- Dr. Ajay Nathani

State versus Salman Salim Khan versus State

The title of the article seems odd but there is a purpose to keep this title. This article is about verdict of the trial court in the case of Salman Khan and verdict of the High Court in appeal against conviction hence the title. My purpose to write the article is to analyse these verdicts not from the angle of legal literate but from the angle of prudent man referred in the Evidence Act and also speak about the perception of common men about the outcome of verdicts. It was the case of the prosecution that on 27th September 2002 the accused accompanied with his Bodyguard Mr Patil(provided by the State for his security) and his friend Kamal Khan for a night out. After consuming alcohol and eating at fue eateries in the wee hours of 28th September 2002 they started their return journey. The accused was driving the car. He was driving the car rashly and in high speed.He was cautioned by his Bodyguard Mr Patil who was sitting beside him on the front seat. When the accused was negotiating turn at the junction of Saint Andrews Road he was unable to control the vehicle and drew the vehicle on the pavement and dashed to the shutter of an auto shop put the shutters of a shop. Few persons sleeping on the pavement were crushed under the car and were injured. One of the injured succumbed to his injuries. The mob collected there became furious and the accused and his friend flee away from the place of incident. Bodyguard Mr. Ravindra Patil tried to pacify the mob and also lodged report of the incident at police Station. The accused was arrested in the morning of 28th of September 2002. On the same day his blood samples were collected but the blood samples were sent to chemical analyser on 30th of September 2002. Till then the samples were kept in the Chamber of police inspector investigating the offence. The chemical analyser reported that the blood sample of the accused contained 0.062%w/v ethyl alcohol. Initially the charge-sheet was filed for trial before the court of metropolitan magistrate. After addition of charge u/s 304 of the Indian Penal Code the case was committed to the court of sessions. The court of sessions framed charge for the offences punishable under Sections 304 Part II, 308, 279, 337, 338, 427 of IPC and under Section 134(a) & (b) read with Section 187 read with Sections 25 / 305 ,181 and 185 of Motor Vehicle Act, 1988 and under Section 66(i)(b) of the Bombay Prohibition Act. Petition under section 482 of CrPC was filed by the accused before the High Court for quashing charges. Hon’ble High Court allowed the petition to the extent of quashing charge u/s 304 IPC. The said order was challenged before the Apex Court and hon.Apex Court while setting aside the order of High Court directed to decide the question of framing charge under section 304 II at the appropriate stage. Hon. Apex Court in State Of vs Salman Salim Khan & Anr appeal (cri) coronavirus1508/2003 observed, "We are of the opinion that though it is open to a High Court entertaining a petition under section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed,

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- Dr. Ajay Nathani

would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the apex Court most of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under section 304 Part II, IPC. Therefore, we think it appropriate that the findings in regard to the sufficiency or otherwise of the material to frame a charge punishable under section 304, Part II, IPC of both the courts below should be set aside and it should be left to be decided by the court trying the offence to alter or modify any such charge at an appropriate stage based on material produced by way of evidence. The next question which then requires our consideration is whether in view of our above finding, the charge framed by the Sessions Judge for an offence punishable under section 304 Part II, IPC be sustained or one under section 304A as has been done by the High Court, should be retained ? We have been informed that pursuant to the judgment of the High Court, the Metropolitan Magistrate, 12th Court, , , has already framed fresh charges under section 304A and other provisions mentioned hereinabove and the trial has commenced. Since any interference at this stage would not further the cause of justice and would lead only to delay the course of justice, we think it appropriate that the proceedings before the said Magistrate's Court should continue and the trial should proceed on the basis of the charges framed by it but we make it very clear that at any appropriate stage if the Magistrate comes to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under section 304A, he shall proceed to do so without in any manner being hindered or influenced by the observations or findings of the High Court in the impugned order or by the order of the Sessions Court which framed the charge punishable under section 304 Part II, IPC. Such decision of the Magistrate shall be purely based on the material brought in evidence at the trial. We make it clear that neither by sustaining the order of the High Court in remitting the trial to the court of Magistrate, nor by our observations in this judgment as to the acceptability or otherwise of the material now on record, we have expressed any opinion on the merits of the case. Whatever is observed by us in this judgment is solely for the purpose of disposal of this appeal.”

In the mean while the trial pending before the Metropolitan Magistrate for the offence under section 304 A of the Indian Penal Code and other supplemental offences continued and 17 witnesses were examined before the Magistrate. At this stage of trial application was filed by the prosecution requesting to add offence under section 304 of Indian Penal Code. Fallacy is that the Supreme Court was not made aware either by advocate representing State or by the advocate representing the accused as to in which port

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- Dr. Ajay Nathani court the trial is proceeding when the hearing was going on before the Honorable Supreme Court and no request to stay the trial was made. The order of Supreme Court reflects this aspect. The magistrate allowed the application and remanded the matter to the court of sessions. The court of sessions received the proceeding along with the evidence of 17 witnesses recorded by the Magistrate which included the evidence of constable Mr. Patil. Mr. Patil was examined before the magistrate in the year 2006. In the year 2013 when the trial was again initiated before the court of sessions fresh trial was initiated and all the witnesses examined before the magistrate were examined again. Mr. Ravindra Patil was not examined as he was no more. Evidence of Mr. Ravindra Patil recorded by the magistrate was placed before the court of sessions and request to admit it by exercising powers under Section 33 Indian Evidence Act was made to the Court. The sessions court relied on the evidence of Ravindra Patil recorded before the magistrate and relying on evidence and correlated evidence came to conclusion that the accused was driving the car at the time of incident while he was in drunken condition and was aware of consequences of driving in such condition. The consequences did happen when he drove the car on the pavement causing death of a person sleeping on the pavement. The was therefore held guilty of culpable homicide by causing death with knowledge that his act will result in death of victim.

State of Maharashtra VS Salman Khan

I do not desire & I will not analyse the Judgement of the High Court. However, it is pertinent to mention that First Appeal filed by the accused on his conviction in year 2015 was decided in same year. Though the pendency of the First Appeals in High Court as mentioned by Hon’ble Apex Court in the case of Kurshid Vs State of U.P. SLP Diary No.35524/19 is astonishing. As per the statistics given by the Apex Court 31266 Criminal appeals are pending before High Court out of which 8474 are pending for more than ten years, 838 for more than twenty years and 8 for more than thirty years. As per practice followed by the Bombay High Court first old appeals are taken up for hearing and fresh appeals are put in the que. The accused in this case was released on bail on the day of pronouncement of judgment without stepping in jail. He is young bachelor and son of rich parents. His career was not going to ruin with the tag of conviction as his success is not diminished by his conviction in a case of hunting wild animal of extinct species. So there were no plausible grounds in terms of understanding of a prudent man. Entertainment of his appeal against conviction on the day of conviction, granting him bail on same day and decision on the appeal in equal haste has created an impression on the mass that constitutionally all are equal but practically some are more equal.

Before referring to the judgment of the Hon’ble High Court let mention here that the sentencing strategy of the Trial Court is beyond comprehension. The accused was convicted for the offence punishable under Section 304 II of IPC and sentenced to suffer Rigorous Imprisonment for 5 years and to pay fine of Rs.25000. The maximum prescribed punishment for the offence is 10 years imprisonment of either description. In this case as held by the Sessions Judge accused drove a car while in drunken condition having knowledge that he may cause death of

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- Dr. Ajay Nathani somebody and did caused death. If this is the conclusion why trial court has given half of the punishment of imprisonment? The accused is young, strong, without any liability of family thus there were no reasons for reducing the punishment and not prescribing 10 years punishment. Similar is the case with punishment u/s 338 of IPC maximum punishment is of 2 years but 1 year punishment is given. All are aware that the accused is earning in crores, the person who died and suffered injuries were pavement dwellers. The principle of victimology to compensate victim either from the fine amount or imposing separate quantum of compensation ought to have been applied by Ld. Trial Court Judge but it was not done for unexplained reasons. For the budding judges I have to mention here that, when you come to conclusion that the accused has committed offence impose maximum punishment, unless there are mitigating circumstances to reduce punishment. If you are not doing so then the appellate court may think that you were in dilemma about your decision to convict.

Usually the statements in the judgment reflects the mindset of the Judge. In appeal the Judge has found fault in the judgment of Trial Court in all aspects. The mindset of which I was talking is reflected at the very beginning of the Judgment. In para no. 19 Ld. Judge mentioned following sentences about framing of charge by the Trial Court.

“The Sessions Court framed the charges against the appellant/accused for the offences punishable under Sections 304 Part II, 308, 279, 337, 338, 427 of IPC and under Section 134(a) & (b) read with Section 187 read with Sections 25 / 305 26 181 and 185 of M.V.Act, 1988. In fact the offence under Section 66(i)(b) of the Bombay Prohibition Act was also framed.”

Carrying alcohol in stomach definitely attracts ingredients of offence u/s. 66(1) (b) of the Bombay Prohibition Act. In the case of State of Maharashtra Vs Vijaysingh (1964) BLR 42 Hon’ble Bombay High Court convicted the accused u/s.66 (1) (b) for procuring liquor in his stomach which was detected in his blood. Again the budding Judges may keep this in mind that your mindset should not be reflected in initial paras of Judgment otherwise you will be branded as prejudiced and lacking in considering both sides impartially before reaching your conclusion.

The appellate court held that the evidence of Ravindra Patil recorded before Metropolitan Magistrate was wrongly read by the Ld. Trial Judge to derive a conclusion that the accused was drunk and was driving the vehicle at the time of accident. The irony is that the appellate court considered the evidence of Ravindra Patil in detail in para no. 143 to make out a point that Ravindra has not mentioned in FIR that the accused was drunk and was driving the car at speed of 90 to 100 kmph.

The appellate court gave immense importance to not examination of Kamal Khan, who was travelling in the car at the time of incident. Certainly, it was essential to examine him. However, beside Kamal Khan there were 2 more

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- Dr. Ajay Nathani witnesses who had seen accused getting down from the front portion of car but the appellate court brushed their evidence aside as unreliable.

In fact, Kamal Khan was the friend of the accused and was certainly going to support the accused and therefore, prosecution may not have examined him. This conclusion is very true as Ld. Judge of Appellate court mentioned in para no. 164 that the defence i.e. accused tendered the application to examine Kamal Khan as court witness.

The Trial Court didn’t rely on the evidence of defence witness, who deposed that he was driving the car and not the accused.

It seems from the Judgment that the defence that somebody else was driving car came at the end of trial and the defence was never suggested to the prosecution witness to whom it ought to have been suggested.

The appellate court also found theory of accident by bursting of tire acceptable though apart from RTO there is no evidence about the chemical examination of tyres & physical condition of car to establish that tyre burst before the vehicle dashed the concrete corner of pavement or burst was due to dash to concrete corner of pavement. Keeping the tyre of the car in proper condition is duty of the owner of the car and any deviation of duty certainly amounts to negligence. So even if we go along with conclusion of court that incidence is result of bursting of the tyre of the car the owner of the car becomes responsible for rash & negligent act causing death or injury denying him out & out acquittal.

More certainly the accused with the help of finest legal brains of the country, succeeded to drag the trial from 2002 to 2015 resulting in chaos & delay in trial. In the result prime witness was no more. When the trial started in trial court the other witnesses may have forgotten the facts & may not have been keen to depose the truth before the court. The accused thus has taken fullest advantage of delaying tactics. Fallacy is that such a person succeeds to convince the appellate court to keep aside its pending 40578 appeals and give priority to his appeal.

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