Justice A. R. Joshi, dictating his judgement in open court in the appeal filed by Salman against his conviction and five-year sentence by the sessions court, mentioned a series of lacunae starting with the extraction of the actor's blood samples to its transfer, preservation and testing to check alcohol content in them.
Prosecution witness (PW-20) - medical officer Shashikant J. Pawar of the Sir J.J. Hospital - carried out the clinical examination of the appellant-accused and found him smelling of alcohol. Later, he drew blood samples and put three millilitres in two vials, but ultimately what reached the analyst was four ml blood in one vial.
"PW-20 gave one sealed envelope containing two forms - Form A and Form B - and two vials, to the police station. Sharad Bapu Borade (PW-21), a police constable, took the two envelopes to the receiving clerk Dattatraya K. Bhalshankar (PW-18), at Forensics Sciences Lab, who has not been examined by the court. PW-18 says one police constable gave him the blood samples - this is a missing link in the biological evidence," said Justice Joshi.
He added that the samples should have been placed under "proper custody" to prevent "internal fermentation" to render the final results being useless.
Justice Joshi further said evidence by a parking attendant Kalpesh Verma (PW-12) of JW Marriott Hotel in Juhu, does not imply that Salman drove the car.
Verma handed over the car to the actor when he came out of the hotel, but "the witness was silent on the condition of the appellant-accused" at that time.
The parking attendant also saw Salman sitting in the driver's seat with the AC on and later closed the door after receiving tips (Rs.500), proceeded to keep it in a common box and on return saw the car going away.
On the Rain Bar evidence, Justice Joshi analysed the evidences of a waiter there, Malay Bag (PW-5) and a manager Rizwan Ali Rakhangi (PW-9), and the bills.
"The trial court had not analysed whether these bills can be accepted to prove the drunkenness of the appellant-accused," he said.
During his examination by chief public prosecutor Sandeep Shinde, Bag had pointed out that Salman had a "white coloured glass" in his hand, while during cross-examination by defence counsel Amit Desai he (Bag) had said it was a "clear liquid."
"(Bag) PW-5 said that he is a regular visitor to the bar, but the defence counsel has said everyone who visits the bar does not necessarily consume alcohol," Justice Joshi observed, adding that "there is no concrete evidence before the court from the two witnesses that (Salman Khan) had consumed alcohol there.
