Gustad’s guilt

On May 25, 2010, six years to the day after 26-year-old British national Nadia Khan was killed on the tracks at Mahalaxmi station during a shoot in 2004, filmmaker Kaizad Gustad was found guilty of negligence by the Mumbai Central Railway Court and sentenced to one month’s imprisonment. Gustad, who was indicted under section 304-A of the Indian Penal Code, was also fined Rs 75,000.

However, as per media reports Gustad will not actually go to jail. Since the sentence is less than three years he will be out on bail with an opportunity to appeal to a higher court, reported The Indian Express on May 26, 2010. The filmmaker’s lawyer Junaid Shabwany told Daily News and Analysis that "Gustad has already spent 45 days in jail and therefore has undergone the sentence period. We will decide whether or not to appeal after reading the judgment.”

Initially booked and jailed for culpable homicide not amounting to murder, Gustad was granted bail by the Bombay High Court, reported The Times of India (TOI) on May 26. These charges being more serious carried a maximum penalty of 10 years in jail, but Gustad won a major reprieve in January 2009 when a court held that he should be tried on the lesser charge of a "rash and negligent act” (See "Gustad gets reprieve,” Events and Personalities, Parsiana, February 21, 2009). However, the pro­secution’s case was that the filmmaker was culpable in Khan’s death as he was aware that anyone would be in danger of being hit by a train on a running track and permission to shoot was only for tracks not in use on that particular day. Additionally, Gustad had misled the police into believing that Khan had been killed in a road accident.

Khan had come to Bombay to gain experience in filmmaking and was working as an assistant director on the set of Gustad’s Mumbai Central, a project that has since been abandoned. According to a report in Afternoon Despatch and Courier on May 26, Khan died after being run over by a local train while she was speaking on her mobile phone. Though the shoot was scheduled for track number one which was not in use, she was killed on track number four meant for express locomotives. While discharging Gustad the Sessions Court had observed that prima facie there was no evidence to show that he had directed Khan to be present on that particular railway track.

The Mumbai Central Railway Court noted that even though no shooting was on at the time of the tragedy, Gustad should have been more careful. Mumbai Mirror (MM) quoted the court’s observation in its edition of May 26: "(He) could have taken precautions by not allowing Khan to go on track number four... Even if she had taken the liberty to go (there, he) could have taken precautions... Certainly there was grave negligence on his part.”

"There were aggravating features in this case, which justified a higher sentence of imprisonment,” Dr Yug Chau­dhury, lawyer for the Khans informed MM in the same issue. "Moreover, the compensation awarded is very measly and meager, especially given the background, the financial capacity and the earning potential of the accused and the victim,” he added.

On the following day, May 27, MM revealed that Gustad was acquitted of lying to the police on a mere technicality — because the investigating officer did not meet one requirement while completing the formalities. Section 195 of the Criminal Procedural Code states that while registering a complaint of giving false information to the police, the complainant must be a police officer. This was not the case. In fact, Ramdas Mhatre of the Mumbai Central Railway Police, who was the investigating officer, admitted in court that he was not even aware of this requirement. The court noted it could not do anything on account of the glaring procedural lapse.

The judgment also mentions that the actual incident was not witnessed by anyone. "It is significant to note that there is no evidence as to how and in which manner Khan came in contact with the running train. From the testimonies of Arvind Chaudhary and Ridesh Saxena (motorman and guard of the train that knocked her down), it can be gathered that Khan might have subsequently lost her balance and fell on the running train.”