bmw case judgement

SC No. 25/99, FIR No. 17/99 1 State Vs Sanjeev Nanda etc.Judgement Dt. 2.9.2008

THE COURT OF SH. VINOD KUMARADDITIONAL SESSIONS JUDGE, NEW DELHI

Sessions Case No. 25/99FIR No. 17/99PS Lodhi ColonyU/s 304/201 IPCState Vs 1. Sanjeev Nanda

S/o Sh. Suresh NandaR/o D108 Defence Colony, New Delhi.

2. Manik KapoorS/o Sh. Sudhir KapoorR/o 7 Birbal Road Bijang Pura Extn.New Delhi.

3. Bhola NathS/o Sh. Moti LalR/o 103, Sunder Nagar, New Delhi.

4. Shyam Singh RanaS/o Sh. Nandan Singh RanaR/o 50 Golf Link, New Delhi.

5. Rajeev GuptaS/o Sh. Ved Parkash GuptaR/o 50 Golf Link, New Delhi.

Date of institution : 24.4.1999Date of concluding the final arguments : 26.8.2008Date of judgement : 2.9.2008

JUDGEMENT

In the early hours of 10.1.99 one vehicle crashed into a fewpersons on the road and killed six of them. One surviver (i.e


PW2 Manoj Malik) states that the offending vehicle was a truck.Prosecution alleges, it was a BMW car. The prosecution allegesthat the offending vehicle was being driven by accused SanjeevNanda. Defence vehemently denies it. Prosecution alleges it isan offence U/S 304 (1) IPC. Ld defence counsels argue that atthe most it is a case of 304A IPC. One witness says that he sawthe entire incident but defence asserts he was never there.Prosecution alleges that some of the accused persons washed theoffending vehicle to destroy the evidence, whereas defence pleadsfalse implications.

These are the main questions which require determinationby this court but this trial poses greater questions as to what isthe meaning of fair trial and how should the court proceed whenthe witnesses are being won over and the trial is being hijackedby the high and mighty. The trial saw many dramatic twists andturns and it is an eloquent witness to a common state of affairs inthe criminal trials. Of course all the trials do not get the publicityas the present one. This is a case where it is needed that theentire criminal justice system should sit up to find effective waysand means to tackle a situation where wealthy and highly placedpersons are able to thwart the entire course of justice andthereafter at the end, claim benefit of doubt as a matter of right.

This is a trial in which entire criminal justice systemcrumbled, though a hope for justice still remained because of thewatchful eyes of vigilant fourth estate.

THE PROSECUTION CASE

The prosecution alleges that one BMW car numberM312LYP was purchased in the name of Ms Sonali Nanda and


the same had recently reached at the residence of its owner. Thesame was yet to be registered with the Transport Authorities inIndia. It is alleged that accused Sanjeev Nanda, the brother ofSonali Nanda drove this vehicle from her residence and attendeda party at some friend's house where he got badly drunk. Afterattending this party, he drove back the car at about 4 am on10.1.99. Accused Manik Kapur and one Sidharth Gupta (sincedischarged) were also sitting in the said car.

It is alleged that Manoj Malik (PW2) started from his houseto leave his friends namely Nasir, Mehendi Hasan and his friendGulab at Nizamudin railway station on foot. When they reachedat about 4.30 am near petrol pump, Lodhi Road, three policeofficials namely constable Rajan (CRPF), constable Ramraj andconstable Peru Lal both of Delhi Home Guard who were onchecking duty stopped these persons and started checking them.In the meantime a BMW car having no. M312LYP being drivenby accused Sanjeev Nanda came at an extremely high speed andhit the above stated seven persons. It is alleged that on being hit,those persons flew in the air and fell on the bonnet and the windscreen of the car and some of them rolled down and came underthe bonnet of the car. The car took a right turn and hit thecentral verge. The persons who came under the car weredragged up to that point. Manoj who had fallen on the bonnetfell at some distance. The car stopped there and accused Sanjeevwho was driving the vehicle came out from the car. It is allegedthat accused Manik Kapur, who was travelling in the said carwith accused Sanjeev Nanda told him to rush. Accused SanjeevNanda saw beneath the bonnet of the car. The injured personswere shouting and crying but ignoring the injured persons whohad stuck under the bonnet of the car, accused Sanjeev Nandadrove away the car at a high speed towards Dayal Singh College.


It is alleged that the persons who had been injured and thepersons, who had come underneath the car, were crying. Despitethis fact accused Sanjeev Nanda drove away the car and in thisprocess, the three persons who were entangled under the bonnetof the car were dragged, crushed and fell one by one on the road.It is alleged that accused Sanjeev Nanda parked this vehicle inthe house of Sidharth Gupta ie 50, Golf Links and his father ieaccused Rajeev Gupta with the help of his servants namelyaccused Shyam Singh and accused Bhola Nath washed the carand destroyed the material evidence.

Prosecution alleges that the PW1 Harishanker, an Attendanton the petrol pump saw the incident of black BMW car hitting thepeople. He immediately informed telephonically Sh. BrijeshVirmani (PW17) his employer/the Manager of Car Care Center,Lodhi Road, who in turn informed the PCR at no.100 who in turnflashed the message to concerned local police. The police stationLodhi Colony received this information and the same wasrecorded as DD no. 27A. Pursuant to this information, SI KailashChand reached at the spot. Till then a few PCR vans had alreadyreached there. First of all, ASI Devender Singh (PW36) theIncharge of Eagle 11 PCR reached at the spot and took awayinjured Manoj Malik to the hospital. He also flashed themessages to other PCRs who reached there. The other PCR vanstook the remaining injured or deceased persons to the hospital.Inspector Jagdish Pandey (PW13) the incharge of south districtPCR Van also reached at the spot and flashed message to callSHO.

SI Kailash Chand (PW58) wrote a rukka in which he haddescribed the scene of crime. As per this description he foundthree persons namely constable Ramraj, constable Rajan and one


more person dead and he came to know that four other injuredpersons have been taken away by the PCR in the hospital. SIKailash Chand found one broken number plate and when it wasassembled, it was found to be M312LYP and on it Park Laneand BMW was written. One black colour piece of Bumper andrear view mirror glass of a vehicle were found scattered up to100125 feet. Head of one person was found crushed. Therewere skid marks of a vehicle on the spot. The body of oneconstable namely Ram Raj was found crushed and his right legwas found at a distance of 10 – 15 feet away. The belly of Ct.Rajan Kumar was also found burst and the blood was flowing onthe road for quite some distance. All the three dead bodies weresent to AIIMS hospital by ambulance. Therefore, it was clear toSI Kailash Chand that the offending vehicle was a black colourBMW car having a number plate bearing no. M312LYP.Considering the scene of crime, he recommended registration ofFIR U/S 338/304 IPC. The rukka was despatched to the policestation where the FIR EXPW18/A was registered.

Prosecution alleges that when SI Jagdish Pandey (PW13)Incharge of the PCR reached at the spot, he found a trail of oil onthe road starting from the place of offence. He followed the trailand reached 50 Golf Links. SHO Vimlesh Yadav also reached atthe spot. The gate of this house was closed. When the policeofficials peeped through the side hinge of the gate, they foundthat accused Rajeev Gupta, Bhola Nath and Shyam Singh werewashing a damaged black BMW car. The police got the gateopened. It is alleged that this car was not having a number plateand its broken bumper and lights appeared to be similar to thebroken bumper and light pieces found at the spot near petrolpump. One park lane sticker was also affixed on this car. Theblood was also noticed in the rear left side wheel of the car. On


query by the police, Rajeev Gupta told that the car belonged toSanjeev Nanda who was a friend of his son Sidharth Gupta andthat they had gone to Defence Colony at the residence of SanjeevNanda. SI Ulhas Giri was sent to the house of accused SanjeevNanda at Defence Colony and he brought accused SanjeevNanda, and Manik Kapur and Sidharth Gupta to 50 Golf Links.As soon as all the three accused persons reached at the spot,accused Sanjeev Nanda asked accused Rajeev Gupta '' Kya carDhul Gai ?''. Police apprehended all the accused personsincluding Sidharth Gupta and sent them for their medicalexamination. It is alleged that at that time the InvestigatingOfficer observed an injury on the lip of accused Sanjeev Nanda.

All the accused were medically examined. As per theMLC of accused Sanjeev Nanda, prepared by Dr. T. Milo of AIIMSHospital, Sanjeev Nanda was brought to casualty of AIIMS byHC Nand Kishore with alleged history of consuming alcohol.The pupils of his eyes were bilaterally dilated. The speech ofcoherent and gait unsteady. Smell of alcohol was present.There was blood clot in left nostril. He complained pain inthe nose and lips and following injuries were observed:

1. One lacerated wound inthe upper lip .2 x .5 cm.Size with swelling andblood clot.

2. One lacerated wound inthe lower lip .1 x .6 cm.With swelling and showingblood clot.

The blood sample of accused Sanjeev Nanda was taken bythe doctor which was sent to FSL. On receiving this sample on


12.1.1999, doctor Madhulika Sharma (PW16), Senior ScientificOfficer cum Chemical Examiner found on testing the same thatthe blood sample gave positive test for presence of 0.115 %weight/volume ethyle alcohol. Her report is Ex.PW16/A which isdated 15.1.99.

At about 10 am on 10.1.1999, police called Nagesh KumarWadera (PW29) a Finger Print Expert who lifted the FingerPrints from the various parts of the car at 50 Golf Links itself.The car was later on taken to the police station Lodhi Colony. On11.1.99 Senior Scientific Officer D.S Chakoutra (PW31) wascalled at the police station and he inspected the car again. Helifted some blood lying on the steering of the vehicle. As per thereport of Sh. D.S. Chakotra, this blood stain was of “B” group.

I may add here that the another blood sample of SanjeevNanda taken at AIIMS hospital was sent for chemical examinationbut no opinion could be given regarding the blood group becauseas per report Ex.PW31/E the blood was found putrefied. It ispertinent to note that this blood sample was received by FSL on3.4.99 i.e. after about three months of the incident. Later onduring trial, accused Sanjeev Nanda filed his own blood groupreport and as per this report , his blood group is B positive.

On 10.1.99 SI Kailash Chand prepared a site planEXPW58/B. This site plan mentions the scene of crime in greatdetails. On 23.3.99, on the instructions of SI Kailash Chand,rough notes of the spot were prepared by SI Madan Pal (PW19),a draftsman and on the basis of these rough notes, he prepared ascaled site plan Ex.PW19/A.


Mechanical inspection of the vehicle was got conductedand as per the mechanical inspection report Ex.PW14/Bprepared by Devinder Singh, the steering oil was foundfinished in oil reserve. The report mentions the damage on thecar in detail.

The postmortem of the dead bodies was got conducted.

On 11.1.99 the police produced accused Sanjeev Nanda andother accused persons before Sh. V. K. Sharma, Ld. MetropolitanMagistrate and sought two days police remand. On policeremand, accused Sanjeev Nanda got recovered his woolensweater and a jeans (both of which were blood stains) from hishouse D108, Defence Colony, New Delhi. It is alleged by theprosecution that accused Sanjeev Nanda was wearing theseclothes at the time of the offence. Both these clothes were seizedvide memo Ex.PW32/A.

On 15.1.99, Sunil Kulkarni (examined as court witness)appeared as a witness of accident. The Test Identification Paradewas arranged for 18.1.99 but accused Sanjeev Nanda refused totake part in the same. On 21.1.99, a statement of Sunil Kulkarniwas recorded by Sh. Raj Kumar Chauhan, the then Ld.Metropolitan Magistrate under Section 164 CrPC.

After completion of investigation, charge sheet was filed.

THE CHARGE

On these accusations, charges were framed on 3.8.99against the accused persons. Charge under Section 201/34 IPCwas framed against accused Sanjeev Nanda, Manik Kapur and


Sidharth Gupta for running away from the spot with intention toscreen themselves from legal punishment.

Another charge under Section 201/34 IPC was framedagainst accused Rajeev Gupta, Shyam Singh Rana and BholaNath for causing certain evidence of the offence to disappearby washing the car to remove blood stains from it.

Another charge under Section 304(I)/308/35 IPC wasframed against accused Sidharth Gupta. However he wasdischarged by Hon'ble High Court later on.

Another charge under Section 304(I)/308/34 IPC wasframed against accused Sanjeev Nanda and Manik Kapur forcausing the deaths of Rajan Kumar, Peru Lal, Ram Raj, MehandiHasan, Nasir and Gulab and for attempting to commit culpablehomicide not amounting to murder of Manoj Malik.

All the accused persons pleaded not guilty and claimed trial.

PROSECUTION WITNESSES

In order to prove its case prosecution examined asmany as 61 witnesses. PW1 Hari Shanker Yadav is an employee of PetrolPump known as Car Care Center at Lodhi Road, New Delhi. Hetestified that one vehicle came at a fast speed from the side ofNizamuddin. In the accident some persons had fallen down,received injuries and also died. He testified that he was sofrightened that he went inside the petrol pump. In respect ofother details, the witness did not support the prosecution case. PW2 Manoj Malik is the injured witness. In the


month of January 1999 he was staying at CGO Complex, LodhiRoad and was working there at the Dhaba of Kailash Chand. Hetestified that he was going towards the Railway Station with histwo friends. They were stopped by the police. He testified thatthey were standing in the center of the road and one truck hitthem. Due to this reason the three police officials and two of hisfriends were killed and he himself was injured. In crossexamination he testified that he was told by one member ofParliament in Orisa that he should go to Delhi and contactadvocate Mr. Manoj and Ms Santosh Mishra. This witness didnot support the prosecution case but in his cross examination bySh. R. K. Anand, adv. for accused Sanjeev Nanda, he testified thatafter two or four minutes the truck stopped at a littledistance. PW3 Ct. Sunil Kumar was posted as constable at PSLodhi Colony on 10.1.99. He had taken accused Sidharth Guptato AIIMS for his medical examination and collected the medicalpapers from the hospital. PW4 Ct. Vikram Singh took accused Shyam SinghRana for his medical examination at AIIMS. PW5 Ct. Banwari Lal was sent to AIIMS along withaccused Bhola Nath for his medical examination. PW6 Dr. S. K. Gupta conducted postmortem on thedead body of Mehandi Hasan S/o Abdul Jafar 20 years male. Hefound the abrasions and lacerated wounds and opined the causeof death to be an anti mortem head injury produced by bluntforce. PW7 Suresh had gone to the mortuary of AIIMS on11.1.99, where he identified the dead body of his brother in lawPeru Lal S/o Ghasi Ram. PW8 Abdul Jabbar is the father of deceased MehndiHasan. He had gone to the mortuary of AIIMS on 17.1.99 to


identify the dead body of his son Mehendi Hasan. PW9 Sunil was working as a mechanic at Dalip MotorsWorkshop at Mehar Chand Market, Lodhi Colony in January1999. On the asking of the police, he opened the damaged headlight of left side of BMW car. The same was seized by the policevide memo Ex.PW9/A. PW10 Dr. T. Milo medically examined Accused ManikKapur. Report in this regard is Ex.PW10/A. He also examinedaccused Bhola Nath. Report in this regard is Ex.PW10/D. Dr. TMilo also examined accused Rajeev Gupta. Report is Ex.PW10/F.On 10.1.99 he had also examined accused Sanjeev Nanda videMLC Ex.PW10/G. PW11 ASI Ram Avadh was on duty on PCR Van DLIV3582 on the night intervening 9/10.1.99. On 10.1.99 at about4:15 am he received an information from Eagle 1 and healongwith Inspector Jagdish Pandey reached in the Gypsy at theplace of offence. He also accompanied Inspector Jagdish Pandeyto 50, Golf Links. PW12 Ct. Jamshed Ali had gone to house No. 50 GolfLinks on 10.1.99 along with SI Bega Ram, HC Nand Kishore, Ct.Sunil Kumar, Ct. Vikram, Ct. Banwari and Ct. Inder Mal andassisted the investigation. PW13 Inspector Jagdish Pandey was on duty from8:00 pm to 8:00 AM as Checking Oficer, South Zone, PCR onPolice Gypsy No. DL 1 V 3582 along with the staff ASI RamAvadh, Ct. Gunman Sunder Pal and Ct. Driver Sham Singhreached at the spot. He followed an oil trail and reached at 50,Golf Link where he found accused Rajeev Gupta, Shyam Singhand Bhola Nath washing the BMW car. PW14 Sh. Davinder Singh inspected the BMW car on6.2.99 at Lodhi Colony, Police Station and after examination hegave his report Ex.PW14/B.


PW15 Sh. S. C. Gupta is the Director and InchargeMeteorological Office, Safdarjung Airport, New Delhi. He gavethe weather report Ex.PW15/B of 10.1.99 at 5:30 am. Hetestified that SI Kailash Chand moved an application on 10.1.99at about 4.50 p.m to give the weather report. As per his report,the visibility on 10.1.99 at 5.30 am was 1000 metres atSafdarjung Airport. PW16 Dr. Madhulika Sharm is Senior ScientificOfficer cum Ex officio Chemical Examiner, FSL Malviya Nagar,New Delhi. She proved her report Ex.PW16/A. As per this report,the blood sample of Sanjeev Nanda gave positive test for ethylalchohol and was found to contain 0.115 % weight/volume. PW17 Sh. Brijesh Virmani is the Manager of Car CareCenter, Petrol Pump, Lodhi Road. On 10.1.99 at about 4.40 am,he received a telephonic call from Harishanker, the telephoneattendant who informed that some serious accident has takenplace in front of the Petrol Pump. This witness informed thePolice Control Room at telephone No. 100. PW18 HC Surat Singh was posted at PS Lodhi Colonyas Duty Officer from 12 mid night to 8:00 am in the morning of10.1.99. On receipt of rukka at 7.20 am , he recorded FIRNo.17/99 EXPW18/A. PW19 SI Madan Pal is the Draughtsman. On 23.3.99on the instructions of SI Kailash Chand he visited the place ofincident. He made rough notes at the spot and then on 24.3.99he prepared scaled site plan Ex.PW19/A at the place of incident. PW20 Rajesh Kumar is the Director of M/s R. U.Import Export Private Ltd. He handed over to SI Kailash all therelvant documents of the BMW car on 14.1.99. The documents,which were handed over to the police, were regarding the customclearance of the BMW Car. He testified that BMW car No. M312LYP was cleared in the name of Sonali Nanda, R/o 4, Prithviraj


Road, New Delhi. PW21 SI R. D. Pandey took a pulanda and a sampleseal of CMO AIIMS on 12.1.99 and deposited the same at FSLMalviya Nagar vide RC No. 203/21. PW22 Ct. Prithvi Raj was deputed to guard the deadbody of Mehendi Hassan at Mortuary AIIMS Hospital from16.1.99 to 17.1.99. He also received the blood samples of thedeceased from the hospital and the clothes of the deceasedwhich were taken in possession by Head Constable Vijay Pal vidememo EXPW22/B. PW23 Ct. Inder Mal along with SI Mega Ram hadtaken the accused Rajeev Gupta for medical examination on10.1.99. PW24 Ct. Manohar Lal was on duty on PCR Vanwhich took injured Manoj to Hospital. PW25 Bajinder Singh was working as a SecurityGuard in Group Force Company in the month of January 1999.On 9.1.99 he was on duty as Security Guard at Kothi No 4,Prithviraj Road. He brought a register maintained at the saidresidence for entry and exit of the cars. He testified that as perthis register, the BMW Car No. M312 LYP was taken out fromthe Kothi at 18.55 hours by one 'Baba'. He did not support theprosecution case that accused Sanjeev Nanda is also calledBaba. PW26 Sh. Ram Deva identified the dead body of onePeru Lal S/o Ghasi Ram. PW27 Rajinder Singh identified the dead body of hisnephew Ram Raj S/o Rajpal. PW28 Rajinder Keshav carried out the inspection ofthe car registration no. M 3 12 LYP and gave report in this regardEx.PW28/A. This witness found that steering and brakes ofthe car were OK.


PW29 Sh. Nagesh Kumar Wadera was posted as aFinger Print Expert in Southern Wing Crime Team, R. K. Puramon 10.1.99. He noticed and developed 18 chance prints with thehelp of gray developing powder and prepared report Ex.PW29/Ato this effect. PW30 HC Rajpal had gone to mortuary on 11.1.99 ofAIIMS along with HC Vijay Pal on the instruction of I.O. He is awitness to handing over the dead bodies to their relatives. PW31 Mr. D. S. Chakoutra inspected a BMW car on11.1.99 in the police station. He lifted blood stains from thesteering of the car. On examination, this blood was found to beof B group. However, its Rh factor could not be identified. PW32 HC Jagbir Singh on 11.1.99 along with KailashChand SI, SI Ulhas Giri and accused Sanjeev Nanda visited thehouse D108, Defence Colony, New Delhi and he is a witness tothe recovery of blood stained Jeans and Jersey/Sweater ofaccused Sanjeev Nanda from house No D108, Defence Colony. PW33 SI Bega Ram along with Ct. Nand Kishore, Ct.Sunil, Ct. Vikram, Ct. Inder Mal, Ct. Jamshed, Ct. Banwari gotmedically examined accused Sanjeev Nanda, Sidharth, Manik,Sham Singh, Bhola Nath and Rajeev Gupta in AIIMS Hospital. PW34 Ct. Sadhi Ram was a gun man on PCR vehicleno. Eagle 11 on 11.1.99. ASI Davinder was the incharge of thatPCR Gypsy and driver Ct. Manohar lal was also with him. Theyreached at the place of offence and picked up injured Manoj tohospital. PW35 Surinder had identified the dead body of hiselder brother Ram Raj on 11.1.99 in the mortuary of AIIMS.

PW36 ASI Davinder Singh along with HC Sadhi Ram,Gunman and the driver Manohar Lal were on the patrolling dutyin East Nizamuddin Area in the PCR Gypsy. He reached the spoton receiving a wireless message about an accident and took away


the injured Manoj to AIIMS hospital. PW37 Ct. Jagan Lal on receiving of DD No. 27A healong with Kailash Chand SI reached in front of petrol Pump CarCare Center at Lodhi Road. He also took the rukka prepared bySI Kailash Chand to police station and after getting the FIRregistered, came back to the spot. PW38 C SI Vidya Nand was on duty on a PCRVehicle, No. 14 and on receiving a message from Control Roomabout one accident at Lodhi Road in front of Car Care CenterPetrol Pump, he reached at the spot and took one injuredMehendi Hasan to hospital in PCR Van. This injured later onexpired in the hospital. PW39 ASI Sawai Lal along with Ct. Amar Singh andCt. Rakesh Kumar driver on 9/10.1.99 were on patrolling duty inPCR vehicle Eagle 13. On receiving the message at 4:53 AMabout some accident in front of Car Care Center petrol Pump,Lodhi Road, he reached at the spot. PW40 HC Nand Kishore was posted as HeadConstable on 10.1.99 at PS Lodhi Colony. At about 5.15 am hereached in front of Car Care Centre Petrol Pump. He found thatone of the dead bodies was of constable Rambhaj, another deadbody was of CRPF constable Rajan. He is a witness to variousmemos prepared by SI Kailash at the spot. He also reached at50, Golf Links and found that the car had been recently washed. PW41 Ct. Girish Kumar was posted at AIIMS on10.1.99 as Duty Constable. He handed over the blood sample ofSanjeev Nanda and sample seal to SI Bega Ram who seized thesame vide memo Ex.PW41/A. PW42 Ms Alka was working as a Receptionist in HotelShiva Continental in which witness Sunil Kulkarni was alloted aRoom No. 102 on 8.1.99. She proved a received of advance ofRs 1000/ paid by Sunil Kulkarni as EXPW42/A . She testified


that as per the record/register EXPW42/B maintained by them,Sunil Kulkarni left the hotel at 12.30 pm on 9.1.99. PW43 ASI Dhian Singh was on duty on a PCR Van,Victor 22 at the time of offence and he along with his staffreached at the spot in the PCR Van. He removed one of theinjured whose name was revealed as Peru Lal to AIIMS. PW44 HC Vijaypal Singh is the Malkhana Mohrar. PW45 Ct. Darhinder was posted as Duty Constable atAIIMS on 9/10.1.99. PW46 F. C. Chauhan DSP identified the dead body ofCt. Rajan Kumar and signed the documents which isEx.PW46/A. PW47 SI Sada Vriksh Yadav got the postmortemdone on 11.1.99 in respect of dead body of Peru Lal,Gulab,Rajan, Ram Raj , Nasir and Mehendi Hasan. PW48 Sh. Mohd. Samsher identified the dead body ofMohd. Nasir in mortuary of AIIMS. PW49 Dr. Sunil Kumar conducted the postmortem on11.1.99 on Mohd. Nasir 30 years male. PW50 Meer Shamsher identified the dead body of hisnephew Nasir Mohd and Mohd Gulab. PW51 Om Bir Singh was on duty at PCR vehicle No.Eagle 16. He picked up Nasir S/o Abdul Shakur, who was ininjured condition and took him to AIIMS hospital and got himadmitted vide MLC No. 2482/99 through constable on duty. PW52 Sh. A. K. Jain is the Development Officer/AAO,National Insurance Co. Ltd. 34, Kapashera, New Delhi. Hetestified that he had insured the BMW car in question. PW53 Bannu Singh is a Sub Inspector in 86th

Battalion of CRPF. He testified that their soldiers ( Sipahi) usedto be deputed in various police stations for duty and constableRajan Kumar was posted in Lodhi Colony near Care Car Centre


on the said date. He identified the dead body of Ct. RajanKumar. PW54 Kirti Ram Unyal brought the summoned recordincluding MLC No. 2740 EXPX of Rajeev Gupta from AIIMSHospital. PW55 Inspector Vimlesh Yadav was posted as SHOPS Lodhi Colony on 9.10.99. She reached at the spot alongwithSI Kailash Chand and constable Jagan Lal. She received a wireless message from Inspector Jagdish Pandey who reached 50,Golf Links. She noticed that the car was being washed. She gotthe gate of the house opened and found the damaged BMW car.She directed SI Kailash Chand to proceed with the investigationand directed SI Ulhas Giri to reach D108, Defence Colony whereaccused Sanjeev Nanda, Manik Kapur and Sidharth Gupta hadgone. She also called the photographer and the Crime Teamand sent all the accused persons for medical examination. Thevehicle was seized and sent to police station . On 15.1.99, SunilKulkarni appeared as witness of accident. She testfied that TIPwas got arranged but accused Sanjeev Nanda refused to takepart in TIP proceedings. The statement U/.S 164 CrPC of witnessSunil Kulkarni was also got recorded. PW56 Sh. R. K. Chauhan was working asMetropolitan Magistrate on 21.1.99, New Delhi. Sh. R. K.Chauhan, Ld. Metropolitan Magistrate had recorded thestatement U/S 164 CrPC of witness Sunil Laxman Kulkarni. Thesame is Ex.PW56/B. PW57 Ms Renu Bhatnagar was posted asMetropolitan Magistrate on 16.1.99 in Patiala House Courts. On18.1.99 she reached Tihar Jail at about 2:25 pm for conductingthe TIP of accused Sanjeev Nanda. Accused had refused to jointhe TIP. PW58 SI Kailash Chand is the initial Investigating


Officer.He prepared the rukka , got FIR registered and collectedthe material evidence from the spot. PW59 Ct. Ramavtar was posted as photographer on10.1.99 in South Distt. DCP Office. On that day on receipt of theinformation he took the photographs of the scene of occurrencefrom different angles. Negatives of which are Ex.PW59/1 to59/18. He had also prepared a video film at the spot. The videofilm covers the area from the place of accident to 50 Golf Linkswhere the accident car was found parked. The video film isEx.PW59/19. During trial, the video was converted into theC.Dwhich are part of judicial file. PW60 Ulas Giri is the second Investigating Officer.Apart from other investigation, he also effected recovery of theclothes of Sanjeev Nanda at his instance. PW61 Dr. Prashant Kulshreshtha is Senior Resident,Forensic Medicines, AIIMS, New Delhi. On 11.1.99 he performedautopsy on body of deceased Rajan Kumar, Peeru Lal and RamRaj on the request of IO Sada Briksh PS Lodhi Colony.

Prosecution witness Sunil Kulkarni was given up by theprosecution. However, he was summoned by me U/S 311 CrPCand he was examined as a court witness on 17.5.2007,29.5.2007, 11.7.07 and 19.7.07.

STATEMENTS UNDER SECTION 313 CRPC OFACCUSED PERSONS

After completion of prosecution evidence, statementsof accused persons under Section 313 CrPC were recorded. Allthe accused persons except accused Manik Kapur preferred tolead evidence in their defence.


DEFENCE WITNESSES

In his defence evidence accused Sanjeev Nandaexamined the following witnesses in his support: DW1 Mrs Sumitra Nand is grand mother of accusedSanjeev Nanda. She testified that she resides at House No. B104, Defence Colony with her husband Admiral Nanda at B104Defence Colony. Her son Suresh Nanda used to live abroad atthat time but he had a house at 4, Prithviraj Road, where hisdaughter Sonali Nanda used to live alone and whenever SureshNanda used to come to India, he would stay at 4, Prithviraj Road.She testified that Smt Renu Nanda, the wife of Suresh Nanda,used to live separately with her son ie accused Sanjeev Nanda atD108, Defence Colony. She testified that Renu Nanda andSuresh Nanda used to live separately as their was separationbetween them. Sanjeev Nanda was studying abroad butwhenever he came to India, he stayed with her mother. Shetestified that at about 7.30 or 8 am on 10.1.99 Renu Nandacalled her and her husband to their house as police hadvisited her house. She testified that after she and herhusband reached D 108 Defence Colony, she found thatpolice was asking Sanjeev Nanda to accompany them.Sanjeev resisted and police officials gave two three blows onhis face due to which blood oozed out from his lips. DW2 Amit Kilambkar is cameraman India TV, 202203349 Business Point, Western Express Highway, Second Floor,Andheri East, Mumbai. He recorded the interview of one GauriShanker Tiwari on Sony PD170. In this interview, GauriShanker Tiwari called Sunil Kulkarni a Cheat and also statedthat on the day of offence, Sunil Kulkarni was in Mumbai.However, Gaurishanker Tiwari was not examined by defence. DW3 Sayedain Zaidi is a Chief of Bureau (Mumbai)


India TV. He interviewed Gauri Shanker Tiwari at his office or inhis studio in Mumbai. DW4 Sh. V. N. Sehgal is a retired Director of CFSL,CBI with a lot of experience. He testified on various aspects ofblood testing. He testified about the effect of the alchohol upon aperson. He also gave his opinion on the rate of elimination ofethenol from the blood.

Accused Rajeev Gupta, Shyam Singh and Bhola Nathexamined following witnesses in their defence: DW5 Gaurav Karan is the friend of Sh. SidharthGupta (the son of accused Rajeev Gupta). He deposed that onthe morning of 10th January 1999, his friend Sidharth Guptatelephoned him at about 7:30 – 8:00 in the morning that therewas an accident and requested him to reach at his house . Hetestified that when he reached at that house, he found SudhirSareen, the father in law of Sidharth Gupta at their house andpolice took him to police station. He testified that Mr RajeevGupta was not there at that point of time and he came to knowthat he is sleeping. DW5 went up to the room of Rajeev Guptaand knocked the door. Rajeev Gupta and his wife opened thedoor at about 9 am and then he told them about the accident. Incross examination, he admitted that he was son of an ExCommissioner of Police. DW6 Himalyani Gupta is the friend and lawyer ofaccused Rajeev Gupta. She deposed that on 10th January 1999Rajeev Gupta gave her a call at around 10:00 am and was askingher if I could come to Lodhi Colony police station as he wasproceeding towards the police station. She testified that she wasa lawyer and a family friend of Rajeev Gupta. Therefore, shereached at the police station at about 10.45 am. DW7 Karan Singh is the Chokidar of accused RajeevGupta. He deposed that on the date of the incident he was


working as Chokidar at B16, Greater Kailash, the residence ofRajeev Gupta in 1999, Rajeev Gupta alongwith his wife andSidharth Gupta had shifted to 50, Golf Links but full family hadnot shifted as Shrawan, the elder son of Rajeev Gupta had notshifted from Greater Kailash. On 10.1.99, at about 8 am, hereceived a telephonic call from a servant of Rajeev Gupta thatthe Chowkidar at 50, Golf Links had been taken away by thepolice. Therefore, DW7 reached at 50, Golf Links. He testifiedthat he saw Rajeev Gupta and his wife at 1010.15 am and at thattime Rajeev Gupta was inside his house. He also testified thatthere was no arrangement for washing the cars in the Drive Way. DW8 Dr. Deepak Bawa is the family physician ofaccused Rajeev Gupta. He testified that Rajeev Gupta suffersfrom Diabetes and high Blood Pressure. He testified that RajeevGupta plays cards everyday till late night and wakes up fairlylate. On his medical advice, Rajeev Gupta also takes sleepingpills five to six times in a month.

DW9 Sudhir Sareen testified that his daughter Parulwas engaged with Sidharth Gupta on 8.1.99 and there was aDinner at his residence in the night intervening 9/1011999. Inthe said dinner, Sidharth Gupta, Rajeev Gupta and his wife werealso present. He testified that Sidharth Gupta and Parul left toattend an Engagement Ceremony of their common friend. Thedinner at their residence was over by 2.30 am on 10.1.99.Sidharth Gupta and Parul returned at 4 am. At 7 am Sidharthleft their house. Witness testified that he received a telephoniccall from Sidharth Gupta that car of Sanjeev Nanda was parkedhis house and PCR Van was also parked outside his house. Thewitness testified that he reached at 50, Golf Links in his car atabout 8 'O' clock. SHO Lodhi Colony asked him to get the gateopened. This witness took the police to the Drawing Room andfound Sidharth Gupta and Manik Kapur there. She made


inquiries from Sidharth Gupta and Manik Kapur as to whose carit was ? Witness testified that SHO arrested him for destructionof evidence presuming that he was Rajeev Gupta and took him,Sidharth Gupta and Manik Kapur to police station LodhiColony. He also testified that there was no washing of thecar. From police station, he telephonically called his friendsincluding Ms Himi Gupta, advocate who reached there in about45 minutes. Police then let this witness go and Himi Guptaadvocate told him that police officers had mistaken him as RajeevGupta. He testified that when he reached 50, Golf Links,Rajeev Gupta was sleeping upstairs in the room. This witnessalso testified that the Rajeev Gupta normally wakes up at 10 ameveryday.

Accused Manik Kapur did not prefer to lead evidence indefence.

A COURT WITNESS NAMELY SUNIL KULKARNI

In the present case, one witness Sunil Kulkarni had beendropped by the prosecution. He was summoned as a courtwitness by this court later on. The defence is strongly assailinghis credibility and at one stage the prosecution had almostcondemned him. Ld defence counsel has drawn my attention toan Ordersheet dt. 10.10.07 wherein I had written that someevidence has come in deposition of witness Sunil Kulkarni andprior to it there was no evidence against Sanjeev Nanda. Lddefence counsels have argued that witness Sunil Kulkarni isunreliable witness and except his evidence, this court itself hadadmitted that there was no evidence against accused SanjeevNanda. I make it clear that it was only a prima facie opinion andthe said ordersheet should be read that earlier there was nodirect evidence against accused Sanjeev Nanda.


Since the witness Sunil Kulkarni has been put tovehement attack by the defence, let me appreciate the totality ofthe evidence by excluding the testimony of Sunil Kulkarni and tosee as to whether the prosecution is able to prove its case beyondreasonable doubt if we exclude the testimony of Sunil Kulkarni.

I take each issue one by one .

WHETHER THE OFFENDING VEHICLE WAS A TRUCKOR BMW CAR BEARING NUMBER M312LYP?

Although during the entire trial the accused appeared tobe denying that accident took place with the BMW car numberM312LYP. However, at the stage of final arguments, Ld defencecounsels fairly admitted that in views of overwhelmingevidence, they would not be able to deny that black colouredBMW Car M312LYP was involved in this offence. Therefore, Iam not inclined to discuss this evidence in detail. As per thetestimony of SI Kailash Chand, there were broken pieces ofnumber plate of a vehicle which were assembled and it wasfound to be a number plate having registration No. M312LYP.One rear view glass was found lying at the spot . One trail of oilstarting from the point of offence till 50 Golf Links was found byInspector Jagdish Pandey and police reached 50 Golf Links byfollowing this trail. Mechanical Inspection EXPW14/B of thisBMW car shows that the oil reserve of the vehicle was empty.Rear view mirror and the front number plate of the car wasmissing. Bonnet and the front wind screen of the car was alsodamaged. Therefore, it stands proved beyond reasonable doubtthat the offending vehicle was this BMW car and not the truckas testified by PW2 Manoj Malik.


WHO WAS DRIVING THE BMW CAR?

Ld defence counsels argue that there is no evidence onrecord to show that this car was driven by accused SanjeevNanda. It is argued that even Sunil Kulkarni does not state thataccused Sanjeev Nanda was driving this car.

I have already stated that the testimony of Sunil Kulkarniwould be discussed later on because presently, I am discussingas to whether the entire evidence on record sans the testimonyof Sunil Kulkarni proves the prosecution case or not. It is not indispute that this BMW car belongs to Sonali Nanda who is realsister of accused Sanjeev Nanda. It is not in dispute that SonaliNanda and her father Suresh Nanda only reside in their houseat 4, Prithviraj Road, whereas accused Sanjeev Nanda resideswith her mother in another house ie D 108, Defence Colony. Asper the testimony of DW 1 Sumitra Nanda who is grandmotherof accused Sanjeev Nanda, his father Suresh Nanda was abroad.Even as per prosecution case, Suresh Nanda returned to India on11.1.99. Therefore, there were no other family members in thehouse of Sonali Nanda except herself in the night intervening9.1.99 and 10.1.99. A Notice was issued by InvestigatingOfficer to state as to who was driving the vehicle on the saiddate. It is pertinent to note that she did not answer to thisnotice. Sonali Nanda lives in India itself and she could havebeen examined by accused Sanjeev Nanda to prove that eitherthis vehicle was being driven by herself or by some other personwhich was in her exclusive knowledge. Non examination ofSonali Nanda who could have proved as to who was driving thevehicle on the said date is a very strong circumstance againstaccused Sanjeev Nanda. It is pertinent to note that BMW car is


very expensive vehicle. There is no allegation that this vehiclehad been stolen on the night of 9.1.1999. It is very strange thateven the chowkidar/security guard who produced the register didnot state as to who had driven away the said car. I may point outthat perusal of the entire file would show that prosecution didnot examine a few material witnesses for example theparticular security guard who made entry that one Baba hadtaken away this car. Was it deliberate? Accused has notproduced any defence evidence as to which person among hisfamily is called as Baba. I am of the opinion that all thecircumstances clearly point out towards only one direction. Theprosecution alleges that due to impact of the accident, one lip ofaccused Sanjeev Nanda got some injury and blood of it fell on thesteering of BMW Car. This blood was found to be of B group.Accused Sanjeev Nanda is also of B positive group. His bloodfrom lip was also found of his jersey recovered by the police.Even as per the defence version, this injury was recent. Thepresence of fresh injury on the lip of accused Sanjeev Nanda,finding of blood on the steering of B group and finding of bloodon the jersey of accused Sanjeev Nanda leaves me in no doubtthat this is accused Sanjeev Nanda himself who was driving theoffending vehicle at the time of the offence and he received theinjury due to the impact of the car hitting the persons standingon the road. Ld defence counsels have vehemently argued thatB group does not mean anything and it could be B negative also.The possibility cannot be ruled out that RH factor of the bloodlifted from the steering could be negative whereas the blood ofaccused Sanjeev Nanda is B Positive. Though, there is somesubstance in the arguments of Ld defence counsels but it mustnot be forgotten that the court has to see the cumulative effectsof all the circumstances. In the present case it cannot be saidthat the blood lifted from the spot does not belong to accused


Sanjeev Nanda Presence of injury on his lip and presence ofblood on her jersey recovered at his instance soon after theoffence leads to irresistible conclusion that this injury has beenreceived while accused Sanjeev Nanda was driving the offendingcar at the time of the offence. Ld defence counsels have arguedthat accused has given a suggestion that SI Ulhas Giri had hit himon his lip. Ld defence counsels have also drawn my attention tothe testimony of DW1 Sumita Nanda that the police officialshad given two or three blows on the mouth of accused SanjeevNanda, due to which blood oozed out from his lips. I haveperused the suggestions and the testimony of DW1. I am of theopinion that explanation of the accused and testimony of DW1on this point is unworthy of credence. As per the testimony of SIUlhas Giri, Admiral S. M. Nanda was very much present at D108,Defence Colony when he reached there. It is a known fact thatAdmiral S. M. Nanda had been a top Naval Officer. As per thetestimony of DW1, Admiral S. M. Nanda followed the policewhen the police took Sanjeev Nanda etc. In such a situationAdmiral S. M. Nanda would have naturally raised an objectionabout the behaviour police. There is no evidence on record nor itis the case of accused Sanjeev Nanda that his grand father raisedany objection to the assault by the police officers nor it is the caseof defence that Admiral S. M. Nanda had filed any complaintagainst the police officials to their superior officers. It must bekept in mind that Admiral S. M. Nanda is not an ordinary citizen.He is a highly respected persons who had served the nation in hisown times. He could not have tolerated infraction of law by asmall officer of law enforcing agency. I have carefully perusedthe MLC of Sanjeev Nanda. Here also Sanjeev Nanda had notstated anywhere to the doctor that police had assaulted him.Had he done so, the doctor would have recorded it. Otherwisealso, I do not find any reason as to why the police official would


beat up accused Sanjeev Nanda.

In the present case, the videography of the vehicle was donestarting from the place of offence up to 50, Golf Links. Ld.defence counsels argue that in the video, the finger printProficient is shown rubbing the powder on the steering of thecar with the help of a brush and no blood stain is visible on it.It is argued that due to this reason the prosecution case becomeshighly doubtful.. Ld Special Public Prosecutor on the other handsubmits that the quantity of blood on the steering was very small.Further, the powder was rubbed on the steering very gently to liftfinger prints. This powder will not change the character of theblood. It is argued by Ld. Prosecutor that after five hours, thissmall quantity of blood might have dried up and therefore thereis no chance that by rubbing with brush the blood might havebeen rubbed off.

I have carefully gone through the videographed reel whichhas been converted into CD by the court order. Even the FingerPrint Expert is seen putting the powder on the steering inextremely gentle manner with the help of a brush to pick up thefinger prints. The backside of the steering is not visible in thisvideography/CD. Therefore, it cannot be said that each and everyportion of the steering is visible. Furthermore even on the frontside of the steering the inner portions of it, there is not sufficientlight and therefore it is not possible to say that blood might notbe present there. No suggestion has been put to him regardingthe presence of the blood on the steering. In such circumstancesthis court has no reason to disbelieve D.S Chakotra (PW31) thathe had picked up blood stain from the steering of the vehicle.


It is pertinent to note that police came to know about thename and address of accused Sanjeev Nanda from accused RajeevGupta. When police reached at 50 Golf Links and inquired fromaccused Rajeev Gupta. He told that the vehicle belongs toaccused Sanjeev Nanda and his son had taken him to hisresidence from here. It is pertinent to note that on this cluereceived from Rajeev Gupta, police reached the house of accusedSanjeev Nanda. The BMW car was not registered in India andthere was no manner in which the police could have known thatit was being driven by accused Sanjeev Nanda not police couldhave known the address where Sanjeev Nanda would be found.Though the statement of Rajeev Gupta stating the name andaddress of Sanjeev Nanda might not be admissible but thequestion is how police came to know his name and address. Theprosecution case that police came to know about it from RajeevGupta himself cannot be doubted and to my mind the policeinvestigation in this regard is not only correct but is alsobelievable. The assurance of correctness of investigation as tohow the police reached upto accused Sanjeev Nanda isanother circumstance which connects accused Sanjeev Nandaas the driver of the offending vehicle.

It is argued by Ld defence counsels that this statement ofRajeev Gupta is not admissible in evidence because he was onlya witness and therefore this statement is hit by Section 162 CrPCand since he was not in police custody, his statement cannot betreated as a disclosure statement under Section 27 of IndianEvidence Act. I disagree with the submissions of Ld. DefenceCounsels. Even if an accused is not formally taken in custody, hestill would be in custody of the police, if he has been detained bythe police. In the present case the police had already seenaccused Rajeev Gupta committing the offence of disappearance of


evidence. Therefore as soon as gate was opened and RajeevGupta was questioned, Rajeev Gupta would be deemed to be inthe custody of the police. I refer to AIR 1940 Lah 129, AIR1948 All 7(9) wherein it was held that the word “custody”does not only mean custody after formal arrest but alsoincludes such state of affairs in which accused can be said tohave come into the hands of police officer or can be said tohave been under some sort of surveillance or restriction.

Now the question is whether disclosure of name of accusedSanjeev Nanda by accused Rajeev Gupta is a discovery of a fact ornot. By now it is well settled that simple discovery of name ofaccused and his address would not be sufficient to draw aparticular situation within the ambit of Section 27 of IndianEvidence Act. But if one accused discloses the name of anotheraccused and such another accused gets some material objectrecovered, in that circumstance the disclosure by the first accusedwould not only be relevant under Section 27 of Indian EvidenceAct but also shall form a piece of proved circumstance. I refer to1969(2) Supreme Court Cases 872 in support of my aboveopinion. In the present case also name and address of accusedSanjeev Nanda was disclosed by accused Rajeev Gupta. After thearrest of accused Sanjeev Nanda, he got recovered his jeans andjersey from his own house. Therefore to my mind all theingredients of Section 27 of Indian Evidence Act stand proved.

I have also mentioned earlier this court is examiningwhether the police investigation in reaching up to Sanjeev Nandais correct or not. It is the police never knew as to whom thisvehicle belonged. The first clue came from accused Rajeev Guptaand getting information from him. They caught accused SanjeevNanda from his house. There is no reason to disbelieve that


name of accused Sanjeev Nanda and his address should havecome to the knowledge of police from some other source.Therefore, the police investigation in reaching up to accusedSanjeev Nanda is not only correct but this has corroborativevalue to the prosecution case that the vehicle was driven bynone other person than accused Sanjeev Nanda. I make itclear that entire evidence in this case has to be appreciated in thebackdrop of the circumstances that accused persons haveindulged in winning over the witnesses to such an extent thateven the victim of this offence is testifying that offending vehiclewas a truck. I am reminded of the word wisdom of our ownsupreme Court in AIR 1973 Supreme Court 2407 wherein it wasobserved in para 23 of the judgement as under :

“A criminal trial is not likea fairy tale wherein one is freeto give flight to one'simagination and phantasy. Itconcerns itself with the questionas to whether the accusedarraigned at the trial is guilty ofthe crime with which he ischarged. Crime is an event inreal life and is the product ofinterplay of different humanemotions. In arriving at theconclusion about the guilt ofthe accused charged with thecommission of a crime, thecourt has to judge theevidence by the yardstick ofprobabilities, its intrinsicworth and animus of


witnesses. Every case in thefinal analysis would have todepend upon its own facts.Although the benefit of everyreasonable doubt should begiven to the accused, the courtsshould not at the same timereject evidence which is exfacietrustworthy on grounds whichare fanciful or in the nature ofconjectures.”

Summing up all the circumstances mentioned above as Iam left in no doubt that it was accused Sanjeev Nanda whohimself was driving the vehicle at the time of the offence.

WHAT OFFENCE IS DISCLOSED ?

The main stress of the final arguments had been as towhether this offence is an offence U/S 304A or 304 IPC. ShPrem Kumar, advocate addressed the arguments in a veryscholarly manner and submitted that the accidents of even gravernature have been opined to be covered U/S 304A IPC and notU/S 304 IPC by Supreme Court of India. Ld defence counselshave cited numerous authorities in their favour, which I discusslater on one by one.

On the other hand, Ld APP has drawn my attention torecent judgements dated 6.9.2007 in The State of MaharashtraVs Alister Anthony Pareira Criminal Appeal No. 430 of 2007,Criminal Appeal No. 566 of 2007 and Criminal Appeal No.475 of 2007 case where the Bombay High Court convicted a


drunk driver of a car U/S 304 IPC which crushed seven personson the foot path in the night.

I have already stated that presently I am considering thisevidence excluding the testimony of Sunil Kulkarni.

I have perused Pareira's case of Bombay High Court and Iam of the opinion that it is a treatise on the question as to whatconstitutes knowledge. In fact, each and every sentence of thatJudgment requires to be quoted here but I refrain from it for thesake of brevity.

First of all, let me quote Section 304A IPC.304A. Causing death by negligence – Whoever causes the

death of any person by doing any rash or negligent act notamounting to culpable homicide, shall be punished withimprisonment of either description for a term which may extendto two years, or with fine, or with both.

The bare perusal of this Section would show that first of all,the court should determine as to whether offence is culpablehomicide. If answer is “yes”, Section 304A would have to beexpelled. If answer is no, then the court should see whether theoffence is covered u/s 304A IPC or was it a pure accident.

If it is purely an accident covered under Section 80 IPC, thecourt would have no option but to acquit the doer of the act,howsoever grave the consequences may be. Section 80 IPC dealswith accidents or misfortune and exempts such acts from penalliability, if done by lawful means and with proper care andcaution. The facts of the case would clearly show that there wasno proper care and caution observed by the accused while driving


the said vehicle and therefore Section 80 IPC would come to hisrescue.

There had been a misconception that causing of death by amotor vehicle would simply draw the criminal liability underSection 304A IPC.

In (1976) 1 SCC 889, the Supreme Court of India hasindicated that such offences may fall under Section 304A, Section299 as well as Section 300 of IPC. The observations of theSupreme Court are of great importance to the present case also. Ireproduce the relevant paragraph no.4 of this judgement asunder :

Section 304A carves out aspecific offence where death iscaused by doing a rash ornegligent act and that act doesnot amount to culpablehomicide under Section 299IPC of murder under Section300 IPC. If a person wilfullydrives a motor vehicle into themidst of a crowd and therebycauses death to some persons,it will not be a case of mererash and negligent driving andthe act will amount toculpable homicide. Each casewill, therefore, depend uponthe particular facts establishedagainst the accused.


Ld. Defence Counsel has pointed out the word “wilfully”and submits that it means “intentional”. I disagree with thesubmissions of Ld. Defence Counsel. The word “wilfully” used inthe above said judgement does not have any legal equivalent.Therefore its meaning can range from “wishful” to“intentional”. THE NEW SHORTER OXFORD ENGLISHDICTIONARY may be referred in this regard. If a vehicle is beingdriven “intentionally” to kill someone, the act would amount tomurder even if there is no person at the place of offence exceptthe victim. Therefore the word “wilfully” must mean“wishfully” which would be a equivalent term for“recklessness”. Therefore the inference of the above quoted partof judgement is that if a person with a great degree ofrecklessness drives a motor vehicle into the midst of a crowd, theoffence would fall either under third part of Section 299 IPC orunder Section 300(4) IPC.

I may point out that the illustration given by the SupremeCourt in the above stated judgement is equivalent to anillustration (d) to Section 300 of IPC, which reproduce as under:

“A without any excuse firesa loaded cannon into a crowd ofpersons and kills one of them. Ais guilty of murder, although hemay not have had a premeditateddesign to kill any particularindividual.”

It must be kept in mind that Section 300 of IPC defines“murder” in four ways and there are four correspondingillustrations answering each situation. The illustration (d)quoted above answers the fourth situation in which culpable


homicide would amount to murder. This fourth situation isreproduced as under :

4thly.If the personcommitting the act knows that itis so imminently dangerousthat it must, in all probability,cause death or such bodilyinjury as is likely to cause death,and commits such act withoutany excuse for incurring the riskof causing death or such injury asaforesaid.

A perusal of the above stated portion of the judgementwould make it clear that if a situation so warrants, a recklessdriving may be covered under Section 300(4) IPC (which hasbeen quoted above by me) or it may also fall under third part ofSection 299 IPC which makes an act causing death of a humanbeing punishable if the offender acts with the knowledge thathe was likely by such act to cause death.

Therefore, in nutshell the legal proposition can be summedup like this. The duty of the court is to first rule out a culpablehomicide after considering the quality of knowledge attributedunder Section 300(4) or in third part of Section 299 IPC and ifthe facts and circumstances do not fall in any of those provisions,then the court would consider the question as to whether offenceU/S 304 A IPC is disclosed or not.

Now let me discuss as to what is the scheme of the IndianPenal Code and what are graver offences where the question ofknowledge is involved. While referring the scheme of the court I


am drawing heavily from an article with the titleRECKLESSNESS UNDER THE INDIAN PENAL CODE by StanleyMeng Heong Yeo an Australian author. The article is publishedin Volume 30 of Journal of the Indian Law Institute. (may becited as 293 Journal of the Indian Law Institute [Vol. 30 : 3]. Itis made clear that I would not be referring the article verbatimbut I am placing the copy of the same on judicial record.

The first question to be determined is what kind ofrecklessness is punishable. It is, by now, a well settled legalproposition that a simple reckless act or a simple rash ornegligent act would not constitute a criminal offence, though itmay invite civil liability.

In order to make a reckless act punishable, it must be grossin nature. As soon as a gross reckless act has resulted in death,the further inquiry would be as to whether any kind ofknowledge can be imputed to the doer. The next inquiry shouldbe as to what is the scheme of the Indian Penal Code in the casesinvolving human deaths by a gross reckless act done with aparticular knowledge. I most humbly emphasize that in all thecase law/authorities submitted by the prosecution and thedefence, this issue has not been discussed. Therefore, drawingthe essence from the above mentioned article, I venture to discussthe scheme of Indian Penal Code as under :

KNOWLEDGE OF FIRST DEGREE

This is defined U/S 300 (4) IPC and the knowledgerequired under this Section is that act was imminently dangerousthat death would be caused in all probabilities.


Such act would be punishable U/S 302 IPC. Such type ofoffences are of highest degree of gross recklessness.

KNOWLEDGE OF SECOND DEGREE

Where death is caused by an act which the offenderknows is likely to cause death. This knowledge has beenmentioned in 3rd part of Section 299 IPC and the offence ispunishable U/S 304 II IPC. Such type of offences may be termedas the cases of substantial gross recklessness.

KNOWLEDGE OF THIRD DEGREE

Where the act has dangerous consequences like causingdeath, but the offender hopes that the same would not occur.This offence is covered U/S 304A IPC. Such type of offences arethe cases of lowest degree of gross recklessness and may be calledrash acts.

These degrees refer to the degrees of gravity of recklessnesson the part of the offender and various degrees of knowledge ofthe consequences imputed to the offender.

I would appreciate as to what type of knowledge theaccused Sanjeev Nanda possessed at the time of the offence.Before discussing it I would discuss two more points. First, whatthe scene of crime speaks and what is the implication of driving avehicle when the driver is excessively drunk. Where ever I referthe word “drunk”, it means that the driver has, in his bloodalcohol exceeding 30 mg. Per 100 ml. of blood which is oneingredient of Section 185 of Motor Vehicle Act.


SCENE OF CRIME

As translated in English, the scene of crime has beennarrated by SI Kailash Chand in the rukka as under :

After the receipt the DD, Ialong with Ct. Jagan Lal reachedthe spot i.e. Car Care Center,Petrol Pump, Lodhi Road, wherethree persons namely Ct. RamRaj – DHG, Ct. Rajan Kumar(CRPF) and unknown age about35 years were found and fourpersons were reported to beshifted to hospital by PCR Van.A broken No. of plate was foundlying. After assembling brokenpieces the particulars wererevealed as M312LYP and ParkLane and BMW. At the spot theblack colour piece of bumperand rear wind screen and blackcolour broken piece of the carwere found scattered in theradius of 100/125 ft. Skidmarks of a vehicle were seenon the road. The head ofunknown body was boundcrushed, brain matter wasfound out side the skull. Thebody of Ct. Ram Raj was foundcrushed due to passing of the


vehicle, his right leg wasfound detached and was lyingat distance of 10' – 15'. Theabdomen of Rajan Kumar wasfound burst and the blood isspread on the road forconsiderable distance....... Onthe spot pieces of flesh wasfound scattered in a largearea. These facts wereindicating that death of thesethree persons occurred due toforceful impact of vehicle no. M312, LYP, there were skidmarks upto 30' – 40'........

Investigation Officer SI Kailash Chand prepared a rough siteplan Ex.PW58/B. As per observation of the IO at point A of siteplan was the place where first impact occurred. Blood is lying atpoint A. At point B which is at 38 steps away from point A, bloodis lying and there are blood stains and skid marks. At point C onthe middle divider there are friction marks of the tyre. Point C iseight steps away from point B. At point D one dead body is lyinghaving its right leg amputated. There are blood and friction/dragmarks from point C to D. At point E one dead body is lying nearelectric pole no.12 and blood as well as drag marks are seen. Atpoint F another dead body is lying and point point F is 26 stepsaway from the point E. From the point E to F the drag marks andblood are visible. At point G which five steps away from point F,one amputated leg is lying in front of electric pole no.13. Piecesof bumper and broken pieces of glass were lying scattered.Bumper was black colour.


One oil trail was also observed by the Investigating Officergoing towards Madarsa Safdarjang. In this site plan point B isseen at electric pole no.11.

The description of scene of crime as observed in the rukka iscorroborated by the site plan prepared by the InvestigatingOfficer and the videography done by the police of the scene ofcrime. Since the site plan is made by Investigating Officer on hisown observations, the same is admissible in evidence. The pointswhere blood and dead bodies are lying, skid marks and the oiltrail prove it clearly that the offending vehicle was coming fromthe side of Nizamuddin and after the offence went towards sideof Madarsa Safdarjang. This scene of crime makes it clear thatthe offending vehicle first hit the persons standing on the left side(i.e. at point A) of the road near footpath where some blood isseen lying. Thereafter the vehicle took a right turn and hit thecentral verge. The videography scene of crime (now convertedinto a CD) would show that there are three parallel draggedmarks of blood on the road upto to a certain distance. As per therukka and the site plan, thereafter one body is lying and secondbody is lying after that and third body is lying at a distance. Thisleads to only one conclusion that these persons had beenentangled with the car and thereafter they were dragged by theoffending vehicle and they fell one by one and were also gotcrushed and amputated. I have already discussed that theoffending vehicle was BMW Car driven by accused SanjeevNanda.

Since the part of dead bodies were strewn over a large area,it can be understood that the car was being driven an extremelyhigh speed when it hit the unfortunate persons. The road is a


well lit area as is clear from the site plan where electric polesno.11, 12 and 13 are shown. In fact pole no.11 is at a very shortdistance from point A where the vehicle struck first and it isalmost at that very point where Investigating Officer has shown apoint B. Even PW1 Hari Shanker has admitted that there areelectric poles on the middle pavement of the road and there wassufficient light. It is no one's case that these electric poles werenot illuminated. As per PW15 S. C. Gupta, the Director andIncharge Meterorologial Office, Safdarjung Airport, New Delhi,there was visibility of 1000 meters on 10.1.99 at 5:30 am.Therefore it is clear that no mist and there was lot of visibility atthe spot at the time of offence. Therefore it cannot be said thatat the time of offence that accused could not have seen the fewpersons standing on the road. Those persons after being hit bythe BMW car were got entangled in it and still accused kept ondriving the vehicle for quite a long distance. The accused has notshown any circumstance that he could not see that few of thepersons had come under his car. Therefore I am of the opinionthat the scene of crime itself proves beyond doubt that accusedhad seen that the BMW car being driven by him had dragged thethree persons for a long distance and there is nothing on recordto show that accused was disabled due to any reason such as lackof electricity to know that a few persons are entangled under thebonnet of his car.

TESTIMONY OF MANOJ MALIK (PW2)

He has testified that offending vehicle was a truck. Such atestimony by a victim of the offence himself would lead to onlyone conclusion that he has been won over by the defence.Reaching upto the final arguments, even defence had admittedthat the offence was committed by the BMW car in question.


Despite his being won over, he has supported the prosecutioncase on a few points. I clarify that while perusing his testimony, Iwould use the word “offending vehicle” instead of truck. Thiswitness testifies that on 10.1.99 at about 4:30 am he was goingto railway station along with his friend Gulab to see him off.When they were proceedings on foot and reached near petrolpump, Lodhi Road the three police officials stopped them tocheck their belongings. When these police officials startedchecking the belongings near the patri, a vehicle came at a veryfast speed from Nizamuddin side and hit them. He testified thathis two companions and three police men came underneaththe vehicle. He testified one more fact in his cross examinationby Sh. R. K. Anand Ld. Defence Counsel for accused SanjeevNanda that this offending vehicle had stopped at a littledistance. This is a very important fact which would corroboratethe testimony of court witness Sunil Kulkarni (to be considered inthe later part of this judgement). Suffice it to say that someglimpses of truth have come out even from the mouth of thishostile witness and his testimony fully corroborate the inferencewhich is drawn from the observations of the scene of crime by theInvestigating Officer. His testimony has proved that a fewpersons came underneath the offending vehicle. Scene of crimeclearly shows drag marks and bodies fallen at various points oneafter another. Therefore the testimony of PW2 Manoj Malikcoupled with the scene of crime prove beyond reasonable doubtthat the offending vehicle came from the side of Nizamuddin, hita few persons on the left side Patri, who came under theoffending vehicle and thereafter took a turn and hit the middledivider. From this place which is shown at point B in the siteplan, the offending vehicle started dragging the persons who hadcome under it. These three dead bodies fell one by one after acertain distances.


In such a scenario and in view of the above discussions,it is clear that it is a case of causing death of human beingsby an act of gross recklessness on the part of accused SanjeevNanda.

HOW DO WE MEASURE THE DEGREE OF GROSSRECKLESSNESS WITH A SPECIFIC KNOWLEDGE

Ld. Defence Counsels have referred a long list of judgementsand though it will entail lengthy discussion, however in view ofthe nature of offence all these authorities have to be considered.

In AIR 2005 SC 3180 where the Supreme Court wasdealing with a case of medical negligence. The facts in our caseare not a case of negligence rather the same is case ofrecklessness. There is a great deal of difference between the twolegal terms and therefore this case is not similar to the abovestated judgement of Supreme Court. Otherwise also the SupremeCourt in the said judgement specifically noted in para 35 that“The criminal law has invariably placed the medicalprofessionals on a pedestal different from ordinary mortals.The Indian Penal Code enacted as far back as in.” Moreover,the death in the said case did not occur due to any directnegligence of the medical man rather it was due to the fact thatan oxygen cylinder which was immediately required to save thechild was found to be empty. Therefore the Supreme Courtquashed the criminal proceedings against the doctor.

To my mind, the result of this particular case would havebeen totally different if an unqualified doctor in highlyintoxicated state had performed an operation on a patient. In


such a situation a knowledge as specified under Section 300(4)IPC or third part of Section 299 IPC could be validly imputedupon him considering the attending circumstances.

In (2000) 7 Supreme Court Cases 72 one passenger wasboarding the bus. When the bus moved forward, the passengerfell out of the vehicle and was run over by the rear wheel of thebus. The Supreme Court acquitted the driver of the bus as on thefacts itself it is clearly an accident. These facts are totally notapplicable to this case.

In case (2007) 3 Supreme Court Cases 474 the SupremeCourt was dealing with the case where a driver of lorry drove thevehicle in a extremely high speed and dashed against a tree andcaused death of three persons who were the passengers of thesaid lorry. In this case the prosecution has pressed the chargesunder Section 304A IPC only and the Supreme Court upheld theconviction under Section 304A IPC. Therefore the SupremeCourt was not dealing with a question as to whether it amountedto offence under Section 304 IPC or 304A IPC.

Otherwise also the driver of the lorry was not drunk and noadditional fact or circumstance was on record to presume that thedriver did this act with a certain knowledge. The only evidenceagainst the driver was that he was driving the vehicle at a highspeed.

In (1976) 1 SCC 889, the accused used to drive a truckearlier with the permission of the truck owner. On the date ofincident, the truck had some other driver. When the driver wasaway, the accused drove away the truck with full speed straighton a cot upon which the deceased was resting. Due to this reason


the deceased was thrown away about 10 feet and was got killed.The accused was charged under Section 302 IPC. High Courtconverted the conviction into Section 304 (II) IPC, howeverSupreme Court held that it was simply a case under Section 304AIPC. The relevant facts which were considered by the SupremeCourt were that the truck while being driven was trying toturn towards the Kutcha road near the cot and accused wasunable to control the vehicle in high speed while taking theturn. The Supreme Court also considered that there was nodirect impact of persons with the truck. This fact ruled out theintention. In this case also the driver was not drunk.

In AIR 2007 SC 2376, the Supreme Court was dealing witha case where a boy aged 10 years was run over by a bus driver inthe middle of the road. The investigation by the police revealedthat there was evidence to the effect that even the passengers inthe bus were alarmed of the enormous, speed in which it wasbeing driven and had cautioned the driver to stop even crying, asthey had seen the school children crossing the road in a queue.The investigation also revealed that even the children crossingthe road had raised both hands for stopping the vehicle. Thepassengers and pedestrians were of the view that the bus wasbeing driven at a high speed and that they had cried aloud tostop the bus. It was, in spite of all these, that the bus ran overthe said student on his head and the bus could be stopped only15 to 20 feet ahead of the spot of occurrence. In the light of thesaid evidence, the investigating officer felt that there was realintention on the part of the appellant/driver of the bus to causedeath of persons to whom harm may be caused by reason ofhitting the bus and he was charged with offence punishableunder Section 302 IPC. The court below found that no intentionhad been proved in the case. But, at the same time, the accused


acted with the knowledge that it was likely to cause death. So,the act committed by the appellant was culpable homicide notamounting to murder punishable under Section 304 Part II IPC.Convicting him for the said offence, he was sentenced to undergorigorous imprisonment for five years etc. The High Court ofKerala upheld the conviction. The Supreme Court however heldthat it was only a case under Section 304A IPC. Though theSupreme Court has not given any reason as to why it was not anoffence under Section 304 (Part 2) IPC, but one thing is veryclear from the facts that the driver was not drunk.

In (2000) 1 Supreme Court Cases 662, a truck driver wasconvicted under Section 302 IPC for intentionally dashingagainst a scooterist and thereby killing him. The convictionwas upheld by the High Court of Rajasthan. However theSupreme Court held that prosecution was unable to prove thatthe truck driver had intentionally dashed against the scooterist.Once the ingredient of “intention” had gone, there was nothingon record to show that the offence fell in any other categoryexcept Section 304A IPC. Therefore the facts of the case beforeSupreme Court are not similar to the case in hand. I may pointout that even here the driver was not drunk.

In Kuldeep Singh vs. State of Himachal Pradesh CriminalAppeal No. 1106 of 2008 (arising out of S.L.P. (Crl.) No. 1944of 2008 the Supreme Court had considered a case of allegedly adrunk driver carrying marriage party. Driver lost its control andthe truck went off the road, rolled down in the field leaving manypersons dead and many other injured. The careful perusal of thiscase would show two things, first it is not on record that driverwas drunk beyond permissible limits, in fact it was only anallegation that driver was drunk, second the Supreme Court


while considering the circumstances did not take it in accountthat the driver was drunk. The only circumstance considered bythe Supreme Court was that three witnesses had stated thatthe vehicle was being driven as if it was an aeroplane. Hencepractically the case before Supreme Court was not that of a drunkdriver.

In (2004) 10 SCC 794, the victim was dashed by a vehicleand was killed. On this very fact the driver was convicted underSection 302 IPC by the trial court. The Supreme Court held thatfrom the facts proved neither the intention to kill the victim, northe knowledge that the act is likely to cause death can beinferred. The Supreme Court convicted the driver under Section304A IPC. I am of the opinion that the facts of the present casebefore this court are much a lot more grave showing a certainknowledge, which I am discussing in this judgement.

In (2008) 1 SCC 791, a bus was hit by a train at a railwaycrossing in which several persons were got injured and two died.The accused was charged under Section 302 IPC and underSection 304 IPC. The Supreme Court held that it was only a caseunder Section 304A IPC. From the perusal of the judgement, therelevant facts which weighed are that it was a unmannedcrossing. Secondly the engine of the train hit the rear portion ofthe bus and there was also a great chance that it might be only anerror of judgement on the part of the driver of the bus. It mustbe noted here that the driver was not drunk at that time.

A perusal of all these authorities cited by Ld. DefenceCounsels would show that all these cases were the cases ofsimple rash driving and in none of those cases the driverswere drunk.


The present case, on the other hand, is of a very high degreein the gravity of gross recklessness. The accused was so heavilydrunkard that a knowledge can be validly imputed upon him thatif he drives the vehicle he is likely to cause death of a humanbeing passing on the road. Despite being drunk, accused insteadof carefully and slowly driving the vehicle, threw all theprecautions away and drove the vehicle at excessively high speed.

Ld. Defence Counsels have repeatedly referred to Holloway,J., who defines culpable rashness as under :

“Culpable rashness isacting with the consciousnessthat the mischievous and illegalconsequences may follow butwith the hope that they will not,and often with the belief thatthe actor has taken sufficientprecautions to prevent theirhappening. The imputabilityarises from acting despite theconsciousness (luxuria).Culpable negligence is actingwithout the consciousness thatthe illegal and mischievouseffect will follow, but incircumstances which show thatthe actor has not exercised thecaution incumbent upon him,and that if he had he wouldhave had the consciousness.


The imputability arises from theneglect of the civic duty ofcircumspection.”

This definition of the “culpable rash act” is qualified by theword that the actor believes that he has taken all precautionsto prevent the mischievous and illegal consequences. Thisdefinition has been approved by the Supreme Court in variousjudgements referred above by Ld. Defence Counsels. Ld. DefenceCounsels are also taking the shelter of this definition. Here“culpable rashness” is equivalent to “gross rashness” which isan ingredient of Section 304A IPC. This definition would veryclearly show that an offence under Section 304A IPC would bemade out only when accused had been grossly rash and negligentthough he believes that he had taken sufficient precautions toprevent the consequences and therefore though he knew theconsequences of his act, but, he never hoped for it. As soonas this belief goes, the culpable rashness would become of ahigher degree and if this culpable rashness has resulted indeath, the appropriate provisions other than Section 304AIPC would be applicable. In the present case all the precautionshave been thrown away to the winds by the accused SanjeevNanda. He should not have driven the vehicle while he wasunder such a great intoxication. Even if in view of certaincircumstances he found it necessary to drive the vehicle back tohis home, it was his duty to be extra cautious while driving thevehicle. At least he could have driven it at a very slow speed.Once these precautions have been given go by, it cannot be saidthat he had a belief that he had taken all precautions to preventthe disastrous consequences. Therefore in the present case, thedegree of gross recklessness would go beyond the purview ofSection 304A IPC and would fall somewhere up.


WHAT DIFFERENCE DOES A DRUNK DRIVING MAKE?

While discussing the case law cited by Ld. Defence Counselabove, I have differentiated the judgments of Supreme Court withthe present case on the ground that none of those cases were ofdrunken driving.

I am stressing upon the drunken condition of a person timeand again with a view to ascertain as to what knowledge can beimputed to a drunken person who is driving a vehicle. I advertto Section 185 of Motor Vehicle Act. As per this provision, if adrunken person (where ever the word drunken person appear, itshould be inferred that he has consumed the liquor beyondpermissible limit) attempts to drive a vehicle, he can be punishedto imprisonment up to two years (for the first offence six monthsand the second offence upto two years). What is the purpose ofpunishing a drunk person even at the stage when he has onlyattempted to drive the vehicle and has not actually driven it.The purpose is very clear. The Legislature imputes a specificknowledge to the offender that if he drives the vehicle in adrunken state, the accused would be creating an extremelydangerous situation for the passengers on the road as well as forthe occupants of the motor vehicle and the such driving is likelyto lead to disastrous consequences like death of a human being.

There is another provision in a Motor Vehicle Act whichrequires to be looked into. As per Section 184 Motor Vehicle Acta person who drives a vehicle in dangerous manner is punishableup to two years of imprisonment (for the first offence sixmonths, for the second offence upto two years). This “dangerousdriving” can be equated with “gross rashness”. There are cases


where a person is driving a vehicle in drunken state and alsodriving the vehicle in gross rash/dangerous manner. Such personwould attract punishment U/S 184 Motor Vehicle Act as well asU/S 185 Motor Vehicle Act. The cumulative sentence of Section184 and 185 Motor Vehicle Act would be up to one year in caseof first offence and upto four years in case of repetition.Therefore, in case of repetition of these offences, the cumulativegravity offences U/S 184 and Section 185 of Motor Vehicle Actwould be higher than the punishment provided for the offenceSection 304A IPC where the punishment provided is only up totwo years. Of course there is no enhanced sentence forrepetition of an offence under Section 304A IPC.

A comparative study of these provisions would show that incase of rash driving, causing death of a human being, legislationhas thought it appropriate to punish an offender to animprisonment up to two years. Whereas maximum punishmentprovided under Motor Vehicle Act for rash driving by a drunkendriver may count upto four years even though he has not killedany person. The reasons for it is that a drunken driver ispresumed to have the knowledge that by driving the vehicle insuch state of intoxication he is likely to cause death of the humanbeings. Therefore, to my mind, a conjoined reading of aboveprovisions and the sentencing pattern are enough to concludethat if a drunken person drives a vehicle in highly rash ordangerous manner and thereby kills a human being, the offencegoes beyond the purview of Section 304A IPC and such grossrecklessness would either fall within purview of Section 300(4)IPC which is punishable U/S 302 IPC or within the purview ofthird part of 299 IPC which is punishable U/S 304 II IPC.


Sh. Prem Kumar, adv. for accused Sanjeev Nanda has filed aconsultation paper on Legal Reforms to Combat RoadAccidents pertaining to Law Commission of India. In the endof this paper few questions have been framed for the purpose ofsuggestions/views/comments. I reproduce the same as under :

8.3 Do you agree thatcausing death of any personthrough driving under theinfluence of drink or drugsshould not merely be deemed tohave been committed in a rashor negligent manner, but bemade an offence of culpablehomicide not amounting tomurder punishable underSection 304 IPC?

8.4 Or, do you agree thatthe offence of causing death ofany person through drivingunder the influence of drink ordrugs should continue to be anoffence under Section 304A,IPC, but the minimum term ofimprisonment of two years forthe same be prescribed in thesaid section?

Both the questions are very relevant to the emergingscenario in developing country like India where a driving cultureis yet to take roots. Regarding the first question I would saythat the deaths caused by a drunken driver do fall within thepurview of Section 304 (II) IPC even as per the existing law.


In fact as per the law as stands today, if a drunken driverdrives a motor vehicle with a great speed and rash manner ina crowded street, he might be liable to have committed anoffence under fourth part of Section 300 IPC punishableunder Section 302 IPC and in case a drunken driver drives amotor vehicle and kills a person, his case would fall underSection 304 (II) IPC. It must not be forgotten that a motorvehicle being driven by a drunk driver is virtually a deathmachine on the road.

Therefore to sum up the above discussion, the law imputesthe knowledge upon a drunken driver that by driving the vehiclein such a state of intoxication, he is likely to cause death ofhuman being on the road. This is the reason why the law wouldpunish him even if he attempts to drive the vehicle and thoughhe has not actually driving the said vehicle. If such a drunkenperson actually drives the vehicle and that too in highlydangerous manner or with high degree of recklessness, theknowledge that his act is likely to cause death of human beingson the road, becomes more specific and more pronounced. Ihave pointed out that in all the cases which came before theSupreme Court, drivers were not drunk. On the other hand, theevidence on record makes it very clear that accused SanjeevNanda was excessively drunk and was driving the vehicle at anexcessive speed. In such a situation, it can be safely inferred thatwhen accused Sanjeev Nanda started with his vehicle in highlydrunk state of intoxication beyond permissible limit, he startedwith the knowledge that his act might result in death of somepersons. When he drove the vehicle at extremely high speed anddid not even slow down the vehicle on seeing seven personsstanding on the road, his knowledge that his act is likely to causedeath, becomes more specific and more certain. After hitting the


persons standing on the road, the vehicle took a right turn inwhich few persons who were underneath the bonnet weredragged and hit the right side divider. The scene of crime showsthat there are scratch marks on point B to C on the divider. Thevideography would show that there are three long blood dragmarks on the road. This shows that dead bodies which had comeunderneath the bonnet had been dragged for quite a longdistance. There is nothing on record to presume that accusedSanjeev Nanda never knew that the accused persons had comeunderneath the bonnet of his car. A look on the photographs ofBMW car would show that due to impact of the offence, thewindscreen fragmented. In such a situation, I have no reasonwhy the accused should not stop the vehicle there and then andwhy he should continue with driving. In fact, the driving ofvehicle in a drunk condition at a very highly reckless mannerwhen the windscreen had become fragmented and opaque wouldamount to highest degree of recklessness. Since the chargecontaining the allegations forming the ingredients of Section 300(4) IPC has not been framed, I am not inclined to discusswhether the gravity of recklessness coupled with the knowledgethat his act was imminently dangerous to cause death would notbe discussed by me. But, to my mind, the gravity and theknowledge is almost touching the boundaries of Section 300 (4)IPC. In such a situation, the facts of the case can fall within thepurview of Section 299 (Part III) IPC and it would be unjustifiedto treat the present case under Section 304A IPC.

Therefore the cumulative effect of the above discussion thatscene of crime as observed by the police officials, the site planand the videography coupled with the fact that the driver of theoffending vehicle namely Sanjeev Nanda was highly drunk andthe manner in which the offence was committed, definitely places


the offence on the highest boundary of Section 304 (II) IPC.Once the gravity is so serious, as per the dictum of Hon'bleSupreme Court, Section 304A IPC would have to be ignored.

WHETHER SUNIL KULKARNI IS A RELIABLE WITNESS

Till now, I have discussed the entire evidence available onthe judicial record while excluding the testimony of SunilKulkarni because Ld defence counsels and at one stage, even theprosecution had been assailing his credibility. It is argued by Lddefence counsels that this is a witness who has no permanentaddress. The case of cheating has been registered against him byone Gauri Shanker. In a programme telecast by India TV, GauriShanker told that Sunil Kulkarni was a cheat and was in Mumbaion the date of offence. Ld defence counsels have drawn myattention to the fact that the summons of this witness are ampleproof of his shady character. Ld defence counsels have drawnmy attention to the fact that in the report on the summons, it iswritten that Gaurishanker had given him mobile phone. Lddefence counsels have drawn my attention that in the register ofShivalik Hotel, witness Sunil Kulkarni had given his mobile phonenumber. It is argued that if accident had taken place in hispresence, he could have informed the police through his mobilephone which he did not. It is submitted that the register showsthat this witness left the hotel in the evening of 9.1.99 forNahan. On the other hand , before this court, he testifies that hehad left for Bhopal. It is argued that as per his own testimony,this witness returned from Bhopal on 12.1.99 but he does notstated where he remained for three more days. Ld defencecounsels have drawn my attention that this witness approachedthe police on 15.1.99.


Ld defence counsels have drawn my attention to the factthat the witness had left for Bhopal in the morning and statesthat he reached in Bhopal on the next day morning. It is arguedthat it is impossible and any train takes normally 10 hours toreach Bhopal. It is further argued that till date, this witness wasnever been served upon. Rather he appears before the courthimself. It is further argued by Ld defence counsels that even ifit is presumed that the witness was present at the spot, histestimony cannot be relied upon. It is argued that he was inpolice protection and therefore, he was under the police handsIt is further argued that even if he had seen the accident, he hasnot testified anywhere that accused Sanjeev Nanda was drivingthe vehicle. Rather at one place he testifies that anotheroccupant of the car came out of the driver seat. Ld counsels foraccused argue that such witness should be thrown Lock stockand barrel and his testimony should be discarded entirely, moreso, because he is a chance witness.

It is true that Sunil Kulkarni possesses a very peculiarpersonality. He appears to be a character direct fromnovels of Charles Dickens and has very strange aspects to hispersonality. But the truth is that such people are not uncommon.Such people behave in a very strange manner. Normally suchpersons are very sharp. But at the same time throwing theevidence of such witness at first instance would not be justified.

Such persons may be truthful witnesses to an event. If theyare an eye witness of an offence, there is nothing in law todisbelieve them. However, the courts would be at guard andwould be extra cautious in weighing their evidence. In fact sucha witness has to pass through a close scrutiny by the court . Ifhis testimony is well corroborated, there should be no hitch in


believing them.

The prosecution has proved a register from the ShivaContinental Hotel that accused was present in Delhi on 9.1.08 tilltill 12:30 pm. Therefore his presence in Delhi in the earlymorning of 10.1.99 cannot be improbable. His testimony thathe had started for the railway station to catch a Bhopal train issubstantiated by the fact that he purchased a document fromBhopal on 11.1.99 and the same was verified. In fact theaccused had not disputed that Sunil had purchased a documentfrom Bhopal on 11.1.99. I have seen the programme telecastby India TV. A perusal of that interview would show that theinterviewer is almost putting the words in the mouth ofGaurishanker to say that on the date of offence, Sunil Kulkarniwas in Mumbai. Though Gaurishanker is unambiguous insaying that Sunil Kulkarni was a cheat but he is hesitant to statethat on the day of offence, Sunil Kulkarni was in Mumbai. Theproved fact that on 9.1.99 up to 12.30 am Sunil Kulkarni was inDelhi and on 11.1.99, he was in Bhopal supports his testimonythat in the morning of 10th, corroborates his testimony that inthe early hours of morning, Sunil Kulkarni was very much inDelhi.

Now, this court is to see as to whether he had seen theincident himself. This witness has testified that when he came tothe police, he met SHO Lodhi Colony, police asked him to givehis version in writing. The description of the incident in hisapplication to SHO matches the scene of crime. Though thevalue of this letter is that of statement U/S 161 CrPC but theconduct of a witness in coming to police and giving the detail ofof the incident corroborates the prosecution case that thiswitness had himself seen the incident. It appears that police was


initially doubtful and therefore police produced this witnessbefore Sh Raj Kumar Chauhan, the then Ld MetropolitanMagistrate who recorded the statement of Sunil Kulkarni U/S164 CrPC. The testimony of this witness before this court issubstantially consistent with his previous statements as well as itmatches the description of scene of crime mentioned in the rukkaas well as in the site plan. But as a Judge, I was looking forfurther corroboration so as to determine as to whether thiswitness had actually seen the accident himself. The testimony ofthis witness was read time and again and I have perused histestimony very carefully by comparing the same with the site planand scene of crime as appearing in videography . This witnesshs testified that after hitting the persons, the vehicle struckagainst the middle divider and there this vehicle stopped. It ispertinent to note that PW Manoj Tiwari has also testified that theoffending vehicle had stopped after some distance. Therefore,the testimony of Sunil Kulkarni is corroborated by the testimonyof another witness namely PW2 Manoj Tiwari. This witnessfurther testified that all the occupants of the vehicle came outof the car and inspected the car from front side and the backside. One of the occupants stated accused Sanjeev Nanda torush. It is pertinent to note that this is only witness whotestified before the court for the first time that thereafter thevehicle was driven back and then it sped away. The fact ofreversing the vehicle was not stated to the police by any of thewitnesses. In fact even in his statement under Section 164 CrPC,this witness has not stated the fact of reversing the vehicle. Thefact of reversing the vehicle came to the light for the first time inthe testimony of Sunil Kulkarni and the same was not brought tolight by any witness either during investigation or during thetrial. In the site plan as well as in the rukka, police did not notedown a very particular fact which could have shown that


actually the vehicle had been reversed. The Investigating Officerdue to oversight has not shown the tyre marks caused by theblood which show that vehicle had been reversed. But acareful perusal of the videography would show this evidencevery clear. IN fact during the arguments, Ld defence counselshave pointed out as to how blood stained tyre mark goingobliquely towards the middle divider is seen. The defence triedto take the advantage of this tyre mark as that of some othervehicle which disturbed the scene of crime and threw the deadbodies at a long distances. If we view the videography, there is ablood spread on the road near point B as shown in the site plan.This point is near electric pole no.11 as is clear from the site plan.This electric pole would also been seen in the videography. Atthis point a lot of blood is lying. One bloody tyre mark obliquelygoes upto the pool of blood but it stops there and does not crossthe pool of blood. A careful perusal of this bloody tyre marks inthe videography would show that it is the blood marks caused bya tyre of a vehicle which was reversed and thereafter it wasdriven straight.

This portion of the videopgrahy leads to an inference thatfirst the vehicle hit the middle divider while someone wasentangled underneath the car. The oblique bloody tyre markscould have been received when the vehicle was reversed backand thereafter the three parallel blood are seen when the vehiclesped away. The evidence of Sunil Kulkarni that the vehicle wasreversed and sped away while the dead bodies were lyingunderneath bonnet of the car is well corroborated by this abovestated portion of videography. Till the appearance of SunilKulkarni before this court, none of the witnesses including SunilKulkarni himself had stated that the vehicle had been reversedafter it was inspected by its occupants. Furthermore, the


Investigating Officer remained oblivious to this oblique blood tyremarks and the Investigating Officer did not mention this factabout this particular blood trail anywhere in the investigation.But this witness mentioned this fact very categorically in thecourt and the same stands duly corroborated by the videographyscene of crime. In view of this very specific and wellcorroborated evidence of Sunil Kulkarni I am left in no doubtthat he could not have testified in this manner unless he himselfhad seen the offence. I may point out that in the statenment U/S161 CrPC Manoj Tiwari and Harishanker , there is no mention ofreversing the vehicle. The oblique bloody tyre mark in thevideography has no other explanation except the one which isoffered by Sunil Kulkarni. In fact, Ld defence counsels have triedto take advantage of this blood trail by arguing that some othervehicle had disturbed the scene of crime, which to my mind hasno basis.

I am of the opinion that accident took place at about 4.30am and police reached at about 5 am. The traffic at that timecould not have been much and it should not be expected thateveryone drives vehicle in such rash and negligent manner. Infact, even the witnesses who had been won over by the accusedpersons have not testified that some other vehicle ran over theseor disturbed the scene of crime. Therefore, the witness SunilKulkarni has testified before this court on such a material pointwhich had been ignored by all the witnesses and the InvestigatingOfficers. In fact, even Ld defence counsels were not able tounderstand how this blood tyre mark appears near the middledivider. In these circumstances it stands proved beyondreasonable doubt that Sunil Kulkarni is an eye witness to theoffence. I have already discussed that prosecution has provedbeyond reasonable doubt that accused Sanjeev Nanda was


driving the vehicle . It is neither a case of prosecution nor caseof accused Sanjeev Nanda that the vehicle was being driven atthe time of the offence by Sidharth Gupta or accused ManikKapur or any other occupants. Therefore a stray statement ofSunil Kulkarni wherein he has stated that Sidharth Gupta hadcome out of the driver seat should be ignored. Even if thisstatement is taken to be true, it does not lead to an inference thatSidharth Gupta was driving the vehicle at any stage of theincident. Now this court is to see as to what is testified by witnessSunil Kulkarni in his evidence.

Sunil Kulkarni was summoned by this court under Section311 CrPC. He had been dropped by the prosecution but since hisstatement under Section 164 CrPC was very much on judicial file,and the two eye witnesses namely PW1 Hari Shanker Yadav andPW2 Manoj Malik have turned hostile, I thought it appropriate tosummon Sunil Kulkarni as a court witness. In his evidence hetestified that when he reached near the place of incident, he sawa group of people who were standing a bit in the middle of theroad. From his opposite direction on the road very heavy lightsof a vehicle were seen by him. The lights were so powerful thathe could not see much. The said vehicle was a black car and ithit those people standing on the road. When the car hit thosepeople a few persons flew in the air and remaining fell on theside of the car. The witness heard the sound of application ofbrakes and thereafter he heard another sound caused byhitting by the car. The three persons came out of the said carand they saw the damages on the car. Thereafter all the threepersons sat in the car and the car was taken a bit reverse andthereafter took away the car with speed. This witness wascross examined by Sh. I. U. Khan the then Public Prosecutor forState on 29.5.2007. It appears that for the prosecution, Sunil


Kulkarni was still an unreliable witness. I am leaving out thisportion of the examination at present and directly come to thecross examination of the witness by Sh. Rajeev Mohan the newPublic Prosecutor. The change of public prosecutor wasoccasioned by the relay of a sting operation by The NDTV on30.5.2007 i.e. One day after 29.5.2007 on which the witness wascross examined by Sh. I. U. Khan the then Special PublicProsecutor. In this telecast the Special Public Prosecutor anddefence counsel Sh. R. K. Anand were shown influencing thewitness Sunil Kulkarni. While assessing the testimony of SunilKulkarni it must be kept in mind that he was facing a publicprosecutor who was acting in collusion with the defencecounsel. The recent judgement of High Court of Delhi in WP(CRL.) NO. 796/2007 pronounced on 21.8.2008 is an eyeopener in respect of the conduct of the special publicprosecutor and the defence counsel, both of whom weresenior advocates in the present case. Therefore the witnesswas clearly under great mental pressure at the time ofrecording of his evidence. Hence the contradictions andimprovements on the periphery appearing in his testimonyshould be seen in that light.

The witness was further put to cross examination by Sh.Rajeev Mohan Ld. Special Public Prosecutor and in this crossexamination the witness gave a detailed testimony. He testifiedthat 5 or 6 persons were standing near the tree towards HudcoBuilding. The vehicle which was coming from the side ofNizamuddin hit those 6 persons. The vehicle was at a very veryhigh speed. Due to impact of the accident, 2 or 3 persons fell onthe bonnet and wind screen of the car. Sh. Rajeev Mohan Ld.Special Public Prosecutor spread the scaled site plan in the courtand the witness testified with reference to the said site plan. He


testified that the car had hit the persons at point A i.e. on the footpath on the side of petrol pump. Witness testified that theoffending vehicle travelled from point A to B in the site plan onthe same speed or even at a higher speed. This B point is on theright side of the road if we come from Nizamuddin side. Thewitness further testified that while the offending vehicle wasproceedings from point A to B, 2 or 3 persons were still on thebonnet of the car and in this process 2 or 3 persons fell down androlled down from the bonnet, were dragged and were crushed bythe car upto point B. All this happened within fraction ofseconds. The persons who were hit were crying and shouting.After hitting at point B which a point at middle divider of theroad, the offending vehicle had friction with divider to somedistance and stopped. The witness testified that all the occupantsof the car came out and inspected the car by seeing it from frontside as well from the back side. When these occupants wereseeing the car, some persons were entangled under thebonnet of the car. The witness testified that one occupant told“let us rush” and thereafter first the vehicle was taken inreverse direction and thereafter it was driven away at a highspeed. The witness also stated that due to this accident the windscreen of the car had become opaque and thereafter the drivertook out his neck from driver side window and drove it away.The witness also admitted on a suggestion that when the vehiclewas driven away from point B in the site plan, it dragged thepersons entangled under the vehicle and crushed the same andwent away leaving the parts of the body and these parts of thebody and dead bodies had fallen on the road towards flow of thetraffic and the luggage of all those 6 persons had scattered on theroad. This witness admitted in cross examination by Ld. DefenceCounsels that he had not stated the colour of the car as black inhis statement under Section 161 CrPC and 164 CrPC. He also


admitted that he has stated in his statement under Section 164CrPC that he had seen the incident from the distance of 300 feet.Whereas in testimony before this court he had stated that he wasat the distance of 60 feet. The witness explained that now hecould not say as to whether he saw the incident from 300 feet or60 feet. The witness strongly denied the suggestion that on thedate and time of the offence he was not present at the spot. Hedenied that on the date of offence he was with Gauri ShankerYadav in Mumbai.

This witness has given vivid account as to how the shockingincident took place. Whereas his statement under Section 161CrPC as well as his statement under Section 164 CrPC do notmention that the vehicle was reversed back thereafter it was spedaway and that the offending car was of black colour but histestimony before this court was more detailed than his previousstatement. Non mentioning of colour in his previous statement isof no consequence being not material but question is whether histestimony that the vehicle was reversed is a deliberateimprovement amounting to contradiction or it is a true account ofthe incident. As a matter of experience it is seen that a witnesstestifies about any incident in greater details before the court.The witness is testifying before this court that car was firstreversed and thereafter it was sped away. In cross examinationby Sh. Ramesh Gupta, adv. for accused Sanjeev Nanda, he hastestified that he had seen the tyre marks due to passing oftyres on the blood. The witness also admits that these tyremarks were proceeding straight as well as towards the rightside. This suggestion of Ld. Defence Counsel is in respect ofblood tyre marks/blood trails going seen towards the middledivider on the right side of the road if we proceed fromNizamuddin fly over towards Dyal Singh College. I have already


discussed how the oblique tyre marks could have come. This factthat the vehicle was reversed is in exclusive knowledge of SunilKulkarni and the videography of the scene of crime which showan oblique blood tyre mark as well as three straight bloody dragmarks on the road fully prove the testimony of Sunil Kulkarnithat the vehicle was taken a bit reverse and thereafter sped awaywhile the few persons were still under the bonnet of the car. Thisis how the entangled persons were dragged and had fallen one byone on the road.

Therefore appraisal of the testimony of PW Sunil Kulkarniwould show that he is telling the same story which is beingspoken by the scene of crime.

Therefore not only the testimony of Sunil Kulkarni inrespect of as to how the offence took place is worthy of credencebut the same is also well corroborated by the scene of crime.

WHAT OFFENCE DISCLOSED FROM THE TESTIMONYOF SUNIL KULKARNI

Ld. Defence Counsel have vehemently argued that evenfrom the testimony of Sunil Kulkarni, at the most an offenceunder Section 304A IPC would be disclosed. On the other handLd. APP argues that the travel of the offending car fromNizamuddin area and till hitting the person at point A andthereafter reaching upto point B amounts an offence underSection 304 (Part II) IPC but when the car stopped at point B andthe accused saw the persons entangled beneath the bonnet whowere shouting and crying, still he drove the vehicle at high speed.This witness is enough to prove that accused Sanjeev Nanda hadcaused death by causing such bodily injuries with intention to


cause death and thereby he has committed offence under Section304 (Part I) IPC.

I disagree with the submissions of Ld. APP. It is a wellsettled law the inference as to whether an accused has intentionto commit an offence or he had a knowledge about theconsequences, has to be gathered from the circumstances. Thefollowing definition in Salmond On Jurisprudence isreproduced as under :

“Intention is the purpose ordesigned with which an act isdone. It is the foreknowledgeof the act and desire being thecause of the act, in as much asthey fulfill themselves throughthe operation of the will. An actis intentional if, and in was faras, it exists in fact, the idearealizing itself in the factbecause of the desire by which itis accompanied.”

To put it simply, knowledge of the consequence coupledwith the desire to reach those consequences forms the substratumof intention. In other words, a combined force of knowledgeof as well as desire for a particular consequence would betermed as “intention”. Now this courts is to see as to whetherthe accused Sanjeev Nanda had the requisite intention to committhe offence or not.

For this purpose testimony of Sunil Kulkarni will have to beread again. In the testimony Sunil Kulkarni has testified that


when the vehicle hit the middle divider at point B, the occupantsof the car came out and inspected the damage. I have alreadyheld that the accused Sanjeev Nanda himself was the driver ofthe offending vehicle and even if his wind screen had becomeopaque due to falling of the injured persons, In this process it isnot possible that accused Sanjeev Nanda should not have seenthe persons who are entangled under the bonnet of the car, atleast when the car stopped at point B near electric pole no.11 andwhen he came out and inspected the vehicle from back side aswell as from the front side. The witness has testified that injuredpersons were also crying. This is another reason that accusedSanjeev Nanda must have known that a few persons areentangled under the bonnet of his vehicle. But I would disagreewith Ld. APP that accused Sanjeev Nanda intentionally droveaway the vehicle by causing such bodily injury as is likely tocause death of the persons so entangled. This portion ofSection 304(1) IPC corresponds to second part of section 299IPC. The “intention” is the necessary ingredient of this section.As per the testimony of Sunil Kulkarni, when the occupants of thecar started roaming around the car to check it, one of theoccupants told Sanjeev “let us run” or “Sanz let us go”. It appearsthat these words triggered the response in the mind of accusedSanjeev Nanda to escape away from the spot. Thereafteralthough accused Sanjeev Nanda knew that a few persons wereentangled under the bonnet because he himself had seen themwhile they fell on the bonnet and thereafter came underneath thecar as well as when Sanjeev Nanda inspected the car afterroaming around it, the act of driving away the car was actuallyintended to escape away from the spot. Otherwise also there isno reason why he would desire to kill the persons who werealready injured. Therefore I am of the opinion that from thecircumstances attending the event at that particular time it does


not appear to me that accused Sanjeev Nanda could have desiredto cause death of these persons. In fact, accused Sanjeev Nandamust have been in a state of shock and panic therefore he actedon being actuated by his co accused and sped away his car. Thisparticular testimony of Sunil Kulkarni rules out the intentionrequisite for Section 304(1) IPC. As seen as I have alreadydiscussed that intention has two prominent features. First is theknowledge of the consequence and second, a desire for theconsequence. As soon as the element of desire for theconsequences goes, the mental state of an accused falls short ofintention and the court is left with the only option to attributeknowledge to accused Sanjeev Nanda.

When comes the question of knowledge, the inquiry wouldstart revolving around Section 300(4) IPC, part III of Section 299IPC and Section 304A IPC.

There is no charge of Section 300(4) IPC read with Section302 IPC but still I would like to discuss this a little bit. As perSection 300(4) IPC, culpable homicide is murder if the actorknows that it is so eminently dangerous that it must, in allprobability, cause death or such bodily injury as is likely tocause death.

When some persons are entangled under the bonnet and thevehicle is driven at a very high speed, the act is so imminentlydangerous that it would cause death in all probability. Sincerelevant charge has not been framed, I would only hold thatalthough the offence is almost touching the borders of Section300(4) IPC but has not fully arrived at it. Once that is thesituation, the offence would fall back to Section 299 (part III) IPCpunishable under Section 304 (part II) IPC. As soon as the


gravity of the offence is of such a nature that it is touching theborders of the offence of murder, it would be absolutelyunreasonable to bring the offence within the definition of Section304A IPC. Ld. Defence Counsels as well as Ld. Prosecutor havereferred to a judgement Regina Vs. Maloney [1985] AII E.R.1025 and both the parties have relied upon this Englishjudgement in their favour. After perusing the said judgement, Iam of the opinion that in India these facts would fall underSection 300(4) IPC or third part of Section 299 IPC and in nomanner the same would fall under Section 304A IPC.

My discussions in this regard about the circumstances andevidence on record in earlier part of the evidence as well as thetestimony of accused Sunil Kulkarni cumulatively leads toproving it a case under Section 304 (part II) IPC and I convictaccused Sanjeev Nanda accordingly.

DESTRUCTION OF EVIDENCE

The prosecution alleges that accused Sanjeev Nanda parkedhis vehicle at 50 Golf Link after committing the offence. It isalleged by the prosecution that accused Rajeev Gupta and his twoservants namely accused Shyam Singh and accused Bhola Nathwashed the car and destroyed the material evidence which waspresent on the car in form of blood, flash pieces and finger prints.Ld. Defence Counsel have drawn my attention to the definition ofSection 201 IPC.

Sh. G. P. Thareja, adv. argued that the first ingredient ofthis offence is that the accused should have reasons to knowthat an offence has been committed. It is argued by Ld. DefenceCounsel that there is no evidence to show that accused persons


had knowledge or reason to know that the offence has beencommitted. It is argued that at the most they found a damagevehicle parked in their house upon which flesh pieces and bloodstains were present. A vehicle can be damaged and it can haveblood and flesh pieces due to an accident with animal also. It isargued that presence of stray animal on Delhi roads is notuncommon. Therefore at the most the evidence on record is thataccused had the knowledge of an accident. It is argued by Sh. G.P. Thareja, adv. that committing an accident is no offence. I haveconsidered the submissions of Ld. Defence counsel and I mosthumbly disagree with the submissions of Ld. Defence Counsel.Section 201 starts with word “whoever, knowing or havingreasons to believe that an offence has been committed.........”It means that prosecution need not to prove that it was broughtto the knowledge of an accused by someone that an offence hasbeen committed. The ingredients of the offence would be fullysatisfied if prosecution is able to show that a particular accusedwas having the reasons to believe that an offence has beencommitted. In the present case the vehicle was badly damaged.Blood stains and flash was available on the vehicle. In fact thefinger prints were also available. In such a situation man wouldhave the reasons to believe that some human being might alsohave been killed by the present vehicle, though it may later onturn out that it was simply an accident. It is not the case ofaccused Rajeev Gupta, Bhola Nath and Shyam Singh that accusedSanjeev Nanda and Manik Kapur and Sidharth Gupta, who is theson of Rajeev Gupta had simply stated to them that their vehiclehad hit stray animal. In such a situation I am convinced thataccused persons have reasons to believe that some criminaloffence involving death of human beings had taken place. I maypoint out that Sidharth Gupta is the son of Rajeev Gupta himself.He was the best persons to be brought as defence witness by


accused persons to prove as to what had been stated by SidharthGupta, Sanjeev Nanda and Manik Kapur as to how the vehiclewas damaged and why it is having blood stains and flesh pieces.I may point out that Sidharth Gupta has been arrayed as anaccused, but later on was discharged, but Sunil Kulkarni hastestified that he was one of the occupants of the car.

In AIR 1975, SC 1703, Gajender Singh Vs State of UP, theSupreme Court held that if a witness is available to an accusedand he does not produce him, the same is the strongest possiblecircumstance to discredit the defence version.

I may point out that there has been a special effort todestroy the evidence. Inspector Jagdish Pandey has testified inhis evidence that the backside number plate of BMW car wasmissing . A perusal of videography would also show that on theback side of the BMW car, the number plate was not visible. Thefront side number plate had fallen on the road at the time of thehitting the vehicle with the unfortunate persons. Thevideography would show that the back side no. plate of the caris missing. The space for back side number plate of the back caris such that it does not show any damage. Therefore in fact it isnot possible that it could have been hit and got damaged due toaccident. The fact that non visibility of the number plate is anindicator that effort was made to remove a number plate so thatno one can identify the number of the car. I make it clear thatcharge for removing the number plate has not been framed.Therefore conviction cannot be placed on record for removingthe number plate but these circumstances can be taken inconsideration to assess as to what was the intention of theaccused persons.


It is not in dispute that accused Shyam Singh was achowkidar in 50 Golf Links at that time. Who removed thisnumber plate is in special knowledge of this man. SI JagdishPandey testified that when he reached 50 Golf Link, the waterwas coming out of that house. The videography would showthat the floor/ pathway where the car was parked appears to bewashed. The Finger Proficient who came at about 10 am alsotestified that the car was wet. The accused persons as well asthe defence witness namely DW9 Sudhir Sareen have stated thatthe car was not washed. In view of the presence of positiveevidence ie the testimonies of the witnesses and the wet floorwhere car was parked, the testimonies of the defence witnessesand the statement of accused persons u/s 313 CrPC on this pointstand falsified. This falsity of defence is an additional reason tosupport the prosecution case and it serves not only acorroboration to the prosecution case but also fills up the missingchain of circumstances against all the accused namely RajeevGupta, Shyam Singh and Bholanath. I refer to the judgment ofSupreme Court Swapan Patra v. State of West Bengal, (1999)9 SCC 242, Supreme Court said that in a case of circumstantialevidence when the accused offers an explanation and thatexplanation is found not to be true then the same offers anadditional link in the chain of circumstances to complete thechain. The same principle has been followed and reiterated inState of Maharashtra vs. Suresh, (2001) 1 SCC 471, where ithas been said that a false answer offered by the accused when hisattention was drawn to a circumstance, renders that circumstancecapable of inculpating him. Supreme Court has further held inthis case that in such a situation false answer can also becounted as providing a missing link for completing the chain.The aforesaid principle has been again followed and reiterated inKuldeep Singh and others vs. State of Rajasthan, 2000 (5)


(SC) 161.In Anthony D'Souza vs.State of Karnataka 2003 CRI. L. J.

434, The full Bench of Supreme Court consisting of Hon'ble R. C.Lahoti, Brijesh Kumar and H. K. Sema, JJ. opined in para 15 asunder :

“By now it is well established principle of law that in acase of circumstantial evidence where an accused offers falseanswer in his examination under 313 against the establishedfacts that can be counted as providing a missing link forcompleting the chain”.

I may point out that DW9 Sudhir Sareen examined byRajeev Gupta are very categorical in stating that the car was notwashed. None of these witnesses and none of these accusedpersons have explained as to how the floor on which thevehicle is parked is seen wet in videography. In statement u/s313 CrPC accused Rajeev Gupta has stated that false evidencewas fabricated against them at the instance of senior policeofficials. Similarly accused Shyam Singh and Bhola Nath havetestified that police had involved them due to vested interest.However, no reason has been shown as to why police would doso.

Ld defence counsels have drawn my attention to thecontradictions in the statement of the witnesses. It is arguedthat in their statements u/s 161 CrPC, witness Jagdish Pandey ,Inspector Vimlesh Yadav the SHO Lodhi Colony and SI KailashChand the initial Investigating Officer have nowhere stated thatthey had seen accused Rajeev Gupta, Shyam Singh and BholaNath washing the car. It is argued by Ld defence counsels thatsupplementary statement U/S 161 CrPC of these witnesses wererecorded on 30.3.99 ie after about 3 months from the incident.


Ld defence counsels have referred to the case law of Delhi Highcourt that statement U/S 161 CrPC recorded after a long time isunworthy of credence.

I am of the opinion that a mechanical view cannot be takenthat if a supplementary statement is recorded subsequently, thesame becomes unworthy of credence. In fact the court is not tosee whether statement U/S 161 CrPC is unworthy of credence,rather the court is to consider as to whether the testimony madeby a witness in the court is trustworthy or unworthy of credence.In assessing the testimony of witness in court, the supplementarystatement recorded U/S 161 CrPC of of a witness after a longtime, is only one factor to be taken in consideration. However,the court would not throw away the legally admissible evidenceof truthful witness only on account of this reason. I may pointout that in AIR 1986 Supreme court 990, the supreme Courtdid not discard the statement of main eye witness only on theground that the same was recorded by the police after 56 daysof the incident.

In fact each case has to be judged in the backdrop of itsown peculiar features. I have already stated that this particularcase is one of those cases which highlights the degradation whichhas crept into the criminal justice system. Conduct of theinvestigating agency is also under shadow of doubt. A carefulperusal of the entire investigation and the case diaries as well asthe judicial record, it would become abundantly clear thatalthough initially the police acted with a great responsivenesswhich is expected from a law enforcing agency. But very soon agreat deal of reluctance on the part of the investigating officerstarts appearing in the case. Though from outward, it was ashow of strength and determination but the silent termites had


started eating the wood from in side. The accused persons haveexamined one Karan Gaurav as DW5. In cross examination by LdSpecial Public Prosecutor, he admitted that he was a son of aformer Commissioner of Police. He testified that he hadreached 50 Golf Links at about 8.30 or 9 am. Does it indicate asto why police suddenly developed cold feet and indulged into amost inefficient investigation almost at every step I amrecounting the facts and placing the same on record.

1. On 11.1.99 SI KailashChand moved an applicationbefore a MetropolitanMagistrate. The application isEXPW58/F. In this application,SI Kailash Chand has writtentwo facts. First, accused RajeevGupta, Bhola Nath and ShyamSingh washed the vehicle andsecondly destroyed the evidence ieblood etc. and changed therear number plate of thevehicle BMW so that thevehicle cannot be identified.But this was only an outwardshow that they won't spareanyone but on the other hand theInvestigating Officer SI KailashChand did not record anything tothis effect in the statement underSection 161 CrPC. I point out tothe statement of SHO VimleshYadav that she had stated this


fact to the Investigating Officerbut he did not record it.

2. A notice U/s 133 MotorVehicle Act was given to SonaliNanda who stated as to whowas driving the vehicle at thetime when offence took place .This Kalendra is EXPW60/5issued by SI Ulhas Giri.However, Ms Sonali Nandarefused to accept this notice andeven declined to place service onthe notice. Thereafter on11.1.99 again, the InvestigatingOfficer gave a notice U/S 133Motor Vehicle Act but stillSonali Nanda refused to take thesaid notice. However, no actionwas taken against her. It ispertinent to note that for refusingto cooperate with theinvestigation, she could have beenprosecuted under variousprovisions of Indian Penal Code.However, the Investigating officerdid not proceed in this direction.This is interesting to note thatthe charge sheet was prepared bySHO on 25.3.99 and till then noaction had been taken against


her. On the objection of theprosecution, one Kalendra U/S5/181 and 133/179 MotorVehicle Act which is punishableonly with minor fine wasprepared on 2.4.99. Furthermore, instead of prosecuting thesaid kalendra separately in thecourt of Magistrate, it wasannexed with the main challanwithout referring Sonia Nanda asan accused in the main chargesheet. To my mind, this was anoffence where she should havebeen prosecuted U/S 179 IndianPenal Code which provideimprisonment up to six months ifa person refuses to answer anyquestion to a public servant whois authorized to ask suchquestion.

3. It would be interesting tonote what kind of charge sheethas been filed in the present casewhich is being monitored by thesenior officers of the policedepartment. The charge sheetwhich was prepared on 25.3.99does not even mention as to whatact was done by Bhola Nath,


Shyam Singh and Rajeev Gupta.The charge sheet simply writesthat there is sufficient materialagainst them U/s 201/34 IPC.It is interesting to note that inthe charge sheet there is nomention of missing number plateof the back side of BMW car,although it has been mentionedin the application for policeremand Ex.PW58/F. It has beenspecifically mentioned thataccused Rajeev Gupta, BholaNath and Shyam Singh washedthe vehicle and destroyed theevidence i.e. blood etc. and thechanged the rear number plateof vehicle BMW so that vehiclecannot be identified. But whenthe charge sheet was filed, therewas no mention of changing therear number plate. In evidencealso, only one fact has come onrecord that the rear number platewas missing. I was constrainedto read the case diaries and fromthe case diary dated 10.1.99, itis revealed that in fact one of theaccused had taken out the backside number plate of the car andthereafter refixed it at the proper


slot in such a manner that theback side of the number plate isvisible to a looker and the side onwhich the number is written isconcealed because the said side isnow touching the body of the car.This evidence being a part of casediary cannot be read in evidencebut it does not need greatimagination to understand as towhy this piece of evidence wasnot put forth by the investigationand the prosecution. I maystress here that this type of stateof affair in the police departmenthas become quite commonwherever influential persons arearraigned as an accused. I haveno doubt about it that this is notsimply a negligence but deliberatetactics.

4. This reluctance of the policeofficials further appears evenduring trial. One applicationwas moved during trial by theprosecution to direct the accusedSanjeev Nanda to give his bloodsample. I left this aspect to beinvestigated by the police anddirected them to exercise their


powers U/S 173 (8) CrPC. Inrecent amendment, police havegot the power to use reasonableforce against an accused to takehis blood sample. Police simplysent a notice to accused SanjeevNanda who refused to give theblood sample. At that time theprosecution insisted that courtshould use its own powers anddirect accused Sanjeev Nanda togive the blood sample. I take thisopportunity to explain as to why,despite being empowered todirect, the accused Sanjeev Nandato give blood sample, I did notpass any specific order rather itleft to the police to use its ownpowers. I was just checking theenthusiasm or reluctance of thepolice in investigating the case. Itis a different matter that fearingan adverse inference might notbe made, accused himselffurnished the blood group report.

There were many other points which are of minor naturewhich I am not inclined to discuss for sake of brevity. But afterperusal of the entire judicial file and police file, I am of theconsidered opinion that this is simply not a case of hobnobbingbetween defence counsel and prosecution but also at some stage


in the back ground, the Investigating Officer has been influencedwho being deliberately indulged in such perfunctory investigationthat it causes serious prejudice to the prosecution. In backgroundof these circumstances , the evidence on record has to beassessed. The principle of weighing the evidence on goldenscales cannot be applied here because this trial is an examplewhere the entire criminal justice and entire trial has beenhijacked by the rich and influential accused persons.

Once this scenario is emerging, taking technical view of thefacts and circumstances is bound to lead to miscarriage of justice.However, there appears to be some ray of hope. Although whiledelivering Judgment, the courts normally do not refer to theinternal departmental notings and communication betweenProsecuting Branch and the Investigating Officers. However, Iwould not refrain myself to point out that one additional PublicProsecutor checked the whole challan and raised seriousobjections in the investigation. It appears that he saw throughthe game. I am not reproducing those objections. Suffice it tosay that pinched by these objections, the police had no option butto prepare a Kalendra against Sonali Nanda (though it wasconcealed in the main challan). Police was constrained to recordfurther statement of the police officials who had seen accusedRajeev Gupta , Shyam Singh and Bhola Nath washing the car.Despite this fact that further investigation was conducted by thepolice, no fresh charge sheet was prepared, rather the newstatements were attached with the challan and the charge sheetwas filed in the court. It is common to see that investigations arefaulty. It is also common to see that the investigating Officer isinefficient. It is also frequently seen that the InvestigatingOfficers commit blunders. But all these are forgivable becausethere is no oblique motive. However this was a high profile case


and the record shows that the same was being monitored by thetop police officers. Therefore, such level of inefficiency is notincidental, rather to my mind, the same appears to be deliberate.In such state of affair, the court has only one option ie toabandon the narrow and winding lane of technicalities and travelon the royal road of justice.

Ld defence counsels have place heavy reliance on thewireless messages. It is argued by defence counsels that in thewireless message, it is not stated by inspector Jagdish Pandeythat he had seen the vehicle being washed. It is argued thateven if it is presumed that the vehicle was actually washed, itappears from the wireless messages that the police officialsreached when it had already been washed and therefore it cannotbe said as to whether they actually had seen the accused personswashing the said vehicle. It is argued by Ld defence counselsthat Rajeev Gupta was sleeping up to 9 am and at least he couldnot have washed the vehicle. It is further argued by Ld defencecounsels that it is not possible that Rajeev Gupta is one of therichest persons of Delhi would himself wash the vehicle when hehas two servants.

Before considering these submissions, I reproduce therelevant wireless messages. These wireless messages wereproduced by the prosecution on the application of Ld defencecounsels during trial and I treated these messages to be admitteddocuments. The first message was flashed from 6 am to 6.10am which is reproduced as under :

6.00E1 T27 char aadmi majrub hein jinhe gari medical lekar gai hei, do ki halat gambhir hei, do hosh meinhein


Jo T 27 Sahab ke saath moke ja rahe the to raste seHi diesel girta hua gaya tha, jis per hamne peechha karteHuei 50 no. golf linke per pahunche jo wahan perGaari accidental BMW kale rang thi Ismein park laneKa sticker laga hua tha, jo kothi mein khari miliJiske bare mein darwaja nahin khola chowkidar sePoochhtachh ki gai jiski ittla E1 wa E2 ko Di gai’’

Second relevant message is flashed by T27, InspectorJagdish Pandey at 7.35 am which is reproduced as under: Date 10.1.99 Time 7.35 CRDD no. 1305“ 50 no. Golf Link per T 27 Accidential spot Lodhi hotel se gaari gire huei tel kespot ka peechha karte hue pahuncha jahan ekaccident mein involved gaari taja dhuli hi wa tirpal sedhaki hui paai gai wa kuchh aur garia bhi khari hei’’

Third relevant message is flashed at 7.45 am which is asunder :‘ ‘Is samay S3 wa SHO Lodhi Colony moke perMaiy staff aa gaye jinhe gari ke bare mein avgat Karaya gaya jo gaari accident karke bhag gait hiJis gaari ko pakar kar SHO Lodhi Road ke hawaleKi gai”

These messages have been heavily relied upon by Lddefence counsels. While interpreting these wireless messages,one thing must be kept in mind. The process is that an event isseen by a PCR police official and then orally conveyed on the


wireless. The police control room records the same verbatim intheir official form/register. When an offence takes place, there isflurried activities on part of the police official. There is always apossibility of slip of tongue on part of the person giving message.There is possibility that such person sending the message mayleave out material details. There are all the possibilities that theperson who is recording the message in his diary/register orform may make mistake in writing the message. This situation isamply borne out from the fact that in one message by InspectorJagdish Pandey, it is stated that an eye witness had told him thata red colour contessa had committed the offence. Thismessage was conveyed from the PCR T27 at 5.23am. Thereforeaccuracy of these messages should not be expected. However, Iwould like to read these messages as it is. The first fact to beconsidered is that the first message which was sent from 50 GolfLinks by PCR T27 is at about 6 am. In this message it is statedthat at 50 Golf Links, one accidental BMW car of blackcolour having a sticker of Park lane was found parked butdarwaja was not opened. Inquiry was made from chowkidar.Reading of this DD entry would show that at 6.10 am the carwas not covered with tarpaulin. It also shows that theinformation about the vehicle and the Park Lane sticker wasreceived by the police officials from the chowkidar/ securityguard of that house. The next entry at 7.35 am from T27. Themessage flashed by Inspector Jagdish Pandey. It gives thestatus of the vehicle at 7.35 am. This message only means thatthe vehicle has been washed and has been covered withtarpaulin .

Ld defence counsels have pointed out that SHO has reachedat 7.50 am when the vehicle had already been washed and thathow she could have seen the accused persons washing the


vehicle. Ld defence counsels have pointed out to the messageflashed at 7.50 am in which it is stated that SHO Lodhi Colonyhas reached at the spot. I am of the opinion that Ld defencecounsels are reading this message at 7.50 am out of context. Infact SHO Lodhi Colony had reached the spot before 7.50 am.This fact has been mentioned in the message flashed at 7.45 amin which it is stated that SHO Lodhi Colony has reached the spotwith staff and the vehicle had been placed under her custody.

From the reading of these two DD entries, it would be clearthat at 6.10 am, there was no tarpaulin on BMW car, whereas at7.35 am the car was seen with a tarpaulin. In the messageflashed at 7.35 am by Inspector Jagdish Pandey, it has beenmentioned that the vehicle has been washed. If the vehicle wascovered with tarpaulin at 7.35 am, how Inspector Jagdish Pandeyreached to a conclusion that it has recently been washed ( TajaDhuli Hui) It has only one meaning that inspector JagdishPandey had seen that vehicle was being washed and at 7.35 amhe found that the same has also been covered with a tarpaulin.

In view of these circumstances I am convinced thatInspector Jagdish Pandey as well as SHO Vimlesh Yadav hadseen the vehicle being washed. There is no reason as to whypolice officials would falsely arrest these accused persons. Asper the defence, police had even apprehended Mr Sareen but lethim off. If the police was so biased due to death of a few policeofficials, why it should let go some persons. I am of the opinionthat till apprehension of all the accused persons, the investigationwas going on right track and is fully credible. The blemishstarted appearing in the investigation thereafter due to obviousreasons.


Therefore I am convinced that accused Rajeev Gupta, BholaNath and Shyam Singh had reasons to believe that an offence hasbeen committed. Otherwise there was no reason that the backside number plate of the BMW car should not visible. The bloodand the flesh parts on the body of the vehicle were materialpieces of evidence to prove that human beings have been killed.Otherwise there was no reason as to why this car should havebeen washed by the accused persons. The defence witnessnamely Karan Gaurav, Karan Singh and Sudhir Sareen are notreliable being interested witnesses and due to the reason thattestimony of DW7 Karan Singh and DW9 Sudhir Sareen standsunworthy of credence on account of their false testimony thatthere was no washing of the car. Testimony of DW5 GauravKaran is unworthy of reliance because it is unbelievable thatwhen police has reached at 50 Golf Links, the police officials orthe servants of Rajeev Gupta would let him sleeping in his room.It would be strange that police and servants did not wake him uptill this witness goes up stairs and wakes him up. In thesecircumstances, I am of the opinion that prosecution has provedits case beyond reasonable doubt that accused Rajeev Gupta,Shyam Singh and Bhola Nath were having reason to believe thatoffence has been committed involving BMW car and by washingthe car due to which the blood on the car No. M312LYP wasmade to disappear, though some blood and some flesh stillremained on some parts of the car.

Prosecution has not been able to lead any evidence againstaccused Manik Kapur except his one finger print on the outerbody of BMW car. This finger print does not prove anything.Therefore, I acquit accused Manik Kapur.


In view of this discussions, accused Sanjeev Nanda isconvicted U/S 304 (II) IPC.

Accused Rajeev Gupta, Bhola Nath and Shyam Singh arehereby convicted U/s 201 (II) IPC.

Announced in open court On 2.9.08 VINOD KUMAR ADDL. SESSIONS JUDGE

NEW DELHI


THE COURT OF SH. VINOD KUMARADDITIONAL SESSIONS JUDGE, NEW DELHI

Sessions Case No. 25/99FIR No. 17/99PS Lodhi ColonyState Vs 1. Sanjeev Nanda

S/o Sh. Suresh NandaR/o D108 Defence Colony, New Delhi.

2. Bhola NathS/o Sh. Moti LalR/o 103, Sunder Nagar, New Delhi.

3. Shyam Singh RanaS/o Sh. Nandan Singh RanaR/o 50 Golf Link, New Delhi.

4. Rajeev GuptaS/o Sh. Ved Parkash GuptaR/o 50 Golf Link, New Delhi.

ORDER ON SENTENCE

5.9.2008Present: Sh. Rajiv Mohan, Special Public Prosecutor with

Sh. Naveen Kumar, APP for State.

Convict Sanjeev Nanda from J.C. with counsel Sh. RameshGupta, adv., Prem Kumar adv., Sh. Sandeep Kapur adv., and Sh.Mehul Milind adv.

Convict Rajeev Gupta on bail with counsel Sh. S. S. Gandhi Ld.Senior adv. Along with Sh. Mohit Mathur adv.

Convict Bhola Nath and Shyam Singh on bail with counsel Sh.G. P. Thareja adv., Sh. Sunil Magan adv., and Sh. J. P. Singh adv.


Sh. Rajiv Mohan Ld. Public Prosecutor has prayed for maximumsentence to the convicts on following grounds :

1. The offence is of very serious nature and in the judgement, ithas been opined that the offence almost touches the borders ofSection 300(4) IPC and the such offences are a grave threat tothe public on roads.

2. A leniency view in fatal accident cases has been deprecated bythe Supreme Court and the present case is a case of highergravity than a fatal accident case.

3. That the convict had indulged in winning over the witnessesand have thwarted the course of justice.

On the other hand Sh. Ramesh Gupta, adv. for convict SanjeevNanda has prayed for leniency while sentencing the convicts whichare as follows :

1. The convict was only 19 years of age at the time of offence.2. That this court has observed in the judgement that the convict

had no desire to kill those persons.3. The family of convicts have already paid Rs.10 lacs to the family

of each deceased and Rs.5 lacs to the injured vide order of theHigh Court after a very short period from the offence.

4. That convict Sanjeev Nanda has no previous conviction.5. The jail record of the convict during the custody period had

been exemplary. Ld. Counsel has filed two affidavit of twoNGOs and has submitted that during the custody period theconvict had been actively involved in constructive and creativework and this convict is an asset to the society and furtherdetention in jail would be great loss to the society as well as tothe family of the convict.

6. Sh. Ramesh Gupta, adv. for convict Sanjeev Nanda has raised astrong objection to the submissions of Additional PublicProsecutor that convict is indulged in winning over thewitnesses. It is argued by Ld. Defence Counsel that convict


Sanjeev Nanda had no opportunity during the entire trial toanswer this charge and therefore if any attempt has been madeto win over the witnesses, convict Sanjeev Nanda cannot be heldliable for it.

7. Sh. Ramesh Gupta, adv. has argued that under Section 304 (II)IPC, the court has wide discretion starting from imposition offine only and it may range upto inflicting of sentence upto tenyears. Sh. Ramesh Gupta adv. argues that in view of the totalityof the circumstances the convict may be released onimprisonment which he has already undergone during trialwhich come out to be about nine months.

Sh. Prem Kumar,adv. for convict Sanjeev Nanda has addedfollowing points :

1. That this court has observed in the judgement that the convict isa grand son of a illustrious figure namely Admiral S. M. Nanda,who had rendered invaluable service to this Nation.

2. That he had suffered enough on account of over zealous policewho booked him under Section 304(1) IPC unjustly andthereafter faced persecution by a hostile media.

I have given thoughtful consideration to all the submissions ofLd. Defence Counsels. The determination of sentence is quite adifficult job. The best course to determine the quantum ofpunishment is to see the “precedence” of a similar case. To my mindthe nearest case which has come to the notice of this court is AlisterAnthony Pareira's case decided by Bombay High Court. The saidcase was also a case of drunken driving. In the said case the car hadrun over seven persons sleeping on the footpath and killed them. Inthe said case Pareira was also a young man and he also tried to fleeaway from the spot. The blood of Pareira was found to contain0.112% W/V Ethyl alcohol. In the said case Bombay High Courtawarded a punishment for three years and a fine in the sum of Rs.5lacs. If the present case is compared with Pareira's case, it would be


found that the case of Sanjeev Nanda is much more graver than thesaid case. Convict Sanjeev Nanda was found with presence of Ethylalcohol to the extent of 0.115% in his blood. Whereas the said casewas on lower end of Section 304(II) IPC, whereas in this case, I havewritten that the offence is almost touching the border of Section 300(4) IPC. In Pareira's case people were sleeping on the foot path,whereas in this case people were standing on the road which meansthat the convict was in a position to clearly see them on the road.Pareira's car stopped at the spot, whereas Sanjeev Nanda checked thecar under which the injured were entangled and were crying andthereafter again drove away the said car. Therefore it is prayed byLd. APP that circumstances require the sentence of higher end.

Now I would see as to whether the factors pointed out byconvict Sanjeev Nanda can be taken as mitigating fact. Firstargument is that the convict was only 19 years of age at the time ofoffence. Normally the young age of a convict at the time ofcommission of offence is considered as a factor towards grantingleniency in sentence but in case of Sanjeev Nanda it would not beapplicable. As per statement under Section 313 CrPC dated19.11.2007, convict Sanjeev Nanda has answered to question no.41and no.44 by stating that during those days he used to study inUSA and he had a driving license issued from Boston USA. Thisshows that convict Sanjeev Nanda was already exposed to a Westernculture where drunken driving is taboo and if someone indulges in itthe consequences are very harsh. A person who had got drivinglicense from USA can be considered to be having a higher degree ofknowledge of consequences of drunken driving. Therefore on accountof his young age, no benefit can be given to him.

I do not find any force in the arguments of Ld. Defence Counselsthat convict Sanjeev Nanda was unjustly implicated under Section 304(1) IPC. In fact it is not uncommon that the drivers of the motorvehicles specially with criminal background hit the police officials on


checking duty deliberately and have even killed them. Thereforewhen the police found a few police officers lying dead at the spot, thepolice had just reasons to register a case for intentionally causingdeaths.

The grant of handsome compensation to the families of thevictims after a very short duration from the offence, however leansheavily in favour of convict Sanjeev Nanda. I feel that though thevictims have been compensated but the primarily accountability of theconvict Sanjeev Nanda is towards the society. The question iswhether a man on the road is safe and whether the drunken driverswould keep on committing such offences. This accountability to thesociety can only be suitably answered if a substantial jail term isprovided to him, though it would not be appropriate to award him alighter sentence.

The prosecution has argued that the way the criminal justicesystem has been polluted by the accused, a very deterrent punishmentshould be awarded to the convicts. Sh. Ramesh Gupta, adv. hasargued that in fact the witnesses like Sunil Kulkarni should also bepunished. I am of the opinion that Sunil Kulkarni himself hadapproached the police and stated that he had seen the incident. Herepeated his case under Section 164 CrPC. His testimony has beenheld to be truthful before this court. However it is true he had filedfalse affidavits before Hon'ble High Court at various stages, but thiscourt cannot punish him for perjury which he has committed in othercourts. So far as the hostile witness Manoj Malik is concerned hehimself is a victim of the offence and perhaps he could not withstandthe pressures of influential persons. Therefore I do not intend toinitiate any proceedings under Section 340 CrPC against any of thewitnesses. However at the same time I would agree with thesubmissions of Ld. APP. Till now the courts had been taking intoconsideration only those factors which were attending the offence atthe time of its commission and the antecedents of the convict. But


now a time has come that a new principle of sentencing has to beevolved. Where there is clear proof that the offender had indulged inwinning over the witnesses, a higher quantum of punishment to suchoffender is the need of the day.

Balancing all these factors, I award rigorous imprisonment forfive years to convict Sanjeev Nanda. Benefit under Section 428CrPC is also given to him.

Sh. S. S. Gandhi, Ld. Senior adv. and Sh. Mohit Mathur, adv.have argued that the convict is now quite aged and if he is sent to jail,not only his family would suffer but also his numerous employeeswould have suffer financial losses. It is further argued that theoffence of convict is of minor nature and therefore the convict bereleased on probation of good behaviour or with fine.

I have considered the arguments of Ld. Counsels. Normallytheir plea would have weighed before this court quite heavily but thequestion of back side number plate of the car as mentioned by me inthe judgement makes the intention of the convict very veryconspicuous. In fact it shows a shrewed and a calculative mind.Therefore the washing of blood from the car should be seen inbackground of the above stated fact as well as my observations in thejudgement that this convict had also been able to manipulate theinvestigation. In these circumstances, I am not inclined to take alenient view.

I therefore sentence the convict Rajeev Gupta to rigorousimprisonment for one year and a fine in the sum of Rs.10,000/under Section 201 IPC. In default of payment of fine the convict shallundergo simple imprisonment for one month.

Sh. G. P. Thareja, adv. for convict Shyam Singh and BholaNath argued that both the convicts are the servants of convict Rajeev


Gupta and they did not have the moral courage to stand up againstthe wishes of their employer. Further more none of them was in aposition to influence investigation or to win over the witnesses.

For the afore said reasons mentioned by me while consideringthe quantum of sentence of convict Rajeev Gupta, I am not inclined torelease these convicts on probation of good behaviour. However I amof the opinion that the submissions of Sh. G. P. Thareja, adv. are quiteweighty.

Therefore convict Shyam Singh and Bhola Nath deserve a lesserpunishment. Accordingly I sentence convict Shyam Singh and BholaNath to rigorous imprisonment for six months and a fine in the sumof Rs.100/ each. In default of payment of fine, each convict shallundergo simple imprisonment for seven days.

I take this opportunity to say a few words more. Now when theheat of the trial will cool and dust raised by it settle down, it isnecessary that all the stake holders having stake in the criminal justicesystem fairly take a dispassionate view of the things which havehappened in the present trial and also frequently seen in a normalcriminal trial. On one hand Ld. Public Prosecutor has pointed outtowards the conduct of the police, prosecution and the defence. Onthe other hand Ld. Defence Counsels have vehemently criticizedelectronic media. It must not be forgotten that blame game wouldnot lead us anywhere and it would be a wastage of time and energy.“Blame” is a powerful weapon but “introspection” is the real remedyhaving therapeutic quality. In the entire judgement I have refrainedfrom touching the details of various incidents, which have a bearingto discredit the justice delivery system. Though I am convinced thatinstitutional sabotage of the system has been carried out, still arestrained was observed by this court lest the can of worms is openedagain. Therefore I referred to a particular fact only where it was ofutmost necessity. Better not blame anyone, rather take it as an


opportunity for examining our system. I am reminded of a saying ofKahlil Gibran, who states in his book The Prophet that when astring breaks, the weaver does not blame the string, rather heexamines the entire loom.

All the advocates and senior advocates appearing in this casehave high standing and have contributed a lot in the field of law. But“the best” is yet to come out from them. Their greatest contribution(which I believe would definitely be forthcoming) would be that theyrise to the occasion and examine the entire criminal justice system aswell as all the issues including the issues concerning media. I maypoint out that for us the “rule of law” is an article of faith and not acommodity of convenience. If we do not keep our faith in the loftyprinciple of “rule of law”, our future would be like what is being facedby a few neighbouring countries these days. With these observations Iclose my judgement, while summing up all the sentences again asunder :

1. The convict Sanjeev Nanda is sentenced to rigorousimprisonment for five years with benefit under Section 428CrPC.

2. The convict Rajeev Gupta is sentenced to rigorousimprisonment for one year and a fine in the sum ofRs.10,000/ under Section 201 IPC. In default of payment offine the convict shall undergo simple imprisonment for onemonth.

3. The convicts Shyam Singh and Bhola Nath are sentenced torigorous imprisonment for six months and a fine in the sum ofRs.100/ each. In default of payment of fine, each convict shallundergo simple imprisonment for seven days.

File be consigned to record room.

Announced in the open


court on 5.9.2008.(VINOD KUMAR)

Additional Sessions JudgePatiala House Courts

New Delhi

bmw case judgement

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