Social activist Santosh Daundkar on Friday urged the city sessions court to hold de novo (afresh) re-trial in the hit-and-run-case, so as to record the statement of Salman Khan’s singer-friend and eyewitness in the case Kamaal Khan, who was travelling with the actor in the latter’s car on the night of the much-discussed mishap.
In her final arguments on a perjury plea filed by her social activist-client Santosh Daundkar seeking action against the police for their failure to examine Kamaal Khan as an eyewitness in the case, lawyer Abha Singh urged the trial court that “to meet the ends of justice the most material witness of this case be summoned under the provisions of Section 311 of the Code of Criminal Procedure, 1973, and the trial of this case be conducted de novo from the point of recording such a statement of Kamaal Khan”.
A day after the trial court heard her perjury plea and asked her submit her final arguments in writing so that it could pass an order on the plea before delivering the verdict in the hit-and-run case on May 6, Singh also urged the court to conduct a detailed enquiry under Section 340 of the Cr PC, to identify the specific persons who have been instrumental in tendering false evidence and misleading the sessions court and also the metropolitan magistrate’s court vis-a-vis the evidence of Kamaal Khan in the case.
Singh told the trial court that Kamaal Khan was crucial and a star witness and had given his statement to the Bandra police station on October 4, 2002 that Salman Khan was driving the car and on the actor's left was police constable Ravindra Patil, the bodyguard attached to the actor and he was sitting on the rear seat.
The Prosecution’s version is that at the time of mishap that took place on the intervening night of September 27-28, 2002, there were three persons in the car — Salman himself, who was driving, Kamaal Khan, who was sitting in the rear seat and police constable Ravindra Patil, the bodyguard attached to the actor, who was sitting on the left seat at the front.
However, the defence lawyer’s version is there were four persons in the car. While Salman was sitting on the front left seat, Patil and Kamaal Khan occupied the left and right seats at the rear, respectively and it was the actor’s driver Ashok Singh, who was behind the wheels. The presence or otherwise of the actor’s driver Ashok Singh makes a crucial difference in the case in view of Salman’s claim that it was not he but Ashok Singh who was behind the wheels at the time of mishap and the explanation of corroboration of the actor’s version given by the latter (Ashok Singh).
Kamaal Khan’s evidence in the case is crucial in the context of the Prosecution’s case against Salman tha it was he --- allegedly in a drunken state --- had on the intervening night of September 27-28, 2002, rammed his Toyota land Cruiser lexus into the American Express Bakery and laundry at Bandra (west) in north-west Mumbai, killing one person and injuring four others.
Alluding to the Prosecution’s failure to examine eyewitness Kamaal Khan in the case, Singh said that as the actor’s police bodyguard Ravindra Patil passed during the course of trial, the only eyewitness left in this case was Kamaal and he should have been called to give evidence on who was driving the car. (Patil, it may be recalled, had died of acute bilateral tuberculosis, at a city civic TB hospital on October 3, 2007).
Citing a Supreme Court judgement in the Rohtash Kumar verses State of Haryana, which has held that a star witness cannot be dropped, Singh said: "A judge can call a wtness at any stage of the trial, if he (witness) is crucial". "You (prosecution) are deliberately not calling the star witness....that he is in England cannot be the reason. Under section 275 of Cr.Pc, a witness can be asked to depose via audio or video conference. Thus, witness Kamaal should be examined in the interest of Justice", she stated in her final written arguments.
Given that the actor had made a submission before the court under section 313 of Cr.Pc, that it was not he but his driver Ashok Singh who was behind the wheels at the time of mishap, Abha Singh said it was therefore necessary for Kamaal Khan to depose before the court so as to “determine truth” in the case. Along with her final arguments, Singh also submitted to the court the statement made by Kamaal Khan to the police along with her written submissions in the perjury application filed by her client.
In another prayer, Singh urged the trial court that the Prosecution be asked to give specific explanation for dropping each of the 37 witnesses out of the cited 64 witnesses. “In case, any explanation is found to be unsatisfactory and which may determine the trial of this case, then such a witness may be summoned and examined under section 311 of Cr. PC and also that adverse observations be made against the specific delinquent officers”.
Singh said that since the trial court had fixed May 6 as the date for delivering the judgement in the hit-and-run case involving Salman, it would be expedient in the interest of justice “to record the statement of star witness Kamaal Khan and other witnesses whose names have been dropped from the list of witnesses” by the Prosecution. ‘
"Hence the date of judgement of this case can be announced after depositions are effected, further due procedures have been embarked upon”, and after the explanation of the delinquent of police officers was sought, Singh told the court.