Vashisht @ Manu Sharma Vs. State (NCT of Delhi)  INSC 289 (19 April 2010)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 179 OF 2007 Sidhartha Vashisht @
Manu Sharma .... Appellant(s) Versus State (NCT of Delhi) .... Respondent(s)
CRIMINAL APPEAL NO. 157 OF 2007 AND CRIMINAL APPEAL NO. 224 OF 2007
statutory appeals are filed under Section 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and under Section
379 of the 1 Criminal Procedure Code against the final judgment and order dated
18/20.12.2006 passed by the High Court of Delhi in Criminal Appeal No. 193 of
2006 whereby the High Court reversed the order of acquittal dated 21.02.2006
passed by the Additional Sessions Judge, Delhi, in Sessions Case No. 105 of
2001 and convicted Sidhartha Vashisht @ Manu Sharma (appellant in Crl. A. No.
179 of 2007) under Section 302, 201/120B IPC and Section 27 of the Arms Act and
sentenced him to undergo imprisonment for life for the offence under Section
302 IPC together with a fine of Rs.50,000/- to be paid to the family of the
victim and in default of payment of fine, to undergo further imprisonment for
three years and also sentenced him to undergo imprisonment for four years for
the offence under Section 27 of the Arms Act with a fine of Rs.2000/- and in
default to further undergo imprisonment for three months. He was further
sentenced to undergo imprisonment for four years for the offence under Section
201/120B IPC together with a fine of Rs. 2,000 and, in 2 default, to further
undergo imprisonment for three months. The High Court also sentenced Amardeep
Singh Gill @ Tony Gill (appellant in Crl.A. No. 157/2007) and Vikas Yadav
(appellant in Crl. A.No.224/2007) to undergo rigorous imprisonment for four
years and a fine of Rs.2000/- each and, in default of payment of fine, to
further undergo imprisonment for three months under Section 201/120B IPC.
case of the prosecution:
night intervening 29-30.04.1999, a `Thursday Party' was going on at Qutub
Colonnade at "Once upon a time" restaurant also called "Tamarind
Cafi". The liquor was being served by the bartenders, namely, Jessica Lal
(since deceased) and one Shyan Munshi (PW-2). At about 2.00 a.m., Sidhartha
Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) along with his
friends came there and asked for two drinks. The waiter did not serve him
liquor as the party was over. Jessica Lal and Malini Ramani (PW-6), who were
also present there, tried to make 3 him understand that the party was over and
there was no liquor available with them. On refusal to serve liquor, the
appellant took out a pistol and fired one shot at the roof and another at
Jessica Lal which hit near her left eye as a result of which she fell down.
Beena Ramani (PW-20), who was present there, stopped the appellant and
questioned him as to why he had shot Jessica Lal and demanded the weapon from
him but he did not hand over the pistol and fled away. Jessica Lal was rushed
to Ashlok Hospital from where she was shifted to Apollo Hospital. On
30.04.1999, in the early morning hours, Jessica Lal was declared brought dead
at Apollo Hospital.
the night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex.
PW-13/A) was recorded at Police Station Mehrauli which disclosed a shooting
incident at H- 5/6 Qutub Colonnade. A copy of the said DD entry was handed over
to SI Sharad Kumar (PW-78) who along with Ct. Meenu Mathew left for the spot.
Near about the same time, copy of the said DD entry was also given to SI Sunil
4 Kumar (PW-100) who along with Ct. Subhash also left for the spot. On reaching
the spot, PW-78 found that the injured had been removed to Ashlok Hospital and
the floor of the Restaurant was found to be wet. SI Sunil Kumar (PW-100) then
left SI Sharad Kumar (PW-78) at the spot to guard the same and proceeded to
Ashlok Hospital along with Ct. Subhash. The SHO Police Station Mehrauli,
Inspector S.K. Sharma (PW-101) along with his team also left the Police Station
vide DD Entry No. 43 A and reached the spot and deputed one Home Guard Shravan
Kumar (PW 30) at the entrance of `Qutub Colonnade' to guard the vehicles. On
reaching Ashlok Hospital, PW-100 met Beena Ramani (PW-20), who is the owner of
the Restaurant, and enquired about the incident but she asked him to talk to
Shyan Munshi (PW-2) saying that he was inside and he knew everything. PW-100
then recorded the statement of PW-2 and made an endorsement on the same for the
registration of the case under Section 307 IPC and handed over it to Ct.
Subhash 5 to be carried to the police station, Mehrauli. At about 4.00 a.m., FIR
No. 287/99 was registered at the police station, Mehrauli. In the meantime,
Jessica Lal had been shifted to Apollo Hospital. When SI Sunil Kumar came back
to the spot along with PW-2, PW 30 informed them about the lifting of one black
Tata Safari from the spot.
inspection of the site, two empty cartridges were seized and, in the meantime,
a supplementary statement of PW-2 was also recorded by PW-100. At about 5.45
a.m., PW- 100 received an information by Ct. Satyavan intimating him about the
death of Jessica Lal at Apollo Hospital.
under Section 302 IPC/201/120 B IPC and under Section 27 of the Arms Act has
been framed against the accused Sidhartha Vashisht @ Manu Sharma, charge under
Section 201/120B IPC has been framed against accused Vikas Yadav, Amardeep
Singh Gill @ Tony Gill and Alok Khanna, charge under Section 212 IPC has been
framed against Harvinder Chopra, Raja Chopra, Vikas Gill @ Ruby Gill and Yograj
Singh and charge under Section 6 201/212 IPC against Shyam Sunder Sharma. At
about 7.00 a.m. PW 100 recorded the statement of the Manager (PW-47), Waiter
(PW-46) and Beena Ramani (PW-20)- the owner of the Restaurant.
post mortem was conducted at about 11.30 a.m.
All India Institute of Medical Sciences on the same day i.e. 30.04.1999. In the
meantime, at about 11.00 a.m., SI Pankaj Malik (PW-85) had been sent to
Chandigarh to secure the black Tata Safari and to arrest the appellant. PW-100
recorded the statements of the witnesses. On 30.04.1999 at about 4.15 p.m., an
FIR was registered against Malini Ramani (PW-6), Beena Ramani (PW-20) and
George Mailhot (PW-24) under Sections 61/68/1/14 of the Punjab Excise Act. At
about 8.30 p.m., PW-100 handed over the investigation to SHO S.K. Sharma
(PW-101). On the night intervening 30.04.1999/01.05.1999, at about 2 a.m., the
police raided the farm house of the appellant and on search being conducted
seized a photograph of the appellant. On 7 02.05.1999, a list of invited guests
was prepared by PW-
the same day, around 10.00 p.m., PW-101, got an information that a black Tata
Safari has been found by the U.P. Police (Sector 24, Noida Police Station) and
on the next day PW-101 went to Noida Police Station and seized the said black
Tata Safari. On 05.05.1999 at about 2.30 a.m., Amardeep Singh Gill @ Tony Gill
and Alok Khanna were arrested and from their alleged disclosure statements, the
involvement of Sidhartha Vashisht @ Manu Sharma was confirmed. On the same day,
Inspector Raman Lamba (PW 87) who was in Chandigarh with his team intimated the
lawyer of the accused- appellant that Manu Sharma is required in the case. On
receipt of the information, on 06.05.1999, the appellant surrendered before
PW-87 and was later arrested at about 2.20 p.m. and brought to Delhi. On
07.05.1999, the police produced the appellant before the Metropolitan
Magistrate and sought police remand for effecting recovery of the alleged
weapon of offence. An application for 8 conducting Test Identification Parade
(TIP) of the appellant was also moved. Thereafter, the appellant was remanded
to five days police custody till 12.05.1999 and thereafter on 12.05.1999
extended till 17.05.1999 on the application of the I.O., but on 15.05.1999, the
appellant's remand was preponed from 17.05.1999 to 15.05.1999. On 16.05.99, the
appellant was sent to judicial custody. On 30.05.1999, the accused-Vikas Yadav
was also arrested.
completion of investigation, the other accused persons were also arrested.
03.08.1999, charge sheet was filed against ten accused persons. On 23.11.2000,
the Additional Sessions Judge framed charges against the appellant/Manu Sharma
under Sections 302, 201 read with 120 B IPC and Section 27 of the Arms Act,
accused Amardeep Singh Gill was charged under Section 120 read with Section 201
IPC, accused Vikas Yadav was charged under Section 120 read with 201 IPC as
also Section 201 read with 34 IPC, accused Harvinder Chopra, Vikas Gill, Yograj
Singh and 9 Raja Chopra under Section 212 IPC and accused Alok Khanna, Shyam
Sunder Sharma and Amit Jhingan were discharged of all the offences. In
2000/2001, Revision Petition No. 596 of 2000 was preferred by the prosecution
before the High Court of Delhi praying for the framing of charge against the
accused persons and setting aside the discharge of Alok Khanna, Shyam Sunder
Sharma and Amit Jhingan. Revision Petitions were also preferred by the accused
persons against the framing of the charges against them. The High Court
disposed of all the revision petitions filed by the accused persons by a common
order dated 13.03.2001. On 12.04.2001, charges as per the orders of the High
Court were framed and some of the charges as framed earlier were maintained.
Charges under Section 120B/201 IPC were framed against accused Vikas Yadav,
Amardeep Singh Gill @ Tony Gill and Alok Khanna and charges under Sections 201
and 212 IPC were framed against accused Shyam Sunder Sharma.
the rest of the accused, the charges as framed on 10 23.11.2000 by the trial
Court were maintained. Trial began in May, 2001 against nine accused. In all,
101 witnesses were examined by the prosecution and two court witnesses were
12.12.2001, the case registered against Malini Ramani, Beena Ramani and George
Mailhot under the Punjab Excise Act was disposed of with a direction to pay a
fine of Rs.200/- each. On 28.01.2002, the appellant was released on interim
bail for a period of six weeks by the order of the High Court dated 25.01.2002
with a direction to surrender after the expiry of the same. In compliance with the
conditions of interim bail, the appellant surrendered on 11.3.2002 but again
sought for and granted interim bail for a period of ten weeks starting from
20.03.2002. During the period from March 2002 to February 2006, the appellant
was enlarged on bail on different occasions by various orders of the High
occasion, against the dismissal of the bail application by the High Court on
11.11.2003, the 11 appellant filed a special leave petition before this Court
which was dismissed by this Court on 02.12.2003. On 21.02.2006, after trial,
the Additional Sessions Judge acquitted all the nine accused including the
appellant- Manu Sharma.
Challenging the acquittal, the prosecution filed an appeal before the High
Court being Crl. Appeal No. 193 of 2006. On 20.12.2006, the High Court vide the
impugned order, convicted and sentenced the appellants, as mentioned in
paragraphs above. Challenging the said order of the High Court, all the three
appellants filed above mentioned separate appeals before this Court. All the
appeals were heard together and are being disposed of by this common judgment.
Mr. Ram Jethmalani, learned senior counsel for Sidhartha Vashisht @ Manu
Sharma, appellant in Crl. A. No. 179 of 2007, Mr. Nitin Sangra, learned counsel
for Amardeep Singh Gill @ Tony Gill, appellant in Crl.A. No. 157/2007, Mr.
Ranbir Yadav, learned counsel for 12 Vikas Yadav, appellant in Crl.
A.No.224/2007, Mr. Gopal Subramanium, learned Solicitor General of India for
Respondent-State in all the three appeals and Mrs. Mamta Dhody Kalra,
intervenor, who appeared in person and pleaded for acquittal of the
of the appellants/accused:
Ram Jethmalani, after taking us through all the oral and documentary evidence relied
on by the prosecution as well as the defence, the order of the Trial Judge
acquitting all the appellants from the charges leveled against them and the
impugned order of the High Court reversing the order of acquittal raised the
following contentions:- a) The appellant (Sidhartha Vashisht @ Manu Sharma) has
been denied his fundamental right to free and fair trial which is guaranteed
under Article 21 of the Constitution of India.
b) On the
very first day of investigation i.e. on 30.04.1999, an FIR was filed against
Malini Ramani PW-6, 13 Beena Ramani PW-20 and George Mailhot PW-24 under the
Punjab Excise Act in order to control these witnesses and to pressurise them to
support the prosecution case.
their deposition, the Excise case was pre-poned and disposed of by imposing a
fine of paltry amount.
Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 were frequently shown
the photograph of the appellant and he was paraded before them.
finding of the High Court that Sidhartha Vashisht @ Manu Sharma took out his
pistol and first fired at the ceiling and then at Jessica Lal is based on no
Ballistic Experts have concurred that empty cartridges have been fired from two
different weapons. Their Report support the statement-in-chief of Shyan Munshi
no evidence on record that both the shots were fired from one weapon.
High Court has wrongly placed reliance upon the testimony of Deepak Bhojwani
PW-1, even though, he was not present in the party and he was planted by the
evidence of three family members Malini Ramani PW-6, 14 Beena Ramani PW-20 and
George Mailhot PW-24 is inadmissible in law.
prosecution never claimed Beena Ramani PW-20 as an eye-witness, however, the
High Court erroneously held her as eye-witness to the occurrence.
Court failed to consider the evidence of Madan Kumar (Waiter) PW-46 and
Jatinder Raj (Manager) PW-47.
High Court committed an error in relying upon the testimony of George Mailhot
PW-24 to corroborate the evidence of Beena Ramani PW-20.
First Information Report recorded on the statement of Shyan Munshi PW-2 is not
an FIR but a signed statement. The High Court wrongly discarded his (PW-2)
ocular version. However, the Trial Court assigned good reasons for accepting
High Court's observation on Ballistic Experts from CFSL is erroneous.
High Court committed an error in disbelieving P.S. Manocha PW-95.
There is no acceptable evidence/material to connect Tata Safari to the alleged
Shravan Kumar PW-30 is a planted witness, and there is no need for him to
accompany PW-1 to the spot when he was assigned other official work.
rough site plan which was prepared in the early hours of 30.04.1999 (Ex. PW
100/2) clearly shows the absence of Beena Ramani PW-20 at the alleged place of
occurrence, if she was an eye-witness, this would have been done.
Public Prosecutor failed to adhere the basic principles in conducting criminal
High Court committed a grave error by reversing the well considered order of
acquittal by the Trial Court and on conjunctures the High Court interfered with
the acquittal and imposed sentence which is not permissible under law.
other two learned counsel submitted that the prosecution failed to establish
the charge in respect of 16 Amardeep Singh Gill and Vikas Yadav under Section
201 read with 120B of the IPC.
intervenor supported the case of the appellant- Manu Sharma and prayed for his
on behalf of the State:
7) On the
other hand, Mr. Gopal Subramanium, learned Solicitor General, after taking us
through the entire materials, submitted that the Trial Judge has committed an
error in acquitting all the accused and the High Court being an Appellate Court
is fully justified in re-analysing the evidence and convicting all the three
accused- appellants and awarding appropriate sentence. After pointing out oral,
documentary evidence and other legal principles, he submitted that the
conviction and sentence awarded by the High Court are acceptable and no
interference is called for by this Court, and prayed for dismissal of all the
have carefully considered all the materials placed and the rival contentions.
Points for consideration in these appeals are:- a) Whether the prosecution has
established its case beyond reasonable doubt against all the three accused? b)
Whether the trial Court is justified in acquitting all the accused in respect
of charges leveled against them? c) Whether the impugned order of the High
Court imposing punishment when the trial Court acquitted all the accused in
respect of the charges leveled against them is sustainable? 10) It is not in
dispute that the following charges were framed against the appellants:- S.No.
Name of Accused Accused Charges Framed
Sidhartha Vashist @ 1 302 IPC, 27 Arms Act, 201 Manu Sharma r/w 120B IPC
Yadav 2 201 r/w 120B IPC
Amardeep Singh Gill 3 201 r/w 120B IPC Powers and Duties of the Appellate Court
while dealing with the order of acquittal:
Before analyzing the prosecution case, the defence plea and the arguments of
the respective counsel, let us find out the scope of the Appellate Court in
reversing the order of acquittal by the Trial Court. Mr. Ram Jethmalani,
learned senior counsel for the appellant- 18 Manu Sharma, by drawing our
attention to the principles laid down by this Court in Madan Lal vs. State of
J&K, (1997) 7 SCC 677 submitted that in an appeal against acquittal, it is
incumbent on the Appellate Court to give adequate reasons for reversal. By
citing Ghurey Lal vs.
Uttar Pradesh (2008) 10 SCC 450, he further contended that the High Court could
not have reversed the judgment of the Trial Court inasmuch as the view taken by
the Trial Court was plausible view based on the evidence on record, hence the
finding of the Trial Court could not have been overturned.
Gopal Subramanium, learned Solicitor General, by relying on the decision of
this Court in Chandra Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105 submitted
that where the High Court's conclusion was based on evaluation of evidence
which was not erroneous or perverse and was based on an independent analysis of
evidence which fully establishes the case of the prosecution as against the
trial Court's conclusion, there 19 is no reason much less the compelling reason
to disagree with the finding of guilt by the High Court. He also pressed into
service another decision of this Court in Jaswant Singh vs. State of Haryana,
(2000) 4 SCC 484.
following principles have to be kept in mind by the Appellate Court while
dealing with appeals, particularly, against the order of acquittal:
is no limitation on the part of the Appellate Court to review the evidence upon
which the order of acquittal is found.
Appellate Court in an appeal against acquittal can review the entire evidence
and come to its own conclusions.
Appellate Court can also review the Trial Court's conclusion with respect to
both facts and law.
While dealing with the appeal preferred by the State, it is the duty of the
Appellate Court to marshal the entire evidence on record and by 20 giving
cogent and adequate reasons set aside the judgment of acquittal.
order of acquittal is to be interfered only when there are "compelling and
substantial reasons" for doing so. If the order is "clearly
unreasonable", it is a compelling reason for interference.
While sitting in judgment over an acquittal the Appellate Court is first
required to seek an answer to the question whether finding of the Trial Court
are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the
Appellate Court answers the above question in the negative the order of
acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for
reasons to be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities, it can reappraise the evidence to
arrive at its own conclusion.
When the Trial Court has ignored the evidence or misread the material evidence
or has ignored material documents like dying declaration/report of Ballistic
Experts etc., the Appellate Court is competent to reverse the decision of the
Trial Court depending on the materials placed.
light of the above principles, let us examine the impugned judgment of the High
Court with reference to the materials placed by the prosecution and the
the outset, Mr. Ram Jethmalani, learned senior counsel highlighted the role of
public prosecutor in conducting prosecution for which he relied on the
procedures being followed in United Kingdom and also cited certain passages
from the books of foreign authors.
addition to the same, he highlighted how the appellant- Manu Sharma was
prejudiced by the wild allegations that were carried by Media, both print and
electronic. Since we intend to concentrate on the merits of the case, we
discuss 22 and give our reasoning at the appropriate place or at the end of our
Presence of accused Manu Sharma & others at the scene of offence.
no dispute that the incidence occurred in a place known as "Qutub
Colonnade". The open area of "Qutub Colonnade" is known as
the closed area is called "Tamarind Cafe". In order to establish the
presence of the accused Sidhartha Vashisht @ Manu Sharma and others,
prosecution has examined Deepak Bhojwani PW-1, Shyan Munshi PW-2, Malini Ramani
PW-6, Beena Ramani PW-20, George Mailhot PW-24, Rouble Dungley PW-23 and Rohit
Bal PW- 70. Apart from these ocular witnesses, prosecution pressed into service
Ex. PW12/D-1 which is a wireless message received at Police Station, Mehrauli.
Bhojwani PW-1 He is a resident of K-5/B, Ground Floor, Lajpat Nagar, New Delhi.
According to him, in the year 1999, he 23 had attended the place known as
"Qutub Colonnade" as Thursday Party four times on each Thursday and
the last occasion when he attended this Thursday Party was on 29.04.1999. There
used to be a gathering of friends at this Party and all varieties of liquor
used to be served in this Party besides snacks etc. He explained that coupons
used to be issued for purchase of any kind of liquor. Such coupons were used to
be purchased in advance from the cash counter. On 29.04.1999, he attended the Thursday
Party alone at about 11 o'clock in the night.
examination, in categorical terms, he deposed:
had purchased four coupons of Rs. 100/- each on that day. Jessica Lal (since
deceased) and Shyan Munshi (complainant) were serving liquor on that night at
the bar counter. I had known Jessica lal for about five or six years whereas
Shyan was introduced to me by Jessica Lal about a week before 29.04.1999 i.e.
on the previous Thursday Party".
from the above assertion, he also informed the Court that Jessica Lal (since
deceased) was working with Oberoi Hotel and was also a model by profession. He
described the location of "Tamarind Court" and "Tamarind
Cafi". The bar counter was located in "Tamarind Court"
between the two doors of the "Tamarind Cafi", 24 but since it was
summer nobody was using the bar counter giving preference to the bar counter
located outside. He also stated that Jessica Lal was wearing blue denim shorts
and white half sleeved shirt on that night.
same night, at about 1 o'clock (midnight), he went to the bar counter to have
his third drink. He informed the Court that on the suggestion of Jessica Lal
that the liquor was getting over he handed over all the remaining coupons and
purchased two pegs of whisky. While holding both the glasses of whisky, he came
in the company of his friends.
following statement of PW-1 proves the presence of accused Manu Sharma and his
friends- "I was moving around in the party with two glasses of whisky,
when I came across a person having fair complexion who was giving smile to me.
I also reciprocated. Then he came to me. We both introduced each other. He gave
me his name as Manu Sharma. He said as to how I was holding two glasses of
whisky in my hands whereas he was unable to get even one. Manu Sharma came into
my contact after about 10-15 minutes of my purchasing two pegs of whisky.
requested me to arrange liquor for him on which I told him that liquor was over
and the bar was closed and therefore, I would not be able to arrange liquor for
him. We were already introduced to each other and were about to exchange
visiting cards, when one tall sikh gentleman came from behind of Manu Sharma
and told him something and took him away towards Tamarind Cafi. Before leaving,
25 Manu Sharma told me that he would come back and meet me again".
correctly identified the photographs of both the accused persons one Manu
Sharma and the other Tony Gill. He also informed that the accused Tony Gill
came along with Manu Sharma and 2/3 of his friends. In respect of the question
whether it would be possible for him to identify those 2/3 persons who were
accompanying accused Tony Gill, PW-1 has pointed out Alok Khanna, accused-Manu
Sharma and Tony Gill. We shall separately discuss about the Test Identification
Parade and the validity of desk identification during time in the latter
incident, he narrated that "After about 15/20 minutes i.e. about 1:45
a.m., I heard noise from Tamarind Cafi and I heard somebody saying Jessica was
shot. At that time I was present in Tamarind Court and I was talking to my
friend Arash Aggarwal. After hearing the shouts about Jessica having been shot,
I rushed towards Tamarind Cafi. I could not go inside where the incident had
taken place but I peeped and saw Jessica lying on the floor. At that time,
there were about 70/80 persons gathered all around i.e. near the gate of
Tamarind Cafi i.e.
of Tamarind Cafi."
further informed the Court - "......discussion was going on as to who had
done this and it was also being discussed that the culprit was wearing 26 blue
denim jeans and white shirt and was fair and was little short in height then I
assessed that he was the same person who had come to me to arrange drinks for
him. I had told the police in Apollo Hospital that it was Manu Sharma who was
with the similar description as was discussed amongst friends on which police
had told me that they would call me."
scrutiny of PW-1's evidence clearly shows that Jessica Lal was friendly with
him having known him for 5- 6 years. He also went to the house of parents of
Jessica Lal twice i.e. on 30th April and 1st May 1999 to pay condolence.
Further, in categorical terms, he asserted and identified the presence of Manu
Sharma at the scene of offence. Since he had contact with a person having fair
complexion with smiling face/Manu Sharma, in the Court he correctly identified
both Manu Sharma and the tall Sikh gentleman as Tony Gill. He also identified
other persons who accompanied Manu Sharma and Tony Gill.
also clear from his evidence that at around 1.45 a.m., he heard a noise
emerging from Tamarind Cafi to the effect that Jessica Lal had been shot. It is
also clear that on hearing that Jessica Lal had been shot, he ran towards
Tamarind Cafi though according to him he could not go 27 inside yet peeped and
saw Jessica Lal lying on the floor.
High Court has accepted his evidence which was not acceptable by the Trial
Court, we analyzed his entire statement with great care. Mr. Ram Jethmalani,
learned senior counsel has pointed out that since PW-1's name does not figure
in the list of invitees prepared by George Mailhot PW-23 and Sabrina Lal PW-73
did not mention the name of Deepak Bhojwani PW-1 at Ashlok Hospital and of the
fact that the statement of PW-1 was recorded on 14.05.1999 submitted that,
first of all, he is an interested witness and his testimony is not acceptable.
his entire evidence, there is no reason to either suspect his evidence or
reject the same as unacceptable.
other hand, his evidence supported by other witnesses clearly proves the
presence of accused Nos. 1-4 at the place of occurrence. He asserted the
presence of Jessica Lal, Shyan Munshi and the claim of whisky by a fair
complexion man who exchanged niceties with him and introduced him as Manu
Sharma. We do not find any 28 valid reasons to hold that he is a planted
witness, though he was not an eye-witness to the actual shooting incident but
his own statement proves that immediately on hearing the noise he peeped and
noticed Jessica Lal lying on the floor of Tamarind Cafi. To this extent, the
evidence of PW- 1 is acceptable and the High Court has rightly believed and relied
on his version.
Munshi PW-2 In the year 1999, he was studying in Indian Institute of Planning
and Management at New Delhi doing his MBA Course. At that time, he was residing
at 15/16 H. Hauz Khas, New Delhi. He informed the Court that he was acquainted
to Malini Ramani through which he started knowing about Beena Ramani who is the
mother of Malini Ramani. He had visited Tamarind Cafi on the night of 29th
April, 1999. It was Thursday Night. He was attending the Party at that night.
Alcohol and food were being served there on paying for coupons. In categorical
terms he informed the Court that-- "I was attending the party there on
that night. Alcohol and food was being sold there on coupons. I had met Jessica
Lal on that night in the party. I had acquaintance with her from before. The
place where the party was going on was known as Qutub Colonnade Tamarind Court.
There was miniature bar counter outside in the open space where liquor was
being served. Besides Jessica Lal and Malini there were other few persons who
were helping in serving 29 liquor. On that night, I did go inside the Tamarind
Cafi. It might be 2 o'clock at that time, I mean 2 a.m. There were about 6-7
persons inside the cafi at that time. "
went inside the cafi primarily with a view to eat something as I was feeling
hungry and also nothing was being served outside. I found that Jessica was
inside. At that time, no other lady was there. I went behind the counter to get
something to eat. I managed to get pastry lying in the freeze and when I was
taking it, a gentleman with white tea-shirt came there. He asked the waiter to
serve him two drinks. The waiter did not pay attention to that gentleman and
became busy in cleaning up. Jessica was also there on the other side of the
counter and she told the gentleman that the party was over and there was no
alcohol to be served. At that time, that gentleman took out a pistol from the
dub of the pant and fired a shot in the air.
another gentleman on the other side of the counter, who fired a shot at Jessica
Lal and she fell down.
gentleman was also wearing light colored clothes."
present statement about "another gentleman"
a shot at Jessica Lal and she fell down was not the one earlier made to the
Police, after getting permission from the Court, the public prosecutor
cross-examined him. He stated-- "It is correct that Beena Ramani and other
lifted Jessica from the spot and carried her to the Hospital Ashlok.
there later. In the Ashlok Hospital, police came there and contacted me and
recorded my statement." ".....I reached the Hospital at about 3:30
a.m. and my statement was taken at about 3:45 a.m. or 4 a.m."
admitted that he was in Delhi for about a year or so and able to understand
spoken Hindi. He is aware of Beena Ramani as the proprietor of Qutub Colonnade.
analysis of the evidence of PW-2 shows that though he turned hostile but his
evidence shows that he had visited Tamarind Cafi on the night of 29.04.1999. He
also mentioned the presence of Manu Sharma. His evidence further shows that
immediately after the shot Beena Ramani and others were carrying Jessica Lal to
the Ashlok Hospital. In other words, his evidence proves the presence of
accused-Manu Sharma at the scene of offence.
extent, the prosecution relied upon his evidence and this was rightly accepted
by the High Court. Though, Mr. Ram Jethmalani submitted that High Court ought
to have accepted his entire evidence in toto, considering his earlier statement
to the police and his evidence before the Court, we are satisfied that the High
Court is justified in holding that even if his testimony is discarded, the case
of the prosecution hardly gets affected. As observed earlier his evidence amply
proves the presence of accused at the scene of occurrence at the time and date
as pleaded by the prosecution.
Malini Ramani PW-6 She is the daughter of Beena Ramani PW-20. She is a fashion
designer by profession. Her mother Beena Ramani owns a property near Qutub
Minar known as Qutub Colonnade. She explained to the Court that in the year
1999 they used to have parties in Qutub Colonnade and liquor used to be
consumed in these parties. On 29.04.1999, there was a party at Qutub Colonnade.
It was Thursday. It was a farewell party for her stepfather namely, George
Mailhot PW-24, who was going abroad for five months. She was at the Qutub
Colonnade on that evening. Jessica Lal was also there. Beena Ramani PW-20 and
Shyan Munshi PW-2, were also there.
to her, the party on that night was over by midnight. Approximately at about
1.45 a.m., she went with her friend Sanjay Mehtani to the restaurant to look
for something to eat. At that time, she had a drink in her hand. She found that
Jessica Lal, Shyan Munshi, her 32 electrician and couple of waiters were there
in the restaurant. She further deposed-- "We were standing there when
couple of guys went in.
about numbering four, may be five. I am not very sure about it. One of them
asked me could I have two whiskys. He was wearing jean and white t-shirt. He
was in his mid twenties. He was having fair complexion. His built was on the
plump side. I do not know if he had asked whisky from anybody else prior to
asking from me. When he asked two whiskys from me, I showed my inability saying
sorry, Bar was closed. Then he kept asking me and Jessica for drinks, but we
kept on saying that the bar was closed and whisky could not be served."
he said that he had cash to pay for drink. I said it did not matter. I could
not give sip even for thousand rupees it being not available. Then he said O.K.
could I have sip of you for thousand rupees. Then at that point of time, I just
left the room because I was irritated about the whole incident. Sanjay Mehtani
and myself walked out together.
walked out, I crossed my mother in courtyards as I was walking out. Again said,
I crossed my mother, she was walking towards the restaurant. I went to the
passage way where the shops were located. It was on the other side of the
courtyard and I was standing next to speaker (amplifier).
about a minute and a half/two minutes, Shyan Munshi came running to me and
Sanjay Mehtani and he was screaming that Jessica had been shot. I just passed
out after hearing about it and fainted. I can identify that person, who had
asked drink from me and who was wearing jean and t-shirt. Witness has pointed
out towards accused Siddhartha Vashisht @ Manu Sharma and said that he just
look like him. I had seen this accused in the police station on 8th May. I had
gone there as I was arrested in a case under Excise Act."
Are you certain that the person to whom you had just identified was the same
person who had asked drinks from you and was wearing jean and T- shirt?
Answer:- I am sure he is the same person."
PW-6's testimony, Mr. Ram Jethmalani criticized the question put by the public
prosecutor which according to him is not permissible. It is relevant to point
out that before considering her answer that "I am sure he is the same
person", we have to see her statement in the previous paragraph. She
identified Manu Sharma who had asked drinks from her who was wearing Jean and
T- shirt. It is also relevant to note that she pointed out towards the accused
Manu Sharma and said that "he just looked like him." As rightly
pointed by learned Solicitor General, the above mentioned question by the
public prosecutor is in addition to the earlier ones relating to identity of
the person who was wearing jean and T-shirt and who asked for drinks. It is
relevant to note that PW-6 is not an ordinary person and it is not the case of
the defence that she is an illiterate, unable to understand what she said to
the earlier questions. We have already noted that she is a fashion designer by
profession. In other words, she is highly qualified and it is not her 34
grievance that she was unable to understand her earlier answers. In such
circumstances, we are unable to appreciate the objection of Mr. Ram Jethmalani.
On the other hand, it is clear from the evidence of PW-6 that the accused Manu
Sharma was very well present at the scene of offence and she correctly
identified him. Further, as rightly observed by the High court, though she was
not an eye-witness, she is certainly a witness identifying Manu Sharma along
with 4 or 5 persons present at the Tamarind Court who asked her for whisky and
later misbehaved with her. We agree with the observation and the ultimate
conclusion about PW-6 reached by the High Court.
Ramani PW-20 She is the wife of George Mailhot PW-24. She is a Fashion
Designer. She purchased the property near Qutub Minar at H-5/6 Mehrauli Road,
New Delhi in the year 1995.
property is being used as a Shopping Arcade and a Restaurant. The Shopping
Arcade is known as "Qutub 35 Colonnade". The name of the Restaurant
was "Tamarind Court Cafi". She had a proper license for eating house
in the aforesaid complex. The license for the restaurant was in the name and
style "Once Upon A Time". She admitted that the license of eating house
was not valid beyond one year. She has two children namely Malini Ramani and
Geetanjali. In 1999, her daughter Malini Ramani was assisting her in running
the restaurant. On Thursdays, there used to be special private parties where
guests could come by invitation. Alcohol was never served in the Restaurant but
were served only in the courtyard on Thursday Parties. She further deposed--
"I knew Jessica Lal, Shyan Munshi. We had a proper staff to run the
Restaurant and occasionally any of our friends could reach out and help the
Lal and Shyan Munshi were friends of my daughter Malini and were helping her on
date was 29th of April, 1999. On that night, apart from the normal Thursday
Party, I had also organized a special farewell party for my husband who was
leaving in two hours time for a World Trip. The party was over by 1 or 1:30
a.m. This Thursday Party and special party was organized jointly and was being
held in the courtyard and on the roof top. After the party was over, I was
anxious to clean up the place and relieve the waiters etc. so that they may
take up duty next morning properly. There were few guests left in the courtyard
and I also spotted some guests in the Restaurant where nobody was supposed to
be. I walked towards the Restaurant. When I was walking, towards restaurant I
ran into Malini. I mounted the steps of the 36 restaurant. I saw a few people
standing next to the counter and I heard a shot. A moment later, I heard
Lal was standing with people at the far end and I saw her falling down. There
was a door to my right. It could be swung open and Shyan Munshi came out with
another person who was either ahead of him or behind him. Shyan Munshi said
that Jessica Lal had been shot. I told Shyan Munshi to call the Police or
doctor or ambulance and I stopped the man accompanying them. There was
commotion. All the people who were with Jessica Lal earlier, started coming
out. The companion of Shyan was wearing white T-shirt. He was chubby and fair
and I asked him as to who he was. "Why are you here and why he shot
Jessica Lal. I also asked him to give me his gun. I thought he might be having
a gun." He said that it was not him. I asked him again and he kept quiet
and shaking his hand that it was not him. As all others were leaving,
therefore, the companion of Shyan also shoved me aside and went out. I ran
after him. Again said behind him. All the way to the front gate of the main
building. He was a few steps ahead of me and I could not catch him. In the
meantime, I was shouting instructions to the guests to call Hospital or to take
Jessica Lal. I reached the gate my husband was standing there and I told him
that this was the man who had shot Jessica Lal and to see in which car he gets
person who was told to be seen by my husband was with some friends at the time
of occurrence inside the cafi. I think that I can identify the person whom I
had tried to stop and talked to. After taking sometime and examining the
accused over and over again, the witness has pointed towards accused Sidhartha
Vashisht @ Manu Sharma and when asked to touch him, she touched him."
identified the other persons who were with Manu Sharma, though she has not
mentioned the name of persons but on the instructions of the Court she has
touched those persons named by the Court. She further informed-- 37 "About
a week later, at the Police Station, the name of which I do not remember, I saw
that person. I saw Manu Sharma".
analyze her evidence along with the sketch/map of the occurrence, when she
mounted steps of the restaurant, she heard a shot, a moment later, she heard
another shot. It is also relevant to note that she mentioned that Jessica Lal
was standing with the people at the far end and she saw her falling down. She
also informed that Shyan Munshi PW-2 said that Jessica Lal had been shot. It is
relevant to point out that she was shouting to the guests to call the Doctor or
to take Jessica Lal for treatment, she reached the gate where her husband was
standing and she told him "that this was the man who had shot Jessica Lal
and to see in which car he gets into". If we read her entire evidence she
refers only Manu Sharma. She also correctly identified the presence of other
accused persons, namely, Amardeep Singh Gill, Alok Khanna and Vikas Yadav. Her
evidence remained unchallenged, though the Trial Court discarded her 38
evidence as she was not an eye-witness to the occurrence but accepted that she
is a witness to the presence of Manu Sharma, Amardeep Singh Gill, Alok Khanna
and Vikas Yadav at the Qutub Colonnade. We have already quoted her own
statement namely "I saw a few people standing next to the counter and I
heard a shot, a moment later I heard another shot. Jessica Lal was standing
with people at the far end and I saw her falling down." It is also
relevant that on noticing Shyan Munshi she asked him "Why are you here and
why he shot Jessica Lal?". Her statement clearly proves the prosecution
case that she had herself seen Manu Sharma shooting Jessica Lal. As rightly
observed by the High Court, if the evidence of Beena Ramani is analyzed in
depth, it is clear that she not only asserted the presence of Manu Sharma at
the scene of occurrence and heard two shots one by one but also asked a
pertinent question to Shyan Munshi that why he (Manu Sharma) shot Jessica Lal.
Whether she has to be treated as an eye-witness to the occurrence or not is to
be 39 discussed at later point of time by analyzing her entire evidence.
However, for the limited purpose of proving the presence of accused at the
scene of offence, her evidence fully supports the case of the prosecution.
Mailhot PW-24 He is a Canadian citizen and according to him, he has been
residing in India since February, 1992. Beena Ramani PW-20 is his wife. Her
business premises were at H-5/6 Mehrauli Road, New Delhi. This complex was
popularly known as "Qutub Colonnade". It had a number of shops and a
restaurant. The licence of eating place was in the name of Beena Ramani. He was
also involved in the said business for several years before the date of
occurrence. Several parties were arranged and last Thursday Party was held on April
29, 1999. On that day, he was leaving for World Trip for a few months, partly
that was the occasion for that party. At the instance of the police, he
prepared a list of guests who were invited in that party and gave the list to
the police which was signed 40 by him on 22.05.1999. It is Ex. PW24/A.
According to him, time of occurrence might be around 2 AM. At that time he was
standing in the courtyard near a large tree which is in the middle of the
courtyard. This must be about 20 ft. away from the door of the restaurant. He
was facing opposite side of the entrance door of the restaurant and then I
heard two pop shots like balloon. I turned towards the restaurant door from
where I had heard the sound and within a few seconds Shyan Munshi came running
and said to me someone shot Jessica. I immediately went to the restaurant. When
I reached the door of the restaurant I saw some people to my right to my left
and ahead of me. Ms. Beena was moving at a place which may be described as ahead
of me towards the left side. Beena was addressing a young man who was moving,
someone whom I had not seen before. This person was moving around and Ms. Beena
Ramani was following him and saying that you are the one give me the gun. I
could see everyone present there watching that person who was being addressed
to by Ms. Beena. The young man said that why everyone was looking at him that
he did not do anything. Then I saw Jessica lying on the floor with her head
towards my feet, almost near my feet. Jessica was looking quite in pain and not
moving and there was no sign of blood. Then I saw another man standing at the
door. At that time, about 2/3 people were ahead of me and are by my side in the
restaurant. I was focusing on the danger point. The young man whom I saw at the
door was a beard person i.e.
He was the only one present there who was keeping/maintaining calm. Thereafter,
I went to the gate of Qutub Colony leaving others in the restaurant, in search
of Police man. I ran out and went into the street there was no one there. While
I was in the street a number of people came up to the gate of Colonnade
walking. There was a bunch of them that is a first person behind him a second
person and then behind them many persons they were walking very rapidly. The
first person was the one whom I had seen in the restaurant and whom Beena had
accosted 41 and asking for the gun. Right behind him or directly behind him was
Beena. I focused only on first person or Beena I did not notice the
believe I can identify that person who had come out first and was being
followed by Beena. The witness touched Siddhartha Vashist as the person who was
being followed by Beena."
evidence makes it clear that at the relevant time on hearing the shot, Shyan
Munshi PW-2 came running shouting that someone shot Jessica. He reached the
door of the restaurant. It is also clear that Beena Ramani PW- 20 was moving at
a place ahead of him towards the left side. This witness subsequently stated
that Beena Ramani was addressing a young man who was moving with someone. He
also identified the person who had come out first followed by Beena and he
touched Manu Sharma as the person who was being followed by Beena.
rightly pointed out by learned Solicitor General, his evidence also proves the
presence of the accused-Manu Sharma at the scene of offence.
Rouble Dungley PW-23:
evidence, he admitted that he had told the police that he saw Beena Ramani
going after a boy. In his deposition, he mentioned that:
is correct that I had told the police that I saw Beena Ramani going after a
boy. But I do not remember whether I had told the police that the said boy was
a fat boy. It is correct that I had seen Beena Ramani going there Vol. I had
seen her from a distance. It is correct that I had told the police that Beena
Ramani was saying "Stop that Man"... "I heard that Jessica had
Ramani was actually running in the courtyard area shouting catch that man,
catch that man, stop him or something like that pointing towards the exit and
running behind someone. I saw the person being pointed out by Beena Ramani but
I did not know him. Again said I did not see that person, being pointed out by
Beena Ramani from face."
statement makes it clear that after the shooting incident Beena Ramani was
running behind a man shouting "catch that man"
evidence of above mentioned witnesses, namely, PWs 1, 2, 6, 20, 23, 24 and 70
which are all admissible in evidence clearly show the presence of accused
Sidhartha Vashisht @ Manu Sharma at the scene of offence. This evidence of the
ocular witnesses is duly 43 corroborated by Ex PW 12/D-I, the wireless message
received at PS Mehrauli.
addition to the evidence of the above mentioned witnesses, who were present at
the party, the presence of appellants is also proved by other evidence, namely,
3 PCR calls Ex PW 11/A, B and C which were received. The evidence of PWs 11, 12
and 13 clearly proves that immediate and prompt action was taken.
Devi Singh PW 83 --- In-charge of PCR Van:
reached the scene of occurrence within two minutes at around 02.17 a.m. and
reported back at 02.35 a.m. It is relevant to refer the message received that
is Ex PW 12/D-1 which states:
E-43 (PCR Van), A party hosted by Malini and Beena was going on in Qutub
Colonnade Hotel situated at the road which leads towards Mehrauli where a
person had demanded whiskey from Jessica Lal but she (Jessica Lal) said that
the restaurant had already been closed. At this the aforesaid person had fired
shot at Jessica Lal, which had hit her on her chest. Jessica Lal has been
admitted in Ashlok Hospital, Safdarjung Enclave and the person who had fired
shot has fled from there."
person has fled after firing (at someone) 35 years, stout body 5' 4" R/F
fat, T-Shirt of white colour. All the persons will search him".
44 Ex. PW
12/D-1, a contemporaneous document, clearly corroborates the testimony of
ocular witnesses which we have already mentioned in the earlier paragraphs.
From the evidence adduced, it is clear that the appellants- accused Nos. 1-3
were present at the scene of occurrence.
without setting up a plea of alibi to show their presence elsewhere, they have
flatly denied their presence.
It is the
stand of Mr. Ram Jethmalani, learned senior counsel for the accused that the
police deliberately framed Manu Sharma as an accused and made out a false story
against him concealing the actual offender who is a tall Sikh gentleman and on
this made up theory witnesses from the same family who were vulnerable were
made to depose in favour of the prosecution. In an answer to the said question,
it was pointed out that apart from the testimony of HC Devi Singh PW-82, PCR
in-charge, read with Ex. PW-12/D-1 clearly prove the case of the prosecution.
It is relevant that the said witness reached around 02.17 a.m., on a message
from PCR to PS 45 Mehrauli takes around 10 minutes as from local PCR it goes to
headquarter from where it is transmitted to concerned district net which
further transmits it to the local police station. In this way, around 02.25
a.m., even before the local police had arrived at the spot HC Devi Singh PW-83
had sent the version available at the spot.
prosecution placed specific reliance on the same. In the absence of rebuttal
evidence, there is no reason to reject the evidence of PW-83 as well as Ex.
PW-12/D-1. In those circumstances, the entire premise of the defence argument
that it was not a person in white T-shirt, stocky and fair, who shot at Jessica
Lal over a row over the drink and fled away from the spot and this was a
planted and concocted story of the prosecution to rope in Manu Sharma and make
escape good of the tall Sikh gentleman is wholly erroneous and without any
of evidence throwing light on the actual incident:
16) It is
the stand of the defence that the testimony of Madan Kumar PW 46 and Jatinder
Raj PW-47 belies the 46 fact that Beena Ramani PW-20 had seen actual shooting
as the witness says that they both entered together.
Kumar PW 46 worked in Qutub Colonnade in April, 1999 as a waiter. In his
evidence, he informed the Court that:
day of occurrence was Thursday. The occurrence took place at about 1.30 or 1.45
AM. At that time, I saw some people rushing in and some people rushing out of
the restaurant and they were shouting "GOLI LAG GAI", "Jessica
Lal KO GOLI LAG GAI".
Jessica Lal before the incident, Jatinder Raj was the Manager of the
restaurant. I was coming downstairs, and on hearing the noise, I went to
restaurant. I saw Jessica Lal, lying on the floor. Some guests, Beena Ramani
and Jatinder Raj were present there. Two - three other workers were also
present, but I do not remember their names. Beena Ramani made a telephone call.
Thereafter, Shiv Dass brought a sheet of cloth. Jatinder Raj, Beena Ramani and
I wrapped the said Jessica Lal in the bed-sheet. We took/carried her to an
Esteem Car, parked outside. Beena Ramani, Jatinder Raj and I also sat down in
the Car. There was a driver in the car. We left and reached Ashlok Hospital.
Jessica Lal was removed on a stature for medical treatment. I returned to the
restaurant at about 3/3.15 a.m. Police met me there in the Restaurant."
Raj and Beena Ramani were already, near Jessica Lal, when I reached there. I
did not see Mr. George there, at that time. George had left at about 12.30 or
12.45 a.m. from there. When I saw Jessica Lal lying on the floor, I also saw
that she had some injury on the left forehead, from which blood was coming out.
There was also blood on the floor, where Jessica Lal was lying."
Jitender Raj PW 47 was working as a Manager-cum- Supervisor. He used to check
the supplies, cash and 47 sanitation. A system of "Thursday Parties"
had been started in Qutub Colonnade. The occurrence took place on such 3rd or
4th party on 29.04.1999. It was a Thursday.
food was served but on Thursdays liquor was also being served. The supply of
articles through coupons was made in the open space. The party, on 29.04.1999
was over at about 12.30 a.m. and he told the waiters to clean up the place. He
was counting the cash and tallying the same. He narrated further:
time might be 2 AM. I heard the firing of two shots, and the noise of firing
had come from the side of cafi.
the gate of my office, which I had closed, before counting the cash etc. I saw
from that gate of my office that people were coming in and going out. At that
time, I saw Beena Ramani on the stairs of cafi. I rushed towards her and we
both went inside the cafi. We saw, Jessica Lal lying on the floor, near the
counter. Shiv Dass, Madan Lal, Surender and Wiplub, members of the staff and
one-two guests also reached the spot. There was scratched on the forehead of
Jessica Lal. Shiv Dass PW-3, brought a bed- sheet. We wrapped Jessical Lal in
that bed-sheet. Shiv Dass is an electrician in Qutub Colonnade. We removed
Jessica Lal in a car to the Ashlok Hospital. Mrs. Beena Ramani, Madan Kumar,
waiter, myself and driver were in that car, apart from Jessica Lal."
came out of my office, immediately, after hearing the shots of firing. I saw,
`AFTRA TAFARI' at the gate of cafi after coming out of my office. At that time,
I saw Beena Ramani on the steps, to which I have made reference. By the time
Beena Ramani reached the gate of cafi. I reached there, by running."
The analysis of evidence of PWs 46 and 47 shows that when PW-47 heard the noise
of the shots he was in the office counting cash and after hearing the noise of
firing he opened the gate of his office which he had closed at the time of
counting the cash. He saw from the gate of his office that people were coming
in and going out. At that time, he saw Beena Ramani on the steps of the cafi,
he rushed towards her and they both went inside the cafi.
clear from the testimony of this witness that he was inside his office counting
the cash when he heard the shots, thus after taking care of the cash when he
opened the gate he saw people coming in and going out, which means that his act
of coming out from the office is considerably after and not immediately after
the shots were fired and, therefore, he saw people running back and forth
whereas Beena Ramani PW-20 has stated that when she mounted the steps of the
restaurant she saw a few people standing next to the counter and heard a shot.
A moment later she heard another shot. Jessica Lal was 49 standing with people
at the far end and she saw her falling. It is pertinent to note that as per the
scaled site plan, the point at which Beena Ramani PW-20 was standing was only
four feet from the point at which the shot was fired at Jessica Lal. Therefore,
it can never be alleged that there was no way in which the said witness could
have had any doubt as to the identity of Manu Sharma. Thereafter, she accosted
Manu Sharma till the gate of Qutub Colonnade where she told George Mailhot
PW-24 that this was the man who had shot Jessica Lal and that he should see in
which car he i.e. Manu Sharma gets into and after that Beena Ramani PW-20 came
back to the spot. It is when she came back to the cafi this witness PW-47
joined PW-20 entering the cafi, thus the testimony of this witness does not
negate the fact that PW- 20 witnessed the incident. It is relevant to mention
the very fact that PW-20 followed the appellant is a clear indication of the
fact that she was more than certain that he was the culprit responsible for the
crime, and, 50 therefore, she did not chase anybody else as the person who was
having the gun. It has to be borne in mind that Beena Ramani had no enmity with
the appellant-Manu Sharma and also the whole theory of planting of witnesses at
the instance of the police is false since the accused has not led any defence
evidence or brought on record any evidence to suggest that the investigation
was motivated by mala fide.
was argued by the defence, since PW-47 in his cross examination has stated that
Beena Ramani PW-20 stated to him as to what had happened and who had done it,
an inference has to be drawn that she did not witness the incident. As rightly
pointed out, the above statement does not lead to the inference that Beena
Ramani PW-20 did not witness the incident rather it could further reinforce
what she had witnessed. Even otherwise, admittedly, thus, Beena Ramani was
available she was not recalled to confront her with the testimony of PW-47. In
51 those circumstances, the defence cannot take advantage out of a portion of
statement of PW-47.
20) It is
relevant to mention that Madan Kumar PW-46 also stated that when the occurrence
took place he was present on the stairs leading to terrace and that time he saw
people rushing in and some people rushing out of the restaurant who were also
shouting "Goli Lag Gai, Jessica Lal Ko Goli Lag Gai". He came
downstairs after hearing the noise and went to the restaurant, thus it is
evident that this witness did not hear the shots of the fire but only realized
about the occurrence after people were rushing in and rushing out shouting. A
perusal of the testimony of PW-46 reveals that when he came down, PW-20 was
already there. Thus PW-46 is not in a position to say as to what PW-20
witnessed. It may be further pointed out that the stairs leading to the terrace
are not on the cafi but on the main building of Qutub Colonnade which houses
the shops beyond the verandah and Tamarind Court. Hence, the testimony of PW-46
cannot negate the evidence of PW- 52 20 that she witnessed the incident. It is
submitted that the mere absence of Beena Ramani PW-20 in the site plan also
does not negate her presence or her having not witnessed the incident,
specifically when she had given her statement to the police under Section 161
CrPC on 30.04.1999, itself.
Ram Jethmalani, learned senior counsel, by drawing our attention to Ex PW 21/A,
which is a site plan and Point B is the approximate place where the deceased
was shot, argued that it was impossible for PW-20 (Beena Ramani) to have seen
the actual shooting, since they both entered together and PW-47 came in after
the shot was fired. In other words, it was argued that PW-20 only saw the
"fallen woman" and it is incorrectly written "falling"
is not the person who saw the incident. We meticulously verified the site plan
as well as the evidence of PWs 20, 46 and 47. The absence of PW-20 in the site
plan does not belie her presence and her having witnessed the incident
especially when her statement under Section 53 161 Cr.P.C. was recorded on
30.04.1999 in the morning itself. It was pointed out by the prosecution that
she was neither contradicted nor confronted with her statement under Section
161 Cr.P.C. as she firmly stood to her statement in the witness box.
Ram Jethmalani, further submitted that due to the pressure by the prosecution
for registering a case under the Punjab Excise Act against Malini Ramani PW-6,
Beena Ramani PW-20 and George Mailhot PW-24, virtually, they were pressurized
to yield to the case of prosecution. While stoutly denying the said allegation,
Mr. Gopal Subramanium, submitted that the registration of case under the Punjab
Excise Act has nothing to do with their evidence in the case of death of
Jessica Lal. He also submitted that ultimately they were fined, the said action
cannot be construed as a threat to them or keeping the sword hanging for taking
action either under Section 201 IPC or the Punjab Excise Act. It was pointed out
by the learned senior counsel for the appellant that Malini 54 Ramani PW-6
during her statement admitted that her mother Beena Ramani was accused of
having removed the blood from the spot. PW-6 further admitted that during the
first five days of May, 1999, the interrogation of three of them "PWs 6,
20 and 24" was very intense. She also stated that for quite long hours
they were kept in the Police Station and they were used to be subjected to
prolonged interrogation in the Jessica Lal's case as well as in other Excise
Act case. It is true that SHO S.K. Sharma PW 101, admitted that the FIR in the
excise case was lodged against the above said three persons. It was also
highlighted that all the three were arrested in the excise case on 08.05.1999
which was pending in the Court of Metropolitan Magistrate, New Delhi. In that
case, application on behalf of Beena Ramani and George Mailhot was moved for
seeking permission to go abroad for treatment of Beena Ramani alleging that she
is a cancer patient. Mr. Jethmalani argued that notice of which was given to
the State and instead of filing reply by the State 55 counsel PW-101, who
appeared in person, vehemently opposed on the ground that their presence may be
required during the investigation of FIR No. 287 of 1999 for filing additional
charge-sheet including the issue of cleaning of blood. Ultimately, the
Metropolitan Magistrate rejected their application for permission and they were
not allowed to go abroad because of the reason that their presence may be
required for filing additional charge-sheet in FIR No. 287 of 1999. By pointing
out the above information, it was argued by the learned senior counsel that the
investigation agency had been pressurizing these witnesses to toe their line in
their deposition in the present case, but PW-20 was not made as accused under
Section 201 in the present case because they had agreed to toe the line of the
prosecution but this sword was kept hanging on them to ensure that the entire
family members i.e. PWs 6, 20 and 24 continue to toe the line of prosecution.
All the allegations have been stoutly denied by the prosecution. It was
submitted by the prosecution 56 that the statement of S.I. Sunil Kumar PW-100
is inadmissible on the ground that it is sought to be used as opinion evidence
and, therefore, hit by the rule against hearsay evidence. Even if it is held to
be admissible, it was pointed out that Beena Ramani was right in saying that
statement of Shyan Munshi should be recorded because Shyan Munshi was inside
the cafi and had witnessed the entire incident including conversations which
occurred prior to the incident. It was further pointed out that the statement
of Beena Ramani to this effect which she also deposed before the trial Court
was recorded on the same date i.e. on 30.04.1999 that too in the morning
itself. In her statement, before the Court PW- 20 Beena Ramani had clearly
stated "at the hospital, the police met me. The report about the incident
was lodged in my presence by Shyan Munshi." In view of the same it was
submitted that because PW-20 told PW- 100 to ask PW-2, it does not mean that
she did not know anything, since her statement was recorded on the same 57 day
soon after the statement of Shyan Munshi to which statement she stuck even in
her testimony before the trial Court.
has been vehemently argued that PW-20 is not an eye witness since both
Investigating Officers i.e. PWs-100 and 101 admitted the same. It was submitted
by the State that this argument runs counter to the well settled proposition of
law that a witness cannot be discredited without the said piece of the
testimony having been put to her. The accused had a statutory option available
by way of Section 311 of the Code to call PW-20 for the purposes of further
examination. This argument of the defence also runs counter to their own
argument used to discredit the investigation that PW-6 was placed in the
`rukka' by the Police for the purposes of being shown as an eye-witness.
part of the testimony of PWs-100 and 101 are at best in the nature of opinion
evidence which are inadmissible pieces of evidence and for the aforesaid 58
reasons cannot wipe out the unchallenged testimony of PW-20, which is the case
of the prosecution.
Further, the appellant-Manu Sharma has also been clearly identified by Malini
Ramani PW-6 as the person in the White T Shirt who had asked for whisky and
thereafter on her refusal to oblige, he misbehaved with her in the most vulgar
was argued that PW-6 could not have seen anything since she was on the other
side of the Colonnade and that the prosecution in fact planted her into Ex.PW-
2/A i.e. the `rukka' prepared at the instance of Shyan Munshi as an eye
witness. It has been reiterated that all the three key witnesses are planted
witnesses who have deposed under pressure of false implication. It has been
further argued that the deposition of PW-6 that she entered the bar for a drink
is improbable as she knew that the drinks were over. It is contended by the
defence that PW-6 did not say that she heard the gun shots since she was
inebriated, which further supports the fact that she 59 could not identify
anybody else. Her statement that there were four or five guys at the spot is
also not corroborated by Deepak Bhojwani PW-1. The Prosecutor has put a leading
question to her as to the identity of the appellant and, therefore, the said
question and answer should be expunged from the record. The Police recorded a
couple of her statements but the defence was not supplied with all of them. In
any case the photo of the appellant was shown to her even prior to his refusal
of the Test Identification Parade. It was pointed out that these contentions
are totally erroneous and contrary to the record. It is pertinent to note that
FIR No. 288 of 1999 at PS Mehrauli under Excise Act was registered on 30.04.99
itself and thus the question of making her an accused on 08.05.99 does not
arise. Moreover, the excise offence is a bailable offence. Further, the
statement of Malini Ramani was recorded under Section 161 Cr.P.C. on 03.05.99
itself vide Ex PW 6/DA and thus the contention of making her an accused on
08.05.99 on this count is also fallacious.
60 26) As
regards the argument that Malini Ramani PW-6 was shown as an eye-witness to the
incident of shooting in the `rukka', a perusal of the same reveals that at no
point of time Shyan Munshi, PW-2, stated either in the positive or the negative
that PW-6 was or was not there when the shots were fired. In any case, as
rightly pointed out on the side of the State that the alleged prosecution
planted PW-6 as an eye-witness goes contrary to all reasoning, since on
30.04.1999 at the time of recording the `rukka', none of the witnesses had
disclosed the identity of the appellant - Manu Sharma, therefore, to allege
that the Police had planted the witness is wholly incorrect.
regards the argument that PW-6 was under the influence of alcohol, therefore,
could not have identified the appellant - Manu Sharma, is also wrong since she
clearly stated in her testimony, particularly, in cross- examination, that she
had consumed only one drink.
argument that deposition of PW-6 as regards the presence of other accused, does
not find corroboration 61 from the testimony of PW-1 is incorrect since the
said witness categorically mentioned the presence of other accused. The
grievance that the identification of the appellant-Manu Sharma was based on a
leading question is also wrong since even before the alleged leading question
was put to the witness, the witness, PW-6 had positively identified the
appellant - Manu Sharma by specifically pointing out and stating that he just
looks like him. It was explained by the State that the appellant was not
personally known to the said witness or her family and, therefore, the manner
of identification in the present case wherein the present witness by pointing
out towards him stated that he just looks like the man she saw at the party is
most conclusive and reliable. Further the argument of her having been shown the
photo her identification is of little value since her statement that she saw
the photographs prior to 05.05.1999 is most wavering and unclear. In the same
manner, she has deposed that photos were also shown to Beena Ramani PW-20 and
62 George Mailhot PW-24 is of little value since neither PW- 20 nor PW-24
stated that they had been shown the photos of the accused in spite of having
all the opportunities failed to confront the said witnesses with the said part
of PW-6's testimony. Based on the statement of Rohit Bal PW-70, that he saw her
screaming out, the defence has sought to discredit PW-6's, statement. It is
relevant to note that it is the case of PW-6 that she came to know when she was
in the courtyard, Shyan Munshi came running towards her and Sanjay Mehtani,
screaming that Jessica Lal had been shot. Thereafter, PW-6 fainted, thus, in
the process, if PW-70 saw her screaming in the courtyard, it cannot be said
that there is any contradiction in the statement of PW-6 and PW-70.
was pointed out by the defence that the firing was not over a drink, the act to
refuse supply of liquor was not the motive to murder Jessica. After perusing
the evidence of PW-6, it is clear that after refusal of the drink, the
appellant-Manu Sharma misbehaved in the most vulgar 63 fashion. The testimony
of PW-23 further corroborates the testimony of PW-6. As rightly pointed out by
the State that it was a case where the deceased Jessica Lal was murdered for a
row over the drink.
was also pointed out on the side of the appellant- Manu Sharma, that the evidence
of Malini Ramani, PW-6 and George Mailhot, PW-24 does not corroborate the
statement of Beena Ramani, PW-20. In this regard, it is relevant to note that
these three witnesses have deposed on three different situations in the chain
of circumstances. The evidence of these three witnesses, if read in whole in
conjunction and in harmony with each other, would show the chain of
circumstances of evidence leading to only one inference. It was highlighted by
the defence that PWs 46 & 47 stated that they did not see PW- 24 after the
party was over at 12.30 a.m. By saying so, it was contended that PW-24 was
never there at the time of the alleged incident. It was also contended that
PW-24 reached the Mehrauli police station at around 2.25 a.m.
whereas if the story of the prosecution is true then he should have reached
around 2.10 a.m. It is relevant to mention that PW-24's statement was recorded
on the same day i.e. 30.04.99. The presence of PW-24 at the time of incident is
also supported by the testimony of ASI Kartar Singh PW-13, who deposed that a
person bearing the description of PW-24 came to the Police Station to report
about the firing incident, which fact corroborates the testimony of PW-24 that
he went to the Police Station.
urged by Mr. Ram Jethmalani that Rohit Bal PW-70 was a witness who have been
examined first as his telephone number appears on Ex. PW-12/D1 which are the
PCR messages. It was clarified that in the PCR only the mobile number was
recorded. Further on receipt of information, police officers immediately
reached the place of occurrence and came to know that the deceased had been
taken to Ashlok Hospital. SI Sunil Kumar, PW-100 reached Ashlok Hospital and
made enquiries from PW-20 who directed him to take the statement of Shyan Munshi
65 as he was present at the bar counter and conversant with everything. The
prosecution has explained that in view of the statements of the eye-witnesses
having been taken immediately at 03.40 a.m. on 30.04.99 itself on the basis of
which FIR was registered and number of other investigation processes like
post-mortem, site plan etc.
immediately thereafter search for Tata Safari, ownership of the alleged
vehicle, search for Manu Sharma in the case being made, as such even if there
is delay in recording of statements of other witnesses, it cannot be fatal to
the prosecution case. The said claim of the prosecution cannot be rejected as
the earlier part of our judgment, we have noted that PW-20 has categorically
stated that she heard the two shots, saw the people inside and Jessica falling
down, which shows that she had witnessed the entire incident as is evident from
the relevant portion of her testimony extracted in paragraphs supra. Malini
Ramani in categorical terms informed the Court about Manu Sharma 66 asking
about the whisky, his misbehaviour immediately before the shooting and also
identified the same person in white T-shirt asking for the whisky and
misbehaving with her as Manu Sharma. PW-6 further corroborates the testimony of
PW-20 and part testimony of PW-2 with regard to the presence of the accused
Manu Sharma. The scrutiny of the entire evidence of PW-6 clearly shows that her
evidence is not only relevant but also admissible.
Coming to the cause of death, Dr. R.K. Sharma PW-9, who conducted post-mortem
on the body of deceased Jessica Lal has stated that on 30.04.1999 at about
11:20 a.m. 7 sheets of papers i.e. inquest papers, request of post-mortem,
inquest report, copy of FIR, brief facts of the case, were submitted to him
along with the dead body. He informed that the cause of death to the best of
his knowledge and belief was head injury due to firearm, injury was ante-mortem
in nature. He also deposed that Injury no. 3 was sufficient to cause death in
the ordinary course of nature.
Coming to the evidentiary value of PW-2, on behalf of the defence, it was
stated that PW-2 is not a reliable witness in view of the fact that according
to him he made his statement in English, however, SI Sunil Kumar recorded it in
Hindi. In the absence of any suggestion to the contrary, as rightly pointed out
by the counsel for the State that it must be presumed that PW-100 recorded the
statement correctly. It is also relevant to mention that in his statement as a
witness he said "I can understand spoken Hindi. Hindi was my third
language when I was studying in the seventh standard. I was never good in
Hindi." It is also pointed out that Shyan Munshi has acted in a number of
Hindi films. Even if a prosecution witness is challenged in cross-examination,
that part of his testimony which is corroborated by other witnesses or from
other evidence can clearly be relied upon to base conviction. Further it was
pointed out that PW-2 was under the influence of accused Manu Sharma as he was
accompanied by Mr. Ashok Bansal who had appeared as 68 proxy counsel for him
i.e. accused Manu Sharma in his bail application dated 06.03.2000. Thus,
reliance could have been placed only on that aspect of the testimony which is
corroborated by other evidence on record.
regard to the allegation that statements of PW-6, PW-20 and PW-24 were taken
under pressure as a case under Excise Act was lodged against them and when they
were to be examined, an application for pre ponement of the case was moved
where they pleaded guilty and fine of Rs. 200 was imposed on each. For this, it
was pointed out that there is nothing on record to suggest that PW-6 was
threatened or humiliated by the Police or that she would be implicated in a
case of destroying the evidence i.e.
of blood from the spot. In fact, PW-20 has denied the suggestion that she is
deposing falsely at the instance of Police. In the same way, PW-24 has also
denied the suggestion that a deal was struck between him and the investigation
agency to make a false statement, thereafter, the Excise case could be hatched
up. It is relevant to 69 point out that the case under Punjab Excise Act which
was registered as FIR No. 288/99 on 30.04.1999 has not been withdrawn by the
prosecution against the accused.
other hand, the fact remained that the accused had pleaded guilty. As rightly
pointed out by the State that on the quantum of sentence for an offence, the
prosecution has no role and it is the Court concerned which can impose
appropriate sentence considering the evidence and the role of the accused. It
was also highlighted that the charge was only under Section 68 of the Punjab
Excise Act to which all the three accused, namely, Malini Ramani, Beena Ramani
and George Mailhot pleaded guilty. The maximum penalty/fine under Section 68 is
Rs. 200, therefore, the maximum fine which could have been imposed on the
accused is Rs. 200. In those circumstances, the allegation that these three
witnesses were kept under pressure is not acceptable.
constitutes the First Information Report 35) Let us consider whether the three
telephonic messages received by the Police at around 2:25 a.m. on 30.04.1999 or
the statement made by Shyan Munshi recorded at Ashlok Hospital constitute the
FIR. It is the submission of the learned senior counsel for the appellant-Manu
Sharma that the statement of Rohit Bal PW-70 ought to have been used for the
purpose of registration of FIR instead of Shyan Munshi PW-2. It was
demonstrated that Rohit Bal had made two calls on `100' on coming to know by
other persons that Jessica Lal has been shot inside the cafi. As against this,
Shyan Munshi PW-2 was very much within the vicinity of the place of occurrence
and, therefore, the statement of Shyan Munshi was used for the purpose of
registration of FIR. It is relevant to point out that PW-70 has never claimed
to have witnessed the incident. He confirmed his presence on the spot and
having seen PW-20 accosting a man.
71 36) It
was further contended by the learned senior counsel for the appellant-accused
that PW-2 Shyan Munshi's statement could not be looked into as the same is hit
by Section 162 Cr.P.C. and on the other hand the defence seeks to rely on his
testimony. In support of the above claim, the learned senior counsel for the
appellant relying upon the judgments of this Court in State of U.P.
Bhagwant Kishore Joshi AIR 1964 SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR
1945 PC 18 contended that investigation of an offence can start either on
information or otherwise and that the receipt and recording of FIR is not a
condition precedent to the setting in motion of criminal investigation. Placing
reliance upon the said judgments, it has been further argued by the learned
senior counsel for the appellant that in the present case the three cryptic
telephonic messages received by the Police at around 2.20 a.m. on 30.04.1999
should be treated as FIR upon which the investigation started and, therefore,
the statement of PW-2 recorded by 72 the Police later on around 3.40 a.m. could
not be treated as FIR but a statement under Section 162 of Cr.P.C.
Insofar as the decision in Bhagwant Kishore (supra), it was noted in para 8 at
page 224 that the information received by the officer was not vague, but
contained precise particulars of the acts of misappropriation committed by the
accused and, therefore, the said information could be treated as FIR.
contrary, it is evident from the facts established on record in the present
case that none of the three telephonic messages received by police furnished
any detail about the offence or the accused. The judgment in Khwaja Nazir Ahmad
(supra) is also distinguishable as the law laid down in the said case does not
concern the issue involved in the present case. Cryptic telephonic messages
could not be treated as FIR as their object only is to get the police to the
scene of offence and not to register the FIR. The said intention can also be
clearly culled out from a bare reading of Section 154 of the 73 Criminal
Procedure Code which states that the information, if given orally, should be
reduced in writing, read over to the informant, signed by the informant and a
copy of the same be given free of cost to the informant. In the case on hand,
the object of persons sending the telephonic messages including PW-70 Rohit Bal
was only to bring the police to the scene of offence and not to register the
FIR. Learned senior counsel for the accused- Manu Sharma has also relied upon a
judgment of this Court in H.N. Rishbud & Inder Singh vs. The State of Delhi
(1955) SCR 1150 wherein this Court has held that investigation usually starts
on information relating to commission of an offence given to an officer
in-charge of a police station and recorded under Section 154 of the Code.
of the said judgment clearly shows that investigation starts on information
relating to commission of an offence given to an officer in charge of a police
station and recorded under Section 154 of the Code. By applying the ratio of
the said judgment to the case on 74 hand, it can be clearly said that the
investigation started after the recording of the statement of PW 2 as FIR
around 3.40 a.m. on 30.04.1999.
Learned senior counsel for the appellant also relied on judgment of the Gujarat
High Court in Mehr Vajsi Deva vs. State of Gujarat, AIR 1965 Guj 143. A perusal
of the said judgment shows that the details of the offence given by the
telephonic message in the said judgment clearly described that `one man was
assaulted by means of an axe at Sudama Chowk', on the other hand, in the case
on hand the telephonic message did not give any details of the offence or
accused and the same was a vague information. The said judgment should be read
per incuriam in view of plethora of judgments of this Court wherein it has categorically
held that cryptic telephonic messages not giving the particulars of the offence
or accused are bereft of any details made to the police only for the purpose of
getting the police at the scene of offence and not for the purpose of
Learned senior counsel for the appellant also relied on the judgment of this
Court in Superintendent of Police, CBI and Others vs. Tapan Kumar Singh, (2003)
6 SCC 175. In the said case, detailed information was given on telephone
including the offence and the whereabouts of the accused. On the other hand, in
the present case, as observed earlier all the three telephone calls barely
mentioned that a fire was shot and a girl was killed. The said information
could only be concluded to have been given to the police to get the police to
the scene of offence and not with the object of registering FIR. In those
circumstances, the judgment in Tapan Kumar Singh (supra) has no application to
the facts of the case on hand.
was further pointed out by the defence that Ex.P- 12/A wherein three PCR calls
were recorded is the real FIR and the statement of PW-2 which was taken during
investigation and got signed by him is not the FIR and is thus to be treated as
a statement recorded under Section 76 161 Cr.P.C. and is hit by the bar under
Section 162 Cr.P.C. This argument is unacceptable since as observed in the
earlier paragraph the telephone call from PW-70 was too cryptic to amount to an
FIR. At this juncture, it is useful to refer to the decision of this court in
the case of State of U.P. vs. P.A. Madhu, (1984) 4 SCC 83 wherein this Court
has not accepted a similar argument and held as under:-
begin with, it appears that there was some dispute about the dearness allowance
claim of the labour from the management which was referred to the Industrial
Tribunal. The respondent, who was the Secretary of the Union, was looking after
the case on behalf of the workers, while PWs 5 and 7 were the officers
appearing on behalf of the management before the Tribunal. The deceased, S.J.
Sirgaonkar, was Deputy Personnel Manager of the Bombay Branch of M/s Hindustan
Construction Company. He was shot dead by the respondent after he (deceased),
along with the other officers of the management, had come out of the Tribunal's
office at Meerut after filing their written statements. Thereafter one of the
eyewitnesses, S.K. Gui (PW 7) asked someone to give a telephone call to the
police station, which was nearby, on receipt of which the police arrived at the
spot, seized the pistol and took the accused and some of the witnesses to the
police station where a formal FIR was registered. The Panchnama was prepared
and other formalities were, however, done at the spot.
Das, DW 1 who was admittedly at the scene of the occurrence has stated that as
the shooting started, PW 7 had given a telephonic message to the police
station. The High Court by an implied process of reasoning has observed that if
PW 7 had given the telephonic message he would have mentioned the name 77 of the
assailant because he was a full-fledged eye- witness but since his name had not
been mentioned it is the strongest possible circumstance to discredit the
prosecution case. We are, however, unable to agree with this somewhat involved
reasoning of the High Court. In fact, DW 1 merely says that Gui telephoned to
the police station about the firing and said something in English.
Court seems to have presumed that from this the irresistible inference to be
drawn is that Gui did not mention the name of the assailant of the deceased and
on this ground alone the prosecution must fail. This argument is based on a
serious error. In the first place, the telephonic message was an extremely
cryptic one and could not be regarded as an FIR in any sense of the term.
Secondly, assuming that Gui had given the telephonic message in utter chaos and
confusion when shots after shots were being fired at the deceased, there was no
occasion for Gui to have narrated the entire story of the occurrence. In fact,
in his evidence Gui has denied that he personally telephoned the police but he
stated that he asked somebody to telephone the police which appears to be both
logical and natural. Moreover, such a cryptic information on telephone has been
held by this Court to be of no value at all. In Tapinder Singh v. State of
Punjab this Court in identical circumstances observed thus: [SCC para 4, p.
117: SCC (Cri) p. 332] "The telephone message was received by Hari Singh,
ASI Police Station, City Kotwali at 5.35 p.m. on September 8, 1969. The person
conveying the information did not disclose his identity, nor did he give any
other particulars and all that is said to have been conveyed was that firing
had taken place at the taxi stand, Ludhiana. This was, of course, recorded in
the daily diary of the police station by the police officer responding to the
telephone call. But prima facie this cryptic and anonymous oral message which
did not in terms clearly specify a cognizable offence cannot be treated as
first information report. The mere fact that this information was the first in
point of time does not by itself clothe it with the character of first
views have been expressed in Tapinder Singh vs. State of Punjab (1970) 2 SCC
113, Damoder vs. 78 Rajasthan (2004) 12 SCC 336 and Ramsinh Bavaji Jadeja vs.
State of Gujarat (1994) 2 SCC 685.
argued and highlighted that since PW-2 Shyan Munshi has been confronted with
his signed statement i.e.
and B, the whole evidence goes in light of Zahidurddin vs. Emperor, AIR 1947 PC
75. Apart from the above decision reliance has further been placed on
Superintendent and Remembrancer of Legal Affairs to the State of W.B. vs. Ram
Ajudhya Singh & Anr. AIR 1965 Cal. 348 (Para 9) and Mer Vas Deva vs. State
of Gujarat, AIR 1965 Guj. 143 (Para 9 & 10). We have carefully perused
those decisions. We are satisfied that nothing turns on this argument since the
said decisions only provide that where a statement made/given by a witness
under Section 161 of the Code and signed by the same is hit by the bar
prescribed under Section 162 of the Code, but nowhere do they say that the
evidence deposed to in Court by the said witness becomes admissible. As a
matter of fact, similar argument of the defence counsel 79 was rejected in
Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392.
In assailing the above findings Mr Jethmalani first contended that both the
courts below ought not to have taken into consideration and relied upon the
evidence of PC PW 1 as the same was clearly inadmissible. In expanding his
argument Mr Jethmalani submitted that while being examined in court the witness
was permitted to refresh his memory from the report he lodged with the police
in the morning of 12-11-1985 (Ext. 10/1), which was treated as the FIR of the
second incident even though by no stretch of imagination could that report be
so treated, as PW 96 had started investigation into the same the previous
night. That necessarily meant that Ext. 10/1 was a statement made to a police
officer during investigation which could not be read for any purpose except for
contradicting the maker thereof in view of Section 162(1) of the Code, argued
Mr Jethmalani. In support of his contention Mr Jethmalani relied upon the
judgment of the Privy Council in Zahiruddin v. Emperor. It appears that the
question as to whether Ext. 10/1 could be treated as an FIR was raised both
before the trial court and the High Court and it was answered in the
affirmative. The courts held that in the night of 11-11-1985, PW 96 did not
examine any witness in connection with the incident that took place in that
afternoon and, in fact, he did not take any step towards the investigation as
he and other police officers were busy in maintaining law and order in the
Having gone through the evidence of PW 96 we are constrained to say that the
courts below were not justified in treating Ext. 10/1 as an FIR. Undisputedly
PW 96 had reached Village Laxmipur Bind Toli in the night of 11-11-1985 to
investigate into the two cases registered over the incident that took place in
the morning. He deposed that after reaching the village at 10.30 p.m. he got
information about the second incident also and in connection therewith he had
talked to several persons. He, however, stated that he did not record the
statements of the persons to whom he talked to. In cross-examination it was
elicited from him that on the very night he learnt that houses of some people
had been looted and set on fire, some people had been murdered and that some
villagers were untraceable.
being further cross-examined he volunteered that 80 he had started the
investigation of the case registered over the second incident in the same
night. In the face of such admissions of PW 96 and the various steps of
investigation he took in connection with the second incident there cannot be
any escape from the conclusion that the report lodged by PC PW 1 on the
following morning could only be treated as a statement recorded in accordance
with Section 161(3) of the Code and not as an FIR. The next question, therefore
is whether the evidence of PC PW 1 is inadmissible as contended by Mr
the case of Zahiruddin the police had got the statement of the principal
witness which was, admittedly, recorded during investigation signed by him.
during trial, while being examined-in-chief he refreshed his memory from that
statement. The trial ended in an acquittal with a finding that when a police
officer obtains a signed statement from a witness in contravention of Section
162 of the Criminal Procedure Code his evidence must be rejected. In appeal the
High Court set aside the order of acquittal holding that breaches of the
provisions of Section 162 Criminal Procedure Code were not in themselves
necessarily fatal to the proceedings and might in appropriate circumstances be
cured as the expression was under the terms of Section 537 of the Criminal
Procedure Code, 1898 (Section 465 of the Code). In setting aside the order of
the High Court the Privy Council observed as under:
the effect of a contravention of the section depends on the prohibition which
has been contravened. If the contravention consists in the signing of a
statement made to the police and reduced into writing, the evidence of the
witness who signed it does not become inadmissible. There are no words either
in the section or elsewhere in the statute which express or imply such a
consequence. Still less can it be said that the statute has the effect of
vitiating the whole proceedings when evidence is given by a witness who has
signed such a statement. But the value of his evidence may be seriously
impaired as a consequence of the contravention of this statutory safeguard
against improper practices. The use by a witness while he is giving evidence of
a statement made by him to the police raises different considerations. The
categorical prohibition of such use would be merely disregarded if reliance
were to be placed on the evidence of a witness who had made material use of the
statement when he 81 was giving evidence at the trial. When, therefore, the
Magistrate or presiding Judge discovers that a witness has made material use of
such a statement it is his duty under the section to disregard the evidence of
that witness as inadmissible. In the present case there is in the note at the
end of Mr Roy's examination-in-chief and, in the judgment of the Magistrate
what amounts to a finding of fact that Mr Roy while giving his evidence made
substantial and material use of the signed statement given by him to the
police, and the Magistrate was accordingly bound to disregard his evidence. The
Magistrate's reason for doing so is too broadly stated, for it is not the mere
fact that Mr Roy had signed the statement but the fact that he had it before
him and consulted it in the witness box that renders his evidence
incompetent." (emphasis supplied)
our considered view the above-quoted passage is of no assistance to the
appellants herein for in the instant case after PC PW 1 testified about the
incident, prosecution got the statement of PC PW 1 exhibited Ext.
according to it Ext. 10/1 was the FIR. Such a course was legally permissible to
the prosecution to corroborate the witness in view of Section 157 of the
Evidence Act. Of course in a given case -- as in the present one -- the court
may on the basis of subsequent materials hold that the statement so recorded
could not be treated as the FIR and exclude the same from its consideration as
a piece of corroborative evidence in view of Section 162 of the Code but then
on that score alone the evidence of a witness cannot be held to be
inadmissible. The case of Zahiruddin turned on its own facts, particularly the
fact that during his examination- in-chief the witness was allowed to refresh
his memory from the statement recorded under Section 161 Criminal Procedure
Code, unlike the present one where the statement was admitted in evidence after
PC PW 1 had testified about the facts from his own memory."
information about the commission of a cognizable offence given "in person
at the Police Station"
information about a cognizable offence given "on telephone" have
forever been treated by this Court on different pedestals. The rationale for
the said differential 82 treatment to the two situations is, that the
information given by any individual on telephone to the police is not for the
purpose of lodging a First Information Report, but rather to request the police
to reach the place of occurrence; whereas the information about the commission
of an offence given in person by a witness or anybody else to the police is for
the purpose of lodging a First Information Report. Identifying the said
objective difference between the two situations, this Court has categorically
held in a plethora of judgments that a cryptic telephonic message of a
cognizable offence cannot be treated as a First Information Report under the
Code. It has also been held in a number of judgments by this Court that merely
because the information given on phone was prior in time would not mean that
the same would be treated as the First Information Report, as understood under
the Code. This view has been reiterated in Ramesh Baburao Devaskar and Others
vs. State of Maharashtra (2007) 13 SCC 501, that a cryptic message 83 given on
telephone by somebody who does not disclose his identity may not satisfy the
requirement of Section 154 of the Code of Criminal Procedure.
view of the above discussion, the three telephonic messages received by the
police around 2.25 a.m. on 30.04.1999 did not constitute the FIR under Section
154 of the Code and the statement of Shyan Munshi PW-2 was rightly registered
as the FIR.
Seizure of Tata Safari & broken glass pieces and live cartridge:
testimony of PW-30 has proved the presence of Tata Safari CH-01-W-6535 at the
spot after the incident which testimony is duly corroborated by PW-83, PW-78,
PW-100 and PW-101 and by documents Ex PW 101/DK-1, which shows about the PCR
message about this vehicle at 6.00 a.m.
30.04.1999. In his evidence, PW-30 has informed that he left PS Mehrauli along
with Inspector Surender Sharma at 2.30/2.45 a.m on 30.04.1999 and reached
`Qutub Colonnade' within 84 2-4 minutes. He further informed that SHO S.K.
directed him to keep vigil at the parking so that nobody is allowed to take
away cars parked there. The following information is relevant:
I was giving duty there, I saw a vehicle, came at about 3:40 or 3:45 a.m. It
came from the side of Qutub. The vehicle came slowly. The vehicle was Tata
Sierra of white colour. There were two persons in that vehicle, on the front
seats. They went ahead and took `U' turn and stopped the vehicle near the
vehicle, near which I was standing. I was standing by the side of Tata Safari
vehicle, of black colour. One boy came down from that vehicle. He opened the
vehicle Tata Safari, with a key. I told him not to do so, but he forcibly
entered the said Tata Safari. He started the vehicle even though I asked him,
not to do so. I gave a lathi blow on the last window-pain on the side of the
driver. The number of the black TATA Safari, bore Registration no.
CH-01-W-6535. When I gave danda- blow, the glass of window-pain broke. Both the
persons, took-away the vehicles. I had seen the driver and companion on the
Tata Sierra. The TATA Sierra vehicle was being driven by Sikh Gentleman. I can
identify the driver of the said Tata Sierra and his companion.
stage, the witness has been sent out to examine the vehicle, parked, outside
the court room, along with Junior of Shri G.K. Bharti, Advocate and Shri Ghai,
It is the
same Tata Safari vehicle, which was hit by me on that night. It is exhibited as
article Ex.PW 30/X."
clear from his evidence that while Tata Safari CH-01-W-6535 was being taken
away forcibly from the scene of occurrence at about 3.45 a.m. by accused Vikas
Yadav and both Vikas Yadav and 85 Amardeep Singh Gill came in a Tata Sierra,
PW-30 gave a danda blow on the right rear side of the window of the car.
prosecution case further shows that the first police officer to reach the place
of occurrence at 02.17 a.m. on 30.04.1999 was HC Devi Singh PW-83.
stated that there was one black Tata Safari parked on the left side towards
Mehrauli besides other cars on the right side of the gate. He has further
stated that PW-30 was deputed by SHO near the parked vehicles at Qutub
Colonnade. He further stated that SI Sarath Kumar PW-78 and SI Sunil Kumar
PW-101 had also visited the spot.
Sharad Kumar PW-78 has stated that on receipt of DD No 41 A Ex PW 13/A in respect
of firing incident in Qutub Colonnade, he along with Ct. Meenu Mathew reached
Qutub Colonnade. SI Sunil Kumar and Ct Subhash Chand also reached Qutub
Colonnade almost the same time when he reached.
Qutub Colonnade on the left side near the gate a black Tata Safari car was
parked besides other cars.
Surender Kumar Sharma also reached there. While leaving for Ashlok Hospital,
the SHO asked Delhi Home Guard Shrawan Kumar to remain at the gate of the
`Qutub Colonnade'. PW-100 SI Sunil Kumar has stated that when he reached Qutub
Colonnade he found a black Tata Safari car parked on the left side besides as
he entered the colony and other vehicles were parked on the right. The PW-30
also identified the black Tata Safari CH-01-W-6535 to be the same which he had
seen parked at the scene of crime and the same in exhibit article PW 30/X.
Sharma had also reached the spot along with staff including DHG Shrawan Kumar.
SHO detailed DHG Shrawan Kumar to watch the vehicle already parked there and
asked him (SI Sunil Kumar) to proceed immediately to Ashlok Hospital.
Surender Kumar Sharma PW-101, SHO PS Mehrauli has stated that on receipt of
information he, ASI Kailash, Ct Ram Niwas, Ct Ramphal, Ct Yatender Singh left
for the spot in the official gypsy. PW-30 met them at the gate of police
station and he also picked him (Sharvan Kumar) up in the Gypsy and reached
Qutub Colonnade. He found one black colour Tata Safari on the left side of
Qutub Colonnade gate and 4 or 5 vehicles including one PCR Van on the right
side. PW-30 was left at the gate to ensure that no vehicles leave the spot.
clear from the above testimony that black Tata Safari was found parked near the
gate of `Qutub Colonnade' when they reached at the spot on receipt of
intimation regarding firing incident and Shravan Kumar PW-30 was detailed by
SHO PW-101 to ensure that no vehicle leaves the spot. It is the argument of the
learned senior counsel for the appellant Manu Sharma that PW-30 was not present
at the spot of the incident placing its reliance on 88 DD No.40A and 43A dated
30.04.1999. A perusal of FIR 286 of 1999 dated 30.04.1999 under Section 308/34
IPC PS Mehrauli Ex-CW-2/B shows that the said `rukka' was sent by SI Rishi Pal
through Balwan Singh from AIIMS and not from Dera Gaon. The said FIR also
indicates that SI Rishi Pal by 2.30 a.m. had already recorded the statement of
the victim at AIIMS and had not sent the same with Balwan Singh with `rukka' to
PS, Mehrauli. In those circumstances, the version of PW-30 and PW-101 that
PW-30 met him at the gate of the PS when PW-101 was going out with other staff
is reliable and acceptable.
the presence of PW-30 at the spot is corroborated by Sharad Kumar Bisnoi,
PW-78, HC Devi Singh, PW-83, SI Sunil Kumar, PW-100 and Surender Sharma,
also highlighted that after this incident PW-30 has been recruited to the post
of Constable though he was not eligible as he was under metric and overage.
Learned Solicitor General appearing for the State pointed out that instances
are not unknown wherein persons other than 89 permanent police officers when
help the investigating agency in solving crimes have been recruited in Delhi
Police and strongly submitted that the evidence of Shravan Kumar cannot be
discredited on this point. The said submission cannot be ignored.
has categorically stated that while he was on duty he saw a vehicle Tata Sierra
White Colour coming slowly from the side of Qutub at about 03.40 am or 03.45
am. There were two persons in the said vehicle on the front seat. They stopped
the vehicle near Tata Safari of black colour. One boy came down from the said
vehicle and opened Tata Safari with a key. PW-30 told him not to do so but the
said boy forcibly entered the Tata Safari and took it away. He gave a lathi
blow on the glass of window pane and it broke due to danda blow. He noted down
the number of the black Tata Safari as CH-01-W-6535. The witness also
identified Tata Safari which was hit by him on that night, which is exhibit PW
30/X. PW 30 also 90 identified that Tata Sierra was driven by Amardeep Singh
Gill whereas Vikas Yadav drove away black Tata Safari.
Surender Kumar Sharma PW-101 also stated that when he came back, he found SI
Sunil & SI Sharad as well as Shravan, they told him that two boys had come
and had forcibly taken away the Tata Safari. Out of the two boys one was Sikh,
PW-30 also informed that he had broken the right backside window panel of
Safari with his Danda. He also gave the number of the Tata Safari as CH-
01-W-6535. SI Sunil Kumar PW-100 has also stated that two persons had got into
the Tata Safari and had driven away. The testimony of the above witnesses is
duly corroborated by document Ex PW 101/DK-1. Thus it is clearly established by
cogent evidence that on 30.04.1999 at about 03.40 or 03.45 am accused Amardeep
Singh Gill and Vikas Yadav came in a white colour Tata Sierra Car and accused
Vikas Yadav got down and drove away black Tata Safari No. CH-01-6535.
Safari at Noida:
was argued that even according to PW-100, the Tata Safari was found available
in Karnal, hence seizure of the very same vehicle (Tata Safari) at Noida is not
acceptable. It is true that PW-100 has stated that he discussed the case with
Inspector Surender Sharma and who informed him that Vehicle No. CH-01-W-6535
which was lifted from the spot in the morning is found to have been registered
in the name of Piccadilly Agro Industries and it was also found in Karnal and
he further informed that Sidharth Vashisht alias Manu Sharma is the Director of
the said Industries who is residing in H.No.229, Sector 9C, Chandigarh. A
perusal of his entire evidence shows that he had stated that the vehicle was
found registered in the name of Piccadilly Agro Industries, Bhadson, which was
also found in Karnal and SI Pankaj Malik along with his staff has been detailed
for the investigation of the aforesaid aspect of the case. As rightly pointed
out by the counsel for the State, the testimony of PW-100 show that 92 he was
referring to the Piccadilly Agro Industries having been found at Bhadson Karnal
and not the vehicle/Tata Safari. It was also pointed out when Manu Sharma was
questioned under Section 313 Cr.P.C. particularly question No. 119 the doubt
about the vehicle has been erased. Question No. 119 put to Manu Sharma and his
answer is as follows:- "Q.119 It is further in evidence of PW 100 that
when he came back to Qutub Colonnade nearly at about 03:15 PM on 30.04.99 where
he met Surinder Sharma (PW 101) and discussed the case with SHO Surinder Sharma
who informed him that vehicle No. CH-01-W- 6535 which was lifted from the spot
in the morning is found to have been registered in the name of Piccadilly Agro
Industries, Bhadson and it was also found in Karnal and he further informed him
that you Sidharth Vashist @ Manu Sharma is a Director of the said industry who
is residing in House No. 229, Sector 9C, Chandigarh. What you have to say in
this regard? Ans. It is correct that Vehicle No. CH-01-W-6535 is registered in
the name of Piccadilly Agro Industries Ltd., Piccadilly Cinema, Sector 34,
from this, PW-101 also stated that his senior officers found out the name of
the owner and informed him that it was registered in the name of Piccadilly
Agro Industries Ltd., Sector-34, Chandigarh. He further explained that his
officers informed him that this vehicle 93 was used by Manu Sharma's office
which was at Bhadson, District Karnal. It is further seen from his evidence
that he sent SI Pankaj to Chandigarh and Inspector Raman Lamba to Bhadson. In
this regard the evidence of PW-87 Raman Lamba is relevant. He deposed before
the Court that he was instructed that the inmates of Black Tata Safari No.
CH-01-W-6535 was involved in the case and he was asked to search the same. As
directed, he left Delhi on 30.04.1999 and reached Bhadson at the premises of
Piccadilly Agro Industries. According to him, he met Major Sood and the sugar
mill was closed at that time. He also learnt that the sugar mill was not functioning
because of off season since 25.04.1999. From Bhadson, he went to Kurukshetra
and he tried to locate Black Tata Safari in the aforesaid sugar factory at
Bhadson but did not find it. Even at Chandigarh, Tata Safari was not available
in his house at Sector 229, Sector 9C, Chandigarh. SI Pankaj Malik PW-85 also
deposed before the court that on 30.04.1999 he was deputed by Inspector 94
Surender Kumar to trace out black colour Tata Safari car bearing Registration
No. CH-01-W-6535. As rightly pointed out that the vehicle being recovered at
Karnal on 30.04.1999, the question of sending SI Pankaj Malik does not arise.
From the statements of Sunil Kumar PW-100, Inspector Surender Kumar Sharma
PW-101, Inspector Raman Lamba PW-87, ASI Nirbhaya Singh PW-80 and SI Pankaj
Malik PW-85, it is clear that Tata Safari vehicle was being searched by
Inspector Raman Lamba PW-87 and SI Pankaj Malik PW-85 and other police officers
at various places in Delhi, Haryana and Chandigarh. As the said vehicle was
found on 02.05.1999 at Noida and the same was taken into possession through a
seizure memo prepared by Noida Police. The same was taken into possession by
Delhi Police on 03.05.1999 after taking appropriate orders from the Magistrate
of Tata Safari with live bullet and broken glass pieces at Noida:
SI BD Dubey, in his evidence has stated that information was received that the
vehicle involved in 95 Jessical Lal murder case was parked at NTPC Township.
reached NTPC Township at about 06.30 p.m. on 02.05.99 and found a Safari
Vehicle parked there bearing No. CH-01-W-6535. He identified the vehicle Ex.
article PW 30/X in the court. Recovery memo prepared is Ex PW 74/A which is in
his handwriting and bears his signatures at point C and that of Sudesh Gupta SO
at point B.
stated that vehicle Tata Safari was recovered vide Ex. PW 74/A on 02.05.99. He
also identified signatures of SI BD Dubey & SI Sudesh Gupta on the same. Ex
PW 74/A Seizure Memo of Tata Safari and live cartridge with `C' mark etc.
clearly establish the recovery of the same at Noida, beyond any shadow of doubt
vide Ex PW 74/C Seizure of Live cartridge by Insp. Surender Kr. Sharma dated
PW-101 in his evidence has stated that:
03.05.1999 in the morning with SI Vijay Kumar and other staff I went to Sector
24 NOIDA and found the Tata Safari No CH-01-W-6535 Black Tata Safari lying in
case FIR No. 115/99 U/s 25 Arms Act. SI BD Dubey handed over a pullanda of
glass pieces which were found inside the vehicle by the NOIDA police. I seized
the vehicle pullanda and the documents two tape 96 recorder, one prescription
of Nagpal Nursing Home and one letter written to Vijay Sharma. Everything was
seized vide seizure memo Ex PW 100/DB which bears my signature at point A and
of SI BD Dubey at point B.
pullanda of broken glasses were sealed with the seal of BD when it was
presented to me."
49) SI BD
Dubey PW-91 and Ct. Satish Kumar PW-74 of PS Sec.24, Noida have deposed that
they found black Tata Safari No. CH-01-W-6535 abandoned at the NTPC Township
pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide Ex. PW
74/B. The said Tata Safari was seized under seizure memo Ex PW 74/A. PW 101 has
clearly deposed that about 10 pm on 02.05.1999 he got the information with
regard to the Tata Safari having been found at Noida. On 03.05.1999, he moved
an application before the ACJM, Noida for the superdari of the Tata Safari vide
Ex. PW 101/1 and in pursuance of the orders of ACJM Ex. PW 101/2 and he seized
the same vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB along with other
articles including broken glass pieces which were duly sealed with the seal of
BD. The seizure memo Ex. PW 100/DB is duly signed by SI BD Dubey.
said Tata Safari and the broken glass pieces duly sealed with the seal of BD
have been deposited in the Malkhana of PS Mehrauli on 03.05.1999. PW-101 has
also stated that SI Vijay Kumar accompanied him to Noida and that seizure memo
Ex. PW 101/DB was in the handwriting of SI Vijay Kumar of PS Mehrauli. Ex PW
18/DA at item no. 7 & 9 in the letter sent to CFSL mentioned about the seal
of BD on the sealed parcel containing broken glass pieces. The report of CFSL
vide Ex PW 90/A proved that on comparison of S1 and S2 the two window panes of
the left and the right rear side of the said Tata Safari are different. Thus
this convincing testimony of PW 101 duly corroborated by documents cannot be
discarded simply because SI Sudesh Gupta (Noida Police) failed to mention the
seizure of broken glass pieces on 02.05.1999.
Safari being used by Manu Sharma on the day of occurrence:
the evidence on record it has been proved by the prosecution that
appellant/accused Sidhartha 98 Vashisht @ Manu Sharma along with co-accused
Amardeep Singh Gill, Alok Khanna and Vikas Yadav were present in the said party
at Tamarind Cafi on the night of occurrence. The presence of Tata Safari
CH-01-W-6535 at the place of occurrence and its being forcibly taken at around
3.45 am after the incident has also been proved beyond reasonable doubt. Manbir
Singh PW-18 has proved that the said Tata Safari CH-01-W-6535 is registered in
the name of Piccadilly Agro Industries Ltd., Chandigarh. It has also been
proved from the testimony of PW-25, PW-26, PW-48 and the annual report of
Piccadilly that accused Siddhartha Vashisht @ Manu Sharma was the director in
Piccadilly Agro Industries which finding has also been arrived at by the Trial
Court in favour of the prosecution. Thus a reasonable inference has to be drawn
from the above mentioned evidence that accused Manu Sharma used the said Tata
Safari for coming to Qutub Colonnade on the fateful night of 29/30.04.1999.
Non-Recovery of the weapon of offence and the evaluation of Bullets &
Surender Singh PW-14 has proved that pistol No.
make P. Berretta made in Italy of .22" bore was sold to accused Sidhartha
Vashisht @ Manu Sharma on 31.01.1999. The relevant exhibits in this regard are
Ex. PW 14/A in the stock register for purchase of P. Berrette Pistol from Smt.
Azra Javed, Ex. PW 14/C at Sr. No. 3350 of sale of Pistol to Sidharth Vashisht,
Ex. PW 14/D photocopy of cash memo, seizure memo Ex PW 14/F dated 19.05.1999 by
SI Vijay Kumar PW-76. The endorsement on the license of Manu Sharma regarding
sale of Pistol is Ex. PW 14/B.
52) It is
relevant to point out that the accused Sidharth Vashisht @ Manu Sharma, when he
surrendered on 06.05.1999, also surrendered his arms license Ex PW 7/B which
has been seized vide seizure memo vide Ex. PW 80/B by Inspector Raman Lamba PW
87. The testimony of PW-87 is further corroborated by PW-80. The said arms
license duly bears endorsement about the sale of 100 .22" bore pistol No.
B-56943 U, make P. Berretta, made in Italy. The case of accused Sidhartha Vashisht
@ Manu Sharma as per his statement u/s 313 Cr.P.C. is that on the night of
30.04.1999 and 01.05.1999 when a raid was conducted at his farm house at
Samalkha, his pistol ammunitions and arms license were taken away. As rightly
pointed out by the counsel for the State that the defence of the accused is
totally incorrect in view of the positive evidence adduced on record. This
defence of the accused Sidharth Vashisht @ Manu Sharma is a clear afterthought
as no complaint was lodged by the accused in this regard nor the same was
mentioned when he was twice produced for police remand before the MM for
recovery of the pistol employed in the incident.
53) It is
the claim of the learned senior counsel for the appellant/Manu Sharma that the
seizure memo dated 06.05.1999 with reference to the arms license is fabricated
as the license has been taken from the farmhouse of the accused on
30.04.1999/01.05.1999. Learned Solicitor 101 General appearing on the side of
the State demonstrated that the above contention is false one. Since, on
06.05.1999, when the accused Manu Sharma surrendered, he was accompanied by the
lawyer in whose presence his arrest memo was prepared and the lawyer also
signed the same. However, as rightly pointed out with reference to the arms
license which was also produced by them, the same does not bear the signature
of the said lawyer. The learned counsel for the State further pointed out that
the said lawyer declined to sign the seizure memo that was the reason that it
does not bear the signature of the said lawyer. It is to be remembered that
admittedly the appellant/accused nowhere came out with an explanation. His arms
license was taken away by the Police in 30.04/01.05.1999 with any seizure memo,
why he has not lodged any report about the same. It is also relevant to point
out when the accused after surrendering before the police of Chandigarh on
06.05.1999 was produced before the 102 Magistrate in Delhi. The police sought
remand on two occasions specifically for recovery of the weapon of the offence.
It was pointed out by the prosecution that Manu Sharma was duly represented by
lawyers who did not point out on both occasions that the pistol had already
been taken by the Police. The State also denied the said claim of the accused
as false and concocted.
Shanker Mukhiya PW-44, who is the caretaker of farm house of Manu Sharma at
Samalkha who was produced by the prosecution for the purpose of accused's visit
to farm house also did not mention in his examination in chief or in cross by
the Spl. PP about the pistol. It is only to a leading question put up by the
counsel for accused that those articles included pistol and arms licence of
Manu Sharma, witness stated "it is correct". The defence of the
accused was for ammunition as well as for which no suggestion has been ever
Kumar PW-43, Dy. SP NCRB has deposed that he had not received any complaint of
theft or loss of this P.
Berretta pistol. The pistol could not be recovered despite extensive efforts
made to trace the pistol pursuant to the disclosures of the accused and the
arms license was however surrendered on 06.05.1999 vide seizure memo Ex. PW
80/B. It is thus the case of the counsel for Manu Sharma that he was in
possession and custody of his P.
pistol on 29/30.04.1999 as even according to him it has been taken away on
30.04.1999/01.05.1999. This was a licensed pistol and thereby the onus was on
the accused to show where it was and that the possession and whereabouts of the
pistol are in the special knowledge of accused Sidharth Vashisht @ Manu Sharma
and having failed to produce the same an adverse inference has to be drawn
against him in terms of Section 106 of Evidence Act. In this regard reliance
may be placed on Sucha Singh vs. State of Punjab (2001) 4 SCC 375 at page 381:
is pointed out that Section 106 of the Evidence Act is not intended to relieve
the prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases where the prosecution
has succeeded in proving facts for which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the accused by 104
virtue of special knowledge regarding such facts failed to offer any
explanation which might drive the court to draw a different inference"
addition, the prosecution by way of acceptable evidence has proved beyond
reasonable doubt that:
Sharma accused was the owner and possessed .22" P. Berretta Pistol made in
empty cartridges cases of the .22" with `C' mark recovered from the spot.
mutilated lead recovered from the skull of deceased was of .22" and could
have been fired from a standard .22" caliber firearm.
the Tata Safari live cartridge of .22" with mark `C' was recovered on
two .22" cartridge cases from the spot and the .22" cartridge
recovered from Tata Safari have similar head stamp of `C' indicates that they
are of the same make.
two .22" cartridge cases recovered from the spot are to be rim fired,
rimmed steel cartridge cases.
The two .22" cartridge cases of `C' mark were lying near each other on the
counter and so could not have been fired by 2 different persons.
testimony of Naveen Chopra PW-7 that he sold 25 cartridges of .22" bore on
04.02.1999 is also of no relevance to the defence of the accused when PW-7 says
in the witness box that he had sold 25 cartridges of .22 bore with Mark `KF'
and not with `C'. The appellant/accused has relied on the testimony of PW-7 to
show that the cartridges sold to appellant/accused had `KF' marking is wholly
prosecution has established that the appellant/accused was the holder of a
.22" bore Pistol; he was witnessed by Beena Ramani as the perpetrator of
the crime; a mutilated .22" lead was recovered from the skull of the
deceased; two empties of .22" make with mark `C' were found at the spot; a
.22" live cartridge with mark `C' was found in the Tata Safari of the
appellant/accused which was found abandoned at Noida and for which no 106 theft
report was lodged; that his prior and subsequent conduct of having got the Tata
Safari removed from the spot, of absconding; refusal to TIP without having any
basis; that he even denied his presence at the spot, clearly prove beyond
reasonable doubt leaving no manner of doubt that he is guilty of the offence of
murdering Jessica Lal by using firearm and destroying evidence thereafter.
56) It is
pointed out by the State that when the accused Manu Sharma was arrested on
06.05.1999, the police filed an application dated 07.05.1999 for police remand
of the accused for recovery of pistol. The defence filed a reply to the said
application on the same day i.e., 07.05.1999 and thereupon the Metropolitan
Magistrate passed an order on the same day granting seven days police custody
of the accused for recovery of pistol. The accused despite forever maintaining
that the police had illegally taken away the pistol from his farmhouse on
30.04.1999/01.05.1999, did not take this ground in the reply to remand
application and argument to the said effect was recorded in the 107 remand
order by the Magistrate. The only inevitable conclusion that could be reached
from the said turn of events is that the pistol was still in custody of the
accused and had never been recovered by the police from his farmhouse. In the
reply dated 07.05.1999 filed by the accused to the remand application, there
are interpolations in the reply in black ink in two handwritings to the effect
that the pistol had already been recovered from the person of the accused. The
assertion that the words in two handwritings in black ink are interpolations
gain strength from the fact that nowhere in the remand order dated 07.05.1999
has it come that the accused has taken the plea that the pistol had already
been recovered. It is pointed out by the learned Solicitor General that the
Courts below ought to have drawn an adverse inference from the said facts but
have failed to do so. Thus this evidence coupled with the testimony of Shyan
Munshi, PW-2, that the person in white T-shirt who was asking for whisky took
out a pistol from dub of his 108 pant and fired a shot in the air and the other
witnesses PWs 1,6, 20 and 24 that the person in white T-shirt was Manu Sharma,
a positive inference beyond reasonable doubt has to be drawn that Manu Sharma
fired from his .22" bore pistol which resulted in the death of Jessica Lal
on the fateful night of 29/30.04.1999.
Ram Jethmalani, learned senior counsel, appearing for the accused pointed out
that no question has been put to the accused in his examination under Section
313 Cr.P.C. with reference to the pistol and shooting by him for this. The
State has placed reliance on the following questions which were specifically put
to the accused Manu Sharma being Question Nos. 64, 65, 66, 67 & 72 which
are as under:
It is further in evidence of PW-20 that she had identified you Manu Sharma as
the person whom she has tried to stop and talked to. She added further that the
person who was confronted by her on the stairs was some what like you Manu
Sharma and also identified you on 08.05.1999 at PS Mehrauli. What you have to
say in this regard? Ans. It is false and incorrect.
is further in evidence of PW-20 that the companion of Shyan Munshi (you Manu
Sharma) was wearing T-shirt 109 and she asked you Manu Sharma as to why you
were here and why you shot Jessica and she also asked you to give her your gun
as she thought you were having the gun. What you have to say in this regard?
Ans. It is false and incorrect.
is further in evidence of PW 20 that she asked you Manu Sharma again but you
kept quiet and shaking your hands that it was not him and thereafter you pushed
her aside and went out and she ran after you but should could not catch you.
What you have to say in this regard? Ans. It is false and incorrect.
is further in evidence of PW-20 that while running behind you (Manu Sharma),
she reached the gate where her husband was there, to whom she told that you
(Manu Sharma) shot Jessica and asked her husband to see in which car you (Manu
Sharma) gets in. What you have to say in this regard? Ans. It is absolutely
false and incorrect."
of above questions and answers given by Manu Sharma were either evasive or
incorrect and as rightly pointed out by the learned Solicitor General, an
adverse inference deserves to be drawn for such acts of the appellant-Manu
implication of delay in recording statements 58) Mr. Ram Jethmalani, learned
senior counsel for the appellant-Manu Sharma by placing various decision
contended that the delay in recording statements of witnesses is fatal to the
case of the prosecution, when the trial Court rightly accepted the same,
however, the High 110 Court committed an error in ignoring the said vital
learned Solicitor General submitted that the said contention is based on
incorrect understanding of law and its wrong application to the facts of this
case. The first judgment relied on by the learned senior counsel for the
appellant-Manu Sharma is in Ganesh Bhavan Patel vs.
Maharashtra, (1978) 4 SCC 371. In that case, the witnesses were known and could
have been examined when the Investigating Officer visited the scene of
occurrence or soon thereafter. In the present case, there were about 100 or
more persons present at the party. The identity of all such persons took
substantial amount of time to determine. Consequent to the large number of
witnesses, their interrogation also consequently took a substantial amount of
time. Unlike the said decision, in the present case, there are no concomitant
circumstances to suggest that the investigator was deliberately making time
with a view to give a particular shape to the case.
details of investigation conducted on each day are 111 very clearly brought out
in the evidence of the various witnesses. Furthermore, the identity of the
appellant as a suspect in the present case was not the consequence of any
delay. Thus, the delay, if any, in recording the evidence of witnesses in the
present case cannot be considered as an infirmity in the prosecution case.
judgment in Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC 670, relied
on is also distinguishable. The delay in recording the statement in that case
was coupled with the unnatural conduct of the witness and that was what made
the evidence of the said witness unreliable, which is not so in the present
other judgment in Jagjit Singh vs. State of Punjab (2005) 3 SCC 689 is also
distinguishable. In that case, the delay in recording the evidence of PW-6 was
coupled with several other factors which made her testimony unreliable,
including the finding that she implicated the appellant only at the prompting
of her father and that otherwise she had not named the 112 appellant as an
accused. Furthermore, there was no explanation regarding the delay in that
case. The facts of that case are, therefore, clearly different from the present
defence seeks to discredit the statement of PW-1 Deepak Bhojwani on two counts,
firstly that statement is recorded after 14 days and secondly, there are
various improvements, in his statement. It is next contended by the defence to
believe this man is to disbelieve Beena Ramani. According to him, the
prosecution did not know even on 14.05.1999 the details of their story and thus
resulting in various improvements in the testimony of this witness, in the
witness box. This contention of the defence looses sight of the fact that much
prior to 14.05.1999 Manu Sharma had surrendered on 06.05.1999 and had made his
disclosures and thus there could be no question of not knowing the facts on
14.05.1999. Had the witnesses been planted, the witnesses would have rendered a
parrot like testimony.
has explicitly stated that on 30.04.1999 he had told the police at the Apollo
Hospital all that he knew. This being the case, it cannot be said that the
testimony of the witness should be thrown out for the delay in recording the
statement by the Police. Clearly, PW-1 was not an eye witness, this fact must
have been realized by PW-100 and 101, therefore, and they felt no urgency in
addressing this aspect of the investigation i.e., recording of the statement of
PW-1. It is stated by the State that as there were number of witnesses to be
examined the said examination continued for days. Witnesses Parikshit Sagar and
Andleep Sehgal were also examined on 14.05.1999.
the presence of Deepak Bhojwani can also not be belied in view of the testimony
of Sahana Mukherjee PW- 29 and Sabrina Lal PW-73. In any case, any defect by
delay in examination of witnesses in the manner of investigation cannot be a
ground to condemn the witness.
Section 162 Cr.P.C. is very clear that it is not mandatory for the police to
record every statement. In 114 other words, law contemplates a situation where
there might be witnesses who depose in Court but whose previous statements have
not been recorded.
62) It is
next contended by the learned senior counsel for the appellant-Manu Sharma that
there was a delay in recording the statement of Deepak Bhojwani and his name
having not been found from the list of guests prepared by George Mailhot, Ex.
24/A. It was further pointed out that the list was not a conclusive list and was
prepared by George Mailhot on the basis of remembrance and other witnesses have
also admitted the presence of Deepak Bhojwani. This is more so relevant as the
invited guests were also entitled to bring guests with them. The statements of
witnesses were recorded not only by the I.O.
but by other officials as well who were helping him in investigation. The delay
in recording the statement of Deepak Bhojwani occurred due to natural flow of
statements of various witnesses. The statement of Deepak Bhojwani PW-1, was
recorded by ACP Durga 115 Prasad PW-92, who stated the name of Deepak Bhojwani
occurred during the course of interrogation of other guests/witnesses. The
evidence of PW-1 is relevant for a limited purpose i.e., proving the
presence/identity of Manu Sharma and his desire for liquor in the party which
part of evidence has also been given by other witnesses in so many words, prior
to Deepak Bhojwani as well. The said witness in his evidence has categorically
stated as under:
of the police officials came to Apollo Hospital along with the Ambulance and
few of them returned to Qutub Colonnade. I did not make any statement to the
police in Apollo Hospital. Since I had not seen the incident being taking place
and at Ashlok and Apollo Hospital discussion was going on as to who had done
this and it was also being discussed that the culprit was wearing Blue Denim
Jean and White Shirt and was fair and was little short in height then I
assessed that he was the same person who came to me to arrange drinks for him.
I had told the police in Apollo Hospital that it was Manu Sharma who was with
the similar description as was discussed amongst friends on which police had
told me that they would call me."
Court held that mere delay in examination of the witnesses for a few days
cannot, in all cases, be termed to be fatal so far as the prosecution is
concerned. There may be several reasons. When the delay is explained, whatever
116 be the length of the delay, the Court can act on the testimony of the
witness if it is found to be cogent and credible. In Prithvi vs. Mam Raj ,
(2004) 13 SCC 279, it was held that delay in recording the statement of the
witness can occur due to various reasons and can have several explanations and
that it is for the Court to assess the explanation and, if satisfied, accept
the statement of the witness. The same principle has been reiterated in
Ganeshlal vs. State of Mahrashtra (1992) 3 SCC 106.
of Laboratory reports and examination of experts.
evidence in respect of two FSL reports is as under:
dated 06.07.1999, the seized material was forwarded to CFSL for examination and
expert opinion and, inter alia, the following queries were made to be opined by
the CFSL :
Please examined and opine whether the two empties present in parcel mentioned
at Sl No.5 have been fired from the same weapon?
examine and opine whether the bullet lead in parcel No.6 and the bullet empties
in parcel No.5 have been fired from a standard five arm or a countrymade fire
examine and opine whether ejector, trigger, chamber, magazine or other chamber
marks are present on the live bullet empties contained in parcel Nos. 6 & 5
answer to querry No. 7 is yes then whether these marks are similar and caused
by the same fire arm?"
Ballistics Division of CFSL gave report in respect of the queries as under:
The .22" badly mutilated lead bullet (marked BC/1) of No.3 could have been
fired from a standard .22"
two .22" cartridge cases marked C/1 and C/2 have been fired from two
different .22" caliber standard firearms.
.22" cartridge (marked C/3) of parcel No.5 is a live cartridge and no characteristic
tool marks (i.e. firing pin, ejector, extractor, breechface, magazine or
chamber marks etc.) could be observed on this cartridge.
two .22" cartridge cases (marked C/1 & C/2) of parcel No.4 and the
.22" cartridge (marked C/3) of parcel No.5 have similar Head Stamp of `C'
indicating that they are of the same make. No opinion on their series
(lot/batch) could however be given."
to the State the same also contained inconclusive opinion. It was pointed out
that the State has neither relied on the report of the expert Sh. Rup Singh nor
had filed it in the trial Court. An application was moved by the accused for
the supply of the document and vide order dated 14.01.2000, the Metropolitan
118 Magistrate directed that the State will have to supply all the deficient
copies and also the remaining CFSL reports sent by CFSL to SHO. The opinion of
Sh. Rup Singh, Ballistic expert finally exhibited as Ex. PW 89/DB only says
that "it appears that the two cartridge cases are from two different pistols."
As rightly pointed out such a vague opinion of the expert can neither be relied
upon nor can be any basis to come to a conclusion that there were two persons
who had fired two different shots.
regard to Prem Sagar Manocha PW-95, Ballistic expert at FSL, Jaipur, a specific
query being query No.3 that whether both the empty cartridge cases have been
fired from the same firearm or otherwise. In the reply to the said query, the
expert opined that no definite opinion could be given on the two .22" bore
cartridge cases C-1 and C-2 in order to link with the firearm unless the
suspected firearm is available to examination. It was pointed out that the
trial Court puts a question to the witness and while putting the question first
gives a 119 specific fact finding that for reply to Query No. 3, the presence
of the firearm was not necessary. This incorrect finding of fact given by the
trial Court based on no expertise and had resulted in grave miscarriage of
well settled that while giving reports after Ballistic examination, the
bullets, cartridge case and the cartridges recovered and weapon of offence
recovered are carefully examined and test firing is done at the FSL by the said
weapon of offence and then only a specific opinion is given.
66) It is
contended by the learned counsel for the appellant/Manu Sharma that the
prosecution tried their level best to suppress the report of the Ballistic
expert Shri Rup Singh which was not favourable to them and that the same was
exhibited at the instance of the defence as Ex.
It has been further argued that while the charge sheet was filed on 03.08.1999,
the police sought an expert opinion practically at the end of the investigation
i.e. vide letter dated 16.07.1999, Ex. PW-89/DA. At Sl.
67 of the charge sheet one finds mention of the letters sent by the SHO seeking
the expert opinion. The charge sheet was filed without the expert opinion. The
accused on seeing Sl. No.67, approached the committal Court and asked for the
expert report. It has been argued that the I.O. had received the opinion in the
first week of December, 1999 but did not file the same. On 21.12.1999, the
Court directed the prosecution to file the report. The SPP objected to the same
on the ground that the order required modification but the same was rejected
and on 14.01.2000, the Court again directed supply of the expert report. It has
been argued that since the report did not favour the prosecution, the same was
withheld. It has been further argued by the defence that failure on the part of
the prosecution to bring on record material which is in favour of the accused
is a breach of Article 21 of the Constitution. It has been argued by the
defence that it was improper on the part of the prosecution to condemn a
ballistic expert, i.e., Rup Singh without calling him in for 121
cross-examination. It has been further argued by the defence that by virtue of
Section 293 Cr.P.C., the report is admissible in evidence and that the weapon
is not required to show whether the two empties are fired from the same gun and
the weapon is only required when one has to determine as to whether a
particular weapon was responsible for firing the empties in question. The
expert evidence is only good if it appeals to the judicial lines;
of such evidence can only be the work of the Court. Reliance has been placed on
A.E.G. Carapiet vs.
Derderian, AIR 1961 Calcutta 359 paras 10-14 to assert that every witness must
be cross-examined before being discredited. The prosecution cannot challenge
the expert at the stage of appeal when his testimony went unchallenged at the
stage of the trial. 67) It has been argued that the Court must lay down in
clear terms the duties of a public prosecutor i.e., to tell the truth even if
the same is in favour of the accused. Reliance has been placed on Rule 16 of
the Bar Council of India Rules which 122 are to the said effect. Reliance is
further placed on Attorney Generals Guidelines contained in Archbold Criminal
pleadings edition 2003 to say that it is obligatory on the part of the
prosecution to disclose all the material.
been argued that even after an application under Section 391 Cr.P.C. has been
filed, the prosecution still chose not to call the expert Rup Singh and
cross-examine him. Ex.PW-89/DB supports PW-2 and vice versa, since his evidence
is corroborated by the expert report.
of the Court was invited to the results of the examination. As regards the 2nd
opinion given by PW-95, it has been argued that this court must assume that the
prosecution sought a favourable opinion from the said witness. The said witness
obliged them and created confusion by saying that no conclusive opinion can be
given without examining the weapon in question.
was pointed out by the State that the said report of Rup Singh is inadmissible
in law since it is a photocopy and, therefore, does not fall within the purview
of a report 123 in terms of Section 293 of the Code. In other words, in terms
of the relevant provisions of the Indian Evidence Act unless the original
document is placed for the scrutiny of the Court, no reliance can be placed on
the photocopy without leading proper secondary evidence in this regard.
case, both Section 293 and Section 294 of the Code which dispense with formal
proof of documents under certain circumstances make it abundantly clear that
the documents sought to be relied upon must be the originals.
for the sake of the argument, though not admitting, that the said report of Rup
Singh, i.e. Ex. PW- 89/DB is admissible even though a photocopy has been placed
on record and even though nowhere it has come in evidence that the same i.e.
the photocopy has been compared and scrutinized with the original by the Court
and then placed on record, the same still looses all credence in the light of
the fact that a perusal of the forwarding letter and report would show that
there seems to have been some tampering with the said documents 124 since the
sequence of numbering of the parcels as between the forwarding letter and the
report has been changed by somebody which fact remains unexplained as,
therefore, casts a further doubt on the genuineness of the said report. The
report itself with regard to query No.3 shows that "it appears that the
two cartridge cases C-1 and C-2 have been fired by two different weapons".
This opinion of the expert was vague and on the basis of said opinion no
credence can be lent to the fact adverted to by the defence that there were two
persons who fired two different shots from two different weapons. Moreover the
said report is oddly silent on query No.7 of the forwarding letter wherein it
was specifically asked about the various markings on the live cartridge and the
bullet empties. The stand of the defence that to opine the two cartridge cases
are from the same weapon or not the pistol is not required and the pistol is
only required when the opinion is sought whether they are from that particular
weapon or not cannot be accepted. It is well settled that when pressure is
built 125 inside the cartridge case, which results in the pushing out of the
bullet from the barrel, there is difference in the marks to the extent that it
may be either clear or unclear and flattened or deepened thus no opinion can be
rendered on account of this dissimilarity in the absence of the weapon of
offence and test firing. Further once the report of Rup Singh is rendered
inadmissible the two gun theory of the defence becomes wholly inadmissible and
what remains is that the two empties found at the spot are .22" bore
cartridges, that the live bullet found in the Tata Safari is a .22"
cartridge and that the gun belonging to the appellant is a .22" bore
pistol which was used for the commission of the crime of murder of Jessica Lal.
prosecution obtained another opinion from FSL Rajasthan and the queries made
are as under:
Please examine and opine the bore of the two empty cartridges present in the
opine whether these two empty cartridges have been fired from a pistol or a
Whether both the empty cartridges have been fired from the same fire arm or
response to these queries, the expert opinion of the FSL, Rajasthan is as
The caliber of two cartridge cases (C/1 and C/2) is .22.
two cartridge cases (C/1 and C/2) appear to have been fired from a pistol
definite opinion could be given on two .22 cartridge cases (C/1 and C/2) in
order to link with firearm unless the suspected firearm is available for
pointed out by the State that this opinion also was inconclusive in nature. In
the worksheet, it was categorically recorded that the Investigating Officer be
informed to make available the suspected fire arm used for definite opinion on
linking of C-1 and C-2 with the same fire arm or otherwise. The worksheet also
records that the fire arm involved be sent for definite opinion. At this
juncture, it is relevant to note that the trial Court posed a leading question
From reply to query No.3 the presence of the fire arm was not necessary. The
question was whether the two empty cartridges have been fired from one
instrument or from different instruments? Ans. The question is now clear to me.
I can answer the query here and now. These two cartridge cases were examined
physically and under sterio and comparison microscope to study and observe and
compare the evidence and the characteristics marks present on them which have
been printed during firing. After comparison, I am of the 127 opinion that
these two cartridge cases C/1 and C/2 appeared to have been fired from two
different fire arms."
witness in further cross-examination replied as under:
is nothing in the record of the Court on my report on the basis of which I had
given this finding that C/1 and C/2 were fired from two different fire
witness in further cross-examination deposes that no photographs were taken or
there is any other evidence to show the basis of opinion given by the witness
before the trial Court.
learned senior counsel for the appellant-accused has contended that the
contention of the prosecution that the trial Court could not have asked the
particular Court question to PW-95 is contrary to Section 165 Cr.P.C.
as the power of Judge is very wide. It has been further argued by the defence
that the duties of a Presiding officer are set out in Section 165 of the Indian
Evidence Act. Reliance is sought to be placed on Ram Chander vs. State of
Haryana, AIR 1981 SC 1036. It has been argued that the judge knew that the
issue was 128 whether two empties were fired from the same gun. It has been
further argued that the judge has seen EX. PW- 89/DB and, therefore, any judge
would have noticed that the controversy was whether these two bullets were
fired from the same weapon or not. The Judge also found out that this query
went to the CFSL and CFSL answered the same. It has been argued that,
therefore, the Judge knew that to answer this query weapon was not required. It
has been argued that the Court must read in between the lines.
70) It is
pointed out by the State that the contention of the prosecution was that the
trial Court could not have first put a specific finding of its own opinion to
the expert witness and then ask him questions. Learned Solicitor General
pointed out that in the attempt of the trial Court to extract the truth from
the said witness, it misdirected itself in law by posing such a question. This
is impermissible even as per the judgment in Ram Chander (supra) relied on by
the defence. This judgment is in fact 129 in favour of the prosecution since
the same clearly puts an embargo on the power of a judge to ask questions so as
to frighten, coerce, confuse or intimidate the witness. The danger inherent in
a judge adopting a much too stern an attitude towards witness has been duly
explained in the said decision. The judge cannot ask questions which may
confuse a witness. The argument that the judge knew that the issue in question
was whether the two empties found on the spot were fired from the same gun is
wrong and misleading. The judge knew that as per the charge framed against Manu
Sharma it was he alone who was charged with the possession and use of a gun.
The judge also knew that the first expert opinion was brought on record at the
instance of the accused; the judge further knew that PW-95 had stated in no
uncertain terms that no opinion can be given as regards the two empties without
receipt of the weapon of offence. In spite of knowing all this, the judge first
put a finding of its own to the witness that he did not need the firearm in
question in 130 order to reply as to whether the two empties were fired from
the same gun i.e., a gun and not the gun. The Court exceeded its power under
Section 165 of the Evidence Act by putting the question after giving its own
behalf of the prosecution, it is pointed out that the entire argument of the
accused that an expert opinion was sought at the far end of the charge sheet to
seek a favourable opinion in favour of the prosecution in fact suggests that
the I.O. in question was oblivious of the fact that such an opinion could work
to the detriment of the case of the prosecution i.e. two empties having been
fired from the same weapon of offence belonging to accused Manu Sharma. The
fact that the I.O. sought to mention at S.No. 67 of the list of documents in
the Charge Sheet about the forwarding letter to the expert only suggests that
the prosecution had no intention of carrying out the act of seeking an expert
opinion, is hiding. The discretion on the part of the I.O. and the superior
officers was rightly exercised when they decided not to file the expert report
131 since they realized that the expert report is ambiguous as it uses the term
"appear" when it suggests that the two empties appear to have been
fired from different weapons.
the said opinion was far from conclusive and would have only created confusion
in the case of the prosecution. Thereafter a second opinion was sought wherein
the expert i.e. PW-95 opined that a conclusive opinion can only be given after
the receipt of the weapon of offence. The argument that the weapon of offence
is not required to determine whether the two bullets have been fired from the
same gun is based on the wrong premise that the two empties would necessarily
consist of features which would enable an expert in determining the said fact.
instance, as in the case of a handwriting expert who has to give an opinion
about two different sets of near identical questioned documents and as to
whether the same belong to different persons, if the argument of the accused
has to be accepted then the expert should be able to give such an opinion without
having in his possession 132 the specimen handwriting and the admitted
handwriting of the accused. It is stated that such an approach would render the
opinion as that of a layman and not an expert.
would be case of a finger print expert who undertakes the process of
discovering two different sets of finger print which are in question, without
having the specimen or the admitted finger print of the accused in question. In
other words, an expert is only an expert if he follows the well accepted guidelines
to arrive at a conclusion and supports the same with logical reasoning which is
a requirement of law as laid down in the Indian Evidence Act. In the present
case, the moment Rup Singh uses the word "appear" his opinion
unsupported by reasons becomes inconclusive and stands discredited for the
purpose of placing reliance on. The opinion of Rup Singh was at query No.7 as
to "please examine and opine whether ejector, trigger, chamber, magazine
or other tool marks are present on the live bullet and the bullet empties
contained in parcel Nos. 6 & 5 respectively." Though Shri 133 Rup
Singh has given opinion qua query No.5 that the two .22" cartridge cases
appears to have been fired from two different .22" caliber standard
firearms but his opinion is completely silent on the marks i.e. ejector,
trigger, chamber, magazine or other tool marks on the bullet empties (Ex. PW
89/DB). Clearly an option was available to the accused under Section 293
Cr.P.C. to call for the witness and ascertain from his for sure that the two
empties were in fact fire from two different weapons, however, the accused did
not choose to do so in terms of Section 293 Cr.P.C. In any case, the opinion of
Rup Singh as of today is of little use to the accused for the reasons stated
above and since it is both inconclusive and unsupported by any reasoning
whatsoever and, therefore, cannot appeal to the judicial mind of this Court.
Similar is the case with the expert opinion of PW-95 which is again
inconclusive. There is no evidence on record to suggest that PW-95 gave an
opinion to oblige the prosecution. On the contrary, his response to the Court
134 question reveals that he was extremely confused as to the issue which had
to be addressed by him in the capacity of an expert. In the concluding part of
his testimony he reaffirms the opinion given by him which is that without test
firing the empties from the weapon of offence no conclusive opinion can be
72) It is
pertinent to note that the testimony of the experts i.e., Rup Singh exhibited
as Ex.PW-89/DB and PW-95 Prem Sagar Minocha exhibited as Wx PW-95/C-1 in
inconclusive. The expert PW-95 Prem Sagar Minocha has stated in his report that
it is only on receiving the weapon of offence that a conclusive opinion as to
whether the two empties (cartridge cases) found at the spot were fired from the
same weapon or from two different weapons could be given.
defence seeks to reply upon the testimony of PW- 2 with regard to the two gun
theory put forward. In this regard, the defence seeks to corroborate the said
part of PW-2's testimony with the testimony of the two ballistic 135 experts.
It has also been contended by the defence that the testimony of a hostile
witness must be corroborated by the other reliable evidence on record in order to
be admissible. The law is very clear that where a witness for the prosecution
turns hostile, the Court may rely upon so much of the testimony, which supports
the case of the prosecution and is corroborated by other evidence. PW- 2's
testimony as regards the identity of the person shooting, is certainly not
corroborated by the testimony of the experts since both the experts have given
opinions which cannot qualify as conclusive opinion of experts.
Public Prosecutor and his duty of disclosure:
was argued by Mr. Ram Jethmalani, learned senior counsel for the appellant-Manu
Sharma that the prosecutor had suppressed vital evidence relating to the
laboratory reports which were useful for the defence in order to establish the
innocence of the accused. Learned senior counsel further argued that the
prosecutor had not 136 complied with his duty thus violating fair trial and
vitiating the trial itself.
75) It is
thus important for us to address the role of a prosecutor, disclosure
requirements if placed by the prosecutor and the role of a judge in a criminal
public prosecutor is appointed under Section 24 of the Code of Criminal
Procedure. Thus, Public Prosecutor is a statutory office of high regard. This
Court has observed the role of a prosecutor in Shiv Kumar v.
Chand and Anr., (1999) 7 SCC 467 as follows:
From the scheme of the Code the legislative intention is manifestly clear that
prosecution in a Sessions Court cannot be conducted by any one other than the
legislature reminds the State that the policy must strictly conform to fairness
in the trial of an accused in a Sessions Court. A Public Prosecutor is not
expected to show a thirst to reach the case in the conviction of the accused
somehow or the other irrespective of the true facts involved in the case. The
expected attitude of the Public Prosecutor while conducting prosecution must be
couched in fairness not only to the Court and to the investigating agencies but
to the accused as well. If an accused is entitled to any legitimate benefit
during trial the Public Prosecutor should not scuttle/conceal it. On the
contrary, it is the duty of the Public Prosecutor to winch it to the force and
make it available to the accused. Even if the defence counsel overlooked it,
Public Prosecutor has the added responsibility to bring it to the notice of the
Court if it comes to his knowledge, A private counsel, if allowed frees hand to
conduct prosecution would focus on bringing the case to conviction even if it
is not a fit case to be so convicted. That is the reason why Parliament applied
a bridle on him and 137 subjected his role strictly to the instructions given
by the Public Prosecutor."
Court has also held that the prosecutor does not represent the investigation
agencies, but the State. This Court in Hitendra Vishnu Thakur and Others v.
State of Maharashtra and Others, (1994) 4 SCC 602 held:
... A public prosecutor is an important officer of the State Govt. and is
appointed by the State under the CrPC.
He is not
a part of the investigating agency. He is an independent statutory authority.
The public prosecutor is expected to independently apply his mind to the
request of the investigating agency before submitting a report to the court for
extension of time with a view to enable the investigating agency to complete
the investigation. He is not merely a post office or a forwarding agency. A
public prosecutor may or may not agree with the reasons given by the
investigating officer for seeking extension of time and may find that the
investigation had not progressed in the proper manner or that there has been
unnecessary, deliberate or avoidable delay in completing the investigation"
a public prosecutor has wider set of duties than to merely ensure that the
accused is punished, the duties of ensuring fair play in the proceedings, all
relevant facts are brought before the court in order for the determination of
truth and justice for all the parties including the victims. It must be noted
that these duties do not allow 138 the prosecutor to be lax in any of his
duties as against the accused.
77) It is
also important to note the active role which is to be played by a court in a
criminal trial. The court must ensure that the prosecutor is doing his duties
to the utmost level of efficiency and fair play. This Court, in Zahira
Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC 158,
has noted the daunting task of a court in a criminal trial while noting the
most pertinent provisions of the law. It is useful to reproduce the passage in
The Courts have to take a participatory role in a trial.
not expected to be tape recorders to record whatever is being stated by the
witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer
vast and wide powers on Presiding Officers of Court to elicit all necessary
materials by playing an active role in the evidence collecting process. They
have to monitor the proceedings in aid of justice in a manner that something,
which is not relevant, is not unnecessarily brought into record. Even if the
prosecutor is remiss in some ways, it can control the proceedings effectively
so that ultimate objective i.e. truth is arrived at. This becomes more
necessary the Court has reasons to believe that the prosecuting agency or the
prosecutor is not acting in the requisite manner. The Court cannot afford to be
wishfully or pretend to be blissfully ignorant or oblivious to such serious
pitfalls or dereliction of duty on the part of the prosecuting agency. The
prosecutor who does not act fairly and acts more like a counsel for the defence
is a liability to the fair judicial system, and Courts 139 could not also play
into the hands of such prosecuting agency showing indifference or adopting an
attitude of total aloofness.
power of the Court under Section 165 of the Evidence Act is in a way
complementary to its power under Section 311 of the Code. The section consists
of two parts i.e. (i) giving a discretion to the Court to examine the witness
at any stage and (ii) the mandatory portion which compels the Courts to examine
a witness if his evidence appears to be essential to the just decision of the
Court. Though the discretion given to the Court is very wide, the very width
requires a corresponding caution. In Mohan Lal v. Union of India,this Court has
observed, while considering the scope and ambit of Section 311, that the very
usage of the word such as, "any Court" "at any stage", or
"any enquiry or trial or other proceedings" "any person"
and "any such person"
spells out that the Section has expressed in the widest possible terms and do
not limit the discretion of the Court in any way. However, as noted above, the
very width requires a corresponding caution that the discretionary powers
should be invoked as the exigencies of justice require and exercised judicially
with circumspection and consistently with the provisions of the Code. The
second part of the section does not allow any discretion but obligates and
binds the Court to take necessary steps if the fresh evidence to be obtained is
essential to the just decision of the case - 'essential', to an active and
alert mind and not to one which is bent to abandon or abdicate. Object of the
Section is to enable the court to arrive at the truth irrespective of the fact
that the prosecution or the defence has failed to produce some evidence which
is necessary for a just and proper disposal of the case. The power is exercised
and the evidence is examined neither to help the prosecution nor the defence,
if the Court feels that there is necessity to act in terms of Section 311 but
only to subserve the cause of justice and public interest. It is done with an
object of getting the evidence in aid of a just decision and to upheld the
45. It is
not that in every case where the witness who had given evidence before Court
wants to change his mind and is prepared to speak differently, that the Court
concerned should readily accede to such request by lending its assistance. If
the witness who deposed one way earlier comes before the appellate Court with a
prayer that he is prepared to give evidence which is materially different from
what he has given earlier at the trial with the reasons for the earlier lapse,
the Court can consider the genuineness of the prayer 140 in the context as to
whether the party concerned had a fair opportunity to speak the truth earlier
and in an appropriate case accept it. It is not that the power is to be
exercised in a routine manner, but being an exception to the ordinary rule of
disposal of appeal on the basis of records received in exceptional cases or
extraordinary situation the Court can neither feel powerless nor abdicate its
duty to arrive at the truth and satisfy the ends of justice. The Court can
certainly be guided by the metaphor, separate the grain from the chaff, and in
a case which has telltale imprint of reasonableness and genuineness in the
prayer, the same has to be accepted, at least to consider the worth,
credibility and the acceptability of the same on merits of the material sought
to be brought in.
Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at
the truth and subserve the ends of justice. Section 311 of the Code does not
confer any party any right to examine, cross-examine and re-examine any
witness. This is a power given to the Court not to be merely exercised at the
bidding of any one party/person but the powers conferred and discretion vested
are to prevent any irretrievable or immeasurable damage to the cause of
society, public interest and miscarriage of justice. Recourse may be had by
Courts to power under this section only for the purpose of discovering relevant
facts or obtaining proper proof of such facts as are necessary to arrive at a
justice decision in the case.
Section 391 of the Code is another salutary provision which clothes the Courts
with the power of effectively decide an appeal. Though Section 386 envisages
the normal and ordinary manner and method of disposal of an appeal, yet it does
not and cannot be said to exhaustively enumerate the modes by which alone the
Court can deal with an appeal.
391 is one such exception to the ordinary rule and if the appellate Court
considers additional evidence to be necessary, the provisions in Section 386
and Section 391 have to be harmoniously considered to enable the appeal to be
considered and disposed of also in the light of the additional evidence as
well. For this purpose it is open to the appellate Court to call for further
evidence before the appeal is disposed of. The appellate Court can direct the
taking up of further evidence in support of the prosecution; a fortiori it is
open to the court to direct that the accused persons may also be given a chance
of adducing further evidence. Section 391 is in the nature of an exception to
the general rule and the powers under it must also be exercised 141 with great
care, specially on behalf of the prosecution lest the admission of additional
evidence for the prosecution operates in a manner prejudicial to the defence of
the accused. The primary object of Section 391 is the prevention of guilty
man's escape through some careless or ignorant proceedings before a Court or
vindication of an innocent person wrongfully accused. Where the court through
some carelessness or ignorance has omitted to record the circumstances
essential to elucidation of truth, the exercise of powers under Section 391 is
legislature intent in enacting Section 391 appears to be the empowerment of the
appellate court to see that justice is done between the prosecutor and the
persons prosecuted and if the appellate Court finds that certain evidence is
necessary in order to enable it to give a correct and proper findings, it would
be justified in taking action under Section 391.
is no restriction in the wording of Section 391 either as to the nature of the
evidence or that it is to be taken for the prosecution only or that the
provisions of the Section are only to be invoked when formal proof for the
prosecution is necessary. If the appellate Court thinks that it is necessary in
the interest of justice to take additional evidence it shall do so. There is
nothing in the provision limiting it to cases where there has been merely some
formal defect. The matter is one of the discretion of the appellate Court. As
re-iterated supra the ends of justice are not satisfied only when the accused
in a criminal case is acquitted. The community acting through the State and the
public prosecutor is also entitled to justice. The cause of the community
deserves equal treatment at the hands of the Court in the discharge of its
appellants have placed heavy reliance on the position in England to argue that
there is a wide duty of disclosure on the public prosecutor. It was argued that
any non-disclosure of evidence, whether or not it is relied upon by the
prosecution, must be made available to the 142 defense. In the absence of this,
it was argued, there would be a violation of the right to fair trial.
the light of this argument, let us examine the exact nature of the duty of
disclosure on the public prosecutor in ordinary cases of criminal trial. The
Cr.P.C. imposes a statutory obligation on the public prosecutor to disclose
certain evidence to the defense. This is brought out by sections 207 and 208 as
Supply to the accused of copy of police report and other documents.
case where the proceeding has been instituted on a police report, the
Magistrate shall without delay furnish to the accused, free of cost, a copy of
each of the following.
first information report recorded under section 154:
statements recorded under sub-section (3) of section 161 of all persons whom
the prosecution proposes to examine as its witnesses, excluding there from any
part in regard to which a request for such exclusion has been made by the
police officer under sub- section (6) of section 173.
confessions and statements, if any, recorded under section 164;
other document or relevant extract thereof forwarded to the Magistrate with the
police report under sub-section (5) of section 173:
that the Magistrate may, after perusing any such part of a statement as is
referred to in clause (iii) and considering the reasons given by the police
officer for the request, direct that a copy of that part of the statement or of
143 such portion thereof as the Magistrate thinks proper, shall be furnished to
further that if the Magistrate is satisfied that any document referred to in
Clause (v) is Voluminous, he shall, instead of furnishing the accused with a
copy thereof', direct that he will only be allowed to inspect it either
personally or through pleader in court."
Supply of copies of statements and documents to accused in other cases triable
by court of Session.
a case instituted otherwise than on a police report, it appears to the
Magistrate issuing process under section 204 that the offence is triable
exclusively by the Court of Session, the Magistrate shall without delay furnish
to the accused, free of cost, a copy of each of the following.
statements recorded under section 200 or section 202, or all persons examined
by the Magistrate;
statements and confessions, if any, recorded under section 161 or section 164;
documents produced before the Magistrate on which the prosecution proposes to
that if the Magistrate is satisfied that any such document is voluminous, he
shall, instead of furnishing the accused with a copy thereof, direct that he
will only be allowed to inspect it either personally or through pleader in
16 of the Bar Council of India Rules.
of the Chapter II, part VI of the Bar Council of India Rules under the Advocates Act, 1961 is as
advocate appearing for the prosecution of a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent. The
suppression of material capable of establishing the innocence of the accused
shall be scrupulously avoided."
it is clear that the Code & the Bar Council of India Rules provide a wide
duty of disclosure. But this 144 duty is limited to evidence on which the
prosecutor proposes to place reliance during the trial. Mr. Ram Jethmalani
argued that this duty extends beyond these provisions, and includes even that
evidence which may not have been used by the prosecutor during the trial. As we
have already mentioned, for this purpose, he relied upon the position in
Currently, the position in England is governed by the Criminal Procedure and
Investigations Act, 1996. Prior to this enactment, the position was squarely
covered by common law. This position comes out primarily in two cases. In R. v
Ward (Judith Theresa) (1993) 2 All E.R.
Court of Appeal held that it was the duty of the prosecution to ensure fair
trial for both the prosecution and the accused. The duty of disclosure would
usually be performed by supplying the copies of witness statements to the
defense and all relevant experiments and tests must also be disclosed. It was
held that the common law duty to disclose would cover anything which might
assist the 145 defense. Non-compliance with this duty would amount to
"irregularity in the course of the trial" under Section 2(1)(a) of the
Criminal Appeal Act, 1988.
81) In R
v. Preston & Ors. (1993) 4 All ER 638, on which the appellants specifically
relied upon, dealt with the non- disclosure of a telephonic conversation in a
matter dealing with the Interception of Communications Act, 1985. The relevant
material had been destroyed in pursuance of Section 6 of the same Act. In
appeal, the defendants essentially argued that the non-disclosure of the
contents of the call to the defense amounted to a material irregularity. The
court held that it is true that the mere fact that the material was not to be
used as evidence did not mean that the material was worthless, especially, when
it might have been of assistance to the defendant.
the same time, it was also held that:
the purpose of a warrant issued under s.2(2)(b) of the 1985 Act did not extend
to the amassing of evidence with a view to the prosecution of offenders, and
since the investigating authority was under a duty under s.6 of the Act to
destroy all material obtained by means of an interception as soon as its
retention was no longer necessary for the prevention or detection of serious
crime, the destruction of the documents obtained from the interception and
their 146 consequent unavailability for disclosure could not be relied upon by
Defendants as a material irregularity in the course of their trial".
position under common law is clear, i.e. subject to exceptions like sensitive
information and public interest immunity, the prosecution should disclose any
material which might be exculpatory to the defence.
the Indian Criminal jurisprudence, the accused is placed in a somewhat
advantageous position than under different jurisprudence of some of the
countries in the world. The criminal justice administration system in India
places human rights and dignity for human life at a much higher pedestal. In
our jurisprudence an accused is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true investigation and fair trial
and the prosecution is expected to play balanced role in the trial of a crime.
The investigation should be judicious, fair, transparent and expeditious to
ensure compliance to the basic rule of law. These are the fundamental canons of
our criminal jurisprudence and they are quite in conformity with the
constitutional 147 mandate contained in Articles 20 and 21 of the Constitution
of India. A person is entitled to be tried according to the law in force at the
time of commission of offence. A person could not be punished for the same
offence twice and most significantly cannot be compelled to be a witness
against himself and he cannot be deprived of his personal liberty except
according to the procedure established by law. The law in relation to
investigation of offences and rights of an accused, in our country, has
developed with the passage of time. On the one hand, power is vested in the
investigating officer to conduct the investigation freely and transparently.
Even the Courts do not normally have the right to interfere in the
investigation. It exclusively falls in the domain of the investigating agency.
In exceptional cases the High Courts have monitored the investigation but again
within a very limited scope. There, on the other a duty is cast upon the prosecutor
to ensure that rights of an accused are not infringed and he gets a fair chance
to put forward 148 his defence so as to ensure that a guilty does not go scot
free while an innocent is not punished. Even in the might of the State the
rights of an accused cannot be undermined, he must be tried in consonance with
the provisions of the constitutional mandate. The cumulative effect of this
constitutional philosophy is that both the Courts and the investigating agency
should operate in their own independent fields while ensuring adherence to
basic rule of law. It is not only the responsibility of the investigating
agency but as well that of the Courts to ensure that investigation is fair and
does not in any way hamper the freedom of an individual except in accordance
with law. Equally enforceable canon of criminal law is that the high
responsibility lies upon the investigating agency not to conduct an
investigation in tainted and unfair manner. The investigation should not prima
facie be indicative of bias mind and every effort should be made to bring the
guilty to law as nobody stands above law de hors his position and influence in
the society. In the case 149 of Kashmeri Dev v. Delhi Administration and Anrs.
[JT 1988 (2) SC 293] it has been held that the record of investigation should
not show that efforts are being made to protect and shield the guilty even
where they are police officers and are alleged to have committed a barbaric
offence/crime. The Courts have even declined to accept the report submitted by
the investigating officer where it is glaringly unfair and offends basic canons
of criminal investigation and jurisprudence. Contra veritatem lex nunquam
aliquid permittit: implies a duty on the Court to accept and accord its
approval only to a report which is result of faithful and fruitful
investigation. The Court is not to accept the report which is contra legem but
to conduct judicious and fair investigation and submit a report in accordance
with Section 173 of the Code which places a burden and obligation on the State
Administration. The aim of criminal justice is two-fold.
punishing and really or sufficiently preventing the crime. Both these objects
can be achieved only by fair 150 investigation into the commission of crime,
sincerely proving the case of the prosecution before the Court and the guilty
is punished in accordance with law.
Historically but consistently the view of this Court has been that an
investigation must be fair and effective, must proceed in proper direction in
consonance with the ingredients of the offence and not in haphazard manner.
cases besides investigation being effective the accused may have to prove
miscarriage of justice but once it is shown the accused would be entitled to
definite benefit in accordance with law. The investigation should be conducted
in a manner so as to draw a just balance between citizen's right under Articles
19 and 21 and expensive power of the police to make investigation. These well
established principles have been stated by this Court in the case of Sasi
Thomas vs. State & Ors. [(2007) 2 SCC (Criminal) 72], State Inspector of
Police vs. Surya Sankaram Karri [(2006) 3 SCC (Criminal) 225 and T.T.
vs. State of Kerala [(2001) 6 SCC 181. In 151 Nirmal Singh Kahlon vs. State of
Punjab [AIR 2009 SC 984] this Court specifically stated that a concept of fair
investigation and fair trial are concomitant to preservation of fundamental
right of accused under Article 21 of the Constitution of India. We have
referred to this concept of judicious and fair investigation as the right of
the accused to fair defence emerges from this concept itself. The accused is
not subjected to harassment, his right to defence is not unduly hampered and
what he is entitled to received in accordance with law is not denied to him
contrary to law.
84) It is
pertinent to note here that one of the established canons of just, fair and
transparent investigation is the right of defence of an accused. An accused may
be entitled to ask for certain documents during the course of enquiry/trial by
the Court. Let us examine the extent of this right of an accused in light of
the statutory provisions and the manner in which the law has developed under
the criminal jurisprudence. To understand this concept in its 152 right
perspective we must notice the scheme under the provisions of Section 170 to
173 of the Criminal Procedure Code. All these provisions fall under Chapter XII
of the Code which deals with, information of the police and their powers to
investigate. The power of the police to investigate freely and fairly is well
recognized and codified in law. In terms of Section 170, the investigating
officer when satisfied that sufficient evidence or reasonable grounds exist he
shall forward accused under custody to a Magistrate along with such weapons or
articles which may be necessary to be produced before the Court. Section 172 of
the Code has a meaningful bearing on the entire investigation by a police
officer. It is mandatory for him to maintain a diary under this chapter where
he shall enter day-by-day proceedings in the investigation carried out by him.
He is expected to mention time of events and his departure, reporting back and
closing of the investigation, the place/places he visited and the statements he
recorded during investigation. The statement of the 153 witness is recorded
during the investigation under Section 161 shall be inserted in that diary. A
Criminal Court is empowered under Section 172 (2) to send for the diaries and
they could be used by the Court but not as evidence in the case but to aid it
in such inquiry for trial. However, Sub-section 3 of the same Section provides
that neither the accused nor his agents shall be entitled to call for such
diaries, nor they are entitled to see them but it is only where the police
officer who makes them to refresh his memory or the Court uses them for the
purposes of contradicting such police officers in terms of Section 172 than
Sections 161 or 145 provisions would apply. Section 173 commands the
investigating agency to complete the investigation expeditiously without
unnecessary delay and when such an investigation is completed, the officer in
charge of the police station shall forward to a Magistrate empowered to take
cognizance of offence on a police report with the details in the form as may be
prescribed by the State Government and provide the information required 154
under this Section. Provisions of Section 173 (5) contemplates and make it
obligatory upon the investigating officer where the provisions of Section 170
apply to forward to the Magistrate along with his report, all documents or
relevant extracts thereof on which the prosecution proposes to rely other than
those already sent to the Magistrate during investigation in terms of Section
170 (2) of the Code. During investigation the statement recorded under Section
161 of all the persons whom the prosecution proposes to examine as witnesses
shall also be sent to the Magistrate. Some element of discretion is vested with
the police officer under Section 173 (6) where he is of the opinion that any
such statement is not relevant to the subject matter of the proceedings or its
disclosure to accused is not essential in the interest of justice and is
expedient in the public interest he shall indicate that part of the statement
refusing a Magistrate that part from the copies to be granted to the accused
and stating his reason for making such a request. Sub- 155 Section 7 of the
same Section is indicative of another discretion given to the police officer
under law that where he finds it convenient, he may furnish the copy of
documents refer to Sub-section 5 of the Section. Section 173 (8) empowers an
investigating officer to submit a further report if he is able to correct
report in terms of Section 173 is received the court shall proceed with the
trial of the case in accordance with law.
is the significance of requiring an investigating officer/officer in charge of
a police station to maintain a diary? The purpose and the object seems to be
quite clear that there should be fairness in investigation, transparency and a
record should be maintained to ensure a proper investigation.
the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51, this
Court stated the principle of law that the criminal court may send for the
police diaries of a case under inquiry/trial in such court and may use such
diaries, not as evidence in the case but to aid in such inquiry or trial. It
seems to the Court that the learned 156 Judge in error in making use of the
police diaries at all in his judgment and in seeking confirmation of his
opinion on the question of appreciation of evidence from statements contained
in those diaries. The proper use of diaries he could make in terms of Section
172 Cr.P.C. by elucidating points which need clarification. The Court in this
case was primarily concerned with the argument that diaries were not produced.
Further in the case of Khatri v. State of Bihar A.I.R.
1068 though in a writ petition this Court was concerned with a question whether
the documents called for by the Court vide its Order dated 16th February, 1981
liable to be produced by the State or production of those documents is barred
under Sections 162 & 172 of the Code and the petitioners in those cases are
not entitled to see such documents. The Court rejecting the contention held as
is common ground that Shri L.V. Singh was directed by the State Government
under Section 3 of the Indian Police Act, 1861 to investigate
into twenty four cases of blinding of under-trial prisoners where allegations
were made by the under-trial prisoners and First Information Reports were
lodged that they were blinded by the police officers whilst in police custody,
Shri L.V. Singh through his associates carried out this investigation and
submitted his reports in the discharge of the official duty entrusted to him by
the State Government. These reports clearly relate to the issue as to how, in
what manner and by whom the twenty-four under-trial prisoners were blinded, for
157 that is the matter which Shri L.V. Singh was directed by the State
Government to investigate. If that be so, it is difficult to see how the State
can resist the production of these reports and their use as evidence of these
reports and their use as evidence in the present proceeding. These reports are
clearly relevant under Section 35 of the Indian Evidence Act."
the case of Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341 this
Court reiterated the principle that use of entries in the case diary is really
of no use and is of benefit to the accused but unless the investigating officer
or the Court uses the entries in the case where either to refresh the memory or
contradicting the investigating officer as previous statement under Section 161
in terms of Section 145 of the Evidence Act the entries can be used by the
accused as evidence. The free use thereof is not permissible under defence.
case Mukund Lal v. Union of India A.I.R. 1989 SC 144, this Court clearly stated
the denial to the accused of an unfettered right to make roving inspection of
the entries in the case diary regardless of whether these entries are used by
the police officer concerned to refresh his memory or regardless of the fact
whether the Court has used these entries for the 158 purpose of contradicting
such police officer cannot be said to be unreasonable. This was treated to be a
very important safeguard as the Legislature has reposed complete trust in the
Court which is conducting the inquiry or the trial and has empowered the Court
to call for these diaries therefore the right of the accused is not unfettered
but in fact is limited as noticed.
Usefully, reference can also be made to the judgment of this Court in the case
of Shamshul Kanwar v. State of U.P.
1995 SC 1748 wherein this Court while issuing direction for requiring the State
to make a general hearing in terms of Section 172 of the Code clearly stated
that it was mandatory for the police officer/in charge to maintain the diary in
terms of the said provision and there is jurisdiction in the criminal code to
call such diaries and make use of them not as evidence but only to aid such
inquiry or trial. It is generally confined to utilize the information therein
as foundation for the question put to the witnesses, particularly, to the
police witnesses where the police officer has used the entries to refresh his
memory or if the Court uses them for the 159 purpose of contradicting such
police officer then provisions of Section 161, or 145, would be applicable. The
right of the accused to cross-examine the police officer with reference to the
entries in the General Diary is very much limited in extent and even that
limited scope arises only when the Court uses the entries for the foretasted
purposes. The investigating officer has a right to refresh his memories and can
refer to the general diary. The Court has power to summon the case diary in
exercise of its powers and for the purposes stated. The accused is vested with
the power of making use of the statements recorded during investigation for the
purposes of contradiction and copies thereof the accused is entitled to see in
terms of Section 2 & 7 of the Code State of Kerala v. Babu (1999) 4 SCC 621
and State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715.
91) As is
evident from the consistently stated principles of law, that right of the
accused in relation to the police file and the general diary is a very limited
one and is controlled by the provisions afore-referred. But still the accused
has been provided with definite rights under the provisions of the Code and the
constitutional mandate to face the charge against him 160 by a fair
investigation and trial. Fairness in both these actions essentially needs to be
adhered to. Under Section 170, the documents during investigation are required
to be forwarded to the Magistrate, while in terms of Section 173 (5) all
documents or relevant extracts and the statement recorded under Section 161
have to be forwarded to the Magistrate.
investigating officer is entitled to collect all the material, what in his
wisdom is required for proving the guilt of the offender. He can record statement
in terms of Section 161 and his power to investigate the matter is a very wide
one, which is regulated by the provisions of the Code. The statement recorded
under Section 161 is not evidence per se under Section 162 of the Code. The
right of the accused to receive the documents/statements submitted before the
Court is absolute and it must be adhered to by the prosecution and the Court
must ensure supply of documents/statements to the accused in accordance with
law. Under proviso to Section 162 (1) the accused has a statutory right of
confronting the witnesses with the statements recorded under Section 161 of the
Code thus indivisible. Further, Section 91 empowers the Court to summon
production of any document or thing which 161 the Court considers necessary or
desirable for the purposes of any investigation, inquiry, trial or another
proceeding under the provisions of the Code. Where Section 91 read with Section
243 says that if the accused is called upon to enter his defence and produce
his evidence there he has also been given the right to apply to the Court for
issuance of process for compelling the attendance of any witness for the
purpose of examination, cross-examination or the production of any document or
other thing for which the Court has to pass a reasoned order. The liberty of an
accused cannot be interfered with except under due process of law. The
expression `due process of law' shall deem to include fairness in trial. The
Court gives a right to the accused to receive all documents and statements as
well as to move an application for production of any record or witness in
support of his case. This constitutional mandate and statutory rights given to
the accused places an implied obligation upon the prosecution (prosecution and
the prosecutor) to make fair disclosure. The concept of fair disclosure would
take in its ambit furnishing of a document which the prosecution relies upon
whether filed in Court or not. That document should essentially be furnished
162 to the accused and even in the cases where during investigation a document
is bona fide obtained by the investigating agency and in the opinion of the
prosecutor is relevant and would help in arriving at the truth, that document
should also be disclosed to the accused. The role and obligation of the
prosecutor particularly in relation to disclosure cannot be equated under our
law to that prevalent under the English System as afore-referred. But at the
same time, the demand for a fair trial cannot be ignored. It may be of
different consequences where a document which has been obtained suspiciously,
fraudulently or by causing undue advantage to the accused during investigation
such document could be denied in the discretion of the prosecutor to the
accused whether the prosecution relies or not upon such documents, however in
other cases the obligation to disclose would be more certain. As already
noticed the provisions of Section 207 has a material bearing on this subject
and makes an interesting reading. This provision not only require or mandate
that the Court without delay and free of cost should furnish to the accused
copies of the police report, first information report, statement, confessional
statement of the 163 persons recorded under Section 161 whom the prosecution
wishes to examine as witnesses, of course, excluding any part of a statement or
document as contemplated under Section 173 (6) of the Code, any other document
or relevant extract thereof which has been submitted to the Magistrate by the
police under Sub Section 5 of Section 173. In contradistinction to the
provisions of Section 173, where the Legislature has used the expression
`documents on which the prosecution relies' are not used under Section 207 of
the provisions of Section 207 of the Code will have to be given liberal and
relevant meaning so as to achieve its object. Not only this, the documents
submitted to the Magistrate along with the report under Section 173 (5) would
deem to include the documents which have to be sent to the Magistrate during the
course of investigation as per the requirement of Section 170 (2) of the Code.
right of the accused with regard to disclosure of documents is a limited right
but is codified and is the very foundation of a fair investigation and trial.
On such matters, the accused cannot claim an indefeasible legal right to claim
every document of the police file or even the portions which 164 are permitted
to be excluded from the documents annexed to the report under Section 173(2) as
per orders of the Court.
certain rights of the accused flow both from the codified law as well as from
equitable concepts of constitutional jurisdiction, as substantial variation to
such procedure would frustrate the very basis of a fair trial. To claim
documents within the purview of scope of Sections 207, 243 read with the
provisions of Section 173 in its entirety and power of the Court under Section
91 of the Code to summon documents signifies and provides precepts which will
govern the right of the accused to claim copies of the statement and documents
which the prosecution has collected during investigation and upon which they
rely. It will be difficult for the Court to say that the accused has no right
to claim copies of the documents or request the Court for production of a
document which is part of the general diary subject to satisfying the basic
ingredients of law stated therein. A document which has been obtained
bonafidely and has bearing on the case of the prosecution and in the opinion of
the public prosecutor, the same should be disclosed to the accused in the
interest of justice and fair investigation and trial should be furnished to 165
the accused. Then that document should be disclosed to the accused giving him
chance of fair defence, particularly when non-production or disclosure of such
a document would affect administration of criminal justice and the defence of
the accused prejudicially. The concept of disclosure and duties of the
prosecutor under the English System cannot, in our opinion, be made applicable
to Indian Criminal Jurisprudence stricto senso at this stage. However, we are
of the considered view that the doctrine of disclosure would have to be given
somewhat expanded application. As far as the present case is concerned, we have
already noticed that no prejudice had been caused to the right of the accused
to fair trial and non- furnishing of the copy of one of the ballistic reports
had not hampered the ends of justice. Some shadow of doubt upon veracity of the
document had also been created by the prosecution and the prosecution opted not
to rely upon this document. In these circumstances, the right of the accused to
disclosure has not received any set back in the facts and circumstances of the
case. The accused even did not raise this issue seriously before the Trial
evidence of the telephone calls in the present case is admissible under
Sections 8 and 27 of the Indian Evidence Act. PW-16, Raj Narain Singh, has
deposed that Tel. No. 3782072 is installed at 15, BR Mehta Lane in the name of
O.P. Yadav - Ex.PW-16/C. Print out for the period 25.04.1999 to 11.05.1999 is
Ex. PW-16/C-1. The evidence of PW-19 further proved that Tel. No. 4642868 was
installed at Majid Chakkarawali, Mathura Road vide Ex. PW 16/D and the print out
for the period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-1. PW-17, Mohd. Jaffar
stated that Tel. No. 4642868 was installed at his PCO.
calls were made to USA from his STD Booth on 04.05.1999. Photocopy of calls
made is Ex. PW-17/A.
also proved that Tel. No. 3793628 was shifted to 23, Safdarjung (Ex. PW-16/E)
and print out for the period 03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is
further in evidence of PW-45, Sanjay Garg, that Tel. Nos. 660550, 167 660499,
705692, 741001, 741002 are installed in the various premises of Piccadilly and
the same is Ex. PW- 45/B.
details of the phone numbers subscribed to Piccadily group are Ex. PW 45/C and
the bill printouts are 45/C were received by the police vide Ex. PW 45/D. PW-
66, Maj. AR. Satish has deposed that Mobile No. 9811100237, which was in the
name of Amardeep Singh Gill and the print out of the same is exhibited PW-66/B.
deposed that Mobile No. 9811096893 was being purchased against a cash card. The
print out of the calls for the month of April, 1999 are in Ex. PW-66/D. He
further proved that Mobile No. 9811068169 stood in the name of Alok Khanna and
its print out is Ex. PW 66/C.
PW-32, Ved Prakash Madan proved that Tel. No. 521491 was intalled at PCO,
Ambala and its print out is Ex. PW-32/B. PW-33, PV. Mathew has corroborated the
version of PW-32 and has proved that the calls were made to USA. PW-15,
Sumitabh Bhatnagar stated that Tata 168 Sierra No. HR-26N4348 and Tata Sierra
MP-04-2634 were allotted to Amardeep Singh Gill and Alok Khanna respectively.
Similarly Mobile Nos. 981110237 and 9811068169 were also allotted to Amardeep
Singh Gill and Alok Khanna respectively. PW-51, Sh. Rajiv Talwar has stated
that Te. No. 660500 was installed in the office of Harvinder Chopra. PW-39,
Mansvi Mittal STD/PCO Booth Inderlok-Mittal Communication Tel. No. 5157498 is
installed at this booth. Calls made remain in memory for a period of one month.
Police has seized record of 04.05.1999 and 05.05.1999 in respect of Tel. No. 0017184768403
to which calls were made. Figure 00 is international access code and 171 is the
code call to be made to USA. 001 is also code call for America. Print out dated
04.05.1999 is Ex. PW-39/1 and dated 05.05.1999 is Ex. PW-39/2 to 7, Seizure
Memo dated 27.05.1999 is Ex. 39/A where entries Ex. PW-39/3-7 were made was
present. PW-40, Ayub Khan, PCO/STD/ISD Booth Okhla Phase II Tel. No. 6924575
was installed on 10.05.1999.
also furnished similar details. Print out slips were seized vide Ex. PW-40.A
and print out is Ex. PW-40/1-3 respectively. The testimony of PW 85, SI Pankaj
Malik also corroborates the version of the aforesaid witnesses.
above phone call details show that the accused were in touch with each other
which resulted in destruction of evidence and harboring. Thus the finding of
the trial Court that in the absence of what they stated to each other is of no
help to the prosecution is an incorrect appreciation of evidence on record. A
close association is a very important piece of evidence in the case of
circumstantial evidence. The evidence of phone calls is a very relevant and
admissible piece of evidence.
details of the calls made by the various accused to one another are available
in Ex. PW-66/B, PW-66/D and PW-66/C.
leading question by Public Prosecutor:
Ram Jethmalani, learned senior counsel next contended that the Public
Prosecutor in the present case 170 had put a leading question to Malini Ramani
regarding identification of the accused Manu Sharma. We verified the said
question. The question put by the Public Prosecutor, was at best clarificatory,
and by no stretch of imagination can be termed as a leading question
favouring/eliciting an answer favouring the prosecution.
evidence of Ms. Malini Ramani two paragraphs prior to the leading question and
two paragraphs thereafter, if read in conjunction with each other clarifies the
whole scene and sequence of events. Learned senior counsel has relied upon the
judgment in Varkey Joseph vs. State of Kerala, 1993 Supp (3) SCC 745 to support
his contention. The said judgment is clearly distinguishable.
facts in that case, this Court found that the prosecutor had put leading
questions, without objections by the defence, to several material and key
witnesses regarding the culpability of the accused. The extent of the leading
questions put, were on the facts of that case found to violate the
constitutional right of a fair trial of the 171 accused. The facts of the
present appeal are wholly different. The petitioner had adequate and competent
legal representation before the trial Court and leading questions, if any, put
by the prosecutor were objected to by the defence and several questions were
disallowed by the trial court. Furthermore, the finding of guilt of the
appellant herein by the High Court has not been on account of any of the
answers elicited to any such questions. It is not as if every single leading
question would invalidate the trial. The impact of the leading questions, if
any, has to be assessed on the facts of each case.
made to trace Sanjay Mehtani:
has been contended by the learned senior counsel for the appellant/Manu Sharma
that the Sanjay Mehtani, friend of Malani Ramani, who was also present at Qutub
Colonnade at the scene of offence was deliberately not examined by the
Prosecution. Respondent has pointed out that Sanjay Mehtani was examined during
the course 172 of investigation and his statement was recorded under Section
161 Cr.P.C. He was also cited as a prosecution witness. During the trial
summons were issued for him and it was learnt that Sanjay Mehtani had left
India and was residing at Hong Kong and as such could not be examined in the
court. Further, it was pointed out that bare perusal of the trial Court record
of the present case will clearly bring out the fallacy in the said argument of
the defence. The Police while filing the charge-sheet before the Magistrate had
enlisted Sanjay Mehtani's name in the list of witnesses. This fact clearly
shows that the prosecution had the intention to examine Sanjay Mehtani as their
witness. Further, the said witness was summoned by the Court for examination
vide orders dated 28.11.2001, 08.02.2002, 27.11.2003 and 11.12.2003.
sequence of events clearly show that the prosecution not only wanted to examine
him as a witness, but tried serving him with the summons many times, but the
same could not be achieved as Sanjay Mehtani had by 173 then shifted to Hong
Kong and was not staying in India.
to contend that Sanjay Mehtani was deliberately not examined by the Prosecution
is absolutely baseless and not founded on the basis of the record.
conduct of Absconding:
the testimony of PW-20 and PW-24, it is proved beyond reasonable doubt that
accused Sidharth Vashisht @ Manu Sharma after committing the murder of Jessica
Lal fled away from the scene of occurrence. It is further proved from the
testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-85 and PW-80 that from
afternoon of 30.04.1999 search was made for the black Tata Safari bearing Regn.
No. CH-01-W-6535 and for Sidharth Vashisht @ Manu Sharma, Director of
Piccadilly Sugar Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse
at Samalkha and Okhla Delhi. It is also proved that even after the seizure of
vehicle on 02.05.1999 the search for accused Sidharth Vashisht @ Manu Sharma
continued and search was made at Piccadilly Cinema, 174 Piccadilly Hotel, his
residence at Chandigarh, PGI Hospital where his father was subsequently
admitted. However, accused Sidharth Vashisht @ Manu Sharma was not found nor
anybody informed his whereabouts and it is only on 06.05.1999 that accused
Sidharth Vashisht @ Manu Sharma surrendered at Patiala Guest House, Chandigarh
in the presence of Shri Harish Ghai, advocate and Sh. Vinod Dada. The above
evidence of the witnesses clearly establishes beyond reasonable doubt that
accused Manu Sharma absconded after committing the crime and surrendered on
06.05.1999 after extensive searches were made.
criminal trial is not an enquiry into the conduct of an accused for any purpose
other than to determine whether he is guilty of the offence charged. In this
connection, that piece of conduct can be held to be incriminatory which has no
reasonable explanation except on the hypothesis that he is guilty. Conduct
which destroys the presumption of innocence can alone be 175 considered as
material. In this regard, it is useful to refer Anant Chaintaman Lagu vs. State
of Bombay AIR 1960 SC 500:- "Circumstantial evidence in this context means
a comBeenation of facts creating a network through which there is no escape for
the accused, because the facts taken as a whole do not admit of any inference
but of his guilt....
conduct of the accused was so knit together as to make a network of
circumstances pointing only to his guilt......his methods was his own undoing;
because even the long arm of coincidence could not explain the multitude of
circumstances against him, and they destroyed the presumption of innocence with
which law clothed him."
has been proved beyond reasonable doubt that accused Manu Sharma absconded
after the incident which is a very relevant conduct u/s 8 of Evidence Act.
statements of the accused persons and their admissibility u/s 27 Evidence Act:
PW-100 SI Sunil Kumar and PW-101 Inspector Surender Kumar Sharma deposed that
on the early morning of 05.05.1999 accused Amardeep Singh Gill @ Tony Gill was
arrested and he made a voluntary disclosure vide Ex.PW 100/7 that on 29.04.1999
he had a talk with Alok Khanna over telephone and thereafter a telephone call
was received at about 8.30 p.m. from Sidharth 176 Vashisht @ Manu Sharma. He
has further disclosed that Alok Khanna came to his house in Tata Sierra car no.
MP 04V 2634. He has further disclosed that he and Alok Khanna went to Qutub
Colonnade in Alok Khanna's Tata Sierra bearing No. MP-04-V-2634. Accused Manu
Sharma surrendered on 06.05.1999 at 2.30 p.m. at Patiala Guest House,
Chandigarh before Inspr. Raman Lamba PW-87 and ASI Nirbhay Singh PW-80. After
his arrest accused Manu Sharma had made four disclosure statements. The first
was an oral disclosure made to Inspr. Raman Lamba wherein he said that he could
recover the pistol from Ravinder Sudan at Mani Majra. However, it was pointed
out that the search of the house at Chandigarh was taken and since the diary
containing the address of Ravinder Sudan could not be found, no recovery could
07.05.1999, he made a disclosure to Inspr.
Sharma PW-101 which was recorded as Ex. PW 100/12. In the said disclosure, he
disclosed that he was using his younger brother Kartik's Cellphone No. 177
9811096893 in making calls to his friends like Tony Gill, Alok Khanna, Amit
Jhingan and others. He also disclosed the phone Nos. of some of the co-accused
and that he handed over his cell bearing No. 9811096893 to Yograj Singh in
Panchkula and can recover the same. Pursuant to the disclosure of Sidharth
Vashisht @ Manu Sharma the mobile phone used by him was recovered from accused
Yograj Singh. Vide Ex.PW 100/23.
third disclosure is Ex. PW 100/Article-1 which was video recorded on 07.05.1999
itself after the accused was produced before the Metropolitan Magistrate and
copies of which were duly supplied to the accused during trial. From the
disclosure Ex PW 100/Article-1 there were further discovery of facts admissible
under Section 27 of the Evidence Act. Pursuant to the disclosures of Manu
Sharma investigations were carried out and it was that the accused were in
close contact with each other over phone and accused Manu Sharma had made
number of calls from the house of Vikas Yadav son of DP Yadav to his 178 house
in Chandigarh and to Harvinder Chopra at Piccadilly.
fourth disclosure of accused Sidharth Vashisht @ Manu Sharma was recorded by
PW-101 wherein he had disclosed that Ravinder Sudan @ Titu having concealed the
pistol, had gone to Manali (HP) where he met his uncle Shyam Sunder and he very
well knew the place where they concealed the pistol and that he could lead to
Manali to recover the pistol used in the incident. It further came on record
that calls were made to USA to Ravinder Sudan.
not be out of place to mention that calls were exchanged between the accused
and made to USA were discovered pursuant to disclosures made by the accused
witnesses Deepak Bhojwani PW-1, Malini Ramani PW-6, Beena Ramani PW-20 and
George Mailhot PW-24 have clearly proved beyond reasonable doubt the
identification of the accused persons Manu Sharma, 179 Amardeep Singh Gill,
Alok Khanna and Vikas Yadav. PW- 1 Deepak Bhojwani had met Manu Sharma on the
night of 29.04.1999 at Qutub Colonnade when Manu Sharma introduced himself to
Deepak Bhojwani and they were about to exchange visiting cards when Amardeep
Singh Gill @ Tony Gill took him away towards the cafi. Both Amardeep Singh Gill
and Manu Sharma refused their TIP on 06.05.1999 and 07.05.1999 respectively
before PW-79 Ld. MM Sh. Rajnish Kumar Gupta without citing any credible reason.
Thereafter, photo identification was conducted in which they were duly
identified by Deepak Bhojwani. The said witness has also clearly identified the
two of them in the Court.
PW-6, Malini Ramani has categorically stated that she identified Manu Sharma as
the accused in the Police Station. She had seen accused in the police station
on 08.05.1999 and thus the same was after 07.05.1999 when accused Manu Sharma
refused his TIP. In cross- examination, PW-6 states that 180 "During the
first five days of May 1999, the interrogation of three of us was very
intensive, and photographs were shown to us of the culprits for identification.
It could be that the photograph of Manu Sharma had been shown to me but since I
was not in good frame of mind and rather disturbed for the whole week and
therefore, I do not remember whether the photograph of Manu Sharma was shown to
me or not on 01.05.1999. It is correct that between 01.05.1999 to 05.05.1999, I
had been shown the paragraph of Manu Sharma."
was not sure about her having been shown the photograph prior to 08.05.1999.
PW-6 has nowhere stated in her testimony that photograph of Manu Sharma were
shown to her parents. Moreover, no photographs of the other three accused were
shown to her or her parents of the other accused i.e. of Vikas Yadav, Amardeep
Singh Gill or Alok Khanna as contended. Further, PW-20 has categorically
identified all the four accused in the witness box and there is no cross
examination of PW-20 to the effect that the photographs of the accused were
shown only in the police station. Even, PW-24 has identified accused Manu
Sharma in the court and his testimony also remains unshaken on this aspect.
PW-30 has also clearly identified accused Amardeep Singh Gill and Vikas Yadav
in the court and the photo identification with regard to 181 them was resorted
after Amardeep Singh Gill @ Tony Gill had refused TIP on 06.05.1999 and Vikas
Yadav was granted anticipatory bail. That the photographs of Vikas Yadav were
taken from the Asstt. Registrar, Ghaziabad Authority RTO, PW 38 on 20.05.1999.
Shyan Munshi had left for Kolkata and thereafter, photo identification was got
done when SI Sharad Kumar PW 76 went to Kolkata to get the identification done
by picking up from the photographs wherein he identified the accused Manu
Sharma though he refused to sign the same. However, in the court PW-2 Shyan
Munshi refused to recognize him. In any case, the factum of
photo-identification by PW-2 as witnessed by the concerned Officer is a
relevant and an admissible piece of evidence. In this regard reliance may be
placed on, R vs. McCay (1991) 1 All ER 232. There the accused was identified by
the witness in the presence of the IO who took note of the said fact, later the
witness could not identify the accused in Court due to lapse of time, thus 182
the testimony of the IO was relied upon to prove the said identification. The
IO's testimony was upheld as admissible on the ground that the act of the IO
was contemporaneous with the act of identification by the witness.
PW-78 SI Sharad Kumar deposed "I thereafter went to Calcutta. The four
photographs X1 to X4 were identified by Shyan Munshi as those of the accused in
my presence. (Objected to by Sh. R.K. Naseem). I asked Shyan Munshi to sign on
the back of these photos but he refused to do so. Then I gave separate markings
on the back of the photographs X1 to X4 and signed them. Markings and my
signatures at the back of the photographs are at points A on all the four
photographs. I recorded the statement of Shyan Munshi in this regard. The
photocopy of the said statement is Ex PW2/C which is in my hand and bears my
signatures at point A. I correctly recorded statement of Shyan Munshi and did
not add or omit therefrom on my own. After return from Calcutta, I handed over
the photographs and statement of Shyan Munshi and other documents to SHO
Shyan Munshi in this regard stated, "It is correct that Delhi Police had
contacted me in Calcutta at my residence but I do not remember it was on 19th
May, 1999. .... ..It is correct that some photographs were shown to me by Delhi
Police at Calcutta in May, 1999 at my residence"... "Police had shown
me the photograph and asked me if I could identify but I did not identify any
of the culprits. I was asked by the police to sign on the reverse of those four
photographs but I did not sign any such photograph."
Mr. Jethmalani next contended that identification is inherently illegal because
the witnesses were not only shown the photographs but also the accused was
physically shown. According to him, it was further in evidence that accused
Manu Sharma was shown to all the three witnesses on 08.05.99 and they even
admitted that it may have been on 07.05.99. It is further contended that it is
not denied that the photos came in the newspaper during the prosecution.
However, it was pointed out by the defence that prosecution is certainly not
responsible for showing the photos. As far as refusal of TIP by accused Manu
Sharma is concerned, there is no justification in the stand of the defence that
TIP was not held due to his photo or he himself being shown to the witness. In
this regard, it would be relevant to note that accused Manu Sharma surrendered
on 06.05.99 and on 07.05.99 he was produced in muffled face before the MM Shri
Rajneesh Gupta PW-79 and the proceedings thereof are recorded vide Ex PW-79/G
wherein accused Manu 184 Sharma's contention for refusal of TIP is that his
photograph has appeared in newspapers and his photograph has been shown to the
witnesses and that he has been shown physically to the witnesses. All the three
contentions of the accused Manu Sharma are incorrect and misconceived with
regard to the appearance of the photos in the newspapers. It is submitted that
vide Ex PW 101/11 to 22 the newspapers from 01.05.99 to 06.05.99 have been duly
exhibited by PW-101. It was pointed out that in none of those newspapers is the
photograph of accused Manu Sharma shown. As a matter of fact vide Ex. No. PW
101/15 photograph dated 06.05.1999 clearly shows that he is in muffled face. In
the absence of any defence refusal of TIP on this ground is totally unjustified
and an adverse inference ought to be drawn in this regard.
next contention of the defence for refusal of TIP is that his photograph has
been shown to the witnesses is also incorrect. It is not disputed that the
photograph of accused Manu Sharma was obtained from his farmhouse 185 located
in Samalkha on the intervening night 30.04.1999 & 01.05.1999. However, it
is further in evidence of PW-87 that he went to Chandigarh and he took the
photograph of accused Manu Sharma for the purposes of identification and it was
with him till 06.05.1999. Thus the photo of accused Manu Sharma could not have
been shown to any of the witnesses because the witnesses were either in Delhi
or Kolkata not in Chandigarh. The only witness who has deposed with regard to
the photograph having been shown is PW-6 wherein she has stated:
could be that the photograph of Manu Sharma that had been shown to me on
01.05.1999 but since I was not in good frame of mind and rather disturbed for
the whole week and therefore I do not remember whether the photograph of Manu
Sharma was shown to me on 01.05.1999."
testimony on this point is clearly wavering in view of the fact that
immediately after the incident she fainted and that is why her statement under
Section 161 Cr.P.C.
recorded only on 03.05.99. Moreover, it was explained that since on 02.05.99
the photograph in question was not available in Delhi itself and therefore
there was no chance of showing the photograph to this 186 witness, as on
01.05.99 she was unwell and her statement also could not be recorded and thus
the issue of showing her the photograph could not arise. Further, this witness
nowhere says that photographs were shown to her parents as well as being sought
to be inferred by the defence.
refusal of TIP on this ground was unjustified by accused Manu Sharma in the
morning of 07.05.1999. It is further submitted that after the refusal of TIP it
is only thereafter that the accused Manu Sharma was shown to the witnesses
PW-6, PW-20 and PW-24 and their statements under Section 161 Cr.P.C. were
recorded with regard to the identification of accused Manu Sharma. The said
process of identification was necessary for the IO to be certain that this is
the man that the said witnesses had witnessed/seen as the person responsible.
In the light of Manu Sharma's refusal, the police had little choice but to formally
show the photo to the witnesses and record their statement in that regard.
Thus, firstly his refusal is not justified on the ground that he has been shown
to the 187 witnesses, moreover, he was shown to the witness only after his
refusal of TIP so that it is verified that he is the same person who is
involved in the incident and no adverse inference on this count can be taken
against the prosecution.
is further pointed out that the accused Manu Sharma was sent to judicial
custody on 15.05.1999 and the statement of witnesses continued even thereafter
and thus resort to photo identification was properly taken by mixing the
photograph of accused Manu Sharma with number of other photographs and asking
the witnesses to pick up the photograph of the person they had witnessed on the
fateful night and the morning thereafter i.e.
This mode of photo identification was resorted to vis-`-vis Deepak Bhojwani
PW-1 on 24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput PW-4 on 29.05.99
and Shyan Munshi PW-2 on 19.05.99 at Calcutta. Thus there is no merit in the
contention of 188 the defense that the dock identification was a farce as it
was done for the first time in the Court.
is also contended by the defence that since the photographs were shown to the
witnesses this circumstance renders the whole evidence of identification in
Court as inadmissible. For this, it was pointed out that photo identification
or TIP before the Magistrate, are all aides in investigation and do not form
substantive evidence. Substantive evidence is the evidence of the witness in
the court on oath, which can never be rendered inadmissible on this count. It
is further pointed out that photo identification is not hit by 162 Cr.P.C. as
adverted to by the defense as the photographs have not been signed by the
witnesses. In support of his argument the senior counsel for Manu Sharma relies
on the judgment of Kartar Singh vs. Union of India (1994) 3 SCC 569 at page 711
wherein while dealing with Section 22 TADA the Court observed that photo TIP is
bad in law. It is useful to mention that the said judgment has been
distinguished in 189 Umar Abdul Sakoor Sorathia vs. Intelligence Officer,
Narcotic Control Bureau, (2000) 1 SCC 138 at page 143 where a Photo
Identification has been held to be valid.
relevant extract of the said judgment is as follows:- "10. The next
circumstance highlighted by the learned counsel for the respondent is that a
photo of the appellant was shown to Mr. Albert Mkhatshwa later and he
identified that figure in the photo as the person whom he saw driving the car
at the time of interception of the truck.
was contended that identification by photo is inadmissible in evidence and,
therefore, the same cannot be used. No legal provision has been brought to our
notice, which inhibits the admissibility of such evidence. However, learned
counsel invited our attention to the observations of the Constitution Bench in
Kartar Singh vs. State of Punjab which struck down Section 22 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987. By that provision the
evidence of a witness regarding identification of a proclaimed offender in a
terrorist case on the basis of the photograph was given the same value as the
evidence of a test identification parade. This Court observed in that context:
(SCC p. 711, para 361) 361. If the evidence regarding the identification on the
basis of a photograph is to be held to have the same value as the evidence of a
test identification parade, we feel that gross injustice to the detriment of
the persons suspected may result. Therefore, we are inclined to strike down
this provision and accordingly we strike down Section 22 of the Act.
the present case prosecution does not say that they would rest with the
identification made by Mr. Mkhatshwa when the photograph was shown to him.
Prosecution has to examine him as a witness in the court and he has to identify
the accused in the court. Then alone it would become substantive evidence. But
that does not mean that at this stage the court is disabled from considering
the prospect of such a witness correctly identifying the appellant during
trial. In so considering the court can take into account the fact that during
investigation the photograph of the appellant was shown to the witness and he
identified that 190 person as the one whom he saw at the relevant time. It must
be borne in mind that the appellant is not a proclaimed offender and we are not
considering the eventuality in which he would be so proclaimed. So the
observations made in Kartar Singh in a different context is of no avail to the
TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore
to say that a photo identification is hit by section 162 is wrong. It is not a
substantive piece of evidence. It is only by virtue of section 9 of the
Evidence Act that the same i.e. the act of identification becomes admissible in
Court. The logic behind TIP, which will include photo identification lies in
the fact that it is only an aid to investigation, where an accused is not known
to the witnesses, the IO conducts a TIP to ensure that he has got the right
person as an accused. The practice is not born out of procedure, but out of
prudence. At best it can be brought under Section 8 of the Evidence Act, as
evidence of conduct of a witness in photo identifying the accused in the
presence of an IO or the Magistrate, during the course of an investigation.
Mr. Jethmalani has further argued on the proposition that mere dock
identification is no identification in the eyes of law unless corroborated by
previous TIP before the Magistrate. It has been further argued that in any
case, even identification in Court is not enough and that there should be
something more to hold the accused liable. In support of its arguments, he
placed heavy reliance on the decision of this Court in the case of Hari Nath
& Ors vs. State of U.P. (1988) 1 SCC 14 and Budhsen & Others vs. State
of U.P. (1970) 2 SCC 128.
scrutiny of these judgments will reveal that they infact support the case of
the Prosecution. These judgments make it abundantly clear that even where there
is no previous TIP, the Court may appreciate the dock identification as being
above-board and more than conclusive.
law as it stands today is set out in the following decisions of this Court
which are reproduced as 192 hereinunder in Munshi Singh Gautam vs. State of
M.P. (2005) 9 SCC 631, at page 643:
As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75
identification tests do not constitute substantive evidence. They are primarily
meant for the purpose of helping the investigating agency with an assurance
that their progress with the investigation into the offence is proceeding on
the right lines. The identification can only be used as corroborative of the
statement in Court.
Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The necessity for holding an
identification parade can arise only when the accused are not previously known
to the witnesses.
idea of a test identification parade is that witnesses who claim to have seen
the culprits at the time of occurrence are to identify them from the midst of
other persons without any aid or any other source. The test is done to check
upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the memory of
the witnesses based upon first impression and also to enable the prosecution to
decide whether all or any of them could be cited as eyewitnesses of the crime.
The identification proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code and the Evidence Act. It is
desirable that a test identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses prior to the test
identification parade. This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to ensure that there is no scope
for making such an allegation. If, however, circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the prosecution.
17. It is
trite to say that the substantive evidence is the evidence of identification in
court. Apart from the clear provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive evidence of a
witness is the statement made in court. The evidence of mere identification of
the accused person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen 193 the trustworthiness of that evidence.
It is, accordingly, considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to exception, when, for
example, the court is impressed by a particular witness on whose testimony it
can safely rely, without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no provision in the
Code which obliges the investigation agency to hold or confers a right upon the
accused to claim a test identification parade. They do not constitute substantive
evidence and these parades are essentially governed by Section 162 of the Code.
Failure to hold a test identification parade would not make inadmissible the
evidence of identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In appropriate cases
it may accept the evidence of identification even without insisting on
corroboration. (See Kanta Prashad vs. Delhi Administration AIR 1958 SC 350,
Vaikuntam Chandrappa U.P. (1970) 2 SCC 128 and Rameshwar Singh vs. State of
J&K (1971) 2 SCC 715)
Harbhajan Singh vs. State of J&K (1975) 4 SCC 480, though a test
identification parade was not held, this Court upheld the conviction on the
basis of the identification in court corroborated by other circumstantial
evidence. In that case it was found that the appellant and one Gurmukh Singh
were absent at the time of roll call and when they were arrested on the night
of 16.12.1971 their rifles smelt of fresh gunpowder and that the empty
cartridge case which was found at the scene of offence bore distinctive
markings showing that the bullet which killed the deceased was fired from the
rifle of the appellant. Noticing these circumstances this Court held: (SCC p.
481, para 4).
view of this corroborative evidence we find no substance in the argument urged
on behalf of the appellant that the investigation officer ought to have held an
identification parade and that the failure of Munshi Ram to mention the names
of the two accused to the neighbours who came to the scene immediately after
the occurrence shows that his story cannot be true. As observed by this Court
in Jadunath Singh vs.
U.P. 17 absence of test identification is not necessary fatal. The fact that
Munshi Ram did not disclose the names of the two accused to the villages 194
only shows that the accused were not previously known to him and the story that
the accused referred to each other by their respective names during the course
of the incident contains an element of exaggeration. The case does not rest on
the evidence of Munshi am alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the implication of the
vs. State of M.P., (2003) 5 SCC 746 at 752 "7. It is trite to say that the
substantive evidence is the evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court. The facts, which establish the
identity of the accused persons, are relevant under Section 9 of the Evidence
Act. As a general rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the accused person at the
trial for the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification, therefore, is to test
and strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier identification proceedings. This rule
of prudence, however, is subject to exceptions, when, for example, the court is
impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the Code of Criminal
Procedure which obliges the investigation agency to hold, or confers a right
upon the accused to claim a test identification parade. They do not constitute
substantive evidence and these parades are essentially governed by Section 162
of the Code of Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in court. The weight
to be attached to such identification should be a matter fro the courts of
fact. In appropriate cases it may accept the evidence of identification even
without insisting on corroboration."
Mr. Ram Jethmalani has further placed heavy reliance on two Books by foreign
authors, namely, `'Proof of Guilt by Glanville Williams,' 3rd Edition and `Eye
Witness Identification in Criminal Cases' by Patrick M. Wall, to urge that
identification of an accused in Court is a serious matter and the chances of a
false identification are very high. These texts only reiterate what the various
courts have held time and again. The view of the said author has been quoted by
this Court, the earliest judgment being Shivaji Sahabrao Bobade vs. State of
Maharashtra, (1973) 2 SCC 793, at page 800:
evil of acquitting a guilty person light heartedly as a learned Author
(Glanville Williams in `Proof of Guilt') has sapiently observed, goes much
beyond the simple fact that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead to a cynical disregard
of the law, and this in turn leads to a public demand for harsher legal
presumptions against indicted persons and more severe punishment of those who
are found guilty. Thus, too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of the
guiltless. For all these reasons it is true to say, with Viscount Simon, that a
miscarriage of justice may arise from the acquittal of the guilty no less than
from the conviction of the innocent."
Learned Solicitor General submitted that, even otherwise, an adverse inference
ought to be drawn against 196 the appellants for their refusal to join the TIP.
This view has found favor time and again by this Court. It is pertinent to note
that it is dock identification which is a substantive piece of evidence.
Therefore even where no TIP is conducted no prejudice can be caused to the case
of the Prosecution. In Mullagiri Vajram vs. State of A.P. 1993 Supp. (2) SCC
198, it was held that though the accused was seen by the witness in custody,
any infirmity in TIP will not affect the outcome of the case, since the
deposition of the witnesses in Court was reliable and could sustain a
conviction. The photo identification and TIP are only aides in the
investigation and does not form substantive evidence. The substantive evidence
is the evidence in the court in oath.
following decisions relied upon by the learned senior counsel for the appellant
are clearly distinguishable from the present facts and thus are not applicable.
State (2004) 11 SCC 346 is distinguishable as there was no direct evidence on
record against the 197 accused and the prosecution's case was based on last
seen evidence of accused with deceased and circumstantial evidence. The
admission of witnesses in regard to showing of photographs prior to TIP was
coupled with the fact that the writing of the accused did not match with the
entries made in the entry register which was contrary to the case of the
Laxmipat Chararia vs. State of Maharashtra, AIR 1968 SC 938, is distinguishable
as the witness whose statement was subjected to arguments as being put under
pressure of prosecution and was shown photographs of the accused was in fact an
accomplice and her statement was also relied upon by the Court and held that
her evidence is admissible.
Nath & Anr vs. State of U.P. (1988) 1 SCC 14 is also distinguishable on
facts as the accused were residing in village in the close vicinity of the
village of the prosecution witness (members of house hold where dacoity was
committed) and that accused and the 198 prosecution witness had been students
of the same institution was indicative of the fact that the accused were known
to the prosecution witnesses while there was an omission to mention name of the
accused persons in the FIR. Secondly, as it was also held that even on the
premise that no prior acquaintance was there, the TIP lacked promptitude as was
conducted after an unexplained delay of more than 4 months.
judgment in Kanan & Ors vs. State of Kerala (1979) 3 SCC 319, is distinguishable
as the witness though admitted that he knew the two accused by face and yet he
had named them while identifying them in Court, which raised element of doubt
& that names of the accused were supplied to him from outside.
Yadav vs. State of Bihar (2002) 7 SCC 295 is also distinguishable as the
identification by the witness in court was not relied upon as the witness did
not name the accused before the Police but in Court had identified and also
named the accused, and as the identification was 199 not further corroborated
by either previous identification or any other evidence. While other witnesses
though named the accused before the police but failed to identify him in court.
Vijayan vs. State of Kerala (1999) 3 SCC 54, the witness was admittedly shown
the photograph of the accused before the TIP and further told to identify the
tallest man in the parade, as such this TIP was discarded and in this light the
dock identification of the witness was also discarded. Further according to the
witness the accused was not a tall man whereas the height of the accused was
more than 6 feet.
George & Ors. vs. State of Kerala & Anr. (1998) 4 SCC 605 is not
applicable on the facts of the present case in so far as the issue of photo
identification is concerned.
aforesaid judgment which is sought to be relied upon by the appellant in
support to their contention on the issue that absence of TIP makes the dock
identification weak evidence is not applicable on the facts of the present 200
case. In the said decision the prosecution failed to hold TIP whereas in case
at hand the accused person refused TIP. The newspaper reports duly exhibited by
PW 101 in the present case nowhere show photographs of the accused persons.
Learned senior counsel for the appellant has argued that the statement of the
accused recorded under Section 313 of the Criminal Procedure Code may be
treated as evidence and by doing so this Court must take into consideration the
stand taken by the appellant as regards his gun having been taken away by the
police. In support of his argument, he relied upon the decision of this Court
in the case of Hate Singh Bhagar Singh vs. State of Madhya Bharat, AIR 1953 SC
468. It has been further argued that the evidence of witnesses has not been put
to the appellant thereby causing prejudice to the appellant.
proposition of law is misplaced since a specific provision has been provided by
way of Section 315 of the Code whereby an accused can, as a matter of right,
201 appear as a witness on his own behalf. In the present case, the appellants
exercised an option declining to do so and in such manner failed to offer any
evidence to show loss/removal of his gun. Thus it cannot be urged by the
defence merely in order to suit his convenience that his statement may be
treated as evidence and that all facts stated therein be treated as true unless
contradicted by the prosecution. While answer given by the accused to question
put under Section 313 of the Code are not per se evidence because, firstly, it
is not on oath and, secondly, the other party i.e., the prosecution does not
get an opportunity to cross-examine the accused, it is nevertheless subject to
consideration by the Court to the limited extent of drawing an adverse
inference against such accused for any false answers voluntarily offered by him
and to provide an additional/missing link in the chain of circumstances. The
judgment relied upon is of no use to the defence since the same pertains to a
period where the law did not allow the accused to step into the 202 witness box
as a witness of his own innocence.
Regarding the contention that evidence of each witness must be put to the
accused, it must be clarified that only the circumstances need to be put and
not the entire testimony. It is apt to quote the following decision of this
Court i.e., State of Punjab vs. Swaran Singh, (2005) 6 SCC 101 at page 104:
The only reason given by the learned Single Judge of the High Court for
acquitting the accused is that the evidence of PW 1 and PW 4 was not
specifically put to the accused under Section 313 CrPC and it was held that in
the absence of these facts in the form of questions to the accused, the
evidence could not have been used against him. It is also pertinent to note in
this regard that when PW 1 and PW 4 were examined as witnesses, the accused did
not seriously dispute the evidence of PW 1 or PW 4. The only cross-examination
was that it was incorrect to suggest that the case property was not deposited
with him and he had deposed falsely. So also, the evidence of PW 4 was not
challenged in the cross-examination except for a general suggestion that he had
been deposing falsely and that no case property was handed over to him by PW 1
Harbhajan Singh. The accused had no case that the seal was ever tampered with
by any person and that there was any case of mistaken identity as regards the
sample and that the report of the chemical analyst was not of the same sample
taken from the accused. Except making a general suggestion, the accused had
completely admitted the evidence of PW 1 and PW 4 as regards the receipt of the
sample, sealing of the same and sending it to the chemical analyst. This was
pointed out only to show that the accused was not in any way prejudiced by the
fact of not having been questioned by making a specific reference to the 203
evidence of PW 1 and PW 4. As regards the questioning of the accused under
Section 313 CrPC, the relevant provision is as follows:
Power to examine the accused.--(1) In every inquiry or trial, for the purpose
of enabling the accused personally to explain any circumstances appearing in
the evidence against him, the court-- (a) may at any stage, without previously
warning the accused, put such questions to him as the court considers
shall, after the witnesses for the prosecution have been examined and before he
is called on for his defence, question him generally on the case:
that in a summons case, where the court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under
oath shall be administered to the accused when he is examined under sub-section
accused shall not render himself liable to punishment by refusing to answer
such questions, or by giving false answers to them.
answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to show he has
questioning of the accused is done to enable him to give an opportunity to
explain any circumstances which have come out in the evidence against him. It
may be noticed that the entire evidence is recorded in his presence and he is
given full opportunity to cross- examine each and every witness examined on the
prosecution side. He is given copies of all documents which are sought to be
relied on by the prosecution.
from all these, as part of fair trial the accused is given opportunity to give
his explanation regarding the evidence adduced by the prosecution. However, it
is not necessary that the entire prosecution evidence need be put to him and
answers elicited from the accused. If there were circumstances in the evidence
which are 204 adverse to the accused and his explanation would help the court
in evaluating the evidence properly, the court should bring the same to the
notice of the accused to enable him to give any explanation or answers for such
adverse circumstance in the evidence. Generally, composite questions shall not
be asked to the accused bundling so many facts together. Questions must be such
that any reasonable person in the position of the accused may be in a position
to give rational explanation to the questions as had been asked. There shall
not be failure of justice on account of an unfair trial.
the instant case, the accused was not in any way prejudiced by not giving him
an opportunity to answer specifically regarding the evidence of PW 1 and PW 4.
If at all, the evidence of PW 1 and PW 4 was recorded in his presence, he had
the opportunity to cross-examine the witnesses but he did not specifically
cross-examine these two witnesses in respect of the facts deposed by them. The
learned Single Judge seriously erred in holding that the evidence of PW 1 and
PW 4 could not have been used against the accused.
acquittal of the accused was improper as the evidence in this case clearly
established that the accused was in possession of 5 kg of opium and thereby
committed the offence under Section 18 of the NDPS Act."
Further it is not necessary that the entire prosecution evidence need to be put
to the accused and answers elicited from him/even if an omission to bring to
the attention of the accused an inculpatory material has occurred that ipso
facto does not vitiate the proceedings, the accused has to show failure of
justice as held in Swaran Singh (supra) and followed in Harender Nath 205
Chakraborty vs. State of West Bengal, (2009) 2 SCC 758.
Singh's case (supra) relied upon by the appellant is clearly distinguishable
from the facts of the present case. In the said matter, the case of the
prosecution was that two brothers Hate and Bheru fired one shot each at the
deceased who received three wounds.
opined that three wounds which could have been from a single shot. It was the
consistent stand of the Bheru that he fired the shots (with double barrel),
whose appeal was, therefore, dismissed in limine. While that of Hate (appellant
in the said case) was that though present with a gun, he did not fire any shot
(with his single barrel). That single barrel was found loaded (Article E) this
fact was accepted throughout. Witnesses also saw Bheru firing the first shot.
The Court held that the fact that both the brothers absconded was given much
importance by the High Court and Sessions Court but were not asked to explain
it at any stage.
Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 relied upon by the appellant
is also distinguishable on facts as there was no accusation specifically put in
the question during examination to the accused.
Inferences Against the Accused:
False answers under Section 313 Cr.P.C.
has time and again held that where an accused furnishes false answers as
regards proved facts, the Court ought to draw an adverse inference qua him and
such an inference shall become an additional circumstance to prove the guilt of
the accused. In this regard, the prosecution seeks to place reliance on the
judgments of this Court in Peresadi vs. State of U.P., (1957) Crl.L.J. 328,
State of M.P. vs. Ratan Lal, AIR 1994 SC 458 and Anthony D'Souza vs. State of
Karnataka (2003) 1 SCC 259 where this Court has drawn an adverse inference for
wrong answers given by the appellant under Section 313 Cr.P.C. In the present
case, the appellant-Manu Sharma has, inter alia, has 207 taken false pleas in
reply to question nos. 50, 54, 55, 56, 57, 64, 65, 67, 72, 75 and 210 put to
him under Section 313 of the Code.
Adverse inference qua non explanation of Pistol Appellant/Accused - Manu Sharma
was holder of a pistol .22" bore P Berretta, made in Italy duly endorsed
on his arms licence. It was his duty to have kept the same in safe custody and
to explain its whereabouts. It is proved beyond reasonable doubt on record that
extensive efforts were made to trace the pistol and the same could not be
recovered. Moreover as per the testimony of CN Kumar, PW-43, DSP/NCRB, RK Puram
there is no complaint or report of the said pistol. Thus an adverse inference
has to be drawn against the accused-Manu Sharma for non- explanation of the
whereabouts of the said pistol.
another plea not supported by any positive evidence led by the appellant-Manu
Sharma is that his pistol i.e. the weapon of offence and the arms licence was
recovered from his farm house on 30.04.1999, when in 208 fact it is an
established fact that the pistol could not be recovered and that the licence was
surrendered on 06.05.1999 at the time of his arrest. It defies all logic and
ordinary course of conduct to allege that the prosecution has withheld the
pistol after seizing the same from his farmhouse. The fact that he has failed
to produce the pistol, a presumption shall arise that if he has produced it,
the testing of the same would have been to his prejudice. The burden thus
shifts on him.
Adverse inference since no report of theft or loss of Tata safari CH-01-W-6535
It is the defence of the accused-Manu Sharma that the Tata Safari was taken
away on 30.04.1999 from Karnal. No report or complaint of the taking away of
the vehicle or the theft of the vehicle was ever lodged by the
appellant/accused and hence an adverse inference has to be drawn against the
accused on this count as well.
the conduct of the appellant/accused in not taking any steps despite
opportunity in reporting the 209 alleged taking away of Tata Safari on
30.04.1999 and his licensed pistol on 01.05.1999 in itself is enough material
to draw serious adverse inference against the accused.
Appearance of PW-2 Shyan Munshi accompanied by Shri Ashok Bansal, Advocate By
order dated 06.03.2000, Shri Ashok Bansal, advocate had appeared as proxy
counsel for accused- Manu Sharma before the trial Court and on the same day
also took copy of the report of FSL/Jaipur on behalf of accused-Manu Sharma. On
03.05.2001, PW-2, Shyan Munshi, was duly accompanied by Shri Ashok Bansal,
advocate wherein he clearly says that he has come with a lawyer for his
personal security. On behalf of the State, it was contended that an adverse
inference against accused- Manu Sharma has to be drawn for influencing the
witness. It may not be out of place to mention here that PW-2, Shyan Munshi,
who is the maker of the FIR and complainant of the case, did not fully support
the prosecution case though he admitted having made 210 statement to the police
and having signed the same. The stand of the State cannot be ignored, on the
other hand, it is acceptable.
Further as per the disclosure of accused-Manu Sharma, the pistol was given to
accused - Ravinder Sudan @ Titu (PO). It has been proved by the testimony of
PW- 37, Martin Raj and PW-49-Inspector Mahender Singh Rathi that accused,
Ravinder Sudan @ Titu left the country by Gulf Airways on 04.05.1999.
Accused-Manu Sharma surrendered on 06.05.1999 only after accused Ravinder Sudan
@ Titu left the country. It is pointed out by the State that calls were made
from PCO, Ambala and PCO Hazrat Nizamuddin which have been duly proved by the
testimony of PW-36, Ram Lal Jagdev, PW-16-Raj Narain Singh, PW-17-Mohd. Jaffar.
This conduct of accused-Manu Sharma which is relevant and admissible under
Section 8 of the Indian Evidence Act an adverse inference has to be drawn
against Manu Sharma for this conduct.
of other accused:
have already discussed the specific evidence, especially of presence at the
time of incident, removal of Tata Safari, call details etc. as well as the
evidence of PWs 30 and 101, for conviction under Section 201 read with Section
120-B IPC against the other two appellants, namely, Amardeep Singh Gill @ Tony
Gill and Vikas Yadav. We are satisfied that the High Court, on appreciation of
the relevant materials, found against them and convicted accordingly. On
analysis of all the materials, we agree with their conviction and sentence.
remarks against prosecution and Trial Judge 133) In administration of criminal
justice system the possibility of errors of law, appreciation of evidence or
other serious violations is difficult to be ruled out in its entirety.
higher Courts in exercise of their appellate or original jurisdiction may find
patent errors of law or fact or appreciation of evidence in the judgment which
have been challenged before them. Despite this what is of significant 212
importance is that, the Courts should correct the error in judgment and not
normally comment upon the judge. The possibility of taking a contrary view is
part of the system but the judicial propriety and discipline does not necessarily
command that some strictures or undesirable language should be used by the
higher Courts in exercise of their jurisdiction. It would always be more
appreciable that to keep the process of correction in place when reasoning is
given to criticize the judgment under appeal rather than the Judge himself. The
individuals come and go but what actually stands for ever is the institution.
the present case the High Court in its judgment, on the one hand, explicitly
referred to certain criticism made by the trial Judge against the investigating
agency and the comments/remarks made in this behalf and observed that these
were uncalled for and that they should have been avoided but, on the other
hand, the Division Bench itself while criticizing the reasoning in the judgment
under appeal but even made certain sweeping remarks against the trial Judge.
this regard we are intentionally not referring to the criticism of appreciation
of evidence in fact and on law but are 213 restricting ourselves to certain observations
and comments which, in our humble opinion, are criticism of the Judge per se
and could have been avoided easily by the Division Bench of the High Court. It
is also desirable, that the language which may imply an allegation of suspicion
in the performance of function of the Court should also be carefully examined
and unless it is absolutely established on record comment should be avoided. It
will be appropriate to refer to the relevant parts of the judgment in this
also find the criticism against him to be a matter of meaningless hair
splitting. There is a ring of truth around the deposition of PW 30 whom we find
a reliable witness. The trial Court, while dealing with this witness, has, with
great respect, termed him as a `planted witness'. This, we find, is not
justified from material on record. The cursory manner in which the witness has
been discarded shows a lock of proper appreciation of evidence. Once a
reasonable explanation has been given by a witness for his presence at the
spot, there was hardly any reason to stretch imagination to belie his presence.
Merely, because he was assigned to deliver a DD entry to SI Rishi Pal which,
the witness explains, he did not deliver, the explanation given is logical and
ought not to have been disbelieved in this strange way of assessing the
material and discarding it."
xxxx xxxx ".........The two weapon theory appears to be a concoction to
the defence and a manipulation of evidence in particular that of Shyam Munshi,
PW2 who, for the first time in court, introduced such a story. The very fact
that the empties were sent for examination at such a belated stage, cannot rule
out the possibility of foul play to destroy the Prosecution's case during
trial. We, therefore, do not think it 214 necessary to go into further analysis
of the evidence of Prem Sagar Manocha."
us examine various judgments of this Court which have persistently taken the
view and discouraged observations or disparaging remarks by the higher Courts
against the other Courts. In the case of A.M. Mathur vs. Pramod Kumar Gupta
& Ors. (1990) 2 SCC 533 the Court stated the dictum that judicial restraint
and discipline are as necessary to the orderly administration of justice as
they are to the effectiveness of the army. The duty of restraint , this
humility of function should be constant theme of our judges. The quality in
decision making is as much necessary for judges to command respect as to
protect the independence of the judiciary. Judicial restraint in this regard
might better be called judicial respect, that is respect by the judiciary. The
avoidance of even the appearance of bitterness, so important in a judge,
required him not to cast aspersions on the professional conduct of the
appellant and that too without an opportunity for him to meet such situation.
The Court set aside the disparaging remarks that had been made by the High
Court against the Advocate General.
In the case of a judicial officer approaching this Court for expunction of
disparaging remarks on his conduct made by the High Court in the matter of `K'
A Judicial Officer (2001) 3 SCC 54, this Court cautioned the higher courts to
use the power of superintendence with great care and circumference before
making remarks on unworthy conduct of an officer, his criticism or adverse
remarks in relation to judicial pronouncement should be avoided. The Court held
Subordinate Judge faced with disparaging and undeserving remarks made by a
court of superior jurisdiction is not without any remedy. He may approach the
High Court invoking its inherent jurisdiction seeking expunction of
objectionable remarks which jurisdiction vests in the High Court by virtue of
its being a court of record and possessing inherent powers as also the power of
is settled by the law laid down in Raghubir Saran (Dr) vs. State of Bihar
(1964) 2 SCR 336.
if a similar relief is sought for against remarks or observations contained in
judgment or order of the High Court the aggrieved judicial officer can, in
exceptional cases, approach this Court also invoking its jurisdiction under
Articles 136 and/or 142 of the Constitution. "
the case of Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat &
Ors. (2004) 4 SCC 158 another Bench of this Court in unambiguous terms
expressed its concern about entertaining undesirable submissions against the
working of an institution and adverse observations being 216 made in the
paragraphs of the judgment. The Court noticed that High Court had made
observations and remarks about persons/constitutional bodies like NHRC who were
not before it. Proceedings of the Court normally reflect the true state of
affairs. Even if it is accepted, that any such submission was made, it was not proper
or necessary for the High Court to refer to them in the judgment to finally
state that no serious note was taken of the submissions. Avoidance of such
manoeuvres would have augured well with the judicial discipline. The expunction
and deletion of the contents of paragraph three of the judgment except the last
limb therein is ordered and it shall be always read to have not formed part of
Similarly, a three Judge Bench of this Court in the case of Samya Sett vs.
Shambhu Sarkar & Anr. (2005) 6 SCC 767, again concerned with expunction of
adverse remarks made against the Additional Sessions Judge, who was the
appellant. The High Court had observed that, ignoring of directions should
imply an arrogant attitude of the learned Judge and was in breach of the canons
of judicial discipline and damage the judicial system. This Court has, in
several 217 cases, deprecated the practice on the part of judges in passing
strictures and in making unsavoury, undeserving, disparaging or derogatory remarks
against parties, witnesses as also subordinate officers.
is also worthwhile to refer to the latest judgment of this Court in the case of
Parkash Singh Teji vs. Northern India Goods Transport Company Private Limited
and Another, (2009) 12 SCC 577. This Court, while considering the order of the
High Court, declining to expunge the adverse remarks against the
appellant/judicial officer has observed "judicial restraint and discipline
are as necessary to the orderly administration of justice as they are to the
effectiveness of the army".
was pointed out, "A Judge tries to discharges his duties to the best of
his capacity, however, sometimes is likely to err. It has to be noted that the
lower judicial officers mostly work under a charged atmosphere and are
constantly under psychological pressure. They do not have the benefits which
are available in the higher courts. In those circumstances,
remarks/observations and strictures are to be avoided particularly if the
officer has no occasion to put forth his reasonings."
Alok Kumar Roy vs. Dr. S.N. Sharma (1968) 1 SCR 813 the vacation Judge of the
High Court of Assam and Nagaland passed an interim order during vacation in a
petition entertainable by the Division Bench. After reopening of the Court, the
matter was placed before the Division Bench 218 presided over by the Chief
Justice in accordance with the High Court Rules. The learned Chief Justice made
certain remarks as to "unholy haste and hurry" exhibited by the
learned vacation Judge in dealing with the case. When the matter reached this
Court Wanchoo C.J., observed: (SCR pp 819 F- 820A) "It is a matter of
regret that the learned Chief Justice thought fit to make these remarks in his
judgment against a colleague and assumed without any justification or basis
that his colleague had acted improperly. Such observations even about Judges of
subordinate courts with the clearest evidence of impropriety are uncalled for
in a judgment. When made against a colleague they are even more open to objection.
We are glad that Goswami J. did not associate himself with these remarks of the
learned Chief Justice and was fair when he assumed that Dutta, J. acted as he
did in his anxiety todo whdat he thought was required in the interest of
justice. We wish the learned Chief Justice had equally made the same assumption
and had not made these observations castigating Dutta J. for they appear to us
to be without any basis. It is necessary that judicial decorum has to be
maintained at all times and even where criticism is justified it must be in
language of utmost restraint, keeping always in view that the person making the
comment is also fallible."
supplied) 142) In State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC 566
disparaging and derogatory remarks were made by the High Court against the
State Government. When the matter came up before this Court and a complaint was
made against these 219 remarks, it was observed by this Court that the remarks
were "totally unjustified and unwarranted".
C.J. stated: (SCC p.615,para 43) "43 We may observe in conclusion that
judges should not use strong and carping language while criticizing the conduct
of parties or their witnesses. They must at with sobriety, moderation and
restraint. They must have the humility tore cognise that they are not
infallible and any harsh and disparaging strictures passed by them against any
party may be mistaken and unjustified and if so, they may do considerable harm
and mischief and result in injustice."
have never known any judges, no difference how austere of manner, who
discharged their judicial duties in an atmosphere of pure, unadulterated
reason. Alas! we are "all the common growth of the Mother Earth' - even
those of us who wear the long robe". (emphasis supplied) Similar was the
view of Thomas Reed Powell, who said:
have preferences for social policies as you said and I. They form their
judgments after the varying fashions in which you and I form ours. They have
hands, organs, dimensions, senses, affections, passions. They are warmed by the
same winter and summer and by the same ideas as a layman is".
the present case, however, as we have already noted in the earlier part of the
judgment, whether the order passed by the 220 appellant was correct or not, but
the remarks made, strictures passed and directions issued by the learned Single
Judge of the High Court against the appellant were improper, uncalled for and
unwarranted. Apart from the fact that they were neither necessary for deciding
the controversy raised before the Court nor an integral part of the judgment,
in the facts and circumstances of the case, they were not justified. We,
therefore, direct deletion of those remarks."
line with the consistent view of this Court, we are of the considered view that
the Division Bench could have avoided making such observations which directly
or impliedly indicates towards impropriety in the functioning of the Court,
appreciation of evidence by the learned Judge and/or any other ancillary
matter. The content and merit of the judgment would have remained unaffected
even if such language or comments were not made against the learned trial
Judge. The respect of judiciary and for the judiciary, is of paramount
consideration. Every possible effort should be made and precaution taken which
will help in preservation of public faith and individual dignity. A judicial
consensus would require that the judgment should be set aside or affirmed as
the case 221 may be but preferably without offering any undesirable comments,
disparaging remarks or indications which would impinge upon the dignity and
respect of judicial system, act us curiae neminem gravabit. Despite exercise of
such restraint, if, in a given case, the Court finds compelling reasons for
making any comments in that event it will be in consonance with the basic rule
of law and adherence to the principles of natural justice that view point of
the concerned learned Judge should also be invited.
view of our discussion supra we direct expunction of all remarks made by the
Trial Judge against the prosecution and by the Division Bench against the Trial
the Media and Press:
Ram Jethmalani, learned senior counsel for the appellant submitted that the
appellant-Manu Sharma had been specifically targeted and maligned before and
during the proceedings by the media, who proclaimed him as guilty despite even
after his acquittal by the Trial Court. He took us through various news items
that were published in English & Hindi dailies. He elaborated that
"Justice should not only be 222 done, it should manifestly and undoubtedly
be seen to be done." This common law rule cannot be ignored.
Cardozo, one of the great Judges of American Supreme Court in his "Nature
of the Judicial Process" observed that the judges are subconsciously
influenced by several forces. This Court has expressed a similar view in P.C.
Sen In Re: AIR 1970 SC 1821 and Reliance Petrochemicals Ltd. v. Proprietors of
Indian Express 1988 (4) SCC 592.
There is danger, of serious risk of prejudice if the media exercises an
unrestricted and unregulated freedom such that it publishes photographs of the
suspects or the accused before the identification parades are constituted or if
the media publishes statements which out rightly hold the suspect or the
accused guilty even before such an order has been passed by the Court.
Despite the significance of the print and electronic media in the present day,
it is not only desirable but least that is expected of the persons at the helm
of affairs in the field, to ensure that trial by media does not hamper fair
investigation by the investigating agency and more importantly does not
prejudice the right of defence of the accused in any manner 223 whatsoever. It
will amount to travesty of justice if either of this causes impediments in the
accepted judicious and fair investigation and trial.
the present case, certain articles and news items appearing in the newspapers
immediately after the date of occurrence, did cause certain confusion in the
mind of public as to the description and number of the actual
assailants/suspects. It is unfortunate that trial by media did, though to a
very limited extent, affect the accused, but not tantamount to a prejudice
which should weigh with the Court in taking any different view. The freedom of
speech protected under Article 19 (1) (a) of the Constitution has to be
carefully and cautiously used, so as to avoid interference in the
administration of justice and leading to undesirable results in the matters sub
judice before the Courts.
Bench of this Court in the case of R.K. Anand v. Delhi High Court (2009) 8 SCC
106, clearly stated it would be a sad day for the court to employ the media for
setting its own house in order and the media too would not relish the role of
being the snoopers for the Court. Media should perform the acts of journalism
and not as a special agency for the Court.
impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt, regardless of any verdict in a Court
of law. This will not be fair. Even in the case of M.P. Lohia v. State of W.B.
& Anr. (2005) 2 SCC 686, the Court reiterated its earlier view that freedom
of speech and expression sometimes may amount to interference with the
administration of justice as the articles appearing in the media could be
prejudicial, this should not be permitted.
Presumption of innocence of an accused is a legal presumption and should not be
destroyed at the very threshold through the process of media trial and that too
when the investigation is pending. In that event, it will be opposed to the
very basic rule of law and would impinge upon the protection granted to an
accused under Article 21 of the Constitution [Anukul Chandra Pradhan v. Union
of India & Ors. (1996) 6 SCC 354]. It is essential for the maintenance of
dignity of Courts and is one of the cardinal principles of rule of law in a free
democratic country, that the criticism or even the reporting particularly, in
sub judice matters must be 225 subjected to check and balances so as not to
interfere with the administration of justice.
the present case, various articles in the print media had appeared even during
the pendency of the matter before the High Court which again gave rise to
unnecessary controversies and apparently, had an effect of interfering with the
administration of criminal justice. We would certainly caution all modes of
media to extend their cooperation to ensure fair investigation, trial, defence
of accused and non interference in the administration of justice in matters sub
Summary of our Conclusion:
appellate Court has all the necessary powers to re- evaluate the evidence let
in before the trial Court as well as the conclusions reached. It has a duty to
specify the compelling and substantial reasons in case it reverses the order of
acquittal passed by the trial Court. In the case on hand, the High Court by
adhering to all the ingredients and by giving cogent and adequate reasons
reversed the order of acquittal.
The presence of the accused at the scene of crime is proved through the ocular
testimonies of PWs 1, 2, 6, 20, 23, 24 and 70, corroborated by Ex PW 12/D-I as
well as 3 PCR calls Ex PW 11/A, B and C.
calls made immediately after an incident to the police constitutes an FIR only
when they are not vague and cryptic. Calls purely for the reason of getting the
police to the scene of crime do not necessarily constitute the FIR. In the
present case, the phone calls were vague and therefore could not be registered
as the FIR. The FIR was properly lodged as per the statement of Shyan Munshi
in recording the statement of the witnesses do not necessarily discredit their
testimonies. The court may rely on such testimonies if they are cogent and
laboratory reports in the present case are vague and ambiguous and, therefore,
they cannot be relied upon to reach any specific conclusion regarding the
evidence regarding the actual incident, the testimonies of witnesses, the
evidence connecting the vehicles and cartridges to the accused - Manu Sharma,
227 as well as his conduct after the incident prove his guilt beyond reasonable
doubt. The High Court has analyzed all the evidence and arrived at the correct
public prosecutor is under a duty of disclosure under the Cr.P.C., Bar Council
Rules and relevant principles of common law. Nevertheless, a violation of this
duty does not necessarily vitiate the entire trial. A trial would only be
vitiated if non-disclosure amounts to a material irregularity and causes
irreversible prejudice to the accused. In the present case, no such prejudice
was caused to the accused, and therefore the trial is not vitiated.
prejudice had been caused to the right of the accused to fair trial and
non-furnishing of the copy of one of the ballistic reports had not hampered the
ends of justice.
of the accused to disclosure has not received any set back in the facts and
circumstances of the case.
High Court has rightly convicted the other two accused, namely, Amardeep Singh
Gill @ Tony Gill and Vikas Yadav after appreciation of the evidence of PWs 30
Normally, the judgment/order should be set aside or affirmed as the case may be
but preferably without offering any undesirable comments, disparaging remarks
or indications which would impinge upon the dignity and respect of judicial
effort should be made by the print and electronic media to ensure that the
distinction between trial by media and informative media should always be
maintained. Trial by media should be avoided particularly, at a stage when the
suspect is entitled to the constitutional protections. Invasion of his rights
is bound to be held as impermissible.
the light of the above discussion, we hold that the prosecution has established
its case beyond doubt against the appellants and we are in agreement with the
conclusion arrived at by the High Court, consequently, all the appeals are
devoid of any merit and are accordingly dismissed.
..........................................J. (P. SATHASIVAM)
..........................................J. (SWATANTER KUMAR)
APRIL 19, 2010.