Prosecution failed to prove Salman was drunk and driving: HC

Dictating its verdict in the 2002 hit-and-run case involving Bollywood actor Salman Khan, the Bombay high court on Wednesday 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 Salman's appeal, which continued for the third day, is likely to end on Thursday when the fate of the 49-year-old actor would be decided.

Justice A R Joshi, who heard Salman's appeal against the five-year sentence awarded to him by a sessions court, also expressed doubts over the statement of eyewitness Ravindra Patil, former police bodyguard 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 the magistrate.

In the First Information Report 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 the judgement on the third day in a row on an appeal filed by Salman against the five-year sentence awarded to him.

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) was driving and was under the influence of alcohol, also, whether the accident occurred due to bursting (of tyre) prior to the incident or the 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 Indian Penal Code Section 304, Part II (culpable homicide not amounting to murder) under which Salman was convicted.

On admissibility of Patil's statement, 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 the magistrate’s court under Section 33 of Indian Evidence Act cannot be taken as fulfilled in sessions court as the ingredients of the offence are different."

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 eyewitness is detrimental to the case of the prosecution unless he is not available or won over.