IN THE HIGH COURT OF DELHI AT NEW DELHI
CRIMINAL APPEAL NO.193 OF 2006
18.12.2006
Reserved on : November 29, 2006
Date of Decision: December 18
, 2006
State ............. Appellant
Through Mr. Gopal Subramanium, ASG with
Ms. Mukta Gupta, Standing Counsel
and Mr. Ashwini, Mr. Ankur Jain and
Ms. Rajdeepa Behuria, Advs.
versus
Sidhartha Vashisht and Ors. .............Respondents
Through Mr. Ram Jethmalani, Sr. Adv.
with
Pt. R.K. Naseem, Mr. Manu Sharma,
Mr. Harish Ghai, Mr. P.R. Mala, Ms.
Latha Krishnamurthy, Mr. Sachin Dev
Sharma, and Mr. Sanjeev Advs.
for Respondents. 1.
Mr. K.N. Balagopal, Mr. S.K. Sharma,
Mr. G.K.Bharti, Mr. A.P. Mukandan ,
Advs. For Respondent No.2.
Mr. I.U. Khan, Sr.Adv. With Mr. R.D.
Rana, Mr. Sidharth Luthra, Mr.Pramod
Kumar Dubey, Ms. Arundhati Katju and
Mr. Aman Khan, Advs. For R-3 and 4.
Pt. R.K. Naseem,Adv. For Respondents
No. 5, 6, 7 and 8.
Mr.Vivek Sood, Adv. for R-9.
CORAM:
HON'BLE MR.JUSTICE R.S.SODHI
HON'BLE MR.JUSTICE P.K.BHASIN
1.Whether Reporters of local papers may be allowed to see the judgment? YES
2.To be referred to the Reporter or not?
YES
3.Whether the judgment should be reported in the digest?
YES
J U D G M E N T
R.S.SODHI, J:
1. Criminal Appeal No. 193 of 2006 challenges the judgment of the
Additional Sessions Judge dated 21.2.2006 in Sessions Case No. 105 of 2001,
arising out of FIR No. 287/99, Police Station, Mehrauli, whereby the learned
Judge has acquitted the respondents of all charges framed against them.
2. Brief facts of the case, as have been noted down in the judgment
under challenge by the Additional Sessions Judge, are as follows :
?That on 29.4.1999 at Qutub Colonnade at ?Once upon a time? restaurant also
called 'Tamarind Cafe' a Thursday party was going on. At Thursday party the
liquor was being served by the bartenders, namely, Jessica Lal and Shyan Munshi.
At about 2 a.m. Shyan Munshi was present at Tamarind Cafe situated at Qutub
Colonnade five six persons including one waiter were also present there, one
person aged 30-32 years came out from the back side of bar and asked for two
drinks of liquor. The waiter did not serve him the liquor as the party was
already over. Jessica Lal and Malini Ramani who were also present there also
tried to make him understand that party was over and that there was no liquor
available with them. On this that person took out a pistol and fired one shot
at the roof and fired another shot at Jessica Lal which hit her near her left
eye as a result of which she fell down. Jessica Lal was rushed to Ashlok
hospital from where she was shifted to Apollo Hospital. On 30.4.99 in the early
morning hours Jessica Lal was declared dead at Apollo Hospital.
Charge u/s 302/201/120B IPC and also u/s 27 Arms Act has been framed against
accused Sidhartha Vashisht @ Mannu Sharma. Charge u/s 120B/201 IPC has been
framed against accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok
Khanna. Charge u/s 212 IPC has been framed against the accused Harvinder
Chopra, Raja Chopra, Vikas Gill @ Ruby Gill and Yograj Singh. Charge u/s
201/212 IPC has been framed against accused Shyam Sunder Sharma. Charges were
framed and read over to the accused persons to which all the accused persons
pleaded not guilty and claimed trial.?
3. Before the learned Additional Sessions Judge, the Prosecution in
order to support their case, examined as many as 101 witnesses. Of which, PW-1
Deepak Bhojwani, PW-2 Shyan Munshi, PW-3, Shiv Dass Yadav, PW-4 Karan Rajput,
PW-5 Parikshat Sagar, PW-6, Malini Ramani, PW-7, Naveen Chopra, PW-9 Dr. R.K.
Sharma, PW-10 Dr. Jasvinder Singh, PW-15 Sumitabh Bhatnagar, PW-19 Andleep
Sehgal, PW-20, Beena Ramani, PW-21 ASI Madan Pal, PW-24, George Mailhot, PW-46
Madan Kumar, PW-63 Ram Avtar, PW-70 Rohit Bal, PW-79 Rajneesh Kumar Gupta, PW-99
Dr. Deepak Vats, PW-100 SI Sunil Kumar, CW-1 Dr. Rawel Singh and CW-2 HC Ram
Dayal are the witnesses whose testimonies have been discussed while the
remaining witnesses were formal in nature.
4. The learned Additional Sessions, upon appreciation of evidence
on record, came to the conclusion that the Prosecution has been able to prove
that accused Sidhartha Vashisht @ Manu Sharma was holding a licensed pistol of
.22 bore and that he had purchased 25 rounds of cartridges from Haryana Gun
House on 4.2.1999 and that the pistol used in the commission of the crime has
not been recovered from Sidhartha Vashisht @ Manu Sharma. The learned Judge held
that the Tata Safari car bearing registration No. CH-01-W-6535 was registered in
the name of M/s Piccadilly Agro Industries Private Limited of which Sidhartha
Vashisht @ Manu Sharma was one of the directors. The learned Judge also held
that Amardeep Singh Gill and Alok Khanna were working in Hindustan Coca Cola
Company at the relevant time and were allotted Tata Siera car each. He further
held that Tata Siera car bearing registration No. HR-26-H-4348 was allotted to
Amardeep Singh Gill. The learned Judge also held that Amardeep Singh Gill was
given mobile phone No. 9811100237 while Alok Khanna was given mobile phone No.
9811068169 by the Hindustan Coca Cola Company. The Court also held that
telephone No. 3782072 was installed at B.R. Mehta Lane which was the residence
of Mr. D.P. Yadav, father of the accused, Vikas Yadav, and that telephone Nos.
4765152-53 were installed at the Sugar Mill owned by Piccadilly Agro Industries
Private Limited of which Sidhartha Vashisht @ Manu Sharma, Shyam Sunder Sharma
and Harvinder Chopra were directors at the relevant time. The Court returned a
finding that Beena Ramani was the owner of the restaurant ?Once Upon a Time?
and she was running a cafe named 'Tamarind Court Cafe' at Qutub Colonnade. The
Court went on to return a finding that on 29.4.1999 i.e. the day of occurrence
a private party was held at the restaurant 'Tamarind Court Cafe' which was a
Thursday party held weekly and liquor was served. At that party, Jessica Lal
was wearing a blue denim short and half sleeve white shirt. The Court also held
that the accused, Sidhartha Vashisht @ Manu Sharma, along with co-accused
Amardeep Singh Gill, Alok Khanna and Vikas Yadav, was present at the said party
at Tamarind Court Cafe on the night of the occurrence when someone fired a shot
at Jessica Lal as a result of which she received injury on her head. She was
removed to Ashlok Hospital from where she was removed to Apollo Hospital and
declared 'brought dead' by the doctor at 4.37 a.m. The Court further returned
a finding that Jessica Lal was transferred from Apollo Hospital to All India
Institute of Medical Sciences where postmortem was conducted by Dr. R.K. Sharma
who opined that the cause of death was head injury caused by fire arm which was
sufficient to cause death in the ordinary course of nature. The Additional
Sessions Judge agreed with the Public Prosecutor that PW-2, Shyan Munshi, came
running to PW-20, Beena Ramani, and told her that someone had fired a shot at
Jessica Lal and Jessica Lal had received injuries in that firing. The learned
Judge also returned a finding that Beena Ramani tried to stop one person named,
Sidhartha Vashisht @ Manu Sharma, who was coming along with Shyan Munshi. She
also told him to give her the gun. The Court, relying upon the evidence of PW-1,
Deepak Bhojwani, returned a finding that Sidhartha Vashisht @ Manu Sharma was
seen at the party at Tamarind Court Cafe and that Manu Sharma had asked for
two pegs of whisky from PW-1 who also saw the other co-accused persons joining
Manu Sharma later on. This witness has identified Amardeep Singh Gill, Alok
Khanna and Vikas Yadav which, according to the Court, proves that accused
Sidhartha Vashisht @ Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas
Yadav were present at the Tamarind Court Cafe where the incidence took place.
5. The learned Additional Sessions Judge, however, did not agree
that Tata Safari car bearing registration No. CH-01-W-6535 was used by the
accused persons to come to Qutub Colonnade. The Court also held that mere use of
telephones by the accused persons to contact each other before and after the
incidence is of no consequence as the conversation was not placed on record. The
Court also dismissed the conversation recorded between Ashok Dutt and Ravinder
Sudan. The Court disagreed with the Public Prosecutor that there was any
evidence on record to show that Harvinder Chopra, Yog Raj Singh and Shyam Sunder
Sharma had, in any manner, given shelter to Manu Sharma after the incidence
which may amount to harbouring of a criminal. The Court further disagreed with
the Public Prosecutor that Sidhartha Vashisht @ Manu Sharma had absconded from
the jurisdiction of the Police immediately after the commission of the crime.
6. Agreeing with the arguments of counsel for the accused, the
Court held that PW-2, Shyan Munshi, PW-3 Shiv Dass Yadav and PW-4 Karan
Rajput were not eye witnesses and had not seen the occurrence. Sidhartha
Vashisht @ Manu Sharma had purchased 25 rounds of .22 bore against his licence
from PW-7, Naveen Chopra, and that those cartridges were marked 'KF' indicating
the manufacture at Kirki Factory. None of these cartridges were used in the
commission of crime. The Court held ? that the Police on 30.4.1999 had decided
to frame the accused Sidhartha Vashisht in this case; that PW-30, Delhi Home
Guard Sharwan Kumar, was not present on the spot on the night of the occurrence
on 29/30.4.1999; that PW-101 Inspector Surender Kumar had introduced the story
of broken pieces of glasses falsely; that there is no evidence on record to
show that accused Sidhartha Vashisht @ Manu Sharma, Amardeep Singh Gill, Alok
Khanna and Vikas Yadav had come in a black Tata Safari car to Qutub Colonnade
on the night of 29/30.4.1999; that the Prosecution had failed to connect the
mobile phone No. 9811096893 with the accused Sidhartha Vashisht @ Manu Sharma;
that PW-1, Deepak Bhojwani had been introduced as a false witness; that the
evidence of PW-6, Malini Ramani is of no help to the Prosecution as also the
evidence of PW-20 Beena Ramani; that PW-24 George Mailhot was not present at
the Tamarind Court Cafe at the time of the incident; that the Prosecution has
failed to prove the conversation between PW-57 Ashok Dutt and Ravinder Sudan @
Titu; that the Prosecution has failed to prove its case beyond reasonable doubt;
that no chance prints were lifted from the black Tata Safari car No. CH-01-W-
6535; that although the accused persons were present at the party on the fateful
night of the occurrence, their mere presence is of no consequence; that the
photographs of all the accused persons, namely, Sidhartha Vashisht @ Manu
Sharma, Amardeep Singh Gill, Ashok Khanna and Vikas Yadav were shown to the
witnesses before the accused were identified in Court; that there is no evidence
against Shyam Sunder Sharma regarding involvement in destruction of evidence or
harbouring of the accused persons; that no case is proved against Yog Raj Singh,
Harvinder Chopra, Raja Chopra and Vikas Gill.
7. In view of the aforesaid findings, the trial court came to the
conclusion that all the links in the chain of evidence produced by the
Prosecution are either missing or broken. The Court went on to hold that the
Prosecution had miserably failed to bring home the guilt of the accused and
thereby acquitted them of all charges.
8. Challenging the correctness of the judgment under appeal, Shri
Gopal Subramanium, learned Additional Solicitor General, argued that the
judgment under challenge is self-destructive, contradictory and omits to
appreciate the evidence on record as also a misread evidence. In support of his
contention, learned Additional Solicitor General pointed out that the Court
agrees with the Prosecution to the effect that Sidhartha Vashisht @ Manu Sharma
was holder of a licensed pistol of .22 bore; that Tata Safari car No.
CH-01-W-6535 was registered in the name of Piccadilly Agro Industries Pvt. Ltd.,
Chandigarh, of which accused Sidharth Vasihshth was one of the directors; that
Amardeep Singh Gill was allotted Tata Siera car bearing registration No. HR-
26-H-4348; that Amardeep Singh Gill was having mobile phone No. 9811100237,
Alok Khanna was having mobile phone No. 9811068169 given by Hindustan Coca Cola
Company and that telephone No.3782072 was installed at the residence of D.P.
Yadav, father of Vikas Yadav, and that telephone Nos. 4765152-53 were installed
at the Sugar Mill owned by Piccadilly Agro Industries Limited of which
Sidhartha Vashisht @ Manu Sharma and Harvinder Chopra were directors at the
relevant time; that Beena Ramani owned the restaurant ?Once Upon a Time? and she
was running a caf? named ?Tamarind Court Caf?? at Qutub Colonnade at the
relevant time and that on 29.4.1999 a private party was going on at the said
restaurant which was a regular Thursday party when liquor was served in the
restaurant; that the accused Sidhartha Vashisht @ Manu Sharma, along with the
co-accused Amardeep Singh Gill, Alok Khanna and Vikas Yadav, was present at the
said party at Tamarind Court Caf? on the night of the occurrence when someone
fired a shot at Jessica Lal as a result of which she received injuries on the
head. She was removed to Ashlok Hospital from where she was removed to Apollo
Hospital and declared ?brought dead?. The body was transferred to All India
Institute of Medical Sciences where postmortem was conducted by Dr. R.K. Sharma
who opined that the cause of death was head injury caused by fire arm and it was
sufficient to cause death in the ordinary course of nature; that PW-20, Beena
Ramani, deposed that PW-2 Shyan Munshi, came running to her and told her that
someone had fired a shot at Jessica Lal and she had received injuries in that
firing; that PW-20 Beena Ramani had stated that she stopped one person, namely,
Sidhartha Vashisht who was coming along with Shyan Munshi; that she told him to
give her the gun; that Sidhartha Vashisht @ Manu Sharma, Amardeep Singh Gill,
Alok Khanna and Vikas Yadav were seen at the spot of occurrence on the night of
29/30.4.1999. Learned Additional Solicitor General argued that the findings of
the trial court against the Prosecution in paragraphs 241, 250, 251, 254, 277,
278, 280, 285, 292 and 295 in relation to the occurrence are incorrect and
perverse. He relied upon the testimony of PW-1, Deepak Bhojwani, who states
that Jessica Lal and Shyan Munshi were serving liquor on that night at the bar
counter. 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. 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. The witness goes on to say 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 Cafe.
9. Learned Additional Solicitor General argued that the Prosecution
has been able to prove that Sidhartha Vashisht @ Manu Sharma, Amardeep Singh
Gill, Alok Khanna and Vikas Yadav were present at the spot of incidence on the
night of 29/30.4.1999, their identities having been fixed. There is evidence on
record to show that Manu Sharma had a fire arm on his person and used the same
to fire two shots, one in the air which went through the roof and the other that
struck Jessica Lal. He submitted that the Prosecution has been able to prove
that the findings of the trial court against the Prosecution are incorrect and
perverse without basis of the evidence adduced on record. He submitted that the
Prosecution has been able to show by positive evidence that Manu Sharma was the
owner of and in possession of a .22 bore Berretta pistol made in Italy; that
two empty cartridges cases of the .22 with ?C? mark were recovered from the
spot; that the mutilated lead recovered from the skull of the deceased was of
.22 and could have been fired from a standard .22 caliber firearm; that from
the Tata Safari live cartridges of .22 with mark ?C? was recovered indicating
that the fired cartridge and live one were of the similar make; that the two .22
cartridge cases of ?C? mark were lying near each other on the counter discarding
the theory of 'that they were fired by two different people'. He submitted that
the Prosecution has been able to show that the Expert opinion of Roop Singh is
not admissible and cannot be used as evidence. It has also been able to show
that the opinion of Prem Sagar Minocha given in Ex. PW-95/C-1 is
inconclusive. His testimony in Court that destroys his opinion, Ex. PW-95/C-1,
is baseless and cannot be relied upon. The Prosecution has been able to show
that Manu Sharma came to Qutub Colonnade in a black Tata Safari car No.CH-01-W-
6535 which he abandoned while making a hasty escape after the shooting. In
other words, the Prosecution has been able to bring home the guilt of the
accused beyond shadow of doubt.
10. Learned Additional Solicitor General submitted that the basis
of the judgment of acquittal is clearly erroneous, perverse and deserves to be
set aside for reasons that the trial court wrongly proceeded on the basis that
it was the story of the Prosecution that two shots were fired by two persons
from two different pistols which was never the case of the Prosecution.
Moreover, in the light of ocular testimony of PW-2, Beena Ramani, the ballistic
expert, whose testimony is riddled with contradictions, cannot be used to
override the ocular evidence. The Court erred in holding that all the three
eye witnesses turned hostile and overlooked the fact that PW-1, PW-2, PW-6,
PW-20, PW-24 and PW-70 were witnesses of different aspects of the incidence and
that the evidence has to be read as a whole. The trial court grossly erred in
the manner of appreciation of testimonies of the said witnesses by reading into
the said testimony what was not there. The key witnesses? evidence which did
not exist, for instance, while dealing with PW-20, the trial court arrived at a
factually wrong finding, not borne out from the evidence on record, to the
effect that she thought that he had fired a shot at Jessica Lal and that she was
not an eye witness. The extent of perversity in the judgment is also reflected
by a fallacious presumption drawn about the manner of investigation in
paragraph 256 of the judgment. The findings are without any basis. Learned
Additional Solicitor General submitted that from the testimony of the PW-101,
Inspector Surender Sharma, it was revealed that when the said witness was
informed by PW-30 about the Tata Safari having been taken away by force, he
communicated the said information to his superiors in order to find out the
ownership details about the Tata Safari car bearing Chandigarh registration
number. In reply, he was informed that the same was registered in the name of
Piccadilly Agro Industries Pvt. Ltd. of which Manu Sharma was a director and the
same was being used by him. The Court has erred in reading the said piece of
evidence and thereby coming to a perverse finding. The trial court wrongly
placed reliance on Ex. PW-24/A which is the guest list and disbelieved the
testimony of the Prosecution witnesses PW-1, PW-24 and PW-30 as being planted
witnesses. This guest list which was prepared by PW-24 was pressed into
service even though the trial court returned a finding that PW-24 was not
present at the scene of occurrence. In paragraph 278 of the judgment, the trial
court justifies refusal of Test Identification Parade on a wrong premises that
PW-6 had stated that photograph of Manu Sharma were shown to her parents.
Similarly, at paragraph 279, the trial court wrongly finds that PW-20 had stated
that she heard another shot being fired by someone in the restaurant. Also in
paragraph 254 the trial court, in order to arrive at a finding that PW-2, Shyan
Munshi,did not know Hindi, wrongly finds that PW-23, Rouble Dunglay, has deposed
that Shyan Munshi did not know Hindi.
11. Learned Additional Solicitor General further went on to pick
holes in the judgment by submitting that the trial court arrived at a finding
that Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas Yadav were present
at the scene of occurrence with the aid of PW-1, Deepak Bhojwani, whom he
discards, as having been a planted witness. Nonetheless, having returned such a
finding, the burden of proof shifted to the accused persons who flatly denied
their presence at the scene of occurrence without even setting up a plea of
alibi. He went on to submit that this is a case where a host of Prosecution
witnesses turned hostile at the instance of the defence. It has got introduced
false evidence into the case from the witneses who have turned hostile and that
the defence has even gone on to tamper with judicial record. The Court should
have seen through the game of the defence rather than, with single stroke, paint
the Prosecution as villain of having set up a false case against Manu Sharma.
12. Arguing on behalf of the accused, Sidhartha Vashisht @ Manu
Sharma, Shri Ram Jethmalani, learned Senior Advocate, submitted that Manu Sharma
was not present at the Qutub Colonade on 29/30.4.1999. He submitted that there
is nothing to prove the presence of Manu Sharma at the spot of occurrence and
that the witnesses PW-1, PW-5, PW-6 and PW-19 do not, in any manner, show that
they knew the accused and their testimonies cannot be used by the Prosecution to
take advantage to fix the presence of the accused at the spot of occurrence
specially when PW-1 already stands stamped as a 'planted witness'. He submitted
that PW-1, Deepak Bhojwani?s statement is filled with improvements and
contradictions besides the fact that his statement was recorded at a very late
stage, the same does not inspire confidence and cannot be relied upon. PW-6,
Malini Ramani, has been discussed by the trial court in paragraphs 278 and 292
of the judgment. The findings are justified from the material on record. In
addition, he submitted that this witness fainted on hearing that Jessica Lal had
been hit and cannot, therefore, be a witness of the occurrence. He also
submitted that this witness along with her parents was under extreme Police
pressure. She had been interrogated intensely for five days, the photographs
were shown to her, the Police had made her to sign statements and put
psychological pressure on her, as such was a pliable witness for the
Prosecution but not a reliable witness for the Court. A false excise case was
registered to keep the pressure alive during deposition which was subsequently
got decided with a paltry fine. Counsel submitted that impermissible leading
questions were put to this witness as regards identification which cannot be
used as evidence. In any event, this witness was too drunk since she had been
drinking from the start upto the finish of the party. She can hardly be expected
to remember anything of importance. There is no evidence to show the presence
of Manu Sharma at Qutub Colonnade in the aforesaid party on the night of
29/30.4.1999. From the testimony of PW-2, Shyan Munshi, PW-3, Shiv Dass Yadav
and PW-4, Karan Rajput, it is clear that nobody saw Manu Sharma at the place of
incidence nor did anybody see Manu Sharma using fire arm to fire two shots let
alone to fire the shot that killed Jessica Lal. None of these witnesses were
eye witnesses to the occurrence but are witnesses of prior and subsequent
events. PW-2, Shyan Munshi, clearly states that two different people fired from
two different weapons. His statement made to the police which is stated to be
the FIR was never dictated by him nor read over to him as it was in Hindi, a
language not known to him. Counsel submitted that the statement of the witness
sought to be used by the Prosecution to establish the guilt of the accused is
hit by Section 162 Cr.P.C. since the witnesses were made to sign their
statements. The evidentiary value, therefore, has been impaired considerably
and cannot be used as pure evidence. Counsel submitted that an atmosphere of
prejudicial hate had been created to implicate Manu Sharma while the actual
culprits successfully managed to divert the investigation to a wrong direction
and escaped. The theory of two persons having fired two bullets was deliberately
abandoned by the Police itself. He submitted that the charge, as framed ,is
under Section 302 IPC, but when there is a possibility of two bullets being
fired by two different persons, there is no certainty that the bullet that
killed Jessica Lal was fired by Manu Sharma. He could not, therefore, be
convicted under Section 302 IPC. He contended that Beena Ramani was not present
in the party. This is evident from the site plan where Beena Ramani has not been
shown. Relying upon PW-4, PW-6 and PW-47, counsel submitted that these
Prosecution witnesses are not hostile. From their statements it is evident that
Beena Ramani did not see the shooting. Counsel further went on to submit that
the Prosecution has failed to prove that the fatal bullet was in possession of
the accused, Manu Sharma, at 2.00 a.m. on 29/30.4.1999. The Prosecution has not
been able to get rid of the fact that there were two persons who fired two
bullets. Even otherwise, there is no proof that Manu Sharma fired the fatal
bullet. The FIR based on the statement of Shyan Munshi cannot be treated as an
FIR. His statement was got signed by the Police and is hit by Section 162(2)
Cr.P.C. He submitted that the Police has manufactured evidence after
investigation upto the date of trial. PW-1 had stated that he had told the
Police that Manu Sharma was the killer but his statement was recorded on the
14.5.1999, the long delay is fatal. This witness has made 21 improvements. He
is known to the deceased and has every reason to make a false statement. In
any event, he was too drunk on the date of the occurrence to be a meaningful
witness. There has been a dishonest attempt by the Prosecution to improve the
case against Manu Sharma by introduction of PW-1 whose statement lacks
independent corroboration. He fully supports the statement of PW-2, Shyan
Munshi who, counsel submitted, cannot be relied upon by the Prosecution but the
accused has every right to rely upon the same since it was not put to the
accused in his statement under Section 313 Cr.P.C. that the motive attributed is
inadequate and is of much higher intent and intensity. Shyan Munshi clearly
states that two shots were fired by two different persons and there is no reason
to disbelieve this witness who finds support from the ballistic evidence, Ex.
PW-89/DA. Counsel also went on to submit that the Prosecution has been
dishonest and unfair in trying to withhold evidence of the ballistic expert,
Roop Singh, which had to be brought on record by the accused who made an
application to that effect in the Court. Even the ballistic expert produced by
the Prosecution has clearly stated that the two empties examined appear to have
been fired from two different fire arms. From the opinion of the expert and the
statement of Shyan Munshi, it is not possible for this Court to go against the
finding that two persons had fired two shots. According to the counsel, from
the testimony of PW-23, Rouble Dunglay, it is clear that the whole story of non
serving liquor being the motive of the crime is a concoction. Jessica Lal died
not because she did not give what she did not have, but did not give what she
had which had hurt the manhood of the assailant. The Prosecution must
necessarily succeed as of late and cannot be allowed to create a new one.
Counsel categorically stated that there is nothing on record to show that Manu
Sharma fired a shot, there is evidence which discloses that two persons fired
shot and one of them had fired a shot in the air. Nobody saw Manu Sharma firing
the fatal shot. In any event, Manu Sharma was not there nor did he need a
drink. Shyan Munshi is a reliable witness who states that Manu Sharma was not
the one who fired a shot in the open.
13. Attacking PW-24, George Mailhot, counsel submitted that his
statement is hit by Section 163 Cr.P.C. and Section 24 of the Indian Evidence
Act. This witness saw a Sardar standing above the desert spot who was
maintaining calm. It was this Sardar, according to counsel, who fired the fatal
shot. He contended that the examination-in-chief of this witness was concluded
on 18.10.2001 at which time the Prosecution ensured that in the excise case an
application was moved for preponement. His supporting the Prosecution?s case
was the result of a package deal prepared between the Police and the Ramani
family. In the excise case, he was allowed to plead guilty and let off with a
small fine. This witness was under constant threat which is violative of
Section 163 Cr.P.C. His testimony is seriously impaired. Analysing his
statement, counsel submitted that taking away the omissions, the only part that
is left is that Beena Ramani was following a boy. The improvements in the
testimony have been made at the instance of the Prosecution. From the
testimonies of PW-46, PW-47 and PW-86, it is evident that PW-24, George
Mailhot, was not at the Qutub Colonnade at the time of the occurrence. The
finding of the trial court that George Mailhot was not a witness, cannot be
faulted with.
14. Further attacking PW-6 Malini Ramani, counsel submitted that
her evidence, even if taken as it is, only establishes that Manu Sharma was at
the spot. Her statement was recorded after undue delay. The party was over by
midnight and at 1.45 a.m. she was still drinking and looking for more which
implies that she was drunk and further she could not even identify any of the
40 persons who were demanding liquor. She had not even seen Shyan Munshi but
only heard shots. This witness was too drunk or was busy doing whatever she was.
Counsel went on to submit that the non-examination of Mehtani should be taken
against the Prosecution as he was a material witness. The Qutub Colonnade was
too crowded, identification in such a crowd is impossible that too by a person
who hasfas drunk more than her share for that evening. He submitted that this
witness has stated that her statement was recorded on three occasions and she
was made to sign the statements which is hit by Section 163 Cr.P.C. The
testimony of this witness is of no use to the Prosecution.
15. Mr. Jethmalani also attacked PW-20, Beena Ramani. He submitted
that this witness was not present at the Tamarind Court Cafe and did not see
anything . Even otherwise, he submitted that if the substantive evidence given
in court is weak, it is useless. Identification in Court of the accused for the
first time is useless unless the capacity to identify and actual identification
of the culprit are corroborated by a properly held Test Identification Parade.
A Test Identification Parade which is rendered difficult is useless by reason of
no misconduct of the accused but of the Agency and takes away the safeguards
known to law and renders the substantive evidence useless. Even the Test
Identification Parade is not enough, there must be something more to connect the
accused with the crime. If the accused or the suspect has been physically shown
either before the Court hearing or before the Test Identification Parade, the
evidence of identification becomes useless. He submitted that the
identification in Court is of no consequence, as has been held by the Supreme
Court in Hari Nath and Anr. vs. State of U.P., 1988 (1) SCC 14, Budhsen and
Anr. vs. State of U.P, 1970 (2) SCC 128. Even according to the Prosecution,
this witness is not an eye witness, as has been stated by PW-100 and PW-101.
According to the counsel, Beena Ramani does not prove that Manu Sharma shot the
fatal shot at the deceased. Her statement regarding stopping a person is a
concoction not because of malice or untruth but due to a compromise with truth.
The truth of the incidence is given in the statements of PW-46 and PW-47 who say
that Beena Ramani was with them till she took Jessica Lal to the hospital.
16. Counsel also submitted that there is a contradiction in the
Prosecution's case inasmuch as in the FIR it is mentioned that Malini Ramani was
present at the restaurant; that George Mailhot says that Shyan Munshi was with
some boy but did not say that the man shot Jessica Lal; Shyan Munshi in the FIR
says that he saw Beena Ramani, therefore, the story cooked up by Beena that she
accosted the man who had shot Jessica Lal is a concoction. The entire family had
been put under great pressure by the Police who threatened to implicate them in
the present case for removing evidence and also in a false excise case in which
they were ultimately got let off lightly. No importance can be attached to the
statement of Beena Ramani. Counsel went on to submit that on 31.5.1999, a
photograph of Manu Sharma was taken by the Police from the Farmhouse of his
father. It was here that his pistol and ammunitions were also taken into
possession but no recovery memo was made. This was deliberately done to
implicate Manu Sharma in this case. PW-101 admits of having taken up
photographs of Manu Sharma from the Farmhouse. He also admits that no recovery
memo was made. This clearly shows that the investigation has deliberately
cooked up a false case of Manu Sharma having used his licensed gun or Manu
Sharma having used his gun to kill Jessica Lal and is now not producing that
licensed weapon.
17. Mr. Ram Jethmalani in support of his contentions referred to
the following judgments :
State of Rajasthan vs. Teg Bahadur and Others, (2004) 13 SCC 300; State vs.
Siddarth Vashisth@Manu Sharma and Others, 2001 III AD (DELHI) 829; Sohan Lal
alias Sohan Singh and Others vs. State of Punjab, (2003) 11 SCC 534; Sat Paul
vs. Delhi Administration, AIR 1976 SC 294; M/s. T.D. Kumar and Bros. Private
Ltd. vs. Iron and Steel Controller and Others, AIR 1961 Calcutta 258 (V 48 C
59); R vs . R Turnbull (63 Criminal Appeal Report 132); Budhsen and
Ors. vs. State vs. UP, 1970 (2) SCC 128; Duraipandi Tewar and Ors. vs. State of
Tamil Nadu, 1973 (3) SCC 680; Hari Nath and Anr. vs. State of UP, 1988 (1) SCC
14; Bollavaran P N Reddy and Ors. vs. State of A P, 1991 (3) SCC 434; Laxmipat
Choraria vs. State of Maharashtra, AIR 1968 SC 938; Ravindra @ Ravi Bansi vs.
State of Maharashtra, AIR 1998 SC 3031; The King vs. Thomas Dwyer and Allen
Ferguson, (1925) 2 K B 799; Sharad Birdi Chand Sharda vs. State of Maharashtra,
AIR 1984 SC 1622; Ramgopal vs. State, AIR 1972 SC 656; State of H P vs. Om
Parkash, AIR 1972 SC 975; Mukhtar Ahmed Ansari vs. State, AIR 2005 SC 2804; Raja
Ram vs. State of Rajasthan, JT 2000 (7) SC 549; Emperor vs. Ardali Mian, AIR
1933 Patna 496; Jagdeo Singh vs. Emperor, 24 Cr L J 69; Sukhram vs. State of
M.P., 1989 C C Cases 135 (SC); Zahira Sheikh vs. State of Gujarat, 2004 (2) SCC
158; Satyajeet Banerjee vs. State of West Bengal, 2005 (1) SCC 115; Tokh Ram vs.
State, 1982 Cr L J; P Varadrajulu Naidu vs. King Emperor, ILR 42 Mad 885;
Kessowji Issur Great Indian Peninsula, 34 Indian Appeals 115 = ILR Vol.XXXI PC
381; Arjan Singh vs. Kartar Singh, AIR 1951 SC 193; Empress of India and Anr.,
ILR 5 ALL.218; Abinash Chandra Bose vs. Bimal Krishna Sen and Anr, AIR 1963 SC
316; Ukha Kohle vs. State of Maharashtra, AIR 1963 SC 1531; State of Gujarat vs.
Mohanlal, AIR 1987 SC 1321; Bir Singh and Ors. vs. State of UP, AIR 1978 SC 59;
Rajeshwar Prasad vs. State of W B, AIR 1965 SC 1887; M P Lohia vs. State of West
Bengal, JT 2005 (2) SC 105; The King vs. Parke, (1903) K B 432; Ramchander vs.
State of Haryana, AIR 1981 SC 1036; Emperor vs. Ram Singh, AIR 1948 Lah. 24; Rao
Harnarain vs. Gumani Ram, AIR 1958 Punjab 273; Smt. Padmavati vs. R K Karanjia,
AIR 1963 SC MP 61; Sebastian vs. Karunakaran, AIR 1967 Ker. 177; Banu Singh vs.
Emperor, X CWN 962; Ramanathan vs. State of Tamil Nadu, AIR 1978 SC 1204; State
of Delhi vs. Sanjay Gandhi, AIR 1978 SC 961; M.P. Narayana Menon, 1925 MADRAS
106; Mohinder Singh vs. State, AIR 1963 SC 415; Zahiruddin vs. Emperor, AIR 1947
PC 75; R vs. Preston, (1993) 4 ALL E R 838; Practice Note, (1982) 1 ALL E R 734;
Jagjit Singh alias Jagga Vs. State of Punjab, 2005(3)SCC 689; Maruti Rama Naik
Vs. State of Maharashtra, 2003(10) SCC 670; Hallu and others Vs. State of Madhya
Pradesh, AIR 1974 SC 1936; Duraipandi Thevar and Others Vs. State of Tamil Nadu,
1973(3) SCC 680; Somappa Vamanappa madar Shankarappa Ravanappa Kaddi Vs. The
State of Mysore, AIR 1979 SC 1831; Ganesh Bhavan Patel and another Vs. State of
Maharashtra, AIR 1979 SC 135; Tapinder Singh Vs. State of Punjab and another,
AIR 1970 SC 1566; Soma Bhai Vs. State of Gujarat, AIR 1975 SC 1453; Kanhai
Mishra alia Kanhaiya Misar Vs. State of Bihar, 2001(3) SCC 451; Willie (William)
Slaney Vs. State of Madhya Pradesh, AIR 1956 SC 116; State of Punjab Vs. Swaran
Singh, 2005 (6) SCC 101; Basavaraj R.Patil and others Vs. State of Karnataka and
others, AIR 2000 SC 3214; Dal Singh Vs. King-Emperor, AIR 1917 PC 25; Habeeb
Mohammad Vs. State of Hyderabad, AIR 1954 SC 51; State of Kerala vs. Ammini and
others, AIR 1988 Ker. 1; Sidharth and others vs. State of Bihar, 2005 (12) SCC
545; Damodar Vs. State of Rajasthan, 2004 (12) SCC 336 and Budhsen and another
Vs. State of UP, 1970 (2) SCC 128.
The propositions of law are well established and are not in dispute.
18. Factually, Mr. Jethmalani would have the court believe that
Sidhartha Vashishta @ Manu Sharma was not present, Beena Ramani was not present,
George Mailhot was not present, Deepak Bhagwant was not present and the Tata
Safari was planted. He would also have us believe that two weapons were used
which he supports with the aid of experts and Shyan Munshi.
19. Mr. Jethmalani having concluded his argument on behalf of Manu
Sharma, left the remaining arguments to be concluded by Pt. R.K. Naseem, learned
Advocate who addressed arguments on the importance of Tata Safari at Qutub
Colonnade and thereafter its recovery from Noida. Counsel stressed that the
vehicle was not present at the Qutub Colonnade in the first instance and the
recovery of this vehicle from Noida was a 'plant'. He contended that the
ownership is not in dispute. He also did not dispute that Sidhartha Vashishta @
Manu Sharma is a director of the Company, but went on to contend that the
vehicle in question was allotted to Harvinder Chopra which has been amply proved
by the statement of PW-25, Manoj Kumar, as also PW-26, Balbir Singh. He also
contended that the vehicle was not being used by Sidhartha Vashisht @ Manu
Sharma which is evident from the deposition of PW-44, Shankar Mukhia, and PW-98,
Babu Lal. In view of the above, counsel contended that there is no evidence on
record to show that Sidhartha Vashisht @ Manu Sharma was either using the
vehicle or was in possession thereof on the night of the occurrence.
20. Advancing his argument further, counsel submitted that the
presence of Tata Safari at the Qutub Colonnade has not been proved. PW-83, Head
Constable Devi Singh of the PCR reached the spot at 2.17 a.m. and his statement
in court is contrary to the statement made to Police and, therefore, he is
not a trustworthy witness. PW-78, Shri Sarad Kumar Bishoi does not talk about
the Tata Safari in his statement to the police but has improved his statement
in court. He too is not reliable and, in fact, a plant as he was supposed to be
performing his assigned duty rather than be present at the Qutub Colonnade.
21. PW-100, SI Sunil Kumar, does not talk about Tata Safari in
exhibit PW-2/A and, therefore, cannot be of any assistance to the prosecution.
PW-30, Home Guard Constable Sarvan Kumar's testimony does not find
corroboration from S.I. Sarad Kumar nor from PW-86, Jagannath Jha as also finds
no support from PW-47, Jatender Raj, Manager. In other words, there is nothing
on record to show with certainty that the Tata Safari was at the Qutub Colonnade
on the night of 29/30.4.1999. He supported the findings of the trial court in
paragraphs 257, 258 and 259.
22. Attacking the recovery, counsel submitted that there is
evidence on record to show that the Tata Safari was recovered from Karnal. This
fact having come on record, the assertion by the Prosecution that Tata Safari
was recovered from Noida is a manipulation to further the Prosecution's case by
planting evidence. The recoveries effected from Tata Safari do not further the
case of the Prosecution regarding the broken pieces of glasses. Counsel also
severely criticized PW-30 Constable Sarvan Kumar, as being a planted witness who
has improved his statement considerably in court. Counsel also contended that
the phone calls alleged to have been made by some of the accused persons amongst
themselves is no indication that they were involved in any crime. The
Prosecution has not placed on record any conversation to suggest such an
involvement. Summing up his arguments, counsel strongly relied upon the
judgment of the trial court and argued that the Prosecution has miserably failed
to bring home the guilt of the accused.
23. Learned counsel arguing on behalf of Shyam Sunder Sharma
submitted that although this accused has been charged for an offence under
Section 212 IPC, namely, harbouring Ravinder Krishan Sudan, but there is no
incriminating evidence to suggest that Shyam Sunder Sharma ever harboured
Ravinder Krishan Sudan. Similarly, Harvinder Chopra has been charged for
arranging stay of Sidhartha Vashisht @ Manu Sharma at the house of PW-52,
Chander Prakash Chopra, but there is no evidence whatsoever to support such a
charge.
24. Counsel arguing for Yog Raj Singh submitted that the
Prosecution in order to prove their case against this accused pressed into
service PW-53, Abhijit Ghosal, PW-64 Ravinder Singh Gill and PW-65, Kulvinder
Singh but have failed to bring home any evidence in support of the allegation
that Yog Raj Singh arranged for Sidhartha Vashisht to be taken to Khera in
Muktsar, Punjab. Similar arguments were made in the case of Vikas Gill who was
alleged to have taken Sidhartha Vashisht to Panchkula from Delhi. There is no
evidence to this effect on record.
25. Learned counsel arguing on behalf of Amardeep Singh Gill
stated that the allegation against him is that he drove the Tata Siera car to
Qutub Colonnade after the incident to enable Vikas Yadav to remove the same and,
therefore, was alleged to have committed an offence under Section 201/120-B IPC
is baseless. Counsel argued that the only evidence against Vikas Yadav is him
being identified by PW-30, Sarvan Kumar who is not a reliable witness. His
presence at Qutub Colonnade is doubtful. Besides, Tata Safari was not reported
to be parked at Qutub Colonnade in the first instance. Sarvan Kumar has been a
planted witness to prove the events which have got no bearing with the actual
crime. In any event, the car which Amardeep Singh Gill is stated to have driven
was a Tata Siera belonging to Alok Khanna being car No. MP-04-2634. This is in
spite of the fact that Amardeep Singh Gill had his own Tata Siera. Counsel also
went on to stress that presuming the Tata Safari was removed by Vikas Yadav with
the aid of Amardeep Singh Gill, no offence has been committed since the
Prosecution has failed to prove any destruction of evidence by Amardeep Singh
Gill or Vikas Yadav.
26. Arguing on behalf of Vikas Yadav, counsel pointed out that even
if for the sake of arguments, and without conceding, Vikas Yadav had removed
the Tata Safari car from Qutub Colonnade after the incident, the same did not
amount to an offence under Section 201 IPC since the accused did not cause any
evidence of commission of an offence to disappear nor is it proved that there
was any intention to screen the offender from legal punishment. The Tata Safari
was not used in the commission of the offence and its removal could not be said
to be causing any evidence of commission of an offence to disappear with
intention of screening the offender. There is no evidence on record to show that
the Tata Safari removed by Vikas Yadav was got repaired. Merely because Vikas
Yadav obtained pre-arrest bail or stayed in hotel under an assumed name or that
his bail was canceled, has got no relevance with the offence under Section 201
IPC for which he is charged. Counsel also contended that the identification of
Vikas Yadav through photographs when he was in fact present, is of no
consequence. In any event, there is no evidence to show that Vikas Yadav stayed
in a hotel under an assumed name. PW-54, Varun Shah, PW-55 Mukesh Saini, PW-72
Lal Singh and PW-77 Gajender Singh, who were examined in this respect, do not
support the Prosecution's case. Counsel relied upon AIR 2004 SC 4965, AIR 1956
Madras 536 and AIR 1956 SC 527, but pressed on the point that photographic
identification was a weak piece of evidence specially when the accused is
present, and Test Identification Parade could be held. Counsel, therefore,
concluded that the material on record does not prove the charge under Section
201 IPC against Vikas Yadav.
27. Raj Chopra is charged for driving the car to enable Sidhartha
Vashisht @ Manu Sharma to go to Chandigarh. Counsel also submitted that there is
ample evidence on record to show that the car so used was already under transfer
prior to the occurrence. Raj Chopra had no hand in the use of such a car. There
is no evidence on record to show the involvement of Raj Chopra nor any evidence
to prove the charge under Section 201 IPC against this accused.
28. We have heard counsel for the parties and, with their
assistance, have gone through the voluminous record. The case set up by the
Prosecution is that on 29.4.1999, a party was organized at the Tamarind Court
inside Qutub Colonade. This party was a private one where people were invited
and the invitees could further invite guests. Liquor was being served. Jessica
Lal and Shyan Munshi were in-charge of the bar. At this party, respondents 1 to
4 came after the party was over and began looking for liquor. They were refused
liquor since the bar was closed. Not being satisfied with this explanation,
they went around in pursuit thereof and ultimately came back to the restaurant
where they were once again refused liquor, here Sidhartha Vashisht @ Manu Sharma
took out a pistol and fired the first shot into the ceiling and the next shot at
Jessica Lal. The shot hit Jessica Lal in the head and proved fatal. Manu Sharma
was, more or less, simultaneously stopped by Beena Ramani and questioned as to
why he had shot Jessica Lal? She also demanded he give her the gun. She
followed the assailant in an attempt to corner him but then told her husband to
identify the vehicle in which he may make his escape. To prove this part of
the case, the Prosecution pressed into service PW-1, Deepak Bhojwani, PW-2,
Shyan Munshi, PW-6, Malini Ramani, PW-19, Andleep Sehgal, PW-20, Beena Ramani,
PW-24, George Mailhot, PW-23, Rouble Dunglay, PW-70 Rohit Bal, PW-9, Dr. R.K.
Sharma, PW-46 Madan Lal and PW-47, Jatinder Raj.
29. PW-1, Deepak Bhojwani has deposed that on 29.4.1999 he had
gone to attend the aforesaid party at about 11.00 p.m. at the open area of Qutub
Colonnade known as ?Tamarind Court?, the closed area called as ?Tamarind Cafe?.
He had purchased four coupons of Rs.100/- each on that day. Jessica Lal and
Shyan Munshi were serving liquor on that night at the bar counter. He knew
Jessica Lal for the past six years whereas Shyan Munshi was introduced by
Jessica Lal to this witness about a week before. The bar counter was located in
Tamarind Cafe open area between the two doors of Tamarind Court. He has deposed
that there is a permanent bar counter in Tamarind Cafe but being summer, nobody
was using the bar counter giving preference to the bar counter located outside.
A large crowd was in attendance at the aforesaid party. At around 1 O'clock
midnight, the witness went to the bar counter to have his third drink when
Jessica Lal told him to encash all his coupons since the liquor was running out.
The witness then handed over another coupon and purchased two pegs of whisky.
While he was holding two glasses of whisky, he came in contact with a person
having fair complexion who was smiling. The witness reciprocated and both
introduced each other. This fair complexion person gave his name as 'Manu
Sharma' and inquired as to how the witness had two glasses of whisky when Manu
Sharma was unable to get even one. Manu Sharma requested the witness to arrange
liquor for him. But this witness showed his inability as the bar had closed.
Just about that time, a tall Sikh gentleman whispered something to Manu Sharma
and took him away towards Tamarind Cafe. The witness says he can identify Manu
Sharma and the tall Sikh gentleman referred to above. In court, the witness
correctly identified both Manu Sharma and the tall Sikh gentleman as 'Tony
Gill'. The witness also identifies the other person accompanying Tony Gill. In
Court he pointed towards Alok Khanna. The witness goes on to depose that Manu
Sharma, Tony Gill and Alok Khanna and others had gone towards Tamarind Cafe even
though it was closed and the waiters were in the process of removing the empty
bottles. After about 10-20 minutes i.e. around 1.45 a.m. he heard noise
emerging from Tamarind Cafe to the effect that Jessica Lal had been shot. At
that time, the witness was present at Tamarind Court and was talking to his
friend, Arash Aggarwal. On hearing that Jessica Lal had been shot, he rushed
towards Tamarind Cafe but could not go inside, yet peeped and saw Jessica lying
on the floor. The witness says that about that time 70-80 persons gathered
around the gate of Tamarind Cafe. Jessica Lal was carried to Ashlok Hospital,
Safdarjang Enclave and this witness followed in his car. He remained there for
about and-and-half hours. Jessica Lal was then shifted to Apollo Hospital.
This witness went along to Apollo Hospital. At the hospital, Jessica Lal was
declared 'brought dead'. The witness says about 10 photographs were shown to
him to identify the fair complexion person and the Sardar. From amongst them he
identified the photographs of Manu Sharma and Tony Gill. The photograph of
Manu Sharma was marked 'A' and that of Tony Gill was marked 'B'. The
Investigating Officer put his signature behind the photographs. These
photographs were then identified by the witness in court as Ex. PW-1/A and PW-
1/B.
30. In cross-examination, the witness's credibility was sought to
be questioned by contradicting him with his previous statements. In other
words, the exact wording used in his 161 Cr.P.C. statement were put to him which
differ from the statement made in Court but the overall impact of the statement
was not such as could show the witness in poor light. The criticism of the
trial court to the deposition of this witness appears to be self-contradictory.
The learned Judge relies upon PW-1, Deepak Bhojwani, to establish the presence
of accused 1 to 4 at the spot of occurrence on the night of 29/30.4.1999, yet
goes on to agree with the counsel for the accused that PW-1, Deepak Bhojwani,
has been introduced as a false witness in this case. The reasoning is that he
does not find mention in the list of invitees prepared by PW-2, George Mailhot
although Deepak Bhojwani is stated to have been very friendly with Jessica Lal.
Another aspect is that PW-73, Sabrina Lal, did not mention that PW-1, Deepak
Bhojwani, was present at Ashlok Hospital. Further that the statement of Deepak
Bhojwani was recorded on 14.5.1999 and that Deepak Bhojwani is an interested
witness. With very great respect to the learned Judge, we may point out that
this manner of testing the credibility of the witness is hardly a rule of
appreciation of evidence. It is not necessary that every witness must see the
other and only then can they be relied upon. Each witness deposes to what he
saw or what he did. Merely because out of 100 people present, some witness does
not see the other witness is no ground to discard his evidence. Even if his
name did not figure in the list of invitees is of no consequence since the list
was not exhaustive. Deepak Bhojwani has deposed to the factual aspect to which
he was a witness. This part has been sufficiently corroborated in its own way
by other witnesses, namely, the presence of accused 1 to 4 at the place of
occurrence. The trial court itself relies upon this witness to show the
presence of the accused persons and yet goes on to hold him as bad witness.
Obviously, this reflects total lack of application of mind and suggests a hasty
approach towards securing a particular end, namely, the acquittals. This
witness states that Jessica Lal and Shyan Munshi were serving liquor on that
night at the bar counter which stands corroborated by other witnesses. He met
the fair complexion man who exchanged niceties with him and introduced himself
as Manu Sharma. The presence of Manu Sharma is corroborated by PW-20, Beena
Ramani, PW-6, Malini Ramani and PW-24, George Mailhot. There is nothing to
suggest that this witness had any motive to falsely implicate any of the accused
persons. The witness was wrongly discarded by the trial court. Further, the
trial court, if it actually entertained the issue of Bhojwani being a planted
witness could not have stopped at this. The consequences of false implantation
must necessarily have followed such a finding. In fact, we find from the
evidence of Bhojwani that he did not claim himself to be an eye witness of
firing which he could have claimed if he was to depose falsely at the instance
of the Police.
31. PW-2, Shyan Munshi, is the maker of the FIR. His testimony
has been attacked as being hit by Section 162 Cr.P.C. on the ground that his
statement to the Police was signed, it was used to cross-examine the witness by
the Prosecution itself and, therefore, his evidence cannot be relied upon. It
was the submission of Mr. Jethmalani that really the FIR was the phone call from
Rohit Bal or PCR message to the concerned Police Station which set the criminal
process into motion.
32. We have gone through the testimony of this witness. He has
admitted his presence at the Tamarind Cafe at the time of the incident. He has
also admitted that Jessica Lal was shot at by someone on her refusing to oblige
him with a drink. To this extent, there is no doubt that he has supported the
Prosecution's version. He has, however, deviated from his earlier version
before the Police given by him in the form of his first information statement,
Ex. PW-2/A inasmuch as at that time he had claimed that there was one person
only who had demanded whisky from Jessica Lal and on her refusal to give him
whisky he had first fired towards the ceiling and then a second shot at her
while now in Court he has taken a somersault and come out with a version that
there were two gentlemen at the bar counter, one of whom was wearing a white T-
shirt, which, as per the Prosecution case, Sidhartha Vashishta @ Manu Sharma was
wearing, who demanded whisky from Jessica Lal and when Jessica Lal refused to
give him whisky, he fired a shot towards the ceiling and at that time another
gentleman fired at Jessica Lal which injured her. The witness also claimed in
court that Sidhartha Vashisht @ Manu Sharma was not the person who either fired
towards the ceiling or at Jessica Lal. Because of this changed version, he was
cross-examined by the Special Public Prosecutor. In his cross-examination, he
was duly confronted with his signed statement, Ex. PW-2/A, wherein he had
categorically claimed that it was only one person who had fired both the shots.
Of course he denied having made any such statement to the Police. However, we
have no manner of doubt that on this aspect he is telling a complete lie. He
has admitted his signatures on the said statement. He has not claimed that
Police officials had exerted any pressure on him to put his signatures on that
statement. All that he is now claiming is that the said statement was recorded
in Hindi while he had narrated the whole story in English as he did not know
Hindi at all. We do not find this explanation of this witness to be convincing.
Whether he had dictated his version to PW-100, SI Sunil Kumar, in English or not
has no significance because SI Sunil Kumar has categorically stated during his
evidence that he had reduced into writing whatever had actually been narrated to
him by this witness. We have no reason to disbelieve SI Sunil Kumar on this
aspect of the matter. We cannot accept that SI Sunil Kumar would have concocted
such a detailed statement on his own without the witness having actually told
the facts to him. There is another reason also for not accepting the version of
Shyan Munshi and that is that even Beena Ramani says that Shyan Munshi's
statement was recorded by the Police in her presence. Apart from that, it is
significant to note that the statement of this witness was recorded on 30th
April, 1999 itself and thereafter he never raised any grievance at any time
before any authority that the Police had recorded incorrect version in his
statement Ex. PW-2/A. He has come out with this explanation for the first time
in Court and we have no manner of doubt from the facts and circumstances of this
case that he was won over by the accused, Sidhartha Vashisht @ Manu Sharma.
Learned Additional Solicitor General had pointed out to us the trial court
record, about which no dispute was raised on behalf of the accused, Sidhartha
Vashisht @ Manu Sharma, where in one of the proceedings recorded by the
Additional Sessions Judge at the time of hearing of bail application of
Sidhartha Vashisht @ Manu Sharma, the presence of one Advocate , Ashok Bansal
was recorded on behalf of Sidhartha Vashisht @ Manu Sharma. Shyan Munshi,
during his cross-examination by the Public Prosecutor, has himself admitted that
while coming to Court to depose in this case was escorted by his counsel Mr.
Ashok Bansal who had earlier appeared as counsel for Sidhartha Vashisht @ Manu
Sharma and also appeared at the time of pronouncement of judgment on 21.2.2006
for Manu Sharma and other accused as well. This tell tale circumstance leaves
no doubt that the new story this witness has introduced during trial is an
'afterthought' as also a total lie at the instance of the accused. His
credibility was totally impeached during his cross-examination by the Public
Prosecutor. In these circumstances, we cannot consider this witness to be of
any worth, although we agree with the submission of Mr. Jethmalani that some
part of the evidence of even a hostile witness can be taken into consideration
provided it inspires confidence and he is considered to be a reliable witness.
We do not consider this witness to fall in that category of witnesses. We,
therefore, do not find that the testimony of Shyan Munshi, in any way, can be
utilised to the benefit of the accused, Sidhartha Vashisht @ Manu Sharma. Even
if the deposition of PW-2 is discarded, the case of the Prosecution hardly gets
affected. In this view of the matter we feel it unnecessary to go into the
argument of Mr. Jethmalani that Ex. PW-2/A cannot be treated as an FIR.
33. PW-6 is Malini Ramani, She states that in the year 1999
parties were organized at Qutub Colonnade. Liquor was consumed at these
parties. On 29.4.1999 there was a party at the Qutub Colonnade which was a
Thursday. It was organized to bid farewell to her step father, George
Mailhot, who was going abroad for five months. The witness was at Qutub
Colonnade on that evening. Jessica Lal was also there. Her mother, (Beena
Ramani) was also present. Shyan Munshi was also present. The party was over
around 1.00 a.m. approximately and at about 1.45 a.m. the witness went along
with Sanjay Mehtani to the restaurant to look for something to eat. The witness
was holding a drink in her hand. She found Jessica Lal was there in the
restaurant and Shyan Munshi along with some waiters was also present. She went
behind the food counter looking for something to eat inside the Cafe but could
not find anything. In fact, according to the witness, there was nothing to eat
or drink for the last hour or so and lots of people were asking for more to
drink and to eat. While they were standing at the restaurant, a couple of
persons went in. They were about 4 or 5 in number. One of them asked this
witness if he could have two whisky. The gentleman was wearing jeans and white
T-shirt. He was in his mid twenties with fair complexion. His built was on the
plump side. The witness showed her inability to provide liquor as the bar had
closed. But he insisted and Jessica Lal and this witness repeated that the bar
was closed. The gentleman said he could pay for his drinks upon which the
witness said that he could not have a sip even for a thousand rupees. The
gentleman retorted saying if that he could have a sip of her for a thousand
rupees. This disgusted the witness who walked out at which time she came across
her mother in the court yard. Her mother was walking towards the restaurant
while this witness was going to the other side of the courtyard. Shyan Munshi
came running to her screaming that Jessica Lal had been shot. The witness
fainted at that time. This witness goes on to say that she can identify the
person who had asked her for drinks and who was wearing jeans and T-shirt. The
accused, Sidhartha Vashisht @ Manu Sharma, was correctly identified the one
that 'looks like him' but later on asserted that he was the same person. The
witness says that she came to know that Jessica Lal had died at about 6.00 a.m.
when she was at home. The information was given to her by her mother. The
witness was grilled extensively in cross-examination and confronted on various
aspects with her statement before the Police, but stood her ground on whether
Manu Sharma asked her for whisky though the exact words were absent.
34. The testimony of PW-6, Malini Ramani, has been discarded by the
trial court being of little importance. since she was not an eye witness.
However, she is certainly a witness to identifying Sidhartha Vashisht @ Manu
Sharma along with four or five persons present at the Tamarind Court as also
having asked her for whisky and later misbehaving with her. We find it quite
strange that at one stage the trial court has returned a categorical finding
that four accused were present inside Tamarind Cafe and that finding has been
given only on the evidence of PWs 1, 6, 20 and 24, yet their evidence has been
doubted and that too without even making real analysis of their evidence.
35. The next witness of utmost importance of the case is PW-20,
Beena Ramani. She states that she is the owner of a property near Qutub Minar
bearing No. H-5/6, Mehrauli Road, New Delhi which was acquired in September,
1995. The property has a shopping arcade in the name of 'Qutub Colonnade', the
name of the restaurant was 'Tamarind Court Cafe' which had a proper licence for
eating house. The licence of the restaurant was in the name of 'Once Upon a
Time' which started business in 1996. She goes on to depose that parties in the
restaurant could be booked on any day as per the desire of the customer, but on
Thursdays there used to be special private parties where guests could come by
invitation. She goes on to say that liquor was served in the courtyard on
Thursday parties. PW-6, Malini Ramani, used to manage these Thursday parties.
The witness further states that she knew Jessica Lal and Shyan Munshi and that
there was a proper staff to run the restaurant although friends did help in the
Thursday parties. Jessica Lal and Shyan Munshi were friends of Malini Ramani
and were helping her on that night. The witness goes on to depose that on the
night of 29.4.1999, a Thursday party was organized to bid farewell to her
husband who was leaving for a found-the-world trip. The party was over by 1/1.30
a.m. These Thursday parties and special parties were organized generally and
were held in the courtyard and on the roof top. After the party was over, she
was anxious to clean up the place and relieve the waiters so that they were
available for proper duties on the following morning. At that time, there were
some guests left in the courtyard and she spotted some guests in the restaurant
where nobody was supposed to be. She walked towards the restaurant. While she
was moving towards the restaurant, she crossed Malini Ramani . She moved into
the steps of the restaurant and saws a few people standing next to the counter
and heard a firing shot. A moment later, she heard another shot. At that
time, Jessica Lal, who was standing with some people at the far end, was seen by
the witness falling down. There was a door to her right which was swung open
with Shyan Munshi coming out with some other person saying that Jessica had
been shot. The witness told Shyan Munshi to call Police or doctor or ambulance
and was stopping the man accompanying him. There was commotion. All the people
who were with Jessical Lal starting coming out. The companion of Shyan Munshi
was wearing a white T-shirt. He was chabbi and fair and this witness asked him
as to who he was and why he was there and also why he had shot Jessica Lal. The
witness also asked him to give her his gun, which she thought he was having.
The person in the white T-shirt denied having shot yet, the witness goes on to
say, she asked him again and he kept quiet shaking his head that it was not him.
As all others were leaving, the person in the white T-shirt shoved the witness
aside and went out. The witness followed him all the way to the front gate of
the main building. She could not catch hold of this person. In the meantime,
she was shouting instructions to guests to call hospital or to take Jessica Lal.
On reaching the gate, she saw her husband standing there and told him that this
was the man who had shot Jessica Lal and to see in what car he was getting into.
The witness goes on to say that the person who was told to be seen by her
husband was with some friends at the time of occurrence inside the cafe. The
witness identified Sidhartha Vashisht @ Manu Sharma by touching him and also
went on to identify Amardeep Singh Gill, Alok Khanna and Vikas Yadav as the
persons along with Manu Sharma. Further, the witness goes on to say that from
the gate she returned to the restaurant where the waiters had slipped a table
cloth under Jessica's body. The witness continued to give instructions to get
medical help for Jessica and removed her to Ashlok Hospital. Jessica Lal was
still alive and was removed to Ashlok Hospital in the car belonging to Sanjay
Mehtani. The witness goes on to say that the report about the incident was
lodged in her presence by Shyan Munshi. Jessica Lal was then removed to Apollo
Hospital where she was declared dead. A week later, she saw Sidhartha Vashisht
at the Police Station
36. This witness was cross-examined by counsel for Sidhartha
Vashishta @ Manu Sharma, but to no meaningful end. In other words, her
testimony remained unchallenged. The trial court while dealing with this witness
has held that this witness does not further the case of the Prosecution as the
witness was not an eye witness to the occurrence but a witness to the presence
of Sidhartha Vashishta @ Manu Sharma, Amardeep Singh Gill,Alok Khanna and Vikas
Yadav at the Qutub Colonnade. The trial court also held that the deposition of
this witness was vague since she thought that Manu Sharma was carrying a gun and
also felt that he may have shot Jessica Lal. The Court also held that mere
feelings were not enough and did not mean that Sidhartha Vashisht @ Manu Sharma
had actually fired a shot at Jessica Lal. The trial court further went totally
wrong in holding that PW-20 had admitted not seeing Sidhartha Vashisht firing a
shot at Jessica Lal, but it was only her feeling. With great respect to the
learned Judge, we find this is 'a complete misreading of evidence'. There is no
suggestion let alone an admission on the part of PW-20, Beena Ramani, that she
had not seen the accused Sidhartha Vashisht firing a shot at Jessica Lal. On
the contrary, we find positive assertion by the witness to the following effect
:
?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 to call the police or doctor or ambulance and I stopped the man
accompanying him. 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 Chabbi 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 what car
he gets into.?
37. This statement of Bina Ramani clearly shows that she had
herself seen Sidhartha Vashisht shooting Jessica Lal as otherwise she had no
reason to ask him why he had shot Jessical Lal. The aforesaid view taken by the
trial Court appears to have been taken on a concession made by the Special
Public Prosecutor himself who put forth this argument that it was her feeling
that Manu Sharma might have shot at Jessica Lal and also that she had admitted
that she was not an eye witness. The trial court, however, instead of itself
reading the evidence of Bina Ramani proceeded to wrongly record acceptance of
this submission of the prosecutor. If the evidence of the witness had been read
properly, the Court could not have held that this witness had admitted that she
had not seen Manu Sharma firing at Jessica Lal. There is no suggestion, let
alone an admission on the part of PW-20, Bina Ramani, that she had not seen the
accused Sidhartha Vashisht firing a shot at Jessica Lal. This kind of approach
of the trial Court has caused grave miscarriage of justice. There is no doubt
that the Court is not supposed to simply convict someone without any evidence
but at the same time the Court is also to ensure that guilty is not allowed to
go scot free simply by accepting concessions made by the Public Prosecutor.
38. Beena Ramani's presence as an eye witness was sought to be
challenged by recourse to the deposition of PW-46, Madan Kumar, and PW-47,
Jatinder Raj, who were employees at the Qutub Colonnade. It was argued that
Madan Kumar rushed to the spot after hearing ?goli lag gai? and saw Jessica Lal
lying on the floor. Some guests, Beena Ramani and Jatinder Raj were present
there. This part of the deposition is sought to mean that Beena Ramani did not
confront Manu Sharma nor followed him nor asked George Mailhot to keep a watch
on Manu Sharma. However, from an analysis of the testimony of PW-46, we find
that he came to the spot subsequent to the fire. He did not hear the firing
but heard people shouting ?goli lag gai?. It is then that he ran down by which
time Beena Ramani must have returned to the Cafe after confronting Manu Sharma.
This witness certainly deposes to the presence of Beena Ramani at the spot. He
also corroborates Beena Ramani's actions thereafter. PW-47, Jatinder Raj, has
stated that he was counting cash and was tallying the same when he heard firing
of two shots from the side of the Cafe. He saw from the gate of his office
people coming in and going out. At that time he saw Bena Ramani at the stairs of
the cafe. He rushed towards her and both went inside the cafe. This, by
itself, does not show that when the shots were fired, the witness was along with
Beena Ramani in the Cafe. He also came soon after Beena Ramani had come back to
the Cafe. Since he was the in-charge of the cash, he would have never left the
cash unattended or without securing it before running out. We, therefore, find
no substance in the criticism that Beena Ramani was not present when the shots
were fired.
39. From the above it cannot be said that Beena Ramani had not seen
Sidhartha Vashiushth @ Manu Sharma firing at Jessica Lal. On the contrary, it
is a positive statement of the witness that it was Sidhartha Vashisht @ Manu
Sharma who fired at Jessica Lal after which Jessica Lal fell down. The witness
is a witness of events that took place and is an eye witness to the main
occurrence. We have already pointed out that this witness has not been cross-
examined at all on this aspect. A general criticism of the Ramani family has
been made by learned counsel for Manu Sharma that they were under constant
Police pressure and, therefore, were toeing the Police version.
40. We have given our careful thought to this argument and find no
substance in it. The excise case which is being trumpeted as Police pressure,
can hardly be said to be of such a nature as could warrant the entire family
supporting a false or a frivolous case. In any event, in the excise case the
accused pleaded guilty and were sentenced with a fine only. The mere fact that
Beena Ramani, Malini Ramani and George Mailhot were called to the Police Station
on several occasions, is no indication of Police pressure to book a false case
and their repeated interrogation cannot be made a ground to discard this
evidence since they were accused in an excise case where investigation was going
on. Their sustained interrogation was necessary because they were running
illegal pub. There were so many VIPs in that illegal pub on the fateful night.
We were told during the arguments by the learned Standing Counsel for the State
that one very senior police officer had also attended that party on 29th
April,1999. So, there was nothing abnormal in the repeated interrogation of the
Ramani family as the police might be wanting to find out who those persons were
and why they were coming to that illegal pub. The argument that the testimony
of PW-20, PW-6 and PW-24 is hit by Section 163 of the Criminal Procedure Code,
though attractive it may sound, is devoid of any merits. From the analysis of
the deposition of PW-20, whom we find a reliable witness and, in fact, the only
brave person present in that party to muster courage to face the shooter while
others who claim to be socialites, did not have the courage to raise a little
finger to apprehend the culprit whom this witness was chasing and shouting that
he was the person who had shot Jessica Lal, the involvement of Sidhartha
Vashisht @ Manu Sharma in the murder of Jessica Lal is writ large. It was
Sidhartha Vashisht @ Manu Sharma who pulled out his pistol, fired two shots one
in the ceiling and the other at Jessica Lal.
41. Although the case against Sidhartha Vashisht stands fully proved by
the testimony of PW-20 alone, yet we find sufficient corroboration to her
testimony from the deposition of PW-24, George Mailhot, who deposes to the
holding of the Thursday party on the fateful night and goes on to say that
around 2.00 a.m. he was standing in the courtyard near a large tree about 20
feet away from the restaurant facing opposite the entrance gate of the
restaurant when he heard two popshots like balloon. He turned towards the
restaurant door and within few seconds Shyan Munshi came running saying that
someone had shot Jessica. The witness went towards the restaurant and saw
Beena Ramani, PW-20, addressing a young man who was moving around and Beena
Ramani was following him and saying that ?you are the one, give me the gun?. He
identified Sidhartha Vashisht as the person whom Beena Ramani was following. He
also testifies having followed Sidhartha Vashisht on foot upto Adam Khan's tomb
at which point Sidhartha Vashisht vanished. The witness then went on to the
Police Station to lodge a report where he found that the report had already been
lodged. He came back to Qutub Colonnade and found that Beena Ramani had already
taken Jessica to the hospital. The witness subsequently saw Sidhartha Vashisht
at Police Station Mehrauli.
42. In cross-examination on behalf of the accused, Sidhartha
Vashisht, this witness was primarily cross-examined about his personal
background and his interest in the property called 'Qutub Colonnade' as also
about the nature of parties being organized there on Thursdays as well as on
other days of the week. It was also elicited from him in cross-examination that
after the incident, when the Police reached the spot, couple of bottles of
liquor were mysteriously recovered from the restaurant by the Police. Relying
on this statement also of George Mailhot, senior counsel for Sidhartha Vashisht
submitted that this witness himself also wants to convey that the Police had
foisted a false excise case against his family members and because of that they
were pressurised to falsely implicate Sidhartha Vashisht. This argument also
cannot be accepted because admittedly the accused in the excise case had been
convicted on their pleading guilty. A perusal of cross-examination of this
witness also shows that virtually there is no cross-examination on the material
aspect of his testimony in the form of his examination-in-chief except for a
general suggestion given by him at the end of his cross-examihnation that he had
identified accused Sidhartha Vashisht @ Manu Sharma at the asking of the
Investigating Agency which, of course, he denied categorically. There is no
particular challenge to his statement that his wife, Beena Ramani, was following
the accused Sidhartha Vashisht @ Manu Sharma after the firing incident and on
her telling him to follow Manu Sharma he had followed him upto a place from
where he disappeared. Therefore, this part of the testimony of this witness
fully corroborates the version of Beena Ramani to the effect that she had
followed the accused Sidhartha Vashisht @ Manu Sharma only after the firing
incident. Here again we may notice that as far as the presence of the accused
Sidhartha Vashisht @ Manu Sharma at the time of the incident at the Qutub
Colonnade is concerned, the trial court itself has accepted the Prosecution's
case and categorically held that he along with his associates was present. We
fully endorse that finding of the trial court and even counsel for the
respondents before us, except for making a half-hearted submission that this
finding of the trial court is not supported by any reasoning, no other cogent
reason was given by them to reverse this categoric finding of the trial court
regarding the presence of Sidhartha Vashisht @ Manu Sharma, Amardeep Singh
Gill, Alok Khanna and Vikas Yadav at the spot. It was elicited from him that he
had been visiting Police Station almost every day. It was on account of this
statement made by him that it was argued on behalf of the accused that Ramani
family was being pressurised to falsely implicate Sidhartha Vashisht as
otherwise there was no occasion for the Police for calling Ramani family to the
Police Station for days together when they were material Prosecution witnesses
for this murder case. We have already rejected this argument being devoid of
any merit.
43. The identification of the accused in Court by PWs. 1, 6, 20 and
24 was also challenged by counsel for the respondents on the ground that most of
the witnesses admit that Police had shown them the photos of the culprits during
investigation and for that reason Test Identification Parade was also refused.
We think that on this ground, the evidence of PWs. 1, 6, 20 and 24 cannot be
disbelieved. As per the Prosecution case, Sidhartha Vashisht @ Manu Sharma
could not be traced out till 6.5.1999 on which day only he surfaced after his
friends, Amardeep Singh, Alok Khanna had implicated him for the murder. The
Police from 30.4.1999 itself suspected him and Manu Sharma was evading Police
contacting him for interrogation, suspicion of Police got converted into a
positive case of his involvement and in that event, his photo was shown to
witnesses who had been claiming that they would be able to identify the
culprits, there was nothing objectionable in that action of the investigating
agency.
44. Regarding the allegation that Sidhartha Vashisht @ Manu Sharma was
absconding, his counsel argued that it was false since the moment the co-accused
implicated him on 5.5.1999, Manu Sharma himself surrendered on 6.5.1999 and
before that, the Police did not have any evidence against him nor was he
required to appear before the Police. This argument overlooks the fact that this
accused has himself taken a plea that his farmhouse was raided on 30.4.1999 and
certain articles were seized from there including his licensed pistol. This plea
demolishes the argument that he was not evading the Police. If he says that his
farmhouse had been raided on 30.4.1999, then he should have surrendered on the
same day itself as he did six days later. He knew before 6.5.1999 that Police
was looking for him from 30.4.1999 itself and if he did not surrender
immediately, the only inference which can be drawn by us is that he was
absconding which circumstance can be utilized by the Prosecution to strengthen
its case against him.
45. Another circumstance which substantiates the Prosecution's
case regarding Sidhartha Vashisht's murdering Jessica Lal, is the recovery
of Tata Safari from Noida which was removed from Qutub Colonnade by Amardeep
Singh Gill @ Tony Gill and Vikas Yadav. We have evidence on record to show that
Tata Safari No. CH-01-W-6535 was parked at Qutub Colonnade in the night of
29/30.4.1999. This abandoned car belonged to Piccadilly Agro Industries Limited
of which Manu Sharma was admittedly a director at that time. This vehicle was
stated to be surreptitiously removed and then recovered from Noida. The
criticism that the vehicle was, in fact, recovered from Karnal is misreading of
statement of PW-100. PW-100 does not say that he recovered the Tata Safari
from Karnal but deposes to the effect that the Piccadilly Agro Industries
Limited was registered in Karnal. The Tata Safari was, in fact, recovered from
Noida by U.P. Police and handed over by the court to the Delhi Police on
superdari. The police official from Noida police station PW-91 SI B.D.Dubey had
clearly deposed that he had recovered Tata Safari from Noida area on 02-05-99.
His testimony to this effect has remained unchallenged and un-controverted. His
cross-examination on behalf of accused Vikas Yadav and Sidhartha Vashisht was
confined only to find out whether any finger prints were lifted from the Tata
Safari and whether he was questioned by Delhi Police after its recovery.
Although a suggestion was put to him that he had made a false statement in
connivance with Mehrauli police but we have no reason to accept that, since no
motive has been alleged against this witness for falsely deposing. It cannot be
accepted that everybody on this earth had conspired to falsely implicate
Sidhartha Vashisht nor he has made any such attempt to even probabilise his
false implication. He has claimed that he was falsely implicated due to
political influence but he has not even bothered to name the politician who
could have got him falsely implicated in this case. The accused, at no point of
time, made any complaint about missing of the vehicle which he now claims to
have been taken into possession from Karnal.
46. There is yet another strong circumstance showing the
involvement of Sidhartha Vashisht @ Manu Sharma in the murder of Jessica Lal
and that circumstance is that he admits that he was having a licenced pistol of
.22 bore. He is also not disputing that from the place of incident two empty
cartridge cases of .22 bore were recovered by the police as also the fact that
the mutilated lead bullet recovered from the skull of Jessica Lal was of .22
bore. In these circumstances and particularly when he knew that he had been
implicated in this case for the offence of murder it was for him to have
produced his licenced pistol as also the 25 rounds to show that he could not be
involved in the murder of Jessica Lal in the manner claimed by the prosecution.
He has, however, neither produced his pistol nor the cartridges of that pistol.
47. Sidhartha Vashisht @ Manu Sharma has taken a plea in his
statement under Section 313 Cr.P.C. That there was no occasion for him to have
produced his licensed pistol since the same had been seized by the Police
along with the licence and ammunition from his farmhouse at Sambhalkha on the
night of 30.4.1999 itself when a search was conducted there. Support of this
plea, which we find to be an afterthought and a concoction, was sought from
the testimony of yet another hostile witness, PW-44, Shankar Mukhia who is none
other than his own employee on duty at his farmhouse. This witness was examined
by the Prosecution to show that in the evening of 29.4.1999 Sidhartha Vashisht
had gone from the farmhouse in black Tata Safari and then did not come back.
However, he turned hostile and did not support the Prosecution on this aspect.
Despite the fact that he had not supported the Prosecution's allegations
involving Sidhartha Vashisht @ Manu Sharma, yet he was cross-examined by
defence and then it was elicited from him that the Police had visited the
farmhouse and had taken away the pistol and the licence of Sidhartha Vashisht @
Manu Sharma. Credibility of this witness stood fully impeached in his cross-
examination by the Public Prosecutor when he was confronted with his Police
statement under Section 161 Cr.P.C. If actually any raid had been conducted in
the farmhouse of Mannu Sharma on 30.4.1999 and something had been taken away by
the Police, this witness would have definitely lodged a protest to the effect
that the Police without giving him receipt had removed Manu Sharma's pistol and
licence. It is also significant to note that when during the investigation stage
the Police was seeking Manu Sharma's police remand for recovery of weapon of
offence, at which time he did not claim that the Police had already seized his
pistol from his farmhouse. We find from a reading of the impugned judgment
that no such plea was raised and no finding was returned on this aspect of the
matter. We have no manner of doubt that if this argument had been advanced, it
would have been met with. Before us it was argued by counsel for the appellant
that when the Police had submitted a charge-sheet in Court and had supplied some
document to him, an application was moved before the Magistrate requesting for
supply of a copy of the seizure memo by which the Police had taken away the
pistol from his farmhouse on 30.4.1999. Counsel drew our attention to that
application dated 16.8.1999 which, according to the learned Additional Solicitor
General, was clearly a plant in judicial record. There is no reference to any
such application in any of the proceedings of the Magistrate. Not only that, it
was submitted that even if it had been filed, it was only an eye wash, not to be
pursued and, in fact, it was not pursued at all by insisting supply of such an
important seizure memo. We are in full agreement with the submission of the
learned Additional Solicitor General in this regard and have no hesitation in
rejecting this plea of the accused. From the above, there is sufficient
evidence to bring home the guilt of the accused, Sidhartha Vashisht @ Manu
Sharma to the charge of murder of Jessica Lal.
48. The evidence of Ramani family, in particular of Beena Ramani as
also the aforesaid circumstantial evidence have been rejected, with due respect,
by the learned trial Judge, on wholly unsustainable grounds and we have no
hesitation in concluding that the view taken by the learned trial Judge on the
evidence of PW-20, Beena Ramani, PW-6, Malini Ramani and PW-24, George Mailhot
as also regarding the presence of Tata Safari at the spot, its recovery from
Noida with a live .22 bore cartridge could not have been taken at all. The
view taken by the trial court is positively perverse.
49. We find that the Prosecution has led evidence in support of
presence of Tata Safari at Qutub Colonnade by producing PW-30, Home Guard
Constable Sharavan Kumar, who deposes that he accompanied Inspector Surender
Sharma during the investigation of this case on 29/30.4.1999. He joined
Inspector Surender Sharma at the gate of the police station and went to the spot
in a Police gypsy. He was directed to keep vigil at the parking lot so as to
ensure that no cars were removed. He saw five or six vehicles parked there, one
of which was parked separately. He checked and found all the vehicles locked.
At around 3.40 a.m., he noticed a vehicle coming from Qutub side. It was a Tata
Siera of white colour. Two persons were in the front seat. They stopped the
vehicle near the black Tata Safari and began unlocking the same. The witness
tried to stop them but could not and the black Tata Safari No. CH-01-W-6535
was driven away at which time he gave a danda blow to the rear right view glass
of the same. The Tata Siera was being driven by a Sikh gentleman. He
identified the Tata Safari CH-01-W-6535, Ex. PW-30/X. He also identified Vikas
Yadav as the person who drove away Tata Safari and Amardeep Singh Gill as the
driver of the Tata Siera. He was sought to be discredited primarily as being a
planted witness since he was given regular appointment in Delhi Police as a
reward for making a false statement in Court. His evidence is also sought to be
discredited on the ground that he could not have been present at the place where
he claims to have noticed the Tata Safari since in his cross-examination he has
admitted that at the Police Station he had been assigned the duty of handing
over one DD entry in respect of some other incident which was being inquired
into by another Sub-Inspector at a place which was quite far away from the
Police Station. It was contended that in normal course, this witness was
supposed to be doing the duty assigned to him and could not be present at the
parking lot at Qutub Colonnade where he claims to have noticed the Tata Safari
lying parked and then being taken away. There is no doubt that this witness
admits that he was given appointment in Delhi Police later on but from this fact
it cannot be inferred that he was rewarded for making a false statement in this
case. We see no reason why the Police should have planted a false witness.
50. The criticism as regards his presence at the spot, has been
explained by the witness himself who says that he was at the gate of the Police
Station, the SHO had come there and taken him along with him to Qutub
Colonnade, we find nothing abnormal in that conduct of a constable when he is
being asked by the SHO to accompany him to a place other than the place for
which he was asked to go by the Duty Officer in connection with some other case.
The SHO, PS Mehrauli also supports PW-30, Sarvan Kumar. The presence of PW-3 is
also deposed to by other Police officials present at the spot.
51. From an analysis of the deposition of PW-30, we find him to be
a natural witness of the case to which he has deposed. 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.
The findings of 'planting' are very serious observations and cannot be made in
such a casual manner. There must be positive evidence to show that a witness is
planted which must then result in consequential action against the Prosecution
rather than using this merely to give benefit to the accused. Further
observation of the trial court that PW-30 could not have been present in Dera
Mandi Village and at the Qutub Colonnade at the same time, is wholly unfounded.
The witness states that he did not carry the DD entry to SI Rishi Pal. Merely
because Rishi Pal received the DD entry does not conclude that it was delivered
to him by Sharvan Kumar.
52. The other cirticism of the learned defence counsel qua the Tata
Safari is that there is no witness who has seen Sidhartha Vashisht @ Manu Sharma
arriving at the Qutub Colonnade in the Tata Safari. He claimed that the Tata
Safari has been falsely planted by the Prosecution to implicate Manu Sharma.
This criticism, we find, is devoid of substance. PW-30, as we have already
stated, is a trustworthy witness who testifies to the Tata Safari being present
and having removed by the co-accused of Manu Sharma. The attempt of learned
counsel to discredit PW-30 by recourse to the evidence of PW-47, Jatinder Raj
and PW-86, Jagannath Jha, is of no consequence. PW-47 who states he did not see
any private vehicle at the gate of the Qutub Colonnade at 3.15 a.m. only goes to
show that he did not observe the presence of Tata Safari but does not rule out
the presence of the Tata Safari. About PW-86's evidence, less said the better.
He is thoroughly unreliable witness. He does not even know the difference
between summer and winter and appears to have been won over by the defence.
53. The presence of Tata Safari at the Qutab Colonnade stands
proved from the material on record. This circumstance lends assurance to the
presence of Manu Sharma at the Tamarind Cafe and corroborates the type of
ammunition used in the commission of the crime, empties whereof were recovered
from the scene of occurrence and a similar live cartridge recovered from the
Tata Safari. We have also noted that Harvinder Chopra does not claim that the
Tata Safari which was allotted to him was missing on the date of incident or
that he had made any report to the effect that somebody had stolen the same from
Karnal. He also does not claim to be in possession of the said vehicle on the
night of 29/30.4.1999.
54. From an appreciation of the material placed by the Prosecution
on record, we find that the Prosecution's case that the Tata Safari was left
abandoned by Manu Sharma and was subsequently removed by Vikas Yadav and
Amardeep Singh Gill, stands proved.
55. Much was sought to be made of the report of the ballistic
expert, Roop Singh, who opined that the empties recovered from the spot of the
occurrence appear to have been fired from two weapons. We find from the
material on record that the empties from the spot recovered vide recovery Memo
Ex. 100/1 as also the live cartridge recovered from the Tata Safari, Ex.PW-74/A
sent for examination in July, 1999. The report of Roop Singh Ex. PW-89/DB is
not evidenced per se under Section 293 of the Criminal Procedure Code since it
was a photo copy in which case it was incumbent upon the defence to examine
Roop Singh, if they wished to rely upon his opinion. This having not been done,
document Ex. PW-89/DB cannot be pressed into service to put up a case that two
weapons had been used in the commission of the crime. As regards the second
opinion of PW-95, Prem Sagar Manocha, we find that the opinion categorically
states that it is not possible to say whether the cartridges have been fired
from two different weapons. However, following a court question, the witness
seems to have rattled out everything to the contrary to his own report to
support the two weapon theory which was being pressed by the defence. This
witness does not appear to be a trustworthy witness. Once having rendered an
opinion that it was not possible to give a report regarding the empties being
fired from two separate weapons, he could not have testified to the contrary
without specifically carrying out tests for that purpose afresh. The sudden
emergence of the work sheets in the court raises grave doubts as to the
trustworthiness of this witness and genuineness of the work sheets. We need
hardly belabor over this so-called scientific evidence since its veracity is
not beyond doubt. The two weapon theory appears to be a concoction to the
defence and a manipulation of evidence in particular that of Shyan Munshi, PW-
2 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.
56. In the totality of circumstances adduced from material on
record, the judgment under challenge appears to us to be an immature assessment
of material on record which is self-contradictory, based on misreading of
material and unsustainable. We find that Beena Ramani has identified Sidhartha
Vashisht @ Manu Sharma, Amardeep Singh Gil, Alok Khanna and Vikas Yadav to be
the persons present at the Tamarind Cafe at the time of the incidence. She also
saw Manu Sharma firing the fatal shot which hit Jessica Lal. Her testimony
finds corroboration from the testimony of Malini Ramani and George Mailhot.
There is evidence on record to show that Manu Sharma had a licensed pistol of
.22 bore which he has not produced to establish his innocence and on the
contrary has taken false plea that the pistol, its ammunition and licence had
been removed by the Police on 30.4.1999. We also find from the material on
record that Manu Sharma abandoned his vehicle while making good his escape. We
also find that the ammunition used in the causing of the firearm injury to
Jessica Lal was of .22 bore which Manu Sharma admittedly possessed and a
similar live cartridge was recovered from the abandoned Tata Safari. From this,
we have no hesitation in holding that Manu Sharma is guilty of an offence under
Section 302 IPC for having committed the murder of Jessica Lal on 29/30.4.1999
at the Tamarind Cafe as also under Section 27 Arms Act.
57. Coming to the case put up by the Prosectuion as regards Vikas
Yadav and Amardeep Singh Gill, we have noted above that both these accused were
present at the Tamarind Cafe when Manu Sharma caused firearm injuries to Jessica
Lal. These two persons subsequently were seen by PW-30 Sharvan Kumar, coming in
a white Tata Siera driven by Amardeep Singh Gill from which Vikas Yadav alighted
and surreptitiously removed the Tata Safari which was being guarded by Sharvan
Kumar. The very fact that Vikas Yadav removed the Tata Safari from Qutub
Colonnade is sufficient to bring home his guilt under Section 201 IPC since he
and Amardeep Singh Gill both knowing that an offence has been committed at the
Tamarind Cafe by Manu Sharma caused the Tata Safari, which is part of the
evidence, to be removed with an intention to screening Manu Sharma. From these
circumstances it is evident that the Tata Safari was removed from outside Qutub
Colonnade pursuant to a conspiracy between Vikas Yadav, Amardeep Singh Gill and
Manu Sharma. Therefore, these three accused are guilty of having conspired to
remove the Tata Safari from Qutub Colonnade and are held guilty under
Section 201 read with Section 120-B IPC.
58. As regards Shyam Sunder Sharma, he was charged for an offence
under Section 212 IPC for harbouring Ravinder Krishan Sudan. We find there is no
incriminating evidence to suggest that Shyam Sunder Sharma ever harboured
Ravinder Krishan Sudan. Even otherwise, Ravinder Krishan Sudan has been
declared a Proclaimed Offender and has not faced trial. This charge against
Shyam Sunder Sharma cannot be sustained. Consequently we uphold his acquittal
under Section 212 IPC as also 201 IPC and dismiss the appeal qua Shyam Sunder
Sharma due to lack of evidence.
59. The case against Harvinder Chopra is that he arranged for the
stay of Sidhartha Vashisht @ Manu Sharma at the house of PW-52, Chander Prakash
Chopra, thereby committing an offence under Section 212 IPC. From the material
on record, we find there is no evidence to suggest that Harvinder
Chopra arranged for stay of Manu Sharma at the house of PW-52, Chander Prakash
Chopra. Chander Prakash Chopra himself has not supported the Prosecution's case.
We, therefore, find no evidence to convict Harvinder Chopra of the offence under
Section 212 IPC. Consequently we uphold his acquittal under Section 212 IPC
and dismiss the appeal qua Harvinder Chopra.
60. The case against Yog Raj Singh is that he facilitated Sidhartha
Vashisht @ Manu Sharma being taken to Khera, Muktsar in Punjab and harboured
Sidhartha Vashisht @ Manu Sharma. To substantiate this case, the Prosecution
examined PW-53, PW-64 and PW-65. We find that none of these witnesses have
supported the Prosecution's case and there is no other evidence on record which
suggests that Yog Raj Singh is guilty of harbouring Sidhartha Vashisht @ Manu
Sharma at Khera in Muktsar (Punjab). Consequently we uphold his acquittal under
Section 212 IPC and dismiss the appeal qua Yog Raj Singh.
61. The case against Vikas Gill was that he was charged for
escorting Sidhartha Vashisht @ Manu Sharma to Panchkula between 30.4.1999 and
1.5.1999 and harboured him with the intention to screening him from legal
punishment. We find from the record that there is no evidence to the effect that
Vikas Gill took Sidhartha Vashisht @ Manu Sharma to Panchkula from Delhi and/or
harboured him at any place. Consequently we uphold his acquittal under Section
212 IPC and dismiss the appeal qua Vikas Gill.
62. The case against Raja Chopra is that he provided a conveyance
to Sidhartha Vashisht @ Manu Sharma within the meaning of Section 52A IPC in
order to screen him from legal punishment. From the material on record we find
no admissible evidence to substantiate the charge against this accused.
Consequently we uphold his acquittal under Section 212 IPC and dismiss the
appeal qua Raja Chopra.
63. As regards the case against Alok Khanna, he was charged under
Section 120-B read with Section 201 IPC for causing disappearance of Tata Safari
from Qutub Colonnade. We find there is no evidence to link Alok Khanna with the
conspiracy to remove or destroy evidence. No doubt, his car was used by
Amardeep Singh Gill and Vikas Yadav to go to Qutub Colonnade to remove the Tata
Safari, but this in itself is not sufficient to hold that Alok Khanna consented
to or was a part of the conspiracy shared by Amardeep Singh Gill with Vikas
Yadav to remove the Tata Safari from the Qutub Colonnade. In that view of the
matter, we find that the Prosecution has not been able to bring home its case
against Alok Khanna, The appeal qua Alok Khanna is dismissed.
64. We may also note here that Ravinder Krishan Sudan and Dhanraj
were declared Proclaimed Offender by the trial court. Their case is not before
us.
63. In the above analysis, while holding Sidhartha Vashisht @ Manu Sharma guilty under Section 302 IPC for the murder of Jessica Lal as also under Section 27 Arms Act and Section 201/120B IPC, we also hold Amardeep Singh Gill and Vikas Yadav guilty for the offence punishable under Section 201 IPC/120-B IPC while upholding the acquittal of the remaining respondents of the offences
charged against them. Accused Siddharth Vashisht @ Manu Sharma, Vikas Yadav and Amardeep Singh Gill be taken into custody forthwith and lodged in Central Jail,Tihar. The appeal is disposed of in the above terms.
[R.S.SODHI]
JUDGE
[P.K.BHASIN]
JUDGE
December 18, 2006
jt.
