Prologue:
At the outset, I wish to declare
that I am not Salman Khan fan, nor does I support him for his acts of drink
& drive and / or rash and negligence act.
I also wish to clarify that I am
not criminal law expert nor have I studied Salman's conviction verdict or his
bail order.
But since past 2-3 days, so much
of noise over this case happened, for obvious reasons, I was quite curious (as
a legal professional and even otherwise) whether the punishment inflicted upon
Salman under Section 304 of Indian Penal Code (IPC) for 'Culpable Homicide not
amounting to Murder' is correct or not. My curiosity led to quest to find the
answer and my quest led to putting down my thoughts and little study here.
I would appreciate if some
experts could share their thoughts about whole case from legal perspective, but
I would request people who are only looking at this whole issue from layman's
perspective to abstain from writing here (reason being, a layman is driven by
status of Salman as celebrity, and they want to see celebrities and such other
bigwigs behind bars as typically so far they are and were spared from the
course of law; death of poor victims in this case, which creates sympathy in
our mind 'being human'. But that has been discussed enough already, so it is
important that we now try to learn what is legal position on this.
Of course, I trust that Hon'ble
Sessions Court, who passed the sentence against Salman is learned and must have
considered all the legal angles, but nonetheless it is not uncommon that Courts
also make error in passing judgements; and only therefore we have higher courts
to correct such inadvertent errors.
This was rather a bit longer
prologue, and was required only to make this as focused discussion.
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IPC Provisions:
Section 299 of IPC -
Who ever causes death by doing an
act with the intention of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a
pit, with the intention of there by causing death, or with the knowledge that
death is likely to be thereby caused. Z believing the ground to be firm, treads
on it, falls in and is killed. A has committed the offence of culpable
homicide.
(b) A knows Z to be behind a
bush. B does not know it A, intending to cause, or knowing it to be likely to
cause Z's death, induces B fires and kills Z. Here B may be guilty of no
offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with
intent to kill and steal it, kills B who is behind a bush; A not knowing that
he was there. Here, although A was doing an unlawful act, he was not guilty of
culpable homicide, as he did not intend to kill B, or to cause death by doing
an act that he knew was likely to cause death.
...........................................................................................
Ingredients of causing
Culpable Homicide:
According to me, following are
two very important and absolutely necessary ingredients of culpable homicide.
(Please note, punishment inflicted upon Salman is under Section 304 of IPC,
which sets out the punishment for culpable homicide not amounting to murder
i.e. this Section 299 of IPC) –
1. causing death – Salman did
this
2. doing an act – Salman did this
as he was driving the car
3a. with the intention (of
causing such bodily injury as is likely to cause death) – doubtlessly Salman
did not have any such intention, so this ingredient fails
3b. with the knowledge (that he
is likely by such act to cause death) – arguably, Salman could not have
knowledge that there could be people sleeping on footpath; therefore this
ingredient also fails (unless detailed facts are different and somewhat like
shown in movie Jolly LLB, where the offender injures victim in an event of
accident similar to Salman’s case, but when finds that victim is only injured,
and not dead, reverses the car to roll over victim’s body ensuring that victim
is dead; thus having full knowledge that his such act would cause death)
...........................................................................................
Above analysis, according to me,
clearly goes on to show that Salman could not have been convicted for culpable
homicide under Section 299, and punished for the same under Section 304.
My view is further substantiated
and fortified by the Illustration No.(c) given in the Code itself, which
clearly enunciates that unless there is intention or knowledge of likelihood of
death, the offence of culpable homicide is not committed. In the given case of
Salman Khan, I suspect if at all any such offence ever happened due to lack of
the main ingredients of the offence.
I would be quite happy to be
corrected and enlightened in case my knowledge, understanding or interpretation
is incorrect.
Which Section Salman should have
been tried under:
Section 304-A
Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
...........................................................................................
It is evident that Section 304-A
is applicable in the cases of ‘rash and negligent acts’, and there is no need
to prove any ‘intention (much less mens rea i.e. criminal intention) or
knowledge of death’. Thus, ‘rash and negligent act’ becomes the sole ingredient
of this section, and I believe it is much easier to prove rash and negligent
act, than intention or knowledge; because intention and knowledge reside within
our mind, and those can only be proved by overt conduct of a person. Whereas
rash and negligent act does not foresee or require intention or knowledge, and
mere conduct is the evidence to prove this.
In the given case of Salman Khan,
it is beyond doubt proven that he was rash and negligent, and therefore offence
under this Section is 304-A is proven and he still deserves imprisonment
(though for much small term i.e. 2 years as against 304 which can be
imprisonment for life.
Section 304-A was introduced by
way of an amendment (as per my reading way back in 1870 i.e. about 10 years
after enactment of IC). This goes on to show that about 145 years ago similar
incidences may have occurred and it could have been seen that people who are
causing death unintentionally or unknowingly are escaping any punishment under
law i.e. IPC, and therefore need to amend IPC and add Section 304-A must have
arose. If my guess is true, the very intention of adding this new section after
original enactment was to address cases similar to Salman’s case.
Thus, the point is proven that
even though Salman may not have committed offence under Section 304 of IPC of
culpable homicide, he cannot escape from the hands of law, as Section 304-A
would clearly make him guilty. But surprisingly, he was not even charged (and
therefore not tried) for Section 304-A at all. It would be interesting to know
why he could not be tried under both the Sections 299 as well as Section 304-A.
Some believe that Section 299 and
Section 304-A are contrary to each other. I fail to understand how it is so. I
believe, under criminal law, Prosecution is very well entitled to take
alternative stands i.e. charge an Accused for alternative offences and attempt
to prove either of them.
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Epilogue:
I strongly believe that there is
an error in punishing Salman under Section 304, but he should have been
charged; tried and punished under Section 304-A (amongst other provisions of
law for rash and negligent driving, drink and drive, causing injuries etc., for
which he was tried and is punished).
Law and Justice have to be given
cautiously within the framework of law, but perhaps Judges are also not immune
from public sentiments at times, perhaps they also ‘being human’ first. I
respectfully believe that somewhere this sentence under Section 304 is
erroneous.
I also believe that granting bail
to Salman would have been much easier, perhaps on these grounds.
I am sure there are many more
legal facets to this case, and I would be happy to be enlightened more about
this subject and happy to be proven wrong.
I must sincerely thank you who
could patiently reach to end of this narrative.
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Sarang Bhanage (9th May, 2015)
