Prosecution failed to prove Salman was drunk and driving : HC

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 September 28, 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 May 6.

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 prosection 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 admissibility of Patil's statement whose evidence was recorded by a Magistrate, the Judge said, "When that was done, the case was being tried in a Magistrate's court under section 304 A (causing death by negligence) which attracts a maximum jail term of two years or fine or both, while when it was tried in Sessions court, it was under section 304 Part two IPC (culpable homicide not amounting to murder) which attracts jail term upto 10 years and fine.

"....The applicability of this evidence tendered before Magistrate's court under section 33 of Indian Evidence Act cannot be taken as fullfilled in Sessions Court as the ingredients of the offence are different," observed the Judge.

On Patil's statement, the court said he has improved his statement significantly. "In the FIR on September 28, 2002, hours after the incident, he has not said anything about alcohol but he mentions this on October 1, 2002, in his supplementary statement....Then he also said that he asked (to Salman Khan) whether he would drive the car and also asked him to slow down," he said.

Justice Joshi further said, "...Unnatural on part of conduct of Patil to say so many things that he has not said in the FIR, there has been a material improvement on drunkeness and asking Salman to drive slowly....It is more strange from this witness."

"The name of Ashok Singh has come on record and that he was a driver in the employment of Salim Khan, the father of appellant-accused....Besides, PW-27 (Inspector Kishan Shengal) has said that he had interrogated Ashok Singh and his statement was not recorded," the Judge said.

The Judge drew adverse inference against the police for "withholding actor-singer Kamaal Khan from coming to the witness box."

"Necessary adverse inference needs to be drawn," Justice Joshi said, adding that non-examination of an eye-witness is detrimental to the case of the prosecution unless he is not available or won over," he said.

"The process (of summoning Kamaal) was issued at his old Mumbai address that he gave when his statement under 161 Cr.PC (before a Magistrate) was to be recorded in 2002 - and not the address that he provided to the Magistrate's Court in 2008 - when he sought permission to go abroad.

"(His) corroboration could have been obtained on the issue of driving and drunkenness," the Judge said, adding that his (Kamaal's) examination could have brought to light the issue of fourth person in the car, driver Ashok Singh. "Only an apparant futile attempt was made to bring him," Justice Joshi remarked.