Ex.

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Received on : 13/05/10 Registered on : 14/05/10 Decided on : 01 /11/12 Duration : 2 Y. 5 M. 18 days

IN THE COURT OF SPECIAL JUDGE FOR NDPS CASES GREATER BOMBAY (Before : I.M.BOHARI) (C.R.NO.44) NDPS Special Case No. 90 OF 2010 The State of Maharashtra L.T.Marg Pl.Stn.C.R.No.22/10. Versus Nooria Yusuf Haveliwala Sagar Sangit, 18-D, 58, S.B.S.Road, Colaba, Mumbai Appearance APP Smt.Kiran Rayakar for the State. Advocate Shri Sudeep Pasbola and Shri Aswin Thool for accused. JUDGMENT (Delivered on 1st November, 2012) 1. The above named female accused stands prosecuted by the ... Complainant Exh.141

... Accused

Police Station Officer, Lokmanya Tilak Marg Police Station for the offences punishable under Secs.184 of the Motor Vehicles Act, 1988(for short M.V. Act), 27(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) r/w.185 of the M.V. Act, 353, 304 (Part-

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II), 333, 332, 337, 427 of the Indian Penal Code (for short IPC) and 3(1) of the Prevention of Damage to Public Property Act, 1984 (for short PDPP Act).

2.

Briefly said prosecution case is that between 10.30 p.m. dt.

29/1/10 and 1 a.m. dt.30/1/10 a special drive was arranged by Kalbadevi Traffic Division to nab drunken vehicle drivers. Team of PSI Dinanath Shinde (deceased), Police Naik Magan Gaikwad (PW-9 the complainant), etc., 9 policemen was deputed on the said drive below the Fly-over near Sulabh Shauchalay, opposite M.K.Road, Mumbai. At about 11 p.m. dt. 29/1/10 the team had already taken action against one vehicle driver. Traffic Police Inspector Ghule had visited the said spot and left. Thereafter, black Honda CRV Car bearing No.MH-04 DJ 8700 (for short the said car) arrived from Opera House side at about 12.10 a.m. to 12.15 a.m. dt.30/1/10, it was proceeding towards Churchgate. It was in full speed. A taxi was standing there near the signal. The said car dashed the said taxi and then dashed Qualis Jeep bearing No.MH-01 BA 470 of Traffic Division, which was standing stationary near Sulabh Shauchalay below the bridge and then dashed PSI Shinde, Police Constable Shailendra Jadhav (PW-2) who were standing near the said jeep. At that time the

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complainant was standing near the said jeep's right side. Police Head Constable driver Lalasaheb Shinde (PW-4) was in the driver seat in the said jeep. At that time PSI Shinde was verifying documents of a

motorcyclist Afjal Akbar Ibrahim (deceased). The said car having dashed him, Police Constable Shailendra Jadhav with full force, caused grievous hurts to PSI Shinde, the motorcyclist Afzal, PC Shailendra Jadhav. Due to dash of the said car to the said jeep its driver PHC Lalalsaheb Shinde so also the complainant who was standing near it also sustained injuries. The complainant and injureds were referred to Bombay Hospital for medical treatment. The complainant sustained injuries to his right hand, head and forehead. When statement (Ex.44) of the complainant was being recorded in the hospital he learnt that when motorcyclist Afzal was being removed from Bombay Hospital to Saifi Hospital succumbed to the injuries.

3.

The accused was the driver of the said car. She drove the said

car by consuming alcohol and under its influence in dangerous manner, in full speed and with knowledge that her such act would endanger life of others. She also intentionally caused damage to the said jeep, taxi,

motorcycles. FIR (Ex.45) was registered on the basis of statement (Ex.44) against the accused at 2.45 a.m. dt.30/1/10. Its further investigation was

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carried out by Sr.PI Arun Borude so also Ashok Sarambalkar (PW-17).

4.

It is further contended by the prosecution that the said car

stopped on the footpath by facing Opera House side. The accused was immediately taken to the nearby L.T.Marg Police Station where her Alcohol Breathe Anaslyser Test (for short breathe test) was taken at about 1.38 a.m. dt.30/1/10 by PI Vijaylaxmi Hiremath (PW-1). Breathe Test Report (Ex.16) detected percentage of alcohol consumption as 457 Mg.per 100 ML. Panchanama (Ex.17) was drawn in that regard. The accused

was referred to G.T.Hospital for her medical examination, urine and blood samples. Dr.Ashwini Kondvilkar (PW-6) examined her at 2.25 dt.30/1/10 and found that though she was smelling alcoholic her gait, speech were normal and pupils were dilated and reactive. She obtained her blood sample, gave it to WPC buckle No.635 who had escorted the accused to G.T.Hospital & opined that accused had consumed alcohol but was not under its influence. She, however, reserved her final diagnosis awaiting C.A.report.

5.

It appears that blood, urine samples obtained from the accused

were chemically analysed by C.A.Sandip Chety (PW-11). He prepared

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urine data sheets (Ex.59, 60), urine C.A.report (Ex.62), blood data-sheets (Ex.66, 67), blood C.A.report (Ex.68) and reported that urine, blood samples were positive for morphine and cannabis constituents. C.A.Sayali Nikam (PW-12) analyzed second blood sample of the accused & reported (Ex.83) that it contained 0.169% w.v. of ethyl alcohol.

6.

As far as the road on the spot is concerned the vehicles

involved in the accident were lying there in stationary condition. Therefore, spot panchanama (Ex.86) was drawn in presence of Guruprasad Tiwari (PW-13), Laxmikant Tiwari between 6.30 a.m. and 9 a.m. dt. 30/1/10. Till then traffic was diverted. After the panchanama vehicles involved in the accident viz. the said car, the police Qualis Jeep, the taxi and two motorcycles were seized and carried to L.T.Marg Police Station. Map of the scene of occurrence (Ex.19) ( admitted by defence) was drawn by planner Abdul Jam. Foot wears, female clothes, under garments, cosmetics, jewellery boxes, mobile chargers, etc., items were recovered from the dicky of the said car. Four Beer tins King Fisher Company of 330 ML each were seized from below the driver seat of the said car. All the four King Fisher tins were full. One glass was also lying there in the said car. Same were seized separately. The ignition key of the car was

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entangled in its lock. Deflated Airbags were also there in the said car.

7.

Inquest panchanamas (Ex.70, 71) of the dead bodies of Afzal, Postmortems of their dead bodies were Their deaths were unnatural and Police Constable

PSI Shinde were drawn.

conducted (PM reports Ex.33, 27).

caused due to polytrauma in road traffic accident.

Shailendra Jadhav on account of multiple fractures to his both legs was indoor patient in Bombay Hospital for for more than 2 months. Likewise Police Naik Ashok Shinde was also indoor patient in Bombay Hospital for 3 days.

8.

Motor Vehicle Inspector viz.Prakash Sitaram Karad (PW-16)

inspected the vehicles involved in the accident and submitted reports (Ex. 103 to 107) to the IO. According to him the said car was purchased on 26/12/07 by Haveliwala i.e. father of the accused. It had run 22,200 kilometers. It had no mechanical defect. It was further reported by him that the said car sustained damage only after impact of the accident.

9.

Report (Ex.123) in respect of availability of street/road light

was obtained from the BEST. It was reported at the time of accident

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street/road lights were on. Articles seized from the spot of occurrence, the said car were sent to the FSL Kalina. For the sake comparison etc. FSL Team visited the spot, inspected the vehicles and scratched colour paints from the vehicles involved in the accident so also from the eclectic pole there on the spot and submitted reports that the colour of the said car was similar to the paint scratches removed from other vehicles etc. (Panchnamas Ex.89,90). Those items were examined by C.A. Rajendra Mawle (PW-10) (C.A. Reports Ex.51 to 55). House of accused was

searched & various items including her Pass Port, four empty beer tins, cigar were seized from her bedroom (Panchnama Ex.75). Uniforms of PSI Shinde (panchnama Ex.72), PHC Magan Gaikwad (Panchnama Ex.74) were seized. Accused allegedly made her disclosure statement (Ex.91) and showed the spots to API Dilip Daingade (PW-14), where she went from 2.45 p.m. till the occurrence and during which period she drank beer (panchnama Ex.92). In the meanwhile statements of the witnesses were recorded and on completion of investigation this chargesheet was submitted to the Addl.CMM 47th Court Mumbai. Prior to that on 31/3/10 accused was already released on bail under Sec.167(2) of Cr.P.C. The offence particularly under Sec.304 Part-II of the I.P.C. being exclusively triable by the Sessions Court, the case was committed to the Sessions

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Court. In view of the offence punishable under Sec.27 of the NDPS Act, it was registered as a Special Case and alloted to this court.

10.

Upon hearing APP, defence advocate, charge for the offences

punishable under Secs.184 of the M.V. Act, 27(a) of the NDPS Act r/w.185 of the M.V. Act, 353, 304 (Part-II), 333, 332, 337, 427 of the IPC and 3(1) PDPP Act was framed on 23/12/11 at Ex.10. Accused pleaded not guilty. Hence prosecution examined following witnesses: PW-1 PI Vijayalaxmi Hiremath PW-2 PC Shailendra Jadhav PW-3 PN Ashok Shinde PW-4 PHC Lalasaheb Shinde PW-5 Dr.Ganesh Doiphode (breathe Test) ( Injured) (Injured) (Injured) (P.M.of PSI Shinde) Ex.15 Ex.18 Ex.20 Ex.21 Ex.26 Ex.28 Ex.38 Ex.41 Ex.43

PW-6 Dr.Ashwini Kondvilkar (treated injured, accused, obtained blood sample of the accused) PW-7 Dr.Vishal Lapshia PW8 Dr.Dipkumar Sugandh PW-9 PHC Magan Gaikwad (P.M.of Afzal) (treated injured) (Injured Complainant)

PW-10 C.A. Rajendra Mawle (examined painting scrapings etc) Ex.47 PW-11 C.A. Sandip Chetty PW-12 C.A.Sayali Nikam (examined urine, blood samples) (examined blood sample) Ex.56 Ex.81

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PW-13 Guruprasad Tiwari

(Spot panch)

Ex.85 Ex.88 Ex.97 Ex.102 Ex.109

PW-14 API Dilip Daingade (drew panchamas Ex.89 to 93) PW-15 Ganesh Mestry (Mechanic, discharged by prosecution) PW-16 Prakash Karad PW-17 PI Ashok Sarambalkar (examined vehicles ) (Investigating Officer)

Statement of accused under Sec.313 of Cr.P.C. is recorded below Ex.11. She neither deposed on oath nor examined any defence witness. It is contended by her that she was in moderate speed and accidentally dashed the taxi due to which airbag in the said car inflated and as such she was impaired to see police jeep etc. She admitted that the photographs

produced at Sr.No.4 below Ex.87 are the photographs of the vehicles on the spot. It is denied by her that her breathe test, blood, urine samples were taken. It is admitted by her that the said car belongs to her father, which was purchased two years prior to the occurrence. It is further contended by her that left outside mirror of the said car was not there and that when she saw in the mirror in the said car if any vehicle was approaching from left side at that time accident took place. Air bag in the said car inflated due to which the said car deviated. Taxi was there infront of the said car. She tried to stop the said car but in vain. 180 degree turn was taken by the said car. She denied that she had consumed any drug.

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She contended that she does not know as to how morphine, cannabis constituents came in her system. To justify the same she further stated that on that day her doctor father had medicated her as she was sick and that she had consumed Ibuprofen and Corex. She also filed her written

statement at Ex.133 in which she has reiterated her stand, which she took in her statement under Sec.313 of Cr.P.C.

11.

In the circumstances, following points arise for my

consideration. I have recorded my findings thereto against each of them for the reasons given below: POINTS 1. Does prosecution prove that on 30/1/10 at about 12.10 a.m. near Sulabh Shauchalay on Maharshi Karve Road, Near Princess Street Flyover, Marine Lines East, Mumbai, the accused drove the said car i.e. CRV Honda Motor Car bearing No.MH-04-DJ 8700 in a manner which was so dangerous to the public, having regard to the circumstances of the case including the nature, condition and use of the place where the vehicle was driven and the amount of traffic which actually at the time or which might reasonably be expected to be in the place and thereby committed offence punishable u/s.184 of the M.V.Act ? FINDINGS

Proved.

2.

Does prosecution prove that during the above said Offence transaction accused drove the said car in drunken 27(a) of condition i.e. after consuming alcohol, narcotic NDPS Act drugs viz. Morphine, Cannabis Constituents and proved

u/s the not but

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at the relevant time was under its influence and offence u/s 185 thereby committed offence punishable u/s.27(a) of of the M.V. Act the NDPS Act r/w. 185 of the M.V.Act ? proved. 3. Does prosecution prove that during the above said transaction accused used criminal force to Police Constable Ashok Shinde and other Police Officers being public servants in the execution of their duty as public servants or with intent to or in consequence of the said dangerous driving to prevent or deter them from discharging their duty as public servants or in attempt for the same committed offence punishable Sec.353 of the I.P.C ? Does prosecution prove that during the above said transaction accused drove the said car in so dangerous manner and with knowledge that such driving will cause death or bodily injury, which would have and accordingly caused deaths of PSI Shinde and Afzal amounting to their culpable homicides and thereby committed offence punishable u/s.304 (Part-II) of the I.P.C. ? Does prosecution prove that during the above said transaction accused voluntarily caused grievous hurts to the Police Constable Jadhav, Police Constable Shinde, public servants in the discharge of their duty as public servants and thereby committed offence punishable u/s.333 of the I.P.C. ? Does prosecution prove that during the above said transaction accused voluntarily caused hurts of Police Naik Gaikwad, Police Head Constable driver Lalasaheb Shinde, public servants in the discharge of their duty as public servants and thereby committed offence punishable u/s.332 of the I.P.C. ? Does prosecution prove that during the above said transaction accused caused hurts to motor taxi

Not Proved.

4.

Proved.

5.

Not Proved but offence pun.u.s. 338 of the IPC proved.

6.

Not Proved but offence pun.u.s. 337 of the IPC proved.

7.

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driver Sonu Yadav and thereby committed offence punishable u/s.337 of the I.P.C. ? 8. Does prosecution prove that during the above said transaction accused committed mischief to police van bearing No.MH-01-BA-470, motorcycle bearing No.MH-01-WA-7909 and thereby caused loss or damage to the amount of upwards Rs.50 and thereby committed offence punishable u/s.427 of the I.P.C. ? Does prosecution prove that during the above said transaction accused committed mischief in respect of public property viz.Police Van bearing No.MH-01-BA-470 and thereby committed offence punishable u/s.3 (1) of the PDPP Act ?

Proved.

Proved.

9.

Proved.

10. What order ?

As per final order.

R EAS O N S 12. I have heard APP Smt.Rayakar for the State. It is argued by

her that PW-16 has proved damage to the police Jeep and other vehicles. He had visited the spot, inspected the vehicles and filed his reports. It is contended by her that the defence case that accused was in moderate speed is false because had it been so Airbags in the said car would not have inflated. Even otherwise Airbags deflate within a fraction of moment and as such it could not have caused any impairment. It is further argued by APP that although accused contended that she had consumed medicine there is no evidence if the said medicine contained Morphine, Cannabis

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Constituents. The fact that beer tins were seized from the said car and house is self sufficient to hold that accused must have had consumed alcohol, drug. It is further argued by her that even PW-1 had soon after found that the accused had 457% of alcohol consumption per 100 ML. She has placed her reliance on the judgments of Hon'ble the Apex Court in the cases of State Tr.P S Lodhi Colony V/s. Sanjeev Nanda reported in 2012-Laws (SC) 8-5, Alister Anthony Pareira V/s. State of

Maharashtra reported in (2012) 1 Supreme Court Cases (Cri) 953. APP reiterating the prosecution evidence contended that technical fault if any in lodging belated FIR in view of judgment of Hon'ble the Apex Court in Sanjeev Kumar V/s. State of Punjab reported in 1997(2) Crimes 85 (SC), cannot have overriding effect over the positive, strong and direct evidence . It is further contended by her that even if the accused is a USA citizen she resided with her father in the nearby Colaba area and as such, she knew roads on the spot. According to APP Smt.Rayaka accused merits conviction.

13.

I have heard advocate Shri Pasbola for the accused. He has

also submitted his written argument at Ex.140. I have gone through it. It is contended by him that deaths and injuries were caused due to secondary

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impact. Accused having lost control over the said car due to dash to the taxi, caused damage to the police jeep and injuries to the victims. To buttress that the accused was not under the influence of alcohol, it is contended by advocate Shri Pasbola that admittedly the accused had not touched any barricade. It is further contended by him that accident took place because taxi had suddenly stopped by seeing police there on the spot. It is further contended by him that in the cases of Sanjeev Nanda and Alister Pareira primary impacts were there and as such, those cases have no bearing on the present case. Alcohol consumption percentage of 457 according to advocate Shri Pasbola would lead a person to coma. As against this, PW-12 had found 169% w/v of Ethyl Alcohol in the blood sample. It will prove that PW-1 did not correctly take breathe test and secondly battery of the kit might be low. It is further argued by him that Rule 4 under the Bombay Prohibition (medical examination and blood test) Rules (for short Blood Test Rule) was breached by obtaining just 1.5 ML blood instead of 5 ML blood. He has further argued that possibility cannot be ruled out that PSI Shinde etc., themselves were under the influence of alcohol and their negligence might have had contributed for the accident. Therefore, only blood samples of the injureds and deceased were not taken. As far as PSI Shinde is concerned he died due to

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excessive loss of blood and medical mismanagement. PW-6 who treated Afzal also conducted his postmortem examination. As such advocate Shri Pasbola has urged for acquittal of the accused by distinguishing prosecution's citations by relying upon some citations.

14.

Case Law: Before appreciating the evidence I would like to discuss the

citations. Earlier quoted case of Alister Pareira is relied upon by APP as well as advocate Shri Pasbola. In that case the accused ran his car into pavement killing 7 persons and causing injuries to 8 persons between 3.45 a.m. and 4 a.m. dt.12/11/06 at Bandra (W), Mumbai. The accused was found to have consumed 0.112% W/V liquor (ethyl alcohol) in his blood. He was fully familiar with the area as he resided in the nearby area. He was charged for the offence punishable under Secs.304 Part-II, 338 of the IPC, however, trial court convicted him for the offence punishable under Secs.304-A, 337 of the IPC. In suo-motu cognizance of the trial court judgment Hon'ble the Bombay High Court convicted him for the offence punishable under Sec.304 Part-II, 338, 337 of the IPC. Hon'ble the Apex Court confirmed the said conviction and sentence of 3 years rigorous imprisonment imposed by Hon'ble the Bombay High Court. This case is

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very much similar to the present case. According to advocate Shri Pasbola in the said case deaths and injuries were caused to primary impact. I am afraid to uphold this contention. If primary impact is only to be

considered then a person driving a vehicle in drunken condition may hit a tree or a vehicle or a bridge and then cause death, injuries to other persons and say that he did not directly hit other persons in road traffic accident. Impact whether primary or secondary is of least importance. In road traffic vehicle drivers are expected to take due care while driving the vehicles. Keeping safe distance is also equally important. In the present case had the accused been slow in her driving the said car, she in the natural course of human behaviour and circumstances would have stopped the said car near the taxi. The accused failed to avoid dash of the said car to the taxi because as discussed earlier the said car was in full speed. Its Airbags inflated only after it had forcefully dashed the taxi. After the dash to the taxi the said car gave dash to the police jeep, PSI Shinde etc., motorcycle and then stopped by turning towards it rear side. As admitted by accused herself that turning was of 180 degree. Admittedly the accused in the present case resided in the nearby Colaba area. She was acquainted with the roads and signals on the spot. Therefore, she cannot deny

knowledge attributable to her drunk driving of the said car at high speed as

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held in the case of Alister Pareira.

15.

In the famous case of Sanjeev Nanda quoted earlier also the

accident took place on the intervening night of 9-10/1/1999 involving BMW Car on Lodhi Road giving dash to 7 persons standing on the road. Hon'ble the Apex Court held that in the said case though accused had no intention to cause death certainly he had knowledge that his act may result in death, therefore, the trial court's conviction and sentence under Sec.304 Part-II of the IPC was restored. This case is also similar to the present case.

16.

Case of Sanjiv Kumar quoted earlier is cited by APP

Smt.Rayakar on the point that delayed FIR can be accepted if the delay is properly explained. There is no dispute on that score. Usually in cases where death and/or injuries are caused care is taken to first provide medical aid. In the present case number of policemen were injured. Some of them were severely injured. Injureds were removed to different

hospitals. FIR Ex.45 was registered at about 2.45 a.m. i.e. within less than three hours after the occurrence. FIR was obtained from one of the

injureds from Bombay Hospital itself. Thus, in the present case there was

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absolutely no delay in lodging the FIR.

17.

Advocate Shri Pasbola has placed his reliance on Kisan

Pandurang Pachange V/s. State of Maharashtra reported in 2004 ALL MR (Cri) 736 on the point that onus of proving case of negligence or rashness beyond reasonable doubt is on the prosecution. Advocate Shri Pasbola has cited Jayprakash Laxman Tambe V/s. State of Maharashtra reported in 2003 ALL MR (Cri) 2191 and Prashant G. Karande V/s. State of Maharashtra & Ors. reported in 2003 ALL MR (Cri) 2187 on the point that mere high speed cannot amount to a negligent or a rash driving. There is no dispute about these propositions of law.

18.

AS TO POINT NO.3 :

This point is pertaining to the offence

under sec.353 of the IPC. Admittedly prior to the occurrence accused did not know that a team under the leadership of PSI Shinde was positioned there on the spot in discharge of a public duty. She had driven the said car, as alleged in full speed. Taxi was there on the road near the signal. Speed of the said car as alleged was so high that it gave forceful dash to the taxi, police jeep, motor cycles and injured policemen, Afzal etc.

instantaneously. It cannot be attributed to the accused that then she wanted

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to use criminal force on the policemen to prevent or deter them from discharging their public duty. Hence, I negate point No.3.

19.

AS TO POINT NOS.1, 2, 4 TO 9 :

These points revolve around

the same transaction. Evidence in that regard is intertwined. Hence, for the sake of brevity I would like to discuss them together.

20.

Point Nos.5, 6, are pertaining to the offences punishable under

Secs.333, 332 of the IPC. For the reasons stated for point No.3 I would like to repeat that at the time of occurrence accused did not know that policemen were discharging their duty there on the spot. Even if it is presumed that she dashed and caused grievous hurts, hurts to them it cannot be said that she intended to injure them while they were discharging their public duty. Evidence in respect of causing grievous hurts, hurts to the policemen with intention to deterring them from discharging their public duty is almost nil. Hence, I instantly hold that offence under Secs.333, 332 of the I.P.C. are not proved. However, in case prosecution succeeds to prove that the accused while driving the said car endangered life or personal safety of others i.e. the policemen, Afzal etc. then respective sections viz.338 for grievous hurts and 337 for hurts will

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come into play.

Since Secs.338, 337 prescribe lesser punishment as

compare to Secs.333, 332 respectively same can be considered against the accused.

21.

Advocate Shir Pasbola has placed his reliance on Ashok

Hariba More V/s. The State of Maharashtra reported in 1979 Bom.C.R.263, Maharashtra Shravan reported Ganpat in 1979 Randhir V/s. Bom.C.R.419, The State of

Malahavarao

Bhagwandas Kharade V/s. The State of Gujarat reported in 1971 CRI.L.J. 1626 (V 77 C 471), Karansinh Balubha V/s. State of Gujarat reported in AIR 1987 Gujarat 219 (V 54 C 40) on the point that while drawing blood samples precautions of mandatory nature are required to be taken under the Blood Test Rule. As far as urine sample is concerned, there is no evidence as to who obtained it. Although two blood samples were drawn and sent to FSL Kalina evidence is there only in respect of one blood sample drawn by PW-6. It has come in the evidence that the blood sample though under the Blood Test Rule ought to have been of 5 Ml. PW-11 found that volume of blood sample examined by him was 2.9 Ml. Whereas the volume of blood sample examined by PW-13 was 1.5 Ml. PW-2 admitted in his cross examination that it was not mentioned on the

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blood sample that preservatory was added to it. It is held by Hon'ble the Gujarat High Court and our Hon'ble High Court that Blood Test Rule is of mandatory nature and that its breach would results in making the chemical analyser's reports invalid and inadmissible in evidence. Resultantly blood C.A.reports (Ex.68, 83) need to be ignore. Likewise urine C.A.report (Ex. 62) also need to be ignored.

22.

PW-2, 3, 4, 9 are the injureds.

They have reiterated the

prosecution case. Not only the presence of accused, her driving of the said car and its dash to the taxi, police jeep, motorcycles, deceased and injureds is not disputed. The crux going to the root of the case is whether the accused was under influence of alcohol and whether inspite of knowing the road in the locality she drove the said car dangerously. The team under the leadership of the deceased PSI Shinde was at the time of occurrence on a special drive to nab drunken vehicle drivers. Admittedly PW-2 was having alcohol breathe analyser kit. Advocate Shri Pasbola has argued that there is no evidence in respect of that kit and the same kit was not used by PW-1 when she allegedly took breathe test of the accused in L.T.Marg Police Statioin. It is to be noted that when a big fire takes place one does not care as to where from water is collected to extinguish the fire.

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In the present case both deceased so also PW-2 himself had sustained multiple grievous hurts. The occurrence took place in the midnight. At such time utmost attention is paid to the injureds to see that prompt and adequate medical aid is provided to them. PW-1 was therefore called because she herself was a female police officer. She was called also for the reason that the accused had not co-operated police. In the

circumstances, want of evidence in respect of the breathe analyser kit of PW-2 would make no adverse impact on the prosecution case.

23.

PW-1 has proved the breathe test report at Ex.16.

She

deposed that as to how she used the kit and what precautions she took before taking the breathe test of the accused. She found that alcohol consumption percentage was 457 per 100 Ml. and that the kit was lastly calibrated on 7/1/10 i.e. just about a month before the occurrence. The said alcohol consumption percentage were of rarest nature and very high. Advocate Shri Pasbola has argued that a person having such percentage of alcohol consumption would go in coma. There is no basis to buttress this submission. Secondly alcohol consumption percentage and tolerance may vary from person to person. It is worth to note that King Fisher Beer Tins were not only seized from the said car but also from the bedroom of the

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accused below Ex.75. That panchanama is admitted by defence. Accused is holding USA Passport. It appears that she was habituated to consume beer. Panchanama Ex.75, which is admitted by the defence further reveals that cigars were also seized from the bedroom of the accused. Seizure of cigars is inconsequential. High percentage of alcohol consumption

supported by breathe test report Ex.16 need to be believed.

24.

Advocate Shri Pasbola has submitted that in case evidence of

PW-12 is perused it will appear that she had found only 169% w/v of ethyl alcohol in the blood sample of the accused. It is to be noted that the breathe test was taken at 1.38 a.m. whereas PW-2's analysis reflects that the blood sample was drawn at 2.25 a.m. Therefore, advocate Shri

Pasbola has submitted that within such a short span of 1.38 a.m. to 2.25 alcohol consumption percentage would not have fallen so fast. As such, he tried to impress that the breathe test report is incorrect. Possibility cannot be ruled out that having witnessed the unfortunate dash to multiple vehicles and injuries to multiple persons and severe damage to the said car, the accused must have had received a shock resulting to bring her alcohol consumption percentage down. Secondly beer consumption must be till before 1.38 a.m. Breathe Test Report therefore obviously would give high

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percentage.

25.

Evidence is there on the record that on both sides of the road

barricades were kept and that the accused drove the said car from Opera House side to Churchgate and that before the dash of the said car to the taxi she had not touched any barricade though the space was narrow and that she had successfully negotiated the barricades. Not touching the barricades or safe driving till the spot by itself cannot entail presumption in favour of the accused that she drove the said car safely. 26 photographs of the vehicles involved in the accident at Sr.No.4 below Ex.87 are admitted by accused in her statement under Sec.313 of Cr.P.C.as well. These photographs display conditions of the vehicles including the said car, taxi, jeep after the dash. Hon'ble the Apex Court has held in such cases res-ipsa loquitur principle can be applied. As far as damage caused to the said car is concerned and it is not disputed at all establishes the fact as to how dangerously the accused must have driven the said car. I repeat same is supported by the evidence of PW-2, 3, 4, 9 and inquest panchanamas, P.M.reports, injury certificates.

26.

Advocate Shri Pasbola has submitted that in fact grievous

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hurts sustained by both deceased were not sufficient to cause their deaths in the natural course but for excessive blood loss and medical mismanagement. As far as medical mismanagement is concerned

motorcyclist Afzal died soon after the occurrence and when he was being removed from G.T.Hospital to Saifi Hospital for further medical treatment. Deceased PSI Shinde was immediately removed to Bombay Hospital and instantly admitted in intensive care unit. He died at about 10 a.m. i.e. just after about less than 10 hours of the occurrence. Attributing their deaths to the alleged medical mismanagement would be nothing but rubbing salt to the injuries. PW-2 who sustained fractures to his both thighs was thrown by the dash at the distance of about 25 feet. He was a young police constable aged about 40 years. That again gives indication as to how much forceful dash he must have had received.

27.

Injureds have been cross-examined at length as to in what

position they were standing and where the barricades were and whether they had any chance to see the car before it gave dash to the taxi etc. Occurrence of present nature do take place within a fraction of moment. At times people pay attention towards the dash after the noise. However, same is done instantly. When PW-2, deceased PSI Shinde were standing

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on the road so also the other policemen to nab drunken vehicle drivers it is but obvious their attention must be on the road traffic. PW-4 sitting in the jeep was facing Churchgate side. It was odd hour. Traffic at that time obviously must be and was very thin. The accused has stated in her statement under Sec.313 of Cr.P.C. and written statement at Ex.133 that after the dash her car proceeded further and stopped by taking turn in 180 degree. Spot panchanama Ex.86 proved by PW-13, 17 and particularly the map of scene of crime (Ex.19), which is admitted by the defence do prove the stationary positions of the vehicles involved in the accident. Evidence of PW-16 who had inspected the said vehicles and submitted report at Ex. 103 to 107 also speak about the damage caused to each vehicle. It is argued by advocate Shri Pasbola that admittedly wind screen of the said car was in broken condition and due to the dash airbags in the said car had inflated and same had impaired the accused. Airbags would not have inflated unless the said car would have dashed some object and that too in full speed i.e. forceful dash. Evidence PW-10 on the point of comparison paint scrapings of the said car and other vehicles, glass pieces, etc. items is of least importance because any other alike vehicles paint scrapings, glass would give alike result. Therefore, evidence of PW-10, 14 do not require further scrutiny.

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28.

Admittedly PSI Shinde and motorcyclist Afzal died due to

polytrauma. Their deaths were unnatural. PW-2 had sustained grievous hurts to his both thighs and he was indoor patient for more than two months. PW-3, 4, 9, taxi driver Sonu also had sustained injuries. All those injuries are unequivocally attributable to the dangerous driving of the said car by the accused and under influence of alcohol. The accused cannot deny her knowledge that her such driving would have caused culpable homicides amounting to murder as contemplated under Sec.304 Part-II of the I.P.C. Advocate Shri Pasbola has submitted that at the most it would be a case of rash or negligent driving . Hon'ble the Apex Court has held in the earlier quoted judgements of Alister Pareira, Sanjiv Nanda that such acts should fall under Sec.304 Part-II of the IPC. Resultantly I hold point No.4 as proved. For the reasons earlier stated I further hold that offences under Secs.338, 337 of the IPC are also proved in place of offences under Secs.333 and 332 respectively. I also hold point Nos.1, 2 for the offences punishable under Secs.184, 185 of the M.V.Act as proved.

29.

Definition clause (a) of Sec.2 of the PDPP Act says that

mischief shall have the same meaning as in Sec.425 of the IPC is

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defined. Sec.425 of the IPC contemplates intention as well as knowledge. Therefore, the damage amounting to mischief which the accused caused to the police jeep etc. punishable under Sec.427 of the IPC covered under Point No.8 so also damage to public property i.e. police jeep amounting to Rs.18,198/- (see Ex.124) covered in point No.9 need to be answered in affirmative.

30

Before parting I would like to add few things more. Dinesh

Purshottam Limbad, who stood surety to the accused was in the employment of the accused and her father as a driver for 7 years. Had he been on his duty and had the accused taken his services in driving of the said car, who knows, the occurrence would not have taken place. Secondly the said car was admittedly purchased by father of the accused just about 2 years prior to the occurrence. kilometers. It had no mechanical defect. It had run about 22,200 Thirdly the accused has

reluctantly canvassed theory of consumption of medicine particularly Ibuprofen and Corex, which according to her might have brought her under influence of morphine and/or cannabis constituents and/or alcohol. On that score no positive evidence is adduced. Neither medical officers and chemical analyser were suggested specifically on that score. The

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alleged medicine according to the accused were administered to her by her doctor father and that too in the morning. It can't be said that its influence would have lasted so long. In that eventuality high doses of the said medicine would have been there. There is no defence evidence on that score. It be as it is. The fact of King Fisher Beer Tins in the said car, bedroom of the accused on the contrary nullify the defence case that medicine consumption entailed drug, alcohol symptoms in the blood system. Fourthly defence suggestion that policemen themselves were

under influence of alcohol and contributed for the accident also does not hold any good water. Lastly though the said car dashed number of

vehicles and injured many, the accused miraculously escaped without a scratch. Credit for that goes to the manufacturing of the said car.

31.

Point No.10 :

For the above said reasons accused merits

acquittal of the offence punishable under Secs.353, 333, 332 of the I.P.C. and 27 (a) of the NDPS Act, however, she warrants conviction for the offences punishable under Secs.184, 185 of the M.V.Act, 304 Part-II, 338, 337, 427 of the I.P.C.and 3(1) of the PDPP Act.

32.

I have heard APP Smt.Rayakar for the State on the point of

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sentence. She has prayed for maximum sentence. As against this advocate Shri Ashwin Thool has submitted that conduct of the accused of remorseful nature may be considered. Soon after the occurrence she had asked injureds to accompany her to hospital. It is further contended by him that the accused who is a female of 30 years age has registered a trust for generating awareness in alike cases. It is further argued by him that the accused also lost her father and that she is ready to compensate to the kith and kins of the deceased and victims. In short advocate Shri Thool has prayed for showering mercy.

33.

I have also heard accused on the point of sentence. She has

submitted that she is having mother of 80 years age and she repents on the incident and she wants to give back to the society as much as possible.

34.

Alike incidents are taking place very frequently. Even if the

vehicle drivers want to enjoy their driving they cannot by allowed to treat persons on the road as vanton toys. Deceased PSI Shinde was discharging his public duty alongwith other policemen. Motorcyclist Afzal who too died instantly and at young age. Couple of others sustained injuries.

Victims need to be remembered while pronouncing sentence. Considering

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the behavior of the accused during the trial, her young age, old mother I am of the view that balance has to be maintained in awarding sentence and taking care of woes of the victims, sentence of simple imprisonment of three months and fine of Rs.500/- for the offence punishable under Sec. 184 of M.V.Act, six months simple imprisonment and fine of Rs.1000/- for the offence punishable under Sec.185 of M.V.Act, rigorous imprisonment of five years with fine of Rs. 5,00,000/- for the offence punishable under Sec.304 Part-II of the I.P.C, one year simple imprisonment and fine of Rs. 500/- for the offence punishable under Sec.338 of the I.P.C, three months simple imprisonment and fine of Rs.500/- for the offence punishable under Sec.337 of the I.P.C, one year of simple imprisonment and fine of Rs. 1000/- for the offence punishable under Sec.427 of the I.P.C, two years of simple imprisonment and fine of Rs.20,000/- for the offence punishable under Sec.3(1) of the PDPP Act, would meet the ends of justice. In case of default in payment of fine simple imprisonment would follow for the duration and I am going to pass it in the final order. As far as substantive sentences are concerned they need to be directed to run concurrently. Out of fine realised an amount of Rs.2,00,000/- each need to be paid to the class-I heirs of deceased PSI Dinanath Shinde and Afzal Maknojia and an amount of Rs.50,000/- need to be paid to PW-2 Police Constable

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Shailendra Dinkar Shinde and Rs.15,000/- each to PW-3 Police Naik Ashok Narayan Shinde, PW-4 Police Head Constable Lalasaheb Shivram Shinde and PW-9 Police Head Constable Magan Arjun Gaikwad under Sec.357 of the Code of Criminal Procedure. Likewise out of the fine realised an amount of Rs.20,000/- need to be paid to Police Station Officer, Kalbadevi Traffic Division towards repairing of Qualis Jeep bearing No.MH-01 BA 470.

35.

Accused was arrested on 30/1/10. She was in jail till 4/4/10,

she would be entitled for its set of under Sec.428 of Cr.P.c.

36.

Seized property Art.1 colly., seized King Fisher Beer Tins

need to be destroyed. As far as said car and other vehicles are concerned, same need to be returned to their registered owners. Passport of accused needs to be sent to the USA Embassy, Mumbai. Hence, I pass following order: ORDER 1. Accused stands acquitted under Sec.235(1) of Cr.P.C. of the offences punishable under Secs.353, 332, 333 of the Indian Penal Code, 27(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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2. Accused stands convicted under Sec.235(2) of Cr.P.C. of the offences punishable under Secs.184, 185 of the Motor Vehicles Act, 1988, 304 Part-II, 338, 337, 427 of the Indian Penal Code and 3(1) of the Prevention of Damage to Public Property Act, 1984 and is sentenced to undergo imprisonment, fine and simple imprisonment in default of payment of fine as follows: a) Under Sec.184 of Motor Vehicles Act, 1988 : Simple Imprisonment for three months and fine of Rs.500/-. In default Simple Imprisonment for one month. b) Under Sec.185 of Motor Vehicles Act : 1988 Simple Imprisonment for six months and fine of Rs.1000/-. In default Simple Imprisonment for two months. c) Under Sec.304 Part-II of the Indian Penal Code : Rigorous Imprisonment for five years and fine of Rs.5,00,000/- (rupees five lakh). In default Simple Imprisonment for two years & six months. d) Under Sec.338 of the Indian Penal Code : Simple Imprisonment for one year and fine of Rs.500/-. In default Simple Imprisonment for one month. e) Under Sec.337 of the Indian Penal Code : Simple Imprisonment for three months and fine of Rs.500/-. In default Simple

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Imprisonment for one month. f) Under Sec.427 of the Indian Penal Code : Simple Imprisonment for one year and fine of Rs.1000/-. In default Simple Imprisonment for two months. g) Under Sec.3(1) of the Prevention of Damage to Public Property Act, 1984 : Simple Imprisonment for two years and fine of Rs. 20,000/-. In default Simple Imprisonment for four months. 3. All the substantive sentences shall run concurrently. 4. The accused was in jail from 30/1/10 to 4/4/10. She will be entitled for its set off under Sec.428 of Cr.P.C. 5. Out of the fine recovered an amount of Rs.2,00,000/- (rupees two lakh) each shall be paid to class-I heirs of deceased PSI Dinanath Rajaram Shinde and Afzal Akbar Maknojia respectively. Whereas an amount of Rs.50,000/- shall be paid to PW-2 Police Constable Shailendra Dinkar Shinde and Rs.15,000/- each to PW-3 Police Naik Ashok Narayan Shinde, PW-4 Police Head Constable Lalasaheb Shivram Shinde and PW-9 Police Head Constable Magan Arjun Gaikwad under Sec.357 of the Code of Criminal Procedure. Out of the fine realised an amount of Rs.20,000/- shall be paid to Police Station Officer, Kalbadevi Traffic Division towards repairing of

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Qualis Jeep bearing No.MH-01 BA 470. 6. Seized property Art.1 colly. be destroyed. 7. Seized vehicles be handed over to the registered owners thereof. 8. Seized passport be returned to the USA Embassy at Mumbai. 9. Interim custody of items seized from the house of the accused and the said car be made absolute. 10.Order in respect of disbursement of compensation, if any, to take place only after appeal period or in case appeal after and as per its decision. 11.Order in respect of disposal of seized property to take effect after one year from today. (I.M.BOHARI) Spl.Judge Under NDPS Act, Gr.Bombay.

Date: 01/11/12

Dictated On : 01/11/12 Transcribed on: 02/11/12 Signed on