When two courts dont see eye to eye

When two courts dont see eye to eye

FPJ BureauUpdated: Friday, May 31, 2019, 08:09 PM IST
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The dictum laid down by E.M.S Namboodiripad, a Marxist ideologue, decades ago that if you are convicted in a lower court, you should double your stakes and approach the higher court, stood vindicated on Wednesday with what was perceived as ‘justice’ for actor Salman Khan by millions of his fans. But his acquittal meant injustice for the poor pavement dweller who died in agony and those who were maimed when the roaring SUV went over them on that fateful night of September 28, 2002, in Bandra. All judgments are merely opinions by judges who are trained to weigh evidence but no two judges will appreciate evidence in identical ways. What one judge may accept as constituting primary evidence to convict, another judge will discard as not bearing corroboration. What we forget is that the spirit of the law is to be followed and not its letter, because being hyper-technical defeats the ends of justice which may have happened in this acquittal. What made Salman sob in relief will make the relatives of the man who was killed and those who were maimed wail in despair.

The court ruled that the prosecution did not succeed in proving beyond reasonable doubt that the actor was drunk and that he was behind the wheel when it ran over those who slept outside the bakery on that fateful night. Even the testimony of Ravindra Patil, who was an eyewitness to the incident, was discarded because it was not “tested” presumably by cross examination. The reason given in the judgment was that Patil had improved his version before the magistrate where he swore that the actor was drunk and was behind the wheel. On the other hand, he did not blame the actor in the F.I.R which was recorded.

But F.I.Rs are written by incompetent policemen whereas magistrates are trained judicial officers. The fact that the prosecution did not summon the magistrate as a witness was another extenuating factor for the actor as was the fact that another key eye witness, the UK based signer, Kamaal Khan, who was a “friend” of the actor, was not summoned. But was not Kamaal Khan a “friend” of Salman? To discard the evidence of Ravindra Patil, who died in penury and had no animosity to implicate the actor, has possibly resulted in a grave miscarriage of justice.

Whether Salman was drunk or not is now a matter of conjecture and debate but the fact remains that the blood which was sent for analysis did show there was alcohol in his bloodstream. But even there the in-built procedures – which result in safeguarding alleged drunken drivers — was not followed. The testimony of those who said they served drinks at the counter to the actor and his friends was discarded although other witnesses did see the actor “tottering” after getting out of the driver’s seat.

Any appellate court can punch a million holes in any prosecution case when the court chooses to be hyper-technical, which always results in acquittals.  Appellate courts should not take diametrically opposite views in criminal convictions because judges of trial courts have the benefit of seeing the faces and emotions of witnesses produced before them whereas appellate courts do not. Hence the arguments advanced in appeal are academic and theoretical. Perhaps this is what prompted Justice A.R. Joshi to remark that all cases of drunken driving do not constitute culpable homicide. But when a person voluntarily imbibes alcohol and takes the wheel, this is difficult to digest. In the end, the signal sent out to the world is that the Indian courts provide quick succor to the rich and famous whereas it responds more sluggishly to those who have neither wealth nor fame.

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