Mumbai, Dec. 5: A Mumbai sessions court today granted actor Salman Khan a retrial in the September 2002 hit-and-run case, dividing legal opinion.
Salman was first charged with culpable homicide but it was later pared down to death by rash and negligent act, an offence tried by a magistrate and carrying a two-year term.
But in June this year, a sessions court admitted culpable homicide charges, punishable by up to 10 years, against the actor on the basis of a PIL.
Today, in a huge relief to Salman, sessions judge D.W. Deshpande accepted his plea for a fresh trial. Salman had made the request last month, saying that in view of the additional and graver charges, the evidence adduced earlier before a magistrate be discarded and re-evaluation and fresh cross-examination of witnesses be allowed.
“And this is where lies the twist in the tale,” said Abha Singh, the lawyer-activist who had filed the PIL seeking culpable homicide charges.
“The culpable homicide charges were based on the crucial testimony of Ravindra Patil (a police constable and Salman’s bodyguard at the time) — the only person among the 39 eyewitnesses who had testified against the actor. Unfortunately, he is dead and his testimony will no more be admissible in a retrial that will seek fresh cross-examination of witnesses.”
Salman is accused of driving his SUV over people sleeping on a pavement, killing one and crippling four, and then fleeing home. Forensic evidence placed in court says that when he surrendered eight hours later, the alcohol level in his blood was more than twice the permissible limit.
Patil had told a sessions court he had requested Salman not to drive as he was drunk, and had warned him not to drive at high speed as there was a turning ahead, but was ignored.
However, Patil, who died in October 2007 of bilateral tuberculosis at the age of 30, had made several flip-flops after testifying. The constable, abandoned by his family for his excessive drinking, had disappeared during the trial, allegedly under pressure. That cost him his police job.
Traced to Panchgani in 2006, he told the court during cross-examination that he was unsure if Salman was drunk but maintained the actor was at the wheel and he had advised him to drive safely.
Top criminal lawyer Majid Memon, who was not connected to the case, supported the retrial order, saying Patil’s deposition was “at best dodgy”.
“In a retrial, it will be dumped because he is dead and his cross-examination is not possible,” Memon said.
“During trial, the court can admit additional charges but if they are graver than the original charges, the accused must be given the opportunity to defend himself against those grave charges from inception. So a fresh trial is necessary.”
Mumbai’s most high-profile prosecutor, Ujjwal Nikam, disagreed.
“A retrial is permitted only in the rarest of rare cases when there is a substantial change in the prosecution story,” he said, adding that retrials are not necessary if the judgment hasn’t been delivered in the original case.
Abha Singh said she would write to the Mumbai police commissioner to locate all the other eyewitnesses “who seemed to have disappeared in thin air when the case began”.
The hearing will begin afresh on December 24, three days before the star’s 48th birthday. The court has ordered the prosecution and defence to submit their lists of witnesses on December 23.