Some of the main reasons why accused don't get convicted in cases involving car accidents are that the courts move slowly, the police often don't do a good job of investigating, it's hard to prove the charges against the accused in court, and eyewitness accounts aren't always accurate.
04 Sep 2023 | 9485 Views | By Shahkar Abidi
One year after the death of Cyrus Mistry in a traffic accident, the case has yet to be heard in court, highlighting the glacial speed of India's judicial system and the daunting challenges of bringing those responsible for traffic accidents to justice.
The incident happened on the afternoon of ...
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One year after the death of Cyrus Mistry in a traffic accident, the case has yet to be heard in court, highlighting the glacial speed of India's judicial system and the daunting challenges of bringing those responsible for traffic accidents to justice.
The incident happened on the afternoon of September 4, 2022, when Mistry, a former chairman of Tata Motors and Tata Group, and his three friends, Jehangir Pandole, Darius Pandole, and Anahita Pandole, were returning from Udvada to Mumbai.
Anahita was reportedly driving the Mercedes-Benz automobile no. MH 47 AB 6705 in her possession, according to the police investigation, survivors of the collision, and eyewitness statements. Anahita's husband, Darius, was sitting next to her. Mistry sat in the back, behind the driver's seat, with Darius's younger brother Jehangir on the seat behind him.
While Mistry and Jehangir were declared dead on arrival by the hospital authorities, Anahita and Darius, too, sustained grave injuries, the police officials said.
According to Palghar police's first information report (FIR), the accused Anahita drove while disobeying traffic laws, speeding recklessly, and making dangerous overtake attempts. Reports also suggest that she was driving on the ‘hard shoulder’ a lane reserved for emergency stopping and overtaking at speed from the left. She also failed to properly buckle herself up and make sure her fellow passengers in the back seat had done the same.
The investigating officers accused Anahita of causing death by negligence under Section 304(A) of the Indian Penal Code (IPC). If proven, the charges can result in up to two years in prison, a fine, or both. She was additionally charged with sections 279 (rash driving), 337 (causing pain), and 338 (causing grave injury), in addition to other applicable provisions of the Motor Vehicle Act.
In addition to the eyewitness accounts, the police also relied on the findings of Mercedes-Benz's technical team, which inspected the vehicle. On examining the event data recorder, also known as EDR data, the experts found that the car was moving at a speed of 100 kmph, just five seconds before the accident, and the vehicle's brakes were applied 3.5 seconds before the accident. The speed of the vehicle at the time of the accident is stated to be 89 kmph.
Furthermore, reports quoting police officials pointed out that there were at least seven instances in which Anahita was found behind the wheel and over speeding, which were captured on speed cameras.
Interestingly, as it happens in India, usually after most high-profile cases, the government, in a knee-jerk reaction, made the wearing of seat belts by rear seat occupants in a car mandatory. A year later, the enforcement is all but forgotten.
While arrest is not mandatory, the case is yet to come to court
Even as the sleuths filed a charge sheet with regard to the case in January 2023 at First Class Judicial Magistrate, Dahanu Court, the case has yet to come on board. Moreover, the accused, after recuperating from her injuries, was never arrested. District superintendent of police Balasaheb Patil told Autocar Professional that arrest is not mandatory if it involves a crime for which the maximum punishment is less than seven years.
YP Singh, an IPS officer-turned-lawyer, simplifies the legalities, saying that under the provision of Section 41 of the Code of Criminal Procedure, if the punishment provided is less than seven years, then instead of arrest, the accused can be issued a notice to appear before the investigating officer if he or she feels that the accused's arrest is not required.
Commenting on the issue of arrests of accused by police, Majeed Memon, an eminent lawyer and former Rajya Sabha MP who also served on the Parliamentary Standing Committee for Law and Justice, pointed out that arrests are highly "misunderstood" by the general public. "Arrest is not part of punishment," Memon noted, before continuing, that the accused can be put in jail only after he or she has been found guilty in a full-fledged trial.
In several cases earlier, the legal experts pointed out that the accused had been arrested in non-compliance with Section 41 of the Code of Criminal Procedure, and the higher courts had come down heavily on state governments and union territories. The courts asked them to sanitise the police officials under the law.
Negligence is often difficult to prove
YP Singh, states that the majority of cases related to fatal accidents are registered under Section 304A of the Indian penal code, and this is a bailable offence. Only in the rarest of the rare cases does the police apply Section 304, which is culpable homicide not amounting to murder gets applied, which is almost impossible to prove in court, which generally reckons such matters as acts of negligence rather than an acts of intentional killing.
A glance at the data published by the National Crime Record Bureau (NCRB), a primary government data collection body, paints a clear picture of the situation. According to the most recent available data, 1,55,622 individuals perished in traffic accidents as of 2021. As many as 1,12,890 people were charged with causing death due to negligence. With 6,89,574 new and old cases of road accident-related negligence still pending in different courts across the country, the pendency rate stands at 94.8%. The conviction rate, on the other hand, hovers just around 36%.
M.N. Singh, a former Mumbai Commissioner who, during his tenure, oversaw the investigation of the actor Salman Khan hit-and-run case in 2002, tries to provide context when speaking with Autocar Professional. He noted that although it is much easier to establish the crime if the case involves technical failures or if it is a case of drunk driving, "it becomes difficult to prove the charges if it is a case of negligence," added Singh.
Even in Khan's case, a session's court earlier convicted him of five years in prison based on technical evidence and the testimony of a key witness—a police bodyguard. However, following the death of the bodyguard, the situation is believed to have legally changed. He was not available to provide his eyewitness account when the trial reached the appeal stage. After the prosecution failed to show proof beyond a reasonable doubt that actor Khan was driving the Toyota Land Cruiser in the September 2002 hit-and-run that claimed one life, the Bombay High Court later absolved him of all charges. According to the court, the prosecution also failed to persuade the court that he was under the influence of alcohol.
According to police officers, there are two primary issues that undermine the investigation into traffic accident cases. The first is the availability of eyewitnesses, especially if the event occurs outside of the city. In such circumstances, the witnesses have little personal incentive to cooperate with police investigations and court processes. Second, protracted case disposal delays further reduce witnesses' interest in the case. Another problem the investigators face is that with the passage of time, the animosity between the accused and the family of the victim gets erased, and they enter into a compromise.
In the case of Alistair Pereira, the Supreme Court found that an individual who engages in irresponsible, reckless behaviour knowing that it may result in unintended repercussions that result in death can be held culpable for the consequences and prosecuted for non-murderous homicide. The court determined that Alistair Pereira's three-year sentence for the incident, which resulted in seven deaths and eight injuries, was insufficient. The court, however, did not consider increasing the prison term because the Maharashtra government chose not to file an appeal. To its credit, the high court took suo motu care of the case after the trial court sentenced him to six months in jail. In November 2006, Pereira, who was more than 21 years old, lost control of his Toyota Corolla near Mumbai's Carter Road area, droving on the construction workers sleeping on the road, allegedly under the influence of alcohol.
Likewise, in its decision on the infamous BMW hit-and-run case of 1999 in Delhi, where accused Sanjeev Nanda mowed down six people with his car, the apex court held that the Delhi High Court erred in converting his conviction to a lesser charge of Section 304A rather than Section 304 II of the IPC, as the trial court had done. Nanda, who served two years in prison, was ordered to serve two years of community service and pay Rs 50 lakh in compensation to the Union government for distribution to the victim's families. His defence of no knowledge or intent to cause death, even if he was drunk, was rejected as childish.
Talking about the high number of road accident cases and poor conviction rate in the country, Memon claims that the police investigations into road death cases are generally done poorly in our country, often leaving a lot of loopholes deliberately for the accused to exploit later, apparently for the consideration of bribes or favours. "Negligence (on the part of the accused) has to be established in a court of law," he emphasised.
Amit Desai, a Mumbai-based senior criminal lawyer who represented Salman Khan in the hit-and-run case, emphasised that the burden on the prosecution is to prove their case ‘beyond reasonable doubt’. "A detailed, meticulous, and thoughtful investigation can achieve the desired result," he told Autocar Professional.
Desai elaborated on the fact that proving negligence in road accident cases is a complex issue, as every act of speeding is not negligence, every act of drinking and driving is not negligence, and every death by vehicle accident is not negligence. It is the recklessness of the act that brings in elements of negligence. But direct evidence of recklessness is rare and difficult, and it is often an inference based on circumstances known as circumstantial evidence.
He emphasised that the sequence of events must be compiled and gathered in order to be proven. That is an investigator's challenge. A good forensic technique and the preservation of the evidence's chain of custody are critical to proving the case. Desai adds that the proposed new code includes forensic vans, which would help improve investigations and increase conviction rates.
To conclude, it's high time India pulled up its road safety records as it drives towards consolidating its position as the third largest automobile market in the world.