Trial and errors

A SHODDY investigation that weakened the case and a crack team of defence lawyers—these apparently helped the actor Salman Khan walk free 13 years after he was charged in a hit-and-run and drunken driving case that resulted in the death of one person and injured four others. On December 10, the Bombay High Court acquitted the superstar of Hindi filmdom of all charges, citing the failure of the prosecution to prove them conclusively. In May, a lower court had sentenced him to five years’ imprisonment in the case.

In the early hours of September 28, 2002, Salman’s car ran over five people sleeping on a pavement in Mumbai’s Bandra area. Nurulla Sharif was killed on the spot. Given the inconsistencies in the statements of the witnesses, it is not clear whether Salman or his driver was behind the wheel when the incident happened. Initially, it was assumed that Salman, who in those days was known for his wayward partying, was behind the wheel. As the investigation dragged on, it began to emerge that lack of substantive evidence had botched up the case.

Lawyers familiar with the case say that it is not just a story of a leading Hindi film actor using his influence to circumvent the law. Of course, it is true that he could afford the best defence lawyers in the country. But what helped him more was the careless probe by the police and investigation agencies.

“The law works with evidence and arguments presented in court. You cannot fault them. What messed up the prosecution’s case was what happened soon after the accident; for instance, the delay in the collection of the blood samples or forensic material from the accident site and, more importantly, the lack of or inconsistency in eyewitness statements,” said a lawyer.

Uncomfortable questions remain. Someone was driving the car that killed Nurulla Sharif. Should not that person be held accountable for the crime? Why is not the impoverished family of Nurulla Sharif not compensated?

The sequence

On September 28, 2002, Salman, his private security officer Ravindra Patil, driver Ashok Singh and a friend, Kamaal Khan, were reportedly leaving for the actor’s home in Bandra after a party at the J.W. Marriot Hotel in Mumbai’s Juhu area. The actor’s Toyota Land Cruiser lost control and smashed into the pavement near the American Bakery in Bandra, killing Nurulla Sharif. As the crowds began to gather, according to eyewitness accounts, Salman stumbled out of the car. Ashok Singh and Ravindra Patil took charge of the situation and helped the actor and Kamaal Khan flee the scene. It has not been proved conclusively whether Salman was drunk at the time.

Reportedly, it took several hours for the police to catch up with the actor. Sources say his interrogation and collection of blood samples and forensic evidence from the site were delayed and this caused a great amount of damage to the investigation. Perhaps the only thing that was done according to legal requirement was the filing of a first information report (FIR) by Ravindra Patil at the police station within hours of the incident.

Salman was arrested by the Bandra police and his blood samples were taken. He was granted bail later. The police invoked Section 304-II of the Indian Penal Code (culpable homicide not amounting to murder) against Salman.

On October 7, 2002, Salman surrendered at the police station and was released a couple of weeks later on bail after a case was registered in a magistrate court.

In March 2003, Salman challenged the application of Section 304-II in the Sessions Court, but the court rejected it. He then moved the Bombay High Court, which said the section was not applicable in the case. The Maharashtra government challenged this order in the Supreme Court, which said the magistrate court may decide whether Section 304-II can be applied.

Trial proceedings lasted a decade. In 2012, the magistrate court brought the case within the ambit of Section 304-II and sent it to the Sessions Court. Eventually, in 2013, the court charged Salman with Section 304-II along with Sections 337 and 338 (rash and negligent driving, and drunken driving, endangering the lives and personal safety of others, and not informing the police about the incident).

Salman pleaded for a fresh trial, which was ordered. In May 2015, the Sessions Court found him guilty and sentenced him to five years’ rigorous imprisonment. The High Court has now overturned the lower court’s judgment.

The investigation

Details that are emerging after the High Court verdict prove how the police had weakened their case and why the defence could so easily rip holes in it.

To begin with, the key witness Kamaal Khan had disappeared after the incident, but the police did not pursue him for questioning. For some reason that remains unexplained, none of the parking assistants at the hotel who saw Salman on that night were ever examined.

While witnesses say they saw Salman drinking a “white liquid”, which they think was white rum, in a bar before the incident, neither the FIR nor the medical reports mention the type of liquor he was imbibing. The police say they recovered bar bills to prove that Salman had been drinking. The bills apparently were for a table, and witnesses in the bar said Salman stood by the bar and never sat at a table. After Salman’s arrest on September 28, he was taken by the police to J.J. Hospital to have his blood alcohol test done. The samples were then sent to the Bandra police station from where they were to be taken to the chemical analysis office. Reportedly, that office was shut for two days, and doubts prevail as to whether the right samples reached the laboratory. The constable who brought the blood samples from J.J. Hospital was also reportedly missing. During the trial, the policemen who were examined claimed they did not recall which constable had taken the vials to the laboratory. According to procedure, Salman’s signature should have been on the samples collected, but none of the witnesses could remember whether it was there. The prosecution raised doubts as to whether the blood samples were Salman’s own.

Although Ravindra Patil testified that Salman had been driving under the influence of alcohol, the court observed that he was “unreliable” as he made the statement a few days after he had filed the FIR. Ravindra Patil died in 2007 following a debilitating illness.

More than a decade after the incident, Ashok Singh claimed that he was behind the wheel at the time of the incident. While one witness said Salman was in the driver’s seat, another said he was not. Thus, it became increasingly difficult for the police to prove who was behind the wheel. There was also a theory that a tyre burst caused the car to swerve and hit the pavement. However, the tyre was never sent for forensic tests.

The judgment

Justice A.R. Joshi was scathing in his judgment. He began by stating categorically that the case had too many anomalies and omissions. “[A] strong suspicion of guilt cannot be used to hold a person guilty…. This was not a case where the prosecution has successfully established its case of all its charges,” he said. The judge observed that in a criminal trial, the burden to prove the case beyond reasonable doubt was on the prosecution. “In this case, considering there were various witnesses (in the case of prosecution), there were shortcomings in terms of not recording evidence of necessary witnesses, and omissions and contradictions of injured witnesses. This raises doubts about the offences the accused has been charged with,” he said.

In the 305-page judgment, Justice Joshi delved into five main aspects: the theory of alcohol consumption, extraction of blood and chemical analysis, the tyre burst theory, the defence witness Ashok Singh’s statement, and the non-examination of Kamaal Khan. The judgment says “though the investigation might be impartial, it was conducted in a careless and faulty way”. It says “the trial court had erred in accepting the Rain Bar bills which were recovered without a panchnama . Secondly, the evidence of Ravindra Patil was not marshalled properly and thirdly evidence to establish a biological chain regarding alcohol consumption is not appreciated as per the mandate of the law”. The judge further said that Kamaal Khan was the only person, apart from Ravindra Patil, who could have thrown light on the factual position as to who was driving and that it was unfortunate that he was not ever examined. The judge concludes by saying “consequently, it must be said that this is not a case in which the prosecution has successfully established its case for all the charges”.

The court also let off Salman on the charges under the Motor Vehicles Act for fleeing the accident spot without securing medical aid for those injured. Justice Joshi observed that since a “violent crowd” had gathered at the spot, the circumstances were out of the actor’s control. Additionally, the theory a tyre burst might have caused the actor’s car to swerve and hit the pavement was not proved as the evidence was insufficient, the judge said.

Addressing several related issues, especially the wide publicity the case received from the media, Justice Joshi said there was no place in the court for public opinion and that the actor could not be convicted on the basis of popular perception of the case. He overturned the lower court’s verdict saying that Salman was “acquitted of all charges and the order passed by the Sessions Court stands quashed and set aside”.

Responses

Reacting to the judgment, former Mumbai Police Commissioner D. Sivanandan said that while there were many holes in the investigation, it was difficult to understand why the testimony of Ravindra Patil did not carry enough weight in court. Additionally, his FIR should have been the foundation of the investigation. Yet none of it was considered, he said. Salman’s counsel, Amit Desai, told media persons that “it was a tough case because of the complexity of the law and facts”. He maintained that they had a strong case as they were clear that Salman was not driving the car, that he had not consumed alcohol, and that the accident was caused by Ashok Singh.

The Maharashtra government has said it is looking into whether it will be able to pursue the case in the Supreme Court.