Bollywood superstar Salman Khan's lawyer on Friday argued in the Bombay High Court that the prosecution did not examine star witnesses singer Kamaal Khan and the actor's brother Sohail, who could have thrown light on the crucial aspects of the 2002 hit-and-run case.

Salman Khan
Salman Khan

The HC is hearing an appeal filed by Salman against the five-year sentence awarded to him on May 6 this year by a sessions court for ramming his car into a bakery in suburban Bandra killing one person and injuring four others who were sleeping outside. The mishap had occurred on September 28, 2002.

Instead of deciding to place in the court the evidence of police constable Ravindra Patil, who died in 2007, the prosecution should have examined singer Kamaal Khan and Salman's brother and actor Sohail Khan, the defence lawyer Amit Desai argued before Justice A R Joshi.

"There were two eye-witnesses- Kamaal Khan and Sohail Khan. They should have been examined before applying section 33 of Indian Evidence Act and considering the statement of Ravindra Patil that he gave before a magistrate in Bandra earlier" said Desai who represents the 49-year-old actor.

Section 33 of Indian Evidence Act deals with "relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated".

According to Desai, section 33 cannot be used in this case. "It has to be used not routinely but under extraordinary circumstances," he said.

The lawyer argued that Kamaal Khan, the singer, was throughout with the actor right from Salman's house at Galaxy Apartments at Bandra to Rain Bar and Restaurant at Vile Parle and then to J W Marriott at Juhu. Sohail Khan, the younger brother of the actor, was with him inside the Rain Bar.

"Both were important witnesses in as much as Sohail Khan could have thrown light on drinking, while Kamaal Khan could have given evidence on drinking and driving," Desai said.

The lawyer said that with the application of section 33, the prosecution had attempted to resurrect the case as they could not muster evidence during the examination-in-chief of the witnesses.

"Repeatedly it has been said that section 33 is an exceptional has caused severe prejudice to me (Salman)," he said.

The lawyer said that Patil, who was the then police bodyguard of Khan, was the first informant and registered the FIR on September 26, 2002. However, in that statement he has not said anything about Salman consuming alcohol and he allegedly said it only on October 1 in his supplementary statement, Desai argued.

Arguments would continue on October 18.

"Such practice by police continued for three months and stopped abruptly last month, following which I was attacked," said Chanderpal.

A case under Sections 307 (attempt to murder), 324 (voluntarily causing hurt by dangerous weapons or means) and 34 (acts done by several persons in furtherance of common intention) of IPC was registered against unidentified persons in this connection, police said, adding, however, that no arrests have been made so far.