Salman Khan hit-and-run case: Salman Salim Khan vs The State Of Maharashtra

CASE BRIEF

Citations: 2015 SCC Online Bom 6096; 2016 Cri LJ (NOC 185) 70; (2016) 1 AIR Bom R (Cri) 343

Decided On: 10^th December 2015

Appellant: Salman Salim Khan

Respondent: The State of Maharashtra (Through Bandra Police Station)

Bench: Justice A.R. Joshi

Statutes Referred: Indian Penal Code, 1860; Code of Criminal Procedure, 1973; Evidence Act; Bombay Prohibition Act; Motor Vehicles Act, 1988

Charges: Section 304 Part II, IPC; Section 337, IPC; Section 338, IPC Section 3(1) of Motor Vehicles Act, 1988 punishable under section 181; Section 187 of Motor Vehicles Act, 1988, Section 185 of Motor Vehicles Act, 1988

Facts:

• On the night between 27.09.2002 and 28.09.2002, the accused/ appellant drove the motor Vehicle Toyota Land Cruiser.
• The accused, accompanied by this friend, Kamal Khan and his police bodyguard, Ravindra Patil was driving from his house at Galaxy Apartments to Rain Bar where the appellant and his friend went and his bodyguard remained outside.
• After consuming foods and drinks, the appellant and his friend left Rain Bar and visited hotel JW Marriot.
• From JW Marriot, the appellant along with Kamal Khan and bodyguard started coming back to appellant’s house via St. Andrews Road and Hill Road.
• The car was driven at a very high speed of about 90-100 k.m. per hour, consequently, the appellant lost control over the car and dashed the said car on the shutters of American Laundry situated at the junction.
• The said impact resulted in the death of one person Nurulla and injuries to four other persons who were sleeping on the platform in front of American Laundry.
• Due to the impact, loud noise and commotion followed. Many people gathered and saw the appellant coming out of the car.
• The appellant and his friend ran away from the spot and his bodyguard filed an FIR.
• Crane was called to lift the vehicle and place it aside so that the injured beneath the vehicle could be removed.
• Evidence was recorded before the Metropolitan Magistrate Court where the case was first tried, with the main charge being under section 304A of IPC.
• The case was committed to the Court of Sessions where the main charge was then of Section 304 Part II of IPC.
• The Sessions Court passed a detailed order on 5.12.2013 ordering fresh trial against the accused thereby not accepting the evidence of the earlier prosecution witnesses recorded before the Metropolitan Magistrate Court.
• The trail court convicted the appellant/accused for all the charges as mentioned.
• The present criminal appeal filed by the appellant/accused challenged the judgment and order of conviction passed by the Sessions Court at Bombay.

Issues Involved:

• Who was driving? Whether the appellant was drunk and whether it was an accident?
• Whether the offence punishable under section 134 of the Motor Vehicles Act read with section 87 of the said Act is to be attracted so far as the present appellant-accused is concerned?
• Whether minor contradictions and discrepancies may attain importance as to discredit a particular witness and if the contradictions are not going to the root of the matter then the evidence of such witness may not be thrown away?
• Whether the Sessions Court was right in accepting the evidence of Ravindra Patil under Section 33 of the Evidence Act?
• Whether the evidence earlier recorded before the Metropolitan Magistrate Court, when the charge was mainly under Section 304A of IPC is to be treated as evidence in the Sessions Court after committal?

Contentions by parties:

1. Arguments advanced by the Appellants
2. The appellant was not driving the vehicle.
3. The appellant was not drunk and was not under the influence of alcohol at the time of the incident.
4. There were four persons in the car, i.e., the appellant/ accused, Ravindra Patil, Kamal Khan and one Ashok Singh
5. It was a pure and simple accident as left side front tyre of the car burst due to which the car was beyond the control of the driver and met with an accident.
6. There is incorrect application of Section 304 Part II of IPC.
7. The investigating agency was bent upon to collect material against the appellant/accused in order to establish the charge of drunkenness apart from the charge that he was driving the vehicle. It was attempt by the investigating agency to fabricate the said bills to suit their case of consumption of alcohol by the appellant.
8. The natural conduct of any injured in an incident must be considered; specifically in the present case, the natural conduct would be to save oneself or to get rescued from the situation as early as possible and not that the person would give much importance to the allied facts.
9. The evidence recorded before the Metropolitan Magistrate Court of Ravindra Patil should not have been taken by the Sessions Court under Section 33 of Evidence Act as it was recorded before the MM when the main charge was under Section 304A of IPC and by the time the matter reached the Sessions Court, the main charge was under Section 304 Part II of IPC, and the said Ravindra Patil had died and was not available for cross-examination before the Sessions Court.
10. The death of Nurulla was not due to the accident or due to the driving of the vehicle. His death was because of falling of the vehicle while it was attempted to be lifted by using a crane.
11. Ravindra Patil conveniently answered to the questions that he does not remember in an interview with the newspaper Mid-day. Thus, his answer “I do not remember” are required to be construed that he was not sure whether wat was asked, did actually happen or not.

Arguments advanced by the Respondents

1. The appellant was under the influence of alcohol during the incident.
2. The witnesses concerning the driving of the said car by the appellant though are not the witnesses who actually saw the appellant driving the car, but they establish that the only inference that can be drawn is that the appellant was driving the vehicle and no other person.
3. The theory of the appellant that one Ashok Singh was driving the vehicle can be negated due to the absence of any such case put to any of the prosecution witnesses along with the conduct of Ashok Singh in not explaining to anybody during the course of the trial that he was not driving the vehicle and not the appellant/accused.
4. An attempt was made by the defence to interfere with the prosecution witnesses.
5. By a single fall of a heavy vehicle whatever might be the weight of the vehicle, such type of injuries which were reported in the post-mortem, are not possible and this argument on behalf of the appellant cannot be accepted that the death of Nurulla was due to falling of the vehicle when it was tried to be lifted. It must be taken that the death of Nurulla was due to the running over by the vehicle when Nurulla was sleeping on the platform.
6. The Reporter of the Mid-day not brought before the Court to establish the factum that there was an interview taken and taken in a particular manner contending the circumstances which were put to Raviindra Patil during his cross examination.
7. The recourse to Section 33 of the Evidence Act was rightly taken by the Sessions Court while accepting the testimony of Ravindra Patil which was recorded in the MM court as the questions which arose were substantially the same.
8. The theory of left side front door of the car was in a jammed condition and could not be opened during the incident cannot be accepted.
9. The theory of bursting of the left side front tyre prior to the incident is to be discarded in view of the report of the RTO Inspector.
10. The testimony of the injured witnesses assumes much importance inasmuch as they are the natural witnesses to the incident.
11. The non-mentioning by these witnesses about 4 persons is required to be taken as a mitigating circumstance to the defence of the accused.

Observations/ Obiter Dicta:

• Prosecution failed to establish the case against the accused on all counts as to driving that also in a drunken state.
• The FIR is silent regarding the drunkenness of the appellant. It only speaks regarding driving at a high speed. If the evidence of the injured is to be construed as to such heavy drinking and falling twice on the spot by the appellant, then this aspect must have not been lost in sight by Ravindra Patil while he gave his FIR.
• The omissions in the present case cannot be considered as minor and not going to the root, specifically due to the evidence of the main witness, who gave a detailed account as to the involvement of the appellant in a drunken state, is an omission and after for the first time in 12 years this witness is coming before the court, telling so.
• The witnesses remaining silent about how many persons were travelling in the car cannot be a mitigating circumstance to the defence of the accused.
• Without any other material to support the submission of the prosecution that the defence attempted to interfere with the prosecution witnesses, it’s difficult to accept this argument.
• The prosecution should have sought clarification from the witnesses on re-examination. Witnesses were not disowned and the said material remained on record.
• There is no dispute that the witnesses sustained injuries in the incident but the question is as to who is responsible which cannot be answered by only because they received injuries in the incident.
• Considering the legal position and answers given by Ravindra Patil and acceptance by him that he did give interview to the Mid-day, though what is argued in this aspect cannot be accepted on behalf of the appellant, but the conduct of Ravindra Patil can be seen by way of the answers given, due to which the evidence of Ravindra Patil has been held non-admissible under Section 33 of Evidence Act earlier.
• Though it is not established that the accused was driving the vehicle, he still comes under the later part of Section 134 of Motor Vehicles Act as a ‘person in-charge of the vehicle’ and as per the explanation to the said section, ‘driver’ includes the owner of the vehicle. However, considering the circumstances that the people gathered and the mob was in aggressive, furious mood with some members armed with rods and other articles, there could have been law and order problems which were beyond the control of the appellant.
• With regard to the driving and drunkenness, the prosecution has not brought the material on record to point out only the guilt of the appellant-accused since almost the entire evidence off the prosecution is circumstantial in nature; though the evidence of Ravindra Patil can be considered direct in nature, the High Court earlier held as to its inadmissibility and subsequently also marshalled his evidence as to his evidential value.
• Considering the various weaknesses of the in the case of prosecution, various shortcomings like the non-examination of necessary and appropriate witnesses, the omission and contradiction in the evidence of the injured witnesses which go to the root of the matter, raise a doubt as to the involvement of the appellant for the offences charged. Thus, on the basis of this type of evidence the appellant cannot be convicted though the apparent perception might be different as appearing in the mind of a common man.
• From the careful analysis of the evidence collected during the investigation, two hypothesis are possible :

1. The investigation was conducted in a careless, faulty manner with scant regard to the procedure required for establishing the chain of evidence when the case is based on biological evidence.
2. The investigation was conducted to loosen the prosecution case.

• Appreciation of evidence by the Trial Court in the present matter is not proper and legal as per the settled principles of Criminal Jurisprudence.

Rationale:

• A Court must decide the case on the material brought on record and which can be accepted as an evidence as per the procedure laid down by law. The Court shall not be swayed by any popular belief that a particular person considering his avocation, profession or standing, must have committed such an offence and must be held guilty.
• The Court is expected to be impervious to the pressure from the public and also from the Media. The law of Evidence has no place for the general public opinion as a factor that should weigh with the court while deciding a case at hand.
• A proposition that is repeatedly fed to the general public has the possibility of achieving the status of ‘truth’; however, this ‘truth’, i.e., proposition is required to be proved before a Court of law in which the established principles of law of evidence are required to be followed.
• The basic cardinal principles of Criminal Jurisprudence and the burden on the prosecution cannot be forgotten and any strong suspicion cannot be considered as a material to hold a person guilty of a particular offence.
• In every criminal trial, the burden of establishing the guilt of an accused is on the prosecution and the guilt is to be proved beyond reasonable doubt. The benefit of every reasonable doubt which arises out of the evidence adduced must necessarily be given in favour of the accused.
• A duty is imposed by law under section 134 of the Motor Vehicles Act, 1988 on a person to give medical assistance/help and this duty is cast not only on the driver of the vehicle but also every person in-charge of the vehicle. This presupposes that such assistance is immediately given at the time of the incident and in near proximity in time. However, a charge under this section must be attracted considering the circumstances.
• As per Section 145 of the Evidence Act, if at all the witness is to be contradicted then only the said earlier statement of the witness is required to be shown to him. Otherwise, the witness can be asked questions on his earlier statement.
• Importance of an injured witness is heightened when the questions are regarding an assault and a fight between persons and under such circumstances the evidence of an injured person assumes much importance. Sustaining of an injury is also a fact leading to the conclusion that he was one of the parties to the incident of the assault.
• A distinction is required to be drawn between remaining silent about a particular fact and the said witness specifically answering something that they did not notice. These are two different things. Remaining silent implies either that the witness has seen but has not told or that he had not seen at all.

Judgment

• The criminal appeal by appellant allowed and the judgment passed by the Sessions Court is set aside and stands quashed.
• Section 134 of the Motor Vehicles Act cannot be attracted in the present case.
• It was not established that the appellant was driving the car.
• Accused appellant acquitted of all charges

Conclusion:

The Bombay High Court in this controversial case overturned the conviction of the accused actor majorly owing to the fact that the prosecution failed to prove the guilt of the appellant/accused beyond reasonable and that the investigation was conducted in a ‘carelessly fault manner with scant regard to the established procedure laid down by the law’ along with glaring anomalies in the evidence.