MUMBAI -- Dictating its verdict in the 2002 hit-and-run case involving Bollywood star Salman Khan, the Bombay High Court today observed that prosecution had failed to prove that the actor had consumed liquor and was driving the Toyota Land Cruiser when the mishap occurred.
The dictation of the verdict on Khan's appeal, which continued for the third day, is likely to end tomorrow when the fate of the 49-year-old actor would be decided.
Justice A R Joshi, who heard Khan's appeal against the five-year sentence awarded to him by a sessions court, also expressed doubts over the statement of eye witness Ravindra Patil, former police bodyguard of of the actor, recorded by a Magistrate, in which he had implicated the actor.
The Judge said that he (Patil) was a wholly unreliable witness because he had made improvements subsequently in his statement given to a Magistrate. In the FIR filed soon after the mishap, he did not implicate Salman but in the statement he said that Salman was driving under the influence of liquor.
The Judge also expressed a view that the prosecution should have examined Kamaal Khan, singer friend of Salman, who was with him in the car when the mishap occurred on 28 September, 2002.
The court was delivering judgement on the third day in a row on an appeal filed by Salman against the five-year sentence awarded to him by a Mumbai Sessions Court on 6 May.
The Judge said that he (Patil) was a wholly unreliable witness because he had made improvements subsequently in his statement given to a Magistrate.
As far as the deposition of Ashok Singh, the family driver of Salim Khan, is concerned, it was as per rules and laid down procedures of criminal law, the court said.
"....this court has come to the conclusion that the prosecution has failed to bring material on record to establish beyond reasonable doubt that the appellant (Salman Khan) was driving and was under the influence of alcohol, also, whether the accident occurred due to bursting (of tyre) prior to the incident or tyre burst after the incident...," Justice Joshi remarked.
The court made these observations while dwelling upon citations of the Bombay High Court and the Supreme Court in a similar case pertaining to Alister Pereira and the applicability of section 304, Part II (culpable homicide not amounting to murder) under which Salman was convicted.
On 28 September, 2002, the actor's car had rammed into a shop in suburban Bandra. In the mishap, one person was killed and four others injured.
Salman, who is on bail, did not come to the court, though his sister, Alvira Khan-Agnihotri, attended the hearing
The sessions court, while convicting Salman, had not accepted the version of the actor's family driver Ashok Singh that he was driving the car and not Salman. The trial court had noted that Singh had come to the court 13 years after the incident.
Singh had also said that the mishap occurred because a tyre burst, but the sessions court did not accept this theory.
"[T]his court has come to the conclusion that the prosecution has failed to bring material on record to establish beyond reasonable doubt that the appellant (Salman Khan) was driving and was under the influence of alcohol."
However, the High Court today remarked that the Mumbai sessions court was "carried away" by the impression that Ashok Singh had been late in deposing and claiming that he was at the wheel of the Toyota Land Cruiser Lexus.
"A wrong impression was created, that too by learned prosecutor (Pradeep Gharat) in the sessions court that he (Ashok Singh) was coming after 13 years and this was also highlighted by agencies and media coming to the conclusion that this is a belated defence," Justice A R Joshi said.
It seems that the sessions court was carried away with this impression. "Factual criminal procedure has to be honoured and followed," the judge said, adding that the defence witnesses depose at the fag end after prosecution witnesses (PWs) are examined and the statement of accused is recorded.
"In the magistrate's court, only 17 PWs could be examined after which it was committed to the sessions court, where 27 PWs were examined. Only after this, he (Ashok Singh) was examined as a defence witness," the HC said.
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