P. Sathasivam, J.
1. These 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 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 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.
2. The case of the prosecution:
(a) On 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 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.
(b) On 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 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 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. On 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. Charge under Section 302 IPC/201/120B 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 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.
(c) The post mortem was conducted at about 11.30 a.m. at the 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 02.05.1999, a list of invited guests was prepared by PW- 24. On 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 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. After the completion of investigation, the other accused persons were also arrested.
(d) On 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 120B 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 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. Against the rest of the accused, the charges as framed on 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 also examined.
(e) On 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 Court. On one occasion, against the dismissal of the bail application by the High Court on 11.11.2003, the 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.
(f) 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.
3. Heard 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 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 appellant-Manu Sharma.
Contentions of the appellants/accused:
4. Mr. 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, 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. After their deposition, the Excise case was pre-poned and disposed of by imposing a fine of paltry amount.
c) Malini 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.
d) The 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 evidence.
e) Three Ballistic Experts have concurred that empty cartridges have been fired from two different weapons. Their Report support the statement-in-chief of Shyan Munshi PW-2. There is no evidence on record that both the shots were fired from one weapon.
f) The 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 prosecution. The evidence of three family members Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 is inadmissible in law.
g) The prosecution never claimed Beena Ramani PW-20 as an eye-witness, however, the High Court erroneously held her as eye-witness to the occurrence.
h) High Court failed to consider the evidence of Madan Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47.
i) The High Court committed an error in relying upon the testimony of George Mailhot PW-24 to corroborate the evidence of Beena Ramani PW-20.
j) The 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 his evidence.
k) The High Court's observation on Ballistic Experts from CFSL is erroneous.
l) The High Court committed an error in disbelieving P.S. Manocha PW-95.
m) There is no acceptable evidence/material to connect Tata Safari to the alleged occurrence.
n) 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.
o) A 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.
p) The Public Prosecutor failed to adhere the basic principles in conducting criminal case.
q) The 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.
5. The other two learned Counsel submitted that the prosecution failed to establish the charge in respect of Amardeep Singh Gill and Vikas Yadav under Section 201 read with 120B of the IPC.
6. The intervenor supported the case of the appellant- Manu Sharma and prayed for his acquittal.
Submissions 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 three appeals.
8. We have carefully considered all the materials placed and the rival contentions.
9. 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 Framed1. Sidhartha Vashist @ 1 302 IPC, 27 Arms Act, 201Manu Sharma r/w 120B IPC2. Vikas Yadav 2 201 r/w 120B IPC3. Amardeep Singh Gill 3 201 r/w 120B IPC
Powers and Duties of the Appellate Court while dealing with the order of acquittal:
11. 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- Manu Sharma, by drawing our attention to the principles laid down by this Court in Madan Lal v. 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 v. State of 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.
12. Mr. Gopal Subramanium, learned Solicitor General, by relying on the decision of this Court in Chandra Mohan Tiwari v. 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 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 v. State of Haryana : (2000) 4 SCC 484.
13. The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) 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 giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An 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.
(vi) 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.
(vii) 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.
In the 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 defence.
14. At 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. In 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 and give our reasoning at the appropriate place or at the end of our order.
15. Presence of accused Manu Sharma and Ors. at the scene of offence.
There is no dispute that the incidence occurred in a place known as 'Qutub Colonnade'. The open area of 'Qutub Colonnade' is known as 'Tamarind Court' whereas 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.
a) Deepak 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 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. In chief examination, in categorical terms, he deposed:
I 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.
Apart 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' open area between the two doors of the 'Tamarind Cafi', 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. On the 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.
The 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. He 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, Manu Sharma told me that he would come back and meet me again.
PW-1 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 paragraphs.
About the 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. the gate of Tamarind Cafi.
He 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 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.
A close 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. It is 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 inside yet peeped and saw Jessica Lal lying on the floor. Since the 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. On seeing his entire evidence, there is no reason to either suspect his evidence or reject the same as unacceptable. On the 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 valid reason 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.
b) Shyan 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 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.
I 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. There was another gentleman on the other side of the counter, who fired a shot at Jessica Lal and she fell down. That gentleman was also wearing light colored clothes.
Since the present statement about 'another gentleman' who fired 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. I went 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.
He also 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.
The 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. To this 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.
c) 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. According 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 electrician and couple of waiters were there in the restaurant. She further deposed--
We were standing there when couple of guys went in. They were 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.
Then 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. When I 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). After 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.
Question:- 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.
About 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 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.
d) Beena 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. This property is being used as a Shopping Arcade and a Restaurant. The Shopping Arcade is known as 'Qutub 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 Thursdays Parties. Jessica Lal and Shyan Munshi were friends of my daughter Malini and were helping her on that night
The 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 restaurant. 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. 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 into.
That 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.
She also 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--
About a week later, at the Police Station, the name of which I do not remember, I saw that person. I saw Manu Sharma.
If we 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 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 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.
e) George 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 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 further deposed:
I 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. Sardarji. 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 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 others.
I 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.
His 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. As rightly pointed out by learned Solicitor General, his evidence also proves the presence of the accused-Manu Sharma at the scene of offence.
f) Rouble Dungley PW-23:
In his evidence, he admitted that he had told the police that he saw Beena Ramani going after a boy. In his deposition, he mentioned that:
It 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 been shot.
g) Rohit Bal PW-70:
He deposed that:
Beena 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.
The above statement makes it clear that after the shooting incident Beena Ramani was running behind a man shouting 'catch that man'
From the 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 corroborated by Ex PW 12/D-I, the wireless message received at PS Mehrauli.
In 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.
h) HC Devi Singh PW 83 --- In-charge of PCR Van:
He 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:
From 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.
One 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.
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. Admittedly 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 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. The 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 basis.
Evaluation 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 fact that Beena Ramani PW-20 had seen actual shooting as the witness says that they both entered together. Madan Kumar PW 46 worked in Qutub Colonnade in April, 1999 as a waiter. In his evidence, he informed the Court that:
'the 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'.
I knew 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.
Jatinder 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.
17. Jitender Raj PW 47 was working as a Manager-cum- Supervisor. He used to check the supplies, cash and 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. Generally 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:
The time might be 2 AM. I heard the firing of two shots, and the noise of firing had come from the side of cafi. I opened 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.
I 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.
18. 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. It is 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 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, 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.
19. It 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 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- 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.
21. Mr. 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' and PW-20 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 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.
22. Mr. 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 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 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 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 day soon after the statement of Shyan Munshi to which statement she stuck even in her testimony before the trial Court.
23. It 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. The said 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 reasons cannot wipe out the unchallenged testimony of PW-20, which is the case of the prosecution.
24. 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 fashion.
25. It 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 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.
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.
27. As 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.
28. The argument that deposition of PW-6 as regards the presence of other accused, does not find corroboration 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 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.
29. It 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 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.
30. It 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. It was 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 as he was present at the bar counter and conversant with every thing. 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. and 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 unreasonable.
31. In 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 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.
32. 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.
33. 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 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.
34. With 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. removal 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 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. On the 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.
What 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.
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. v. Bhagwant Kishore Joshi : AIR 1964 SC 221 and Emperor v. 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 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.
37. 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. On the 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 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 v. 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. A reading 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 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.
38. Learned senior counsel for the appellant also relied on judgment of the Gujarat High Court in Mehr Vajsi Deva v. 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 registering FIR.
39. Learned senior counsel for the appellant also relied on the judgment of this Court in Superintendent of Police, CBI and Ors. v. 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.
40.It 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 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. v. P.A. Madhu : (1984) 4 SCC 83 wherein this Court has not accepted a similar argument and held as under:
5. To 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.
11. Durga 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 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. The High 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 information report.
Similar views have been expressed in Tapinder Singh v. State of Punjab : (1970) 2 SCC 113, Damoder v. Rajasthan : (2004) 12 SCC 336 and Ramsinh Bavaji Jadeja v. State of Gujarat : (1994) 2 SCC 685.
It was argued and highlighted that since PW-2 Shyan Munshi has been confronted with his signed statement i.e. Ex.PW-2/A and B, the whole evidence goes in light of Zahidurddin v. 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. v. Ram Ajudhya Singh and Anr. : AIR 1965 Cal. 348 (Para 9) and Mer Vas Deva v. 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 was rejected in Ranbir Yadav v. State of Bihar : (1995) 4 SCC 392.
37. 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 village.
38. 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. While being further cross-examined he volunteered that 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 Jethmalani.
39. In the case of Zahiruddin the police had got the statement of the principal witness which was, admittedly, recorded during investigation signed by him. Besides, 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 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)
40. In 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. 10/1 as 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.
41. The information about the commission of a cognizable offence given 'in person at the Police Station' and the information about a cognizable offence given 'on telephone' have forever been treated by this Court on different pedestals. The rationale for the said differential 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 Ors. v. State of Maharashtra (2007) 13 SCC 501, that a cryptic message 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.
42. In 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.
42A) Seizure of Tata Safari & broken glass pieces and live cartridge:
(i) The 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. on 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 2-4 minutes. He further informed that SHO S.K. Sharma directed him to keep vigil at the parking so that nobody is allowed to take away cars parked there. The following information is relevant:
When 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.
At this 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, Advocate.
It is the same Tata Safari vehicle, which was hit by me on that night. It is exhibited as article Ex.PW 30/X.
It is 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 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.
ii) The 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. He has 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.
iii) SI 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.
At Qutub Colonnade on the left side near the gate a black Tata Safari car was parked besides other cars. SHO Insp. 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. SHO S.K. 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.
iv) 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.
It is 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 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. Further, 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, PW-101. It was 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 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.
43. PW-30 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 identified that Tata Sierra was driven by Amardeep Singh Gill whereas Vikas Yadav drove away black Tata Safari.
44. Insp. 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.
Tata Safari at Noida:
45. It 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 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, Chandigarh.
46. Apart 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 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 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 Ghaziabad.
Recovery of Tata Safari with live bullet and broken glass pieces at Noida:
47. PW-91 SI BD Dubey, in his evidence has stated that information was received that the vehicle involved in Jessical Lal murder case was parked at NTPC Township. They 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. PW-74 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 26.06.1999.
48. PW-101 in his evidence has stated that:
On 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 Under Section 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 recorder, one prescription of Nagpal Nursing Home and one letter written to Vijay Sharma. Every thing was seized vide seizure memo Ex PW 100/DB which bears my signature at point A and of SI BD Dubey at point B. The 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 Section 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 Under Section 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. The 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.
Tata Safari being used by Manu Sharma on the day of occurrence:
50. From the evidence on record it has been proved by the prosecution that appellant/accused Sidhartha Vashisht @ ., 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 & Cartridges:
51. Sh. Surender Singh PW-14 has proved that pistol No. B-56943 U 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 .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 Under Section 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 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 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.
54. Even, 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 put. C.N. 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. Beretta 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 v. State of Punjab : (2001) 4 SCC 375 at page 381:
It 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 virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference
In addition, the prosecution by way of acceptable evidence has proved beyond reasonable doubt that:
a) Manu Sharma accused was the owner and possessed .22' P. Berretta Pistol made in Italy.
b) Two empty cartridges cases of the .22' with `C' mark recovered from the spot.
c) The mutilated lead recovered from the skull of deceased was of .22' and could have been fired from a standard .22' caliber firearm.
d) From the Tata Safari live cartridge of .22' with mark `C' was recovered on 02.05.1999.
e) The 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.
f) The two .22' cartridge cases recovered from the spot are to be rim fired, rimmed steel c1artridge cases.
g) 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.
The 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 unwarranted.
55. The 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 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 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 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.
57. Mr. 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:
Q.64 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.
Q.65. It is further in evidence of PW-20 that the companion of Shyan Munshi (you Manu Sharma) was wearing T-shirt 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.
Q.66 It 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.
Q.67 It 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.
A perusal 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 Sharma.
The 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 Court committed an error in ignoring the said vital aspect. For this, 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 v. State of 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. The details of investigation conducted on each day are 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.
59. The judgment in Maruti Rama Naik v. 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 case.
60. The other judgment in Jagjit Singh v. 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 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 case.
61. The 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. PW-1 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, 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. Further 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. Further Section 162 Cr.P.C. is very clear that it is not mandatory for the police to record every statement. In 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. himself 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 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:
Few 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.
63. In Mohd. Khalid v. State of W.B. : (2002) 7 SCC 334, this 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 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 v. 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 v. State of Mahrashtra : (1992) 3 SCC 106.
Evaluation of Laboratory reports and examination of experts.
64. The evidence in respect of two FSL reports is as under:
By letter 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:
5. Please examined and opine whether the two empties present in parcel mentioned at Sl No. 5 have been fired from the same weapon?
6. Please 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 arm?
7. Please 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 respectively?
8. If answer to querry No. 7 is yes then whether these marks are similar and caused by the same fire arm?
The Ballistics Division of CFSL gave report in respect of the queries as under:
1) The .22' badly mutilated lead bullet (marked BC/1) of No. 3 could have been fired from a standard .22' caliber firearm.
2) The two .22' cartridge cases marked C/1 and C/2 have been fired from two different .22' caliber standard firearms.
3) The .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.
4) The 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.
According 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 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.
65. With 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 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 justice. It is 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. PW 89/DB. 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. No. 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 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; appreciation of such evidence can only be the work of the Court. Reliance has been placed on A.E.G. Carapiet v. A.Y. 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. 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 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. It has 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. Attention 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.
67. It 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 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. In any 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. Assuming 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 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 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.
68. The prosecution obtained another opinion from FSL Rajasthan and the queries made are as under:
1. Please examine and opine the bore of the two empty cartridges present in the sealed parcel.
2. Please opine whether these two empty cartridges have been fired from a pistol or a revolver.
3. Whether both the empty cartridges have been fired from the same fire arm or otherwise.
In response to these queries, the expert opinion of the FSL, Rajasthan is as under:
1. The caliber of two cartridge cases (C/1 and C/2) is .22.
2. These two cartridge cases (C/1 and C/2) appear to have been fired from a pistol
3. No 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 examination.
It was 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 as under:
Q. 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 opinion that these two cartridge cases C/1 and C/2 appeared to have been fired from two different fire arms.
The said witness in further cross-examination replied as under:
There 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 arms
The said 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.
69. The 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. inasmuch 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 v. State of Haryana : AIR 1981 SC 1036. It has been argued that the judge knew that the issue was 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 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 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 finding.
71. On behalf of the prosecution, it is pointed out that the entire argument of the accused that an expert opinion was sought at the fag 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 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. Clearly 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. For 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 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. Similar 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 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 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 given.
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.
73. The 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 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.
Role of Public Prosecutor and his duty of disclosure:
74. It 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 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 trial.
76. A 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. Hukam Chand and Anr. : (1999) 7 SCC 467 as follows:
13. 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 Public Prosecutor. 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 subjected his role strictly to the instructions given by the Public Prosecutor.
This Court has also held that the prosecutor does not represent the investigation agencies, but the State. This Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. : (1994) 4 SCC 602 held:
22. ...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
Therefore, 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 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 full:
43. The Courts have to take a participatory role in a trial. They are 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 could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
44. The 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' clearly 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 sub serve 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 truth.
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 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.
46. 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.
47. 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. Section 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 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 desirable.
48. The 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.
49. There 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 judicial functions.
78. The 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 defense. In the absence of this, it was argued, there would be a violation of the right to fair trial.
79. In 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 follows:
207. Supply to the accused of copy of police report and other documents.
In any 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.
(i) The police report;
(ii) The first information report recorded under Section 154:
(iii) The 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.
(iv) The confessions and statements, if any, recorded under Section 164;
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173:
Provided 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 such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided 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.
208. Supply of copies of statements and documents to accused in other cases triable by court of Session.
Where, in 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.
(i) The statements recorded under Section 200 or Section 202, or all persons examined by the Magistrate;
(ii) The statements and confessions, if any, recorded under Section 161 or Section 164;
(iii) Any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided 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 court.Rule 16 of the Bar Council of India Rules.
Rule 16 of the Chapter II, part VI of the Bar Council of India Rules under the Advocates Act, 1961 is as under:16. An 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.
Therefore, it is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. But this 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 England.
80. 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. 577, 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 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 and 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. But at the same time, it was also held that:
since the purpose of a warrant issued under Section 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 Section 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 consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial.
Thus the 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.
82. In 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 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 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 of Kashmeri Dev v. Delhi Administration and Anr. : 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