Bollywood actor Salman Khan's lawyer on Thursday told the Bombay High Court that the prosecution had brought the evidence against the superstar in the 2002 hit-and-run case at the fag end of the trial as a last resort after other evidence fell apart.
The HC is hearing an appeal filed by Salman against the five-year sentence awarded to him by a sessions court on May 6 for ramming his car into a shop in suburban Bandra, killing one person and injuring four people who were sleeping outside.
The mishap had occurred on September 28, 2002. Amit Desai, arguing for 49-year-old actor, said "the only way to resurrect the case against Salman was to place the statement of late Ravindra Patil, the former police bodyguard of the actor, recorded by a magistrate."
In the statement on October 1, 2002, Patil had alleged that Salman was driving the car under the influence of liquor although in the FIR three days before that he had not uttered a word about the actor taking drinks, said Desai.
"The prosecution decided to bring in the evidence of Patil - who died in October 2007 - when it saw that witnesses have been discredited during the cross-examination and serious doubts have been raised on the medical report," Desai alleged.
Desai argued that the Criminal Procedure Code lays down that the evidence recorded before a magistrate cannot be treated as an evidence before a sessions court. Yet, Patil's statement was treated as evidence before the sessions court. The prosecution knew that Patil was no more and that he would not be available to defence lawyers for cross-examination but still it decided to rely on his statement, he said. The trial court had erred in allowing the statement of Patil to be used as evidence. Previous statement of a witness, not appearing before court, cannot be taken on record," the lawyer argued.
Citing Supreme Court and Bombay High Court verdicts, Desai also elaborated in detail section 326 of the CrPC, which deals with 'conviction or commitment on evidence partly ecorded by one judge or magistrate and partly by another.' He also referred to section 33 of Indian Evidence Act, which is about 'relevancy of certain evidence for proving, in a subsequent proceeding, the truth of the facts therein stated'.
Arguments would continue on Friday. The high court has granted bail to Salman after admitting his appeal.