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

‘Consistent Line of Defence’ Fiasco

Presumption of innocence has been reversed in a subtle but definite way by the trial court. The court has picked on the accused throughout the judgment for not putting a consistent line of defence since the beginning. The trial Court here is irked by the sole Defence Witness (driver Ashok of accused) who has stated that he was driving the vehicle at the time of the accident. The trial court minces no words in faulting the accused & the Defence witness for not coming up with this defence earlier in the past 13 years. Again, The accused is under no obligation in law to do so, unless he wants to expose the weakness of the prosecution case and allow them to amend/ improve their case (though impermissible in law) by various means & unlimited resources of State. Exposing it at an earlier stage would have been catastrophic in this trial, leaving hardly any fighting chance for appeals, since the fact finding duty has not been done according to law and the appellate courts i.e. High Court & Supreme Court, are a little averse to appreciate points of facts afresh. Coming back to pure law & procedure, the accused stated in his statement u/s 313 CrPC that he was not driving the vehicle. He stated that he wishes to lead evidence and he lead it lawfully by bringing his sole Defence Witness (Driver Ashok). Mind it, leading defence evidence is a two edged sword, a risk which the accused takes; because accused is not legally obligated to prove anything and simply picking holes in prosecution evidence is enough for acquittal, however when he leads defence evidence he exposes his witness to potentially damaging cross- examination by the prosecution. Coming back to procedure, the purpose of Section 313 CrPC is to let accused speak (without oath) in his defence for the first time. Upto the stage of 313 CrPC, the accused has no right to speak in his defence or to lead any evidence (witness). After that comes the stage of Defence Evidence (optional). So where, and how  has the Trial Court got confused is baffling me to the core. Again, these are fundamentals of criminal procedure. More than that, it’s the Law simplicitor. The trial Court has erroneously faulted the defence time and again that the defence did not in the cross examination of prosecution witnesses put the questions relevant according to the trial Court i.e. suggesting that one Mr. Ashok(DW-1) was driving the vehicle at the relevant time; which was later testified by his defence witness, Driver Ashok. One thing I do not understand, whats irking the trial Court? Is cross examination supposed to help prosecution? Is this how the court wishes to conduct trial? The prosecution got all the time in the world to cross examine the Defence Witness. Did they deserve more? Is the trial court suggesting that the case of the prosecution has been prejudiced by it, because such a concept of prejudice to the case of prosecution is unheard of? It is only the prejudice to the case of accused which matters. If I am an accused I will pounce on any moment to pick holes in the false prosecution case. It’s the prerogative of the accused. The trial Court has no right to express any doubt on how a cross examination has been conducted by defence.

The Defence witness not having spoken in all of “13 years” is being overemphasized by the Trial Court, whereas the duration of trial (since not delayed by accused) is a matter of introspection for the Court. Since the trial took 13 years, the Court may have felt additional pressure of returning a guilty verdict, because if it turned out to be an acquittal, it would face the wrath of press & Social media alike.
Additionally, does the trial court lose sight of the Article 20 of the Constitution of India, which bestows upon everyone a right against self incrimination? Now, why would the trial court deny such a right to the sole defence witness Ashok. He has/ had a fundamental right not to incriminate himself by deposing in court of law that he was driving the vehicle, which hit & killed one persona and injured 3 others. He faces serious charges vis-a-vis his testimony. Therefore he has/ had a fundamental right to not utter a single word during the whole trial or to speak the truth wholly or partially, at the time and place of his choosing. Neither the court, the prosecution, the police, the defence, the accused , nor anyone else could force him to forgo his fundamental right u/a 20 of the Constitution of India.

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.