All uncertainty prevailing over the State of Maharashtra filing an appeal over the complete acquittal of celebrated Bollywood star Salman Khan in the wake of famous 2002 hit and run incident has come to an end, with the Chief Minister assuring the House on the last date of the Winter Session of the Maharashtra Legislative Assembly in Nagpur that justice would be done.

Lots of eyebrows were raised after the actor got bail from the Bombay High Court in just a few hours after he was convicted by the Sessions Court Mumbai with its 240 conviction verdict on May 6, 2015, making many wonder how an appeal to such a voluminous conviction verdict could be filed in just a few hours. The speed with which all these developments took place saved the Bollywood star even one night in jail!

When he was granted bail on May 8, the High Court passed an award that as far as possible the appeal hearing should be over by July 31, 2015 and this order facilitated the complete disposal of the appeal by December 10, 2015 after the paper book of the appeal was ready.

While acquitting Salman Khan, the High Court essentially gave emphasis to the innumerable infirmities in the police investigation and as per convention, the onus is on the prosecution to prove guilt beyond reasonable doubt; therefore one won’t be tempted to find fault with the High Court verdict on that score!

Moot question: How many persons in car?

What is critical is how many persons were inside the car on the wee hours of September 28, 2002 when the Toyota Land Rover hit the American Laundry, penetrating three and half feet inside and thereby killing one person in the process and injuring four persons sleeping on the footpath of the shop!

If it is assumed that there were four persons, then Salman is out, and if it is believed that there were only three persons, then Salman was certainly at the wheel.

It was immaterial whether the actor was drunk or not. The moot question is whether he was driving in a ‘rash and negligent manner’ or not. 

Bodyguard’s testimony!

As soon as the incident took place, it was Salman’s bodyguard, late Ravindra Patil, who reported the incident at Khar Police Station and frantic efforts were made by the police party that arrived on the scene to remove the persons caught underneath the car with the help of a crane. All the four injured witnesses distinctly and unequivocally deposed that the actor came out of the vehicle from the right hand side front door and was in an inebriated condition, finding it difficult to stand on his own legs.

It has also come on record that an irate mob was about to manhandle the super star, but were restrained by his bodyguard who flashed his identity card while pacifying the crowed.

Salman’s bodyguard, while lodging an FIR, had admittedly not mentioned at the ‘first available instance’ about the ‘alleged drunken state’ of the actor, which came to be added on October 1, 2002 after the police received his blood test report from a Forensic Lab at Kalina, Santacruz (East), Mumbai. This particular ‘improvement’ was sufficient to create a doubt in the mind of the High Court when the prosecution was emphasising that the FIR was not an encyclopaedia of all events and there was no bar in giving a supplementary statement.

Even before the charge sheet could be filed, the investigation officer made an application before the Additional Metropolitan Magistrate, Bandra, Mumbai for seeking modification of the section whereby 304-A was sought to be replaced with 304-II of the Penal Code.

As the magistrate court granted that conversion of section, after the charge sheet was filed on October 21, 2002 relatively in record time, the same came to remanded to the Sessions Court which has the power to try criminal cases wherein Section 304-II is invoked, which is not only a ‘non-bailable’ offence but prescribes punishment of 10 years in contrast to section 304-A of IPC which is of barely two years and is a bailable offence.

The invocation of section 304-II of IPC was challenged by Salman Khan in the Sessions Court, which rejected his contention and it was the Bombay High  Court which upheld the actor’s revision application. However, after the State of Maharashtra pursued the matter with the Supreme Court of India, it sent the matter back to the Magistrate’s court at Bandra with liberty to change, add, alter, any section of the Penal Code depending upon the evidence that will be gathered before it during the trial.

Thorough cross examination

As per the direction of the Apex Court, while Metropolitan Magistrate Court at Bandra went ahead with the trial and after his examination in chief, a thorough cross examination of his body guard Ravindra Patil took place in which no specific suggestion was given that it was Ashok Singh who was at the wheel and not the actor.

In the meanwhile, after examining 17 witnesses the Magistrate Court thought it fit and proper to send the matter to the Sessions  Court  (on the basis of Supreme Court order) and the Sessions Court on the receipt of papers ordered ‘retrial’ of the whole matter which was neither challenged by the prosecution nor by the accused actor. Whilst in Sessions Court, a question arose about the sanctity of the testimony of the deceased bodyguard Ravindra Patil and trial court thought it fit to delve over the matter at the time of final arguments! 

During the retrial, as many as 27 witnesses were examined; all four witnesses in unison said that Salman Khan was at the wheel and apart from minor discrepancies there was hardly anything on record which could show any contradiction in their depositions. 

RTO officer’s gaffe!

The prosecution’s job became slightly complicated as PW-19 (Rajendra Keskar), an RTO Officer, examined the vehicle on the very day of the accident, but was not carrying the prescribed form for taking notes which was supplied to him by police officer Imitiaz, which revealed the ill-equipped nature of the RTO man.

While the Investigation officer in his cross admitted that (1) he had not sent the alleged punctured car to the forensic lab at Kalina, (2) no finger prints were obtained on the wheel of the vehicle, (3)  blood samples of the actor taken at Sir J.J. Hospital were kept by him in his cabin overnight before it was sent to Kalina Forensic Lab, (4) Valet Parking tag that was procured from Hotel J.W. Marriot was not ‘seized’ by way of ‘Panchanama’ (5) witness statements of two persons, one, tea maker at the nearby stall and one person staying at Antop Hill, Wadala u/s. 161 of Cr. P.C. were obtained who claimed to have acted as witness to the ‘spot panchanama’ at 3 AM and (6) Not giving appropriate instructions to the RTO Officer to facilitate a thorough inspection of the vehicle.

It subsequently came to the fore that the Prosecution did not make any effort to serve witness summons on Kamal Khan even as his London address was very much available on the record of the court proceeding.

Significance of Section 33 of Evidence Act

While acquitting Salman Khan, the High Court essentially ‘disregarded’ the deposition of the actor’s deceased bodyguard for want of corroboration, while the Sessions Court had ‘solely’  relied upon it by taking recourse to Section 33 of Evidence Act which has been incorporated to take into account contingencies to protect the relevancy of the deposition (which includes cross examination) of a witness whose presence cannot be procured at subsequent stage because he is dead (the case with Ravindra Patil), or not traceable, or not available for any other reason.

Another factor which the Sessions Court had weighed in favour of the prosecution while convicting the actor was seen in diametrically opposite light by the High Court in the appeal.

Prosecution had strongly relied upon the testimony of the PW-12 (Kalpesh Surju) who without ambiguity stated in the trial that it was he who obtained the Valet Parking tag from Salman Khan when he came out of the hotel lobby to the porch along with ‘two more persons’ (Kamal Khan and the bodyguard) and he had seen the actor taking control at the wheel and speeding away after initially taking the vehicle in reverse to take an appropriate turn.

The prosecution had ruled out the theory of Salman Khan getting out of the car from the front right position midway after leaving the hotel and before reaching the accident spot! The High Court while acquitting Salman refused to believe the deposition of PW-12 and wanted some more credible evidence in support of his evidence of that fateful night.

Who is Ashok Singh?

What is most glaring in the whole saga is that when as many as 27 witnesses were examined, no such specific suggestion was given on behalf the defence lawyers to any one of them by saying that on the relevant night it was not Salman Khan, the actor, but one Ashok Singh at the wheel. The name of Ashok Singh first cropped up after the section 313 statement of the accused actor was over. During the course of arguments, no satisfactory explanation could be given by the accused as to why the ‘Driver Ashok Singh Theory’ was not mooted from Day 1 of the trail, which the trial court felt, was an afterthought.

The prosecution insisted in the Session Court that once the accused decides to lead the evidence, the burden of proving innocence is partly shifted from the Prosecution to the Accused and he can’t take recourse to the ‘preponderance of probabilities’ theory !

Infirmities rescues actor!

All these infirmities that knowingly or unknowingly crept into the investigation went in favour of the actor as the High Court was greatly influenced by the same while acquitting the accused on all counts! The whole Salman Khan episode has cast severe doubts on the capability of police authorities in carrying out an investigation of such a sensitive matter and one wonders if the police authorities buckled under media pressure.

Be that as it may, the whole episode shows that the approach of the police in the whole affair was absolutely casual and no concerted efforts were made by them to make the investigation in a scientific manner. But the moot question is that even if it is assumed that the Investigation Officer was at fault, what were his immediate supervisory officers such as the Assistant Commissioner of Police of the Division and Deputy Commissioner of Police of the relevant Zone doing when this was happening?

Very recently, the same Division Bench of the Bombay High Court in a pending PIL concerned with the Salman Khan matter, filed by journalist Nikhil Wagle, has raised a query to the State to find out whether there are any norms, rules and regulations for taking the blood samples of the accused in the accident and if they were followed?

One feels the High Court query should not be confined to blood sample taking procedures only, but should also encompass all lapses that have taken place not only by the IO, but his superiors too, so as to fix up ‘accountability’ and ensure that justice is done to the accident victims not only of this crime, but also of other crimes in future, as the ‘precedent’ would be set in the wake of the Salman Khan episode if the police officers are really dealt with as per the provisions of law for their alleged lapses.

The author is an advocate at the Bombay High Court; ganesh.sovani081@gmail.com