In what may tilt the scales in favour of Salman Khan in the 2002 hit-and-run case, the Bombay High Court on Wednesday expressed doubts over the evidence of actor’s former bodyguard Ravindra Patil and said that the prosecution had failed to prove that Salman was either under the influence of alcohol or was at the wheel of his car at the time of mishap.
In couple of other pointers that may prove to be a setback for the State, the High Court observed that “necessary adverse inference needs to be drawn” for the prosecution’s failure to examine Salman’s singer-friend and another key eyewitness Kamaal Khan during the trial and that the trial court was “carried away” by the impression that Ashok Singh, the family driver of Khans, was late in deposing before the court and claiming that it was he was and not the actor who behind the wheels.
Justice AR Joshi of the High Court, who is hearing Salman’s appeal against his conviction and five-year jail term handed to him in May this year, is expected to end the dictation of the verdict on Thursday. He may deliver the verdict either late on Thursday afternoon or on Friday morning.
The prosecution’s case against Salman appeared to be falling apart, as the Judge found fault with several crucial pieces of evidence adduced by the State in the case during the trial.
Classifying witnesses into three categories — “wholly reliable”, “partially reliable” and “wholly unreliable” — as per the cardinal principle” of criminal jurisprudence, Justice Joshi said that the actor’s former bodyguard and key witness-cum-complainant in the case Ravindra Patil, could not be called a “wholly reliable” witness.
“Because of anomalies and discrepancies in his statement, Patil cannot be called wholly reliable as he has improved upon this statement from recording of FIR to his supplementary statement to testimony in Magistrate’s court. As far as he being partially reliable is concerned, it would need for corroboration,” the Judge said.
Justice Joshi said that one of the major gaps in the FIR that was lodged by Patil, was that the complainant had removed the word “Manuel Gonsalves Road’ from the route. However, on the other hand Ashok Singh, Khans’ family driver, described the route as “linking Road, Manuel Gonsalves Road, Hill Road towards St Andrews Road”. “The prosecution has not been able to explain the reasons of removal of word Manuel Gonsalves Road from the FIR,” the Judge said.
The Judge also pointed out that since Patil had deposed that the was being driven at a speed of 90 to 100 km per hour, it would have seven to eight minutes the distance from JW Marriott to the accident spot - a distance of seven km. “The witness (Patil) has said that they left JW Marriott at 2.15 am and reached the mishap site at 2.45 am. But, he has not been able to explain the gap in time”.
The Judge felt that the prosecution should have examined as a witness, actor-singer Kamaal Khan, who was also present inside the car at the time of mishap. Alluding to the deposition by Khans’ family driver Ashok Singh, the Judge said that the statement was recorded as per rules and laid down procedures of criminal law.
Referring to citations of the Bombay HC and the Supreme Court on the Alister Pereira case and the applicability of Section 304, Part II, the Judge 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-accused (Salman) was driving and driving under influence of alcohol, also, whether the accident occurred due to bursting (of tyre) prior to the incident or tyre burst after the incident”.
The Prosecution’s case has been that an inebriated Salman had on intervening the night of September 27-28, 2002, rammed his Toyota land Cruiser lexus into the American Express Bakery and laundry at Bandra (west) killing one Nurullah Mehboob Sharif and injuring four others.
Dwelling on the applicability and admissibility of Patil’s statement, Justice Joshi said: “When Patil’s statement was recorded, the case was being tried before Metropolitan 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 in Sessions court, it was under section 304, Part II (culpable homicide not amounting to murder), which attracts a jail term of maximum of 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 fulfilled in Sessions Court as the ingredients of the offence are different”.
Observing that Patil had “improved upon” his statement significantly, the judge said: “In the FIR on September 28, 2012, hours after incident, he has not said anything about alcohol, but he mentions this on October 1, in his supplementary statement....then he also said that he asked the actor whether he would drive the car and also asked him to slow down,” he said.
“Unnatural on part of conduct of Patil to say so many things that he has not, in the FIR, there has been a material improvement on drunkenness and asking 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 questioned Ashok Singh and his statement was not recorded”.
Taking serious cognizance of the Prosecution’s failure to examine the actor’s singer-friend Kamaal Khan, the Judge said: “Necessary adverse inference needs to be drawn”. He elaborated saying that non-examination of an eye-witness was detrimental to the case of the Prosecution “unless he is not available or won over”.
The Judge noted that the process was issued at Kamaal Khan’s old Mumbai address that he gave when his statement under 161 CrPC was 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 ( Kamaal Khan’s) corroboration could have been obtained on the issue of driving and drunkenness... His examination could have brought to light the issue of fourth person in the car, driver Ashok Singh,” Justice Joshi said, adding that only “an apparent futile attempt” was made to bring Kamaal Khan to the court.
Holding that the trial court was “carried away” by the impression that Ashok Singh, the family driver of Salman Khan had been late in deposing and claiming that he was at the wheels of the car at the time of mishap, the Judge said: “A wrong impression was created, that too by learned prosecutor (Pradeep Gharat) in the Sessions Court that he was coming after 13 years and this was also highlighted by agencies and media coming to the conclusion that this is belated defence”.
Justice Joshi said that the trial court too was carried away with this impression. “Factual criminal procedure has to be honoured and followed...the defence witnesses are depose once the prosecution witnesses are examined and the statement of accused is recorded. In Magistrate’s court, only 17 PWs could be examined and it was committed to the Sessions Court, where 27 PWs were examined. Only after this, he was examined,” the Judge said.