9911796707
TMI Blog2010 (4) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... o Hospital. On 30.04.1999, in the early morning hours, Jessica Lal was declared brought dead at Apollo Hospital. HELD THAT:- It is proved beyond reasonable doubt that accused Sidharth Vashisht @ Manu Sharma after committing the murder of Jessica Lal fled away from the scene of occurrence. It is further proved from the testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was made for the black Tata Safari bearing Regn. No. CH-01-W-6535 and for Sidharth Vashisht @ Manu Sharma, Director of Piccadilly Sugar Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at Samalkha and Okhla Delhi. It is also proved that even after the seizure of vehicle on 02.05.1999 the search for accused Sidharth Vashisht @ Manu Sharma continued and search was made at Piccadilly Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital where his father was subsequently admitted. However, accused Sidharth Vashisht @ Manu Sharma was not found nor anybody informed his whereabouts and it is only on 06.05.1999 that accused Sidharth Vashisht @ Manu Sharma surrendered at Patiala Guest House, Chandigarh in the presence of Shri Harish Ghai, advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall arise that if he has produced it, the testing of the same would have been to his prejudice. The burden thus shifts on him. As per the disclosure of accused-Manu Sharma, the pistol was given to accused - Ravinder Sudan @ Titu (PO). It has been proved by the testimony of PW- 37, Martin Raj and PW-49-Inspector Mahender Singh Rathi that accused, Ravinder Sudan @ Titu left the country by Gulf Airways on 04.05.1999. Accused-Manu Sharma surrendered on 06.05.1999 only after accused Ravinder Sudan @ Titu left the country. It is pointed out by the State that calls were made from PCO, Ambala and PCO Hazrat Nizamuddin which have been duly proved by the testimony of PW-36, Ram Lal Jagdev, PW-16-Raj Narain Singh, PW-17-Mohd. Jaffar. This conduct of accused-Manu Sharma which is relevant and admissible u/s 8 of the Indian Evidence Act an adverse inference has to be drawn against Manu Sharma for this conduct. Summary of our Conclusion: The appellate Court has all the necessary powers to re-evaluate the evidence let in before the trial Court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system. Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible. In the light of the above discussion, we hold that the prosecution has established its case beyond doubt against the appellants and we are in agreement with the conclusion arrived at by the High Court, consequently, all the appeals are devoid of any merit and are accordingly dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Jessica Lal was rushed to Ashlok Hospital from where she was shifted to Apollo Hospital. On 30.04.1999, in the early morning hours, Jessica Lal was declared brought dead at Apollo Hospital. (b) On the night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex. PW-13/A) was recorded at Police Station Mehrauli which disclosed a shooting incident at H- 5/6 Qutub Colonnade. A copy of the said DD entry was handed over to SI Sharad Kumar (PW-78) who along with Ct. Meenu Mathew left for the spot. Near about the same time, copy of the said DD entry was also given to SI Sunil Kumar (PW-100) who along with Ct. Subhash also left for the spot. On reaching the spot, PW-78 found that the injured had been removed to Ashlok Hospital and the floor of the Restaurant was found to be wet. SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78) at the spot to guard the same and proceeded to Ashlok Hospital along with Ct. Subhash. The SHO Police Station Mehrauli, Inspector S.K. Sharma (PW-101) along with his team also left the Police Station vide DD Entry No. 43 A and reached the spot and deputed one Home Guard Shravan Kumar (PW 30) at the entrance of `Qutub Colonnade' to guard the vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant. On 02.05.1999, a list of invited guests was prepared by PW- 24. On the same day, around 10.00 p.m., PW-101, got an information that a black Tata Safari has been found by the U.P. Police (Sector 24, Noida Police Station) and on the next day PW-101 went to Noida Police Station and seized the said black Tata Safari. On 05.05.1999 at about 2.30 a.m., Amardeep Singh Gill @ Tony Gill and Alok Khanna were arrested and from their alleged disclosure statements, the involvement of Sidhartha Vashisht @ Manu Sharma was confirmed. On the same day, Inspector Raman Lamba (PW 87) who was in Chandigarh with his team intimated the lawyer of the accused- appellant that Manu Sharma is required in the case. On receipt of the information, on 06.05.1999, the appellant surrendered before PW-87 and was later arrested at about 2.20 p.m. and brought to Delhi. On 07.05.1999, the police produced the appellant before the Metropolitan Magistrate and sought police remand for effecting recovery of the alleged weapon of offence. An application for conducting Test Identification Parade (TIP) of the appellant was also moved. Thereafter, the appellant was remanded to five days police custody till 12.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.01.2002 with a direction to surrender after the expiry of the same. In compliance with the conditions of interim bail, the appellant surrendered on 11.3.2002 but again sought for and granted interim bail for a period of ten weeks starting from 20.03.2002. During the period from March 2002 to February 2006, the appellant was enlarged on bail on different occasions by various orders of the High Court. On one occasion, against the dismissal of the bail application by the High Court on 11.11.2003, the appellant filed a special leave petition before this Court which was dismissed by this Court on 02.12.2003. On 21.02.2006, after trial, the Additional Sessions Judge acquitted all the nine accused including the appellant- Manu Sharma. (f) Challenging the acquittal, the prosecution filed an appeal before the High Court being Crl. Appeal No. 193 of 2006. On 20.12.2006, the High Court vide the impugned order, convicted and sentenced the appellants, as mentioned in paragraphs above. Challenging the said order of the High Court, all the three appellants filed above mentioned separate appeals before this Court. All the appeals were heard together and are being disposed of by this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution never claimed Beena Ramani PW-20 as an eye-witness, however, the High Court erroneously held her as eye-witness to the occurrence. h) High Court failed to consider the evidence of Madan Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47. i) The High Court committed an error in relying upon the testimony of George Mailhot PW-24 to corroborate the evidence of Beena Ramani PW-20. j) The First Information Report recorded on the statement of Shyan Munshi PW-2 is not an FIR but a signed statement. The High Court wrongly discarded his (PW-2) ocular version. However, the Trial Court assigned good reasons for accepting his evidence. k) The High Court's observation on Ballistic Experts from CFSL is erroneous. l) The High Court committed an error in disbelieving P.S. Manocha PW-95. m) There is no acceptable evidence/material to connect Tata Safari to the alleged occurrence. n) Shravan Kumar PW-30 is a planted witness, and there is no need for him to accompany PW-1 to the spot when he was assigned other official work. o) A rough site plan which was prepared in the early hours of 30.04.1999 (Ex. PW 100/2) clearly shows the absence of Beena Ramani PW-20 at the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let us find out the scope of the Appellate Court in reversing the order of acquittal by the Trial Court. Mr. Ram Jethmalani, learned senior counsel for the appellant- Manu Sharma, by drawing our attention to the principles laid down by this Court in Madan Lal vs. State of J&K, (1997) 7 SCC 677 submitted that in an appeal against acquittal, it is incumbent on the Appellate Court to give adequate reasons for reversal. By citing Ghurey Lal vs. State of Uttar Pradesh (2008) 10 SCC 450, he further contended that the High Court could not have reversed the judgment of the Trial Court inasmuch as the view taken by the Trial Court was plausible view based on the evidence on record, hence the finding of the Trial Court could not have been overturned. 12) Mr. Gopal Subramanium, learned Solicitor General, by relying on the decision of this Court in Chandra Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105 submitted that where the High Court's conclusion was based on evaluation of evidence which was not erroneous or perverse and was based on an independent analysis of evidence which fully establishes the case of the prosecution as against the trial Court's conclusion, there is no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also cited certain passages from the books of foreign authors. In addition to the same, he highlighted how the appellant- Manu Sharma was prejudiced by the wild allegations that were carried by Media, both print and electronic. Since we intend to concentrate on the merits of the case, we discuss and give our reasoning at the appropriate place or at the end of our order. 15) Presence of accused Manu Sharma & others at the scene of offence. There is no dispute that the incidence occurred in a place known as "Qutub Colonnade". The open area of "Qutub Colonnade" is known as "Tamarind Court" whereas the closed area is called "Tamarind Cafe". In order to establish the presence of the accused Sidhartha Vashisht @ Manu Sharma and others, prosecution has examined Deepak Bhojwani PW-1, Shyan Munshi PW-2, Malini Ramani PW-6, Beena Ramani PW-20, George Mailhot PW-24, Rouble Dungley PW-23 and Rohit Bal PW-70. Apart from these ocular witnesses, prosecution pressed into service Ex. PW12/D-1 which is a wireless message received at Police Station, Mehrauli. a) Deepak Bhojwani PW-1 He is a resident of K-5/B, Ground Floor, Lajpat Nagar, New Delhi. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven one. Manu Sharma came into my contact after about 10-15 minutes of my purchasing two pegs of whisky. He requested me to arrange liquor for him on which I told him that liquor was over and the bar was closed and therefore, I would not be able to arrange liquor for him. We were already introduced to each other and were about to exchange visiting cards, when one tall sikh gentleman came from behind of Manu Sharma and told him something and took him away towards Tamarind Cafi. Before leaving, Manu Sharma told me that he would come back and meet me again". PW-1 correctly identified the photographs of both the accused persons one Manu Sharma and the other Tony Gill. He also informed that the accused Tony Gill came along with Manu Sharma and 2/3 of his friends. In respect of the question whether it would be possible for him to identify those 2/3 persons who were accompanying accused Tony Gill, PW-1 has pointed out Alok Khanna, accused-Manu Sharma and Tony Gill. We shall separately discuss about the Test Identification Parade and the validity of desk identification during time in the latter paragraphs. About the incident, he narrated that "After about 15/20 minutes i.e. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the statement of PW-1 was recorded on 14.05.1999 submitted that, first of all, he is an interested witness and his testimony is not acceptable. On seeing his entire evidence, there is no reason to either suspect his evidence or reject the same as unacceptable. On the other hand, his evidence supported by other witnesses clearly proves the presence of accused Nos. 1-4 at the place of occurrence. He asserted the presence of Jessica Lal, Shyan Munshi and the claim of whisky by a fair complexion man who exchanged niceties with him and introduced him as Manu Sharma. We do not find any valid reason to hold that he is a planted witness, though he was not an eye-witness to the actual shooting incident but his own statement proves that immediately on hearing the noise he peeped and noticed Jessica Lal lying on the floor of Tamarind Cafi. To this extent, the evidence of PW- 1 is acceptable and the High Court has rightly believed and relied on his version. b) Shyan Munshi PW-2 In the year 1999, he was studying in Indian Institute of Planning and Management at New Delhi doing his MBA Course. At that time, he was residing at 15/16 H. Hauz Khas, New Delhi. He informed the Court that he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; ".....I reached the Hospital at about 3:30 a.m. and my statement was taken at about 3:45 a.m. or 4 a.m." He also admitted that he was in Delhi for about a year or so and able to understand spoken Hindi. He is aware of Beena Ramani as the proprietor of Qutub Colonnade. The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited Tamarind Cafi on the night of 29.04.1999. He also mentioned the presence of Manu Sharma. His evidence further shows that immediately after the shot Beena Ramani and others were carrying Jessica Lal to the Ashlok Hospital. In other words, his evidence proves the presence of accused-Manu Sharma at the scene of offence. To this extent, the prosecution relied upon his evidence and this was rightly accepted by the High Court. Though, Mr. Ram Jethmalani submitted that High Court ought to have accepted his entire evidence in toto, considering his earlier statement to the police and his evidence before the Court, we are satisfied that the High Court is justified in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. As observed earlier his evidence am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a minute and a half/two minutes, Shyan Munshi came running to me and Sanjay Mehtani and he was screaming that Jessica had been shot. I just passed out after hearing about it and fainted. I can identify that person, who had asked drink from me and who was wearing jean and t-shirt. Witness has pointed out towards accused Siddhartha Vashisht @ Manu Sharma and said that he just look like him. I had seen this accused in the police station on 8th May. I had gone there as I was arrested in a case under Excise Act." "Question:- Are you certain that the person to whom you had just identified was the same person who had asked drinks from you and was wearing jean and T- shirt? Answer:- I am sure he is the same person." About PW-6's testimony, Mr. Ram Jethmalani criticized the question put by the public prosecutor which according to him is not permissible. It is relevant to point out that before considering her answer that "I am sure he is the same person", we have to see her statement in the previous paragraph. She identified Manu Sharma who had asked drinks from her who was wearing Jean and T-shirt. It is also relevant to note that she pointed out towards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsdays Parties. Jessica Lal and Shyan Munshi were friends of my daughter Malini and were helping her on that night" "The date was 29th of April, 1999. On that night, apart from the normal Thursday Party, I had also organized a special farewell party for my husband who was leaving in two hours time for a World Trip. The party was over by 1 or 1:30 a.m. This Thursday Party and special party was organized jointly and was being held in the courtyard and on the roof top. After the party was over, I was anxious to clean up the place and relieve the waiters etc. so that they may take up duty next morning properly. There were few guests left in the courtyard and I also spotted some guests in the Restaurant where nobody was supposed to be. I walked towards the Restaurant. When I was walking, towards restaurant I ran into Malini. I mounted the steps of the restaurant. I saw a few people standing next to the counter and I heard a shot. A moment later, I heard another shot. Jessica Lal was standing with people at the far end and I saw her falling down. There was a door to my right. It could be swung open and Shyan Munshi came out with another person who was either ahead of him or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was standing and she told him "that this was the man who had shot Jessica Lal and to see in which car he gets into". If we read her entire evidence she refers only Manu Sharma. She also correctly identified the presence of other accused persons, namely, Amardeep Singh Gill, Alok Khanna and Vikas Yadav. Her evidence remained unchallenged, though the Trial Court discarded her evidence as she was not an eye-witness to the occurrence but accepted that she is a witness to the presence of Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas Yadav at the Qutub Colonnade. We have already quoted her own statement namely "I saw a few people standing next to the counter and I heard a shot, a moment later I heard another shot. Jessica Lal was standing with people at the far end and I saw her falling down." It is also relevant that on noticing Shyan Munshi she asked him "Why are you here and why he shot Jessica Lal?". Her statement clearly proves the prosecution case that she had herself seen Manu Sharma shooting Jessica Lal. As rightly observed by the High Court, if the evidence of Beena Ramani is analyzed in depth, it is clear that she not only asserted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that why everyone was looking at him that he did not do anything. Then I saw Jessica lying on the floor with her head towards my feet, almost near my feet. Jessica was looking quite in pain and not moving and there was no sign of blood. Then I saw another man standing at the door. At that time, about 2/3 people were ahead of me and are by my side in the restaurant. I was focusing on the danger point. The young man whom I saw at the door was a beard person i.e. Sardarji. He was the only one present there who was keeping/maintaining calm. Thereafter, I went to the gate of Qutub Colony leaving others in the restaurant, in search of Police man. I ran out and went into the street there was no one there. While I was in the street a number of people came up to the gate of Colonnade walking. There was a bunch of them that is a first person behind him a second person and then behind them many persons they were walking very rapidly. The first person was the one whom I had seen in the restaurant and whom Beena had accosted and asking for the gun. Right behind him or directly behind him was Beena. I focused only on first person or Beena I did not notice the others." "I believe I ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the presence of appellants is also proved by other evidence, namely, 3 PCR calls Ex PW 11/A, B and C which were received. The evidence of PWs 11, 12 and 13 clearly proves that immediate and prompt action was taken. h) HC Devi Singh PW 83 --- In-charge of PCR Van: He reached the scene of occurrence within two minutes at around 02.17 a.m. and reported back at 02.35 a.m. It is relevant to refer the message received that is Ex PW 12/D-1 which states: "From E-43 (PCR Van), A party hosted by Malini and Beena was going on in Qutub Colonnade Hotel situated at the road which leads towards Mehrauli where a person had demanded whiskey from Jessica Lal but she (Jessica Lal) said that the restaurant had already been closed. At this the aforesaid person had fired shot at Jessica Lal, which had hit her on her chest. Jessica Lal has been admitted in Ashlok Hospital, Safdarjung Enclave and the person who had fired shot has fled from there." "One person has fled after firing (at someone) 35 years, stout body 5' 4" R/F fat, T-Shirt of white colour. All the persons will search him". Ex. PW 12/D-1, a contemporaneous document, clearly corroborates the testimony of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ushing out of the restaurant and they were shouting "GOLI LAG GAI", "Jessica Lal KO GOLI LAG GAI". I knew Jessica Lal before the incident, Jatinder Raj was the Manager of the restaurant. I was coming downstairs, and on hearing the noise, I went to restaurant. I saw Jessica Lal, lying on the floor. Some guests, Beena Ramani and Jatinder Raj were present there. Two - three other workers were also present, but I do not remember their names. Beena Ramani made a telephone call. Thereafter, Shiv Dass brought a sheet of cloth. Jatinder Raj, Beena Ramani and I wrapped the said Jessica Lal in the bed-sheet. We took/carried her to an Esteem Car, parked outside. Beena Ramani, Jatinder Raj and I also sat down in the Car. There was a driver in the car. We left and reached Ashlok Hospital. Jessica Lal was removed on a stature for medical treatment. I returned to the restaurant at about 3/3.15 a.m. Police met me there in the Restaurant." "Jatinder Raj and Beena Ramani were already, near Jessica Lal, when I reached there. I did not see Mr. George there, at that time. George had left at about 12.30 or 12.45 a.m. from there. When I saw Jessica Lal lying on the floor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth went inside the cafi. It is clear from the testimony of this witness that he was inside his office counting the cash when he heard the shots, thus after taking care of the cash when he opened the gate he saw people coming in and going out, which means that his act of coming out from the office is considerably after and not immediately after the shots were fired and, therefore, he saw people running back and forth whereas Beena Ramani PW-20 has stated that when she mounted the steps of the restaurant she saw a few people standing next to the counter and heard a shot. A moment later she heard another shot. Jessica Lal was standing with people at the far end and she saw her falling. It is pertinent to note that as per the scaled site plan, the point at which Beena Ramani PW-20 was standing was only four feet from the point at which the shot was fired at Jessica Lal. Therefore, it can never be alleged that there was no way in which the said witness could have had any doubt as to the identity of Manu Sharma. Thereafter, she accosted Manu Sharma till the gate of Qutub Colonnade where she told George Mailhot PW-24 that this was the man who had shot Jessica Lal and that he should see i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the verandah and Tamarind Court. Hence, the testimony of PW-46 cannot negate the evidence of PW- 20 that she witnessed the incident. It is submitted that the mere absence of Beena Ramani PW-20 in the site plan also does not negate her presence or her having not witnessed the incident, specifically when she had given her statement to the police under Section 161 CrPC on 30.04.1999, itself. 21) Mr. Ram Jethmalani, learned senior counsel, by drawing our attention to Ex PW 21/A, which is a site plan and Point B is the approximate place where the deceased was shot, argued that it was impossible for PW-20 (Beena Ramani) to have seen the actual shooting, since they both entered together and PW-47 came in after the shot was fired. In other words, it was argued that PW-20 only saw the "fallen woman" and it is incorrectly written "falling" and PW-20 is not the person who saw the incident. We meticulously verified the site plan as well as the evidence of PWs 20, 46 and 47. The absence of PW-20 in the site plan does not belie her presence and her having witnessed the incident especially when her statement under Section 161 Cr.P.C. was recorded on 30.04.1999 in the morni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of the reason that their presence may be required for filing additional charge-sheet in FIR No. 287 of 1999. By pointing out the above information, it was argued by the learned senior counsel that the investigation agency had been pressurizing these witnesses to toe their line in their deposition in the present case, but PW-20 was not made as accused under Section 201 in the present case because they had agreed to toe the line of the prosecution but this sword was kept hanging on them to ensure that the entire family members i.e. PWs 6, 20 and 24 continue to toe the line of prosecution. All the allegations have been stoutly denied by the prosecution. It was submitted by the prosecution that the statement of S.I. Sunil Kumar PW-100 is inadmissible on the ground that it is sought to be used as opinion evidence and, therefore, hit by the rule against hearsay evidence. Even if it is held to be admissible, it was pointed out that Beena Ramani was right in saying that statement of Shyan Munshi should be recorded because Shyan Munshi was inside the cafi and had witnessed the entire incident including conversations which occurred prior to the incident. It was further pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the defence that PW-6 did not say that she heard the gun shots since she was inebriated, which further supports the fact that she could not identify anybody else. Her statement that there were four or five guys at the spot is also not corroborated by Deepak Bhojwani PW-1. The Prosecutor has put a leading question to her as to the identity of the appellant and, therefore, the said question and answer should be expunged from the record. The Police recorded a couple of her statements but the defence was not supplied with all of them. In any case the photo of the appellant was shown to her even prior to his refusal of the Test Identification Parade. It was pointed out that these contentions are totally erroneous and contrary to the record. It is pertinent to note that FIR No. 288 of 1999 at PS Mehrauli under Excise Act was registered on 30.04.99 itself and thus the question of making her an accused on 08.05.99 does not arise. Moreover, the excise offence is a bailable offence. Further, the statement of Malini Ramani was recorded under Section 161 Cr.P.C. on 03.05.99 itself vide Ex PW 6/DA and thus the contention of making her an accused on 08.05.99 on this count is also fallacious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rohit Bal PW-70, that he saw her screaming out, the defence has sought to discredit PW-6's, statement. It is relevant to note that it is the case of PW-6 that she came to know when she was in the courtyard, Shyan Munshi came running towards her and Sanjay Mehtani, screaming that Jessica Lal had been shot. Thereafter, PW-6 fainted, thus, in the process, if PW-70 saw her screaming in the courtyard, it cannot be said that there is any contradiction in the statement of PW-6 and PW-70. 29) It was pointed out by the defence that the firing was not over a drink, the act to refuse supply of liquor was not the motive to murder Jessica. After perusing the evidence of PW-6, it is clear that after refusal of the drink, the appellant-Manu Sharma misbehaved in the most vulgar fashion. The testimony of PW-23 further corroborates the testimony of PW-6. As rightly pointed out by the State that it was a case where the deceased Jessica Lal was murdered for a row over the drink. 30) It was also pointed out on the side of the appellant- Manu Sharma, that the evidence of Malini Ramani, PW-6 and George Mailhot, PW-24 does not corroborate the statement of Beena Ramani, PW-20. In this regard, it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that she heard the two shots, saw the people inside and Jessica falling down, which shows that she had witnessed the entire incident as is evident from the relevant portion of her testimony extracted in paragraphs supra. Malini Ramani in categorical terms informed the Court about Manu Sharma asking about the whisky, his misbehaviour immediately before the shooting and also identified the same person in white T-shirt asking for the whisky and misbehaving with her as Manu Sharma. PW-6 further corroborates the testimony of PW-20 and part testimony of PW-2 with regard to the presence of the accused Manu Sharma. The scrutiny of the entire evidence of PW-6 clearly shows that her evidence is not only relevant but also admissible. 32) Coming to the cause of death, Dr. R.K. Sharma PW-9, who conducted post-mortem on the body of deceased Jessica Lal has stated that on 30.04.1999 at about 11:20 a.m. 7 sheets of papers i.e. inquest papers, request of post-mortem, inquest report, copy of FIR, brief facts of the case, were submitted to him along with the dead body. He informed that the cause of death to the best of his knowledge and belief was head injury due to firearm, injury was ante-mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. On the other hand, the fact remained that the accused had pleaded guilty. As rightly pointed out by the State that on the quantum of sentence for an offence, the prosecution has no role and it is the Court concerned which can impose appropriate sentence considering the evidence and the role of the accused. It was also highlighted that the charge was only under Section 68 of the Punjab Excise Act to which all the three accused, namely, Malini Ramani, Beena Ramani and George Mailhot pleaded guilty. The maximum penalty/fine under Section 68 is ₹ 200, therefore, the maximum fine which could have been imposed on the accused is ₹ 200. In those circumstances, the allegation that these three witnesses were kept under pressure is not acceptable. What constitutes the First Information Report 35) Let us consider whether the three telephonic messages received by the Police at around 2:25 a.m. on 30.04.1999 or the statement made by Shyan Munshi recorded at Ashlok Hospital constitute the FIR. It is the submission of the learned senior counsel for the appellant-Manu Sharma that the statement of Rohit Bal PW-70 ought to have been used for the purpose of registration of FIR in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Criminal Procedure Code which states that the information, if given orally, should be reduced in writing, read over to the informant, signed by the informant and a copy of the same be given free of cost to the informant. In the case on hand, the object of persons sending the telephonic messages including PW-70 Rohit Bal was only to bring the police to the scene of offence and not to register the FIR. Learned senior counsel for the accused- Manu Sharma has also relied upon a judgment of this Court in H.N. Rishbud & Inder Singh vs. The State of Delhi (1955) SCR 1150 wherein this Court has held that investigation usually starts on information relating to commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the Code. A reading of the said judgment clearly shows that investigation starts on information relating to commission of an offence given to an officer in charge of a police station and recorded under Section 154 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. P.A. Madhu, (1984) 4 SCC 83 wherein this Court has not accepted a similar argument and held as under:- 5. To begin with, it appears that there was some dispute about the dearness allowance claim of the labour from the management which was referred to the Industrial Tribunal. The respondent, who was the Secretary of the Union, was looking after the case on behalf of the workers, while PWs 5 and 7 were the officers appearing on behalf of the management before the Tribunal. The deceased, S.J. Sirgaonkar, was Deputy Personnel Manager of the Bombay Branch of M/s Hindustan Construction Company. He was shot dead by the respondent after he (deceased), along with the other officers of the management, had come out of the Tribunal's office at Meerut after filing their written statements. Thereafter one of the eyewitnesses, S.K. Gui (PW 7) asked someone to give a telephone call to the police station, which was nearby, on receipt of which the police arrived at the spot, seized the pistol and took the accused and some of the witnesses to the police station where a formal FIR was registered. The Panchnama was prepared and other formalities were, however, done at the spot. 11. Durga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in point of time does not by itself clothe it with the character of first information report." Similar views have been expressed in Tapinder Singh vs. State of Punjab (1970) 2 SCC 113, Damoder vs. Rajasthan (2004) 12 SCC 336 and Ramsinh Bavaji Jadeja vs. State of Gujarat (1994) 2 SCC 685. It was argued and highlighted that since PW-2 Shyan Munshi has been confronted with his signed statement i.e. Ex.PW-2/A and B, the whole evidence goes in light of Zahidurddin vs. Emperor, AIR 1947 PC 75. Apart from the above decision reliance has further been placed on Superintendent and Remembrancer of Legal Affairs to the State of W.B. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cal. 348 (Para 9) and Mer Vas Deva vs. State of Gujarat, AIR 1965 Guj. 143 (Para 9 & 10). We have carefully perused those decisions. We are satisfied that nothing turns on this argument since the said decisions only provide that where a statement made/given by a witness under Section 161 of the Code and signed by the same is hit by the bar prescribed under Section 162 of the Code, but nowhere do they say that the evidence deposed to in Court by the said witness becomes admissible. As a matter of fact, similar argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he volunteered that he had started the investigation of the case registered over the second incident in the same night. In the face of such admissions of PW 96 and the various steps of investigation he took in connection with the second incident there cannot be any escape from the conclusion that the report lodged by PC PW 1 on the following morning could only be treated as a statement recorded in accordance with Section 161(3) of the Code and not as an FIR. The next question, therefore is whether the evidence of PC PW 1 is inadmissible as contended by Mr Jethmalani. 39. In the case of Zahiruddin the police had got the statement of the principal witness which was, admittedly, recorded during investigation signed by him. Besides, during trial, while being examined-in-chief he refreshed his memory from that statement. The trial ended in an acquittal with a finding that when a police officer obtains a signed statement from a witness in contravention of Section 162 of the Criminal Procedure Code his evidence must be rejected. In appeal the High Court set aside the order of acquittal holding that breaches of the provisions of Section 162 Criminal Procedure Code were not in themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to it Ext. 10/1 was the FIR. Such a course was legally permissible to the prosecution to corroborate the witness in view of Section 157 of the Evidence Act. Of course in a given case -- as in the present one -- the court may on the basis of subsequent materials hold that the statement so recorded could not be treated as the FIR and exclude the same from its consideration as a piece of corroborative evidence in view of Section 162 of the Code but then on that score alone the evidence of a witness cannot be held to be inadmissible. The case of Zahiruddin turned on its own facts, particularly the fact that during his examination- in-chief the witness was allowed to refresh his memory from the statement recorded under Section 161 Criminal Procedure Code, unlike the present one where the statement was admitted in evidence after PC PW 1 had testified about the facts from his own memory." 41) The information about the commission of a cognizable offence given "in person at the Police Station" and the information about a cognizable offence given "on telephone" have forever been treated by this Court on different pedestals. The rationale for the said differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle, on the front seats. They went ahead and took `U' turn and stopped the vehicle near the vehicle, near which I was standing. I was standing by the side of Tata Safari vehicle, of black colour. One boy came down from that vehicle. He opened the vehicle Tata Safari, with a key. I told him not to do so, but he forcibly entered the said Tata Safari. He started the vehicle even though I asked him, not to do so. I gave a lathi blow on the last window-pain on the side of the driver. The number of the black TATA Safari, bore Registration no. CH-01-W-6535. When I gave danda- blow, the glass of window-pain broke. Both the persons, took-away the vehicles. I had seen the driver and companion on the Tata Sierra. The TATA Sierra vehicle was being driven by Sikh Gentleman. I can identify the driver of the said Tata Sierra and his companion. At this stage, the witness has been sent out to examine the vehicle, parked, outside the court room, along with Junior of Shri G.K. Bharti, Advocate and Shri Ghai, Advocate. It is the same Tata Safari vehicle, which was hit by me on that night. It is exhibited as article Ex.PW 30/X." It is clear from his evidence that while Tata Safari CH-01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s left at the gate to ensure that no vehicles leave the spot. It is clear from the above testimony that black Tata Safari was found parked near the gate of `Qutub Colonnade' when they reached at the spot on receipt of intimation regarding firing incident and Shravan Kumar PW-30 was detailed by SHO PW-101 to ensure that no vehicle leaves the spot. It is the argument of the learned senior counsel for the appellant Manu Sharma that PW-30 was not present at the spot of the incident placing its reliance on DD No.40A and 43A dated 30.04.1999. A perusal of FIR 286 of 1999 dated 30.04.1999 under Section 308/34 IPC PS Mehrauli Ex-CW-2/B shows that the said `rukka' was sent by SI Rishi Pal through Balwan Singh from AIIMS and not from Dera Gaon. The said FIR also indicates that SI Rishi Pal by 2.30 a.m. had already recorded the statement of the victim at AIIMS and had not sent the same with Balwan Singh with `rukka' to PS, Mehrauli. In those circumstances, the version of PW-30 and PW-101 that PW-30 met him at the gate of the PS when PW-101 was going out with other staff is reliable and acceptable. Further, the presence of PW-30 at the spot is corroborated by Sharad Kumar Bisnoi, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable in Karnal, hence seizure of the very same vehicle (Tata Safari) at Noida is not acceptable. It is true that PW-100 has stated that he discussed the case with Inspector Surender Sharma and who informed him that Vehicle No. CH-01-W-6535 which was lifted from the spot in the morning is found to have been registered in the name of Piccadilly Agro Industries and it was also found in Karnal and he further informed that Sidharth Vashisht alias Manu Sharma is the Director of the said Industries who is residing in H.No.229, Sector 9C, Chandigarh. A perusal of his entire evidence shows that he had stated that the vehicle was found registered in the name of Piccadilly Agro Industries, Bhadson, which was also found in Karnal and SI Pankaj Malik along with his staff has been detailed for the investigation of the aforesaid aspect of the case. As rightly pointed out by the counsel for the State, the testimony of PW-100 show that he was referring to the Piccadilly Agro Industries having been found at Bhadson Karnal and not the vehicle/Tata Safari. It was also pointed out when Manu Sharma was questioned under Section 313 Cr.P.C. particularly question No. 119 the doubt about the vehicle has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not arise. From the statements of Sunil Kumar PW-100, Inspector Surender Kumar Sharma PW-101, Inspector Raman Lamba PW-87, ASI Nirbhaya Singh PW-80 and SI Pankaj Malik PW-85, it is clear that Tata Safari vehicle was being searched by Inspector Raman Lamba PW-87 and SI Pankaj Malik PW-85 and other police officers at various places in Delhi, Haryana and Chandigarh. As the said vehicle was found on 02.05.1999 at Noida and the same was taken into possession through a seizure memo prepared by Noida Police. The same was taken into possession by Delhi Police on 03.05.1999 after taking appropriate orders from the Magistrate Ghaziabad. Recovery of Tata Safari with live bullet and broken glass pieces at Noida: 47) PW-91 SI BD Dubey, in his evidence has stated that information was received that the vehicle involved in Jessical Lal murder case was parked at NTPC Township. They reached NTPC Township at about 06.30 p.m. on 02.05.99 and found a Safari Vehicle parked there bearing No. CH-01-W-6535. He identified the vehicle Ex. article PW 30/X in the court. Recovery memo prepared is Ex PW 74/A which is in his handwriting and bears his signatures at point C and that of Sudesh Gupta SO at poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed parcel containing broken glass pieces. The report of CFSL vide Ex PW 90/A proved that on comparison of S1 and S2 the two window panes of the left and the right rear side of the said Tata Safari are different. Thus this convincing testimony of PW 101 duly corroborated by documents cannot be discarded simply because SI Sudesh Gupta (Noida Police) failed to mention the seizure of broken glass pieces on 02.05.1999. Tata Safari being used by Manu Sharma on the day of occurrence: 50) From the evidence on record it has been proved by the prosecution that appellant/accused Sidhartha Vashisht @ Manu Sharma along with co-accused Amardeep Singh Gill, Alok Khanna and Vikas Yadav were present in the said party at Tamarind Cafi on the night of occurrence. The presence of Tata Safari CH-01-W-6535 at the place of occurrence and its being forcibly taken at around 3.45 am after the incident has also been proved beyond reasonable doubt. Manbir Singh PW-18 has proved that the said Tata Safari CH-01-W-6535 is registered in the name of Piccadilly Agro Industries Ltd., Chandigarh. It has also been proved from the testimony of PW-25, PW-26, PW-48 and the annual report of Piccadilly that accused Sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .05.1999. Learned Solicitor General appearing on the side of the State demonstrated that the above contention is false one. Since, on 06.05.1999, when the accused Manu Sharma surrendered, he was accompanied by the lawyer in whose presence his arrest memo was prepared and the lawyer also signed the same. However, as rightly pointed out with reference to the arms license which was also produced by them, the same does not bear the signature of the said lawyer. The learned counsel for the State further pointed out that the said lawyer declined to sign the seizure memo that was the reason that it does not bear the signature of the said lawyer. It is to be remembered that admittedly the appellant/accused nowhere came out with an explanation. His arms license was taken away by the Police in 30.04/01.05.1999 with any seizure memo, why he has not lodged any report about the same. It is also relevant to point out when the accused after surrendering before the police of Chandigarh on 06.05.1999 was produced before the Magistrate in Delhi. The police sought remand on two occasions specifically for recovery of the weapon of the offence. It was pointed out by the prosecution that Manu Sharma was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused was the owner and possessed .22" P. Berretta Pistol made in Italy. b) Two empty cartridges cases of the .22" with `C' mark recovered from the spot. c) The mutilated lead recovered from the skull of deceased was of .22" and could have been fired from a standard .22" caliber firearm. d) From the Tata Safari live cartridge of .22" with mark `C' was recovered on 02.05.1999. e) The two .22" cartridge cases from the spot and the .22" cartridge recovered from Tata Safari have similar head stamp of `C' indicates that they are of the same make. f) The two .22" cartridge cases recovered from the spot are to be rim fired, rimmed steel cartridge cases. g) The two .22" cartridge cases of `C' mark were lying near each other on the counter and so could not have been fired by 2 different persons. The testimony of Naveen Chopra PW-7 that he sold 25 cartridges of .22" bore on 04.02.1999 is also of no relevance to the defence of the accused when PW-7 says in the witness box that he had sold 25 cartridges of .22 bore with Mark `KF' and not with `C'. The appellant/accused has relied on the testimony of PW-7 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licitor General that the Courts below ought to have drawn an adverse inference from the said facts but have failed to do so. Thus this evidence coupled with the testimony of Shyan Munshi, PW-2, that the person in white T-shirt who was asking for whisky took out a pistol from dub of his pant and fired a shot in the air and the other witnesses PWs 1,6, 20 and 24 that the person in white T-shirt was Manu Sharma, a positive inference beyond reasonable doubt has to be drawn that Manu Sharma fired from his .22" bore pistol which resulted in the death of Jessica Lal on the fateful night of 29/30.04.1999. 57) Mr. Ram Jethmalani, learned senior counsel, appearing for the accused pointed out that no question has been put to the accused in his examination under Section 313 Cr.P.C. with reference to the pistol and shooting by him for this. The State has placed reliance on the following questions which were specifically put to the accused Manu Sharma being Question Nos. 64, 65, 66, 67 & 72 which are as under: "Q.64 It is further in evidence of PW-20 that she had identified you Manu Sharma as the person whom she has tried to stop and talked to. She added further that the person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of all such persons took substantial amount of time to determine. Consequent to the large number of witnesses, their interrogation also consequently took a substantial amount of time. Unlike the said decision, in the present case, there are no concomitant circumstances to suggest that the investigator was deliberately making time with a view to give a particular shape to the case. The details of investigation conducted on each day are very clearly brought out in the evidence of the various witnesses. Furthermore, the identity of the appellant as a suspect in the present case was not the consequence of any delay. Thus, the delay, if any, in recording the evidence of witnesses in the present case cannot be considered as an infirmity in the prosecution case. 59) The judgment in Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC 670, relied on is also distinguishable. The delay in recording the statement in that case was coupled with the unnatural conduct of the witness and that was what made the evidence of the said witness unreliable, which is not so in the present case. 60) The other judgment in Jagjit Singh vs. State of Punjab (2005) 3 SCC 689 is also distinguishable. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose previous statements have not been recorded. 62) It is next contended by the learned senior counsel for the appellant-Manu Sharma that there was a delay in recording the statement of Deepak Bhojwani and his name having not been found from the list of guests prepared by George Mailhot, Ex. 24/A. It was further pointed out that the list was not a conclusive list and was prepared by George Mailhot on the basis of remembrance and other witnesses have also admitted the presence of Deepak Bhojwani. This is more so relevant as the invited guests were also entitled to bring guests with them. The statements of witnesses were recorded not only by the I.O. himself but by other officials as well who were helping him in investigation. The delay in recording the statement of Deepak Bhojwani occurred due to natural flow of statements of various witnesses. The statement of Deepak Bhojwani PW-1, was recorded by ACP Durga Prasad PW-92, who stated the name of Deepak Bhojwani occurred during the course of interrogation of other guests/witnesses. The evidence of PW-1 is relevant for a limited purpose i.e., proving the presence/identity of Manu Sharma and his desire for liquor in the party which pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other chamber marks are present on the live bullet empties contained in parcel Nos. 6 & 5 respectively? 8. If answer to querry No. 7 is yes then whether these marks are similar and caused by the same fire arm?" The Ballistics Division of CFSL gave report in respect of the queries as under: "1) The .22" badly mutilated lead bullet (marked BC/1) of No.3 could have been fired from a standard .22" caliber firearm. 2) The two .22" cartridge cases marked C/1 and C/2 have been fired from two different .22" caliber standard firearms. 3) The .22" cartridge (marked C/3) of parcel No.5 is a live cartridge and no characteristic tool marks (i.e. firing pin, ejector, extractor, breechface, magazine or chamber marks etc.) could be observed on this cartridge. 4) The two .22" cartridge cases (marked C/1 & C/2) of parcel No.4 and the .22" cartridge (marked C/3) of parcel No.5 have similar Head Stamp of `C' indicating that they are of the same make. No opinion on their series (lot/batch) could however be given." According to the State the same also contained inconclusive opinion. It was pointed out that the State has neither relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion. The charge sheet was filed without the expert opinion. The accused on seeing Sl. No.67, approached the committal Court and asked for the expert report. It has been argued that the I.O. had received the opinion in the first week of December, 1999 but did not file the same. On 21.12.1999, the Court directed the prosecution to file the report. The SPP objected to the same on the ground that the order required modification but the same was rejected and on 14.01.2000, the Court again directed supply of the expert report. It has been argued that since the report did not favour the prosecution, the same was withheld. It has been further argued by the defence that failure on the part of the prosecution to bring on record material which is in favour of the accused is a breach of Article 21 of the Constitution. It has been argued by the defence that it was improper on the part of the prosecution to condemn a ballistic expert, i.e., Rup Singh without calling him in for cross-examination. It has been further argued by the defence that by virtue of Section 293 Cr.P.C., the report is admissible in evidence and that the weapon is not required to show whether the two empties are fired fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the originals. Assuming for the sake of the argument, though not admitting, that the said report of Rup Singh, i.e. Ex. PW- 89/DB is admissible even though a photocopy has been placed on record and even though nowhere it has come in evidence that the same i.e. the photocopy has been compared and scrutinized with the original by the Court and then placed on record, the same still looses all credence in the light of the fact that a perusal of the forwarding letter and report would show that there seems to have been some tampering with the said documents since the sequence of numbering of the parcels as between the forwarding letter and the report has been changed by somebody which fact remains unexplained as, therefore, casts a further doubt on the genuineness of the said report. The report itself with regard to query No.3 shows that "it appears that the two cartridge cases C-1 and C-2 have been fired by two different weapons". This opinion of the expert was vague and on the basis of said opinion no credence can be lent to the fact adverted to by the defence that there were two persons who fired two different shots from two different weapons. Moreover the said report is od ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite opinion. At this juncture, it is relevant to note that the trial Court posed a leading question as under: " Q. From reply to query No.3 the presence of the fire arm was not necessary. The question was whether the two empty cartridges have been fired from one instrument or from different instruments? Ans. The question is now clear to me. I can answer the query here and now. These two cartridge cases were examined physically and under sterio and comparison microscope to study and observe and compare the evidence and the characteristics marks present on them which have been printed during firing. After comparison, I am of the opinion that these two cartridge cases C/1 and C/2 appeared to have been fired from two different fire arms." The said witness in further cross-examination replied as under: "There is nothing in the record of the Court on my report on the basis of which I had given this finding that C/1 and C/2 were fired from two different fire arms" The said witness in further cross-examination deposes that no photographs were taken or there is any other evidence to show the basis of opinion given by the witness before the trial Court. 69) The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can be given as regards the two empties without receipt of the weapon of offence. In spite of knowing all this, the judge first put a finding of its own to the witness that he did not need the firearm in question in order to reply as to whether the two empties were fired from the same gun i.e., a gun and not the gun. The Court exceeded its power under Section 165 of the Evidence Act by putting the question after giving its own finding. 71) On behalf of the prosecution, it is pointed out that the entire argument of the accused that an expert opinion was sought at the fag end of the charge sheet to seek a favourable opinion in favour of the prosecution in fact suggests that the I.O. in question was oblivious of the fact that such an opinion could work to the detriment of the case of the prosecution i.e. two empties having been fired from the same weapon of offence belonging to accused Manu Sharma. The fact that the I.O. sought to mention at S.No. 67 of the list of documents in the Charge Sheet about the forwarding letter to the expert only suggests that the prosecution had no intention of carrying out the act of seeking an expert opinion, is hiding. The discretion on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; caliber standard firearms but his opinion is completely silent on the marks i.e. ejector, trigger, chamber, magazine or other tool marks on the bullet empties (Ex. PW 89/DB). Clearly an option was available to the accused under Section 293 Cr.P.C. to call for the witness and ascertain from his for sure that the two empties were in fact fire from two different weapons, however, the accused did not choose to do so in terms of Section 293 Cr.P.C. In any case, the opinion of Rup Singh as of today is of little use to the accused for the reasons stated above and since it is both inconclusive and unsupported by any reasoning whatsoever and, therefore, cannot appeal to the judicial mind of this Court. Similar is the case with the expert opinion of PW-95 which is again inconclusive. There is no evidence on record to suggest that PW-95 gave an opinion to oblige the prosecution. On the contrary, his response to the Court question reveals that he was extremely confused as to the issue which had to be addressed by him in the capacity of an expert. In the concluding part of his testimony he reaffirms the opinion given by him which is that without test firing the empties from the weapon of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge, A private counsel, if allowed frees hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. 44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in. 46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions." 78) The appellants have placed heavy reliance on the position in England to argue that there is a wide duty of disclosure on the public prosecutor. It was argued that any non-disclosure of evidence, whether or not it is relied upon by the prosecution, must be made available to the defense. In the absence of this, it was argued, there would be a violation of the right to fair trial. 79) In the light of this argument, let us examine the exact nature of the duty of disclosu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court." "Rule 16 of the Bar Council of India Rules. Rule 16 of the Chapter II, part VI of the Bar Council of India Rules under the Advocates Act, 1961 is as under: 16. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided." Therefore, it is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial. Mr. Ram Jethmalani argued that this duty extends beyond these provisions, and includes even that evidence which may not have been used by the prosecutor during the trial. As we have already mentioned, for this purpose, he relied upon the position in England. 80) Currently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration. The aim of criminal justice is two-fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and the guilty is punished in accordance with law. 83) Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expensive power of the police to make investigation. These well established principles have been stated by this Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that diary. A Criminal Court is empowered under Section 172 (2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial. However, Sub-section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply. Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required under this Section. Provisions of Section 173 (5) contemplates and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 question whether the documents called for by the Court vide its Order dated 16th February, 1981 liable to be produced by the State or production of those documents is barred under Sections 162 & 172 of the Code and the petitioners in those cases are not entitled to see such documents. The Court rejecting the contention held as under: "It is common ground that Shri L.V. Singh was directed by the State Government under Section 3 of the Indian Police Act, 1861 to investigate into twenty four cases of blinding of under-trial prisoners where allegations were made by the under-trial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody, Shri L.V. Singh through his associates carried out this investigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government. These reports clearly relate to the issue as to how, in what manner and by whom the twenty-four under-trial prisoners were blinded, for that is the matter which Shri L.V. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt uses them for the purpose of contradicting such police officer then provisions of Section 161, or 145, would be applicable. The right of the accused to cross-examine the police officer with reference to the entries in the General Diary is very much limited in extent and even that limited scope arises only when the Court uses the entries for the aforestated purposes. The investigating officer has a right to refresh his memories and can refer to the general diary. The Court has power to summon the case diary in exercise of its powers and for the purposes stated. The accused is vested with the power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Section 2 & 7 of the Code State of Kerala v. Babu (1999) 4 SCC 621 and State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715. 91) As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions afore-referred. But still the accused has been provided with definite rights under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. The role and obligation of the prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English System as afore-referred. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 has a material bearing on this subject and makes an interesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. The concept of disclosure and duties of the prosecutor under the English System cannot, in our opinion, be made applicable to Indian Criminal Jurisprudence stricto senso at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also allotted to Amardeep Singh Gill and Alok Khanna respectively. PW-51, Sh. Rajiv Talwar has stated that Te. No. 660500 was installed in the office of Harvinder Chopra. PW-39, Mansvi Mittal STD/PCO Booth Inderlok-Mittal Communication Tel. No. 5157498 is installed at this booth. Calls made remain in memory for a period of one month. Police has seized record of 04.05.1999 and 05.05.1999 in respect of Tel. No. 0017184768403 to which calls were made. Figure 00 is international access code and 171 is the code call to be made to USA. 001 is also code call for America. Print out dated 04.05.1999 is Ex. PW-39/1 and dated 05.05.1999 is Ex. PW-39/2 to 7, Seizure Memo dated 27.05.1999 is Ex. 39/A where entries Ex. PW-39/3-7 were made was present. PW-40, Ayub Khan, PCO/STD/ISD Booth Okhla Phase II Tel. No. 6924575 was installed on 10.05.1999. He also furnished similar details. Print out slips were seized vide Ex. PW-40.A and print out is Ex. PW-40/1-3 respectively. The testimony of PW 85, SI Pankaj Malik also corroborates the version of the aforesaid witnesses. 96) The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant/Manu Sharma that the Sanjay Mehtani, friend of Malani Ramani, who was also present at Qutub Colonnade at the scene of offence was deliberately not examined by the Prosecution. Respondent has pointed out that Sanjay Mehtani was examined during the course of investigation and his statement was recorded under Section 161 Cr.P.C. He was also cited as a prosecution witness. During the trial summons were issued for him and it was learnt that Sanjay Mehtani had left India and was residing at Hong Kong and as such could not be examined in the court. Further, it was pointed out that bare perusal of the trial Court record of the present case will clearly bring out the fallacy in the said argument of the defence. The Police while filing the charge-sheet before the Magistrate had enlisted Sanjay Mehtani's name in the list of witnesses. This fact clearly shows that the prosecution had the intention to examine Sanjay Mehtani as their witness. Further, the said witness was summoned by the Court for examination vide orders dated 28.11.2001, 08.02.2002, 27.11.2003 and 11.12.2003. The said sequence of events clearly show that the prosecution not only wanted to examine him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit of any inference but of his guilt.... this conduct of the accused was so knit together as to make a network of circumstances pointing only to his guilt......his methods was his own undoing; because even the long arm of coincidence could not explain the multitude of circumstances against him, and they destroyed the presumption of innocence with which law clothed him." Thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is a very relevant conduct u/s 8 of Evidence Act. Disclosure statements of the accused persons and their admissibility u/s 27 Evidence Act: 101) PW-100 SI Sunil Kumar and PW-101 Inspector Surender Kumar Sharma deposed that on the early morning of 05.05.1999 accused Amardeep Singh Gill @ Tony Gill was arrested and he made a voluntary disclosure vide Ex.PW 100/7 that on 29.04.1999 he had a talk with Alok Khanna over telephone and thereafter a telephone call was received at about 8.30 p.m. from Sidharth Vashisht @ Manu Sharma. He has further disclosed that Alok Khanna came to his house in Tata Sierra car no. MP 04V 2634. He has further disclosed that he and Alok Khanna went to Qutub Colonnade in Alok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mention that calls were exchanged between the accused and made to USA were discovered pursuant to disclosures made by the accused persons. Test Identification Parade-Refusal: 105) The witnesses Deepak Bhojwani PW-1, Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 have clearly proved beyond reasonable doubt the identification of the accused persons Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas Yadav. PW- 1 Deepak Bhojwani had met Manu Sharma on the night of 29.04.1999 at Qutub Colonnade when Manu Sharma introduced himself to Deepak Bhojwani and they were about to exchange visiting cards when Amardeep Singh Gill @ Tony Gill took him away towards the cafi. Both Amardeep Singh Gill and Manu Sharma refused their TIP on 06.05.1999 and 07.05.1999 respectively before PW-79 Ld. MM Sh. Rajnish Kumar Gupta without citing any credible reason. Thereafter, photo identification was conducted in which they were duly identified by Deepak Bhojwani. The said witness has also clearly identified the two of them in the Court. 106) PW-6, Malini Ramani has categorically stated that she identified Manu Sharma as the accused in the Police Station. She had seen accused in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IO who took note of the said fact, later the witness could not identify the accused in Court due to lapse of time, thus the testimony of the IO was relied upon to prove the said identification. The IO's testimony was upheld as admissible on the ground that the act of the IO was contemporaneous with the act of identification by the witness. 108) PW-78 SI Sharad Kumar deposed "I thereafter went to Calcutta. The four photographs X1 to X4 were identified by Shyan Munshi as those of the accused in my presence. (Objected to by Sh. R.K. Naseem). I asked Shyan Munshi to sign on the back of these photos but he refused to do so. Then I gave separate markings on the back of the photographs X1 to X4 and signed them. Markings and my signatures at the back of the photographs are at points A on all the four photographs. I recorded the statement of Shyan Munshi in this regard. The photocopy of the said statement is Ex PW2/C which is in my hand and bears my signatures at point A. I correctly recorded statement of Shyan Munshi and did not add or omit therefrom on my own. After return from Calcutta, I handed over the photographs and statement of Shyan Munshi and other documents to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn in this regard. 111) The next contention of the defence for refusal of TIP is that his photograph has been shown to the witnesses is also incorrect. It is not disputed that the photograph of accused Manu Sharma was obtained from his farmhouse located in Samalkha on the intervening night 30.04.1999 & 01.05.1999. However, it is further in evidence of PW-87 that he went to Chandigarh and he took the photograph of accused Manu Sharma for the purposes of identification and it was with him till 06.05.1999. Thus the photo of accused Manu Sharma could not have been shown to any of the witnesses because the witnesses were either in Delhi or Kolkata not in Chandigarh. The only witness who has deposed with regard to the photograph having been shown is PW-6 wherein she has stated: "It could be that the photograph of Manu Sharma that had been shown to me on 01.05.1999 but since I was not in good frame of mind and rather disturbed for the whole week and therefore I do not remember whether the photograph of Manu Sharma was shown to me on 01.05.1999." Her testimony on this point is clearly wavering in view of the fact that immediately after the incident she fainted and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defence that since the photographs were shown to the witnesses this circumstance renders the whole evidence of identification in Court as inadmissible. For this, it was pointed out that photo identification or TIP before the Magistrate, are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count. It is further pointed out that photo identification is not hit by 162 Cr.P.C. as adverted to by the defense as the photographs have not been signed by the witnesses. In support of his argument the senior counsel for Manu Sharma relies on the judgment of Kartar Singh vs. Union of India (1994) 3 SCC 569 at page 711 wherein while dealing with Section 22 TADA the Court observed that photo TIP is bad in law. It is useful to mention that the said judgment has been distinguished in Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, (2000) 1 SCC 138 at page 143 where a Photo Identification has been held to be valid. The relevant extract of the said judgment is as follows:- "10. The next circumstance highlighted by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in Court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not born out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation. 114) Mr. Jethmalani has further argued on the proposition that mere dock identification is no identification in the eyes of law unless corroborated by previous TIP before the Magistrate. It has been further argued that in any case, even identification in Court is not enough and that there should be something more to hold the accused liable. In support of its arguments, he placed heavy reliance on the decision of this Court in the case of Hari Nath & Ors vs. State of U.P. (1988) 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exception, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lend enough assurance to the implication of the appellant." Malkhansing vs. State of M.P., (2003) 5 SCC 746 at 752 "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and again by this Court. It is pertinent to note that it is dock identification which is a substantive piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to the case of the Prosecution. In Mullagiri Vajram vs. State of A.P. 1993 Supp. (2) SCC 198, it was held that though the accused was seen by the witness in custody, any infirmity in TIP will not affect the outcome of the case, since the deposition of the witnesses in Court was reliable and could sustain a conviction. The photo identification and TIP are only aides in the investigation and does not form substantive evidence. The substantive evidence is the evidence in the court in oath. 118) The following decisions relied upon by the learned senior counsel for the appellant are clearly distinguishable from the present facts and thus are not applicable. N.J. Suraj vs. State (2004) 11 SCC 346 is distinguishable as there was no direct evidence on record against the accused and the prosecution's case was based on last seen evidence of accused with deceased and circumstantial evidence. The admission of witnesses in regard to showing of photographs prior to TIP was coupled with the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala & Anr. (1998) 4 SCC 605 is not applicable on the facts of the present case in so far as the issue of photo identification is concerned. The aforesaid judgment which is sought to be relied upon by the appellant in support to their contention on the issue that absence of TIP makes the dock identification weak evidence is not applicable on the facts of the present case. In the said decision the prosecution failed to hold TIP whereas in case at hand the accused person refused TIP. The newspaper reports duly exhibited by PW 101 in the present case nowhere show photographs of the accused persons. 125) Learned senior counsel for the appellant has argued that the statement of the accused recorded under Section 313 of the Criminal Procedure Code may be treated as evidence and by doing so this Court must take into consideration the stand taken by the appellant as regards his gun having been taken away by the police. In support of his argument, he relied upon the decision of this Court in the case of Hate Singh Bhagar Singh vs. State of Madhya Bharat, AIR 1953 SC 468. It has been further argued that the evidence of witnesses has not been put to the appellant thereby causing prejudice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no case property was handed over to him by PW 1 Harbhajan Singh. The accused had no case that the seal was ever tampered with by any person and that there was any case of mistaken identity as regards the sample and that the report of the chemical analyst was not of the same sample taken from the accused. Except making a general suggestion, the accused had completely admitted the evidence of PW 1 and PW 4 as regards the receipt of the sample, sealing of the same and sending it to the chemical analyst. This was pointed out only to show that the accused was not in any way prejudiced by the fact of not having been questioned by making a specific reference to the evidence of PW 1 and PW 4. As regards the questioning of the accused under Section 313 CrPC, the relevant provision is as follows: "313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court-- (a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary; (b) shall, after the witnesses for the prosecution have been exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically cross-examine these two witnesses in respect of the facts deposed by them. The learned Single Judge seriously erred in holding that the evidence of PW 1 and PW 4 could not have been used against the accused. The acquittal of the accused was improper as the evidence in this case clearly established that the accused was in possession of 5 kg of opium and thereby committed the offence under Section 18 of the NDPS Act." 127) Further it is not necessary that the entire prosecution evidence need to be put to the accused and answers elicited from him/even if an omission to bring to the attention of the accused an inculpatory material has occurred that ipso facto does not vitiate the proceedings, the accused has to show failure of justice as held in Swaran Singh (supra) and followed in Harender Nath Chakraborty vs. State of West Bengal, (2009) 2 SCC 758. 128) Hate Singh's case (supra) relied upon by the appellant is clearly distinguishable from the facts of the present case. In the said matter, the case of the prosecution was that two brothers Hate and Bheru fired one shot each at the deceased who received three wounds. It was opined that three wounds which could have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea not supported by any positive evidence led by the appellant-Manu Sharma is that his pistol i.e. the weapon of offence and the arms licence was recovered from his farm house on 30.04.1999, when in fact it is an established fact that the pistol could not be recovered and that the licence was surrendered on 06.05.1999 at the time of his arrest. It defies all logic and ordinary course of conduct to allege that the prosecution has withheld the pistol after seizing the same from his farmhouse. The fact that he has failed to produce the pistol, a presumption shall arise that if he has produced it, the testing of the same would have been to his prejudice. The burden thus shifts on him. (iii) Adverse inference since no report of theft or loss of Tata safari CH-01-W-6535 It is the defence of the accused-Manu Sharma that the Tata Safari was taken away on 30.04.1999 from Karnal. No report or complaint of the taking away of the vehicle or the theft of the vehicle was ever lodged by the appellant/accused and hence an adverse inference has to be drawn against the accused on this count as well. Further the conduct of the appellant/accused in not taking any steps despite opportunity in report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem 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 may find patent errors of law or fact or appreciation of evidence in the judgment which has been challenged before them. Despite this, what is of significance is that, the Courts should correct the error in judgment and not normally comment upon the judge. The possibility of taking a contrary view is part of the system. The judicial propriety and discipline demand that strictures or lacerating language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction. Judicial discipline requires that errors of judgments should be corrected by reasons of law and practice of passing comments against the lower courts needs to be deprecated in no uncertain terms. The individuals come and go but what actually stands forever is the institution. 134) In the present case the High Court in its judgment, on the one hand, explicitly referred to certain criticism/comments/remarks made by the trial Judge against the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsistently taken the view and discouraged observations or disparaging remarks by the higher Courts against the other Courts. In the case of A.M. Mathur vs. Pramod Kumar Gupta & Ors. (1990) 2 SCC 533 the Court stated the dictum that judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint , this humility of function should be constant theme of our judges. The quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is respect by the judiciary. The avoidance of even the appearance of bitterness, so important in a judge, required him not to cast aspersions on the professional conduct of the appellant and that too without an opportunity for him to meet such situation. The Court set aside the disparaging remarks that had been made by the High Court against the Advocate General. 137) In the case of a judicial officer approaching this Court for expunction of disparaging remarks on his conduct made by the High Court in the matter of `K' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignoring of directions should imply an arrogant attitude of the learned Judge and was in breach of the canons of judicial discipline and damage the judicial system. This Court has, in several cases, deprecated the practice on the part of judges in passing strictures and in making unsavoury, undeserving, disparaging or derogatory remarks against parties, witnesses as also subordinate officers. 140) It is also worthwhile to refer to the latest judgment of this Court in the case of Parkash Singh Teji vs. Northern India Goods Transport Company Private Limited and Another, (2009) 12 SCC 577. This Court, while considering the order of the High Court, declining to expunge the adverse remarks against the appellant/judicial officer has observed "judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army". Again it was pointed out, "A Judge tries to discharges his duties to the best of his capacity, however, sometimes is likely to err. It has to be noted that the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct 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 result in injustice." "I have never known any judges, no difference how austere of manner, who discharged their judicial duties in an atmosphere of pure, unadulterated reason. Alas! we are "all the common growth of the Mother Earth' - even those of us who wear the long robe". (emphasis supplied) Similar was the view of Thomas Reed Powell, who said: "Judges have preferences for social policies as you said and I. They form their judgments after the varying fashions in which you and I form ours. They have hands, organs, dimensions, senses, affections, passions. They are warmed by the same winter and summer and by the same ideas as a layman is". "In the present case, however, as we have already noted in the earlier part of the judgment, whether the order passed by the appellant was correct or not, but the remarks made, stricture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw rule can not be ignored. 146) Cardozo, one of the great Judges of American Supreme Court in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces. This Court has expressed a similar view in P.C. Sen In Re: AIR 1970 SC 1821 and Reliance Petrochemicals Ltd. v. Proprietors of Indian Express 1988 (4) SCC 592. 147) There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the Court. 148) Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, various articles in the print media had appeared even during the pendency of the matter before the High Court which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub judice. 153) Summary of our Conclusion: 1) The appellate Court has all the necessary powers to re-evaluate the evidence let in before the trial Court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by the trial Court. In the case on hand, the High Court by adhering to all the ingredients and by giving cogent and adequate reasons reversed the order of acquittal. 2) The presence of the accused at the scene of crime is proved through the ocular testimonies of PWs 1, 2, 6, 20, 23, 24 and 70, corroborated by Ex PW 12/D-I as well as 3 PCR calls Ex PW 11/A, B and C. 3) Phone calls made immediately after an incident to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
