Testimony of DW-1 (Driver Ashok):
The Trial Court for the reasons earlier stated has discarded the testimony of the Defence witness, Driver Ashok. It is pertinent to note that despite thorough cross- examination, Ashok stood his ground and frustrated the case of the prosecution. However, after reading the judgment, it is found that all material witnesses have said something or the other contradictory to their examination-in-chief, but the only witness who has not been broken is the Defence Witness Ashok. It is unclear how much doubt is enough for an acquittal in the Trial Court? It so appears that even if the departed soul of the poor victim were to depose in accused’s favour, the accused would not be acquitted. 'Howsoever you conduct the trial; the end result is a conviction' approach smells foul. Whatever happened to the fancy term “fair trial’.
Expectations of
earliest demonstration of the accused’s defence since beginning of trial is naive. Every bit of evidence lead during the trial is to be considered in totality at the end. It may be the
strategy of accused to let the prosecution prove/ disprove their contradictory
stories, and then prove what he has to prove at the end, and not to tick off the
prosecution into improving their case. Accused has this leeway under the criminal procedure. In fact, the defence went right by the letters of law in this case (w.r.t. procedure). The court
may have erred in not grilling the accused u/s 313 even further on
this issue (whatever doubts the Court had). It is a very erroneous assumption that the defence has to present
its case through cross examination. A cross examination is mainly for the
purposes of contradicting/ impeaching the credit of a witness, it should not be
used as an aid to infer the guilt of accused or to force him to prejudice his case.
It is a question to be pondered as to how the prosecution & police chose to ignore investigating &
then having the drivers of the accused testify. Section 11 illustration b of Indian
Evidence Act, 1872 shows how disproving the driver’s presence or involvement
may have been crucial to prosecution case.
Conjectures and Surmises beyond reasonable
doubt:
The trial court is clearly seen sniffing through all the testimonies for finding loopholes in “case of accused”. One Prosecution Witness- the RTO inspector is proven to have been lying, but the trial court strangely takes a position that, to the extent of him not taking test drive, the testimony is ruled out, but other parts of testimony be taken as truth. Even though he cannot tell the category of the tyres inspected by him such as tubeless, radial, run flat, tyre with tubes, but the court accepts his testimony negating the defence claim that the front left tyre burst, forcing loss of steering control which caused accident. This is despite the witness having changed his statements in diametrically opposite directions numerous times. The ‘pick and choose’ approach w.r.t. evidence by the trial court is interesting, and is taken merely to support the prosecution. The grudge against accused is inexplicable. The surmises & conjectures, once again play an important ‘fill in the blanks’ weapon in hands of the judge. The common knowledge of trial court acts as the Star Prosecution Witness in the case at hand. The trial court has assumed the role of Expert witness in itself and given verdict on impossibility of, for e.g. the vehicle to have climbed 2-3 stairs if the tyres were burst. With whatever respect is due to the trial court, this is inappropriate on so many levels, as the trial court’s expert opinion’s veracity can not even be tested on the touchstone of cross examination. The accused has been found guilty of not having proved his innocence based on defence theory. The Court minces no words in pointing out every now and then as to what all suggestions have not been given to the PWs, in order for prosecution to be alarmed in time and improve their case. The trial Court is only seen disproving the defence of the accused in the whole judgment. It’s a Wrong approach- diametrically opposite to what’s desired in law. Relying on crutches of conjectures and surmises, prosecution takes Trial Court along with it.
The trial court is clearly seen sniffing through all the testimonies for finding loopholes in “case of accused”. One Prosecution Witness- the RTO inspector is proven to have been lying, but the trial court strangely takes a position that, to the extent of him not taking test drive, the testimony is ruled out, but other parts of testimony be taken as truth. Even though he cannot tell the category of the tyres inspected by him such as tubeless, radial, run flat, tyre with tubes, but the court accepts his testimony negating the defence claim that the front left tyre burst, forcing loss of steering control which caused accident. This is despite the witness having changed his statements in diametrically opposite directions numerous times. The ‘pick and choose’ approach w.r.t. evidence by the trial court is interesting, and is taken merely to support the prosecution. The grudge against accused is inexplicable. The surmises & conjectures, once again play an important ‘fill in the blanks’ weapon in hands of the judge. The common knowledge of trial court acts as the Star Prosecution Witness in the case at hand. The trial court has assumed the role of Expert witness in itself and given verdict on impossibility of, for e.g. the vehicle to have climbed 2-3 stairs if the tyres were burst. With whatever respect is due to the trial court, this is inappropriate on so many levels, as the trial court’s expert opinion’s veracity can not even be tested on the touchstone of cross examination. The accused has been found guilty of not having proved his innocence based on defence theory. The Court minces no words in pointing out every now and then as to what all suggestions have not been given to the PWs, in order for prosecution to be alarmed in time and improve their case. The trial Court is only seen disproving the defence of the accused in the whole judgment. It’s a Wrong approach- diametrically opposite to what’s desired in law. Relying on crutches of conjectures and surmises, prosecution takes Trial Court along with it.
The case laws supporting the defence have been mowed down by childlike reasoning, e.g., 'no reason for police
to do so', 'no reason for patil to do so' etc. The trial court uses a photograph to
establish that the tyres were not burst, however it is not the prerogative of
judge, because the photograph can only be appreciated in evidence w.r.t its maker
or the PW who exhibited it, alongwith his cross- examination. The Photograph can not act as a standalone evidence.
Part VII - Post-Script and Conclusion
Judgment Link: http://court.mah.nic.in/courtweb/orders/citycriminal/orders/201501002402013_14.pdfPart VII - Post-Script and Conclusion
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.
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