Mumbai: Adding a twist to his appeal proceedings before the Bombay High Court, Bollywood actor Salman Khan, sentenced to five-year jail term in the 2002 hit-and-run case, today sought examination of his friend and singer Kamaal Khan as a witness by the prosecution.
Justice A R Joshi asked the prosecution to file by tomorrow a reply, rejecting or accepting the application filed by Salman's lawyer Amit Desai.
"Why the prosecution had not examined this witness in the trial court?... Kamaal Khan is the best eyewitness available to the prosecution as he was present in Salman's car on September 28, 2002, when it rammed into a shop in Bandra killing one person and injuring four others," said Desai.
Kamaal can throw light on who was driving the car, the lawyer added. Salman's defence has been saying that it was his driver Ashok Singh who was behind the wheel.
Other eyewitness, Salman's police bodyguard Ravindra Patil, died during the trial in 2007. The prosecution relied on his statement before the magistrate implicated Salman, but as the defence couldn't cross-examine him, it caused prejudice to the actor, advocate Desai said.
The prosecution also didn't examine Ashok Singh, though he had gone to the police station (after the accident) to give his statement, he said.
The trial judge had rejected Singh's testimony (as a defence witness), observing that he might be trying to save his master by taking the blame on himself.
Desai contended that the prosecution told the trial court that Kamaal was abroad and not available for testifying, but it made no efforts to bring the singer to the court, and it should explain this.
The trial court on May 6 held Salman guilty of 'culpable homicide not amounting to murder', upholding the police's case that he was drunk and was driving the car when the accident took place in suburban Bandra.
Under section 391 of Criminal Procedure Code, the high court can summon a witness while hearing an appeal "if it thinks additional evidence to be necessary".
The testimony can be recorded either by a magistrate or the sessions court, said Salman's lawyer.
Justice Joshi then asked the prosecutor to submit a reply tomorrow. During the arguments, Desai also said that the charge of culpable homicide not amounting to murder under section 304 part II of IPC, which carries a maximum sentence of 10 years, was not made out because there was no evidence to prove that Salman was drunk and driving.
At best he can be tried under section 304 A (causing death by negligence) which carries a maximum punishment of two years, he said.
Desai cited two other famous hit-and-run cases, namely Alistair Pereira case in Mumbai and Sanjiv Nanda case in Delhi, to show that the circumstances there were different to justify the culpable homicide charge.
Pereira was clearly drinking as liquor bottles were found in his car. In Nanda's case, the accused had run away after the mishap but Salman had not done so, he said.
In Prabhakaran versus the State of Kerala case, where a bus drive mowed down a school student, the Supreme Court held the act to be only a reckless driving and reduced his sentence to two years from five years, said Desai. The arguments would continue tomorrow.