IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 179 OF 2007

Sidhartha Vashisht @ Manu  Sharma                                       .... Appellant(s)

Versus

State (NCT of Delhi)              .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 157 OF 2007

AND

CRIMINAL APPEAL NO. 224 OF 2007

J U D G M E N T  

P. Sathasivam, J.

1) These statutory appeals are filed under Section 2(a)  

of the Supreme Court (Enlargement of Criminal Appellate  

Jurisdiction)  Act,  1970  and  under  Section  379  of  the  

Criminal Procedure Code against the final judgment and  1

order dated 18/20.12.2006 passed by the High Court of  

Delhi  in  Criminal  Appeal  No.  193 of  2006 whereby the  

High  Court  reversed  the  order  of  acquittal  dated  

21.02.2006  passed  by  the  Additional  Sessions  Judge,  

Delhi,  in Sessions Case No.  105 of  2001 and convicted  

Sidhartha Vashisht @ Manu Sharma (appellant in Crl. A.  

No. 179 of 2007)  under Section 302, 201/120B IPC and  

Section 27 of the Arms Act and sentenced him to undergo  

imprisonment for  life  for  the offence under Section 302  

IPC together with a fine of Rs.50,000/-  to be paid to the  

family of the victim and in default of payment of fine, to  

undergo  further  imprisonment  for  three  years  and  also  

sentenced him to undergo imprisonment for four years for  

the offence under Section 27 of the Arms Act with a fine of  

Rs.2000/- and in default to further undergo imprisonment  

for three months.  He was further sentenced to undergo  

imprisonment for four years for the offence under Section  

201/120B IPC together with a fine of Rs. 2,000 and, in  

default,  to  further  undergo  imprisonment  for  three  

2

months. The High Court also sentenced Amardeep Singh  

Gill  @ Tony Gill  (appellant in Crl.A.  No.  157/2007) and  

Vikas Yadav (appellant in Crl. A.No.224/2007) to undergo  

rigorous  imprisonment  for  four  years  and  a  fine  of  

Rs.2000/-  each  and,  in  default  of  payment  of  fine,  to  

further  undergo  imprisonment  for  three  months  under  

Section 201/120B IPC.

2) The case of the prosecution:

(a) On  night  intervening  29-30.04.1999,  a  ‘Thursday  

Party’ was going on at Qutub Colonnade at “Once upon a  

time” restaurant also called “Tamarind Café”.  The liquor  

was being served by the bartenders, namely, Jessica Lal  

(since deceased) and one Shyan Munshi (PW-2).  At about  

2.00 a.m., Sidhartha Vashisht @ Manu Sharma (appellant  

in Crl.  A. No. 179 of 2007) along with his friends came  

there and asked for two drinks.  The waiter did not serve  

him liquor as the party was over.  Jessica Lal and Malini  

Ramani (PW-6), who were also present there, tried to make  

him understand that the party was over and there was no  

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liquor available with them.  On refusal to serve liquor, the  

appellant took out a pistol and fired one shot at the roof  

and another at Jessica Lal which hit near her left eye as a  

result  of  which she fell  down.   Beena Ramani  (PW-20),  

who  was  present  there,  stopped  the  appellant  and  

questioned him as to why he had shot Jessica Lal  and  

demanded the weapon from him but he did not hand over  

the  pistol  and  fled  away.   Jessica  Lal  was  rushed  to  

Ashlok  Hospital  from  where  she  was  shifted  to  Apollo  

Hospital.   On  30.04.1999,  in  the  early  morning  hours,  

Jessica Lal was declared brought dead at Apollo Hospital.  

(b)  On the night intervening 29/30.04.1999 at 2.20 a.m.,  

DD Entry No. 41 A (Ex. PW-13/A) was recorded at Police  

Station Mehrauli which disclosed a shooting incident at H-

5/6 Qutub Colonnade.  A copy of the said DD entry was  

handed over to SI Sharad Kumar (PW-78) who along with  

Ct. Meenu Mathew left for the spot.  Near about the same  

time, copy of the said DD entry was also given to SI Sunil  

Kumar (PW-100) who along with Ct. Subhash also left for  

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the spot.   On reaching the spot,  PW-78 found that the  

injured had been removed to Ashlok Hospital and the floor  

of the Restaurant was found to be wet.  SI Sunil Kumar  

(PW-100) then left SI Sharad Kumar (PW-78) at the spot to  

guard the same and proceeded to Ashlok Hospital along  

with  Ct.  Subhash.   The  SHO  Police  Station  Mehrauli,  

Inspector S.K. Sharma (PW-101) along with his team also  

left the Police Station vide DD Entry No. 43 A and reached  

the spot and deputed one Home Guard Shravan Kumar  

(PW 30) at the entrance of ‘Qutub Colonnade’ to guard the  

vehicles.   On  reaching  Ashlok  Hospital,  PW-100  met  

Beena  Ramani  (PW-20),   who  is  the  owner  of  the  

Restaurant,  and  enquired  about  the  incident  but  she  

asked him to talk to Shyan Munshi (PW-2) saying that he  

was  inside  and  he  knew  everything.   PW-100  then  

recorded  the  statement  of  PW-2  and  made  an  

endorsement on the same for the registration of the case  

under Section 307 IPC and handed over it to Ct. Subhash  

to  be  carried to  the  police  station,  Mehrauli.   At  about  

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4.00 a.m.,  FIR No.  287/99 was registered at  the  police  

station, Mehrauli.  In the meantime, Jessica Lal had been  

shifted to Apollo Hospital.   When SI Sunil  Kumar came  

back to the spot along with PW-2, PW 30 informed them  

about the lifting of one black Tata Safari from the spot.  

On inspection of the site, two empty cartridges were seized  

and, in the meantime, a supplementary statement of PW-2  

was also recorded by PW-100.  At about 5.45 a.m., PW-

100 received an information by Ct.  Satyavan intimating  

him about  the  death  of  Jessica  Lal  at  Apollo  Hospital.  

Charge under Section 302 IPC/201/120 B IPC and under  

Section 27 of the Arms Act has been framed against the  

accused  Sidhartha  Vashisht  @  Manu  Sharma,  charge  

under  Section  201/120B  IPC  has  been  framed  against  

accused Vikas Yadav,  Amardeep Singh Gill  @ Tony Gill  

and Alok Khanna, charge under Section 212 IPC has been  

framed against Harvinder Chopra, Raja Chopra, Vikas Gill  

@ Ruby Gill and Yograj Singh and charge under Section  

201/212 IPC against Shyam Sunder Sharma.  At about  

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7.00 a.m. PW 100 recorded the statement of the Manager  

(PW-47), Waiter (PW-46) and Beena Ramani (PW-20)– the  

owner of the Restaurant.  

(c)   The post mortem was conducted at about 11.30 a.m.  

at the All India Institute of Medical Sciences on the same  

day  i.e.  30.04.1999.   In  the  meantime,  at  about  11.00  

a.m.,  SI  Pankaj  Malik  (PW-85)  had  been  sent  to  

Chandigarh to secure the black Tata Safari and to arrest  

the appellant.    PW-100 recorded the statements of  the  

witnesses.  On 30.04.1999 at about 4.15 p.m., an FIR was  

registered against Malini  Ramani (PW-6),  Beena Ramani  

(PW-20)  and  George  Mailhot  (PW-24)  under  Sections  

61/68/1/14  of  the  Punjab  Excise  Act.   At  about  8.30  

p.m., PW-100 handed over the investigation to SHO S.K.  

Sharma  (PW-101).  On  the  night  intervening  

30.04.1999/01.05.1999, at about 2 a.m., the police raided  

the  farm  house  of  the  appellant  and  on  search  being  

conducted  seized  a  photograph  of  the  appellant.   On  

02.05.1999, a list of invited guests was prepared by PW-

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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  

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was also moved.  Thereafter, the appellant was remanded  

to five days police custody till 12.05.1999 and thereafter  

on 12.05.1999 extended till 17.05.1999 on the application  

of the I.O., but on 15.05.1999, the appellant’s remand was  

preponed from 17.05.1999 to 15.05.1999.  On 16.05.99,  

the  appellant  was  sent  to  judicial  custody.   On  

30.05.1999, the accused-Vikas Yadav was also arrested.  

After  the  completion of  investigation,  the  other  accused  

persons were also arrested.   

(d)  On  03.08.1999,  charge  sheet  was  filed  against  ten  

accused persons.  On 23.11.2000, the Additional Sessions  

Judge  framed  charges  against  the  appellant/Manu  

Sharma under Sections 302,  201 read with 120 B IPC  

and Section 27 of the Arms Act, accused Amardeep Singh  

Gill was charged under Section 120 read with Section 201  

IPC, accused Vikas Yadav was charged under Section 120  

read with 201 IPC as also Section 201 read with 34 IPC,  

accused Harvinder Chopra, Vikas Gill,  Yograj Singh and  

Raja  Chopra  under  Section  212  IPC  and  accused  Alok  

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Khanna, Shyam Sunder Sharma and Amit Jhingan were  

discharged of  all  the  offences.   In  2000/2001,  Revision  

Petition No. 596 of 2000 was preferred by the prosecution  

before the High Court of Delhi praying for the framing of  

charge against the accused persons and setting aside the  

discharge  of  Alok  Khanna,  Shyam Sunder  Sharma and  

Amit Jhingan.  Revision Petitions were also preferred by  

the accused persons against the framing of  the charges  

against them.  The High Court disposed of all the revision  

petitions filed by the accused persons by a common order  

dated  13.03.2001.   On  12.04.2001,  charges  as  per  the  

orders of  the High Court  were  framed and some of  the  

charges  as  framed  earlier  were  maintained.   Charges  

under Section 120B/201 IPC were framed against accused  

Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok  

Khanna  and  charges  under  Sections  201  and  212  IPC  

were  framed  against  accused  Shyam  Sunder  Sharma.  

Against the rest of the accused, the charges as framed on  

23.11.2000  by  the  trial  Court  were  maintained.   Trial  

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began in  May,  2001 against  nine  accused.   In  all,  101  

witnesses  were  examined  by  the  prosecution  and  two  

court witnesses were also examined.   

(e)   On  12.12.2001,  the  case  registered  against  Malini  

Ramani,  Beena  Ramani  and  George  Mailhot  under  the  

Punjab Excise Act was disposed of with a direction to pay  

a fine of  Rs.200/- each.   On 28.01.2002, the appellant  

was released on interim bail for a period of six weeks by  

the  order  of  the  High  Court  dated  25.01.2002  with  a  

direction to  surrender after  the expiry  of  the same.   In  

compliance  with  the  conditions  of  interim  bail,  the  

appellant surrendered on 11.3.2002 but again sought for  

and granted interim bail for a period of ten weeks starting  

from 20.03.2002.  During the period from March 2002 to  

February  2006,  the  appellant  was  enlarged  on  bail  on  

different occasions by various orders of the High Court.  

On  one  occasion,  against  the  dismissal  of  the  bail  

application  by  the  High  Court  on  11.11.2003,  the  

appellant  filed a special  leave petition before  this  Court  

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which was dismissed by this Court on 02.12.2003.   On  

21.02.2006,  after  trial,  the  Additional  Sessions  Judge  

acquitted  all  the  nine  accused  including  the  appellant-

Manu Sharma.   

(f)  Challenging the acquittal,  the prosecution filed an  

appeal before the High Court being Crl. Appeal No. 193 of  

2006.  On 20.12.2006, the High Court vide the impugned  

order,  convicted  and  sentenced  the  appellants,  as  

mentioned  in  paragraphs  above.   Challenging  the  said  

order  of  the  High  Court,  all  the  three  appellants  filed  

above mentioned separate appeals before this Court.  All  

the appeals were heard together and are being disposed of  

by this common judgment.

3)  Heard Mr. Ram Jethmalani, learned senior counsel for  

Sidhartha Vashisht @ Manu Sharma, appellant in Crl. A.  

No.  179  of  2007,  Mr.  Nitin  Sangra,  learned  counsel  

for Amardeep Singh Gill @ Tony Gill,  appellant in Crl.A.  

No.  157/2007,  Mr.  Ranbir  Yadav,  learned  counsel  for  

Vikas Yadav, appellant in Crl. A.No.224/2007, Mr. Gopal  

12

Subramanium,  learned  Solicitor  General  of  India  for  

Respondent-State in all the three appeals and Mrs. Mamta  

Dhody  Kalra,  intervenor,  who  appeared  in  person  and  

pleaded for acquittal of the appellant-Manu Sharma.   

Contentions of the appellants/accused:

4)  Mr. Ram Jethmalani, after taking us through all the  

oral  and  documentary  evidence  relied  on  by  the  

prosecution as well as the defence, the order of the Trial  

Judge  acquitting  all  the  appellants  from  the  charges  

leveled against them and the impugned order of the High  

Court reversing the order of acquittal raised the following  

contentions:-

a)  The appellant (Sidhartha Vashisht @ Manu Sharma) has  

been denied his fundamental  right to free and fair  trial  

which is guaranteed under Article 21 of the Constitution  

of India.

b)   On  the  very  first  day  of  investigation  i.e.  on  

30.04.1999, an FIR was filed against Malini Ramani PW-6,  

Beena Ramani PW-20 and George Mailhot PW-24 under  

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the Punjab Excise Act in order to control these witnesses  

and to pressurise them to support the prosecution case.  

After their deposition, the Excise case was pre-poned and  

disposed of by imposing a fine of paltry amount.   

c)  Malini Ramani PW-6, Beena Ramani PW-20 and George  

Mailhot PW-24 were frequently shown the photograph of  

the appellant and he was paraded before them.

d)  The finding of the High Court that Sidhartha Vashisht @  

Manu Sharma took out his pistol and first fired at the ceiling  

and then at Jessica Lal is based on no evidence.   

e)   Three  Ballistic  Experts  have  concurred  that  empty  

cartridges have been fired from two different weapons.  Their  

Report support the statement-in-chief of Shyan Munshi PW-2.  

There is no evidence on record that both the shots were fired  

from one weapon.   

f)   The  High  Court  has  wrongly  placed  reliance  upon  the  

testimony of Deepak Bhojwani PW-1, even though, he was not  

present in the party and he was planted by the prosecution.  

The evidence of three family members Malini Ramani PW-6,  

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Beena  Ramani  PW-20  and  George  Mailhot  PW-24  is  

inadmissible in law.

g)  The prosecution never claimed Beena Ramani PW-20  

as an eye-witness, however,  the High Court erroneously  

held her as eye-witness to the occurrence.

h)  High Court failed to consider the evidence of Madan  

Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47.

i)  The High Court committed an error in relying upon the  

testimony  of  George  Mailhot  PW-24  to  corroborate  the  

evidence of Beena Ramani PW-20.

j)  The First Information Report recorded on the statement  

of  Shyan  Munshi  PW-2  is  not  an  FIR  but  a  signed  

statement.  The High Court wrongly discarded his (PW-2)  

ocular version.  However,  the Trial  Court assigned good  

reasons for accepting his evidence.   

k)  The High Court’s observation on Ballistic Experts from  

CFSL is erroneous.

l)  The High Court committed an error in disbelieving P.S.  

Manocha PW-95.

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m)  There is no acceptable evidence/material to connect  

Tata Safari to the alleged occurrence.  

n)  Shravan Kumar PW-30 is a planted witness, and there  

is no need for him to accompany PW-1 to the spot when  

he was assigned other official work.  

o)   A  rough site  plan which  was prepared  in  the  early  

hours  of  30.04.1999  (Ex.  PW 100/2)  clearly  shows  the  

absence of Beena Ramani PW-20 at the alleged place of  

occurrence,  if  she was an eye-witness,  this  would have  

been done.

p)   The  Public  Prosecutor  failed  to  adhere  the  basic  

principles in conducting criminal case.   

q)  The High Court committed a grave error by reversing  

the well considered order of acquittal by the Trial Court  

and on conjunctures the High Court interfered with the  

acquittal and imposed sentence which is not permissible  

under law.   

5)   The  other  two  learned  counsel  submitted  that  the  

prosecution  failed  to  establish  the  charge  in  respect  of  

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Amardeep Singh Gill and Vikas Yadav under Section 201  

read with 120B of the IPC.   

6)   The intervenor supported the case of  the appellant-

Manu Sharma and prayed for his acquittal.

Submissions on behalf of the State:

7)  On the other hand, Mr. Gopal Subramanium, learned  

Solicitor  General,  after  taking  us  through  the  entire  

materials, submitted that the Trial Judge has committed  

an error in acquitting all the accused and the High Court  

being an Appellate Court is fully justified in re-analysing  

the  evidence  and  convicting  all  the  three  accused-

appellants  and  awarding  appropriate  sentence.   After  

pointing out oral,  documentary evidence and other legal  

principles, he submitted that the conviction and sentence  

awarded  by  the  High  Court  are  acceptable  and  no  

interference  is  called  for  by  this  Court,  and prayed  for  

dismissal of all the three appeals.    

8)  We have carefully considered all the materials placed  

and the rival contentions.   

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9)  Points for consideration in these appeals are:-

a)   Whether  the  prosecution  has  established  its  case  

beyond reasonable doubt against all the three accused?

b)  Whether the trial Court is justified in acquitting all the  

accused in respect of charges leveled against them?

c)   Whether  the  impugned  order  of  the  High  Court  

imposing punishment when the trial  Court acquitted all  

the accused in respect of the charges leveled against them  

is sustainable?

10)  It is not in dispute that the following charges were  

framed against the appellants:-

S.No. Name of Accused Accused         Charges Framed 1. Sidhartha Vashist @  

Manu Sharma 1 302 IPC, 27 Arms Act, 201  

r/w 120B IPC 2. Vikas Yadav 2 201 r/w 120B IPC 3. Amardeep Singh Gill 3 201 r/w 120B IPC

Powers and Duties of the Appellate Court while dealing  with the order of acquittal:

11)   Before  analyzing the prosecution case,  the defence  

plea and the arguments of the respective counsel, let us  

find out the scope of the Appellate Court in reversing the  

order  of  acquittal  by  the  Trial  Court.   Mr.  Ram  

Jethmalani,  learned  senior  counsel  for  the  appellant- 18

Manu Sharma, by drawing our attention to the principles  

laid down by this Court in Madan Lal vs. State of J&K,  

(1997)  7  SCC 677 submitted that  in  an appeal  against  

acquittal, it is incumbent on the Appellate Court to give  

adequate reasons for reversal.  By citing  Ghurey Lal vs.  

State of Uttar Pradesh (2008) 10 SCC 450, he further  

contended that the High Court  could not have reversed  

the  judgment  of  the  Trial  Court  inasmuch  as  the  view  

taken by the Trial Court was plausible view based on the  

evidence on record, hence the finding of the Trial Court  

could not have been overturned.

12) Mr. Gopal  Subramanium, learned Solicitor General,  

by  relying  on  the  decision  of  this  Court  in  Chandra  

Mohan  Tiwari  vs.  State  of  M.P.,  (1992)  2  SCC  105  

submitted  that  where  the  High  Court’s  conclusion  was  

based on evaluation of evidence which was not erroneous  

or perverse and was based on an independent analysis of  

evidence  which  fully  establishes  the  case  of  the  

prosecution as against the trial Court’s conclusion, there  

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is no reason much less the compelling reason to disagree  

with  the  finding  of  guilt  by  the  High  Court.   He  also  

pressed  into  service  another  decision  of  this  Court  in  

Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484.

13) The following principles have to be kept in mind by the  

Appellate Court while dealing with appeals,  particularly,  

against the order of acquittal:

(i) There is no limitation on the part of the Appellate  

Court  to  review  the  evidence  upon  which  the  

order of acquittal is found.  

(ii)  The  Appellate  Court  in  an  appeal  against  

acquittal can review the entire evidence and come  

to its own conclusions.   

(iii) The  Appellate  Court  can  also  review  the  Trial  

Court’s conclusion with respect to both facts and  

law.  

(iv) While  dealing  with  the  appeal  preferred  by  the  

State,  it  is  the  duty  of  the  Appellate  Court  to  

marshal  the  entire  evidence  on  record  and  by  

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giving cogent and adequate reasons set aside the  

judgment of acquittal.   

(v) An order of acquittal is to be interfered only when  

there are “compelling and substantial reasons” for  

doing so.  If the order is “clearly unreasonable”, it  

is a compelling reason for interference.   

(vi) While  sitting  in  judgment  over  an acquittal  the  

Appellate  Court  is  first  required  to  seek  an  

answer  to  the  question  whether  finding  of  the  

Trial  Court  are  palpably  wrong,  manifestly,  

erroneous or demonstrably unsustainable.  If the  

Appellate  Court  answers  the  above  question  in  

the  negative  the  order  of  acquittal  is  not  to  be  

disturbed.   Conversely,  if  the  Appellate  Court  

holds, for reasons to be recorded, that the order  

of acquittal cannot at all be sustained in view of  

any of the above infirmities, it can reappraise the  

evidence to arrive at its own conclusion.   

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(vii) When the Trial Court has ignored the evidence or  

misread  the  material  evidence  or  has  ignored  

material documents like dying declaration/report  

of  Ballistic  Experts  etc.,  the  Appellate  Court  is  

competent  to  reverse  the  decision  of  the  Trial  

Court depending on the materials placed.   

In the light of the above principles, let us examine the  

impugned judgment of the High Court with reference to  

the materials placed by the prosecution and the defence.  

14)   At the outset,  Mr.  Ram Jethmalani,  learned senior  

counsel  highlighted  the  role  of  public  prosecutor  in  

conducting  prosecution  for  which  he  relied  on  the  

procedures  being  followed  in  United  Kingdom and  also  

cited certain passages from the books of foreign authors.  

In addition to the same, he highlighted how the appellant-

Manu Sharma was prejudiced by the wild allegations that  

were carried by Media, both print and electronic.  Since we  

intend to concentrate on the merits of the case, we discuss  

22

and give our reasoning at the appropriate place or at the  

end of our order.  

15)  Presence of accused Manu Sharma & others at the  

scene of offence.

There is no dispute that the incidence occurred in a  

place  known as  “Qutub Colonnade”.   The  open area  of  

“Qutub  Colonnade”  is  known  as  “Tamarind  Court”  

whereas  the  closed  area  is  called  “Tamarind  Cafe”.   In  

order to establish the presence of the accused  Sidhartha  

Vashisht  @ Manu Sharma and  others,  prosecution  has  

examined Deepak Bhojwani PW-1,  Shyan Munshi PW-2,  

Malini  Ramani  PW-6,  Beena  Ramani  PW-20,  George  

Mailhot PW-24, Rouble Dungley PW-23 and Rohit Bal PW-

70.   Apart  from  these  ocular  witnesses,  prosecution  

pressed  into  service  Ex.  PW12/D-1  which  is  a  wireless  

message received at Police Station, Mehrauli.

a)  Deepak Bhojwani PW-1

He  is  a  resident  of  K-5/B,  Ground  Floor,  Lajpat  

Nagar, New Delhi.  According to him, in the year 1999, he  

23

had attended the place known as “Qutub Colonnade” as  

Thursday Party four times on each Thursday and the last  

occasion when he attended this Thursday Party was on  

29.04.1999.  There used to be a gathering of friends at  

this Party and all varieties of liquor used to be served in  

this Party besides snacks etc.  He explained that coupons  

used to be issued for purchase of any kind of liquor.  Such  

coupons were used to be purchased in advance from the  

cash counter.  On 29.04.1999, he attended the Thursday  

Party alone at about 11 o’clock in the night.  

In chief examination, in categorical terms, he deposed:

“I had purchased four coupons of Rs. 100/- each on  that day.  Jessica Lal (since deceased) and Shyan Munshi  (complainant)  were serving liquor on that night at the bar  counter.  I had known Jessica lal for about five or six years  whereas Shyan was introduced to me by Jessica Lal about a  week before 29.04.1999 i.e. on the previous Thursday Party”.  

Apart from the above assertion, he also informed the  

Court that Jessica Lal (since deceased) was working with  

Oberoi  Hotel  and  was  also  a  model  by  profession.   He  

described the location of “Tamarind Court” and “Tamarind  

Café”.  The bar counter was located in “Tamarind Court”  

open area between the two doors of the “Tamarind Café”,  24

but  since  it  was  summer  nobody  was  using  the  bar  

counter  giving  preference  to  the  bar  counter  located  

outside.  He also stated that Jessica Lal was wearing blue  

denim shorts and white half sleeved shirt on that night.  

On the same night, at about 1 o’clock (midnight), he went  

to the bar counter to have his third drink.  He informed  

the Court that on the suggestion of Jessica Lal that the  

liquor was getting over he handed over all the remaining  

coupons  and  purchased  two  pegs  of  whisky.   While  

holding  both  the  glasses  of  whisky,  he  came  in  the  

company of his friends.   

The following statement of PW-1 proves the presence  

of accused Manu Sharma and his friends–

“I was moving around in the party with two glasses of  whisky, when I came across a person having fair complexion  who was giving smile to me.  I also reciprocated.  Then he  came to me.  We both introduced each other.  He gave me  his name as Manu Sharma.  He said as to how I was holding  two glasses of whisky in my hands whereas he was unable to  get  even one.   Manu Sharma came into  my contact  after  about 10-15 minutes of my purchasing two pegs of whisky.  He requested me to arrange liquor for him on which I told  him  that  liquor  was  over  and  the  bar  was  closed  and  therefore, I would not be able to arrange liquor for him.  We  were  already  introduced to  each other  and were  about  to  exchange visiting cards, when one tall sikh gentleman came  from behind of Manu Sharma and told him something and  took  him  away  towards  Tamarind  Café.   Before  leaving,  

25

Manu Sharma told me that he would come back and meet  me again”.   

PW-1  correctly  identified  the  photographs  of  both  the  

accused persons one Manu Sharma and the other Tony  

Gill.  He also informed that the accused Tony Gill came  

along  with  Manu  Sharma  and  2/3  of  his  friends.   In  

respect of the question whether it would be possible for  

him to identify those 2/3 persons who were accompanying  

accused Tony Gill,  PW-1 has pointed out  Alok Khanna,  

accused-Manu Sharma and Tony Gill.  We shall separately  

discuss  about  the  Test  Identification  Parade  and  the  

validity  of  desk  identification  during  time  in  the  latter  

paragraphs.  

About the incident, he narrated that  

“After  about  15/20 minutes  i.e.  about  1:45 a.m.,  I  heard  noise from Tamarind  Café and I heard somebody saying  Jessica was shot.  At that time I was present in Tamarind  Court and I was talking to my friend Arash Aggarwal.  After  hearing the shouts about Jessica having been shot, I rushed  towards  Tamarind Café.   I  could not  go  inside  where  the  incident had taken place but I peeped and saw Jessica lying  on the floor.  At that time, there were about 70/80 persons  gathered all around i.e. near the gate of Tamarind Café i.e.  the gate of Tamarind Café.”   

He further informed the Court –  “……discussion was going on as to who had done this  

and it was also being discussed that the culprit was wearing  

26

blue denim jeans and white shirt and was fair and was little  short in height then I assessed that he was the same person  who had come to me to arrange drinks for him.  I had told  the police in Apollo Hospital that it was Manu Sharma who  was with the similar description as was discussed amongst  friends on which police had told me that they would call me.”

A  close  scrutiny  of  PW-1’s  evidence  clearly  shows  that  

Jessica Lal was friendly with him having known him for 5-

6 years.  He also went to the house of parents of Jessica  

Lal  twice  i.e.  on  30th April  and  1st May  1999  to  pay  

condolence.   Further,  in  categorical  terms,  he  asserted  

and identified the presence of Manu Sharma at the scene  

of offence.  Since he had contact with a person having fair  

complexion with smiling face/Manu Sharma, in the Court  

he  correctly  identified  both  Manu  Sharma  and  the  tall  

Sikh  gentleman  as  Tony  Gill.   He  also  identified  other  

persons who accompanied Manu Sharma and Tony Gill.  

It is also clear from his evidence that at around 1.45 a.m.,  

he  heard  a  noise  emerging  from Tamarind  Café  to  the  

effect that Jessica Lal had been shot.  It is also clear that  

on hearing that Jessica Lal had been shot, he ran towards  

Tamarind Café though according to him he could not go  

27

inside yet peeped and saw Jessica Lal lying on the floor.  

Since the High Court has accepted his evidence which was  

not acceptable by the Trial Court, we analyzed his entire  

statement with great care.  Mr. Ram Jethmalani, learned  

senior  counsel  has pointed out  that  since PW-1’s  name  

does not figure in the list of invitees prepared by George  

Mailhot  PW-23 and Sabrina Lal  PW-73 did not mention  

the name of  Deepak Bhojwani  PW-1 at  Ashlok Hospital  

and of the fact that the statement of PW-1 was recorded  

on  14.05.1999  submitted  that,  first  of  all,  he  is  an  

interested  witness  and  his  testimony  is  not  acceptable.  

On seeing his entire evidence, there is no reason to either  

suspect his evidence or reject the same as unacceptable.  

On  the  other  hand,  his  evidence  supported  by  other  

witnesses clearly proves the presence of accused Nos. 1-4  

at the place of occurrence.  He asserted the presence of  

Jessica Lal, Shyan Munshi and the claim of whisky by a  

fair complexion man who exchanged niceties with him and  

introduced him as Manu Sharma.   We do not  find any  

28

valid reason to hold that he is a planted witness, though  

he was not an eye-witness to the actual shooting incident  

but his own statement proves that immediately on hearing  

the noise he peeped and noticed Jessica Lal lying on the  

floor of Tamarind Café.  To this extent, the evidence of PW-

1 is acceptable and the High Court has rightly believed  

and relied on his version.

b)  Shyan Munshi PW-2

In the year 1999, he was studying in Indian Institute  

of Planning and Management at New Delhi doing his MBA  

Course.  At that time, he was residing at 15/16 H. Hauz  

Khas,  New Delhi.   He  informed the  Court  that  he  was  

acquainted  to  Malini  Ramani  through which  he  started  

knowing about Beena Ramani who is the mother of Malini  

Ramani.  He had visited Tamarind Café on the night of  

29th April,  1999.   It  was  Thursday  Night.   He  was  

attending the Party at that night.  Alcohol and food were  

being served there on paying for coupons.  In categorical  

terms he informed the Court that— “I was attending the party there on that night.  Alcohol  

and food was being sold there on coupons. I had met Jessica  Lal on that night in the party.  I had acquaintance with her  from before.  The place where the party was going on was  known as  Qutub  Colonnade  Tamarind  Court.   There  was  miniature  bar  counter  outside  in  the  open  space  where  liquor  was  being  served.   Besides  Jessica  Lal  and  Malini  there were other few persons who were helping in serving  

29

liquor.  On that night, I did go inside the Tamarind Café.  It  might be 2 o’clock at that time, I mean 2 a.m.  There were  about 6-7 persons inside the café at that time. ”

“I  went  inside  the  café  primarily  with  a  view to  eat  something  as  I  was  feeling  hungry  and  also  nothing  was  being served outside.  I found that Jessica was inside.  At  that  time,  no  other  lady  was  there.   I  went  behind  the  counter to get something to eat.  I  managed to get pastry  lying in the freeze and when I was taking it,  a gentleman  with  white  tea-shirt  came there.   He  asked the  waiter  to  serve him two drinks.  The waiter did not pay attention to  that gentleman and became busy in cleaning up.  Jessica  was also there on the other side of the counter and she told  the  gentleman that  the  party  was over  and there  was no  alcohol to be served.  At that time, that gentleman took out a  pistol from the dub of the pant and fired a shot in the air.  There  was  another  gentleman  on  the  other  side  of  the  counter, who fired a shot at Jessica Lal and she fell down.  That gentleman was also wearing light colored clothes.”

Since  the  present  statement  about  “another  gentleman”  

who fired a shot at Jessica Lal and she fell down was not  

the one earlier made to the Police, after getting permission  

from  the  Court,  the  public  prosecutor  cross-examined  

him.  He stated—

“It  is  correct  that  Beena  Ramani  and  other  lifted  Jessica from the spot and carried her to the Hospital Ashlok.  I went there later.  In the Ashlok Hospital, police came there  and  contacted  me  and  recorded  my  statement.”  “…..I  reached the Hospital at about 3:30 a.m. and my statement  was taken at about 3:45 a.m. or 4 a.m.”

He also admitted that he was in Delhi for about a year or  

so and able to understand spoken Hindi.  He is aware of  

Beena Ramani as the proprietor of Qutub Colonnade.   

30

The  analysis  of  the  evidence  of  PW-2  shows  that  

though he turned hostile but his evidence shows that he  

had visited Tamarind Café on the night of 29.04.1999.  He  

also  mentioned  the  presence  of  Manu  Sharma.   His  

evidence  further  shows  that  immediately  after  the  shot  

Beena Ramani and others were carrying Jessica Lal to the  

Ashlok Hospital.  In other words, his evidence proves the  

presence of accused-Manu Sharma at the scene of offence.  

To this extent,  the prosecution relied upon his evidence  

and this was rightly accepted by the High Court.  Though,  

Mr. Ram Jethmalani submitted that High Court ought to  

have accepted his entire evidence in toto, considering his  

earlier statement to the police and his evidence before the  

Court, we are satisfied that the High Court is justified in  

holding that even if his testimony is discarded, the case of  

the prosecution hardly gets affected.  As observed earlier  

his evidence amply proves the presence of accused at the  

scene of occurrence at the time and date as pleaded by the  

prosecution.

31

c)  Malini Ramani PW-6

She is the daughter of Beena Ramani PW-20.  She is  

a  fashion  designer  by  profession.   Her  mother  Beena  

Ramani  owns  a  property  near  Qutub  Minar  known  as  

Qutub Colonnade.  She explained to the Court that in the  

year 1999 they used to have parties in Qutub Colonnade  

and  liquor  used  to  be  consumed in  these  parties.   On  

29.04.1999,  there was a party  at  Qutub Colonnade.   It  

was Thursday.  It was a farewell party for her stepfather  

namely, George Mailhot PW-24, who was going abroad for  

five months.  She was at the Qutub Colonnade on that  

evening.   Jessica  Lal  was  also  there.   Beena  Ramani  

PW-20  and  Shyan  Munshi  PW-2,  were  also  there.  

According  to  her,  the  party  on  that  night  was  over  by  

midnight.  Approximately  at  about  1.45  a.m.,  she  went  

with her friend Sanjay Mehtani to the restaurant to look  

for something to eat.  At that time, she had a drink in her  

hand.   She found that  Jessica  Lal,  Shyan Munshi,  her  

32

electrician  and  couple  of  waiters  were  there  in  the  

restaurant.  She further deposed—

“We were standing there when couple of guys went in.  They were about numbering four, may be five.  I am not very  sure  about  it.   One  of  them asked  me  could  I  have  two  whiskys.  He was wearing jean and white t-shirt.  He was in  his mid twenties.  He was having fair complexion.  His built  was  on  the  plump side.   I  do  not  know if  he  had  asked  whisky from anybody else prior to asking from me.  When he  asked two whiskys from me, I  showed my inability saying  sorry, Bar was closed.  Then he kept asking me and Jessica  for drinks, but we kept on saying that the bar was closed  and whisky could not be served.”

“Then he said that he had cash to pay for drink.  I said  it  did not matter.   I  could not give sip even for thousand  rupees it being not available.  Then he said O.K. could I have  sip of you for thousand rupees.  Then at that point of time, I  just left  the room because I was irritated about the whole  incident.  Sanjay Mehtani and myself walked out together.  When I walked out, I crossed my mother in courtyards as I  was walking out.  Again said, I crossed my mother, she was  walking towards the restaurant.  I went to the passage way  where the shops were located.  It was on the other side of the  courtyard  and  I  was  standing  next  to  speaker  (amplifier).  After about a minute and a half/two minutes, Shyan Munshi  came  running  to  me  and  Sanjay  Mehtani  and  he  was  screaming that  Jessica had been shot.   I  just  passed out  after hearing about it and fainted.  I can identify that person,  who had asked drink from me and who was wearing jean  and  t-shirt.   Witness  has  pointed  out  towards  accused  Siddhartha Vashisht @ Manu Sharma and said that he just  look like him.  I had seen this accused in the police station  on 8th May.  I had gone there as I was arrested in a case  under Excise Act.”

“Question:- Are you certain that the person to whom  you had just identified was the same person who had  asked drinks from you and was wearing jean and T- shirt? Answer:- I am sure he is the same person.”

33

About  PW-6’s  testimony,  Mr.  Ram Jethmalani  criticized  

the question put by the public prosecutor which according  

to him is not permissible.  It is relevant to point out that  

before considering her answer that  “I am sure he is the   

same  person”,  we  have  to  see  her  statement  in  the  

previous  paragraph.   She  identified  Manu Sharma who  

had asked drinks from her who was wearing Jean and T-

shirt.   It  is  also  relevant  to  note  that  she  pointed  out  

towards the accused Manu Sharma and said that “he just  

looked like him.”  As rightly pointed by learned Solicitor  

General,  the  above  mentioned  question  by  the  public  

prosecutor  is  in  addition  to  the  earlier  ones  relating  to  

identity of the person who was wearing jean and T-shirt  

and who asked for drinks.  It is relevant to note that PW-6  

is not an ordinary person and it  is  not the case of  the  

defence  that  she  is  an  illiterate,  unable  to  understand  

what she said to the earlier questions.  We have already  

noted that  she is  a  fashion designer  by profession.   In  

other  words,  she  is  highly  qualified  and  it  is  not  her  

34

grievance that she was unable to understand her earlier  

answers.   In  such  circumstances,  we  are  unable  to  

appreciate the objection of Mr. Ram Jethmalani.  On the  

other hand, it is clear from the evidence of PW-6 that the  

accused Manu Sharma was very well present at the scene  

of offence and she correctly identified him.  Further,  as  

rightly observed by the High court, though she was not an  

eye-witness,  she is  certainly a witness identifying Manu  

Sharma  along  with  4  or  5  persons  present  at  the  

Tamarind  Court  who  asked  her  for  whisky  and  later  

misbehaved with her.  We agree with the observation and  

the ultimate conclusion about PW-6 reached by the High  

Court.   

d)  Beena Ramani PW-20

She is the wife of George Mailhot PW-24.  She is a Fashion  

Designer.  She purchased the property near Qutub Minar  

at  H-5/6  Mehrauli  Road,  New  Delhi  in  the  year  1995.  

This property is being used as a Shopping Arcade and a  

Restaurant.   The Shopping Arcade is  known as “Qutub  

35

Colonnade”.  The name of the Restaurant was “Tamarind  

Court Café”.  She had a proper license for eating house in  

the aforesaid complex.  The license for the restaurant was  

in the name and style “Once Upon A Time”.  She admitted  

that the license of eating house was not valid beyond one  

year.   She has two children namely Malini  Ramani and  

Geetanjali.   In  1999,  her  daughter  Malini  Ramani  was  

assisting her in running the restaurant.  On Thursdays,  

there used to be special private parties where guests could  

come  by  invitation.   Alcohol  was  never  served  in  the  

Restaurant  but  were  served  only  in  the  courtyard  on  

Thursday Parties.  She further deposed—

“I knew Jessica Lal, Shyan Munshi.  We had a proper  staff  to  run  the  Restaurant  and  occasionally  any  of  our  friends  could  reach  out  and  help  the  Thursdays  Parties.  Jessica Lal and Shyan Munshi were friends of my daughter  Malini and were helping her on that night”

“The date was 29th of April, 1999.  On that night, apart  from  the  normal  Thursday  Party,  I  had  also  organized  a  special  farewell  party for  my husband who was leaving in  two hours time for a World Trip.  The party was over by 1 or  1:30  a.m.   This  Thursday  Party  and  special  party  was  organized jointly and was being held in the courtyard and on  the roof top.  After the party was over, I was anxious to clean  up the place and relieve the waiters etc. so that they may  take up duty next morning properly.  There were few guests  left in the courtyard and I also spotted some guests in the  Restaurant  where  nobody  was  supposed to  be.   I  walked  towards  the  Restaurant.   When  I  was  walking,  towards  restaurant  I  ran into  Malini.   I  mounted the steps of  the  

36

restaurant.  I saw a few people standing next to the counter  and I heard a shot.  A moment later, I heard another shot.  Jessica Lal was standing with people at the far end and I  saw her falling down.  There was a door to my right.  It could  be swung open and Shyan Munshi came out with another  person who was either ahead of him or behind him.  Shyan  Munshi said that Jessica Lal had been shot.  I told Shyan  Munshi  to  call  the  Police  or  doctor  or  ambulance  and  I  stopped  the  man  accompanying  them.   There  was  commotion.  All the people who were with Jessica Lal earlier,  started coming out.  The companion of Shyan was wearing  white T-shirt.  He was chubby and fair and I asked him as to  who he was.  “Why are you here and why he shot Jessica  Lal.  I also asked him to give me his gun.  I thought he might  be having a gun.”  He said that it was not him.  I asked him  again and he kept quiet and shaking his hand that it was  not  him.   As  all  others  were  leaving,  therefore,  the  companion of Shyan also shoved me aside and went out.  I  ran after him.  Again said behind him.  All the way to the  front gate of the main building.  He was a few steps ahead of  me and I  could not  catch him.  In the meantime,   I  was  shouting instructions to the guests to call Hospital or to take  Jessica Lal.  I reached the gate my husband was standing  there and I told him that this was the man who had shot  Jessica Lal and to see in which car he gets into.”

“That person who was told to be seen by my husband  was with some friends at the time of occurrence inside the  café.  I think that I can identify the person whom I had tried  to stop and talked to.  After taking sometime and examining  the accused over and over again,  the witness has pointed  towards accused Sidhartha Vashisht @ Manu Sharma and  when asked to touch him, she touched him.”   

She also identified the other persons who were with  

Manu Sharma, though she has not mentioned the name of  

persons  but  on  the  instructions  of  the  Court  she  has  

touched those persons named by the Court.  She further  

informed—

37

“About a week later, at the Police Station, the name of  which I do not remember, I saw that person.  I saw Manu  Sharma”.

If we analyze her evidence along with the sketch/map of  

the  occurrence,  when  she  mounted  steps  of  the  

restaurant, she heard a shot, a moment later, she heard  

another  shot.   It  is  also  relevant  to  note  that  she  

mentioned that Jessica Lal was standing with the people  

at the far end and she saw her falling down.  She also  

informed that Shyan Munshi PW-2 said that Jessica Lal  

had been shot.  It is relevant to point out that she was  

shouting to the guests to call the Doctor or to take Jessica  

Lal  for  treatment,  she  reached  the  gate  where  her  

husband was standing and she told him “that this was the  

man who had shot Jessica Lal and to see in which car he  

gets into”.  If we read her entire evidence she refers only  

Manu Sharma.  She also correctly identified the presence  

of other accused persons, namely, Amardeep Singh Gill,  

Alok Khanna and Vikas Yadav.   Her evidence remained  

unchallenged,  though  the  Trial  Court  discarded  her  

38

evidence as she was not an eye-witness to the occurrence  

but  accepted  that  she  is  a  witness  to  the  presence  of  

Manu Sharma,  Amardeep Singh Gill,  Alok  Khanna and  

Vikas Yadav at the Qutub Colonnade.  We have already  

quoted her  own statement  namely  “I  saw a few people  

standing next to the counter and I heard a shot, a moment  

later I heard another shot.  Jessica Lal was standing with   

people at the far end and I saw her falling down.” It is also  

relevant that  on noticing Shyan Munshi  she asked him  

“Why are you here and why he shot Jessica Lal?”.  Her  

statement  clearly  proves  the  prosecution  case  that  she  

had herself seen Manu Sharma shooting Jessica Lal.  As  

rightly  observed  by  the  High  Court,  if  the  evidence  of  

Beena Ramani is analyzed in depth, it is clear that she not  

only asserted the presence of Manu Sharma at the scene  

of occurrence and heard two shots one by one but also  

asked a pertinent question to Shyan Munshi that why he  

(Manu Sharma) shot Jessica Lal.  Whether she has to be  

treated as an eye-witness to the occurrence or not is to be  

39

discussed at later  point of  time by analyzing her  entire  

evidence.  However, for the limited purpose of proving the  

presence of accused at the scene of offence, her evidence  

fully supports the case of the prosecution.   

e)  George Mailhot PW-24

He is a Canadian citizen and according to him, he  

has been residing in India since February, 1992.  Beena  

Ramani PW-20 is his wife.  Her business premises were at  

H-5/6  Mehrauli  Road,  New  Delhi.   This  complex  was  

popularly known as “Qutub Colonnade”.  It had a number  

of shops and a restaurant.  The licence of eating place was  

in the name of Beena Ramani.  He was also involved in the  

said  business  for  several  years  before  the  date  of  

occurrence.   Several  parties  were  arranged  and  last  

Thursday Party was held on April 29, 1999.  On that day,  

he was leaving for World Trip for a few months, partly that  

was the occasion for that party.  At the instance of the  

police,  he prepared a list  of  guests who were invited in  

that party and gave the list to the police which was signed  

40

by him on 22.05.1999.  It is Ex. PW24/A.  According to  

him, time of occurrence might be around 2 AM.  At that  

time he was standing in the courtyard near a large tree  

which is in the middle of  the courtyard.   This must be  

about 20 ft.  away from the door of the restaurant.   He  

further deposed:

“I was facing opposite side of the entrance door of the  restaurant and then I heard two pop shots like balloon.  I  turned towards the restaurant door from where I had heard  the sound and within a few seconds Shyan Munshi  came  running and said to me someone shot Jessica.  I immediately  went  to  the  restaurant.   When I  reached  the  door  of  the  restaurant  I  saw some people  to  my right  to  my left  and  ahead of me.  Ms. Beena was moving at a place which may  be described as ahead of me towards the left side.  Beena  was  addressing  a  young  man  who  was  moving,  someone  whom  I  had  not  seen  before.   This  person  was  moving  around and Ms. Beena Ramani was following him and saying  that you are the one give me the gun.  I could see everyone  present there watching that person who was being addressed  to by Ms. Beena.  The young man said that why everyone  was looking at him that he did not do anything.  Then I saw  Jessica lying on the floor with her  head towards my feet,  almost near my feet.  Jessica was looking quite in pain and  not  moving and there  was no sign of  blood.   Then I  saw  another man standing at the door.  At that time, about 2/3  people  were  ahead  of  me  and  are  by  my  side  in  the  restaurant.  I was focusing on the danger point.  The young  man  whom  I  saw  at  the  door  was  a  beard  person  i.e.  Sardarji.   He  was  the  only  one  present  there  who  was  keeping/maintaining calm.  Thereafter, I went to the gate of  Qutub Colony leaving others in the restaurant, in search of  Police man.  I ran out and went into the street there was no  one there.   While  I  was in the street  a  number of  people  came up to  the gate  of  Colonnade walking.   There  was a  bunch of them that is a first person behind him a second  person  and  then  behind  them  many  persons  they  were  walking very rapidly.  The first person was the one whom I  had seen in the restaurant and whom Beena had accosted  

41

and asking for the gun.  Right behind him or directly behind  him was Beena.  I focused only on first person or Beena I did  not notice the others.”

“I believe I can identify that person who had come out  first and was being followed by Beena.  The witness touched  Siddhartha Vashist as the person who was being followed by  Beena.”   

His evidence makes it clear that at the relevant time on  

hearing  the  shot,  Shyan  Munshi  PW-2  came  running  

shouting that someone shot Jessica.  He reached the door  

of the restaurant.  It is also clear that Beena Ramani PW-

20 was moving at a place ahead of him towards the left  

side.   This  witness  subsequently  stated  that  Beena  

Ramani  was addressing  a  young man who was moving  

with  someone.   He  also  identified  the  person  who  had  

come out first followed by Beena and he touched Manu  

Sharma as the person who was being followed by Beena.  

As  rightly  pointed  out  by  learned  Solicitor  General,  his  

evidence also proves the  presence of  the accused-Manu  

Sharma at the scene of offence.

42

f) Rouble Dungley PW-23:

In  his  evidence,  he  admitted  that  he  had  told  the  

police that he saw Beena Ramani going after a boy.  In his  

deposition, he mentioned that:

“It is correct that I had told the police that I saw Beena  Ramani going after a boy.  But I do not remember whether I  had told the police that the said boy was a fat boy.  It  is  correct that I had seen Beena Ramani going there Vol. I had  seen her from a distance.  It is correct that I had told the  police that Beena Ramani was saying “Stop that Man”… “I  heard that Jessica had been shot.”

g) Rohit Bal PW-70: He deposed that:

“Beena Ramani was actually running in the courtyard  area shouting catch that man, catch that man, stop him or  something like that pointing towards the exit and running  behind  someone.   I  saw the  person being  pointed  out  by  Beena Ramani but I did not know him.  Again said I did not  see that person, being pointed out by Beena Ramani from  face.”

The above statement makes it clear that after the shooting  

incident  Beena  Ramani  was  running  behind  a  man  

shouting “catch that man”

From  the  evidence  of  above  mentioned  witnesses,  

namely,  PWs 1,  2,  6,  20,  23,  24 and 70 which are  all  

admissible  in  evidence  clearly  show  the  presence  of  

accused Sidhartha Vashisht @ Manu Sharma at the scene  

of offence.  This evidence of the ocular witnesses is duly  43

corroborated  by  Ex  PW  12/D-I,  the  wireless  message  

received at PS Mehrauli.  

In addition to the evidence of the above mentioned  

witnesses, who were present at the party, the presence of  

appellants  is  also  proved  by  other  evidence,  namely,  3  

PCR calls Ex PW 11/A, B and C which were received.  The  

evidence  of  PWs  11,  12  and  13  clearly  proves  that  

immediate and prompt action was taken.  

h) HC Devi Singh  PW 83 --- In-charge of PCR Van:

He  reached  the  scene  of  occurrence  within  two  

minutes at around 02.17 a.m. and reported back at 02.35  

a.m.  It is relevant to refer the message received that is Ex  

PW 12/D-1 which states:

“From E-43 (PCR Van), A party hosted by Malini and  Beena was going on in Qutub Colonnade Hotel situated at  the road which leads towards Mehrauli where a person had  demanded whiskey from Jessica  Lal  but  she  (Jessica  Lal)  said that the restaurant had already been closed.  At this the  aforesaid person had fired shot at Jessica Lal, which had hit  her on her chest.  Jessica Lal has been admitted in Ashlok  Hospital, Safdarjung Enclave and the person who had fired  shot has fled from there.”

“One person has fled after firing (at someone) 35 years,  stout body 5’  4” R/F fat,  T-Shirt  of white colour.   All  the  persons will search him”.

44

Ex.  PW  12/D-1,  a  contemporaneous  document,  clearly  

corroborates the testimony of ocular witnesses which we  

have already mentioned in the earlier paragraphs.  From  

the  evidence  adduced,  it  is  clear  that  the  appellants-

accused Nos. 1-3 were present at the scene of occurrence.  

Admittedly without setting up a plea of alibi to show their  

presence elsewhere, they have flatly denied their presence.  

It is the stand of Mr. Ram Jethmalani, learned senior  

counsel for the accused that the police deliberately framed  

Manu Sharma as an accused and made out a false story  

against him concealing the actual offender who is a tall  

Sikh gentleman and on this  made  up theory  witnesses  

from the same family who were vulnerable were made to  

depose in favour of the prosecution.  In an answer to the  

said  question,  it  was  pointed  out  that  apart  from  the  

testimony of HC Devi Singh PW-82, PCR in-charge, read  

with  Ex.  PW-12/D-1  clearly  prove  the  case  of  the  

prosecution.  It is relevant that the said witness reached  

around  02.17  a.m.,  on  a  message  from  PCR  to  PS  

45

Mehrauli takes around 10 minutes as from local PCR it  

goes  to  headquarter  from  where  it  is  transmitted  to  

concerned district  net  which further  transmits  it  to  the  

local police station.  In this way, around 02.25 a.m., even  

before  the local  police  had arrived at  the spot  HC Devi  

Singh PW-83 had sent the version available at the spot.  

The prosecution placed specific reliance on the same.  In  

the  absence  of  rebuttal  evidence,  there  is  no  reason to  

reject the evidence of PW-83 as well as Ex. PW-12/D-1.  In  

those  circumstances,  the  entire  premise  of  the  defence  

argument that it was not a person in white T-shirt, stocky  

and fair, who shot at Jessica Lal over a row over the drink  

and fled away from the spot and this was a planted and  

concocted  story  of  the  prosecution  to  rope  in  Manu  

Sharma and make escape good of the tall Sikh gentleman  

is wholly erroneous and without any basis.  

Evaluation  of  evidence  throwing light  on the  actual  incident:      

16) It is the stand of the defence that the testimony of  

Madan Kumar PW 46 and Jatinder Raj PW-47 belies the  

46

fact that Beena Ramani PW-20 had seen actual shooting  

as  the  witness  says  that  they  both  entered  together.  

Madan  Kumar  PW  46  worked  in  Qutub  Colonnade  in  

April, 1999 as a waiter.  In his evidence, he informed the  

Court that:  

“the day of occurrence was Thursday.  The occurrence took  place at about 1.30 or 1.45 AM.   At that time, I saw some  people  rushing  in  and  some  people  rushing  out  of  the  restaurant and they were shouting “GOLI LAG GAI”, “Jessica  Lal KO GOLI LAG GAI”.   

I knew Jessica Lal before the incident, Jatinder Raj was the  Manager of the restaurant.  I was coming downstairs, and on  hearing the noise, I went to restaurant.  I saw Jessica Lal,  lying on the floor.  Some guests, Beena Ramani and Jatinder  Raj were present there.  Two – three other workers were also  present, but I do not remember their names.  Beena Ramani  made  a  telephone  call.   Thereafter,  Shiv  Dass  brought  a  sheet of cloth.  Jatinder Raj, Beena Ramani and I wrapped  the said Jessica Lal in the bed-sheet.  We took/carried her to  an Esteem Car, parked outside.  Beena Ramani, Jatinder Raj  and I also sat down in the Car.  There was a driver in the  car.  We left and reached Ashlok Hospital.  Jessica Lal was  removed on a stature for medical treatment.  I returned to  the restaurant at about 3/3.15 a.m. Police met me there in  the Restaurant.”  

“Jatinder  Raj  and Beena Ramani were already,  near  Jessica Lal, when I reached there.  I did not see Mr. George  there, at that time.  George had left at about 12.30 or 12.45  a.m. from there.  When I saw Jessica Lal lying on the floor, I  also saw that she had some injury on the left forehead, from  which blood was coming out.  There was also blood on the  floor, where Jessica Lal was lying.”  

17) Jitender Raj PW 47 was working as a Manager-cum-

Supervisor.   He  used  to  check  the  supplies,  cash  and  

47

sanitation.   A  system  of  “Thursday  Parties”  had  been  

started in Qutub Colonnade.  The occurrence took place  

on such 3rd or 4th party on 29.04.1999.  It was a Thursday.  

Generally food was served but on Thursdays liquor was  

also being served.  The supply of articles through coupons  

was made in the open space.  The party, on 29.04.1999  

was over at about 12.30 a.m. and he told the waiters to  

clean up the place.  He was counting the cash and tallying  

the same.  He narrated further:

“The time might be 2 AM.  I  heard the firing of two  shots, and the noise of firing had come from the side of café.  I  opened the gate of  my office, which I had closed, before  counting the cash etc.  I saw from that gate of my office that  people were coming in and going out.  At that time, I saw  Beena Ramani on the stairs of café.  I rushed towards her  and we both went inside the café.  We saw, Jessica Lal lying  on  the  floor,  near  the  counter.   Shiv  Dass,  Madan  Lal,  Surender  and  Wiplub,  members  of  the  staff  and  one-two  guests also reached the spot.  There was scratched on the  forehead of Jessica Lal.   Shiv Dass PW-3, brought a bed- sheet.   We  wrapped Jessical  Lal  in  that  bed-sheet.   Shiv  Dass  is  an electrician  in Qutub Colonnade.   We removed  Jessica  Lal  in  a  car  to  the  Ashlok  Hospital.   Mrs.  Beena  Ramani,  Madan Kumar,  waiter,  myself  and driver  were in  that car, apart from Jessica Lal.”  

“I came out of my office, immediately, after hearing the  shots of firing.  I  saw, ‘AFTRA TAFARI’ at the gate of café  after  coming out  of  my office.   At  that  time,  I  saw Beena  Ramani on the steps, to which I have made reference.  By  the time Beena Ramani reached the gate of café.  I reached  there, by running.”  

48

18) The analysis  of  evidence of  PWs 46 and 47 shows  

that  when PW-47 heard the noise of the shots he was in  

the  office  counting  cash and after  hearing  the  noise  of  

firing he opened the gate of his office which he had closed  

at the time of counting the cash.  He saw from the gate of  

his office that people were coming in and going out.  At  

that time, he saw Beena Ramani on the steps of the café,  

he rushed towards her and they both went inside the café.  

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  

49

standing  with  people  at  the  far  end  and  she  saw  her  

falling.  It is pertinent to note that as per the scaled site  

plan,  the  point  at  which  Beena  Ramani  PW-20  was  

standing was only four feet from the point at which the  

shot was fired at Jessica Lal.  Therefore, it can never be  

alleged that there was no way in which the said witness  

could  have  had  any  doubt  as  to  the  identity  of  Manu  

Sharma.  Thereafter, she accosted Manu Sharma till the  

gate of Qutub Colonnade where she told George Mailhot  

PW-24 that this was the man who had shot Jessica Lal  

and that he should see in which car he i.e. Manu Sharma  

gets into and after that Beena Ramani PW-20 came back  

to the spot.  It  is when she came back to the café this  

witness PW-47 joined PW-20 entering the café, thus the  

testimony of this witness does not negate the fact that PW-

20 witnessed the incident.  It is relevant to mention the  

very fact that      PW-20 followed the appellant is a clear  

indication of the fact that she was more than certain that  

he  was  the  culprit  responsible  for  the  crime,  and,  

50

therefore, she did not chase anybody else as the person  

who was having the gun.  It has to be borne in mind that  

Beena Ramani  had no enmity  with  the  appellant-Manu  

Sharma and also the whole theory of planting of witnesses  

at the instance of the police is false since the accused has  

not  led any defence evidence or  brought  on record any  

evidence to suggest that the investigation was motivated  

by mala fide.   

19) It  was  argued  by  the  defence,  since  PW-47  in  his  

cross examination has stated that Beena Ramani PW-20  

stated to him as to what had happened and who had done  

it, an inference has to be drawn that she did not witness  

the incident.  As rightly pointed out, the above statement  

does not lead to the inference that Beena Ramani PW-20  

did  not  witness  the  incident  rather  it  could  further  

reinforce  what  she  had  witnessed.  Even  otherwise,  

admittedly, thus, Beena Ramani was available she was not  

recalled to confront her with the testimony of PW-47.  In  

51

those circumstances, the defence cannot take advantage  

out of a portion of statement of PW-47.   

20) It is relevant to mention that Madan Kumar PW-46  

also stated that when the occurrence took place he was  

present on the stairs leading to terrace and that time he  

saw people rushing in and some people rushing out of the  

restaurant who were also shouting “Goli Lag Gai, Jessica  

Lal Ko Goli Lag Gai”.  He came downstairs after hearing  

the noise and went to the restaurant, thus it is evident  

that this witness did not hear the shots of the fire but only  

realized about the occurrence after people were rushing in  

and rushing out shouting.  A perusal of the testimony of  

PW-46  reveals  that  when  he  came  down,  PW-20  was  

already there.  Thus PW-46 is not in a position to say as to  

what PW-20 witnessed.  It may be further pointed out that  

the stairs leading to the terrace are not on the café but on  

the main building of Qutub Colonnade which houses the  

shops beyond the verandah and Tamarind Court.  Hence,  

the testimony of PW-46 cannot negate the evidence of PW-

52

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  

53

161 Cr.P.C. was recorded on 30.04.1999 in the morning  

itself.  It was pointed out by the prosecution that she was  

neither  contradicted  nor  confronted  with  her  statement  

under  Section  161  Cr.P.C.  as  she  firmly  stood  to  her  

statement in the witness box.  

22) Mr. Ram Jethmalani, further submitted that due to  

the  pressure  by  the  prosecution  for  registering  a  case  

under the Punjab Excise Act against Malini Ramani PW-6,  

Beena  Ramani  PW-20  and  George  Mailhot  PW-24,  

virtually,  they  were  pressurized  to  yield  to  the  case  of  

prosecution.   While  stoutly  denying  the  said  allegation,  

Mr. Gopal Subramanium, submitted that the registration  

of  case under the Punjab Excise Act has nothing to do  

with their evidence in the case of death of Jessica Lal.  He  

also submitted that ultimately they were fined, the said  

action cannot be construed as a threat to them or keeping  

the sword hanging for taking action either under Section  

201 IPC or the Punjab Excise Act.  It was pointed out by  

the learned senior counsel  for  the appellant that Malini  

54

Ramani  PW-6  during  her  statement  admitted  that  her  

mother Beena Ramani was accused of having removed the  

blood from the spot.  PW-6 further admitted that during  

the first five days of May, 1999, the interrogation of three  

of them “PWs 6, 20 and 24” was very intense.  She also  

stated  that  for  quite  long  hours  they  were  kept  in  the  

Police  Station  and  they  were  used  to  be  subjected  to  

prolonged interrogation in the Jessica Lal’s case as well as  

in other Excise Act case.  It is true that SHO S.K. Sharma  

PW 101,  admitted  that  the  FIR in  the  excise  case  was  

lodged against the above said three persons.  It was also  

highlighted that all the three were arrested in the excise  

case on 08.05.1999 which was pending in the Court  of  

Metropolitan  Magistrate,  New  Delhi.   In  that  case,  

application  on  behalf  of  Beena  Ramani  and  George  

Mailhot was moved for seeking permission to go abroad for  

treatment of Beena Ramani alleging that she is a cancer  

patient. Mr. Jethmalani argued that notice of which was  

given to the State and instead of filing reply by the State  

55

counsel  PW-101,  who  appeared  in  person,  vehemently  

opposed  on  the  ground  that  their  presence  may  be  

required during the investigation of FIR No. 287 of 1999  

for  filing  additional  charge-sheet  including  the  issue  of  

cleaning of blood.  Ultimately, the Metropolitan Magistrate  

rejected their application for permission and they were not  

allowed  to  go  abroad  because  of  the  reason  that  their  

presence may be required for filing additional charge-sheet  

in  FIR  No.  287  of  1999.   By  pointing  out  the  above  

information, it was argued by the learned senior counsel  

that the investigation agency had been pressurizing these  

witnesses  to  toe  their  line  in  their  deposition  in  the  

present case, but PW-20 was not made as accused under  

Section 201 in the present case because they had agreed  

to toe the line of the prosecution but this sword was kept  

hanging on them to ensure that the entire family members  

i.e.  PWs  6,  20  and  24  continue  to  toe  the  line  of  

prosecution.  All the allegations have been stoutly denied  

by the prosecution.  It was submitted by the prosecution  

56

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  café  and  had  

witnessed  the  entire  incident  including  conversations  

which  occurred  prior  to  the  incident.   It  was  further  

pointed out that the statement of Beena Ramani to this  

effect which she also deposed before the trial Court was  

recorded on the same date i.e. on 30.04.1999 that too in  

the morning itself.  In her statement, before the Court PW-

20 Beena Ramani  had clearly  stated  “at the hospital,  

the police met me.  The report about the incident was  

lodged in my presence by Shyan Munshi.”  In view of  

the same it was submitted that because PW-20 told PW-

100 to ask PW-2, it does not mean that she did not know  

anything, since her statement was recorded on the same  

57

day soon after the statement of Shyan Munshi to which  

statement she stuck even in her testimony before the trial  

Court.  

23) It has been vehemently argued that PW-20 is not an  

eye witness since both Investigating Officers i.e. PWs-100  

and  101  admitted  the  same.   It  was  submitted  by  the  

State that this argument runs counter to the well settled  

proposition of  law that  a  witness  cannot  be  discredited  

without the said piece of the testimony having been put to  

her.  The accused had a statutory option available by way  

of Section 311 of the Code to call PW-20 for the purposes  

of further examination.  This argument of the defence also  

runs counter to their own argument used to discredit the  

investigation that PW-6 was placed in the  ‘rukka’ by the  

Police for the purposes of being shown as an eye-witness.  

The said part of the testimony of PWs-100 and 101 are at  

best  in  the  nature  of  opinion  evidence  which  are  

inadmissible  pieces  of  evidence  and  for  the  aforesaid  

58

reasons cannot  wipe  out  the  unchallenged testimony of  

PW-20, which is the case of the prosecution.  

24) Further, the appellant-Manu Sharma has also been  

clearly identified by Malini Ramani PW-6 as the person in  

the White T Shirt who had asked for whisky and thereafter  

on her refusal to oblige, he misbehaved with her in the  

most vulgar fashion.   

25) It  was  argued  that  PW-6  could  not  have  seen  

anything since she was on the other side of the Colonnade  

and that the prosecution in fact planted her into Ex.PW-

2/A  i.e.  the  ‘rukka’ prepared  at  the  instance  of  Shyan  

Munshi as an eye witness.  It has been reiterated that all  

the three key witnesses are planted witnesses who have  

deposed under pressure of false implication.  It has been  

further  argued  that  the  deposition  of  PW-6  that  she  

entered the bar for a drink is improbable as she knew that  

the drinks were over.  It is contended by the defence that  

PW-6 did not say that she heard the gun shots since she  

was inebriated, which further supports the fact that she  

59

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.   

60

26) As regards the argument that Malini  Ramani PW-6  

was shown as an eye-witness to the incident of shooting in  

the ‘rukka’, a perusal of the same reveals that at no point  

of time Shyan Munshi, PW-2, stated either in the positive  

or the negative that PW-6 was or was not there when the  

shots were fired.  In any case, as rightly pointed out on  

the side of the State that the alleged prosecution planted  

PW-6 as  an eye-witness  goes  contrary  to  all  reasoning,  

since on 30.04.1999 at the time of recording the ‘rukka’,  

none of  the  witnesses  had disclosed  the  identity  of  the  

appellant – Manu Sharma, therefore, to   allege that the  

Police had planted the witness is wholly incorrect.

27) As regards the argument that PW-6 was under the  

influence of  alcohol,  therefore,  could not have identified  

the  appellant  –  Manu Sharma,  is  also  wrong since  she  

clearly  stated  in  her  testimony,  particularly,  in  cross-

examination, that she had consumed only one drink.   

28) The argument that deposition of PW-6 as regards the  

presence  of  other  accused,  does  not  find  corroboration  

61

from the  testimony  of  PW-1  is  incorrect  since  the  said  

witness  categorically  mentioned  the  presence  of  other  

accused.   The  grievance  that  the  identification  of  the  

appellant-Manu Sharma was based on a leading question  

is  also  wrong  since  even  before  the  alleged  leading  

question was put to the witness, the witness, PW-6 had  

positively  identified  the  appellant  –  Manu  Sharma  by  

specifically pointing out and stating that he just looks like  

him.  It was explained by the State that the appellant was  

not  personally  known to the said witness or  her  family  

and, therefore, the manner of identification in the present  

case wherein the present witness by pointing out towards  

him stated that he just looks like the man she saw at the  

party  is  most  conclusive  and  reliable.   Further  the  

argument  of  her  having  been  shown  the  photo  her  

identification is of little value since her statement that she  

saw the photographs prior to 05.05.1999 is most wavering  

and unclear.  In the same manner, she has deposed that  

photos  were  also  shown  to  Beena  Ramani  PW-20  and  

62

George Mailhot PW-24 is of little value since neither PW-

20 nor PW-24 stated that they had been shown the photos  

of  the  accused  in  spite  of  having  all  the  opportunities  

failed to confront the said witnesses with the said part of  

PW-6’s testimony.  Based on the statement of Rohit Bal  

PW-70, that he saw her screaming out, the defence has  

sought to  discredit  PW-6’s,  statement.   It  is  relevant  to  

note that it is the case of PW-6 that she came to know  

when  she  was  in  the  courtyard,  Shyan  Munshi  came  

running towards her and Sanjay Mehtani, screaming that  

Jessica Lal had been shot.  Thereafter, PW-6 fainted, thus,  

in  the  process,  if  PW-70  saw  her  screaming  in  the  

courtyard, it cannot be said that there is any contradiction  

in the statement of PW-6 and PW-70.  

29) It was pointed out by the defence that the firing was  

not over a drink, the act to refuse supply of liquor was not  

the motive to murder Jessica.  After perusing the evidence  

of  PW-6,  it  is  clear  that  after  refusal  of  the  drink,  the  

appellant-Manu Sharma misbehaved in the most  vulgar  

63

fashion.  The testimony of PW-23 further corroborates the  

testimony of PW-6.   As rightly pointed out by the State  

that  it  was a case  where  the  deceased Jessica  Lal  was  

murdered for a row over the drink.  

30) It was also pointed out on the side of the appellant-

Manu Sharma, that the evidence of Malini Ramani, PW-6  

and  George  Mailhot,  PW-24  does  not  corroborate  the  

statement of Beena Ramani, PW-20.  In this regard, it is  

relevant to note that these three witnesses have deposed  

on  three  different  situations  in  the  chain  of  

circumstances.  The evidence of these three witnesses, if  

read in whole in conjunction and in harmony with each  

other, would show the chain of circumstances of evidence  

leading to only one inference.  It was highlighted by the  

defence that PWs 46 & 47 stated that they did not see PW-

24 after the party was over at 12.30 a.m.  By saying so, it  

was contended that PW-24 was never there at the time of  

the alleged incident.   It  was also contended that PW-24  

reached the Mehrauli police station at around 2.25 a.m.  

64

whereas if  the  story of  the  prosecution is  true  then he  

should have reached around 2.10 a.m.  It is relevant to  

mention  that  PW-24’s  statement  was  recorded  on  the  

same day i.e.  30.04.99.   The presence of  PW-24 at  the  

time of incident is also supported by the testimony of ASI  

Kartar Singh PW-13, who deposed that a person bearing  

the  description  of  PW-24  came to  the  Police  Station  to  

report about the firing incident,  which fact corroborates  

the testimony of PW-24 that he went to the Police Station.  

It was urged by Mr. Ram Jethmalani that Rohit Bal PW-70  

was  a  witness  who  have  been  examined  first  as  his  

telephone number appears on Ex. PW-12/D1 which are  

the PCR messages.  It was clarified that in the PCR only  

the mobile number was recorded.  Further on receipt of  

information, police officers immediately reached the place  

of occurrence and came to know that the deceased had  

been taken to Ashlok Hospital.  SI Sunil Kumar, PW-100  

reached Ashlok Hospital and made enquiries from PW-20  

who directed him to take the statement of Shyan Munshi  

65

as he was present at the bar counter and conversant with  

every thing.  The prosecution has explained that in view of  

the  statements  of  the  eye-witnesses  having  been  taken  

immediately at 03.40 a.m. on 30.04.99 itself on the basis  

of  which  FIR  was  registered  and  number  of  other  

investigation  processes  like  post-mortem,  site  plan  etc.  

and  immediately  thereafter  search  for  Tata  Safari,  

ownership of the alleged vehicle, search for Manu Sharma  

in the case being made, as such even if there is delay in  

recording of statements of other witnesses, it  cannot be  

fatal  to  the  prosecution  case.   The  said  claim  of  the  

prosecution cannot be rejected as unreasonable.  

31) In the earlier  part  of  our judgment,  we have noted  

that PW-20 has categorically stated that she heard the two  

shots,  saw  the  people  inside  and  Jessica  falling  down,  

which shows that she had witnessed the entire incident as  

is  evident  from  the  relevant  portion  of  her  testimony  

extracted  in  paragraphs  supra.    Malini  Ramani  in  

categorical terms informed the Court about Manu Sharma  

66

asking about  the  whisky,  his  misbehaviour  immediately  

before the shooting and also identified the same person in  

white T-shirt asking for the whisky and misbehaving with  

her  as  Manu  Sharma.   PW-6  further  corroborates  the  

testimony  of  PW-20  and  part  testimony  of  PW-2  with  

regard to the presence of the accused Manu Sharma.  The  

scrutiny of the entire evidence of PW-6 clearly shows that  

her evidence is not only relevant but also admissible.   

32)  Coming to the cause of death, Dr. R.K. Sharma PW-9,  

who  conducted  post-mortem  on  the  body  of  deceased  

Jessica Lal has stated that on 30.04.1999 at about 11:20  

a.m.  7  sheets  of  papers  i.e.  inquest  papers,  request  of  

post-mortem, inquest report, copy of FIR, brief facts of the  

case, were submitted to him along with the dead body.  He  

informed  that  the  cause  of  death  to  the  best  of  his  

knowledge  and  belief  was  head  injury  due  to  firearm,  

injury was  ante-mortem in nature.  He also deposed that  

Injury no. 3 was sufficient to cause death in the ordinary  

course of nature.

67

33)  Coming to the evidentiary value of PW-2, on behalf of  

the  defence,  it  was  stated  that  PW-2  is  not  a  reliable  

witness in view of the fact that according to him he made  

his  statement  in  English,  however,  SI  Sunil  Kumar  

recorded it in Hindi.  In the absence of any suggestion to  

the contrary, as rightly pointed out by the counsel for the  

State that it must be presumed that PW-100 recorded the  

statement correctly.  It is also relevant to mention that in  

his  statement  as  a  witness  he  said  “I  can  understand  

spoken Hindi.  Hindi was my third language when I was   

studying  in  the  seventh  standard.   I  was  never  good in  

Hindi.”   It  is  also  pointed  out  that  Shyan  Munshi  has  

acted in a number of Hindi films.  Even if a prosecution  

witness is  challenged in cross-examination,  that part  of  

his testimony which is corroborated by other witnesses or  

from other  evidence  can clearly  be  relied  upon to  base  

conviction.   Further  it  was  pointed  out  that  PW-2  was  

under the influence of accused Manu Sharma as he was  

accompanied by Mr. Ashok Bansal who had appeared as  

68

proxy counsel for him i.e. accused Manu Sharma in his  

bail  application dated 06.03.2000.  Thus, reliance could  

have  been placed  only  on  that  aspect  of  the  testimony  

which is corroborated by other evidence on record.

34)  With regard to the allegation that statements of PW-6,  

PW-20 and PW-24 were taken under pressure as a case  

under Excise Act was lodged against them and when they  

were to be examined, an application for pre-ponement of  

the case was moved where they pleaded guilty and fine of  

Rs. 200 was imposed on each.  For this, it was pointed out  

that there is nothing on record to suggest that PW-6 was  

threatened or humiliated by the Police or that she would  

be  implicated  in  a  case  of  destroying  the  evidence  i.e.  

removal of blood from the spot.  In fact, PW-20 has denied  

the suggestion that she is deposing falsely at the instance  

of Police.  In the same way, PW-24 has also denied the  

suggestion that a deal was struck between him and the  

investigation agency to make a false statement, thereafter,  

the Excise case could be hatched up.   It  is  relevant  to  

69

point out that the case under Punjab Excise Act which  

was registered as FIR No. 288/99 on 30.04.1999 has not  

been withdrawn by the prosecution against the accused.  

On the other hand, the fact  remained that the accused  

had pleaded guilty.  As rightly pointed out by the State  

that  on  the  quantum  of  sentence  for  an  offence,  the  

prosecution  has  no  role  and  it  is  the  Court  concerned  

which  can impose  appropriate  sentence  considering  the  

evidence  and  the  role  of  the  accused.   It  was  also  

highlighted that the charge was only under Section 68 of  

the  Punjab  Excise  Act  to  which  all  the  three  accused,  

namely,  Malini  Ramani,  Beena  Ramani  and  George  

Mailhot pleaded guilty.  The maximum penalty/fine under  

Section 68 is Rs. 200, therefore, the maximum fine which  

could have been imposed on the accused is Rs. 200.  In  

those  circumstances,  the  allegation  that  these  three  

witnesses were kept under pressure is not acceptable.   

70

What constitutes the First Information Report

35)   Let  us  consider  whether  the  three  telephonic  

messages received by the Police at around 2:25 a.m. on  

30.04.1999  or  the  statement  made  by  Shyan  Munshi  

recorded at Ashlok Hospital constitute the FIR.  It is the  

submission  of  the  learned  senior  counsel  for  the  

appellant-Manu Sharma that the statement of Rohit Bal  

PW-70  ought  to  have  been  used  for  the  purpose  of  

registration of FIR instead of Shyan Munshi PW-2.  It was  

demonstrated that Rohit Bal had made two calls on ‘100’  

on coming to know by other persons that Jessica Lal has  

been shot inside the café.  As against this, Shyan Munshi  

PW-2 was very much within the vicinity of  the place of  

occurrence and, therefore, the statement of Shyan Munshi  

was  used  for  the  purpose  of  registration  of  FIR.   It  is  

relevant  to  point  out  that  PW-70  has  never  claimed  to  

have witnessed the incident.  He confirmed his presence  

on the spot and having seen PW-20 accosting a man.   

71

36)   It  was  further  contended  by  the  learned  senior  

counsel  for  the  appellant-accused  that  PW-2  Shyan  

Munshi’s statement could not be looked into as the same  

is hit by Section 162 Cr.P.C. and on the other hand the  

defence seeks to rely on his testimony.  In support of the  

above claim, the learned senior counsel for the appellant  

relying upon the judgments of this Court in State of U.P.  

vs.  Bhagwant  Kishore  Joshi AIR  1964  SC  221  and  

Emperor vs.  Khwaja  Nazir  Ahmad AIR  1945  PC  18  

contended that investigation of an offence can start either  

on  information  or  otherwise  and  that  the  receipt  and  

recording of FIR is not a condition precedent to the setting  

in motion of criminal investigation.  Placing reliance upon  

the  said  judgments,  it  has  been  further  argued  by  the  

learned  senior  counsel  for  the  appellant  that  in  the  

present  case  the  three  cryptic  telephonic  messages  

received by the Police at around 2.20 a.m. on 30.04.1999  

should  be  treated  as  FIR  upon  which  the  investigation  

started and, therefore, the statement of PW-2 recorded by  

72

the Police later on around 3.40 a.m. could not be treated  

as FIR but a statement under Section 162 of Cr.P.C.

37) Insofar  as  the  decision  in  Bhagwant  Kishore  

(supra),  it  was  noted  in  para  8  at  page  224  that  the  

information  received  by  the  officer  was  not  vague,  but  

contained  precise  particulars  of  the  acts  of  

misappropriation  committed  by  the  accused  and,  

therefore,  the said information could be treated as FIR.  

On the contrary, it is evident from the facts established on  

record  in  the  present  case  that  none  of  the  three  

telephonic  messages  received  by  police  furnished  any  

detail about the offence or the accused.  The judgment in  

Khwaja Nazir Ahmad (supra) is also distinguishable as  

the law laid down in the said case does not concern the  

issue  involved  in  the  present  case.   Cryptic  telephonic  

messages could not be treated as FIR as their object only  

is  to  get  the  police  to  the  scene  of  offence  and  not  to  

register the FIR.  The said intention can also be clearly  

culled  out  from  a  bare  reading  of  Section  154  of  the  

73

Criminal  Procedure  Code  which  states  that  the  

information, if given orally, should be reduced in writing,  

read over to the informant, signed by the informant and a  

copy of the same be given free of cost to the informant.  In  

the  case  on  hand,  the  object  of  persons  sending  the  

telephonic messages including PW-70 Rohit Bal was only  

to  bring  the  police  to  the  scene  of  offence  and  not  to  

register the FIR.  Learned senior counsel for the accused-

Manu Sharma has also  relied upon a  judgment  of  this  

Court in H.N. Rishbud & Inder Singh vs.  The State of  

Delhi (1955) SCR 1150 wherein this Court has held that  

investigation  usually  starts  on  information  relating  to  

commission of an offence given to an officer in-charge of a  

police station and recorded under Section 154 of the Code.  

A  reading  of  the  said  judgment  clearly  shows  that  

investigation starts on information relating to commission  

of  an  offence  given  to  an  officer  in  charge  of  a  police  

station and recorded under Section 154 of the Code.  By  

applying  the  ratio  of  the  said  judgment  to  the  case  on  

74

hand, it can be clearly said that the investigation started  

after the recording of the statement of PW 2 as FIR around  

3.40 a.m. on 30.04.1999.  

38) Learned senior counsel for the appellant also relied  

on  judgment  of  the  Gujarat  High  Court  in  Mehr Vajsi  

Deva vs. State of Gujarat, AIR 1965 Guj 143.  A perusal  

of the said judgment shows that the details of the offence  

given  by  the  telephonic  message  in  the  said  judgment  

clearly described that  ‘one man was assaulted by means  

of an axe at Sudama Chowk’, on the other hand, in the  

case  on hand the  telephonic  message  did  not  give  any  

details  of  the  offence  or  accused  and  the  same  was  a  

vague information.  The said judgment should be read per  

incuriam in view of  plethora of  judgments of  this  Court  

wherein it  has categorically  held that  cryptic  telephonic  

messages  not  giving  the  particulars  of  the  offence  or  

accused are bereft of any details made to the police only  

for the purpose of getting the police at the scene of offence  

and not for the purpose of registering FIR.  

75

39) Learned senior counsel for the appellant also relied  

on  the  judgment  of  this  Court  in  Superintendent  of  

Police, CBI and Others vs. Tapan Kumar Singh, (2003)  

6 SCC 175.  In the said case,  detailed information was  

given  on  telephone  including  the  offence  and  the  

whereabouts of the accused.  On the other hand, in the  

present case, as observed earlier all  the three telephone  

calls barely mentioned that a fire was shot and a girl was  

killed.  The said information could only be concluded to  

have been given to the police to get the police to the scene  

of offence and not with the object of registering FIR.  In  

those  circumstances,  the  judgment  in  Tapan  Kumar  

Singh (supra) has no application to the facts of the case  

on hand.  

40) It was further pointed out by the defence that Ex.P-

12/A wherein three PCR calls  were recorded is the real  

FIR and the statement of PW-2 which was taken during  

investigation and got signed by him is not the FIR and is  

thus to be treated as a statement recorded under Section  

76

161  Cr.P.C.  and  is  hit  by  the  bar  under  Section  162  

Cr.P.C.  This argument is unacceptable since as observed  

in  the  earlier  paragraph the  telephone  call  from PW-70  

was too cryptic to amount to an FIR.  At this juncture, it is  

useful to refer to the decision of this court in the case of  

State of U.P. vs.  P.A. Madhu, (1984) 4 SCC 83 wherein  

this Court has not accepted a similar argument and held  

as under:-

5. To begin with, it appears that there was some dispute  about the dearness allowance claim of the labour from  the management which was referred to the Industrial  Tribunal. The respondent, who was the Secretary of the  Union,  was  looking  after  the  case  on  behalf  of  the  workers, while PWs 5 and 7 were the officers appearing  on behalf of the management before the Tribunal. The  deceased,  S.J.  Sirgaonkar,  was  Deputy  Personnel  Manager  of  the  Bombay  Branch  of  M/s  Hindustan  Construction  Company.  He  was  shot  dead  by  the  respondent  after  he  (deceased),  along  with  the  other  officers  of  the  management,  had  come  out  of  the  Tribunal’s  office  at  Meerut  after  filing  their  written  statements. Thereafter one of the eyewitnesses, S.K. Gui  (PW 7) asked someone to give a telephone call  to the  police station,  which was nearby,  on receipt  of  which  the police arrived at the spot, seized the pistol and took  the  accused  and some of  the  witnesses  to  the  police  station  where  a  formal  FIR  was  registered.  The  Panchnama was prepared  and other  formalities  were,  however, done at the spot.

11. Durga Das, DW 1 who was admittedly at the scene  of  the  occurrence  has  stated  that  as  the  shooting  started,  PW 7 had given a telephonic  message to  the  police station. The High Court by an implied process of  reasoning  has  observed  that  if  PW  7  had  given  the  telephonic message he would have mentioned the name  

77

of  the  assailant  because  he  was  a  full-fledged  eye- witness but since his name had not been mentioned it  is the strongest possible circumstance to discredit the  prosecution case. We are, however, unable to agree with  this somewhat involved reasoning of the High Court. In  fact, DW 1 merely says that Gui telephoned to the police  station about the firing and said something in English.  The High Court seems to have presumed that from this  the irresistible inference to be drawn is that Gui did not  mention the name of the assailant of the deceased and  on this  ground alone  the  prosecution  must  fail.  This  argument is based on a serious error. In the first place,  the  telephonic  message  was an extremely  cryptic  one  and could not be regarded as an FIR in any sense of the  term.  Secondly,  assuming  that  Gui  had  given  the  telephonic message in utter chaos and confusion when  shots after shots were being fired at the deceased, there  was  no  occasion  for  Gui  to  have  narrated  the  entire  story of the occurrence. In fact, in his evidence Gui has  denied that he personally telephoned the police but he  stated that he asked somebody to telephone the police  which appears to be both logical and natural. Moreover,  such a cryptic information on telephone has been held  by this Court to be of no value at all. In Tapinder Singh  v. State of Punjab this Court in identical circumstances  observed thus: [SCC para 4, p. 117: SCC (Cri) p. 332]

“The telephone message was received by Hari Singh, ASI  Police Station, City Kotwali at 5.35 p.m. on September  8, 1969. The person conveying the information did not  disclose  his  identity,  nor  did  he  give  any  other  particulars and all that is said to have been conveyed  was  that  firing  had  taken  place  at  the  taxi  stand,  Ludhiana.  This  was,  of  course,  recorded  in  the  daily  diary  of  the  police  station  by  the  police  officer  responding to the telephone call.  But prima facie this  cryptic and anonymous oral message which did not in  terms  clearly  specify  a  cognizable  offence  cannot  be  treated as first information report.  The mere fact that  this information was the first in point of time does not  by itself clothe it with the character of first information  report.”

Similar views have been expressed in Tapinder Singh vs.  

State  of  Punjab (1970)  2  SCC  113,  Damoder vs.  

78

Rajasthan (2004)  12  SCC  336  and  Ramsinh  Bavaji  

Jadeja vs. State of Gujarat (1994) 2 SCC 685.

It was argued and highlighted that since PW-2 Shyan  

Munshi has been confronted with his signed statement i.e.  

Ex.PW-2/A  and  B,  the  whole  evidence  goes  in  light  of  

Zahidurddin vs. Emperor, AIR 1947 PC 75.  Apart from  

the  above  decision  reliance  has  further  been placed  on  

Superintendent  and Remembrancer  of  Legal  Affairs  

to the State of W.B.  vs. Ram Ajudhya Singh & Anr.  

AIR 1965 Cal. 348 (Para 9) and Mer Vas Deva vs. State  

of Gujarat,  AIR 1965 Guj. 143 (Para 9 & 10).  We have  

carefully perused those decisions.  We are satisfied that  

nothing turns on this argument since the said decisions  

only  provide  that  where  a  statement  made/given  by  a  

witness under Section 161 of the Code and signed by the  

same is hit by the bar prescribed under Section 162 of the  

Code, but nowhere do they say that the evidence deposed  

to in Court by the said witness becomes admissible.  As a  

matter  of  fact,  similar  argument  of  the  defence counsel  

79

was rejected in Ranbir Yadav vs. State of Bihar, (1995)  

4 SCC 392.

“37. In assailing the above findings Mr Jethmalani first  contended that both the courts below ought not to have  taken into consideration and relied upon the evidence of  PC  PW  1  as  the  same  was  clearly  inadmissible.  In  expanding his argument Mr Jethmalani submitted that  while  being  examined  in  court  the  witness  was  permitted  to  refresh  his  memory  from  the  report  he  lodged  with  the  police  in  the  morning  of  12-11-1985  (Ext. 10/1), which was treated as the FIR of the second  incident even though by no stretch of imagination could  that  report  be  so  treated,  as  PW  96  had  started  investigation  into  the  same  the  previous  night.  That  necessarily meant that Ext. 10/1 was a statement made  to a police officer during investigation which could not  be  read  for  any  purpose  except  for  contradicting  the  maker  thereof  in  view of  Section  162(1)  of  the  Code,  argued Mr Jethmalani. In support of his contention Mr  Jethmalani  relied  upon  the  judgment  of  the  Privy  Council  in  Zahiruddin v.  Emperor.  It  appears that the  question as to whether Ext. 10/1 could be treated as an  FIR was raised both before the trial court and the High  Court and it was answered in the affirmative. The courts  held  that in  the night  of  11-11-1985,  PW 96 did not  examine  any  witness  in  connection  with  the  incident  that took place in that afternoon and, in fact, he did not  take any step towards the investigation as he and other  police officers were busy in maintaining law and order  in the village. 38. Having gone through the evidence of PW 96 we are  constrained  to  say  that  the  courts  below  were  not  justified in treating Ext. 10/1 as an FIR. Undisputedly  PW 96 had reached Village Laxmipur Bind Toli in the  night  of  11-11-1985 to  investigate  into the two cases  registered  over  the  incident  that  took  place  in  the  morning. He deposed that after reaching the village at  10.30 p.m. he got information about the second incident  also  and  in  connection  therewith  he  had  talked  to  several  persons.  He,  however,  stated  that  he  did  not  record the statements of the persons to whom he talked  to. In cross-examination it was elicited from him that on  the very night he learnt that houses of some people had  been  looted  and  set  on  fire,  some  people  had  been  murdered  and  that  some  villagers  were  untraceable.  While being further cross-examined he volunteered that  

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he had started the investigation of the case registered  over the second incident in the same night. In the face  of such admissions of PW 96 and the various steps of  investigation  he  took  in  connection  with  the  second  incident  there  cannot  be  any  escape  from  the  conclusion that the report lodged by PC PW 1 on the  following morning could only be treated as a statement  recorded in accordance with Section 161(3) of the Code  and  not  as  an  FIR.  The  next  question,  therefore  is  whether  the  evidence  of  PC  PW 1  is  inadmissible  as  contended by Mr Jethmalani.

39.  In  the  case  of  Zahiruddin the  police  had got  the  statement  of  the  principal  witness  which  was,  admittedly, recorded during investigation signed by him.  Besides, during trial, while being examined-in-chief he  refreshed  his  memory  from  that  statement.  The  trial  ended in an acquittal with a finding that when a police  officer  obtains  a  signed  statement  from  a  witness  in  contravention of Section 162 of the Criminal Procedure  Code his evidence must be rejected. In appeal the High  Court  set  aside  the  order  of  acquittal  holding  that  breaches  of  the  provisions  of  Section  162  Criminal  Procedure Code were not in themselves necessarily fatal  to  the  proceedings  and  might  in  appropriate  circumstances be cured as the expression was under  the  terms  of  Section  537  of  the  Criminal  Procedure  Code, 1898 (Section 465 of the Code). In setting aside  the order of the High Court the Privy Council observed  as under: “... the effect of a contravention of the section depends  on the prohibition which has been contravened. If the  contravention  consists  in  the  signing  of  a  statement  made  to  the  police  and  reduced  into  writing,  the  evidence of the witness who signed it does not become  inadmissible. There are no words either in the section or  elsewhere in the statute which express or imply such a  consequence. Still  less can it be said that the statute  has the effect of vitiating the whole proceedings when  evidence is given by a witness who has signed such a  statement.  But  the  value  of  his  evidence  may  be  seriously  impaired  as  a  consequence  of  the  contravention  of  this  statutory  safeguard  against  improper practices.  The use by a witness  while  he is   giving evidence of a statement made by him to the police   raises  different  considerations.  The  categorical   prohibition of  such use would be merely disregarded if   reliance were to be placed on the evidence of a witness   who had made material  use of the statement when he  

81

was  giving  evidence  at  the  trial.  When,  therefore,  the   Magistrate  or presiding Judge discovers that  a witness   has made material use of such a statement it is his duty   under  the  section  to  disregard  the  evidence  of  that   witness as inadmissible. In the present case there is in  the  note  at  the  end  of  Mr  Roy’s  examination-in-chief  and, in the judgment of the Magistrate what amounts to  a finding of fact that Mr Roy while giving his evidence  made  substantial  and  material  use  of  the  signed  statement given by him to the police, and the Magistrate  was accordingly bound to disregard his evidence.  The  Magistrate’s reason for doing so is too broadly stated,  for it is not the mere fact that Mr Roy had signed the  statement but the fact that he had it  before him and  consulted it in the witness box that renders his evidence  incompetent.”                     (emphasis supplied) 40. In our considered view the above-quoted passage is  of  no  assistance  to  the  appellants  herein  for  in  the  instant case after PC PW 1 testified about the incident,  prosecution got the statement of PC PW 1 exhibited Ext.  10/1 as according to it Ext. 10/1 was the FIR. Such a  course  was  legally  permissible  to  the  prosecution  to  corroborate  the witness in view of  Section 157 of  the  Evidence Act.  Of  course in a given case — as in the  present one — the court may on the basis of subsequent  materials hold that the statement so recorded could not  be treated as the FIR and exclude the same from its  consideration  as  a  piece  of  corroborative  evidence  in  view of Section 162 of the Code but then on that score  alone the evidence of  a witness cannot  be held to be  inadmissible. The case of Zahiruddin turned on its own  facts, particularly the fact that during his examination- in-chief the witness was allowed to refresh his memory  from  the  statement  recorded  under  Section  161  Criminal Procedure Code, unlike the present one where  the statement was admitted in evidence after PC PW 1  had testified about the facts from his own memory.”

41) The  information  about  the  commission  of  a  

cognizable offence given “in  person at  the  Police Station”  

and the information about a cognizable offence given “on  

telephone”  have  forever  been  treated  by  this  Court  on  

different pedestals.  The rationale for the said differential  82

treatment to  the two situations is,  that  the information  

given by any individual on telephone to the police is not  

for the purpose of lodging a First Information Report, but  

rather  to  request  the  police  to  reach  the  place  of  

occurrence;  whereas  the  information  about  the  

commission of an offence given in person by a witness or  

anybody else to the police is for the purpose of lodging a  

First  Information  Report.   Identifying  the  said  objective  

difference  between  the  two  situations,  this  Court  has  

categorically held in a plethora of judgments that a cryptic  

telephonic  message  of  a  cognizable  offence  cannot  be  

treated as a First Information Report under the Code.  It  

has  also  been  held  in  a  number  of  judgments  by  this  

Court that merely because the information given on phone  

was prior in time would not mean that the same would be  

treated  as  the  First  Information  Report,  as  understood  

under the Code.  This view has been reiterated in Ramesh  

Baburao  Devaskar  and  Others vs.  State  of  

Maharashtra (2007) 13 SCC 501, that a cryptic message  

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given on telephone by somebody who does not disclose his  

identity may not satisfy the requirement of Section 154 of  

the Code of Criminal Procedure.

42) In view of the above discussion, the three telephonic  

messages  received  by  the  police  around  2.25  a.m.  on  

30.04.1999 did not constitute the FIR under Section 154  

of the Code and the statement of Shyan Munshi PW-2 was  

rightly registered as the FIR.

42A) Seizure of Tata Safari & broken glass pieces and  live cartridge:

(i) The testimony of PW-30 has proved the presence of  

Tata  Safari  CH-01-W-6535  at  the  spot  after  the  

incident which testimony is duly corroborated by  

PW-83,  PW-78,  PW-100  and  PW-101  and  by  

documents Ex PW 101/DK-1, which shows about  

the PCR message about this vehicle at 6.00 a.m.  

on  30.04.1999.   In  his  evidence,  PW-30  has  

informed  that  he  left  PS  Mehrauli  along  with  

Inspector Surender Sharma at 2.30/2.45 a.m on  

30.04.1999 and reached ‘Qutub Colonnade’ within  

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2-4 minutes.  He further informed that SHO S.K.  

Sharma directed him to keep vigil at the parking so  

that nobody is allowed to take away cars parked  

there.  The following information is relevant:  

“When I was giving duty there, I saw a vehicle, came at  about  3:40  or  3:45  a.m.   It  came  from the  side  of  Qutub.  The vehicle came slowly.  The vehicle was Tata  Sierra of white colour.  There were two persons in that  vehicle, on the front seats.  They went ahead and took  ‘U’ turn and stopped the vehicle near the vehicle, near  which I was standing.  I was standing by the side of  Tata Safari  vehicle,  of  black colour.   One boy  came  down from that vehicle.  He opened the vehicle Tata  Safari,  with a key.   I  told him not to do so, but he  forcibly entered the said Tata Safari.  He started the  vehicle even though I asked him, not to do so.  I gave a  lathi blow on the last window-pain on the side of the  driver.   The  number  of  the  black TATA Safari,  bore  Registration no. CH-01-W-6535.  When I gave danda- blow,  the  glass  of  window-pain  broke.   Both  the  persons, took-away the vehicles.  I had seen the driver  and companion on the Tata Sierra.  The TATA Sierra  vehicle was being driven by Sikh Gentleman.  I  can  identify  the  driver  of  the  said  Tata  Sierra  and  his  companion.   

At this stage, the witness has been sent out to  examine the vehicle, parked, outside the court room,  along with Junior of Shri G.K. Bharti,  Advocate and  Shri Ghai, Advocate.

It is the same Tata Safari vehicle, which was hit  by me on that night.  It is exhibited as article Ex.PW  30/X.”

It  is  clear  from his  evidence that  while  Tata Safari  

CH-01-W-6535 was being taken away forcibly  from  

the  scene  of  occurrence  at  about  3.45  a.m.  by  

accused  Vikas  Yadav  and  both  Vikas  Yadav  and  85

Amardeep Singh Gill  came in a Tata Sierra, PW-30  

gave  a  danda  blow  on  the  right  rear  side  of  the  

window of the car.  

ii) The  prosecution  case  further  shows  that  the  first  

police  officer  to  reach  the  place  of  occurrence  at  

02.17 a.m. on 30.04.1999 was HC Devi Singh PW-83.  

He has stated that there was one black Tata Safari  

parked  on  the  left  side  towards  Mehrauli  besides  

other  cars  on  the  right  side  of  the  gate.   He  has  

further stated that PW-30 was deputed by SHO near  

the parked vehicles at Qutub Colonnade.  He further  

stated  that  SI  Sarath  Kumar  PW-78  and  SI  Sunil  

Kumar PW-101 had also visited the spot.

iii) SI Sharad Kumar PW-78 has stated that on receipt of  

DD No 41 A Ex PW 13/A in respect of firing incident  

in  Qutub  Colonnade,  he  along  with  Ct.  Meenu  

Mathew reached Qutub Colonnade. SI Sunil Kumar  

and  Ct  Subhash  Chand  also  reached  Qutub  

Colonnade almost the same time when he reached.  

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At Qutub Colonnade on the left side near the gate a  

black Tata Safari car was parked besides other cars.  

SHO  Insp.  Surender  Kumar  Sharma  also  reached  

there.   While  leaving for  Ashlok Hospital,  the  SHO  

asked Delhi Home Guard Shrawan Kumar to remain  

at  the  gate  of  the  ‘Qutub  Colonnade’.   PW-100  SI  

Sunil Kumar has stated that when he reached Qutub  

Colonnade he found a black Tata Safari car parked  

on the left side besides as he entered the colony and  

other vehicles were parked on the right.  The PW-30  

also identified the black Tata Safari CH-01-W-6535 to  

be the same which he had seen parked at the scene  

of  crime and the same in exhibit  article  PW 30/X.  

SHO S.K. Sharma had also reached the spot along  

with  staff  including  DHG  Shrawan  Kumar.   SHO  

detailed DHG Shrawan Kumar to watch the vehicle  

already parked there and asked him (SI Sunil Kumar)  

to proceed immediately to Ashlok Hospital.

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iv) Surender Kumar Sharma PW-101, SHO PS Mehrauli  

has  stated  that  on  receipt  of  information  he,  ASI  

Kailash,  Ct  Ram  Niwas,  Ct  Ramphal,  Ct  Yatender  

Singh left for the spot in the official gypsy.  PW-30  

met them at the gate of police station and he also  

picked him (Sharvan Kumar)  up in  the  Gypsy and  

reached  Qutub  Colonnade.   He  found  one  black  

colour  Tata  Safari  on  the  left  side  of  Qutub  

Colonnade  gate  and  4  or  5  vehicles  including  one  

PCR Van on the right side.  PW-30 was left  at the  

gate to ensure that no vehicles leave the spot.   

It is clear from the above testimony that black Tata Safari  

was  found  parked  near  the  gate  of  ‘Qutub  Colonnade’  

when they reached at  the  spot  on receipt  of  intimation  

regarding firing incident and Shravan Kumar PW-30 was  

detailed by SHO PW-101 to ensure that no vehicle leaves  

the spot.  It is the argument of the learned senior counsel  

for  the  appellant  Manu  Sharma  that  PW-30  was  not  

present at the spot of the incident placing its reliance on  

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DD No.40A and 43A dated 30.04.1999.  A perusal of FIR  

286 of 1999 dated 30.04.1999 under Section 308/34 IPC  

PS Mehrauli Ex-CW-2/B shows that the said ‘rukka’ was  

sent  by SI  Rishi  Pal  through Balwan Singh from AIIMS  

and not from Dera Gaon.  The said FIR also indicates that  

SI  Rishi  Pal  by  2.30  a.m.  had  already  recorded  the  

statement of  the victim at  AIIMS and had not  sent  the  

same with Balwan Singh with ‘rukka’ to PS, Mehrauli.  In  

those circumstances,  the version of  PW-30 and PW-101  

that PW-30 met him at the gate of the PS when PW-101  

was going out with other staff is reliable and acceptable.  

Further, the presence of PW-30 at the spot is corroborated  

by Sharad Kumar Bisnoi, PW-78,  HC Devi Singh, PW-83,  

SI Sunil Kumar, PW-100 and Surender Sharma, PW-101.  

It was also highlighted that after this incident PW-30 has  

been recruited to the post of Constable though he was not  

eligible  as  he  was  under  metric  and  overage.   Learned  

Solicitor General appearing for the State pointed out that  

instances are not unknown wherein persons other than  

89

permanent  police  officers  when  help  the  investigating  

agency  in  solving  crimes  have  been  recruited  in  Delhi  

Police  and  strongly  submitted  that  the  evidence  of  

Shravan Kumar cannot be discredited on this point.  The  

said submission cannot be ignored.

43) PW-30 has categorically stated that while he was on  

duty he saw a vehicle Tata Sierra White Colour coming  

slowly from the side of Qutub at about 03.40 am or 03.45  

am.  There were two persons in the said vehicle on the  

front seat.  They stopped the vehicle near Tata Safari of  

black colour.  One boy came down from the said vehicle  

and opened Tata Safari with a key.  PW-30 told him not to  

do so but the said boy forcibly entered the Tata Safari and  

took it away.  He gave a lathi blow on the glass of window  

pane and it broke due to danda blow.  He noted down the  

number of the black Tata Safari as CH-01-W-6535.  The  

witness also identified Tata Safari which was hit by him  

on that  night,  which  is  exhibit  PW 30/X.   PW 30 also  

90

identified that Tata Sierra was driven by Amardeep Singh  

Gill whereas Vikas Yadav drove away black Tata Safari.

44) Insp.  Surender  Kumar Sharma PW-101 also stated  

that when he came back, he found SI Sunil & SI Sharad  

as well as Shravan, they told him that two boys had come  

and had forcibly taken away the Tata Safari.  Out of the  

two boys one was Sikh, PW-30 also informed that he had  

broken the right backside window panel of Safari with his  

Danda.  He also gave the number of the Tata Safari as CH-

01-W-6535.  SI Sunil Kumar PW-100 has also stated that  

two persons had got into the Tata Safari and had driven  

away.   The  testimony  of  the  above  witnesses  is  duly  

corroborated by document Ex PW 101/DK-1.  Thus it is  

clearly established by cogent evidence that on 30.04.1999  

at about 03.40 or 03.45 am accused Amardeep Singh Gill  

and Vikas Yadav came in a white colour Tata Sierra Car  

and accused Vikas Yadav got down and drove away black  

Tata Safari No. CH-01-6535.     

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Tata Safari at Noida:

45) It  was  argued  that  even  according  to  PW-100,  the  

Tata Safari was found available in Karnal, hence seizure of  

the  very  same  vehicle  (Tata  Safari)  at  Noida  is  not  

acceptable.   It  is  true  that  PW-100  has  stated  that  he  

discussed the case with Inspector Surender Sharma and  

who informed him that Vehicle No. CH-01-W-6535 which  

was lifted from the spot in the morning is found to have  

been registered in the name of Piccadilly Agro Industries  

and it was also found in Karnal and he further informed  

that Sidharth Vashisht alias Manu Sharma is the Director  

of the said Industries who is residing in H.No.229, Sector  

9C, Chandigarh.  A perusal of his entire evidence shows  

that he had stated that the vehicle was found registered in  

the name of  Piccadilly  Agro Industries,  Bhadson,  which  

was also found in Karnal and SI Pankaj Malik along with  

his  staff  has  been  detailed  for  the  investigation  of  the  

aforesaid aspect of the case.  As rightly pointed out by the  

counsel for the State, the testimony of PW-100 show that  

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he was referring to the Piccadilly Agro Industries having  

been found at Bhadson Karnal and not the vehicle/Tata  

Safari.  It was also pointed out when Manu Sharma was  

questioned  under  Section  313  Cr.P.C.  particularly  

question No. 119 the doubt about the vehicle has been  

erased.  Question No. 119 put to Manu Sharma and his  

answer is as follows:-

“Q.119 It is further in evidence of PW 100 that when  he  came  back  to  Qutub  Colonnade  nearly  at  about  03:15 PM on 30.04.99 where he met Surinder Sharma  (PW 101)  and discussed the case  with  SHO Surinder  Sharma who informed him that vehicle No. CH-01-W- 6535 which was lifted from the spot in the morning is  found to have been registered in the name of Piccadilly  Agro  Industries,  Bhadson  and  it  was  also  found  in  Karnal and he further informed him that you Sidharth  Vashist  @  Manu  Sharma  is  a  Director  of  the  said  industry who is residing in House No. 229, Sector 9C,  Chandigarh.  What you have to say in this regard?

Ans. It  is  correct  that  Vehicle  No.  CH-01-W-6535  is  registered in the name of Piccadilly Agro Industries Ltd.,  Piccadilly Cinema, Sector 34, Chandigarh.”

46) Apart from this, PW-101 also stated that his senior  

officers found out the name of  the owner and informed  

him that it was registered in the name of Piccadilly Agro  

Industries  Ltd.,  Sector-34,  Chandigarh.   He  further  

explained that his officers informed him that this vehicle  

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was used by Manu Sharma’s office which was at Bhadson,  

District Karnal.  It is further seen from his evidence that  

he  sent  SI  Pankaj  to  Chandigarh and Inspector  Raman  

Lamba to Bhadson.  In this regard the evidence of PW-87  

Raman Lamba is relevant.  He deposed before the Court  

that  he  was  instructed  that  the  inmates  of  Black  Tata  

Safari No. CH-01-W-6535 was involved in the case and he  

was asked to search the same.  As directed, he left Delhi  

on 30.04.1999 and reached Bhadson at the premises of  

Piccadilly  Agro  Industries.   According  to  him,  he  met  

Major Sood and the sugar mill was closed at that time.  He  

also  learnt  that  the  sugar  mill  was  not  functioning  

because of off season since 25.04.1999.  From Bhadson,  

he went to Kurukshetra and he tried to locate Black Tata  

Safari in the aforesaid sugar factory at Bhadson but did  

not  find  it.   Even  at  Chandigarh,  Tata  Safari  was  not  

available  in  his  house  at  Sector  229,  Sector  9C,  

Chandigarh.  SI Pankaj Malik PW-85 also deposed before  

the court that on 30.04.1999 he was deputed by Inspector  

94

Surender Kumar to trace out black colour Tata Safari car  

bearing  Registration  No.  CH-01-W-6535.   As  rightly  

pointed out that the vehicle being recovered at Karnal on  

30.04.1999, the question of sending SI Pankaj Malik does  

not arise.  From the statements of Sunil Kumar PW-100,  

Inspector  Surender  Kumar  Sharma  PW-101,  Inspector  

Raman Lamba PW-87, ASI Nirbhaya Singh PW-80 and SI  

Pankaj Malik PW-85, it  is  clear that Tata Safari  vehicle  

was  being  searched  by  Inspector  Raman Lamba PW-87  

and SI Pankaj Malik PW-85 and other police officers at  

various places in Delhi, Haryana and Chandigarh.  As the  

said vehicle was found on 02.05.1999 at Noida and the  

same was taken into possession through a seizure memo  

prepared  by  Noida  Police.   The  same  was  taken  into  

possession  by  Delhi  Police  on  03.05.1999  after  taking  

appropriate orders from the Magistrate Ghaziabad.  

Recovery  of  Tata  Safari  with  live  bullet  and broken  glass pieces at Noida:  

47) PW-91 SI BD Dubey, in his evidence has stated that  

information  was  received  that  the  vehicle  involved  in  

95

Jessical Lal murder case was parked at NTPC Township.  

They  reached  NTPC  Township  at  about  06.30  p.m.  on  

02.05.99 and found a Safari Vehicle parked there bearing  

No. CH-01-W-6535.  He identified the vehicle Ex. article  

PW 30/X in the court.  Recovery memo prepared is Ex PW  

74/A which is in his handwriting and bears his signatures  

at  point  C  and  that  of  Sudesh  Gupta  SO  at  point  B.  

PW-74 stated that vehicle Tata Safari was recovered vide  

Ex. PW 74/A on 02.05.99.  He also identified signatures of  

SI BD Dubey & SI Sudesh Gupta on the same.  Ex PW  

74/A Seizure Memo of Tata Safari and live cartridge with  

‘C’ mark etc. clearly establish the recovery of the same at  

Noida,  beyond  any  shadow of  doubt  vide  Ex  PW 74/C  

Seizure  of  Live  cartridge  by Insp.  Surender  Kr.  Sharma  

dated 26.06.1999.  

48) PW-101 in his evidence has stated that:

“On 03.05.1999  in  the  morning  with  SI  Vijay  Kumar  and other staff I went to Sector 24 NOIDA and found the  Tata Safari No CH-01-W-6535 Black Tata Safari lying in  case FIR No. 115/99 U/s 25 Arms Act.  SI BD Dubey  handed  over  a  pullanda  of  glass  pieces  which  were  found inside the vehicle by the NOIDA police.  I seized  the  vehicle  pullanda  and  the  documents  two  tape  

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recorder, one prescription of Nagpal Nursing Home and  one  letter  written  to  Vijay  Sharma.   Every  thing  was  seized vide seizure memo Ex PW 100/DB which bears  my signature at point A and of SI BD Dubey at point B.  The  pullanda  of  broken  glasses  were  sealed  with  the  seal of BD when it was presented to me.”

49) SI BD Dubey PW-91 and Ct. Satish Kumar PW-74 of  

PS Sec.24, Noida have deposed that they found black Tata  

Safari  No.  CH-01-W-6535  abandoned  at  the  NTPC  

Township pursuant to which FIR No. 115/99 u/s 25 Arms  

Act was registered vide Ex. PW 74/B.  The said Tata Safari  

was seized under seizure memo Ex PW 74/A.  PW 101 has  

clearly deposed that about 10 pm on 02.05.1999 he got  

the information with regard to the Tata Safari having been  

found at Noida.  On 03.05.1999, he moved an application  

before  the  ACJM,  Noida  for  the  superdari  of  the  Tata  

Safari vide Ex. PW 101/1 and in pursuance of the orders  

of  ACJM  Ex.  PW  101/2  and  he  seized  the  same  vide  

seizure  memo  dated  03.05.1999  vide  Ex.  PW  100/DB  

along  with  other  articles  including  broken  glass  pieces  

which were duly sealed with the seal of BD.  The seizure  

memo Ex. PW 100/DB is duly signed by SI BD Dubey.  

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The  said  Tata  Safari  and  the  broken  glass  pieces  duly  

sealed  with  the  seal  of  BD have  been  deposited  in  the  

Malkhana of  PS Mehrauli  on 03.05.1999.   PW-101 has  

also stated that SI Vijay Kumar accompanied him to Noida  

and  that  seizure  memo  Ex.  PW  101/DB  was  in  the  

handwriting of  SI  Vijay Kumar of  PS Mehrauli.   Ex PW  

18/DA  at  item  no.  7  &  9  in  the  letter  sent  to  CFSL  

mentioned  about  the  seal  of  BD  on  the  sealed  parcel  

containing broken glass pieces.  The report of CFSL vide  

Ex PW 90/A proved that on comparison of S1 and S2 the  

two window panes of the left and the right rear side of the  

said  Tata  Safari  are  different.   Thus  this  convincing  

testimony  of  PW  101  duly  corroborated  by  documents  

cannot  be  discarded  simply  because  SI  Sudesh  Gupta  

(Noida Police) failed to mention the seizure of broken glass  

pieces on 02.05.1999.   

Tata Safari being used by Manu Sharma on the day of  occurrence:

50) From the evidence on record it has been proved by  

the  prosecution  that  appellant/accused  Sidhartha  

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Vashisht  @  Manu  Sharma  along  with  co-accused  

Amardeep Singh Gill, Alok Khanna and Vikas Yadav were  

present in the said party at Tamarind Café on the night of  

occurrence.  The presence of Tata Safari CH-01-W-6535 at  

the  place  of  occurrence  and  its  being  forcibly  taken  at  

around 3.45 am after the incident has also been proved  

beyond  reasonable  doubt.   Manbir  Singh  PW-18  has  

proved  that  the  said  Tata  Safari  CH-01-W-6535  is  

registered in the name of Piccadilly Agro Industries Ltd.,  

Chandigarh.  It has also been proved from the testimony  

of  PW-25,  PW-26,  PW-48  and  the  annual  report  of  

Piccadilly  that  accused  Siddhartha  Vashisht  @  Manu  

Sharma  was  the  director  in  Piccadilly  Agro  Industries  

which finding has also been arrived at by the Trial Court  

in favour of the prosecution.  Thus a reasonable inference  

has to be drawn from the above mentioned evidence that  

accused  Manu  Sharma  used  the  said  Tata  Safari  for  

coming  to  Qutub  Colonnade  on  the  fateful  night  of  

29/30.04.1999.

99

Non-Recovery  of  the  weapon  of  offence  and  the  evaluation of Bullets & Cartridges:  

51)  Sh. Surender Singh PW-14 has proved that pistol No.  

B-56943 U make P. Berretta made in Italy of .22” bore was  

sold to accused Sidhartha Vashisht @ Manu Sharma on  

31.01.1999.  The relevant exhibits in this regard are Ex.  

PW 14/A in the stock register for purchase of P. Berrette  

Pistol from Smt. Azra Javed, Ex. PW 14/C at Sr. No. 3350  

of  sale  of  Pistol  to  Sidharth  Vashisht,  Ex.  PW  14/D  

photocopy  of  cash  memo,  seizure  memo  Ex  PW  14/F  

dated  19.05.1999  by  SI  Vijay  Kumar  PW-76.   The  

endorsement  on the  license  of  Manu Sharma regarding  

sale of Pistol is Ex. PW 14/B.

52)  It is relevant to point out that the accused Sidharth  

Vashisht  @  Manu  Sharma,  when  he  surrendered  on  

06.05.1999, also surrendered his arms license Ex PW 7/B  

which  has  been seized  vide  seizure  memo vide  Ex.  PW  

80/B by Inspector Raman Lamba PW 87.  The testimony  

of  PW-87  is  further  corroborated  by  PW-80.   The  said  

arms license  duly  bears  endorsement  about  the  sale  of  

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.22” bore pistol No. B-56943 U, make P. Berretta, made in  

Italy.  The case of accused Sidhartha Vashisht @ Manu  

Sharma as per his statement u/s 313 Cr.P.C. is that on  

the night of 30.04.1999 and 01.05.1999 when a raid was  

conducted  at  his  farm  house  at  Samalkha,  his  pistol  

ammunitions  and  arms  license  were  taken  away.   As  

rightly pointed out by the counsel for the State that the  

defence of the accused is totally incorrect in view of the  

positive evidence adduced on record.  This defence of the  

accused  Sidharth  Vashisht  @  Manu  Sharma  is  a  clear  

afterthought as no complaint was lodged by the accused  

in this regard nor the same was mentioned when he was  

twice  produced  for  police  remand  before  the  MM  for  

recovery of the pistol employed in the incident.   

53)  It is the claim of the learned senior counsel for the  

appellant/Manu  Sharma  that  the  seizure  memo  dated  

06.05.1999 with reference to the arms license is fabricated  

as the license has been taken from the farmhouse of the  

accused  on  30.04.1999/01.05.1999.   Learned  Solicitor  

101

General appearing on the side of the State demonstrated  

that  the  above  contention  is  false  one.   Since,  on  

06.05.1999,  when  the  accused  Manu  Sharma  

surrendered, he was accompanied by the lawyer in whose  

presence his arrest  memo was prepared and the lawyer  

also  signed the  same.   However,  as  rightly  pointed  out  

with  reference  to  the  arms  license  which  was  also  

produced by them, the same does not bear the signature  

of  the  said  lawyer.   The  learned  counsel  for  the  State  

further pointed out that the said lawyer declined to sign  

the seizure memo that  was the reason that  it  does not  

bear  the  signature  of  the  said  lawyer.   It  is  to  be  

remembered  that  admittedly  the  appellant/accused  

nowhere came out with an explanation.  His arms license  

was taken away by the Police in 30.04/01.05.1999 with  

any  seizure  memo,  why  he  has  not  lodged  any  report  

about the same.  It is also relevant to point out when the  

accused  after  surrendering  before  the  police  of  

Chandigarh  on  06.05.1999  was  produced  before  the  

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Magistrate  in  Delhi.   The police  sought  remand on two  

occasions  specifically  for  recovery  of  the  weapon of  the  

offence.  It was pointed out by the prosecution that Manu  

Sharma  was  duly  represented  by  lawyers  who  did  not  

point out on both occasions that the pistol  had already  

been taken by the Police.  The State also denied the said  

claim of the accused as false and concocted.  

54)  Even, Shanker Mukhiya PW-44, who is the caretaker  

of  farm house  of  Manu Sharma at  Samalkha  who  was  

produced by the prosecution for the purpose of accused’s  

visit  to  farm  house  also  did  not  mention  in  his  

examination in chief or in cross by the Spl. PP about the  

pistol.   It  is  only  to  a  leading  question  put  up  by  the  

counsel for accused that those articles included pistol and  

arms  licence  of  Manu  Sharma,  witness  stated  “it  is  

correct”.  The defence of the accused was for ammunition  

as  well  as  for  which  no  suggestion  has  been  ever  put.  

C.N.  Kumar PW-43,  Dy.  SP NCRB has deposed that  he  

had not received any complaint of theft or loss of this P.  

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Berretta pistol.  The pistol could not be recovered despite  

extensive efforts made to trace the pistol pursuant to the  

disclosures  of  the  accused  and  the  arms  license  was  

however  surrendered  on  06.05.1999  vide  seizure  memo  

Ex. PW 80/B.  It is thus the case of the counsel for Manu  

Sharma that he was in possession and custody of his P.  

Beretta pistol on 29/30.04.1999 as even according to him  

it has been taken away on 30.04.1999/01.05.1999.  This  

was a licensed pistol  and thereby the onus was on the  

accused to show where it was and that the possession and  

whereabouts of the pistol are in the special knowledge of  

accused Sidharth Vashisht @ Manu Sharma and having  

failed to produce the same an adverse inference has to be  

drawn against him in terms of Section 106 of  Evidence  

Act.   In  this  regard  reliance  may  be  placed  on  Sucha  

Singh vs. State of Punjab (2001) 4 SCC 375 at page 381:

“It is pointed out that Section 106 of the Evidence Act is  not intended to relieve the prosecution of its burden to  prove the guilt of the accused beyond reasonable doubt,  but  the  section  would  apply  to  cases  where  the  prosecution has succeeded in proving facts for which a  reasonable  inference  can  be  drawn  regarding  the  existence of certain other facts, unless the accused by  

104

virtue of special knowledge regarding such facts failed to  offer  any  explanation  which  might  drive  the  court  to  draw a different inference”         

In addition, the prosecution by way of acceptable evidence  

has proved beyond reasonable doubt that:       

a) Manu  Sharma  accused  was  the  owner  and  

possessed .22” P. Berretta Pistol made in Italy.

b) Two  empty  cartridges  cases  of  the  .22”  with  ‘C’  

mark recovered from the spot.

c) The  mutilated  lead  recovered  from  the  skull  of  

deceased was  of  .22”  and could  have  been fired  

from a standard .22” caliber firearm.

d) From  the  Tata  Safari  live  cartridge  of  .22”  with  

mark ‘C’ was recovered on 02.05.1999.

e) The two .22” cartridge cases from the spot and the  

.22”  cartridge  recovered  from  Tata  Safari  have  

similar head stamp of ‘C’ indicates that they are of  

the same make.

f) The  two  .22”  cartridge  cases  recovered  from the  

spot  are  to  be  rim  fired,  rimmed  steel  cartridge  

cases. 105

g) The two .22” cartridge cases of ‘C’ mark were lying  

near each other on the counter and so could not  

have been fired by 2 different persons.

The testimony of  Naveen Chopra PW-7 that  he  sold  25  

cartridges  of  .22”  bore  on  04.02.1999  is  also  of  no  

relevance to the defence of the accused when PW-7 says in  

the witness box that he had sold 25 cartridges of .22 bore  

with Mark ‘KF’ and not with ‘C’.  The appellant/accused  

has  relied  on  the  testimony  of  PW-7  to  show  that  the  

cartridges sold to appellant/accused had ‘KF’ marking is  

wholly unwarranted.   

55)  The  prosecution  has  established  that  the  

appellant/accused was the holder of a .22” bore Pistol; he  

was witnessed by Beena Ramani as the perpetrator of the  

crime; a mutilated .22” lead was recovered from the skull  

of the deceased; two empties of .22” make with mark ‘C’  

were found at the spot; a .22” live cartridge with mark ‘C’  

was  found  in  the  Tata  Safari  of  the  appellant/accused  

which was found abandoned at Noida and for which no  

106

theft  report  was  lodged;  that  his  prior  and  subsequent  

conduct of having got the Tata Safari removed from the  

spot,  of  absconding;  refusal  to  TIP  without  having  any  

basis; that he even denied his presence at the spot, clearly  

prove  beyond  reasonable  doubt  leaving  no  manner  of  

doubt that he is guilty of the offence of murdering Jessica  

Lal by using firearm and destroying evidence thereafter.  

56) It is pointed out by the State that when the accused  

Manu Sharma was arrested on 06.05.1999, the police filed  

an application dated 07.05.1999 for police remand of the  

accused for recovery of pistol.  The defence filed a reply to  

the said application on the same day i.e., 07.05.1999 and  

thereupon the Metropolitan Magistrate passed an order on  

the same day granting seven days police custody of the  

accused for recovery of pistol.  The accused despite forever  

maintaining that the police had illegally taken away the  

pistol from his farmhouse on 30.04.1999/01.05.1999, did  

not take this ground in the reply to remand application  

and  argument  to  the  said  effect  was  recorded  in  the  

107

remand  order  by  the  Magistrate.   The  only  inevitable  

conclusion that could be reached from the said turn of  

events is that the pistol was still in custody of the accused  

and  had  never  been  recovered  by  the  police  from  his  

farmhouse.   In  the  reply  dated 07.05.1999 filed  by the  

accused  to  the  remand  application,  there  are  

interpolations  in  the  reply  in  black  ink  in  two  

handwritings to the effect that the pistol had already been  

recovered from the person of the accused.  The assertion  

that  the  words  in  two  handwritings  in  black  ink  are  

interpolations gain strength from the fact that nowhere in  

the remand order dated 07.05.1999 has it come that the  

accused has taken the plea that  the pistol  had already  

been recovered.  It is pointed out by the learned Solicitor  

General  that the Courts below ought to have drawn an  

adverse inference from the said facts but have failed to do  

so.   Thus  this  evidence  coupled  with  the  testimony  of  

Shyan Munshi, PW-2, that the person in white T-shirt who  

was asking for whisky took out a pistol from dub of his  

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pant and fired a shot in the air and the other witnesses  

PWs 1,6, 20 and 24 that the person in white T-shirt was  

Manu Sharma,   a  positive  inference  beyond  reasonable  

doubt has to be drawn that Manu Sharma fired from his  

.22” bore pistol which resulted in the death of Jessica Lal  

on the fateful night of 29/30.04.1999.   

57) Mr.  Ram  Jethmalani,  learned  senior  counsel,  

appearing for the accused pointed out that no question  

has been put  to  the  accused in  his  examination under  

Section  313  Cr.P.C.  with  reference  to  the  pistol  and  

shooting by him for this.   The State has placed reliance  

on the following questions which were specifically put to  

the accused Manu Sharma being Question Nos. 64, 65,  

66, 67 & 72 which are as under:

“Q.64  It  is  further  in  evidence  of  PW-20  that  she  had  identified you Manu Sharma as the person whom she has  tried  to  stop  and  talked  to.   She  added  further  that  the  person who was confronted by her on the stairs was some  what  like  you  Manu  Sharma  and  also  identified  you  on  08.05.1999 at PS Mehrauli.  What you have to say in this  regard?

Ans.  It is false and incorrect.

Q.65.  It is further in evidence of PW-20 that the companion  of Shyan Munshi (you Manu Sharma) was wearing T-shirt  

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and she asked you Manu Sharma as to why you were here  and why you shot Jessica and she also asked you to give her  your gun as she thought you were having the gun.  What  you have to say in this regard?

Ans. It is false and incorrect.

Q.66  It is further in evidence of PW 20 that she asked you  Manu Sharma again but you kept quiet and shaking your  hands that it  was not him and thereafter you pushed her  aside and went out and she ran after you but should could  not catch you.  What you have to say in this regard?

Ans. It is false and incorrect.

Q.67  It is further in evidence of PW-20 that while running  behind you (Manu Sharma), she reached the gate where her  husband  was  there,  to  whom  she   told  that  you  (Manu  Sharma)  shot  Jessica  and  asked  her  husband  to  see  in  which car you (Manu Sharma) gets in.  What you have to say  in this regard?

Ans. It is absolutely false and incorrect.”

A perusal of above questions and answers given by Manu  

Sharma  were  either  evasive  or  incorrect  and  as  rightly  

pointed out by the learned Solicitor General, an adverse  

inference  deserves  to  be  drawn  for  such  acts  of  the  

appellant-Manu Sharma.

The implication of delay in recording statements

58) Mr. Ram Jethmalani, learned senior counsel for the  

appellant-Manu  Sharma  by  placing  various  decision  

contended  that  the  delay  in  recording  statements  of  

witnesses is fatal to the case of the prosecution, when the  

trial Court rightly accepted the same, however, the High  

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Court committed an error in ignoring the said vital aspect.  

For this, learned Solicitor General submitted that the said  

contention is based on incorrect understanding of law and  

its wrong application to the facts of this case.  The first  

judgment relied on by the learned senior counsel for the  

appellant-Manu Sharma is in  Ganesh Bhavan Patel vs.  

State of Maharashtra, (1978) 4 SCC 371.  In that case,  

the witnesses were known and could have been examined  

when  the  Investigating  Officer  visited  the  scene  of  

occurrence or soon thereafter.  In the present case, there  

were about 100 or more persons present at the party.  The  

identity  of  all  such persons took substantial  amount of  

time to  determine.   Consequent to  the large number of  

witnesses,  their  interrogation  also  consequently  took  a  

substantial amount of time.  Unlike the said decision, in  

the present case, there are no concomitant circumstances  

to suggest that the investigator was deliberately making  

time with a view to give a particular shape to the case.  

The  details  of  investigation  conducted  on  each  day  are  

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very  clearly  brought  out  in  the  evidence  of  the  various  

witnesses.  Furthermore, the identity of the appellant as a  

suspect in the present case was not the consequence of  

any  delay.   Thus,  the  delay,  if  any,  in  recording  the  

evidence  of  witnesses  in  the  present  case  cannot  be  

considered as an infirmity in the prosecution case.

59) The judgment  in  Maruti  Rama Naik vs. State of  

Mahrashtra,  (2003)  10  SCC  670,  relied  on  is  also  

distinguishable.  The delay in recording the statement in  

that case was coupled with the unnatural conduct of the  

witness and that was what made the evidence of the said  

witness unreliable, which is not so in the present case.  

60) The  other  judgment  in  Jagjit  Singh vs. State  of  

Punjab (2005) 3 SCC 689 is also distinguishable.  In that  

case,  the  delay  in  recording  the  evidence  of  PW-6  was  

coupled  with  several  other  factors  which  made  her  

testimony  unreliable,  including  the  finding  that  she  

implicated  the  appellant  only  at  the  prompting  of  her  

father  and  that  otherwise  she  had  not  named  the  

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appellant  as  an  accused.   Furthermore,  there  was  no  

explanation regarding the delay in that case.  The facts of  

that case are, therefore, clearly different from the present  

case.

61) The defence seeks to discredit the statement of PW-1  

Deepak Bhojwani on two counts,  firstly that statement is  

recorded after  14  days  and  secondly, there  are  various  

improvements, in his statement.  It is next contended by  

the  defence  to  believe  this  man  is  to  disbelieve  Beena  

Ramani.  According to him, the prosecution did not know  

even on 14.05.1999 the  details  of  their  story  and thus  

resulting in various improvements in the testimony of this  

witness,  in  the  witness  box.   This  contention  of  the  

defence  looses  sight  of  the  fact  that  much  prior  to  

14.05.1999  Manu  Sharma  had  surrendered  on  

06.05.1999 and had made his disclosures and thus there  

could  be  no  question  of  not  knowing  the  facts  on  

14.05.1999.   Had  the  witnesses  been  planted,  the  

witnesses  would  have  rendered  a  parrot  like  testimony.  

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PW-1 has explicitly stated that on 30.04.1999 he had told  

the police at the Apollo Hospital all that he knew.  This  

being the case, it cannot be said that the testimony of the  

witness should be thrown out for the delay in recording  

the statement by the Police.  Clearly, PW-1 was not an eye  

witness, this fact must have been realized by PW-100 and  

101,  therefore,  they  felt  no  urgency  in  addressing  this  

aspect of the investigation i.e., recording of the statement  

of  PW-1.   It  is  stated  by  the  State  that  as  there  were  

number of witnesses to be examined the said examination  

continued  for  days.   Witnesses  Parikshit  Sagar  and  

Andleep  Sehgal  were  also  examined  on  14.05.1999.  

Further the presence of Deepak Bhojwani can also not be  

belied in view of the testimony of Sahana Mukherjee PW-

29 and Sabrina Lal PW-73.  In any case, any defect by  

delay  in  examination  of  witnesses  in  the  manner  of  

investigation cannot be a ground to condemn the witness.  

Further  Section  162 Cr.P.C.  is  very  clear  that  it  is  not  

mandatory for the police  to  record every statement.   In  

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other  words,  law  contemplates  a  situation  where  there  

might  be  witnesses  who  depose  in  Court  but  whose  

previous statements have not been recorded.   

62) It is next contended by the learned senior counsel for  

the  appellant-Manu  Sharma  that  there  was  a  delay  in  

recording the statement of Deepak Bhojwani and his name  

having not been found from the list of guests prepared by  

George Mailhot, Ex. 24/A.  It was further pointed out that  

the  list  was  not  a  conclusive  list  and was  prepared  by  

George Mailhot  on the basis of  remembrance and other  

witnesses  have  also  admitted  the  presence  of  Deepak  

Bhojwani.  This is more so relevant as the invited guests  

were  also  entitled  to  bring  guests  with  them.   The  

statements of witnesses were recorded not only by the I.O.  

himself but by other officials as well who were helping him  

in  investigation.  The delay in recording the statement of  

Deepak  Bhojwani  occurred  due  to  natural  flow  of  

statements  of  various  witnesses.   The  statement  of  

Deepak  Bhojwani  PW-1,  was  recorded  by  ACP  Durga  

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Prasad PW-92, who stated the name of Deepak Bhojwani  

occurred  during  the  course  of  interrogation  of  other  

guests/witnesses.  The evidence of PW-1 is relevant for a  

limited  purpose  i.e.,  proving  the  presence/identity  of  

Manu Sharma and his desire for liquor in the party which  

part of evidence has also been given by other witnesses in  

so many words, prior to Deepak Bhojwani as well.  The  

said  witness  in  his  evidence has categorically  stated as  

under:

“Few of the police officials came to Apollo Hospital along with  the  Ambulance  and  few  of  them  returned  to  Qutub  Colonnade.  I did not make any statement to the police in  Apollo  Hospital.   Since I  had not  seen the  incident  being  taking place and at Ashlok and Apollo Hospital discussion  was going on as to who had done this and it was also being  discussed that the culprit was wearing Blue Denim Jean and  White Shirt and was fair and was little short in height then I  assessed that he was the same person who came to me to  arrange  drinks  for  him.   I  had  told  the  police  in  Apollo  Hospital that it was Manu Sharma who was with the similar  description  as  was  discussed  amongst  friends  on  which  police had told me that they would call me.”

63) In  Mohd. Khalid  Vs. State of W.B.,  (2002) 7 SCC  

334, this Court held that mere delay in examination of the  

witnesses for a few days cannot, in all cases, be termed to  

be fatal so far as the prosecution is concerned.  There may  

be several reasons.  When the delay is explained, whatever  

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be  the  length  of  the  delay,  the  Court  can  act  on  the  

testimony of the witness if  it  is found to be cogent and  

credible.  In Prithvi vs. Mam Raj , (2004) 13 SCC 279, it  

was  held  that  delay  in  recording  the  statement  of  the  

witness can occur due to various reasons and can have  

several explanations and that it is for the Court to assess  

the explanation and, if  satisfied, accept the statement of  

the witness.   The same principle has been reiterated in  

Ganeshlal vs. State of Mahrashtra (1992) 3 SCC 106.

Evaluation of Laboratory reports and examination of  experts.   64) The  evidence  in  respect  of  two  FSL  reports  is  as  

under:

By letter dated 06.07.1999, the seized material was  

forwarded  to  CFSL  for  examination  and  expert  opinion  

and,  inter  alia,  the  following  queries  were  made  to  be  

opined by the CFSL :

“5. Please  examined  and  opine  whether  the  two  empties  present in parcel mentioned at Sl No.5 have been fired  from the same weapon?

6. Please examine and opine whether the bullet lead in  parcel No.6 and the bullet empties in parcel No.5 have  been fired from a standard five arm or a countrymade  fire arm?

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7.  Please  examine  and  opine  whether  ejector,  trigger,  chamber,  magazine  or  other  chamber  marks  are  present on the live bullet empties contained in parcel  Nos. 6 & 5 respectively?

8. If answer to querry No. 7 is yes then whether these  marks are similar and caused by the same fire arm?”

 The Ballistics Division of CFSL gave report in respect of  

the queries as under:

“1) The .22” badly mutilated lead bullet (marked BC/1) of  No.3  could  have  been  fired  from  a  standard  .22”  caliber firearm.

2) The  two  .22”  cartridge  cases  marked  C/1  and  C/2  have  been  fired  from  two  different  .22”  caliber  standard firearms.

3) The .22” cartridge (marked C/3) of parcel No.5 is a live  cartridge and no characteristic  tool marks (i.e. firing  pin,  ejector,  extractor,  breechface,  magazine  or  chamber  marks  etc.)  could  be  observed  on  this  cartridge.

4) The two .22” cartridge cases (marked C/1 & C/2) of  parcel  No.4  and  the  .22”  cartridge  (marked  C/3)  of  parcel No.5 have similar Head Stamp of ‘C’ indicating  that they are of the same make.  No opinion on their  series (lot/batch) could however be given.”

According  to  the  State  the  same  also  contained  

inconclusive opinion.  It  was pointed out that the State  

has  neither  relied  on the  report  of  the  expert  Sh.  Rup  

Singh nor had filed it in the trial Court.  An application  

was moved by the accused for the supply of the document  

and  vide  order  dated  14.01.2000,  the  Metropolitan  

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Magistrate directed that the State will have to supply all  

the deficient copies and also the remaining CFSL reports  

sent  by  CFSL to  SHO.   The opinion of  Sh.  Rup Singh,  

Ballistic  expert  finally  exhibited  as  Ex.  PW 89/DB only  

says that “it appears that the two cartridge cases are from  

two different pistols.”  As rightly pointed out such a vague  

opinion of the expert can neither be relied upon nor can  

be any basis to come to a conclusion that there were two  

persons who had fired two different shots.

65) With regard to Prem Sagar Manocha PW-95, Ballistic  

expert at FSL, Jaipur, a specific query being query No.3  

that  whether both the empty cartridge cases have been  

fired from the same firearm or otherwise.  In the reply to  

the said query, the expert opined that no definite opinion  

could be given on the two .22” bore cartridge cases C-1  

and  C-2  in  order  to  link  with  the  firearm  unless  the  

suspected  firearm  is  available  to  examination.   It  was  

pointed out  that  the  trial  Court  puts  a  question to  the  

witness  and  while  putting  the  question  first  gives  a  

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specific  fact  finding  that  for  reply  to  Query  No.  3,  the  

presence of the firearm was not necessary.  This incorrect  

finding  of  fact  given  by  the  trial  Court  based  on  no  

expertise and had resulted in grave miscarriage of justice.  

It  is  well  settled that  while  giving reports  after  Ballistic  

examination, the bullets, cartridge case and the cartridges  

recovered and weapon of  offence recovered are carefully  

examined and test firing is done at the FSL by the said  

weapon  of  offence  and  then  only  a  specific  opinion  is  

given.

66) It  is  contended  by  the  learned  counsel  for  the  

appellant/Manu Sharma that the prosecution tried their  

level best to suppress the report of the Ballistic expert Shri  

Rup Singh which was not favourable to them and that the  

same was exhibited at the instance of the defence as Ex.  

PW 89/DB.   It  has been further  argued that  while  the  

charge sheet was filed on 03.08.1999, the police sought an  

expert opinion practically at the end of the investigation  

i.e. vide letter dated 16.07.1999, Ex. PW-89/DA.  At Sl.  

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No. 67 of the charge sheet one finds mention of the letters  

sent by the SHO seeking the expert opinion.  The charge  

sheet was filed without the expert opinion.  The accused  

on seeing Sl. No.67, approached the committal Court and  

asked for the expert report.  It has been argued that the  

I.O.  had  received  the  opinion  in  the  first  week  of  

December,  1999  but  did  not  file  the  same.   On  

21.12.1999, the Court directed the prosecution to file the  

report.  The SPP objected to the same on the ground that  

the order required modification but the same was rejected  

and on 14.01.2000, the Court again directed supply of the  

expert report.  It has been argued that since the report did  

not favour the prosecution, the same was withheld.  It has  

been further argued by the defence that failure on the part  

of the prosecution to bring on record material which is in  

favour  of  the  accused  is  a  breach  of  Article  21  of  the  

Constitution.  It has been argued by the defence that it  

was improper on the part of the prosecution to condemn a  

ballistic expert, i.e., Rup Singh without calling him in for  

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cross-examination.   It  has  been  further  argued  by  the  

defence that by virtue of Section 293 Cr.P.C., the report is  

admissible  in  evidence  and  that  the  weapon  is  not  

required to show whether the two empties are fired from  

the same gun and the weapon is only required when one  

has to determine as to whether a particular weapon was  

responsible for firing the empties in question.  The expert  

evidence is  only  good if  it  appeals  to  the  judicial  lines;  

appreciation of such evidence can only be the work of the  

Court.  Reliance has been placed on A.E.G. Carapiet vs.  

A.Y. Derderian,  AIR 1961 Calcutta 359 paras 10-14 to  

assert that every witness must be cross-examined before  

being discredited.  The prosecution cannot challenge the  

expert  at  the  stage  of  appeal  when his  testimony  went  

unchallenged at the stage of the trial.  67)  It has been  

argued that the Court must lay down in clear terms the  

duties of a public prosecutor i.e., to tell the truth even if  

the same is in favour of the accused.  Reliance has been  

placed on Rule 16 of the Bar Council of India Rules which  

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are  to  the  said  effect.   Reliance  is  further  placed  on  

Attorney  Generals  Guidelines  contained  in  Archbold  

Criminal pleadings edition 2003 to say that it is obligatory  

on the part of the prosecution to disclose all the material.  

It has been argued that even after an application under  

Section 391 Cr.P.C. has been filed, the prosecution still  

chose not to call the expert Rup Singh and cross-examine  

him.  Ex.PW-89/DB supports PW-2 and vice versa, since  

his  evidence  is  corroborated  by  the  expert  report.  

Attention of  the Court  was invited to  the results  of  the  

examination.  As regards the 2nd opinion given by PW-95,  

it has been argued that this court must assume that the  

prosecution  sought  a  favourable  opinion  from  the  said  

witness.   The  said  witness  obliged  them  and  created  

confusion  by  saying  that  no  conclusive  opinion  can  be  

given without examining the weapon in question.

67) It was pointed out by the State that the said report of  

Rup Singh is inadmissible in law since it is a photocopy  

and, therefore, does not fall within the purview of a report  

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in terms of Section 293 of the Code.  In other words, in  

terms of the relevant provisions of the Indian Evidence Act  

unless the original document is placed for the scrutiny of  

the  Court,  no reliance  can be  placed on the  photocopy  

without leading proper secondary evidence in this regard.  

In any case, both Section 293 and Section 294 of the Code  

which  dispense  with  formal  proof  of  documents  under  

certain circumstances make it abundantly clear that the  

documents sought to be relied upon must be the originals.  

Assuming  for  the  sake  of  the  argument,  though  not  

admitting, that the said report of Rup Singh, i.e. Ex. PW-

89/DB is admissible even though a photocopy has been  

placed on record and even though nowhere it has come in  

evidence  that  the  same  i.e.  the  photocopy  has  been  

compared and scrutinized with the original by the Court  

and  then  placed  on  record,  the  same  still  looses  all  

credence  in  the  light  of  the  fact  that  a  perusal  of  the  

forwarding letter and report would show that there seems  

to  have  been some tampering  with  the  said  documents  

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since the sequence of numbering of the parcels as between  

the forwarding letter and the report has been changed by  

somebody which fact remains unexplained as, therefore,  

casts  a  further  doubt  on  the  genuineness  of  the  said  

report.     The report itself with regard to query No.3 shows  

that  “it appears that the two cartridge cases C-1 and C-2  

have been fired by two different weapons”.  This opinion of  

the expert was vague and on the basis of said opinion no  

credence can be lent to the fact adverted to by the defence  

that there were two persons who fired two different shots  

from two different weapons.  Moreover the said report is  

oddly silent on query No.7 of the forwarding letter wherein  

it  was specifically asked about the various markings on  

the live cartridge and the bullet empties.  The stand of the  

defence that to opine the two cartridge cases are from the  

same weapon or  not  the  pistol  is  not  required and the  

pistol is only required when the opinion is sought whether  

they  are  from that  particular  weapon or  not  cannot  be  

accepted.   It  is  well  settled that  when pressure is  built  

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inside the cartridge case, which results in the pushing out  

of  the  bullet  from the  barrel,  there  is  difference  in  the  

marks to the extent that it may be either clear or unclear  

and  flattened  or  deepened  thus  no  opinion  can  be  

rendered on account of this dissimilarity in the absence of  

the weapon of offence and test firing.  Further once the  

report of Rup Singh is rendered inadmissible the two gun  

theory  of  the  defence  becomes  wholly  inadmissible  and  

what remains is that the two empties found at the spot are  

.22” bore cartridges, that the live bullet found in the Tata  

Safari is a .22” cartridge and that the gun  belonging to  

the appellant is a .22” bore pistol which was used for the  

commission of the crime of murder of Jessica Lal.

68) The prosecution obtained another opinion from FSL  

Rajasthan and the queries made are as under:

“1. Please  examine  and opine  the  bore  of  the  two  empty  cartridges present in the sealed parcel.

2. Please opine whether these two empty cartridges have  been fired from a pistol or a revolver.

3. Whether both the empty cartridges have been fired from  the same fire arm or otherwise.”

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In  response  to  these  queries,  the  expert  opinion  of  the  

FSL, Rajasthan is as under:

“1. The caliber of two cartridge cases (C/1 and C/2) is .22.

2. These two cartridge cases (C/1 and C/2) appear to have  been fired from a pistol

3. No definite opinion could be given on two .22 cartridge  cases (C/1 and C/2) in order to link with firearm unless  the suspected firearm is available for examination.”

It was pointed out by the State that this opinion also was  

inconclusive  in  nature.   In  the  worksheet,  it  was  

categorically  recorded  that  the  Investigating  Officer  be  

informed to make available the suspected fire arm used  

for  definite  opinion on linking of  C-1 and C-2 with the  

same fire arm or otherwise.  The worksheet also records  

that the fire arm involved be sent for definite opinion.  At  

this  juncture,  it  is  relevant  to  note that  the trial  Court  

posed a leading question as under:

“ Q. From reply to query No.3 the presence of the fire arm  was not necessary.  The question was whether the two empty  cartridges  have  been  fired  from  one  instrument  or  from  different instruments?  Ans.  The question is now clear to me.  I can answer the  query  here  and  now.   These  two  cartridge  cases  were  examined  physically  and  under  sterio  and  comparison  microscope to study and observe and compare the evidence  and the characteristics marks present on them which have  been printed during firing.   After comparison, I  am of the  

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opinion  that  these  two  cartridge  cases  C/1  and  C/2  appeared to have been fired from two different fire arms.”

The said witness in further cross-examination replied as  

under:

“There is nothing in the record of the Court on my report on  the basis of which I had given this finding that C/1 and C/2  were fired from two different fire arms”

The  said  witness  in  further  cross-examination  deposes  

that  no  photographs  were  taken  or  there  is  any  other  

evidence to show the basis of opinion given by the witness  

before the trial Court.

69) The learned senior counsel for the appellant-accused  

has contended that the contention of the prosecution that  

the trial Court could not have asked the particular Court  

question  to  PW-95  is  contrary  to  Section  165  Cr.P.C.  

inasmuch as the power of Judge is very wide.  It has been  

further  argued  by  the  defence  that  the  duties  of  a  

Presiding officer are set out in Section 165 of the Indian  

Evidence Act.  Reliance is sought to be placed on  Ram  

Chander vs. State of Haryana, AIR 1981 SC 1036.  It  

has been argued that the judge knew that the issue was  

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whether two empties were fired from the same gun.  It has  

been  further  argued  that  the  judge  has  seen  EX.  PW-

89/DB and, therefore, any judge would have noticed that  

the controversy was whether these two bullets were fired  

from the same weapon or not.  The Judge also found out  

that this query went to the CFSL and CFSL answered the  

same.  It has been argued that, therefore, the Judge knew  

that to answer this query weapon was not required.  It has  

been  argued  that  the  Court  must  read  in  between  the  

lines.

70) It is pointed out by the State that the contention of  

the prosecution was that the trial Court could not have  

first put a specific finding of its own opinion to the expert  

witness and then ask him questions.   Learned Solicitor  

General pointed out that in the attempt of the trial Court  

to extract the truth from the said witness, it misdirected  

itself  in  law  by  posing  such  a  question.   This  is  

impermissible even as per the judgment in Ram Chander  

(supra) relied on by the defence.  This judgment is in fact  

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in favour of the prosecution since the same clearly puts an  

embargo on the power of a judge to ask questions so as to  

frighten, coerce, confuse or intimidate the witness.  The  

danger inherent in a judge adopting a much too stern an  

attitude towards witness has been duly explained in the  

said decision.  The judge cannot ask questions which may  

confuse  a  witness.   The argument  that  the  judge knew  

that the issue in question was whether the two empties  

found on the spot were fired from the same gun is wrong  

and misleading.  The judge knew that as per the charge  

framed against Manu Sharma it  was he alone who was  

charged with the possession and use of a gun.  The judge  

also knew that  the first  expert  opinion was brought on  

record at the instance of the accused; the judge further  

knew that PW-95 had stated in no uncertain terms that  

no  opinion  can  be  given  as  regards  the  two  empties  

without  receipt  of  the  weapon  of  offence.   In  spite  of  

knowing all this, the judge first put a finding of its own to  

the witness that he did not need the firearm in question in  

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order to reply as to whether the two empties were fired  

from the same gun i.e., a gun and not the gun.  The Court  

exceeded its power under Section 165 of the Evidence Act  

by putting the question after giving its own finding.   

71) On behalf of the prosecution, it  is pointed out that  

the entire argument of the accused that an expert opinion  

was sought at the fag end of the charge sheet to seek a  

favourable   opinion in favour of  the prosecution in fact  

suggests that the I.O. in question was oblivious of the fact  

that such an opinion could work to the detriment of the  

case of the prosecution i.e. two empties having been fired  

from the  same weapon of  offence  belonging  to  accused  

Manu Sharma.  The fact that the I.O. sought to mention at  

S.No.  67  of  the  list  of  documents  in  the  Charge  Sheet  

about  the  forwarding  letter  to  the  expert  only  suggests  

that the prosecution had no intention of carrying out the  

act of seeking an expert opinion, is hiding.  The discretion  

on the part of the I.O. and the superior officers was rightly  

exercised when they decided not to file the expert report  

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since they realized that the expert report is ambiguous as  

it uses the term “appear” when it suggests that the two  

empties appear to have been fired from different weapons.  

Clearly  the  said  opinion  was  far  from  conclusive  and  

would  have  only  created  confusion  in  the  case  of  the  

prosecution.   Thereafter  a  second  opinion  was  sought  

wherein  the  expert  i.e.  PW-95 opined that  a  conclusive  

opinion can only be given after the receipt of the weapon  

of offence.  The argument that the weapon of offence is not  

required to determine whether the two bullets have been  

fired from the same gun is based on the wrong premise  

that the two empties would necessarily consist of features  

which would enable an expert in determining the said fact.  

For instance, as in the case of a handwriting expert who  

has to  give  an opinion about  two different  sets  of  near  

identical  questioned  documents  and  as  to  whether  the  

same belong to different persons, if the argument of the  

accused has to be accepted then the expert should be able  

to give such an opinion without having in his possession  

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the specimen handwriting and the admitted handwriting  

of the accused.  It is stated that such an approach would  

render the opinion as that of a layman and not an expert.  

Similar  would  be  case  of  a  finger  print  expert  who  

undertakes the process of discovering two different sets of  

finger  print  which  are  in  question,  without  having  the  

specimen or the admitted finger print of  the accused in  

question.  In other words, an expert is only an expert if he  

follows  the  well  accepted  guidelines  to  arrive  at  a  

conclusion and supports the same with logical reasoning  

which is a requirement of law as laid down in the Indian  

Evidence Act.  In the present case, the moment Rup Singh  

uses  the  word  “appear”  his  opinion  unsupported  by  

reasons becomes inconclusive and stands discredited for  

the purpose of placing reliance on.  The opinion of Rup  

Singh was at query No.7 as to “please examine and opine  

whether  ejector,  trigger,  chamber,  magazine  or  other  tool   

marks are present on the live bullet and the bullet empties   

contained in parcel Nos. 6 & 5 respectively.”  Though Shri  

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Rup Singh has given opinion qua query No.5 that the two  

.22” cartridge cases appears to have been fired from two  

different .22” caliber standard firearms but his opinion is  

completely  silent  on  the  marks  i.e.  ejector,  trigger,  

chamber,  magazine  or  other  tool  marks  on  the  bullet  

empties (Ex. PW 89/DB).  Clearly an option was available  

to the accused under Section 293 Cr.P.C. to call for the  

witness  and  ascertain  from  his  for  sure  that  the  two  

empties  were  in  fact  fire  from  two  different  weapons,  

however, the accused did not choose to do so in terms of  

Section 293 Cr.P.C.  In any case, the opinion of Rup Singh  

as of today is of little  use to the accused for the reasons  

stated  above  and  since  it  is  both  inconclusive  and  

unsupported by any reasoning whatsoever and, therefore,  

cannot appeal to the judicial mind of this Court.  Similar  

is  the  case  with  the  expert  opinion  of  PW-95  which  is  

again  inconclusive.   There  is  no  evidence  on  record  to  

suggest  that  PW-95  gave  an  opinion  to  oblige  the  

prosecution.  On the contrary, his response to the Court  

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question reveals that he was extremely confused as to the  

issue which had to be addressed by him in the capacity of  

an  expert.   In  the  concluding  part  of  his  testimony  he  

reaffirms the opinion given by him which is that without  

test  firing  the  empties  from  the  weapon  of  offence  no  

conclusive opinion can be given.

72) It  is  pertinent  to  note  that  the  testimony  of  the  

experts  i.e.,  Rup  Singh  exhibited  as  Ex.PW-89/DB and  

PW-95 Prem Sagar Minocha exhibited as Wx PW-95/C-1  

in inconclusive.  The expert PW-95 Prem Sagar Minocha  

has stated in his report  that it  is only on receiving the  

weapon of offence that a conclusive opinion as to whether  

the two empties (cartridge cases) found at the spot were  

fired from the same weapon or from two different weapons  

could be given.

73) The defence seeks to reply upon the testimony of PW-

2 with regard to the two gun theory put forward.  In this  

regard, the defence seeks to corroborate the said part of  

PW-2’s testimony with the testimony of the two ballistic  

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experts.  It has also been contended by the defence that  

the testimony of a hostile witness must be corroborated by  

the  other  reliable  evidence  on  record  in  order  to  be  

admissible.  The law is very clear that where a witness for  

the prosecution turns hostile, the Court may rely upon so  

much of  the testimony,  which supports  the case of  the  

prosecution and is corroborated by other evidence.  PW-

2’s  testimony  as  regards  the  identity  of  the  person  

shooting, is certainly not corroborated by the testimony of  

the  experts  since  both  the  experts  have  given  opinions  

which cannot qualify as conclusive opinion of experts.   

Role of Public Prosecutor and his duty of disclosure:

74)  It was argued by Mr. Ram Jethmalani, learned senior  

counsel  for  the  appellant-Manu  Sharma  that  the  

prosecutor had suppressed vital evidence relating to the  

laboratory  reports  which were  useful  for  the  defence in  

order to establish the innocence of the accused. Learned  

senior counsel further argued that the prosecutor had not  

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complied  with  his  duty  thus  violating  fair  trial  and  

vitiating the trial itself.

75)  It  is  thus important for  us to address the role of  a  

prosecutor,  disclosure  requirements  if  placed  by  the  

prosecutor and the role of a judge in a criminal trial.

76)  A public prosecutor is appointed under Section 24 of  

the Code of Criminal Procedure. Thus, Public Prosecutor  

is  a  statutory  office  of  high  regard.  This  Court  has  

observed  the  role  of  a  prosecutor  in  Shiv  Kumar v.  

Hukam Chand and Anr., (1999) 7 SCC 467 as follows:

“13.  From the scheme of the Code the legislative intention is  manifestly clear that prosecution in a Sessions Court cannot  be conducted by any one other than the Public Prosecutor.  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  

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subjected his role strictly  to  the instructions given by the  Public Prosecutor.”

This  Court  has  also  held  that  the  prosecutor  does  not  

represent the investigation agencies, but the State. This  

Court in Hitendra Vishnu Thakur and Others v. State  

of Maharashtra and Others, (1994) 4 SCC 602 held:

“22.  … A public  prosecutor  is  an important  officer  of  the  State Govt. and is appointed by the State under the CrPC.  He  is  not  a  part  of  the  investigating  agency.  He  is  an  independent  statutory  authority.  The  public  prosecutor  is  expected to independently apply his mind to the request of  the investigating  agency before  submitting  a report  to  the  court  for  extension  of  time  with  a  view  to  enable  the  investigating agency to complete the investigation. He is not  merely  a  post  office  or  a  forwarding  agency.  A  public  prosecutor may or may not agree with the reasons given by  the  investigating  officer  for  seeking  extension  of  time  and  may find that  the investigation had not progressed in the  proper  manner  or  that  there  has  been  unnecessary,  deliberate or avoidable delay in completing the investigation”

Therefore, a public prosecutor has wider set of duties than  

to merely ensure that the accused is punished, the duties  

of ensuring fair play in the proceedings, all relevant facts  

are brought before the court in order for the determination  

of  truth  and  justice  for  all  the  parties  including  the  

victims. It must be noted that these duties do not allow  

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the prosecutor to be lax in any of his duties as against the  

accused.  

77)  It is also important to note the active role which is to  

be played by a court in a criminal trial. The court must  

ensure  that  the  prosecutor  is  doing  his  duties  to  the  

utmost  level  of  efficiency  and  fair  play.  This  Court,  in  

Zahira  Habibulla  H.  Sheikh  and  Anr.  v.  State  of  

Gujarat  and  Ors., (2004)  4  SCC  158,  has  noted  the  

daunting task of a court in a criminal trial while noting  

the most pertinent provisions of  the law. It is  useful  to  

reproduce the passage in full:

“43. The Courts have to take a participatory role in a trial.  They  are  not  expected  to  be  tape  recorders  to  record  whatever is being stated by the witnesses. Section 311 of the  Code and Section 165 of  the Evidence Act confer vast and  wide  powers  on  Presiding  Officers  of  Court  to  elicit  all  necessary materials by playing an active role in the evidence  collecting process. They have to monitor the proceedings in  aid  of  justice  in  a  manner  that  something,  which  is  not  relevant,  is  not unnecessarily  brought into record.  Even if  the prosecutor is  remiss in some ways,  it  can control  the  proceedings effectively so that ultimate objective i.e. truth is  arrived  at.  This  becomes  more  necessary  the  Court  has  reasons  to  believe  that  the  prosecuting  agency  or  the  prosecutor is not acting in the requisite manner. The Court  cannot  afford  to  be  wishfully  or  pretend  to  be  blissfully  ignorant or oblivious to such serious pitfalls or dereliction of  duty on the part of the prosecuting agency. The prosecutor  who does not act fairly and acts more like a counsel for the  defence is a liability to the fair judicial system, and Courts  

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defense. In the absence of this, it was argued, there would  

be a violation of the right to fair trial.

79)  In the light of this argument, let us examine the exact  

nature of the duty of disclosure on the public prosecutor  

in ordinary cases of criminal trial. The Cr.P.C. imposes a  

statutory obligation on the public prosecutor to disclose  

certain  evidence to  the  defense.  This  is  brought out  by  

sections 207 and 208 as follows:

“207. Supply to the accused of copy of police report and  other documents.

In any case where the proceeding has been instituted on a  police report, the Magistrate shall without delay furnish to  the accused, free of cost, a copy of each of the following.

(i) The police report;

(ii) The first information report recorded under section 154:

(iii) The  statements  recorded  under  sub-section  (3)  of  section  161  of  all  persons  whom  the  prosecution  proposes  to  examine as its witnesses, excluding there from any part in  regard to which a request for such exclusion has been made  by the police officer under sub- section (6) of section 173.

(iv) The  confessions  and  statements,  if  any,  recorded  under  section 164;

(v) Any other document or relevant extract thereof forwarded to  the Magistrate with the police report under sub-section (5) of  section 173:

Provided that the Magistrate may, after perusing any such  part  of  a  statement  as  is  referred  to  in  clause  (iii)  and  considering  the reasons given by the  police officer  for  the  request, direct that a copy of that part of the statement or of  

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such portion thereof as the Magistrate thinks proper, shall  be furnished to the accused: Provided further that if the Magistrate is satisfied that any  document referred to in Clause (v) is Voluminous, he shall,  instead of furnishing the accused with a copy thereof', direct  that he will only be allowed to inspect it either personally or  through pleader in court.”

“208. Supply of copies of statements and documents to  accused in other cases triable by court of Session.

Where, in a case instituted otherwise than on a police report,  it  appears to the Magistrate issuing process under section  204 that  the offence is  triable  exclusively by the Court  of  Session,  the Magistrate  shall  without  delay furnish to the  accused, free of cost, a copy of each of the following.

(i) The statements recorded under section 200 or section 202,  or all persons examined by the Magistrate;

(ii) The  statements  and  confessions,  if  any,  recorded  under  section 161 or section 164;

(iii) Any documents produced before the Magistrate on which the  prosecution proposes to rely:

Provided  that  if  the  Magistrate  is  satisfied  that  any  such  document is voluminous, he shall, instead of furnishing the  accused  with  a  copy  thereof,  direct  that  he  will  only  be  allowed to inspect it either personally or through pleader in  court.”

“Rule 16 of the Bar Council of India Rules.

Rule 16 of the Chapter II, part VI of the Bar Council of India  Rules under the Advocates Act, 1961 is as under:

16. An advocate appearing for the prosecution of a criminal  trial shall so conduct the prosecution that it does not lead to  conviction  of  the  innocent.   The  suppression  of  material  capable of establishing the innocence of the accused shall be  scrupulously avoided.”

Therefore, it is clear that the Code & the Bar Council of  

India  Rules  provide  a  wide  duty  of  disclosure.  But  this  144

duty  is  limited  to  evidence  on  which  the  prosecutor  

proposes  to  place  reliance  during  the  trial.   Mr.  Ram  

Jethmalani  argued that  this  duty extends beyond these  

provisions,  and includes  even that  evidence  which  may  

not have been used by the prosecutor during the trial. As  

we  have  already  mentioned,  for  this  purpose,  he  relied  

upon the position in England.

80)  Currently, the position in England is governed by the  

Criminal Procedure and Investigations Act, 1996.  Prior to  

this  enactment,  the  position  was  squarely  covered  by  

common law.  This  position  comes  out  primarily  in  two  

cases. In  R. v Ward (Judith Theresa)  (1993) 2 All E.R.  

577,  Court  of  Appeal  held  that  it  was  the  duty  of  the  

prosecution to ensure fair trial  for both the prosecution  

and the accused. The duty of disclosure would usually be  

performed by supplying the copies of witness statements  

to the defense and all relevant experiments and tests must  

also be disclosed. It was held that the common law duty to  

disclose  would  cover  anything  which  might  assist  the  

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defense. Non-compliance with this duty would amount to  

“irregularity  in  the  course  of  the  trial”  under  Section  

2(1)(a) of the Criminal Appeal Act, 1988.

81)  In R v. Preston & Ors. (1993) 4 All ER 638, on which  

the appellants specifically relied upon, dealt with the non-

disclosure of a telephonic conversation in a matter dealing  

with the Interception of Communications Act, 1985. The  

relevant  material  had  been  destroyed  in  pursuance  of  

Section  6  of  the  same  Act.  In  appeal,  the  defendants  

essentially argued that the non-disclosure of the contents  

of  the  call  to  the  defense  amounted  to  a  material  

irregularity. The court held that it is true that the mere  

fact that the material was not to be used as evidence did  

not  mean  that  the  material  was  worthless,  especially,  

when it might have been of assistance to the defendant.  

But at the same time, it was also held that:  

“since the purpose of a warrant issued under s.2(2)(b) of the  1985 Act did not extend to the amassing of evidence with a  view  to  the  prosecution  of  offenders,  and  since  the  investigating authority was under a duty under s.6 of the Act  to destroy all material obtained by means of an interception  as  soon  as  its  retention  was  no  longer  necessary  for  the  prevention or detection of serious crime, the destruction of  the  documents  obtained  from  the  interception  and  their  

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consequent unavailability for disclosure could not be relied  upon by Defendants as a material irregularity in the course  of their trial”.

Thus the position under common law is clear, i.e. subject  

to exceptions like sensitive information and public interest  

immunity,  the  prosecution should disclose  any material  

which might be exculpatory to the defence.

82)  In the Indian Criminal jurisprudence, the accused is  

placed in a somewhat advantageous position than under  

different  jurisprudence  of  some  of  the  countries  in  the  

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  

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mandate  contained  in  Articles  20  and  21  of  the  

Constitution  of  India.   A  person  is  entitled  to  be  tried  

according to the law in force at the time of commission of  

offence.   A person could not  be punished for  the same  

offence twice and most significantly cannot be compelled  

to be a witness against himself and he cannot be deprived  

of his personal liberty except according to the procedure  

established by law.  The law in relation to investigation of  

offences  and rights  of  an  accused,  in  our  country,  has  

developed with the passage of  time.   On the one hand,  

power is vested in the investigating officer to conduct the  

investigation freely and transparently.  Even the Courts do  

not  normally  have  the  right  to  interfere  in  the  

investigation.   It  exclusively  falls  in  the  domain  of  the  

investigating  agency.   In  exceptional  cases  the  High  

Courts have monitored the investigation but again within  

a very limited scope. There, on the other a duty is cast  

upon the prosecutor to ensure that rights of an accused  

are not infringed and he gets a fair chance to put forward  

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his defence so as to ensure that a guilty does not go scot  

free while an innocent is not punished.  Even in the might  

of  the  State  the  rights  of  an  accused  cannot  be  

undermined,  he  must  be  tried  in  consonance  with  the  

provisions of the constitutional mandate.  The cumulative  

effect  of  this  constitutional  philosophy  is  that  both  the  

Courts  and  the  investigating  agency  should  operate  in  

their own independent fields while ensuring adherence to  

basic rule of law.  It is not only the responsibility of the  

investigating  agency  but  as  well  that  of  the  Courts  to  

ensure that investigation is fair and does not in any way  

hamper the freedom of an individual except in accordance  

with law.   Equally  enforceable  canon of  criminal  law is  

that  the  high  responsibility  lies  upon  the  investigating  

agency  not  to  conduct  an  investigation  in  tainted  and  

unfair manner.  The investigation should not prima facie  

be indicative of bias mind and every effort should be made  

to bring the guilty to law as nobody stands above law de  

hors his position and influence in the society.  In the case  

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of Kashmeri Dev v. Delhi Administration and Anrs. [JT  

1988  (2)  SC  293]  it  has  been  held  that  the  record  of  

investigation should not show that efforts are being made  

to protect and shield the guilty even where they are police  

officers  and  are  alleged  to  have  committed  a  barbaric  

offence/crime.  The Courts have even declined to accept  

the report submitted by the investigating officer where it is  

glaringly  unfair  and  offends  basic  canons  of  criminal  

investigation  and  jurisprudence.   Contra  veritatem  lex  

nunquam aliquid permittit: implies a duty on the Court to  

accept and accord its approval only to a report which is  

result of faithful and fruitful investigation.  The Court is  

not  to  accept  the  report  which  is  contra  legem but  to  

conduct  judicious  and  fair  investigation  and  submit  a  

report in accordance with Section 173 of the Code which  

places  a  burden  and  obligation  on  the  State  

Administration.   The aim of  criminal  justice is  two-fold.  

Severely  punishing  and  really  or  sufficiently  preventing  

the crime. Both these objects can be achieved only by fair  

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investigation  into  the  commission  of  crime,  sincerely  

proving the case of the prosecution before the Court and  

the guilty is punished in accordance with law.

83) Historically but consistently  the view of this Court  

has been that an investigation must be fair and effective,  

must proceed in proper direction in consonance with the  

ingredients  of the offence and not in haphazard manner.  

In  some  cases  besides  investigation  being  effective  the  

accused may have to prove miscarriage of justice but once  

it  is  shown  the  accused  would  be  entitled  to  definite  

benefit in accordance with law.  The investigation should  

be conducted in a manner so as to draw a just balance  

between  citizen’s  right  under  Articles  19  and  21  and  

expensive power of the police to make investigation.  These  

well established principles have been stated by this Court  

in the case of  Sasi Thomas vs.  State & Ors. [(2007) 2  

SCC (Criminal) 72], State Inspector of Police  vs.  Surya  

Sankaram Karri [(2006) 3 SCC (Criminal) 225 and T.T.  

Antony  vs.  State of  Kerala [(2001) 6 SCC 181.   In  

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Nirmal Singh Kahlon  vs.  State of Punjab [AIR 2009  

SC  984] this Court specifically stated that a concept of  

fair  investigation  and  fair  trial  are   concomitant  to  

preservation   of  fundamental  right  of  accused  under  

Article 21 of the Constitution of India.   We have referred  

to this concept of judicious and fair investigation as the  

right  of  the  accused  to  fair  defence  emerges  from  this  

concept  itself.   The  accused  is  not  subjected  to  

harassment, his right to defence is not unduly  hampered  

and what he is entitled to received in accordance with law  

is not denied to him contrary to law.   

84) It is pertinent to note here that one of the established  

canons of  just,  fair  and transparent investigation is the  

right  of  defence  of  an  accused.   An  accused  may  be  

entitled to ask for certain documents during the course of  

enquiry/trial by the Court.  Let us examine the extent of  

this right of an accused in light of the statutory provisions  

and the manner in which the law has developed under the  

criminal jurisprudence.  To understand this concept in its  

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right  perspective  we must  notice  the  scheme under  the  

provisions of Section 170 to 173 of the Criminal Procedure  

Code.  All these provisions fall under Chapter XII of the  

Code which deals with, information of the police and their  

powers  to  investigate.   The  power  of  the  police  to  

investigate freely and fairly is well recognized and codified  

in law.  In terms of Section 170, the investigating officer  

when  satisfied  that  sufficient  evidence  or  reasonable  

grounds exist he shall forward accused under custody to a  

Magistrate along with such weapons or articles which may  

be necessary to be produced before the Court.   Section  

172 of the Code has a meaningful bearing on the entire  

investigation by a police officer.  It is mandatory for him to  

maintain a diary under this chapter where he shall enter  

day-by-day proceedings in the investigation carried out by  

him.  He is expected to mention time of events and his  

departure, reporting back and closing of the investigation,  

the  place/places  he  visited  and  the  statements  he  

recorded  during  investigation.   The  statement  of  the  

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witness is recorded during the investigation under Section  

161 shall be inserted in that diary.  A Criminal Court is  

empowered under Section 172 (2) to send for the diaries  

and they could be used by the Court but not as evidence  

in the case but to aid it in such inquiry for trial.  However,  

Sub-section 3 of the same Section provides that neither  

the  accused nor  his  agents  shall  be  entitled  to  call  for  

such diaries, nor they are entitled to see them but it is  

only where the police officer who makes them to refresh  

his memory or the Court uses them for the purposes of  

contradicting such police officers in terms of Section 172  

than Sections 161 or 145 provisions would apply.  Section  

173 commands the investigating agency to complete the  

investigation expeditiously without unnecessary delay and  

when such an investigation  is  completed,  the  officer  in  

charge of the police station shall forward to a Magistrate  

empowered to take cognizance of offence on a police report  

with the details in the form as may be prescribed by the  

State  Government  and provide  the  information  required  

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under  this  Section.   Provisions  of  Section  173  (5)  

contemplates  and  make  it  obligatory  upon  the  

investigating officer where the provisions of Section 170  

apply to forward to the Magistrate along with his report,  

all  documents or relevant extracts thereof  on which the  

prosecution proposes to rely other than those already sent  

to the Magistrate during investigation in terms of Section  

170 (2) of the Code.  During investigation the statement  

recorded under Section 161 of all the persons whom the  

prosecution proposes to examine as witnesses shall also  

be sent to the Magistrate. Some element of discretion is  

vested with the police officer under Section 173 (6) where  

he  is  of  the  opinion  that  any  such  statement  is  not  

relevant  to  the  subject  matter  of  the  proceedings or  its  

disclosure to  accused is  not  essential  in the  interest  of  

justice  and is  expedient  in  the  public  interest  he  shall  

indicate that part of the statement refusing a Magistrate  

that part from the copies to be granted to the accused and  

stating  his  reason  for  making  such  a  request.   Sub-

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Section  7  of  the  same  Section  is  indicative  of  another  

discretion given to the police officer under law that where  

he  finds  it  convenient,  he  may  furnish  the  copy  of  

documents refer to Sub-section 5 of the Section.  Section  

173  (8)  empowers  an  investigating  officer  to  submit  a  

further  report  if  he  is  able  to  correct  further  evidence.  

Once this report in terms of Section 173 is received the  

court shall proceed with the trial of the case in accordance  

with law.   

85) What  is  the  significance  of  requiring  an  investigating  

officer/officer in charge of a police station to maintain a diary?  

The purpose and the object seems to be quite clear that there  

should be fairness in investigation, transparency and a record  

should be maintained to ensure a proper investigation.

86) In  the  case  of  Habeeb  Mohammad  v. State  of  

Hyderabad,  A.I.R.  1954  S.C.  51,  this  Court  stated  the  

principle of law that the criminal court may send for the police  

diaries of a case under inquiry/trial in such court and may  

use such diaries,  not as evidence in the case but to aid in  

such inquiry or trial.  It seems to the Court that the learned  

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Judge in error in making use of the police diaries at all in his  

judgment and in seeking confirmation of his opinion on the  

question  of  appreciation  of  evidence  from  statements  

contained in those diaries.  The proper use of diaries he could  

make in terms of  Section 172 Cr.P.C.  by elucidating points  

which need clarification.  The Court in this case was primarily  

concerned with the argument that diaries were not produced.   

87) Further in the case of  Khatri  v. State of Bihar A.I.R.  

1981  SC  1068  though  in  a  writ  petition  this  Court  was  

concerned with a 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  

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that is the matter which Shri L.V. Singh was directed  by the State Government to investigate.  If that be so,  it  is  difficult  to  see  how  the  State  can  resist  the  production of these reports and their use as evidence  of  these  reports  and  their  use  as  evidence  in  the  present proceeding.  These reports are clearly relevant  under Section 35 of the Indian Evidence Act.”

88) In  the  case  of  Malkiat  Singh  and  Ors.  v. State  of  

Punjab (1991) 4 SCC 341 this Court reiterated the principle  

that use of entries in the case diary is really of no use and is of  

benefit to the accused but unless the investigating officer or  

the Court uses the entries in the case where either to refresh  

the  memory  or  contradicting  the  investigating  officer  as  

previous statement under Section 161 in terms of Section 145  

of the Evidence Act the entries can be used by the accused as  

evidence.   The  free  use  thereof  is  not  permissible  under  

defence.

89) In case  Mukund Lal  v. Union of India  A.I.R. 1989 SC  

144, this Court clearly stated the denial to the accused of an  

unfettered right to make roving inspection of the entries in the  

case diary regardless of whether these entries are used by the  

police officer concerned to refresh his memory or regardless of  

the  fact  whether  the  Court  has  used  these  entries  for  the  

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purpose of contradicting such police officer cannot be said to  

be  unreasonable.   This  was treated  to  be  a  very  important  

safeguard as the Legislature has reposed complete trust in the  

Court  which is  conducting the  inquiry  or  the  trial  and has  

empowered the  Court  to  call  for  these  diaries  therefore  the  

right of the accused is not unfettered but in fact is limited as  

noticed.

 90) Usefully, reference can also be made to the judgment of  

this Court in the case of Shamshul Kanwar v. State of U.P.  

A.I.R.  1995  SC  1748  wherein  this  Court  while  issuing  

direction for requiring the State to make a general hearing in  

terms of  Section 172 of  the Code clearly stated that it  was  

mandatory  for  the  police  officer/in  charge  to  maintain  the  

diary in terms of the said provision and there is jurisdiction in  

the criminal code to call such diaries and make use of them  

not as evidence but only to aid such inquiry or trial.   It  is  

generally  confined  to  utilize  the  information  therein  as  

foundation for the question put to the witnesses, particularly,  

to the police witnesses where the police officer has used the  

entries to refresh his memory or if the Court uses them for the  

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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 the Code  

and the constitutional mandate to face the charge against him  

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by a fair investigation and trial.  Fairness in both these actions  

essentially needs to be adhered to.  Under Section 170, the  

documents during investigation are required to be forwarded  

to  the  Magistrate,  while  in  terms  of  Section  173  (5)  all  

documents  or  relevant  extracts  and the  statement  recorded  

under  Section  161  have  to  be  forwarded  to  the  Magistrate.  

The investigating officer is entitled to collect all the material,  

what  in his  wisdom is  required  for  proving the guilt  of  the  

offender.  He can record statement in terms of Section 161 and  

his power to investigate the matter is a very wide one, which is  

regulated  by  the  provisions  of  the  Code.   The  statement  

recorded  under  Section  161  is  not  evidence  per  se under  

Section 162 of the Code.  The right of the accused to receive  

the  documents/statements  submitted  before  the  Court  is  

absolute and it must be adhered to by the prosecution and the  

Court  must  ensure  supply  of  documents/statements  to  the  

accused in accordance with law.  Under proviso to Section 162  

(1)  the  accused  has  a  statutory  right  of  confronting  the  

witnesses with the statements recorded under Section 161 of  

the Code thus indivisible.  Further, Section 91 empowers the  

Court to summon production of any document or thing which  

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the Court considers necessary or desirable for the purposes of  

any investigation, inquiry, trial  or another proceeding under  

the  provisions  of  the  Code.   Where  Section  91  read  with  

Section 243 says that if the accused is called upon to enter his  

defence and produce his evidence there he has also been given  

the  right  to  apply  to  the  Court  for  issuance  of  process  for  

compelling the attendance of any witness for the purpose of  

examination,  cross-examination  or  the  production  of  any  

document or other thing for which the Court has to pass a  

reasoned order.  The liberty of an accused cannot be interfered  

with except under due process of law.  The expression ‘due  

process of  law’  shall  deem to include fairness in trial.   The  

Court gives a right to the accused to receive all documents and  

statements as well as to move an application for production of  

any  record  or  witness  in  support  of  his  case.   This  

constitutional  mandate  and  statutory  rights  given  to  the  

accused  places  an  implied  obligation  upon  the  prosecution  

(prosecution and the prosecutor) to make fair disclosure.  The  

concept of fair disclosure would take in its ambit furnishing of  

a document which the prosecution relies upon whether filed in  

Court or not.  That document should essentially be furnished  

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to  the  accused  and  even  in  the  cases  where  during  

investigation  a  document  is  bona  fide  obtained  by  the  

investigating agency and in the opinion of the prosecutor is  

relevant  and  would  help  in  arriving  at  the  truth,  that  

document should also be disclosed to the accused.  The role  

and  obligation  of  the  prosecutor  particularly  in  relation  to  

disclosure cannot be equated under our law to that prevalent  

under the English System as afore-referred.  But at the same  

time, the demand for a fair trial cannot be ignored.  It may be  

of different consequences where a document which has been  

obtained  suspiciously,  fraudulently  or  by  causing  undue  

advantage to the accused during investigation such document  

could  be  denied  in  the  discretion  of  the  prosecutor  to  the  

accused  whether  the  prosecution  relies  or  not  upon  such  

documents, however in other cases the obligation to disclose  

would be more certain.  As already noticed the provisions of  

Section 207 has a material bearing on this subject and makes  

an  interesting  reading.   This  provision  not  only  require  or  

mandate that the Court without delay and free of cost should  

furnish  to  the  accused  copies  of  the  police  report,  first  

information report,  statement,  confessional  statement of  the  

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persons  recorded  under  Section  161  whom the  prosecution  

wishes to examine as witnesses, of course, excluding any part  

of  a statement or document as contemplated under Section  

173 (6) of the Code, any other document or relevant extract  

thereof  which has been submitted to  the  Magistrate  by the  

police  under  Sub  Section  5  of  Section  173.   In  

contradistinction to the provisions of Section 173, where the  

Legislature has used the expression ‘documents on which the  

prosecution relies’ are not used under Section 207 of the Code.  

Therefore, the provisions of Section 207 of the Code will have  

to be given liberal and relevant meaning so as to achieve its  

object.   Not  only  this,  the  documents  submitted  to  the  

Magistrate along with the report under Section 173 (5) would  

deem to include the documents which have to be sent to the  

Magistrate  during  the  course  of  investigation  as  per  the  

requirement of Section 170 (2) of the Code.  

92)   The  right  of  the  accused  with  regard  to  disclosure  of  

documents is a limited right but is codified and is the very  

foundation of a fair investigation and trial.  On such matters,  

the accused cannot claim an indefeasible legal right to claim  

every document of the police file or even the portions which  

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are permitted to be excluded from the documents annexed to  

the report under Section 173(2) as per orders of the Court.  

But certain rights of the accused flow both from the codified  

law  as  well  as  from  equitable  concepts  of  constitutional  

jurisdiction, as substantial variation to such procedure would  

frustrate the very basis of a fair  trial.   To claim documents  

within the purview of scope of Sections 207, 243 read with the  

provisions of Section 173 in its entirety and power of the Court  

under Section 91 of the Code to summon documents signifies  

and  provides  precepts  which  will  govern  the  right  of  the  

accused  to  claim  copies  of  the  statement  and  documents  

which the prosecution has collected during investigation and  

upon which they rely.  It will be difficult for the Court to say  

that the accused has no right to claim copies of the documents  

or request the Court for production of a document which is  

part  of  the  general  diary  subject  to  satisfying  the  basic  

ingredients of law stated therein.  A document which has been  

obtained  bonafidely  and  has  bearing  on  the  case  of  the  

prosecution and in the opinion of the public prosecutor, the  

same should be disclosed to  the  accused in  the  interest  of  

justice and fair investigation and trial should be furnished to  

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the accused.  Then that document should be disclosed to the  

accused giving him chance of fair defence, particularly when  

non-production or disclosure of such a document would affect  

administration  of  criminal  justice  and  the  defence  of  the  

accused prejudicially.  The concept of disclosure and duties of  

the  prosecutor  under  the  English  System  cannot,  in  our  

opinion, be made applicable to Indian Criminal Jurisprudence  

stricto senso at this stage.  However, we are of the considered  

view that the doctrine of disclosure would have to be given  

somewhat expanded application.  As far as the present case is  

concerned,  we  have  already  noticed  that  no  prejudice  had  

been caused to the right of the accused to fair trial and non-

furnishing of the copy of one of the ballistic reports had not  

hampered the ends of justice.  Some shadow of doubt upon  

veracity  of  the  document  had  also  been  created  by  the  

prosecution and the prosecution opted not to rely upon this  

document.  In these circumstances, the right of the accused to  

disclosure  has  not  received  any  set  back  in  the  facts  and  

circumstances of the case.   The accused even did not raise  

this issue seriously before the Trial Court.  

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Call Details:

93) The  evidence  of  the  telephone  calls  in  the  present  

case is admissible under Sections 8 and 27 of the Indian  

Evidence Act.    PW-16,  Raj  Narain  Singh,  has deposed  

that Tel. No. 3782072 is installed at 15, BR Mehta Lane in  

the name of O.P. Yadav - Ex.PW-16/C.  Print out for the  

period 25.04.1999 to 11.05.1999 is Ex. PW-16/C-1.  The  

evidence of PW-19 further proved that Tel. No. 4642868  

was installed at Majid Chakkarawali, Mathura Road vide  

Ex. PW 16/D and the print out for the period 03.05.1999  

to 05.05.1999 is Ex.  PW-16/D-1.   PW-17, Mohd. Jaffar  

stated that  Tel.  No.  4642868 was installed at  his  PCO.  

Phone calls  were made to  USA from his  STD Booth on  

04.05.1999.   Photocopy  of  calls  made  is  Ex.  PW-17/A.  

PW-16 also proved that Tel. No. 3793628 was shifted to  

23, Safdarjung (Ex. PW-16/E) and print out for the period  

03.04.1999 to 31.05.1999 is Ex. PW-16/E-1.  It is further  

in evidence of PW-45, Sanjay Garg, that Tel. Nos. 660550,  

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660499,  705692,  741001,  741002  are  installed  in  the  

various premises of  Piccadilly  and the same is Ex.  PW-

45/B.   

94) The  details  of  the  phone  numbers  subscribed  to  

Piccadily group are Ex. PW 45/C and the bill printouts are  

45/C were received by the police vide Ex. PW 45/D.  PW-

66,  Maj.  AR.  Satish  has  deposed  that  Mobile  No.  

9811100237, which was in the name of Amardeep Singh  

Gill and the print out of the same is exhibited PW-66/B.  

He also deposed that Mobile No. 9811096893 was being  

purchased against a cash card.  The print out of the calls  

for  the  month of  April,  1999 are  in  Ex.  PW-66/D.   He  

further proved that Mobile No. 9811068169 stood in the  

name of Alok Khanna and its print out is Ex. PW 66/C.

95) PW-32,  Ved  Prakash  Madan  proved  that  Tel.  No.  

521491 was intalled at PCO, Ambala and its print out is  

Ex. PW-32/B.  PW-33, PV. Mathew has corroborated the  

version of PW-32 and has proved that the calls were made  

to  USA.   PW-15,  Sumitabh Bhatnagar  stated  that  Tata  

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Sierra No. HR-26N4348 and Tata Sierra MP-04-2634 were  

allotted  to  Amardeep  Singh  Gill  and  Alok  Khanna  

respectively.   Similarly  Mobile  Nos.  981110237  and  

9811068169  were  also  allotted  to  Amardeep  Singh  Gill  

and Alok Khanna respectively.   PW-51, Sh. Rajiv Talwar  

has stated that Te. No. 660500 was installed in the office  

of  Harvinder  Chopra.   PW-39,  Mansvi  Mittal  STD/PCO  

Booth Inderlok-Mittal Communication Tel. No. 5157498 is  

installed at this booth.  Calls made remain in memory for  

a  period  of  one  month.   Police  has  seized  record  of  

04.05.1999  and  05.05.1999  in  respect  of  Tel.  No.  

0017184768403 to which calls were made.  Figure 00 is  

international access code and 171 is the code call to be  

made to USA.  001 is also code call for America.  Print out  

dated 04.05.1999 is Ex. PW-39/1 and dated 05.05.1999 is  

Ex. PW-39/2 to 7, Seizure Memo dated 27.05.1999 is Ex.  

39/A  where  entries  Ex.  PW-39/3-7  were  made  was  

present.  PW-40, Ayub Khan, PCO/STD/ISD Booth Okhla  

Phase II Tel.  No. 6924575 was installed on 10.05.1999.  

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He also  furnished  similar  details.   Print  out  slips  were  

seized vide Ex. PW-40.A and print out is Ex. PW-40/1-3  

respectively.   The testimony of  PW 85,  SI  Pankaj  Malik  

also corroborates the version of the aforesaid witnesses.   

96) The above phone call details show that the accused  

were  in  touch  with  each  other  which  resulted  in  

destruction of evidence and harboring.  Thus the finding  

of the trial Court that in the absence of what they stated  

to  each  other  is  of  no  help  to  the  prosecution  is  an  

incorrect  appreciation  of  evidence  on  record.   A  close  

association is  a  very important  piece of  evidence in the  

case of circumstantial  evidence.   The evidence of phone  

calls is a very relevant and admissible piece of evidence.  

The details of the calls made by the various accused to  

one another are available in Ex. PW-66/B, PW-66/D and  

PW-66/C.   

Effect of leading question by Public Prosecutor:

97) Mr.  Ram  Jethmalani,  learned  senior  counsel  next  

contended that the Public Prosecutor in the present case  

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had put  a  leading question to  Malini  Ramani  regarding  

identification of the accused Manu Sharma.  We verified  

the  said  question.   The  question  put  by  the  Public  

Prosecutor, was at best clarificatory, and by no stretch of  

imagination  can  be  termed  as  a  leading  question  

favouring/eliciting an answer favouring the prosecution.  

The evidence of Ms. Malini Ramani two paragraphs prior  

to the leading question and two paragraphs thereafter, if  

read  in  conjunction  with  each other  clarifies  the  whole  

scene and sequence of events.  Learned senior counsel has  

relied upon the judgment in Varkey Joseph vs. State of  

Kerala,  1993  Supp  (3)  SCC  745  to  support  his  

contention.  The said judgment is clearly distinguishable.  

On  the  facts  in  that  case,  this  Court  found  that  the  

prosecutor had put leading questions, without objections  

by  the  defence,  to  several  material  and  key  witnesses  

regarding the culpability of the accused.  The extent of the  

leading questions put, were on the facts of that case found  

to  violate  the  constitutional  right  of  a  fair  trial  of  the  

171

accused.   The  facts  of  the  present  appeal  are  wholly  

different.   The  petitioner  had  adequate  and  competent  

legal  representation  before  the  trial  Court  and  leading  

questions, if any, put by the prosecutor were objected to  

by the defence and several questions were disallowed by  

the trial court.   Furthermore, the finding of guilt  of the  

appellant  herein  by  the  High  Court  has  not  been  on  

account  of  any  of  the  answers  elicited  to  any  such  

questions.   It  is  not  as  if  every  single  leading  question  

would  invalidate  the  trial.   The  impact  of  the  leading  

questions, if any, has to be assessed on the facts of each  

case.   

Efforts made to trace Sanjay Mehtani:

98)  It has been contended by the learned senior counsel  

for the appellant/Manu Sharma that the Sanjay Mehtani,  

friend of Malani Ramani, who was also present at Qutub  

Colonnade  at  the  scene  of  offence  was  deliberately  not  

examined by the  Prosecution.   Respondent  has  pointed  

out that Sanjay Mehtani was examined during the course  

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of  investigation  and  his  statement  was  recorded  under  

Section 161 Cr.P.C.  He was also cited as a prosecution  

witness.  During the trial summons were issued for him  

and it was learnt that Sanjay Mehtani had left India and  

was  residing  at  Hong  Kong  and  as  such  could  not  be  

examined in the court.  Further, it was pointed out that  

bare perusal of the trial Court record of the present case  

will clearly bring out the fallacy in the said argument of  

the  defence.   The  Police  while  filing  the  charge-sheet  

before the Magistrate had enlisted Sanjay Mehtani’s name  

in the list of witnesses.  This fact clearly shows that the  

prosecution had the intention to examine Sanjay Mehtani  

as  their  witness.   Further,  the  said  witness  was  

summoned by the Court for examination vide orders dated  

28.11.2001,  08.02.2002,  27.11.2003  and  11.12.2003.  

The  said  sequence  of  events  clearly  show  that  the  

prosecution not only wanted to examine him as a witness,  

but tried serving him with the summons many times, but  

the same could not be achieved as Sanjay Mehtani had by  

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then shifted to Hong Kong and was not staying in India.  

Therefore to contend that Sanjay Mehtani was deliberately  

not  examined by  the  Prosecution  is  absolutely  baseless  

and not founded on the basis of the record.   

The conduct of Absconding:

99)  From the testimony of PW-20 and PW-24, it is proved  

beyond reasonable doubt that accused Sidharth Vashisht  

@ Manu Sharma after committing the murder of Jessica  

Lal fled away from the scene of occurrence.  It is further  

proved  from  the  testimony  of  PW-100,  PW-101,  PW-87  

Raman Lamba, PW-85 and PW-80 that from afternoon of  

30.04.1999  search  was  made  for  the  black  Tata  Safari  

bearing  Regn.  No.  CH-01-W-6535  and  for  Sidharth  

Vashisht  @  Manu  Sharma,  Director  of  Piccadilly  Sugar  

Industries  at  Bhadson,  Kurukshetra,  Chandigarh,  his  

farmhouse  at  Samalkha  and  Okhla  Delhi.   It  is  also  

proved that even after the seizure of vehicle on 02.05.1999  

the search for accused Sidharth Vashisht @ Manu Sharma  

continued  and  search  was  made  at  Piccadilly  Cinema,  

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Piccadilly Hotel, his residence at Chandigarh, PGI Hospital  

where  his  father  was subsequently  admitted.   However,  

accused  Sidharth  Vashisht  @  Manu  Sharma  was  not  

found nor  anybody  informed his  whereabouts  and it  is  

only  on  06.05.1999  that  accused  Sidharth  Vashisht  @  

Manu  Sharma  surrendered  at  Patiala  Guest  House,  

Chandigarh in the presence of Shri Harish Ghai, advocate  

and Sh. Vinod Dada.  The above evidence of the witnesses  

clearly establishes beyond reasonable doubt that accused  

Manu Sharma absconded after committing the crime and  

surrendered on 06.05.1999 after extensive searches were  

made.   

100)  A criminal trial is not an enquiry into the conduct of  

an  accused  for  any  purpose  other  than  to  determine  

whether  he  is  guilty  of  the  offence  charged.   In  this  

connection,  that  piece  of  conduct  can  be  held  to  be  

incriminatory which has no reasonable explanation except  

on  the  hypothesis  that  he  is  guilty.   Conduct  which  

destroys  the  presumption  of  innocence  can  alone  be  

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considered as material.  In this regard, it is useful to refer  

Anant Chaintaman Lagu vs. State of Bombay AIR 1960  

SC 500:-

“Circumstantial  evidence  in  this  context  means  a  comBeenation  of  facts  creating  a  network  through  which  there is no escape for the accused, because the facts taken  as a whole do not admit of any inference but of his guilt…. this conduct of the accused was so knit together as to make  a network of circumstances pointing 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  176

Vashisht @ Manu Sharma.  He has further disclosed that  

Alok Khanna came to his house in Tata Sierra car no. MP  

04V 2634.   He  has  further  disclosed  that  he  and Alok  

Khanna went to Qutub Colonnade in Alok Khanna’s Tata  

Sierra bearing No. MP-04-V-2634.  Accused Manu Sharma  

surrendered on 06.05.1999 at 2.30 p.m. at Patiala Guest  

House,  Chandigarh  before  Inspr.  Raman  Lamba  PW-87  

and ASI Nirbhay Singh PW-80.  After his arrest accused  

Manu Sharma had made four disclosure statements.  The  

first was an oral disclosure made to Inspr. Raman Lamba  

wherein  he  said  that  he  could  recover  the  pistol  from  

Ravinder Sudan at Mani Majra.  However, it was pointed  

out that the search of the house at Chandigarh was taken  

and since  the  diary  containing  the  address  of  Ravinder  

Sudan could not be found, no recovery could be affected.   

102)   On  07.05.1999,  he  made  a  disclosure  to  Inspr.  

Surender Kumar Sharma PW-101 which was recorded as  

Ex. PW 100/12.  In the said disclosure, he disclosed that  

he was using his younger brother Kartik’s Cellphone No.  

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9811096893 in making calls to his friends like Tony Gill,  

Alok Khanna, Amit Jhingan and others.  He also disclosed  

the  phone Nos.  of  some of  the  co-accused and that  he  

handed over  his  cell  bearing No.  9811096893 to Yograj  

Singh in Panchkula and can recover the same.  Pursuant  

to the disclosure of Sidharth Vashisht @ Manu Sharma  

the  mobile  phone  used  by  him  was  recovered  from  

accused Yograj Singh.  Vide Ex.PW 100/23.

103)  The third disclosure is Ex. PW 100/Article-1 which  

was video recorded on 07.05.1999 itself after the accused  

was  produced  before  the  Metropolitan  Magistrate  and  

copies of which were duly supplied to the accused during  

trial.  From the disclosure Ex PW 100/Article-1 there were  

further discovery of facts admissible under Section 27 of  

the Evidence Act.  Pursuant to the disclosures of Manu  

Sharma investigations were carried out and it was that the  

accused were in close contact with each other over phone  

and  accused  Manu Sharma had  made  number  of  calls  

from the house of  Vikas Yadav son of  DP Yadav to  his  

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house  in  Chandigarh  and  to  Harvinder  Chopra  at  

Piccadilly.

104)  The fourth disclosure of accused Sidharth Vashisht  

@ Manu Sharma was recorded by PW-101 wherein he had  

disclosed that Ravinder Sudan @ Titu having concealed  

the pistol, had gone to Manali (HP) where he met his uncle  

Shyam Sunder  and he  very  well  knew the  place  where  

they concealed the pistol and that he could lead to Manali  

to recover the pistol used in the incident.  It further came  

on record that calls were made to USA to Ravinder Sudan.  

It  may  not  be  out  of  place  to  mention  that  calls  were  

exchanged between the accused and made to USA were  

discovered pursuant to disclosures made by the accused  

persons.  

Test Identification Parade-Refusal:

105)   The  witnesses  Deepak  Bhojwani  PW-1,  Malini  

Ramani PW-6, Beena Ramani PW-20 and George Mailhot  

PW-24 have clearly proved beyond reasonable doubt the  

identification  of  the  accused  persons  Manu  Sharma,  

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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 café.  Both  

Amardeep Singh Gill and Manu Sharma refused their TIP  

on 06.05.1999 and 07.05.1999 respectively before PW-79  

Ld.  MM  Sh.  Rajnish  Kumar  Gupta  without  citing  any  

credible  reason.   Thereafter,  photo  identification  was  

conducted in which they were duly identified by Deepak  

Bhojwani.  The said witness has also clearly identified the  

two of them in the Court.   

106)  PW-6, Malini Ramani has categorically stated that  

she identified Manu Sharma as the accused in the Police  

Station.  She had seen accused in the police station on  

08.05.1999 and thus the same was after 07.05.1999 when  

accused  Manu  Sharma  refused  his  TIP.   In  cross-

examination, PW-6 states that

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“During the first five days of May 1999, the interrogation of  three of us was very intensive, and photographs were shown  to us of the culprits for identification.  It could be that the  photograph of  Manu Sharma had  been  shown to  me  but  since I was not in good frame of mind and rather disturbed  for the whole week and therefore, I do not remember whether  the photograph of Manu Sharma was shown to me or not on  01.05.1999.   It  is  correct  that  between  01.05.1999  to  05.05.1999,  I  had  been  shown  the  paragraph  of  Manu  Sharma.”  

Thus she was not sure about her having been shown the  

photograph  prior  to  08.05.1999.   PW-6  has  nowhere  

stated in her testimony that photograph of Manu Sharma  

were shown to her parents.  Moreover, no photographs of  

the other three accused were shown to her or her parents  

of the other accused i.e. of Vikas Yadav, Amardeep Singh  

Gill or Alok Khanna as contended.  Further, PW-20 has  

categorically identified all the four accused in the witness  

box and there is no cross examination of PW-20 to the  

effect  that  the  photographs of  the  accused were  shown  

only  in  the  police  station.   Even,  PW-24  has  identified  

accused Manu Sharma in the court and his testimony also  

remains unshaken on this aspect.  PW-30 has also clearly  

identified accused Amardeep Singh Gill and Vikas Yadav  

in the court  and the photo identification with regard to  

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them was resorted after Amardeep Singh Gill @ Tony Gill  

had  refused  TIP  on  06.05.1999  and  Vikas  Yadav  was  

granted anticipatory bail.  That the photographs of Vikas  

Yadav  were  taken  from the  Asstt.  Registrar,  Ghaziabad  

Authority RTO, PW 38 on 20.05.1999.

107)   PW-2  Shyan  Munshi  had  left  for  Kolkata  and  

thereafter,  photo  identification  was  got  done  when  SI  

Sharad  Kumar  PW  76  went  to  Kolkata  to  get  the  

identification  done  by  picking  up from the  photographs  

wherein he identified the accused Manu Sharma though  

he refused to sign the same.  However, in the court PW-2  

Shyan Munshi refused to recognize him.  In any case, the  

factum of  photo-identification  by PW-2 as  witnessed by  

the  concerned  Officer  is  a  relevant  and  an  admissible  

piece of evidence.  In this regard reliance may be placed  

on, R vs. McCay (1991) 1 All ER 232.  There the accused  

was identified by the witness in the presence of the IO who  

took  note  of  the  said  fact,  later  the  witness  could  not  

identify the accused in Court due to lapse of time, thus  

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the testimony of the IO was relied upon to prove the said  

identification.   The  IO’s  testimony  was  upheld  as  

admissible  on  the  ground  that  the  act  of  the  IO  was  

contemporaneous  with  the  act  of  identification  by  the  

witness.    

108) PW-78 SI Sharad Kumar deposed  

“I thereafter went to Calcutta.  The four photographs X1 to  X4 were identified by Shyan Munshi as those of the accused  in my presence.  (Objected to by Sh. R.K. Naseem).  I asked  Shyan Munshi to sign on the back of these photos but he  refused to do so.  Then I gave separate markings on the back  of  the photographs X1 to X4 and signed them.  Markings  and my signatures at  the back of  the photographs are at  points  A  on  all  the  four  photographs.   I  recorded  the  statement of Shyan Munshi in this regard.  The photocopy of  the said statement is Ex PW2/C which is in my hand and  bears  my  signatures  at  point  A.   I  correctly  recorded  statement  of  Shyan  Munshi  and  did  not  add  or  omit  therefrom on my own.  After return from Calcutta, I handed  over the photographs and statement of Shyan Munshi and  other documents to SHO Surender Kumar”.

109) PW-2 Shyan Munshi in this regard stated,  

“It is correct that Delhi Police had contacted me in Calcutta  at my residence but I do not remember it was on 19th May,  1999. …. ..It is correct that some photographs were shown to  me  by  Delhi  Police  at  Calcutta  in  May,  1999  at  my  residence”…  “Police  had  shown  me  the  photograph  and  asked me if I could identify but I did not identify any of the  culprits.  I  was asked by the police to sign on the reverse of  those  four  photographs  but  I  did  not  sign  any  such  photograph.”

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110) Mr. Jethmalani next contended that identification is  

inherently  illegal  because  the  witnesses  were  not  only  

shown  the  photographs  but  also  the  accused  was  

physically  shown.   According  to  him,  it  was  further  in  

evidence that accused Manu Sharma was shown to all the  

three witnesses on 08.05.99 and they even admitted that  

it  may have been on 07.05.99.   It  is  further  contended  

that  it  is  not  denied  that  the  photos  came  in  the  

newspaper  during  the  prosecution.   However,  it  was  

pointed out by the defence that prosecution is certainly  

not responsible for showing the photos.  As far as refusal  

of TIP by accused Manu Sharma is concerned, there is no  

justification in the stand of the defence that TIP was not  

held due to his photo or he himself being shown to the  

witness.  In this regard, it would be relevant to note that  

accused Manu Sharma surrendered on 06.05.99 and on  

07.05.99 he was produced in muffled face before the MM  

Shri Rajneesh Gupta PW-79 and the proceedings thereof  

are  recorded  vide  Ex  PW-79/G  wherein  accused  Manu  

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Sharma’s  contention  for  refusal  of  TIP  is  that  his  

photograph  has  appeared  in  newspapers  and  his  

photograph has been shown to the witnesses and that he  

has been shown physically to the witnesses.  All the three  

contentions  of  the  accused Manu Sharma are  incorrect  

and misconceived with  regard to  the  appearance of  the  

photos in the newspapers.  It is submitted that vide Ex PW  

101/11 to 22 the newspapers from 01.05.99 to 06.05.99  

have been duly exhibited by PW-101.  It was pointed out  

that  in  none  of  those  newspapers  is  the  photograph of  

accused Manu Sharma shown.  As a matter of fact vide  

Ex. No. PW 101/15 photograph dated 06.05.1999 clearly  

shows that he is in muffled face.  In the absence of any  

defence refusal of TIP on this ground is totally unjustified  

and an adverse inference ought to be drawn in this regard.

111)  The next contention of the defence for refusal of TIP  

is that his photograph has been shown to the witnesses is  

also incorrect.  It is not disputed that the photograph of  

accused Manu Sharma was obtained from his farmhouse  

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located in Samalkha on the intervening night 30.04.1999  

& 01.05.1999.  However, it is further in evidence of PW-87  

that he went to Chandigarh and he took the photograph of  

accused Manu Sharma for the purposes of identification  

and it was with him till 06.05.1999.  Thus the photo of  

accused Manu Sharma could not have been shown to any  

of  the  witnesses  because  the  witnesses  were  either  in  

Delhi or Kolkata not in Chandigarh.  The only witness who  

has deposed with regard to the photograph having been  

shown is PW-6 wherein she has stated:  

“It could be that the photograph of Manu Sharma that had  been shown to me on 01.05.1999 but since I was not in good  frame of mind and rather disturbed for the whole week and  therefore  I  do  not  remember  whether  the  photograph  of  Manu Sharma was shown to me on 01.05.1999.”   

Her testimony on this point is clearly wavering in view of  

the  fact  that  immediately  after  the  incident  she  fainted  

and that is why her statement under Section 161 Cr.P.C.  

was  recorded  only  on  03.05.99.   Moreover,  it  was  

explained  that  since  on  02.05.99  the  photograph  in  

question  was  not  available  in  Delhi  itself  and therefore  

there was no chance of showing the photograph to this  

186

witness, as on 01.05.99 she was unwell and her statement  

also could not be recorded and thus the issue of showing  

her the photograph could not arise.  Further, this witness  

nowhere says that photographs were shown to her parents  

as  well  as  being  sought  to  be  inferred  by  the  defence.  

Thus  refusal  of  TIP  on  this  ground  was  unjustified  by  

accused Manu Sharma in the morning of 07.05.1999.  It  

is further submitted that after the refusal of TIP it is only  

thereafter that the accused Manu Sharma was shown to  

the  witnesses  PW-6,  PW-20  and  PW-24  and  their  

statements under Section 161 Cr.P.C. were recorded with  

regard to the identification of accused Manu Sharma.  The  

said process of identification was necessary for the IO to  

be certain that this is the man that the said witnesses had  

witnessed/seen as the person responsible.  In the light of  

Manu Sharma’s refusal, the police had little choice but to  

formally show the photo to the witnesses and record their  

statement in that regard.  Thus, firstly his refusal is not  

justified on the ground that  he  has been shown to the  

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witnesses,  moreover,  he was shown to the witness only  

after his refusal of TIP so that it is verified that he is the  

same  person  who  is  involved  in  the  incident  and  no  

adverse inference on this count can be taken against the  

prosecution.

112) It  is  further  pointed  out  that  the  accused  Manu  

Sharma was sent to judicial custody on 15.05.1999 and  

the statement of witnesses continued even thereafter and  

thus resort to photo identification was properly taken by  

mixing  the  photograph  of  accused  Manu  Sharma  with  

number of other photographs and asking the witnesses to  

pick up the photograph of the person they had witnessed  

on  the  fateful  night  and  the  morning  thereafter  i.e.  

29/30.04.99.   This  mode  of  photo  identification  was  

resorted  to  vis-à-vis  Deepak  Bhojwani  PW-1  on  

24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput  

PW-4 on 29.05.99 and Shyan Munshi PW-2 on 19.05.99  

at Calcutta.  Thus there is no merit in the contention of  

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the defense that the dock identification was a farce as it  

was done for the first time in the Court.  

113) It is also contended by the defence that since the  

photographs  were  shown  to  the  witnesses  this  

circumstance renders the whole evidence of identification  

in Court as inadmissible.  For this, it was pointed out that  

photo identification or TIP before the Magistrate, are all  

aides  in  investigation  and  do  not  form  substantive  

evidence.   Substantive  evidence  is  the  evidence  of  the  

witness in the court on oath, which can never be rendered  

inadmissible on this count.  It is further pointed out that  

photo identification is not hit by 162 Cr.P.C. as adverted  

to by the defense as the photographs have not been signed  

by the witnesses.  In support of his argument the senior  

counsel  for  Manu  Sharma  relies  on  the  judgment  of  

Kartar Singh vs.  Union of India (1994) 3 SCC 569 at  

page 711  wherein while dealing with Section 22 TADA the  

Court observed that photo TIP is bad in law.  It is useful to  

mention that the said judgment has been distinguished in  

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Umar Abdul Sakoor Sorathia vs.  Intelligence Officer,  

Narcotic Control Bureau, (2000) 1 SCC 138 at page 143  

where  a  Photo  Identification has been held  to  be  valid.  

The relevant extract of the said judgment is as follows:-  

“10.  The  next  circumstance  highlighted  by  the  learned  counsel for the respondent is that a photo of the appellant  was shown to Mr. Albert Mkhatshwa later and he identified  that figure in the photo as the person whom he saw driving  the car at the time of interception of the truck.   11.  It  was  contended  that  identification  by  photo  is  inadmissible in evidence and, therefore, the same cannot be  used.   No legal  provision has been brought to our notice,  which inhibits the admissibility of such evidence.  However,  learned counsel invited our attention to the observations of  the Constitution Bench in Kartar Singh vs. State of Punjab  which  struck  down  Section  22  of  the  Terrorist  and  Disruptive  Activities  (Prevention)  Act,  1987.   By  that  provision the evidence of a witness regarding identification of  a proclaimed offender in a terrorist case on the basis of the  photograph was given the same value as the evidence of a  test  identification  parade.    This  Court  observed  in  that  context: (SCC p. 711, para 361)

361.  If the evidence regarding the identification  on the basis  of  a  photograph is  to  be held  to  have the same value as the evidence of a test  identification parade, we feel that gross injustice  to the detriment of the persons suspected may  result.  Therefore, we are inclined to strike down  this  provision  and accordingly  we  strike  down  Section 22 of the Act.

12.  In the present case prosecution does not say that they  would rest with the identification made by Mr. Mkhatshwa  when the photograph was shown to him.  Prosecution has to  examine him as a witness in the court and he has to identify  the  accused  in  the  court.   Then  alone  it  would  become  substantive evidence.  But that does not mean that at this  stage the court is disabled from considering the prospect of  such  a  witness  correctly  identifying  the  appellant  during  trial.  In so considering the court can take into account the  fact  that  during  investigation  the  photograph  of  the  appellant was shown to the witness and he identified that  

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person as the one whom he saw at  the relevant  time.   It  must be borne in mind that the appellant is not a proclaimed  offender and we are not considering the eventuality in which  he would be so proclaimed.  So the observations made in  Kartar  Singh  in  a  different  context  is  of  no  avail  to  the  appellant.”

Even a TIP before a Magistrate is otherwise hit by Section  

162  of  the  Code.   Therefore  to  say  that  a  photo  

identification is hit by section 162 is wrong.  It is not a  

substantive  piece  of  evidence.   It  is  only  by  virtue  of  

section 9 of the Evidence Act that the same i.e. the act of  

identification  becomes  admissible  in  Court.   The  logic  

behind TIP, which will include photo identification lies in  

the fact that it is only an aid to investigation, where an  

accused is not known to the witnesses, the IO conducts a  

TIP  to  ensure  that  he  has  got  the  right  person  as  an  

accused.  The practice is not born out of procedure, but  

out of prudence.  At best it can be brought under Section  

8 of the Evidence Act, as evidence of conduct of a witness  

in photo identifying the accused in the presence of an IO  

or the Magistrate, during the course of an investigation.    

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114)   Mr.  Jethmalani  has  further  argued  on  the  

proposition  that  mere  dock  identification  is  no  

identification  in  the  eyes  of  law unless  corroborated  by  

previous TIP before the Magistrate.  It  has been further  

argued that in any case, even identification in Court is not  

enough and that there should be something more to hold  

the accused liable.  In support of its arguments, he placed  

heavy reliance on the decision of this Court in the case of  

Hari Nath & Ors vs. State of U.P. (1988) 1 SCC 14 and  

Budhsen & Others vs.  State of U.P. (1970) 2 SCC 128.  

A close scrutiny of these judgments will reveal that they  

infact  support  the  case  of  the  Prosecution.   These  

judgments make it abundantly clear that even where there  

is  no  previous  TIP,  the  Court  may appreciate  the  dock  

identification  as  being  above-board  and  more  than  

conclusive.  

115)  The law as it stands today is set out in the following  

decisions  of  this  Court  which  are  reproduced  as  

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hereinunder in Munshi Singh Gautam vs. State of M.P.  

(2005) 9 SCC 631, at page 643:   

“16. As was observed by this Court in Matru vs. State of U.P.  1971  2  SCC  75  identification  tests  do  not  constitute  substantive  evidence.   They  are  primarily  meant  for  the  purpose  of  helping  the  investigating  agency  with  an  assurance that their progress with the investigation into the  offence is proceeding on the right lines.  The identification  can only be used as corroborative of the statement in Court.  (See Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The  necessity for holding an identification parade can arise only  when the accused are not previously known to the witnesses.  The  whole  idea  of  a  test  identification  parade  is  that  witnesses who claim to have seen the culprits at the time of  occurrence  are  to  identify  them  from  the  midst  of  other  persons without any aid or any other source.  The test is  done to check upon their veracity.  In other words, the main  object  of  holding  an  identification  parade,  during  the  investigation stage, is to test the memory of the witnesses  based  upon  first  impression  and  also  to  enable  the  prosecution to decide whether all or any of them could be  cited  as  eyewitnesses  of  the  crime.   The  identification  proceedings  are  in  the  nature  of  tests  and  significantly,  therefore,  there is no provision for it  in the Code and the  Evidence Act.  It is desirable that a test identification parade  should  be  conducted  as  soon  as  after  the  arrest  of  the  accused.  This becomes necessary to eliminate the possibility  of the accused being shown to the witnesses prior to the test  identification parade.   This  is  a  very  common plea  of  the  accused and, therefore, the prosecution has to be cautious  to  ensure  that  there  is  no  scope  for  making  such  an  allegation.   If,  however,  circumstances  are  beyond control  and there is some delay, it cannot be said to be fatal to the  prosecution. 17.   It  is trite to say that the substantive evidence is the  evidence  of  identification  in  court.   Apart  from  the  clear  provisions of Section 9 of the Evidence Act, the position in  law is well settled by a catena of decisions of this Court.  The  facts, which establish the identity of the accused persons,  are  relevant  under  Section  9  of  the  Evidence  Act.   As  a  general  rule,  the  substantive  evidence  of  a  witness  is  the  statement made in court.  The evidence of mere identification  of the accused person at the trial for the first time is from its  very nature inherently of a weak character.  The purpose of a  prior test identification, therefore, is to test and strengthen  

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the  trustworthiness  of  that  evidence.   It  is,  accordingly,  considered  a  safe  rule  of  prudence  to  generally  look  for  corroboration of the sworn testimony of witnesses in court as  to the identity of the accused who are strangers to them, in  the form of earlier identification proceedings.  This rule of  prudence,  however,  is  subject  to  exception,  when,  for  example, the court is impressed by a particular witness on  whose testimony it  can safely  rely,  without  such or  other  corroboration.  The identification parades belong to the stage  of investigation, and there is no provision in the Code which  obliges  the investigation agency to hold or  confers a right  upon the accused to claim a test identification parade.  They  do not constitute substantive evidence and these parades are  essentially governed by Section 162 of the Code.  Failure to  hold  a  test  identification  parade  would  not  make  inadmissible  the  evidence  of  identification  in  court.   The  weight  to  be  attached  to  such  identification  should  be  a  matter for the courts of fact.   In appropriate cases it  may  accept the evidence of identification even without insisting  on  corroboration.   (See  Kanta  Prashad  vs.  Delhi  Administration AIR 1958 SC 350,  Vaikuntam Chandrappa  vs. State of A.P.  AIR 1960 SC 1340, Budhsen Vs State of  U.P. (1970) 2 SCC 128 and Rameshwar Singh vs. State of  J&K (1971) 2 SCC 715) 19. In Harbhajan Singh vs. State of J&K (1975) 4 SCC 480,  though a test identification parade was not held, this Court  upheld the conviction on the basis of  the identification in  court corroborated by other circumstantial evidence.  In that  case  it  was  found  that  the  appellant  and  one  Gurmukh  Singh were absent at the time of roll call and when they were  arrested on the night of 16.12.1971 their rifles smelt of fresh  gunpowder  and  that  the  empty  cartridge  case  which  was  found  at  the  scene  of  offence  bore  distinctive  markings  showing that the bullet which killed the deceased was fired  from the rifle of the appellant.  Noticing these circumstances  this Court held: (SCC p. 481, para 4).

“In  view  of  this  corroborative  evidence  we  find  no  substance  in  the  argument  urged  on  behalf  of  the  appellant that the investigation officer ought to have  held an identification parade and that  the failure of  Munshi Ram to mention the names of the two accused  to the neighbours who came to the scene immediately  after  the occurrence shows that his story cannot be  true.  As observed by this Court in Jadunath Singh vs.  State of U.P.  17 absence of  test  identification is not  necessarioy fatal.  The fact that Munshi Ram did not  disclose the names of the two accused to the villages  

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only  shows  that  the  accused  were  not  previously  known to him and the story that the accused referred  to  each  other  by  their  respective  names  during  the  course  of  the  incident  contains  an  element  of  exaggeration.  The case does not rest on the evidence  of  Munshi  am  alone  and  the  corroborative  circumstances to which we have referred to above lend  enough assurance to the implication of the appellant.”

Malkhansing vs. State of M.P., (2003) 5 SCC 746 at 752

“7.  It  is  trite  to  say  that  the  substantive  evidence  is  the  evidence  of  identification  in  court.   Apart  from  the  clear  provisions of Section 9 of the Evidence Act, the position in  law is well settled by a catena of decisions of this Court.  The  facts, which establish the identity of the accused persons,  are  relevant  under  Section  9  of  the  Evidence  Act.   As  a  general  rule,  the  substantive  evidence  of  a  witness  is  the  statement made in court.  The evidence of mere identification  of the accused person at the trial for the first time is from its  very nature inherently of a weak character.  The purpose of a  prior test identification, therefore, is to test and strengthen  the  trustworthiness  of  that  evidence.   It  is  accordingly  considered  a  safe  rule  of  prudence  to  generally  look  for  corroboration of the sworn testimony of witnesses in court as  to the identity of the accused who are strangers to them, in  the form of earlier identification proceedings.  This rule of  prudence,  however,  is  subject  to  exceptions,  when,  for  example, the court is impressed by a particular witness on  whose testimony it  can safely  rely,  without  such or  other  corroboration.  The identification parades belong to the stage  of  investigation,  and there  is  no provision in  the  Code of  Criminal Procedure which obliges the investigation agency to  hold,  or  confers a right  upon the accused to claim a test  identification  parade.   They  do  not  constitute  substantive  evidence  and  these  parades  are  essentially  governed  by  Section 162 of the Code of Criminal Procedure.  Failure to  hold  a  test  identification  parade  would  not  make  inadmissible  the  evidence  of  identification  in  court.   The  weight  to  be  attached  to  such  identification  should  be  a  matter fro the courts of fact.   In appropriate cases it  may  accept the evidence of identification even without insisting  on corroboration.”

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116)   Mr.  Ram  Jethmalani  has  further  placed  heavy  

reliance on two Books by foreign authors, namely, ‘’Proof  

of Guilt by Glanville Williams,’ 3rd Edition and ‘Eye Witness  

Identification in Criminal Cases’ by Patrick M. Wall, to urge  

that  identification  of  an  accused  in  Court  is  a  serious  

matter and the chances of a false identification are very  

high.  These texts only reiterate what the various courts  

have held time and again.  The view of the said author has  

been quoted by this  Court,  the  earliest  judgment  being  

Shivaji  Sahabrao Bobade vs.  State  of  Maharashtra,  

(1973) 2 SCC 793, at page 800:

“The evil  of acquitting a guilty person light heartedly as a  learned  Author  (Glanville  Williams  in  ‘Proof  of  Guilt’)  has  sapiently observed, goes much beyond the simple fact that  just one guilty person has gone unpunished.  If unmerited  acquittals  become  general,  they  tend  to  lead  to  a  cynical  disregard  of  the  law,  and  this  in  turn  leads  to  a  public  demand  for  harsher  legal  presumptions  against  indicted  persons and more severe punishment of those who are found  guilty.  Thus, too frequent acquittals of the guilty may lead  to  a  ferocious  penal  law,  eventually  eroding  the  judicial  protection of the guiltless.  For all these reasons it is true to  say, with Viscount Simon, that a miscarriage of justice may  arise from the acquittal of the guilty no less than from the  conviction of the innocent.”

117)   Learned  Solicitor  General  submitted  that,  even  

otherwise, an adverse inference ought to be drawn against  

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the appellants for their refusal to join the TIP.  This view  

has  found  favor  time  and  again  by  this  Court.   It  is  

pertinent to note that it is dock identification which is a  

substantive piece of evidence.   Therefore even where no  

TIP is conducted no prejudice can be caused to the case of  

the Prosecution.  In  Mullagiri Vajram vs.  State of A.P.  

1993  Supp.  (2)  SCC 198,  it  was  held  that  though  the  

accused was seen by the witness in custody, any infirmity  

in TIP will not affect the outcome of the case, since the  

deposition  of  the  witnesses  in  Court  was  reliable  and  

could sustain a conviction.  The photo identification and  

TIP are only aides in the investigation and does not form  

substantive  evidence.   The  substantive  evidence  is  the  

evidence in the court in oath.    

118)  The following decisions relied upon by the learned  

senior counsel for the appellant are clearly distinguishable  

from the present facts and thus are not applicable.  N.J.  

Suraj vs.  State (2004) 11 SCC 346 is distinguishable as  

there  was  no  direct  evidence  on  record  against  the  

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accused  and  the  prosecution’s  case  was  based  on  last  

seen  evidence  of  accused  with  deceased  and  

circumstantial  evidence.   The admission of  witnesses in  

regard to showing of photographs prior to TIP was coupled  

with the fact that the writing of the accused did not match  

with  the  entries  made  in  the  entry  register  which  was  

contrary to the case of the prosecution.  

119)   Laxmipat  Chararia vs.  State  of  Maharashtra,  

AIR 1968 SC 938, is distinguishable as the witness whose  

statement was subjected to arguments as being put under  

pressure of  prosecution and was shown photographs of  

the accused was infact an accomplice and her statement  

was  also  relied  upon  by  the  Court  and  held  that  her  

evidence is admissible.   

120)  Hari Nath & Anr vs. State of U.P. (1988) 1 SCC 14  

is  also  distinguishable  on  facts  as  the  accused  were  

residing in village in the close vicinity of the village of the  

prosecution  witness  (members  of  house  hold  where  

dacoity  was  committed)  and  that  accused  and  the  

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prosecution  witness  had  been  students  of  the  same  

institution was indicative of the fact that the accused were  

known to the prosecution witnesses while  there was an  

omission to mention name of the accused persons in the  

FIR.   Secondly,  as  it  was  also  held  that  even  on  the  

premise  that  no  prior  acquaintance  was  there,  the  TIP  

lacked  promptitude  as  was  conducted  after  an  

unexplained delay of more than 4 months.

121) The judgment in Kanan & Ors vs. State of Kerala  

(1979)  3  SCC  319,  is  distinguishable  as  the  witness  

though admitted that he knew the two accused by face  

and  yet  he  had  named  them while  identifying  them in  

Court, which raised element of doubt & that names of the  

accused were supplied to him from outside.   

122)  Dana Yadav vs.  State of Bihar (2002) 7 SCC 295  

is also distinguishable as the identification by the witness  

in court was not relied upon as the witness did not name  

the accused before the Police but in Court had identified  

and also named the accused, and as the identification was  

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not further corroborated by either previous identification  

or  any  other  evidence.   While  other  witnesses  though  

named the accused before the police but failed to identify  

him in court.   

123)  In Vijayan vs. State of Kerala (1999) 3 SCC 54, the  

witness  was  admittedly  shown  the  photograph  of  the  

accused  before  the  TIP  and  further  told  to  identify  the  

tallest man in the parade, as such this TIP was discarded  

and in this light the dock identification of the witness was  

also  discarded.   Further  according  to  the  witness  the  

accused  was  not  a  tall  man whereas  the  height  of  the  

accused was more than 6 feet.

124)  George & Ors. vs. State of Kerala & Anr. (1998) 4  

SCC  605 is not applicable on the facts of the present case  

in so far as the issue of photo identification is concerned.  

The aforesaid judgment which is sought to be relied upon  

by  the  appellant  in  support  to  their  contention  on  the  

issue that absence of  TIP makes the dock identification  

weak evidence is not applicable on the facts of the present  

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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 the appellant.  

The said proposition of law is misplaced since a specific  

provision has been provided by way of Section 315 of the  

Code  whereby  an  accused  can,  as  a  matter  of  right,  

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appear as a witness on his own behalf.   In the present  

case, the appellants exercised an option declining to do so  

and in such manner failed to offer any evidence to show  

loss/removal of his gun.  Thus it cannot be urged by the  

defence merely in order to suit his convenience that his  

statement may be treated as evidence and that all  facts  

stated therein be treated as true unless contradicted by  

the prosecution.  While answer given by the accused to  

question put under Section 313 of the Code are not per se  

evidence because, firstly, it is not on oath and, secondly,  

the  other  party  i.e.,  the  prosecution  does  not  get  an  

opportunity  to  cross-examine  the  accused,  it  is  

nevertheless subject to consideration by the Court to the  

limited  extent  of  drawing  an  adverse  inference  against  

such accused for any false answers voluntarily offered by  

him  and  to  provide  an  additional/missing  link  in  the  

chain of circumstances.  The judgment relied upon is of  

no use to the defence since the same pertains to a period  

where the law did not allow the accused to step into the  

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witness box as a witness of his own innocence.

126)  Regarding  the  contention  that  evidence  of  each  

witness must be put to the accused, it must be clarified  

that only the circumstances need to be put and not the  

entire testimony.  It is apt to quote the following decision  

of  this  Court  i.e.,  State of Punjab vs. Swaran Singh,  

(2005) 6 SCC 101 at page 104:

“9. The  only  reason  given  by  the  learned  Single  Judge of the High Court for acquitting the accused is  that the evidence of PW 1 and PW 4 was not specifically  put to the accused under Section 313 CrPC and it was  held that in the absence of these facts in the form of  questions to the accused, the evidence could not have  been used against him. It is also pertinent to note in  this regard that when PW 1 and PW 4 were examined as  witnesses,  the  accused  did  not  seriously  dispute  the  evidence of PW 1 or PW 4. The only cross-examination  was  that  it  was  incorrect  to  suggest  that  the  case  property  was  not  deposited  with  him  and  he  had  deposed falsely. So also, the evidence of PW 4 was not  challenged in the cross-examination except for a general  suggestion that he had been deposing falsely and that  no  case  property  was  handed  over  to  him  by  PW  1  Harbhajan  Singh.  The  accused  had  no  case  that  the  seal  was ever  tampered with by any person and that  there was any case of mistaken identity as regards the  sample and that the report of the chemical analyst was  not of the same sample taken from the accused. Except  making  a  general  suggestion,  the  accused  had  completely admitted the evidence of PW 1  and  PW  4 as regards the receipt  of  the sample,  sealing of  the  same and sending it to the chemical analyst. This was  pointed out only to show that the accused was not in  any  way  prejudiced  by  the  fact  of  not  having  been  questioned  by  making  a  specific  reference  to  the  

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evidence of PW 1 and PW 4.  As  regards  the  questioning of the accused under Section 313 CrPC, the  relevant provision is as follows:

“313.  Power  to  examine  the  accused.—(1)  In  every  inquiry or trial, for the purpose of enabling the accused  personally  to  explain  any circumstances  appearing  in  the evidence against him, the court—

(a) may at any stage, without previously warning the  accused,  put  such  questions  to  him  as  the  court  considers necessary;

(b) shall, after the witnesses for the prosecution have  been  examined  and  before  he  is  called  on  for  his  defence, question him generally on the case:

Provided that in a summons case, where the court  has  dispensed  with  the  personal  attendance  of  the  accused,  it  may  also  dispense  with  his  examination  under clause (b).

(2)  No  oath  shall  be  administered  to  the  accused  when he is examined under sub-section (1).

(3)  The  accused  shall  not  render  himself  liable  to  punishment by refusing to answer such questions, or by  giving false answers to them.

(4) The answers given by the accused may be taken  into consideration in such inquiry or trial, and put in  evidence for or against him in any other inquiry into, or  trial  for,  any  other  offence  which  such  answers  may  tend to show he has committed.”

10. The questioning of the accused is done to enable  him to give an opportunity to explain any circumstances  which have come out in  the evidence  against  him.  It  may be noticed that the entire evidence is recorded in  his presence and he is given full opportunity to cross- examine  each  and  every  witness  examined  on  the  prosecution side.  He is  given copies of  all  documents  which are  sought  to  be  relied  on by the prosecution.  Apart from all these, as part of fair trial the accused is  given opportunity to give his explanation regarding the  evidence adduced by the prosecution. However, it is not  necessary that the entire prosecution evidence need be  put to  him and answers elicited from the accused.  If  there  were  circumstances  in  the  evidence  which  are  

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adverse to the accused and his explanation would help  the court in evaluating the evidence properly, the court  should bring the same to the notice of the accused to  enable him to give any explanation or answers for such  adverse  circumstance  in  the  evidence.  Generally,  composite questions shall not be asked to the accused  bundling  so  many  facts  together.  Questions  must  be  such that any reasonable person in the position of the  accused  may  be  in  a  position  to  give  rational  explanation to the questions as had been asked. There  shall  not be failure of justice on account of an unfair  trial.

15. In the instant case, the accused was not in any  way  prejudiced  by  not  giving  him  an  opportunity  to  answer specifically regarding the evidence of PW 1 and  PW 4.  If  at  all,  the  evidence of  PW 1 and PW 4 was  recorded  in  his  presence,  he  had  the  opportunity  to  cross-examine the witnesses but he did not specifically  cross-examine  these  two  witnesses  in  respect  of  the  facts  deposed  by  them.  The  learned  Single  Judge  seriously erred in holding that the evidence of PW 1 and  PW 4 could not have been used against the accused.  The  acquittal  of  the  accused  was  improper  as  the  evidence  in  this  case  clearly  established  that  the  accused was in possession of 5 kg of opium and thereby  committed the offence  under  Section 18 of  the  NDPS  Act.”

127) Further it is not necessary that the entire prosecution  

evidence  need  to  be  put  to  the  accused  and  answers  

elicited  from  him/even  if  an  omission  to  bring  to  the  

attention  of  the  accused  an  inculpatory  material  has  

occurred that ipso facto does not vitiate the proceedings,  

the  accused  has  to  show  failure  of  justice  as  held  in  

Swaran Singh (supra) and followed in  Harender Nath  205

Chakraborty vs. State of West Bengal,  (2009)  2 SCC  

758.

128) Hate  Singh’s  case (supra)  relied  upon  by  the  

appellant is clearly distinguishable from the facts of the  

present  case.   In  the  said  matter,  the  case  of  the  

prosecution was that two brothers Hate and Bheru fired  

one shot each at the deceased who received three wounds.  

It was opined that three wounds which could have been  

from a single  shot.   It  was the consistent  stand of  the  

Bheru that he fired the shots (with double barrel), whose  

appeal was, therefore, dismissed in limine.  While that of  

Hate (appellant in the said case) was that though present  

with  a  gun,  he  did  not  fire  any  shot  (with  his  single  

barrel).   That single barrel  was found loaded (Article  E)  

this fact  was accepted throughout.   Witnesses also saw  

Bheru firing the first shot.  The Court held that the fact  

that  both  the  brothers  absconded  was  given  much  

importance  by  the  High  Court  and  Sessions  Court  but  

were not asked to explain it at any stage.

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129) Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595  

relied  upon by  the  appellant  is  also  distinguishable  on  

facts as there was no accusation specifically  put in the  

question during examination to the accused.   

Adverse Inferences Against the Accused:

130) (i) False answers under Section 313 Cr.P.C.

This Court has time and again held that where an  

accused furnishes false answers as regards proved facts,  

the Court ought to draw an adverse inference qua him and  

such  an  inference  shall  become  an  additional  

circumstance to prove the guilt  of  the accused.  In this  

regard,  the  prosecution  seeks  to  place  reliance  on  the  

judgments of  this Court  in  Peresadi vs. State of U.P.,  

(1957)  Crl.L.J.  328,  State  of  M.P. vs. Ratan Lal,  AIR  

1994  SC  458  and  Anthony  D’Souza vs. State  of  

Karnataka (2003)  1  SCC  259  where  this  Court  has  

drawn an adverse inference for wrong answers given by  

the appellant under Section 313 Cr.P.C.  In the present  

case,  the  appellant-Manu  Sharma  has,  inter  alia,  has  

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taken false pleas in reply to question nos. 50, 54, 55, 56,  

57, 64, 65, 67, 72, 75 and 210 put to him under Section  

313 of the Code.

(ii) Adverse inference qua non explanation of Pistol

Appellant/Accused – Manu Sharma was holder of a  

pistol .22” bore P Berretta, made in Italy duly endorsed on  

his arms licence.  It was his duty to have kept the same in  

safe custody and to explain its whereabouts.  It is proved  

beyond reasonable doubt on record that extensive efforts  

were made to trace the pistol and the same could not be  

recovered.  Moreover as per the testimony of CN Kumar,  

PW-43, DSP/NCRB, RK Puram there is no complaint or  

report of the said pistol.  Thus an adverse inference has to  

be  drawn  against  the  accused-Manu  Sharma  for  non-

explanation  of  the  whereabouts  of  the  said  pistol.  

Similarly  another  plea  not  supported  by  any  positive  

evidence led by the appellant-Manu Sharma is  that  his  

pistol i.e. the weapon of offence and the arms licence was  

recovered from his  farm house on 30.04.1999,  when in  

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fact it is an established fact that the pistol could not be  

recovered  and  that  the  licence  was  surrendered  on  

06.05.1999 at the time of his arrest.  It defies all logic and  

ordinary course of conduct to allege that the prosecution  

has withheld  the  pistol  after  seizing  the  same from his  

farmhouse.   The fact  that  he has failed to  produce the  

pistol, a presumption shall arise that if he has produced  

it,  the  testing  of  the  same  would  have  been  to  his  

prejudice.  The burden thus shifts on him.

(iii) Adverse inference since no report of theft or loss of  

Tata safari CH-01-W-6535

It is the defence of the accused-Manu Sharma that  

the  Tata  Safari  was  taken  away  on  30.04.1999  from  

Karnal.  No report or complaint of the taking away of the  

vehicle or the theft of the vehicle was ever lodged by the  

appellant/accused and hence an adverse inference has to  

be  drawn  against  the  accused  on  this  count  as  well.  

Further  the  conduct  of  the  appellant/accused  in  not  

taking  any  steps  despite  opportunity  in  reporting  the  

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alleged taking away of  Tata Safari on 30.04.1999 and his  

licensed pistol on 01.05.1999 in itself is enough material  

to draw serious adverse inference against the accused.

(iv) Appearance of PW-2 Shyan Munshi accompanied by  

Shri Ashok Bansal, Advocate

By  order  dated  06.03.2000,  Shri  Ashok  Bansal,  

advocate  had  appeared  as  proxy  counsel  for  accused-

Manu Sharma before the trial Court and on the same day  

also took copy of the report  of  FSL/Jaipur on behalf  of  

accused-Manu  Sharma.   On  03.05.2001,  PW-2,  Shyan  

Munshi,  was  duly  accompanied  by  Shri  Ashok  Bansal,  

advocate wherein he clearly says that he has come with a  

lawyer for his personal security.  On behalf of the State, it  

was contended that an adverse inference against accused-

Manu  Sharma  has  to  be  drawn  for  influencing  the  

witness.  It may not be out of place to mention here that  

PW-2, Shyan Munshi, who is the maker of the FIR and  

complainant  of  the  case,  did  not  fully  support  the  

prosecution  case  though  he  admitted  having  made  

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statement to the police and having signed the same.  The  

stand of the State cannot be ignored, on the other hand, it  

is acceptable.

131) Further  as  per  the  disclosure  of  accused-Manu  

Sharma, the pistol was given to accused - Ravinder Sudan  

@ Titu (PO).  It has been proved by the testimony of PW-

37,  Martin  Raj  and  PW-49-Inspector  Mahender  Singh  

Rathi  that  accused,  Ravinder  Sudan  @  Titu  left  the  

country by Gulf Airways on 04.05.1999.  Accused-Manu  

Sharma  surrendered  on  06.05.1999  only  after  accused  

Ravinder Sudan @ Titu left the country.  It is pointed out  

by the State that calls were made from PCO, Ambala and  

PCO Hazrat Nizamuddin which have been duly proved by  

the  testimony  of  PW-36,  Ram  Lal  Jagdev,  PW-16-Raj  

Narain  Singh,  PW-17-Mohd.  Jaffar.   This  conduct  of  

accused-Manu Sharma which is relevant and admissible  

under  Section 8 of  the  Indian Evidence Act  an adverse  

inference has to be drawn against Manu Sharma for this  

conduct.    

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Appeals of other accused:

132) We  have  already  discussed  the  specific  evidence,  

especially of presence at the time of incident, removal of  

Tata Safari, call details etc. as well as the evidence of PWs  

30 and 101, for conviction under Section 201 read with  

Section  120-B  IPC  against  the  other  two  appellants,  

namely,  Amardeep  Singh  Gill  @  Tony  Gill  and  Vikas  

Yadav.   We  are  satisfied  that  the  High  Court,  on  

appreciation of the relevant materials, found against them  

and  convicted  accordingly.   On  analysis  of  all  the  

materials, we agree with their conviction and sentence.   

Adverse remarks against prosecution and Trial Judge

133)  The  higher  Courts  in  exercise  of  their  appellate  or  

original jurisdiction 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  

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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 investigating agency, and observed that they were uncalled  

for and that they should have been avoided.  But, on the other  

hand, the Division Bench itself while criticizing the reasoning  

in the judgment under appeal made certain sweeping remarks  

against the trial Judge.  

135) In this  regard we are  intentionally  not  referring to the  

criticism of appreciation of evidence in fact and on law, but are  

restricting  ourselves  to  certain  observations  and  comments  

which, in our humble opinion, are criticism of the Judge per  

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se and could have been avoided easily  by the  Division Bench  

of the High Court.  It is also desirable, that the language which  

may imply an allegation of  suspicion in the performance of  

function of the Court should be carefully examined and unless  

it  is  absolutely  established  on record,  comments  should  be  

avoided.  It will be appropriate to refer to the relevant parts of  

the judgment in this regard:

“………….We also find the criticism against him to be a  matter of meaningless hair splitting.  There is a ring of  truth around the deposition of PW 30 whom we find a  reliable witness.   The trial  Court,  while dealing with  this witness, has, with great respect, termed him as a  ‘planted witness’.  This, we find, is not justified from  material on record.  The cursory manner in which the  witness  has  been  discarded  shows  a  lack  of  proper  appreciation  of  evidence.   Once  a  reasonable  explanation  has  been  given  by  a  witness  for  his  presence at the spot, there was hardly any reason to  stretch  imagination  to  belie  his  presence.   Merely,  because he was assigned to deliver a DD entry   to SI  Rishi  Pal  which,  the  witness  explains,  he  did  not  deliver, the explanation given is logical and ought not  to  have  been  disbelieved  in  this  strange  way  of  assessing the material and discarding it.”

Xxxx xxxx xxxx xxxx

“………The  two  weapon  theory  appears  to  be  a  concoction  to  the  defence  and  a  manipulation  of  evidence  in  particular  that  of  Shyam  Munshi,  PW2  who,  for  the  first  time  in  court,  introduced  such  a  story.   The very fact  that  the empties  were sent  for  examination at such a belated stage, cannot rule out  the possibility of foul play to destroy the Prosecution’s  case  during  trial.   We,  therefore,  do  not  think  it  necessary to go into further analysis of the evidence of  Prem Sagar Manocha.”

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136)  Let us examine various judgments of this Court  which  

have persistently taken the view and discouraged observations  

or disparaging remarks by the higher Courts against the other  

Courts.    In the  case of  A.M. Mathur vs.  Pramod Kumar  

Gupta & Ors. (1990) 2 SCC 533 the Court stated the dictum  

that judicial restraint and discipline are as necessary to the  

orderly  administration  of  justice  as  they  are  to  the  

effectiveness of the army.  The duty of restraint , this humility  

of  function  should  be  constant  theme  of  our  judges.   The  

quality in decision making is as much necessary for judges to  

command  respect  as  to  protect  the  independence  of  the  

judiciary.   Judicial  restraint  in  this  regard  might  better  be  

called judicial respect, that is respect by the judiciary.  The  

avoidance of even the appearance of bitterness, so important  

in  a  judge,  required  him  not  to  cast  aspersions  on  the  

professional conduct of the appellant and that too without an  

opportunity  for  him to meet such situation.   The Court  set  

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aside  the  disparaging  remarks  that  had  been  made  by  the  

High Court against the Advocate General.

137) In the case of a judicial officer approaching this Court for  

expunction of disparaging remarks on his conduct made by  

the High Court in the matter of ‘K’ A Judicial Officer (2001)  

3 SCC 54, this Court cautioned the higher courts to use the  

power of superintendence with great care and circumference  

before making remarks on unworthy conduct of an officer, his  

criticism  or  adverse  remarks  in  relation  to  judicial  

pronouncement should be avoided.  The Court held as under:

“A  Subordinate  Judge  faced  with  disparaging  and  undeserving  remarks  made  by  a  court  of  superior  jurisdiction  is  not  without  any  remedy.   He  may  approach  the  High  Court  invoking  its  inherent  jurisdiction  seeking  expunction  of  objectionable  remarks which jurisdiction vests in the High Court by  virtue  of  its  being a  court  of  record and possessing  inherent powers as also the power of superintendence.  The view is  settled by the law laid down in Raghubir  Saran  (Dr)   vs.  State  of  Bihar  (1964)  2  SCR  336.  However,  if  a  similar  relief  is  sought  for  against  remarks  or  observations  contained  in  judgment  or  order of the High Court the aggrieved judicial  officer  can,  in  exceptional  cases,  approach  this  Court  also  invoking its jurisdiction under Articles 136 and/or 142  of the Constitution. ”   

138)  In the case of  Zahira  Habibulla H. Sheikh & Anr.  

vs.   State  of  Gujarat  & Ors. (2004)  4  SCC  158  another  

Bench  of  this  Court  in  unambiguous  terms  expressed  its  216

concern about entertaining undesirable  submissions against  

the working of an institution and adverse observations being  

made in the paragraphs of the judgment.  The Court noticed  

that High Court had made observations and remarks about  

persons/constitutional bodies like NHRC who were not before  

it.  Proceedings of the Court normally reflect the true state of  

affairs.  Even if it is accepted, that any such submission was  

made, it was not proper or necessary for the High Court to  

refer to them in the judgment to finally state that no serious  

note  was  taken  of  the  submissions.   Avoidance  of  such  

manoeuvres  would  have  augured  well  with  the  judicial  

discipline.   The  expunction  and  deletion  of  the  contents  of  

paragraph three of the judgment except the last limb therein is  

ordered and it shall be always read to have not formed part of  

the judgment.   

139) Similarly, a three Judge Bench of this Court in the case  

of  Samya Sett vs. Shambhu Sarkar & Anr. (2005) 6 SCC  

767,  again  concerned  with  expunction  of  adverse  remarks  

made  against  the  Additional  Sessions  Judge,  who  was  the  

appellant.   The  High  Court  had  observed  that,  ignoring  of  

directions  should  imply  an arrogant  attitude  of  the  learned  

217

Judge and was in breach of the canons of judicial discipline  

and damage the judicial  system. This Court  has,  in several  

cases, deprecated the practice on the part of judges in passing  

strictures and in making unsavoury, undeserving, disparaging  

or  derogatory  remarks  against  parties,  witnesses  as  also  

subordinate officers.  

140) It is also worthwhile to refer to the latest judgment of this  

Court in the case of Parkash Singh Teji  vs. Northern India  

Goods Transport Company Private Limited and Another,  

(2009) 12 SCC 577.  This Court, while considering the order of  

the  High  Court,  declining  to  expunge  the  adverse  remarks  

against the appellant/judicial officer has observed  

“judicial  restraint  and  discipline  are  as  necessary  to  the  orderly  administration  of  justice  as  they  are  to  the  effectiveness of the army”.

 Again it was pointed out,  “A Judge  tries  to  discharges his  duties  to  the  best  of  his  capacity, however, sometimes is likely to err.  It has to be  noted that the lower judicial  officers mostly work under a  charged atmosphere and are constantly under psychological  pressure.  They do not have the benefits which are available  in  the  higher  courts.   In  those  circumstances,  remarks/observations  and  strictures  are  to  be  avoided  particularly if  the officer  has no occasion to put  forth his  reasonings.”   

141) In Alok Kumar Roy  vs. Dr. S.N. Sharma (1968) 1 SCR  

813  the  vacation  Judge  of  the  High  Court  of  Assam  and  

Nagaland passed an interim order during vacation in a petition  

218

entertainable by the Division Bench.  After reopening of the  

Court,  the  matter  was  placed  before  the  Division  Bench  

presided over by the Chief Justice in accordance with the High  

Court Rules.  The learned Chief Justice made certain remarks  

as  to  “unholy  haste  and  hurry”  exhibited  by  the  learned  

vacation Judge in dealing with the  case.   When the  matter  

reached this Court Wanchoo C.J., observed: (SCR pp 819 F-

820A)

“It is a matter of regret that the learned Chief Justice  thought  fit  to  make  these  remarks  in  his  judgment  against  a  colleague  and  assumed  without  any  justification  or  basis  that  his  colleague  had  acted  improperly.  Such observations even about Judges of  subordinate  courts  with  the  clearest  evidence  of  impropriety  are  uncalled  for  in  a  judgment.   When  made against a colleague they are even more open to  objection.   We  are  glad  that  Goswami  J.  did  not  associate  himself  with  these  remarks  of  the  learned  Chief  Justice  and  was  fair  when  he  assumed  that  Dutta, J.  acted as he did in his anxiety todo whdat he  thought  was required in the interest  of  justice.   We  wish the learned Chief Justice had equally made the  same  assumption  and  had  not  made  these  observations castigating Dutta J. for they appear to us  to be without any basis.  It is  necessary that judicial   decorum has to  be maintained  at  all  times and even  where criticism is justified it must  be in language of   utmost  restraint,  keeping  always  in  view  that  the  person making the comment is also fallible.”

                  (emphasis supplied)

142) In State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC 566  

disparaging and derogatory remarks were made by the High  

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Court against the State Government.  When the matter came  

up before this Court and a complaint was made against these  

remarks, it was observed by this Court that the remarks were  

“totally unjustified and unwarranted”.

Bhagwati, C.J. stated: (SCC p.615,para 43)

“43 We may observe in conclusion that judges should  not use strong and carping language while criticizing  the conduct of parties or their witnesses.  They must  at with sobriety, moderation and restraint.  They must  have  the  humilitytorecognise  that  they  are  not  infallible  and  any  harsh  and  disparaging  strictures  passed by them against any party may be mistaken  and unjustified and if  so,  they may do considerable  harm  and  mischief  and  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”.  

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“In the present case, however, as we have already noted in the  

earlier part of the judgment, whether the order passed by the  

appellant was correct or not, but the remarks made, strictures  

passed and directions issued by the learned Single Judge  of  

the High Court against the appellant were improper, uncalled  

for  and  unwarranted.  Apart  from  the  fact  that  they  were  

neither  necessary  for  deciding the  controversy  raised before  

the Court nor an integral part of the judgment, in the facts  

and circumstances of the case, they were not justified.  We,  

therefore, direct deletion of those remarks.”

143) In line with the consistent view of this Court, we are of  

the  considered  view  that  the  Division  Bench  could  have  

avoided making such observations which directly or impliedly  

indicates towards impropriety in the functioning of the Court,  

appreciation  of  evidence  by  the  learned  Judge  and/or  any  

other ancillary matter. The content and merit of the judgment  

would  have  remained  unaffected  even  if  such  language  or  

comments were not made against the learned trial Judge. The  

respect  of  judiciary  and for  the  judiciary,  is  of   paramount  

consideration.   Every  possible  effort  should  be  made  and  

precaution taken which will help in preservation of public faith  

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and individual  dignity.   A judicial  consensus would  require  

that the judgment should be set aside or affirmed as the case  

may  be  but  preferably  without  offering  any  undesirable  

comments,  disparaging  remarks  or  indications  which would  

impinge upon the dignity and respect of judicial system, actus  

curiae neminem gravabit.  Despite exercise of such restraint, if,  

in a given case, the Court finds compelling reasons for making  

any comments in that event it will be in consonance with the  

basic rule of law and adherence to the principles of natural  

justice that view point of the concerned learned Judge  should  

also be invited.    

144) In view of our discussion supra we direct expunction of  

all remarks made by the Trial Judge against the prosecution  

and by the Division Bench against the Trial Judge.

Role of the Media and Press:

145)  Mr.  Ram Jethmalani,  learned  senior  counsel  for  the  

appellant  submitted  that  the  appellant-Manu  Sharma  had  

been specifically targeted and maligned before and during the  

proceedings  by  the  media,  who  proclaimed  him  as  guilty  

despite even after his acquittal by the Trial Court.  He took us  

through various news items that were published in English &  

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Hindi dailies.  He elaborated that “Justice should not only be  

done,  it  should  manifestly  and  undoubtedly  be  seen  to  be  

done.” This common law rule can not be ignored.  

146)  Cardozo, one of the great Judges of American Supreme  

Court in his “Nature of the Judicial Process” observed that the  

judges are subconsciously influenced by several forces. This  

Court has expressed a similar view in  P.C. Sen In Re: AIR  

1970  SC  1821  and  Reliance  Petrochemicals  Ltd.  v.  

Proprietors of Indian Express 1988 (4) SCC 592.

147)  There is danger, of serious risk of prejudice if the media  

exercises an unrestricted and unregulated freedom such that  

it publishes photographs of the suspects or the accused before  

the  identification  parades  are  constituted  or  if  the  media  

publishes statements which out rightly hold the suspect or the  

accused guilty even before such an order has been passed by  

the Court.

148) Despite the significance of the print and electronic media  

in the present day, it is not only desirable but least that is  

expected of the persons at the helm of affairs in the field, to  

ensure that trial by media does not hamper fair investigation  

by  the  investigating  agency  and more  importantly  does  not  

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prejudice the right of defence of the accused in any manner  

whatsoever.  It will amount to travesty of justice if either of  

this  causes  impediments  in  the  accepted judicious  and fair  

investigation and trial.

149) In  the  present  case,  certain  articles  and  news  items  

appearing  in  the  newspapers  immediately  after  the  date  of  

occurrence, did cause certain confusion in the mind of public  

as  to  the  description  and  number  of  the  actual  

assailants/suspects.  It is unfortunate that trial by media did,  

though to a very limited extent,  affect the accused, but not  

tantamount to a prejudice which should weigh with the Court  

in taking any different view.  The freedom of speech protected  

under Article 19 (1) (a) of the Constitution has to be carefully  

and  cautiously  used,  so  as  to  avoid  interference  in  the  

administration of justice and leading to undesirable results in  

the matters sub  judice before the Courts.

150) A Bench of this Court in the case of R.K. Anand v.  

Delhi High Court (2009) 8 SCC 106, clearly stated it would be  

a sad day for the court to employ the media for setting its own  

house in order and the media too would not relish the role of  

being the snoopers for the Court.  Media should perform the  

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acts of journalism and not as a special agency for the Court.  

The impact of television and newspaper coverage on a person’s  

reputation  by  creating  a  widespread  perception  of  guilt,  

regardless of any verdict in a Court of law.  This will not be  

fair.  Even in the case of M.P. Lohia v. State of W.B. & Anr.  

(2005) 2 SCC 686, the Court reiterated its earlier view that  

freedom of speech and expression sometimes may amount to  

interference with the administration of justice as the articles  

appearing in the media could be prejudicial, this should not be  

permitted.  

151) Presumption of innocence of an accused is a legal  

presumption  and  should  not  be  destroyed  at  the  very  

threshold  through  the  process  of  media  trial  and  that  too  

when the investigation is pending.  In that event, it  will  be  

opposed to the very basic rule of law and would impinge upon  

the protection granted to an accused under Article 21 of the  

Constitution [Anukul Chandra Pradhan  v. Union of India  

& Ors. (1996) 6 SCC 354].  It is essential for the maintenance  

of dignity of Courts and is one of the cardinal principles of rule  

of law in a free democratic country, that the criticism or even  

the  reporting  particularly,  in  sub  judice  matters  must  be  

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subjected to check and balances so as not to interfere with the  

administration of justice.

152) In  the  present  case,  various  articles  in  the  print  

media had appeared even during the pendency of the matter  

before the High Court which again gave rise to unnecessary  

controversies and apparently, had an effect of interfering with  

the  administration  of  criminal  justice.   We  would  certainly  

caution  all  modes  of  media  to  extend  their  cooperation  to  

ensure  fair  investigation,  trial,  defence  of  accused  and non  

interference  in  the  administration  of  justice  in  matters  sub  

judice.  

153)  Summary of our Conclusion:

1) The appellate Court has all the necessary powers to re-

evaluate the evidence let in before the trial Court as well  

as the conclusions reached. It has a duty to specify the  

compelling  and substantial  reasons in  case  it  reverses  

the order of acquittal passed by the trial Court.  In the  

case  on  hand,  the  High  Court  by  adhering  to  all  the  

ingredients and by giving cogent and adequate reasons  

reversed the order of acquittal.   

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2) The  presence  of  the  accused  at  the  scene  of  crime  is  

proved through the ocular testimonies of PWs 1, 2, 6, 20,  

23, 24 and 70, corroborated by Ex PW 12/D-I as well as  

3 PCR calls Ex PW 11/A, B and C.

3) Phone calls  made immediately  after  an incident  to  the  

police constitutes an FIR only when they are not vague  

and  cryptic.  Calls  purely  for  the  reason  of  getting  the  

police to the scene of crime do not necessarily constitute  

the FIR. In the present case, the phone calls were vague  

and therefore could not be registered as the FIR. The FIR  

was  properly  lodged  as  per  the  statement  of  Shyan  

Munshi PW-2.

4) Delay in recording the statement of the witnesses do not  

necessarily  discredit  their  testimonies.  The  court  may  

rely on such testimonies if they are cogent and credible.  

5) The laboratory reports in the present case are vague and  

ambiguous and, therefore, they cannot be relied upon to  

reach any specific conclusion regarding the incident.

6) The  evidence  regarding  the  actual  incident,  the  

testimonies  of  witnesses,  the  evidence  connecting  the  

vehicles and cartridges to the accused – Manu Sharma,  

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as well as his conduct after the incident prove his guilt  

beyond reasonable doubt.  The High Court has analyzed  

all the evidence and arrived at the correct conclusion.   

7) The public prosecutor is under a duty of disclosure under  

the Cr.P.C., Bar Council Rules and relevant principles of  

common law. Nevertheless, a violation of this duty does  

not necessarily vitiate the entire trial. A trial would only  

be  vitiated  if  non-disclosure  amounts  to  a  material  

irregularity  and  causes  irreversible  prejudice  to  the  

accused.  In  the  present  case,  no  such  prejudice  was  

caused  to  the  accused,  and  therefore  the  trial  is  not  

vitiated.

8) No prejudice had been caused to the right of the accused  

to fair trial and non-furnishing of the copy of one of the  

ballistic  reports had not hampered the ends of justice.  

The right of the accused to disclosure has not received  

any set back in the facts and circumstances of the case.   

9) The  High  Court  has  rightly  convicted  the  other  two  

accused, namely, Amardeep Singh Gill @ Tony Gill and  

Vikas Yadav after appreciation of the evidence of PWs 30  

and 101.  

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10)  Normally,  the  judgment/order  should  be  set  aside  or  

affirmed  as  the  case  may  be  but  preferably  without  

offering any undesirable comments, disparaging remarks  

or indications which would impinge upon the dignity and  

respect of judicial system.

11) Every effort should be made by the print and electronic  

media  to  ensure  that  the  distinction  between  trial  by  

media  and  informative  media  should  always  be  

maintained.   Trial  by  media  should  be  avoided  

particularly, at a stage when the suspect is entitled to the  

constitutional  protections.   Invasion  of  his  rights  is  

bound to be held as impermissible.   

154) In the light of the above discussion, we hold that the  

prosecution has established its case beyond doubt against  

the  appellants  and  we  are  in  agreement  with  the  

conclusion arrived at by the High Court, consequently, all  

the appeals are devoid of any merit and are accordingly  

dismissed.

 ...…………………………………J.                   (P. SATHASIVAM)  

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...…………………………………J.           (SWATANTER KUMAR)  

NEW DELHI; APRIL 19, 2010.         

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