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TMI Blog2010 (4) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... of the victim and in default of payment of fine, to undergo further imprisonment for three years and also sentenced him to undergo imprisonment for four years for the offence under Section 27 of the Arms Act with a fine of Rs. 2000/- and in default to further undergo imprisonment for three months. He was further sentenced to undergo imprisonment for four years for the offence under Section 201/120B IPC together with a fine of Rs. 2,000 and, in default, to further undergo imprisonment for three months. The High Court also sentenced Amardeep Singh Gill @ Tony Gill (appellant in Crl.A. No. 157/2007) and Vikas Yadav (appellant in Crl. A.No.224/2007) to undergo rigorous imprisonment for four years and a fine of Rs. 2000/- each and, in default of payment of fine, to further undergo imprisonment for three months under Section 201/120B IPC. 2) The case of the prosecution: (a) On night intervening 29-30.04.1999, a `Thursday Party' was going on at Qutub Colonnade at "Once upon a time" restaurant also called "Tamarind Cafi". The liquor was being served by the bartenders, namely, Jessica Lal (since deceased) and one Shyan Munshi (PW-2). At about 2.00 a.m., Sidhartha Vashisht @ Manu Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered at the police station, Mehrauli. In the meantime, Jessica Lal had been shifted to Apollo Hospital. When SI Sunil Kumar came back to the spot along with PW-2, PW 30 informed them about the lifting of one black Tata Safari from the spot. On inspection of the site, two empty cartridges were seized and, in the meantime, a supplementary statement of PW-2 was also recorded by PW-100. At about 5.45 a.m., PW- 100 received an information by Ct. Satyavan intimating him about the death of Jessica Lal at Apollo Hospital. Charge under Section 302 IPC/201/120 B IPC and under Section 27 of the Arms Act has been framed against the accused Sidhartha Vashisht @ Manu Sharma, charge under Section 201/120B IPC has been framed against accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok Khanna, charge under Section 212 IPC has been framed against Harvinder Chopra, Raja Chopra, Vikas Gill @ Ruby Gill and Yograj Singh and charge under Section 201/212 IPC against Shyam Sunder Sharma. At about 7.00 a.m. PW 100 recorded the statement of the Manager (PW-47), Waiter (PW-46) and Beena Ramani (PW-20)- the owner of the Restaurant. (c) The post mortem was conducted at about 11.30 a.m. at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions Judge framed charges against the appellant/Manu Sharma under Sections 302, 201 read with 120 B IPC and Section 27 of the Arms Act, accused Amardeep Singh Gill was charged under Section 120 read with Section 201 IPC, accused Vikas Yadav was charged under Section 120 read with 201 IPC as also Section 201 read with 34 IPC, accused Harvinder Chopra, Vikas Gill, Yograj Singh and Raja Chopra under Section 212 IPC and accused Alok Khanna, Shyam Sunder Sharma and Amit Jhingan were discharged of all the offences. In 2000/2001, Revision Petition No. 596 of 2000 was preferred by the prosecution before the High Court of Delhi praying for the framing of charge against the accused persons and setting aside the discharge of Alok Khanna, Shyam Sunder Sharma and Amit Jhingan. Revision Petitions were also preferred by the accused persons against the framing of the charges against them. The High Court disposed of all the revision petitions filed by the accused persons by a common order dated 13.03.2001. On 12.04.2001, charges as per the orders of the High Court were framed and some of the charges as framed earlier were maintained. Charges under Section 120B/201 IPC were framed against accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person and pleaded for acquittal of the appellant-Manu Sharma. Contentions of the appellants/accused: 4) Mr. Ram Jethmalani, after taking us through all the oral and documentary evidence relied on by the prosecution as well as the defence, the order of the Trial Judge acquitting all the appellants from the charges leveled against them and the impugned order of the High Court reversing the order of acquittal raised the following contentions:- a) The appellant (Sidhartha Vashisht @ Manu Sharma) has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India. b) On the very first day of investigation i.e. on 30.04.1999, an FIR was filed against Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 under the Punjab Excise Act in order to control these witnesses and to pressurise them to support the prosecution case. After their deposition, the Excise case was pre-poned and disposed of by imposing a fine of paltry amount. c) Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 were frequently shown the photograph of the appellant and he was paraded before them. d) The finding of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the charge in respect of Amardeep Singh Gill and Vikas Yadav under Section 201 read with 120B of the IPC. 6) The intervenor supported the case of the appellant- Manu Sharma and prayed for his acquittal. Submissions on behalf of the State: 7) On the other hand, Mr. Gopal Subramanium, learned Solicitor General, after taking us through the entire materials, submitted that the Trial Judge has committed an error in acquitting all the accused and the High Court being an Appellate Court is fully justified in re-analysing the evidence and convicting all the three accused- appellants and awarding appropriate sentence. After pointing out oral, documentary evidence and other legal principles, he submitted that the conviction and sentence awarded by the High Court are acceptable and no interference is called for by this Court, and prayed for dismissal of all the three appeals. 8) We have carefully considered all the materials placed and the rival contentions. 9) Points for consideration in these appeals are:- a) Whether the prosecution has established its case beyond reasonable doubt against all the three accused? b) Whether the trial Court is justified in acquitting all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Court to review the evidence upon which the order of acquittal is found. (ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions. (iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law. (iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal. (v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. (vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased in advance from the cash counter. On 29.04.1999, he attended the Thursday Party alone at about 11 o'clock in the night. In chief examination, in categorical terms, he deposed: "I had purchased four coupons of Rs. 100/- each on that day. Jessica Lal (since deceased) and Shyan Munshi (complainant) were serving liquor on that night at the bar counter. I had known Jessica lal for about five or six years whereas Shyan was introduced to me by Jessica Lal about a week before 29.04.1999 i.e. on the previous Thursday Party". Apart from the above assertion, he also informed the Court that Jessica Lal (since deceased) was working with Oberoi Hotel and was also a model by profession. He described the location of "Tamarind Court" and "Tamarind Cafi". The bar counter was located in "Tamarind Court" open area between the two doors of the "Tamarind Cafi", but since it was summer nobody was using the bar counter giving preference to the bar counter located outside. He also stated that Jessica Lal was wearing blue denim shorts and white half sleeved shirt on that night. On the same night, at about 1 o'clock (midnight), he went to the bar counter to have his third drink. He infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther informed the Court - "......discussion was going on as to who had done this and it was also being discussed that the culprit was wearing blue denim jeans and white shirt and was fair and was little short in height then I assessed that he was the same person who had come to me to arrange drinks for him. I had told the police in Apollo Hospital that it was Manu Sharma who was with the similar description as was discussed amongst friends on which police had told me that they would call me." A close scrutiny of PW-1's evidence clearly shows that Jessica Lal was friendly with him having known him for 5- 6 years. He also went to the house of parents of Jessica Lal twice i.e. on 30th April and 1st May 1999 to pay condolence. Further, in categorical terms, he asserted and identified the presence of Manu Sharma at the scene of offence. Since he had contact with a person having fair complexion with smiling face/Manu Sharma, in the Court he correctly identified both Manu Sharma and the tall Sikh gentleman as Tony Gill. He also identified other persons who accompanied Manu Sharma and Tony Gill. It is also clear from his evidence that at around 1.45 a.m., he heard a noise emer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h her from before. The place where the party was going on was known as Qutub Colonnade Tamarind Court. There was miniature bar counter outside in the open space where liquor was being served. Besides Jessica Lal and Malini there were other few persons who were helping in serving liquor. On that night, I did go inside the Tamarind Cafi. It might be 2 o'clock at that time, I mean 2 a.m. There were about 6-7 persons inside the cafi at that time. " "I went inside the cafi primarily with a view to eat something as I was feeling hungry and also nothing was being served outside. I found that Jessica was inside. At that time, no other lady was there. I went behind the counter to get something to eat. I managed to get pastry lying in the freeze and when I was taking it, a gentleman with white tea-shirt came there. He asked the waiter to serve him two drinks. The waiter did not pay attention to that gentleman and became busy in cleaning up. Jessica was also there on the other side of the counter and she told the gentleman that the party was over and there was no alcohol to be served. At that time, that gentleman took out a pistol from the dub of the pant and fired a shot in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orge Mailhot PW-24, who was going abroad for five months. She was at the Qutub Colonnade on that evening. Jessica Lal was also there. Beena Ramani PW-20 and Shyan Munshi PW-2, were also there. According to her, the party on that night was over by midnight. Approximately at about 1.45 a.m., she went with her friend Sanjay Mehtani to the restaurant to look for something to eat. At that time, she had a drink in her hand. She found that Jessica Lal, Shyan Munshi, her electrician and couple of waiters were there in the restaurant. She further deposed-- "We were standing there when couple of guys went in. They were about numbering four, may be five. I am not very sure about it. One of them asked me could I have two whiskys. He was wearing jean and white t-shirt. He was in his mid twenties. He was having fair complexion. His built was on the plump side. I do not know if he had asked whisky from anybody else prior to asking from me. When he asked two whiskys from me, I showed my inability saying sorry, Bar was closed. Then he kept asking me and Jessica for drinks, but we kept on saying that the bar was closed and whisky could not be served." "Then he said that he had cash to pay for dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evance that she was unable to understand her earlier answers. In such circumstances, we are unable to appreciate the objection of Mr. Ram Jethmalani. On the other hand, it is clear from the evidence of PW-6 that the accused Manu Sharma was very well present at the scene of offence and she correctly identified him. Further, as rightly observed by the High court, though she was not an eye-witness, she is certainly a witness identifying Manu Sharma along with 4 or 5 persons present at the Tamarind Court who asked her for whisky and later misbehaved with her. We agree with the observation and the ultimate conclusion about PW-6 reached by the High Court. d) Beena Ramani PW-20 She is the wife of George Mailhot PW-24. She is a Fashion Designer. She purchased the property near Qutub Minar at H-5/6 Mehrauli Road, New Delhi in the year 1995. This property is being used as a Shopping Arcade and a Restaurant. The Shopping Arcade is known as "Qutub Colonnade". The name of the Restaurant was "Tamarind Court Cafi". She had a proper license for eating house in the aforesaid complex. The license for the restaurant was in the name and style "Once Upon A Time". She admitted that the license of eatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved me aside and went out. I ran after him. Again said behind him. All the way to the front gate of the main building. He was a few steps ahead of me and I could not catch him. In the meantime, I was shouting instructions to the guests to call Hospital or to take Jessica Lal. I reached the gate my husband was standing there and I told him that this was the man who had shot Jessica Lal and to see in which car he gets into." "That person who was told to be seen by my husband was with some friends at the time of occurrence inside the cafi. I think that I can identify the person whom I had tried to stop and talked to. After taking sometime and examining the accused over and over again, the witness has pointed towards accused Sidhartha Vashisht @ Manu Sharma and when asked to touch him, she touched him." She also identified the other persons who were with Manu Sharma, though she has not mentioned the name of persons but on the instructions of the Court she has touched those persons named by the Court. She further informed-- "About a week later, at the Police Station, the name of which I do not remember, I saw that person. I saw Manu Sharma". If we analyze her evidence along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly known as "Qutub Colonnade". It had a number of shops and a restaurant. The licence of eating place was in the name of Beena Ramani. He was also involved in the said business for several years before the date of occurrence. Several parties were arranged and last Thursday Party was held on April 29, 1999. On that day, he was leaving for World Trip for a few months, partly that was the occasion for that party. At the instance of the police, he prepared a list of guests who were invited in that party and gave the list to the police which was signed by him on 22.05.1999. It is Ex. PW24/A. According to him, time of occurrence might be around 2 AM. At that time he was standing in the courtyard near a large tree which is in the middle of the courtyard. This must be about 20 ft. away from the door of the restaurant. He further deposed: "I was facing opposite side of the entrance door of the restaurant and then I heard two pop shots like balloon. I turned towards the restaurant door from where I had heard the sound and within a few seconds Shyan Munshi came running and said to me someone shot Jessica. I immediately went to the restaurant. When I reached the door of the restaurant I s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icitor General, his evidence also proves the presence of the accused-Manu Sharma at the scene of offence. f) Rouble Dungley PW-23: In his evidence, he admitted that he had told the police that he saw Beena Ramani going after a boy. In his deposition, he mentioned that: "It is correct that I had told the police that I saw Beena Ramani going after a boy. But I do not remember whether I had told the police that the said boy was a fat boy. It is correct that I had seen Beena Ramani going there Vol. I had seen her from a distance. It is correct that I had told the police that Beena Ramani was saying "Stop that Man"... "I heard that Jessica had been shot." g) Rohit Bal PW-70: He deposed that: "Beena Ramani was actually running in the courtyard area shouting catch that man, catch that man, stop him or something like that pointing towards the exit and running behind someone. I saw the person being pointed out by Beena Ramani but I did not know him. Again said I did not see that person, being pointed out by Beena Ramani from face." The above statement makes it clear that after the shooting incident Beena Ramani was running behind a man shouting "catch that man" From the evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Ex. PW-12/D-1 clearly prove the case of the prosecution. It is relevant that the said witness reached around 02.17 a.m., on a message from PCR to PS Mehrauli takes around 10 minutes as from local PCR it goes to headquarter from where it is transmitted to concerned district net which further transmits it to the local police station. In this way, around 02.25 a.m., even before the local police had arrived at the spot HC Devi Singh PW-83 had sent the version available at the spot. The prosecution placed specific reliance on the same. In the absence of rebuttal evidence, there is no reason to reject the evidence of PW-83 as well as Ex. PW-12/D-1. In those circumstances, the entire premise of the defence argument that it was not a person in white T-shirt, stocky and fair, who shot at Jessica Lal over a row over the drink and fled away from the spot and this was a planted and concocted story of the prosecution to rope in Manu Sharma and make escape good of the tall Sikh gentleman is wholly erroneous and without any basis. Evaluation of evidence throwing light on the actual incident: 16) It is the stand of the defence that the testimony of Madan Kumar PW 46 and Jatinder Raj PW-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of cafi. I opened the gate of my office, which I had closed, before counting the cash etc. I saw from that gate of my office that people were coming in and going out. At that time, I saw Beena Ramani on the stairs of cafi. I rushed towards her and we both went inside the cafi. We saw, Jessica Lal lying on the floor, near the counter. Shiv Dass, Madan Lal, Surender and Wiplub, members of the staff and one-two guests also reached the spot. There was scratched on the forehead of Jessica Lal. Shiv Dass PW-3, brought a bed- sheet. We wrapped Jessical Lal in that bed-sheet. Shiv Dass is an electrician in Qutub Colonnade. We removed Jessica Lal in a car to the Ashlok Hospital. Mrs. Beena Ramani, Madan Kumar, waiter, myself and driver were in that car, apart from Jessica Lal." "I came out of my office, immediately, after hearing the shots of firing. I saw, `AFTRA TAFARI' at the gate of cafi after coming out of my office. At that time, I saw Beena Ramani on the steps, to which I have made reference. By the time Beena Ramani reached the gate of cafi. I reached there, by running." 18) The analysis of evidence of PWs 46 and 47 shows that when PW-47 heard the noise of the shots he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fide. 19) It was argued by the defence, since PW-47 in his cross examination has stated that Beena Ramani PW-20 stated to him as to what had happened and who had done it, an inference has to be drawn that she did not witness the incident. As rightly pointed out, the above statement does not lead to the inference that Beena Ramani PW-20 did not witness the incident rather it could further reinforce what she had witnessed. Even otherwise, admittedly, thus, Beena Ramani was available she was not recalled to confront her with the testimony of PW-47. In those circumstances, the defence cannot take advantage out of a portion of statement of PW-47. 20) It is relevant to mention that Madan Kumar PW-46 also stated that when the occurrence took place he was present on the stairs leading to terrace and that time he saw people rushing in and some people rushing out of the restaurant who were also shouting "Goli Lag Gai, Jessica Lal Ko Goli Lag Gai". He came downstairs after hearing the noise and went to the restaurant, thus it is evident that this witness did not hear the shots of the fire but only realized about the occurrence after people were rushing in and rushing out shouting. A perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was pointed out by the learned senior counsel for the appellant that Malini Ramani PW-6 during her statement admitted that her mother Beena Ramani was accused of having removed the blood from the spot. PW-6 further admitted that during the first five days of May, 1999, the interrogation of three of them "PWs 6, 20 and 24" was very intense. She also stated that for quite long hours they were kept in the Police Station and they were used to be subjected to prolonged interrogation in the Jessica Lal's case as well as in other Excise Act case. It is true that SHO S.K. Sharma PW 101, admitted that the FIR in the excise case was lodged against the above said three persons. It was also highlighted that all the three were arrested in the excise case on 08.05.1999 which was pending in the Court of Metropolitan Magistrate, New Delhi. In that case, application on behalf of Beena Ramani and George Mailhot was moved for seeking permission to go abroad for treatment of Beena Ramani alleging that she is a cancer patient. Mr. Jethmalani argued that notice of which was given to the State and instead of filing reply by the State counsel PW-101, who appeared in person, vehemently opposed on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot be discredited without the said piece of the testimony having been put to her. The accused had a statutory option available by way of Section 311 of the Code to call PW-20 for the purposes of further examination. This argument of the defence also runs counter to their own argument used to discredit the investigation that PW-6 was placed in the `rukka' by the Police for the purposes of being shown as an eye-witness. The said part of the testimony of PWs-100 and 101 are at best in the nature of opinion evidence which are inadmissible pieces of evidence and for the aforesaid reasons cannot wipe out the unchallenged testimony of PW-20, which is the case of the prosecution. 24) Further, the appellant-Manu Sharma has also been clearly identified by Malini Ramani PW-6 as the person in the White T Shirt who had asked for whisky and thereafter on her refusal to oblige, he misbehaved with her in the most vulgar fashion. 25) It was argued that PW-6 could not have seen anything since she was on the other side of the Colonnade and that the prosecution in fact planted her into Ex.PW- 2/A i.e. the `rukka' prepared at the instance of Shyan Munshi as an eye witness. It has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that she had consumed only one drink. 28) The argument that deposition of PW-6 as regards the presence of other accused, does not find corroboration from the testimony of PW-1 is incorrect since the said witness categorically mentioned the presence of other accused. The grievance that the identification of the appellant-Manu Sharma was based on a leading question is also wrong since even before the alleged leading question was put to the witness, the witness, PW-6 had positively identified the appellant - Manu Sharma by specifically pointing out and stating that he just looks like him. It was explained by the State that the appellant was not personally known to the said witness or her family and, therefore, the manner of identification in the present case wherein the present witness by pointing out towards him stated that he just looks like the man she saw at the party is most conclusive and reliable. Further the argument of her having been shown the photo her identification is of little value since her statement that she saw the photographs prior to 05.05.1999 is most wavering and unclear. In the same manner, she has deposed that photos were also shown to Beena Ramani PW-20 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a person bearing the description of PW-24 came to the Police Station to report about the firing incident, which fact corroborates the testimony of PW-24 that he went to the Police Station. It was urged by Mr. Ram Jethmalani that Rohit Bal PW-70 was a witness who have been examined first as his telephone number appears on Ex. PW-12/D1 which are the PCR messages. It was clarified that in the PCR only the mobile number was recorded. Further on receipt of information, police officers immediately reached the place of occurrence and came to know that the deceased had been taken to Ashlok Hospital. SI Sunil Kumar, PW-100 reached Ashlok Hospital and made enquiries from PW-20 who directed him to take the statement of Shyan Munshi as he was present at the bar counter and conversant with every thing. The prosecution has explained that in view of the statements of the eye-witnesses having been taken immediately at 03.40 a.m. on 30.04.99 itself on the basis of which FIR was registered and number of other investigation processes like post-mortem, site plan etc. and immediately thereafter search for Tata Safari, ownership of the alleged vehicle, search for Manu Sharma in the case being made, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborated by other witnesses or from other evidence can clearly be relied upon to base conviction. Further it was pointed out that PW-2 was under the influence of accused Manu Sharma as he was accompanied by Mr. Ashok Bansal who had appeared as proxy counsel for him i.e. accused Manu Sharma in his bail application dated 06.03.2000. Thus, reliance could have been placed only on that aspect of the testimony which is corroborated by other evidence on record. 34) With regard to the allegation that statements of PW-6, PW-20 and PW-24 were taken under pressure as a case under Excise Act was lodged against them and when they were to be examined, an application for pre-ponement of the case was moved where they pleaded guilty and fine of Rs. 200 was imposed on each. For this, it was pointed out that there is nothing on record to suggest that PW-6 was threatened or humiliated by the Police or that she would be implicated in a case of destroying the evidence i.e. removal of blood from the spot. In fact, PW-20 has denied the suggestion that she is deposing falsely at the instance of Police. In the same way, PW-24 has also denied the suggestion that a deal was struck between him and the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishore Joshi AIR 1964 SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18 contended that investigation of an offence can start either on information or otherwise and that the receipt and recording of FIR is not a condition precedent to the setting in motion of criminal investigation. Placing reliance upon the said judgments, it has been further argued by the learned senior counsel for the appellant that in the present case the three cryptic telephonic messages received by the Police at around 2.20 a.m. on 30.04.1999 should be treated as FIR upon which the investigation started and, therefore, the statement of PW-2 recorded by the Police later on around 3.40 a.m. could not be treated as FIR but a statement under Section 162 of Cr.P.C. 37) Insofar as the decision in Bhagwant Kishore (supra), it was noted in para 8 at page 224 that the information received by the officer was not vague, but contained precise particulars of the acts of misappropriation committed by the accused and, therefore, the said information could be treated as FIR. On the contrary, it is evident from the facts established on record in the present case that none of the three telephonic messages received by po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of any details made to the police only for the purpose of getting the police at the scene of offence and not for the purpose of registering FIR. 39) Learned senior counsel for the appellant also relied on the judgment of this Court in Superintendent of Police, CBI and Others vs. Tapan Kumar Singh, (2003) 6 SCC 175. In the said case, detailed information was given on telephone including the offence and the whereabouts of the accused. On the other hand, in the present case, as observed earlier all the three telephone calls barely mentioned that a fire was shot and a girl was killed. The said information could only be concluded to have been given to the police to get the police to the scene of offence and not with the object of registering FIR. In those circumstances, the judgment in Tapan Kumar Singh (supra) has no application to the facts of the case on hand. 40) It was further pointed out by the defence that Ex.P- 12/A wherein three PCR calls were recorded is the real FIR and the statement of PW-2 which was taken during investigation and got signed by him is not the FIR and is thus to be treated as a statement recorded under Section 161 Cr.P.C. and is hit by the bar under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the first place, the telephonic message was an extremely cryptic one and could not be regarded as an FIR in any sense of the term. Secondly, assuming that Gui had given the telephonic message in utter chaos and confusion when shots after shots were being fired at the deceased, there was no occasion for Gui to have narrated the entire story of the occurrence. In fact, in his evidence Gui has denied that he personally telephoned the police but he stated that he asked somebody to telephone the police which appears to be both logical and natural. Moreover, such a cryptic information on telephone has been held by this Court to be of no value at all. In Tapinder Singh v. State of Punjab this Court in identical circumstances observed thus: [SCC para 4, p. 117: SCC (Cri) p. 332] "The telephone message was received by Hari Singh, ASI Police Station, City Kotwali at 5.35 p.m. on September 8, 1969. The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This was, of course, recorded in the daily diary of the police station by the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued Mr Jethmalani. In support of his contention Mr Jethmalani relied upon the judgment of the Privy Council in Zahiruddin v. Emperor. It appears that the question as to whether Ext. 10/1 could be treated as an FIR was raised both before the trial court and the High Court and it was answered in the affirmative. The courts held that in the night of 11-11-1985, PW 96 did not examine any witness in connection with the incident that took place in that afternoon and, in fact, he did not take any step towards the investigation as he and other police officers were busy in maintaining law and order in the village. 38. Having gone through the evidence of PW 96 we are constrained to say that the courts below were not justified in treating Ext. 10/1 as an FIR. Undisputedly PW 96 had reached Village Laxmipur Bind Toli in the night of 11-11-1985 to investigate into the two cases registered over the incident that took place in the morning. He deposed that after reaching the village at 10.30 p.m. he got information about the second incident also and in connection therewith he had talked to several persons. He, however, stated that he did not record the statements of the persons to whom he talked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory safeguard against improper practices. The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations. The categorical prohibition of such use would be merely disregarded if reliance were to be placed on the evidence of a witness who had made material use of the statement when he was giving evidence at the trial. When, therefore, the Magistrate or presiding Judge discovers that a witness has made material use of such a statement it is his duty under the section to disregard the evidence of that witness as inadmissible. In the present case there is in the note at the end of Mr Roy's examination-in-chief and, in the judgment of the Magistrate what amounts to a finding of fact that Mr Roy while giving his evidence made substantial and material use of the signed statement given by him to the police, and the Magistrate was accordingly bound to disregard his evidence. The Magistrate's reason for doing so is too broadly stated, for it is not the mere fact that Mr Roy had signed the statement but the fact that he had it before him and consulted it in the witness box that renders his evidence incompetent." (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Maharashtra (2007) 13 SCC 501, that a cryptic message given on telephone by somebody who does not disclose his identity may not satisfy the requirement of Section 154 of the Code of Criminal Procedure. 42) In view of the above discussion, the three telephonic messages received by the police around 2.25 a.m. on 30.04.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi PW-2 was rightly registered as the FIR. 42A) Seizure of Tata Safari & broken glass pieces and live cartridge: (i) The testimony of PW-30 has proved the presence of Tata Safari CH-01-W-6535 at the spot after the incident which testimony is duly corroborated by PW-83, PW-78, PW-100 and PW-101 and by documents Ex PW 101/DK-1, which shows about the PCR message about this vehicle at 6.00 a.m. on 30.04.1999. In his evidence, PW-30 has informed that he left PS Mehrauli along with Inspector Surender Sharma at 2.30/2.45 a.m on 30.04.1999 and reached `Qutub Colonnade' within 2-4 minutes. He further informed that SHO S.K. Sharma directed him to keep vigil at the parking so that nobody is allowed to take away cars parked there. The following information is releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Qutub Colonnade almost the same time when he reached. At Qutub Colonnade on the left side near the gate a black Tata Safari car was parked besides other cars. SHO Insp. Surender Kumar Sharma also reached there. While leaving for Ashlok Hospital, the SHO asked Delhi Home Guard Shrawan Kumar to remain at the gate of the `Qutub Colonnade'. PW-100 SI Sunil Kumar has stated that when he reached Qutub Colonnade he found a black Tata Safari car parked on the left side besides as he entered the colony and other vehicles were parked on the right. The PW-30 also identified the black Tata Safari CH-01-W-6535 to be the same which he had seen parked at the scene of crime and the same in exhibit article PW 30/X. SHO S.K. Sharma had also reached the spot along with staff including DHG Shrawan Kumar. SHO detailed DHG Shrawan Kumar to watch the vehicle already parked there and asked him (SI Sunil Kumar) to proceed immediately to Ashlok Hospital. iv) Surender Kumar Sharma PW-101, SHO PS Mehrauli has stated that on receipt of information he, ASI Kailash, Ct Ram Niwas, Ct Ramphal, Ct Yatender Singh left for the spot in the official gypsy. PW-30 met them at the gate of police station and he also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-30 told him not to do so but the said boy forcibly entered the Tata Safari and took it away. He gave a lathi blow on the glass of window pane and it broke due to danda blow. He noted down the number of the black Tata Safari as CH-01-W-6535. The witness also identified Tata Safari which was hit by him on that night, which is exhibit PW 30/X. PW 30 also identified that Tata Sierra was driven by Amardeep Singh Gill whereas Vikas Yadav drove away black Tata Safari. 44) Insp. Surender Kumar Sharma PW-101 also stated that when he came back, he found SI Sunil & SI Sharad as well as Shravan, they told him that two boys had come and had forcibly taken away the Tata Safari. Out of the two boys one was Sikh, PW-30 also informed that he had broken the right backside window panel of Safari with his Danda. He also gave the number of the Tata Safari as CH- 01-W-6535. SI Sunil Kumar PW-100 has also stated that two persons had got into the Tata Safari and had driven away. The testimony of the above witnesses is duly corroborated by document Ex PW 101/DK-1. Thus it is clearly established by cogent evidence that on 30.04.1999 at about 03.40 or 03.45 am accused Amardeep Singh Gill and Vikas Yadav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered in the name of Piccadilly Agro Industries Ltd., Sector-34, Chandigarh. He further explained that his officers informed him that this vehicle was used by Manu Sharma's office which was at Bhadson, District Karnal. It is further seen from his evidence that he sent SI Pankaj to Chandigarh and Inspector Raman Lamba to Bhadson. In this regard the evidence of PW-87 Raman Lamba is relevant. He deposed before the Court that he was instructed that the inmates of Black Tata Safari No. CH-01-W-6535 was involved in the case and he was asked to search the same. As directed, he left Delhi on 30.04.1999 and reached Bhadson at the premises of Piccadilly Agro Industries. According to him, he met Major Sood and the sugar mill was closed at that time. He also learnt that the sugar mill was not functioning because of off season since 25.04.1999. From Bhadson, he went to Kurukshetra and he tried to locate Black Tata Safari in the aforesaid sugar factory at Bhadson but did not find it. Even at Chandigarh, Tata Safari was not available in his house at Sector 229, Sector 9C, Chandigarh. SI Pankaj Malik PW-85 also deposed before the court that on 30.04.1999 he was deputed by Inspector Suren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature at point A and of SI BD Dubey at point B. The pullanda of broken glasses were sealed with the seal of BD when it was presented to me." 49) SI BD Dubey PW-91 and Ct. Satish Kumar PW-74 of PS Sec.24, Noida have deposed that they found black Tata Safari No. CH-01-W-6535 abandoned at the NTPC Township pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide Ex. PW 74/B. The said Tata Safari was seized under seizure memo Ex PW 74/A. PW 101 has clearly deposed that about 10 pm on 02.05.1999 he got the information with regard to the Tata Safari having been found at Noida. On 03.05.1999, he moved an application before the ACJM, Noida for the superdari of the Tata Safari vide Ex. PW 101/1 and in pursuance of the orders of ACJM Ex. PW 101/2 and he seized the same vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB along with other articles including broken glass pieces which were duly sealed with the seal of BD. The seizure memo Ex. PW 100/DB is duly signed by SI BD Dubey. The said Tata Safari and the broken glass pieces duly sealed with the seal of BD have been deposited in the Malkhana of PS Mehrauli on 03.05.1999. PW-101 has also stated that SI Vijay Kumar accompa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stol is Ex. PW 14/B. 52) It is relevant to point out that the accused Sidharth Vashisht @ Manu Sharma, when he surrendered on 06.05.1999, also surrendered his arms license Ex PW 7/B which has been seized vide seizure memo vide Ex. PW 80/B by Inspector Raman Lamba PW 87. The testimony of PW-87 is further corroborated by PW-80. The said arms license duly bears endorsement about the sale of .22" bore pistol No. B-56943 U, make P. Berretta, made in Italy. The case of accused Sidhartha Vashisht @ Manu Sharma as per his statement u/s 313 Cr.P.C. is that on the night of 30.04.1999 and 01.05.1999 when a raid was conducted at his farm house at Samalkha, his pistol ammunitions and arms license were taken away. As rightly pointed out by the counsel for the State that the defence of the accused is totally incorrect in view of the positive evidence adduced on record. This defence of the accused Sidharth Vashisht @ Manu Sharma is a clear afterthought as no complaint was lodged by the accused in this regard nor the same was mentioned when he was twice produced for police remand before the MM for recovery of the pistol employed in the incident. 53) It is the claim of the learned senior counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arms license was however surrendered on 06.05.1999 vide seizure memo Ex. PW 80/B. It is thus the case of the counsel for Manu Sharma that he was in possession and custody of his P. Beretta pistol on 29/30.04.1999 as even according to him it has been taken away on 30.04.1999/01.05.1999. This was a licensed pistol and thereby the onus was on the accused to show where it was and that the possession and whereabouts of the pistol are in the special knowledge of accused Sidharth Vashisht @ Manu Sharma and having failed to produce the same an adverse inference has to be drawn against him in terms of Section 106 of Evidence Act. In this regard reliance may be placed on Sucha Singh vs. State of Punjab (2001) 4 SCC 375 at page 381: "It is pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation dated 07.05.1999 for police remand of the accused for recovery of pistol. The defence filed a reply to the said application on the same day i.e., 07.05.1999 and thereupon the Metropolitan Magistrate passed an order on the same day granting seven days police custody of the accused for recovery of pistol. The accused despite forever maintaining that the police had illegally taken away the pistol from his farmhouse on 30.04.1999/01.05.1999, did not take this ground in the reply to remand application and argument to the said effect was recorded in the remand order by the Magistrate. The only inevitable conclusion that could be reached from the said turn of events is that the pistol was still in custody of the accused and had never been recovered by the police from his farmhouse. In the reply dated 07.05.1999 filed by the accused to the remand application, there are interpolations in the reply in black ink in two handwritings to the effect that the pistol had already been recovered from the person of the accused. The assertion that the words in two handwritings in black ink are interpolations gain strength from the fact that nowhere in the remand order dated 07.05.1999 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which car you (Manu Sharma) gets in. What you have to say in this regard? Ans. It is absolutely false and incorrect." A perusal of above questions and answers given by Manu Sharma were either evasive or incorrect and as rightly pointed out by the learned Solicitor General, an adverse inference deserves to be drawn for such acts of the appellant-Manu Sharma. The implication of delay in recording statements 58) Mr. Ram Jethmalani, learned senior counsel for the appellant-Manu Sharma by placing various decision contended that the delay in recording statements of witnesses is fatal to the case of the prosecution, when the trial Court rightly accepted the same, however, the High Court committed an error in ignoring the said vital aspect. For this, learned Solicitor General submitted that the said contention is based on incorrect understanding of law and its wrong application to the facts of this case. The first judgment relied on by the learned senior counsel for the appellant-Manu Sharma is in Ganesh Bhavan Patel vs. State of Maharashtra, (1978) 4 SCC 371. In that case, the witnesses were known and could have been examined when the Investigating Officer visited the scene of occur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there could be no question of not knowing the facts on 14.05.1999. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30.04.1999 he had told the police at the Apollo Hospital all that he knew. This being the case, it cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the Police. Clearly, PW-1 was not an eye witness, this fact must have been realized by PW-100 and 101, therefore, they felt no urgency in addressing this aspect of the investigation i.e., recording of the statement of PW-1. It is stated by the State that as there were number of witnesses to be examined the said examination continued for days. Witnesses Parikshit Sagar and Andleep Sehgal were also examined on 14.05.1999. Further the presence of Deepak Bhojwani can also not be belied in view of the testimony of Sahana Mukherjee PW- 29 and Sabrina Lal PW-73. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162 Cr.P.C. is very clear that it is not mandatory for the police to record eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible. In Prithvi vs. Mam Raj , (2004) 13 SCC 279, it was held that delay in recording the statement of the witness can occur due to various reasons and can have several explanations and that it is for the Court to assess the explanation and, if satisfied, accept the statement of the witness. The same principle has been reiterated in Ganeshlal vs. State of Mahrashtra (1992) 3 SCC 106. Evaluation of Laboratory reports and examination of experts. 64) The evidence in respect of two FSL reports is as under: By letter dated 06.07.1999, the seized material was forwarded to CFSL for examination and expert opinion and, inter alia, the following queries were made to be opined by the CFSL : "5. Please examined and opine whether the two empties present in parcel mentioned at Sl No.5 have been fired from the same weapon? 6. Please examine and opine whether the bullet lead in parcel No.6 and the bullet empties in parcel No.5 have been fired from a standard five arm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It was pointed out that the trial Court puts a question to the witness and while putting the question first gives a specific fact finding that for reply to Query No. 3, the presence of the firearm was not necessary. This incorrect finding of fact given by the trial Court based on no expertise and had resulted in grave miscarriage of justice. It is well settled that while giving reports after Ballistic examination, the bullets, cartridge case and the cartridges recovered and weapon of offence recovered are carefully examined and test firing is done at the FSL by the said weapon of offence and then only a specific opinion is given. 66) It is contended by the learned counsel for the appellant/Manu Sharma that the prosecution tried their level best to suppress the report of the Ballistic expert Shri Rup Singh which was not favourable to them and that the same was exhibited at the instance of the defence as Ex. PW 89/DB. It has been further argued that while the charge sheet was filed on 03.08.1999, the police sought an expert opinion practically at the end of the investigation i.e. vide letter dated 16.07.1999, Ex. PW-89/DA. At Sl. No. 67 of the charge sheet one finds mention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed, the prosecution still chose not to call the expert Rup Singh and cross-examine him. Ex.PW-89/DB supports PW-2 and vice versa, since his evidence is corroborated by the expert report. Attention of the Court was invited to the results of the examination. As regards the 2nd opinion given by PW-95, it has been argued that this court must assume that the prosecution sought a favourable opinion from the said witness. The said witness obliged them and created confusion by saying that no conclusive opinion can be given without examining the weapon in question. 67) It was pointed out by the State that the said report of Rup Singh is inadmissible in law since it is a photocopy and, therefore, does not fall within the purview of a report in terms of Section 293 of the Code. In other words, in terms of the relevant provisions of the Indian Evidence Act unless the original document is placed for the scrutiny of the Court, no reliance can be placed on the photocopy without leading proper secondary evidence in this regard. In any case, both Section 293 and Section 294 of the Code which dispense with formal proof of documents under certain circumstances make it abundantly clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime of murder of Jessica Lal. 68) The prosecution obtained another opinion from FSL Rajasthan and the queries made are as under: "1. Please examine and opine the bore of the two empty cartridges present in the sealed parcel. 2. Please opine whether these two empty cartridges have been fired from a pistol or a revolver. 3. Whether both the empty cartridges have been fired from the same fire arm or otherwise." In response to these queries, the expert opinion of the FSL, Rajasthan is as under: "1. The caliber of two cartridge cases (C/1 and C/2) is .22. 2. These two cartridge cases (C/1 and C/2) appear to have been fired from a pistol 3. No definite opinion could be given on two .22 cartridge cases (C/1 and C/2) in order to link with firearm unless the suspected firearm is available for examination." It was pointed out by the State that this opinion also was inconclusive in nature. In the worksheet, it was categorically recorded that the Investigating Officer be informed to make available the suspected fire arm used for definite opinion on linking of C-1 and C-2 with the same fire arm or otherwise. The worksheet also records that the fire arm involved be sent for defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expert witness and then ask him questions. Learned Solicitor General pointed out that in the attempt of the trial Court to extract the truth from the said witness, it misdirected itself in law by posing such a question. This is impermissible even as per the judgment in Ram Chander (supra) relied on by the defence. This judgment is in fact in favour of the prosecution since the same clearly puts an embargo on the power of a judge to ask questions so as to frighten, coerce, confuse or intimidate the witness. The danger inherent in a judge adopting a much too stern an attitude towards witness has been duly explained in the said decision. The judge cannot ask questions which may confuse a witness. The argument that the judge knew that the issue in question was whether the two empties found on the spot were fired from the same gun is wrong and misleading. The judge knew that as per the charge framed against Manu Sharma it was he alone who was charged with the possession and use of a gun. The judge also knew that the first expert opinion was brought on record at the instance of the accused; the judge further knew that PW-95 had stated in no uncertain terms that no opinion can be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d handwriting of the accused. It is stated that such an approach would render the opinion as that of a layman and not an expert. Similar would be case of a finger print expert who undertakes the process of discovering two different sets of finger print which are in question, without having the specimen or the admitted finger print of the accused in question. In other words, an expert is only an expert if he follows the well accepted guidelines to arrive at a conclusion and supports the same with logical reasoning which is a requirement of law as laid down in the Indian Evidence Act. In the present case, the moment Rup Singh uses the word "appear" his opinion unsupported by reasons becomes inconclusive and stands discredited for the purpose of placing reliance on. The opinion of Rup Singh was at query No.7 as to "please examine and opine whether ejector, trigger, chamber, magazine or other tool marks are present on the live bullet and the bullet empties contained in parcel Nos. 6 & 5 respectively." Though Shri Rup Singh has given opinion qua query No.5 that the two .22" cartridge cases appears to have been fired from two different .22" caliber standard firearms but his opinion is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erts since both the experts have given opinions which cannot qualify as conclusive opinion of experts. Role of Public Prosecutor and his duty of disclosure: 74) It was argued by Mr. Ram Jethmalani, learned senior counsel for the appellant-Manu Sharma that the prosecutor had suppressed vital evidence relating to the laboratory reports which were useful for the defence in order to establish the innocence of the accused. Learned senior counsel further argued that the prosecutor had not complied with his duty thus violating fair trial and vitiating the trial itself. 75) It is thus important for us to address the role of a prosecutor, disclosure requirements if placed by the prosecutor and the role of a judge in a criminal trial. 76) A public prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a prosecutor in Shiv Kumar v. Hukam Chand and Anr., (1999) 7 SCC 467 as follows: "13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by any one other than the Public Prosecutor. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused. 77) It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the prosecutor is doing his duties to the utmost level of efficiency and fair play. This Court, in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC 158, has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law. It is useful to reproduce the passage in full: "43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth. 45. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislature intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in court." "208. Supply of copies of statements and documents to accused in other cases triable by court of Session. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following. (i) The statements recorded under section 200 or section 202, or all persons examined by the Magistrate; (ii) The statements and confessions, if any, recorded under section 161 or section 164; (iii) Any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material was not to be used as evidence did not mean that the material was worthless, especially, when it might have been of assistance to the defendant. But at the same time, it was also held that: "since the purpose of a warrant issued under s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under s.6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial". Thus the position under common law is clear, i.e. subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence. 82) In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society. In the case of Kashmeri Dev v. Delhi Administration and Anrs. [JT 1988 (2) SC 293] it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The Courts have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit: implies a duty on the Court to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with, information of the police and their powers to investigate. The power of the police to investigate freely and fairly is well recognized and codified in law. In terms of Section 170, the investigating officer when satisfied that sufficient evidence or reasonable grounds exist he shall forward accused under custody to a Magistrate along with such weapons or articles which may be necessary to be produced before the Court. Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172 (2) to send for the diaries and they could be used by the Court but not as evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... significance of requiring an investigating officer/officer in charge of a police station to maintain a diary? The purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation. 86) In the case of Habeeb Mohammad v. State of Hyderabad, A.I.R. 1954 S.C. 51, this Court stated the principle of law that the criminal court may send for the police diaries of a case under inquiry/trial in such court and may use such diaries, not as evidence in the case but to aid in such inquiry or trial. It seems to the Court that the learned Judge in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The proper use of diaries he could make in terms of Section 172 Cr.P.C. by elucidating points which need clarification. The Court in this case was primarily concerned with the argument that diaries were not produced. 87) Further in the case of Khatri v. State of Bihar A.I.R. 1981 SC 1068 though in a writ petition this Court was concerned with a questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated to be a very important safeguard as the Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial and has empowered the Court to call for these diaries therefore the right of the accused is not unfettered but in fact is limited as noticed. 90) Usefully, reference can also be made to the judgment of this Court in the case of Shamshul Kanwar v. State of U.P. A.I.R. 1995 SC 1748 wherein this Court while issuing direction for requiring the State to make a general hearing in terms of Section 172 of the Code clearly stated that it was mandatory for the police officer/in charge to maintain the diary in terms of the said provision and there is jurisdiction in the criminal code to call such diaries and make use of them not as evidence but only to aid such inquiry or trial. It is generally confined to utilize the information therein as foundation for the question put to the witnesses, particularly, to the police witnesses where the police officer has used the entries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer then provisions of Section 161, or 145, would be applicable. The right of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the Court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the Court has to pass a reasoned order. The liberty of an accused cannot be interfered with except under due process of law. The expression `due process of law' shall deem to include fairness in trial. The Court gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused places an implied obligation upon the prosecution (prosecution and the prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the Court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same is Ex. PW- 45/B. 94) The details of the phone numbers subscribed to Piccadily group are Ex. PW 45/C and the bill printouts are 45/C were received by the police vide Ex. PW 45/D. PW- 66, Maj. AR. Satish has deposed that Mobile No. 9811100237, which was in the name of Amardeep Singh Gill and the print out of the same is exhibited PW-66/B. He also deposed that Mobile No. 9811096893 was being purchased against a cash card. The print out of the calls for the month of April, 1999 are in Ex. PW-66/D. He further proved that Mobile No. 9811068169 stood in the name of Alok Khanna and its print out is Ex. PW 66/C. 95) PW-32, Ved Prakash Madan proved that Tel. No. 521491 was intalled at PCO, Ambala and its print out is Ex. PW-32/B. PW-33, PV. Mathew has corroborated the version of PW-32 and has proved that the calls were made to USA. PW-15, Sumitabh Bhatnagar stated that Tata Sierra No. HR-26N4348 and Tata Sierra MP-04-2634 were allotted to Amardeep Singh Gill and Alok Khanna respectively. Similarly Mobile Nos. 981110237 and 9811068169 were also allotted to Amardeep Singh Gill and Alok Khanna respectively. PW-51, Sh. Rajiv Talwar has stated that Te. No. 660500 was installed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y distinguishable. On the facts in that case, this Court found that the prosecutor had put leading questions, without objections by the defence, to several material and key witnesses regarding the culpability of the accused. The extent of the leading questions put, were on the facts of that case found to violate the constitutional right of a fair trial of the accused. The facts of the present appeal are wholly different. The petitioner had adequate and competent legal representation before the trial Court and leading questions, if any, put by the prosecutor were objected to by the defence and several questions were disallowed by the trial court. Furthermore, the finding of guilt of the appellant herein by the High Court has not been on account of any of the answers elicited to any such questions. It is not as if every single leading question would invalidate the trial. The impact of the leading questions, if any, has to be assessed on the facts of each case. Efforts made to trace Sanjay Mehtani: 98) It has been contended by the learned senior counsel for the appellant/Manu Sharma that the Sanjay Mehtani, friend of Malani Ramani, who was also present at Qutub Colonnade at the scen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.05.1999 that accused Sidharth Vashisht @ Manu Sharma surrendered at Patiala Guest House, Chandigarh in the presence of Shri Harish Ghai, advocate and Sh. Vinod Dada. The above evidence of the witnesses clearly establishes beyond reasonable doubt that accused Manu Sharma absconded after committing the crime and surrendered on 06.05.1999 after extensive searches were made. 100) A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In this regard, it is useful to refer Anant Chaintaman Lagu vs. State of Bombay AIR 1960 SC 500:- "Circumstantial evidence in this context means a comBeenation of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.... this conduct of the accused was so knit together as to make a network of circumstances pointing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self after the accused was produced before the Metropolitan Magistrate and copies of which were duly supplied to the accused during trial. From the disclosure Ex PW 100/Article-1 there were further discovery of facts admissible under Section 27 of the Evidence Act. Pursuant to the disclosures of Manu Sharma investigations were carried out and it was that the accused were in close contact with each other over phone and accused Manu Sharma had made number of calls from the house of Vikas Yadav son of DP Yadav to his house in Chandigarh and to Harvinder Chopra at Piccadilly. 104) The fourth disclosure of accused Sidharth Vashisht @ Manu Sharma was recorded by PW-101 wherein he had disclosed that Ravinder Sudan @ Titu having concealed the pistol, had gone to Manali (HP) where he met his uncle Shyam Sunder and he very well knew the place where they concealed the pistol and that he could lead to Manali to recover the pistol used in the incident. It further came on record that calls were made to USA to Ravinder Sudan. It may not be out of place to mention that calls were exchanged between the accused and made to USA were discovered pursuant to disclosures made by the accused persons. Tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unshaken on this aspect. PW-30 has also clearly identified accused Amardeep Singh Gill and Vikas Yadav in the court and the photo identification with regard to them was resorted after Amardeep Singh Gill @ Tony Gill had refused TIP on 06.05.1999 and Vikas Yadav was granted anticipatory bail. That the photographs of Vikas Yadav were taken from the Asstt. Registrar, Ghaziabad Authority RTO, PW 38 on 20.05.1999. 107) PW-2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar PW 76 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court PW-2 Shyan Munshi refused to recognize him. In any case, the factum of photo-identification by PW-2 as witnessed by the concerned Officer is a relevant and an admissible piece of evidence. In this regard reliance may be placed on, R vs. McCay (1991) 1 All ER 232. There the accused was identified by the witness in the presence of the IO who took note of the said fact, later the witness could not identify the accused in Court due to lapse of time, thus the testimony of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that accused Manu Sharma surrendered on 06.05.99 and on 07.05.99 he was produced in muffled face before the MM Shri Rajneesh Gupta PW-79 and the proceedings thereof are recorded vide Ex PW-79/G wherein accused Manu Sharma's contention for refusal of TIP is that his photograph has appeared in newspapers and his photograph has been shown to the witnesses and that he has been shown physically to the witnesses. All the three contentions of the accused Manu Sharma are incorrect and misconceived with regard to the appearance of the photos in the newspapers. It is submitted that vide Ex PW 101/11 to 22 the newspapers from 01.05.99 to 06.05.99 have been duly exhibited by PW-101. It was pointed out that in none of those newspapers is the photograph of accused Manu Sharma shown. As a matter of fact vide Ex. No. PW 101/15 photograph dated 06.05.1999 clearly shows that he is in muffled face. In the absence of any defence refusal of TIP on this ground is totally unjustified and an adverse inference ought to be drawn in this regard. 111) The next contention of the defence for refusal of TIP is that his photograph has been shown to the witnesses is also incorrect. It is not disputed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er his refusal of TIP so that it is verified that he is the same person who is involved in the incident and no adverse inference on this count can be taken against the prosecution. 112) It is further pointed out that the accused Manu Sharma was sent to judicial custody on 15.05.1999 and the statement of witnesses continued even thereafter and thus resort to photo identification was properly taken by mixing the photograph of accused Manu Sharma with number of other photographs and asking the witnesses to pick up the photograph of the person they had witnessed on the fateful night and the morning thereafter i.e. 29/30.04.99. This mode of photo identification was resorted to vis-`-vis Deepak Bhojwani PW-1 on 24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput PW-4 on 29.05.99 and Shyan Munshi PW-2 on 19.05.99 at Calcutta. Thus there is no merit in the contention of the defense that the dock identification was a farce as it was done for the first time in the Court. 113) It is also contended by the defence that since the photographs were shown to the witnesses this circumstance renders the whole evidence of identification in Court as inadmissible. For this, it was pointed out that ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time. It must be borne in mind that the appellant is not a proclaimed offender and we are not considering the eventuality in which he would be so proclaimed. So the observations made in Kartar Singh in a different context is of no avail to the appellant." Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in Court. The logi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. Noticing these circumstances this Court held: (SCC p. 481, para 4). "In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the investigation officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh vs. State of U.P. 17 absence of test identification is not necessarioy fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi am alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant." Malkhansing vs. State of M.P., (2003) 5 SCC 746 at 752 "7. It is trite to say that the substantive evidence is the evidence of identif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitting a guilty person light heartedly as a learned Author (Glanville Williams in `Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." 117) Learned Solicitor General submitted that, even otherwise, an adverse inference ought to be drawn against the appellants for their refusal to join the TIP. This view has found favor time and again by this Court. It is pertinent to note that it is dock identification which is a substantive piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to the case of the Prosecution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused were supplied to him from outside. 122) Dana Yadav vs. State of Bihar (2002) 7 SCC 295 is also distinguishable as the identification by the witness in court was not relied upon as the witness did not name the accused before the Police but in Court had identified and also named the accused, and as the identification was not further corroborated by either previous identification or any other evidence. While other witnesses though named the accused before the police but failed to identify him in court. 123) In Vijayan vs. State of Kerala (1999) 3 SCC 54, the witness was admittedly shown the photograph of the accused before the TIP and further told to identify the tallest man in the parade, as such this TIP was discarded and in this light the dock identification of the witness was also discarded. Further according to the witness the accused was not a tall man whereas the height of the accused was more than 6 feet. 124) George & Ors. vs. State of Kerala & Anr. (1998) 4 SCC 605 is not applicable on the facts of the present case in so far as the issue of photo identification is concerned. The aforesaid judgment which is sought to be relied upon by the appellant in suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances need to be put and not the entire testimony. It is apt to quote the following decision of this Court i.e., State of Punjab vs. Swaran Singh, (2005) 6 SCC 101 at page 104: "9. The only reason given by the learned Single Judge of the High Court for acquitting the accused is that the evidence of PW 1 and PW 4 was not specifically put to the accused under Section 313 CrPC and it was held that in the absence of these facts in the form of questions to the accused, the evidence could not have been used against him. It is also pertinent to note in this regard that when PW 1 and PW 4 were examined as witnesses, the accused did not seriously dispute the evidence of PW 1 or PW 4. The only cross-examination was that it was incorrect to suggest that the case property was not deposited with him and he had deposed falsely. So also, the evidence of PW 4 was not challenged in the cross-examination except for a general suggestion that he had been deposing falsely and that no case property was handed over to him by PW 1 Harbhajan Singh. The accused had no case that the seal was ever tampered with by any person and that there was any case of mistaken identity as regards the sample and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to the accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial. 15. In the instant case, the accused was not in any way prejudiced by not giving him an opportunity to answer specifically regarding the evidence of PW 1 and PW 4. If at all, the evidence of PW 1 and PW 4 was recorded in his presence, he had the opportunity to cross-examine the witnesses but he did not specifically cross-examine these two witnesses in respect of the facts deposed by them. The learned Single Judge seriously erred in holding that the evidence of PW 1 and PW 4 could not have been used against the accused. The acquittal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse inference for wrong answers given by the appellant under Section 313 Cr.P.C. In the present case, the appellant-Manu Sharma has, inter alia, has taken false pleas in reply to question nos. 50, 54, 55, 56, 57, 64, 65, 67, 72, 75 and 210 put to him under Section 313 of the Code.(ii) Adverse inference qua non explanation of Pistol Appellant/Accused - Manu Sharma was holder of a pistol .22" bore P Berretta, made in Italy duly endorsed on his arms licence. It was his duty to have kept the same in safe custody and to explain its whereabouts. It is proved beyond reasonable doubt on record that extensive efforts were made to trace the pistol and the same could not be recovered. Moreover as per the testimony of CN Kumar, PW-43, DSP/NCRB, RK Puram there is no complaint or report of the said pistol. Thus an adverse inference has to be drawn against the accused-Manu Sharma for non- explanation of the whereabouts of the said pistol. Similarly another plea not supported by any positive evidence led by the appellant-Manu Sharma is that his pistol i.e. the weapon of offence and the arms licence was recovered from his farm house on 30.04.1999, when in fact it is an established fact that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Manu Sharma surrendered on 06.05.1999 only after accused Ravinder Sudan @ Titu left the country. It is pointed out by the State that calls were made from PCO, Ambala and PCO Hazrat Nizamuddin which have been duly proved by the testimony of PW-36, Ram Lal Jagdev, PW-16-Raj Narain Singh, PW-17-Mohd. Jaffar. This conduct of accused-Manu Sharma which is relevant and admissible under Section 8 of the Indian Evidence Act an adverse inference has to be drawn against Manu Sharma for this conduct. Appeals of other accused: 132) We have already discussed the specific evidence, especially of presence at the time of incident, removal of Tata Safari, call details etc. as well as the evidence of PWs 30 and 101, for conviction under Section 201 read with Section 120-B IPC against the other two appellants, namely, Amardeep Singh Gill @ Tony Gill and Vikas Yadav. We are satisfied that the High Court, on appreciation of the relevant materials, found against them and convicted accordingly. On analysis of all the materials, we agree with their conviction and sentence. Adverse remarks against prosecution and Trial Judge 133) The higher Courts in exercise of their appellate or original jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his presence at the spot, there was hardly any reason to stretch imagination to belie his presence. Merely, because he was assigned to deliver a DD entry to SI Rishi Pal which, the witness explains, he did not deliver, the explanation given is logical and ought not to have been disbelieved in this strange way of assessing the material and discarding it." Xxxx xxxx xxxx xxxx ".........The two weapon theory appears to be a concoction to the defence and a manipulation of evidence in particular that of Shyam Munshi, PW2 who, for the first time in court, introduced such a story. The very fact that the empties were sent for examination at such a belated stage, cannot rule out the possibility of foul play to destroy the Prosecution's case during trial. We, therefore, do not think it necessary to go into further analysis of the evidence of Prem Sagar Manocha." 136) Let us examine various judgments of this Court which have persistently taken the view and discouraged observations or disparaging remarks by the higher Courts against the other Courts. In the case of A.M. Mathur vs. Pramod Kumar Gupta & Ors. (1990) 2 SCC 533 the Court stated the dictum that judicial restraint and discipl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made observations and remarks about persons/constitutional bodies like NHRC who were not before it. Proceedings of the Court normally reflect the true state of affairs. Even if it is accepted, that any such submission was made, it was not proper or necessary for the High Court to refer to them in the judgment to finally state that no serious note was taken of the submissions. Avoidance of such manoeuvres would have augured well with the judicial discipline. The expunction and deletion of the contents of paragraph three of the judgment except the last limb therein is ordered and it shall be always read to have not formed part of the judgment. 139) Similarly, a three Judge Bench of this Court in the case of Samya Sett vs. Shambhu Sarkar & Anr. (2005) 6 SCC 767, again concerned with expunction of adverse remarks made against the Additional Sessions Judge, who was the appellant. The High Court had observed that, ignoring of directions should imply an arrogant attitude of the learned Judge and was in breach of the canons of judicial discipline and damage the judicial system. This Court has, in several cases, deprecated the practice on the part of judges in passing strictures and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y made the same assumption and had not made these observations castigating Dutta J. for they appear to us to be without any basis. It is necessary that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible." (emphasis supplied) 142) In State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC 566 disparaging and derogatory remarks were made by the High Court against the State Government. When the matter came up before this Court and a complaint was made against these remarks, it was observed by this Court that the remarks were "totally unjustified and unwarranted". Bhagwati, C.J. stated: (SCC p.615,para 43) "43 We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must at with sobriety, moderation and restraint. They must have the humilitytorecognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law and adherence to the principles of natural justice that view point of the concerned learned Judge should also be invited. 144) In view of our discussion supra we direct expunction of all remarks made by the Trial Judge against the prosecution and by the Division Bench against the Trial Judge. Role of the Media and Press: 145) Mr. Ram Jethmalani, learned senior counsel for the appellant submitted that the appellant-Manu Sharma had been specifically targeted and maligned before and during the proceedings by the media, who proclaimed him as guilty despite even after his acquittal by the Trial Court. He took us through various news items that were published in English & Hindi dailies. He elaborated that "Justice should not only be done, it should manifestly and undoubtedly be seen to be done." This common law rule can not be ignored. 146) Cardozo, one of the great Judges of American Supreme Court in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces. This Court has expressed a similar view in P.C. Sen In Re: AIR 1970 SC 1821 and Reliance Petrochemicals Ltd. v. Proprietors of Indian Express 1988 (4) SCC 592. 147) Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... media could be prejudicial, this should not be permitted. 151) Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution [Anukul Chandra Pradhan v. Union of India & Ors. (1996) 6 SCC 354]. It is essential for the maintenance of dignity of Courts and is one of the cardinal principles of rule of law in a free democratic country, that the criticism or even the reporting particularly, in sub judice matters must be subjected to check and balances so as not to interfere with the administration of justice. 152) In the present case, various articles in the print media had appeared even during the pendency of the matter before the High Court which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of one of the ballistic reports had not hampered the ends of justice. The right of the accused to disclosure has not received any set back in the facts and circumstances of the case. 9) The High Court has rightly convicted the other two accused, namely, Amardeep Singh Gill @ Tony Gill and Vikas Yadav after appreciation of the evidence of PWs 30 and 101. 10) Normally, the judgment/order should be set aside or affirmed as the case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system. 11) Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible. 154) In the light of the above discussion, we hold that the prosecution has established its case beyond doubt against the appellants and we are in agreement with the conclusion arrived at by the High Court, consequently, all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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