Tags------Scope of the Appellate Court
in reversing the order of acquittal by the Trial Court; Duty of the
Court when witness turns hostile; the
role of a prosecutor, disclosure requirements if placed by the
prosecutor and the role of a judge in a criminal trial.; Section 311
Cr PC; Section 391 Cr PC; Sections 207 and 208 Cr PC;
Prosecution--- Investigation-- Criminal Jurisprudence; Guidelines
'how investigating agencies should conduct investigation'; Section
170 to 173 of the Criminal Procedure Code; What is the significance
of requiring an investigating officer/officer in charge of a police
station to maintain a diary?; Section
8
of Evidence Act; Sectioon 27
Evidence Act; necessity and usefulness of test identification
parade; Section 315 of the Code; Section 313 of the
Code-------Evidentiary value of; Adverse
remarks against prosecution and Trial Judge; Role
of the Media and Press; The
freedom of speech protected under Article 19 (1) (a) of the
Constitution; protection granted to an accused under Article 21 of
the Constitution; Phone calls made immediately after an incident to
the police constitutes an FIR only when they are not vague and
cryptic.;
Sidhartha
Vashisht @ Manu Sharma vs State (Nct Of Delhi) on 19 April, 2010
Author:
P Sathasivam
Bench:
P. Sathasivam, Swatanter Kumar
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 179 OF 2007
Sidhartha
Vashisht @ Manu
Sharma
.... Appellant(s) Versus
State
(NCT of Delhi) .... Respondent(s) WITH
CRIMINAL
APPEAL NO. 157 OF 2007
AND
CRIMINAL
APPEAL NO. 224 OF 2007
JUDGMENT
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 1
Criminal
Procedure Code against the final judgment and order dated
18/20.12.2006 passed by the High Court of Delhi in Criminal Appeal
No. 193 of 2006 whereby the High Court reversed the order of
acquittal dated 21.02.2006 passed by the Additional Sessions Judge,
Delhi, in Sessions Case No. 105 of 2001 and convicted Sidhartha
Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) under
Section 302, 201/120B IPC and Section 27 of the Arms Act and
sentenced him to undergo imprisonment for life for the offence under
Section 302 IPC together with a fine of Rs.50,000/- to be paid to the
family of the victim and in default of payment of fine, to undergo
further imprisonment for three years and also sentenced him to
undergo imprisonment for four years for the offence under Section 27
of the Arms Act with a fine of Rs.2000/- and in default to further
undergo imprisonment for three months. He was further sentenced to
undergo imprisonment for four years for the offence under Section
201/120B IPC together with a fine of Rs. 2,000 and, in 2
default,
to further undergo imprisonment for three months. The High Court also
sentenced Amardeep Singh Gill @ Tony Gill (appellant in Crl.A. No.
157/2007) and Vikas Yadav (appellant in Crl. A.No.224/2007) to
undergo rigorous imprisonment for four years and a fine of Rs.2000/-
each and, in default of payment of fine, to further undergo
imprisonment for three months under Section 201/120B IPC.
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 3
him
understand that the party was over and there was no liquor available
with them. On refusal to serve liquor, the appellant took out a
pistol and fired one shot at the roof and another at Jessica Lal
which hit near her left eye as a result of which she fell down. Beena
Ramani (PW-20), who was present there, stopped the appellant and
questioned him as to why he had shot Jessica Lal and demanded the
weapon from him but he did not hand over the pistol and fled away.
Jessica Lal was rushed to Ashlok Hospital from where she was shifted
to Apollo Hospital. On 30.04.1999, in the early morning hours,
Jessica Lal was declared brought dead at Apollo Hospital. (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 4
Kumar
(PW-100) who along with Ct. Subhash also left for the spot. On
reaching the spot, PW-78 found that the injured had been removed to
Ashlok Hospital and the floor of the Restaurant was found to be wet.
SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78) at the spot
to guard the same and proceeded to Ashlok Hospital along with Ct.
Subhash. The SHO Police Station Mehrauli, Inspector S.K. Sharma
(PW-101) along with his team also left the Police Station vide DD
Entry No. 43 A and reached the spot and deputed one Home Guard
Shravan Kumar (PW 30) at the entrance of `Qutub Colonnade' to guard
the vehicles. On reaching Ashlok Hospital, PW-100 met Beena Ramani
(PW-20), who is the owner of the Restaurant, and enquired about the
incident but she asked him to talk to Shyan Munshi (PW-2) saying that
he was inside and he knew everything. PW-100 then recorded the
statement of PW-2 and made an endorsement on the same for the
registration of the case under Section 307 IPC and handed over it to
Ct. Subhash 5
to
be carried to the police station, Mehrauli. At about 4.00 a.m., FIR
No. 287/99 was registered at the police station, Mehrauli. In the
meantime, Jessica Lal had been shifted to Apollo Hospital. When SI
Sunil Kumar came back to the spot along with PW-2, PW 30 informed
them about the lifting of one black Tata Safari from the spot. 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/201/120 B IPC and under
Section 27 of the Arms Act has been framed against the accused
Sidhartha Vashisht @ Manu Sharma, charge under Section 201/120B IPC
has been framed against accused Vikas Yadav, Amardeep Singh Gill @
Tony Gill and Alok Khanna, charge under Section 212 IPC has been
framed against Harvinder Chopra, Raja Chopra, Vikas Gill @ Ruby Gill
and Yograj Singh and charge under Section 6
201/212
IPC against Shyam Sunder Sharma. At about 7.00 a.m. PW 100 recorded
the statement of the Manager (PW-47), Waiter (PW-46) and Beena Ramani
(PW-20)- the owner of the Restaurant.
(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 7
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 8
conducting
Test Identification Parade (TIP) of the appellant was also moved.
Thereafter, the appellant was remanded to five days police custody
till 12.05.1999 and thereafter on 12.05.1999 extended till 17.05.1999
on the application of the I.O., but on 15.05.1999, the appellant's
remand was preponed from 17.05.1999 to 15.05.1999. On 16.05.99, the
appellant was sent to judicial custody. On 30.05.1999, the
accused-Vikas Yadav was also arrested. 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 120 B IPC and
Section 27 of the Arms Act, accused Amardeep Singh Gill was charged
under Section 120 read with Section 201 IPC, accused Vikas Yadav was
charged under Section 120 read with 201 IPC as also Section 201 read
with 34 IPC, accused Harvinder Chopra, Vikas Gill, Yograj Singh and 9
Raja
Chopra under Section 212 IPC and accused Alok Khanna, Shyam Sunder
Sharma and Amit Jhingan were discharged of all the offences. In
2000/2001, Revision Petition No. 596 of 2000 was preferred by the
prosecution before the High Court of Delhi praying for the framing of
charge against the accused persons and setting aside the discharge of
Alok Khanna, Shyam Sunder Sharma and Amit Jhingan. Revision Petitions
were also preferred by the accused persons against the framing of the
charges against them. The High Court disposed of all the revision
petitions filed by the accused persons by a common order dated
13.03.2001. On 12.04.2001, charges as per the orders of the High
Court were framed and some of the charges as framed earlier were
maintained. Charges under Section 120B/201 IPC were framed against
accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok Khanna
and charges under Sections 201 and 212 IPC were framed against
accused Shyam Sunder Sharma. Against the rest of the accused, the
charges as framed on 10
23.11.2000
by the trial Court were maintained. Trial began in May, 2001 against
nine accused. In all, 101 witnesses were examined by the prosecution
and two court witnesses were 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 11
appellant
filed a special leave petition before this Court which was dismissed
by this Court on 02.12.2003. On 21.02.2006, after trial, the
Additional Sessions Judge acquitted all the nine accused including
the appellant- Manu Sharma.
(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 12
Vikas
Yadav, appellant in Crl. A.No.224/2007, Mr. Gopal Subramanium,
learned Solicitor General of India for Respondent-State in all the
three appeals and Mrs. Mamta Dhody Kalra, intervenor, who appeared in
person and pleaded for acquittal of the 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, 13
Beena
Ramani PW-20 and George Mailhot PW-24 under the Punjab Excise Act in
order to control these witnesses and to pressurise them to support
the prosecution case. 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, 14
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.
15
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 16
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.
17
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 Framed
1.
Sidhartha Vashist @ 1 302 IPC, 27 Arms Act, 201 Manu Sharma r/w 120B
IPC
2.
Vikas Yadav 2 201 r/w 120B IPC
3.
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-
18
Manu
Sharma, by drawing our attention to the principles laid down by this
Court in Madan Lal vs. State of J&K, (1997) 7 SCC 677
submitted that in an appeal against acquittal, it is incumbent on the
Appellate Court to give adequate reasons for reversal. By citing
Ghurey Lal vs. 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 vs. State of M.P.,
(1992) 2 SCC 105 submitted that where the High Court's conclusion was
based on evaluation of evidence which was not erroneous or perverse
and was based on an independent analysis of evidence which fully
establishes the case of the prosecution as against the trial Court's
conclusion, there 19
is
no reason much less the compelling reason to disagree with the
finding of guilt by the High Court. He also pressed into service
another decision of this Court in Jaswant Singh vs. State of Haryana,
(2000) 4 SCC 484. 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 20
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. 21
(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 22
and
give our reasoning at the appropriate place or at the end of our
order.
15)
Presence of accused Manu Sharma & others 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 23
had
attended the place known as "Qutub Colonnade" as
Thursday Party four times on each Thursday and the last occasion when
he attended this Thursday Party was on 29.04.1999. There used to be a
gathering of friends at this Party and all varieties of liquor used
to be served in this Party besides snacks etc. He explained that
coupons used to be issued for purchase of any kind of liquor. Such
coupons were used to be purchased in advance from the cash counter.
On 29.04.1999, he attended the Thursday Party alone at about 11
o'clock in the night. 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", 24
but
since it was summer nobody was using the bar counter giving
preference to the bar counter located outside. He also stated that
Jessica Lal was wearing blue denim shorts and white half sleeved
shirt on that night. 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, 25
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 26
blue
denim jeans and white shirt and was fair and was little short in
height then I assessed that he was the same person who had come to me
to arrange drinks for him. I had told the police in Apollo Hospital
that it was Manu Sharma who was with the similar description as was
discussed amongst friends on which police had told me that they would
call me." 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 27
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 28
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 29
liquor.
On that night, I did go inside the Tamarind Cafi. It might be 2
o'clock at that time, I mean 2 a.m. There were about 6-7 persons
inside the cafi at that time. " "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. 30
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.
31
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 32
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." 33
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
34
grievance
that she was unable to understand her earlier answers. In such
circumstances, we are unable to appreciate the objection of Mr. Ram
Jethmalani. On the other hand, it is clear from the evidence of PW-6
that the accused Manu Sharma was very well present at the scene of
offence and she correctly identified him. Further, as rightly
observed by the High court, though she was not an eye-witness, she is
certainly a witness identifying Manu Sharma along with 4 or 5 persons
present at the Tamarind Court who asked her for whisky and later
misbehaved with her. We agree with the observation and the ultimate
conclusion about PW-6 reached by the High Court.
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
“QutubColonnade”. 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.
- It is relevant to mention that Madan Kumar PW-46 also stated that when the occurrence took place he was present on the stairs leading to terrace and that time he saw people rushing in and some people rushing out of the restaurant who were also shouting "Goli Lag Gai, Jessica Lal Ko Goli Lag Gai". He came downstairs after hearing the noise and went to the restaurant, thus it is evident that this witness did not hear the shots of the fire but only realized about the occurrence after people were rushing in and rushing out shouting. A perusal of the testimony of PW-46 reveals that when he came down, PW-20 was already there. Thus PW-46 is not in a position to say as to what PW-20 witnessed. It may be further pointed out that the stairs leading to the terrace are not on the cafi but on the main building of Qutub Colonnade which houses the shops beyond the verandah and Tamarind Court. Hence, the testimony of PW-46 cannot negate the evidence of PW- 52 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.
- 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.
- 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. vs. Bhagwant Kishore Joshi AIR 1964 SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18 contended that investigation of an offence can start either on information or otherwise and that the receipt and recording of FIR is not a condition precedent to the setting in motion of criminal investigation. Placing reliance upon the said judgments, it has been further argued by the learned senior counsel for the appellant that in the present case the three cryptic telephonic messages received by the Police at around 2.20 a.m. on 30.04.1999 should be treated as FIR upon which the investigation started and, therefore, the statement of PW-2 recorded by 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 vs. The State of Delhi (1955) SCR 1150 wherein this Court has held that investigation usually starts on information relating to commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the Code. 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 vs. State of Gujarat, AIR 1965
Guj 143. A perusal of the said judgment shows that the details of the
offence given by the telephonic message in the said judgment clearly
described that `one man was assaulted by means of an axe at Sudama
Chowk', on the other hand, in the case on hand the telephonic message
did not give any details of the offence or accused and the same was a
vague information. The said judgment should be read per incuriam in
view of plethora of judgments of this Court wherein it has
categorically held that cryptic telephonic messages not giving the
particulars of the offence or accused are bereft of any details made
to the police only for the purpose of getting the police at the scene
of offence and not for the purpose of registering FIR. 39)
Learned senior counsel for the appellant also relied on the judgment
of this Court inSuperintendent
of Police, CBI and Others vs. Tapan Kumar Singh, (2003)
6 SCC 175. In the said case, detailed information was given on
telephone including the offence and the whereabouts of the accused.
On the other hand, in the present case, as observed earlier all the
three telephone calls barely mentioned that a fire was shot and a
girl was killed. The said information could only be concluded to have
been given to the police to get the police to the scene of offence
and not with the object of registering FIR. In
those circumstances, the judgment in Tapan Kumar Singh (supra) has no
application to the facts of the case on hand.
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. vs. 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 vs. State of Punjab (1970)
2 SCC 113, Damoder vs. 78
Rajasthan
(2004) 12 SCC 336 and Ramsinh
Bavaji Jadeja vs. State of Gujarat (1994)
2 SCC 685. 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 vs. Emperor, AIR 1947
PC 75. Apart from the above decision reliance has further been placed
on Superintendent and Remembrancer of Legal Affairs to the State of
W.B. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cal. 348 (Para 9)
and Mer Vas Deva vs. State of Gujarat, AIR 1965 Guj. 143 (Para 9
& 10). We have carefully perused those decisions. We are
satisfied that nothing turns on this argument since the said
decisions only provide that where a statement made/given by a witness
under Section 161 of the Code and signed by the same is hit by the
bar prescribed under Section 162 of the Code, but nowhere do they say
that the evidence deposed to in Court by the said witness becomes
admissible. As a matter of fact, similar argument of the defence
counsel 79
"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 80
he
had started the investigation of the case registered over the second
incident in the same night. In the face of such admissions of PW 96
and the various steps of investigation he took in connection with the
second incident there cannot be any escape from the conclusion that
the report lodged by PC PW 1 on the following morning could only be
treated as a statement recorded in accordance with Section 161(3) of
the Code and not as an FIR. The next question, therefore is whether
the evidence of PC PW 1 is inadmissible as contended by Mr
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 81
was
giving evidence at the trial. When, therefore, the Magistrate or
presiding Judge discovers that a witness has made material use of
such a statement it is his duty under the section to disregard the
evidence of that witness as inadmissible. In the present case there
is in the note at the end of Mr Roy's examination-in-chief and, in
the judgment of the Magistrate what amounts to a finding of fact that
Mr Roy while giving his evidence made substantial and material use of
the signed statement given by him to the police, and the Magistrate
was accordingly bound to disregard his evidence. The Magistrate's
reason for doing so is too broadly stated, for it is not the mere
fact that Mr Roy had signed the statement but the fact that he had it
before him and consulted it in the witness box that renders his
evidence incompetent." (emphasis supplied)
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 82
treatment
to the two situations is, that the information given by any
individual on telephone to the police is not for the purpose of
lodging a First Information Report, but rather to request the police
to reach the place of occurrence; whereas the information about the
commission of an offence given in person by a witness or anybody else
to the police is for the purpose of lodging a First Information
Report. Identifying the said objective difference between the two
situations, this Court has categorically held in a plethora of
judgments that a cryptic telephonic message of a cognizable offence
cannot be treated as a First Information Report under the Code. It
has also been held in a number of judgments by this Court that merely
because the information given on phone was prior in time would not
mean that the same would be treated as the First Information Report,
as understood under the Code. This view has been reiterated in Ramesh
Baburao Devaskar and Others vs. State of Maharashtra (2007)
13 SCC 501, that a cryptic message 83
given
on telephone by somebody who does not disclose his identity may not
satisfy the requirement of Section 154 of the Code of Criminal
Procedure.
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 84
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 85
Amardeep
Singh Gill came in a Tata Sierra, PW-30 gave a danda blow on the
right rear side of the window of the car.
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. 86
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. 87
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 88
DD
No.40A and 43A dated 30.04.1999. A perusal of FIR 286 of 1999 dated
30.04.1999 under Section 308/34 IPC PS Mehrauli Ex-CW-2/B shows that
the said `rukka' was sent by SI Rishi Pal through Balwan Singh from
AIIMS and not from Dera Gaon. The said FIR also indicates that SI
Rishi Pal by 2.30 a.m. had already recorded the statement of the
victim at AIIMS and had not sent the same with Balwan Singh with
`rukka' to PS, Mehrauli. In those circumstances, the version of PW-30
and PW-101 that PW-30 met him at the gate of the PS when PW-101 was
going out with other staff is reliable and acceptable. 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 89
permanent
police officers when help the investigating agency in solving crimes
have been recruited in Delhi Police and strongly submitted that the
evidence of Shravan Kumar cannot be discredited on this point. The
said submission cannot be ignored.
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 90
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.
91
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
92
he
was referring to the Piccadilly Agro Industries having been found at
Bhadson Karnal and not the vehicle/Tata Safari. It was also pointed
out when Manu Sharma was questioned under Section 313 Cr.P.C.
particularly question No. 119 the doubt about the vehicle has been
erased. Question No. 119 put to Manu Sharma and his answer is as
follows:-
"Q.119
It is further in evidence of PW 100 that when he came back to Qutub
Colonnade nearly at about 03:15 PM on 30.04.99 where he met Surinder
Sharma (PW 101) and discussed the case with SHO Surinder Sharma who
informed him that vehicle No. CH-01-W- 6535 which was lifted from the
spot in the morning is found to have been registered in the name of
Piccadilly Agro Industries, Bhadson and it was also found in Karnal
and he further informed him that you Sidharth Vashist @ Manu Sharma
is a Director of the said industry who is residing in House No. 229,
Sector 9C, Chandigarh. What you have to say in this regard? Ans. It
is correct that Vehicle No. CH-01-W-6535 is registered in the name of
Piccadilly Agro Industries Ltd., Piccadilly Cinema, Sector 34,
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 93
was
used by Manu Sharma's office which was at Bhadson, District Karnal.
It is further seen from his evidence that he sent SI Pankaj to
Chandigarh and Inspector Raman Lamba to Bhadson. In this regard the
evidence of PW-87 Raman Lamba is relevant. He deposed before the
Court that he was instructed that the inmates of Black Tata Safari
No. CH-01-W-6535 was involved in the case and he was asked to search
the same. As directed, he left Delhi on 30.04.1999 and reached
Bhadson at the premises of Piccadilly Agro Industries. According to
him, he met Major Sood and the sugar mill was closed at that time. He
also learnt that the sugar mill was not functioning because of off
season since 25.04.1999. From Bhadson, he went to Kurukshetra and he
tried to locate Black Tata Safari in the aforesaid sugar factory at
Bhadson but did not find it. Even at Chandigarh, Tata Safari was not
available in his house at Sector 229, Sector 9C, Chandigarh. SI
Pankaj Malik PW-85 also deposed before the court that on 30.04.1999
he was deputed by Inspector 94
Surender
Kumar to trace out black colour Tata Safari car bearing Registration
No. CH-01-W-6535. As rightly pointed out that the vehicle being
recovered at Karnal on 30.04.1999, the question of sending SI Pankaj
Malik does not arise. From the statements of Sunil Kumar PW-100,
Inspector Surender Kumar Sharma PW-101, Inspector Raman Lamba PW-87,
ASI Nirbhaya Singh PW-80 and SI Pankaj Malik PW-85, it is clear that
Tata Safari vehicle was being searched by Inspector Raman Lamba PW-87
and SI Pankaj Malik PW-85 and other police officers at various places
in Delhi, Haryana and Chandigarh. As the said vehicle was found on
02.05.1999 at Noida and the same was taken into possession through a
seizure memo prepared by Noida Police. The same was taken into
possession by Delhi Police on 03.05.1999 after taking appropriate
orders from the Magistrate 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 95
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 U/s 25 Arms Act. SI BD Dubey handed over
a pullanda of glass pieces which were found inside the vehicle by the
NOIDA police. I seized the vehicle pullanda and the documents two
tape 96
recorder,
one prescription of Nagpal Nursing Home and one letter written to
Vijay Sharma. 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 Sec.24, Noida have deposed that they found
black Tata Safari No. CH-01-W-6535 abandoned at the NTPC Township
pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide
Ex. PW 74/B. The said Tata Safari was seized under seizure memo Ex PW
74/A. PW 101 has clearly deposed that about 10 pm on 02.05.1999 he
got the information with regard to the Tata Safari having been found
at Noida. On 03.05.1999, he moved an application before the ACJM,
Noida for the superdari of the Tata Safari vide Ex. PW 101/1 and in
pursuance of the orders of ACJM Ex. PW 101/2 and he seized the same
vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB along with
other articles including broken glass pieces which were duly sealed
with the seal of BD. The seizure memo Ex. PW 100/DB is duly signed by
SI BD Dubey. 97
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 98
Vashisht
@ Manu Sharma along with co-accused Amardeep Singh Gill, Alok Khanna
and Vikas Yadav were present in the said party at Tamarind Cafi on
the night of occurrence. The presence of Tata Safari CH-01-W-6535 at
the place of occurrence and its being forcibly taken at around 3.45
am after the incident has also been proved beyond reasonable doubt.
Manbir Singh PW-18 has proved that the said Tata Safari CH-01-W-6535
is registered in the name of Piccadilly Agro Industries Ltd.,
Chandigarh. It has also been proved from the testimony of PW-25,
PW-26, PW-48 and the annual report of Piccadilly that accused
Siddhartha Vashisht @ Manu Sharma was the director in Piccadilly Agro
Industries which finding has also been arrived at by the Trial Court
in favour of the prosecution. Thus a reasonable inference has to be
drawn from the above mentioned evidence that accused Manu Sharma used
the said Tata Safari for coming to Qutub Colonnade on the fateful
night of 29/30.04.1999.
99
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 100
.22"
bore pistol No. B-56943 U, make P. Berretta, made in Italy. The case
of accused Sidhartha Vashisht @ Manu Sharma as per his statement u/s
313 Cr.P.C. is that on the night of 30.04.1999 and 01.05.1999 when a
raid was conducted at his farm house at Samalkha, his pistol
ammunitions and arms license were taken away. As rightly pointed out
by the counsel for the State that the defence of the accused is
totally incorrect in view of the positive evidence adduced on record.
This defence of the accused Sidharth Vashisht @ Manu Sharma is a
clear afterthought as no complaint was lodged by the accused in this
regard nor the same was mentioned when he was twice produced for
police remand before the MM for recovery of the pistol employed in
the incident. 53) It is the claim of the learned senior counsel for
the appellant/Manu Sharma that the seizure memo dated 06.05.1999 with
reference to the arms license is fabricated as the license has been
taken from the farmhouse of the accused on 30.04.1999/01.05.1999.
Learned Solicitor 101
General
appearing on the side of the State demonstrated that the above
contention is false one. Since, on 06.05.1999, when the accused Manu
Sharma surrendered, he was accompanied by the lawyer in whose
presence his arrest memo was prepared and the lawyer also signed the
same. However, as rightly pointed out with reference to the arms
license which was also produced by them, the same does not bear the
signature of the said lawyer. The learned counsel for the State
further pointed out that the said lawyer declined to sign the seizure
memo that was the reason that it does not bear the signature of the
said lawyer. It is to be remembered that admittedly the
appellant/accused nowhere came out with an explanation. His arms
license was taken away by the Police in 30.04/01.05.1999 with any
seizure memo, why he has not lodged any report about the same. It is
also relevant to point out when the accused after surrendering before
the police of Chandigarh on 06.05.1999 was produced before the 102
Magistrate
in Delhi. The police sought remand on two occasions specifically for
recovery of the weapon of the offence. It was pointed out by the
prosecution that Manu Sharma was duly represented by lawyers who did
not point out on both occasions that the pistol had already been
taken by the Police. The State also denied the said claim of the
accused as false and concocted. 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. 103
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 vs. 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
104
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 cartridge cases.
105
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
106
theft
report was lodged; that his prior and subsequent conduct of having
got the Tata Safari removed from the spot, of absconding; refusal to
TIP without having any basis; that he even denied his presence at the
spot, clearly prove beyond reasonable doubt leaving no manner of
doubt that he is guilty of the offence of murdering Jessica Lal by
using firearm and destroying evidence thereafter. 56) It is pointed
out by the State that when the accused Manu Sharma was arrested on
06.05.1999, the police filed an application dated 07.05.1999 for
police remand of the accused for recovery of pistol. The defence
filed a reply to the said application on the same day i.e.,
07.05.1999 and thereupon the Metropolitan Magistrate passed an order
on the same day granting seven days police custody of the accused for
recovery of pistol. The accused despite forever maintaining that the
police had illegally taken away the pistol from his farmhouse on
30.04.1999/01.05.1999, did not take this ground in the reply to
remand application and argument to the said effect was recorded in
the 107
remand
order by the Magistrate. The only inevitable conclusion that could be
reached from the said turn of events is that the pistol was still in
custody of the accused and had never been recovered by the police
from his farmhouse. In the reply dated 07.05.1999 filed by the
accused to the remand application, there are interpolations in the
reply in black ink in two handwritings to the effect that the pistol
had already been recovered from the person of the accused. The
assertion that the words in two handwritings in black ink are
interpolations gain strength from the fact that nowhere in the remand
order dated 07.05.1999 has it come that the accused has taken the
plea that the pistol had already been recovered. It is pointed out by
the learned Solicitor General that the Courts below ought to have
drawn an adverse inference from the said facts but have failed to do
so. Thus this evidence coupled with the testimony of Shyan Munshi,
PW-2, that the person in white T-shirt who was asking for whisky took
out a pistol from dub of his 108
pant
and fired a shot in the air and the other witnesses PWs 1,6, 20 and
24 that the person in white T-shirt was Manu Sharma, a positive
inference beyond reasonable doubt has to be drawn that Manu Sharma
fired from his .22" bore pistol which resulted in the death
of Jessica Lal on the fateful night of 29/30.04.1999.
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 109
and
she asked you Manu Sharma as to why you were here and why you shot
Jessica and she also asked you to give her your gun as she thought
you were having the gun. What you have to say in this regard?
Ans.
It is false and incorrect.
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 110
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 vs. 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 111
very
clearly brought out in the evidence of the various witnesses.
Furthermore, the identity of the appellant as a suspect in the
present case was not the consequence of any delay. Thus, the delay,
if any, in recording the evidence of witnesses in the present case
cannot be considered as an infirmity in the prosecution case. 59) The
judgment in Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC
670, relied on is also distinguishable. The delay in recording the
statement in that case was coupled with the unnatural conduct of the
witness and that was what made the evidence of the said witness
unreliable, which is not so in the present case. 60) The other
judgment in Jagjit
Singh vs. State of Punjab (2005)
3 SCC 689 is also distinguishable. In that case, the delay in
recording the evidence of PW-6 was coupled with several other factors
which made her testimony unreliable, including the finding that she
implicated the appellant only at the prompting of her father and that
otherwise she had not named the 112
appellant
as an accused. Furthermore, there was no explanation regarding the
delay in that case. The facts of that case are, therefore, clearly
different from the present 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. 113
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 114
other
words, law contemplates a situation where there might be witnesses
who depose in Court but whose previous statements have not been
recorded. 62) It is next contended by the learned senior counsel for
the appellant-Manu Sharma that there was a delay in recording the
statement of Deepak Bhojwani and his name having not been found from
the list of guests prepared by George Mailhot, Ex. 24/A. It was
further pointed out that the list was not a conclusive list and was
prepared by George Mailhot on the basis of remembrance and other
witnesses have also admitted the presence of Deepak Bhojwani. This is
more so relevant as the invited guests were also entitled to bring
guests with them. The statements of witnesses were recorded not only
by the I.O. 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 115
Prasad
PW-92, who stated the name of Deepak Bhojwani occurred during the
course of interrogation of other guests/witnesses. The evidence of
PW-1 is relevant for a limited purpose i.e., proving the
presence/identity of Manu Sharma and his desire for liquor in the
party which part of evidence has also been given by other witnesses
in so many words, prior to Deepak Bhojwani as well. The said witness
in his evidence has categorically stated as under:
"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 Vs. 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 116
be
the length of the delay, the Court can act on the testimony of the
witness if it is found to be cogent and credible. In
Prithvi vs. Mam Raj ,
(2004) 13 SCC 279, it was held that delay in recording the statement
of the witness can occur due to various reasons and can have several
explanations and that it is for the Court to assess the explanation
and, if satisfied, accept the statement of the witness. The same
principle has been reiterated in Ganeshlal vs. State of Mahrashtra
(1992) 3 SCC 106. 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?
117
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 118
Magistrate
directed that the State will have to supply all the deficient copies
and also the remaining CFSL reports sent by CFSL to SHO. The opinion
of Sh. Rup Singh, Ballistic expert finally exhibited as Ex. PW 89/DB
only says that "it appears that the two cartridge cases are
from two different pistols." As rightly pointed out such a
vague opinion of the expert can neither be relied upon nor can be any
basis to come to a conclusion that there were two persons who had
fired two different shots. 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 119
specific
fact finding that for reply to Query No. 3, the presence of the
firearm was not necessary. This incorrect finding of fact given by
the trial Court based on no expertise and had resulted in grave
miscarriage of 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. 120
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 vs. 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. 67) It has been argued that
the Court must lay down in clear terms the duties of a public
prosecutor i.e., to tell the truth even if the same is in favour of
the accused. Reliance has been placed on Rule 16 of the Bar Council
of India Rules which 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 vs. 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.
- 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 is 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.
- 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.
- 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 Others v. State of Maharashtra and Others,(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 subserve the cause of justice and public interest. It
is done with an object of getting the evidence in aid of a just
decision and to upheld the 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.
- 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.
- 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 & 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 s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under s.6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their 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.
- 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 Anrs. [JT 1988 (2) SC 293] it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The Courts have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit: implies a duty on the Court to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration. The aim of criminal justice is two-fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and the guilty is punished in accordance with law.83) Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expensive power of the police to make investigation. These well established principles have been stated by this Court in the case of Sasi Thomas vs. State & Ors. [(2007) 2 SCC (Criminal) 72], State Inspector of Police vs. Surya Sankaram Karri [(2006) 3 SCC (Criminal) 225 and T.T. Antony vs. State of Kerala [(2001) 6 SCC 181. In 151
Nirmal
Singh Kahlon vs. State of Punjab [AIR
2009 SC 984] this Court specifically stated that a concept of fair
investigation and fair trial are concomitant to preservation of
fundamental right of accused under Article 21 of the Constitution of
India. We have referred to this concept of judicious and fair
investigation as the right of the accused to fair defence emerges
from this concept itself. The accused is not subjected to harassment,
his right to defence is not unduly hampered and what he is entitled
to received in accordance with law is not denied to him contrary to
law.
84) It
is pertinent to note here that one of the established canons of just,
fair and transparent investigation is the right of defence of an
accused. An accused may be entitled to ask for certain
documents during the course of enquiry/trial by the Court. Let us
examine the extent of this right of an accused in light of the
statutory provisions and the manner in which the law has developed
under the criminal jurisprudence. To understand this concept in its
right perspective we must notice the scheme under the provisions of
Section 170 to 173 of the Criminal Procedure Code. All these
provisions fall under Chapter XII of the Code which deals with,
information of the police and their powers to investigate. The power
of the police to investigate freely and fairly is well recognized and
codified in law. In terms of Section 170, the investigating officer
when satisfied that sufficient evidence or reasonable grounds exist
he shall forward accused under custody to a Magistrate along with
such weapons or articles which may be necessary to be produced before
the Court. Section 172 of the Code has a meaningful bearing on the
entire investigation by a police officer. It is mandatory for him to
maintain a diary under this chapter where he shall enter day-by-day
proceedings in the investigation carried out by him. He is expected
to mention time of events and his departure, reporting back and
closing of the investigation, the place/places he visited and the
statements he recorded during investigation. The statement of the
witness is recorded during the investigation under Section 161 shall
be inserted in that diary. A Criminal Court is empowered under
Section 172 (2) to send for the diaries and they could be used by the
Court but not as evidence in the case but to aid it in such inquiry
for trial. However, Sub-section 3 of the same Section provides that
neither the accused nor his agents shall be entitled to call for such
diaries, nor they are entitled to see them but it is only where the
police officer who makes them to refresh his memory or the Court uses
them for the purposes of contradicting such police officers in terms
of Section 172 than Sections 161 or 145 provisions would apply.
Section 173 commands the investigating agency to complete the
investigation expeditiously without unnecessary delay and when such
an investigation is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of
offence on a police report with the details in the form as may be
prescribed by the State Government and provide the information
required under this Section. Provisions of Section 173 (5)
contemplates and make it obligatory upon the investigating officer
where the provisions of Section 170 apply to forward to the
Magistrate along with his report, all documents or relevant extracts
thereof on which the prosecution proposes to rely other than those
already sent to the Magistrate during investigation in terms of
Section 170 (2) of the Code. During investigation the statement
recorded under Section 161 of all the persons whom the prosecution
proposes to examine as witnesses shall also be sent to the
Magistrate. Some element of discretion is vested with the police
officer under Section 173 (6) where he is of the opinion that any
such statement is not relevant to the subject matter of the
proceedings or its disclosure to accused is not essential in the
interest of justice and is expedient in the public interest he shall
indicate that part of the statement refusing a Magistrate that part
from the copies to be granted to the accused and stating his reason
for making such a request. Sub- Section 7 of the same Section is
indicative of another discretion given to the police officer under
law that where he finds it convenient, he may furnish
the copy of documents refer to Sub-section 5 of the Section. Section
173 (8) empowers an investigating officer to submit a further report
if he is able to correct further evidence. Once this report in terms
of Section 173 is received the court shall proceed with the trial of
the case in accordance with law.
- What is the significance of requiring an investigating officer/officer in charge of a police station to maintain a diary? The purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation.
- In the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51, this Court stated the principle of law that the criminal court may send for the police diaries of a case under inquiry/trial in such court and may use such diaries, not as evidence in the case but to aid in such inquiry or trial. It seems to the Court that the learned Judge in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The proper use of diaries he could make in terms of Section 172 Cr.P.C. by elucidating points which need clarification. The Court in this case was primarily concerned with the argument that diaries were not produced.
- Further in the case of Khatri v. State of Bihar A.I.R. 1981 SC 1068 though in a writ petition this Court was concerned with a question whether the documents called for by the Court vide its Order dated 16th February, 1981 liable to be produced by the State or production of those documents is barred under Sections 162 & 172 of the Code and the petitioners in those cases are not entitled to see such documents. The Court rejecting the contention held as under: "It is common ground that Shri L.V. Singh was directed by the State Government under Section 3 of the Indian Police Act, 1861 to investigate into twenty four cases of blinding of under-trial prisoners where allegations were made by the under-trial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody, Shri L.V. Singh through his associates carried out this investigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government. These reports clearly relate to the issue as to how, in what manner and by whom the twenty-four under-trial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate. If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under Section 35 of the Indian Evidence Act." 88) In the case ofMalkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341 this Court reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the investigating officer or the Court uses the entries in the case where either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 in terms of Section 145 of the Evidence Act the entries can be used by the accused as evidence. The free use thereof is not permissible under defence.
89)
In case Mukund
Lal v. Union of India A.I.R. 1989
SC 144, this Court clearly stated the denial to the accused of an
unfettered right to make roving inspection of the entries in the case
diary regardless of whether these entries are used by the police
officer concerned to refresh his memory or regardless of the fact
whether the Court has used these entries for the purpose of
contradicting such police officer cannot be said to be unreasonable.
This was treated to be a very important safeguard as the Legislature
has reposed complete trust in the Court which is conducting the
inquiry or the trial and has empowered the Court to call for these
diaries therefore the right of the accused is not unfettered but in
fact is limited as noticed.
90)
Usefully, reference can also be made to the judgment of this Court in
the case of Shamshul
Kanwar v. State of U.P. A.I.R. 1995
SC 1748 wherein this Court while issuing direction for requiring the
State to make a general hearing in terms of Section 172 of the Code
clearly stated that it was mandatory for the police officer/in charge
to maintain the diary in terms of the said provision and there is
jurisdiction in the criminal code to call such diaries and make use
of them not as evidence but only to aid such inquiry or trial. It is
generally confined to utilize the information therein as foundation
for the question put to the witnesses, particularly, to the police
witnesses where the police officer has used the entries to refresh
his memory or if the Court uses them for the purpose of contradicting
such police officer then provisions of Section 161, or 145, would be
applicable. The right of the accused to cross-examine the police
officer with reference to the entries in the General Diary is very
much limited in extent and even that limited scope arises only when
the Court uses the entries for the aforestated purposes. The
investigating officer has a right to refresh his memories and can
refer to the general diary. The Court has power to summon the case
diary in exercise of its powers and for the purposes stated. The
accused is vested with the power of making use of the statements
recorded during investigation for the purposes of contradiction and
copies thereof the accused is entitled to see in terms of Section 2
& 7 of the Code
State of Kerala v. Babu (1999)
4 SCC 621 and State
of Karnataka vs. K. Yarappa Reddy(1999)
8 SCC 715.
- As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions afore-referred. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a fair investigation and trial. Fairness in both these actions essentially needs to be adhered to. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173 (5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of documents/statements to the accused in accordance with law. Under proviso to Section 162 (1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Further, Section 91 empowers the Court to summon production of any document or thing which the Court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the Court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the Court has to pass a reasoned order. The liberty of an accused cannot be interfered with except under due process of law. The expression `due process of law' shall deem to include fairness in trial. The Court gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused places an implied obligation upon the prosecution (prosecution and the prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. The role and obligation of the prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English System as afore-referred. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 has a material bearing on this subject and makes an interesting reading. This provision not only require or mandate that the Court without delay and free of cost should furnish to the accused copies of the police report, first information report, statement, confessional statement of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173 (6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Sub Section 5 of Section 173. In contradistinction to the provisions of Section 173, where the Legislature has used the expression `documents on which the prosecution relies' are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173 (5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170 (2) of the Code.
- The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the Court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. The concept of disclosure and duties of the prosecutor under the English System cannot, in our opinion, be made applicable to Indian Criminal Jurisprudence stricto senso at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any set back in the facts and circumstances of the case. The accused even did not raise this issue seriously before the Trial Court. Call Details:
93)
The evidence of the telephone calls in the present case is admissible
under Sections 8 and 27 of the Indian Evidence Act. PW-16, Raj Narain
Singh, has deposed that Tel. No. 3782072 is installed at 15, BR Mehta
Lane in the name of O.P. Yadav - Ex.PW-16/C. Print out for the period
25.04.1999 to 11.05.1999 is Ex. PW-16/C-1. The evidence of PW-19
further proved that Tel. No. 4642868 was installed at Majid
Chakkarawali, Mathura Road vide Ex. PW 16/D and the print out for the
period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-1. PW-17, Mohd. Jaffar
stated that Tel. No. 4642868 was installed at his PCO. Phone calls
were made to USA from his STD Booth on 04.05.1999. Photocopy of calls
made is Ex. PW-17/A. PW-16 also proved that Tel. No. 3793628 was
shifted to 23, Safdarjung (Ex. PW-16/E) and print out for the period
03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is further in evidence
of PW-45, Sanjay Garg, that Tel. Nos. 660550, 660499, 705692, 741001,
741002 are installed in the various premises of Piccadilly and the
same is Ex. PW- 45/B.
- The details of the phone numbers subscribed to Piccadily group are Ex. PW 45/C and the bill printouts are 45/C were received by the police vide Ex. PW 45/D. PW- 66, Maj. AR. Satish has deposed that Mobile No. 9811100237, which was in the name of Amardeep Singh Gill and the print out of the same is exhibited PW-66/B. He also deposed that Mobile No. 9811096893 was being purchased against a cash card. The print out of the calls for the month of April, 1999 are in Ex. PW-66/D. He further proved that Mobile No. 9811068169 stood in the name of Alok Khanna and its print out is Ex. PW 66/C. 95) PW-32, Ved Prakash Madan proved that Tel. No. 521491 was intalled at PCO, Ambala and its print out is Ex. PW-32/B. PW-33, PV. Mathew has corroborated the version of PW-32 and has proved that the calls were made to USA. PW-15, Sumitabh Bhatnagar stated that Tata Sierra No. HR-26N4348 and Tata Sierra MP-04-2634 were allotted to Amardeep Singh Gill and Alok Khanna respectively. Similarly Mobile Nos. 981110237 and 9811068169 were also allotted to Amardeep Singh Gill and Alok Khanna respectively. PW-51, Sh. Rajiv Talwar has stated that Te. No. 660500 was installed in the office of Harvinder Chopra. PW-39, Mansvi Mittal STD/PCO Booth Inderlok-Mittal Communication Tel. No. 5157498 is installed at this booth. Calls made remain in memory for a period of one month. Police has seized record of 04.05.1999 and 05.05.1999 in respect of Tel. No. 0017184768403 to which calls were made. Figure 00 is international access code and 171 is the code call to be made to USA. 001 is also code call for America. Print out dated 04.05.1999 is Ex. PW-39/1 and dated 05.05.1999 is Ex. PW-39/2 to 7, Seizure Memo dated 27.05.1999 is Ex. 39/A where entries Ex. PW-39/3-7 were made was present. PW-40, Ayub Khan, PCO/STD/ISD Booth Okhla Phase II Tel. No. 6924575 was installed on 10.05.1999. He also furnished similar details. Print out slips were seized vide Ex. PW-40.A and print out is Ex. PW-40/1-3 respectively. The testimony of PW 85, SI Pankaj Malik also corroborates the version of the aforesaid witnesses.
- The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harboring. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence. The details of the calls made by the various accused to one another are available in Ex. PW-66/B, PW-66/D and PW-66/C.
Effect
of leading question by Public Prosecutor:
- Mr. Ram Jethmalani, learned senior counsel next contended that the Public Prosecutor in the present case had put a leading question to Malini Ramani regarding identification of the accused Manu Sharma. We verified the said question. The question put by the Public Prosecutor, was at best clarificatory, and by no stretch of imagination can be termed as a leading question favouring/eliciting an answer favouring the prosecution. The evidence of Ms. Malini Ramani two paragraphs prior to the leading question and two paragraphs thereafter, if read in conjunction with each other clarifies the whole scene and sequence of events. Learned senior counsel has relied upon the judgment in Varkey Joseph vs. State of Kerala, 1993 Supp (3) SCC 745 to support his contention. The said judgment is clearly distinguishable. On the facts in that case, this Court found that the prosecutor had put leading questions, without objections by the defence, to several material and key witnesses regarding the culpability of the accused. The extent of the leading questions put, were on the facts of that case found to violate the constitutional right of a fair trial of the accused. The facts of the present appeal are wholly different. The petitioner had adequate and competent legal representation before the trial Court and leading questions, if any, put by the prosecutor were objected to by the defence and several questions were disallowed by the trial court. Furthermore, the finding of guilt of the appellant herein by the High Court has not been on account of any of the answers elicited to any such questions. It is not as if every single leading question would invalidate the trial. The impact of the leading questions, if any, has to be assessed on the facts of each case.
Efforts
made to trace Sanjay Mehtani:
- It has been contended by the learned senior counsel for the appellant/Manu Sharma that the Sanjay Mehtani, friend of Malani Ramani, who was also present at Qutub Colonnade at the scene of offence was deliberately not examined by the Prosecution. Respondent has pointed out that Sanjay Mehtani was examined during the course of investigation and his statement was recorded under Section 161 Cr.P.C. He was also cited as a prosecution witness. During the trial summons were issued for him and it was learnt that Sanjay Mehtani had left India and was residing at Hong Kong and as such could not be examined in the court. Further, it was pointed out that bare perusal of the trial Court record of the present case will clearly bring out the fallacy in the said argument of the defence. The Police while filing the charge-sheet before the Magistrate had enlisted Sanjay Mehtani's name in the list of witnesses. This fact clearly shows that the prosecution had the intention to examine Sanjay Mehtani as their witness. Further, the said witness was summoned by the Court for examination vide orders dated 28.11.2001, 08.02.2002, 27.11.2003 and 11.12.2003. The said sequence of events clearly show that the prosecution not only wanted to examine him as a witness, but tried serving him with the summons many times, but the same could not be achieved as Sanjay Mehtani had by then shifted to Hong Kong and was not staying in India. Therefore to contend that Sanjay Mehtani was deliberately not examined by the Prosecution is absolutely baseless and not founded on the basis of the record.The conduct of Absconding:
99)
From the testimony of PW-20 and PW-24, it is proved beyond reasonable
doubt that accused Sidharth Vashisht @ Manu Sharma after committing
the murder of Jessica Lal fled away from the scene of occurrence. It
is further proved from the testimony of PW-100, PW-101, PW-87 Raman
Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was
made for the black Tata Safari bearing Regn. No. CH-01-W-6535 and for
Sidharth Vashisht @ Manu Sharma, Director of Piccadilly Sugar
Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at
Samalkha and Okhla Delhi. It is also proved that even after the
seizure of vehicle on 02.05.1999 the search for accused Sidharth
Vashisht @ Manu Sharma continued and search was made at Piccadilly
Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital
where his father was subsequently admitted. However, accused Sidharth
Vashisht @ Manu Sharma was not found nor anybody informed his
whereabouts and it is only on 06.05.1999 that accused Sidharth
Vashisht @ Manu Sharma surrendered at Patiala Guest House, Chandigarh
in the presence of Shri Harish Ghai, advocate and Sh. Vinod Dada. The
above evidence of the witnesses clearly establishes beyond reasonable
doubt that accused Manu Sharma absconded after committing the crime
and surrendered on 06.05.1999 after extensive searches were made.
100)
A
criminal trial is not an enquiry into the conduct of an accused for
any purpose other than to determine whether he is guilty of the
offence charged.
In
this connection, that piece of conduct can be held to be
incriminatory which has no reasonable explanation except on the
hypothesis that he is guilty. Conduct which destroys the presumption
of innocence can alone be considered as material.
In this regard, it is useful to refer Anant
Chaintaman Lagu vs. State of Bombay AIR 1960
SC 500:-
“Circumstantial
evidence in this context means a combination of facts creating a
network through which there is no escape for the accused, because the
facts taken as a whole do not admit of any inference but of his
guilt.... this conduct of the accused was so knit together as to make
a network of circumstances pointing only to his guilt......his
methods was his own undoing; because even the long arm of coincidence
could not explain the multitude of circumstances against him, and
they destroyed the presumption of innocence with which law clothed
him.” Thus, it has been proved beyond reasonable doubt that
accused Manu Sharma absconded after the incident which is a very
relevant conduct u/s 8 of Evidence Act.
Disclosure
statements of the accused persons and their admissibility u/s 27
Evidence Act:
101)
PW-100 SI Sunil Kumar and PW-101 Inspector Surender Kumar Sharma
deposed that on the early morning of 05.05.1999 accused Amardeep
Singh Gill @ Tony Gill was arrested and he made a voluntary
disclosure vide Ex.PW 100/7 that on 29.04.1999 he had a talk with
Alok Khanna over telephone and thereafter a telephone call was
received at about 8.30 p.m. from Sidharth Vashisht @ Manu Sharma. He
has further disclosed that Alok Khanna came to his house in Tata
Sierra car no. MP 04V 2634. He has further disclosed that he and Alok
Khanna went to Qutub Colonnade in Alok Khanna's Tata Sierra bearing
No. MP-04-V-2634. Accused Manu Sharma surrendered on 06.05.1999 at
2.30 p.m. at Patiala Guest House, Chandigarh before Inspr. Raman
Lamba PW-87 and ASI Nirbhay Singh PW-80. After his arrest accused
Manu Sharma had made four disclosure statements. The first was an
oral disclosure made to Inspr. Raman Lamba wherein he said that he
could recover the pistol from Ravinder Sudan at Mani Majra. However,
it was pointed out that the search of the house at Chandigarh was
taken and since the diary containing the address of Ravinder Sudan
could not be found, no recovery could be affected.
102)
On 07.05.1999, he made a disclosure to Inspr. Surender Kumar Sharma
PW-101 which was recorded as Ex. PW 100/12. In the said disclosure,
he disclosed that he was using his younger brother Kartik's Cellphone
No. 9811096893 in making calls to his friends like Tony Gill, Alok
Khanna, Amit Jhingan and others. He also disclosed the phone Nos. of
some of the co-accused and that he handed over his cell bearing No.
9811096893 to Yograj Singh in Panchkula and can recover the same.
Pursuant to the disclosure of Sidharth Vashisht @ Manu Sharma the
mobile phone used by him was recovered from accused Yograj Singh.
Vide Ex.PW 100/23.
103)
The third disclosure is Ex. PW 100/Article-1 which was video recorded
on 07.05.1999 itself after the accused was produced before the
Metropolitan Magistrate and copies of which were duly supplied to the
accused during trial. From the disclosure Ex PW 100/Article-1 there
were further discovery of facts admissible under Section 27 of the
Evidence Act. Pursuant to the disclosures of Manu Sharma
investigations were carried out and it was that the accused were in
close contact with each other over phone and accused Manu Sharma had
made number of calls from the house of Vikas Yadav son of DP Yadav to
his house in Chandigarh and to Harvinder Chopra at Piccadilly.
104)
The fourth disclosure of accused Sidharth Vashisht @ Manu Sharma was
recorded by PW-101 wherein he had disclosed that Ravinder Sudan @
Titu having concealed the pistol, had gone to Manali (HP) where he
met his uncle Shyam Sunder and he very well knew the place where they
concealed the pistol and that he could lead to Manali to recover the
pistol used in the incident. It further came on record that calls
were made to USA to Ravinder Sudan. It may not be out of place to
mention that calls were exchanged between the accused and made to USA
were discovered pursuant to disclosures made by the accused persons.
Test
Identification Parade-Refusal:
105)
The witnesses Deepak Bhojwani PW-1, Malini Ramani PW-6, Beena Ramani
PW-20 and George Mailhot PW-24 have clearly proved beyond reasonable
doubt the identification of the accused persons Manu Sharma, Amardeep
Singh Gill, Alok Khanna and Vikas Yadav. PW- 1 Deepak Bhojwani had
met Manu Sharma on the night of 29.04.1999 at Qutub Colonnade when
Manu Sharma introduced himself to Deepak Bhojwani and they were about
to exchange visiting cards when Amardeep Singh Gill @ Tony Gill took
him away towards the cafi. Both Amardeep Singh Gill and Manu Sharma
refused their TIP on 06.05.1999 and 07.05.1999 respectively before
PW-79 Ld. MM Sh. Rajnish Kumar Gupta without citing any credible
reason. Thereafter, photo identification was conducted in which they
were duly identified by Deepak Bhojwani. The said witness has also
clearly identified the two of them in the Court.
106)
PW-6, Malini Ramani has categorically stated that she identified Manu
Sharma as the accused in the Police Station. She had seen accused in
the police station on 08.05.1999 and thus the same was after
07.05.1999 when accused Manu Sharma refused his TIP. In cross-
examination, PW-6 states that “During the first five days of May
1999, the interrogation of three of us was very intensive, and
photographs were shown to us of the culprits for identification. It
could be that the photograph of Manu Sharma had been shown to me but
since I was not in good frame of mind and rather disturbed for the
whole week and therefore, I do not remember whether the photograph of
Manu Sharma was shown to me or not on 01.05.1999. It is correct that
between 01.05.1999 to 05.05.1999, I had been shown the paragraph of
Manu Sharma.”
Thus
she was not sure about her having been shown the photograph prior to
08.05.1999. PW-6 has nowhere stated in her testimony that photograph
of Manu Sharma were shown to her parents. Moreover, no photographs of
the other three accused were shown to her or her parents of the other
accused i.e. of Vikas Yadav, Amardeep Singh Gill or Alok Khanna as
contended. Further, PW-20 has categorically identified all the four
accused in the witness box and there is no cross examination of PW-20
to the effect that the photographs of the accused were shown only in
the police station. Even, PW-24 has identified accused Manu Sharma in
the court and his testimony also remains unshaken on this aspect.
PW-30 has also clearly identified accused Amardeep Singh Gill and
Vikas Yadav in the court and the photo identification with regard to
them was resorted after Amardeep Singh Gill @ Tony Gill had refused
TIP on 06.05.1999 and Vikas Yadav was granted anticipatory bail. That
the photographs of Vikas Yadav were taken from the Asstt. Registrar,
Ghaziabad Authority RTO, PW 38 on 20.05.1999.
107) PW-2 Shyan Munshi
had left for Kolkata and thereafter, photo identification was got
done when SI Sharad Kumar PW 76 went to Kolkata to get the
identification done by picking up from the photographs wherein he
identified the accused Manu Sharma though he refused to sign the
same. However, in the court PW-2 Shyan Munshi refused to recognize
him. In any case, the factum of photo-identification by PW-2 as
witnessed by the concerned Officer is a relevant and an admissible
piece of evidence. In this regard reliance may be placed on, R vs.
McCay (1991) 1 All ER 232. There the accused was identified by the
witness in the presence of the IO who took note of the said fact,
later the witness could not identify the accused in Court due to
lapse of time, thus the testimony of the IO was relied upon to prove
the said identification. The IO's testimony was upheld as admissible
on the ground that the act of the IO was contemporaneous with the act
of identification by the witness.
108)
PW-78 SI Sharad Kumar deposed
“I
thereafter went to Calcutta. The four photographs X1 to X4 were
identified by Shyan Munshi as those of the accused in my presence.
(Objected to by Sh. R.K. Naseem). I asked Shyan Munshi to sign on the
back of these photos but he refused to do so. Then I gave separate
markings on the back of the photographs X1 to X4 and signed them.
Markings and my signatures at the back of the photographs are at
points A on all the four photographs. I recorded the statement of
Shyan Munshi in this regard. The photocopy of the said statement is
Ex PW2/C which is in my hand and bears my signatures at point A. I
correctly recorded statement of Shyan Munshi and did not add or omit
therefrom on my own. After return from Calcutta, I handed over the
photographs and statement of Shyan Munshi and other documents to SHO
Surender Kumar”.
109)
PW-2 Shyan Munshi in this regard stated, "It is correct that
Delhi Police had contacted me in Calcutta at my residence but I do
not remember it was on 19th May, 1999. .... ..It is correct that some
photographs were shown to me by Delhi Police at Calcutta in May, 1999
at my residence"... "Police had shown me the
photograph and asked me if I could identify but I did not identify
any of the culprits. I was asked by the police to sign on the reverse
of those four photographs but I did not sign any such photograph.”
110)
Mr. Jethmalani next contended that identification is inherently
illegal because the witnesses were not only shown the photographs but
also the accused was physically shown. According to him, it was
further in evidence that accused Manu Sharma was shown to all the
three witnesses on 08.05.99 and they even admitted that it may have
been on 07.05.99. It is further contended that it is not denied that
the photos came in the newspaper during the prosecution. However, it
was pointed out by the defence that prosecution is certainly not
responsible for showing the photos. As far as refusal of TIP by
accused Manu Sharma is concerned, there is no justification in the
stand of the defence that TIP was not held due to his photo or he
himself being shown to the witness. In this regard, it would be
relevant to note that accused Manu Sharma surrendered on 06.05.99 and
on 07.05.99 he was produced in muffled face before the MM Shri
Rajneesh Gupta PW-79 and the proceedings thereof are recorded vide Ex
PW-79/G wherein accused Manu Sharma's contention for refusal of TIP
is that his photograph has appeared in newspapers and his photograph
has been shown to the witnesses and that he has been shown physically
to the witnesses. All the three contentions of the accused Manu
Sharma are incorrect and misconceived with regard to the appearance
of the photos in the newspapers. It is submitted that vide Ex PW
101/11 to 22 the newspapers from 01.05.99 to 06.05.99 have been duly
exhibited by PW-101. It was pointed out that in none of those
newspapers is the photograph of accused Manu Sharma shown. As a
matter of fact vide Ex. No. PW 101/15 photograph dated 06.05.1999
clearly shows that he is in muffled face. In the absence of any
defence refusal of TIP on this ground is totally unjustified and an
adverse inference ought to be drawn in this regard.
111)
The next contention of the defence for refusal of TIP is that his
photograph has been shown to the witnesses is also incorrect. It is
not disputed that the photograph of accused Manu Sharma was obtained
from his farmhouse located in Samalkha on the intervening night
30.04.1999 & 01.05.1999. However, it is further in evidence
of PW-87 that he went to Chandigarh and he took the photograph of
accused Manu Sharma for the purposes of identification and it was
with him till 06.05.1999. Thus the photo of accused Manu Sharma could
not have been shown to any of the witnesses because the witnesses
were either in Delhi or Kolkata not in Chandigarh. The only witness
who has deposed with regard to the photograph having been shown is
PW-6 wherein she has stated:
"It
could be that the photograph of Manu Sharma that had been shown to me
on 01.05.1999 but since I was not in good frame of mind and rather
disturbed for the whole week and therefore I do not remember whether
the photograph of Manu Sharma was shown to me on 01.05.1999."
Her testimony on this point is clearly wavering in view of the fact
that immediately after the incident she fainted and that is why her
statement under Section 161 Cr.P.C. was recorded only on 03.05.99.
Moreover, it was explained that since on 02.05.99 the photograph in
question was not available in Delhi itself and therefore there was no
chance of showing the photograph to this witness, as on 01.05.99 she
was unwell and her statement also could not be recorded and thus the
issue of showing her the photograph could not arise. Further, this
witness nowhere says that photographs were shown to her parents as
well as being sought to be inferred by the defence. Thus refusal of
TIP on this ground was unjustified by accused Manu Sharma in the
morning of 07.05.1999. It is further submitted that after the refusal
of TIP it is only thereafter that the accused Manu Sharma was shown
to the witnesses PW-6, PW-20 and PW-24 and their statements under
Section 161 Cr.P.C. were recorded with regard to the identification
of accused Manu Sharma. The said process of identification was
necessary for the IO to be certain that this is the man that the said
witnesses had witnessed/seen as the person responsible. In the light
of Manu Sharma's refusal, the police had little choice but to
formally show the photo to the witnesses and record their statement
in that regard. Thus, firstly his refusal is not justified on the
ground that he has been shown to the witnesses, moreover, he was
shown to the witness only after his refusal of TIP so that it is
verified that he is the same person who is involved in the incident
and no adverse inference on this count can be taken against the
prosecution.
112)
It is further pointed out that the accused Manu Sharma was sent to
judicial custody on 15.05.1999 and the statement of witnesses
continued even thereafter and thus resort to photo identification was
properly taken by mixing the photograph of accused Manu Sharma with
number of other photographs and asking the witnesses to pick up the
photograph of the person they had witnessed on the fateful night and
the morning thereafter i.e. 29/30.04.99. This mode of photo
identification was resorted to vis-`-vis Deepak Bhojwani PW-1 on
24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput PW-4 on 29.05.99
and Shyan Munshi PW-2 on 19.05.99 at Calcutta. Thus there is no merit
in the contention of the defense that the dock identification was a
farce as it was done for the first time in the Court.
113)
It is also contended by the defence that since the photographs were
shown to the witnesses this circumstance renders the whole evidence
of identification in Court as inadmissible. For this, it was pointed
out that photo identification or TIP before the Magistrate, are all
aides in investigation and do not form substantive evidence.
Substantive evidence is the evidence of the witness in the court on
oath, which can never be rendered inadmissible on this count. It is
further pointed out that photo identification is not hit by 162
Cr.P.C. as adverted to by the defense as the photographs have not
been signed by the witnesses. In support of his argument the senior
counsel for Manu Sharma relies on the judgment of Kartar Singh vs.
Union of India (1994) 3 SCC 569 at page 711 wherein while dealing
with Section 22 TADA the Court observed that photo TIP is bad in law.
It is useful to mention that the said judgment has been distinguished
in Umar
Abdul Sakoor Sorathia vs. Intelligence
Officer, Narcotic Control Bureau, (2000)
1 SCC 138 at page 143 where a Photo Identification has been held to
be valid. The relevant extract of the said judgment is as follows:-
"10. The next circumstance highlighted by the learned
counsel for the respondent is that a photo of the appellant was shown
to Mr. Albert Mkhatshwa later and he identified that figure in the
photo as the person whom he saw driving the car at the time of
interception of the truck.
11.
It was contended that identification by photo is inadmissible in
evidence and, therefore, the same cannot be used. No legal provision
has been brought to our notice, which inhibits the admissibility of
such evidence. However, learned counsel invited our attention to the
observations of the Constitution Bench in Kartar
Singh vs. State of Punjab which
struck down Section 22 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987. By that provision the evidence of a witness
regarding identification of a proclaimed offender in a terrorist case
on the basis of the photograph was given the same value as the
evidence of a test identification parade. This Court observed in that
context: (SCC p. 711, para 361)
361.
If the evidence regarding the identification on the basis of a
photograph is to be held to have the same value as the evidence of a
test identification parade, we feel that gross injustice to the
detriment of the persons suspected may result. Therefore, we are
inclined to strike down this provision and accordingly we strike down
Section 22 of the Act.
12.
In the present case prosecution does not say that they would rest
with the identification made by Mr. Mkhatshwa when the photograph was
shown to him. Prosecution has to examine him as a witness in the
court and he has to identify the accused in the court. Then alone it
would become substantive evidence. But that does not mean that at
this stage the court is disabled from considering the prospect of
such a witness correctly identifying the appellant during trial. In
so considering the court can take into account the fact that during
investigation the photograph of the appellant was shown to the
witness and he identified that person as the one whom he saw at the
relevant time. It must be borne in mind that the appellant is not a
proclaimed offender and we are not considering the eventuality in
which he would be so proclaimed. So the observations made in Kartar
Singh in a different context is of no avail to the appellant."
Even
a TIP before a Magistrate is otherwise hit by Section 162 of the
Code. Therefore to say that a photo identification is hit by section
162 is wrong. It is not a substantive piece of evidence. It is only
by virtue of section 9 of the Evidence Act that the same i.e. the act
of identification becomes admissible in Court. The logic behind TIP,
which will include photo identification lies in the fact that it is
only an aid to investigation, where an accused is not known to the
witnesses, the IO conducts a TIP to ensure that he has got the right
person as an accused. The practice is not born out of procedure, but
out of prudence. At best it can be brought under Section 8 of the
Evidence Act, as evidence of conduct of a witness in photo
identifying the accused in the presence of an IO or the Magistrate,
during the course of an investigation.
114)
Mr. Jethmalani has further argued on the proposition that mere dock
identification is no identification in the eyes of law unless
corroborated by previous TIP before the Magistrate. It has been
further argued that in any case, even identification in Court is not
enough and that there should be something more to hold the accused
liable. In support of its arguments, he placed heavy reliance on the
decision of this Court in the case of Hari Nath & Ors vs.
State of U.P. (1988) 1 SCC 14 and Budhsen & Others vs. State
of U.P. (1970) 2 SCC 128. A close scrutiny of these judgments will
reveal that they infact support the case of the Prosecution. These
judgments make it abundantly clear that even where there is no
previous TIP, the Court may appreciate the dock identification as
being above-board and more than conclusive.
115)
The law as it stands today is set out in the following decisions of
this Court which are reproduced as hereinunder in Munshi
Singh Gautam vs. State of M.P. (2005)
9 SCC 631, at page 643:
"16.
As
was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75
identification tests do not constitute substantive evidence. They are
primarily meant for the purpose of helping the investigating agency
with an assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification can only
be used as corroborative of the statement in Court.
(See Santokh Singh vs. Izhar Hussain 1973
2 SCC 406.) The necessity for holding an identification parade can
arise only when the accused are not previously known to the
witnesses. The whole idea of a test identification parade is that
witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check upon
their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to
enable the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime. The identification proceedings
are in the nature of tests and significantly, therefore, there is no
provision for it in the Code and the Evidence Act. It is desirable
that a test identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary to eliminate
the possibility of the accused being shown to the witnesses prior to
the test identification parade. This is a very common plea of the
accused and, therefore, the prosecution has to be cautious to ensure
that there is no scope for making such an allegation. If, however,
circumstances are beyond control and there is some delay, it cannot
be said to be fatal to the prosecution.
17. It
is trite to say that the substantive evidence is the evidence of
identification in court. Apart from
the clear provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As
a general rule, the substantive evidence of a witness is the
statement made in court. The
evidence of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification, therefore, is
to test and strengthen the
trustworthiness of that evidence.
It is, accordingly, considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witnesses in court
as to the identity of the accused who are strangers to them, in the
form of earlier identification proceedings. This rule of prudence,
however, is subject to exception, when, for example, the court is
impressed by a particular witness on whose testimony it can safely
rely, without such or other corroboration. The identification parades
belong to the stage of investigation, and there is no provision in
the Code which obliges the investigation agency to hold or confers a
right upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a test
identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identification even
without insisting on corroboration. (See
Kanta Prashad vs. Delhi Administration AIR 1958
SC 350, Vaikuntam Chandrappa vs. State of A.P. AIR 1960 SC 1340,
Budhsen Vs State of U.P. (1970) 2 SCC 128 and Rameshwar Singh vs.
State of J&K (1971) 2 SCC 715)
19.
In Harbhajan Singh vs. State of J&K (1975) 4 SCC 480, though
a test identification parade was not held, this Court upheld the
conviction on the basis of the identification in court corroborated
by other circumstantial evidence. In that case it was found that the
appellant and one Gurmukh Singh were absent at the time of roll call
and when they were arrested on the night of 16.12.1971 their rifles
smelt of fresh gunpowder and that the empty cartridge case which was
found at the scene of offence bore distinctive markings showing that
the bullet which killed the deceased was fired from the rifle of the
appellant. Noticing these circumstances this Court held: (SCC p. 481,
para 4).
"In
view of this corroborative evidence we find no substance in the
argument urged on behalf of the appellant that the investigation
officer ought to have held an identification parade and that
the failure of Munshi Ram to mention the names of the two accused to
the neighbours who came to the scene immediately after the occurrence
shows that his story cannot be true. As observed by this Court
in Jadunath
Singh vs. State of U.P. 17
absence of test identification is not necessarioy fatal. The fact
that Munshi Ram did not disclose the names of the two accused to the
villages only
shows that the accused were not previously known to him and the story
that the accused referred to each other by their respective names
during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram
alone and the corroborative circumstances to which we have referred
to above lend enough assurance to the implication of the
appellant." Malkhansing vs. State of M.P., (2003) 5 SCC 746
at 752 "7. It is trite to say that the substantive evidence
is the evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in law is
well settled by a catena of decisions of this Court. The facts, which
establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court. The evidence of
mere identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to the
identity of the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of prudence, however,
is subject to exceptions, when, for example, the court is impressed
by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which obliges
the investigation agency to hold, or confers a right upon the accused
to claim a test identification parade.
They do not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would not
make inadmissible the evidence of identification in court. The weight
to be attached to such identification should be a matter fro the
courts of fact. In appropriate cases it may accept the evidence of
identification even without insisting on corroboration.”
116)
Mr. Ram Jethmalani has further placed heavy reliance on two Books by
foreign authors, namely, `'Proof of Guilt by Glanville Williams,' 3rd
Edition and `Eye Witness Identification in Criminal Cases' by Patrick
M. Wall, to urge that identification of an accused in Court is a
serious matter and the chances of a false identification are very
high. These texts only reiterate what the various courts have held
time and again. The view of the said author has been quoted by this
Court, the earliest judgment being Shivaji
Sahabrao Bobade vs. State of Maharashtra, (1973)
2 SCC 793, at page 800:
“The
evil of acquitting a guilty person light heartedly as a learned
Author (Glanville Williams in `Proof of Guilt') has sapiently
observed, goes much beyond the simple fact that just one guilty
person has gone unpunished. If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against
indicted persons and more severe punishment of those who are found
guilty. Thus, too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of
the guiltless. For all these reasons it is true to say, with Viscount
Simon, that a miscarriage of justice may arise from the acquittal of
the guilty no less than from the conviction of the innocent.”
117)
Learned Solicitor General submitted that, even otherwise, an adverse
inference ought to be drawn against the appellants for their refusal
to join the TIP. This view has found favor time and again by this
Court. It is pertinent to note that it is dock identification which
is a substantive piece of evidence. Therefore even where no TIP is
conducted no prejudice can be caused to the case of the Prosecution.
In Mullagiri Vajram vs. State of A.P. 1993 Supp. (2) SCC 198, it was
held that though the accused was seen by the witness in custody, any
infirmity in TIP will not affect the outcome of the case, since the
deposition of the witnesses in Court was reliable and could sustain a
conviction. The photo identification and TIP are only aides in the
investigation and does not form substantive evidence. The
substantive evidence is the evidence in the court in oath.
118)
The following decisions relied upon by the learned senior counsel for
the appellant are clearly distinguishable from the present facts and
thus are not applicable. N.J. Suraj vs. State (2004) 11 SCC 346 is
distinguishable as there was no direct evidence on record against the
accused and the prosecution's case was based on last seen evidence of
accused with deceased and circumstantial evidence. The admission of
witnesses in regard to showing of photographs prior to TIP was
coupled with the fact that the writing of the accused did not match
with the entries made in the entry register which was contrary to the
case of the prosecution.
119) Laxmipat
Chararia vs. State of Maharashtra, AIR 1968
SC 938, is distinguishable as the witness whose statement was
subjected to arguments as being put under pressure of prosecution and
was shown photographs of the accused was infact an accomplice and her
statement was also relied upon by the Court and held that her
evidence is admissible.
120)
Hari Nath & Anr vs. State of U.P. (1988) 1 SCC 14 is also
distinguishable on facts as the accused were residing in village in
the close vicinity of the village of the prosecution witness (members
of house hold where dacoity was committed) and that accused and the
prosecution witness had been students of the same institution was
indicative of the fact that the accused were known to the prosecution
witnesses while there was an omission to mention name of the accused
persons in the FIR. Secondly, as it was also held that even on the
premise that no prior acquaintance was there, the TIP lacked
promptitude as was conducted after an unexplained delay of more than
4 months.
121)
The judgment in Kanan & Ors vs. State of Kerala (1979) 3 SCC
319, is distinguishable as the witness though admitted that he knew
the two accused by face and yet he had named them while identifying
them in Court, which raised element of doubt & that names of
the accused were supplied to him from outside.
122) Dana
Yadav vs. State of Bihar (2002)
7 SCC 295 is also distinguishable as the identification by the
witness in court was not relied upon as the witness did not name the
accused before the Police but in Court had identified and also named
the accused, and as the identification was not further corroborated
by either previous identification or any other evidence. While other
witnesses though named the accused before the police but failed to
identify him in court.
123)
In Vijayan vs. State of Kerala (1999) 3 SCC 54, the witness was
admittedly shown the photograph of the accused before the TIP and
further told to identify the tallest man in the parade, as such this
TIP was discarded and in this light the dock identification of the
witness was also discarded. Further according to the witness the
accused was not a tall man whereas the height of the accused was more
than 6 feet.
124) George &
Ors. vs. State of Kerala & Anr. (1998) 4 SCC 605 is not
applicable on the facts of the present case in so far as the issue of
photo identification is concerned. The aforesaid judgment which is
sought to be relied upon by the appellant in support to their
contention on the issue that absence of TIP makes the dock
identification weak evidence is not applicable on the facts of the
present case. In the said decision the prosecution failed to hold TIP
whereas in case at hand the
accused person refused TIP. The newspaper reports duly exhibited by
PW 101 in the present case nowhere show photographs of the accused
persons.
125)
Learned senior counsel for the appellant has argued that the
statement of the accused recorded under Section 313 of the Criminal
Procedure Code may be treated as evidence and by doing so this Court
must take into consideration the stand taken by the appellant as
regards his gun having been taken away by the police. In support of
his argument, he relied upon the decision of this Court in the case
of Hate
Singh Bhagar Singh vs. State of Madhya Bharat, AIR1953
SC 468. It has been further argued that the evidence of witnesses has
not been put to the appellant thereby causing prejudice to the
appellant. The
said proposition of law is misplaced since a specific provision has
been provided by way of Section 315 of the Code whereby an accused
can, as a matter of right, appear as a witness on his own behalf.
In the present case, the appellants exercised an option declining to
do so and in such manner failed to offer any evidence to show
loss/removal of his gun. Thus it cannot be urged by the defence
merely in order to suit his convenience that his statement may be
treated as evidence and that all facts stated therein be treated as
true unless contradicted by the prosecution. While
answer given by the accused to question put under Section 313 of the
Code are not per se evidence because, firstly, it is not on oath and,
secondly, the other party i.e., the prosecution does not get an
opportunity to cross-examine the accused, it is nevertheless subject
to consideration by the Court to the limited extent of drawing an
adverse inference against such accused for any false answers
voluntarily offered by him and to provide an additional/missing link
in the chain of circumstances.
The judgment relied upon is of no use to the defence since the same
pertains to a period where the law did not allow the accused to step
into the witness box as a witness of his own innocence.
126)
Regarding the contention that evidence of each witness must be put to
the accused, it must be clarified that only the circumstances need to
be put and not the entire testimony. It is apt to quote the following
decision of this Court i.e.,State
of Punjab vs. Swaran Singh, (2005)
6 SCC 101 at page 104:
"9.
The only reason given by the learned Single Judge of the High Court
for acquitting the accused is that the evidence of PW 1 and PW 4 was
not specifically put to the accused under Section 313 CrPC and it was
held that in the absence of these facts in the form of questions to
the accused, the evidence could not have been used against him. It is
also pertinent to note in this regard that when PW 1 and PW 4 were
examined as witnesses, the accused did not seriously dispute the
evidence of PW 1 or PW 4. The only cross-examination was that it was
incorrect to suggest that the case property was not deposited with
him and he had deposed falsely. So also, the evidence of PW 4 was not
challenged in the cross-examination except for a general suggestion
that he had been deposing falsely and that no case property was
handed over to him by PW 1 Harbhajan Singh. The accused had no case
that the seal was ever tampered with by any person and that there was
any case of mistaken identity as regards the sample and that the
report of the chemical analyst was not of the same sample taken from
the accused. Except making a general suggestion, the accused had
completely admitted the evidence of PW 1 and PW 4 as regards the
receipt of the sample, sealing of the same and sending it to the
chemical analyst. This was pointed out only to show that the accused
was not in any way prejudiced by the fact of not having been
questioned by making a specific reference to the evidence of PW 1 and
PW 4. As regards the questioning of the accused under Section 313
CrPC, the relevant provision is as follows:
"313.
Power to examine the accused.--(1) In every inquiry or trial, for the
purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the court--
(a)
may at any stage, without previously warning the accused, put such
questions to him as the court considers necessary;
(b)
shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the
case: Provided that in a summons case, where the court has dispensed
with the personal attendance of the accused, it may also dispense
with his examination under clause (b).
(2)
No oath shall be administered to the accused when he is examined
under sub-section (1). (3) The accused shall not render himself
liable to punishment by refusing to answer such questions, or by
giving false answers to them.
(4)
The answers given by the accused may be taken into consideration in
such inquiry or trial, and put in evidence for or against him in any
other inquiry into, or trial for, any other offence which such
answers may tend to show he has committed."
10.
The questioning of the accused is done to enable him to give an
opportunity to explain any circumstances which have come out in the
evidence against him. It may be noticed that the entire evidence is
recorded in his presence and he is given full opportunity to cross-
examine each and every witness examined on the prosecution side. He
is given copies of all documents which are sought to be relied on by
the prosecution. Apart from all these, as part of fair trial the
accused is given opportunity to give his explanation regarding the
evidence adduced by the prosecution. However, it is not necessary
that the entire prosecution evidence need be put to him and answers
elicited from the accused. If there were circumstances in the
evidence which are adverse to the accused and his explanation would
help the court in evaluating the evidence properly, the court should
bring the same to the notice of the accused to enable him to give any
explanation or answers for such adverse circumstance in the evidence.
Generally, composite questions shall not be
asked to the accused bundling so many facts together. Questions must
be such that any reasonable person in the position of the accused may
be in a position to give rational explanation to the questions as had
been asked. There shall not be failure of justice on account of an
unfair trial.
15.
In the instant case, the accused was not in any way prejudiced by not
giving him an opportunity to answer specifically regarding the
evidence of PW 1 and PW 4. If at all, the evidence of PW 1 and PW 4
was recorded in his presence, he had the opportunity to cross-examine
the witnesses but he did not specifically cross-examine these two
witnesses in respect of the facts deposed by them. The learned Single
Judge seriously erred in holding that the evidence of PW 1 and PW 4
could not have been used against the accused. The acquittal of the
accused was improper as the evidence in this case clearly established
that the accused was in possession of 5 kg of opium and thereby
committed the offence under Section 18 of the NDPS Act.”
127)
Further it is not necessary that the entire prosecution evidence need
to be put to the accused and answers elicited from him/even if an
omission to bring to the attention of the accused an inculpatory
material has occurred that ipso facto does not vitiate the
proceedings, the accused has to show failure of justice as held in
Swaran Singh (supra) and followed in Harender Nath Chakraborty vs.
State of West Bengal, (2009) 2 SCC
758.
128)
Hate Singh's case (supra) relied upon by the appellant is clearly
distinguishable from the facts of the present case. In the said
matter, the case of the prosecution was that two brothers Hate and
Bheru fired one shot each at the deceased who received three wounds.
It was opined that three wounds which could have been from a single
shot. It was the consistent stand of the Bheru that he fired the
shots (with double barrel), whose appeal was, therefore, dismissed in
limine. While that of Hate (appellant in the said case) was that
though present with a gun, he did not fire any shot (with his single
barrel). That single barrel was found loaded (Article E) this fact
was accepted throughout. Witnesses also saw Bheru firing the first
shot. The Court held that the fact that both the brothers absconded
was given much importance by the High Court and Sessions Court but
were not asked to explain it at any stage.
129)
Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 relied upon by the
appellant is also distinguishable on facts as there was no accusation
specifically put in the question during examination to the accused.
Adverse
Inferences Against the Accused:
130)
(i)
False answers under Section 313 Cr.P.C.
This Court has time and again held that where an accused furnishes
false answers as regards proved facts, the Court ought to draw an
adverse inference qua him and such an inference shall become an
additional circumstance to prove the guilt of the accused. In this
regard, the prosecution seeks to place reliance on the judgments of
this Court in Peresadi vs. State of U.P., (1957) Crl.L.J. 328, State
of M.P. vs. Ratan Lal, AIR 1994
SC 458 and Anthony
D'Souza vs. State of Karnataka (2003)
1 SCC 259 where this Court has drawn an adverse inference for wrong
answers given by the appellant under Section 313 Cr.P.C. In the
present case, the appellant-Manu Sharma has, inter alia, has taken
false pleas in reply to question nos. 50, 54, 55, 56, 57, 64, 65, 67,
72, 75 and 210 put to him under Section 313 of the Code.
(ii)
Adverse inference qua non explanation of Pistol Appellant/Accused -
Manu Sharma was holder of a pistol .22" bore P Berretta,
made in Italy duly endorsed on his arms licence. It was his duty to
have kept the same in safe custody and to explain its whereabouts. It
is proved beyond reasonable doubt on record that extensive efforts
were made to trace the pistol and the same could not be recovered.
Moreover as per the testimony of CN Kumar, PW-43, DSP/NCRB, RK Puram
there is no complaint or report of the said pistol. Thus an adverse
inference has to be drawn against the accused-Manu Sharma for non-
explanation of the whereabouts of the said pistol. Similarly another
plea not supported by any positive evidence led by the appellant-Manu
Sharma is that his pistol i.e. the weapon of offence and the arms
licence was recovered from his farm house on 30.04.1999, when in fact
it is an established fact that the pistol could not be recovered and
that the licence was surrendered on 06.05.1999 at the time of his
arrest. It defies all logic and ordinary course of conduct to allege
that the prosecution has withheld the pistol after seizing the same
from his farmhouse. The fact that he has failed to produce the
pistol, a presumption shall arise that if he has produced it, the
testing of the same would have been to his prejudice. The burden thus
shifts on him. (iii) Adverse inference since no report of theft or
loss of Tata safari CH-01-W-6535
It
is the defence of the accused-Manu Sharma that the Tata Safari was
taken away on 30.04.1999 from Karnal. No report or complaint of the
taking away of the vehicle or the theft of the vehicle was ever
lodged by the appellant/accused and hence an adverse inference has to
be drawn against the accused on this count as well. Further the
conduct of the appellant/accused in not taking any steps despite
opportunity in reporting the alleged taking away of Tata Safari on
30.04.1999 and his licensed pistol on 01.05.1999 in itself is enough
material to draw serious adverse inference against the accused. (iv)
Appearance of PW-2 Shyan Munshi accompanied by Shri Ashok Bansal,
Advocate
By
order dated 06.03.2000, Shri Ashok Bansal, advocate had appeared as
proxy counsel for accused- Manu Sharma before the trial Court and on
the same day also took copy of the report of FSL/Jaipur on behalf of
accused-Manu Sharma. On 03.05.2001, PW-2, Shyan Munshi, was duly
accompanied by Shri Ashok Bansal, advocate wherein he clearly says
that he has come with a lawyer for his personal security. On behalf
of the State, it was contended that an adverse inference against
accused- Manu Sharma has to be drawn for influencing the witness. It
may not be out of place to mention here that PW-2, Shyan Munshi, who
is the maker of the FIR and complainant of the case, did not fully
support the prosecution case though he admitted having made statement
to the police and having signed the same. The stand of the State
cannot be ignored, on the other hand, it is acceptable.
131)
Further as per the disclosure of accused-Manu Sharma, the pistol was
given to accused - Ravinder Sudan @ Titu (PO). It has been proved by
the testimony of PW- 37, Martin Raj and PW-49-Inspector Mahender
Singh Rathi that accused, Ravinder Sudan @ Titu left the country by
Gulf Airways on 04.05.1999. Accused-Manu Sharma surrendered on
06.05.1999 only after accused Ravinder Sudan @ Titu left the country.
It is pointed out by the State that calls were made from PCO, Ambala
and PCO Hazrat Nizamuddin which have been duly proved by the
testimony of PW-36, Ram Lal Jagdev, PW-16-Raj Narain Singh,
PW-17-Mohd. Jaffar. This conduct of accused-Manu Sharma which is
relevant and admissible under Section 8 of the Indian Evidence Act an
adverse inference has to be drawn against Manu Sharma for this
conduct.
Appeals
of other accused:
132) We have already
discussed the specific evidence, especially of presence at the time
of incident, removal
of Tata Safari, call details etc. as well as the evidence of PWs 30
and 101, for conviction under Section 201 read with Section 120-B IPC
against the other two appellants, namely, Amardeep Singh Gill @ Tony
Gill and Vikas Yadav. We are satisfied that the High Court, on
appreciation of the relevant materials, found against them and
convicted accordingly. On analysis of
all the materials, we agree with their conviction and
sentence.
Adverse
remarks against prosecution and Trial Judge
133) In administration
of criminal justice system the possibility of errors of law,
appreciation of evidence or other serious violations is difficult to
be ruled out in its entirety. The higher Courts in exercise of their
appellate or original jurisdiction may find patent errors of law or
fact or appreciation of evidence in the judgment which have been
challenged before them. Despite this what is of significant
importance
is that, the Courts should correct the error in judgment and not
normally comment upon the judge. The possibility of taking a contrary
view is part of the system but the judicial propriety and discipline
does not necessarily command that some strictures or undesirable
language should be used by the higher Courts in exercise of their
jurisdiction. It would always be more appreciable that to keep the
process of correction in place when reasoning is given to criticize
the judgment under appeal rather than the Judge himself. The
individuals come and go but what actually stands for ever is the
institution.
134)
In the present case the High Court in its judgment, on the one hand,
explicitly referred to certain criticism made by the trial Judge
against the investigating agency and the comments/remarks made in
this behalf and observed that these were uncalled for and that they
should have been avoided but, on the other hand, the Division Bench
itself while criticizing the reasoning in the judgment under appeal
but even made certain sweeping remarks against the trial Judge.
135)
In this regard we are intentionally not referring to the criticism of
appreciation of evidence in fact and on law but are restricting
ourselves to certain observations and comments which, in our humble
opinion, are criticism of the Judge per se and could have been
avoided easily by the Division Bench of the High Court. It is also
desirable, that the language which may imply an allegation of
suspicion in the performance of function of the Court should also be
carefully examined and unless it is absolutely established on record
comment should be avoided. It will be appropriate to refer to the
relevant parts of the judgment in this regard:
“.............We
also find the criticism against him to be a matter of meaningless
hair splitting. There is a ring of truth around the deposition of PW
30 whom we find a reliable witness. The trial Court, while dealing
with this witness, has, with great respect, termed him as a `planted
witness'. This, we find, is not justified from material on record.
The cursory manner in which the witness has been discarded shows a
lack of proper appreciation of evidence. Once a reasonable
explanation has been given by a witness for his presence at the spot,
there was hardly any reason to stretch imagination to belie his
presence. Merely, because he was assigned to deliver a DD entry to SI
Rishi Pal which, the witness explains, he did not deliver, the
explanation given is logical and ought not to have been disbelieved
in this strange way of assessing the material and discarding it.”
Xxxx xxxx xxxx xxxx “.........The two weapon theory appears to be a
concoction to the defence and a manipulation of evidence in
particular that of Shyam Munshi, PW2 who, for the first time in
court, introduced such a story. The very fact that the empties were
sent for examination at such a belated stage, cannot rule out the
possibility of foul play to destroy the Prosecution's case during
trial. We, therefore, do not think it necessary to go into further
analysis of the evidence of Prem Sagar Manocha.”
136)
Let us examine various judgments of this Court which have
persistently taken the view and discouraged observations or
disparaging remarks by the higher Courts against the other Courts. In
the case of A.M.
Mathur vs. Pramod Kumar Gupta &
Ors. (1990) 2 SCC 533 the Court stated the dictum that judicial
restraint and discipline are as necessary to the orderly
administration of justice as they are to the effectiveness of the
army. The duty of restraint , this humility of function should be
constant theme of our judges. The quality in decision making is as
much necessary for judges to command respect as to protect the
independence of the judiciary. Judicial restraint in this regard
might better be called judicial respect, that is respect by the
judiciary. The
avoidance of even the appearance of bitterness, so important in a
judge, required him not to cast aspersions on the professional
conduct of the appellant and that too without an opportunity for him
to meet such situation.
The Court set aside the disparaging remarks that had been made by the
High Court against the Advocate General.
137)
In the case of a judicial officer approaching this Court for
expunction of disparaging remarks on his conduct made by the High
Court in the matter of `K' A Judicial Officer (2001) 3 SCC 54, this
Court cautioned the higher courts to use the power of superintendence
with great care and circumference before making remarks on unworthy
conduct of an officer, his criticism or adverse remarks in relation
to judicial pronouncement should be avoided. The Court held as under:
"A Subordinate Judge faced with disparaging and undeserving
remarks made by a court of superior jurisdiction is not without any
remedy. He may approach the High Court invoking its inherent
jurisdiction seeking expunction of objectionable remarks which
jurisdiction vests in the High Court by virtue of its being a court
of record and possessing inherent powers as also the power of
superintendence. The view is settled by the law laid down in Raghubir
Saran (Dr) vs. State of Bihar (1964)
2 SCR 336. However, if a similar relief is sought for against remarks
or observations contained in judgment or order of the High Court the
aggrieved judicial officer can, in exceptional cases, approach this
Court also invoking its jurisdiction under Articles 136 and/or 142 of
the Constitution. "
138)
In the case of Zahira Habibulla H. Sheikh & Anr. vs. State of
Gujarat & Ors. (2004) 4 SCC 158 another Bench of this Court
in unambiguous terms expressed its concern about entertaining
undesirable submissions against the working of an institution and
adverse observations being made in the paragraphs of the judgment.
The Court noticed that High Court had made observations and remarks
about persons/constitutional bodies like NHRC who were not before it.
Proceedings of the Court normally reflect the true state of affairs.
Even if it is accepted, that any such submission was made, it was not
proper or necessary for the High Court to refer to them in the
judgment to finally state that no serious note was taken of the
submissions. Avoidance of such manoeuvres would have augured well
with the judicial discipline. The expunction and deletion of the
contents of paragraph three of the judgment except the last limb
therein is ordered and it shall be always read to have not formed
part of the judgment.
139)
Similarly, a three Judge Bench of this Court in the case of Samya
Sett vs. Shambhu Sarkar &
Anr. (2005) 6 SCC 767, again concerned with expunction of adverse
remarks made against the Additional Sessions Judge, who was the
appellant. The High Court had observed that, ignoring of directions
should imply an arrogant attitude of the learned Judge and was in
breach of the canons of judicial discipline and damage the judicial
system. This Court has, in several cases, deprecated the practice on
the part of judges in passing strictures and in making unsavoury,
undeserving, disparaging or derogatory remarks against parties,
witnesses as also subordinate officers.
140)
It is also worthwhile to refer to the latest judgment of this Court
in the case of Parkash Singh Teji vs. Northern India Goods Transport
Company Private Limited and Another, (2009) 12 SCC 577. This Court,
while considering the order of the High Court, declining to expunge
the adverse remarks against the appellant/judicial officer has
observed "judicial restraint and discipline are as necessary
to the orderly administration of justice as they are to the
effectiveness of the army".
Again
it was pointed out,
"A
Judge tries to discharges his duties to the best of his capacity,
however, sometimes is likely to err. It has to be noted that the
lower judicial officers mostly work under a charged atmosphere and
are constantly under psychological pressure. They do not have the
benefits which are available in the higher courts. In those
circumstances, remarks/observations and strictures are to be avoided
particularly if the officer has no occasion to put forth his
reasonings."
141) In
Alok Kumar Roy vs. Dr. S.N. Sharma (1968)
1 SCR 813 the vacation Judge of the High Court of Assam and Nagaland
passed an interim order during vacation in a petition entertainable
by the Division Bench. After reopening of the Court, the matter was
placed before the Division Bench presided over by the Chief Justice
in accordance with the High Court Rules. The learned Chief Justice
made certain remarks as to "unholy haste and hurry"
exhibited by the learned vacation Judge in dealing with the case.
When the matter reached this Court Wanchoo C.J., observed: (SCR pp
819 F- 820A)
"It is a
matter of regret that the
learned Chief Justice thought fit to make these remarks in his
judgment against a colleague and assumed without any justification or
basis that his colleague had acted improperly. Such observations even
about Judges of subordinate courts with the clearest evidence of
impropriety are uncalled for in a judgment. When made against a
colleague they are even more open to objection. We are glad that
Goswami J. did not associate himself with these remarks of the
learned
Chief Justice and was fair when he assumed that Dutta, J.
acted as he did in his anxiety todo whdat he thought was required in
the interest of justice. We wish the learned Chief Justice had
equally made the same assumption and had not made these observations
castigating Dutta J. for they appear to us to be without any basis.
It is necessary that judicial decorum has to be maintained at all
times and even where criticism is justified it must be in language of
utmost restraint, keeping always in view that the person making the
comment is also fallible.” (emphasis supplied)
142) In
State of M.P. vs. Nandlal Jaiswal (1986)
4 SCC 566 disparaging and derogatory remarks were made by the High
Court against the State Government. When the matter came up before
this Court and a complaint was made against these remarks, it was
observed by this Court that the remarks were "totally
unjustified and unwarranted". Bhagwati, C.J. stated: (SCC
p.615,para 43) "43 We may observe in conclusion that judges
should not use strong and carping language while criticizing the
conduct of parties or their witnesses. They must at with sobriety,
moderation and restraint. They must have the humility to recognise
that they are not infallible and any harsh and disparaging strictures
passed by them against any party may be mistaken and unjustified and
if so, they may do considerable harm and mischief and result in
injustice." "I have never known any judges, no
difference how austere of manner, who discharged their judicial
duties in an atmosphere of pure, unadulterated reason. Alas! we are
"all the common growth of the Mother Earth' - even those of
us who wear the long robe". (emphasis supplied) Similar was
the view of Thomas Reed Powell, who said: "Judges have
preferences for social policies as you said and I. They form their
judgments after the varying fashions in which you and I form ours.
They have hands, organs, dimensions, senses, affections, passions.
They are warmed by the same winter and summer and by the same ideas
as a layman is”.
“In
the present case, however, as we have already noted in the earlier
part of the judgment, whether the order passed by the appellant was
correct or not, but the remarks made, strictures passed and
directions issued by the learned Single Judge of the High Court
against the appellant were improper, uncalled for and unwarranted.
Apart from the fact that they were neither necessary for deciding the
controversy raised before the Court nor an integral part of the
judgment, in the facts and circumstances of the case, they were not
justified. We, therefore, direct deletion of those remarks.”
143)
In line with the consistent view of this Court, we are of the
considered view that the Division Bench could have avoided making
such observations which directly or impliedly indicates towards
impropriety in the functioning of the Court, appreciation of evidence
by the learned Judge and/or any other ancillary matter. The content
and merit of the judgment would have remained unaffected even if such
language or comments were not made against the learned trial Judge.
The respect of judiciary and for the judiciary, is of paramount
consideration. Every possible effort should be made and precaution
taken which will help in preservation of public faith and individual
dignity. A judicial consensus would require that the judgment should
be set aside or affirmed as the case may be but preferably without
offering any undesirable comments, disparaging remarks or indications
which would impinge upon the dignity and respect of judicial system,
actus curiae neminem gravabit. Despite exercise of such restraint,
if, in a given case, the Court finds compelling reasons for making
any comments in that event it will be in consonance with the basic
rule of law and adherence to the principles of natural justice that
view point of the concerned learned Judge should also be invited.
144)
In view of our discussion supra we direct expunction of all remarks
made by the Trial Judge against the prosecution and by the Division
Bench against the Trial Judge.
Role
of the Media and Press:
145)
Mr. Ram Jethmalani, learned senior counsel for the appellant
submitted that the appellant-Manu Sharma had been specifically
targeted and maligned before and during the proceedings by the media,
who proclaimed him as guilty despite even after his acquittal by the
Trial Court. He took us through various news items that were
published in English & Hindi dailies. He elaborated that
“Justice
should not only be done, it should manifestly and undoubtedly be seen
to be done.”
This common law rule can not be ignored.
146)
Cardozo, one of the great Judges of American Supreme Court in his
"Nature of the Judicial Process" observed that the
judges are subconsciously influenced by several forces. This Court
has expressed a similar view in P.C. Sen In Re: AIR 1970 SC 1821
and Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express 1988
(4) SCC 592. 147) There is danger, of serious risk of prejudice if
the media exercises an unrestricted and unregulated freedom such that
it publishes photographs of the suspects or the accused before the
identification parades are constituted or if the media publishes
statements which out rightly hold the suspect or the accused guilty
even before such an order has been passed by the Court.
148)
Despite the significance of the print and electronic media in the
present day, it is not only desirable but least that is expected of
the persons at the helm of affairs in the field, to ensure that trial
by media does not hamper fair investigation by the investigating
agency and more importantly does not prejudice the right of defence
of the accused in any manner whatsoever. It will amount to travesty
of justice if either of this causes impediments in the accepted
judicious and fair investigation and trial.
149)
In the present case, certain articles and news items appearing in the
newspapers immediately after the date of occurrence, did cause
certain confusion in the mind of public as to the description and
number of the actual assailants/suspects. It is unfortunate that
trial by media did, though to a very limited extent, affect the
accused, but not tantamount to a prejudice which should weigh with
the Court in taking any different view. The freedom of speech
protected under Article 19 (1) (a) of the Constitution has to be
carefully and cautiously used, so as to avoid interference in the
administration of justice and leading to undesirable results in the
matters sub judice before the Courts.
150)
A Bench of this Court in the case of R.K.
Anand v. Delhi High Court (2009)
8 SCC 106, clearly stated it would be a sad day for the court to
employ the media for setting its own house in order and the media too
would not relish the role of being the snoopers for the Court. Media
should perform the acts of journalism and not as a special agency for
the Court. The impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt,
regardless of any verdict in a Court of law. This will not be fair.
Even in the case of M.P. Lohia v. State of W.B. & Anr. (2005)
2 SCC 686, the Court reiterated its earlier view that freedom of
speech and expression sometimes may amount to interference with the
administration of justice as the articles appearing in the media
could be prejudicial, this should not be permitted.
151)
Presumption of innocence of an accused is a legal presumption and
should not be destroyed at the very threshold through the process of
media trial and that too when the investigation is pending. In that
event, it will be opposed to the very basic rule of law and would
impinge upon the protection granted to an accused under Article 21 of
the Constitution [Anukul
Chandra Pradhan v. Union of India &
Ors. (1996) 6 SCC 354]. It is essential for the maintenance of
dignity of Courts and is one of the cardinal principles of rule of
law in a free democratic country, that the criticism or even the
reporting particularly, in sub judice matters must be subjected to
check and balances so as not to interfere with the administration of
justice.
152)
In the present case, various articles in the print media had appeared
even during the pendency of the matter before the High Court which
again gave rise to unnecessary controversies and apparently, had an
effect of interfering with the administration of criminal justice. We
would certainly caution all modes of media to extend their
cooperation to ensure fair investigation, trial, defence of accused
and non interference in the administration of justice in matters sub
judice.
153)
Summary of our Conclusion:
1)
The appellate Court has all the necessary powers to re- evaluate the
evidence let in before the trial Court as well as the conclusions
reached. It has a duty to specify the compelling and substantial
reasons in case it reverses the order of acquittal passed by the
trial Court. In the case on hand, the High Court by adhering to all
the ingredients and by giving cogent and adequate reasons reversed
the order of acquittal. 2) The presence of the accused at the scene
of crime is proved through the ocular testimonies of PWs 1, 2, 6, 20,
23, 24 and 70, corroborated by Ex PW 12/D-I as well as 3 PCR calls Ex
PW 11/A, B and C.
3)
Phone calls made immediately after an incident to the police
constitutes an FIR only when they are not vague and cryptic. Calls
purely for the reason of getting the police to the scene of crime do
not necessarily constitute the FIR. In the present case, the phone
calls were vague and therefore could not be registered as the FIR.
The FIR was properly lodged as per the statement of Shyan Munshi
PW-2.
4)
Delay in recording the statement of the witnesses do not necessarily
discredit their testimonies. The court may rely on such testimonies
if they are cogent and credible. 5) The laboratory reports in the
present case are vague and ambiguous and, therefore, they cannot be
relied upon to reach any specific conclusion regarding the incident.
6) The evidence regarding the actual incident, the testimonies of
witnesses, the evidence connecting the vehicles and cartridges to the
accused - Manu Sharma, as well as his conduct after the incident
prove his guilt beyond reasonable doubt. The High Court has analyzed
all the evidence and arrived at the correct conclusion. 7) The public
prosecutor is under a duty of disclosure under the Cr.P.C., Bar
Council Rules and relevant principles of common law. Nevertheless, a
violation of this duty does not necessarily vitiate the entire trial.
A trial would only be vitiated if non-disclosure amounts to a
material irregularity and causes irreversible prejudice to the
accused. In the present case, no such prejudice was caused to the
accused, and therefore the trial is not vitiated.
8)
No prejudice had been caused to the right of the accused to fair
trial and non-furnishing of the copy of one of the ballistic reports
had not hampered the ends of justice. The right of the accused to
disclosure has not received any set back in the facts and
circumstances of the case. 9) The High Court has rightly convicted
the other two accused, namely, Amardeep Singh Gill @ Tony Gill and
Vikas Yadav after appreciation of the evidence of PWs 30 and 101. 10)
Normally, the judgment/order should be set aside or affirmed as the
case may be but preferably without offering any undesirable comments,
disparaging remarks or indications which would impinge upon the
dignity and respect of judicial system.
11)
Every effort should be made by the print and electronic media to
ensure that the distinction between trial by media and informative
media should always be maintained. Trial by media should be avoided
particularly, at a stage when the suspect is entitled to the
constitutional protections. Invasion of his rights is bound to be
held as impermissible.
154)
In the light of the above discussion, we hold that the prosecution
has established its case beyond doubt against the appellants and we
are in agreement with the conclusion arrived at by the High Court,
consequently, all the appeals are devoid of any merit and are
accordingly dismissed.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(SWATANTER KUMAR)
NEW
DELHI;
APRIL
19, 2010.
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