agenda for taking many public spirited issues
in 100 days from the date of assumption of their office.
262. Undeniably, one feel totally aghast and shaken to notice the
horrifying scene of crime with as many as six dead bodies and one
person lying in an injured condition. Such was the impact of the
accident that some persons got entangled beneath the car and later
their limbs were ripped apart into pieces with blood spread all
around. Seeing such a horrendous scene, one could have easily taken
it to be a scene of bomb blast. It was gruesome, macabre and heart
rending.
263. At the same time it must be borne in mind however gruesome
an accident may be, if it was caused without any knowledge on the
part of the accused that it would result into such serious
consequences, the Section that would be attracted would only be
Section 304-A Indian Penal Code, 1860 and not Section 304 II Indian
Penal Code, 1860. It is not the scene of occurrence or the number of
deaths that will govern the complicity of the accused but the fact
whether it was done with knowledge of such consequences or was
mere rashness or negligence on his part. The present case, in my
view, despite the unfortunate death of six persons will fall under S.
304-A Indian Penal Code, 1860 and not under S. 304-II Indian Penal
Code, 1860.
264. As regards the reliance of the trial court on the decision of
Division Bench of the Bombay High Court in the State of
Maharashtra v. Alister Anthony Pareira- MANU/MH/0655/2007
is concerned, I feel that the same is misplaced. The factual scenario
of the case before the Bombay High Court was different as therein
the court attributed knowledge on the accused after considering that
the accused who was driving an overcrowded car and along with
occupants of the car were making noise in a drunken state knowing
fully well that consumption of liquor and possession of the same is
prohibited under Section 66 of the Bombay Prohibition Act, 1949 and
ran over poor persons who were sleeping on the footpath of Mumbai.
Clearly, the facts of the same are different from the facts of the
instant case.
Conclusion
265. In view of the above discussion, the conviction of the appellant
is converted from Section 304 II IPC to one under Section 304-A IPC.
266. Certain issues, such as, role of prosecution, need for scientific
investigation etc. which cropped up in the present case and deserve
due deliberation are discussed as under:
Role of prosecution
267. At this juncture, it is worthwhile to discuss the role of
prosecution and the importance and need for scientific investigation.
268. Every man is presumed to be innocent until he is proved guilty.
This is the cardinal principal of criminal law. In recognition of this
right of the accused the burden of establishing the charge against
the accused is placed on the prosecution.
269. Courts have quite often observed that though they are
convinced that the accused is guilty but they have to acquit him by
giving benefit of doubt due to failure of the investigators in properly
conducting the investigation.
270. The investigation of a criminal case, however good and
painstaking it may be, will be rendered fruitless, if the prosecution
machinery is indifferent or inefficient. One of the well-known causes
for the failure of a large number of prosecutions is the poor, faulty
and unscientific investigation.
271. Although the Public Prosecutors are appointed by the State,
the prosecutor's sole aim is not to seek a conviction. A number of
court judgments have emphasised that the Prosecutor is a 'minister
of justice' who should place before the court all evidence in the
Prosecutor's possession, whether in favour of or against the accused.
This is seen as proper prosecution, as opposed to single-minded
persecution in seeking a conviction regardless of the evidence.
272. Investigation and prosecution are two different facets in the
administration of criminal justice. The role of a Public Prosecutor is
inside the court, whereas investigation is outside the court.
Normally, the role of a Public Prosecutor commences after the
investigating agency presents the case in the court on culmination of
investigation. Its exception is that the Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is injudicious
as well as pernicious in law.
273. It is no more res integra that the case of the prosecution must
stand or fall on its own legs and the prosecution cannot derive any
strength from the weakness of the defence. The decision in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116
supports this and the relevant para of the same is reproduced as
under:
151. It is well settled that the prosecution must stand or fall on its own legs and it cannot
derive any strength from the weakness of the defence. This is trite law and no decision
has taken a contrary view.
Role of investigating authorities
274. Since our country follows the adversarial system of criminal
justice, it is essential for bringing the culprits to the books that the
prosecution is strong and well fed by the investigating agencies.
275. Police and other investigating agencies are at the heart of the
criminal justice system of India. The foundation for the Criminal
Justice System is the investigation by the police. When an offence
committed is brought to the notice of the police, it is their
responsibility to investigate into the matter to find out who has
committed the offence, ascertain the facts and circumstances
relevant to the crime and to collect the evidence, oral or
circumstantial, which is necessary to prove the case in the court. The
success or failure of the case depends entirely on the work of the
investigating officer.
276. In India, the rate of acquittal of criminals as compared to
conviction rate is very high. In the report submitted by Committee on
Reforms of Criminal Justice System, Government of India, Ministry of
Home Affairs headed by Dr. Justice V.S. Malimath, formerly, Chief
Justice of Karnataka and Kerala High Courts, popularly known as the
Malimath Committee Report, the reasons behind such low rate of
conviction in India were reported as under:
2.19.3 Technical or non-fulfillment of any procedural requirement or inadequacies of
evidence or non-examination of material witnesses,mistakes in investigation and similar
other factors have quite often contributed to acquittals. This amounts to failure of the
courts' to search for truth to do justice.
277. Investigation is basically an art of unearthing the truth for the
purpose of successful detection and prosecution. The Apex Court in
State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 explained
various steps involved in investigation, in the following terms:
39. Investigation consists of diverse steps -- (1) to proceed to the spot, (2) to ascertain
the facts and circumstances of the case; (3) discovery and arrest of the suspected
offender, (4) collection of evidence relating to the commission of the offence which may
consist of (a) the examination of various persons including the accused and the
reduction of their statements into writing if the officer thinks fit (Section 161 CrPC), (b)
the search of places and seizure of things necessary for the investigation to be
proceeded with for the trial (Section 165 CrPC etc.) and (c) recovery of the material
objects or such of the information from the accused to discover, in consequence
thereof, so much of information relating to discovery of facts to be proved. (Section 27
of the Indian Evidence Act).
278. In Jamuna Chaudhary v. State of Bihar- (1974) 3 SCC 774
the Hon‟ble Supreme Court held:
―The duty of the Investigating Officer is not merely to bolster up a prosecution case with
such evidence as may enable the court to record a conviction but to bring out the real
unvarnished truth.‖
279. In P.P. Sharma‟s case (supra) the Hon‟ble Apex Court
observed as under the duty of the investigating officer:
47. The investigating officer is the arm of the law and plays pivotal role in the
dispensation of criminal justice and maintenance of law and order. The police
investigation is, therefore, the foundation stone on which the whole edifice of criminal
trial rests -- an error in its chain of investigation may result in miscarriage of justice and
the prosecution entails (sic) with acquittal. The duty of the investigating officer,
therefore, is to ascertain facts, to extract truth from half-truth or garbled version,
connecting the chain of events. Investigation is a tardy and tedious process. Enough
power, therefore, has been given to the police officer in the area of investigatory
process, granting him or her great latitude to exercise his discretionary power to make a
successful investigation. It is by his action that law becomes an actual positive force.
Often crimes are committed in secrecy with dexterity and at high places. The
investigating officer may have to obtain information from sources disclosed or
undisclosed and there is no set procedure to conduct investigation to connect every
step in the chain of prosecution case by collecting the evidence except to the extent
expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the
arduous task involved in the investigation he has been given free liberty to collect the
necessary evidence in any manner he feels expedient, on the facts and in given
circumstances. His/her primary focus is on the solution of the crime by intensive
investigation. It is his duty to ferret out the truth. Laborious hard work and attention to
the details, ability to sort through mountainous information, recognised behaviourial
patterns and above all, to co-ordinate the efforts of different people associated with
various elements of the crime and the case, are essential. Diverse methods are,
therefore, involved in making a successful completion of the investigation.
Need for scientific investigation
280. Scientific inputs help the investigators in solving a number of
cases of crime. The latest state-of-the-art equipments are the need of
the hour considering the escalating rates of acquittal in India due to
faulty and defective investigation. In plethora of cases, the Hon‟ble
Apex Court has pointed out the need for scientific investigation by
the investigating agency and deprecated the practice of failure on
the part of the investigating agencies in collecting relevant evidence
resulting in the acquittal of the accused due to inefficient and
untrained Investigating Officers, who take the investigation in a very
casual, careless and traditional manner. With the advancement in
science and technology, it is high time that the novel & scientific
methods of investigation by a team of well-trained experts and not
merely through an ill equipped, overburdened and constrained team
of Investigating Officers.
Criminal Appeal Nos.767/2008 and 871/2008
281. Let me now deal with two separate set of appeals, one filed by
Rajiv Gupta and the other by Bhola Nath and Shyam Singh Rana,
the employees of Rajiv Gupta, challenging the order of conviction
and sentence passed by the learned trial judge for having committed
offence punishable under Section 201/34 IPC.
282. Criminal Appeal No.767/2008 has been filed by Rajiv Gupta
while Crl. Appeal No.871/2008 has been filed by the other two
accused.
283. Mr. Dinesh Mathur, learned Senior Advocate represented
Rajiv Gupta in Crl. Appeal No. 767/2008 while Mr. S.S. Gandhi,
learned Senior Advocate represented Bhola Nath and Shyam Singh
Rana in Crl. Appeal No. 871/2008. This common order shall dispose
of both the appeals.
284. Before I proceed to deal with the rival contentions raised by
counsels for the parties, it will be appropriate to reproduce the
charge framed by the learned trial court under Section 201/34 IPC
which is as under:
―I, P.K. Bhasin, Addl. Sesions Judge, New Delhi hereby charge you (1) Rajiv
Gupta s/o Ved Parkash Gupta, age 52 years, business; (2) Shyam Singh Rana s/o
Nandan Singh Rana, age 37 years, Service (3) Bhola Nath s/o Moti Lal, age 31 years,
Service as follows:-
That you on 10.1.99 knowing or having reason to believe that an offence u/s
304 (I)/308 IPC had been committed by co-accused persons Sanjiv Nanda, Manik
Kapur and Sidharth Gupta caused certain evidence of the said offence to disappear by
washing BMW Car No. M 312 LYP to remove blood from it in furtherance of your
common intention of screening the said three offenders from legal punishment and
thereby committed an offence punishable u/s 201/34 IPC and within my cognizance.
And I hereby direct that you all be tried by this court on the aforesaid charge.‖
285. The first and foremost contention raised by counsel for the
appellants in both the appeals is that no offence under Section
201/34 IPC is made out against the appellants as the prosecution
miserably failed to bring on record any evidence to prove the said
charge.
286. Counsel for the appellants further submitted that the story of
washing of car was introduced by the police later on, on the
suggestion of the prosecution. The contention of the counsel for the
appellants was that the charge sheet in the present case was
forwarded by the police on 25th March, 1999 and the same was
received by the prosecution agency on 26th March 1999 and in the
course of scrutiny by the prosecution agency, certain lacunae were
found with regard to the material brought on record vis-à-vis Section
201/34IPC and therefore on the suggestion of the prosecution, the
police recorded supplementary statement of PW13 Jagdish Pandey
wherein for the first time, the police coined the story of washing of
car by the appellants, so as to remove the blood stains etc. Counsel
for the appellants thus contended that till 10.1.99, none of the police
witnesses in their statements recorded under Section 161 Cr. P.C.
raised accusation against any of these appellants attributing
allegation of washing of car. In support of their arguments,
counsels for the appellants relied upon the judgment of the Apex
Court reported as R. Sarala Vs. T. S. Velu & Ors.-AIR 2000 SC
1731.
287. Highlighting various contradictions in the testimony of the
prosecution witnesses, the counsels pointed out that according to
PW-11, ASI Ram Awadh, he reached 50, Golf Links along with PW-13,
S.I. Jagdish Pandey who was accompanying him in the same PCR
Van, but neither in his testimony he deposed about having seen the
car being washed nor he deposed that S.I. Jagdish Pandey had
seen the car being washed, while on the other hand, PW-13 S.I.
Jagdish Pandey in his PCR message sent at 6.10 A.M. mentioned the
fact of car being washed, besides intimating the fact of presence of
the said accidental BMW car with sticker of „Park Lane‟ in the said
bungalow No. 50, Golf Links. The said S.I. Jagdish Pandey again saw
the car as per the PCR message sent by him at 7.35 a.m. but in his
said message also nowhere he named any of the appellants being
seen washing the said car, although, this time he stated that the said
accidental car was seen freshly washed and covered with tarpoline.
The contention of the counsels for the appellants was that the car, if
at all it washed, the same could be prior to 7.45 a.m. before it was
handed over to PW-55, SHO Vimlesh Yadav at 7.45 a.m. Counsels
thus contended that it is at a later stage, i.e. at the stage of
recording of his supplementary statement, that PW13 introduced the
fact of having seen washing of the car and in his deposition before
the court he made further improvement by stating that even he had
shown the car washing to SHO Vimlesh Yadav also. On the similar
lines, PW-55 SHO Vimlesh Yadav never mentioned the fact of
washing of the car in her statement under Section 161 Cr.P.C. but
later on in her deposition before the court she introduced the story
of having seen the washing of the car, after allegedly peeping inside
the gate of the said Bungalow. PW-58, S.I. Kailash Chand also never
stated about the said fact of washing of the car in his statement
made under Section 161 Cr.P.C. but in his deposition before the
court, he deposed about the fact of having seen the car being washed
after he reached 50, Golf Links after 7.50 A.M. The contention of
counsels for the appellants was that in fact SHO Vimlesh Yadav by
that time had already taken possession of the car at 7.45 A.M. and
therefore, this witness PW-58 could not have seen washing of the
car at 7.50 A.M. Even PW-29 Nagesh Kumar Wadhera, Finger Print
Expert and PW-37 Constable Jagan Lal made false statements by
deposing before court that they found the car in a wet condition,
whereas, in their statements under Section 161 they stated that
the same appeared to have been recently washed. Counsels
contended that even if it is assumed that the the car was washed
between 6.10 A.M. to 7.35 A.M., then also the same could not have
stayed wet, for such a long time, i.e., after 10.30 A.M./10.45 A.M.
when PW 47 and all these witnesses visited the said Bungalow.
Counsels for the appellants further submitted that the trial court
ignored the basic tenets of law by taking into consideration those
circumstances which were not even put to the appellants during
their examination under Section 313 Cr.P.C. The contention of the
counsels for the appellants was that the trial court has given undue
credence to the contents of video recording showing wet floor
without putting the same to the appellants in their statements
recorded under Section 313 Cr.P.C. Counsel for the appellants
further submitted that similarly no questions were put to the
appellants with regard to the removal of the number plate which is
otherwise also beyond the charges framed against the appellant. In
support of their arguments counsels for the appellants placed
reliance on the judgment of the Apex Court reported as Ashok
Sadashiv Astikar Vs. State of Maharashtra- 3 (1989) (Crimes)
642 (Bom), Ram Kumar Pande Vs. State of Madhya Pradesh
AIR 1975 SC 1026; Col Mohan Singh Vs. State of Rajasthan-
1979 (4) SCC 11 and AIR 1984 SC 1622 Sharad Birdhichand
Sarda Vs. State of Maharashtra.
288. Counsels for the appellants further submitted that the
theory of washing of car clearly gets demolished from the fact that
18 chance finger prints were lifted by PW-29 Finger Print Expert
and lifting of blood stains by PW-31,Mr. D. S. Chakoutra, Senior
Scientific Officer from Forensic Science Laboratory, between 09:30
A.M. to 10.45 A.M. and that had the car been washed by the
appellants then, the said witnesses would not have been in a
position to collect either the finger prints or blood stains from the
said car.
289. Casting serious aspersions on the conduct of PW-13 S.I.
Jagdish Pandey, counsels for the appellants contended that if the
fact of cleaning of the car by the appellants is taken as correct, then
the prosecution owed an explanation as to how the police officers
who were present outside the said bungalow allow perpetration of
the crime by the offenders inside the bungalow. The contention of
the counsels for the appellants was that the story put forth by the
prosecution is absolutely unbelievable and none of the appellants
indulged in the act of cleaning the car.
290. Counsels for the appellants further submitted that the small
patches of wet surface were not appearing due to the washing of the
car but because of the presence of the mist on the cold wintry
morning of 10.1.99 and the trial court by viewing such wet patches
on the video wrongly believed the theory of washing of the car by
the appellants. Counsels also contended that it cannot be lost sight
that PW-29 Mr. N.K.Wadhera also saw presence of flesh and blood
stains ,on the said car and had the car been washed by the
appellants then, there would not have been presence of flesh and
blood stains on the car. Counsel for the appellants further contended
that the trial court wrongly took into consideration the police record
and diaries. The contention of the counsels for the appellants was
that such records are used by the prosecution as a back up, to
refresh their memory but the same cannot be used by the Court for
forming an opinion on the merits of the case.
291. Counsels for the appellants further submitted that PW-13, S.I.
Jagdish Pandey who sent the PCR messages at 6.10 A.M. clearly
stated that he had seen a sticker under the name „Park Lane‟ on the
said BMW car, but the said sticker could not have been seen by the
police official without gaining entry inside the bungalow. The
contention of the counsels for the appellants was that the BMW car
was parked in the said bungalow after the same was dragged inside
with the front side of the car facing towards the main gate and the
sticker of „Park Lane‟ which was affixed on the back wind screen,
could not have been visible just from peeping inside the bungalow
from the front side gate without practically entering the bungalow.
Counsels for the appellants further submitted that no evidence was
produced on record to show that the appellants had knowledge of the
commission of offence, committed by the other accused persons, and
therefore, the appellants had no reason whatsoever to have
screened the offenders.
292. Counsel also argued that the trial court fell in grave error by
ignoring the fact of discharge of Siddharth Gupta, son of appellant
Rajiv Gupta before passing the impugned order. The contention of
the counsel for the appellant Rajiv Gupta was that once the
complicity of Siddharth Gupta was not found in the commission of
any offence, there could be no reason or motive for the appellant
Rajiv Gupta to have involved himself to screen anybody else.
293. Counsel for the appellant also submitted that under Section 36
of the Cr.P.C., it is the duty of the senior police officers to deal with
the faulty investigation and not for the prosecution to intermeddle.
Counsel for the appellant further submitted that Siddharth Gupta
was discharged on 6.11.2000, but the trial court did not amend the
charges causing serious prejudice to the appellant Rajiv Gupta as
charge under Section 201, could not have been sustained against
him after the discharge of his son Siddharth Gupta.
294. Counsels for the appellants also argued that the trial court
could not have ignored the PCR messages as they are relevant and
legally admissible being public documents as per Section 35 and 74
of the Evidence Act. In support of his arguments Mr. Mathur
placed reliance on the judgments of Privy Council reported in
Bhaiya Raj Kishore Deo Vs. Bani Mahto-1918 (XLVII) Indian
Cases 1 and AIR 1988 Kerala 1 State of Kerala Vs. Ammini &
Ors.
295. The Trial court is stated to have committed another grave
error in not complying with the basic principles of criminal justice
that the defence witnesses were to be considered at par with the
prosecution witnesses. The contention of counsels for the appellants
was that the trial court failed to give any weightage to the deposition
of DW-6 and DW-8 while treating the deposition of DW5, DW7 and
DW9 as immaterial much to the prejudice of the appellants. In
support, counsels for the appellants placed reliance on the
judgments of the Apex Court in AIR 1981 SC 911 Dudh Nath
Pandey Vs. State of U.P. Counsel for the appellants also contended
that the police did not seize any incriminating material from the spot
to prove that the said car was washed by the offenders.
296. Counsels for the appellants also contended that PW-60 S.I.
Hulas Giri in his cross examination falsely stated that he had
recorded the supplementary statements of only those witnesses
whose statements were not earlier recorded. The contention of the
counsel for the appellant was that the statement of PW-13, Jagdish
Pandey was recorded on 10.1.99 as well as on 31.3.99. Reliance in
this regard was placed on the judgment of this court reported in
Deepa Bajwa Vs. State & Ors. 2004 (8) AD. 201.
297. Counsel for the appellant Rajiv Gupta also submitted that it
is totally unexpected of a person worth hundred crores to be seen
washing the car with his own servants, therefore, the prosecution
wrongly implicated the appellant Rajiv Gupta for extraneous
reasons. Finding fault with the case of the prosecution, counsel for
the appellant contended that initially the case set up by the
prosecution was that six persons did the job of cleaning. Counsel
also submitted that there was no independent eye witness to the
said act of washing of car by the appellant, except the police officials
whose evidence due to their inconsistent stand of highly doubtful
nature to be relied upon by the court.
298. Counsel for the appellants further submitted that it is for the
prosecution to have proved the evidence on record that the
appellants had the requisite knowledge or reasons to screen the
offenders and the prosecution has utterly failed to prove the same.
In support of their arguments, counsels for the appellants placed
reliance on the judgment of the Apex Court in Sarwah Singh
Rattan Singh Vs. State of Punjab- AIR 1957 SC 637, Vikramjit
Singh Vs. State of Punjab-2007 (1) Crimes 181 (SC) and
Trimbale Vs. State of M.P.-AIR 1954 SC 39.
299. Counsel for the appellants further submitted that the court
cannot be permitted to give undue weightage to the case of the
prosecution and if, after taking the entire material into
consideration, if there is possibility of two views then one in favour
of the accused has to be accepted and not favoring the prosecution.
Counsels for the appellants further submitted that the trial court
has given undue weightage to the video film, which being in the
nature of a site plan, was required to be proved in accordance with
the principles laid down in Section 162 of the Indian Evidence Act.
In support of their arguments, counsels for the appellants placed
reliance on the judgment of the Apex Court in Tori Singh & Anr.
Vs. State of U.P.- AIR 1962 SC 399 and Jagdish Narain & Anr.
Vs. State of AIR 1996 SC 3136.
300. Counsel for the appellants laid much stress on their
argument that under Section 304 (II) IPC the sentence which can be
imposed is disjunctive i.e. either it can be for 10 years or with fine
or with both, and therefore, Part III of Section 201 would be
applicable in the facts of the present case and not Part-II of Section
201. In the alternative, counsels for the appellants submitted that if
this court finds the offence made out against the main accused falls
under Section 304-A IPC then in any case Part-III of Section 201
would be attracted and not Part II of Section 201 IPC. In support of
their arguments, reliance was placed on the judgment of the Apex
Court in State of Maharashtra Vs. Jugmander- AIR 1966 SC
940.
301. On the sentence counsel for the appellants contended that the
trial court has not taken into consideration the mandatory principles
laid down by the legislature under Section 360 Cr. P.C. The
contention of the counsel for the appellants was that even if the
allegations against the appellants are taken to be correct, yet they
being the first offenders, were entitled to be released on probation as
per the legislative intent behind Section 360 Cr.P.C. In support,
reliance was placed on the judgments of the Apex Court in Dilbagh
Singh Vs. State of Punjab, AIR 1979 SC 680 and Surendra
Kumar Vs. State of Rajasthan-AIR 1979 SC 1048. Refuting
the said arguments of the counsels for the appellants, Mr. Pawan
Sharma, APP for the State contended that videography was duly
proved by PW-59, Ram Avtar who himself had prepared the video
film after visiting the site of the accident and his testimony
remained unrebutted and unchallenged and now, at this stage, the
defence cannot be allowed to challenge the authenticity or
admissibility of the said video.
302. Counsel for the respondent further submitted that the trial
court has duly considered the evidence of the defence before
holding these appellants guilty of committing the said offence except
evidence of DW-6, who was a formal witness.
303. Counsel for the respondent State further submitted that the
trial court has duly taken into consideration the parameters laid
down under Section 360 Cr.P.C and had also given reasons before
awarding the sentence.
304. Counsel for the respondent also countered the contention of
the counsel for the appellants that Section 201 Part III would be
attracted and not Section 201 Part-II. The contention of the counsel
for the State is that Part-II of Section 201 will be applicable in all
sentences punishable for 10 years and above and Part III of Section
201 would be applicable where the offence is punishable for less
than 10 years.
305. Counsel for the respondent further submitted that merely
because certain questions relevant to the case were not put to the
accused during their examination under Section 313 Cr.P.C., such
an omission alone will not be fatal to the case of the prosecution and
even if it is so, then the appellate or the revisional court has the
ample powers to undo the same by re-examination of the accused
persons under the said provision. In support of his arguments,
counsel for the respondent placed reliance on the judgment of the
Apex Court in Rambhau Vs. State-2001 II A.D. Crl. S.C. 168,
State of Punjab Vs. Naib Din-AIR 2001 SC 3955, and Baba Vs.
State-2002 (9) SCC 567. Counsel for the State further submitted
that the learned trial court has already extensively dealt with all
the arguments, now being reagitated by the counsel for the
appellants in the impugned orders, and no plausible reasons have
been advanced by the counsel for the appellants to find fault with
the conclusion arrived at by the trial court.
306. Counsel for the respondent further submitted that before
filing of the challan in the court, the matter remained at the
investigation stage and therefore, recording of supplementary
statements by the police was in continuation of the investigation and
no motives can be attributed to the prosecution witnesses for
incorporating those facts which were existing at the site and duly
witnessed by the said witnesses. Even otherwise, as per the counsel
for the State, the testimony of these witnesses as given by them in
the court would be of more relevance, leading towards guilt of the
appellants.
307. I have heard learned counsel for the parties at a considerable
length and carefully gone through the entire material on record.
308. The first contention raised by the counsel for the appellant was
that no offence under Section 201 is made out against the appellants.
As per the counsel for the appellants, the prosecution failed to prove
on record that the appellants had the requisite knowledge or reason
to believe the commission of principal offence by the offenders to
whom they had the alleged intention of screening them from legal
punishment. Before dealing with the said contention, it would be
appropriate to reproduce Section 201 IPC as under:
"Section 201. Causing disappearance of evidence of offence, or giving false
information to screen offender
Whoever, knowing or having reason to believe that an offence has been
committed, causes any evidence of the commission of that offence to disappear,
with the intention of screening the offender from legal punishment, or with that
intention gives any information respecting the offence which he knows or believes
to be false,
If a capital offence.- shall, if the offence which he knows or believes to have
been committed is punishable with death, be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to
fine;
If punishable with imprisonment for life.- and if the offence is punishable with
[imprisonment for life], or with imprisonment which may extend to ten years, shall
be punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine;
If punishable with less than ten years' imprisonment.- And if the offence is
punishable with imprisonment for any term not extending to ten years, shall be
punished with imprisonment of the description provided fro the offence, for a term
which may extend to one-fourth part of the longest term of the imprisonment
provided for the offence, or with fine, or with both.‖
309. Section 201 is a salutary principle of law to deter those who
indulge in the act of destroying the evidence so as to screen the
principal offenders of the main offence. The punishments prescribed
under this Section for the offenders has been made commensurate
depending upon the severity of the offence, evidence of which, has
been destroyed by the offenders. The punishment extendable to
seven years has been prescribed for destroying the evidence
punishable with death and punishment up to three years has been
prescribed for destroying the evidence of an offence punishable with
imprisonment of life or imprisonment which may extend to 10
years and fine, if the sentence is for a term which does not extend
up to10 years, then the offence is punishable for a term extendable
to 1/4th part of the longest term of imprisonment provided for the
offence or with fine or with both.
310. Roots of Section 201 IPC can be found in the English Law
where the aiders and the abettors have been classified as
accessories before the fact, accessories at the fact and accessories
after the fact. According to Lord Hale of England "an accessories
after the fact may be, where a person knowing a felony to have
been committed receives, relieves, comforts or assists the felon.
Section 201 IPC deals with a situation where the felony has been
committed and the person accused of offence under Section 201 has
reasons to believe that a felony has been committed, commits any
act so as to weaken the prosecution against the principal offenders.
Section 201 IPC thus has been designed to penalize the attempts of
all those who create bottlenecks and hindrances in the way of the
prosecution to apprehend the culprits of the crime and to ultimately
ensure their escapement from the clutches of law. Such offenders
are the biggest enemies of the society as through their devious acts
they render the investigation blindfolded which in our country is
already ill equipped due to the lack of modern and scientific devices
to apprehend the criminals.
311. The essential ingredients to constitute an offence under
Section 201 IPC are as under:
―Essential Ingredients
The necessary ingredient of an offence under s 201 IPC is actually causing any
evidence of the commission of an offence to disappear with the intention of screening
the offender from legal punishment. The essential ingredients of an offence under this
section are that:
(i)an offence has been committed;
(ii)The accused knows or has reason to believe that the offence has been committed;
(iii)with such knowledge or belief the accused has:
(a) caused any evidence of the commission of the offence to disappears, or
(b) given any information respecting the offence, which he knew or believed to be
false; and
(iv)the accused has done so with the intention of screening the offender from legal
punishment; and
(v)if the charge be of an aggravated form, as in the given case, it must be proved
further that the offence in respect of which the accused did as in (c) and (d) was
punishable with death, or with imprisonment for life or imprisonment extending to ten
years.‖
312. The word „offence‟, as used in the above section, does not
contemplate that the accused should have the complete
knowledge of a particular section of penal code under which the
offence is said to have been committed. What the court has to
examine is to see as to whether the accused knew or had reason
to believe that an offence has been committed. It is certainly for
the prosecution to prove that the accused had such sufficient
knowledge to form a belief that the offender has committed
some offence and to screen him from such offence, particular
evidence needed to be destroyed. The Apex Court in Ram Saran
Mahto & Anr. Vs. State of Bihar, AIR 1989 SC 3435 while
dealing with the scope of the said section held as under:
―11. The first paragraph of the section contains the postulates for
constituting the offence while the remaining three paragraphs prescribe three different
tiers of punishments depending upon the degree of offence in each situation. The two
indispensable ingredients for all the three tiers in Section 201 are:
(1) The accused should have had the knowledge that an offence has been committed or
at least that he should have had reasons to believe it.
(2) He should then have caused disappearance of evidence of commission of that
offence.
The prosecution cannot escape from establishing the aforesaid two basic ingredients for
conviction of the accused under Section 201.
12. The gravest degree contemplated in Section 201 is punishable with the maximum
sentence of imprisonment for seven years. The minimum requirement for the offence to
reach the said peak degree is that the offender should have caused disappearance of
evidence of another offence which is punishable with death, and that should be
established in addition to the above-mentioned two basic ingredients. Even if the two
basics are established, and the prosecution failed to establish the next requirement, the
court cannot convict the accused for the highest tier specified in the section.
13. It is not necessary that the offender himself should have been found guilty of the
main offence for the purpose of convicting him of offence under Section 201. Nor is it
absolutely necessary that somebody else should have been found guilty of the main
offence. Nonetheless, it is imperative that the prosecution should have established two
premises. The first is that an offence has been committed and the second is that the
accused knew about it or he had reasons to believe the commission of that offence.
Then and then alone the prosecution can succeed, provided the remaining postulates of
the offence are also established.‖
313. In S.R. Mulani Vs. State of Maharashtra, AIR 1968 SC
829, the Apex Court held that it will not be a mere suspicion on the
part of the offender but he must have either knowledge or reasons to
believe that such an offence has been committed then only Section
201 would be attracted. Relevant para 6 of the said judgment is
reproduced as under:
―6. The conviction of Appellant 2 under Section 201 IPC depends on the sustainability of
the conviction of Appellant 1 under Section 304-A IPC. If Appellant 1 was rightly
convicted under that provision, the conviction of Appellant 2 under Section 201 IPC on
the facts found cannot be challenged. But on the other hand, if the conviction of
Appellant 1 under Section 304-A IPC cannot be sustained, then, the second appellant's
conviction under Section 201 IPC will have to be set aside, because to establish the
charge under Section 201, the prosecution must first prove that an offence had been
committed not merely a suspicion that it might have been committed -- and that the
accused knowing or having reason to believe that such an offence had been committed,
and with the intent to screen the offender from legal punishment, had caused the
evidence thereof to disappear. The proof of the commission of an offence is an
essential requisite for bringing home the offence under Section 201 IPC -- see the
decision of this Court in Palvinder Kaur v. State of Punjab .‖
314. In the trial court, the defence counsel took a stand that the
offenders in the present case at the most had found a damaged
vehicle parked in their house with the presence of blood stains and
flesh pieces and which could be as a result of an accident with some
stray animal. The said theory propounded by the defence counsel
before the trial court, and by the counsel for the appellants before
this court pleading that the appellants had neither any knowledge
about the offence nor had any reasons to believe the commission
of offence deserves outright rejection. Counsel representing Rajiv
Gupta has also taken unpalatable stand of feigning ignorance of
Rajiv Gupta about the parking of offending car in his bungalow till
he was told by DW-5 Gaurav Karan at about 9.00 A.M. The
prosecution has duly proved on record that by tracing the oil trail
the police could reach to 50, Golf Links, the bungalow owned by Mr.
Rajiv Gupta. The prosecution also proved that the said BMW Car
bearing registration No.M 312 LYP in a damaged condition was
found parked on the driveway of the said bungalow. It now also
stands established with the stand taken by the counsel representing
the main accused Sanjiv Nanda and based on the material on
record that Sanjiv Nanda caused the said ghastly accident while
driving the said BMW car, therefore, with this position, it cannot be
said that the insiders present in the bungalow could not derive
knowledge of the commission of an offence by Sanjiv Nanda while
driving his BMW Car. It is also not in dispute that Sidharth Gupta,
son of Rajiv Gupta, happened to be the friend of Sanjiv Nanda. The
prosecution also proved on record that PW-13 Inspector Jagdish
Pandey and PW-11 ASI Ram Avadh reached the said bungalow after
tracing the oil marks and even PW-55, Inspector Vimlesh Yadav, SHO
of the area also reached the said bungalow at 7.45.A.M. In the
background of this scenario, it is not only difficult but well nigh
impossible to believe that the appellant Rajiv Gupta and his two
employees had no knowledge or had no reason to believe about the
occurrence of some major accident involving the said BMW car. The
prosecution has successfully proved on record that a BMW car was
parked in the said bungalow in a damaged condition after it had
caused accident of such a high magnitude in which the precious
lives of six people were lost. Can anybody sleep in his house if some
one known after causing an accident brings his accidental car and
park it there? No person in such a situation can remain asleep and
more so when a friend of son of the owner of the bungalow was
involved in the offence. After parking the said car, Sidharth Gupta
had gone to the residence of the main offender Sanjiv Nanda at
Defence Colony. It is equally unbelievable that Siddharth Gupta
would not have woken up his father and other family members when
the damaged vehicle was allowed to be parked in the said bungalow.
315. Based on the above discussion, I am of the view that all the
appellants were fully aware about the commission of offence by
Sanjiv Nanda or at least had reason to believe that an offence has
been committed by Sanjiv Nanda while driving his BMW car.
316. Coming to the next important contention raised by the counsels
for the appellants that the prosecution failed to prove either with
the help of any direct evidence or the circumstantial evidence to
establish the fact that the appellants with the common intention to
screen the offenders of the main crime washed the said BMW car
bearing registration No. M312 LYP to remove blood from the same
so as to destroy evidence from the said car.
317. With a view to shatter the case of the prosecution and to
substantiate their line of arguments, the counsels for the appellants
raised the following points:
(a) The theory of washing of car by the police gets falsified
from the PCR messages sent by PW13 Jagdish Pandey and PW58
Kailash Chand.
(b) The story of washing of car by the appellants was
introduced for the first time on the suggestion of the prosecution
branch whereafter supplementary statement of PW13 was recorded,
wherein for the first time accusation of washing of said car was
made against the appellants.
(c) Contradictions in the testimonies of prosecution
witnesses i.e. PWs-11,13,55 and PW 58.
(d) Collection of 18 chance finger prints by finger print
expert PW29 Mr.Nagesh Kumar Wadera and blood stains by PW31
Mr. D.S.Chakoutra,Sr. Scientific Officer after the alleged washing of
car by the appellants.
(e) Attaching undue importance to the illegally admissible
evidence of videography.
(f) During the course of examination of appellants under
Section 313, relevant questions relied upon by the prosecution were
not put to the witnesses.
318. This court has already dealt with the admissibility of the PCR
messages hereinabove when dealing with the appeal filed by Sanjiv
Nanda. It is reiterated that the purpose of these PCR Messages are
merely to set the machinery of the police in motion and mostly they
are cryptic, precise and sometimes too vague also. The counsel for
appellants while relying on Bani Mahto‟s case (Supra) contended
that PCR messages are official documents and thus are admissible in
evidence. The law with regard to cryptic messages has been
authoritatively laid down by the Apex Court in Rajnish Bauaji
Jadeja(supra), which has already been explained in detail.
319. The learned trial court has also dealt with these PCR messages
much in detail. Doubting the accuracy of these messages, the trial
court pointed out that in one of the PCR messages, the message
flashed was that a red colour contessa car had committed the
offence, while in fact the BMW car involved in the accident was of a
black colour. Nevertheless, the trial court even after accepting the
correctness of the messages came to the conclusion that Inspector
Jagdish Pandey as well as SHO Vimlesh Yadav had seen the vehicle
being washed by the appellants. The trial court also observed that
till the apprehension of all the accused persons, the investigation
was going on a right track and was fully credible but due to the
influence of some high-ups the crack started developing in the
investigation. The court also observed that the principle of weighing
the evidence on golden scales cannot be applied in such a case,
because trial in the instant case is an example where the entire
criminal justice has been hijacked by the rich and influential
persons. The said observations made by the court are not just a
passing reference, but painfully describes the concern and anguish
of a judge witnessing the assorted game plan of the police to create
enough loopholes in the course of investigation so as to ultimately
help out the accused. The Apex Court, in a well acclaimed decision
of Zahira Habibulla (supra), although was confronted with
more serious questions concerning the faulty and bias investigation
as well as perfunctory and improper conduct of trial by the public
prosecutor, directed retrial of the entire case and some of the
observations made in the said judgment are of utmost importance in
the context of the present case. The relevant paras of the said
judgment are referred as under:
―2. The present appeals have several unusual features and some of them pose very
serious questions of far-reaching consequences. The case is commonly to be known as
―Best Bakery Case‖. One of the appeals is by Zahira who claims to be an eyewitness to
macabre killings allegedly as a result of communal frenzy. She made statements and
filed affidavits after completion of trial and judgment by the trial court, alleging that
during trial she was forced to depose falsely and turn hostile on account of threats and
coercion. That raises an important issue regarding witness protection besides the
quality and credibility of the evidence before court. The other rather unusual question
interestingly raised by the State of Gujarat itself relates to improper conduct of trial by
the Public Prosecutor. Last, but not the least, that the role of the investigating agency
itself was perfunctory and not impartial. Though its role is perceived differently by the
parties, there is unanimity in their stand that it was tainted, biased and not fair. While
the accused persons accuse it for alleged false implication, the victims' relatives like
Zahira allege its efforts to be merely to protect the accused.
13. Statement of one eyewitness was recorded on 4-3-2002 by PI Baria at S.S.G.
Hospital, Vadodara disclosing names of five accused persons and when he was sought
to be examined before the Court, summons were issued to this person on 27-4-2003 for
examination on 9-5-2003. It could not be served on the ground that he had left for his
native place in Uttar Pradesh. Therefore, fresh summons were issued on 9-6-2003 for
recording his evidence on the next day i.e. on 10-6-2003, giving only one day's time.
When it could not be served, then summons were issued on 13-6-2003 for remaining
present before the court on 16-6-2003. It could not be also served for the same
reasons. Ultimately, the Public Prosecutor gave purshis for dropping him as witness and
surprisingly the same was granted by the trial court. This goes to show that both the
Public Prosecutor as well as the court were not only oblivious but also failed to
discharge their duties. An important witness was not examined by the prosecutor on the
ground that he, Sahejadkhan Hasankhan (PW 48) was of unsound mind. Though the
witness was present, the Public Prosecutor dropped him on the ground that he was not
mentally fit to depose. When such an application was made by the prosecution for
dropping on the ground of mental deficiency, it was the duty of the learned trial Judge to
at least make some minimum efforts to find out as to whether he was actually of
unsound mind or not, by getting him examined by the Civil Surgeon or a doctor from the
Psychiatric Department. This witness (PW 48) has received serious injuries and the
doctor Meena (PW 9) examined him. She has not stated in her evidence that he was
mentally deficient. The police has also not reported that this witness was of unsound
mind. During investigation also it was never stated that he was of unsound mind. His
statement was recorded on 6-3-2002.
36. The principle of fair trial now informs and energises many areas of the law. It is
reflected in numerous rules and practices. It is a constant, ongoing development
process continually adapted to new and changing circumstances, and exigencies of the
situation -- peculiar at times and related to the nature of crime, persons involved --
directly or operating behind, social impact and societal needs and even so many
powerful balancing factors which may come in the way of administration of criminal
justice system.
38. This Court has often emphasised that in a criminal case the fate of the proceedings
cannot always be left entirely in the hands of the parties, crimes being public wrongs in
breach and violation of public rights and duties, which affect the whole community as a
community and are harmful to the society in general. The concept of fair trial entails
familiar triangulation of interests of the accused, the victim and the society and it is the
community that acts through the State and prosecuting agencies. Interests of society
are not to be treated completely with disdain and as persona non grata. Courts have
always been considered to have an overriding duty to maintain public confidence in the
administration of justice -- often referred to as the duty to vindicate and uphold the
―majesty of the law‖. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting its
ability to function as a court of law in the future as in the case before it. If a criminal
court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. Courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still possible, except at the risk
of undermining the fair name and standing of the judges as impartial and independent
adjudicators.‖
320. Whenever and wherever, either due to money power or
political power, the police or the prosecution bend its knees so as to
help out the accused of the crime, the task of the courts becomes
onerous to ascertain and unravel the truth. In all such cases, the
prosecution creates enough loopholes at the stage of investigation
itself, and in most of the cases such investigations are more guided
by the defence through their legal experts at the cost of sufferings of
the victims of the crime and the societal interest. One is totally
aghast to find that in FIR as well as in the challan filed by the police
under Section 173 of the Cr.P.C., except stating that these
appellants have committed an offence under Section 201/34 IPC, no
other fact was mentioned to disclose as to how they were found
involved in committing the said offence under Section 201/34 IPC. It
is only in the supplementary statements of PW-13 and PW58 that it
was alleged that these appellants were seen washing the said BMW
car, while no such allegation was made in their statements earlier
recorded under Section 161 Cr.P.C. In this regard, counsel for
appellants relied on decision in Ram Kumar Pande‟s case (supra),
which pertains to different factual scenario and thus is not applicable
to facts of the instant case. The trial court could see the said game
plan of the prosecution after noticing clear accusations made by the
police against the appellants, in their remand application proved on
record as Ex. PW58/F. The trial court also considered the said PCR
messages to reach to the conclusion that the appellants had washed
the said BMW car and thereafter covered the same with tarpoline.
In the message sent by PW11 ASI Ram Awadh at 6.10 A.M. the said
police officer merely stated that a black colour BMW car in an
accidental condition was found parked at 50, Golf Links and when
chowkidar of the said bungalow was inquired into but he refused to
open the gate. The police officer in the said message also stated that
the said car was carrying a sticker under the name of „Park Lane‟. In
the message flashed at 7.35 A.M. by Inspector Jagdish Pandey, he
stated that one vehicle involved in the accident appeared to be
recently washed. In his message he also stated that apart from
police other persons were also standing in the bungalow and the
accidental car was covered with a tarpoline. SHO Vimlesh Yadav in
her statement under Section 161 Cr.P.C. also refered to the presence
of the said BMW car at bungalow No. 50, Golf Links and also the fact
that she was told by Inspector Jagdish Pandey about the washing of
the said car. It is also important to mention here that PW-11,ASI
Ram Awadh, PW-13 Inspector Jagdish Pandey andPW55 Vimlesh
Yadav in their depositions before the Court duly proved the fact of
washing of said car by the appellants and the defence could not
succeed to effectively rebut or discredit their depositions. Be that
as it may, it is well settled that statements recorded under Section
161 Cr.P.C. are not a substantive piece of evidence. In this regard,
the Hon‟ble Apex Court in Rajendra Singh Vs. State of U.P.-
(1007) 7 SCC 378, observed as under:
―7. The High Court has basically relied upon the statements of six witnesses which had
been recorded by the investigating officer under Section 161 CrPC to record a positive
finding that the respondent could not have been present at the scene of commission of
the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement
under Section 161 CrPC is not a substantive piece of evidence. In view of the proviso to
sub-section (1) of Section 162 CrPC, the statement can be used only for the limited
purpose of contradicting the maker thereof in the manner laid down in the said proviso.
Therefore, the High Court committed a manifest error of law in relying upon wholly
inadmissible evidence in recording a finding that Kapil Dev Singh could not have been
present at the scene of commission of the crime.‖
321. It is a settled legal principle of law that the depositions made
in the court by the witnesses cannot be equated with the statements
given by these witnesses under Section 161 Cr.P.C. It is also settled
legal position that minor or trivial contradictions in the statements
of such witnesses cannot over-throw the prosecution case if such
statements find due support from other corroborative material.
322. Mr. S.S. Gandhi, learned Senior Advocate representing
appellants Bhola Nath and Shyam Singh Rana laid much stress that
PW-13 could not have noticed the „park lane‟ sticker which was
affixed on the back wind screen of the car unless the said witness
had gained entry in the bungalow. The contention of the counsel for
appellants was that these appellants could not have washed the car
once the police officers had already entered the bungalow. This
argument of counsel, no doubt, though specious but taking the
totality of the circumstances into consideration, the same falls face
down. At the most, it can be said that the said witness might have
been able to gain entry from the side gate at 6.10 A.M. and
thereafter the three appellants might have washed the said car. It
has come on record that PW11 and PW34 had also seen water
coming outside from the left side drain of the bungalow. This
position is also strengthened from the fact that PW-13 had seen
these appellants washing the said car after he peeped inside the
bungalow from the side gate, but actually came to know about
their identity after having entered the bungalow from the main gate
after the arrival of the SHO Vimlesh Yadav. On the same lines, PW-
55 SHO Vimlesh Yadav also deposed that she had also peeped inside
the gate and saw the car being washed and thereafter she
requested the chowkidar to open the gate when exactly she could
know the name of the persons who were washing the said car.
Taking into consideration the totality of the aforesaid
circumstances, I do not find any merit in the contention raised by the
appellants that they were not seen washing the BMW car by these
witnesses.
323. The other contention of the counsel for the appellants was
that as PW29 finger print expert and PW31 Senior Scientific Officer
could collect the blood samples and the chance prints from the car it
could not have been done from a wet car, would show that the car
was not wet, is also devoid of any force. PW-29 in his deposition
clearly stated that he found that the car was wet from the roof top
and bonnet was also wet. He came to inspect the said car at about
10.00A.M. and even at that time the car was still wet. The said
finger print expert had to wait for some time for the car to dry up
and only thereafter he could apply the developing powder for lifting
chance prints from the car. It is thus evident from his deposition
that chance prints could be lifted even from a car which earlier got
wet but the same could be lifted only after it dried up. No
suggestion was given to the said finger print expert by the defence
that chance finger prints could not be lifted from the car once it got
wet, due to water or otherwise. PW-31, Senior Scientific Officer,
lifted the blood stains from the steering of the car and also from the
bumper of the car and it cannot be ruled out that had the car not
been washed by the appellants, the said officer could have collected
more blood samples from the car because admittedly six persons
had died in the accident and some of those victims even got badly
entangled beneath the car. In any event of the matter, no
suggestion was given to the said witness that had the car been wet
he would not have been in a position to lift the blood samples.
324. Taking these circumstances into consideration, the said
argument of the appellants also cannot be sustained and merits
rejection.
325. So far the contradiction in the deposition of PW-58 S.I. Kailash
Chand is concerned, the time variation of five minutes from 7.45
A.M., when SHO Vimlesh Yadav was said to have taken the
possession of the car and visit of Kailash Chand after receipt of the
message at 7.50 A.M. is not that material to disbelieve his court
statement as this is a minor discrepancy and not a material
discrepancy. In this regard, the Apex Court in State of Rajasthan
Vs. Kalki-(1981)2 SCC 752 explained the difference between
material and normal discrepancies in following terms:
"8. The second ground on which the High Court refused to place reliance on the
evidence of PW 1 was that there were ―material discrepancies‖. As indicated above we
have perused the evidence of PW 1. We have not found any ―material discrepancies‖ in
her evidence. The discrepancies referred to by the High Court are, in our opinion,
minor, insignificant, natural and not ―material‖. The discrepancies are with regard to as
to which accused ―pressed the deceased and at which part of the body to the ground
and sat on which part of the body; with regard to whether the respondent, Kalki, gave
the axe blow to the deceased while the latter was standing or lying on the ground, and
whether the blow was given from the side of the head or from the side of the legs. In
the depositions of witnesses there are always normal discrepancies however
honest and truthful they may be. These discrepancies are due to normal errors of
observation, normal errors of memory due to lapse of time, due to mental
disposition such as shock and horror at the time of the occurrence, and the like.
Material discrepancies are those which are not normal, and not expected of a
normal person. As indicated above we have not found any material discrepancies in
the evidence of PW 1.‖
326. Handing over possession of the car to SHO Vimlesh Yadav at
7.45 A.M. would not mean that the car was immediately driven out
from 50, Golf Links, which was lying in a damaged condition, not fit
to be driven out. Counsel for the appellants has over-emphasized
such minor contradiction in the deposition of PW-58 who was also
witness to the washing of the car by the appellants. When he visited
the said bungalow, not only did he see that back side number plate
was affixed in the reverse direction but after taking out the same, he
tallied it with the number plate, which was found by him from the
site of the accident. Therefore, this contention of counsels for the
appellants is of no assistance to them.
327. Coming to the next contention of the counsels for the
appellants with regard to the inadmissibility of videography on
which much reliance was placed by the trial court, I find that PW-59,
Constable Ram Lal, who prepared the video film of the spot had duly
proved the same as Ex.PW-59/19. None of the appellants cross-
examined the said witness to discredit his testimony or to challenge
the authenticity of the video film taken by him from the spot. Video
comes within the definition of „document‟ under Section 3 of the
Evidence Act. In Halsbury Laws of England, 4th Edition, at Page 56,
it has been observed that documents include in addition to a
document in writing, any plan, graph, drawing, photographs, disk,
sound track or similar device or any film, micro-film, tape or similar
device, just like any other document, therefore, the video can also be
proved through the evidence of an expert who had taken the video
of the scene of crime. The video, being in the nature of a document,
is a corroborative piece of evidence but the authenticity and
genuineness of the video should be proved in the same manner as
any document or a site plan is required to be proved under the
Evidence Act.
328. It is a matter of record that the learned presiding judge of the
trial court personally viewed the said video and copy of the same
was also supplied to the defence counsel. After viewing the said
video, so far the appellants are concerned the court found that on
the back side of the BMW car, the number plate was not visible. The
court had drawn conclusion that since there was no damage seen at
the back of the car where the number plate was affixed, therefore, it
was apparent that non visibility of the number plate in the video is an
indicator to the fact that the efforts were made by the accused
persons to remove the number plate so that no one could identify
the car. Although the court could clearly view from the video the
removal of the back side number plate, yet, it did not make it a
ground for exonerating the accused persons on account of the fact
that no specific charge was framed in this regard against the
appellants. Therefore, I do not find any illegality committed by the
trial court in taking into consideration, the said removal of the
number plate after viewing the video as one of the important
circumstance to assess the exact intention of the accused persons.
The trial judge also saw the area/floor/path way where the car was
parked appearing to be washed after having seen the video. The
said video was also viewed by this court in the presence of both the
parties and one could clearly see the wet patches on the floor/path
way around the car and to this extent the observations of the court
did not appear to be incorrect, more particularly when no challenge
was made by the defence to the authenticity and genuineness of the
said video. It is being made clear here that the prosecution failed to
produce any witness so as to explain the scene of crime as
videographed by PW59, and therefore, this court is not attaching
much importance to the said video, except to the limited extent the
things are clearly visible to the naked eye. The damaged BMW car
had duly been shown in the said bungalow of appellant Rajiv Gupta
i.e. 50, Golf Links and the said car had been shown with its front
facing the main gate and one can clearly see wet patches on the
floor/path way around the said car, and this is a clear pointer to the
fact that the car was washed prior to the video taken by PW-59.
Washing of car is otherwise evident from the other evidence proved
on record and even the expert witnesses in their depositions have
deposed about the said car in a wet condition at the time of their
visit. The video also clearly shows that the car from the outside
appeared to be totally clean which is again an indicator to the fact
that it was washed by the persons present inside the bungalow. No
doubt, on the wintry morning of 10.1.1999, the presence of „mist‟
could have contributed wet conditions but not to the extent as has
been proved on record through the depositions of the prosecution
witnesses and videography.
329. The decision of the Hon‟ble Apex Court relied upon by
appellants in Col. Mohan Singh‟s case(Supra) is not applicable to
the facts of the case as there the prosecution was unable to prove
that the accused washed the car but herein the prosecution has
been able to prove the case.
330. The decision in Jagdish Narain(Supra) and Tori Singh
(Supra) are also not of any assistance to the appellants as the facts
of these two cases do not have any similarity to the facts of the
present case. Thus, the contention of counsel for the appellants in
this regard is equally devoid of any merit.
331. This brings me to the next contention of the counsel for the
appellants that during the recording of the statements of the
appellants under Section 313 Cr.P.C., relevant evidence relied upon
by the prosecution was not put to the appellants.
332. Grievance raised by the counsels for the appellants is that
none of these witnesses were questioned with regard to the removal
of the number plate and why and how water was coming out of the
house or the floor under the car was wet. Counsels for the
appellants placed reliance on the judgment of the Apex Court
reported as Sharad Birdichand Sharda Vs. State of
Maharashtra,AIR 1984 SC 1622 and judgment of the Bombay
High Court reported as Ashok Sadashiv Astikar Vs. State of
Maharashtra,1989 (1) Crimes 642.
333. There cannot be any dispute to the legal position settled by
the Apex Court in a catena of judgments including these two
judgments that any circumstance in respect of which an accused
was not examined under Section 313 Cr.P.C., cannot be used against
him. The precise question arising from the fact of the present case
is to what extent appellants can take advantage of this position.
Undoubtedly, the direct question with regard to the removal of the
number plate was not put to any of the appellants, although
indirectly question no. 23 was put and in the charge also no such
accusation was made against the appellants, and keeping these
facts in view, the trial court also did not lay much importance to the
said fact of removal of number plate by the appellants so as to hold
the appellants guilty. In any case, the said circumstance is clearly
visible to the naked eyes after viewing the video of the said
bungalow where the car was parked and the same cannot be totally
glossed over as one of the circumstances to prove destruction of
evidence by the appellants. As regards the contention of the counsel
for the appellants that no questions were put to these appellants
with regard to how floor under the car was wet or the water was
coming out of the bungalow, I find that question no.
15,16,24,25,34,35 and 68 put to these appellants demolish the said
argument. It would be appropriate to reproduce the same as under:
―Ques.15. It is also in evidence against you that PW13 Inspector Jagdish Pandy on
reaching the main entrance-gate found that the water was coming out from the Kothi
beneath the gate and the gate was closed which arose suspicion in his mind. What
have you to say?
Ans. I do not know.
Ques.16. It is also in evidence against you that the water which was coming out
from the gate through the Nali was, in fact, the same water which was being used for
washing/cleaning the BMW Car which was found parked on the driveway of the Kothi in
a damaged condition. What have you to say?
Ans.16. I do not know.
Ques.24.It is in evidence against you that BMW car was found at the house of
Siddharth Gupta at 50, Golf Links, and you, Bhola Nath and Shyam Singh were noticed
washing the BMW Car. What have you to say?
Ans.24. It is incorrect. It is a false allegation. I was woken up by Gaurav Karan
at about 9.30 A.M. and when I came down to the Ground Floor there was no BMW car
parked at my residence.
Ques.25. It is in evidence against you that at 50 Golf Links you, accused Shyam
Singh Rana and accused Bhola Nath, tried to clean/wash the car with a view to destroy
the evidence available on the BMW Car. What have to say?
Ans.25. It is incorrect. I was sleeping at that time and was woken up by Shri Gaurav
Karan at about 9.30 A.M. and when I came down to the Ground Floor I did not see any
BMW car at my residence and nor did I wash any car.
Ques.34. It is in evidence against you that the entrance iron gate of that H.NO.
50, was closed. On inquiry, it was found later on that it belongs to you. Insp. Jagdish
Pandey PW13 peeped from the space from one side of iron gate and saw one black car
parked there. Bonnet of that car was damaged and its lights were broken. Before
peeping inside, he noticed that water was coming out from inside the house. He then
knocked at the gate but it was not opened by anyone from inside. When he peeped
inside the house, he had also seen that three persons were washing that blacked BMW
Car. When the gate was not opened he gave a message to the SHO, Lodi Colony and
then SHO PW55 and S.I. Kailash Chand PW58 also reached there. What have you to
say?
Ans.34. It is incorrect.
Ques.35. It is in evidence against you that thereafter the gate of the house NO.
50, Golf Links was got opened. The names of the persons washing the car were
revealed as accused Rajiv Gupta, accused Shyam Singh and accused Bhola Nath.
What have you to say?
Ans.35. It is incorrect. I was sleeping at that time and was woken up by Shri Gaurav
Karan at about 9.30 A.M. as stated earlier.
Ques.68. It is in evidence against you that PW29 Nagesh Kumar Wadhera,
Finger Print Expert, lifted the chance finger prints from the BMW Car on 10.1.99 at the
request of the Police and submitted the report Exbt.PW29/A. At the time of lifting of the
chance prints, the BMW car was sent and he had to wait for the car to dry up. What
have you to say?
Ans.68. I do not know.‖
334. The contention that the video was not put to the accused
persons is falsified from the question no. 33 put to the accused under
Section 313 Cr.P.C. The same is reproduced as under:
―Ques.33. It is in evidence against you that on 10.1.99 PW 59 Const. Ram
Avtar, photographer took the photographs of the scene of occurrence from different
angles and he also prepared the video film from the scene of occurrence to the place of
50, Golf Links. The photographs are Exht. PW59/1 to 18 and the video recording is
Exht. PW59/19. What have you to say?
Ans. I do not know.‖
335. In view of the foregoing, I am of the view that the evidence on
which the prosecution has placed reliance was broadly put to the
accused persons and that they cannot complain of being kept in the
dark with regard to any incriminating evidence relied upon by the
prosecution and believed by the trial judge. Therefore, there is no
merit in the contentions raised by the counsels for the appellants.
336. Another argument advanced by the counsels for the
appellants was that the prosecution in the present case has
unnecessarily intermeddled with the process of the investigation,
although it is only the duty of the senior police officers to exercise
such powers to supervise the investigation and to make suggestions
if so required. Counsel thus urged that supplementary statements
recorded by the police in the present case on the suggestion of the
prosecution branch are in violation of Section 36 of Cr.P.C. and
amounts to interference in the powers to be exercisable by the police
alone. In support of his argument, counsel for the appellants placed
reliance on the judgment of the Apex Court reported as R. Sarala
Vs. T.S. Velu, AIR 2000 SC 1731. The relevant para of the said
judgment is referred as under:
"2. Investigation and prosecution are two different facets in the administration
of criminal justice. The role of Public Prosecutor is inside the court, whereas
investigation is outside the court. Normally the role of Public Prosecutor commences
after investigating agency presents the case in the court on culmination of investigation.
Its exception is that Public Prosecutor may have to deal with bail applications moved by
the parties concerned at any stage. Involving the Public Prosecutor in investigation is un
judicious as well as pernicious in law. At any rate no investigating agency can be
compelled to seek opinion of a Public Prosecutor under the orders of court. Here is a
case wherein the investigation officer concerned is directed by the High Court to take
back the case from the court whereat it was laid by him after completing the
investigation and he is further directed to consult the Public Prosecutor and submit a
fresh charge-sheet in tune with the opinion of the Public Prosecutor. In such a course
permissible in law?"
337. The said observations made by the Apex Court were peculiar
to the facts of the said case. In the said case despite the police
having filed the challan under section 304 and 498A IPC against the
accused persons, the High Court of Madras exercising powers under
Section 482 Cr.P.C., on the petition of the accused persons gave
directions for placing the papers before the public prosecutor to
give an opinion in the matter and thereafter to file amended charge
sheet in the court. In the backdrop of the said facts, the court made
the said observations. Even otherwise, there cannot be any quarrel
with the said legal position that the role of public prosecutor
commences after investigating agency present the case in the court
on culmination of the investigation and the police while discharging
their duties under Section 156 are not to be guided by the public
prosecutors to guide the course of investigation. The factual
scenario of the present case is entirely different as the
supplementary statements were taken by the police not on the
advice of the public prosecutor but by the erstwhile department of
prosecution. It is a trite law that before filing of the challan under
Section 173 Cr.P.C. or the supplementary charge sheet under
Section 173(8) of Cr.P.C., the investigation remains within the realm
and domain of the police and they are well within their rights to seek
any opinion of the experts or of any agency before the presentation
of challan so as to build a proper and foolproof case against the
culprits of the crime. There is nothing wrong if the police takes any
legal advice or any other advice on administrative side to see that no
lacuna is left in the challan to be filed under Section 173 Cr.P.C.
Essentially, there is a difference between the prosecution
department discharging their duties on the administrative side and
legal duties after the presentation of the challan. It is not the case of
the appellants that after filing of the challan the services of the
public prosecutor were taken to seek their advice or opinion. Thus, it
cannot be said that supplementary statements were recorded later
on in order to inculpate the appellants in a false case. The decision
in Deepa Bajwa‟s case (Supra) is of no assistance to the counsel
for the appellants as the same was on different facts as therein, the
issue was whether it was in the knowledge of the accused as to
which caste the complainant belonged to but in the instant case
police had the knowledge of washing of the car as it is mentioned in
application for police remand that the car was being washed. Thus,
there is no merit in the said contention of the counsel for the
appellants.
338. The next contention of the counsels for the appellants is that
the learned trial court has committed error by perusing the police
diaries and case diaries without giving an access of the same to the
defence. This argument of the counsel for the appellants is totally
misplaced as the learned trial court has not used the police and case
diary as a piece of evidence to prove guilt of the present appellants.
The case diaries were examined by the learned trial judge to find
out the reasons behind the murky investigation. The judgment of
the Kerala High Court in Ammini‟s case (Supra) is of no help to
the counsel for the appellants as the same clearly permits the trial
court to use the case diaries to ascertain the time on which the
investigation began and closed on which day, the places visited by
the officers and the circumstances ascertained through investigation.
Relevant para 57 of the same is referred as under:
―57. The Sessions Judge adopted another method to scrutinise the confession. He
made a meticulous comparison of Ext. P 40 with the statement of the fourth accused
recorded by the police during investigation which is incorporated in the Case Diary file.
The Sessions Judge traced out one or two minor discrepancies and blew them up out of
proportion and observed that they are "significant omissions which in my view are of
some material consequence". One such discrepancy is that the accused mentioned 9-6-
1980 as the date of visiting Merly's house, whereas the date 10-6-1980 is shown in the
statement of the police. Another omission is that he mentioned the name of Chinnappan
(P.W. 27) in his statement to the police whereas he did not mention that name in Ext. P
40. (But it is Clear that he referred to P.W. 27 in that statement). The method adopted
by the Sessions Judge is one forbidden by law. Section 162 of the Code imposes the
inhibition that no statement made by a person to the investigating officer during
investigation shall be used for any purpose except as provided in that Section. But the
Sessions Judge appeared to be under the impression that he can do so by virtue of
Section 172(2) of the Code. That sub-section reads as follows :
"Any Criminal Court may send for the police diaries of a case under inquiry or trial in
such Court, and may use such diaries, not as evidence in the case, but to aid it in such
inquiry or trial".
Sub-section (i) enjoins on the police officer making the investigation to enter his
proceedings in the investigation day by day, in a diary "setting forth the time at which
the information reached him, the time at which he began and closed his investigation,
the place or places visited by him and a statement of the circumstances ascertained
through his investigation". The diary mentioned in Section 172(1) and the statements
recorded under Section 161(3) of the Code are obviously different. Statements recorded
under Section 161(3) are cover ed by the sweep of inhibition contained in Section 162
of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort
to Section 172(2) of the Code. The two are different records, though the statements
recorded under Section 161(3) and the diary envisaged in Section 172(1) may together
be incorporated in the same file which police call "Case Diary File", for the sake of
convenience. That apart, Section 172(2) itself embodies an inhibition that the diary
envisaged in that section is not to be used as evidence in the case. The only use of the
diary is "to aid" the Court in the trial, to ascertain the time at which the investigation was
begun and closed on each day, the places visited by the officer, and the circumstances
ascertained through investigation. It is not a substitute for evidence in the case for the
purpose of making a comparison with the testimonies of witnesses or judicial dying
declarations or judicial confession. The Sessions Judge by adopting the above method
had committed an illegality.‖
339. On the same lines the Apex Court in Sidharath Vs. State of
Bihar,AIR 2005 SC 4352 has approved such power of the court
calling for case diaries to find out anything happened during the
investigation of the crime. Relevant para 26 of the said judgment is
reproduced as under.
―26. Lastly, we may point out that in the present case, we have noticed
that the entire case diary maintained by the police was made available to the accused.
Under Section 172 of the Criminal Procedure Code, every police officer making an
investigation has to record his proceedings in a diary setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him and a statement of the circumstances ascertained
through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that
neither the accused nor his agents shall be entitled to call for such diaries nor shall he
or they be entitled to see them merely because they are referred to by the Court, but if
they are used by the police officer who made them to refresh his memory, or if the Court
uses them for the purpose of contradicting such police officer, the provisions of Section
161 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be
compiled with. The Court is empowered to call for such diaries not to use it as evidence
but to use it as aid to find out anything that happened during the investigation of the
crime. These provisions have been incorporated in the Code of Criminal Procedure to
achieve certain specific objectives. The police officer who is conducting the
investigation may come across series of information which cannot be divulged to the
accused. He is bound to record such facts in the case diary. But if the entire case diary
is made available to the accused, it may cause serious prejudice to others and even
affect the safety and security of those who may have given statements to the police.
The confidentiality is always kept in the matter of criminal investigation and it is not
desirable to make available the entire case diary to the accused. In the instant case, we
have noticed that the entire case diary was given to the accused and the investigating
officer was extensively cross-examined on many facts which were not very much
relevant for the purpose of the case. The learned Sessions Judge should have been
Page 965 careful in seeing that the trial of the case was conducted in accordance with
the provisions of the Cr. P.C.‖
340. Similar view was taken in Mukund Lal Vs. UOI & Anr.
reported in 1989 (Supp(1) SCC 622 relied upon by counsel for the
respondent State.
341. Based on this legal position, the argument raised by the
counsel for the appellants with regard to the case diaries also
merits rejection.
342. Counsels for the appellants also argued that defence witnesses
were not given same treatment as given by the trial court to the
prosecution witnesses. As per counsel for the appellants even
evidences of DW6, DW8 and DW9 were not dealt with by the trial
court, thus causing prejudice to their case. In support of their
arguments, counsels placed reliance on the judgment of the Apex
Court in AIR 1981 SC 911 Dudh Nath Pandey Vs. State of U.P.,
which law is not disputed.
343. Indisputably, the defence witnesses are to be given the same
treatment as prosecution witnesses by the trial court, yet at the
same time, it is for the trial court to form an opinion about the
creditworthiness and reliability of the witnesses produced by the
defence as well as by the prosecution. The trial court in the
impugned judgment has clearly held that the defence witnesses
namely, Gaurav Karan, Karan Singh and Sudhir Singh being
interested witnesses and due to the false testimony of DW-6 and
DW-9, their evidence was considered not worthy of any credence.
No doubt, there could have been more elaborate discussion on the
depositions of the said defence witnesses, but even in the absence of
the same, it cannot be said that the trial court has not taken into
consideration the evidence of the said defence witnesses, before
giving the final verdict. Perusal of testimonies of DW6 Ms.
Himalyani Gupta, DW9 Shri Sudhir Sareen and statement of Rajiv
Gupta under Section 313 Cr.P.C., clearly show contradictions as to
on whose call Himalyani went to the police station as Rajiv Gupta in
his statement said that he called up Himalyani Gupta, whereas
Sudhir Sareen, DW9 also stated that he called up Himalyani Gupta.
Since there are apparent contradictions in the testimonies of DW6,
DW9 and Rajiv Gupta, thus the trial court rightly rejected the
evidence of the said defence witnesses.
344. It was also argued that Rajiv Gupta could have no motive to
destroy the evidence as his son stood discharged. Reliance in this
regard was placed on the decision in Sukharam Vs. State of
M.P.-1992 Cr.LJ 861(Supra), wherein it was held that where the
offence is proved by way of circumstantial evidence, motive needs to
be proved, I feel that this contention of the counsel for the appellant
is also devoid of merit. It is no more res integra that motive is
essentially to be proved where there is no sufficient circumstantial
evidence to conclusively establish guilt of the accused persons but
where there is sufficient circumstantial evidence completing the
chain, motive need not be proved. In this regard Hon‟ble Apex Court
in Uday Kumar Vs. State of Karnataka-(1998)7 SCC 478
observed as under:
―16. It was then contended on behalf of the appellant that Suresh being the son of his
sister (appellant's) and the relations between them being cordial and affectionate, there
was no reason for the appellant to commit the present crime. We are not impressed by
this submission because of our aforesaid conclusions about the guilt of the appellant. It
might be, as stated earlier, the appellant appears to be very much obsessed with
superstitious beliefs and it is because of that he did this crime. However, this
observation is not germane to the finding of guilt against the appellant. There is no
suggestion to any of these witnesses that any outsider had entered the premises and
then committed the crime. In the absence of such material on record, we do not accept
this contention. It is true that in a case of circumstantial evidence, motive is one of the
circumstances which assumes importance but it cannot be said that in the absence
thereof, other proved circumstances although complete the chain would be of no
consequence. It was then contended on behalf of the appellant that he (appellant) was
coaching badminton (shuttle) to a number of young boys and girls. He was also
distributing toffees, sweets etc. to the boys and girls. He was known for his affectionate
and loveable conduct. If this was the image of the appellant, it was urged that it would
be unbelievable that he would commit the crime in question. Assuming that the
appellant possessed these good qualities but that would not make the prosecution
evidence unbelievable which is otherwise found unimpeachable.‖
345. In any case, the argument is such that it amounts to putting
the cart before the horse. The mere fact that son of Rajiv Gupta was
subsequently discharged cannot be a ground to pick holes in the
investigation so as to allege false implication.
346. As discussed above, there is sufficient circumstantial evidence
against Mr. Rajiv Gupta and thus, motive need not be proved.
Hence, this contention of counsel also merits rejection.
347. This now brings me to deal with the last submission of the
counsel for the appellants that Part-III of Section 201 would be
attracted in the present case and not Part-II of Section 210. The
crux of the argument of the counsel is that the punishment
envisaged in Part-II of Section 304 in comparison to Part-I of
Section 304 is „disjunctive‟ and not „conjunctive‟, i.e. the offence
punishable under Section 304 (II) can extend to 10 years or with
fine, while under Section 304-I, it can extend to 10 years along with
the liability to pay fine as well. Counsel thus urged that because of
Section 304-II being „disjunctive‟ therefore, Part-III of Section 201
IPC would get attracted, which deals with the commission of offence
punishable with imprisonment for any term not exceeding 10 years.
The said argument of the counsels for the appellants is totally
misplaced looking into the scheme of Section 201 IPC. Under the
said scheme, the offence punishable under this Section is no more
severe than the principal offence committed by the offender, the
punishment thus, accordingly varies, keeping in view the
punishment for which principal offence has been categorized in
the said section. The first category pertains to capital offence where
the accused knows or believes to have committed an offence which is
punishable with death. The second category deals with a case of
punishment with imprisonment for life or with imprisonment which
may extend to 10 years, while the third and last category relates to
offences punishable with not exceeding 10 years of imprisonment.
The legislative intent is quite clear and explicit and cannot be given
different interpretation as was sought to be placed by the counsel
for the appellants. Clearly Section 304 (II)IPC would attract the
IInd Part of Section 201 IPC and for less than 10 years
imprisonment Part III of Section 201 will get attracted. The
judgment of the Apex Court cited by the counsel for the appellants in
the case of State of Maharashtra Vs. Jugminder Lal-AIR 1966
SC 940 is not applicable to the facts of the present case, where the
issue relating to expression „shall be punishable‟ used in Section 3
(1) of Suppression of Immoral Traffic in Women & Girls Act 1956
was under consideration. The Apex Court held that the expression
„shall be punishable with imprisonment and also with fine‟
manifests that the court is bound to award sentence consisting both
of „imprisonment and fine‟ and does not give any discretion to award
either of them. The situation of the said case is not applicable to the
facts of the present case, in view of the scheme envisaged under
Section 201 IPC.
348. Considering the foregoing discussion, it is manifest that the
prosecution has successfully discharged its burden.
Conclusion
349. In view of the above discussion, the appellants have been
rightly convicted under S. 201/34 IPC.
Sentence
Sanjeev Nanda
350. Time now to deal with the issue of sentence to be awarded to
the appellant, Sanjiv Nanda, whose conviction has been converted by
this court from Section 304 II Indian Penal Code, 1860 to one under
S. 304-A Indian Penal Code, 1860.
351. Criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability of
each kind of criminal conduct. It ordinarily allows some significant
discretion to the judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special facts of
each case.
352. In operating the sentencing system, law should adopt the
corrective machinery or the deterrence based on factual matrix and
undue sympathy to impose inadequate sentence would do more harm
to the justice delivery system and will undermine the public
confidence in the efficacy of law. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or committed, etc.
353. In Dalbir Singh v. State of Haryana, (2000) 5 SCC 82, the
Apex Court observed that while considering the quantum of
sentence to be imposed for the offence of causing death by rash or
negligent driving of automobiles, one of the prime considerations
should be deterrence and also observed as under:
When automobiles have become death traps any leniency shown to drivers who are
found guilty of rash driving would be at the risk of further escalation of road accidents.
All those who are manning the steering of automobiles, particularly professional drivers,
must be kept under constant reminders of their duty to adopt utmost care and also of
the consequences befalling them in cases of dereliction. One of the most effective ways
of keeping such drivers under mental vigil is to maintain a deterrent element in the
sentencing sphere. Any latitude shown to them in that sphere would tempt them to
make driving frivolous and a frolic.
354. Similar view was taken in State of Karnataka v. Sharanappa
Basanagouda Aregoudar,(2002) 3 SCC 738, the relevant
observations are reproduced below:
6. We are of the view that having regard to the serious nature of the accident, which
resulted in the death of four persons, the learned Single Judge should not have
interfered with the sentence imposed by the courts below. It may create and set an
unhealthy precedent and send wrong signals to the subordinate courts which have to
deal with several such accident cases. If the accused are found guilty of rash and
negligent driving, courts have to be on guard to ensure that they do not escape the
clutches of law very lightly. The sentence imposed by the courts should have deterrent
effect on potential wrongdoers and it should commensurate with the seriousness of the
offence. Of course, the courts are given discretion in the matter of sentence to take
stock of the wide and varying range of facts that might be relevant for fixing the
quantum of sentence, but the discretion shall be exercised with due regard to larger
interest of the society and it is needless to add that passing of sentence on the offender
is probably the most public face of the criminal justice system.
355. Keeping in mind the above, I would now delve on the
contentions of the parties regarding the sentence to be awarded.
356. Mr. Ram Jethmalani, Senior Advocate for the appellant
vehemently submitted that the appellant was a young boy of 19 years
of age at the time of commission of offence and already his entire
career on all fronts i.e. educational, matrimonial and professional
stands ruined due to loss of about precious 10 years in facing ordeal
of protracted trial and imprisonment for some period. Counsel
further contended that the appellant had already felt quite
repentant and remorseful for the six deaths and causing injury to
one victim for which he paid compensation of Rs.10 lacs each to the
families of death victims and Rs. 5 lacs to the injured victim. Counsel
also urged that his conduct in the jail and during the trial remained
exemplary. Counsel also submitted that the said offence committed
by the appellant is his first offence and that too was just a mishap
that happened in his life. Counsel also pleaded that the appellant
belongs to a very respectable business family and is also the grand
son of national hero late Admiral S.M. Nanda. The counsel also drew
attention of this court to the fact that while being in custody the
appellant took part in various social activities and worked with Mr.
Arun Kapoor and Ms. Rekha Puri of Ritnjali, an NGO working for
upliftment and betterment of under trials and convicts. In the
affidavits filed by Mr. Arun Kapoor and Ms. Rekha Puri of Ritnjali,
they have stated that the appellant taught computers and English to
the inmates of Tihar Jail.
357. Opposing the reduction of sentence Mr. Pawan Sharma, APP
for the State submitted that the trial court has taken into
consideration all the aforesaid pleas before awarding the said
sentence. Counsel further submitted that the case in hand is not a
simple case of accident but is a case where the appellant had
deliberately killed six persons and some of these were even
entangled beneath his car, therefore, no leniency can be shown to
the appellant. Counsel further submitted that the said accident in
question has brought darkness in the families of six persons who
became victims to the accident caused by the appellant, who
forgetting all norms, was driving the BMW car in a highly drunken
state and at an excessive high speed. Counsel further submitted that
the said compensation of Rs. 65 lacs was paid by the appellant at
the time of grant of bail, the appellant should not seek any reduction
of sentence just because he has paid the said amount to the
families of the victims or to the injured. Counsel also submitted that
the appellant through his power of money had adopted dubious
methods to win over the witnesses, police and the prosecutors and
for all such acts of the appellant he deserves even more severe
punishment than granted by the trial court.
358. Having heard learned counsels for the parties, I am of the view
that the appellant may have undergone trauma and agony and no
doubt has faced trial for about 9 years which must have affected his
life education wise, career wise and marriage wise but it is all on
account of his own doing. There is an old adage which says that „as
you sow, so shall you reap‟. Yes, he paid Rs. 65 Lacs to the family of
victims of the accident but as contended by public prosecutor, he did
so more with a view to secure bail than out of compassion for the
victims. If he was really so compassionate towards the victims, why
did he take to his heels after causing the accident, knowing fully well
the enormity of the casualties. One also cannot lose sight of the fact
that every possible effort was made to destroy the evidence, to win
over the witnesses, and to influence the prosecution and the police.
The unholy nexus between the defence and the prosecution as shown
by NDTV needs no reminder. A section of our society who wields
money and muscle power labours under a mistaken belief that by use
of their such power they can escape from the clutches of law but
what they forget is the maxim „Be howsoever high you are, the law is
above you‟. Let us also not lose sight of the plight of those families
who have lost their dear ones and their lives have been plunged into
darkness by a singular act of this young man who for his own
enjoyment was stalking the roads of Delhi as a merchant of death. I,
therefore, feel that the accused deserves no leniency in the matter of
sentence and the mitigating circumstances, which Mr. Jethmalani
has pointed out clearly, outweigh the devastating effect of the
accident. Hence, I sentence accused Sanjiv Nanda to rigorous
imprisonment of 2 years under Section 304-A IPC.
Rajiv Gupta, Shyam Singh Rana and Bhola Nath
359. With regard to the accused Rajiv Gupta, Shyam Singh Rana
and Bhola Nath in criminal appeal Nos. 767/2008 and 871/2008
against whom conviction has been upheld by this Court for
committing offence under Section 201/34 IPC, the provision which
will now be attracted would be part III of Section 201 IPC on account
of the fact that the offence against Sanjeev Nanda, the main accused
has been converted from Section 304 Part II IPC to Section 304 A
IPC.
360. Mr. Dinesh Mathur, Sr. Advocate appearing for Rajiv Gupta
and Mr. S.S. Gandhi, Sr. Advocate for Shyam Singh Rana & Bhola
Nath, prayed for leniency in favour of these accused persons on the
ground that in the event of this Court holding these persons guilty of
the said offence under Section 201 IPC a lenient view may be taken
against them as all the offenders are the first offenders. Counsels
also claimed that the appellant Rajiv Gupta is a leading business man
and being a respectable person has deep roots in the society.
361. In so far offence under Section 201 IPC is concerned, this
Court has already taken a view that commission of offence under
Section 201 IPC has to be viewed very seriously as the persons found
guilty of this offence create bottlenecks and hindrances in the way of
prosecution to apprehend the culprit of the main crime and,
therefore, no leniency can be shown to such offenders.
362. However, since the conviction against the accused Sanjiv
Nanda has been converted from Section 304 Part II to Section 304 A
IPC the natural fall out would now be that the appellants will be
guilty of an offence under Section 201 Part III of IPC. The Lower
Court has sentenced Rajiv Gupta to undergo rigorous imprisonment
for a period of one year along with imposition of fine of Rs. 10,000/-
while Shyam Singh Rana & Bhola Nath were sentenced to undergo
rigorous imprisonment for six months besides imposition of fine of
Rs. 100/- each.
363. Having heard the counsels for the appellants I am of the view
that as in the case of the main accused Sanjeev Nanda I have
declined to invoke the Probation of Offenders Act, I am not inclined
to do so in their case as well. Considering the enormity of the main
offence committed by Sanjeev Nanda resulting in the death of six
persons and causing injury to one person and having regard to the
complicity of these accused in destroying evidence so as to mislead
and derail the investigation in screening the main offender, I feel
they deserve no leniency, hence I sentence accused Rajiv Gupta to
undergo rigorous imprisonment for six months and to Shyam Singh
Rana and Bhola Nath to undergo rigorous imprisonment for three
months each.
364. In view of the findings given by this Court, with regard to the
conduct of Sunil Kulkarni holding that he has deliberately and
intentionally given false evidence, I feel that it is expedient in the
interest of justice where proceedings under Section 340 Cr.P.C.
should be initiated. Accordingly, I direct the Registrar General of this
Court to file a complaint against him under Section 340 Cr.P.C.
before the Court of competent jurisdiction.
Safety aspects
365. Before concluding, I would like to discuss the apathy of the
government towards public safety. As the Indian economy is
booming, the changes in the lifestyle of people are so visible. Even as
darkness falls on the capital, the streets are full of cars, motorcycles,
scooters, trucks, tankers and state transport buses. There are no
stop signs, no speed limits and as the heavy vehicles go zig zag on
the roads, it is hard to ignore the disturbing reality - many of
commercial and private drivers behind the wheels are drunk and no
one checks them.
366. A recent survey in Delhi has found that drivers of more than 45
per cent of vehicles involved in accidents consume alcohol and 50
per cent of the road accidents happen because of drunken driving.
367. Visibly, changed lifestyles and lack of parental & societal
control over the youngsters results in indulgence into drinking habits
and often these youngsters venture on roads in inebriated conditions
risking the life of the pedestrians, companions and fellow drivers
along with their own lives.
368. Each year, 1.2 million fatal road accidents are reported
worldwide. India's road mishaps account for 10 percent of the toll.
According to the Department of Road Transport and Highway,
Government of India, India holds the dubious distinction of
registering the highest number of road accidents in the world.
According to the experts at the National Transportation Planning and
Research Centre (NTPRC), the number of road accidents in India is
three times higher than that prevailing in developed countries. The
number of accidents for 1000 vehicles in India is as high as 35 while
the figure ranges from 4 to 10 in developed countries. Rash driving
and road accidents and consequent deaths have made India the land
of highest deaths in road accidents. India with 1.3 lakhs accidents
has pushed China back to second position. This is despite India
having less than 1% of the world's vehicle population. According to
the survey most of the cases are of hit and run. In case of speed of
less than 30 kmph there are chances of survival of pedestrians, but
in case of speed of more than 50 kmph death is almost certain.
369. According to a recent article in English daily the national
capital tops in road accidents in the metros, with pedestrians
accounting for almost half the fatalities in Delhi as road conditions
are most unsafe for them. According to the Centre for Science and
Environment (CSE) report released on 12/6/2009, the total number
of accidents in Delhi is almost 2.5 times higher than that of Kolkata,
and 2.1 times higher than Chennai. Pedestrians in Delhi, where a
third of working people walk to work, accounts for 47 per cent of
fatalities in these accidents.
370. Due to rise in vehicular traffic, both motorized and non-
motorized, no perceptible improvement in the quality and the size of
the roads, the pedestrians who constitute almost half of the total
ratio of accidents are the soft targets. The said CSE report says, "The
walkers remain invisible in the maze of motorized traffic that chokes
our roads. They walk in extremely unsafe and hostile conditions, in
constant conflict with motorized traffic and are easy victims to
crashes and accidents".
371. Accidents not only result in loss of precious lives of the citizens
but also affect the entire economy of the country. According to the
Planning Commission, the social cost of road accidents in India
stands at Rs 55,000 crore annually. This constitutes 3% of the
country‟s GDP.
372. The aforesaid statistics clearly show that India has not taken
road safety very seriously so far and does not have a comprehensive
policy on road safety. Public safety is the last in the list of priority of
the govt. Slayer BRT corridors, Killer Blueline buses and slaughterer
Delhi-Gurgaon Expressway and very recently unfortunately Delhi
Metro Rail Corporation of which every citizen is most proud of has
joined the list of State apathy towards the citizens.
373. Considering the above data, it is manifest that public safety is
an area of great concern to India, which has recorded one of the
highest accident rates in the world. Incident management needs
improvement, both on highways and within cities, towns and villages.
All Indian cities are already struggling with traffic flow problems due
to the various types of vehicles on the road, the lack of need-based
road and traffic design and engineering, and the unchecked growth
of private vehicles and with the entry of the new cheap car „Nano‟ on
the roads of India very soon, the situation is likely to worsen.
The absence of intermodal planning is leading to poor connectivity
between various modes of transport and poor passenger/customer
satisfaction. Most of the times after a mishappening due to poor
strategy of the government on public safety, instead of taking
responsibility and coming up with stricter laws and better public
safety planning, the government shirks its responsibility by
suggesting the citizens and especially, pedestrians that they should
be more careful on the road.
374. Today, India is making a mark in the world map due to myriad
reasons but the internal situation of the country when it comes to
public safety is gloomy. It is high time that government should
become sensitive to the plight of the citizens and come up with
stringent laws and better planning to curb drunken driving and such
other menaces in the society which are reasons for fear in the mind
of the pedestrians, each day, when they move out of their homes,
whether they would safely reach home.
In this regard, following guidelines are recommended:-
1. Proper and strict implementation of the excise laws for
minimum age for consumption of liquor;
2. Proper lights on the streets and better maintenance of roads so
as to reduce occurrence of any kind of accidents;
3. Improvement in the methods of investigation so as to make it
more scientific.
4. To introduce and implement the system of Native Citizen cards
as being talked about, maintain complete data of citizens as the
country which will facilitate checking of persons and their
records.
5. Installation of CCTV cameras on major roads.
6. Random checking by the police to prevent the menace of
drunken driving specially near pubs, five star hostels, discos
etc.
375. The aforesaid suggestions are illustrative but not exhaustive.
376. Before finally parting, I feel that this case has raised questions
serious enough to invite serious consideration about the way our
society and moral values are taking a beating. An accident which was
the result of a rash and negligent act was turned into a sinister game
with ulterior design to defeat the justice delivery system. Not only we
saw a vily witness in Sunil Kulkarni but also found that the
prosecution was no less slippery. It is time to think and ponder how
fast and to what extent we can take corrective measures to ensure
that the justice delivery system does not become a laughing stock
and is not reduced to a mockery by persons like Sunil Kulkarni and
police officials of doubtful integrity. It also calls for introspection on
the part of legal fraternity so as to ensure that the fair name of legal
profession does not in any way come into disrepute.
377. One other aspect which needs to be deliberated is the role of
media especially in criminal trials. No doubt the media has an
important role in disseminating information, creating public opinion
in matters which are of vital concern to the society, exposing
misdeeds of high and mighty but it is being exceedingly felt that
while doing so in some cases particularly relating to crime and
punishment, the media is going over board. Many a times, an
accused who is yet to be tried and convicted, is pronounced guilty by
the media by referring to such evidence which is not even admissible
in evidence, such as, confessional statements made before police
officers. The various channels of electronic media in order to outdo
each other repeats an incident ad nauseam little realising that it has
the effect of generating public opinion against the culprit even
before he is found guilty. Let not the media forget that judges are
also humans and like any other human sometimes even they can err
because of the hype created in relation to a particular incident. Like
all other wings of our democratic set up such as executive, judiciary
and legislature who are supposed to remain within their bounds,
Media, which is the fourth estate, must also not cross the „Laxman
Rekha‟. If it abides by this principle, it will be doing more good to the
society and to the administration of justice.
378. In view of the above discussion, the appeals stand disposed of.
July 2009 KAILASH GAMBHIR, J.
MG/PKV/RKR
