TMI Blog2010 (4) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ospital. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment/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. - P. Sathasivam Swatanter Kumar, JJ. 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 Criminal Procedure Code against the final judgment and order dated 18/20.12.2006 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but he did not hand over the pistol and fled away. Jessica Lal was rushed to Ashlok Hospital from where she was shifted to Apollo Hospital. On 30.04.1999, in the early morning hours, Jessica Lal was declared brought dead at Apollo Hospital. (b) On the night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex. PW-13/A) was recorded at Police Station Mehrauli which disclosed a shooting incident at H- 5/6 Qutub Colonnade. A copy of the said DD entry was handed over to SI Sharad Kumar (PW-78) who along with Ct. Meenu Mathew left for the spot. Near about the same time, copy of the said DD entry was also given to SI Sunil Kumar (PW-100) who along with Ct. Subhash also left for the spot. On reaching the spot, PW-78 found that the injured had been removed to Ashlok Hospital and the floor of the Restaurant was found to be wet. SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78) at the spot to guard the same and proceeded to Ashlok Hospital along with Ct. Subhash. The SHO Police Station Mehrauli, Inspector S.K. Sharma (PW-101) along with his team also left the Police Station vide DD Entry No. 43 A and reached the spot and deputed one Home Guard Shravan Kumar (PW 30) at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and on search being conducted seized a photograph of the appellant. On 02.05.1999, a list of invited guests was prepared by PW- 24. On the same day, around 10.00 p.m., PW-101, got an information that a black Tata Safari has been found by the U.P. Police (Sector 24, Noida Police Station) and on the next day PW-101 went to Noida Police Station and seized the said black Tata Safari. On 05.05.1999 at about 2.30 a.m., Amardeep Singh Gill @ Tony Gill and Alok Khanna were arrested and from their alleged disclosure statements, the involvement of Sidhartha Vashisht @ Manu Sharma was confirmed. On the same day, Inspector Raman Lamba (PW 87) who was in Chandigarh with his team intimated the lawyer of the accused- appellant that Manu Sharma is required in the case. On receipt of the information, on 06.05.1999, the appellant surrendered before PW-87 and was later arrested at about 2.20 p.m. and brought to Delhi. On 07.05.1999, the police produced the appellant before the Metropolitan Magistrate and sought police remand for effecting recovery of the alleged weapon of offence. An application for conducting Test Identification Parade (TIP) of the appellant was also moved. Thereafter, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of six weeks by the order of the High Court dated 25.01.2002 with a direction to surrender after the expiry of the same. In compliance with the conditions of interim bail, the appellant surrendered on 11.3.2002 but again sought for and granted interim bail for a period of ten weeks starting from 20.03.2002. During the period from March 2002 to February 2006, the appellant was enlarged on bail on different occasions by various orders of the High Court. On one occasion, against the dismissal of the bail application by the High Court on 11.11.2003, the appellant filed a special leave petition before this Court which was dismissed by this Court on 02.12.2003. On 21.02.2006, after trial, the Additional Sessions Judge acquitted all the nine accused including the appellant- Manu Sharma. (f) Challenging the acquittal, the prosecution filed an appeal before the High Court being Crl. Appeal No. 193 of 2006. On 20.12.2006, the High Court vide the impugned order, convicted and sentenced the appellants, as mentioned in paragraphs above. Challenging the said order of the High Court, all the three appellants filed above mentioned separate appeals before this Court. All the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 and George Mailhot PW-24 is inadmissible in law. g) The prosecution never claimed Beena Ramani PW-20 as an eye-witness, however, the High Court erroneously held her as eye-witness to the occurrence. h) High Court failed to consider the evidence of Madan Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47. i) The High Court committed an error in relying upon the testimony of George Mailhot PW-24 to corroborate the evidence of Beena Ramani PW-20. j) The First Information Report recorded on the statement of Shyan Munshi PW-2 is not an FIR but a signed statement. The High Court wrongly discarded his (PW-2) ocular version. However, the Trial Court assigned good reasons for accepting his evidence. k) The High Court's observation on Ballistic Experts from CFSL is erroneous. l) The High Court committed an error in disbelieving P.S. Manocha PW-95. m) There is no acceptable evidence/material to connect Tata Safari to the alleged occurrence. n) Shravan Kumar PW-30 is a planted witness, and there is no need for him to accompany PW-1 to the spot when he was assigned other official work. o) A rough site plan which was prepared in the early hours of 30.04.1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquittal: 11) Before analyzing the prosecution case, the defence plea and the arguments of the respective counsel, let us find out the scope of the Appellate Court in reversing the order of acquittal by the Trial Court. Mr. Ram Jethmalani, learned senior counsel for the appellant- Manu Sharma, by drawing our attention to the principles laid down by this Court in Madan Lal 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public prosecutor in conducting prosecution for which he relied on the procedures being followed in United Kingdom and also cited certain passages from the books of foreign authors. In addition to the same, he highlighted how the appellant- Manu Sharma was prejudiced by the wild allegations that were carried by Media, both print and electronic. Since we intend to concentrate on the merits of the case, we discuss and give our reasoning at the appropriate place or at the end of our order. 15) Presence of accused Manu Sharma 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 Bhoj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was unable to get even one. Manu Sharma came into my contact after about 10-15 minutes of my purchasing two pegs of whisky. He requested me to arrange liquor for him on which I told him that liquor was over and the bar was closed and therefore, I would not be able to arrange liquor for him. We were already introduced to each other and were about to exchange visiting cards, when one tall sikh gentleman came from behind of Manu Sharma and told him something and took him away towards Tamarind Cafi. Before leaving, Manu Sharma told me that he would come back and meet me again . PW-1 correctly identified the photographs of both the accused persons one Manu Sharma and the other Tony Gill. He also informed that the accused Tony Gill came along with Manu Sharma and 2/3 of his friends. In respect of the question whether it would be possible for him to identify those 2/3 persons who were accompanying accused Tony Gill, PW-1 has pointed out Alok Khanna, accused-Manu Sharma and Tony Gill. We shall separately discuss about the Test Identification Parade and the validity of desk identification during time in the latter paragraphs. About the incident, he narrated that After about 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact that the statement of PW-1 was recorded on 14.05.1999 submitted that, first of all, he is an interested witness and his testimony is not acceptable. On seeing his entire evidence, there is no reason to either suspect his evidence or reject the same as unacceptable. On the other hand, his evidence supported by other witnesses clearly proves the presence of accused Nos. 1-4 at the place of occurrence. He asserted the presence of Jessica Lal, Shyan Munshi and the claim of whisky by a fair complexion man who exchanged niceties with him and introduced him as Manu Sharma. We do not find any valid reason to hold that he is a planted witness, though he was not an eye-witness to the actual shooting incident but his own statement proves that immediately on hearing the noise he peeped and noticed Jessica Lal lying on the floor of Tamarind Cafi. To this extent, the evidence of PW- 1 is acceptable and the High Court has rightly believed and relied on his version. b) Shyan Munshi PW-2 In the year 1999, he was studying in Indian Institute of Planning and Management at New Delhi doing his MBA Course. At that time, he was residing at 15/16 H. Hauz Khas, New Delhi. He informed the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hospital at about 3:30 a.m. and my statement was taken at about 3:45 a.m. or 4 a.m. He also admitted that he was in Delhi for about a year or so and able to understand spoken Hindi. He is aware of Beena Ramani as the proprietor of Qutub Colonnade. The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited Tamarind Cafi on the night of 29.04.1999. He also mentioned the presence of Manu Sharma. His evidence further shows that immediately after the shot Beena Ramani and others were carrying Jessica Lal to the Ashlok Hospital. In other words, his evidence proves the presence of accused-Manu Sharma at the scene of offence. To this extent, the prosecution relied upon his evidence and this was rightly accepted by the High Court. Though, Mr. Ram Jethmalani submitted that High Court ought to have accepted his entire evidence in toto, considering his earlier statement to the police and his evidence before the Court, we are satisfied that the High Court is justified in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. As observed earlier his evidence amply proves the presence of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Munshi came running to me and Sanjay Mehtani and he was screaming that Jessica had been shot. I just passed out after hearing about it and fainted. I can identify that person, who had asked drink from me and who was wearing jean and t-shirt. Witness has pointed out towards accused Siddhartha Vashisht @ Manu Sharma and said that he just look like him. I had seen this accused in the police station on 8th May. I had gone there as I was arrested in a case under Excise Act. Question:- Are you certain that the person to whom you had just identified was the same person who had asked drinks from you and was wearing jean and T- shirt? Answer:- I am sure he is the same person. About PW-6's testimony, Mr. Ram Jethmalani criticized the question put by the public prosecutor which according to him is not permissible. It is relevant to point out that before considering her answer that I am sure he is the same person , we have to see her statement in the previous paragraph. She identified Manu Sharma who had asked drinks from her who was wearing Jean and T-shirt. It is also relevant to note that she pointed out towards the accused Manu Sharma and said that he just looked like him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice 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 relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-6 fainted, thus, in the process, if PW-70 saw her screaming in the courtyard, it cannot be said that there is any contradiction in the statement of PW-6 and PW-70. 29) It was pointed out by the defence that the firing was not over a drink, the act to refuse supply of liquor was not the motive to murder Jessica. After perusing the evidence of PW-6, it is clear that after refusal of the drink, the appellant-Manu Sharma misbehaved in the most vulgar fashion. The testimony of PW-23 further corroborates the testimony of PW-6. As rightly pointed out by the State that it was a case where the deceased Jessica Lal was murdered for a row over the drink. 30) It was also pointed out on the side of the appellant- Manu Sharma, that the evidence of Malini Ramani, PW-6 and George Mailhot, PW-24 does not corroborate the statement of Beena Ramani, PW-20. In this regard, it is relevant to note that these three witnesses have deposed on three different situations in the chain of circumstances. The evidence of these three witnesses, if read in whole in conjunction and in harmony with each other, would show the chain of circumstances of evidence leading to only one inference. It was highlighted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isky, 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, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 200, therefore, the maximum fine which could have been imposed on the accused is ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was rejected in Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392. 37. In assailing the above findings Mr Jethmalani first contended that both the courts below ought not to have taken into consideration and relied upon the evidence of PC PW 1 as the same was clearly inadmissible. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as the FIR and exclude the same from its consideration as a piece of corroborative evidence in view of Section 162 of the Code but then on that score alone the evidence of a witness cannot be held to be inadmissible. The case of Zahiruddin turned on its own facts, particularly the fact that during his examination- in-chief the witness was allowed to refresh his memory from the statement recorded under Section 161 Criminal Procedure Code, unlike the present one where the statement was admitted in evidence after PC PW 1 had testified about the facts from his own memory. 41) The information about the commission of a cognizable offence given in person at the Police Station and the information about a cognizable offence given on telephone have forever been treated by this Court on different pedestals. The rationale for the said differential treatment to the two situations is, that the information given by any individual on telephone to the police is not for the purpose of lodging a First Information Report, but rather to request the police to reach the place of occurrence; whereas the information about the commission of an offence given in person by a witness or anybody else ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Safari. He started the vehicle even though I asked him, not to do so. I gave a lathi blow on the last window-pain on the side of the driver. The number of the black TATA Safari, bore Registration no. CH-01-W-6535. When I gave danda- blow, the glass of window-pain broke. Both the persons, took-away the vehicles. I had seen the driver and companion on the Tata Sierra. The TATA Sierra vehicle was being driven by Sikh Gentleman. I can identify the driver of the said Tata Sierra and his companion. At this stage, the witness has been sent out to examine the vehicle, parked, outside the court room, along with Junior of Shri G.K. Bharti, Advocate and Shri Ghai, Advocate. It is the same Tata Safari vehicle, which was hit by me on that night. It is exhibited as article Ex.PW 30/X. It is clear from his evidence that while Tata Safari CH-01-W-6535 was being taken away forcibly from the scene of occurrence at about 3.45 a.m. by accused Vikas Yadav and both Vikas Yadav and Amardeep Singh Gill came in a Tata Sierra, PW-30 gave a danda blow on the right rear side of the window of the car. ii) The prosecution case further shows that the first police officer to reach the place of oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the spot. It is the argument of the learned senior counsel for the appellant Manu Sharma that PW-30 was not present at the spot of the incident placing its reliance on DD No.40A and 43A dated 30.04.1999. A perusal of FIR 286 of 1999 dated 30.04.1999 under Section 308/34 IPC PS Mehrauli Ex-CW-2/B shows that the said `rukka' was sent by SI Rishi Pal through Balwan Singh from AIIMS and not from Dera Gaon. The said FIR also indicates that SI Rishi Pal by 2.30 a.m. had already recorded the statement of the victim at AIIMS and had not sent the same with Balwan Singh with `rukka' to PS, Mehrauli. In those circumstances, the version of PW-30 and PW-101 that PW-30 met him at the gate of the PS when PW-101 was going out with other staff is reliable and acceptable. Further, the presence of PW-30 at the spot is corroborated by Sharad Kumar Bisnoi, PW-78, HC Devi Singh, PW-83, SI Sunil Kumar, PW-100 and Surender Sharma, PW-101. It was also highlighted that after this incident PW-30 has been recruited to the post of Constable though he was not eligible as he was under metric and overage. Learned Solicitor General appearing for the State pointed out that instances are not unknown wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Piccadilly Agro Industries and it was also found in Karnal and he further informed that Sidharth Vashisht alias Manu Sharma is the Director of the said Industries who is residing in H.No.229, Sector 9C, Chandigarh. A perusal of his entire evidence shows that he had stated that the vehicle was found registered in the name of Piccadilly Agro Industries, Bhadson, which was also found in Karnal and SI Pankaj Malik along with his staff has been detailed for the investigation of the aforesaid aspect of the case. As rightly pointed out by the counsel for the State, the testimony of PW-100 show that he was referring to the Piccadilly Agro Industries having been found at Bhadson Karnal and not the vehicle/Tata Safari. It was also pointed out when Manu Sharma was questioned under Section 313 Cr.P.C. particularly question No. 119 the doubt about the vehicle has been erased. Question No. 119 put to Manu Sharma and his answer is as follows:- Q.119 It is further in evidence of PW 100 that when he came back to Qutub Colonnade nearly at about 03:15 PM on 30.04.99 where he met Surinder Sharma (PW 101) and discussed the case with SHO Surinder Sharma who informed him that vehicle No. CH-01-W- 653 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi, Haryana and Chandigarh. As the said vehicle was found on 02.05.1999 at Noida and the same was taken into possession through a seizure memo prepared by Noida Police. The same was taken into possession by Delhi Police on 03.05.1999 after taking appropriate orders from the Magistrate Ghaziabad. Recovery of Tata Safari with live bullet and broken glass pieces at Noida: 47) PW-91 SI BD Dubey, in his evidence has stated that information was received that the vehicle involved in Jessical Lal murder case was parked at NTPC Township. They reached NTPC Township at about 06.30 p.m. on 02.05.99 and found a Safari Vehicle parked there bearing No. CH-01-W-6535. He identified the vehicle Ex. article PW 30/X in the court. Recovery memo prepared is Ex PW 74/A which is in his handwriting and bears his signatures at point C and that of Sudesh Gupta SO at point B. PW-74 stated that vehicle Tata Safari was recovered vide Ex. PW 74/A on 02.05.99. He also identified signatures of SI BD Dubey SI Sudesh Gupta on the same. Ex PW 74/A Seizure Memo of Tata Safari and live cartridge with `C' mark etc. clearly establish the recovery of the same at Noida, beyond any shadow of doubt vide Ex PW 74/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police) failed to mention the seizure of broken glass pieces on 02.05.1999. Tata Safari being used by Manu Sharma on the day of occurrence: 50) From the evidence on record it has been proved by the prosecution that appellant/accused Sidhartha Vashisht @ 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 nig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the arms license which was also produced by them, the same does not bear the signature of the said lawyer. The learned counsel for the State further pointed out that the said lawyer declined to sign the seizure memo that was the reason that it does not bear the signature of the said lawyer. It is to be remembered that admittedly the appellant/accused nowhere came out with an explanation. His arms license was taken away by the Police in 30.04/01.05.1999 with any seizure memo, why he has not lodged any report about the same. It is also relevant to point out when the accused after surrendering before the police of Chandigarh on 06.05.1999 was produced before the Magistrate in Delhi. The police sought remand on two occasions specifically for recovery of the weapon of the offence. It was pointed out by the prosecution that Manu Sharma was duly represented by lawyers who did not point out on both occasions that the pistol had already been taken by the Police. The State also denied the said claim of the accused as false and concocted. 54) Even, Shanker Mukhiya PW-44, who is the caretaker of farm house of Manu Sharma at Samalkha who was produced by the prosecution for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive inference beyond reasonable doubt has to be drawn that Manu Sharma fired from his .22 bore pistol which resulted in the death of Jessica Lal on the fateful night of 29/30.04.1999. 57) Mr. Ram Jethmalani, learned senior counsel, appearing for the accused pointed out that no question has been put to the accused in his examination under Section 313 Cr.P.C. with reference to the pistol and shooting by him for this. The State has placed reliance on the following questions which were specifically put to the accused Manu Sharma being Question Nos. 64, 65, 66, 67 72 which are as under: Q.64 It is further in evidence of PW-20 that she had identified you Manu Sharma as the person whom she has tried to stop and talked to. She added further that the person who was confronted by her on the stairs was some what like you Manu Sharma and also identified you on 08.05.1999 at PS Mehrauli. What you have to say in this regard? Ans. It is false and incorrect. Q.65. It is further in evidence of PW-20 that the companion of Shyan Munshi (you Manu Sharma) was wearing T-shirt and she asked you Manu Sharma as to why you were here and why you shot Jessica and she also asked you to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted on each day are very clearly brought out in the evidence of the various witnesses. Furthermore, the identity of the appellant as a suspect in the present case was not the consequence of any delay. Thus, the delay, if any, in recording the evidence of witnesses in the present case cannot be considered as an infirmity in the prosecution case. 59) The judgment in Maruti Rama Naik 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 appellant as an accused. Furthermore, there was no explanation regarding the delay in that case. The facts of that case are, therefore, clearly diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of remembrance and other witnesses have also admitted the presence of Deepak Bhojwani. This is more so relevant as the invited guests were also entitled to bring guests with them. The statements of witnesses were recorded not only by the I.O. himself but by other officials as well who were helping him in investigation. The delay in recording the statement of Deepak Bhojwani occurred due to natural flow of statements of various witnesses. The statement of Deepak Bhojwani PW-1, was recorded by ACP Durga Prasad PW-92, who stated the name of Deepak Bhojwani occurred during the course of interrogation of other guests/witnesses. The evidence of PW-1 is relevant for a limited purpose i.e., proving the presence/identity of Manu Sharma and his desire for liquor in the party which part of evidence has also been given by other witnesses in so many words, prior to Deepak Bhojwani as well. The said witness in his evidence has categorically stated as under: Few of the police officials came to Apollo Hospital along with the Ambulance and few of them returned to Qutub Colonnade. I did not make any statement to the police in Apollo Hospital. Since I had not seen the incident being taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firearm. 2) The two .22 cartridge cases marked C/1 and C/2 have been fired from two different .22 caliber standard firearms. 3) The .22 cartridge (marked C/3) of parcel No.5 is a live cartridge and no characteristic tool marks (i.e. firing pin, ejector, extractor, breechface, magazine or chamber marks etc.) could be observed on this cartridge. 4) The two .22 cartridge cases (marked C/1 C/2) of parcel No.4 and the .22 cartridge (marked C/3) of parcel No.5 have similar Head Stamp of `C' indicating that they are of the same make. No opinion on their series (lot/batch) could however be given. According to the State the same also contained inconclusive opinion. It was pointed out that the State has neither relied on the report of the expert Sh. Rup Singh nor had filed it in the trial Court. An application was moved by the accused for the supply of the document and vide order dated 14.01.2000, the Metropolitan Magistrate directed that the State will have to supply all the deficient copies and also the remaining CFSL reports sent by CFSL to SHO. The opinion of Sh. Rup Singh, Ballistic expert finally exhibited as Ex. PW 89/DB only says that it appears that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 discredite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 cartrid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons stated above and since it is both inconclusive and unsupported by any reasoning whatsoever and, therefore, cannot appeal to the judicial mind of this Court. Similar is the case with the expert opinion of PW-95 which is again inconclusive. There is no evidence on record to suggest that PW-95 gave an opinion to oblige the prosecution. On the contrary, his response to the Court question reveals that he was extremely confused as to the issue which had to be addressed by him in the capacity of an expert. In the concluding part of his testimony he reaffirms the opinion given by him which is that without test firing the empties from the weapon of offence no conclusive opinion can be given. 72) It is pertinent to note that the testimony of the experts i.e., Rup Singh exhibited as Ex.PW-89/DB and PW-95 Prem Sagar Minocha exhibited as Wx PW-95/C-1 in inconclusive. The expert PW-95 Prem Sagar Minocha has stated in his report that it is only on receiving the weapon of offence that a conclusive opinion as to whether the two empties (cartridge cases) found at the spot were fired from the same weapon or from two different weapons could be given. 73) The defence seeks to reply upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. 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: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppression of material capable of establishing the innocence of the accused shall be scrupulously avoided. Therefore, it is clear that the Code the Bar Council of India Rules provide a wide duty of disclosure. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial. Mr. Ram Jethmalani argued that this duty extends beyond these provisions, and includes even that evidence which may not have been used by the prosecutor during the trial. As we have already mentioned, for this purpose, he relied upon the position in England. 80) Currently, the position in England is governed by the Criminal Procedure and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases. In R. v Ward (Judith Theresa) (1993) 2 All E.R. 577, Court of Appeal held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341 this Court reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the investigating officer or the Court uses the entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Section 2 7 of the Code State of Kerala v. Babu (1999) 4 SCC 621 and State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715. 91) As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions afore-referred. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.05.1999 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. 96) 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: 97) Mr. Ram Jethmalani, learned senior coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses. 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25) Learned senior counsel for the appellant has argued that the statement of the accused recorded under Section 313 of the Criminal Procedure Code may be treated as evidence and by doing so this Court must take into consideration the stand taken by the appellant as regards his gun having been taken away by the police. In support of his argument, he relied upon the decision of this Court in the case of Hate Singh Bhagar Singh vs. State of Madhya Bharat, AIR 1953 SC 468. It has been further argued that the evidence of witnesses has not been put to the appellant thereby causing prejudice to the appellant. 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 answ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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) Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine demand that strictures or lacerating language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction. Judicial discipline requires that errors of judgments should be corrected by reasons of law and practice of passing comments against the lower courts needs to be deprecated in no uncertain terms. The individuals come and go but what actually stands forever is the institution. 134) In the present case the High Court in its judgment, on the one hand, explicitly referred to certain criticism/comments/remarks made by the trial Judge against the investigating agency, and observed that they 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 unho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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