06 December,2013 06:42 AM IST | | Vinod Kumar Menon
A sessions court yesterday accepted actor Salman Khan's plea for retrial in the 2002 hit-and-run case and set December 23 as the date of the trial's commencement. The fresh trial, under which the actor is going to be charged with culpable homicide not amounting to murder may turn out to be beneficial for him, says legal experts.
Senior criminal lawyers with whom MiD DAY spoke said that statements recorded during the initial trial cannot be considered during the fresh retrial; since they cannot be corroborated, it would be difficult for the prosecution to prove them.
MiD DAY had earlier reported about the matter on February 2 (âGraver charges against Salman a blessing in disguise: Lawyers'), when section 304 (2) was applied against the actor by the city police almost a decade after the accident. The fact that prosecution's prime witnesses Ravindra Patil, the actor's bodyguard, died in October 2007 will work in his favour, say legal eagles.
Advocate Abha Singh said, "It is a legal strategy to ensure that Salman gets a breather for some more time, until the trial comes to an end. Moreover, during the initial trial in the magistrate's court, when the actor was being tried under IPC section 304 (a) (causing death by negligence), the prosecution failed to produce as many as 15 witnesses, on the grounds that the police were unable to serve summons to them."
Abha has decided to write to the Commissioner of Police Satyapal Singh, requesting him to intervene and instruct his police team to trace all of prosecution's witnesses whose testimony before the session's court would be crucial during the trial.
Another criminal lawyer Dinesh Tiwari said, "This is a complete sabotage committed by the accused with the assistance of prosecution. There was no need for the police to add an additional charge of 304 (2) (culpable homicide not amounting to murder). The prosecution very well knows that they would not be able to prove the crime, as the prime witness in the case Ravindra Patil has already expired."
Tiwari added, "Ravindra Patil was the only direct evidence, as he had witnessed the entire accident himself. All the other prosecution witnesses would not be able to prove the seriousness of the charges to establish culpable homicide. The chemical analyser's findings will not be enough at all and can only establish that the actor was drunk at that time and nothing more."
At odds
Senior criminal lawyer Majeed Memon, however, had a different observation to make. He said, "It is unfortunate that the matter is pending for over a decade, but it is difficult to attribute this long duration to the accused alone.
Unfortunately, there have been several developments in the case, which have ended up enhancing the gravity of the charge from 304 (a) to 304 (2), and thus, the punishment prescribed by law from 2 years to 10 years. And any person accused of a graver offence at a later stage is entitled to cross-examine the first witness examined against him by the prosecution.
The order of the sessions judge entitling the defence to such a right is entirely in consonance with the concept of fair trail. In the absence of the evidence of a solitary witness, the prosecution and the court will have to act only on available evidence against the accused. The evidence recorded during the previous trial cannot be taken into account, because it is without cross-examination by the accused."
Case development
>> On September 28, 2002, Salman Khan, while driving his Toyota Land Cruiser while he was allegedly inebriated, mowed down a footpath dweller near a bakery in Bandra (West), and injured four others.
>> He was first charged and tried by a Bandra magistrate's court under section 304 (a) (causing death by negligence), which attracts a light sentence of two years in jail. But roughly 10 years later, the magistrate held that a case under 304(2) had been made out against Khan and sent the case to a sessions court for retrial.
>> Khan also faces charges that accuse him of causing death by negligence, causing grievous hurt and damage to property and charges under the Motor Vehicles Act and the Bombay Prohibition Act.u00a0
