On 6th May 2015, Salman Khan was convicted of various
offences resulting from his killing and injuring several men when he drove into
them. He was drunk. Of course all of you will be well aware of the facts, and
may have formed your own opinions on what happened, on the role of the
judiciary, the police the power of money and so on and so forth.
This conviction was appealed in the Bombay High Court, and, by a massive
305 page judgement passed on 7th, 8th, 9th and
10th December 2015 by His Lordship the Hon’ble Justice A R Joshi,
the conviction was set aside. You can read it here.
I have the 305 page Judgement and have read it. I confess, it is
difficult to read. First it is in language that is, to put it mildly,
challenging! Secondly, I do not practice Criminal law, so my understanding of the
technical aspects are non-existent.
Be that as it may, I have read the Judgement, and I believe, subject to
the caveats and disclaimers below, that it is by and large, correct.
Here are my caveats and disclaimers:
1.
I believe that
Salman was drunk, was driving and did kill and injure the poor workers.
2.
For a conviction,
the case against the accused should be proven beyond reasonable doubt. I
honestly believe that in this case, the prosecution could not prove beyond
reasonable doubt, as you shall see.
3.
Yes, Salman and team
probably used all means, fair and foul to mess up the entire investigation as
well as delay the trial. Now let’s be honest, any one of us would do the same,
the only question would be how far would we go?
4.
I have read the
sanctimonious column written by Julio Ribeiro of how Ravindra Patil a very
crucial witness suddenly came into money. Yes, he probably did. My question is
that the right honourable Mr Ribeiro knew 14 years ago that Ravindra Patil came
into money. Why was Mr Ribeiro silent all these years? You can read Ribeiro's article here.
5.
As I said earlier,
on the technical aspects mentioned in the Judgement, I have no view and often
cannot understand them. So, forgive me for this.
6.
It is clear that
the investigation was botched up [for obvious reasons] the police were corrupt or
corrupted as were the prosecution lawyers also for obvious reasons. Could or
should His Lordship the Hon’ble Justice A R Joshi taken further steps in his Judgement
– passing strictures, ordering enquiries, prosecuting delinquent officers for
perjury – is something that troubles me. I believe he should have done
something. In fact he has done nothing. Was he correct in simply being a Court
of Appeal and dealing with the questions of law placed before him I do not
know. In a case so high profile should he have intervened, or is it just too
late or not possible?
7.
Please do bear in
mind that this Judgement has been passed by a Court of Appeal. The basic
evidence and facts have already been disclosed in the trial. Hence giving fresh
does not happen in an Appeal. The Appeal Court has to only determine the
correctness of the original judgement on points of law, not fact.
8.
The story is
probably not over, what with the Maharashtra Government and citizens wanting to
take this further. I believe that in light of the evidence, which I am going to
give you later, it will be most difficult to change the acquittal. I do believe
that on the technical aspects, where there is an interpretation of a cited case
law, there may be scope by way of a different interpretation or fresh case law
to change the Judgement.
9.
I hope that Salman
is jailed.
10.
I apologise for
the formatting. I am copy pasting from the High Court Judgement which is in
PDF. This causes difficulties in formatting in Word.
Now let me demonstrate to you, how the acquittal came about. I will give
you 3 instances. They are simply shocking. These 3 or 4 instances are extracted
by me from the Judgement. They are NOT my own work.
Which road was Salman driving on?
Yes folks the very basic issue. This is unclear. Let me give you some
background. Hill Road and Turner Road in Bandra are like the two vertical lines
of the letter `H’. Manuel Gonsalves and St Andrews Road are like the horizontal
line in the letter `H’. Manuel Gonsalves and St Andrews Road are parallel to
each other and perpendicular to Hill Road and Turner Road. American Express
Laundry which is where the accident took place is on Hill Road directly at the
exit of St Andrews Road. This is what the Judgement says:
So far as the route taken by the car, it is an admitted position and substantiated by the evidence of
Investigating Officer and mainly PW27 Mr. Shengal i.e. the FIRat two places the route
by which the
car was driven is mentioned as from “St. Andrews Road” to “Hill Road”.
However, it is also an admitted position that
the initial words were “Manuel Gonsalves” and these words are cancelled by slanting marks and above these words
“St. Andrews” is written. It is significant
that though this factual position is admitted by PW27
there is no explanation as
to why this alteration was made though it was the defence
that the vehicle took the route via Manuel Gonsalves road and the vehicle came to the Hill Road by taking
right turn from Manuel Gonsalves road and not from
St. Andrews Road.
The Judge returns to this point later in the Judgement. He says:
Again at this juncture it is to be mentioned that there is interpolation in the contents of the First Information Report regarding the route taken by the car while coming to the Hill Road.
The earlier written words as to “Manuel Gonsalves” are deleted and the words “St. Andrews” have been
inserted.
This is done
at two places where this reference is coming in the FIR.
At the cost of repetition, it must be mentioned
that there is no explanation from the investigating
agency or by the Investigating Officer or the officer who recorded the FIR as to how the
change of name in the route has appeared in the First
Information Report. This circumstance is to be viewed in juxtaposition with the defence of the accused that the vehicle had taken the route from Manuel Gonsalves road and then came to Hill Road. Even this is the substantive evidence of DW1 as detailed earlier in paragraph3 of
his evidence before the Sessions Court :
“3. I then took the vehicle on Linking
Road, then on Gonsalves Road and
took the right turn for going to Hill Road.
Our vehicle came on Hill Road. Our vehicle proceeded at
some distance on hill Road, then the front left tyre of our vehicle burst, thereby
our vehicle pulled towards the left side.
I tried to turn my steering wheel
but it had become hard to turn. I also
tried to apply the brakes, but by then
the vehicle had climbed the stairs of the Laundry.
Our vehicle then stopped.”
So what do we have here? Firstly, the FIR which is the very basis of a
criminal investigation is grossly tampered with. This means that strictly
speaking, no one knows which road the car came from. Secondly, the Defence
Witness 1 the infamous Ashok Singh who turned up 13 years later to claim he was
driving, stated in the trial court that he drove on Manuel Gonsalves Road. This
evidence is left uncontested in the Trial Court by the Prosecution. So, bottom
line which road did the car come from?
What did Salman drink
This problem is totally mind boggling. Do remember that there is
prohibition in Maharashtra. No one can enter a place serving alcohol or consume
alcohol without a permit. This is an undisputable fact. So, what do hoteliers
do? They know most punters have no permits. They serve you alcohol and fudge
the bills. This happens even today. Please do bear this in mind.
Our worthy Salman went to the now defunct `Rain’ bar at Juhu with Kamal
Khan. There Salman met his brother Sohail and some friends. All the tables were
occupied, so Salman, Kamal, Sohail and the friends, all of whom were regulars
at Rain, stood at the bar and drank after which Salman and Kamal left and
proceeded to the J W Marriot.
The police produced the bills from Rain to try and show that Salman
drank at the bar. Much was made in the Press about these bills. In fact, in
light of this Judgement, I shudder to think what is going to happen in the case
of the lovely Ms Janhavi Gadkar. Our men in Khaki have obtained her bills from
the places she drank at. Please see why this is important.
There is one technical matter relating to the bills. Firstly, the bills
are generated by a computer. Secondly, the original bill would ordinarily never
be with the restaurant but will be with the punter. Therefore it is only a
reprint of the bill that will form evidence. Now with respect to computer
generated documents – such as restaurant bills - the Evidence Act sets down
strict and elaborate rules on how such print outs are to be used as evidence.
These provisions to the Evidence Act were inserted in the year 2000. Thus, when
this incident i.e. Salman Bhais accident took place in 2002, the Police and
prosecution should have been well aware of the mode and manner of presenting
computer print outs as evidence. Needless to say, the procedure set out in the
Evidence Act was not followed. It was not followed in toto. It was not a
question of 9 matters being followed and the 10th being ignored. The
process was simply not followed at all. Therefore, the so called bills were
inadmissible in evidence. As I have written earlier, I wonder if our worthies
in Khaki have obtained Jhanvis bills as mandated by the Evidence Act? As the cliché
goes, watch this space.
Assuming, for the moment that the process mandated by the Evidence Act had
been followed to tender these bills as evidence, even then, the evidence would
be useless and laughable. Now let me reproduce from the Judgement.
Now apart from the above evidence there is
another material brought on record by the prosecution
by way of four bills which are marked as Exhibit50A,
50B, 50C and 50D during recording of evidence before
the Sessions Court. At this juncture it is to be
mentioned that the trial Court had marked these bills
as Exhibits and accepted their evidential value in
order to establish that these bills were for the drinks
and eatables ordered and consumed by the accused
and his friends. In fact these bills were collected
subsequently by the officer and there is substantive
evidence of PW9 on this aspect and this evidence of
PW9 and the factual position as to the accused and
his friends not occupying any tables, render these bills
devoid of any substance. On the contrary, production
of such bills before the trial Court is in fact possibly an
attempt to create documents to suit the case of
prosecution. The reason for this is based on the
following material brought on record. Substantive
evidence of PW9 during crossexamination goes to
show that the bills were being generated on a
computer system and the name of the customer is not
generated in the bill. Even also name of a person who
pays the amount also does not reflect in the bill.
It is
further the evidence of PW9 that if the customer is
standing near the bar counter then there is no table
number mentioned or reflected in the bill.
Table
number is being mentioned only in case of a customer
sitting at a table. Also code number of the captain or
steward is generated in the bill when such captain or
steward serves the order. Further substantive evidence
of PW9 is reproduced hereunder in order to see under
which circumstances said bills were collected by the
police:
In the light of this evidence, the bills which
are Exhibit50A to 50D are carefully examined.
Said
respective bills give the table numbers as under : 38,
40, 30 and 18. All the bills give the cover (number of
persons) as one. The bills give the captain code
number respectively as 02, 02, 02 and 48.
First two
bills Exhibit50A & 50B are only for food, and third
and fourth bills Exhibit50C and Exhibit50D are for
liquor. The total of these bills is Rs.6376/.
The
glaring anomaly is regarding the mentioning of the
table numbers in the bills. Four different table
numbers are given as mentioned above. However, the
cover for which the bill is mentioned as one.
So by plain reading of the bills it can be construed
that each
bill is for one person only and each bill is for the
person sitting on a particular table number.
Do you now realise the utter madness? Remember what I said, Prohibition.
On another note, I hope you realise how utterly useless the entire billing
system was at Rain. There was no way the owners of Rain could have performed
any analytics on the billing. Was the place doing well, what was the average
table revenue, what were people drinking or eating, how did consumption
patterns change as the evening progressed. Nothing. With such a meaningless
billing system what do you expect. Mind you this is the same situation in all
restaurants even today.
With this kind of evidence do you expect a verdict of guilty?
Who was driving
There is a lot of material on this matter. Was it Salman? Was it Ashok
Singh? Were there 3 people in the car, were there 4 people? However, one
startling passage had me gasping.
After partying at Rain, Salman and Kamal went to the J W Marriot at
Juhu. Here they drank some more and exited. The car had been given to the valet
to park. As they exited Salman gave a tip of Rs 500/- to the valet at the J W
Marriot. On being examined in the Trial Court, this is what the valet stated in
his examination and cross examination.
“ I did not
see at what time and in
what manner the Land Cruzer left the
J.W. Marriot Hotel. Kamal Khan sat
in the back portion of the car behind Salman
Khan. Nobody sat
near Kamal Khan on the left side in the back portion of the car.
Police asked me during recording my statement
where Kamal Khan sat. I was
remembering at the time of giving my
statement that on which portion of
the back seat Kamal Khan was sitting
and he sat behind Salman Khan. Kamal Khan sat in the back portion of
the car on the left side.”
By pointing out this admission given by this
witness, learned Senior Counsel for the appellant
submitted that the seat
arrangement as stated by this
witness suggest that the
appellant/accused was sitting
on the left side of the front seat i.e. towards the left
side of the driver's seat as Kamal Khan was sitting
behind him in the back portion on the left side. Even
after this material
extracted from his cross examination no attempt has been made on behalf of
the
prosecution to get clarification for the anomaly
created in the answers, one given in the examination
inchief and another at the end of
the cross examination. Without confronting this
witness with the questions in the nature of crossexamination, now
it cannot be accepted on behalf of the State as argued
that apparently this witness has deviated from his
earlier
statement to the police and
has partially supported the
defence. The foundation
for appreciating this argument has not been created while
recording the evidence of
this witness by the prosecution. testimony.
So here we have contrary testimony given by the same
witness in the Trial Court. For whatever reason, now lost in the sands of time,
no one bothered to correct this. It took a diligent lawyer Amit Desai to point
this out. Kudos to him. I mean this in all honesty.
The 305 pages are filled with howlers like this. I have
extracted just a few for you.
To end, I urge you to
read my list of disclaimers and caveats again. On one level I am proud that the
Rule of Law is alive and well in India. I have faith in the higher judiciary.
However, the tragedy is that Salman Khan appears to have got away with what is
the perfect crime.
Sad indeed.
