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Ex.141

1

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: 13/05/10

Registered on : 14/05/10

Received on

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

Exh.141

Complainant

Accused

APP Smt.Kiran Rayakar for the State.

Advocate Shri Sudeep Pasbola and Shri Aswin Thool for

accused.

JUDGMENT

(Delivered on

1 st November, 2012)

1. The above named female accused stands prosecuted by the

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,

PSI

Shinde

were

drawn.

Postmortems

of

their

dead

bodies

were

conducted (PM reports Ex.33, 27).

Their deaths were unnatural and

caused due to polytrauma in road traffic accident.

Police Constable

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).

recorded

and

on

In the meanwhile statements of the witnesses were

completion

of

investigation

this

chargesheet

was

submitted to the Addl.CMM 47 th 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

(breathe Test)

Ex.15

PW-2 PC Shailendra Jadhav

( Injured)

Ex.18

PW-3

PN Ashok Shinde

(Injured)

Ex.20

PW-4 PHC Lalasaheb Shinde

(Injured)

Ex.21

PW-5 Dr.Ganesh Doiphode

(P.M.of PSI Shinde)

Ex.26

PW-6 Dr.Ashwini Kondvilkar (treated injured, accused, obtained blood sample of the accused)

Ex.28

PW-7

Dr.Vishal Lapshia

(P.M.of Afzal)

Ex.38

PW8 Dr.Dipkumar Sugandh

(treated injured)

Ex.41

PW-9 PHC Magan Gaikwad

(Injured Complainant)

Ex.43

PW-10 C.A. Rajendra Mawle (examined painting scrapings etc)

Ex.47

PW-11 C.A. Sandip Chetty

(examined urine, blood samples)

Ex.56

PW-12 C.A.Sayali Nikam

(examined blood sample)

Ex.81

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PW-13 Guruprasad Tiwari

(Spot panch)

Ex.85

PW-14 API Dilip Daingade (drew panchamas Ex.89 to 93)

Ex.88

PW-15 Ganesh Mestry (Mechanic, discharged by prosecution)

Ex.97

PW-16 Prakash Karad

(examined vehicles )

Ex.102

PW-17 PI Ashok Sarambalkar

(Investigating Officer)

Ex.109

Statement of accused under Sec.313 of Cr.P.C. is recorded below

She neither deposed on oath nor examined any defence witness.

Ex.11.

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

consideration.

the

circumstances,

following

points

arise

for

my

I have recorded my findings thereto against each of them

for the reasons given below:

 

POINTS

FINDINGS

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 ?

Proved.

 

2.

Does prosecution prove that during the above said transaction accused drove the said car in drunken condition i.e. after consuming alcohol, narcotic drugs viz. Morphine, Cannabis Constituents and

Offence

u/s

27(a)

of

the

NDPS

Act

not

proved

but

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at the relevant time was under its influence and thereby committed offence punishable u/s.27(a) of the NDPS Act r/w. 185 of the M.V.Act ?

offence u/s 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 ?

Not Proved.

 

4.

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. ?

 

Proved.

5.

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. ?

Not Proved but offence pun.u.s.

338

of the IPC

proved.

 

6.

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. ?

Not Proved but offence pun.u.s.

337

of the IPC

proved.

 

7.

Does prosecution prove that during the above said transaction accused caused hurts to motor taxi

 

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driver Sonu Yadav and thereby committed offence punishable u/s.337 of the I.P.C. ?

Proved.

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. ?

Proved.

9.

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.

10.

What order ?

As per final order.

 

R E A S 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.

merits conviction.

According to

APP Smt.Rayaka accused

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.

afraid to uphold this contention.

If primary

impact is only

I am

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

Ex.141

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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,

 

Shravan

Ganpat

Randhir

V/s.

 

The

State

of

Maharashtra

 

reported

in

1979

Bom.C.R.419,

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

Ex.141

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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.

Ex.141

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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

Ex.141

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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

Ex.141

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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.

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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 mis-

management.

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

Ex.141

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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

Ex.141

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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.

Ex.141

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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.

prayed for showering mercy.

In short advocate Shri Thool has

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

Ex.141

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Judgement90/10

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/-.

for one month.

In default Simple Imprisonment

e) Under Sec.337 of the Indian Penal Code : Simple Imprisonment

for

three

months

and

fine

of

Rs.500/-.

In

default

Simple

Ex.141

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Judgement90/10

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

Ex.141

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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.

Date: 01/11/12

01/11/12

Transcribed on: 02/11/12 Signed on

Dictated On

:

(I.M.BOHARI) Spl.Judge Under NDPS Act, Gr.Bombay.