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

Alcohol in Blood of Accused or Mind of Prosecution:

There is a curious question playing with my mind, that whether the testing of alcohol level in blood be totally discarded solely on the ground that it was taken after so many hours, and the accused had a lot of time to consume alcohol after the accident (since accused was not arrested on spot but 7 hours later at his Advocate’s residence & blood sample extracted even later). And hence the test of alcohol presence in blood proves nothing, w.r.t. his driving in drunken state.

The judge seems to have asked a lot of questions in his Judgment, which obviously can not be answered now, though questions if any, should have been asked at the stage of Section 313 CrPC but were not. Some of these questions are quite funny, like; what was the accused doing, standing at the bar counter if he did not want to drink? I for fact know several persons to have stood at a few bar counters, and not consume any alcohol. However, it should be mentioned that it has also come in evidence (Cross- examination of a Prosecution Witness) that the reason accused and friends were standing at bar counter was that the Restaurant was full. Since the accused drank clear liquid, it was strangely assumed that he drank Bacardi rum (also colourless) and not water. The reason for such an assumption is not forthcoming in the Judgment, except that it supports prosecution’s lame case.

The accused is found to have been not smelling of alcohol (while talking to PWs) and he didn't walk as if drunk, since not mentioned in FIR by Patil. Through subsequently Patil gives additional statement  differing from his complaint version (FIR) trying to improve the case of prosecution, and which has been played by prosecution (as well as the Trial Court) as innocent manoeuvres.

Though another prosecution witness (Doctor) is contradicting the timing at which he drew blood, and has been proven to be lying at one time or another, the Learned trial court again takes aid of Statement u/s 313 of accused to bury this contradiction (observing that since accused agrees that his blood sample was taken, the timing is useless). Once again fundamentals have gone wrong. Statement u/s 313 is without oath, and gives a chance to the accused to say anything he wants, or to the court to know accused's perspective. It is for the benefit of the accused only and can’t be used as a weapon to aid lying prosecution witnesses. It does not have evidentiary value equivalent to testimonies under oath. It can not complement or supplement prosecution’s case. However, if the trial court really wants to attach such a high evidentiary value to it, then it must be taken in its entirety and also for the other parts of his statement shirking the charges. Double standards are unacceptable. When a witness is shown to have lied at one instance, the rest of his testimony loses some, if not all evidentiary value and such a testimony of the prosecution witness can be thrown out as unreliable. Nevertheless, prosecution witnesses (PWs) giving contradictory statements are not in trial court's opinion, affecting other facts deposed before it.

The trial court has picked isolated pieces of Sec 313 to fill the loopholes in prosecution case very often. It is wrong understanding that statement u/s 313 can be taken as regular evidence/ admission. The accused has never been on oath. Overemphasizing on statement u/s 313 is a gross error in judgment. As mentioned earlier, while the trial court is happy to read pieces from statement u/s 313 to fill the holes in particular testimonies & give credit to the PWs (like accused generally accepting that blood sample was taken at J J Hospital), however it is uncharitable in not reading the same statement u/s 313 while making dubious remark of not suggesting a particular question in cross examination of PWs (like he did not consume alcohol). If these are not double standards, then the phrase is useless.

Chemical analyzer has no degree, diploma or even a certificate course in Forensic Science and hence may not be termed as an expert. Anyways, I will Skip the ‘blood sample’ defence for alcohol level, since it will become unnecessarily lengthy as being too technical and case specific.

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.