Criminal Appeal Nos. 572 and 1041 of 2015 in Criminal Appeal No. 572 of 2015. Case: Salman Salim Khan Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 572 and 1041 of 2015 in Criminal Appeal No. 572 of 2015 |
| Counsel | For Appellant: Amit Desai, Senior Counsel, Anand Desai, Nirav Shah, Munaf Virjee, Chandrima Mitra, Manasi Vyas, Nausher Kohli, Niranjan Mundargi, Gopala K. Shenoy and Manhar Saini i/by DSK Legal and For Respondents: S.K. Shinde, Public Prosecutor, S.H. Yadav, APP P.H. Kantharia and Deepak Thakare, Advs. |
| Judges | A. R. Joshi, J. |
| Issue | Bombay Prohibition Act, 1949 - Sections 129A, 66(1)(b); Code of Criminal Procedure, 1973 (CrPC) - Sections 161, 162, 164, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 227, 235(2), 313, 323, 350, 391, 427, 428, 437A, 482; Indian Evidence Act, 1872 - Sections 145, 3, 33, 59, 62, 65A, 65B, 65B(4), 65B(2); Indian Penal Code 1860, (IPC) - ... |
| Judgement Date | December 10, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
A. R. Joshi, J.
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Present Criminal Appeal is preferred by the appellant/accused challenging the judgment and order of conviction dated 6.5.2015. Said order of conviction was passed by the Sessions Court at Bombay in Sessions Case No. 240 of 2013. By the impugned judgment and order the appellant/accused was convicted for various offences and sentenced to suffer respective imprisonments and was also directed to pay fine. Following is the operative part of the judgment and order:
"1. Accused Salman Salim Khan is convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 304 II of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for a period of five (5) years and to pay fine of Rs. 25,000/- (Rupees Twenty Five Thousand only), in default to suffer Rigorous Imprisonment for a period of six (6) months.
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Accused Salman Salim Khan is also convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 338 of the Indian Penal Code and sentenced to suffer Simple Imprisonment for a period of one (1) year and to pay fine of Rs. 500/- (Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of one (1) month.
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Accused Salman Salim Khan is also convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 337 of the Indian Penal Code and sentenced to suffer Simple Imprisonment for a period of three (3) months and to pay fine of Rs. 500/- (Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of one (1) month.
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Accused Salman Salim Khan is also convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 134 r/w. Sec. 187 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of two (2) months and to pay fine of Rs. 500/- (Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of fifteen (15) days.
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Accused Salman Salim Khan is also convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 185 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of six (6) months and to pay fine of Rs. 2,000/- (Rupees Two Thousand only), in default to suffer Simple Imprisonment for a period of one (1) month.
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Accused Salman Salim Khan is also convicted u/s. 235(2) of the Code of Criminal Procedure for the offence punishable u/s. 3(1) r/w. 181 of the Motor Vehicles Act, 1988 and sentenced to suffer Simple Imprisonment for a period of two (2) months and to pay fine of Rs. 500/- (Rupees Five Hundred only), in default to suffer Simple Imprisonment for a period of seven (7) days.
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All the substantive sentences shall run concurrently.
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The accused is on bail. He shall surrender his bail bonds.
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Set off be given to the accused u/s. 428 of the Code of Criminal Procedure for the period undergone by him in the prison.
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The seized articles be destroyed after appeal period is over.
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Unmarked articles, if any, be destroyed after appeal period is over.
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The vehicle was returned to the accused Salman Khan on Supurtnama (bond). The Supurtnama (Bond) be cancelled after appeal period."
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Reportedly, the fine amounts are already paid and the present appellant/accused is granted bail during pendency of appeal.
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Being aggrieved by the judgment and order of conviction, present appeal is preferred on various grounds. Those grounds have been dealt with hereunder at the appropriate place.
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Present appellant was granted bail during pendency of the appeal and by consent of the parties the hearing of the appeal was expedited by this Court vide order dated 8.5.2015 (Coram: A.M. Thipsay, J.). Under this premise, present appeal was taken for final hearing and the rival arguments were heard at length. It is specifically mentioned that though the appeal is challenging the conviction for the main offence punishable under Section 304 Part II of IPC, various other aspects were also argued as to the involvement of the appellant as a driver of the motor vehicle involved in the incident and whether he was under the influence of alcohol or whether it was pure and simple accident due to bursting of the tyre of the vehicle. As such, considering the scope of the matter and considering the conviction of the appellant awarded by the Sessions Court after examination of 27 witnesses, learned Senior Counsel for the appellant argued the matter since 30.7.2015. Initially the matter was started for arguments on 30.7.2015 and was taken on 5.8.2015, 6.8.2015 and 7.8.2015. Thereafter it so happened that various objections were raised on behalf of the appellant as to the manner in which the paper book of the appeal was prepared and as such time was consumed in between and after the final paper-book in four volumes is prepared by the office of the Court. The appeal was then taken for arguments from 21.9.2015 and the hearing lasted till 4.12.2015.
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It is the case of prosecution that the present appellant, a famous film star of Hindi cinemas drove the motor vehicle Toyota Land Cruiser (Registration No. MH 01-DA-32) (hereinafter referred to as "the said car".) He drove the said car on the night between 27.9.2002 and 28.9.2002. Specifically it is the case of the prosecution that at early hours of 28.9.2002, he drove the said car in high speed and in rash and negligent manner and that time he was under the influence of alcohol. It is the case of prosecution that on the night of 27.9.2002 at about 9:30 p.m. or so the appellant took out the said car. He was accompanied by his friend one Kamal Khan (not examined in the present matter) and his police bodyguard one Ravindra Himmatrao Patil (since deceased). According to the case of prosecution the appellant/accused was driving the said car from his house at Galaxy Apartments Bandra and firstly visited Rain Bar. In the Rain Bar the appellant and his friend Kamal Khan went inside and his bodyguard Ravindra Patil remained outside. It is also the case of prosecution that brother of the appellant one Sohail Khan also visited Rain Bar at the relevant time and the bodyguard of Sohail Khan was present outside the Rain Bar. Name of said bodyguard of Sohail Khan is Balu Laxman Muthe (PW-6).
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It is the prosecution's case that at Rain Bar various eatables and drinks were served to the appellant and his friend and others. This service was given by one waiter by name Malay Bag (PW-5), who was then on duty at Rain Bar. After consuming the food and drinks which included alcohol (Bacardi), a White Rum and some cocktails, the appellant and his friend left Rain Bar and then visited hotel JW Marriott. Again according to the case of prosecution the appellant/accused was driving the said car and his bodyguard Ravindra Patil sat by the side of driver's seat in the front and the friend Kamal Khan sat at the rear seat. At hotel JW Marriott the appellant/accused and his friend went inside and again Ravindra Patil remained outside.
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According to the case of prosecution at about 2:15 a.m. or so on 28.9.2002 the appellant and his friend Kamal Khan came out of hotel JW Marriott. Again the appellant sat on the driver seat and his bodyguard Ravindra Patil sat by his side on the frond seat and Kamal Khan sat at the rear and they started coming back to the house of the appellant via St. Andrews Road and Hill Road. It is also specific case of the prosecution that at that time the appellant was under the influence of alcohol and was driving the car at very high speed of about 90 to 100 km. per hour. Ravindra Patil, the bodyguard, cautioned him to lower down the speed but the appellant did not pay any heed. Consequently the appellant lost his control over the car while negotiating the right turn at the junction of St. Andrews Road and Hill Road. The appellant dashed the said car on the shutters of American Laundry which is situate at the junction. Said impact resulted in the death of one person by name Nurulla and injuries to four persons who are PW-2, PW-3, PW-4 and PW-11. The deceased and the injured were sleeping on the platform in front of American Laundry. Due to the impact there was a loud noise and there was a sort of commotion that followed. Many people gathered on the spot after hearing the noise and they saw the appellant coming out from the car. They also saw that few persons were below the car and apparently under the tyre. They noticed that one person was seriously injured and he subsequently died and four persons sustained injuries. Out of them two persons received grievous injuries and two persons received simple injuries.
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It is also the case of prosecution that the mob which was gathered on the spot after the incident was rather furious and apparently there was manhandling of the inmates of the car including Ravindra Patil, police bodyguard of the appellant. Said bodyguard sensing the seriousness of the situation showed his police identity card and proclaimed that he was a police officer. As such, he pacified the people who had gathered there who were angry and aggressive. It is also the case of the prosecution that the appellant and his friend Kamal Khan ran away from the spot without giving any help to the persons involved in the incident. In the meantime intimation was given to Bandra Police and within few minutes the police persons arrived at the spot and took charge of the situation. The incident of impact of the car on the shutters of American Laundry happened around 2:45 a.m. on 28.9.2002. When the police persons arrived on the spot the bodyguard Ravindra Patil was also present there. A crane was called and the car was lifted and taken aside. The injured persons were rescued from beneath the car and taken to Bhabha Hospital for medical treatment and examination. One person was found dead. Subsequently he was identified as one Nurulla. Dead body of Nurulla was taken to Bhabha hospital and some blood samples from the dead body...
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