Word by word judgment of Salman Khan hit-and-run case given by the trail court

Bollywood Actor Salman Khan has been sentenced to five years in jail by Mumbai's session court. The actor has been accused in the 2002 hit and run case.Here is the copy of the judgement given by the trail court in the Salman Khan hit-and-run case.

Here is the copy of the judgement given by the trail court in the Salman Khan hit-and-run case.#salman khan #judgement text #hit and run case 2002

IN THE COURT OF SESSIONS FOR GR.BOMBAY AT BOMBAY SESSIONS CASE NO. 240 OF 2013

(C.C. No.490/PS/2005)

The State of Maharashtra )

(Bandra P. Stn. C.R. No.326/2002 ) ...Complainant

V/s.

Salman Salim Khan ) Age: 49 yrs., Occ. Cine Artist ) Add. Galaxi Apartment, B. J. Road, )

Bandstand, Bandra (W.), Mumbai. ) ...Accused

CORAM : His Honour The Additional Sessions

Judge Shri D.W. Deshpande (C.R.No.52) DATE: 6th May, 2015.

Mr. Gharat, Special P. P. for State.

Mr. Shivade, Counsel for accused, along with Advocate Mr. Anand Desai, Advocate Mr. Nirav Shah, Advocate Ms. Chandrima Mitra and Advocate Mr. Manhar Saini i/b. M/s. DSK Legal.

J U D G M E N T

1. Accused Salman Salim Khan, famous Cine Actor, faced trial on the allegation that in the intervening night of 27.9.2002 and

28.09.2002 at about 02.45 a.m. drove Toyota Land Cruiser bearing No.MH­01­DA­32 in a rash and negligent manner, under the influence of alcohol with knowledge that people were sleeping on the footpath in front of American Express Laundry, caused death of one person and also injured four others by running car over them and rammed the shutter of American Express Laundry punishable under Sections 304 Part­II, 337, 338 of the Indian Penal Code and under Sections 134(A)(B) r/w.187, 181 and 185 of the Motor Vehicles Act, 1988.

2. The prosecution case against the accused is as under:­

3. Complainant Ravindra Himmatrao Patil was deputed as a Body Guard of accused. He was having the duty hours from 08.00 p.m. to 08.00 a.m. He used to remain along with the accused as a part of his duty. On 27.09.2002 at about 08.00 p.m. Ravindra Patil joined his duty as a security person for accused.

4. On 27.09.2002 at about 09.30 p.m., the accused and his friend Kamal Khan came out side of the house as they wanted to visit Rain Hotel, Juhu. The accused was having vehicle Land Cruiser bearing no.MH­01­DA­32 (for the sake of brevity, hereinafter referred to as the "said car"). The complainant Ravindra Patil, Kamal Khan sat in the car. The accused drove the said car. The car reached near Rain Bar and Restaurant. The complainant was asked to wait outside and the accused and Kamal Khan went inside the hotel.

5. Sohel Khan is brother of the accused Salman Khan. Sohel Khan was also having a bodyguard (PW­6 Balu Laxman) at relevant time who met Ravindra Patil out side Rain Bar. PW­6 Balu Laxman informed Ravindra Patil that Sohel Khan had also come there.

6. At about 01.30 a.m. the accused and Kamal Khan came outside the Rain Bar. From Rain Bar, the accused then started for going to J.W. Mariot Hotel. The accused was driving the vehicle. Complainant Ravindra Patil sat on the seat near driver's seat. Kamal Khan sat on the rear seat. Then they went to J.W. Mariot Hotel. The accused and Kamal Khan went inside the hotel and complainant Ravindra Patil was waiting outside.

7. At about 02.15 a.m. on 28.09.2002 the accused and Kamal Khan came out from the hotel. The accused sat on the driver's seat and complainant Ravindra Patil sat near driver's seat. The said car came on St. Andrews Road. The accused was drunk and was driving the said car at the speed of 90 to 100 kilo meters per hour. St. Andrews Road and Hill Road joined at the junction. Prior to reaching the car at the junction of St. Andrews Road and Hill Road, the complainant Ravindra Patil informed the accused to lower the speed of the car in view of the right turn ahead. The accused did not pay any attention. The accused could not control his car while taking right turn and went on the footpath. The people were sleeping on the footpath. The said car ran over the persons sleeping on the foot path and climbed the three stairs and rammed the shutter of American Laundry. Thereby the said car broke the shutter and went inside about 3 and ½ feet.

8. The people on whose person the said car ran shouted and thereby other persons gathered. The people gathered surrounded the car. The people became furious because of the incident. Somehow the complainant, Salman Khan and Kamal Khan came out of the said car. The complainant Ravindra Patil showed his identity card and informed them that he is a police personnel, thereby the people were pacified.

9. The accused Salman Khan and Kamal Khan ran away from the spot. Complainant Ravindra Patil saw one person seriously injured beneath the said car having multiple injuries and also there were four injured persons below the car. Control Room was informed. Within 5 minutes, Bandra police arrived. The police rescued the injured persons and dead body of Nurulla was removed from beneath the car. The injured were sent to Bhabha Hospital.

10. PW­26 Rajendra Kadam received a telephone call from an unknown person at about 02.45 a.m. on 28.09.2002 about the incident. He immediately came on the spot with police. He saw one Land Cruiser vehicle rammed into the shutter of American Express Laundry. The Police Inspector Pardhi and staff also arrived on the spot. Ravindra Patil was also present on the spot. A crane was called to lift the vehicle in order to remove the person lying beneath the car.

11. PW­26 Rajendra Kadam drawn spot panchanama (Exh.28) in presence of PW­1 Sambha Gauda. The spot was shown by the complainant Ravindra Patil. PW­26 Kadam seized the articles lying on the spot i.e. fiber glass, bloodstained soil, name plate, pieces of broken glass, sample of colour scratch of shutter of American Express Laundry. PW­26 Kadam also opened the doors of the vehicle and took out the papers of the vehicle as well as the key. The articles came to be seized and sealed and also label having signatures of panchas and PW­26 Kadam was also affixed.

12. PW­26 also made inquiry with the complainant Ravindra Patil who is eye witness to the incident. He recorded the complaint of complainant Ravindra Patil (Exh.P­1).

13. In the incident, Nurulla was expired and PW­2 Muslim Shaikh, PW­3 Mannu Khan, PW­4 Mohd. Kalim Iqbal Pathan, PW­11 Mohd. Abdulla Shaikh were injured in the incident. Abdulla and Muslim Shaikh sustained grievous injuries. Mannu and Mohd. Kalim Pathan sustained simple injuries. The dead body of Nurulla was sent for postmortem.

14. The postmortem report (Exh.20) was admitted by defence as well as injury certificates of the witnesses Abdulla Rauf Shaikh, Kalim Mohd. Abdul Pathan and Muslim Niyamat Shaikh are also admitted by the defence (Exh.21, Exh.22, Exh.23 respectively). In the evidence of Investigating Officer PW­27 Shengal, exhibits were given to injury certificates of Kalim Mohd. Pathan (Exh.151), Munnabhai Khan (Exh.152), Abdul Rauf Shaikh (Exh.155) and Muslim Shaikh (Exh.156) being admitted by defence.

15. PW­26 Kadam recorded statements of Abdul and Muslim. The offences u/s.304­A, 279, 338 of the IPC and u/s.134 of the Motor Vehicles Act were registered. PW­26 Kadam also drawn map (Exh.143) of the spot of incident in presence of complainant Ravindra Patil.

16. PW­26 Kadam also visited Galaxi Apartment where the accused was residing, but he was not found. The spot of incident was at the distance of 200 meters from the house of the accused. The investigation was then entrusted to Police Inspector Pardhi.

17. On 29.09.2002 PW­19 Rajendra Keskar, RTO Inspector, inspected the vehicle and submitted a report (Exh.84). No mechanical defect was noticed in the vehicle.

18. PW­27 Kisan Shengal was working as a Senior Police Inspector in Bandra Police Station. PW­26 also informed him in the early hours of 28.09.2002 about the incident. Immediately PW­27 Kisan Shengal came to the police station and while coming to the police station, he visited the spot of incident. P.I. Pardhi already deployed bandobast on the spot.

19. PW­27 Shengal proceeded to Galaxy Apartment to search the accused, but he did not find the accused in the house. PW­27 received a secret information about visit of the accused at the house of his Advocate in Almeda Park. Accordingly, the accused was traced out in the house of Advocate Mr. Jamir Khan. The accused was taken in possession and brought in the police station where arrest panchanama was drawn at about 11.00 a.m. The accused was then sent to Bhabha hospital for medical examination and also for blood sample along with PSI Suryavanshi and police staff. Suryavanshi informed PW­27 that in Bhabha Hospital there is no facility for collecting the blood sample. The accused was then sent to J.J. Hospital at about 01.30 p.m. along with Suryavanshi, PSI Salunkhe and police staff. Blood sample of Salman Khan for alcohol was taken by PW­20 Dr. Shashikant Pawar. The sealed envelop containing the blood sample of Salman Khan was then brought to the police station. As there was Saturday and Sunday, PW­27 kept the blood sample in fridge. The accused was also released on bail. PW­27 Shengal also demanded licence from the accused. No licence was produced. Offence u/s.3 r/w.181 of the Motor Vehicles Act also registered against the accused. Police Inspector Pardhi also recorded the statements of witnesses. PW­27 Shengal also investigated the address of the registered owner from the xerox copies of the documents found in the car. The vehicle was registered in the name of Mohd. Abdul Rehman, resident of 55 Shivkrupa Building, L.J. Road, Mahim, Mumbai, but the address was found false. The statements of Amin Kasim Shaikh, Ram Suresh Ram Lakhan Sonkar, Sachin Gangaram Kadam and others were also recorded. PW­27 Shengal also recorded supplementary statement of complainant Ravindra Patil on 01.10.2002. He sent letter to C.A. on 30.09.2002. The team of Forensic Laboratory inspected the vehicle and took some scrapings from the vehicle as well as collected the samples from the spot and also incriminating material. PW­27 Shengal sent the samples to the C.A. He also sent the blood sample of the accused to C.A., Kalina, on 30.09.2002 through Constable PW­21 Borade.

20. PW­27 Investigating Officer Shengal also recorded statement of Ram Adhar Pandey on the spot. He also visited J.W. Mariot Hotel and Rain Bar Restaurant, Juhu. He also recorded statements of Anurudha Subroto Nandi, Wilfred George Kutti and others. PW­27 also recorded statements of PW­9 Rizwan Ali Rakhangi from Rain Bar and PW­5 Malay Bag, waiter from Rain Bar. PW­27 Shengal also collected the hotel bills (Exh.50­A to Exh.50­D) about consumption of alcohol and snacks.

21. PW­27 Shengal also collected parking tag from PW­12 Kalpesh Verma who was working as a Parking Assistant in J.W. Marriot Hotel. The said parking tag is not on record. The statement of Kalpesh Verma was also recorded. Bandra Police Station also received C.A. report on 01.10.2002. C.A. report of the blood sample for alcohol test is at Exh.81. The said report is prepared by PW­18 Dattatray Bhalshankar (Assistant Chemical Analyzer). PW­27 also recorded the statements of injured persons Kalim Mohd. Pathan and Munna Khan. On 02.10.2002 PW­27 also sent the articles collected by earlier Investigating Officer for forwarding to C.A. On 03.10.2002 PW­27 Shengal also sent a letter to R.T.O., Tardeo, Andheri, and sought information about licence of the accused. RTO informed the police station that no licence was issued to Salman Khan. The statements of Mannu Khan, Kalim Mohd. Pathan, Ram Asare Pandey were also recorded u/s.164 of the Cr. P.C. by the ld. Metropolitan Magistrate, 12th Court, Bandra. The statement of Kamal Khan was also recorded on 04.10.2002.

22. On 07.10.2002 PW­27 Shengal added Section 304­II of the IPC and accordingly, information was submitted to the Metropolitan Magistrate Court. The vehicle Land Cruiser bearing No. MH­01­DA­32 was returned to accused Salman Khan on the bond of Rs.15 Lacs as per the Court order.

23. The accused voluntarily surrendered in the police station on 07.10.2002 and arrest panchanama (Exh.154) was drawn. PW­27 Shengal also recorded the statements of other witnesses. He also collected the Medical Certificates of the injured.

24. After completion of investigation, charge­sheet came to be filed on 21.10.2002 in the 12th Metropolitan Magistrate Court, Bandra, Mumbai. After submitting the charge­sheet, PW­27 Shengal also received C.A. reports which are at Exh.157­A to Exh.157­E.

25. The ld. Metropolitan Magistrate, 12th Court, Bandra, Mumbai, on 31.01.2003, committed the case to the Court of Sessions as the offence punishable under Section 304­II of the I.P.C. is exclusively triable by the Court of Sessions.

26. It is pertinent to note that the accused filed the Miscellaneous Application bearing No.463/03 in the Sessions Court contending that Sec.304­II of the IPC is not attracted, but the said application was rejected by the Sessions Court.

27. It appears that the then In­Charge Sessions Judge Shri Dholakia framed the charge against the accused u/s.304(II), 308, 279, 338, 337, 427 of the I.P.C. and u/s.134(A)(B) r/w. Sec.187, 3 r/w. Sec.181, 185 of the Motor Vehicles Act and u/s.66(i)(b) of the Bombay Prohibition Act. The accused pleaded not guilty to the charge and claimed for the trial.

28. The accused also preferred Criminal Writ Petition bearing No.2467/2003 u/s.482 of the Cr. P.C. in the Hon'ble Bombay High Court. The Hon'ble Bombay High Court was pleased to allow the said application and the order of the Sessions Court framing the charge under Section 304­II of the IPC was quashed while maintaining the order of the other charges. The order of the Hon'ble Bombay High Court was challenged before the Hon'ble Apex Court by the State of Maharashtra by filing Criminal Appeal bearing No.1508/2003. The Hon'ble Apex Court set aside the order of the Hon'ble High Court as well as the trial court and held as under:­

"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."

29. Further the Hon'ble Apex Court observed in the order that pursuant to the Judgment of the High Court, the Metropolitan Magistrate Court, Bandra, has already framed fresh charges under Section 304(A) IPC and other provisions mentioned herein above and trial has commenced. The Hon'ble Apex Court further observed as under:­

"At any appropriate stage, if the ld. 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 or Sessions Court, shall be purely based on the material brought in evidence of the trial."

30. It is pertinent to note that the prosecution has examined in all 17 witnesses in the Court of Metropolitan Magistrate, Bandra. The APP in the trial Court filed an application for framing additional charge under Section 304(II) of IPC and contended that the case be committed to the Court of Sessions. The accused also submitted the reply (Exh.28) to the said application. The ld. Additional Chief Metropolitan Magistrate allowed the application of the APP and committed the case to the Court of Sessions on 31.01.2013 u/s.209 of the Cr. P.C. as offence u/s.304­II of the IPC is exclusively triable by the Court of Sessions.

31. It is pertinent to note that the accused also moved Revision Application No.220/2013 in the Sessions Court against the order of the ld. Additional Chief Metropolitan Magistrate, but on 24.06.2013, the said revision application was rejected.

32. Charge is framed by my ld. Predecessor (H.H.J. Shri U.B. Hejib) against the accused u/s.304­II, 337, 338 of the I.P.C. and u/s.3(1) r/w.181, 134 r/w.187, 187 and u/s.185 of the Motor Vehicles Act.

33. The contents of the charge were read over to the accused to which the accused did not plead guilty and claimed for the trial.

34. It is pertinent to note that the point arose before me as to whether the evidence led before the trial Court before committal is to be read or whether fresh trial is required to be ordered again. It is pertinent to note that after framing the charge, the matter was fixed for submitting the list of witnesses and also filing list of documents u/s.294 of the Cr. P.C. The ld. APP Mr. Kenjalkar submitted that the evidence led in the trial court before committal can be accepted otherwise the trial would be delayed. However, the ld. Advocate Mr. Shivade opposed the contention of the ld. APP and submitted that the charge u/s.304­II of the IPC framed against the accused is a serious offence and punishment is provided to the extent of 10 years or with fine or both.

35. The ld. Metropolitan Magistrate committed the case u/s.209 of the Cr. P.C. The ld. Advocate Mr. Shivade also quoted Section Section 323 of the Cr. P.C. before this Court. According to ld. Advocate Mr. Shivade, when the case is committed to the Court of Sessions, then Chapter XVIII shall apply to the commitment. It is pertinent to note that Chapter XVIII is dealing with the case before the Court of Sessions. The said Chapter deals with the provisions of Section 225 to 235 of the Cr. P.C.

36. After hearing the ld. APP and the ld. defence Counsel, this Court after considering the provisions of Section 209, 323 of the Cr.

P.C. and also the provisions incorporated under Chapter XVIII and also provisions of Section 326 of the Cr. P.C., passed the detailed order below Exh.1 on 05.12.2013 that afresh trial be ordered against the accused. Neither state nor accused challenged the order of this court dated 5.12.2013.

37. The prosecution has examined 27 witnesses before me and they are as under:­

PW­1 Sambha Kanappa Gauda (Exh.27) Panch witness on spot panchanama (Exh.28)

PW­2 Muslim Niyamat Shaikh (Exh.32) Injured.

PW­3 Mannu Khan s/o. Meli Khan (Exh.33) Injured witness.

PW­4 Mohd. Kalim Iqbal Pathan (Exh.36) Injured witness.

PW­5 Malay Semerendra Bag (Exh.39) At the relevant time, he was working as a Waiter in Rain Bar and Restaurant and on point of visit of the accused to Rain Bar and Restaurant.

PW­6 Balu Laxman Muthe (Exh.40) Security Guard for Cine Actor Sohail Khan

PW­7 Fransis Daiman Fernandes (Exh.43) Present on the spot after hearing the commotion. Independent witness.

PW­8 Ramasare Ramdev Pande (Exh.47) Visited the spot of incident after hearing the noise and saw accused getting down from the right front side of the car, his statement was recorded u/s.164 of the Cr. P.C. Independent witness.

PW­9 Rizwan Ali Rakhangi (Exh.49) At the relevant time, worked as a Manager in Rain Bar & Restaurant, in his evidence, the bills (Exh.50A to Exh.50D) proved.

PW­10 Sachin Gangaram Kadam (Exh.52) ­ Hostile He had seen one big car went on the bakery and also over the persons sleeping on the platform of American Cleaners.

PW­11 Mohd. Abdulla Shaikh (Exh.53) Injured.

PW­12 Kalpesh Sarju Verma (Exh.69) Was working at the relevant time in J.W.Marriot Hotel as a Parking Assistant and on the point of visit of the accused to J. W. Mariot.

PW­13 Amin Kasam Shaikh (Exh.70) After hearing the noise, he went on the spot and saw vehicle white in colour went in American Bakery and shutter of American Laundry was broken. Muslim and Abdul found beneath the car.

PW­14 Salim Majid Patel (Exh.72) Custom Clearing Agent, cleared the vehicle Land Cruiser from the customs.

PW­15 Alok @ Chikki Sharad Pandey (Exh.73) Known accused and duty of the car was paid by cheque by father of Salman Khan.

PW­16 Gurucharan Abnashiram Malhotra (Exh.77) Insurance Agent

PW­17 Mark Marshal D'Souza (Exh.78) Worked as a Counter clerk in American Laundry since 1988, had seen Salman Khan who used to pass from his laundry and on Hill Road.

PW­18 Dattatray Khobrajirao Bhalshankar (Exh.79) Assistant Chemical Analyser, did analysis of blood sample of accused for alcohol test and prepared the C.A. report (Exh.81) and found 0.062 mg. alcohol in the blood of accused.

PW­19 Rajendra Sadashiv Keskar (Exh.83) RTO Inspector, inspected the vehicle involved in the incident and submitted a report (Exh.84).

PW­20 Dr. Shashikant Janardan Pawar (Exh.96) Medical Officer in J.J. Hospital in the year 2002, extracted blood from Salman Khan for alcohol test.

PW­21 Sharad Bapu Borade (Exh.115) He had taken the blood sample to Kalina Laboratory, Carrier

PW­22 Vijay Manikrao Salunkhe (Exh.118) Brought accused along with police staff to J.J. Hospital for examination and for taking blood sample.

PW­23 Raghuveer Singh Nagsingh Bilawar (Exh.119) Assistant Inspector in RTO examined by the prosecution to show that accused was not possessing licence on the day of incident.

PW­24 Sangita Annasaheb Mahadik (Exh.126) Woman Police Naik, examined by the prosecution to show that Dr. Sanap who conducted the postmortem on the dead body of the deceased is residing in U.S.A.

PW­25 Kailash Himmatrao Behere (Exh.139) Brother of complainant Ravindra Patil (deceased examined by prosecution to show that Ravindra Patil was expired on 03.10.2007.

Complainant Ravindra Patil (Exh. 141) examined in the Court of Additional Chief Metropolitan Magistrate Court. His evidence is taken on record u/s 33 of The Indian Evidence Act.

PW­26 Rajendra Genbapu Kadam (Exh.142) Recorded FIR of Ravindra Patil and also drawn spot panchanama and seized the articles from the spot and also recorded the statements of Abdul and Muslim, prepared map of the spot of incident.

PW­27 Kisan Narayan Shengal (Exh.147) Investigating Officer, recorded supplementary statement of complainant Ravindra Patil, arrested the accused under panchanama (Exh.148), sent the accused to J.J. Hospital for taking blood sample, sent the blood sample to C.A., made investigation regarding the address of the registered owner of the vehicle, recorded statements of staff members of Rain Bar, visited J.W. Marriot Hotel and Rain Bar Restaurant, collected hotel bills, parking tag from Kalpesh Sarju Verma, recorded statement of Kalpesh Verma, sent letter to RTO seeking information regarding the licence of the accused, statements of witnesses Mannu Khan, Kalim Mohd. Pathan, Ram Asare Pandey were recorded by M.M., 12th Court, Bandra. Recorded statement of Kamal Khan on 04.10.2002. On 07.10.2002 added Section

304­II of the IPC in the crime, returned the vehicle as per court order, the accused was surrendered on 07.10.2002 after adding Section 304­II of IPC, arrest panchanama (Exh.151) was drawn, recorded statements of witnesses, collected the Medical Certificates of injured and filed charge­sheet on 21.10.2002 before 12th Metropolitan Magistrate Court, Bandra. Submitted C.A. reports.

38. Before recording evidence of PW­26 Rajendra Genbapu Kadam and PW­27 Kisan Narayan Shengal ( Investigating Officers), ld. SPP Mr. Gharat moved an application (Exh.131) u/s. 33 of the Indian Evidence Act for taking the evidence of Ravindra Himmatrao Patil and Dr. Sanap on record and also admitting the same u/s.33 of the Indian Evidence Act. The evidence of Ravindra Patil was recorded before the Metropolitan Magistrate Court, Bandra, in C.C. No.490/PS/2005 prior to committal. Complainant Patil was expired on 3.10.2007. According to ld. SPP, the accused had cross­examined the complainant Ravindra Patil thoroughly and the ingredients of Section 33 are fully attracted. The ld. defence Counsel objected the said application by filing the reply (Exh.136). The ld. Advocate Mr. Shivade also relied on the judgment of the Hon'ble Apex Court in Bipin Shantilal Panchal Vs. State of Gujarat and Another [(2001) 3 Supreme Court Cases 1]. Ld. Counsel Mr. Shivade fairly submitted that the evidence of Mr.Ravindra Himmatrao Patil can be taken on record and be exhibited and the admissibility of the evidence of Ravindra Patil can be decided at the time of final argument. Ld. SPP Mr. Gharat also fairly considered the said issue. Hence, in view of the ratio laid down in the case of Bipin Shantilal Panchal, the evidence of complainant Ravindra Patil recorded in C.C. No.490/PS/2005 in the Court of Additional Chief Metropolitan Magistrate was taken on record and exhibited (Exh. 141). The admissibility of the evidence of Ravindra Patil would be decided after final hearing in the judgment in view of the ratio laid down in Bipin Shantilal Panchal and State of Gujarat and Another. The prosecution as well as defence were permitted to refer the evidence of Ravindra Patil during the examination of PW­26 Rajendra Genbapu Kadam and also the Investigating Officer PW­27 Kisan Narayan Shengal for proving omissions and contradictions, if any.

39. It is pertinent to note that in the say (Exh.136) submitted by the defence to the application (Exh.131) u/s.33 of the Evidence Act, it is contended by the defence that "the defence is not challenging the injuries suffered by the deceased and cause of death mentioned in the postmortem report and no prejudice is caused to the defence, if Dr. R.L. Sanap is not examined". So in view of the contentions of the defence and also considering the said aspects and as defence admitted the postmortem report, if Dr. R.L. Sanap is not examined, no prejudice would be caused to prosecution also. Hence, application (Exh.131) is partly allowed on 07.03.2015. Whether the evidence of Ravindra Patil recorded in the Court of Metropolitan Magistrate before committal is relevant, admissible and can be relied under Section 33 of the Indian Evidence Act will be discussed in the later part of judgment. 40. The statement of the accused is also recorded u/s.313 of the Cr. P.C. It is the defence of the accused that at the time of the alleged incident, he was not driving the vehicle, but one Ashok Singh was driving the said vehicle and the tyre was burst in the incident. According to the accused, Ashok Singh went to the police station to state that he was driving the vehicle, but the police did not record his statement. Further according to the accused, PW­18 Dattatray Khobrajirao Bhalshankar is not an expert and he did not examine the blood sample. According to the accused, false case is filed under the pressure of Media. The accused also submitted his further statement vide Exh.171­A. According to the accused, there were four persons present in the car at the time of the incident. Ashok Singh was driving the vehicle. The accused was sitting near the driver's seat at the left side. The complainant Ravindra Patil was sitting behind the driver and Kamal Khan sat on the back left seat. According to the accused, when car reached Hill Road via Manual Gonsalves Road, suddenly front left tyre of the car was burst, thereby the car was pulled to the left side. Ashok Singh tried to apply breaks and tried to control the car, but by then the car had climbed on the steps of American Express Laundry and hit the shutter and stopped. There was no footpath outside American Express Laundry at that time. Further according to the accused, he tried to get out of the car, but found the door next to him was jammed. Ashok Singh, with great difficulty, got down from the driver's side. By that time, a lot of people had gathered around and there was a lot of confusion and chaos. As the left front door was jammed, the accused crossed over to the driver's seat from the front left seat, where he had been sitting and got out from the driver's door. According to the accused, he wanted to move the car, but then he realized that people were trapped beneath the car and shouting for help. According to the accused, they tried to lift the car, but could not do so as it was dangerous to move the car manually. According to the accused, he instructed Ashok Singh to call the police for help and inform Bandra Police Station about the incident. The accused saw Francis Fernandis and his wife, to whom the accused knew, had also come to the spot. They asked the accused to leave the spot as the crowd was getting violent and they had also beaten Ravindra Patil and Ashok Singh. The accused waited there for a few minutes. Francis's wife stopped a passing car and they made the accused sit and asked him to go home for his safety. They also told the accused that they would be taking the injured to Holy Family hospital. Kamal Khan had already gone away.

41. According to the accused, he came to know later that one person had died and four persons were injured. At about 10.30 a.m. on 28.09.2002, the accused received a message that Ashok Singh had been detained in Bandra Police Station. The accused went to Bandra Police Station to find out what had happened and noticed that a violent mob had gathered outside and they were shouting slogans against him. Ashok Singh came and told the accused that there was something wrong as the police had not recorded his statement. The accused met police officer who told him that there was tremendous pressure on him to arrest the accused. The accused told the police that he was not driving the car, but the police did not listen and arrested him in a false case. According to the accused, he went to Bhabha Hospital and then to J.J. Hospital and in both hospitals, the Doctors applied spirit to his hand and took his blood samples. According to the accused, PW­18 Dattatray Bhalshankar does not know anything about the chemical analysis and he is not an expert. PW­12 Kalpesh Verma was never present and he has been planted by the police as the real valet Yogesh Kadam refused to give false statement as desired by police. According to the accused, PW­19 Rajendra Keskar has never inspected the car and given the report to suit the prosecution case. According to the accused, the police have prepared the false statements of the witnesses and filed the false charge­sheet.

42. I have heard Mr. Gharat, ld. SPP for State, and Mr. Shivade, ld. Advocate for the accused, at length. Exh.181 written notes filed by SPP and Exh. 184 written notes filed Ld. Adv. Shri Shivade. I have also gone through the evidence recorded before me minutely.

43. Following points arise for my consideration and I have recorded my findings thereon for the reasons as follow:­

POINTS FINDINGS

1. Does the prosecution prove that the evidence of complainant Ravindra Patil recorded in the Court of the Additional Chief Metropolitan Magistrate is relevant, admissible, relied and be admitted u/s.33 of the Indian Evidence Act ? Yes

2. Does the prosecution prove that on

28.09.2002 at about 02.45 a.m. near American Express Cleaners, St. Andrews Road and Ramdas Nayak Marg (Hill Road), Bandra (W.), the accused drove the car Land Cruiser bearing no. MH­01­DA­32 in a rash and negligent manner, under the influence of alcohol with the knowledge that people are sleeping in front of American Express Cleaners and also with knowledge that by driving the vehicle in a rash and negligent manner and under the influence of liquor, the accused was likely to cause death and thereby caused the death of Nurulla Shaikh and thereby committed an offence punishable u/s.304­II of the IPC ? Proved.

3. Does prosecution prove that at the same date, time and place, the accused drove the vehicle in a rash and negligent manner so as to endanger human life or personal safety of others and caused hurt to Kalim Mohd. Pathan and Munna Khan and thereby committed an offence punishable u/s.337 of the IPC ? Proved.

4. Does prosecution prove that at the same date, time and place, the accused drove the vehicle in a rash and negligent manner and caused grievous hurt to Abdul Rauf Shaikh and Muslim Shaikh and thereby committed an offence punishable u/s.338 of the IPC ? Proved.

5. Does prosecution prove that at the same date, time and place, while driving the vehicle in a rash and negligent manner, the accused was not holding a valid driving licence and thereby committed an offence punishable u/s.3(1) r/w. 181 of the Motor Vehicles Act ? Proved.

6. Does prosecution prove that at the same date, time and place, the accused did not take reasonable steps to secure the medical aid to the victim persons by conveying them to nearest Medical Practitioner or hospital and thereby committed an offence punishable u/s.134 of the Motor Vehicles Act punishable u/s.187 of the Motor Vehicles Act? Proved.

7. Does the prosecution prove that the accused failed to give information about the incident to the police and thereby committed an offence punishable u/s.187 of the Motor Vehicles Act ? Proved

8. Does the prosecution prove that the alcohol exceeding 30 mg per 100 ml. i.e. .0.062 % mg was found in the blood of accused and the accused was under the influence of alcohol to that extent so as to incapable of exercising proper control over the vehicle and thereby committed an offence punishable u/s.185 of the Motor Vehicles Act? Proved.

9. What order ? As per final order.

REASONS

44. It is vehemently submitted by ld. SPP Mr. Gharat that the prosecution has proved the charges levelled against the accused beyond reasonable doubt that on the intervening night of 27.09.2002 and 28.09.2002, the accused drove the vehicle Land Cruiser car bearing no. MH­01­DA­32 in a rash and negligent manner and was having knowledge that the poor bakery workers were sleeping in front of American Express Cleaners, ran over the car over them and the vehicle climbed on the stairs of the American Express Cleaners and rammed into the shutter of the said laundry. So according to ld. SPP Mr. Gharat, the accused had the knowledge that the said persons were sleeping at the same place daily. Inspite of the knowledge, the accused drove his car in high speed and did not take require care thereby killing Nurulla on the spot and injured four persons, out of which two received grievous injuries. Further according to ld. SPP Mr. Gharat, the accused having brought up in the said area has full knowledge of the topography of the said area, since the accused is residing in the Bandra there from last 35 years.

45. According to ld. SPP Mr. Gharat, it is not disputed that from his house, accused went to the Rain Bar & Restaurant. From Rain Bar Restaurant, the accused then went to J.W. Mariot. According to ld. SPP, the prosecution claims that the accused was driving the vehicle on the day of the incident, but the defence comes with a stand that the vehicle was driven by D.W. 1 Ashok Singh (driver), and not by the accused. The ld. SPP also vehemently submitted that the accused had consumed Bacardi Rum in the Rain Bar Restaurant which gets corroborated by noticing the alcohol to the extent of 62 m.g. in the blood of the accused. Shri Gharat further contended that there is no dispute that the blood of Salman Khan was extracted in J.J. Hospital by PW­20 Dr. Pawar. According to Shri Gharat, the blood extracted for alcohol test was as per the procedure and also there was proper sealing of the blood sample and it was sent for forwarding to Forensic Science Laboratory, Kalina. Further it is contended by ld. SPP Mr. Gharat that PW­19 Rajendra Keskar did not find any mechanical fault in the vehicle and found less air in the front wheel tyre. According to ld. SPP, the defence claimed that the accident occurred due to bursting of front left tyre and it was only a pure accident cannot be established.

46. According to the ld. SPP, there is also evidence of the injured witnesses to demonstrate that the accused got down from the right driver side portion of the car to establish that it was the accused only who was driving the vehicle at the time of incident and none else. Further according to ld. SPP, there is no dispute that the four injured witnesses sustained injuries in the same incident, at the same place and at the same time. According to ld. SPP Mr. Gharat, the death of Nurulla occurred on the spot due to the dash by the vehicle. The ld. SPP further contended that the spot panchanama is also proved and various articles were recovered. Further it is contended that Ravindra Patil, who was body guard of the accused, lodged the complaint (Exh.P­1) immediately after the incident against the accused. His evidence was also recorded before the ld. Metropolitan Magistrate and he was also cross­examined at length. The complainant Ravindra Patil was expired in the year 2007. His evidence u/s.33 of the Indian Evidence Act is relevant and can be relied, after framing charge under Section 304­II of the I.P.C. According to Mr. Gharat, the evidence of Ravindra Patil inspires confidence and trustworthy.

47. Further it is contended by Mr. Gharat that though there are some omissions, contradictions appeared in the evidence of prosecution witnesses that can be ignored because according to Mr. Gharat, the injured witnesses were labours and illiteratend. They belong to the lower strata. Further it is contended that though there are some lapses, errors noticed in the investigation, that can be ignored and the Court has to evaluate the entire evidence.

48. Further it is contended by ld. SPP Mr. Gharat that the accused had admitted about the occurrence of the accident and also about the bakery workers sustained injuries. However, the specific and pointed defence taken by the accused u/s.313 of the Code of Criminal Procedure is that the defence witness Ashok Singh (DW­1) was driving the vehicle at the time of the incident. According to Mr. Gharat, the evidence of D.W. 1 Ashok Singh on the point of issue of driving the car is the substantive evidence.

49. The ld. SPP Mr. Gharat contended that the cross­ examination of all the prosecution witnesses and the probabilities attempted to be brought on record is the material, revolving around the main substantive evidence of the defence that Ashok Singh was driving the car. Therefore, once the main substantive evidence fails, nothing remains to be corroborated.

50. Further according to the ld. SPP Mr. Gharat that, a cardinal principle of law is that the prosecution case shall stand on his own legs. According to ld. SPP Mr. Gharat, it is true, if the accused faces the trial with his mouth shut and hands tied, the guilt of the accused is to be decided on the basis of the proof of evidence beyond all reasonable doubt. According to Mr. Gharat, the interpretation of the term "Reasonable Doubt", when it seen from the judgments of the Apex Court, it shows that the moment the accused frees his hands and opens his mouth by way of specific defence, the said evidence jumps into the arena of appreciation, balancing and weighing the evidence and becomes the decisive factor for the entire case. According to Mr. Gharat, therefore, when such defence material proves to be illogical and unacceptable, the prosecution case cannot be thrown out as unbelievable. The reason is that the accused has his own stance shuts the other doors to peep through to derive the conclusions favourable to him and to get the benefit of trifling lapses and inconsistencies in the evidence of the prosecution witnesses.

51. According to ld. SPP Gharat, thus, when the defence is specific and other possibilities are ruled out, the question of fixing the liability is only by two ways i.e. as to whether the prosecution story that the accused was driving the vehicle or the specific defence, that Ashok Singh (DW­1) was driving the vehicle. When either of these stories is accepted, the alternate story stands automatically discarded in the light of the fact that no other possibility of any other person driving the car is brought on record.

52. According to ld. SPP Mr. Gharat, the evidence of DW­1 Ashok Singh cannot be accepted as he is a got up witness. Till the statement u/s.313 of the Cr. P.C. is recorded, nothing is brought on record to demonstrate that DW­1 Ashok Singh was driving the vehicle. According to ld. SPP Mr. Gharat, the defence never suggested to any of the prosecution witnesses examined to the effect that the D.W.­1 Ashok Singh was driving the vehicle at the time of the accident. Hence, according to ld. SPP, the evidence of DW­1 Ashok Singh is liable to be discarded from taking into consideration. His conduct is illogical, unnatural, inconsistent and not convincing to the conscious of ordinary prudent man.

53. According to ld. SPP Mr. Gharat, if the entire prosecution evidence is looked into, it will demonstrate that the prosecution has proved the charges against the accused beyond reasonable doubt. The defence raised by the accused is liable to be discarded as the evidence of a liar.

54. The ld. Advocate Mr. Shivade strongly refuted the charges levelled against the accused. According to Mr. Shivade, the ld. Advocate, the prosecution miserably failed to prove the charges levelled against the accused beyond reasonable doubt. The ld. Advocate Mr. Shivade vehemently submitted that Ravindra Patil is a sole solitary eye witness to the alleged incident. His evidence was recorded when the accused faced the charge u/s.304­A of the IPC. After examining 16 witnesses in the Court of Metropolitan Magistrate, the case was committed to the Court of Sessions. In Sessions Court, retrial was held. The complainant Patil was expired in the year 2007. It is contended by Mr. Shivade that the evidence of Ravindra Patil is inadmissible under Section 33 of the Indian Evidence Act. It is further contended that the provisions of Sec.33 of the Indian Evidence Act are not complied with in this case because accused in first proceeding had no opportunity to cross­examine Patil in relation to the offence u/s.304­II as the earlier trial was in relation to the offence 304­A and other sections. Therefore, even if the Sessions Court trial is between the same parties, the recourse cannot be taken to Sec.33. Further according to Mr. Shivade, ld. Counsel, the question and issue in the Magisterial trial and the Sessions Court trial are not substantially the same.

55. Further it is contended that the accused was not driving the vehicle as alleged by the prosecution. DW­1 Ashok Singh was driving the vehicle at the time of the accident. Further it is contended that the car of the accused came to Hill Road via Manual Gonsalves Road driven by DW­1 Ashok Singh. The said road is parallel to St. Andrews Road and it meets Hill Road before St. Andrews Road. It is contended that there was a sudden tyre burst of the front left tyre and the steering became hard and before driver took turn, the car had climbed the stairs and hit the shutter.

56. It is contended that PW­19 Rajendra Keskar examined the car involved in the accident, but the evidence of PW­19 Keskar does not inspire confidence. According to Mr. Shivade, ld. Advocate, the prosecution has criticized the said expert and even demanded the action against him. According to Mr. Shivade, thus, it was a pure accident for which no one can be blamed. Further it is contended by ld. Advocate Mr. Shivade that if the evidence of complainant Patil is appreciated, then, one can infer that the said evidence does not inspire confidence as the evidence is of the material improvements. There are also omissions in the evidence of Patil and therefore, the ld. Advocate Mr. Shivade urged that it is extremely unsafe to rely on such evidence. It is further contended that the FIR lodged is also at belated stage as the copy of the FIR was not dispatched to the Court of Metropolitan Magistrate within stipulated period as required by law. It is further contended by ld. Advocate Mr. Shivade that the interview given by Patil to Mid­Day published on 30.09.2002 which was admitted by Patil and states that driver Altaf was at the wheel. According to ld. Advocate Mr. Shivade, Altaf was having giddiness at J.W. Mariot Hotel, therefore, he informed Ashok to come to J.W. Mariot Hotel in order to reach the accused at his residence. While returning to the home from J.W. Mariot Hotel, the alleged accident had occurred. According to defence, the incident is a pure accident.

57. Further it is contended that the injured witnesses were under the vehicle, therefore, it was highly improbable that they were in a position to see the accused getting down from the right side portion of the car. Further it is contended that the prosecution has not examined Yogesh Verma and other witnesses from J. W. Marriot.

58. Further it is contended by ld. Advocate Mr. Shivade that after the accident, the mob gathered on the spot which became furious. The persons gathered were armed with the rods and stones. There was danger to the life of accused, therefore, PW­7 Francis has taken the accused away from the mob and the accused was made to sit in the car stopped by wife of PW­7 in order to leave the place. So according to Mr. Shivade, by no stretch of imagination, it can be said that the accused ran away from the spot. According to ld. Advocate Mr. Shivade, story of the prosecution that the accused had consumed alcohol is a fabricated story. The accused never consumed alcohol in Rain Bar Restaurant. There is no strong evidence to that effect adduced by the prosecution. It is contended that the accused was taken to Bhabha Hospital. However, no medical reports of Bhabha Hospital are produced on record. It is contended that IO PW­27 Shengal has attempted to improve the case by saying that API Suryavanshi disclosed that facility of blood extraction was not available in Bhabha Hospital. Further it is contended that Dr. Shashikant Pawar who draw the blood from the accused did not find accused under the influence of alcohol. It is also argued that the Medical Officer Dr. Pawar did not follow the prescribed procedure for extracting the blood, thereby there is violation of Rule 3 and 4 of Bombay Prohibition (Medical & Blood) Rules 1959, provides these precautions. Further it is also contended that the blood sample was sealed by the ward boy and what precautions were taken by the ward boy while sealing are not forthcoming. Further it is contended that preservative Sodium Fluoride was not added in the sample in order to prevent fermentation. If the preservative is not added, then it will give rise to the fermentation in the blood which generates alcohol, thereby it may affect end result.

59. Ld. Counsel Mr. Shivade attacked heavily on the evidence of PW­18 Bhalshankar who analyzed the blood sample of the accused. It is contended that the blood samples were despatched not within time to the Laboratory. The manner in which the blood samples were kept in police station is also suspicious. No refrigeration was provided in the police station. According to ld. Advocate Shri Shivade, the evidence of PW­18 Bhalshankar is highly unsatisfactory. PW­18 cannot say how he conducted modified diffusion oxidation method. 4 ml blood was found after measuring by PW­18 Bhalshankar, but however, 6 cc blood was sent. According to Mr. Shivade, PW­18 Bhalshankar did not take proper precautions. According to Mr. Shivade, the evidence of PW­18 is suffered from lot of infirmities and therefore, his evidence cannot be accepted and such, the evidence of alcohol consumption needs to be excluded from consideration.

60. Further it is contended by ld. Advocate Mr. Shivade that death of Nurulla was not due to the dash given by the vehicle. According to Shri Shivade, the crane was called to remove the vehicle. When the crane was applied, the bumper came up due to weight of the car and car fell down. According to Mr. Shivade, Nurulla sustained injuries due to fall of vehicle. It is contended that there are circumstances to show that Nurulla was alive after the accident. So it is contended that the death of Nurulla was not caused due to rash and negligent driving. It is also vehemently submitted by ld. Advocate Mr. Shivade that there are lapses, latches and errors in the investigation which is fatal to the case of prosecution. According to Mr. Shivade, there is no evidence of finger prints produced on record by the prosecution though the finger prints of the accused were sent for comparison with the finger prints appearing on the steering wheel. No photographs of the vehicle are taken about its position after the accident. The front left tyre of the vehicle was not sent to the Laboratory for examination. No parking tag was produced on record which is a valid piece of evidence to show about parking of the vehicle in J.W. Mariot Hotel. Further there are belated statements recorded during investigation. The supplementary statement of Ravindra Patil, bodyguard, was recorded on 01.10.2002 where he made improvements to bring the case against the accused u/s.304­II of the IPC. The Investigating Officer did not record the statements of the Security Guard in the J.W. Mariot as well as Yogesh Kadam. Yogesh Kadam was the Valet at J.W. Mariot Hotel who, according to prosecution, took the car to Valet Park. The name of Yogesh Kadam was written on Valet tag and the prosecution alleged that the tag was given to the accused by Yogesh Kadam. So according to ld. Advocate Mr. Shivade, the evidence of Yogesh Kadam was crucial and by not examining him, adverse inference can be drawn against the prosecution. Lastly it is submitted that the accused is falsely implicated on the pressure of the media.

61. According to ld. Advocate Mr. Shivade, the media, mob was gathered in front of the police station and if the police had named the driver Ashok as accused, there would have been allegations from the mob as well as the media that the police are attempting to save Salman Khan. Hence, according to ld. Advocate, therefore, naming Salman Khan was the best available option for police and strongest possible reason why they implicated the accused. So according to defence, the evidence of DW­1 inspires confidence and he was examined at the right time after conclusion of prosecution evidence and after recording statement of the accused u/s.313 of the Cr. P.C. The stage to examine defence witness would come after recording statement of the accused. This is exactly done in the present case. So according to ld. Advocate for the accused, the accused has demonstrated that it was DW­1 who drove the vehicle. The evidence led by accused is probable and acceptable. Ld. Advocate Mr. Shivade would submit that Investigating Officer interrogated Ashok Singh, but did not record his statement which itself demonstrates how the police are interested in filing the case against Salman Khan. Further it is contended that the evidence led by the prosecution is suffered from infirmities, contradictions and omissions and does inspire confidence at all. The evidence of Ravindra Patil in the Court of Metropolitan Magistrate cannot be admitted and read in Sessions Trial. Lapses, errors and lacunas created in the prosecution story rendered the prosecution case invalid and not worthy to be accepted. Lastly, it is submitted that there is always presumption of innocence in favour of the accused and according to Mr. Shivade, if totality of evidence is taken into consideration, it can safely be said that the prosecution miserably failed to prove the charge levelled against the accused beyond reasonable doubt and therefore, the accused is entitled for acquittal.

62. In this case, the admitted facts are that, the accused visited Rain Bar & Restaurant. Bodyguard Ravindra Patil was with accused. Accused then visited J.W. Mariot Hotel. The accident occurred and the vehicle climbed the stairs of American Express Laundry and ran over the persons and went into the shutter of American Express Laundry. The defence also admitted the following documents:­

(i) Cause of Death Certificate of deceased Nurulla (Exh.19), (ii) P.M. report of deceased Nurulla (Exh.20 [Exh.149]),

(iii) Inquest panchanama (Exh.150),

(iv) Injury Certificates of Kalim Mohammad Pathan (Exh.151), Munnabhai Khan (Exh.152), Abdul Rauf Sheikh (Exh.155) and Muslim Shaikh (Exh.156),

(v) C.A. Reports (Exh.157­A to 157­E),

(vi) In the incident, Nurulla Sheikh was expired and four others were injured. The car Land Cruiser was belonging to the accused.

(vii) The third occupant of the car was one Mr. Kamal Khan who was singer and was occupying the back seat of the car.

(viii) The accused was arrested on 28.09.2002.

(ix) The accused was sent for medical examination to Bhabha Hospital and thereafter at about 01.30 p.m. was sent to Sir J.J. Hospital. (x) The accused admitted that his blood was extracted in J.J.Hospital.

63. The prosecution has tendered in evidence the following articles:­

(i) The Fiber piece of vehicle (Art.1), (ii) Soil on tyre (Art.2),

(iii) Bloodstained soil (Art.3), (iv) Pieces of Fiber Glass (Art.4),

(v) Piece of plastic along with label (Art.5), (vi) Color scratched from shutter (Art.6), (vii) Soil from spot (Art.7),

(viii) Glass of headlight (Art.8),

(ix) Colour photos of shutter shown to PW­1 by defence (Art.9).

64. In the light of the above said admitted facts, the evidence of the prosecution is required to be evaluated and scrutinized to ascertain as to whether the same is acceptable to say that the prosecution has proved the guilt of the accused beyond all reasonable doubt and also to see as to whether the defence put forth by the accused can be accepted on the touch stone of the logic of an ordinary prudent man. Thus the Court has to see if the defence stands sustained on the theory of preponderance of probability or the depositions of the witnesses do not give room to the doubts which can be said as reasonable doubts.

As to point nos. 1 to 8.

A) Panchanama :­

65. PW­1 Sambha Gauda was running a tea stall near Ram Temple, S.V. Road, Bandra. One Arjun also used to prepare snacks adjoining to the tea stall of PW­1 Sambha. PW­1 Sambha Gauda is the witness on spot panchanama. On 28.09.2002 at about 03.00 a.m. he was called by Bandra police near American Laundry on Bandra Hill Road. Police informed him that a car was involved in the accident and made request to act as a panch. PW­1 and Arjun had gone to the spot. One police officer, not in uniform, was present there. PW­1 deposed that the said person was Patil. Patil had shown panchas and police the spot of the incident. One big white car entered in the American Laundry. Front portion of the car was damaged. The bumper of the car was also touched the shutter of the laundry. The motor car had climbed three stairs and went in American Laundry. PW­1 deposed that 4 - 5 persons were also found injured beneath the car.

66. It has come in the evidence of PW­1 Gauda that the police had measured the spot, collected the colour scratch of the shutter. The rare side of the wheel of the car was sustained with blood. Police collected blood stains from the spot, collected broken glass pieces and also the number plate. Police also packed the said articles. The panchanama was read over to PW­1 in Hindi and thereafter PW­1 signed the panchanama as well as Arjun signed the panchanama.

67. PW­1 Gauda identified the spot panchanama (Exh.28) and also identified the articles 1 to 8 which are described above. The labels affixed on the envelops bear the signatures of PW­1 Gauda.

68. PW­1 is also cross­examined at length by the ld. Advocate for the accused. PW­1 admitted that he does not possess any licence to run the tea stall. Municipality used to seize the stall and articles of PW­1 and PW­1 used to pay fine to B.M.C. PW­1 stated in cross­ examination that as the police used to call him, he had gone as per the say of police. PW­1 admitted that in order to avoid conflict with police, he used to go on with the police.

69. The ld. Advocate Mr. Shivade vehemently submitted that the PW­1 Gauda is the regular panch available for police and therefore, no reliance can be placed on his evidence. The ld. SPP relied on the reported judgment in the case of Deepak Ghanashyam Naik v/s. State of Maharashtra, 1989, CRI.L.J. 1181 "In the said cited case, Arun Madhav Zankar (PW­2) was called as a panch witness for taking personal search of the appellant. The said panch witness has been attacked by the ld. Advocate for the accused calling him as a professional panch. Panch witness admitted that he had acted as a panch once or twice. It is observed by their Lordships of the Hon'ble High Court are not able to persuade themselves to agree with the submissions of Mr. Sanghani that he is a professional panch because he is not a person doing nothing and under the police obligation to act as a panch witness. In fact, the panch witness has fruits business. No question was put to him in cross­examination to elicit information about the circumstances in which he happened to act as a panch witness once or twice earlier. In the absence of any question put to him in cross­ examination to seek such an explanation, it is not possible to guess in what circumstances he became a panch witness in one or two trial occasions. It is observed that the panch witness is not an idle person or man without means. He is in fact a businessman and there was no necessity for him to comply with the request of police either for consideration or otherwise or to be in a good books of the police."

70. In our case in hand, the panch witness is a hawker and he was doing the business of tea and has no necessity to comply with the request of the police either for consideration or otherwise to be in a good books of police, then even he has acted as a panch on some earlier occasions, his evidence cannot be doubted.

71. In cross­examination PW­1 Gauda also admitted that panchanama was not drawn in the police station. He had not seen the spot of incident earlier. There is a bakery existed near American Laundry. American Laundry and bakery are adjacent to each other. He also stated that the spot of incident was located on the steps. He signed on the labels on the spot of incident. He does not know timing of panchanama. Panchanama was written down by standing on the footpath on Hill Road. The left tyre of the car was found punctured. The car was found in a same position prior to panchanama and after the panchanama when he left the spot of the incident. PW­1 also stated that he had not seen whether the car was removed with the help of crane in order to remove the injured. He cannot say whether the injured were removed from the spot prior to drawing panchanama or after conclusion of the panchanama. The injured were found in entangled below the left wheel of the car. He stated that people were trying to leave the car from the spot. PW­1 stated that it did not happen that the police entered in the car by opening the door of the car and made inspection and police took RC Book, certified copy of New India

Insurance, keys in their possession. PW­1 contradicted portion marked

"A" in the panchanama.

72. PW­1 Gauda also admitted that whatever articles found on the spot were taken in the possession by police and packed in his presence. The police also removed the car with the aid of crane in his presence. PW­1 also stated that he had not seen whether bumper of the car was removed when the crane was touched to that portion at the time of removing the car. Police also had taken the measurement of the car in his presence. When PW­1 signed on the panchanama, car was not present near the shutter. Police also had taken the marking of the car and also had taken the measurement of the distance from the place where the car was found till the road and also the distance from the car till the shutter of the American Laundry. PW­1 Gauda denied in the cross­examination that no panchanama was drawn in his presence and he signed it, in the police station. PW­1 Sambha Gauda saw the blood only on the tyre and not on the other place.

73. If the evidence of PW­1 Sambha Gauda is looked into, I find that his evidence inspires confidence. The spot panchanama was drawn in his presence and there is no reason for him to depose in favour of the prosecution.

B) Whether the evidence of Ravindra Himmatrao Patil recorded before the Additional Chief Metropolitan Magistrate, Bandra, in C.C. No.490/PS/2005 is relevant, admissible u/s.33 of the Indian Evidence Act and can be relied in the proceeding against the accused :­

74. This is a crucial aspect of the case as to whether the evidence of Ravindra Himmatrao Patil recorded in the Court of ld. Additional Metropolitan Magistrate is relevant, admissible, and be relied in this case. I have also discussed the events after filing charge­sheet in the Metropolitan Magistrate Court, Bandra, and thereafter what had happened in para nos.24 to 31 of the judgment. The ld. SPP Mr. Gharat filed an application (Exh.131) for taking the evidence of Ravindra H. Patil and Dr. R.L. Sanap on record. Ravindra Patil was expired in the year 2007. On 07.03.2015 I have decided the said application and in view of the ratio laid down in the case of Bipin Shantilal Panchal Vs. State of Gujarat and Another [(2001) 3 Supreme Court Cases 1] the evidence of Ravindra Patil recorded in the Court of ld. Metropolitan Magistrate is taken on record in the case in hand and it is at Exh.141. Dr. R.L. Sanap performed postmortem on the dead body of Nurulla. Dr. Sanap is reported to be residing in U.S.A. The defence specifically mentioned in the say that the defence is not challenging the injuries caused by the deceased and cause of death mentioned in the postmortem report and no prejudice is caused to the defence if Dr. R.L. Sanap is not examined. So the evidence of Ravindra Patil is taken on record in the present case. The prosecution as well as the accused were granted liberty to refer the said evidence during the examination of Rajendra Kadam (PW­26) who recorded the complaint of Ravindra Patil and also Investigating Officer Shengal (PW­27). Further the relevancy and admissibility of the evidence of Ravindra Patil taken on record is to be decided now.

75. It is pertinent to note that the prosecution has examined PW­25 Kailash Behre, brother of Ravindra Patil (deceased/ complainant). According to PW­25, Ravindra Patil was the bodyguard of the accused in the year 2002. After the incident, Ravindra Patil was transferred to LA Division, Tardeo. PW­25 Kailash deposed that Ravindra Patil was not keeping well and he could not recover from the illness and was expired on 03.10.2007. Death Certificate is at Exh.140. The defence also did not seriously dispute about the death of Ravindra Patil.

76. The ld. SPP Mr. Gharat vehemently submitted that the evidence of Ravindra Patil taken on record is relevant and be admitted u/s.33 of the Indian Evidence Act. It is necessary to reproduce Sectionv33 of the Indian Evidence Act which reads as under:­

"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated :

Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable :

Provided ­

that the proceedings was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross - examine ;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused with in the meaning of this section."

77. It is vehemently submitted by ld. SPP Mr. Gharat that after recording of the evidence of witnesses, the case was committed to the Court of Sessions as the ld. Metropolitan Magistrate was of the opinion that charge u/s.304­II would be attracted. My Ld. Predecessor again framed the charges including charge u/s.304­II of the IPC after committal. As discussed in above paras and in view of the various provisions in Cr.P.C. and after hearing the ld. defence Counsel Mr. Shivade and then APP Mr. Kenjalkar, it was decided to take the evidence afresh. The summons was issued to the witnesses including complainant Ravindra Patil, but it was informed to the Court that Ravindra Patil was expired due to Tuberculosis on 03.10.2007.

78. Therefore, the ld. SPP under such circumstances, contended that Sec.33 of the Indian Evidence Act needs to be invoked. According to him, Sec.33 of the Indian Evidence Act provides that the evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a later stage of same judicial proceeding, the truth of the facts which is states, when the witness is dead or cannot be found. According to ld. SPP Mr. Gharat, the evidence of Ravindra Patil as PW­1 in the case No.490/PS/2005 was completed before the ld. Additional Chief Metropolitan Magistrate on the facts of the case and full opportunity of cross­examination was given to the accused, which satisfied all the three conditions of the proviso to Sec.33. It is further contended by the ld. SPP that the accused has got full opportunity to rebut the entire evidence of Ravindra Patil. According to ld. SPP Mr. Gharat, facts are to be rebutted, proved or disproved on the touch stone of the cross­examination. According to ld. SPP, truth of the facts was tested in cross­examination of the defence. The accused also confronted the every question available with the accused.

79. According to ld. SPP, the evidence of Ravindra Patil would be the same even after framing the charge u/s.304­II of the IPC. According to ld. SPP,. there are allegations against the accused that on the fateful day of the incident, the accused drove the car in a rash and negligent manner under the influence of liquor and was having knowledge that the labourers were sleeping in front of American Laundry. The accused is residing near the spot of incident and brought up in Mumbai. The FIR was lodged by Ravindra Patil. His examination­in­chief was also recorded in view of FIR filed by him. According to ld. SPP, facts of the case would be the same when charge u/s.304­A of the IPC was framed earlier and after committal, charge u/s.304­II of the IPC is framed. According to ld. SPP, law imposes certain duties on the person not to drive the car under the influence of liquor and in callous and negligent manner. Moreover, the person also knows that without driving licence, one should not drive the vehicle. So what else would be the knowledge.

80. The defence of the accused is that the accused was not driving the vehicle, DW­1 Ashok Singh was driving the vehicle. Charge u/s Sec.304­II of the IPC is framed in this case that the accused drove the car in rash and negligent manner under the influence of alcohol with the knowledge that people are sleeping in front of American express Cleaners and the accused was having knowledge that by driving the vehicle in rash and negligent manner under influence of liquor he was likely to cause death and caused death of Nurulla Shaikh. In the evidence, Ravindra Patil stated all the facts of the incident. So even if charge u/s.304­II of IPC is framed in the present case, the facts would be the same. The defence also cross­examined Ravindra Patil in the Metropolitan Magistrate Court exhaustively and substantively on the various dates. The omissions were also brought on record by the defence. Suggestion was also given to complainant Ravindra Patil that the accused was not driving the vehicle in drunken state. Suggestion was also given to the complainant that the accused was not driving the car in the beginning of incident night. Suggestion was also given to the complainant that on 01.10.2002 his supplementary statement was recorded in order to involve the accused in the case.

81. So fullest opportunity is given to the accused to cross­ examine Ravindra Patil in the Additional Chief Metropolitan Magistrate Court and the said opportunity was availed by the accused. So it cannot be said that the accused was not having opportunity to cross­examine Ravindra Patil.

82. Now question remains about knowledge. As stated by me above, the law imposes certain duties on any person that he should not drive the vehicle under the influence of liquor and also without licence. Every person is having the same knowledge. These are the important ingredients of Sec. 304­II of the I.P.C. So every person has knowledge about the above things and the accused exhaustively cross­examined the complainant by putting suggestion that the accused was not driving the vehicle and he was not in a drunken state of health. So in my opinion, it will be safe to admit the evidence of Ravindra Patil in case in hand u/s.33 of the Indian Evidence Act. The ingredients of Sec.33 are fully attracted in our case pertaining to the evidence of Ravindra Patil.

83. The ld. SPP also relied on the judgment of 1881 Indian Law Reporter, page 42, in the matter of petition of Rocha Mohato (Appellant) ­ The Empress v. Rochia Mohato. It is necessary to reproduce some portion of the said case and the same is as follows:­

"This is an appeal from a conviction by a jury in respect of which we can only interfere if there has been some error of law or misdirection by the Judge. Now it is alleged that we ought to interfere on two grounds: first, that evidence has been wrongly placed before the jury ; and secondly, that in certain particulars there has been a misdirection, or rather a want of direction by the Judge. With respect to the first ground that improper evidence has been placed before the jury, the complaint is, that the depositions of two witnesses who were examined before the Magistrate were improperly allowed by the Judge to be put in by the prosecution and used in the Sessions Court under the following circumstances :

One of these witnesses was the person whom the defendant and his party were accused of assaulting, and who has since died. Now, before the Magistrate the only complaint was a charge of grievous hurt. But in consequence of the death of the person who was hurt viz., Khedroo, other charges were added before the Sessions Judge, ­viz, a charge of murder and a charge of culpable homicide not amounting to murder. In consequence of these additional charges, it is argued that, under S. 33 of the Evidence Act, the questions in issue before the Sessions Court, and before the Magistrate, were not substantially the same in the two proceedings. As a matter of fact, the prisoner has only been convicted of grievous hurt; and therefore the issue that was before the Magistrate was only issue that has been decided against the accused by the jury. It appears to us, that, by "the questions in issue," it is not intended that, in a case where the prisoner injured dies subsequently to the enquiry before the Magistrate, his evidence is not to be used before the Sessions Court, because in consequence of his death other charges are framed against the accused. We are of opinion that the evidence of the deceased in this case was admissible under s. 33, and even if it were not admissible under s.

33, that it would be admissible under the first clause of s. 32 of the Evidence Act. The question whether the proviso to s. 33 is applicable, ­ that is, whether the questions at issue are substantially the same, ­ depends upon whether the same evidence is applicable, although different consequences may follow from the same act. Now, here the act was the strokes of a sword which, though it did not immediately cause the death of the deceased person, yet conduced to bring about that result subsequently. In consequence of the person having died, the gravity of the offence became presumptively increased ; but the evidence to prove the act with which the accused was charged remained precisely the same. We therefore think that this evidence was properly admitted under s. 33."

84. The ld. SPP also relied on the case of The State V/s. Suraj Bali & Ors. [1982 CRI.L.J. 1223 (Allahabad High Court, Lucknow Bench)] wherein it is held as under:­

"Evidence Act (1872), Section 33­ Deposition of a dead witness­ Admissibility - Direction by Appellant Court for commitment under Section 423 (1) (b) Criminal P. C. after setting aside conviction - Former proceedings in trial Court not rendered illegal - commitment to Sessions - Death of a witness - His deposition in first trial - Admissible in Sessions Court.

Where an appellant Court, after setting aside conviction, directs the trial Magistrate under Section 423(1) (b), Criminal P. C. to commit the accused to Sessions Court, the former proceedings in the trial Court are not rendered without jurisdiction and illegal and a deposition of a witness in those proceedings can be brought on record in the Sessions Court under section 33 of the Evidence Act if the witness is dead."

85. In this case, the opposite parties Suraj Bali, Misri Lal, Ramanand, Sadgu, Shankar and Motilal were prosecuted under Sections 147, 342, 324 / 149, 323/149 of the Indian Penal Code before the Judicial Magistrate, Lucknow. The Magistrate recorded the statements of the various witnesses including that of one Ramchandra (PW­2). The ld. Magistrate convicted and sentenced the opposite parties to undergo various terms of the imprisonment. The opposite parties appealed and the appellate court was of the view that the evidence indicated the alleged commission of an offence u/s.387 of the Indian Penal Code which was exclusively triable by the Court of Sessions. The conviction was set aside and the matter was remanded to the ld. Magistrate with a direction that he should commit the case to the Court of Sessions on a proper charge. The case was committed u/s.387 of the IPC. It transpired that PW­2 Ramchandra (who had been examined by the Magistrate) died before, he could be examined at the trial before the Assistant Sessions Judge. The Public Prosecutor presented an application to examine father of Ramchandra to prove the latter death to enable the prosecution to apply for the transference of the deposition of Ramchandra from the record of the Court of the Magistrate on to the record of the Sessions Trial as evidence u/s.33 of the Evidence Act. The said application was rejected. It is held in para 7 by the Hon'ble High Court as under:­

"7. The learned Assistant Sessions Judge was to my mind not correct when he rejected the application. It is, therefore, directed that the State shall have the liberty to lead evidence to prove that Ram Chandra is dead and to bring his earlier deposition on the record under Section

33 Evidence Act. As to what value should attach to that statement is for the trial Court to decide, and not for this Court."

86. The ld. SPP also relied on the case of Ramvilas and others v/s. State of Madhya Pradesh (1985 CRI. L.J. 1773).

"(A) Evidence Act (1 of 1872), S. 33­ Applicability - Essential requirements.

For admissibility of the recorded evidence of a person in accordance with S. 33, one of the essential requirements is that 'the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable' . The allegation has to be legally proved like any other fact and the burden or proof rests upon the party which invokes the section. (Para 9)

Where S. 33 was sought to be invoked in respect of a prosecution witness on the ground of her death it was held that it was for the prosecution to prove the alleged death of that witness according to law and it cannot be said that her death was impliedly admitted by not challenging the report regarding her death. In a criminal case, it is not open to the accused to waive its proof. Consent for want of objection on the part of the accused or his counsel to the deposition of a witness being brought on record under the said section cannot make it admissible, if it is not otherwise so. Thus, when the death was not proved by the prosecution, it was not entitled to resort to S. 33 (para 9)

Also S. 33 contemplates (i) a subsequent judicial proceeding in which that person has to be examined as a witness or (ii) a subsequent stage at which that person has to be examined as a witness in the same judicial proceeding as the case may be. (para 10)"

87. In the said case, the appellants were charged with the alleged offences u/s.148, 302, 149, 307/149 and 395/397 of the Indian Penal Code. After holding a trial, the appellants were convicted. The conviction is based on the solitary testimony of Mrs. Gangadevi (PW­27) and few pieces of circumstantial evidence. Her evidence was recorded on 07.01.1981 on which date she was examined in chief, cross­examined and discharged. Her dying declaration was recorded on 25.12.1981 by the Executive Magistrate Mr. Pandey (DW­2). That statement had not been filed by the prosecution nor had a copy thereof delivered to any of the appellants. The application was filed on 02.02.1981 by the appellants for recalling of PW­7 Gangadevi. The said application was rejected by the Sessions Court, but in Revision the Hon'ble High Court allowed the application. The Sessions Court directed Gangadevi (PW­7) to re­summon for further cross­examination and posted the case to 05.03.1981. The matter was adjourned from time to time. When the matter was fixed on 23.04.1981, the summons report of Gangadevi had been written to the effect that she had died on 08.04.1981. In the above mentioned circumstances, it is contended on behalf of the appellants that the testimony of PW­7 cannot be read in evidence u/s.33 of the Evidence Act.

In the said case, it is held as under:­

"10. But, in our opinion, in the circumstances of the present case, recourse to the said section is not necessary to give relevancy to the testimony of Mst. Gangadevi ((P.W.7) as we shall presently show. No decision of the Supreme Court or this Court on this point has been brought to our notice. The rule contained in the section is an administrative expedient for doing justice between litigants in a particular situation. The court requires a litigant to furnish evidence of the primary grade if it is within his power to do so. So long, therefore, as the proponent can reasonably be required to cause a witness to repeat his evidence regarding admissible facts given on a former occasion the Court insists that the witness himself be produce. In other words, primary evidence is insisted upon until a satisfactory necessity for offering secondary evidence is made out. When the proponent's necessity for producing evidence of secondary grade is established, the right to submit it is recognised by the Court so long as the original evidence is attainable, evidence which is merely substitutionary in its nature cannot be received. The section states the circumstances and conditions under which secondary evidence of oral testimony may be given. Under those circumstances and conditions, the section makes relevant the evidence already given by a person (i) in a prior judicial proceeding or before any person authorised by law to take it or (ii) at an earlier stage of the same judicial proceeding. That is to say, if a party wants to give the evidence of the same person (i) in a subsequent judicial proceeding or (ii) at a subsequent stage of the proceeding as the case may be, his evidence already recorded earlier can be considered and he need not be examined in the subsequent judicial proceeding or at the subsequent stage of the same judicial proceeding as the case may be if the circumstances and conditions mentioned in the section are fulfilled. The section contemplates (i) a subsequent judicial proceeding in which that person has to be examined as a witness or (ii) subsequent stage at which that person has to be examined as a witness in the same judicial proceeding as the case may be. In the present case, there is no question of a subsequent judicial proceeding. Here, the question is whether, in the sessions trial, there was any stage at which it was necessary for the prosecution to give evidence of Mst. Gangadevi (P.W.7) again. Her evidence had already been recorded at the trial on 7­1­1981 under S. 231 of the Cr. P.C. 1973 read with S. 137 of the Evidence Act and there was no subsequent stage for giving her evidence. As there was no subsequent stage for giving her evidence, there was no occasion for invoking S. 33 of the Evidence Act for giving relevancy to her evidence recorded on 7­1­1981. The relevancy was never lost by it as it was the evidence of primary grade given at the trial. S. 33 abid states the circumstances under which secondary evidence of oral testimony may be given. When evidence of primary grade has been adduced, there is no occasion to invoke or resort to that section.

11. The fact, however, remains that the appellants were deprived of the opportunity to further cross­examine Mst. Gangadevi (P.W.7) in the light of her earlier statement dt. 25­12­1979 (Ex.D­5) recorded by the Executive Magistrate Sanskar Pande (D.W.2). That opportunity was directed to be given to them vide order dated 20­2­1981 in the criminal revision referred to in para No. 7 above. That statement (Ex.D­5) could be made use of by the appellants only for contradicting her under S. 145 of the Evidence Act. It has, therefore, to be examined as to how far the appellants are adversely affected or prejudiced thereby. Reference to her testimony becomes necessary at this stage."

88. I have gone through the cited case and with due respect, I find that the facts in the case of Ramvilas and others v/s. State of Maharashtra (cited supra) are not applicable to the facts of the case in hand. In our case, the evidence was recorded afresh, after framing the charge u/s.304­II of the IPC after committal. Complainant Ravindra Patil is expired. He has stated the facts in his evidence before the ld. Metropolitan Magistrate as to how the accident took place. Those facts would be the same for the charge u/s.304­II of the IPC. In view of the ingredients of Section 33 of the Indian Evidence Act and in view of the judgment in case of 1881 Indian Law Reporter and The State V/s. Suraj Bali & Ors. (cited supra), the evidence of Ravindra Patil is relevant, and admitted and is taken on record u/s.33 of the Indian Evidence Act in the case in hand. As to what value should attach to the said evidence is to be discussed later on.

89. The ld. Advocate Mr. Shivade vehemently argued that the essential conditions of Sec.33 are not fulfilled by the prosecution. It is contended that the charge and nature of the offence in both the trials are different. The ingredients of Sec.304­A and 304­II of the Indian Penal Code are dramatically opposite in respect of mens rea. The offence u/s.304­A requires an act of omission while Sec.304­II requires an act of commission. It is also argued by ld. Advocate Mr. Shivade that the accused did not get proper opportunity for cross­examination with reference to the charge or issues.

90. Ld. Advocate Mr. Shivade vehemently submitted that in the earlier trial the accused was facing the lighter charge. Sec. 304­A of the IPC punishable with two years or fine. According to ld. Advocate Mr. Shivade, the cross­examination is always permitted to the extend of charge and accused is not supposed to anticipate all the potential charges and cross­examined accordingly. The earlier evidence was recorded in the absence of the accused. According to Mr. Shivade, the accused is now facing a grave charge of culpable homicide not amounting to murder, punishment provided upto 10 years or fine. Ravindra Patil has not been cross­examined in this case. It is contended that the evidence of Patil was tendered at the fag end. Further according to Mr. Shivade, issues involved in both the cases are not substantially the same.



91. The ld. Advocate further contended that the provisions of Section 33 of Indian Evidence Act are not complied with in this case, because the accused in the first proceeding had no right or opportunity to cross examine Patil in relation to offence of Section 304, Part II as the earlier trial was only for Section 304­A and other lesser charges. Therefore, even if the Sessions Court trial is between the same parties recourse cannot be taken to Section 33.

92. Further it is argued by ld. Advocate Mr. Shivade that the question and issue in the Magisterial trial and the Sessions Court trial are not substantially the same because the question of intention or knowledge of the accused in relation to the act done by him was completely irrelevant in the trial u/s.304­A while they are essential in Sec.304­II of the IPC. According to Mr. Shivade, there is always substantial difference between the act causing the death and the act causing the injury. According to Mr. Shivade, in the present case, the case of the accused is that he was not driving. Further according to Mr. Shivade it is also necessary to note the provisions of Section 304­I which required that the act causing death is done with the intention of causing death or causing such bodily injuries as is likely to cause death. Part­II of Sec.304 also contemplates an act done which results in death of the person with the knowledge that such act is likely to cause death, but without any intention to cause death or such bodily injury is likely to cause death. According to Mr. Shivade, therefore, all this is not required to prove, if the person is tried u/s.304­A of the IPC whether he had intention or not, whether he had any knowledge or not. Hence, according to Mr. Shivade, offences u/s.304­A and 304­II are different and are not substantially the same. Section 304­A is an independent charge, it is not lesser offence than Section 304­II of the IPC. Hence, according to Mr. Shivade, the evidence of Patil cannot be held relevant and read in Sessions Court trial. It is contended that the Magisterial trial and, after committal, a Sessions trial is not a later stage of the same judicial proceeding and therefore, Sec.33 of Evidence Act cannot be invoked. According to Mr. Shivade, the accused is deprived of substantial right to cross­examine Patil.

93. I am afraid to accept the contentions of ld. Advocate Mr. Shivade. As discussed above by me, the facts are to be rebutted in cross­examination. The complainant Patil has narrated in his evidence about the facts as to how the accident took place. There are allegations against the accused about driving the vehicle in rash and negligent manner under intoxication. The accused exhaustively cross­examined Patil before the ld. Additional Chief Metropolitan Magistrate Court. Under Section 304­II, knowledge plays the important role. As discussed above, every prudent man is having knowledge that he should not drive the vehicle under the influence of alcohol or without having licence. Every prudent man is having knowledge about the consequences of breach of the above duty. The accused is also resident of same vicinity wherein the spot of incident is located. The accused used to pass from nearby the spot of incident. So the accused was having knowledge that people used to sleep in front of American Express Cleaners. The Hon'ble Apex Court also held in the land mark judgment of Alister Anthony Pareira V/s. State of Maharashtra that in Mumbai, people do sleep on the pavements.

94. Ld. Advocate Mr. Shivade relied on the case of Willie (William) Slaney V/s. State of Madhya Pradesh (AIR 1956 SC 116). In the said case, it is held as under:­

"12. In our opinion, the key to the problem lies in the words underlined. Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well­established notions of natural justice that a trial or that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused."

95. It is most important to note here that the evidence of Ravindra Patil would be the same as to the facts of the incident which he has stated and therefore, no prejudice would be caused to the accused when the evidence of Ravindra Patil is relevant, taken on record u/s 33 of Indian Evidence Act. It is presumed that every person has knowledge that one should not drive the vehicle under influence of liquor and also without licence. So under such circumstances, the arguments of Mr. Shivade that the accused was prejudiced for want of cross­examination of Patil in view of framing charge u/s Sec.304­II of the IPC cannot be accepted. The accused had cross­examined exhaustively and substantially Ravindra Patil before the Additional Chief Metropolitan Magistrate and also suggested him that the accused was not driving the vehicle under the influence of liquor. Omissions and improvements are also brought during cross­examination. What would be the effect of omissions and improvements is another aspect. But in my opinion, the evidence of Ravindra Patil is complete evidence. The facts deposed by him would not be changed, even the charge u/s.304­II of the IPC is framed. Moreover, ld. Advocate Mr. Shivade also contended that the entire prosecution u/s.304­II of the IPC revolves around the intention and knowledge of the accused. I am also afraid to accept the said contention on the ground that u/s.304­II of the IPC, the question of intention does not arise. So after considering all the submissions of ld. SPP Mr. Gharat and ld. Advocate Mr. Shivade, after considering the provisions of Sec.33 of the Indian Evidence Act and also having regard to the nature of the facts pertaining to the incident stated by complainant Ravindra Patil and also the opportunity availed by the defence fully to cross­examine, I find that this is the perfect case wherein evidence of Ravindra Patil would be relevant and admissible u/s.33 of the Indian Evidence Act in case in hand.

C) The most important and crucial point to be ascertained is that whether the accused was driving the car on the intervening night of 27.09.2002 and 28.09.2002.

96. The ld. Advocate Mr. Shivade vehemently submitted that Ravindra Patil being a sole eye witness to the incident, his evidence should be scrutinized with great care and caution. Moreover the evidence of Patil is also to be analysed and appreciated whether it does inspires confidence.

97. The ld. Advocate Mr. Shivade relied on the case of Vadivelu Thevar V/s. State of Madras (AIR 1957 SC 614), wherein it is held that,

"Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable. (2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable."

98. The ld. Advocate Mr. Shivade also relied on the case of Birappa & Anr. V/s. State of Karnataka [(2010) 12 SCC 182] wherein it is held as under:­

"Witnesses­­­­­Solitary eyewitness­­­Appreciation of testimony of ­­­ Held, where prosecution story rests on single eyewitness, such witness must inspire full confidence, which was not the case herein, where conduct of sole eyewitness was unnatural­ Conviction reversed.

The conduct of PW 1 was clearly unnatural which makes his evidence extremely suspicious. As per the prosecution story he had seen his brother being cut up at about 6.00 p.m. at a place half a kilometre away from the village near a temple and in an area which was heavily populated (as Konnur was a large village) and he had rushed home at 6.00 p.m. and then returned at 8.00 p.m. to look for his brother. PW 1 in his evidence did not utter a single word as to the places he had visited while in search or the inquires he had made from the neighbourhood which had a chemist shop, a tea shop, a liquor vend and several residential houses in the fields along a very busy road. Thus, PW 1 was perhaps not an eyewitness and he had lodged the FIR only after the dead body had been discovered. This perhaps explains the delay in the lodging of the FIR."

99. The ld. SPP Mr. Gharat would submit that the evidence of Ravindra Patil is totally trustworthy, credible and believable and cannot be discarded in proof that the accused was driving the vehicle at the time of incident. Further the ld. SPP also submits that it is the specific and pointed defence of the accused that DW­1 Ashok Singh was driving the vehicle.

100. The ld. Advocate Mr. Shivade relied on the reported judgment of the Hon'ble Apex Court in case of State of Haryana v/s. Ram Singh in Criminal Appeal No.78 of 1999 with Rai Sahab and Another Vs. State of Haryana in Criminal Appeal No.79 of 1999 [(2002) 2 Supreme Court Cases 426. Relying on the said authority, ld. Advocate Mr. Shivade submitted that the evidence tendered by the defence witnesses cannot always be termed to be tainted one. The defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witness on a par with that of prosecution.

101. So as stated above, let us appreciate the evidence adduced by the prosecution to demonstrate that it was the accused who was driving the vehicle and also let us appreciate the evidence of DW­1 Ashok Singh that he was driving the vehicle in order to come to the conclusion who either of two was driving the vehicle.

102. The evidence of Ravindra Patil is now taken on record in this case being relevant u/s.33 of the Indian Evidence Act. As per his version, he was the bodyguard working with the accused from 28.08.2002. He used to remain along with the accused as a part of the duty. On 27.09.2002 complainant Ravindra Patil joined the duty at 08.00 p.m. As per his version at about 09.30 p.m. on 27.09.2002 accused and Kamal Khan came out side the residence. They told complainant Ravindra Patil that they are going to visit Rain Bar. The accused is having Toyota Land Cruiser car bearing no.MH­02­DA­32. Complainant Patil, Kamal Khan sat in the car and the accused drove the car. The accused reached at Rain Bar. The accused asked Ravindra Patil to wait out side and the accused and Kamal Khan went inside the Hotel. The visit of Rain Bar is admitted by the accused u/s.313 of the Cr. P.C., but he denied that he was driving the vehicle.

103. The bodyguard of Mr. Sohel Khan (PW­6 Balu Laxman) also met complainant Ravindra Patil out side the hotel. Sohel Khan had also come in Hotel Rain Bar. At about 01.30 a.m. accused and Kamal came out side Rain Hotel.

104. The evidence further reveals that Kamal sat on rear side, the accused sat on the driver's seat and complainant sat on the seat near the driver's seat. The car reached near J.W. Mariot Hotel. The accused and Kamal Khan went inside the Hotel. Complainant Patil waited out side. At about 02.15 a.m. the accused and Kamal Khan came out side the hotel. The accused then sat on the steering of his car. The complainant sat near the driver's seat. The complainant asked the accused whether he will drive the car. The accused neglected complainant Patil. Kamal was sitting at the rear side of driver seat. The vehicle came on the St. Andrews Road which was driven by the accused. Complainant Patil stated in his evidence that the accused was drunk and driving the motor car at 90 to 100 km per hour. Before coming at the junction of Hill Road, complainant told the accused to lower the speed in view of the right turn ahead. The accused neglected the say of complainant and he could not control the car while taking right turn and vehicle went on the footpath. The people were sleeping on the foot path. The motor car ran over the persons sleeping on the footpath and climbed the three steps of American Laundry and gave dash to the shutter of American Express shop (Laundry). The motor car broke the shutter and went inside about 3 and ½ ft.

105. There was shouting of the people and the people gathered there. The people surrounded the car. However, with great difficulty, complainant, accused and Kamal went out of the car. People were in angry mood. The complainant Patil showed his identity card and told that he is police personnel, therefore, they were pacified. The accused Salman and Kamal ran away.

106. Complainant Patil went to the motor car and saw below it and noticed one person seriously injured having multiple injuries and four injured persons below the car who were trying to come out.

107. Complainant Patil then informed to the Control Room. Within 5 minutes, Bandra police came there. Police rescued the injured persons and body of the dead person was sent to Bhabha hospital. The injured were taken to the hospital. Complainant Patil pointed out the place to the police.

108. Complainant Patil went to Bandra Police Station and lodged the complaint. FIR is at Exh.P­1. According to complainant Patil, the accused was in drunken state and could not control the speed while taking turn. Further supplementary statement of Patil was recorded on 01.10.2002.

109. So if the evidence of Patil is looked into, he has deposed that the vehicle was driven by the accused. In cross­examination of ld. Advocate Shri Sampat Mehta, complainant Patil admitted that the injured were below the car and the police rescued them from beneath the car and sent to the hospital. Complainant Patil also stated that the dead body of the person was taken out from beneath the car and was sent to the hospital. The police also drew the panchanama of the incident place and then returned to Bandra Police Station. Complainant Patil also admitted that he went to Bandra Police Station and lodged the complaint with Yadav and Kadam (PW­26). According to complainant, his complaint was read over to him and the contents were true and correct. It has come in the cross­examination that the incident had taken place before about 1 hour of recording his complaint. So it appears that the complaint was lodged immediately after the incident and there was no delay.

110. Ld. Advocate Mr. Shivade relied on the case of Sucha Singh V/s. State of Punjab [(2009) 11 SCC 584] wherein it is held as under:­

"In FIR, informant PW 4 stating that his mother sold illicit liquor to maintain her children, while in his evidence he stating that she sold only two bottles of liquor occasionally­­­­Held, if brothers had nothing to do with sale of liquor, as rightly held by trial court, motive must be held to have not been proved ­­­­ Moreover, PW 5 had categorically denied that his mother sold any liquor or earned her livelihood by doing liquor work­­­ Further, there were significant contradictions in matter of number of injuries, time and place of occurrence, sequence of events, manner of identification of accused

­­­­ There was also lack of motive and false implication of co­accused M ­­­­ PW 4 had made vital contradictions in his FIR vis­a­vis the supplementary statement when it was found that right hand of M was amputated and he was not in a position to inflict any injury­­­Hence, impugned judgment reversing the judgment of acquittal and convicting appellant cannot be maintained."

111. During cross­examination, there are some omissions and improvements brought on record. PW­1 admitted that he has not stated in FIR that the accused was in drunken state and was driving the vehicle. However, in FIR (Exh.P­1), there is mention that the accused Salman Khan was driving the vehicle. There is also no mention in the FIR that complainant Patil asked the accused to lower the speed of the car as right turn is coming. However in supplementary statement, the said fact is mentioned. Complainant also stated that there is no mention in FIR that the accused was driving the motor car in high speed and was in drunken state and could not control the speed of the car while taking turn. However, on going through the complaint (Exh.P­1), there is mention that the accused was driving the vehicle in high speed and he could not control the vehicle while turning on the Hill Road. The vehicle went straight towards the shop on the junction and ran over the persons sleeping on the footpath and on the stairs and rammed the shutter of American Express. It appears that the complainant did not mention in the FIR that the accused was in drunken condition. However, in supplementary statement, there is mention that complainant noticed in view of the body language of the accused that he might have consumed the alcohol.

112. Reliance is placed in case of Animireddy Venkata Ramana and others V/s. Public Prosecutor, High Court of Andhra Pradesh [2008(4) Mh. L.J. (Cri.)1 (Supreme Court)]. In the said case, it is observed as under:­

"(b) Contents of FIR­A first information is not meant to be encyclopaedic.

12. In the First Information Report all the accused persons were named and overt acts on their part were also stated at some length. Each and every detail of the incident was not necessary to be sated. A First Information Report is not meant to be encyclopaedic. While considering the effect of some omissions in the First Information Report on the part of the informant, a Court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the Court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the Court applies certain well­known principles of caution.

13. Once, however, a First Information Report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof. If furthermore the purported entry in the general diary, which had not been produced, is not treated to be a First Information Report, only because some enquiries have been made, the same by itself would not vitiate the entire trial. Enquiries are required to be made for several reasons.; one of them is to ascertain the truth or otherwise of the incident and the second to apprehend the accused persons. Arrest of accused persons, as expeditiously as possible, leads to a better investigation. Accused No. 1 was a Sarpanch of the village. Accused no. 2 is a fair Price Shop dealer. Accused No. 3 was also admittedly a well­known person. It is also not denied and disputed that other accuse were also related to him.

In view of the fact that such an incident had taken place, indisputably it would immediately be known to the villagers. Those who hold some respectable position in the village and particularly those who are concerned with the administration of Panchayat were expected to be present."

113. Complainant Patil also stated in cross­examination that the vehicle Land Cruiser did not stop from Hotel J.W. Mariot to the place of incident, once started. Further there is also omission to state in the complaint that the accused neglected the say of complainant to lower the speed. However the said fact is mentioned in supplementary statement of Patil dated 1.10.2002.

114. Complainant Patil denied that the accused was not driving the car from beginning. He also denied that the accused was neither drunk nor driven the car. He also denied that the accused was not driving the car at the speed of 90 to 100 km per hour in the incident night. He also denied that he did not tell the accused to drive the car slowly when it came near junction of St. Andrew Road and Hill Road.

115. Complainant Patil also admitted in cross­examination that there was hue and cry in media, like T.V. press against the accused after happening the incident. He also admitted that the reporters of the newspapers and T.V. channels were taking the interviews of the persons. Complainant Patil also admitted that reporter of Mid­Day had come to him for taking interview of the incident dated 28.09.2002 and he narrated the reporter the incident taken place. The reporter also noted down what complainant had answered him. The reporter also read over to him what they wrote. Complainant also admitted that on next day i.e. 30.09.2002 interview was printed and published in Mid­ day along with photographs. It appears that during cross­examination the questions were asked to the complainant Patil about interview. The Ld. SPP objected defence to put questions to complainant on the alleged interview.

116. A question was asked to the complainant Patil during cross­ examination whether the complainant has stated to the reporter of Mid­ Day whether Altaf was on the wheel when Salman and Kamal returned from Rain Bar and started to Salman's house by car. Complainant replied that he does not remember. The interview was given to Mid­ Day. Another question was asked to the complainant as to whether the complainant stated before the reporter of Mid­day that after returning from J.W. Mariot Hotel, Salman sat on the driver's seat of the car. Complainant replied that he has stated so.

117. Another question was asked to the complainant whether he had stated to the reporter that the accused was driving the vehicle at the speed of 70 km per hour. Complainant replied that he does not remember. Further question was asked to the complainant whether he has stated to the reporter that Land Cruiser was about to hit at the electric poll. Complainant replied that he has stated so to the reporter. The copy of the Mid­Day is produced on record, subject to objection. The ld. SPP also objected showing the copy of the Mid­Day newspaper to the witness, during evidence recorded in the court of Additional Chief Metropolitan, Bandra.

118. Further complainant admitted that he stated to the reporter that Salman shouted saying, "gadi nahi ghum rahi (car is not turning)" and then he lost the control of the vehicle and then he rammed to the American Express Laundry. Further complainant also admitted to have stated to the reporter that mob of 50 people gathered on the spot, started pelting the stones. Complainant also admitted to have stated to the reporter that Salman requested to public to listen but the angry mob kept throwing the stones. Complainant also admitted to have stated to the reporter of Mid­Day that in the meanwhile, Kamal escaped in the crowd and minutes later Salman got into autorickshaw and left. So it appears that the above cross­examination is concentrated on the so called interview by the complainant to the Mid­day newspaper. The copy of Mid­day newspaper dated 30.09.2002 is produced on record and marked as D­1, subject to proving by appropriate evidence. However, the defence failed to take steps to prove the said copy by appropriate evidence, the said material cannot be considered in evidence. The reporter who had taken the alleged interview is not examined by the defence. The defence has not chosen to examine the concerned reporter and therefore, the question by the reporter to complainant and his reply becomes inadmissible in evidence.

119. The ld. SPP relied on the reported judgment of the Hon'ble Apex Court in case of Tukaram S. Dighole Vs. Manikrao Shivaji Kokate in civil appellate jurisdiction in Civil Appeal No.2829 of 2008 decided on 05.02.2010. The appeal u/s.116­A of the representation of People Act 1951 is directed against the final judgment and order dated 25.01.2008 rendered by the High Court of Judicature at Bombay in Election Petition No.13 of 2004 preferred by appellant challenged in the election of the respondent of the Lok Sabha from 69, Sinnar Parliamentary Constituency in State of Maharashtra has been dismissed. The short question for consideration was whether the tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of the appeal by the respondent to the voters to vote on communal ground amounting to a corrupt practice within a meaning of Sec.123(3) of the Act.

120. It is observed that the petitioner has produced the cassette on record. However, the petitioner has produced no evidence to indicate that a cassette was true reproduction of the original speeches. The cassette is not a public document. No evidence to indicate that the cassette was obtained from Election Commission. The petitioner who examined himself has not adverted to this video recording in his examination­in­chief. The petitioner has not proved the receipt issued by the Election Commission and failed to prove that VHS cassette was the public document. That being the position, it is not possible to rely on the contents of the cassette. It is held that in the absence of any cogent evidence regarding the source and the manner of its accusation, the authenticity of the cassette was not proved and could not be read in evidence despite of the fact that the cassette is a public document.

121. In our case in hand, the reporter who had taken interview of the complainant is not examined. The Mid­Day paper (Exh.D­1) is not proved in accordance with law. The contents of the interview are also not proved. I find substance in the submission of ld. SPP that the question by reporter to the complainant and its reply becomes inadmissible in evidence.

122. In the present case, admittedly, the complainant Patil was working with the accused. Nothing was brought on record that the relations of the complainant with accused were spoiled. Even it is not the case that complainant would have stood benefited by implicating the accused in a false case like the promise of being promoted or increasing his salary or benefit of any other sort.

123. The complainant Patil, therefore, has to be considered as impartial witness, in absence of any suggestion to cast reasonable doubt on his evidence that he is intentionally deposing false against the accused.

124. No suggestion was given to complainant Patil in cross examination that Altaf was driving the vehicle from the house of accused upto Rain Bar and thereafter till J.W. Mariot. Even no suggestion was given to the complainant Patil that as Altaf was having giddiness he informed Ashok (DW­1) and called Ashok to J.W. Mariot to take the accused to his house. The defence fails to put their case to the complainant Patil during cross­examination.

125. During cross­examination specific suggestion was given to the complainant that the accused was not driving the car "from the beginning" in the incident night. According to ld. SPP to consider the said suggestion in correct prospective, the defence has admitted that at some point of time, the accused took charge of the car driving. According to ld. SPP, the said evidence is required to be read in consonance with the question in cross­examination. On page 7 top line, "the incident motor car did not stop from Hotel Mariot to the place of incident once started". This in other words, means that the person who took the control of the wheels of the vehicle from J.W. Mariot hotel was driving the car till the time of the incident. According to the ld. SPP, even in defence version that Altaf was driving the car is accepted and the illogical and false evidence of DW­1 is discarded, there does not remain any excuse to conclude that the accused was not driving the vehicle. According to the ld. SPP, the defence itself has shut the possibilities that neither Kamal Khan nor complainant was driving the vehicle at the time of accident in absence of any suggestion to any of the witnesses and on their own admission of the specific defence of driving by Ashok Singh who has proved to be self condemn liar.

126. Ld. Advocate Mr. Shivade relied on the case of Yudhishtir V/s. State of Madhya Pradesh [(1971) 3 SCC 436] wherein it is held as under:­

"25. In fact the learned Sessions Judge has also held that the evidence of P. Ws. 1 and 6 to the effect that after coming out of the house of Bamdeo they had told the people assembled outside that all the four accused persons had killed Surajkunwar cannot be believed. Similarly the learned Sessions Judge has also held that these two witnesses cannot be believed on the point that along with Bamdeo the appellants had also actively participated in causing the death of Surajkunwar.

26. Normally on the basis of the above finding recorded by the learned Sessions Judge, on would expect the Court to hold the appellants not guilty of murder. But curiously the learned Sessions Judge proceeds on the basis that though the evidence of P. Ws. 1 and 6 itself would not be sufficient to convict the appellants, some corroboration will have to be found in other independent evidence. We are unable to appreciate this reasoning of the learned Sessions Judge. Corroboration for any evidence given by a witness may be found necessary when a Court is not inclined to reject the evidence of the witness to be false. A Court may be willing to act on the evidence of a witness but it may be of the view that the witness is an interested one and it may not be safe to act on that evidence alone. In such circumstances, in order to enable the Court to act on that evidence, it may seek corroboration from other independent evidence or circumstances. When evidence of a witness, as in this case of P. Ws. 1 and 5 has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances. If there was any other evidence implicating the appellants, it was open to the Court to consider such evidence even after rejecting as false the evidence of P.Ws. 1 and 6."

127. According to ld. SPP Mr. Gharat, because of improvements in the version of complainant, it cannot be disbelieved that the accused was driving the vehicle at the relevant time since the complainant has no reason to falsely implicate the accused like animus or grudge. On the contrary, presence of the complainant is natural and admitted. The complainant has to accompany the accused wherever accused went for shooting, hotel party in night and day.

128. So if the evidence of complainant and cross­examination is looked into, the evidence of complainant shows that at the time of accident, the accused was driving the vehicle cannot be discarded as false and untrustworthy and unbelievable. On the contrary, the same is fully trustworthy, credible and natural since the presence of the complainant along with accused stands justified and complainant has no animus and grudge to falsely implicate the accused in a serious offence.

129. Further through the cross­examination it is brought on record that within 5 to 10 minutes police arrived. The dead body was removed beneath the car and panchanama was prepared. The said version corroborates the substantive evidence of panch witness PW­1 Sambha Gauda. I find that facts cited in [(1971),3 SCC 436] are not applicable to our case in hand.

130. The prosecution also relied on the version of the injured witnesses PW­2 Muslim Shaikh (Exh.32), PW­3 Mannu Khan (Exh.33), PW­4 Mohd. Kalim Iqbal Pathan (Exh.36) and PW­11 Mohd. Abdulla Shaikh (Exh.53). Accused also admitted u/s.313 of the Cr. P.C. that in the incident, the people were injured. He also admitted that the injured were working in the bakery. In the incident, Nurulla was expired. The statements of PW­2, PW­3, and PW­4 were also recorded u/s.164 of the Cr. P.C. by the ld. Magistrate (Exh.35,36 & 37). The defence also admitted postmortem report of Nurulla (Exh.20). Exh. 149 is also given to the postmortem report of Nurulla in the evidence of PW­27 I.O]. The defence also admitted the injury certificates of Abdulla Rauf Shaikh [ (Exh. 21) (Exh. 155 given in the evidence of I.O) ], injury certificate of Mohd. Abdul Pathan [ (Exh. 22) (Exh. 151 is given to the said certificate in the evidence of the I.O) ], injury certificate of Muslim Niyamat Shaikh [ (Exh. 23) (Exh. 156 is given to the said certificate in the evidence of I.O) ]. Exh. 152 is the medical certificate of Mannubhai given in the evidence of I.O.

131. PW­2 Muslim Shaikh sustained the grievous injury to his left leg. He was operated on his left leg and rod was inserted. PW­3 Mannu Khan received the injury on his right leg and PW­4 received the injury on his right side leg and on left hand. Both these witnesses were sleeping on the same bed. PW­11 Mohd. Abdulla was sleeping on the same bed with the deceased Nurulla and he sustained fracture to his right leg. Muslim Shaikh suffered injury over his left leg. The car ran over the person of Nurulla Mehboob Shaikh and he was crushed below the tyre. Nurulla succumbed to injury on the spot after some time of the incident.

132. The ld. SPP Mr. Gharat relied on the judgment reported in the case of Bharwada Bhoginbhai Hirjibhai V/s. State of Gujarat (AIR 1983 SC 753) and the judgment reported in Boya Ganganna V/s. State of Andhra Pradesh (AIR 1976 SC 1541). The Hon'ble Supreme Court observed that "Minor contradictions are bound to be there when ignorant and illiterate women are giving evidence. Even in case of trained and educated persons memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnesses by another though both are present at the place of offence. It is not right to reject the testimony of such witnesses merely on the ground of minor contradictions."

133. The acceptance of injury certificate in evidence goes to show that the victim suffered the injuries in the same incident and also shows the presence of witnesses at the time of the incident. What is challenged is the opportunity to see. The ld. Advocate Mr. Shivade vehemently submitted that PW­2, 3 and 4 alleged that they saw the accused getting out from the driver's side. It would have been impossible for any of them to have seen who was getting out from which door, as they were under the vehicle. It is contended on behalf of accused that in fact, the accused got down from the driver's seat door being the last of four people in the car in view of the evidence of Ram Asare Pandey. According to prosecution, the car was occupied by three persons at the time of incident who were Ravindra Patil (Bodyguard of the accused), singer Kamal Khan (friend of accused) and the accused himself. It is pertinent to note that Kamal Khan was occupying the back seat in the car throughout is not challenged.

134. There is also no dispute that the injured witnesses and deceased were serving in American Bakery. As per the version of PW­2 Muslim, at about 02.45 a.m. he alongwith Mannu, Salim and Nurulla were sleeping near American Laundry. He heard the sound and found himself beneath the car. The wheel of the car passed over his left leg. Bakery people helped the injured to remove from beneath the car. PW­2 also deposed that people were saying that Salman Khan was got down from the car. PW­2 was asked to sit down near the left side of the car. One person also got down from the left side of the car saying he was a police man. People then released Salman Khan. Nurulla (deceased), Abdul, Mannu Khan, Kalim were found beneath the car. PW­2 brought to the hospital by police. His statement was also recorded by Bandra Police. PW­2 saw accused getting down from the right side of the car.

135. Ld. Advocate Mr. Shivade relied on the case of R. Shaji V/s. State of Kerala [(2013) 14 SCC 266], wherein it is held as under:­

24. The learned Senior Counsel for the appellant has urged that statements of certain witnesses were recorded under Section 164 CrPC before the Magistrate, namely, Kalampasha (PW 61) and Dinesh M. Pillai (PW­62). The said statements were not put on record before the trial court, and the same were not marked. Thus, the trial stood vitiated as the accused has been denied an opportunity to contradict the aforementioned statements of the witnesses, which were made under oath before the Magistrates, which though are not in the nature of substantive evidence, could well be used for the purpose of corroboration and contradiction. Denial of such opportunity is against the requisites of a fair trial."

136. In our case, statements u/s.164 of the Cr. PC of the witnesses are on record and also accused got an opportunity to contradict the statements.

137. Ld. Advocate Mr. Shivade vehemently submitted that no reliance can be kept on the version of PW­2 Muslim Shaikh in view of omissions and improvements. In cross­examination PW­2 stated that after two and half months of the incident, he had gone to Bandra Police Station and his statement was recorded there. PW­2 also stated in cross­examination that after one day from discharging him from hospital, he went to his native place Uttar Pradesh and returned to Mumbai on 26.04.2014 from Uttar Pradesh, after going on the next day of the discharge from the hospital. PW­2 further stated that on 20.12.2006 he was not present in Mumbai and does not recollect whether his statement was recorded in Police Station on 20.12.2006. He again stated that his statement was not recorded on 20.12.2006. He again deposed that the fact that his statement was recorded in Police station on 20.12.2006 is correct. He admitted that he has not stated during the course of evidence that he had not seen anybody getting down from the car. Exh.35 is the certified copy of the statement of PW­2 recorded on 20.12.2006 in the Court of Metropolitan Magistrate. He contradicted portion marked "A" in his statement dated 20.12.2006. There is no mention in the statement recorded on 20.12.2006 that Salman has got down from the car. Further there is no mention in the statement dated 20.12.2006 that people caught Salman and at that time, one person got down from the car and told that he is police and therefore, people released Salman. PW­2 also admitted that within a span of 5 to 10 minutes injured reached in Bhabha Hospital. He denied that he was told that he would get enough compensation, therefore, he was asked to tell the name of Salman. So there appears to be improvement made by the witness in the evidence. The ld. SPP Gharat also did not rely much on the version of PW­2. However, it is a fact that PW­2 is a rustic witness and he was injured in the incident. His medical certificate is also admitted by the defence.

138. The prosecution also relied heavily on the evidence of PW­3 Mannu Khan (Exh.33). He also deposed that he along with other injured witnesses and deceased were sleeping near American Laundry. According to him, he was sleeping on Ota (Platform). Suddenly he heard big noise and found himself beneath the car. The car was on his person. Kalim, Muslim, Abdulla and Nurulla found beneath the car. The injured were crying. Many people came there and bakery people rescued PW­3 beneath the car. After some time, people gathered on the spot and saying accused came from the car.

139. According to PW­3 Mannu Khan, the car was white in colour and there were three persons sitting in the car. The accused got down from the driver's seat. One bodyguard was also got down from the car. Third person also got down from the back portion of the car. The evidence of PW­3 also reveals that bakery people caught Salman on the road. Salman was so drunk that he fell down. He stood but again fell down and again he stood and ran away from the spot.

140. PW­3 Mannu was also brought in the hospital and discharged after some time. Abdulla and Muslim were admitted in the hospital. His statement was recorded in police station as well as u/s.164 of the Cr. P.C. before Bandra Metropolitan Magistrate. Exh.34 is the statement recorded before Metropolitan Magistrate and it bears his signature.

141. In cross­examination PW­3 Mannu stated that after 2 - 4 days of the incident, his statement was recorded. He is unable to tell length of the ota (platform) and according to him, two people can easily accommodate on ota. PW­3 further deposed that the American Bakery was also having ota (platform). He stated that one cannot sleep on the stairs. He is unable to tell whether the road passing in front of the bakery is St. Andrews Road. However, he admitted that Holy Family Hospital located on Hill Road at the right side in front of the bakery and at the distance of 200 ft. away from the bakery.

142. PW­3 Mannu then stated in cross­examination about recording of his statement u/s.164 pf the Cr. P.C. According to him, the police have shown the statement to Bandra Court and stated that it is the statement of PW­3. According to PW­3, after perusing the statement, the Magistrate asked PW­3 the questions. PW­3 told to the Magistrate as per statement and thereafter his signature was taken on the statement.

143. PW­3 Mannu Khan remained on the spot for a period of one hour after the incident. Within 10 - 15 minutes police arrived on the spot after the accident. According to PW­3 Mannu, his head was towards American Bakery and his legs were towards the Dairy when he was lying. Similar is the position of Kalim. According to him, he woke up after hearing the noise and started feeling paid in his body. The front right side of the car was resting on the ota and left side was resting in between stairs of American Laundry and Bakery. The right leg of PW­3 was stuck on the front right wheel of the car. According to PW­3, he could not move from the place till the car was lifted. The same was the position of Kalim. The right foot of PW­3 was stuck under the wheel. PW­3 was removed first than Kalim. PW­3 further stated that back side of the car was resting on the footpath which was in level with the road. As back tyres of the car were resting on the road, this evidence strikes of the defence that the doors of the car were so stuck and jammed with the shutter that the same could not be opened to come out.

144. According to PW­3 Mannu, the car was lifted by holding the bumper at the time of removing PW­3 and he could remove the leg. PW­3 further stated that police also called the crane in order to remove the car. Within 15 minutes of the incident, crane was arrived on the spot. Nurulla was removed from beneath the car after removing the car by crane. The car was lifted with the aid of crane and 15 minutes time required to remove the car by crane.

145. So if the evidence of PW­3 Mannu is looked into, it can be said that PW­3 was rescued from beneath the car before arrival of the crane. According to him, after 15 minutes of the incident, Salman came out of the car. There is omission in the statement before police on the part by PW­3 to the effect that bakery people caught Salman. The said fact is also not mentioned in the statement recorded u/s.164 of the Cr. P.C. Pw­3 did not state before police that Salman was drunk and he fell down and again stood up. The said fact is also not mentioned in the statement recorded u/s.164 of the Cr. P.C. PW­3 also unable to tell about the position of front left door of the car with reference to the shutter of the Laundry. He is also unable to say at what distance the front tyre and back tyre were located from the shutter. PW­3 had not seen the stone pelting on the car. PW­3 stated in cross­examination that after running away from the spot by Salman, the car was removed by the crane.

146. PW­3 Mannu had not seen the bodyguard earlier and he admitted that the police told him at the time of recording his statement that bodyguard was present in the car and therefore, he thought that whatever police have told must be correct. There is also omission on the part of PW­3 to state in the statement before the Magistrate that third person got down from the back side of the car and also the said fact does not find place in the police statement. In cross­examination PW­3 stated that third person got down from the back side of the car by left side.

147. PW­3 Mannu admitted that due to incident, he was unable to think, shocked and confused. After 3­4 hours of treatment, he again came to the spot. He denied that on the say of police, he is stating that Salman got down from the driver side. Though there are some omissions brought in the evidence of PW­3, in my opinion, that will not affect his evidence. We have to read whole evidence of PW­3.

148. PW­4 Mohd. Kalim Iqbal Pathan is also examined by the prosecution. He also deposed that he was sleeping in front of American Laundry. Mannu Khan was also sleeping near him. PW­4 heard a big noise and he noticed that one vehicle was over his person. He sustained injury on his right side leg and on his left hand. The other injured and deceased Nurulla were found beneath the car. Bakery people helped to remove injured from beneath the car. PW­4 also stated in cross­ examination that the accused got down from the right side of the car. Many people were telling Salman get down from the car, thereby Salman got down from the car and ran away from the spot. Salman Khan ran away from the spot after seeing the crowd. One police bodyguard was also present in the car and he was Patil. Statement of PW­4 was also recorded in Bandra Court u/s.164 of the Cr. P.C. (Exh.37). PW­4 also stated that the accused is the same person who got down from the right side of the car.

149. PW­3 Mannu and PW­4 Mohd. Kalim have deposed that they were made to sit near laundry after the accident. The defence has brought on record in cross­examination that the back tyres of the car were resting on the road i.e. at the end of the stairs. This evidence strikes of defence that doors of the car were so stuck and jammed with the shutter that the same could not be opened to come out. PW­4 also pleads ignorance about the number of the persons occupying the car.

150. PW­4 Mohd. Kalim also stated in cross­examination that after 4­5 days of the incident, police recorded his statement. PW­4 also stated that the news of the incident was published in the newspapers on the next day of the incident. PW­4 stated that the police had shown him the statement. PW­4 stated that he cannot say what had written in the statement but admitted that he thought, whatever written by the police was true. He is unable to tell when he was called in Bandra Court to record the statement u/s.164 of the Cr. P.C. PW­4 admitted that the police told him that the statement is to be recorded in Bandra Court like a statement recorded in police station. He does not know what was written in the statement before the Magistrate, but he signed out the statement because of police and the Magistrate. He admitted in cross­examination that he was sleeping on ota (platform of American Laundry).

151. PW­4 Mohd. Kalim also stated in cross­examination that he heard the big noise and he was not knowing what had happened. His left hand was stuck on the bumper of vehicle. Bakery man helped PW­4 to get away from beneath the car. Bumper was not separated from the car. After 10 - 15 minutes PW­4 was succeeded to get away from beneath the car. He stated that he was under the shock due to the accident. First Mannu was rescued thereafter PW­4 was rescued. Car was at the distance of 5 to 7 ft away from the place where PW­4 was sleeping. According to PW­4, people did not lift the car. After arrival of crane, the car was lifted. He stated that back tyre of the car was burst. He is unable to tell whether portion marked "A" was stated before the Magistrate while recording the statement. He cannot say whether the bakery people pushed the car. The incident of removing the car by crane was done after 15 minutes of the incident.

152. PW­4 Mohd. Kalim further stated in cross­examination that he had not seen bodyguard of Salman prior to the incident. People were telling that bodyguard of Salman. Bodyguard was present on the spot after the incident for about 15 minutes and then he left the spot and did not return till the time PW­4 was present. PW­4 stated that the road was extended upto the stairs.

153. It has come in the cross­examination that PW­4 Mohd. Kalim had seen both the tyres of the vehicle resting on the stairs upto the shutter. The vehicle went to the shutter and the shutter was bent. Both the corners of the bumper touched the shutter. Back tyres of the vehicle were resting at the end of the stairs. This evidence strikes of the defence that the doors of the car were so stuck or jammed with the shutter that the same could not be opened to come out. PW­4 also had not seen who were sitting on the car. After 10 minutes of the incident, Salman got down from the car. The witness has denied the suggestion, two persons in addition to Salman ran away from the spot. The second person ran away after Salman. Salman Khan remained on the spot for 5 to 10 minutes period. PW­4 cannot say whether two persons ran away from the car. He cannot say portion marked A­1 stated before the Magistrate by him. He cannot say why portion marked "A" was written in the statement u/s.164 of the Cr. P.C. He also cannot say whether portion marked "A" was correctly recorded in examination­in­chief before the Metropolitan Magistrate.

154. PW­4 Mohd. Kalim denied the suggestion that he had not seen Salman Khan getting down from the right side portion of the car. He also denied that police tutored him to state against the accused in order to claim more compensation.

155. So the evidence of PW­3 Mannu Khan finds corroboration through PW­4 Mohd. Kalim on the material particulars about sustaining injuries in the accident and saw accused Salman Khan getting down from the right side portion of the car (driver side).

156. PW­11 Mohd. Abdulla Shaikh is also injured in the incident and according to him, he along with other injured witnesses were sleeping near American Laundry. Nurulla (deceased) was also sleeping along with him. He also deposed that at about 02.30 a.m. suddenly some heavy object was passed from his leg and his right leg was fractured. Kalim, Mannu and Nurulla sustained injuries in the incident. The injured cried for help, thereby bakery men, taxi driver rescued the injured by removing from beneath the car. PW­11 was also rescued by Bakery men, taxi driver from beneath the car.

157. The evidence of PW­11 Mohd. Abdulla Shaikh further reveals that bakery man and taxi driver were telling that the accident was caused by Salman Khan. PW­11 had seen Salman Khan after he was rescued. Two persons were also with him, but he does not know who were they. According to him, Nurulla was also with him in Bhabha Hospital and he was also crying in pain

158. In cross­examination PW­11 Mohd. Abdulla Shaikh stated that in the incident he and Nurulla were entangled in the car. After accident, because of driving, PW­11 found himself and Nurulla at the short distance from the place where they were sleeping. PW­11 also stated that after the accident, sleeping position of the persons was shifted. Salman Khan was standing there, prior to leaving the spot by PW­11 to the hospital. PW­11 was lying for a period of 10 to 15 minutes beneath the car. He does not know how car was lifted. Till the car was lifted, PW­11 and Nurulla were crying for help. After half an hour of the accident, PW­11 was brought in Bhabha Hospital. There is omission on the part of PW­11 to state in the statement before the police that the bakery man and taxi driver were saying that the accident was caused by Salman Khan. The said fact is not mentioned in his statement.

159. If the evidence of PW­11 Mohd. Abdulla Shaikh is looked into, he has specifically deposed that two persons were with Salman. No suggestion was given by the defence about the four persons travelling by the car. PW­11 also sustained the grievous hurt to his right leg. So if the evidence of PW­3 Mannu Khan and PW­4 Mohd. Kalim is looked into, they were rescued from beneath the car prior to arrival of the crane and they were conscious. They sustained minor injuries. It has come in the evidence of PW­3 that there were three persons in the car and the accused got down from the driver's side. So also PW­4 corroborated the evidence of PW­3 that accused getting down from the right side of the car and many people were asking accused to get down from the car. Though PW­4 did not know whether the car climbed the stairs, however, it is a matter of common sense that unless the car climbs the stairs, how it would run over the injured sleeping on the otla (platform) near the shutter and would ram into the shutter.

160. In cross­examination complainant Patil admitted that left side of the incident motor car was pressed and there was no condition of the incident motor car to open the left side doors. Complainant Patil also stated in his examination in chief that after accident with great difficulty "we went out of the motor car". No specific details are given how complainant came out from the car. However, in view of the cross­examination of PW­3 and PW­4, it is brought on record that the back tyres of the car were resting at the end of the stairs i.e. on the road. This evidence strikes of the defence that the doors of the car were stuck and jammed and the same could not be opened to come out. Salman Khan also stated in statement recorded u/s.313 of the Cr. P.C. that he did get down from the driver side of the car. He also stated in the written statement filed u/s.313 of the Cr. P.C. that as left front side door was jammed, he crossed over to the driver seat from the front left seat where he had been sitting and got out from the driver's door. So it is established that Salman Khan got down from the right side door i.e. from the driver's door.

161. There is also evidence of PW­13 Amin Kasam Shaikh. He also knew the injured. He also used to sleep near A­1 Bakery. He heard big noise as about 2.30 am. He went towards the direction of American Laundry. He saw one vehicle went in American Bakery. He saw Muslim and Abdul were found beneath the car. He removed Muslim from beneath the car. He called rickshaw and Muslim was made to sit in the rickshaw. Kalim Mohd. and Mannu Khan were the other injured. There is also omission on his part to state in the statement that he called rickshaw which was standing near the joint of Andrews Road and Hill Road. He also deposed that people were telling Salman "Come out from the car". His evidence corroborates evidence of other injured persons about sustaining the injuries by them.

162. PW­8 Ram Asare Pandey was running a Dairy at the time of the incident on Hill Road, Bandra (W.). On 27.09.2002, at about 10.30 p.m. he closed the dairy. At about 02.45 a.m. he heard the big noise and he saw people were crying "Mar gaye Mar Gaye". People were running from A­1 Bakery towards American Laundry. PW­8 also went there and saw white colour car rammed the shutter of American Express Laundry. One person was found dead and four persons were injured. According to him, the injured were working in the bakery. He saw accused getting down from the right front side of the car. One police person was present in the car who told his name as 'Patil'. Police came on the spot and sent the injured persons to Bhabha Hospital. PW­8 stated that two persons were present in the car in addition to Salman Khan and police constable Patil, but he does not know who were those persons.

163. In cross­examination PW­8 Ram Pandey stated that his statement was recorded after 4 - 5 days of the incident. He also admitted that the Tar Road was touching to the first stair of American Bakery and American Laundry. According to PW­8, within half minute time, one can reach from his dairy to American Bakery. He saw 50 to 60 people gathered there standing around the car. The people who were below the car were crying for help. He also admitted that left front door of the car was so touched to American Bakery, it could not be opened and it was jammed with the shutter. People were trying to pull the car and people were succeeded to open the right front side of the door. People who gathered on the spot were angry in mood and pelted stones on the car.

164. In cross­examination PW­8 Ram Pandey also stated that when Salman got down from the car, he saw the car and Patil was standing out side the car near the driving side. Prior to Salman getting down, Patil was standing near the car. Francis who stays in his building was also present on the spot. Francis helped Salman to leave the spot. PW­8 further stated that he does not know where two people sitting in the car, besides Salman and police constable Patil had gone.

165. As per the prosecution story, there were only three persons i.e. Salman Khan, Patil and Kamal Khan while travelling in the car. If according to ld. Advocate Mr. Shivade that fourth person would be the driver, then the driver would not be sitting in the car. If really the driver was there, he would have standing out side the car. Even defence never suggested PW­8 to the effect that the fourth person was the driver in the car or the vehicle was driven by Ashok Singh.

166. It is pertinent to note that PW­7 Francis is an important independent witness. Both prosecution as well as defence relied on his evidence. In cross­examination it has come on record for a period of half an hour, PW­7 remained on the spot. He also knew the people who were present on the spot. That during half an hour period of remaining on the spot, PW­7 did not see Ram Pandey on the spot. He stated specifically in the cross­examination that during half an hour period he did not see Ram Pandey on the spot. So fact that, PW­8 Ram Asare Pandey visited the spot and if really he had seen four persons sitting in the car including Salman and his bodyguard raises a doubt.

167. There is also evidence of PW­9 Rizwan Rakhangi. He was the Manager of Rain Bar & Restaurant. He has deposed about the visit of accused, Sohel Khan to Rain Bar. After returning Salman Khan from Rain Bar, he accompanied Salman Khan and Sohel Khan. In cross­ examination he saw four persons including Salman sitting in the car.

168. It is pertinent to note that from Rain Bar and Restaurant Salman Khan visited J.W. Mariot. No suggestion was given to the said witness as to whether Altaf was driving the car. It is the case of the accused that Altaf drove the car from his house upto J.W. Mariot via Rain Bar Restaurant. At J.W. Mariot, Altaf felt giddiness thereby he called Ashok to take Salman to the house. So who was the fourth person other than bodyguard Patil, Salman Khan and Kamal Khan sitting in the car. If according to defence the fourth person was Altaf, then it ought to have been suggested to the witnesses, but that is not done. Even complainant Patil never stated in his evidence that Altaf was driving the vehicle upto J.W. Mariot from the house. Even there was no suggestion given to Ravindra Patil on behalf of the defence. It has come on record only when accused u/s.313 of the Cr. P.C. stated about Altaf.

169. There is also evidence of PW­6 Balu Laxman Muthe. He was bodyguard of Sohel Khan and was on night duty on 27.09.2002. According to him, at about 10.30 p.m. Sohel Khan started to go to Rain Bar by car. PW­6 Balu was with him. Sohel Khan went inside the bar. PW­6 was asked to stand outside the restaurant. After sometime, Salman Khan and his friend also came with bodyguard. The name of friend was Kamal Khan. Salman Khan entered in the restaurant and PW­6 and Ravindra Patil were chitchatting out side the restaurant. At about 01.45 a.m. Salm