The Key to Reopening Salman’s Blackbuck Case: CrPC Section 311
A key witness’ statement to the police was rejected, as he had not been examined by the prosecution.
Life is wont to imitate art. Those following the Salman Khan blackbuck killing saga would have been instantly reminded of Jolly LLB when news emerged that a key witness, Harish Dulani who is supposed to have been in the jeep, and gone “missing” during trial, had resurfaced after the High Court acquitted Salman Khan in the case.
One of the key reasons for Salman’s acquittal was the rejection of Dulani’s statement to the police, that he’d seen Salman shoot the blackbuck, for the reason that he had not been examined as a witness by the prosecution.
Could a Jolly LLB type situation, where the case is reopened after new evidence is introduced and witnesses re-emerge from hiding, happen in Salman’s case too?
Jolly LLB maybe fiction, (after all it features a fantastic creature, a lawyer with a conscience!) but Section 311 of the Code of Criminal Procedure, 1973 could be used to make this a reality.
Under Section 311, the court has the power, at any stage of the trial, to recall a witness or summon a person to give testimony if it’s relevant to the criminal trial.
If the Rajasthan High Court’s judgment were to be challenged before the Supreme Court, the SC could very well send the case back to the trial court to consider summoning Dulani to court to give his testimony.
It is not unprecedented for a higher court, in appeal, to send a case back to the trial court to take additional evidence on board, where relevant and necessary to do justice in a given case.
- A key witness in the trial, Harish Dulani, had gone “missing” during trial, and resurfaced after the High Court had acquitted Salman Khan.
- Dulani’s statement to the police was rejected as he had not been examined as a witness by the prosecution.
- The record indicates that it was the prosecution which did not put Dulani on the stand.
- Under Section 311 of the CrPC, the court has the power at any stage during the trial, to recall a witness to give testimony.
- If Rajasthan High Court’s verdict were to be challenged before the apex court, the SC could send the case back to the trial court for Dulani’s testimony.
Theoretically, given the importance of Dulani’s testimony to the prosecution case against Salman, the Supreme Court could very well send the case back to the trial court to take his testimony into account.
While it’s tempting to believe that the course of the case could be changed with this one witness, the faults in the investigation and prosecution are too many for such simple fixes.
For a start, the record indicates that it was the prosecution which did not put Dulani on the stand.
It’s not clear if he was listed as a witness and he failed to appear. For whatever reasons, the prosecution couldn’t get him to present his testimony in court. This is despite the fact that Dulani was introduced as a witness in an earlier trial at around the same time against Salman Khan himself.
He even testified there and a belated effort was made to introduce that testimony before the High Court in this case (which was rejected). The question therefore needs to be asked of the prosecution: Why wasn’t Dulani presented before court when he was clearly ready and willing to appear?
If he had gone into hiding, why wasn’t this fact brought to the court’s notice so that he could be summoned and produced with police protection?
Whatever the answers to the question, a perusal of the High Court judgment suggests that his testimony may not have withstood the rigours of cross examination at the hands of Salman’s lawyers.
The clear discrepancies in his statement to the police have been brought out in detail by the High Court.
The absence of corroboration and abundance of contradictory evidence suggest that even Dulani’s testimony may not have made much of a difference to the outcome of the case.
Rather, the prosecution was not even able to prove that Dulani was in the jeep at the time of the offence.
The police couldn’t secure the weapons and knife allegedly used to kill the blackbuck, or properly secure the jeep and other crucial evidence that could’ve established Salman’s culpability.
There was just not enough material to corroborate the statement of Dulani and convict Salman.
Salman Khan’s case is not the rare exception in our criminal justice system. A VIP case is usually an occasion to bring to public notice the many systemic faults and failures of India’s criminal justice system.
Unfortunately, there’s a tendency to draw the wrong lessons from these instances. Tough questions need to be asked of the police and the prosecution on their multiple failures highlighted by the high court.
Or else the prospect of someone rich and powerful getting convicted for their crimes will remain in the realm of fiction.
(The writer is a Senior Resident Fellow at Vidhi Centre for Legal Policy. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)
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