The 2002 hit-and-run case is coming back to haunt Salman Khan.
The Mumbai police are all set to question the Bombay High Court's (HC) acquittal of the actor before the Supreme Court (SC). The Mumbai police feel that the HC's findings are "contradictory".
The draft Special Leave Petition (SLP) is now with the Maharashtra government for its nod.
Sources told dna that the HC's adverse inference over non- examination of Salman's friend Kamal Khan, who was present in the vehicle at the time of the incident, would be the "impeccable ground in the appeal."
"It is a strange situation. It was the HC which did not allow Kamal Khan to be summoned during the pendency of his appeal. But in its judgment, the HC asks why Kamal Khan was not brought in as witness. We will also raise pertinent points like whether Salman was drunk while driving, collection of his blood samples, hotel bills of JW Marriott etc," said sources.
The HC had disallowed Salman Khan's application for summoning Kamal Khan on November 30, 2015, a few days before the verdict.
"How can the HC now draw an adverse inference about the trial court's decision to go ahead with the trial without the testimony of Kamal Khan?" sources said.
Although Kamal Khan's statement was recorded, the trial court recorded that summons were not served on his Mumbai address. The police had claimed that Kamal Khan is a British citizen and resides in the UK.
The Maharashtra government is yet to take a final call on the draft SLP. But it has to file the appeal in 90 days from the date of judgment.
On May 6 last year, the trial court had convicted and sentenced the 49-year-old actor to five years in jail in the 2002 hit-and-run case.
While reversing the trial court's conviction order, the HC said that after the incident, the police had recorded the statements of Patil and Kamal. During the trial, Patil's statement, which was recorded before the magistrate, was used by the trial court to convict Salman.
Patil died of TB during in October 2007 while the trial was going on.
In the acquittal judgment on December 10 last year, the HC had said: "Kamal Khan was the only person, apart from Ravindra Patil, to throw light on the factual position as to who was driving. This is more so, when the evidence of Patil was to be critically discussed and having less evidential value because of no opportunity of cross-examination in sessions court."
"Examination of an eyewitness when the case is on a very limited number of eyewitnesses, as in the present case... non-examination of one of the two eyewitnesses (Kamal Khan) is definitely detrimental to the case of the prosecution...," the court said.
The HC said that the prosecution had not established its case against the actor beyond a reasonable doubt as is required under criminal law and concluded "unexplained and glaring anomalies" in the evidence.
"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 (Salman Khan) was driving and under the influence of alcohol, also, whether the accident occurred due to bursting (of tyre) prior to the incident or tyre burst after the incident...."
The judge also observed that Khan's former, now deceased police bodyguard, the first informant in the 2002 case against the actor, who was in the vehicle and was the crucial witness on whose testimony and "improved statement" about "Salman's speeding", the prosecution had rested its case, was "not a wholly reliable witness".
The backgrounder
According to the prosecution, on the night of September 27, 2002, Salman, accompanied by his bodyguard Ravindra Patil, a Mumbai police constable, and his singer-friend Kamal Khan, had gone to J W Marriott in his Toyota Land Cruiser. Salman is alleged to have been in an inebriated state and was driving drunk while returning. The vehicle ran over over five persons who were sleeping outside a bakeryin Bandra. One person, Nurulla Sharif, succumbed to his injuries. The others suffered injuries. As per the prosecution, there were only three persons in the car – Salman, Kamal Khan and Patil. During the trial, Salman claimed that the vehicle was driven by his family driver Ashok Singh.
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