SIDHARTHA VASHISHT @ MANU SHARMA v. STATE (NCT OF DELHI) (2)

Citation: [2010] 4 S.C.R. 103

Court: Supreme Court of India

Bench: P. SATHASIVAM, SWATANTER KUMAR

Case summary

SIDHARTHA VASHISHT @ MANU SHARMA v. STATE (NCT OF DELHI) (2).pdf

Judgment text

[2010] 4 S. C. R. 103 SIDHARTHA VASHISHT @ MANU SHARMA v. STATE (NCT OF DELHI) (Criminal Appeal No. 179 of 2007) APRIL 19, 2010 [P. SATHASIVAM AND SWATANTER KUMAR, JJ. ] Penal Code, 1860/Arms Act, 1950: Sections 302, 20111208/Section 27 - Murder - Trial against nine accused - Acquittal by trial court - Conviction by High Court against three accused - A-1 sentenced to life for murder and fine of Rs.

50, 0001-, 4 years of sentence under the Arms Act with default stipulation - A-2 and A-3 sentenced to four years imprisonment and fine of Rs,20001- each with· 0 default stipulation - On appeal, Held: Prosecution has established its case peyond doubt - Appellate court has all the necessary powers to evaluate the evidence Jet in before the trial court and the conclusions reached by it - High Court has given cogent and adequate reasons for reversing the order of acquittal - Presence of accused at the scene of crime proved by ocular testimonies and corroborated by Exhibits - Conclusions arrived at by the High Court upheld. Code of Criminal Procedure, 1973: Section 24 - Public prosecutor - Duties and responsibilities - Duty of Court to ensure that Public Prosecutor does his duties to the utmost level of efficiency and fair play - Interference by Courts - Limitations - Discussed.

Section 154 - First Information Report - Cryptic telephone message of a cognizable offence not to be treated as FIR. Sections 170, 172 - Conduct of investigation - Duties of investigation officer vis-a-vis rights of accused - Discussed - Constitution of India, Articles 14, 19. Sections 293, 294 - Proof of documents - Documents sought to be relied on must be originals - Photocopy of the 8 original documents - Acceptance of, procedure to be followed. Section 313 - questions put to the accused - If accused furnishes false answers as regards proved facts, court can draw an adverse inference qua him - Such inference would become an additional circumstance to prove the guilt of the accused. Evidence Act, 1872: Sections 8, 27 - Evidence of telephone calls - Admissibility of. Section 9 - Test identification parade - Practice not borne out of procedure, but out of prudence - Investigating officer conducts a TIP to ensure that he has got the right person as an accused.

Section 165 - Expert witness - When the expert opinion is vague, no credence could be lent to it - Court's power under the Section - Discussed. Judicial propriety - Judicial propriety and discipline demand that strictures or lacerating language should not be used by higher courts in exercise of their appellate or supervisory jurisdiction - Errors ofjudgments to be corrected by reasons of law - Practice of passing comments against lower courts deprecated. Judicial discipline/restraint - A judgment could be set aside preferably without offering undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of the judicial system - Despite such restraint, if there are compelling reasons for making (NCT OF DELHI) comments, rule of law and principles to be adhered - View point ofjudge concerned should also be invited - In the facts of the case, all the remarks made by the trial judge against th.

e prosecution and by the Division Bench against the trial judge directed to be expunged - Strictures by court - Expunging of. Media Trial: Despite significance of the print and,electronic media, it is desirable to ensure that trial by media does not hamper fair investigation - More importantly not to prejudice the right of defence of accused in any manner whatsoever - Freedom of expression to be carefully and cautiously used, to avoid interference in the administration of justice and leading to undesirable results in the matters sub-judice before courts - Caution to all modes of media to extend full cooperation to ensure fair investigation, trial, defence of accused and noninterference in the administration of justice in matters subjudice- - However, in the instant case, the media trial did affect the accused to a very limited extent but not tantamount to prejudice which would weigh with the Court in taking any different view - Constitution of India, 1950 - Article 19(1)(a).

Doctrines: Doctrine of 'contra veritatem lex nunquam aliquid permittit' - Meaning of · Doctrine ofdisclosure - Discussed. According to the prosecution, on the night intervening 29-30. 04. 1999, a 'Thursday Party' was going on at . Qutub Colonnade once called "Tamarind Cafe". Liquor was being served by the bartenders, namely, 'J' (since deceased) and PW-2. At about 2. 00 a. m. , appellant in the main appeal (A-1) along with his friends came there and asked for two drinks. The waiter did not serve him liquor as the party was over. Deceased and PW-6, who were also present there, tried to make him understand that the party was over and there was no 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 the deceased which hit near her left eye as a result of which she fell down.

PW-20 who was present there, stopped the appellant and questioned him as to why he had shot the deceased and demanded the weapon from him but he did not hand over the pistol and fled away. Deceased was rushed to Ashlok Hospital from where she was shifted to Apollo Hospital. On 30. 04. 1999, in the early morning hours, she was declared brought dead at Apollo Hospital. FIR was lodged and after police investigation, charges were framed against nine accused under Sections 302/202/1208/212 IPC and under Section 27 of the Arms Act against the appellants. Trial began in May, 2001 against nine accused. In all, 101 witnesses were examined by the prosecution and two court witnesses were also examined. On 21. 02. 2006, after trial, the Additional Sessions Judge acquitted all the nine accused including the appellant. Challenging the acquittal, the prosecution filed an appeal before the High Court. On 20. 12. 2006, the High Court convicted and sentenced the appellants.

A-1 was given life sentence for murder and a fine of Rs. 50,000/and four years sentence under Section 27 of the Arms Act with default stipulation. The other two appellants (A-2 and A-3) were convicted and sentenced to four years imprisonment and fine of Rs. 2000/- each with default stipulation. Challenging the said order of the High Court, all the three appellants filed separate appeals before this Court. On behalf of the appellants, it was contended that A- (NCT OF DELHI) 1 has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India; that on the very first day of investigation i. e. on 30. 04. 1999, an FIR was filed against PW-6, PW-20 and PW-24 under the Punjab Excise Act in order to control these witnesses and to pressurise them 8 to support the prosecution case.

After their deposition, the Excise case was pre-poned and disposed of by imposing a fine of paltry amount; that PW-6, PW-20 and PW-24 were frequently shown the photograph of the appellant and he was paraded before them; that the finding of the High Court that the appellant took out his pistol and first fired at the ceiling and then at the deceased is based on no evidence; that three Ballistic Experts have concurred that empty cartridges have been fired from two different weapons; their Report.

support the 0 statement-in-chief of PW-2; there was no evidence on record that both the shots were fired from one weapon; and that the High Court has wrongly placed reliance upon the testimony of PW-1, even though, he was not present in the party and he was planted by the prosecution; the evidence of three family members PW- 6, PW-20 and PW-24 was inadmissible in law; that the prosecution never claimed PW-20 as an eye-witness, however, the High Court erroneously held Iler as eyewitness to the occurrence; that the High Court failed to consider the evidence of PW-46 and PW-47; that the High Court committed an error in relying upon the testimony of PW-24 to corroborate the evidence of PW-20; that the First Information Report recorded on the statement of PW-2 was not an FIR but a signed statement; that the High Court wrongly discarded his ocular version; that the Trial Court assigned good reasons for accepting his evidence; that the High Court's observation on Ballistic Experts from CFSL was erroneous; that the High Court committed an error in disbelieving PW-95; that there is no acceptable evidence/material to connect Tata Safari to the allege~ occurrence; that PW-30 was a planted witness, and there was no need for him to accompany PW-1 to the spot when he was assigned other official work; that a rough site plan which was prepared in the early hours of 30.

04. 1999 (Ex. PW 100/2) clearly showed the absence of PW-20 at the alleged place of occurrence, if she was an 8 eye-witness, this would have been done; that the Public Prosecutor failed to adhere the basic principles in conducting criminal case; that 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 wi~h the acquittal and imposed sentence which is not permissible under law; and that the prosecution failed to establish the charge in respect of the other two accused-appellants (A-2 and A-3) under Section 201 read with 1208 of the IPC. On behalf of the State, it was contended that the Trial Judge has committed an error in acq.

uitting 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; and that the conviction and sentence awarded by the High Court were acceptable and no interference is called for by this Court. The following points arose for consideration in these appeals: (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 I (NCT OF DELHI) acquitted all the accused in respect of the charges leveled against them is sustainable? Dismissing the appeals, the Court HELD: 1.

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 ag·ainst acquittal can review the entire evidence and come to its own conclusions. (iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law. (iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal. (v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion. (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. [Para 13] [168-D- H; 169-A-E] Madan Lal vs. State of J&K, (1997) 7 SCC 677; Ghurey Lal vs.

State of Uttar Pradesh (2008) 10 SCC 450; Chandra Mohan Tiwari vs. State of M. P. , (1992) 2 SCC 105 and Jaswant Singh VS. State of Haryana, (2000) 4 sec 484, referred to. 2. 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 A-1 and others, prosecution has examined PW-1, PW-2, PW-6, PW-20, PW-24, PW-23 and 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. [Para 15] [170-8-C] 3. A close scrutiny of PW-1 's evidence clearly shows that the deceased was friendly with him having known him for 5-6 years. He also went to the house of her parents twice i. e. on 30th April and 1st May 1999 to pay condolence.

Further, in categorical terms, he asserted and identified the presence of A-1 at the scene of offence. (NCT OF DELHI) Since he had contact with a person having fair complexion with smiling face, in the Court he correctly identified both A-1 and A-2. He also identified other persons who accompanied these two accused. It is also clear from his evidence that at around 1. 45 a. m. , he heard a noise emerging from Tamarind Cafe to the effect that the deceased had been shot. It is also clear that on hearing, he ran towards Tamarind Cafe though according to him he could not go inside yet peeped and saw the deceased lying on the floor. Since the High Court has accepted his evidence which was not acceptable by the Trial Court, this Court analyzed his entire statement with great care. 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 0 presence of accused Nos. 1-4 at the place of occurrence. He asserted the presence of the deceased and PW-2 and the claim of whisky by a fair complexion man who exchanged niceties with him and introduced himself (A- 1). There is no 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 the deceased lying on the floor of Tamarind Cafe. To this extent, the evidence of PW-1 is acceptable and the High Court has rightly believed and relied on his version. (Para 15] (172-G-H; 173-A-H] 4. The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited Tamarind Cafe on the night of 29. 04. 1999. He also mentioned the presence of A-1.

His evidence further shows that immediately after the shot PW-20 and others were carrying the deceased to Ashlok Hospital. In other words, his evidence proves the presence of A-1 at the scene of offence. To this extent, the prosecution relied upon his evidence and this was rightly accepted by the High Court. Though, the defence submitted that High Court ought to have accepted his entire evidence in toto, considering his earlier statement to ~he police and his evidence before the Court, this Court is satisfied that the High Court is justified in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. His evidence amply proves the presence of accused at the scene of occurrence at the time and date as pleaded by the prosecution. [Para 15) [175-E-H; 176- A] 5.

It is relevant to note that PW-6 (daughter of PW-20) 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. She is a fashion designer by profession. In other words, she is highly qualified and it is not her grievance that she was unable to understand her earlier answers. It is clear from the evidence of PW-6 that A-1 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 A-1 along with 4 or 5 persons present at the Tamarind Court who asked her for whisky and later misbehaved with her. This Court agrees with the observation and the ultimate conclusion about PW-6 reached by the High Court. [Para 15] [179-H; 180-A-D] 6.

If the evidence of PW-20 is analyzed 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 the deceased was standing with the people at the far end and she saw her falling down. She also informed that PW-2 said that the deceased had been shot. It is relevant to point out that she was shouting to the guests to call the Doctor or to take the deceased for (NCT OF DELHI) treatment, she reached the gate where her husband was standing and she told him that "this was the man who had shot the decease,d;and to see in which car he gets into". If her entire evidence is read she refers only to A-1. She also correctly identified the presence of other accused persons.

Her evidence remained unchallenged, though the Trial Court discarded her evidence as she was not an eye-witness to the occurrence but accepted that she is a witness to the presence of the accused at the Qutub Colonnade. Her statement clearly proves the prosecution case that she had herself seen A-1 shooting the deceased. As rightly observed by the High Court, if the evidence of PW-20 is analyzed in depth, it is clear that she. not only asserted the presence of A-1 at the scene of occurrence and heard two shots one by one but also asked a pertinent question to PW-2 that why he {A-1) had 0 shot the deceased. For the limited purpose of proving the presence of accused at the scene of offence, her evidence fully supports the case of the prosecution. [Para 15] [180-F-H; 181-A-E] ·' '. · 7. PW-24 is a Canadian citizen and according to him, he has been residing in India since February, 1992. PW- 20 is his wife.

His evidence makes it clear that at the relevant time on hearing the shot, PW-2 came running shouting that someone shot the deceased. He reached the door of the restaurant. It is also clear that PW- 20 was moving at a place ahead of him towards the left side. This witness subsequently stated that PW-20 was addressing a young man who was moving with someone. He also identified the person who had come out first followed by PW-20 and he touched A-1 as the person who was being followed by PW-20. His evidence also proves the presence of A-1 at the scene of offence. [Para 15] [181-F- H; 183-D-E] 8. 1. PW-23 in his evidence, admitted that he had told the police that he saw PW-20 going after a boy. [Para 15] [183-F-G] 8. 2. The statement of PW-70 also makes it clear that after the shooting incident PW-20 was running behind a man shouting "catch that man". [Para 15] [184-C-D] 8 9.

The evidence of PWs 1, 2, 6, 20, 23, 24 and 70 which are all admissible in evidence clearly show the presence of A-1 at the scene of offence. This evidence of the ocular witnesses is duly 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, 8 and C which were received. o The evidence of PWs 11, 12 and 13 clearly proves that immediate and prompt action was taken. [Para 15] [184- D-F] 10. PW-83 reached the scene of occurrence within . two minutes at around 02. 17 a. m. and reported back at 02. 35 a. m. Ex. PW 12/D-1, a contemporaneous document, clearly corroborates the testimony of ocular witnesses. From the evidence adduced, it is clear that the appellantsaccused 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 relevant that the said witness reached around 02. 17 a. m. , on a message from PCR to PS Mehrauli takes around 10 minutes as from local PCR it goes to headquarter from where it is transmitted to concerned district net which further transmits it to the local police station. In this way, around 02. 25 a. m. , even before the local police had arrived at the spot 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 (NCT OF DELHI) 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 the deceased 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 A-1 and make escape good of the tall Sikh gentleman, is wholly erroneous and without any basis. [Para 15] [184-G-H; 185-D, G-H; 186-A-C] 11. 1. 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 PW-20 on the steps of the cafe, he rushed towards her and they both went inside · the cafe.

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 PW-20 has stated that when she mounted the steps of the restauraht she saw a few people standing next to the counter and heard a shot. A moment later she heard another shot. Deceased was standing with people at the far end and she saw her falling. It is pertinent to note that as per the scaled site plan, the point at which PW-20 was standing was only four feet from the point at which the shot was fired at the deceased. 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 A-1.

Thereafter, she accosted him till the gate of Qutub Colonnade where she told PW- 24 that this was the man who had shot the deceased and that he should see in which car he i. e. A-1 gets into and after that PW-20 came back to the spot. It is when she came back to the cafe this witness PW-47 joined PW-20 entering the cafe, thus the testimony of this witness does 8 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, therefore, she did not chase anybody else as the person who was having the gun.

It has to be borne in mind that PW-20 had no enmity with the appellantmain accused 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 0 was motivated by mala fide. [Para 18) [188-C-H; 189-A-D] 11. 2. The defence that since PW-47 in his cross examination has stated that 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, does not lead to the inference that PW-20 did not witness the incident rather it could further reinforce what she had witnessed. Even otherwise, admittedly, thus, PW-20 was available she was not recalled to confront her with the testimony of PW-47. In those circumstances, the defence cannot take advantage out of a portion of statement of PW-47. [Para 19) [189-D-F] 11. 3.

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 cafe 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-20 that she (NCT OF DELHI) witnessed the incident. The mere absence of 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. [Para 20) [190-A-C] 11. 4. This Court meticulously verified the site plan as well as the evidence of PWs 20, 46 and 47. The absence of PW-20 in the site plan does not belie her presence and her having witnessed the incident especially when her statement under Section 161 Cr. P. C. was recorded on 30.

04. 1999 in the morning itself. [Para 21] [190-E-F] 12. 1. 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 reasons cannot wipe out the unchallenged testimony of PW-20, which is the case of the prosecution. Further, the appellant-main accused has also been clearly identified by 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. [Para 23, 24] [192-F-H; 193-A-C] 12. 2. 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 PW-6 an accused on 08. 05. 99 does not arise. Moreover, the excise offence is a bailable offence. Further, the statement of PW-6 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.

[Para 25] (193-G-H; 194-A] 12. 3. As regards the argument that 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 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 D . 30. 04. 1999 at the time of recording the 'rukka', none of the witnesses had disclosed the identity of A-1, therefore, to allege that the Police had planted the witness is wholly incorrect. [Para 26] (194-B-D] 12. 4. As regards the argument that PW-6 was under the influence of alcohol, therefore, could not have identified A-1, is also wrong since she clearly stated in her testimony, particularly, in cross-examination, that she had consumed only one drink. [Para 27] [194-D-E] 12. 5.

The argument that deposition of PW-6 as regards the presence of other accused, does not find corroboration from the testimony of PW-1 is incorrect since the said witness categorically mentioned the presence of other accused. The grievance that the identification of A-1 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 A-1 by specifically pointing out and stating that he just looks like him. It was explained by the State that the appellant (A-1) was not personally known (NCT OF DELHI) 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 PW-20 and PW-24 is of little value since neither PW-20 nor PW-24 stated that they had be. en shown the photos of the accused inspite 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 PW-70, that he saw her screaming out, the defence has sought to discredit PW-6's, statement. It is relevant. to note 0 that it is the case of PW-6 that she came to know when she was in the courtyard, PW-2 came running towards her screaming that the deceased 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.

[Para 28] [194-F-H; 195-A-D] 12. 6. After perusing the evidence of PW-6, it is clear that after refusal of the drink, A-1 misbehaved in the most vulgar fashion. The testimony of PW-23 further corroborates the testimony of PW-6. As rightly pointed out by the State that it was a case where the deceased was murdered for a row over the drink. [Para 29] [195-E] 12. 7. The evidence of these three witnesses, viz. PWs 6, 20 and 24, 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 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 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.

PW-100 reached Ashlok Hospital and made enquiries s from PW-20 who directed him to take the statement of PW-2 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 eyewitnesses 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 postmortem, site plan etc. and immediately thereafter search for Tata Safari, ownership of the alleged vehicle, search for A-1 in the case being made, as such even if there is delay in recording of statements of other witnesses, it 0 cannot be fatal to the prosecution case. The said claim of the prosecution cannot be rejected as unreasonable. [Para 30] (195-G-H; 196-A-G] 12. 8.

PW-6 in categorical terms informed the Court about A-1 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. PW-6 further corroborates the testimony of PW-20 and part testimony of PW-2 with regard to the presence of A-1. The scrutiny of the entire evidence of PW-6 clearly shows that her evidence is not only relevant but also admissible. [Para 31] 13. 1. PW-9, who conducted post-mortem on the body of deceased 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 (NCT OF DELHI) Injury no.

3 was sufficient to cause death in the ordinary course of nature. [Para 32] [197-C-E] 13. 2. 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 8 he made his statement in English, however, PW-100 recorded it in Hindi. In the absence of any suggestion to the contrary, 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 he can understand spoken Hindi. 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. [Para 33] [197-E-H; 198-A-B] 13. 3. 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.

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 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. 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. [Para 34] [198-C-H; 199-A] 14. 1.

The information about the commission of a cognizable offence given "in person at the Police Station" and the information about a cognizable offence given "on telephone" have forever been treated by this Court on different pedestals. The rationale for the said differential treatment to the two situations is, that the information given by any individual on telephone to the police is not for the purpose of lodging a First Information Report, but rather to request the police to reach the place of occurrence; whereas the information about the commission of an offence given in person by a witness or anybody else 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 .

0 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. [Para 41) [208-B-F] 14. 2. In the instant case, 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 PW-2 was rightly registered as the FIR. [ Para 42) [208-G] State of UP. vs. P. A. Madhu, (1984) 4 SCC 83; Tapinder Singh vs. State of Punjab (1970) 2 SCC 113; Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392 and Ramesh Baburao Oevaskar and Others vs. State of Maharashtra (2007) 13 SCC 501, relied on. Mehr Vajsi Deva vs. State of Gujarat, AIR 1965 Guj 143, held per incuriam. Superintendent of Police, CBI and Others vs. Tapan Kumar Singh, (2003) 6 SCC 175, held inapplicable. (NCT OF DELHI) State of UP. vs. Bhagwant Kishore Joshi AIR 1964 SC 221 and Emperor vs.

Khwaja Nazir Ahmad AIR 1945 PC 18, distinguished. H. N. Rishbud & lnder Singh vs. The State of Delhi (1955) SCR 1150; Damoder vs. Rajasthan (2004) 12 SCC 336; Ramsinh Bavaji Jadeja vs. State of Gujarat (1994) 2 SCC 685; Zahidurddin vs. Emperor, AIR 1947 PC 75; Superintendent and Remembrancer of Legal Affairs to the State of WB. 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), referred to. 15. 1. 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.

PW-30 gave a lathi blow on the glass of window pane and it broke due to danda blow. He noted down the number of the black Tata Safari as CH-01-W-6535. The witness also identified Tata Safari which was hit by him on that night, which is exhibit PW 30/X. PW 30 also identified that Tata Sierra was driven by A-2 whereas A-3 drove away black Tata Safari. PW-101 also stated that when he came back, he was told 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. 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 A-2 and A-3 came in a white colour Tata Sierra Car and A-3 got down and drove away black Tata Safari No. CH-01-6535. [Paras 43 and 44] [212-D-H; 213-A-C] 15. 2. From the statements of PW-100, PW-101, PW- 8 87, PW-80 and PW-85, it is clear that Tata Safari vehicle was being searched by Inspector (PW-87) and SI (PW-85) and other police officers at various places in Delhi, Haryana and Chandigarh. 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. [Para 46] [215-B-D] 15. 3. 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 lnsp. (PW-74) dated 26. 06. 1999. PW-91 and 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 of the 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. 00 p. m. 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 BO. The seizure memo Ex. PW 100/DB is duly signed by SI BO Dubey. The said Tata Safari and the broken glass pieces duly sealed with the seal of BD have been deposited in the Malkhana SIDHARTHA VASHISHT@ MANU SHARMA v.

125 STATE (NCT OF DELHI) 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 18/0A at item no. 7 & 9 in the letter sent to CFSL mentioned about the seal of BO 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. [Paras 47, 49) [215-G-H; 216-D-H; 217-A-B] 15. 4. From the evidence on record it has been proved by the prosecution that A-I and co-accused were present in the said party at Tamarind Cafe 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. 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 A-1 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 A-1 used the said Tata Safari for coming to Qutub Colonnade on the fateful night of 29/30. 04. 1999. [Para 50) [217-C-F] 16. 1. The prosecution has established that the appellant/accused was the holder of a . 22" bore Pistol; he was witnessed by PW-20 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 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 the deceased by using firearm and destroying evidence thereafter. [Para 55) [221-D-F] 16. 2. A-1 despite forever maintaining that the police had illegally taken away the pistol from his farmhouse on 30. 04. 1999/01. 05. 1999, did not take this ground in the reply to remand application and argument to the said effect was recorded in the remand order by the Magistrate.

The only inevitable conclusion that could be reached from the said turn of events is that the pistol was still in custody of the accused and had never been recovered by the police from his farmhouse. In the reply dated 07. 05. 1999 filed by the accused to the remand application, there are interpolations in the reply in black ink in two handwritings to the effect that the pistol had already been recovered from the person of the accused. The assertion that the words in two handwritings in black ink are interpolations gain strength from the fact that nowhere in the remand order dated 07. 05. 1999 has it come that the accused has taken the plea that the pistol had already been recovered.

Thus this evidence coupled with the testimony of PW-2, that the person in white Tshirt who was asking for whisky took out a pistol from dub of his pant and fired a shot in the air and the other witnesses PWs 1,6, 20 and 24 that the person in white Tshirt was A-1, a positive inference beyond reasonable doubt has to be drawn that A-1 fired from his . 22" bore pistol which resulted in the death of the deceased on the (NCT OF DELHI) fateful night of 29/30. 04. 1999. jPara 56] [222-A-F] 16. 3. A perusal of the questions posed and answers given by A-1 were either evasive or incorrect and an adverse inference deserves to be drawn for such acts of the A-1. [Para 57] [223-H; 224-A] Sucha Singh vs. State of Punjab (2001) 4 SCC 375, relied on. 17. 1. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30. 04. 1999 he had told the police at the Apollo Hospital all that he knew.

This being the case, it cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the Police. Clearly, PW-1 was not an eye 0 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. On behalf of the State, it was submitted that as there were number of witnesses to be examined the said examination continued for days. Witnesses 'PS' and 'AS' were also examined on 14. 05. 1999. Further the presence of PW-1 can also not be belied in view of the testimony of PW-29 and 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 other words, law contemplates a situation where there might be witnesses who depose in Court but whose previous statements have not been recorded. [Para 61] [225-E-H; 226-A-C] 17. 2. The statements of witnesses were recorded not only by the 1. 0. himself but by other officials as well who were helping him in investigation. The delay in recording the statement of PW-1 occurred due to natural flow of statements of various witnesses. The statement of PW- 1, was recorded by ACP (PW-92), who stated the name of PW-1 occurred during the course of interrogation of other guests/witnesses. The evidence of PW-1 is relevant s for a limited purpose i. e. , proving the presence/identity of A-1 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 PW-1 as well. (Para 62) (226-D-G] Mohd. Khalid Vs. State of W. B. , (2002) 7 SCC 334; Prithvi vs. Mam Raj, (2004) 13 SCC 279 and Ganesh/al vs.

State of Mahrashtra (1992) 3 SCC 106, relied on. Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh vs. State of Punjab (2005) 3 SCC o 689, distinguished. Gane$h Bhavan Patel vs. State of Maharashtra, (1978) 4 sec 371, referred to. 18. 1. The opinion of Ballistic expert finally exhibited as Ex. PW 89/DB only says that "it appears that the two cartridge cases are from two different pistols. " 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. [Para 64) [229- B-C] 18. 2. PW-95, Ballistic expert at FSL, Jaipur, was asked a specific query being query No. 3 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 for examination. It was pointed out that the trial Court puts a question to the witness and while putting the question first gives a specific fact finding that for reply (NCT OF DELHI) to Query No. 3, the presence of the firearm was not necessary. This incorrect finding of fact given by the trial Court was 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. [Para 65] [229- 0-G] 18. 3.

In any case, both Section 293 and Section 294 of the Code of Criminal Procedure 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, i. e. Ex. PW-89/08 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 loses all credence in the light of the fact that a perusal of the forwarding letter and report would show that there seems to have been some tampering with the said documents since the sequence of numbering of the parcels as between the forwarding letter and the report has been changed by somebody which fact remains unexplained as, therefore, casts a further doubt on the genuineness of the said report. The report itself with regard to query No. 3 shows that "it appears that the two cartridge cases C-1 and C-2 have been fired by two different weapons". This opinion of the expert was vague and on the basis of the said opinion no credence can be lent to the fact adverted to by the defence that there were two persons who fired two different shots from two different weapons. Moreover the said report is oddly silent on query No.

7 of the forwarding letter wherein it was specifically asked about the various markings on the live cartridge and the bullet empties. The stand of the defence that to opine the tWo cartridge cases are from the same weapon or not the pistol is not required and the pistol is only required when the opinion is sought whether they are from that particular weapon or not cannot be accepted. It is well settled that when pressure is built inside the 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 is rendered inadmissible the two gun theory of the defence becomes wholly inadmissible 0 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 the deceased. [Para 67] [231-F-H; 232-A-G] 18. 4. 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 A-1 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.

lnspite of knowing all this, the judge first put a finding of its own to the witness that he did not need the firearm in question in order to reply as to whether the two empties were fired from the same gun (NCT OF DELHI) 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. [Para 70] [235-C-F] 18. 5. The discretion on the part of the 1. 0. and the superior officers was rightly exercised when they 8 decided not to file the expert report since they realized that the expert report is ambiguous as it uses the term "appear" when it suggests that the two empties appear to have been fired from different weapons. Clearly the said opinion was far from conclusive and would have only created confusion in the case of the prosecution. Thereafter a second opinion was sought wherein the expert i. e. PW-95 opined that a conclusive opinion can only 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. [Para 71] [236-A-D] 18. 6. In the present case, the moment the Ballistic Expert uses the word "appear" his opinion unsupported by reasons becomes inconclusive and stands discredited for the purpose of placing reliance on. Though he 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 said opinion as of , today is of little use to the accused for the reasons stated above and since it is both inconclusive and unsupported by any reasoning whatsoever and, therefore, cannot appeal to the judicial mind of this Court. Similar is the case with the expert opinion of PW-95 which is again inconclusive. There is no evidence on record to suggest that PW-95 gave an opinion to oblige the prosecution. On the contrary, his response to the Court question reveals that he was extremely confused as to the issue which had to be addressed by him in the capacity of an expert. In the concluding part of his testimony he reaffirms the opinion given by him which is that without test firing the empties from the weapon of offence no conclusive opinion can be given.

[Para 71] [236-G-H; 237-A-E] 18. 7. It is pertinent to note that the testimony of the experts Le. , exhibited as Ex. PW-89/DB and PW-95 · exhibited as Wx PW-95/C-1 in inconclusive. The expert PW-95 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. [Para 72] [237-F-G] 18. 8. 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. [Para 73] [238-A-C] A. E. G. Carapiet vs. A. Y.

Derderian, AIR 1961 Calcutta 359 and Ram Chander vs. State of Haryana, AIR 1981 SC 1036, referred to. SIDHARTHA VASHISHT@ MANU SHARMA v. 133 STATE (NCT OF DELHI) 19. 1. A public prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. He 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 the prosecutor to be lax in any of his duties as against the accused. 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. [Paras 76, 77) [238-F-G; 240-B-D] 19. 2.

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. An accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence.

A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation 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 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 0 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. [Para 82] [248-E-H; 249-A-F] 19. 3.

The aim of criminal justice is two-fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and SIDHARTHA VASHISHT@ MANU SHARMA v. 135 STATE (NCT OF DELHI) the guilty is punished in accordance with law. [Para 82] [250-B-C] 19. 4. 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 8 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. [Para 83] [250-D-E] 19. 5. The power of the police to inyestigate 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. [Para 84] [251-C-D] 19. 6. 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 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 0 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. [Para 91] [255-F-H; 256-A-D] 19. 7. 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 to the accused and even in the cases where during investigation a document is bona fide obtained by SIDHARTHA VASHISHT@ MANU SHARMA v. STATE137 (NCT OF DELHI) 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. 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. (Para 91) (256-D-H; 257- A-C] 19. 8. Section 207 Cr. P. C.

not only require or mandate that the Court without delay and free of cost should furnish to the accused copies of the police report, first information report, statement, confessional statement of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173 (6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Sub Section 5 of Section 173. In contradistinction to the 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 ~nly 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. [Para 91] (257-B-F] 19. 9. 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. 8 On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial.

To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the Court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. Itwill 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 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 (NCT OF DELHI) duties of the prosecutor under the English System cannot, be made applicable to Indian· Criminal Jurisprudence stricto senso at this stage. However, the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, 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 [Para 92] [257-G-H; 258-A-H; 259-A] Shiv Kumar v. Hukam Chand and Anr. (1999) 7 SCC 467; Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, (1994) 4 SCC 602; Zahira Habibul/a H. Sheikh and Anr. v. State of Gujarat and Ors. , (2004) 4 SCC 158; Kashmeri Dev v. Delhi Administration and Anrs. JT 1988 (2) SC 293; Sasi Thomas vs. State & Ors. (2007) 2 SCC (Criminal) 72; State Inspector of Police vs. Surya Sankaram Karri (2006) 3 SCC (Criminal) 225; T. T. Antony vs. State of Kera/a (2001) 6 SCC 181; Nirma/ Singh Kah/on vs. State of Punjab AIR 2009 SC 984; Habeeb Mohammad v. State of Hyderabad, A. l. R. 1954 S. C. 51; Khatri v. State of Bihar A. l. R. 1981 SC 1068; Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341; Mukund Lal v. Union of India A. l. R.

1989 SC 144; Shamshul Kanwar v. State of U. P. A. l. R. 1995 SC 1748; State of Kera/a v. Babu (1999) 4 SCC 621 and State of Kamataka vs. K. Yarappa Reddy (1999) 8 SCC 715, relied on. R. v Ward (Judith Theresa) (1993) 2 All E. R. 577 and R v. Preston & Ors. (1993) 4 All ER 638, referred to. 20. 1. The evidence of the telephone calls in the present case is admissible under Sections 8 and 27 of the Indian Evidence Act. [Para 93] (259-8] 20. 2. The details of the phone call show that the accused were in touch with each other which resulted in 8 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. [Para 96] (260-F-G] 21. 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 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. [Para 97) (261- E-F] Varkey Joseph vs. State of Kera/a, 1993 Supp (3) SCC 745, distinguished. 22. 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, (NCT OF DELHI) 08. 02. 2002, 27 . 11. 2003 and 11. 12. 2003. The said sequence of events clearly show that the prosecution not only wanted to examine him as a witness, but tried serving him with the summons many times, but the same could not be achieved as Sanjay Mehtani had by then shifted to Hong Kong and was not staying in India. Therefore to contend that Sanjay Mehtani was deliberately not examined by the Prosecution is absolutely baseless and not founded on the basis of the record. [Para 98] [262-8-E] 23. 1A 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 . >1' considered as material. (Para 100] (263-DJ-···' ,. , 23. 2. From the testimony of PW-20 and PW-24, it is proved beyond reasonable doubt that A-1 after committing the murder of the deceased fled away from the scene of occurrence. It is further proved from the testimony of PW-100, PW-101, PW-87, 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 A-1 in 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 A-1 continued and search was made at Piccadilly Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital where his father was subsequently admitted.

However, he was not found nor anybody informed his whereabouts and it is only on 06. 05. 1999 that he had surrendered at Patiala Guest House, Chandigarh in the presence of an advocate. The above evidence of the witnesses clearly establishes beyond reasonable doubt that A-1 absconded after committing the crime and surrendered on 06. 05. 1999 after extensive searches were made. [Para 99] [262-G-H; 263- A-C] 23. 3. Thus, it has been proved beyond reasonable doubt that A-1 absconded after the incident which is a very relevant conduct u/s 8 of Evidence Act. [Para 100] [263-G-H] Anant Chaintaman Lagu vs. State of Bombay AIR 1960 SC 500, relied on. 24. 1. PW-100 and PW-101 deposed that on the early morning of 05. 05. 1999 A-2 was arrested and he made a voluntary disclosure vide Ex. PW 100/7 that on 29. 04. 1999 0 he had a talk with Alok Khanna over telephone and thereafter a telephone call was received at about 8. 30 p. m. from A-1.

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. A-1 surrendered on 06. 05. 1999 at 2. 30 p. m. at Patiala Guest House, Chandigarh before lnspr. (PW-87) and ASI (PW-80). After his arrest A-1 had made four disclosure statements. The first was an oral disclosure made to lnspr. (PW 87) 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 effected. On 07. 05. 1999, he made a disclosure to lnspr. (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.

9811096893 in making calls to his friends A-2, Alok Khanna, Amit Jhingan and others. He also (NCT OF DELHI) 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 this disclosure of A-1 the mobile phone used by him was recovered from accused Yograj Singh (Ex. PW 100/23). [Paras 101, 102] [264-A-G] 24. 2. The third disclosure is Ex. PW 100/Article-1 which was video recorded on 07. 05. 1999 itself after A-1 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 A- 1 investigations were carried out and it was that the accused were in close contact with each other over phone and A-1 had made numbe·r of calls from the house of A-3 to his house in Chandigarh and to Harvinder Chopra at Piccadilly. [Para 103] [264-H; 265-A-C] 24. 3. The fourth disclosure of A-1 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. [Para 104] [265-C-E] 25. 1.

The witnesses PWs 1, 6, 20 and 24 have clearly proved beyond reasonable doubt the identification of the accused persons. PW-1 had met A-1 on the night of 29. 04. 1999 at Qutub Colonnade when he introduced himself to PW-1 and they were about to exchange visiting cards when A-2 took him away towards the cafe. Both A- 2 and A-1 refused their TIP on 06. 05. 1999 and 07. 05. 1999 respectively before the Metropolitan Magistrate without citing any credible reason. Thereafter, photo identification was conducted in which they were duly identified by PW- 8 1. The said witness has also clearly identified the two of them in the Court. [Para 105] (265-F-H; 266-A-B] 25. 2. PW-6, has categorically stated that she identified A-1 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 he refused his TIP. [Para 106] (266-8-C] 25. 3.

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 A-1 in the court and his testimony also remains unshaken on this aspect. PW-30 has also clearly identified the other accused in the court and the photo identification with regard to them was resorted after A-2 had refused TIP on 06. 05. 1999. [Para 106] (266-F-H; 267-A-B] 25. 4. PW-2 had left for Kolkata and thereafter, photo identification was got done when PW 76 went to Kolkata to get the identification done by picking up from the photographs wherein he identified A-1 though he refused to sign the same. However, in the court PW-2 refused to recognize him. In any case, the factum of photoidentification by PW-2 as witnessed by the concerned Officer is a relevant and an admissible piece of evidence. [Para 107] (267-8-C] 25. 5.

As far as refusal of TIP by A-1 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 SIDHARTHA VASHISHT@ MANU SHARMA v. 145 STATE (NCT OF DELHI) shown to the witness. In this regard, it would be relevant to note that he had surrendered on 06. 05. 99 and on 07. 05. 99 he was produced in muffled face before the Metropolitan Megistrate and the proceedings thereof are recorded vide Ex PW-79/G wherein A-1 '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 A-1 are incorrect and misconceived with regard to the appearance of the photos in the newspapers. It was pointed out that in none of the newspapers is the photograph of A-1 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 0 drawn in this regard. [Para 11O] [268-E-H; 269-A-B] 25. 6. It is not disputed that the photograph ·of A-1 was obtained from his farmhouse located in Samalkha on the intervening night 30. 04. 1999 & 01. 05. 1999. However, it is further in evidence of PW-87 that he went to Chandigarh and he took the photograph of A-1 for the purposes of identification and it was with him till 06. 05. 1999. Thus the photo of A-1 could not have been shown to any of the witnesses because the witnesses were either in Delhi or Kolkata not in Chandigarh. [Para 111] [269-0-E] 25. 7. In the light of A-1 '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 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. [Para 111] [270-C-E] 25. 8. Resort to photo identification was properly taken by mixing the photograph of A-1 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 wa