2010 (4) TMI 1095 - SUPREME COURT

Jessica Lal Murder Case - Appeal u/s 379 CrPC - HC reversed the order of acquittal - Conviction u/s 302, 201/120B IPC and sentenced to undergo imprisonment for life - Section 27 of the Arms Act - The Incident took on night intervening 29-30.04.1999, at restaurant also called "Tamarind Cafe". 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 along with his friends came there and asked for two drinks. The waiter did not serve him liquor as the party was over. 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. 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.

HELD THAT:- 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.

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.

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.

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 u/s 8 of the Indian Evidence Act an adverse inference has to be drawn against Manu Sharma for this conduct.

Summary of our Conclusion:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.