Justice A.R. Joshi also said it was difficult to rely on the testimony of the late Ravindra Patil, the police bodyguard assigned to Salman who was in the vehicle that night when the vehicle mowed down one pavement dweller and injured four others in Bandra West.
The court also observed that in his police statement recorded hours after the accident, Patil made no mention about Salman being drunk, but said this only on October 1, 2002, after the blood sample tests reports were received.
"Because of anomalies and discrepancies in his statement, Patil cannot be called 'wholly reliable' as he improved upon this statement from recording of FIR to his supplementary statement (on October 1, 2002) in magistrate's court," the judge said.
Besides, the judge noted that the prosecution has not been able to establish whether the incident occurred due to bursting of the vehicle tyre prior to the accident or whether the tyre burst after the incident.
Justice Joshi pointed out that police inspector Kishan Shengal, the case investigating officer, did not send the tyre for forensic examination, that too when forensic experts had visited the police station to inspect the car.
"If that would have done, then definitely it would have been able to ascertain the cause of burst of left front wheel tyre," he added.
Terming Patil "an unreliable witness", the judge noted that it was difficult to accept his answers that the car tyre "burst due to the impact" (of the crash).
"This court has come to the conclusion, that the prosecution has failed to bring material on record to establish beyond reasonable doubt that the appellant-accused (Salman) was driving (the vehicle) and driving under influence of alcohol, and also, whether the accident occurred due to bursting (of tyre) prior to the incident or tyre burst after the incident," Justice Joshi said.
The judge also said "necessary adverse inference" needs to be drawn for the prosecution withholding actor-singer Kamaal Khan -- who was present in the vehicle and a witness -- from coming to the witness box, and said only "an apparent futile attempt was made to bring him".
On Thursday, Justice Joshi is likely to deliver the much-anticipated verdict in Salman's appeal against the Sessions Court order on May 6, 2015, convicting him to five years' jail on charges, among other things, of culpable homicide not amounting to murder.
Justice Joshi's observations came during his ongoing dictation of the verdict before the open court since Monday, and is expected to be completed on Thursday when the fate of the actor will become clear.
