Mumbai: Seeking to pick holes in the prosecution's arguments in the 2002 hit-and-run case, Bollywood superstar Salman Khan's lawyer on Monday told the Bombay High Court that the evidence did not suggest that the actor had consumed alcohol.
"It would be wrong to accept that Salman had consumed high content of Bacardi white rum as alleged by the prosecution," senior counsel Amit Desai said while arguing an the appeal filed by the actor against his conviction.
"All that has emerged in the evidence is that Salman was having a glass of white colour liquid," said Desai, adding that the glass contained only water and not alcohol.
The lawyer read out the evidence of Malay Semerendra Bag, the waiter at the Rain Bar and Restaurant where Salman allegedly had drinks. This witness is not specific whether it is Salman who gave the order or anyone else, said Desai.
The lawyer pointed out that the witness said he had kept 'Bacardi and Cosmopolitan cocktail' on the table. "But there is no mention of how much. Whether it is one bottle or two bottles...Pegs by pegs, how many times," he said.
Besides, the waiter had said that he had taken orders of Salman's friends and not the actor himself, Desai noted.
Manager of Rain Bar and Restaurant Rizwan Ali Rakhangi had said all tables were occupied. "There are 200 persons there...You cannot find one person from these tables who can say that Salman was drinking, you have not examined any of the friends of Salman Khan," said the lawyer.
"They (prosecution) went by the media-created 'bad boy' image (of Salman) and presumed that he was drunk," Desai said.
If an independent witness in the restaurant would have been examined, he would have told the truth, said Desai.
"PW 5 has stated that he has not seen Salman drinking. PW 9, in cross-examination, said Bacardi rum looks like water. Salman was drinking clear liquid. PW 9 had stated that clear liquid looks like water...This does not prove in any manner that Salman was drunk," Desai pointed out.
The prosecution's case is that that Salman had rammed his Toyota Land Cruiser into a shop in suburban Bandra on September 28, 2002, killing one person and injuring four, who were sleeping on pavement outside.
The trial court had, on May 6, awarded 5-year jail term to the actor.
Justice A R Joshi raised a few queries, including what a white coloured glass is; whether Bacardi is a white coloured drink; if the glass was white coloured or transparent and whether white could be called transparent.
"They had ordered Cosmopolitan cocktail...And it is said that it is with alcohol and without alcohol also...Is a cocktail always with liquor...Then what is mocktail?," the judge sought to know.
The defence and prosecution lawyers, however, replied that when there is no alcohol in a cocktail, it is a mocktail.
The judge also asked about the content of ethyl alcohol in Bacardi and what could be the possible impact peg by peg on a person consuming it and how it can have an impact over time.
Salman's lawyer further submitted that it is the prosecution's case that after going to the bar on the day the actor had also visited J W Marriott hotel just before the mishap occurred.
However, there is absolutely no record to show what Salman did after going to J W Marriott hotel in suburban Juhu and how the tag of the parking lot, where his Toyota Land Cruiser was parked, went missing, the lawyer asked.
"There is a witness-- PW 12 (Kalpesh Verma), the parking attendant who has handed over the car back to Salman Khan... This witness was examined but another parking attendant Yogesh Kadam was not examined, Desai said.
"Whether Yogesh existed is a question...Was he on parking duty on that day is another question. He does not seem to be in the files of Bandra police station," said the lawyer.
"PW 12 says that his colleague Yogesh Kadam parked the car...But he is not there, there is no other witness to prove that Salman Khan had entered the hotel," Desai argued.
"No evidence had been led by the prosecution to show what Salman did in the hotel. Whether he went inside coffee shop to have food or he ordered more drinks or a soft drink? There is complete silence on this aspect," the lawyer said.
Referring to the evidence of investigating officer Kishan Shengal, Desai said "he had collected the parking tag but that is missing."
He pointed out that the parking tag has lot of details like number of the car, time of arrival, time of departure, parking slot number, name of the valet driver who parked the car and the one who handed over the car. "The tag is of extreme significance," he said.
All persons, who could provide "truthful evidence" like Yogesh Kadam or the security man were not examined in the court and their statements were not recorded by police, Desai said.
The only point on which the prosecution has rested its case is that witnesses have said they had seen Salman getting down from the driver's seat of the car. This was to show that he was driving the car on that day, Desai said.