The defense counsel has moved an application on Monday before the Bombay High Court urging it to examine singer Kamal Khan as a witness to clear the fact about who was driving the car when the accident took place in 2002. The counsel is challenging the five-year sentence handed down to the actor.
The application filed under section 391 of the Criminal Procedure Code (CrPc) has sought the examination of the singer since he was not examined by the prosecution before the session’s court although he was listed as a witness in the case.
Counsel Amit Desai argued: “In the trial court collaboration of evidence is mostly on the basis of the statement of another eyewitness, deceased police constable Ravindra Patil.
“Considering the peculiar facts and circumstances of the present case and in the interest of justice it is imperative and necessary that the only remaining eyewitness, Kamal Khan, ought to be called. Prosecution failed to discharge its duties before the trial court to produce the only surviving witness who could unfold the entire narrative of the present case and has failed to suggest that examination is imperative for administration of fair trial,” reads the application.
Under section 391 of CrPc, during an appeal the unexamined witness can be recalled or called as a court witness and in such a case it is up to the discretion of the high court to either examine Khan by itself or send the matter for examination before the trial court.
Desai also argued that Khan’s case was different from that of convicted Alistair Pereira, who was convicted for drink driving and running over seven labourers in Bandra in 2007. He said until the blood test was carried out on Salman Khan at the JJ Hospital, it was not known whether he was under the influence of alcohol at the time of the accident. While in the Pereira case, he was intoxicating himself at the time of driving thereby disturbing himself while doing so. Accordingly, Khan’s case could not be tried under section 304 II, culpable homicide not amounting to murder, but could be looked as a rash and negligent act.