Worli BMW hit-and-run case: If it is proved that Mihir Shah, the prime accused in the Mumbai BMW hit-and-run case, was not drunk during the accident, it could have large legal implications and may lead to a lesser prison sentence for him, which could be up to six months, legal experts told LiveMint. Shah denied that he was drunk but admitted that he was behind the wheel at the time of the accident that caused the tragic death of a 45-year-old woman in Mumbai.
"If he claims that he was not drunk at the time of the accident, the primary focus will be on fleeing the scene after the accident," said Alay Rizvi, Partner at Accord Juris, adding that under the new criminal law Bharatiya Nyaya Sanhita (BNS), the charges for hit and run are more severe compared to Indian Penal Code.
Rohit Jain, Managing Partner, Singhania & Co added, "If the person was not drunk at the time of the accident, charges specifically related to drunken driving will not apply, and charges under Section 281 and Section 106(2) of Bharatiya Nyay Sanhita will apply."
Section 281 penalises rash and negligent driving that is likely to endanger human life. However, upon the death of an individual, Section 106(2) of the BNS is attracted as well. It holds the accused responsible for causing death but does not constitute culpable homicide.
Another expert, Kred Jure Managing Partner Ankur Mahindro, said if it is proven that the accused was under the influence of alcohol at the time of the accident, he may not have intended to cause death but certainly had the knowledge that his actions could result in death.
"The absence of alcohol reduces culpability, making it a case of negligence. The accused would then need to explain how the accident occurred without any negligence on his part," he said.
Experts added that if evidence suggests that he was indeed intoxicated, the additional charges of Section 185 of the Motor Vehicle Accident Act will be applicable. Suvigya Awasthy, Partner, PSL Advocates & Solicitors, said the section is used for offences involving driving under the influence of alcohol. Under this, a punitive measure encompassing imprisonment for a term of six months and/or an imposition of a fine amounting to ₹2,000 is imposed.
So, if this is not proved, Shah might have to spend less than six months in jail.
However, some also said that none of the sections under which he is now being tried would be altered if it is proved that he was not drunk as Mihir was not arrested directly from the scene, but a few days after the incident.
"His level of intoxication can be seen and checked only based upon the test which is required to be done soon after the accident, which in the present case is absent as he remained absconded for 2 days since the incident," said Neelam Singh, Advocate, High Court of Allahabad, Lucknow Bench.
Arguing that no medical test for alcohol in the system would have been conducted at the time of accident, Niharika Karanjawala-Misra, Principal Associate, Karanjawala & Co said that the question of whether he had been drinking or not would have to be determined by witness testimony during the course of trial.
"Shah’s lawyers are likely to argue that he was not under the influence of alcohol and that the incident was merely the result of an accident without any negligence or bad faith," she said.
"A breath analyser test is an instantaneous one and must be conducted on the spot. If the accused flees from the scene and there is a significant delay between the accident and the blood test, the allegations of drunk driving may lack merit," added Mahindro.
Mihir Shah is the prime suspect in the BMW hit-and-run case, which claimed the life of one woman in Mumbai. He is the son of Rajesh Shah, a politician. Rajesh was the deputy leader of the Shiv Sena but was sacked from his post after the incident took place.
Mihir allegedly rammed his BMW car into a two-wheeler, claiming the life of the woman who was riding pillion and left her husband injured.
Reports claim that Mihir was drunk during the incident, but he has denied the charge. However, he has agreed that he was behind the wheel when the accident took place.
A Mumbai court has now remanded Mihir to the police custody till July 16.
