Salman Khan Hit & Run Trial: Convicting Criminal Law- II

To keep it simple for readers, I will try and restrict the volume & area of my analysis vastly (which will mostly help me go easier on the trial Court’s glaring errors in non- application of judicial mind). I will not discuss case laws directly. I will try to raise some relevant issues. Let’s see how it goes.

The trial started in magistrate’s Court for the offence u/s 304A IPC, causing death by negligence punishable for a maximum of 2 years imprisonment (mens rea @ negligence). However with time, the charges scaled to Sessions Trial for the offence u/s 304 (II) IPC for Culpable Homicide not amounting to Murder (mens rea @ knowledge) for which Salman Khan was sentenced to Rigorous imprisonment of 5 years on conviction. The trial court has relied heavily on the testimony of a police officer- cum- bodyguard of the accused at the time, named Ravindra Patil. Patil testified and during the now defunct magisterial trial, died of natural causes before Sessions trial could start.

Section 33:- The Testimony of Patil was adapted as it is, by the Trial Court citing Section 33, Indian Evidence Act, 1872. However, the defence harped on one of the proviso to section 33 ‘… that the questions in issue were substantially the same in the first as in the second proceeding….’, arguing that the charge before the magisterial trial was of a lesser offence with maximum 2 years imprisonment and the charge he faces in Sessions trial is of a graver nature with maximum punishment of 10 years imprisonment. The trial court rejected the claim on the ground that Patil’s testimony regarding the same facts wouldn’t change, no matter what the offence. I would strongly differ with the explanation offered by the trial Court. The trial court erred in reading the plain words of law i.e. the questions in issue are not substantially the same. The ingredients of a crime constitute of mens rea & actus reus. Here, the actus reus, remains the same, but the mens rea changes while charging the accused from death by ‘rash or negligent act’ in earlier trial to Culpable homicide not amounting to murder in this trial with mens rea of knowledge. The questions in issue changes substantially; in fact, the reason for a new sessions trial is this substantial change. Hopowever, the trial court clearly failed to see this glaring detail. On facts, the only prosecution witness who could have proved the mental state of the accused at the time of the accident was Patil. Hence his further testimony/ cross examination becomes all the more important for proving/ disproving the lack of knowledge at the relevant point in time, of the accused. The trial Court probably ignored the basic rule of criminal law that law seeks to punish the guilty mind.

‘Burden of Proof’ Fiasco

Somehow the trial Court as also the SPP have given a vague impression that since the Defence has lead evidence in form of one defence witness (driver), the defence theory has to be proved on the theory of preponderance of probability and/ or the Prosecution evidence separately beyond reasonable doubts. I find this approach highly erroneous. The defence in a criminal case has nothing to prove (unless the accused asserts General Exceptions under IPC, which is not relevant here). An accused walks in presumptively innocent into a trial, whether he walks out guilty depends on the effectiveness of the Prosecution case. Lest prosecution proves their case, the accused is bound to walk out as an innocent person, ever more than before. The onus of burden of proof in a criminal trial is always on prosecution, no matter what. And for a conviction, the burden of proof required to be discharged by the prosecution is ‘beyond reasonable doubt’. All the accused has to do, is pick one decent hole in the case of the prosecution, ‘to raise a reasonable doubt’. The court is not allowed to segregate the evidence of the prosecution & defence separately. The evidence has to be appreciated in totality & in no other manner. These are fundamentals and its really tough to break it up and explain beyond this. In this trial, a neutral pair of eyes could see that the defence has hit the ‘hot air balloon’ case of prosecution like a charged ‘porcupine’ before the ice- cold trial court.

The trial Court must desist from becoming mouthpiece of prosecution. It sure is an easy way to write a judgment, but certainly a faulty one.  In another instance, an authoritative case of acquittal cited by the defence has been relied by the trial court declaring it to be helpful to the prosecution.  A case resulting in acquittal can never be relied by the prosecution. NEVER. It is considered as an unwritten cardinal rule of citing precedents (Hint: ratio decidendi). Other case laws cited by the defence have been dismissed in one sentence merely by holding it irrelevant in the trial court’s opinion (except probably on one point, where I am willing to give benefit of doubt to the Trial Court). I sincerely pity any accused ever tried by such a session’s court.

Part I - Introduction

Part II - Burden of Proof and Section 33

Part III - ‘Consistent Line of Defence’ Fiasco

Part IV - Testimony and Conjectures

Part V - Alcohol in Blood of Accused or Mind of Prosecution

Part VI - Fingerprints and Mens Rea

Part VII - Post-Script and Conclusion

Judgment Link: http://court.mah.nic.in/courtweb/orders/citycriminal/orders/201501002402013_14.pdf

Note: The trial court order was set aside by the Hon'ble Bombay High Court & the appellant/ accused Salman Salim Khan was acquitted of all charges vide judgement dated 10.10.2015. The State of Maharashtra has preferred to appeal against the acquittal, which is pending as of February, 2016.