Holding

The Supreme Court upheld the High Court’s convictions, finding that the prosecution proved the case beyond reasonable doubt and that the appellate court was entitled to re‑evaluate the evidence and affirm the convictions.

Summary

The case concerns the murder of Jessica Lal on 30 April 1999, for which Sidhartha Vashisht (Manu Sharma) and two co‑accused were initially acquitted by the trial court. The State appealed, alleging that the prosecution had proved the guilt of the accused beyond reasonable doubt through ocular testimony, telephone call records, forensic evidence and the recovery of the accused's vehicle. The Supreme Court examined whether the appellate court could re‑evaluate the evidence, whether the FIR could be based on cryptic telephone messages, the admissibility of delayed witness statements, ballistic expert reports, and the validity of photo identification and test‑identification parades. It also considered the public prosecutor’s duty of disclosure, the effect of adverse inferences from the accused’s false answers, and whether media coverage prejudiced the trial. The Court held that the prosecution’s case was established, the FIR was correctly recorded, the evidentiary issues did not defeat the prosecution, and the High Court’s convictions were proper, dismissing all appeals.

Issues considered

The prosecution must establish guilt beyond reasonable doubt despite the trial court's acquittal.
Whether an appellate court may re‑evaluate the entire evidence and overturn an acquittal.
Whether cryptic telephone messages constitute a valid FIR under Section 154 CrPC.
The impact of delay in recording witness statements on their admissibility.
The admissibility and weight of ballistic expert reports that are vague or incomplete.
The legality and evidentiary value of photo identification and test‑identification parades.
The public prosecutor’s duty of disclosure and whether non‑disclosure vitiates the trial.
The propriety of drawing adverse inferences from false answers under Section 313 CrPC.
The effect of media trial on the right to a fair trial.
The appropriateness of judicial comments on lower courts and the need for expunction.

Legislation cited

Arms Act, 1950s. 27
Code of Criminal Procedure, 1973s. 154, s. 161, s. 162, s. 165, s. 170, s. 172, s. 173, s. 207, s. 208, s. 24, s. 311, s. 391
Indian Evidence Act, 1872s. 165, s. 27, s. 293, s. 294, s. 313, s. 8, s. 9
Indian Penal Code, 1860s. 1208, s. 201, s. 212, s. 302
Punjab Excise Acts. 68

Subjects

murderfirearmidentification paradeFIRballistic evidencepublic prosecutor duty of disclosuremedia trialappellate reviewadverse inferencecryptic telephone message

Judgment

[2010] 4 S.C.R. 103

SIDHARTHA VASHISHT @ MANU SHARMA A
v.
STATE (NCT OF DELHI)
(Criminal Appeal No. 179 of 2007)
APRIL 19, 2010
B
[P. SATHASIVAM AND SWATANTER KUMAR, JJ.]

Penal Code, 1860/Arms Act, 1950:

Sections 302, 20111208/Section 27 - Murder - Trial c
against nine accused - Acquittal by trial court - Conviction
by High Court against three accused - A-1 sentenced to life
for murder and fine of Rs. 50, 0001-, 4 years of sentence under
the Arms Act with default stipulation - A-2 and A-3 sentenced
to four years imprisonment and fine of Rs,20001- each with·
0
default stipulation - On appeal, Held: Prosecution has
established its case peyond doubt - Appellate court has all
the necessary powers to evaluate the evidence Jet in before
the trial court and the conclusions reached by it - High Court
has given cogent and adequate reasons for reversing the
order of acquittal - Presence of accused at the scene of crime E
proved by ocular testimonies and corroborated by Exhibits -
Conclusions arrived at by the High Court upheld.

Code of Criminal Procedure, 1973:

Section 24 - Public prosecutor - Duties and F
responsibilities - Duty of Court to ensure that Public
Prosecutor does his duties to the utmost level of efficiency
and fair play - Interference by Courts - Limitations -
Discussed.
G
Section 154 - First Information Report - Cryptic
telephone message of a cognizable offence not to be treated
as FIR.

103 H
104 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Sections 170, 172 - Conduct of investigation - Duties
of investigation officer vis-a-vis rights of accused - Discussed
- Constitution of India, Articles 14, 19.

Sections 293, 294 - Proof of documents - Documents
sought to be relied on must be originals - Photocopy of the
8
original documents - Acceptance of, procedure to be followed.

Section 313 - questions put to the accused - If accused
furnishes false answers as regards proved facts, court can draw
an adverse inference qua him - Such inference would
C become an additional circumstance to prove the guilt of the
accused.

Evidence Act, 1872:

Sections 8, 27 - Evidence of telephone calls -
D Admissibility of.
Section 9 - Test identification parade - Practice not
borne out of procedure, but out of prudence - Investigating
officer conducts a TIP to ensure that he has got the right
E person as an accused.
Section 165 - Expert witness - When the expert opinion
is vague, no credence could be lent to it - Court's power under
the Section - Discussed.

F Judicial propriety - Judicial propriety and discipline
demand that strictures or lacerating language should not be
used by higher courts in exercise of their appellate or
supervisory jurisdiction - Errors of judgments to be corrected
by reasons of law - Practice of passing comments against
G lower courts deprecated.

Judicial discipline/restraint - A judgment could be set
aside preferably without offering undesirable comments,
disparaging remarks or indications which would impinge upon
the dignity and respect of the judicial system - Despite such
H restraint, if there are compelling reasons for making
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 105
(NCT OF DELHI)
comments, rule of law and principles to be adhered - View A
point of judge concerned should also be invited - In the facts
of the case, all the remarks made by the trial judge against
th.e prosecution and by the Division Bench against the trial
judge directed to be expunged - Strictures by court -
Expunging of. B

Media Trial:

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

Doctrines:

Doctrine of 'contra veritatem lex nunquam aliquid
permittit' - Meaning of · F
Doctrine ofdisclosure - Discussed.

According to the prosecution, on the night
intervening 29-30.04.1999, a 'Thursday Party' was going
on at .Qutub Colonnade once called "Tamarind Cafe". G
Liquor was being served by the bartenders, namely, 'J'
(since deceased) and PW-2. At about 2.00 a.m., appellant
in the main appeal (A-1) along with his friends came there
and asked for two drinks. The waiter did not serve him
liquor as the party was over. Deceased and PW-6, who H
106 SUPREME COURT REPORTS [2010] 4 S.C.R.

A were also present there, tried to make him understand
that the party was over and there was no liquor available
with them. On refusal to serve liquor, the appellant took
out a pistol and fired one shot at the roof and another at
the deceased which hit near her left eye as a result of
B which she fell down. PW-20 who was present there,
stopped the appellant and questioned him as to why he
had shot the deceased and demanded the weapon from
him but he did not hand over the pistol and fled away.
Deceased was rushed to Ashlok Hospital from where she
c was shifted to Apollo Hospital. On 30.04.1999, in the early
morning hours, she was declared brought dead at Apollo
Hospital.

FIR was lodged and after police investigation,
charges were framed against nine accused under
D Sections 302/202/1208/212 IPC and under Section 27 of
the Arms Act against the appellants. Trial began in May,
2001 against nine accused. In all, 101 witnesses were
examined by the prosecution and two court witnesses
were also examined. On 21.02.2006, after trial, the
E Additional Sessions Judge acquitted all the nine accused
including the appellant.
Challenging the acquittal, the prosecution filed an
appeal before the High Court.On 20.12.2006, the High
F Court convicted and sentenced the appellants. A-1 was
given life sentence for murder and a fine of Rs.50,000/-
and four years sentence under Section 27 of the Arms Act
with default stipulation. The other two appellants (A-2 and
A-3) were convicted and sentenced to four years
imprisonment and fine of Rs.2000/- each with default
G stipulation.
Challenging the said order of the High Court, all the
three appellants filed separate appeals before this Court.
On behalf of the appellants, it was contended that A-
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 107
(NCT OF DELHI)
1 has been denied his fundamental right to free and fair A
trial which is guaranteed under Article 21 of the
Constitution of India; that on the very first day of
investigation i.e. on 30.04.1999, an FIR was filed against
PW-6, PW-20 and PW-24 under the Punjab Excise Act in
order to control these witnesses and to pressurise them 8
to support the prosecution case. After their deposition,
the Excise case was pre-poned and disposed of by
imposing a fine of paltry amount; that PW-6, PW-20 and
PW-24 were frequently shown the photograph of the
appellant and he was paraded before them; that the C
finding of the High Court that the appellant took out his
pistol and first fired at the ceiling and then at the
deceased is based on no evidence; that three Ballistic
Experts have concurred that empty cartridges have been
fired from two different weapons; their Report.support the
statement-in-chief of PW-2; there was no evidence on 0
record that both the shots were fired from one weapon;
and that the High Court has wrongly placed reliance
upon the testimony of PW-1, even though, he was not
present in the party and he was planted by the
prosecution; the evidence of three family members PW- E
6, PW-20 and PW-24 was inadmissible in law; that the
prosecution never claimed PW-20 as an eye-witness,
however, the High Court erroneously held Iler as eye-
witness to the occurrence; that the High Court failed to
consider the evidence of PW-46 and PW-47; that the High F
Court committed an error in relying upon the testimony
of PW-24 to corroborate the evidence of PW-20; that the
First Information Report recorded on the statement of
PW-2 was not an FIR but a signed statement; that the
High Court wrongly discarded his ocular version; that the G
Trial Court assigned good reasons for accepting his
evidence; that the High Court's observation on Ballistic
Experts from CFSL was erroneous; that the High Court
committed an error in disbelieving PW-95; that there is no
acceptable evidence/material to connect Tata Safari to the H
108 SUPREME COURT REPORTS [2010] 4 S.C.R.

A allege~ occurrence; that PW-30 was a planted witness,
and there was no need for him to accompany PW-1 to the
spot when he was assigned other official work; that a
rough site plan which was prepared in the early hours of
30.04.1999 (Ex. PW 100/2) clearly showed the absence of
8 PW-20 at the alleged place of occurrence, if she was an
eye-witness, this would have been done; that the Public
Prosecutor failed to adhere the basic principles in
conducting criminal case; that the High Court committed
a grave error by reversing the well considered order of
C acquittal by the Trial Court and on conjunctures the High
Court interfered wi~h the acquittal and imposed sentence
which is not permissible under law; and that the
prosecution failed to establish the charge in respect of
the other two accused-appellants (A-2 and A-3) under
Section 201 read with 1208 of the IPC.
D
On behalf of the State, it was contended that the Trial
Judge has committed an error in acq.uitting all the
accused and the High Court being an Appellate Court is
fully justified in re-analysing the evidence and convicting
E all the three accused-appellants and awarding
appropriate sentence; and that the conviction and
sentence awarded by the High Court were acceptable and
no interference is called for by this Court.
The following points arose for consideration in these
F appeals:

(a) Whether the prosecution has established its
case beyond reasonable doubt against all the
three accused?
G
(b) Whether the trial court is justified in acquitting
all the accused in respect of charges leveled
against them?
(c) Whether the impugned order of the High Court
H imposing punishment when the trial court
I

SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 109
(NCT OF DELHI)
acquitted all the accused in respect of the A
charges leveled against them is sustainable?

Dismissing the appeals, the Court

HELD:

1.The following principles have to be kept in mind by
the Appellate Court while dealing with appeals,
particularly, against the order of acquittal:

(i) There is no limitation on the part of the Appellate
Court to review the evidence upon which the order C
of acquittal is found.
(ii) The Appellate Court in an appeal ag·ainst acquittal
can review the entire evidence and come to its own
conclusions. D
(iii) The Appellate Court can also review the Trial
Court's conclusion with respect to both facts and
law.
(iv) While dealing with the appeal preferred by the E
State, it is the duty of the Appellate Court to marshal
the entire evidence on record and by giving cogent
and adequate reasons set aside the judgment of
acquittal.
F
(v) An order of acquittal is to be interfered only
when there are "compelling and substantial reasons"
for doing so. If the order is "clearly unreasonable",
it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the G
Appellate Court is first required to seek an answer to
the question whether finding of the Trial Court are
palpably wrong, manifestly, erroneous or
demonstrably unsustainable. If the Appellate Court
answers the above question in the negative the H
110 SUPREME COURT REPORTS (2010] 4 S.C.R.

A order of acquittal is not to be disturbed. Conversely,
if the Appellate Court holds, for reasons to be
recorded, that the order of acquittal cannot at all be
sustained in view of any of the above infirmities, it
can reappraise the evidence to arrive at its own
B conclusion.

(vii) When the Trial Court has ignored the evidence
or misread the material evidence or has ignored
material documents like dying declaration/report of
Ballistic Experts etc., the Appellate Court is
c competent to reverse the decision of the Trial Court
depending on the materials placed. [Para 13] [168-D-
H; 169-A-E]

Madan Lal vs. State of J&K, (1997) 7 SCC 677; Ghurey
D Lal vs. State of Uttar Pradesh (2008) 10 SCC 450; Chandra
Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105 and
Jaswant Singh VS. State of Haryana, (2000) 4 sec 484,
referred to.
2. There is no dispute that the incidence occurred in
E a place known as "Qutub Colonnade". The open area of
"Qutub Colonnade" is known as "Tamarind Court"
whereas the closed area is called "Tamarind Cafe". In
order to establish the presence of A-1 and others,
prosecution has examined PW-1, PW-2, PW-6, PW-20,
F PW-24, PW-23 and PW-70. Apart from these ocular
witnesses, prosecution pressed into service Ex. PW12/
D-1 which is a wireless message received at Police
Station, Mehrauli. [Para 15] [170-8-C]
G 3. A close scrutiny of PW-1 's evidence clearly shows
that the deceased was friendly with him having known
him for 5-6 years. He also went to the house of her
parents twice i.e. on 30th April and 1st May 1999 to pay
condolence. Further, in categorical terms, he asserted
H and identified the presence of A-1 at the scene of offence.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 111
(NCT OF DELHI)
Since he had contact with a person having fair A
complexion with smiling face, in the Court he correctly
identified both A-1 and A-2. He also identified other
persons who accompanied these two accused. It is also
clear from his evidence that at around 1.45 a.m., he heard
a noise emerging from Tamarind Cafe to the effect that B
the deceased had been shot. It is also clear that on
hearing, he ran towards Tamarind Cafe though according
to him he could not go inside yet peeped and saw the
deceased lying on the floor. Since the High Court has
accepted his evidence which was not acceptable by the c
Trial Court, this Court analyzed his entire statement with
great care. On seeing his entire evidence, there is no
reason to either suspect his evidence or reject the same
as unacceptable. On the other hand', his evidence
supported by other witnesses clearly proves the
0
presence of accused Nos. 1-4 at the place of occurrence.
He asserted the presence of the deceased and PW-2 and
the claim of whisky by a fair complexion man who
exchanged niceties with him and introduced himself (A-
1). There is no valid reason to hold that he is a planted E
witness, though he was not an eye-witness to the actual
shooting incident but his own statement proves that
immediately on hearing the noise he peeped and noticed
the deceased lying on the floor of Tamarind Cafe. To this
extent, the evidence of PW-1 is acceptable and the High
Court has rightly believed and relied on his version. (Para F
15] (172-G-H; 173-A-H]

4. The analysis of the evidence of PW-2 shows that
though he turned hostile but his evidence shows that he
had visited Tamarind Cafe on the night of 29.04.1999. He G
also mentioned the presence of A-1. His evidence further
shows that immediately after the shot PW-20 and others
were carrying the deceased to Ashlok Hospital. In other
words, his evidence proves the presence of A-1 at the
scene of offence. To this extent, the prosecution relied H
112 SUPREME COURT REPORTS [2010] 4 S.C.R.

A upon his evidence and this was rightly accepted by the
High Court. Though, the defence submitted that High
Court ought to have accepted his entire evidence in toto,
considering his earlier statement to ~he police and his
evidence before the Court, this Court is satisfied that the
B High Court is justified in holding that even if his testimony
is discarded, the case of the prosecution hardly gets
affected. His evidence amply proves the presence of
accused at the scene of occurrence at the time and date
as pleaded by the prosecution. [Para 15) [175-E-H; 176-
C A]
5. It is relevant to note that PW-6 (daughter of PW-20)
is not an ordinary person and it is not the case of the
defence that she is an illiterate, unable to understand
what she said to the earlier questions. She is a fashion
D designer by profession. In other words, she is highly
qualified and it is not her grievance that she was unable
to understand her earlier answers. It is clear from the
evidence of PW-6 that A-1 was very well present at the
scene of offence and she correctly identified him. Further,
E as rightly observed by the High court, though she was
not an eye-witness, she is certainly a witness identifying
A-1 along with 4 or 5 persons present at the Tamarind
Court who asked her for whisky and later misbehaved
with her. This Court agrees with the observation and the
F ultimate conclusion about PW-6 reached by the High
Court. [Para 15] [179-H; 180-A-D]
6. If the evidence of PW-20 is analyzed along with the
sketch/map of the occurrence, when she mounted steps
of the restaurant, she heard a shot, a moment later, she
G heard another shot. It is also relevant to note that she
mentioned that the deceased was standing with the
people at the far end and she saw her falling down. She
also informed that PW-2 said that the deceased had been
shot. It is relevant to point out that she was shouting to
H the guests to call the Doctor or to take the deceased for
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 113
(NCT OF DELHI)

treatment, she reached the gate where her husband was A
standing and she told him that "this was the man who had
shot the decease,d;and to see in which car he gets into". If her
entire evidence is read she refers only to A-1. She also
correctly identified the presence of other accused
persons. Her evidence remained unchallenged, though B
the Trial Court discarded her evidence as she was not an
eye-witness to the occurrence but accepted that she is
a witness to the presence of the accused at the Qutub
Colonnade. Her statement clearly proves the prosecution
case that she had herself seen A-1 shooting the c
deceased. As rightly observed by the High Court, if the
evidence of PW-20 is analyzed in depth, it is clear that
she. not only asserted the presence of A-1 at the scene
of occurrence and heard two shots one by one but also
asked a pertinent question to PW-2 that why he {A-1) had
0
shot the deceased. For the limited purpose of proving the
presence of accused at the scene of offence, her
evidence fully supports the case of the prosecution. [Para
15] [180-F-H; 181-A-E]
·'
'.· 7. PW-24 is a Canadian citizen and according to him, E
he has been residing in India since February, 1992. PW-
20 is his wife. His evidence makes it clear that at the
relevant time on hearing the shot, PW-2 came running
shouting that someone shot the deceased. He reached
the door of the restaurant. It is also clear that PW- 20 was F
moving at a place ahead of him towards the left side. This
witness subsequently stated that PW-20 was addressing
a young man who was moving with someone. He also
identified the person who had come out first followed by
PW-20 and he touched A-1 as the person who was being G
followed by PW-20. His evidence also proves the
presence of A-1 at the scene of offence. [Para 15] [181-F-
H; 183-D-E]
8.1. PW-23 in his evidence, admitted that he had told
H
114 SUPREME COURT REPORTS [2010] 4 S.C.R.

A the police that he saw PW-20 going after a boy. [Para 15]
[183-F-G]

8.2. The statement of PW-70 also makes it clear that
after the shooting incident PW-20 was running behind a
man shouting "catch that man". [Para 15] [184-C-D]
8
9. The evidence of PWs 1, 2, 6, 20, 23, 24 and 70
which are all admissible in evidence clearly show the
presence of A-1 at the scene of offence. This evidence
of the ocular witnesses is duly corroborated by Ex PW
C 12/D-I, the wireless message received at PS Mehrauli. In
addition to the evidence of the above mentioned
witnesses, who were present at the party, the presence
of appellants is also proved by other evidence, namely,
3 PCR calls Ex PW 11/A, 8 and C which were received.
o The evidence of PWs 11, 12 and 13 clearly proves that
immediate and prompt action was taken. [Para 15] [184-
D-F]

10. PW-83 reached the scene of occurrence within
.two minutes at around 02.17 a.m. and reported back at
E 02.35 a.m. Ex. PW 12/D-1, a contemporaneous document,
clearly corroborates the testimony of ocular witnesses.
From the evidence adduced, it is clear that the appellants-
accused Nos. 1-3 were present at the scene of
occurrence. Admittedly without setting up a plea of alibi
F to show their presence elsewhere, they have flatly denied
their presence. It is relevant that the said witness reached
around 02.17 a.m., on a message from PCR to PS
Mehrauli takes around 10 minutes as from local PCR it
goes to headquarter from where it is transmitted to
G concerned district net which further transmits it to the
local police station. In this way, around 02.25 a.m., even
before the local police had arrived at the spot PW-83 had
sent the version available at the spot. The prosecution
placed specific reliance on the same. In the absence of
H rebuttal evidence, there is no reason to reject the
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 115
(NCT OF DELHI)
evidence of PW-83 as well as Ex. PW-12/D-1. In those A
circumstances, the entire premise of the defence
argument that it was not a person in white T-shirt, stocky
and fair, who shot at the deceased over a row over the
drink and fled away from the spot and this was a planted
and concocted story of the prosecution to rope in A-1 and B
make escape good of the tall Sikh gentleman, is wholly
erroneous and without any basis. [Para 15] [184-G-H;
185-D, G-H; 186-A-C]

11.1. The analysis of evidence of PWs 46 and 47
shows that when PW-47 heard the noise of the shots he C
was in the office counting cash and after hearing the
noise of firing he opened the gate of his office which he
had closed at the time of counting the cash. He saw from
the gate of his office that people were coming in and
going out. At that time, he saw PW-20 on the steps of the D
cafe, he rushed towards her and they both went inside
· the cafe. It is clear from the testimony of this witness that
he was inside his office counting the cash when he
heard the shots, thus after taking care of the cash when
he opened the gate he saw people coming in and going E
out, which means that his act of coming out from the
office is considerably after and not immediately after the
shots were fired and, therefore, he saw people running
back and forth whereas PW-20 has stated that when she
mounted the steps of the restauraht she saw a few F
people standing next to the counter and heard a shot. A
moment later she heard another shot. Deceased was
standing with people at the far end and she saw her
falling. It is pertinent to note that as per the scaled site
plan, the point at which PW-20 was standing was only G
four feet from the point at which the shot was fired at the
deceased. Therefore, it can never be alleged that there
was no way in which the said witness could have had any
doubt as to the identity of A-1. Thereafter, she accosted
him till the gate of Qutub Colonnade where she told PW- H
116 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 24 that this was the man who had shot the deceased and
that he should see in which car he i.e. A-1 gets into and
after that PW-20 came back to the spot. It is when she
came back to the cafe this witness PW-47 joined PW-20
entering the cafe, thus the testimony of this witness does
8 not negate the fact that PW-20 witnessed the incident. It
is relevant to mention the very fact that PW-20 followed
the appellant is a clear indication of the fact that she was
more than certain that he was the culprit responsible for
the crime, and, therefore, she did not chase anybody else
c as the person who was having the gun. It has to be borne
in mind that PW-20 had no enmity with the appellant-
main accused and also the whole theory of planting of
witnesses at the instance of the police is false since the
accused has not led any defence evidence or brought on
record any evidence to suggest that the investigation
0
was motivated by mala fide. [Para 18) [188-C-H; 189-A-D]
11.2. The defence that since PW-47 in his cross
examination has stated that PW-20 stated to him as to
what had happened and who had done it, an inference
E has to be drawn that she did not witness the incident,
does not lead to the inference that PW-20 did not witness
the incident rather it could further reinforce what she had
witnessed. Even otherwise, admittedly, thus, PW-20 was
available she was not recalled to confront her with the
F testimony of PW-47. In those circumstances, the defence
cannot take advantage out of a portion of statement of
PW-47. [Para 19) [189-D-F]
11.3. A perusal of the testimony of PW-46 reveals that
when he came down, PW-20 was already there. Thus PW-
G 46 is not in a position to say as to what PW-20 witnessed.
It may be further pointed out that the stairs leading to the
terrace are not on the cafe but on the main building of
Qutub Colonnade which houses the shops beyond the
verandah and Tamarind Court. Hence, the testimony of
H PW-46 cannot negate the evidence of PW-20 that she
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 117
(NCT OF DELHI)
witnessed the incident. The mere absence of PW-20 in the A
site plan also does not negate her presence or her having
not witnessed the incident, specifically when she had
given her statement to the police under Section 161 CrPC
on 30.04.1999, itself. [Para 20) [190-A-C]
B
11.4. This Court meticulously verified the site plan as
well as the evidence of PWs 20, 46 and 47. The absence
of PW-20 in the site plan does not belie her presence and
her having witnessed the incident especially when her
statement under Section 161 Cr.P.C. was recorded on
30.04.1999 in the morning itself. [Para 21] [190-E-F] C

12.1. It has been vehemently argued that PW-20 is not
an eye witness since both Investigating Officers i.e. PWs-
100 and 101 admitted the same. It was submitted by the
State that this argument runs counter to the well settled · D
proposition of law that a witness cannot be discredited
without the said piece of the testimony having been put
to her. The accused had a statutory option available by
way of Section 311 of the Code to call PW-20 for the
purposes of further examination. This argument of the E
defence also runs counter to their own argument used
to discredit the investigation that PW-6 was placed in the
'rukka' by the Police for the purposes of being shown as
an eye-witness. The said part of the testimony of PWs-
100 and 101 are at best in the nature of opinion evidence F
which are inadmissible pieces of evidence and for the
aforesaid reasons cannot wipe out the unchallenged
testimony of PW-20, which is the case of the prosecution.
Further, the appellant-main accused has also been
clearly identified by PW-6 as the person in the White T G
Shirt who had asked for whisky and thereafter on her
refusal to oblige, he misbehaved with her in the most
vulgar fashion. [Para 23, 24] [192-F-H; 193-A-C]
12.2. It is pertinent to note that FIR No. 288 of 1999
at PS Mehrauli under Excise Act was registered on H
118 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 30.04.99 itself and thus the question of making PW-6 an
accused on 08.05.99 does not arise. Moreover, the excise
offence is a bailable offence. Further, the statement of
PW-6 was recorded under Section 161 Cr.P.C. on 03.05.99
itself vide Ex PW 6/DA and thus the contention of making
B her an accused on 08.05.99 on this count is also
fallacious. [Para 25] (193-G-H; 194-A]

12.3. As regards the argument that PW-6 was shown
as an eye-witness to the incident of shooting in the
'rukka', a perusal of the same reveals that at no point of
C time PW-2, stated either in the positive or the negative
that PW-6 was or was not there when the shots were
fired. In any case, as rightly pointed out on the side of the
State that the alleged prosecution planted PW-6 as an
eye-witness goes contrary to all reasoning, since on
D . 30.04.1999 at the time of recording the 'rukka', none of the
witnesses had disclosed the identity of A-1, therefore, to
allege that the Police had planted the witness is wholly
incorrect. [Para 26] (194-B-D]

E 12.4. As regards the argument that PW-6 was under
the influence of alcohol, therefore, could not have
identified A-1, is also wrong since she clearly stated in
her testimony, particularly, in cross-examination, that she
had consumed only one drink. [Para 27] [194-D-E]
F 12.5. The argument that deposition of PW-6 as
regards the presence of other accused, does not find
corroboration from the testimony of PW-1 is incorrect
since the said witness categorically mentioned the
presence of other accused. The grievance that the
G identification of A-1 was based on a leading question is
also wrong since even before the alleged leading
question was put to the witness, the witness, PW-6 had
positively identified A-1 by specifically pointing out and
stating that he just looks like him. It was explained by the
H State that the appellant (A-1) was not personally known
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 119
(NCT OF DELHI)
to the said witness or her family and, therefore, the A
manner of identification in the present case wherein the
present witness by pointing out towards him stated that
he just looks like the man she saw at the party is most
conclusive and reliable. Further the argument of her
having been shown the photo, her identification is of little B
value since her statement that she saw the photographs
prior to 05.05.1999 is most wavering and unclear. In the
same manner, she has deposed that photos were also
\

shown to PW-20 and PW-24 is of little value since neither
PW-20 nor PW-24 stated that they had be.en shown the c
photos of the accused inspite of having all the
opportunities failed to confront the said witnesses with
the said part of PW-6's testimony. Based on the statement
of PW-70, that he saw her screaming out, the defence has
sought to discredit PW-6's, statement. It is relevant. to note 0
that it is the case of PW-6 that she came to know when
she was in the courtyard, PW-2 came running towards
her screaming that the deceased had been shot.
Thereafter, PW-6 fainted, thus, in the process, if PW-70
saw her screaming in the courtyard, it cannot be said that E
there is any contradiction in the statement of PW-6 and
PW-70. [Para 28] [194-F-H; 195-A-D]

12.6. After perusing the evidence of PW-6, it is clear
that after refusal of the drink, A-1 misbehaved in the most
vulgar fashion. The testimony of PW-23 further F
corroborates the testimony of PW-6. As rightly pointed
out by the State that it was a case where the deceased
was murdered for a row over the drink. [Para 29] [195-E]

12.7. The evidence of these three witnesses, viz. PWs G
6, 20 and 24, if read in whole in conjunction and in
harmony with each other, would show the chain of
circumstances of evidence leading to only one inference.
It is relevant to mention that PW-24's statement was
recorded on the same day i.e. 30.04.99. The presence of
PW-24 at the time of incident is also supported by the H
120 SUPREME COURT REPORTS [2010] 4 S.C.R.

A testimony of PW-13, who deposed that a person bearing
the description of PW-24 came to the Police Station to
report about the firing incident, which fact corroborates
the testimony of PW-24 that he went to the Police Station.
PW-100 reached Ashlok Hospital and made enquiries
s from PW-20 who directed him to take the statement of
PW-2 as he was present at the bar counter and
conversant with every thing. The prosecution has
explained that in view of the statements of the eye-
witnesses having been taken immediately at 03.40 a.m.
c on 30.04.99 itself on the basis of which FIR was registered
and number of other investigation processes like post-
mortem, site plan etc. and immediately thereafter search
for Tata Safari, ownership of the alleged vehicle, search
for A-1 in the case being made, as such even if there is
delay in recording of statements of other witnesses, it
0
cannot be fatal to the prosecution case. The said claim
of the prosecution cannot be rejected as unreasonable.
[Para 30] (195-G-H; 196-A-G]

12.8. PW-6 in categorical terms informed the Court
E about A-1 asking about the whisky, his misbehaviour
immediately before the shooting and also identified the
same person in white T-shirt asking for the whisky and
misbehaving with her. PW-6 further corroborates the
testimony of PW-20 and part testimony of PW-2 with
F regard to the presence of A-1. The scrutiny of the entire
evidence of PW-6 clearly shows that her evidence is not
only relevant but also admissible. [Para 31]

13.1. PW-9, who conducted post-mortem on the body
of deceased has stated that on 30.04.1999 at about 11 :20
G a.m. 7 sheets of papers i.e. inquest papers, request of
post-mortem, inquest report, copy of FIR, brief facts of the
case, were submitted to him along with the dead body.
He informed that the cause of death to the best of his
knowledge and belief was head injury due to firearm,
H injury was ante-mortem in nature. He also deposed that
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 121
(NCT OF DELHI)
Injury no. 3 was sufficient to cause death in the ordinary A
course of nature. [Para 32] [197-C-E]

13.2. Coming to the evidentiary value of PW-2, on
behalf of the defence, it was stated that PW-2 is not a
reliable witness in view of the fact that according to him
8
he made his statement in English, however, PW-100
recorded it in Hindi. In the absence of any suggestion to
the contrary, that it must be presumed that PW-100
recorded the statement correctly. It is also relevant to
mention that in his statement as a witness he said he can
understand spoken Hindi. Even if a prosecution witness
c
is challenged in cross-examination, that part of his
testimony which is corroborated by other witnesses or
from other evidence can clearly be relied upon to base
conviction. [Para 33] [197-E-H; 198-A-B]
D
13.3. With regard to the allegation that statements of
PW-6, PW-20 and PW-24 were taken under pressure as a
case under Excise Act was lodged against them. In fact,
PW-20 has denied the suggestion that she is deposing
falsely at the instance of Police. In the same way, PW-24 E
has also denied the suggestion that a deal was struck
between him and the investigation agency to make a false
statement, thereafter, the Excise case could be hatched
up. It is relevant to point out that the case under Punjab
Excise Act which was registered as FIR No. 288/99 on
F
30.04;1999 has not been withdrawn by the prosecution
against the accused. On the other hand, the fact remained
that the accused had pleaded guilty. The maximum
penalty/fine under Section 68 is Rs.200/-, therefore, the
maximum fine which could have been imposed on the G
accused is Rs.200/-. In those circumstances, the
allegation that these three witnesses were kept under
pressure is not acceptable. [Para 34] [198-C-H; 199-A]
14.1. The information about the commission of a
cognizable offence given "in person at the Police Station" H
122 SUPREME COURT REPORTS [2010] 4 S.C.R.

A and the information about a cognizable offence given "on
telephone" have forever been treated by this Court on
different pedestals. The rationale for the said differential
treatment to the two situations is, that the information
given by any individual on telephone to the police is not
B for the purpose of lodging a First Information Report, but
rather to request the police to reach the place of
occurrence; whereas the information about the
commission of an offence given in person by a witness
or anybody else to the police is for the purpose of
c lodging a First Information Report. Identifying the said
objective difference between the two situations, this Court
has categorically held in a plethora of judgments that a
cryptic telephonic message of a cognizable offence
cannot be treated as a First Information Report under the
0 Code. It has also been held in a number of judgments by .
this Court that merely because the information given on
phone was prior in time would not mean that the same
would be treated as the First Information Report, as
understood under the Code. [Para 41) [208-B-F]

E 14.2. In the instant case, the three telephonic
messages received by the police around 2.25 a.m. on
30.04.1999 did not constitute the FIR under Section 154
of the Code and the statement of PW-2 was rightly
registered as the FIR.[ Para 42) [208-G]
F
State of UP. vs. P.A. Madhu, (1984) 4 SCC 83; Tapinder
Singh vs. State of Punjab (1970) 2 SCC 113; Ranbir Yadav
vs. State of Bihar, (1995) 4 SCC 392 and Ramesh Baburao
Oevaskar and Others vs. State of Maharashtra (2007) 13 SCC
G 501, relied on.
Mehr Vajsi Deva vs. State of Gujarat, AIR 1965 Guj 143,
held per incuriam.
Superintendent of Police, CBI and Others vs. Tapan
H Kumar Singh, (2003) 6 SCC 175, held inapplicable.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 123
(NCT OF DELHI)
State of UP. vs. Bhagwant Kishore Joshi AIR 1964 SC A
221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18,
distinguished.

H.N. Rishbud & lnder Singh vs. The State of Delhi (1955)
SCR 1150; Damoder vs. Rajasthan (2004) 12 SCC 336; B
Ramsinh Bavaji Jadeja vs. State of Gujarat (1994) 2 SCC
685; Zahidurddin vs. Emperor, AIR 1947 PC 75;
Superintendent and Remembrancer of Legal Affairs to the
State of WB. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cal.
348 (Para 9) and Mer Vas Deva vs. State of Gujarat, AIR C
1965 Guj. 143 (Para 9 & 10), referred to.

15.1. PW-30 has categorically stated that while he
was on duty he saw a vehicle Tata Sierra White Colour
coming slowly from the side of Qutub at about 03.40 am
or 03.45 am. There were two persons in the said vehicle D
on the front seat. They stopped the vehicle near Tata
Safari of black colour. One boy came down from the said
vehicle and opened Tata Safari with a key. PW-30 told him
not to do so but the said boy forcibly entered the Tata
Safari and took it away. PW-30 gave a lathi blow on the E
glass of window pane and it broke due to danda blow.
He noted down the number of the black Tata Safari as
CH-01-W-6535. The witness also identified Tata Safari
which was hit by him on that night, which is exhibit PW
30/X. PW 30 also identified that Tata Sierra was driven by F
A-2 whereas A-3 drove away black Tata Safari. PW-101
also stated that when he came back, he was told that two
boys had come and had forcibly taken away the Tata
Safari. Out of the two boys one was Sikh, PW-30 also
informed that he had broken the right backside window G
panel of Safari with his Danda. He also gave the number
of the Tata Safari as CH-01-W-6535. PW-100 has also
stated that two persons had got into the Tata Safari and
had driven away. The testimony of the above witnesses
is duly corroborated by document Ex PW 101/DK-1. Thus
it is clearly established by cogent evidence that on H
124 SUPREME COURT REPORTS (2010] 4 S.C.R.

A 30.04.1999 at about 03.40 or 03.45 am A-2 and A-3 came
in a white colour Tata Sierra Car and A-3 got down and
drove away black Tata Safari No. CH-01-6535. [Paras 43
and 44] [212-D-H; 213-A-C]

15.2. From the statements of PW-100, PW-101, PW-
8
87, PW-80 and PW-85, it is clear that Tata Safari vehicle
was being searched by Inspector (PW-87) and SI (PW-85)
and other police officers at various places in Delhi,
Haryana and Chandigarh. The said vehicle was found on
02.05.1999 at Noida and the same was taken into
c possession through a seizure memo prepared by Noida
Police. The same was taken into possession by Delhi
Police on 03.05.1999 after taking appropriate orders from
the Magistrate, Ghaziabad. [Para 46] [215-B-D]

D 15.3. Ex PW 74/A Seizure Memo of Tata Safari and live
cartridge with 'C' mark etc. clearly establish the recovery
of the same at Noida, beyond any shadow of doubt vide
Ex PW 74/C Seizure of Live cartridge by lnsp. (PW-74)
dated 26.06.1999. PW-91 and PW-74 of PS Sec.24, Noida
E have deposed that they found black Tata Safari No. CH-
01-W-6535 abandoned at the NTPC Township pursuant
to which FIR No. 115/99 u/s 25 of the Arms Act was
registered vide Ex. PW 74/B. The said Tata Safari was
seized under seizure memo Ex PW 74/A. PW 101 has
F clearly deposed that about 10.00 p.m. on 02.05.1999 he
got the information with regard to the Tata Safari having
been found at Noida. On 03.05.1999, he moved an
application before the ACJM, Noida for the superdari of
the Tata Safari vide Ex. PW 101/1 and in pursuance of the
orders of ACJM Ex. PW 101/2 and he seized the same
G vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB
along with other articles including broken glass pieces
which were duly sealed with the seal of BO. The seizure
memo Ex. PW 100/DB is duly signed by SI BO Dubey. The
said Tata Safari and the broken glass pieces duly sealed
H with the seal of BD have been deposited in the Malkhana
SIDHARTHA VASHISHT@ MANU SHARMA v. 125
STATE (NCT OF DELHI)

of PS Mehrauli on 03.05.1999. PW-101 has also stated A
that SI Vijay Kumar accompanied him to Noida and that
seizure memo Ex. PW 101/DB was in the handwriting of
SI Vijay Kumar of PS Mehrauli. Ex PW 18/0A at item no.
7 & 9 in the letter sent to CFSL mentioned about the seal
of BO on the sealed parcel containing broken glass B
pieces. The report of CFSL vide Ex PW 90/A proved that
on comparison of S1 and S2 the two window panes of
the left and the right rear side of the said Tata Safari are
different. Thus this convincing testimony of PW 101 duly
corroborated by documents cannot be discarded simply c
because SI Sudesh Gupta (Noida Police) failed to mention
the seizure of broken glass pieces on 02.05.1999. [Paras
47, 49) [215-G-H; 216-D-H; 217-A-B]
15.4. From the evidence on record it has been proved
by the prosecution that A-I and co-accused were present D
in the said party at Tamarind Cafe on the night of
occurrence. The presence of Tata Safari CH-01-W-6535 at
the place of occurrence and its being forcibly taken at
around 3.45 am after the incident has also been proved
beyond reasonable doubt. PW-18 has proved that the E
said Tata Safari CH-01-W-6535 is registered in the name
of Piccadilly Agro Industries Ltd., Chandigarh. It has also
been proved from the testimony of PW-25, PW-26, PW-48
and the annual report of Piccadilly that A-1 was the
director in Piccadilly Agro Industries which finding has F
also been arrived at by the Trial Court in favour of the
prosecution. Thus a reasonable inference has to be
drawn from the above mentioned evidence that A-1 used
the said Tata Safari for coming to Qutub Colonnade on
the fateful night of 29/30.04.1999. [Para 50) [217-C-F] G

16.1. The prosecution has established that the
appellant/accused was the holder of a .22" bore Pistol;
he was witnessed by PW-20 as the perpetrator of the
crime; a mutilated .22" lead was recovered from the skull
of the deceased; two empties of .22" make with mark 'C' H
126 SUPREME COURT REPORTS [2010] 4 S.C.R.

A were found at the spot; a .22" live cartridge with mark 'C'
was found in the Tata Safari of the appellant/accused
which was found abandoned at Noida and for which no
theft report was lodged; that his prior and subsequent
conduct of having got the Tata Safari removed from the
B spot, of absconding; refusal to TIP without having any
basis; that he even denied his presence at the spot,
clearly prove beyond reasonable doubt leaving no
manner of doubt that he is guilty of the offence of
murdering the deceased by using firearm and destroying
c evidence thereafter. [Para 55) [221-D-F]
16.2. A-1 despite forever maintaining that the police
had illegally taken away the pistol from his farmhouse on
30.04.1999/01.05.1999, did not take this ground in the
reply to remand application and argument to the said
D effect was recorded in the remand order by the
Magistrate. The only inevitable conclusion that could be
reached from the said turn of events is that the pistol was
still in custody of the accused and had never been
recovered by the police from his farmhouse. In the reply
E dated 07.05.1999 filed by the accused to the remand
application, there are interpolations in the reply in black
ink in two handwritings to the effect that the pistol had
already been recovered from the person of the accused.
The assertion that the words in two handwritings in black
F ink are interpolations gain strength from the fact that
nowhere in the remand order dated 07 .05.1999 has it
come that the accused has taken the plea that the pistol
had already been recovered. Thus this evidence coupled
with the testimony of PW-2, that the person in white T-
G shirt who was asking for whisky took out a pistol from
dub of his pant and fired a shot in the air and the other
witnesses PWs 1,6, 20 and 24 that the person in white T-
shirt was A-1, a positive inference beyond reasonable
doubt has to be drawn that A-1 fired from his .22" bore
H pistol which resulted in the death of the deceased on the
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 127
(NCT OF DELHI)
fateful night of 29/30.04.1999. jPara 56] [222-A-F] A

16.3. A perusal of the questions posed and answers
given by A-1 were either evasive or incorrect and an
adverse inference deserves to be drawn for such acts of
the A-1. [Para 57] [223-H; 224-A] B
Sucha Singh vs. State of Punjab (2001) 4 SCC 375,
relied on.

17.1. Had the witnesses been planted, the witnesses
would have rendered a parrot like testimony. PW-1 has c
explicitly stated that on 30.04.1999 he had told the police
at the Apollo Hospital all that he knew. This being the
case, it cannot be said that the testimony of the witness
should be thrown out for the delay in recording the
statement by the Police. Clearly, PW-1 was not an eye
0
witness, this fact must have been realized by PW-100 and
101, therefore, they felt no urgency in addressing this
aspect of the investigation i.e., recording of the statement
of PW-1. On behalf of the State, it was submitted that as
there were number of witnesses to be examined the said
E
examination continued for days. Witnesses 'PS' and 'AS'
were also examined on 14.05.1999. Further the presence
of PW-1 can also not be belied in view of the testimony
of PW-29 and PW-73. In any case, any defect by delay in
examination of witnesses in the manner of investigation
cannot be a ground to condemn the witness. Further F
Section 162 Cr.P.C. is very clear that it is not mandatory
for the police to record every statement. In other words,
law contemplates a situation where there might be
witnesses who depose in Court but whose previous
statements have not been recorded. [Para 61] [225-E-H; G
226-A-C]

17.2. The statements of witnesses were recorded not
only by the 1.0. himself but by other officials as well who
were helping him in investigation. The delay in recording H
128 SUPREME COURT REPORTS [2010] 4 S.C.R.

A the statement of PW-1 occurred due to natural flow of
statements of various witnesses. The statement of PW-
1, was recorded by ACP (PW-92), who stated the name
of PW-1 occurred during the course of interrogation of
other guests/witnesses. The evidence of PW-1 is relevant
s for a limited purpose i.e., proving the presence/identity of
A-1 and his desire for liquor in the party which part of
evidence has also been given by other witnesses in so
many words, prior to PW-1 as well. (Para 62) (226-D-G]

Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334;
C Prithvi vs. Mam Raj, (2004) 13 SCC 279 and Ganesh/al vs.
State of Mahrashtra (1992) 3 SCC 106, relied on.

Maruti Rama Naik vs. State of Mahrashtra, (2003) 10
SCC 670 and Jagjit Singh vs. State of Punjab (2005) 3 SCC
o 689, distinguished.

Gane$h Bhavan Patel vs. State of Maharashtra, (1978)
4 sec 371, referred to.

18.1. The opinion of Ballistic expert finally exhibited
E as Ex. PW 89/DB only says that "it appears that the two
cartridge cases are from two different pistols." Such a vague
opinion of the expert can neither be relied upon nor can
be any basis to come to a conclusion that there were two
persons who had fired two different shots. [Para 64) [229-
F B-C]
18.2. PW-95, Ballistic expert at FSL, Jaipur, was
asked a specific query being query No.3 whether both
the empty cartridge cases have been fired from the same
firearm or otherwise. In the reply to the said query, the
G expert opined that no definite opinion could be given on
the two .22" bore cartridge cases C-1 and C-2 in order to
link with the firearm unless the suspected firearm is
available for examination. It was pointed out that the trial
Court puts a question to the witness and while putting
H the question first gives a specific fact finding that for reply
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 129
(NCT OF DELHI)
to Query No. 3, the presence of the firearm was not A
necessary. This incorrect finding of fact given by the trial
Court was based on no expertise and had resulted in
grave miscarriage of justice. It is well settled that while
giving reports after Ballistic examination, the bullets,
cartridge case and the cartridges recovered and weapon B
of offence recovered are carefully examined and test
firing is done at the FSL by the said weapon of offence
and then only a specific opinion is given. [Para 65] [229-
0-G]

18.3. In any case, both Section 293 and Section 294 C
of the Code of Criminal Procedure which dispense with
formal proof of documents under certain circumstances
make it abundantly clear that the documents sought to
be relied upon must be the originals. Assuming for the
sake of the argument, though not admitting, that the said D
report, i.e. Ex. PW-89/08 is admissible even though a
photocopy has been placed on record and even though
nowhere it has come in evidence that the same i.e. the
photocopy has been compared and scrutinized with the
original by the Court and then placed on record, the same E
still loses all credence in the light of the fact that a perusal
of the forwarding letter and report would show that there
seems to have been some tampering with the said
documents since the sequence of numbering of the
parcels as between the forwarding letter and the report F
has been changed by somebody which fact remains
unexplained as, therefore, casts a further doubt on the
genuineness of the said report. The report itself with
regard to query No.3 shows that "it appears that the two
cartridge cases C-1 and C-2 have been fired by two G
different weapons". This opinion of the expert was vague
and on the basis of the said opinion no credence can be
lent to the fact adverted to by the defence that there were
two persons who fired two different shots from two
different weapons. Moreover the said report is oddly H
130 SUPREME COURT REPORTS [2010] 4 S.C.R.

A silent on query No.7 of the forwarding letter wherein it
was specifically asked about the various markings on the
live cartridge and the bullet empties. The stand of the
defence that to opine the tWo cartridge cases are from the
same weapon or not the pistol is not required and the
B pistol is only required when the opinion is sought
whether they are from that particular weapon or not
cannot be accepted. It is well settled that when pressure
is built inside the cartridge case, which results in the
pushing out of the bullet from the barrel, there is
c difference in the marks to the extent that it may be either
clear or unclear and flattened or deepened thus no
opinion can be rendered on account of this dissimilarity
in the absence of the weapon of offence and test firing.
Further once the report is rendered inadmissible the two
gun theory of the defence becomes wholly inadmissible
0
and what remains is that the two empties found at the
spot are .22" bore cartridges, that the live bullet found in
the Tata Safari is a .22" cartridge and that the gun
belonging to the appellant is a .22" bore pistol which was
used for the commission of the crime of murder of the
E deceased. [Para 67] [231-F-H; 232-A-G]

18.4. The argument that the judge knew that the issue
in question was whether the two empties found on the
spot were fired from the same gun is wrong and
F misleading. The judge knew that as per the charge
framed against A-1 it was he alone who was charged with
the possession and use of a gun. The judge also knew
that the first expert opinion was brought on record at the
instance of the accused; the judge further knew that PW-
G 95 had stated in no uncertain terms that no opinion can
be given as regards the two empties without receipt of
the weapon of offence. lnspite of knowing all this, the
judge first put a finding of its own to the witness that he
did not need the firearm in question in order to reply as
H to whether the two empties were fired from the same gun
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 131
(NCT OF DELHI)
i.e., a gun and not the gun. The Court exceeded its power A
under Section 165 of the Evidence Act by putting the
question after giving its own finding. [Para 70] [235-C-F]
18.5. The discretion on the part of the 1.0. and the
superior officers was rightly exercised when they 8
decided not to file the expert report since they realized
that the expert report is ambiguous as it uses the term
"appear" when it suggests that the two empties appear
to have been fired from different weapons. Clearly the
said opinion was far from conclusive and would have C
only created confusion in the case of the prosecution.
Thereafter a second opinion was sought wherein the
expert i.e. PW-95 opined that a conclusive opinion can
only be given after the receipt of the weapon of offence.
The argument that the weapon of offence is not required
to determine whether the two bullets have been fired D
from the same gun is based on the wrong premise that
the two empties would necessarily consist of features
which would enable an expert in determining the said
fact. [Para 71] [236-A-D]
E
18.6. In the present case, the moment the Ballistic
Expert uses the word "appear" his opinion unsupported
by reasons becomes inconclusive and stands
discredited for the purpose of placing reliance on.
Though he has given opinion qua query No.5 that the F
two .22" cartridge cases appears to have been fired from
two different .22" caliber standard firearms but his opinion
is completely silent on the marks i.e. ejector, trigger,
chamber, magazine or other tool marks on the bullet
empties (Ex. PW 89/DB). Clearly an option was available G
to the accused under Section 293 Cr.P.C. to call for the
witness and ascertain from his for sure that the two
empties were in fact fire from two different weapons,
however, the accused did not choose to do so in terms
of Section 293 Cr.P.C. In any case, the said opinion as of
, H
132 SUPREME COURT REPORTS [2010] 4 S.C.R.

A today is of little use to the accused for the reasons stated
above and since it is both inconclusive and unsupported
by any reasoning whatsoever and, therefore, cannot
appeal to the judicial mind of this Court. Similar is the
case with the expert opinion of PW-95 which is again
B inconclusive. There is no evidence on record to suggest
that PW-95 gave an opinion to oblige the prosecution. On
the contrary, his response to the Court question reveals
that he was extremely confused as to the issue which
had to be addressed by him in the capacity of an expert.
c In the concluding part of his testimony he reaffirms the
opinion given by him which is that without test firing the
empties from the weapon of offence no conclusive
opinion can be given. [Para 71] [236-G-H; 237-A-E]
18.7. It is pertinent to note that the testimony of the
D experts Le., exhibited as Ex.PW-89/DB and PW-95 ·
exhibited as Wx PW-95/C-1 in inconclusive. The expert
PW-95 has stated in his report that it is only on receiving
the weapon of offence that a conclusive opinion as to
whether the two empties (cartridge cases) found at the
E spot were fired from the same weapon or from two
different weapons could be given. [Para 72] [237-F-G]
18.8. The law is very clear that where a witness for
the prosecution turns hostile, the Court may rely upon so
F much of the testimony, which supports the case of the
prosecution and is corroborated by other evidence. PW-
2 's testimony as regards the identity of the person
shooting, is certainly not corroborated by the testimony
of the experts since both the experts have given opinions
which cannot qualify as conclusive opinion of experts.
G [Para 73] [238-A-C]
A.E.G. Carapiet vs. A. Y. Derderian, AIR 1961 Calcutta
359 and Ram Chander vs. State of Haryana, AIR 1981 SC
1036, referred to.
H
SIDHARTHA VASHISHT@ MANU SHARMA v. 133
STATE (NCT OF DELHI)

19.1. A public prosecutor is appointed under Section A
24 of the Code of Criminal Procedure. Thus, Public
Prosecutor is a statutory office of high regard. He has
wider set of duties than to merely ensure that the
accused is punished, the duties of ensuring fair play in
the proceedings, all relevant facts are brought before the B
court in order for the determination of truth and justice
for all the parties including the victims. It must be noted
that these duties do not allow the prosecutor to be lax in
any of his duties as against the accused. It is also
~ important to note the active role which is to be played by c
. a court in a criminal trial. The court must ensure that the
prosecutor is doing his duties to the utmost level of
efficiency and fair play. [Paras 76, 77) [238-F-G; 240-B-D]

19.2. In the Indian Criminal jurisprudence, the
accused is placed in a somewhat advantageous position D
,than under different jurisprudence of some of the
countries in the world. The criminal justice administration
system in India places human rights and dignity for
human life at a much higher pedestal. An accused is
presumed to be innocent till proved guilty, the alleged E
accused is entitled to fairness and true investigation and
fair trial and the prosecution is expected to play balanced
role in the trial of a crime. The investigation should be
judicious, fair, transparent and expeditious to ensure
compliance to the basic rule of law. These are the F
fundamental canons of our criminal jurisprudence and
they are quite in conformity with the constitutional
mandate contained in Articles 20 and 21 of the
Constitution of India. A person is entitled to be tried
according to the law in force at the time of commission G
of offence. A person could not be punished for the same
offence twice and most significantly cannot be compelled
to be a witness against himself and he cannot be
deprived of his personal liberty except according to the
procedure established by law. The law in relation to H
134 SUPREME COURT REPORTS [2010] 4 S.C.R.

A investigation of offences and rights of an accused, in our
country, has developed with the passage of time. On the
one hand, power is vested in the investigating officer to
conduct the investigation freely and transparently. Even
the Courts do not normally have the right to interfere in
B the investigation. It exclusively falls in the domain of the
investigating agency. In exceptional cases the High
Courts have monitored the investigation but again within
a very limited scope. There, on the other a duty is cast
upon the prosecutor to ensure that rights of an accused
c are not infringed and he gets a fair chance to put forward
his defence so as to ensure that a guilty does not go scot
free while an innocent is not punished. Even in the might
of the State the rights of an accused cannot be
undermined, he must be tried in consonance with the
provisions of the constitutional mandate. The cumulative
0
effect of this constitutional philosophy is that both the
Courts ·and the investigating agency should operate in
their own independent fields while ensuring adherence
to basic rule of law. It is not only the responsibility of the
investigating agency but as well that of the Courts to
E ensure that investigation is fair and does not in any way
hamper the freedom of an individual except in
accordance with law. Equally enforceable canon of
criminal law is that the high responsibility lies upon the
investigating agency not to conduct an investigation in
F tainted and unfair manner. The investigation should not
prima facie be indicative of bias mind and every effort
should be made to bring the guilty to law as nobody
stands above law de hors his position and influence in
the society. [Para 82] [248-E-H; 249-A-F]
G
19.3. The aim of criminal justice is two-fold. Severely
punishing and really or sufficiently preventing the crime.
Both these objects can be achieved only by fair
investigation into the commission of crime, sincerely
H proving the case of the prosecution before the Court and
SIDHARTHA VASHISHT@ MANU SHARMA v. 135
STATE (NCT OF DELHI)
the guilty is punished in accordance with law. [Para 82] A
[250-B-C]

19.4. Historically but consistently the view of this
Court has been that an investigation must be fair and
effective, must proceed in proper direction in consonance
8
with the ingredients of the offence and not in haphazard
manner. In some cases besides investigation being
effective the accused may have to prove miscarriage of
justice but once it is shown the accused would be
entitled to definite benefit in accordance with law. The
investigation should be conducted in a manner so as to
c
draw a just balance between citizen's right under Articles
19 and 21 and expensive power of the police to make
investigation. [Para 83] [250-D-E]

19.5. The power of the police to inyestigate freely and D
fairly is well recognized and codified in law. In terms of
Section 170, the investigating officer when satisfied that
sufficient evidence or reasonable grounds exist he shall
forward accused under custody to a Magistrate along
with such weapons or articles which may be necessary E
to be produced before the Court. Section 172 of the Code
has a meaningful bearing on the entire investigation by
a police officer. [Para 84] [251-C-D]

19.6. Under Section 170, the documents during
investigation are required to be forwarded to the F
Magistrate, while in terms of Section 173 (5) all
documents or relevant extracts and the statement
recorded under Section 161 have to be forwarded to the
Magistrate. The investigating officer is entitled to collect
all the material, what in his wisdom is required for proving G
the guilt of the offender. He can record statement in terms
of Section 161 and his power to investigate the matter is
a very wide one, which is regulated by the provisions of
the Code. The statement recorded under Section 161 is
not evidence per se under Section 162 of the Code. The H
136 SUPREME COURT REPORTS [2010] 4 S.C.R.

A right of the accused to receive the documents/statements
submitted before the Court is absolute and it must be
adhered to by the prosecution and the Court must ensure
supply of documents/statements to the accused in
accordance with law. Under proviso to Section 162 (1) the
B accused has a statutory right of confronting the
witnesses with the statements recorded under Section
161 of the Code thus indivisible. Further, Section 91
empowers the Court to summon production of any
document or thing which the Court considers necessary
C or desirable for the purposes of any investigation,
inquiry, trial or another proceeding under the provisions
of the Code. Where Section 91 read with Section 243
says that if the accused is called upon to enter his
defence and produce his evidence there he has also
been given the right to apply to the .Court for issuance
0
of process for compelling the attendance of any witness
for the purpose of examination, cross-examination or the
production of any document or other thing for which the
Court has to pass a reasoned order. [Para 91] [255-F-H;
E 256-A-D]
19.7. The liberty of an accused cannot be interfered
with except under due process of law. The expression
'due process of law' shall deem to include fairness in trial.
The Court gives a right to the accused to receive all
F documents and statements as well as to move an
application for production of any record or witness in
support of his case. This constitutional mandate and
statutory rights given to the accused places an implied
obligation upon the prosecution (prosecution and the
G prosecutor) to make fair disclosure. The concept of fair
disclosure would take in its ambit furnishing of a
document which the prosecution relies upon whether
filed in Court or not. That document should essentially
be furnished to the accused and even in the cases where
H during investigation a document is bona fide obtained by
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE137
(NCT OF DELHI)

the investigating agency and in the opinion of the A
prosecutor is relevant and would help in arriving at the
truth, that document should also be disclosed to the
accused. The role and obligation of the prosecutor
particularly in relation to disclosure cannot be equated
under our law to that prevalent under the English System. B
But at the same time, the demand for a fair trial cannot
be ignored. It may be of different consequences where a
document which has been obtained suspiciously,
fraudulently or by causing undue advantage to the
accused during investigation such document could be c
denied in the discretion of the prosecutor to the accused
whether the prosecution relies or not upon such
documents, however in other cases the obligation to
disclose would be more certain. (Para 91) (256-D-H; 257-
A-C] D
19.8. Section 207 Cr.P.C. not only require or mandate
that the Court without delay and free of cost should
furnish to the accused copies of the police report, first
information report, statement, confessional statement of
the persons recorded under Section 161 whom the E
prosecution wishes to examine as witnesses, of course,
excluding any part of a statement or document as
contemplated under Section 173 (6) of the Code, any
other document or relevant extract thereof which has
been submitted to the Magistrate by the police under Sub F
Section 5 of Section 173. In contradistinction to the
provisions of Section 173, where the Legislature has
used the expression 'documents on which the
prosecution relies' are not used under Section 207 of the
Code. Therefore, the provisions of Section 207 of the G
Code will have to be given liberal and relevant meaning
so as to achieve its object. Not ~nly this, the documents
submitted to the Magistrate along with the report under
Section 173 (5) would deem to include the documents
which have to be sent to the Magistrate during the course H
138 SUPREME COURT REPORTS [2010] 4 S.C.R.

A of investigation as per the requirement of Section 170 (2)
of the Code. [Para 91] (257-B-F]

19.9. The right of the accused with regard to
disclosure of documents is a limited right but is codified
and is the very foundation of a fair investigation and trial.
8
On such matters, the accused cannot claim an
indefeasible legal right to claim every document of the
police file or even the portions which are permitted to be
excluded from the documents annexed to the report
under Section 173(2) as per orders of the Court. But
C certain rights of the accused flow both from the codified
law as well as from equitable concepts of constitutional
jurisdiction, as substantial variation to such procedure
would frustrate the very basis of a fair trial. To claim
documents within the purview of scope of Sections 207,
D 243 read with the provisions of Section 173 in its entirety
and power of the Court under Section 91 of the Code to
summon documents signifies and provides precepts
which will govern the right of the accused to claim copies
of the statement and documents which the prosecution
E has collected during investigation and upon which they
rely. It will be difficult for the Court to say that the accused
has no right to claim copies of the documents or request
the Court for production of a document which is part of
the general diary subject to satisfying the basic
F ingredients of law stated therein. A document which has
been obtained bonafidely and has bearing on the case
of the prosecution and in the opinion of the public
prosecutor, the same should be disclosed to the accused
in the interest of justice and fair investigation and trial
G should be furnished to the accused. Then that document
should be disclosed to the accused giving him chance
of fair defence, particularly when non-production or
disclosure of such a document would affect
administration of criminal justice and the defence of the
H accused prejudicially. The concept of disclosure and
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 139
(NCT OF DELHI)
duties of the prosecutor under the English System A
cannot, be made applicable to Indian· Criminal
Jurisprudence stricto senso at this stage. However, the
doctrine of disclosure would have to be given somewhat
expanded application. As far as the present case is
concerned, no prejudice had been caused to the right of B
the accused to fair trial and non-furnishing of the copy
of one of the ballistic reports had not hampered the ends
of justice. Some shadow of doubt upon veracity of the
document had also been created by the prosecution and ·
the prosecution opted not to rely upon this document. In c
these circumstances, the right of the accused to
disclosure has not received any set back in the facts and
circumstances of the case. The accused even did not
raise this issue seriously before the Trial Court [Para 92]
[257-G-H; 258-A-H; 259-A]
D
Shiv Kumar v. Hukam Chand and Anr. (1999) 7 SCC
467; Hitendra Vishnu Thakur and Others v. State of
Maharashtra and Others, (1994) 4 SCC 602; Zahira Habibul/a
H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC
158; Kashmeri Dev v. Delhi Administration and Anrs. JT E
1988 (2) SC 293; Sasi Thomas vs. State & Ors. (2007) 2 SCC
(Criminal) 72; State Inspector of Police vs. Surya Sankaram
Karri (2006) 3 SCC (Criminal) 225; T. T. Antony vs. State of
Kera/a (2001) 6 SCC 181; Nirma/ Singh Kah/on vs. State of
Punjab AIR 2009 SC 984; Habeeb Mohammad v. State of F
Hyderabad, A.l.R. 1954 S.C. 51; Khatri v. State of Bihar A.l.R.
1981 SC 1068; Malkiat Singh and Ors. v. State of Punjab
(1991) 4 SCC 341; Mukund Lal v. Union of India A.l.R. 1989
SC 144; Shamshul Kanwar v. State of U.P. A.l.R. 1995 SC
1748; State of Kera/a v. Babu (1999) 4 SCC 621 and State G
of Kamataka vs. K. Yarappa Reddy (1999) 8 SCC 715, relied
on.

R. v Ward (Judith Theresa) (1993) 2 All E.R. 577 and R
v. Preston & Ors. (1993) 4 All ER 638, referred to.
H
140 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 20.1. The evidence of the telephone calls in the
present case is admissible under Sections 8 and 27 of
the Indian Evidence Act. [Para 93] (259-8]

20.2. The details of the phone call show that the
accused were in touch with each other which resulted in
8
destruction of evidence and harboring. Thus the finding
of the trial Court that in the absence of what they stated
to each other is of no help to the prosecution is an
incorrect appreciation of evidence on record. A close
association is a very important piece of evidence in the
C case of circumstantial evidence. The evidence of phone
calls is a very relevant and admissible piece of evidence.
The details of the calls made by the various accused to
one another are available in Ex. PW-66/B, PW-66/D and
PW-66/C. [Para 96] (260-F-G]
D
21. The petitioner had adequate and competent legal
representation before the trial Court and leading
questions, if any, put by the prosecutor were objected to
by the defence and several questions were disallowed by
E the trial court. Furthermore, the finding of guilt of the
appellant by the High Court has not been on account of
any of the answers elicited to any such questions. It is
not as if every single leading question would invalidate
the trial. The impact of the leading questions, if any, has
F to be assessed on the facts of each case. [Para 97) (261-
E-F]

Varkey Joseph vs. State of Kera/a, 1993 Supp (3) SCC
745, distinguished.

G 22. The Police while filing the charge-sheet before the
Magistrate had enlisted Sanjay Mehtani's name in the list
of witnesses. This fact clearly shows that the prosecution
had the intention to examine Sanjay Mehtani as their
witness. Further, the said witness was summoned by the
H Court for examination vide orders dated 28.11.2001,
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 141
(NCT OF DELHI)
08.02.2002, 27 .11.2003 and 11.12.2003. The said A
sequence of events clearly show that the prosecution not
only wanted to examine him as a witness, but tried
serving him with the summons many times, but the same
could not be achieved as Sanjay Mehtani had by then
shifted to Hong Kong and was not staying in India. B
Therefore to contend that Sanjay Mehtani was
deliberately not examined by the Prosecution is
absolutely baseless and not founded on the basis of the
record. [Para 98] [262-8-E]

23.1A criminal trial is not an enquiry into the conduct
c
of an accused for any purpose other than to determine
whether he is guilty of the offence charged. In this
connection, that piece of conduct can be held to be
incriminatory which has no reasonable explanation
except on the hypothesis that he is guilty. Conduct which D.
destroys the presumption
.
of innocence can >1'
alone be
considered as material. (Para 100] ,.,
(263-DJ-···'

23.2. From the testimony of PW-20 and PW-24, it is
proved beyond reasonable doubt that A-1 after E
committing the murder of the deceased fled away from
the scene of occurrence. It is further proved from the
testimony of PW-100, PW-101, PW-87, PW-85 and PW-80
that from afternoon of 30.04.1999 search was made for
the black Tata Safari bearing Regn. No. CH-01-W-6535 F
and for A-1 in Bhadson, Kurukshetra, Chandigarh, his
farmhouse at Samalkha and Okhla, Delhi. It is also
proved that even after the seizure of vehicle on
02.05.1999 the search for A-1 continued and search was
made at Piccadilly Cinema, Piccadilly Hotel, his residence G
at Chandigarh, PGI Hospital where his father was
subsequently admitted. However, he was not found nor
anybody informed his whereabouts and it is only on
06.05.1999 that he had surrendered at Patiala Guest
House, Chandigarh in the presence of an advocate. The H
142 SUPREME COURT REPORTS [2010] 4 S.C.R.

A above evidence of the witnesses clearly establishes
beyond reasonable doubt that A-1 absconded after
committing the crime and surrendered on 06.05.1999 after
extensive searches were made. [Para 99] [262-G-H; 263-
A-C]
B
23.3. Thus, it has been proved beyond reasonable
doubt that A-1 absconded after the incident which is a
very relevant conduct u/s 8 of Evidence Act. [Para 100]
[263-G-H]
c Anant Chaintaman Lagu vs. State of Bombay AIR 1960
SC 500, relied on.

24.1. PW-100 and PW-101 deposed that on the early
morning of 05.05.1999 A-2 was arrested and he made a
0 voluntary disclosure vide Ex.PW 100/7 that on 29.04.1999
he had a talk with Alok Khanna over telephone and
thereafter a telephone call was received at about 8.30
p.m. from A-1. He has further disclosed that Alok Khanna
came to his house in Tata Sierra car no. MP 04V 2634. He
E has further disclosed that he and Alok Khanna went to
Qutub Colonnade in Alok Khanna's Tata Sierra bearing
No. MP-04-V-2634. A-1 surrendered on 06.05.1999 at 2.30
p.m. at Patiala Guest House, Chandigarh before lnspr.
(PW-87) and ASI (PW-80). After his arrest A-1 had made
four disclosure statements. The first was an oral
F disclosure made to lnspr. (PW 87) wherein he said that
he could recover the pistol from Ravinder Sudan at Mani
Majra. However, it was pointed out that the search of the
house at Chandigarh was taken and since the diary
containing the address of Ravinder Sudan could not be
G found, no recovery could be effected. On 07.05.1999, he
made a disclosure to lnspr. (PW-101) which was
recorded as Ex. PW 100/12. In the said disclosure, he
disclosed that he was using his younger brother Kartik's
Cellphone No. 9811096893 in making calls to his friends
H A-2, Alok Khanna, Amit Jhingan and others. He also
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 143
(NCT OF DELHI)
disclosed the phone Nos. of some of the co-accused and A
that he handed over his cell bearing No. 9811096893 to
Yograj Singh in Panchkula and can recover the same.
Pursuant to this disclosure of A-1 the mobile phone used
by him was recovered from accused Yograj Singh (Ex.PW
100/23). [Paras 101, 102] [264-A-G] B

24.2. The third disclosure is Ex. PW 100/Article-1
which was video recorded on 07.05.1999 itself after A-1
was produced before the Metropolitan Magistrate and
copies of which were duly supplied to the accused C
during trial. From the disclosure Ex PW 100/Article-1 there
were further discovery of facts admissible under Section
27 of the Evidence Act. Pursuant to the disclosures of A-
1 investigations were carried out and it was that the
accused were in close contact with each other over
phone and A-1 had made numbe·r of calls from the house D
of A-3 to his house in Chandigarh and to Harvinder
Chopra at Piccadilly. [Para 103] [264-H; 265-A-C]

24.3. The fourth disclosure of A-1 was recorded by
PW-101 wherein he had disclosed that Ravinder Sudan E
@ Titu having concealed the pistol, had gone to Manali
(HP) where he met his uncle Shyam Sunder and he very
well knew the place where they concealed the pistol and
that he could lead to Manali to recover the pistol used in
the incident. It further came on record that calls were F
made to USA to Ravinder Sudan. It may not be out of
place to mention that calls were exchanged between the
accused and made to USA were discovered pursuant to
disclosures made by the accused persons. [Para 104]
[265-C-E]
G
25.1. The witnesses PWs 1, 6, 20 and 24 have clearly
proved beyond reasonable doubt the identification of the
accused persons. PW-1 had met A-1 on the night of
29.04.1999 at Qutub Colonnade when he introduced
himself to PW-1 and they were about to exchange visiting H
144 SUPREME COURT REPORTS [2010] 4 S.C.R.

A cards when A-2 took him away towards the cafe. Both A-
2 and A-1 refused their TIP on 06.05.1999 and 07.05.1999
respectively before the Metropolitan Magistrate without
citing any credible reason. Thereafter, photo identification
was conducted in which they were duly identified by PW-
8 1. The said witness has also clearly identified the two of
them in the Court. [Para 105] (265-F-H; 266-A-B]

25.2. PW-6, has categorically stated that she
identified A-1 as the accused in the Police Station. She
C had seen accused in the police station on 08.05.1999 and
thus the same was after 07.05.1999 when he refused his
TIP. [Para 106] (266-8-C]

25.3. Further, PW-20 has categorically identified all
the four accused in the witness box and there is no cross
D examination of PW-20 to the effect that the photographs
of the accused were shown only in the police station.
Even, PW-24 has identified A-1 in the court and his
testimony also remains unshaken on this aspect. PW-30
has also clearly identified the other accused in the court
E and the photo identification with regard to them was
resorted after A-2 had refused TIP on 06.05.1999. [Para
106] (266-F-H; 267-A-B]

25.4. PW-2 had left for Kolkata and thereafter, photo
identification was got done when PW 76 went to Kolkata
F to get the identification done by picking up from the
photographs wherein he identified A-1 though he refused
to sign the same. However, in the court PW-2 refused to
recognize him. In any case, the factum of photo-
identification by PW-2 as witnessed by the concerned
G Officer is a relevant and an admissible piece of evidence.
[Para 107] (267-8-C]

25.5. As far as refusal of TIP by A-1 is concerned,
there is no justification in the stand of the defence that
H TIP was not held due to his photo or he himself being
SIDHARTHA VASHISHT@ MANU SHARMA v. 145
STATE (NCT OF DELHI)

shown to the witness. In this regard, it would be relevant A
to note that he had surrendered on 06.05.99 and on
07.05.99 he was produced in muffled face before the
Metropolitan Megistrate and the proceedings thereof are
recorded vide Ex PW-79/G wherein A-1 's contention for
refusal of TIP is that his photograph has appeared in B
newspapers and his photograph has been shown to the
witnesses and that he has been shown physically to the
witnesses. All the three contentions of A-1 are incorrect
and misconceived with regard to the appearance of the
photos in the newspapers. It was pointed out that in none c
of the newspapers is the photograph of A-1 shown. As a
matter of fact vide Ex. No. PW 101/15 photograph dated
06.05.1999 clearly shows that he is in muffled face. In the
absence of any defence refusal of TIP on this ground is
totally unjustified and. an adverse inference ought to be 0
drawn in this regard. [Para 11 O] [268-E-H; 269-A-B]

25.6. It is not disputed that the photograph ·of A-1 was
obtained from his farmhouse located in Samalkha on the
intervening night 30.04.1999 & 01.05.1999. However, it is
further in evidence of PW-87 that he went to Chandigarh E
and he took the photograph of A-1 for the purposes of
identification and it was with him till 06.05.1999. Thus the
photo of A-1 could not have been shown to any of the
witnesses because the witnesses were either in Delhi or
Kolkata not in Chandigarh. [Para 111] [269-0-E] F

25. 7. In the light of A-1 's refusal, the police had little
choice but to formally show the photo to the witnesses
and record their statement in that regard. Thus, firstly his
refusal is not justified on the ground that he has been G
shown to the witnesses, moreover, he was shown to the
witness only after his refusal of TIP so that it is verified
that he is the same person who is involved in the incident
and no adverse inference on this count can be taken
against the prosecution. [Para 111] [270-C-E]
H
146 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 25.8. Resort to photo identification was properly
taken by mixing the photograph of A-1 with number of
other photographs and asking the witnesses to pick up
the photograph of the person they had witnessed on the
fateful night and the morning thereafter i.e. 29/30.04.99.
B This mode of photo identification was resorted to vis-'-
vis PW-1 on 24.05.1999 at Delhi, PW-3 and PW-4 on
29.05.99 and PW-2 on 19.05.99 at Calcutta. Thus there is
no merit in the contention of the defense that the dock
identification was a farce as it was done for the first time
c in the Court. [Para 112] [270-F-H]
25.9. Even a TIP before a Magistrate is otherwise hit
by Section 162 of the Code. Therefore to say that a photo
identification is hit by section 162 is wrong. It is not a
substantive piece of evidence. It is only by virtue of
D section 9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in Court. The logic
behind TIP, which will include photo identification lies in
the fact that it is only an aid to investigation, where an
accused is not known to the witnesses, the 10 conducts
E a TIP to ensure that he has got the right person as an
accused. The practice is not born out of procedure, but
out of prudence. At best it can be brought under Section
8 of the Evidence Act, as evidence of conduct of a
witness in photo identifying the accused in the presence
F of an 10 or the Magistrate, during the course of an
investigation. [Para 113] [272-G-H; 273-A-B]

25.10. It cannot be urged by the defence merely in
order to suit his convenience that his statement may be
G treated as evidence and that all facts stated therein be
treated as true unless contradicted by the prosecution.
While answer given by the accused to question put under
Section 313 of the Code are not per se evidence because,
firstly, it is not on oath and, secondly, the other party i.e.,
the prosecution does not get an opportunity to cross-
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 147
(NCT OF DELHI)

examine the accused, it is nevertheless subject to A
consideration by the Court to the limited extent of drawing
an adverse inference against such accused for any false
answers voluntarily offered by him and to provide an
additional/missing link in the chain of circumstances.
[Para 125] (280-F-H; 281-A-B] 8

25.11. Regarding the contention that evidence of
each witness must be put to the accused, it must be
clarified that only the circumstances need to be put and
not the entire testimony. [Para 126] (281-B-C]
c
25.12. It is not necessary that the entire prosecution
evidence need to be put to the accused and answers
elicited from him/even if an omission to bring to the
attention of the accused an inculpatory material has
occurred that ipso facto does not vitiate the proceedings, o·
the accused has to show failure of justice. (Para 127] (283-
H; 284-A-B]

Umar Abdul Sakoor Sorathia vs. Intelligence Officer,
Narcotic Control Bureau, (2000) 1 SCC 138; Munshi Singh E
Gautam vs. State of M.P. (2005) 9 SCC 631 and State of
Punjab vs. Swaran Singh, (2005) 6 SCC 101, relied on.

George & Ors. vs. State of Kera/a & Anr. (1998) 4 SCC
605, held inapplicable.
F
N.J. Suraj vs. State (2004) 11 SCC 346; Laxmipat
Chararia vs. State of Maharashtra AIR 1968 SC 938; Hari
Nath & Anr vs. State of U.P. (1988) 1 SCC 14; Kanan & Ors
vs. State of Kera/a (1979) 3 SCC 319; Dana Yadav vs. State
of Bihar (2002) 7 SCC 295; Hate Singh Bhagar Singh vs. G
State of Madhya Bharat, AIR 1953 SC 468 and Ranvir Yadav
vs. State of Bihar, (2009) 6 SCC 595, distinguished.

Kartar Singh vs. Union of India (1994) 3 SCC 569; Hari
Nath & Ors vs. State of U.P. (1988) 1 SCC 14; Budhsen &
Others vs. State of U.P. (1970) 2 SCC 128; Malkhansing vs. H
148 SUPREME COURT REPORTS [2010] 4 S.C.R.

A State of MP., (2003) 5 SCC 746; Shivaji Sahabrao Bobade
vs. State of Maharashtra, (1973) 2 SCC 793; Mul/agiri Vajram
vs. State of A.P. 1993 Supp. (2) SCC 198; Vijayan vs. State
of Kera/a (1999) 3 SCC 54 and Harender Nath Chakraborty
vs. State of West Bengal, (2009) 2 SCC 758, referred to.
B
R vs. McCay (1991) 1 All ER 232, referred to.

"Proof of Guilt by Glanville Williams,' 3rd Edition and
'Eye Witness Identification in Criminal Cases' by Patrick M.
Wall, referred to.
c
26. This Court has time and again held that where an
accused furnishes false answers as regards proved
facts, the Court ought to draw an adverse inference qua
him and such an inference shall become an additional
0 circumstance to prove the guilt of the accused. In the
present case, the appellant-A-1 has, inter, has taken false
pleas in reply to question nos. 50, 54, 55, 56, 57, 64, 65,.
67, 72, 75 and 210 put to him under Section 313 of the
Code. [Para 130(i)] [284-G-H; 285-A-B]

E Peresadi vs. State of U.P., (1957) Crl.L.J. 328; State of
M.P. vs. Ratan Lal, AIR 1994 SC 458 and Anthony D'Souza
vs. State of Karnataka (2003) 1 SCC 259, referred to.

27. A-1 was holder of a pistol .22" bore P Berretta,
F made in Italy duly endorsed on his arms licence. It was
his duty to have kept the same in safe custody and to
explain its whereabouts. It is proved beyond reasonable
doubt on record that extensive efforts were made to trace
the pistol and the same could not be recovered. Moreover
G as per the testimony of PW-43, DSP/NCRB, RK Puram
there is no complaint or report of the said pistol. Thus an
adverse inference has to be drawn against A-1 for non-
explanation of the whereabouts of the said pistol.
Similarly another plea not supported by any positive
H evidence led by A-1 is that his pistol i.e. the weapon of
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 149
(NCT OF DELHI)

offence and the arms licence were recovered from his A
farm house on 30.04.1999, when in fact it is an established
fact that the pistol could not be recovered and that the
licence was surrenc;lered on 06.05.1999 at the time of his
arrest. It defies all logic and ordinary course of conduct
to allege that the prosecution has withheld the pistol after B
seizing the same from his farmhouse. The fact that he has
failed to produce the pistol, a presumption shall arise that
if he has produced it, the testing of the same would have
been to his prejudice. The burden thus shifts on him.
[Para 130(ii)] (285-C-G] c
28. It is the defence of A-1 that the Tata Safari was
taken away on 30.04.1999 from Karnal. No report or
complaint of the taking away of the vehicle or the theft
of the vehicle was ever lodged by the appellant/accused
and hence an adverse inference has to be drawn against D
the accused on this count as well. Further the conduct
of the appellant/accused in not taking any steps despite
opportunity in reporting the alleged taking away of Tata
Safari on 30.04.1999 and his licensed pistol on 01.05.1999
in itself is enough material to draw serious adverse E
inference against the accused. (Para 130(iii)] [285-H; 286-
A-B] .

29.1. On 03.05.2001, PW-2, was duly accompanied by
the proxy counsel, Ashok Bansal who had appeared for F
A-1 before the trial court wherein he clearly says that he
has come with a lawyer for his personal security. On
behalf of the State, it was contended that an adverse
inference against accused-A-1 has to be drawn for
influencing the witness. It may not be out of place to G
mention here that PW-2, who is the maker of the FIR and
complainant of the case, did not fully support ·the
prosecution case though he admitted having made
statement to the police and having signed the same. The
stand of the State cannot be ignored, on the other hand, H
150 SUPREME COURT REPORTS [2010] 4 S.C.R.

A it is acceptable. [Para 130(iv)] [286-D-F]

29.2. It is pointed out by the State that calls were
made from PCO, Ambala and PCO Hazrat Nizamuddin
which have been duly proved by the testimony of PW-36,
PW-16, PW-17. This conduct of accused-A-1 which is
8
relevant and admissible under Section 8 of the Indian
Evidence Act an adverse inference has to be drawn
against A-1 for this conduct. [Para 131] [286-G-H; 287-A-
8]

C 30. The specific evidence, especially of presence at
the time of incident, removal of Tata Safari, call details etc.
as well as the evidence of PWs 30 and 101, for conviction
under Section 201 read with Section 120-8 IPC against
the other two appellants, namely, A-2 and A-3 have
D already been discussed. This court is satisfied that the
High Court, on appreciation of the relevant materials,
found against them and convicted accordingly. On
analysis of all the materials, this Court agrees with their
conviction and sentence. [Para 132] [287-8-C)
E
31.1. The higher Courts in exercise of their appellate
or original jurisdiction may find patent errors of law or
fact or appreciation of evidence in the judgment which
has been challenged before them. Despite this, what is
F of significance is that, the Courts should correct the error
in judgment and not normally comment upon the judge.
The possibility of taking a contrary view is part of the
system. The judicial propriety and discipline demand that
strictures or lacerating language should not be used by
the higher Courts in exercise of their appellate or
G supervisory jurisdiction. Judicial discipline requires that
errors of judgments should be corrected by reasons of
law and practice of passing comments against the lower
courts needs to be deprecated in no uncertain terms.
Individuals come and go but what actually stands forever
H is the institution. [Para 133] [287-D-G]
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 151
(NCT OF DELHI)

31.2. In the present case the High Court in its A
judgment, on the one hand, explicitly referred to certain
criticism/comments/remarks made by the trial Judge
against the investigating agency, and observed that they
were uncalled for and that they should have been
avoided. But, on the other hand, the Division Bench itself B
while criticizing the reasoning in the judgment under
appeal made certain sweeping remarks against _the trial
Judge. These are criticism of the Judge per se and could
have been avoided easily by the Division Bench of the
High Court. It is also desirable, that the language which c
may imply an allegation of suspicion in the performance
of function of the Court should be carefully examined and
unless it is absolutely established on record, comments
should be avoided. [Paras 134; 135) [287-G-H; 288-A-C]

31.3. In the instant case, the Division Bench could D
have avoided making such observations which directly
or impliedly indicates towards impropriety in the
functioning of the Court, appreciation of evidence by the
Judge and/or any other ancillary matter. The content and
merit of the judgment would have remained unaffected E
even if such language or comments were not made
against the learned trial Judge. The respect of judiciary
and for the judkiary, is of paramount consideration. Every
possible effort should be made and precaution taken
which will help in preservation of public faith and F
individual dignity. A judicial consensus would require that
the judgment should be set aside or affirmed as the case
may be but preferably without offering any undesirable
comments, disparaging remarks or indications which
would impinge upon the dignity and respect of judicial G
system, actus curiae neminem gravabit. Despite exercise
of such restraint, if, in a given case, the Court finds
compelling reasons for making any comments in that
event it will be in consonance with the basic rule of law
and adherence to the principles of natural justice that H
152 SUPREME COURT REPORTS [2010] 4 S.C.R.

A view point of the concerned Judge should also be invited.
[Para 143) [293-F-H; 294-A-B]

31.4. In view of the above, this Court directs
expunction of all remarks made by the Trial Judge against
the prosecution and by the Division Bench against the
8
Trial Judge. [Para 144) [294-C]

AM. Mathur vs. Pramod Kumar Gupta & Ors. (1990) 2
SCC 533; 'K' A Judicial Officer (2001) 3 SCC 54; Zahira
Habibul/a H. Sheikh & Anr. vs. State of Gujara(.& Ors. (2004)
C 4 SCC 158; Samya Sett vs. Shambhu Sarkar & Anr. (2005)
6 SCC 767; Parkash Singh Teji vs. Northern India Goods
Transport Company Private Limited and Another, (2009) 12
SCC 577; Alok Kumar Roy vs. Dr. S.N. Sharma (1968) 1
SCR 813 and State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC
D 566, relied on.

Cardozo: "Nature of the Judicial Process'; referred to.

32.1. There is danger, of serious risk of prejudice if
the media exercises an unrestricted and unregulated
E freedom such that it publishes photographs of the
suspects or the accused before the identification parades
are constituted or if the media publishes statements
which outrightly hold the suspect or the accused guilty
even before such an order has been passed by the Court.
F Despite the significance of the print and electronic media
in the present day, it is not only desirable but least that
is expected of the persons at the helm of affairs in the
field, to ensure that trial by media does not hamper fair
investigation by the investigating agency and more
· G importantly does not prejudice the right of defence of the
accused in any manner whatsoever. It will amount to
travesty of justice if either of this causes impediments in
the accepted judicious and fair investigation and trial.
[Paras 147, 148) [294-G-H; 295-A-B]
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 153
(NCT OF DELHI)

32.2. In the instant case, certain articles and news A
items appearing in the newspapers immediately after the
date of occurrence, did cause certain confusion in the
mind of public as to the description and number of the
actual assailants/suspects. It is unfortunate that trial by
media did, though to a very limited extent, affect the B
accused, but not tantamount to a prejudice which should
weigh with the Court in taking any different view. The
freedom of speech protected under Article 19 (1) (a) of the
Constitution has to be carefully and cautiously used, so
as to avoid interference in the administration of justice c
and leading to undesirable results in the matters sub
judice before the Courts. [Para 149) [295-C-E)

32.3. In the present case, various articles in the print
media had appeared even during the pendency of the
matter before the High Court which again gave rise to D
unnecessary controversies and apparently, had an effect
of interfering· with the administration of criminal justice.
This Court would certainly caution all modes of media to
extend their cooperation to ensure fair investigation, trial,
defence of accused and non interference in the E
administration of justice in matters sub judice. [Para 152)
[296-D-E]

R.K. Anand v. Delhi High Court (2009) 8 SCC 106; M.P.
Lohia v. State of W.B. & Anr. (2005) 2 SCC 686 and Anuku/ F
Chandra Pradhan v. Union of India & Ors. (1996) 6 SCC 354,
relied on.

P. C. Sen In Re: AIR 1970 SC 1821 and Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express 1988 (4)
SCC 592, referred to. G

33. The prosecution has established its case beyond
doubt against the appellants and this Court is in
agreement with the conclusion arrived at by the High
Court, consequently, all the appeals are devoid of any H
154 SUPREME COURT REPORTS [2010] 4 S.C.R.

A merit. [Para 154] [298-F-G]

Case Law Reference:

(1997) 1 sec 677 referred to Para 11

B (2008) 1o sec 450 referred to Para 11

(1992) 2 sec 105 referred to Para 12

(20001 4 sec 484 referred to Para 12

c AIR 1964 SC 221 distinguished Para 36

AIR 1945 PC 18 distinguished Para 36

(1955) SCR 1150 referred to Para 37

D AIR 1965 Guj 143 held per incuriam Para 38

(2003) s sec 115 held inapplicable Para 39

(1984) 4 sec 83 relied on Para 40

E (1970) 2 sec 113 relied on Para 40

(1995) 4 sec 392 relied on Para 40

(2004) 12 sec 336 referred to Para 40

F (1994) 2 sec 685 referred to Para 40

AIR 1947 PC 75 referred to Para 40

AIR 1965 Cal. 348 referred to Para 40

G AIR 1965 Guj. 143 referred to Para 40

(2007) 13 sec 501 relied on Para 41

(2001) 4 sec 375 relied on Para 54

H (1978) 4 sec 371 referred to Para 58
SIDHARTHA VASHISHT@ MANU SHARMA v. 155
STATE (NCT OF DELHI)
(2003) 10 sec 670 distinguished Para 59 A

(2005) 3 sec 689 distinguished Para 60

(2002) 1 sec 334 relied on Para 63

(2004) 13 sec 219 relied on Para 63 B
(1992) 3 sec 106 relied on Para 63

AIR 1961 Calcutta 359 referred to Para 66

AIR 1981 SC 1036 referred to Para 69 c
(1999) 1 sec 467 relied on Para 76

(1994) 4 sec 602 relied on Para 76

(2004) 4 sec 158 relied on Para 77 D
(1993) 2 All E.R. 577 referred to Para 80

(1993) 4 All ER 638 referred to Para 81

JT 1988 (2) SC 293 relied on Para 82 E
(2007) 2 SCC(Criminal) 72 relied on Para 83
(2006) 3 sec

(Criminal) 225 relied on Para 83
F
(2001) 6 sec 181 relied on Para 83

AIR 2009 SC 984 relied on Para 83

A.l.R. 1954 S.C. 51 relied on Para 86
G
A.l.R. 1981 SC 1068 relied on Para 86

(1991) 4 sec 341 relied on Para 88
A.1.R. 1989 SC 144 relied on Para 89
H
156 SUPREME COURT REPORTS [2010] 4 S.C.R.

A A.LR. 1995 SC 1748 relied on Para 90

(1999) 4 sec 621 relied on Para 90

(1999) 8 sec 715 relied on Para 90

B 1993 Supp (3) sec 745 distinguished Para 97

AIR 1960 SC 500 relied on Para 100

(1991) 1 All ER 232 referred to Para 107

c (2000) 1 sec 138 relied on Para 113

(1994) 3 sec 569 referred to Para 113

(1988) 1 sec 14 referred to Para 114

D (1970) 2 sec 128 referred to Para 114

(2003) 5 sec 746 . referred to Para 115

(2005) 9 sec 631 relied on Para 115

E (1973) 2 sec 793 referred to Para 116

1993 Supp. (2) sec 198 referred to Para 117

(2004) 11 sec 346 distinguished Para 118

F AIR 1968 SC 938 dis ting u ished Para 119

(1988) 1 sec 14 distinguished Para 120

(1979) 3 sec 319 distinguished Para 121

G (2002) 1 sec 295 distinguished Para 122

(1999) 3 sec 54 referred to Para 123

(1998) 4 sec 605 held inapplicable Para 124

H AIR 1953 SC 468 dis ting u ished Para 125
SIDHARTHA VASHISHT@ MANU SHARMA v. 157
STATE (NCT OF DELHI)
(2005) 6 sec 101 relied on Para 126 A

(2009) 2 sec 758 referred to Para 127

(2009) 6 sec 595 distinguished Para 129

(1957) Crl.L.J. 328 referred to Para 130 B

AIR 1994 SC 458 referred to Para 130

(2003) 1 sec 259 referred to Para 130

(1990) 2 sec 533 relied on Para 136 c
(2001) 3 sec 54 relied on Para 137

(2004) 4 sec 158 relied on Para 138

(2005) 6 sec 767 relied on Para 139• D

(2009) 12 sec 577 relied on Para 140

(1968) 1 SCR 813 relied on Para 141

(1986) 4 sec 566 relied on Para 142 E

AIR 1970 SC 1821 referred to Para 146

1988 (4) sec 592 referred to Para 146

(2009) 8 sec 106 relied on Para 150 F

(2005) 2 sec 686 relied on Para 150

(1996) 6 sec 354 relied on Para 151

CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal G
No. 179 of 2007.

From the Judgment & Order dated 18.12.2006 &
20.12.2006 of the High Court of Delhi at New Delhi in Criminal
Appeal No. 193 of 2006.
H
158 SUPREME COURT REPORTS [2010] 4 S.C.R.

A WITH
Criminal Appeal Nos.157 & 224 of 2007.

Gopal Subramaniam, SG, Ram Jethmalani, Pravin, H.
Parekh, Harish Ghai, Lata Krishnamurti, P.R. Mala, Saurabh
B Ajay Gupta, Bansuri Swaraj, Pranav Diesh, T. Cheema, Mazag
Andrabi, Somanadri Goud, Bhupinder Ghai, Nitin T., E.R.
Kumar, Lalit Chauhan, Andrabi, Rukhmini Bobde, Rajat N.,
Sameer Parekh, Parekh & Co., Nitin Sangra, Gaurav Agarwal,
Sachin Dev Sharma, Sanjeev Manan, Dinesh Sharma, Hakikat
C Yadav, Ranbir Yadav, Jay Kishore Singh, Swetha, Majumdar,
Shyam B. Namdar, Subramanium Prasad, 8.0. Vivek, Balji
Srinivasan, P. Kakra, Madhusmita Bora, Charudatta
Mahindrakar, T.V.S. Raghavendra Sreyas, Mukul Gupta,
Satyaram, Ambuj Agrawal, Nikhil Nayyar, Rajat Katya!, Tanmay
D Mehta, Vibhore Garg, Sangram Singh, Anand Verma, Anagha
Narayan, Mamta Dhody Kalra, Intervenor-in-person for the
appearing parties.

The Judgment of the Court was delivered by
E P. SATHASIVAM, J. 1. These statutory appeals are filed
under Section 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 and under Section
379 of the Criminal Procedure Code against the final judgment
and order dated 18/20.12.2006 passed by the High Court of
F Delhi in Criminal Appeal No. 193 of 2006 whereby the High
Court reversed the order of acquittal dated 21.02.2006 passed
by the Additional Sessions Judge, Delhi, in Sessions Case No.
105 of 2001 and convicted Sidhartha Vashisht @ Manu
Sharma (appellant in Crl. A. No. 179 of 2007) ~under Section
G 302, 201/1208 IPC and Section 27 of the Arms Act and
sentenced him to undergo imprisonment for life for the offence
under Section 302 IPC together with a fine of Rs.50,000/- to
be paid to the family of the victim and in default of payment of
fine, to undergo further imprisonment for three years and also
H sentenced him to undergo imprisonment for four years for the
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 159
(NCT OF DELHI) [P. SATHASIVAM, J.]
offence under Section 27 of the Arms Act with a fine of A
Rs.2000/- and in default to further undergo imprisonment for
three months. He was further sentenced to undergo
imprisonment for four years for the offence under Section 201/
1208 IPC together with a fine of Rs. 2,000 and, in default, to
further undergo imprisonment for three months. The High Court 8
also sentenced Amardeep Singh Gill @Tony Gill (appellant in
Crl.A. No. 157/2007) and Vikas Yadav (appellant in Crl.
A.No.224/2007) to undergo rigorous imprisonment for four
years and a fine of Rs.2000/- each and, in default of payment
of fine, to further undergo imprisonment for three months under C
Section 201/1208 IPC.

2. The case of the prosecution:

(a) On night intervening 29-30.04.1999, a 'Thursday Party'
was going on at Qutub Colonnade at "Once upon a time" o
restaurant also called "Tamarind Cafe". The liquor was being
served by the bartenders, namely, Jessica Lal (since deceased)
and one Shyan Munshi (PW-2). At about 2.00 a.m., Sidhartha
Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007)
along with his friends came there and asked for two drinks. The E
waiter did not serve him liquor as the party was over. Jessica
Lal and Malini Ramani (PW-6), who were also present there,
tried to make him understand that the party was over and there
was no liquor available with them. On refusal to serve liquor,
the appellant took out a pistol and fired one shot at the roof and F
another at Jessica Lal which hit near her left eye as a (esult of
which she fell down. 8eena Ramani (PW-20), who was present
there, stopped the appellant and questioned him as to why he
had shot Jessica Lal and demanded the weapon from him but
he did not hand over the pistol and fled away. Jessica Lal was
rushed to Ashlok Hospital from where she was shifted to Apollo G
Hospital. On 30.04.1999, in the early morning hours, Jessica
Lal was declared brought dead at Apollo Hospital.

(b) On the night intervening 29/30.04.1999 at 2.20 a.m.,
DD Entry No. 41 A (Ex. PW-13/A) was recorded at Police H
160 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Station Mehrauli which disclosed a shooting incident at H-5/6
Qutub Colonnade. A copy of the said DD entry was handed over
to SI Sharad Kumar (PW-78) who along with Ct. Meenu Mathew
left for the spot. Near about the same time, copy of the said
DD entry was also given to SI Su nil Kumar (PW-100) who along
8 with Ct. Subhash also left for the spot. On reaching the spot,
PW-78 found that the injured had been removed to Ashlok
Hospital and the floor of the Restaurant was found to be wet.
SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78)
at the spot to guard the same and proceeded to Ashlok Hospital
C along with Ct. Subhash. The SHO Police Station Mehrauli,
Inspector S.K. Sharma (PW-101) along with his team also left
the Police Station vide DD Entry No. 43 A and reached the spot
and deputed one Home Guard Shravan Kumar (PW 30) at the
entrance of 'Qutub Colonnade' to guard the vehicles. On
reaching Ashlok Hospital, PW-100 met Beena Ramani (PW-
D 20), who is the owner of the Restaurant, and enquired about
. the incident but she asked him to talk to Shyan Munshi (PW-2)
saying that he was inside and he knew everything. PW-100 then
recorded the statement of PW-2 and made an endorsement
on the same for the registration of the case under Section 307
E IPC and handed over it to Ct. Subhash to be carried to the
police station, Mehrauli. At about 4.00 a.m .. FIR No. 287/99 was
registered at the police station, Mehrauli. In the meantime,
Jessica Lal had been shifted to Apollo Hospital. When SI Sunil
Kumar came back to the spot along with PW-2, PW 30
F informed them about the lifting of one black Tata Safari from
the spot. On inspection of the site, two empty cartridges were
seized and, in the meantime, a supplementary statement of
PW-2 was also recorded by PW-100. At about 5.45 a.m., PW-
100 received an information by Ct. Satyavan intimating him
G about the death of Jessica Lal at Apollo Hospital. Charge under
Section 302 IPC/201/120 B IPC and under Section 27 of the
Arms Act has been framed against the accused Sidhartha
Vashisht@ Manu Sharma, charge under Section 201/1208 IPC
has been framed against accused Vikas Yadav, Amardeep
H Singh Gill @ Tony Gill and Alok Khanna, charge under Section
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 161
(NCT OF DELHI) [P. SATHASIVAM, J.]

212 IPC has been framed against Harvinder Chopra, Raja A
Chopra, Vikas Gill @ Ruby Gill and Yograj Singh and charge
under Section 201/212 IPC against Shyam Sunder Sharma. At
about 7. 00 a. m. PW 100 recorded the statement of the
Manager (PW-47), Waiter (PW-46) and Beena Ramani (PW-
20) - the owner of the Restaurant. B

(c) The post mortem was conducted at about 11.30 a.m.
at the All India Institute of Medical Sciences on the same day
i.e. 30.04.1999. In the meantime, at about 11.00 a.m., SI Pankaj
Malik (PW-85) had been sent to Chandigarh to secure the C
black Tata Safari and to arrest the appellant. PW-100 recorded
the statements of the witnesses. On 30.04.1999 at about 4.15
p.m., an FIR was registered against Malini Ramani (PW-6),
Beena Ramani (PW-20) and George Mailhot (PW-24) under
Sections 61/68/1/14 of the Punjab Excise Act. At about 8.30 D
p.m., PW-100 handed over the investigation to SHO S.K.
Sharma (PW-101 ). On the night intervening 30.04.1999/
01.05.1999, at about ia.m., the police raided the farm house
of the appellant and on search being conducted seized a
photograph of the appellant. On 02.05.1999, a list of invited
guests was prepared by PW-24. On the same day, around E
10.00 p.m., PW-101, got an information that a black Tata Safari
has been found by the U.P. Police (Sector 24, Noida Police
Station) and on the next day PW-101 went to Noida Police
Station and seized the said black Tata Safari. On 05.05.1999
at about 2.30 a.m., Amardeep Singh Gill @Tony Gill and Alok F
Khanna were arrested and from their alleged disclosure
statements, the involvement of Sidhartha Vashisht @ Manu
Sharma was confirmed. On the same day, Inspector Raman
Lamba (PW 87) who was in Chandigarh with his team intimated
the lawyer of the accused- appellant that Manu Sharma is G
required in the case. On receipt of the information, on
06.05.1999, the appellant surrendered before PW-87 and was
later arrested at about 2.20 p.m. and brought to Delhi. On
07 .05.1999, the police produced the appellant before the
Metropolitan Magistrate and sought police remand for effecting H
162 SUPREME COURT REPORTS [2010] 4 S.C.R.

A recovery of the alleged weapon of offence. An application for
conducting Test Identification Parade (TIP) of the appellant was
also moved. Thereafter, the appellant was remanded to five
days police custody till 12.05.1999 and thereafter on
12.05.1999 extended till 17.05.1999 on the application of the
B 1.0., but on 15.05.1999, the appellant's remand was preponed
from 17.05.1999 to 15.05.1999. On 16.05.99, the appellant was
sent to judicial custody. On 30.05.1999, the accused-Vikas
Yadav was also arrested. After the completion of investigation,
the other accused persons were also arrested.
c (d) On 03.08.1999, charge sheet was filed against ten
accused persons. On 23.11.2000, the Additional Sessions
Judge framed charges against the appellant/Manu Sharma
under Sections 302, 201 read with 120 B IPC and Section 27
of the Arms Act, accused Amardeep Singh Gill was charged
D under Section 120 read with Section 201 IPC, accused Vikas
Yadav was charged under Section 120 read with 201 IPC as
also Section 201 read with 34 IPC, accused Harvinder Chopra,
Vikas Gill, Yograj Singh and Raja Chopra under Section 212
IPC and accused Alok Khanna, Shyam Sunder Sharma and
E Amit Jhingan were discharged of all the offences. In 2000/2001,
Revision Petition No. 596 of 2000 was preferred by the
prosecution before the High Court of Delhi praying for the
framing of charge against the accused persons and setting
aside the discharge of Alok Khanna, Shyam Sunder Sharma
F and Amit Jhingan. Revision Petitions were also preferred by
the accused persons against the framing of the charges against
them. The High Court disposed of all the revision petitions filed
by the accused persons by a common order dated 13.03.2001.
On 12.04.2001, charges as per the orders of the High Court
G were framed and some of the charges as framed earlier were
maintained. Charges under Section 1208/201 IPC were
framed against accused Vikas Yadav, Amardeep Singh Gill @
Tony Gill and Alok Khanna and charges under Sections 201 and
212 IPC were framed against accused Shyam Sunder Sharma.
H Against the rest of the accused, the charges as framed on
SIDHARTHA VASH~SHT@ MANU SHARMA v. STATE 163
(NCT OF DELHI) [P. SATHASIVAM, J.]
23.11.2000 by the trial Court were maintained. Trial began in A
May, 2001 against nine accused. In all, 101 witnesses were
examined by the prosecution and two court witnesses were also
examined.

(e) On fa.12.2001, the case registered against Malini 8
Ramani, Beena Ramani and George Mailhot under the Punjab
Excise Act was disposed of with a direction to pay a fine of
Rs.200/- each. On 28.01.2002, the appellant was released on
interim bail for a period of six weeks by the order of the High
Court dated 25.01.2002 with a direction to surrender after the C
expiry of the same. In compliance with the conditions of interim
bail, the appellant surrendered on 11.3.2002 but again sought
for and granted ·interim bail for a period of ten weeks starting
from 20.03.2002. During the period from March 2002 to
February 2006, the appellant was enlarged on bail on different
occasions by various orders of the High Court. On one D
occasion, against the dismissal of the bail application by the
High Court on 11.11.2003, the appellant filed a special leave
petition before this Court which was dismissed by this Court
on 02.12.2003. On 21.02.2006, after trial, the Additional
Sessions Judge acquitted all the nine accused including the E
appellant-Manu Sharma.

(f) Challenging the acquittal, the prosecution filed an
appeal before the High Court being Crl. Appeal No. 193 of
2006. On 20.12.2006, the High Court vide the impugned order, F
convicted and sentenced the appellants, as mentioned in
paragraphs above. Challenging the said order of the High
Court, all the three appellants filed above mentioned separate
appeals before this Court. All the appeals were heard together
and are being disposed of by this common judgment. G

3. Heard Mr. Ram Jethmalani, learned senior counsel for
Sidhartha Vashisht @ Manu Sharma, appellant in Crl. A. No.
179 of 2007, Mr. Nitin Sangra, learned counsel for Amardeep
Singh Gill @Tony Gill, appellant in Crl.A. No. 157/2007, Mr.
Ranbir Yadav, learned counsel for Vikas Yadav, appellant in Crl. H
164 SUPREME COURT REPORTS [2010] 4 S.C.R.

A A.No.224/2007, Mr. Gopal Subramanium, learned Solicitor
General of India for Respondent-State in all the three appeals
and Mrs. Marnia Dhody Kalra, intervenor, who appeared in
person and pleaded for acquittal of the appellant-Manu
Sharma.
B
Contentions of the appellants/accused:

4. Mr. Ram Jethmalani, after taking us through all the oral
and documentary evidence relied on by the prosecution as well
as the defence, the order of the Trial Judge acquitting all the
C appellants from the charges leveled against them and the
impugned order of the High Court reversing the order of
acquittal raised the following contentions:-

(a) The appellant (Sidhartha Vashisht @ Manu Sharma)
0 . has been denied his fundamental right to free and fair trial which
is guaranteed under Article 21 of the Constitution of India.

(b) On the very first day of investigation i.e. on 30.04.1999,
an FIR was filed against Malini Ramani PW-6, Beena Ramani
PW-20. and George Mailhot PW-24 under the Punjab Excise
E Act in order to control these witnesses and to pressurise them
to support the prosecution case. After their deposition, the
Excise case was pre-paned and disposed of by imposing a
fine of paltry amount.

F (c) Malini Ramani PW-6, Beena Ramani PW-20 and
George Mailhot PW-24 were frequently shown the photograph
of the appellant and he was paraded before them.

(d) The finding of the High Court that Sidhartha Vashisht
G @ Manu Sharma took out his pistol and first fired at the ceiling
and then at Jessica Lal is based on no evidence.

(e) Three Ballistic Experts have concurred that empty
cartridges have been fired from two different weapons. Their
Report support the statement-in-chief of Shyan Munshi PW-2.
·H There is no evidence on record that both the shots were fired
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 165
(NCT OF DELHI) [P. SATHASIVAM, J.]
from one weapon. A

(f) The High Court has wrongly placed reliance upon the
testimony of Deepak Bhojwani PW-1, even though, he was not
present in the party and he was planted by the prosecution. The
evidence of three family members Malini Ramani PW-6, Beena 8
Ramani PW-20 and George Mailhot PW-24 is inadmissible in
law.

(g) The prosecution never claimed Beena Ramani PW-20
as an eye-witness, however, the High Court erroneously held
her as eye-witness to the occurrence. C

(h) High Court failed to consider the evidence of Madan
Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47.

(i) The High Court committed an error in relying upon the
0
testimony of George Mailhot PW-24 to corroborate the
evidence of Beena Ramani PW-20.

U) The First Information Report recorded on the statement
of Shyan Munshi PW-2 is not an FIR but a signed statement.
The High Court wrongly discarded his (PW-2) ocular version. E
However, the Trial Court assigned good reasons for accepting
his evidence.

(k) The High Court's observation on Ballistic Experts from
CFSL is erroneous.
F
(I) The High Court committed an error in disbelieving P.S.
Manocha PW-95.

(m) There is no acceptable evidence/material to connect
Tata Safari to the alleged occurrence. G

(n) Shravan Kumar PW-30 is a planted witness, and there
is no need for him to accompany PW-1 to the spot when he
was assigned other official work.
H
166 SUPREME COURT REPORTS [2010] 4 S.C.R.

A (o) A rough site plan which was prepared in the early hours
of 30.04.1999 (Ex. PW 100/2) clearly shows the absence of
Beena Ramani PW-20 at the alleged place of occurrence, if
she was an eye-witness, this would have been done.

(p) The Public Prosecutor failed to adhere the basic
8
principles in conducting criminal case.

(q) The High Court committed a grave error by reversing
the well considered order of acquittal by the Trial Court and on
conjunctures the High Court interfered with the acquittal and
C imposed sentence which is not permissible under law.

5. The other two learned counsel submitted that the
prosecution failed to establish the charge in respect of
Amardeep Singh Gill and Vikas Yadav under Section 201 read
o with 1208 of the IPC.

6. The intervenor supported the case of the appellant-Manu
Sharma and prayed for his acquittal.

Submissions on behalf of the State:
E
7. On the other hand, Mr. Gopal Subramanium, learned
Solicitor General, after taking us through the entire materials,
submitted that the Trial Judge has committed an error in
acquitting all the accused and the High Court being an
F Appellate Court is fully justified in re-analysing the evidence and
convicting all the three accused-appellants and awarding
appropriate sentence. After pointing out oral, documentary
evidence and other legal principles, he submitted that the
conviction and sentence awarded by the High Court are
G acceptable and no interference is called for by this Court, and
prayed for dismissal of all the three appeals.

8. We have carefully considered all the materials placed
and the rival contentions.

H 9. Points for consideration in these appeals are:-
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 167
(NCT OF DELHI) [P. SATHASIVAM, J.]

(a) Whether the prosecution has established its case A
beyond reasonable doubt against all the three accused?

(b) Whether the trial Court is justified in acquitting all the
accused in respect of charges leveled against them?

(c) Whether the impugned order of the High Court imposing B
punishment when the trial Court acquitted all the accused in
respect of the charges leveled against them is sustainable?

10. It is not in dispute that the following charges were
framed against the appellants:- c
3.No. Name of Accused Accused Charges Framed

1. Sidhartha Vashist 1 302 IPC, 27 Arms
@ Manu Sharma Act, 201 r/w 120B D
IPC
2. Vikas Yadav 2 201 r/w 120B 1IPC

E
3. Amardeep Singh Gill 3 201 r/w 120B IPC

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

11. Before analyzing the prosecution case, the defence F
plea and the arguments of the respective counsel, let us find
out the scope of the Appellate Court in reversing the order of
acquittal by the Trial Court. Mr. Ram Jethmalani, learned senior
counsel for the appellant-Manu Sharma, by drawing our
attention to the principles laid down by this Court in Madan Lal G
vs. State of J&K, (1997) 7 SCC 677 submitted that in an
appeal against acquittal, it is incumbent on the Appellate Court
to give adequate reasons for reversal. By citing Ghurey Lal vs.
State of Uttar Pradesh (2008) 10 SCC 450, he further
contended that the High Court could not have reversed the
H
168 SUPREME COURT REPORTS [2010) 4 S.C.R.

A judgment of the Trial Court inasmuch as the view taken by the
Trial Court was plausible view based on the evidence on record,
hence the finding of the Trial Court could not have been
overturned.

12. Mr. Gopal Subramanium, learned Solicitor General, by
8
relying on the decision of this Court in Chandra Mohan Tiwari
vs. State of MP., (1992) 2 SCC 105 submitted that where the
High Court's conclusion was based on evaluation of evidence
which was not erroneous or perverse and was based on an
independent analysis of evidence which fully establishes the
C case of the prosecution as against the trial Court's conclusion,
there is no reason much less the compelling reason to disagree
with the finding of guilt by the High Court. He also pressed into
service another decision of this Court in Jaswant Singh vs.
State of Haryana, (2000) 4 SCC 484.
D
13. The following principles have to be kept in mind by the
Appellate Court while dealing with appeals, parti_cularly, against
the order of acquittal:

(i) There is no limitation on the part of the Appellate
E
Court to review the evidence upon which the order
of acquittal is found.

(ii) The Appellate Court in an appeal against acquittal
can review the entire evidence and come to its own
F conclusions.

(iii) The Appellate Court can also review the Trial Court's
conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the
G State, it is the duty of the Appellate Court to marshal
the entire evidence on record and by giving cogent
and adequate reasons set aside the judgment of
acquittal.

H
SIDHARTHA VASHISHT@ MANU SHARMA v. 169
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
•
(v) An order of acquittal is to be interfered only when A
there are "compelling and substantial reasons" for
doing so. If the order is "clearly unreasonable", it
is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the 8
Appellate Court is first required to seek an answer
to the question whether finding of the Trial Court are
palpably wrong, manifestly, erroneous or
demonstrably unsustainable. If the Appellate Court
answers the above question in the negative the C
order of acquittal is not to be disturbed. Conversely,
if the Appellate Court holds, for reasons to be
recorded, that the order of acquittal cannot at all be
sustained in view of any of the above infirmities, it
can reappraise the evidence to arrive at its own
conclusion. D

(vii) When the Trial Court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declaration/report of
Ballistic Experts etc., the Appellate Court is E
competent to reverse the decision of the Trial Court
depending on the materials placed.

In the light of the above principles, let us examine the impugned
judgment of the High Court with reference to the materials
F
placed by the prosecution and the defence.

14. At the outset, Mr. Ram Jethmalani, learned senior
counsel highlighted the role of public prosecutor in conducting
prosecution for which he relied on the procedures being
followed in United Kingdom and also cited certain passages G
from the books of foreign authors. In addition to the same, he
highlighted how the appellant-Manu Sharma was prejudiced by
the wild allegations that were carried by Media, both print and
electronic. Since we intend to concentrate on the merits of the
case, we discuss and give our reasoning at the appropriate H
170 SUPREME COURT REPORTS (2010] 4 S.C.R.

A •
place or at the end of our order.

15. Presence of accused Manu Shanna & others at the
scene of offence.

There is no dispute that the incidence occurred in a place
B known as "Qutub Colonnade". The open area of "Qutub
Colonnade" is known as "Tamarind Court" whereas the closed
area is called "Tamarind Cafe". In order to establish the
presence of the accused Sidhartha Vashisht @ Manu Sharma
and others, prosecution has examined Deepak Bhojwani PW-
C 1, Shyan Munshi PW-2, Malini Ramani PW-6, Beena Ramani
PW-20, George Mailhot PW-24, Rouble Dungley PW-23 and
Rohit Bal PW-70. Apart from these ocular witnesses,
prosecution pressed into service Ex. PW12/D-1 which is a
wireless message received at Police Station, Mehrauli.
D
(a) Deepak Bhojwani PW-1

He is a resident of K-5/B, Ground Floor, Lajpat Nagar,
New Delhi. According to him, in the year 1999, he had attended
the place known as "Qutub Colonnade" as Thursday Party four
E times on each Thursday and the last occasion when he
attended this Thursday Party was on 29.04.1999. There used
to be a gathering of friends at this Party and all varieties of
liquor used to be served in this Party besides snacks etc. He
explained that coupons used to be issued for purchase of any
F kind of liquor. Such coupons were used to be purchased in
advance from the cash counter. On 29.04.1999, he attended
the Thursday Party alone at about 11 o'clock in the night.

In chief examination, in categorical terms, he deposed:
G "I had purchased four coupons of Rs. 100/- each on
that day. Jessica Lal (since deceased) and Shyan Munshi
(complainant) were serving liquor on that night at the bar
counter. I had known Jessica lal for about five or six years
whereas Shyan was introduced to me by Jessica Lal about
H a week before 29.04.1999 i.e. on the previous Thursday
SIDHARTHA VASHISHT @ MANU SHARMA v. 171
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
Party". A

Apart from the above assertion, he also informed the Court
that Jessica Lal (since deceased) was working with Oberoi
Hotel and was also a model by profession. He described the
location of "Tamarind Court" and "Tamarind Cafe". The bar
8
counter was located in "Tamarind Court" open area between
the two doors of the "Tamarind Cafe", but since it was summer
nobody was using the bar counter giving preference to the bar
counter located outside. He also stated that Jessica Lal was
wearing blue denim shorts and white half sleeved shirt on that
night. On the same night, at about 1 o'clock (midnight), he went C
to the bar counter to have his third drink. He informed the Court
that on the suggestion of Jessica Lal that the liquor was getting
over he handed over all the remaining coupons and purchased
two pegs of whisky. While holding both the glasses of whisky,
he came in the company of his friends. D

The following statement of PW-1 proves the presence of
accused Manu Sharma and his friends -

"I was moving around in the party with two glasses E
of whisky, when I came across a person having fair
complexion who was giving smile to me. I also
reciprocated. Then he came to me. We both introduced
each other. He gave me his name as Manu Sharma. He
said as to how I was holding two glasses of whisky in my
hands whereas he was unable to get even one. Manu F
Sharma came into my contact after about 10-15 minutes
of my purchasing two pegs of whisky. He requested me
to arrange liquor for him on which I told him that liquor was
over and the bar was closed and therefore, I would not be
able to arrange liquor for him. We were already introduced G
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. Before leaving, Manu Sharma told
me that he would come back and meet me again". H
172 SUPREME COURT REPORTS [2010] 4 S.C.R.

A PW-1 correctly identified the photographs of both the accused
persons one Manu Sharma and the other Tony Gill. He also
informed that the accused Tony Gill came along with Manu
Sharma and 2/3 of his friends. In respect of the question
whether it would be possible for him to identify those 2/3
B persons who were accompanying accused Tony Gill, PW-1 has
pointed out Alok Khanna, accused-Manu Sharma and Tony Gill.
We shall separately discuss about the Test Identification
Parade and the validity of desk identification during time in the
latter paragraphs.

C About the incident, he narrated that

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

He further informed the Court -

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

A. close scrutiny of PW-1's evidence clearly shows that Jessica
H Lal was friendly with him having known him for 5-6 years. He
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 173
(NCT OF DELHI) [P. SATHASIVAM, J.]
also went to the house of parents of Jessica Lal twice i.e. on A
30th April and 1st May 1999 to pay condolence. Further, in
categorical terms, he asserted and identified the presence of
Manu Sharma at the scene of offence. Since he had contact
with a person having fair complexion with smiling face/Manu
Sharma, in the Court he correctly identified both Manu Sharma B
and the tall Sikh gentleman as Tony Gill. He also identified other
persons who accompanied Manu Sharma and Tony Gill. It is
also clear from his evidence that at around 1.45 a.m., he heard
a noise emerging from Tamarind Cafe to the effect that Jessica
Lal had been shot. It is also clear that on hearing that Jessica c
Lal had been shot, he ran towards Tamarind Cafe though
according to him he could not go inside yet peeped and saw
Jessica Lal lying on the floor. Since the High Court has
accepted his evidence which was not acceptable by the Trial
Court, we analyzed his entire statement with great care. Mr.
D
Ram Jethmalani, learned senior counsel has pointed out that
since PW-1's name does not figure in the list of invitees
prepared by George Mailhot PW-23 and Sabrina Lal PW-73
did not mention the name of Deepak Bhojwani PW-1 at Ashlok
Hospital and of the fact that the statement of PW-1 was
E
recorded on 14.05.1999 submitted that, first of all, he is an
interested witness and his testimony is not acceptable. On
seeing his entire evidence, there is no reason to either suspect
his evidence or reject the same as unacceptable. On the other
hand, his evidence supported by other witnesses clearly proves
the presence of accused Nos. 1-4 at the place of occurrence. F
He asserted the presence of Jessica Lal, Shyan Munshi and
the claim of whisky by a fair complexion man who exchanged
niceties with him and introduced him as Manu Sharma. We do
not find any valid reason to hold that he is a planted witness,
though he was not an eye-witness to the actual shooting G
incident but his own statement proves that immediately on
hearing the noise he peeped and noticed Jessica Lal lying on
the floor of Tamarind Cafe. To this extent, the evidence of PW-
1 is acceptable and the High Court has rightly believed and
relied on his version. H
174 SUPREME COURT REPORTS [2010] 4 S.C.R.

A (b) Shyan Munshi PW-2

In the year 1999, he was studying in Indian Institute of
Planning and Management at New Delhi doing his MBA
Course. At that time, he was residing at 15/16 H. Hauz Khas,
New Delhi. He informed the Court that he was acquainted to
8
Malini Ramani through which he started knowing about Beena
Ramani who is the mother of Malini Ramani. He had visited
Tamarind Cafe on the night of 29th April, 1999. It was Thursday
Night. He was attending the Party at that night. Alcohol and food
C were being served there on paying for coupons. In categorical
terms he informed the Court that -

"I was attending the party there on that night. Alcohol
and food was being sold there on coupons. I had met
Jessica Lal on that night in the party. I had acquaintance
D with her from before. The place where the party was going
on was known as Qutub Colonnade Tamarind Court. There
was miniature bar counter outside in the open space where
liquor was being served. Besides Jessica Lal and Malini
there were other few persons who were helping in serving
E liquor. On that night, I did go inside the Tamarind Cafe. It
might be 2 o'clock at that time, I mean 2 a.m. There were
about 6-7 persons inside the cafe at that time."

"I went inside the cafe primarily with a view to eat
something as I was feeling hungry and also nothing was
F being served outside. I found that Jessica was inside. At
that time, no other lady was there. I went behind the counter
to get something to eat. I managed to get pastry lying in
the freeze and when I was taking it, a gentleman with white
tea-shirt came there. He asked the waiter to serve him two
G drinks. The waiter did not pay attention to that gentleman
and became busy in cleaning up. Jessica was also there
on the other side of the counter and she told the gentleman
that the party was over and there was no alcohol to be
served. At that time, that gentleman took out a pistol from
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 175
(NCT OF DELHI) [P. SATHASIVAM, J.]
the dub of the pant and fired a shot in the air. There was A
another gentleman on the other side of the counter, who
fired a shot at Jessica Lal and she fell down. That
gentleman was also wearing light colored clothes."

Since the present statement about "another gentleman" who B
fired a shot at Jessica Lal and she fell down was not the one
earlier made to the Police, after getting permission from the ·
Court, the public prosecutor cross-examined him. He stated--

"ft is correct that Beena Ramani and other lifted
Jessica from the spot and carried her to the Hospital C
Ashlok. I went there later. In the Ashlok Hospital, police
came there and contacted me and recorded my
statement." " ... I reached the Hospital at about 3:30 a.m.
and my statement was taken at aoout 3:45 a.m. or 4 a.m."
D
He also admitted that he was in Delhi for about a year or so
and able to understand spoken Hindi. He is aware of Beena
Ramani as the proprietor of Qutub Colonnade.

The analysis of the evidence of PW-2 shows that though
he turned hostile but his evidence shows that he had visited E
Tamarind Cafe on the night of 29.04.1999. He also mentioned
the presence of Manu Sharma. His evidence further shows that
immediately after the shot Beena Ramani and others were
carrying Jessica Lal to the Ashlok Hospital. In other words, his
evidence proves the presence of accused-Manu Sharma at the F
scene of offence. To this extent, the prosecution relied upon his
evidence and this was rightly accepted by the High Court.
Though, Mr. Ram Jethmalani submitted that High Court ought
to have accepted his entire evidence in tote, considering his
earlier statement to the police and his evidence before the G
Court, we are satisfied that the High Court is justified in holding
that even if his testimony is discarded, the case of the
prosecution hardly gets affected. As observed earlier his
evidence amply proves the presence of accused at the scene
H
176 SUPREME COURT REPORTS [2010] 4 S.C R.

A of occurrence at the time and date as pleaded by the
prosecution.

(c) Malini Ramani PW-6

She is the daughter of Beena Ramani PW-20. She is a
8 fashion designer by profession. Her mother Beena Ramani
owns a property near Qutub Minar known as Qutub Colonnade.
She explained to the Court that in the year 1999 they used to
have parties in Qutub Colonnade and liquor used to be
consumed in these parties. On 29.04.1999, there was a party
C at Qutub Colonnade. It was Thursday. It was a farewell party
for her stepfather namely, George Mailhot PW-24, who was
going abroad for five months. She was at the Qutub Colonnade
on that evening. Jessica Lal was also there. Beena Ramani
PW-20 and Shyan Munshi PW-2, were also there. According
D to her, the party on that night was over by midnight.
Approximately at about 1.45 a.m., she went with her friend
Sanjay Mehtani to the restaurant to look for something to eat.
At that time, she had a drink in her hand. She found that
Jessica Lal, Shyan Munshi, her electrician and couple of
E waiters were there in the restaurant. She further deposed -

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

"Then he said that he had cash to pay for drink. I said.
it did not matter. I could not give sip even for thousand
H rupees it being not available. Then he said O.K. could I
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 177
(NCT OF DELHI) [P. SATHASIVAM, J.]

have sip of you for thousand rupees. Then at that point of A
time, I just left the room because I was irritated about the
whole incident. Sanjay Mehtani and myself walked out
together. When I walked out, I crossed my mother in
courtyards as I was walking out. Again said, I crossed my
mother, she was walking towards the restaurant. I went to B
the passage way where the shops were located. It was on
the other side of the courtyard and I was standing next to
speaker (amplifier). After about a minute and a half/two
minutes, Shyan Munshi came running to me and Sanjay
Mehtani and he was screaming that Jessica had been c
shot. I just passed out after hearing about it and fainted. I
can identify that person, who had asked drink from me and
who was wearing jean and t-shirt. Witness has pointed out
towards accused Siddhartha Vashisht @ Manu Sharma
and said that he just look like him. I had seen this accused . 0
in the police station on 8th May. I had gone there as I was
arrested in a case under Excise Act."

"Question:- Are you certain that the person to whom
you had just identified was the same person who
had asked drinks from you and was wearing jean E
and T-shirt?

Answer:- I am sure he is the same person."

About PW-6's testimony, Mr. Ram Jethmalani criticized the
question put by the public prosecutor which according to him
F
is not permissible. It is relevant to point out that before
considering her answer that "I am sure he is the same person", .
we have to see her statement in the previous paragraph. She
identified Manu Sharma who had asked drinks from her who
was wearing Jean and T-shirt. It is also relevant to note that she G
pointed ouftowards the accused Manu Sharma and said that
"he just looked like him." As rightly pointed by learned Solicitor
General, the above mentioned question by the public prosecutor
is in addition to the earlier ones relating to identity of the person
who was wearing jean and T-shirt and who asked for drinks. It H
178 SUPREME COURT REPORTS [2010] 4 S.C.R.

A is relevant to note that PW-6 is not an ordinary person and it is
not the case of the defence that she is an illiterate, unable to
understand what she said to the earlier questions. We have
already noted that she is a fashion designer by profession. In
other words, she is highly qualified and it is not her grievance
B that she was unable to understand her earlier answers. In such
circumstances, we are unable to appreciate the objection of Mr.
Ram Jethmalani. On the other hand, it is clear from the evidence
of PW-6 that the accused Manu Sharma was very well present
at the scene of offence and she correctly identified him. Further,
c as rightly observed by the High court, though she was not an
eye-witness, she is certainly a witness identifying Manu Sharma
along with 4 or 5 persons present at the Tamarind Court who
asked her for whisky and later misbehaved with her. We agree
with the observation and the ultimate conclusion about PW-6
D reached by the High Court.

(d) Beena Ramani PW-20

She is the wife of George Mailhot PW-24. She is a Fashion
Designer. She purchased the property near Qutub Minar at H-
E 5/6 Mehrauli Road, New Delhi in the year 1995. This property
is being used as a Shopping Arcade and a Restaurant. The
Shopping Arcade is known as "Qutub Colonnade". The name
of the Restaurant was "Tamarind Court Cafe". She had a
proper license for eating house in the aforesaid complex. The
F license for the restaurant was in the name and style "Once
Upon A Time". She admitted that the license of eating house
was not valid beyond one year. She has two children namely
Malini Ramani and Geetanjali. In 1999, her daughter Malini
Ramani was assisting her in running the restaurant. On
G Thursdays, there used to be special private parties where
guests could come by invitation. Alcohol was never served in
the Restaurant but were served only in the courtyard on
Thursday Parties. She further deposed -

"I knew Jessica Lal, Shyan Munshi. We had a proper
H staff to run the Restaurant and occasionally any of our
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 179
(NCT OF DELHI) [P. SATHASIVAM, J.]
friends could reach out and help the Thursdays Parties. A
Jessica Lal and Shyan Munshi were friends of my daughter
Malini and were helping her on that night"

'The date was 29th of April, 1999. On that night,
apart from the normal Thursday Party, I had also organized
B
a special farewell party for my husband who was leaving
in two hours time for a World Trip. The party was over by
1 or 1:30 a.m. This Thursday Party and special party was
organized jointly and was being held in the courtyard and
on the roof top. After the party was over, I was anxious to C
clean up the place and relieve the waiters etc. so that they
may take up duty next morning properly. There were few
guests left in the courtyard and I also spotted some guests
in the Restaurant where nobody was supposed to be. I
walked towards the Restaurant. When I was walking,
towards restaurant I ran into Malini. I mounted the steps of D
the restaurant. I saw a few people standing next to the
counter and I heard a shot. A moment later, I heard another
shot. Jessica Lal was standing with people at the far end
and I saw her falling down. There was a door to my right.
It could be swung open and Shyan Munshi came out with E
another person who was either ahead of him or behind
him. Shyan Munshi said that Jessica Lal had been shot. I
told Shyan Munshi to call the Police or doctor or
ambulance and I stopped the man accompanying them.
There was commotion. All the people who were with F
Jessica Lal earlier, started coming out. The companion of
Shyan was wearing white T-shirt. He was chubby and fair
and I asked him as to who he was. "Why are you here and
why he shot Jessica Lal. I also asked him to give me his
gun. I thought he might be having a gun." He said that it G
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 H
180 SUPREME COURT REPORTS [2010] 4 S.C.R.

A a few steps ahead of me and I could not catch him. In the
meantime, I was shouting instructions to the guests to call
Hospital or to take Jessica Lal. I reached the gate my
husband was standing there·and I told him that this was
the man who had shot Jessica Lal and to see in which car
B he gets into."

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

She also identified the other persons who were with Manu
D Sharma, though she has not mentioned the name of persons
but on the instructions of the Court she has touched those
persons named by the Court. She further informed-

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

l<f we analyze her evidence along with the sketch/map of the
occurr~nce, when she mounted steps of the restaurant, she
heard a shot, a moment later, she heard another shot. It is also
F relevant to note that she mentioned that Jessica Lal was
standing with the people at the far end and she saw her falling
down. She also informed that Shyan Munshi PW-2 said that
Jessica Lal had been shot. It is relevant to point out that she
was shouting to the guests to call the Doctor or to take Jessica
G Lal for treatment, she reached the gate where her husband was
standing and she told him "that this was the man who had shot
Jessica Lal and to see in which car he gets into". If we read
her entire evidence she refers only Manu Sharma. She also
correctly identified the presence of other accused persons,
H namely, Amardeep Singh Gill, Alok Khanna and Vikas Yadav.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 181
(NCT OF DELHI) [P. SATHASIVAM, J.]
Her evidence remained unchallenged, though the Trial Court A
discarded her evidence as she was not an eye-witness to the
occurrence but accepted that she is a witness to the presen_c~
of Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas
Yadav at the Qutub Colonnade. We have already quoted her
own statement namely "/ saw a few people standing next to the B
counter and I heard a shot, a moment later I heard another
shot. Jessica Lal was standing with people at the far end and
I saw her falling down." It is also relevant that on noticing Shyan
Munshi she asked him "Why are you here and why he shot
Jessica Lal?". Her statement clearly proves the prosecution c
case that she had herself seen Manu Sharma shooting Jessica
Lal. As rightly observed by the High Court, if the evidence of
Beena Ramani is analyzed in depth, it is clear that she not only
asserted the presence of Manu Sharma at the scene of
occurrence and heard two shots one by one but also asked a 0
pertinent question to Shyan Munshi that why he (Manu Sharma)
shot Jessica Lal. Whether she has to be treated as an eye-
witness to the occurrence or not is to be discussed at later point
of time by analyzing her entire evidence. However, for the
limited purpose of proving the presence of accused at the ·E
scene of offence, her evidence fully supports the case of the
prosecution.

(e) George Mailhot PW-24

He is a Canadian citizen and according to him, he has F
been residing in India since February, 1992. Beena Ramani
PW-20 is his wife. Her business premises were at H-5/6
Mehrauli Road, New Delhi. This complex was popularly known
as "Qutub Colonnade". It had a number of shops and a
restaurant. The licence of eating place was in the name of G
Beena Ramani. He was also involved in the said business for
several years before the date of occurrence. Several parties
were arranged and last Thursday Party was held on April 29,
1999. On that day, he was leaving for World Trip for a few
months, partly that was the occasion for that party. At the H
182 SUPREME COURT REPORTS [2010] 4 S.C.R.

A instance of the police, he prepared a list of guests who were
invited in that party and gave the list to the police which was
signed by him on 22.05.1999. It is Ex. PW24/A. According to
him, time of occurrence might be around 2 AM. At that time he
was standing in the courtyard near a large tree which is in the
B middle of the courtyard. This must be about 20 ft. away from
the door of the restaurant. He further deposed:

"I was facing opposite side of the entrance door of
the restaurant and then I heard two pop shots like balloon.
I turned towards the restaurant door from where I had heard
c the sound and within a few seconds Shyan Munshi came
running and said to me someone shot Jessica. I
immediately went to the restaurant. When I reached the
door of the restaurant I saw some people to my right to
my left and ahead of me. Ms. Beena was moving at a
D place which may be described as ahead of me towards
the left side. Beena was addressing a young man who was
moving, someone whom I had riot seen before. This
person was moving around and Ms. Beena Ramani was
following him and saying that you are the one give me the
E gun. I could see everyone present there watching that
person who was being addressed to by Ms. Beena. The
young man said that why everyone was looking at him that
he did not do anything. Then I saw Jessica lying on the floor
with her head towards my feet, almost near my feet.
F Jessica was looking quite in pain and not moving and there
was no sign of blood. Then I saw another man standing at
the door. At that time, about 2/3 people were ahead of me
and are by my side in the re.staurant. I was focusing on the
danger point. The young man whom I saw at the door was
G a beard person i.e. Sardarji. He was the only one present
there who was keeping/maintaining calm. Thereafter, I went
to the gate of Qutub Colony leaving others in the
restaurant, in search of Police man. I ran out and went into
the street there was no one there. While I was in the street
H a number of people came up to the gate of Colonnade
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 183
(NCT OF DELHI) [P. SATHASIVAM, J.]
walking. There was a bunch of them that is a first person A
behind him a second person and then behind them many
persons they were walking very rapidly. The first person
was the one whom I had seen in the restaurant and whom
Beena had accosted and asking for the gun. Right behind
him or directly behind him was Beena. I focused only on B
first person or Beena I did not notice the others."

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

His evidence makes it clear that at the relevant time on hearing
the shot, Shyan Munshi PW-2 came running shouting that
someone shot Jessica. He reached the door of the restaurant.
It is also clear that Beena Ramani PW-20 was moving at a D
place ahead of him towards the left side. This witness
subsequently stated that Beena Ramani was addressing a
young man who was moving with someone. He also identified
the person who had come out first followed by Beena and he
touched Manu Sharma as the person who was being followed E
by Beena. As rightly pointed out by learned Solicitor General,
his evidence also proves the presence of the accused-Manu
Sharma at the scene of offence. ,

(f) Rouble Dungley PW-23:
F
In his evidence, he admitted that he had told the police that
he saw Beena Ramani going after a boy. In his deposition, he
mentioned that:

"It is correct that I had told the police that I saw Beena G
Ramani going after a boy. But I do not remember whether
I had told the police that the said boy was a fat boy. It is
correct that I had seen Beena Ramani going there Vol. I
had seen her from a distance. It is correct that I had told
the police that Beena Ramani was saying "Stop that Man"
H
184 SUPREME COURT REPORTS [2010] 4 S.C.R.

A "I heard that Jessica had been shot."

(g) Rohit Bal PW-70:

He deposed that:

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

The above statement makes it clear that after the shooting
incident Beena Ramani was running behind a man shouting
"catch that man"
D
From the evidence of above mentioned witnesses, namely,
PWs 1, 2, 6, 20, 23, 24 and 70 which are all admissible in
evidence clearly show the presence of accused Sidhartha
Vashisht @ Manu Sharma at the scene of offence. This
E evidence of the ocular witnesses is duly corroborated by Ex PW
12/D-I, the wireless message received at PS Mehrauli.

In addition to the evidence of the above mentioned
witnesses, who were present at the party, the presence of
F appellants is also proved by other evidence, namely, 3 PCR
calls Ex PW 11/A, Band C which were received. The evidence
of PWs 11, 12 and 13 clearly proves that immediate and
prompt action was taken.

(h) HG Devi Singh PW 83 - In-charge of PCR Van:
G
He reached the scene of occurrence within two minutes
at around 02.17 a.m. and reported back at 02.35 a.m. It is
relevant to refer the message received that is Ex PW 12/D-1
which states:
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 185
(NCT OF DELHI) [P. SATHASIVAM, J.]
"From E-43 (PCR Van), A party hosted by Malini and A
Beena was going on in Qutub Colonnade Hotel situated
at the road which leads towards Mehrauli where a person
had demanded whiskey from Jessica Lal but she (Jessica
Lal) said that the restaurant had already been closed. At
this the aforesaid person had fired shot at Jessica Lal, B
which had hit her on her chest. Jessica Lal has been
admitted in Ashlok Hospital, Safdarjung Enclave and the
person who had fired shot has fled from there."

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

Ex. PW 12/D-1, a contemporaneous document, clearly
corroborates the testimony of ocular witnesses which we have
already mentioned irr the earlier paragraphs. From the D
evidence adduced, it is clear that the appellants-accused Nos.
1"3 were present at the scene of occurrence. Admittedly without
setting up a plea of alibi to show their presence elsewhere, they
have flatly denied their presence.
E
It is the stand of Mr. Ram Jethmalani, learned senior
counsel for the accused that the police deliberately framed
Manu Sharma as an accused and made out a false story
against him concealing the actual offender who is a tall Sikh
gentleman and on this made up theory witnesses from the same F
family who were vulnerable were made to depose in favour of
the prosecution. In an answer to the said question, it was
pointed out that apart from the testimony of HC Devi Singh
PW-82, PCR in-charge, read with Ex. PW-12/D-1 clearly prove
the case of the prosecution. It is relevant that the said witness
reached around 02.17 a.m., on a message fromPCR to PS G
Mehrauli takes around 10 minutes as from local PCR it goes
to headquarter from where it is transmitted to concerned district
net which further transmits it to the local police station. In this
way, around 02.25 a.m., even before the local police had
H
186 SUPREME COURT REPORTS [2010] 4 S.C.R.

A arrived at the spot HC Devi Singh PW-83 had sent the version
available at the spot. The prosecution placed specific reliance
on the same. In the absence of rebuttal evidence, there is no
reason to reject the evidence of PW-83 as well as Ex. PW-12/
D-1. In those circumstances, the entire premise of the defence
B argument that it was not a person in white T-shirt, stocky and
fair, who shot at Jessica Lal over a row over the drink and fled
away from the spot and this was a planted and concocted story
of the prosecution to rope in Manu Sharma and make escape
good of the tall Sikh gentleman is wholly erroneous and without
c any basis.

Evaluation of evidence throwing light on the actual
incident:

16. It is the stand of the defence that the testimony of
D Madan Kumar PW 46 and Jatinder Raj PW-47 belies the fact
that Beena Ramani PW-20 had seen actual shooting as the
witness says that they both entered together. Madan Kumar
PW 46 worked in Qutub Colonnade in April, 1999 as a waiter.
In his evidence, he informed the Court that:
E
"the day of occurrence was Thursday. The occurrence took
place at about 1.30 or 1.45 AM. At that time, I saw some
people rushing in and some people rushing out of the
restaurant and they were shouting "GOLi LAG GAi",
"Jessica Lal KO GOLi LAG GAi".
F
I knew Jessica Lal before the incident, Jatinder Raj was
the Manager of the restaurant. I was coming downstairs,
and on hearing the noise, I went to restaurant. I saw
Jessica Lal, lying on the floor. Some guests, Beena
G Ramani and Jatinder Raj were present there. Two - three
other workers were also present, but I do not remember
their names. Beena Ramani made a telephone call.
Thereafter, Shiv Dass brought a sheet of cloth. Jatinder
Raj, Beena Ramani and I wrapped the said Jessica Lal
H in the bed-sheet. We took/carried her to an Esteem Car,
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 187
(NCT OF DELHI) [P. SATHASIVAM, J.]
parked outside. Beena Ramani, Jatinder Raj and I also sat A
down in the Car. There was a driver in the car. We left and
reached Ashlok Hospital. Jessica Lal was removed on a
stature for medical treatment. I returned to the restaurant
at about 3/3.15 a.m. Police met me there in the
Restaurant." B
"Jatinder Raj and Beena Ramani were already, near
Jessica Lal, when I reached there. I did not see Mr.
George there, at that time. George had left at about 12.30
or 12.45 a.m. from there. When I saw Jessica Lal lying on C
the floor, I also saw that she had some injury on the left
forehead, from which blood was coming out. There was
also blood on the floor, where Jessica Lal was lying."

17. Jitender Raj PW 47 was working as a Manager-cum-
Supervisor. He used to check the supplies, cash and D
sanitation. A system of "Thursday Parties" had been started
in Qutub Colonnade. The occurrence took place on such 3rd
or 4th party on 29.04.1999. It was a Thursday. Generally food
was served but on Thursdays liquor was also being served. The
supply of articles through coupons was made in the open space. E
The party, on 29.04.1999 was over at about 12.30 a.m. and
he told the waiters to clean up the place. He was counting the
cash and tallying the same. He narrated further:

'The time might be 2 AM. I heard the firing of two
shots, and the noise of firing had come from the side of F
cafe. I opened the gate of my office, which I had closed,
before counting the cash etc. I saw from that gate of my
office that people were coming in and going out. At that
time, I saw Beena Ramani on the stairs of cafe. I rushed
towards her and we both went inside the cafe. We saw, G
Jessica Lal lying on the floor, near the counter. Shiv Dass,
Madan Lal, Surender and Wiplub, members of the staff
and one-two guests also reached the spot. There was
scratched on the forehead of Jessica Lal. Shiv Dass PW-
3, brought a bed-sheet. We wrapped Jessica! Lal in that H
188 SUPREME COURT REPORTS [2010] 4 S.C.R.

A bed-sheet. Shiv Dass is an electrician in Qutub Colonnade.
We removed Jessica Lal in a car to the Ashlok Hospital.
Mrs. Beena Ramani, Madan Kumar, waiter, myself and
driver were in that car, apart from Jessica Lal."

I came out of my office, immediately, after hearing
B
the shots of firing. I saw, 'AFTRA TAFARI' at the gate of
cafe after coming out of my office. At that time, I saw
Beena Ramani on the steps, to which I have made
reference. By the time Beena Ramani reached the gate
of cafe. I reached there, by running."
c
18. The analysis of evidence of PWs 46 and 47 shows that
when PW-47 heard the noise of the shots he was in the office
counting cash and after hearing the noise of firing he opened
the gate of his office which he had closed at the time of counting
D the cash. He saw from the gate of his office that people were
coming in and going out. At that time, he saw Beena Ramani
on the steps of the cafe, he rushed towards her and they both
went inside the cafe. It is clear from the testimony of this witness
that he was inside his office counting the cash when he heard
E the shots, thus after taking care of the cash when he opened
the gate he saw people coming in and going out, which means
that his act of coming out from the office is considerably after
and not immediately after the shots were fired and, therefore,
he saw people running back and forth whereas Beena Ramani
F PW-20 has stated that when she mounted the steps of the
restaurant she saw a few people standing next to the counter
and heard a shot. A moment later she heard another shot.
Jessica Lal was standing with people at the far end and she
saw her falling. It is pertinent to note that as per the scaled site
G plan, the point at which Beena Ramani PW-20 was standing
was only four feet from the point at which the shot was fired at
Jessica Lal. Therefore, it can never be alleged that there was
no way in which the said witness could have had any doubt as
to the identity of Manu Sharma. Thereafter, she accosted Manu
Sharma till the gate of Qutub Colonnade where she told George
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 189
(NCT OF DELHI) [P. SATHASIVAM, J.]

Mailhot PW-24 that this was the man who had shot Jessica Lal · A
and that he should see in which car he i.e. Manu Sharma gets
into and after that Beena Ramani PW-20 came back to the spot.
It is when she came back to the cafe this witness PW-47 joined
PW-20 entering the cafe, thus the testimony of this witness does
not negate the fact that PW-20 witnessed the incident. It is B
relevant to mention the very fact that PW-20 followed the
appellant is a clear indication of the fact that she was more than
certain that he was the culprit responsible for the crime, and,
therefore, she did not chase anybody else as the person who
was having the gun. It has to be borne in mind that Beena c
Ramani had no enmity with the appellant-Manu Sharma and
also the whole theory of planting of witnesses at the instance
of the police is false since the accused has not led any defence
evidence or brought on record any evidence to suggest that the
investigation was motivated by mala fide. 0
19. It was argued by the defence, since PW-47 in his cross
examination has stated that Beena Ramani PW-20 stated to
him as to what had happened and who had done it, an inference
has to be drawn that she did not witness the incident. As rightly
pointed out, the above statement does not lead to the inference E
that Beena Ramani PW-20 did not witness the incident rather
it could further reinforce what she had witnessed. Even
otherwise, admittedly, thus, Beena Ramani was available she
was not recalled to confront her With the testimony of PW-47.
In those circumstances, the defence cannot take advantage out F
of a portion of statement of PW-47.

20. It is relevant to mention that Madan Kumar PW-46 also
stated that when the occurrence took place he was present on
the stairs leading to terrace and that time he saw people rushing G
in and some people rushing out of the restaurant who were also
shouting "Gali Lag Gai, Jessica Lal Ko Gali Lag Gai". He came
downstairs after hearing the noise and went to the restaurant,
thus it is evident that this witness did not hear the shots of the
fire but only realized about the occurrence after people were H
190 SUPREME COURT REPORTS (2010] 4 S.C.R.

A rushing in and rushing out shouting. A perusal of the testimony
of PW-46 reveals that when he came down, PW-20 was
already there. Thus PW-46 is not in a position to say as to what
PW-20 witnessed. It may be further pointed out that the stairs
leading to the terrace are not on the cafe but on the main
B building of Qutub Colonnade which houses the shops beyond
the verandah and Tamarind Court. Hence, the testimony of PW-
46 cannot negate the evidence of PW-20 that she witnessed
the incident. It is submitted that the mere absence of Beena
Ramani PW-20 in the site plan also does not negate her
c presence or her having not witnessed the incident, specifically
when she had given her statement to the police under Section
161 CrPC on 30.04.1999, itself.

21. Mr. Ram Jethmalani, learned senior counsel, by
drawing our attention to Ex PW 21/A, which is a site plan and
D Point B is the approximate place where the deceased was
shot, argued that it was impossible for PW-20 (Beena Ramani)
to have seen the actual shooting, since they both entered
together and PW-47 came in after the shot was fired. In other
words, it was argued that PW-20 only saw the "fallen woman"
E and it is incorrectly written "falling" and PW-20 is not the person
who saw the incident. We meticulously verified the site plan as
well as the evidence of PWs 20, 46 and 47. The absence of
PW-20 in the site plan does not belie her presence and her
having witnessed the incident especially when her statement
F under Section 161 Cr.P.C. was recorded on 30.04.1999 in the
morning itself. It was pointed out by the prosecution that she
was neither contradic~d nor confronted with her statement
under Section 161 Cr.P.C. as she firmly stood to her statement
in the witness box.
G
22. Mr. Ram Jethmalani, further submitted that due to the
pressure by the prosecution for registering a case under the
Punjab Excise Act against Malini Ramani PW-6, Beena
Ramani PW-20 and George Mailhot PW-24, virtually, they were
pressurized to yield to the case of prosecution. While stoutly
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 191
(NCT OF DELHI) [P. SATHASIVAM, J.]
denying the said allegation, Mr. Gopal Subramanium, submitted A
that the registration of case under the Punjab Excise Act has
nothing to do with their evidence in the case of death of Jessica
Lal. He also submitted that ultimately they were fined, the said
action cannot be construed as a threat to them or keeping the
sword hanging for taking action either under Section 201 IPC B
or the Punjab Excise Act. It was pointed out by the learned
senior counsel for the appellant that Malini Ramani PW-6
during her statement admitted that her mother Beena Ramani
was accused of having removed the blood from the spot. PW-
6 further admitted that during the first five days of May, 1999, c
the interrogation of three of them "PWs 6, 20 and 24" was very
intense. She also stated that for quite long hours they were kept
in the Police Station and they were used to be subjected to
prolonged interrogation in the Jessica Lal's case as well as in
other Excise Act case. It is true that SHO S.K. Sharma PW D
101, admitted that the FIR in the excise case was lodged
against the above said three persons. It was also highlighted
that all the three were arrested in the excise case on
08.05.1999 which was pending in the Court of Metropolitan
Magistrate, New Delhi. In that case, application on behalf of E
Beena Ramani and George Mailhot was moved for seeking
permission to go abroad for treatment of Beena Ramani
alleging that she is a cancer patient. Mr. Jethmalani argued that
notice of which was given to the State and instead of filing reply
by the State counsel PW-101, who appeared in person,
vehemently opposed on the ground that their presence may be F
required during the investigation of FIR No. 287 of 1999 for filing
additional charge-sheet including the issue of cleaning of blood.
Ultimately, the Metropolitan Magistrate rejected their application
for permission and they were not allowed to go abroad because
of the reason that their presence may be required for filing G
additional charge-sheet in FIR No. 287 of 1999. By pointing out
the above information, it was argued by the learned senior
counsel that the investigation agency had been pressurizing
these witnesses to toe their line in their deposition in the present
case, but PW-20 was not made as accused under Section 201 H
192 SUPREME COURT REPORTS [2010] 4 S.C.R.

A in the present case because they had agreed to toe the line of
the prosecution but this sword was kept hanging on them to
ensure that the entire family members i.e. PWs 6, 20 and 24
continue to toe the line of prosecution. All the allegations have
been stoutly denied by the prosecution. It was submitted by the
B prosecution that the statement of S.I. Sunil Kumar PW-100 is
inadmissible on the ground that it is sought to be used as
opinion evidence and, therefore, hit by the rule against hearsay
evidence. Even if it is held to be admissible, it was pointed out
that Beena Ramani was right in saying that statement of Shyan
c Munshi should be recorded because Shyan Munshi was inside
the cafe and had witnessed the entire incident including
conversations which occurred prior to the incident. It was further
pointed out that the statement of Beena Ramani to this effect
which she also deposed before the trial Court was recorded
on the same date i.e. on 30.04.1999 that too in the morning
D itself. In her statement, before the Court PW-20 Beena Ramani
had. clearly stated "at the hospital, the police met me. The
report about the incident was lodged in my presence by
Shyan Munshi." In view of the same it was submitted that
because PW-20 told PW-100 to ask PW-2, it does not mean
E that she did not know anything, since her statement was
recorded on the same day soon after the statement of Shyan
Munshi to which statement she stuck even in her testimony
before the trial Court.

F 23. It has been vehemently argued that PW-20 is not an
eye witness since both Investigating Officers i.e. PWs-100 and
101 admitted the same. It was submitted by the State that this
argument runs counter to the well settled proposition of law that
a witness cannot be discredited without the said piece of the
G testimony having been put to her. The accused had a statutory
option available by way of Section 311 of the Code to call PW-
20 for the purposes of further examination. This argument of
the defence also runs counter to their own argument used to
discredit the investigation that PW-6 was placed in the 'rukka'
H by the Police for the purposes of being shown as an eye-
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 193
(NCT OF DELHI) [P. SATHASIVAM, J.]
witness. The said part of the testimony of PWs-100 and 101 A
are at best in the nature of opinion evidence which are
inadmissible pieces of evidence and for the aforesaid reasons
cannot wipe out the unchallenged testimony of PW-20, which
is the case of the prosecution.
8
24. Further, the appellant-Manu Sharma has also been
clearly identified by Malini Ramani PW-6 as the person in the
White T Shirt who had asked for whisky and thereafter on her
refusal to oblige, he misbehaved with her in the most vulgar
fashion.
c
25. It was argued that PW-6 could not have seen anything
since she was on the other side of the Colonnade and that the
prosecution in fact planted her into Ex.PW-2/A i.e. the 'rukka'
prepared at the instance of Shyan Munshi as an eye witness.
It has been reiterated that all the three key witnesses are D
planted witnesses who have deposed under pressure of false
implication. It has been further argued that the deposition of·
PW-6 that she entered the bar for a drink is improbable as she
knew that the drinks were over. It is contended by the defence
that PW-6 did not say that she heard the gun shots since she E
was inebriated, which further supports the fact that she could
not identify anybody else. Her statement that there were four
or five guys at the spot is also not corroborated by Deepak
Bhojwani PW-1. The Prosecutor has put a leading question to
her as to the identity of the appellant and, therefore, the said F
question and answer should be expunged from the record. The
Police recorded a couple of her statements but the defence
was not supplied with all of them. In any case the photo of the
appellant was shown to her even prior to his refusal of the Test
Identification Parade. It was pointed out that these contentions G
are totally erroneous and contrary to the record. It is pertinent
to note that FIR No. 288 of 1999 at PS Mehrauli under Excise
Act was registered on 30.04.99 itself and thus the question of
making her an accused on 08.05.99 does not arise. Moreover, -
the excise offence is a bailable offence. Further, the statement .H
194 SUPREME COURT REPORTS [2010] 4 S.C.R.

A of Malini Ramani was recorded under Section 161 Cr.P.C. on
03.05.99 itself vide Ex PW 6/DA and thus the contention of
making her an accused on 08.05.99 on this count is also
fallacious.

26. As regards the argument that Malini Ramani PW-6 was
8
shown as an eye-witness to the incident of shooting in the
'rukka', a perusal of the same reveals that at no point of time
Shyan Munshi, PW-2, stated either in the positive or the
negative that PW-6 was or was not there when the shots were
C fired. In any case, as rightly pointed out on the side of the State
that the alleged prosecution planted PW-6 as an eye-witness
goes contrary to all reasoning, since on 30.04.1999 at the time
of recording the 'rukka', none of the witnesses had disclosed
the identity of the appellant - Manu Sharma, therefore, to
allege that the Police had planted the witness is wholly incorrect.
D
27. As regards the argument that PW-6 was under the
influence of alcohol, therefore, could not have identified the
appellant - Manu Sharma, is also wrong since she clearly
stated in her testimony, particularly, in cross-examination, that
E she had consumed only one drink.

28. The argument that deposition of PW-6 as regards the
presence of other accused, does not find corroboration from
the testimony of PW-1 is incorrect since the said witness
categorically mentioned the presence of other accused. The
F grievance that the identification of the appellant-Manu Sharma
was based on a leading question is also wrong since even
before the alleged leading question was put to the witness, the
witness, PW-6 had positively identified the appellant - Manu
Sharma by specifically pointing out and stating that he just
G looks like him. It was explained by the State that the appellant
was not personally known to the said witness or her family and,
therefore, the manner of identification in the present case
wherein the present witness by pointing out towards him stated
that he just looks like the man she saw at the party is most
H conclusive and reliable. Further the argument of her having
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 195
(NCT OF DELHI) [P. SATHASIVAM, J.]
been shown the photo her identification is of little value since A
her statement that she saw the photographs prior to 05.05.1999
is most wavering and unclear. In the same manner, she has
deposed that photos were also shown to Beena Ramani PW-
20 and George Mailhot PW-24 is of little value since neither
PW-20 nor PW-24 stated that they had been shown the photos B
of the accused in spite of having all the opportunities failed to
confront the said witnesses with the said part of PW-6's
testimony. Based on the statement of Rohit Bal PW-70, that he
saw her screaming out, the defence has sought to discredit
PW-6's, statement. It is relevant to note that it is the case of c
PW-6 that she came to know when she was in the courtyard,
Shyan Munshi came running towards her and Sanjay Mehtani,
screaming that Jessica Lal had been shot. Thereafter, PW-6
fainted, thus, in the process, if PW-70 saw her screaming in
the courtyard, it cannot be said that there is any contradiction
0
in the statement of PW-6 and PW-70.

29. It was pointed out by the defence that the firing was
not over a drink, the act to refuse supply of liquor was not the
motive to murder Jessica. After perusing the evidence of PW-
6, it is clear that after refusal of the drink, the appellant-Manu E
Sharma misbehaved in the most vulgar fashion. The testimony
of PW-23 further corroborates the testimony of PW-6. As rightly
pointed out by the State that it was a case where the deceased
Jessica Lal was murdered for a row over the drink.
F
30. It was also pointed out on the side of the appellant-
Manu Sharma, that the evidence of Malini Ramani, PW~6 and
George Mailhot, PW-24 does not corroborate the statement of
Beena Ramani, PW-20. In this regard, it is relevant to note that
these three witnesses have deposed on three different G
situations in the chain of circumstances. The evidence of these
three witnesses, if read in whole in conjunction and in harmony
with each other, would show the chain of circumstances of
evidence leading to only one inference. It was highlighted by
the defence that PWs 46 & 47 stated that they did not see PW- H
196 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 24 after the party was over at 12.30 a.m. By saying so, it was
contended that PW-24 was never there at the time of the
alleged incident. It was also contended that PW-24 reached the
Mehrauli police station at around 2.25 a.m. whereas if the story
of the prosecution is true then he should have reached around
B 2.10 a.m. It is relevant to mention that PW-24's statement was
recorded on the same day i.e. 30.04.99. The presence of PW-
24 at the time of incident is also supported by the testimony of
ASI Kartar Singh PW-13, who deposed that a person bearing
the description of PW-24 came to the Police Station to report
c about the firing incident, which fact corroborates the testimony
of PW-24 that he went to the Police Station. It was urged by
Mr. Ram Jethmalani that Rohit Bal PW-70 was a witness who
have been examined first as his telephone number appears on
Ex. PW-12/01 which are the PCR messages. It was clarified
that in the PCR only the mobile r1umbe.r was recorded. Further
0
on receipt of information, police officers immediately reached
the place of occurrence and came to know that the deceased
had been taken to Ashlok Hospital. SI Sunil Kumar, PW-100
reached Ashlok Hospital and made enquiries from PW-20 who
directed him to take the statement of Shyan Munshi as he was
E present at the bar counter and conversant with every thing. The
prosecution has explained that in view of the statements of the
eye-witnesses having been taken immediately at 03.40 a.m. on
30.04.99 itself on the basis of which FIR was registered and
number of other investigation processes like post-mortem, site
F plan etc. and immediately thereafter search for Tata Safari,
ownership of the alleged vehicle, search for Manu Sharma in
the case being made, as such even if there is delay in recording
of statements of other witnesses, it cannot be fatal to the
prosecution case. The said claim of the prosecution cannot be
G rejected as unreasonable.

31. In the earlier part of our judgment, we have noted that
PW-20 has categorically stated that she heard the two shots,
saw the people inside and Jessica falling down, which shows
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 197
(NCT OF DELHI) [P. SATHASIVAM, J.]

that she had witnessed the entire incident as is evident from A
the relevant portion of her testimony extracted in paragraphs
supra. Malini Ramani in categorical terms informed the Court
about Manu Sharma asking about the whisky, his misbehaviour
immediately before the shooting and also identified the same
person in white T-shirt asking for the whisky and misbehaving B
with her as Manu Sharma. PW-6 further corroborates the
testimony of PW-20 and part testimony of PW-2 with regard to
the presence of the accused Manu Sharma. The scrutiny of the
entire evidence of PW-6 clearly shows that her evidence is not
only relevant but also admissible. c
32. Coming to the cause of death, Dr. R.K. Sharma PW-
9, who conducted post-mortem on the body of deceased
Jessica Lal has stated that on 30.04.1999 at about 11 :20 a.m.
7 sheets of papers i.e. inquest papers, request of post-mortem,
inquest report, copy of FIR, brief facts of the case, were · D
submitted to him along with the dead body. He informed that
the cause of death to the best of his knowiedge and belief was
head injury due to firearm, injury was ante-mortem in nature. He
also deposed that Injury no. 3 was sufficient to cause death in
the ordinary course of nature. E

33. Coming to the evidentiary value of PW-2, on behalf of
the defence, it was stated that PW-2 is not a reliable witness
in view of the fact that according to him he made his statement
in English, however, SI Sunil Kumar recorded it in Hindi. In the F
absence of any suggestion to the contrary, as rightly pointed
out by the counsel for the State that it must be presumed that
PW-100 recorded the statement correctly. It is also relevant to
mention that in his statement as a witness he said "I can
understand spoken Hindi. Hindi was my third language when I G
was studying in the seventh standard. I was never good in
Hindi." It is also pointed out that Shyan Munshi has acted in a
number of Hindi films. Even if a prosecution witness is
challenged in cross-examination, that part of his testimony
which is corroborated by other witnesses or from other evidence H
198 SUPREME COURT REPORTS [2010] 4 S.C.R.

A can clearly be relied upon to base conviction. Further it was
pointed out that PW-2 was under the influence of accused Manu
Sharma as he was accompanied by Mr. Ashok Bansal who had
appeared as proxy counsel for him i.e. accused Manu Sharma
in his bail application dated 06.03.2000. Thus, reliance could
B have been placed only on that aspect of the testimony which is
corroborated by other evidence on record.

34. With regard to the allegation that statements of PW-6,
PW-20 and PW-24 were taken under pressure as a case under
Excise Act was lodged against them and when they were to
C be examined, an application for pre-ponement of the case was
moved where they pleaded guilty and fine of Rs. 200 was
i.11posed on each. For this, it was pointed out that there is
nothing on record to suggest that PW-6 was threatened or
humiliated by the Police or that she would be implicated in a
D case of destroying the evidence i.e. removal of blood from the
spot. In fact, PW-20 has denied the suggestion that she is
deposing falsely at the instance of Police. In the same way, PW-
24 has also denied the suggestion that a deal was struck
between him and the investigation agency to make a false
E statement, thereafter, the Excise case could be hatched up. It
is relevant to point out that the case under Punjab Excise Act
which was registered as FIR No. 288/99 on 30.04.1999 has
not been withdrawn by the prosecution against the accused. On
the other hand, the fact remained that the accused had pleaded
F guilty. As rightly pointed out by the State that on the quantum
of sentence for an offence, the prosecution has no role and it
is the Court concerned which can impose appropriate
sentence considering the evidence and the role of the accused.
It was also highlighted that the charge was only under Section
G 68 of the Punjab Excise Act to which all the three accused,
namely, Malini Ramani, Beena Ramani and George Mailhot
pleaded guilty. The maximum penalty/fine under Section 68 is
Rs. 200, therefore, the maximum fine which could have been
imposed on the accused is Rs. 200. In those circumstances,
H the allegation that these three witnesses were kept under
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 199
(NCT OF DELHI) [P. SATHASIVAM, J.]

pressure is not acceptable. A

What constitutes ti-le First Information Report

35. Let us consider whether the three telephonic messages
received by the Police at around 2:25 a.m. on 30.04.1999 or B
the statement made by Shyan Munshi recorded at Ashlok
Hospital constitute the FIR. It is the submission of the learned
senior counsel for the appellant-Manu Sharma that the
statement of Rohit Bal PW-70 ought to have been used for the
purpose of registration of FIR instead of Shyan Munshi PW-2.
It was demonstrated that Rohit Bal had made two calls on '100' C
on coming to know by other persons that Jessica Lal has been
shot inside the cafe. As against this, Shyan Munshi PW-2 was
very much within the vicinity of the place of occurrence and,
therefore, the statement of Shyan Munshi was used for the
purpose of registration of FIR. It is relevant to point out that PW- D
70 has never claimed to have witnessed the incident. He
confirmed his presence on the spot and having seen PW-20
accosting a man.

36. It was further contended by the learned senior counsel E
for the appellant-accused that PW-2 Shyan Munshi's statement
could not be looked into as the same is hit by Section 162
Cr.P.C. and on the other hand the defence seeks to rely on his
testimony. In support of the above claim, the learned senior
counsel for the appellant relying upon the judgments of this
F
Court in State of UP. vs. Bhagwant Kishore Joshi AIR 1964
SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC
18 contended that investigation of an offence can start either
on information or otherwise and that the receipt and recording
of FIR is not a condition precedent to the setting in motion of
criminal investigation. Placing reliance upon the said judgments, G
it has been further argued by the learned senior counsel for the
appellant that in the present case the three cryptic telephonic
messages received by the Police at around 2.20 a.m. on
30.04.1999 should be treated as FIR upon which the
investigation started and, therefore, the statement of PW-2 H
200 SUPREME COURT REPORTS [2010] 4 S.C.R.

A recorded by the Police later on around 3.40 a.m. could not be
treated as FIR but a statement under Section 162 of Cr.P.C.

37. Insofar as the decision in Bhagwant Kishore (supra),
it was noted in para 8 at page 224 that the information received
B by the officer was not vague, but contained precise particulars
of the acts of misappropriation committed by the accused and,
therefore, the said information could be treated as FIR. On the
contrary, it is evident from the facts established on record in
the present case that none of the three telephonic messages
C received by police furnished any detail about the offence or the
accused. The judgment in Khwaja Nazir Ahmad (supra) is also
distinguishable as the law laid down in the said case does not
concern the issue involved in the present case. Cryptic
telephonic messages could not be treated as FIR as their
object only is to get the police to the scene of offence and not
D to register the FIR. The said intention can also be clearly culled
. out from a bare reading of Section 154 of the Criminal
Procedure Code which states that the information, if given
orally, should be reduced in writing, read over to the informant,
signed by the informant and a copy of the same be given free
E of cost to the informant. In the case on hand, the object of
persons sending the telephonic messages including PW-70
Rohit Bal was only to bring the police to the scene of offence
and not to register the FIR. Learned senior counsel for the
accused-Manu Sharma has also relied upon a judgment of this
F Court in H.N. Rishbud & lnder Singh vs. The State of Delhi
(1955) SCR 1150 wherein this Court has held that investigation
usually starts on information relating to commission of an
offence given to an officer in-charge of a police station and
recorded under Section 154 of the Code. A reading of the said
G judgment clearly shows that investigation starts on information
relating to commission of an offence given to an officer in
charge of a police station and recorded under Section 154 of
the Code. By applying the ratio of the said judgment to the case
on hand, it can be clearly said that the investigation started after
H the recording of the statement of PW 2 as FIR around 3.40 a.m.
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 201
(NCT OF DELHI) [P. SATHASIVAM, J.]
on 30.04.1999. A

38.Learned senior counsel for the appellant also relied on
judgment of the Gujarat High Court in Mehr Vajsi Deva vs. State
of Gujarat, AIR 1965 Guj 143. A perusal of the said judgment
shows that the details of the offence given by the telephonic 8
message in the said judgment clearly described that 'one man
was assaulted by means of an axe at Sudama Chowk', on the
other hand, in the case on hand the telephonic message did
not give any details of the offence or accused and the same
was a vague information. The said judgment should be read C
per incuriam in view of plethora of judgments of this Court
wherein it has categorically held that cryptic telephonic
messages not giving the particulars of the offence or accused
are bereft of any details made to the police only for the purpose
of getting the police at the scene of offence and not for the
purpose of registering FIR. · D

39. Learned senior counsel for the appellant also relied on
the judgment of this Court in Superintendent of Police, CBI and
Others vs. Tapan Kumar Singh, (2003) 6 SCC 175. In the said
case, detailed information was given on telephone including the E
offence and the whereabouts of the accused. On the other
hand, in the present case, as observed earlier all the three
telephone calls barely mentioned that a fire was shot and a girl
was killed. The said information could only be concluded to have
been given to the police to get the police to the scene of offence F
and not with the object of registering FIR. In those
circumstances, the judgment in Tapan Kumar Singh (supra) has
no application to the facts of the case on hand.

40. It was further pointed out by the defence that Ex.P-12/
A wherein three PCR calls were recorded is the real FIR and G
the statement of PW-2 which was taken during investigation and
got signed by him is not the FIR and is thus to be treated as a
statement recorded under Section 161 Cr.P.C. and is hit by the
bar under Section 162 Cr.P.C. This argument is unacceptable
since as observed in the earlier paragraph the telephone call H
202 SUPREME COURT REPORTS [2010] 4 S.C.R.

A from PW-70 was too cryptic to amount to an FIR. At this
juncture, it is useful to refer to the decision of this court in the
case of State of U. P. vs. P.A. Madhu, ( 1984) 4 sec 83
wherein this Court has not accepted a similar argument and
held as under:-
B
5. To begin with, it appears that there was some dispute
about the dearness allowance claim of the labour from the
management which was referred to the Industrial Tribunal.
The respondent, who was the Secretary of the Union, was
looking after the case on behalf of the workers, while PWs
c 5 and 7 were the officers appearing on behalf of the
management before the Tribunal. The deceased, S.J.
Sirgaonkar, was Deputy Personnel Manager of the
Bombay Branch of M/s Hindustan Construction Company.
He was shot dead by the respondent after he (deceased),
D along with the other officers of the management, had come
out of the Tribunal's office at Meerut after filing their written
statements. Thereafter one of the eyewitnesses, S.K. Gui
(PW 7) asked someone to give a telephone call to the
police station, which was nearby, on receipt of which the
E police arrived at the spot, seized the pistol and took the
accused and some of the witnesses to the police station
where a formal FIR was registered. The Panchnama was
prepared and other formalities were, however, done at the
spot.
F
11. Durga Das, OW 1 who was admittedly at the scene of
the occurrence has stated that as the shooting started, PW
7 had given a telephonic message to the police station.
The High Court by an implied process of reasoning has
observed that if PW 7 had given the telephonic message
G
he would have mentioned the name of the assailant
because he was a full-fledged eye-witness but since his
name had not been mentioned it is the strongest possible
circumstance to discredit the prosecution case. We are,
however, unable to agree with this somewhat involved
H .
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 203
(NCT OF DELHI) [P. SATHASIVAM, J.]
reasoning of the High Court. In fact, OW 1 merely says that A
Gui telephoned to the police station about the firing and
said something in English. The High Court seems to have
presumed that from this the irresistible inference to be
drawn is that Gui did not mention the name of the assailant
of the deceased and on this ground alone the prosecution B
must fail. This argument is based on a serious error. In the
first place, the telephonic message was an extremely
cryptic one and could not be regarded as an FIR in any
sense of the term. Secondly, assuming that Gui had given
the telephonic message in utter chaos and confusion when c
shots after shots were being fired at the deceased, there
was no occasion for Gui to have narrated the entire story
of the occurrence. In fact, in his evidence Gui has denied
that he personally telephoned the police but he stated that
he asked somebody to telephone the police which
0
appears to be both logical and natural. Moreover, such a
cryptic .information on telephone has been held by this
Court to be of no value at all. In Tapinder Singh v. State
of Punjab this Court in identical circumstances observed
thus: [SCC para 4, p. 117: SCC (Cri) p. 332]
E
"The telephone message was received by Hari Singh, ASI
Police Station, City Kotwali at 5.35 p.m. on September 8,
1969. The person conveying the information did not
disclose his identity, nor did he give any other particulars
and all that is said to have been conveyed was that firing F
had taken place at the taxi stand, Ludhiana. This was, of
course, recorded in the daily diary of the police station by
the police officer responding to the telephone call. But
prima facie this cryptic and anonymous oral message
which did not in terms clearly specify a cognizable offence . G
cannot be treated as first information report. The mere fact
that this information was the first in point of time does not
by itself clothe it with the character of first information
report."
H
204 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Similar views have been expressed in Tapinder Singh vs. State
of Punjab (1970) 2 SCC 113, Damoder vs. Rajasthan (2004)
12 SCC 336 and Ramsinh Bavaji Jadeja vs. State of Gujarat
(1994) 2 sec 685.

It was argued and highlighted that since PW-2 Shyan
8
Munshi has been confronted with his signed statement i.e.
Ex.PW-2/A and 8, the whole evidence goes in tight of
Zahidurddin vs. Emperor, AIR 1947 PC 75. Apart from the
above decision reliance has further been placed on
Superintendent and Remembrancer of Legal Affairs to the State
C of W.B. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cat. 348
(Para 9) and Mer Vas Deva vs. State of Gujarat, AIR 1965 Guj.
143 (Para 9 & 10). We have carefully perused those decisions.
We are satisfied that nothing turns on this argument since the
said decisions only provide that where a statement made/given
D by a witness under Section 161 of the Code and signed by the
same is hit by the bar prescribed under Section 162 of the
Code, but nowhere do they say that the evidence deposed to
in Court by the said witness becomes admissible. As a matter
of fact, similar argument of the defence counsel was rejected
E in Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392.

"37. In assailing the above findings Mr Jethmalani first
contended that both the courts below ought not to have
taken into consideration and relied upon the evidence of
F PC PW 1 as the same was clearly inadmissible. In
expanding his argument Mr Jethmalani submitted that
while being examined in court the witness was permitted
to refresh his memory from the report he lodged with the
police in the morning of 12-11-1985 (Ext. 10/1 ), which was
treated as the FIR of the second incident even though by
G no stretch of imagination could that report be so treated,
as PW 96 had started investigation into the same the
previous night. That necessarily meant that Ext. 10/1 was
a statement made to a police officer during investigation
which could not be read for any purpose except for
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 205
(NCT OF DELHI) [P. SATHASIVAM, J.]
contradicting the maker thereof in view of Section 162(1) A
of the Code, argued Mr Jethmalani. In support of his
contention Mr Jethmalani relied upon the judgment of the
Privy Council in Zahiruddin v. Emperor. It appears that the
question as to whether Ext. 10/1 could be treated as an
FIR was raised both before the trial court and the High B
Court and it was answered in the affirmative. The courts
held that in the night of 11-11-1985, PW 96 did not
examine any witness in connection with the incident that
took place in that afternoon and, in fact, he did not take
any step towards the investigation as he and other police c
officers were busy in maintaining law and order in the
village.

38. Having gone through the evidence of PW 96 we are
constrained to say that the courts below were not justified
in treating Ext. 10/1 ·as an FIR. Undisputedly PW 96 had D
reached Village Laxmipur Bind Toli in the night of 11-11-
1985 to investigate into the two cases registered over the
incident that took place in the morning. He deposed that
after reaching the village at 10.30 p.m. he got information
about the second incident also and in.connection therewith E
he had talked to several persons. He, however, stated that
he did not record the statements of the persons to whom
he talked to. In cross-examination it was elicited from him
that on the very night he learnt that houses of some people
had been looted and set on fire, some people had been F
murdered and that some villagers were untraceable. While
being further cross-examined he volunteered that he had
started the investigation of the case registered over the
second incident in the same night. In the face of such
admissions of PW 96 and the various steps of G
investigation he took in connection with the second incident
there cannot be any escape from the conclusion that the
report lodged by PC PW 1 on the following morning could
only be treated as a statement recorded in accordance
with Section 161(3) of the Code and not as an FIR. The H
206 SUPREME COURT REPORTS [2010) 4 S.C.R.

A next question, therefore is whether the evidence of PC PW
1 is inadmissible as contended by Mr Jethmalani.

39. In the case of Zahiruddin the police had got the
statement of the principal witness which was, admittedly,
recorded during investigation signed by him. Besides,
B
during trial, while being examined-in-chief he refreshed his
memory from that statement. The trial ended in an acquittal
with a finding that when a police officer obtains a signed
statement from a witness in contravention of Section 162
of the Criminal Procedure Code his evidence must be
c rejected. In appeal the High Court set aside the order of
acquittal holding that breaches of the provisions of Section
162 Criminal Procedure Code were not in themselves
necessarily fatal to the proceedings and might in
appropriate circumstances be cured as the expression
D was under the terms of Section 537 of the Criminal
Procedure Code, 1898 (Section 465 of the Code). In
setting aside the order of the High Court the Privy Council
observed as under:

E " ... the effect of a contravention of the section depends on
the prohibition which has been contravened. If the
contravention consists in the signing of a statement made
to the police and reduced into writing, the evidence of the
witness who signed it does not become inadmissible.
F There are no words either in the section or elsewhere in
the statute which express or imply such a consequence.
Still less can it be said that the statute has the effect of
vitiating the whole proceedings when evidence is given by
a witness who has signed such a statement. But the value
of his evidence may be seriously impaired as a
G
consequence of the contravention of this statutory
safeguard against improper practices. The use by a
witness while he is giving evidence of a statement made
by him to the police raises different considerations. The
categorical prohibition of such use would be merely
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 207
(NCT OF DELHI) [P. SATHASIVAM, J.]
disregarded if reliance were to be placed on the evidence A
of a witness who had made material use of the statement
when he was giving evidence at the trial. When, therefore,
the Magistrate or presiding Judge discovers that a witness
has made material use of such a statement it is his duty
under the section to disregard the evidence of that B
witness as inadmissible. In the present case there is in the
note at the end of Mr Roy's examination-in-chief and, in
the judgment of the Magistrate what amounts to a finding
of fact that Mr Roy while giving his evidence made
substantial and material use of the signed statement given c
by him to the police, and the Magistrate was accordingly
bound to disregard his evidence. The Magistrate's reason
for doing so is too broadly stated, for it is not the mere fact
that Mr Roy had signed the statement but the fact that he
had it before him and consulted it in the witness box that .
0
renders his evidence incompetent." (emphasis supplied)

40. In our considered view the above-quoted passage is
of no assistance to the appellants herein for in the instant
case after PC PW 1 testified about the incident,
prosecution got the statement of PC PW 1 exhibited Ext. E
10/1 as according to it Ext. 10/1 was the FIR. Such a
course was legally permissible to the prosecution to
corroborate the witness in view of Section 157 of the
Evidence Act. Of course in a given case - as in the
present one - the court may on the basis of subsequent F
materials hold that the statement so recorded could not be
treated as the FIR and exclude the same from its
consideration as a piece of corroborative evidence in view
of Section 162 of the Code but then on that score alone
the evidence of a witness cannot be held to be G
inadmissible. The case of Zahiruddin turned on its own
facts, particularly the fact that during his examination-in-
chief the witness was allowed to refresh his memory from
the statement recorded under Section 161 Criminal
Procedure Code, unlike the present one where the H
208 SUPREME COURT REPORTS [2010] 4 S.C.R.

A statement was admitted in evidence after PC PW 1 had
testified about the facts from his own memory."

41. The information about the commission of a cognizable
offence given "in person at the Police Station" and the
information about a cognizable offence given "on telephone"
8
have forever been treated by this Court on different pedestals.
The rationale for the said differential treatment to the two
situations is, that the information given by any individual on
telephone to the police is not for the purpose of lodging a First
Information Report, but rather to request the police to reach the
C place of occurrence; whereas the information about the
commission of an offence given in person by a witness or
anybody else to the police is for the purpose of lodging a First
Information Report. Identifying the said objective difference
between the two situations, this Court has categorically held in
D a plethora of judgments that a CrYPtic telephonic message of a
cognizable offence cannot be treated as a First Information
Report under the Code. It has also been held in a number of ·
judgments by this Court that merely because the information
given on phone was prior in time would not mean that the same
E would be treated as the First Information Report, as understood
under the Code. This view has been reiterated in Ramesh
Baburao Devaskar and Others vs. State of Maharashtra
(2007) 13 sec 501, that a cryptic message given on telephone
by somebody who does not disclose his identity may not satisfy
F the requirement of Section 154 of the Code of Criminal
Procedure.

42. In view of the above discussion, the three telephonic
messages received by the police around 2.25 a.m. on
30.04.1999 did not constitute the FIR under Section 154 of the
G Code and the statement of Shyan Munshi PW-2 was rightly
registered as the FIR.

42A. Seizure of Tata Safari & broken glass pieces and live
cartridge:
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 209
(NCT OF DELHI) [P. SATHASIVAM, J.]
(i) The testimony of PW-30 has proved the presence A
of Tata Safari CH-01-W-6535 at the spot after the
incident which testimony is duly corroborated by
PW-83, PW-78, PW-100 and PW-101 and by
documents Ex PW 101/DK-1, which shows about
the PCR message about this vehicle at 6.00 a.m. B
on 30.04.1999. In his evidence, PW-30 has
informed that he left PS Mehrauli along with
Inspector Surender Sharma at 2.30/2.45 a.m on
30.04.1999 and reached 'Qutub Colonnade' within
2-4 minutes. He further informed that SHO S.K. c
Sharma directed him to keep vigil at the parking so
that nobody is allowed to take away cars parked
there. The following information is relevant:

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

At this stage, the witness has been sent out to
examine the vehicle, parked, outside the court room, along
H
210 SUPREME COURT REPORTS [2010] 4 S.C.R.

A with Junior of Shri G.K. Bharti, Advocate and Sh~i Ghai,
Advocate.

It is the same Tata Safari vehicle, which was hit by
me on that night. It is exhibited as article Ex.PW 30/X."
8 It is clear from his evidence that while Tata Safari CH-01-W-
6535 was being taken away forcibly from the scene of
occurrence at about 3.45 a.m. by accused Vikas Yadav and
both Vikas Yadav and Amardeep Singh Gill came in a Tata
Sierra, PW-30 gave a danda blow on the right rear side of the
C window of the car.

(ii) The prosecution case further shows that the first
police officer to r~ach the place of occurreAce at
02.17 a.m. on 30.04.1999 was HC Devi Singh PW-
D 83. He has stated that there was one black Tata
Safari parked on the left side towards Mehrauli
besides other cars on the right side of the gate. He
has further stated that PW-30 was deputed by SHO
near the parked vehicles at Qutub Colonnade. He
further stated that SI Sarath Kumar PW-78 and SI
E
Sunil Kumar PW-101 had also visited the spot.

(iii) SI Sharad Kumar PW-78 has stated that on receipt
of DD No 41 A Ex PW 13/A in respect of firing
incident in Qutub Colonnade, he along with Ct.
F Meenu Mathew reached Qutub Colonnade. SI Sunil
Kumar and Ct Subhash Chand also reached Qutub
Colonnade almost the same time when he reached.
At Qutub Colonnade on the left side near the gate
a black Tata Safari car was parked besides other
G cars. SHO lnsp. Surender Kumar Sharma also
reached there. While leaving for Ashlok Hospital,
the SHO asked Delhi Home Guard Shrawan Kumar
to remain at the gate of the 'Qutub Colonnade'.
PW-100 SI Sunil Kumar has stated that when he
H reached Q1..1tub Colonnade he found a black Tata
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 211
(NCT OF DELHI) [P. SATHASIVAM, J.]
Safari car parked on the left side besides as he A
entered the colony and other vehicles were parked
on the right. The PW-30 also identified the black
Tata Safari CH-01-W-6535 to be the same which
he had seen parked at the scene of crime and the
same in exhibit article PW 30/X. SHO S.K. Sharma B
had also reached the spot along with staff including
DHG Shrawan Kumar. SHO detailed DHG Shrawan
Kumar to watch the vehicle already parked there
and asked him (SI Sunil Kumar) to proceed
immediately to Ashlok Hospital.
c
(iv) Su render Kumar Sharma PW-101, SHO PS
Mehrauli has stated that on receipt of information
he, ASI Kailash, Ct Ram Niwas, Ct Ramphal, Ct
Yatender Singh left for the spot in the official gypsy.
PW-30 met them at the gate of police station and D
he also picked him (Sharvan Kumar) up in the
Gypsy and reached Qutub Colonnade. He found
one black colour Tata Safari on the left side of Qutub
Colonnade gate and 4 or 5 vehicles including one
PCR Van on the right side. PW-30 was left at the E
gate to ensure that no vehicles leave the spot.

It is clear from the above testimony that black Tata Safari was
found parked near the gate of 'Qutub Colonnade' when they
reached at the spot on receipt of intimation regarding firing
F
incident and Shravan Kumar PW-30 was detailed by SHO PW-
101 to ensure that no vehicle leaves the spot. It is the argument
of the learned senior counsel for the appellant Manu Sharma
that PW-30 was not present at the spot of the incident placing
its reliance on DD No.40A and 43A dated 30.04.1999. A
perusal of FIR 286 of 1999 dated 30.04.1999 under Section G
308/34 IPC PS Mehrauli Ex-CW-2/B shows that the said 'rukka'
was sent by SI Rishi Pal through Balwan Singh from AllMS and
not from Dera Gaon. The said FIR also indicates that SI Rishi
Pal by 2.30 a.m. had already recorded the statement of the
H
212 SUPREME COURT REPORTS [2010] 4 S.C.R.

A victim at AllMS and had not sent the same with Balwan Singh
with 'rukka' to PS, Mehrauli. In those circumstances, the version
of PW-30 and PW-101 that PW-30 met him at the gate of the
PS when PW-101 was going out with other staff is reliable and
acceptable. Further, the presence of PW-30 at the spot is
8 corroborated by Sharad Kumar Bisnoi, PW-78, HC Devi Singh,
PW-83, SI Sunil Kumar, PW-100 and Surender Sharma, PW-
101. It was also highlighted that after this incident PW-30 has
been recruited to the post of Constable though he was not
eligible as he was under metric and overage. Learned Solicitor
C General appearing for the State pointed out that instances are
not unknown wherein persons other than permanent police
officers when help the investigating agency in solving crimes
have been recruited in Delhi Police and strongly submitted that
the evidence of Shravan Kumar cannot be discredited on this
point. The said submission cannot be ignored.
D
43. PW-30 has categorically stated that while he was on
duty he saw a vehicle Tata Sierra White Colour coming slowly
from the side of Qutub at about 03.40 am or 03.45 am. There
were two persons in the said vehicle on the front seat. They
E stopped the vehicle near Tata Safari of black colour. One boy
came down from the said vehicle and opened Tata Safari with
a key. PW-30 told him not to do so but the said boy forcibly
entered the Tata Safari and took it away. He gave a lathi blow
on the glass of window pane and it broke due to danda blow.
F He noted down the number of the black Tata Safari as CH-01-
W-6535. The witness also identified Tata Safari which was hit
by him on that night, which is exhibit PW 30/X. PW 30 also
identified that Tata Sierra was driven by Amardeep Singh Gill
whereas Vikas Yadav drove away black Tata Safari.
G 44. lnsp. Surender Kumar Sharma PW-101 also stated that
when he came back, he found SI Sunil & SI Sharad as well as
Shravan, they told him that two boys had come and had forcibly
taken away the Tata Safari. Out of the two boys one was Sikh,
PW-30 also informed that he had broken the right backside
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 213
(NCT OF DELHI) [P. SATHASIVAM, J.]
window panel of Safari with his Danda. He also gave the A
number of the Tata Safari as CH-01-W-6535. SI Sunil Kumar
PW-100 has also stated that two persons had got into the Tata
Safari and had driven away. The testimony of the above
witnesses is duly corroborated by document Ex PW 101/DK-
1. Thus it is clearly established by cogent evidence that on B
30.04.1999 at about 03.40 or 03.45 am accused Amardeep
Singh Gill and Vikas Yadav came in a white colour Tata Sierra
Car and accused Vikas Yadav got down and drove away black
Tata Safari No. CH-01-6535.

Tata Safari at Noida:
c
45. It was argued that even according to PW-100, the Tata
Safari was found available in Kamal, hence seizure of the very
same vehicle (Tata Safari) at Noida is not acceptable. It is true
that PW-100 has stated that he discussed the case with D
Inspector Surender Sharma and who informed him that Vehicle
No. CH-01-W~6535 which was lifted from the spot in the
morning is found to have been registered in the name of
Piccadilly Agro Industries and it was also found in Kamal and
he further informed that Sidharth Vashisht alias Manu Sharma 'E
is the Director of the said Industries who is residing in
H.No.229, Sector 9C, Chandigarh. A perusal of his entire
evidence shows that he had stated that the vehicle was found
registered in the name of Piccadilly Agro Industries, Bhadson,
which was also found in Kamal and SI Pankaj Malik along with F
his staff has been detailed for the investigation of the aforesaid
aspect of the case. As rightly pointed out by the counsel for the
State, the testimony of PW-100 show that he was referring to
the Piccadilly Agro Industries having been found at Bhadson
Kamal and not the vehicle/Tata Safari. It was also pointed out G
when Manu Sharma was questioned under Section 313
Cr.P.C. particularly question No. 119 the doubt about the
vehicle has been erased. Question No. 119 put to Manu
Sharma and his answer is as follows:-
H
214 SUPREME COURT REPORTS [2010] 4 S.C.R.

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

Ans. It is correct that Vehicle No. CH-01-W-6535 is
registered in the name of Piccadilly Agro Industries Ltd.,
Piccadilly Cinema, Sector 34, Chandigarh."
D
46. Apart from this, PW-101 also stated that his senior
officers found out the name of the owner and informed him that
it was registered in the name of Piccadilly Agro Industries Ltd.,
Sector-34, Chandigarh. He further explained that his officers
E informed him that this vehicle was used by Manu Sharma's
office which was at Bhadson, District Karna!. It is further seen
from his evidence that he sent SI Pankaj to Chandigarh and
Inspector Raman Lamba to Bhadson. In this regard the
evidence of PW-87 Raman Lamba is relevant. He deposed
F before the Court that he was instructed that the inmates of Black
Tata Safari No. CH-01-W-6535 was involved in the case and
he was asked to search the same. As directed, he left Delhi
on 30.04.1999 and reached Bhadson at the premises of
Piccadilly Agro Industries. According to him, he met Major
G Sood and the sugar mill was closed at that time. He also learnt
that the sugar mill was not functioning oecause of off season
since 25.04.1999. From Bhadson, he went to Kurukshetra and
he tried to locate Black Tata Safari in the aforesaid sugar factory
at Bhadson but did not find it. Even ar Chandigarh, Tata Safari
was not available in his house at Sector 229, Sector 9C,
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 215
(NCT OF DELHI) [P. SATHASIVAM, J.]
Chandigarh. SI Pankaj Malik PW-85 also deposed before the A
court that on 30.04.1999 he was deputed by Inspector
Surender Kumar to trace out black colour Tata Safari car
bearing Registration No. CH-01-W-6535. As rightly pointed out
that the vehicle being recovered at Kamal on 30.04.1999, the
question of sending SI Pankaj Malik does not arise. From the B
statements of Sunil Kumar PW-100, Inspector Surender Kumar
Sharma PW-101, Inspector Raman Lamba PW-87, ASI
Nirbhaya Singh PW-80 and SI Pankaj Malik PW-85, it is clear
that Tata Safari vehicle was being searched by Inspector
Raman Lamba PW-87 and SI Pankaj Malik PW-85 and other c
police officers at various places in Delhi, Haryana and
Chandigarh. As the said vehicle was found on 02.05.1999 at
Noida and the same was taken into possession through a
seizure memo prepared by Noida Police. The same was taken
into possession by Delhi Police on 03.05.1999 after taking
0
appropriate orders from the Magistrate Ghaziabad.

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

47. PW-91 SI BD Dubey, in his evidence has stated that E
information was received that the vehicle involved in Jessica!
Lal murder case was parked at NTPC Township. They reached
NTPC Township at about 06.30 p.m. on 02.05.99 and found a
Safari Vehicle parked there bearing No. CH-01-W-6535. He
identified the vehicle Ex. article PW 30/X in the court. Recovery F
memo prepared is Ex PW 74/A which is in his handwriting and
bears his signatures at point C and that of Sudesh Gupta SO
at point B. PW-74 stated that vehicle Tata Safari was recovered
vide Ex. PW 74/A on 02.05.99. He also identified signatures
of SI BD Dubey & SI Sudesh Gupta on the same. Ex PW 74/ G
A Seizure Memo of Tata Safari and live cartridge with 'C' mark
etc. clearly establish the recovery of the same at Noida, beyond
any shadow of doubt vide Ex PW 74/C Seizure of Live cartridge
by lnsp. Surender Kr. Sharma dated 26.06.1999.

48. PW-101 in his evidence has stated that: H
216 SUPREME COURT REPORTS [2010] 4 S.C.R.

A "On 03.05.1999 in the morning with SI Vijay Kumar and
other staff I went to Sector 24 NOIDA and found the Tata
Safari No CH-01-W-6535 Black Tata Safari lying in case
FIR No. 115/99 U/s 25 Arms Act. SI BO Dubey handed
over a pullanda of glass pieces which were found inside
B the vehicle by the NOIDA police. I seized the vehicle
pullanda and the documents two tape recorder, one
prescription of Nagpal Nursing Home and one letter written
to Vijay Sharma. Every thing was seized vide seizure
memo Ex PW 100/DB which bears my signature at point
c A and of SI BO Dubey at point B. The pullanda of broken
glasses were sealed with the seal of BO when it was
presented to me."

49. SI BO Dubey PW-91 and Ct. Satish Kumar PW-74 of
PS Sec.24, Neida have deposed that they found black Tata
D Safari No. CH-01-W-6535 abandoned at the NTPC Township
pursuant to which FIR No. 115/99 u/s 25 Arms Act was
registered vide Ex. PW 74/B. The said Tata Safari was seized
under seizure memo Ex PW 74/A. PW 101 has clearly deposed
that about 10 pm on 02.05.1999 he got the information with
E regard to the Tata Safari having been found at Neida. On
03.05.1999, he moved an application before the ACJM, Neida
for the superdari of the Tata Safari vide Ex. PW 101/1 and in
pursuance of the orders of ACJM Ex. PW 101/2 and he seized
the same vide seizure memo dated 03.05.1999 vide Ex. PW
F 100/DB along with other articles including broken glass pieces
which were duly sealed with the seal of BD. The seizure memo
Ex. PW 100/DB is duly signed by SI BD Dubey. The said Tata
Safari and the broken glass pieces duly sealed with the seal
of BO have been deposited in the Malkhana of PS Mehrauli
G on 03.05.1999. PW-101 has also stated that SI Vijay Kumar
accompanied him to Neida and that seizure memo Ex. PW 101/
DB was in the handwriting of SI Vijay Kumar of PS Mehrauli.
Ex PW 18/DA at item no. 7 & 9 in the letter sent to CFSL
mentioned about the seal of BO on the sealed parcel containing
H broken glass pieces. The report of CFSL vide Ex PW 90/A
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 217
(NCT OF DELHI) [P. SATHASIVAM, J.]
proved that on comparison of S 1 and S2 the two window panes A
of the left and the right rear side of the said Tata Safari are
different. Thus this convincing testimony of PW 101 duly
corroborated by documents cannot be discarded simply
because SI Sudesh Gupta (Noida Police) failed to mention the
seizure of broken glass pieces on 02.05.1999. B

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

50. From the evidence on record it has been proved by
the prosecution that appellant/accused Sidhartha Vashisht @ C
Manu Sharma along with co-accused Amardeep Singh Gill,
Alok Khanna and Vikas Yadav were present in the said party
at Tamarind Cafe on the night of occurrence. The presence of
Tata Safari CH-01-W-6535 at the place of occurrence and its
being forcibly taken at around 3.45 am after the incident has D
also been proved beyond reasonable doubt. Manbir Singh PW-
18 has proved that the said Tata Safari CH-01-W-6535 is
registered in the name of Piccadilly Agro Industries Ltd.,
Chandigarh. It has also been proved from the testimony of PW-
25, PW-26, PW-48 and the annual report of Piccadilly that E
accused Siddhartha Vashisht @ Manu Sharma was the
director in Piccadilly Agro Industries which finding has also
been arrived at by the Trial Court in favour of the prosecution.
Thus a reasonable inference has to be drawn from the above
mentioned evidence that accused Manu Sharma used the said F
Tata Safari for coming to Qutub Colonnade on the fateful night
of 29/30.04.1999.

Non-Recovery of the weapon of offence and the
evaluation of Bullets & Cartridges:
G
51. Sh. Surender Singh PW-14 has proved that pistol No.
B-56943 U make P. Berretta made in Italy of .22" bore was
sold to accused Sidhartha Vashisht @ Manu Sharma on
31.01.1999. The relevant exhibits in this regard are Ex. PW 14/
A in the stock register for purchase of P. Berrette Pistol from H
218 SUPREME COURT REPORTS [201 OJ 4 S.C.R.

A Smt. Azra Javed, Ex. PW 14/C at Sr. No. 3350 of sale of Pistol
to Sidharth Vashisht, Ex. PW 14/D photocopy of cash memo,
seizure memo Ex PW 14/F dated 19.05.1999 by SI Vijay
Kumar PW-76. The endorsement on the license of Manu
Sharma regarding sale of Pistol is Ex. PW 14/8.
8
52. It is relevant to point out that the accused Sidharth
Vashisht @ Manu Sharma, when he surrendered on
06.05.1999, also surrendered his arms license Ex PW 7/8
which has been seized vide seizure memo vide Ex. PW 80/8
by Inspector Raman Lamba PW 87. The testimony of PW-87
C is further corroborated by PW-80. The said arms license duly
bears endorsement about the sale of .22" bore pistol No. 8-
56943 U, make P. Berretta, made in Italy. The case of accused
Sidhartha Vashisht @ Manu Sharma as per his statement u/s
313 Cr.P.C. is that on the night of 30.04.1999 and 01.05.1999
D when a raid was conducted at his farm house at Samalkha, his
pistol ammunitions and arms license were taken away. As
rightly pointed out by the counsel for the State that the defence
of the accused is totally incorrect in view of the positive
evidence adduced on record. This defence of the accused
E Sidharth Vashisht @ Manu Sharma is a clear afterthought as
no complaint was lodged by the accused in this regard nor the
same was mentioned when he was twice produced for police
remand before the MM for recovery of the pistol employed in
the incident.
F
53. It is the claim of the learned senior counsel for the
appellant/Manu Sharma that the seizure memo dated
06.05.1999 with reference to the arms license is fabricated as
the license has been taken from the farmhouse of the accused
G on 30.04.1999/01.05.1999. Learned Solicitor General
appearing on the side of the State demonstrated that the above
contention is false one. Since, on 06.05.1999, when the
accused Manu Sharma surrendered, he was accompanied by
the lawyer in whose presence his arrest memo was prepared
and the lawyer also signed the same. However, as rightly
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 219
(NCT OF DELHI) [P. SATHASIVAM, J.]
pointed out with reference to the arms license which was also A
produced by them, the same does not bear the signature of the
said lawyer. The learned counsel for the State further pointed
out that the said lawyer declined to sign the seizure memo that
was the reason that it does not bear the signature of the said
lawyer. It is to be remembered that admittedly the appellant/ B
accused nowhere came out with an explanation. His arms
license was taken away by the Police in 30.04/01.05.1999 with
any seizure memo, why he has not lodged any report about the
same. It is also relevant to point out when the accused after
surrendering before the police of Chandigarh on 06.05.1999 c
was produced before the Magistrate in Delhi. The police sought
remand on two occasions specifically for recovery of the
weapon of the offence. It was pointed out by the prosecution
that Manu Sharma was duly represented by lawyers who did
not point out on both occasions that the pistol had already been D
taken by the Police. The State also denied the said claim of
the accused as false and concocted ..

54. Even, Shanker Mukhiya PW-44, who is the caretaker
of farm house of Manu Sharma at Samalkha who was produced
by the prosecution for the purpose of accused's visit to farm E
house also did not mention in his examination in chief or in
cross by the Spl. PP about the pistol. It is only to a leading
question put up by the counsel for accused that those articles
included pistol and arms licence of Manu Sharma, witness
stated "it is correct". The defence of the accused was for F
ammunition as well as for which no suggestion has been ever
put. C.N. Kumar PW-43, Dy. SP NCRB has deposed that he
had not received any complaint of theft or loss of this P. Berretta
pistol. The pistol could not be recovered despite extensive
efforts made to trace the pistol pursuant to the disclosures of G
the accused and the arms license was however surrendered
on 06.05.1999 vide seizure memo Ex. PW 80/B. It is thus the
case of the counsel for Manu Sharma that he was in possession
and custody of his P. Beretta pistol on 29/30.04.1999 as even
according to him it has been taken away on 30.04.1999/ H
220 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 01.05.1999. This was a licensed pistol and thereby the onus
was on the accused to show where it was and that the
possession and whereabouts of the pistol are in the special
knowledge of accused Sidharth Vashisht @ Manu Sharma and
having failed to produce the same an adverse inference has
B to be drawn against him i.n. terms of Section 106 of Evidence
Act. In this regard reliance may be placed on Sucha Singh vs.
State of Punjab (2001) 4 SCC 375 at page 381:

"It is pointed out that Section 106 of the Evidence Act is
not intended to relieve the prosecution of its burden to
c prove the guilt of the accused beyond reasonable doubt.
but the section would apply to cases where the
prosecution has succeeded in proving facts for which a
reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by
D virtue of special knowledge regarding such facts failed to
offer any explanation which might drive the court to draw
a different inference" ·

In addition, the prosecution by way of acceptable evidence has
E proved beyond reasonable doubt that:

(a) Manu Sharma accused was the owner and
possessed .22" P. Berretta Pistol made in Italy.

(b) Two empty cartridges cases of the .22" with 'C'
F mark recovered from the spot.

(c) The mutilated lead recovered from the skull of
deceased was of .22" and could have been fired
from a standard .22" caliber firearm.
G (d) From the Tata Safari live cartridge of .22" with mark
'C' was recovered on 02. 05.1999.

(e) The two .22" cartridge cases from the spot and the
.22" cartridge recovered from Tata Safari have
H similar head stamp of 'C' indicates that they are of
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 221
(NCT OF DELHI) [P. SATHASIVAM, J.]
the same make. A

(f) The two .22" cartridge cases recovered from the
spot are to be rim fired, rimmed steel cartridge
cases.

(g) The two .22" cartridge cases of 'C' mark were lying B
near each other on the counter and so could not
have been fired by 2 different persons.

The testimony of Naveen Chopra PW-7 that he sold 25
cartridges of .22" bore on 04.02.1999 is also of no relevance C
to the defence of the accused when PW-7 says in the witness
box that he had sold 25 cartridges of .22 bore with Mark 'KF'
and not with 'C'. The appellant/accused has relied on the
testimony of PW-7 to show that the cartridges sold to appellant/
accused had 'KF' marking is wholly unwarranted. D

55. The prosecution has established that the appellant/
accused was the holder of a .22" bore Pistol; he was witnessed
by Beena Ramani as the perpetrator of the crime; a mutilated
.22" lead was recovered from the skull of the deceased; two
empties of .22" make with mark 'C' were found at the spot; a E
.22" live cartridge with mark 'C' was found in the Tata Safari
of the appellant/accused which was found abandoned at Naida
and for which no theft report was lodged; that his prior and
subsequent conduct of having got the Tata Safari removed from
the spot, of absconding; refusal to TIP without having any basis; F
that he even denied his presence at the spot, clearly prove
beyond reasonable doubt leaving no manner of doubt that he
is guilty of the offence of murdering Jessica Lal by using
firearm and destroying evidence thereafter.
G
56. It is pointed out by the State that when the accused
Manu Shc;irma was arrested on 06.05.1999, the police filed an
application dated 07.05.1999 for police remand of the accused
for recovery of pistol. The defence filed a reply to the said
application on the same day i.e., 07.05.1999 and thereupon the H
222 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Metropolitan Magistrate passed an order on the same day
granting seven days police custody of the accused for recovery
of pistol. The accused despite forever maintaining that the
police had illegally taken away the pistol from his farmhouse
on 30.04.1999/01.05.1999, did not take this ground in the reply
B to remand application and argument to the said effect was
recorded in the remand order by the Magistrate. The only
inevitable conclusion that could be reached from the said turn
of events is that the pistol was still in custody of the accused
and had never been recovered by the police from his
c farmhouse. In the reply dated 07.05.1999 filed by the accused
to the remand application, there are interpolations in the reply
in black ink in two handwritings to the effect that the pistol had
already been recovered from the person of the accused. The
assertion that the words in two handwritings in black ink are
interpolations gain strength from the fact that nowhere in the
0
remand order dated 07.05.1999 has it come that the accused
has taken the plea that the pistol had already been recovered.
It is pointed out by the learned Solicitor General that the Courts
below ought to have drawn an adverse inference from the said
E facts but have failed to do so. Thus this evidence coupled with
the testimony of Shyan Munshi, PW-2, that the person in white
T-shirt who was asking for whisky took out a pistol from dub of
his pant and fired a shot in the air and the other witnesses PWs
1,6, 20 and 24 that the person in white T-shirt was Manu
Sharma, a positive inference beyond reasonable doubt has to
F be drawn that Manu Sharma fired from his .22" bore pistol which
resulted in the death of Jessica Lal on the fateful night of 29/
30.04.1999.

57. Mr. Ram Jethmalani, learned senior counsel, appearing
G for the accused pointed out that no question has been put to
the accused in his examination under Section 313 Cr.P.C. with
reference to the pistol and shooting by him for this. The State
has placed reliance on the following questions which were
specifically put to the accused Manu Sharma being Question
H Nos. 64, 65, 66, 67 & 72 which are as under:
SIDHARTHA VASHISHT @ MANU SHARMA v. 223
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
"Q.64 It is further in evidence of PW-20 that she had A
identified you Manu Sharma as the person whom she has
tried to stop and talked to. She added further that the
person who was confronted by her on the stairs was some
what like you Manu Sharma and also identified you on
08.05.1999 at PS Mehrauli. What you have to say in this B
regard?

Ans. It is false and incorrect.

Q.65. It is further in evidence of PW-20 that the companion
of Shyan Munshi (you Manu Sharma) was wearing T-shirt C
and she asked you Manu Sharma as to why you were here
and why you shot Jessica and she also asked you to give
her your gun as she thought you were having the gun. What
you have to say in this regard?
D
Ans. It is false and incorrect.

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

Ans. It is false and incorrect.

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

A perusal of above questions and answers given by Manu
Sharma were either evasive or' incorrect and as rightly pointed
out by the learned Solicitor General, an adverse inference H
224 SUPREME COURT REPORTS [2010] 4 S.C.R.

A deserves to be drawn for such acts of the appellant-Manu
Sharma.

rne implication of delay in recording statements

58. Mr. Ram Jethmalani, learned senior counsel for the
B appellant-Manu Sharma by placing various decision contended
that the delay in recording statements of witnesses is fatal to
the case of the prosecution, when the trial Court rightly accepted
the same, however, the High Court committed an error in
ignoring the said vital aspect. For this, learned Solicitor General
C submitted that the said contention is based on incorrect
understanding of law and its wrong application to the facts of
this case. The first judgment relied on by the learned senior
counsel for the appellant-Manu Sharma is in Ganesh Bhavan
Patel vs. State of Maharashtra, (1978) 4 SCC 371. In that
D case, the witnesses were known and could have been
examined when the Investigating Officer visited the scene of
occurrence or soon thereafter. In the present case, there were
about 100 or more persons present at the party. The identity
of all such persons took substantial amount of time to
E determine. Consequent to the large number of witnesses, their
interrogation also consequently took a substantial amount of
time. Unlike the said decision, in the present case, there are
no concomitant circumstances to suggest that the investigator
was deliberately making time with a view to give a particular
F shape to the case. The details of investigation conducted on
each day are very clearly brought out in the evidence of the
various witnesses. Furthermore, the identity of the appellant as
a suspect in the present case was not the consequence of any
delay. Thus, the delay, if any, in recording the evidence of
G witnesses in the present case cannot be considered as an
infirmity in the prosecution case.

59. The judgment in Maruti Rama Naik vs. State of
Mahrashtra, (2003) 10 SCC 670, relied on is also
distinguishable. The delay in recording the statement in that
H case was coupled with the unnatural conduct of the witness and
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 225
(NCT OF DELHI) [P. SATHASIVAM, J.]
that was what made the evidence of the said witness unreliable, A
which is not so in the present case.

60. The other judgment in Jagjit Singh vs. State of Punjab
(2005) 3 SCC 689 is also distinguishable. In that case, the
delay in recording the evidence of PW-6 was coupled with
B
several other factors which made her testimony unreliable,
including the finding that she implicated the appellant only at
the prompting of her father and that otherwise she had not
named the appellant as an accused. Furthermore, there was
no explanation regarding the delay in that case. The facts of C
that case are, therefore, clearly different from the present case.

61. The defence seeks to discredit the statement of PW-
1 Deepak Bhojwani on two counts, firstly that statement is
recorded after 14 days and secondly, there are various
improvements, in his statement. It is next contended by the D
defence to believe this man is to disbelieve Beena Ramani.
According to him, the prosecution did not know even on
14.05.1999 the details of their story and thus resulting in various
improvements in the testimony of this witness, in the witness
box. This contention of the defence looses sight of the fact that E
much prior to 14.05.1'999 Manu Sharma had surrendered on
06.05.1999 and had made his disclosures and thus there could
be no question of not knowing the facts on 14.05.1999. Had
the witnesses been planted, the witnesses would have rendered
a parrot like testimony. PW-1 has explicitly stated that on F
30.04.1999 he had told the police at the Apollo Hospital all that
he knew. This being the case, it cannot be said that the
testimony of the witness should be thrown out for the delay in
recording the statement by the Police. Clearly, PW-1 was not
an eye witness, this fact must have been realized by PW-100 G
and 101, therefore, they felt no urgency in addressing this
aspect of the investigation i.e., recording of the statement of ·
PW-1. It is stated by the State that as there were number of
witnesses to be examined the said examination continued for
days. Witnesses Parikshit Sagar and Andleep Sehgal were H
226 SUPREME COURT REPORTS [2010] 4 S.C.R.

A also examined on 14.05.1999. Further the presence of Deepak
Bhojwani can also not be belied in view of the testimony of
Sahana Mukherjee PW-29 and Sabrina Lal PW-73. In any
case, any defect by delay in examination of witnesses in the
manner of investigation cannot be a ground to condemn the
B witness. Further Section 162 Cr.P.C. is very clear that it is not
mandatory for the police to record every statement. In other
words, law contemplates a situation where there might be
witnesses who depose in Court but whose previous statements
have not been recorded.
c 62. It is next contended by the learned senior counsel for
the appellant-Manu Sharma that there was a delay in recording
the statement of Deepak Bhojwani and his name having not
been found from the list of guests prepared by George Mailhot,
Ex. 24/A. It was further pointed out that the list was not a
D conclusive list and was prepared by George Mailhot on the
basis of remembrance and other witnesses have also admitted
the presence of Deepak Bhojwani. This is more so relevant as
the invited guests were also entitled to bring guests with them.
The statements of witnesses were recorded not only by the 1.0.
E himself but by other officials as well who were helping him in
investigation. The delay in recording the statement of Deepak
Bhojwani occurred due to natural flow of statements of various
witnesses. The statement of Deepak Bhojwani PW-1, was
recorded by ACP Durga Prasad PW-92, who stated the name
F of Deepak Bhojwani occurred during the course of interrogation
of other guests/witnesses. The evidence of PW-1 is relevant
for a limited purpose i.e., proving the presence/identity of Manu
Sharma and his desire for liquor in the party which part of
evidence has also been given by other witnesses in so many
G words, prior to Deepak Bhojwani as well. The said witness in
his evidence has categorically stated as under:

"Few of the police officials came to Apollo Hospital along
with the Ambulance and few of them returned to Qutub
Colonnade. I did not make any statement to the police in
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 227
(NCT OF DELHI) [P. SATHASIVAM, J.]
Apollo Hospital. Since _I had not seen the incident being A
taking place and at Ashlok and Apollo Hospital discussion
was going on as \o who had done this and it was also
being discussed that the culprit was wearing Blue Denim
Jean and White Shirt and was fair and was little short in
height then I assessed that he was the same person who B
came to me to arrange drinks for him. I had told the police
in Apollo Hospital that it was Manu Sharma who was with
the similar description as was discussed amongst friends
on which police had told me that they would call me."

63. In Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334, C
this Court held that mere delay in examination of the witnesses
for a few days cannot, in all cases, be termed to be fatal so far
as the prosecution is concerned. There may be several
reasons. When the delay is explained, whatever be the length
of the delay, the Court can act on the testimony of the witness D
if it is found to be cogent and credible. In Prithvi vs. Mam Raj,
(2004) 13 sec 279, it was held that delay in recording tF.e
statement of the witness can occur due to various reasons and
can have several explanations and that it is for the Court to
assess the explanation and, if satisfied, accept the statement E·
of the witness. The same principle has been reiterated in
Ganesh/al vs. State of Mahrashtra (1992) 3 SCC 106.

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

By letter dated 06.07.1999, the seized material was
forwarded to CFSL for examination and expert opinion and, G
inter alia, the following queries were made to be opined by the
CFSL:

"5. Please examined and opine whether the two
empties pre.sent in parcel mentioned at SI No.5 H
228 SUPREME COURT REPORTS [2010] 4 S.C.R.

A have been fired from the same weapon?

6. Please examine and opine whether the bullet lead
in parcel No.6 and the bullet empties in parcel No.5
have been fired from a standard five arm or a
countrymade fire arm?
B
7. Please examine and opine whether ejector, trigger,
chamber, magazine or other chamber marks are
present on the live bullet empties contained in
parcel Nos. 6 & 5 respectively?
c
8. If answer to querry No. 7 is yes then whether these
marks are similar and caused by the same fire
arm?"

The Ballistics Division of CFSL gave report in respect of
D the queries as under:

"(1) The .22" badly mutilated lead bullet (marked BC/
1) of No.3 could have been fired from a standard
.22" caliber firearm.
E
(2) The two .22" cartridge cases marked C/1 and C/2
have been fired from two different .22" caliber
standard firearms.

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

G (4) The two .22" cartridge cases (marked C/1 & C/2)
of parcel No.4 and the .22" cartridge (marked Cl
3) of parcel No.5 have similar Head Stamp of 'C'
indicating that they are of the same make. No
opinion on their series (lot/batch) could however be
H given."
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 229
(NCT OF DELHI) [P. SATHASIVAM, J.]

According to the State the same also contained inconclusive A
opinion. It was pointed out that the State has neither relied on
the report of the expert Sh. Rup Singh nor had filed it in the trial
Court. An application was moved by the accused for the supply
of the document and vide order dated 14.01.2000, the
Metropolitan Magistrate directed that the State will have. to B
supply all the deficient copies and also the remaining CFSL ·
reports sent by CFSL to SHO. The opinion of Sh. Rup Singh,
Ballistic expert finally exhibited as Ex. PW 89/DB only says that
"it appears that the two cartridge cases are from two different
pistols." As rightly pointed out such a vague opinion of the c
expert can neither be relied upon nor can be any basis to come
to a conclusion that there were two persons who had fired two
different shots.

65. With regard to Prem Sagar Manocha PW-95, Ballistic
expert at FSL, Jaipur, a specific query being query No.3 that D
whether both the empty cartridge cases have been fired from
the same firearm or otherwise. In the reply to the said query,
the expert opined that no definite opinion could be given on the
two .22" bore cartridge cases C-1 and C-2 in order to link with
the firearm unless the suspected firearm is available to E
examination. It was pointed out that the trial Court puts a
question to the witness and while putting the question first gives
a specific fact finding that for reply to Query No. 3, the presence
of the firearm was not necessary. This incorrect finding of fact
given by the trial Court based on no expertise and had resulted F
in grave miscarriage of justice. It is well settled that while giving
reports after Ballistic examination, the bullets, cartridge case
and the cartridges recovered and weapon of offence recovered
are carefully examined and test firing is done at the FSL by the
said weapon of offence and then only a specific opinion is G
given.

66. It is contended by the learned counsel for the appellant/
Manu Sharma that the prosecution tried their level best to ,
suppress the report of the Ballistic expert Shri Rup Singh which . H
...
' ..
230 SUPREME COURT REPORTS [2010] 4 S.C.R.

A was not favourable to them and that the same was exhibited
at the instance of the defence as Ex. PW 89/DB. It has been
further argued that while the charge sheet was filed on
03.08.1999, the police sought an expert opinion practically at
the end of the investigation i.e. vide letter dated 16.07.1999,
B Ex. PW-89/DA. At SI. No. 67 of the charge sheet one finds
mention of the letters sent by the SHO seeking the expert
opinion. The charge sheet was filed without the expert opinion.
The accused on seeing SI. No.67, approached the committal
Court and asked for the expert report. It has been argued that
c the 1.0. had received the opinion in the first week of December,
1999 but did not file the same. On 21.12.1999, the Court
directed the prosecution to file the report. The SPP objected
to the same on the ground that the order required modification
but the same was rejected and on 14.01.2000, the Court again .
directed supply of the expert report. It has been argued that
0
since the report did not favour the prosecution, the same was
withheld. It has been further argued by the defence that failure
on the part of the prosecution to bring on record material which
is in favour of the accused is a breach of Article 21 of the
Constitution. It has been argued by the defence that it was
E improper on the part of the prosecution to condemn a ballistic
expert, i.e., Rup Singh without calling him in for cross-
examination. It has been further argued by the defence that by
virtue of Section 293 Cr.P.C., the report is admissible in
evidence and that the weapon is not required to show whether
F the two empties are fired from the same gun and the weapon
is only required when one has to determine as to whether a
particular weapon was responsible for firing the empties in
question. The expert evidence is only good if it appeals to the
judicial lines; appreciation of such evidence can only be the
G work of the Court. Reliance has been placed on A.E.G.
Carapiet vs. A. Y. Derderian, AIR 1961 Calcutta 359 paras 10-
14 to assert that every witness must be cross-examined before
being discredited. The prosecution cannot challenge the expert
at the stage cf appeal when his testimony went unchallenged
H at the stage of the trial. 67) It has been argued that the Court
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 231
(NCT OF DELHI) [P. SATHASIVAM, J.]
must lay down in clear terms the duties of a public prosecutor A
i.e., to tell the truth even if the same is in favour of the accused.
Reliance has been placed on Rule 16 of the Bar Council of
India Rules which are to the said effect. Reliance is further
placed on Attorney Generals Guidelines contained in Archbold
Criminal pleadings edition 2003 to say that it is obligatory on B
the part of the prosecution to disclose all the material. It has
been argued that even after an application .under Section 391
Cr.P.C. has been filed, the prosecution still ch"ose not to call
the expert Rup Singh and cross-examine him. Ex.PW-89/DB
supports PW-2 and vice versa, since his evidence is c
corroborated by the expert report. Attention of the Court was
invited to the results of the examination. As regards the 2nd
opinion given by PW-95, it has been argued that this court must
assume that the prosecution sought a favourable opinion from
the said witnezs. The said witness obliged them and created
0
confusion by saying that no conclusive opinion can be given
without examining the weapon in question.

67. It was pointed out by the State that the said report of
Rup Singh is inadmissible in law since it is a photocopy and,
therefore, does not fall within the purview of a report in terms E
of Section 293 of the Code. In other words, in terms of the
relevant provisions of the Indian Evidence Act unless the original
document is placed for the scrutiny of the Court, no reliance can
be placed on the photocopy without leading proper secondary
evidence in this regard. In any case, both Section 293 and F
Section 294 of the Code which dispense with formal proof of
documents under certain circumstances make it abundantly
clear that the documents sought to be relied upon must be the
originals. Assuming for the sake of the argument, though not
admitting, that the said report of Rup Singh, i.e. Ex. PW-89/DB G
is admissible even though a photocopy has been placed on
record and even though nowhere it has come in evidence that
the same i.e. the photocopy has been compared and
scrutinized with the original by the Court and then placed on
record, the same still looses all credence in the light of the fact H
2:32 SUPREME COURT REPORTS [2010] 4 S.C.R.

A that a perusal of the forwarding letter and report would show
. that there seems to have been some tampering with the said
documents since the sequence of numbering of the parcels as
between the forwarding letter and the report has been changed
by somebody which fact remains unexplained as, therefore,
B casts a further doubt on the genuineness of the said report. The
report itself with regard to query No.3 shows that "it appears
that the two cartridge cases C-1 and C-2 have been fired by
two different weapons". This opinion of the expert was vague
and on the basis of said opinion no credence can be lent to
C the fact adverted to by the defence that there were two persons
who fired two different shots from two different weapons.
Moreover the said report is oddly silent on query No.7 of the
forwarding letter wherein it was specifically asked about the
various markings on the live cartridge and the bullet empties.
The stand of the defence that to opine the two cartridge cases
0
are from the same weapon or not the pistol is not required and
the pistol is only required when the opinion is sought whether
they are from that particular weapon or not cannot be accepted.
It is well settled that when pressure is built inside the cartridge
case, which results in the pushing out of the bullet from the
E barrel, there is difference in the marks to the extent that it may
be either clear or unclear and flattened or deepened thus no •
opinion can be rendered on account of this dissimilarity in the
absence of the weapon of offence and test firing. Further once
the report of Rup Singh is rendered inadmissible the two gun
F theory of the defence becomes wholly inadmissible and what
remains is that the two empties found at the spot are .22" bore
cartridges, that the live bullet found in the Tata Safari is a .22"
cartridge and that the gun belonging to the appellant is a .22"
bore pistol which was used for the commission of the crime of
G murder of Jessica Lal.

68. The prosecution obtained another opinion fr9m FSL
Rajasthan and the queries made are as under:

"1. Please examine and opine the bore of the two
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 233
(NCT OF DELHI) [P. SATHASIVAM, J.]
empty cartridges present in the sealed parcel. A

2. Please opine whether these two empty cartridges
have been fired from a pistol or a revolver.

3. Whether both the empty cartridges have been fired
from the same fire arm or otherwise." B

In response to these queries, the expert opinion of the FSL,
Rajasthan is as under:

"1. The caliber of two cartridge cases (C/1 and C/2) c
is .22.

2. These two cartridge cases (C/1 and C/2) appear
to have been fired from a pistol

3. No definite opinion could be given on two .22 D
cartridge cases (C/1 and C/2) in order to link with
firearm unless the suspected firearm is available for
examination."

It was pointed out by the State that this opinion also was E
inconclusive in nature. In the worksheet, it was categorically
recorded that the Investigating Officer be informed to make
available the suspected fire arm used for definite opinion on
linking of C-1 and C-2 with the same fire arm or otherwise. The
worksheet also records that the fire arm involved be sent for
definite opinion. At this juncture, it is relevant to note that the F
trial Court posed a leading question as under:

"Q. From reply to query No.3 the presence of the fire arm
was- not necessary. The question was whether the two
empty cartridges have been fired from one instrument or G
from different instruments?

Ans. The question is now clear to me. I can answer the
query here and now. These two cartridge cases were
examined physically and under sterio and comparison
H
234 SUPREME COURT REPORTS [2010] 4 S.C.R.

A microscope to study and observe and compare the
evidence and the characteristics marks present on them
which have been printed during firing. After comparison, I
am of the opinion that these two cartridge cases C/1 and
C/2 appeared to have been fired from two different fire
B arms."

The said witness in further cross-examination replied as under:

"There is nothing in the record of the Court on my report
on the basis of which I had given this finding that C/1 and
1
C C/2 were fired from two different fire arms"

The said witness in further cross-examination deposes that no
photographs were taken or there is any other evidence to show
the basis of opinion given by the witness before the trial Court.
D
69. The learned senior counsel for the appellant-accused
has contended that the contention of the prosecution that the
trial Court could not have asked the particular Court question
to PW-95 is contrary to Section 165 Cr.P.C. inasmuch as the
power of Judge is very wide. It has been further argued by the
E defence that the duties of a Presiding officer are set out in
Section 165 of the Indian Evidence Act. Reliance is sought to
be placed on Ram Chander vs. State of Haryana, AIR t981
SC 1036. It has been argued that the judge knew that the issue
was whether two empties were fired from the same gun. It has
F been further argued that the judge has seen EX. PW-89/DB
and, therefore, any judge would have noticed that the
controversy was whether these two bullets were fired from the
same weapon or not. The Judge also found out that this query·
went to the CFSL and CFSL answered the same. It has been
G argued that, therefore, the Judge knew that to answer this query
weapon was not required. It has been argued that the Court
must read in between the lines.

70. It is pointed out by the State that the contention of the
H prosecution was that the trial Court could not have first put a
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 235
(NCT OF DELHI) [P. SATHASIVAM, J.]
specific finding of its own opinion to the expert witness and then A
ask him questions. Learned Solicitor General pointed out that
in the attempt of the trial Court to extract the truth from the said
witness, it misdirected itself in law by posing such a question.
This is impermissible even as per the judgment in Ram
Chander (supra) relied on by the defence. This judgment is in B
fact in favour of the prosecution since the same clearly puts an
embargo on the power of a judge to ask questions so as to
frighten, coerce, confuse or intimidate the witness. The danger
inherent in a judge adopting a much too stern an attitude
towards witness has been duly explained in the said decision. c
The judge cannot ask questions which may confuse a witness.
The argument that the judge knew that the issue in question
was whether the two empties found on the spot were fired from
the same gun is wrong and misleading. The judge knew that
as per the charge framed against Manu Sharma it was he
0
alone who was charged with the possession and use of a gun.
The judge also knew that the first expert opinion was brought.
on record at the instance of the accused; the judge further knew
that PW-95 had stated in no uncertain terms that no opinion
can be given as regards the two empties without receipt of the
E
weapon of offence. In spite of knowing all this, the judge first
put a finding of its own to the witness that he did not need the
firearm in question in order to reply as to whether the two
empties were fired from the same gun i.e., a gun and not the
gun. The Court exceeded its power under Section 165 of the
Evidence Act by putting the question after giving its own finding. F

71. On behalf of the prosecution, it is pointed out that the
entire argument of the accused that an expert opinion was
sought at the fag end of the charge sheet to seek a favourable
opinion in favour of the prosecution in fact suggests that the 1.0. G
in question was oblivious of the fact that such an opinion could
work to the detriment of the case of the prosecution i.e. two
empties having been fired from the same weapon of offence
belonging to accused Manu Sharma. The fact that the 1.0.
sought to mention at S. No. 67 of the list of documents in the H
236 SUPREME COURT REPORTS [2010) 4 S.C.R.

A Charge Sheet about the forwarding letter to the expert only
suggests that the prosecution had no intention of carrying out
the act of seeking an expert opinion, i,s hiding. The discretion
on the part of the 1.0. and the superior officers was rightly
exercised when they decided not to file the expert report since
B they realized that the expert report is ambiguous as it uses the
term "appear" when it suggests that the two empties appear
to have been fired from different weapons. Clearly the said
opinion was far from conclusive and would have only created
confusion in the case of the prosecution. Thereafter a second
c opinion was sought wherein the expert i.e. PW-95 opined that
a conclusive opinion can only be given after the receipt of the
weapon of offence. The argument that the weapon of offence
is not required to determine whether the two bullets have been
fired from the same gun is based on the wrong premise that
. the two empties would necessarily consist of features which
0
would enable an expert in determining the said fact. For
instance, as in the case of a handwriting expert who has to give
an opinion about two different sets of near identical questioned
documents and as to whether the same belong to different
persons, if the argument of the accused has to be accepted
E then the expert should be able to give such an opinion without
having in his possession the specimen handwriting and the
admitted handwriting of the accused. It is stated that such an
approach would render the opinion as that of a layman and not
an expert. Similar would be case of a finger print expert who
F undertakes the process of discovering two different sets of
finger print which are in question, without having the specimen
or the admitted finger print of the accused in question. In other
words, an expert is only an expert if he follows the well accepted
guidelines to anive at a conclusion and supports the same with
G logical reasoning which is a requirement of law as laid down
in the Indian Evidence Act. In the present case, the moment
Rup Singh uses the word "appear" his opinion unsupported
by reasons becomes inconclusive and stands discredited for
the purpose of placing reliance on. The opinion of Rup Singh
H was at query No.7 as to "please examine and opine whether
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 237
(NCT OF DELHI) [P. SATHASIVAM, J.]

ejector, trigger, chamber, magazine or other tool marks are 1 A
present on the live bullet and the bullet empties contained in
parcel Nos. 6 & 5 respectively." Though Shri Rup Singh has
given opinion qua query No.5 that the two .22" cartridge cases
appears to have been fired from two different .22" caliber
standard firearms but his opinion is completely silent on the B
marks i.e. ejector, trigger, chamber, magazine or other tool
marks on the bullet empties (Ex. PW 89/DB). Clearly an option
was available to the accused under Section 293 Cr.P.C. to call
for the witness and ascertain from his for sure that the two
empties were in fact fire from two different weapons, however, c
the accused did not choose to do so in terms of Section 293
Cr.P.C. In any case, the opinion of Rup Singh as of today is of
little use to the accused for the reasons stated above and since
it is both inconclusive and unsupported by any reasoning
whatsoever and, therefore, cannot appeal to the judicial mind 0
of this Court. Similar is the case with the expert opinion of PW-
95 which is again inconclusive. There is no evidence on record
to suggest that PW-95 gave an opinion to oblige the
prosecution. On the contrary, his response to the Court question
reveals that he was extremely confused as to the issue which E
had to be addressed by him in the capacity of an expert. In the
concluding part of his testimony he reaffirms the opinion given
by him which is that without test firing the empties from the
weapon of offence no conclusive opinion can be given.

72. It is pertinent to note that the testimony of the experts . F
i.e., Rup Singh exhibited as Ex.PW-89/DB and PW-95 Prem
Sagar Minocha exhibited as Wx PW-95/C-1 in inconclusive.
The expert PW-95 Prem Sagar Minocha has stated in his report
that it is only on receiving the weapon of offence that a
conclusive opinion as to whether the two empties (cartridge G
cases) found at the spot were fired from the same weapon or
from two different weapons could be given.

73. The defence seeks to reply upon the testimony of PW-
2 with regard to the two gun theory put forward. In this regard, H
238 SUPREME COURT REPORTS (2010] 4 S.C.R

A the defence seeks to corroborate the said part of Pw-2·s
testimony with the testimony of the two ballistic experts. It has
also been contended by the defence that the testimony of a
hostile witness must be corroborated by the other reliable
evidence on record in order to be admissible. The law is ve:y
s.c:lear that where a witness for the prosecution turns hostile, the
Court may rely upon so much of the testimony, which supports
the case of the prosecution and is corroborated by other
evidence. PW-2's testimony as regards the identity of the
person shooting, is certainly not corroborated by the testimony
c of the experts since both the experts have given opinions which
cannot qualify as conclusive opinion of experts.

~ole of Public Prosecutor and his duty of disclosure:

74. It was argued by Mr. Ram Jethmalani, learned senior
D counsel for the appellant-Manu Sharma that the prosecufor had
suppressed vital evidence relating to the laboratory reports
which were useful for the defence in order to establish the
innocence of the accused. Learned senior counsel further
argued that the prosecutor had not complied with his duty thu:;
E violating fair trial and vitiating the trial itself.

75. It is thus important for us to address the role of a
prosecutor, disclosure requirements if placed by the prosecutor
and the role of a judge in a criminal trial.

F 76. A public prosecutor is appointed under Section 24 of
the Code of Criminal Procedure. Thus, Public Prosecutor is a
statutory office of high regard. This Court has observed the rolH
of a prosecutor in Shiv Kumar v. Hukam Chand and Anr.,
(1999) 7 sec 467 as follows:
G
"13. From the scheme of the Code the legislative intention
is manifestly clear that prosecution in a Sessions Court
cannot be conducted by any one other than the Public
Prosecutor. The legislature reminds the State that thE~
policy must strictly conform to fairness in the trial of an
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 239
(NCT OF DELHI) [P. SATHASIVAM, J.]
accused in a Sessions Court. A Public Prosecutor is not A
expected to show a thirst to reach the case in the conviction
of the accused somehow or the other irrespective of the
true facts involved in the case. The expected attitude of the
Public Prosecutor while conducting prosecution must be
couched in fairness not only to the Court and to the B
investigating agencies but to the accused as well. If an
accused is entitled to any legitimate benefit during trial the
Public Prosecutor should not scuttle/conceal it. On the
contrary, it is the duty of the Public Prosecutor to winch it
to the force and make it available to the accused. Even if c
the defence counsel overlooked it, Public Prosecutor has
the added responsibility to bring it to the notice of the Court
if it comes to his knowledge, A private counsel, if allowed
frees hand to conduct prosecution would focu.'> on bringing
the case to conviction even if it is not a fit case to be so
0
convicted. That is the reason why Parliament applied a
bridle on him and subjected his role strictly to the
instructions given by the Public Prosecutor."

This Court has also held that the prosecutor does not
represent the investigation agencies, but the State. This Court E
in Hitendra Vishnu Thakur and Others v. State of Maharashtra
and Others, (19&t) 4 SCC 602 held:

"22 .... A public prosecutor is an important officer of the
State Govt. and is appointed by the State under the CrPC. F
He is not a part of the investigating agency. He is an
independent statutory authority. The public prosecutor is
expected to independently apply his mind to the request
of the investigating agency before submitting a report to
the court for extension of time with a view to enable the G
investigating agency to complete the investigation. He is
not merely a post office or a forwarding agency. A public
prosecutor may or may not agree with the reasons given
by the investigating officer for seeking extension of time
and may find that the investigation had not progressed in H
240 SUPREME COURT REPORTS [2010] 4 S.C.R.

A the proper manner or that there has been unnecessary,
deliberate or avoidable delay in completing the
investigation"

Therefore, a public prosecutor has wider set of duties than to
merely ensure that the accused is punished, the duties of
8
ensuring fair play in the proceedings, all relevant facts are
brought before the court in order for the determination of truth
and justice for all the parties including the victims. It must be
noted that these duties do not allow the prosecutor to be lax in
any of his duties as against the accused.
c
77. It is also important to note the active role which is to
be played by a court in a criminal trial. The court must ensure
that the prosecutor is doing his duties to the utmost level of
efficiency and fair play. This Court, in Zahira Habibul/a H.
D Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC
158, has noted the daunting task of a court in a criminal trial
while noting the most pertinent provisions of the law. It is useful
to reproduce the passage in full:

"43. The Courts have to take a participatory role in a trial.
E
They are not expected to be tape recorders to record
whatever is being stated by the witnesses. Section 311 of
the Code and Section 165 of the Evidence Act confer vast
and wide powers on Presiding Officers of Court to elicit
all necessary materials by playing an active role in the
F evidence collecting process. They have to monitor the
proceedings in aid of justice in a manner that something,
which is not relevant, is not unnecessarily brought into
record. Even if the prosecutor is remiss in some ways, it
can control the proceedings effectively so that ultimate
G objective i.e. truth is arrived at. This becomes more
necessary the Court has reasons to believe that the
prosecuting agency or the prosecutor is not acting in the
requisite manner. The Court cannot afford to be wishfully
or pretend to be blissfully ignorant or oblivious to such
H serious pitfalls or dereliction of duty on the part of the
SIDHARTHA VASHISHT@ MANU SHARMA v. 241
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
prosecuting agency. The prosecutor who does not act fairly A
and acts more like a counsel for the defence is a liability
to the fair judicial system, and Courts could not also play
into the hands of such prosecuting agency showing
indifference or adopting an attitude of total aloofness.
B
44. The power of the Court under Section 165 of the
Evidence Act is in a way complementary to its power under
Section 311 of the Code. The section consists of two parts
i.e. (i) giving a discretion to the Court to examine the
witness at any stage and (ii) the mandatory portion which C
compels the Courts to examine a witness if his evidence
appears to be essential to the just decision of the Court.
Though the discretion given to the Court is very wide, the
very width requires a corresponding caution. In Mohan Lal
v. Union of India, this Court has observed, while
considering the scope and ambit of Section 311, that the D
very usage of the word such as, "any Court" "at any stage",
or "any enquiry or trial or other proceedings" "any person"
and "any such person" clearly spells out that the Section
has expressed in the widest possible tenns and do not limit
the discretion of the Court in any way. However, as noted E
above, the very width requires a corresponding caution that
the discretionary powers should be invoked as the
exigencies of justice require and exercised judicially with
circumspection and consistently with the provisions of the
Code. The second part of the section does not allow any F
discretion but obligates and binds the Court to te\ke
necessary steps if the fresh evidence to be obtained is
essential to the just decision of the case - 'essential', to
an active and alert mind and not to one which is bent to
abandon or abdicate. Object of the Section is to enable G
the court to arrive at the truth irrespective of the fact that
the prosecution or the defence has failed to produce some
evidence which is necessary for a just and proper disposal
of the case. The power is· exercised and the evidence is
examined neither to help the prosecution nor the defence, H
242 SUPREME COURT REPORTS [2010] 4 S.C.R.

A if the Court feels that there is necessity to act in terms of
Section 311 but only to subserve the cause of justice and
public interest. It is done with an object of getting the
evidence in aid of a just decision and to upheld the truth.

45. It is not that in every case where the witness who had
B
given evidence before Court wants to change his mind and
is prepared to speak differently, that the Court concerned
should readily accede to such request by lending its
assistance. If the witness who deposed one way earlier
comes before the appellate Court with a prayer that he is
c prepared to give evidence which is materially different from
what he has given earlier at the trial with the reasons for
the earlier lapse, the Court can consider the genuineness
of the prayer in the context as to whether the party
concerned had a fair opportunity to speak the truth earlier
D and in an appropriate case accept it. It is not that the power
is to be exercised in a routine manner, but being an
exception to the ordinary rule of disposal of appeal on the
basis of records received in exceptional cases or
extraordinary situation the Court can neither feel powerless
E nor abdicate its duty to arrive at the truth and satisfy the
ends of justice. The Court can certainly be guided by the
metaphor, separate the grain from the chaff, and in a case
which has telltale imprint of reasonableness and
genuineness in the prayer, the same has to be accepted,
F at least to consider the worth, credibility and the
acceptability of the same on merits of the material sought
to be brought in.

46. Ultimately, as noted above, ad nauseam the duty of the
Court is to -arrive at the truth and subserve the ends of
G
justice. Section 311 oJ the Code does not confer any party
any right to examine, cross-examine and re-examine any
witness. This is a power given to the Court not to be merely
exercised at the bidding of any one party/person but the
powers conferred and discretion vested are to prevent any
H
SIDHARTHA VASHISHT@ MANU SHARMA v. 243
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
irretrievable or immeasurable damage to the cause of A
society, public interest and miscarriage of justice.
Recourse may be had by Courts to power under this
section only for the purpose of discovering relevant facts
or obtaining proper proof of such facts as are necessary
to arrive at a justice decision in the case. B

47. Section 391 of the Code is another salutary provision
which clothes the Courts with the power of effectively
decide an appeal. Though Section 386 envisages the
normal and ordinary manner and method of disposal of an
appeal, yet it does not and cannot be said to exhaustively C
enumerate the modes by which alone the Court can deal
with an appeal. Section 391 is one such exception to the
ordinary rule and if the appellate Court considers additional
evidence to be necessary, the.provisions in-Section 386
and Section 391 have to'be·harmoniously co11sidered to D
enable the appeal to be considered.and dispbsed·of·also
in the light Of'the additional· evidence as· well:d;oL this
· purpose it.is open to the appellate Court'tO'call:for,further
evidence before the appeal is disposed ofr:The;:appellate
··.Court 'can direct the taking up ofJurther:evidence in support E
'·' ' 1·of the prosecution; a fortioriit is open. to.the.court. to direct

that the accused persbns!may:also 1be•given a chance of
. adducing further evidence. Section 391 is in the nature of
to
,, . ah exception the 1gerierar'~rrnet and ttfe'powers unaer it
' rrfust~lsb t5e exercised'With""great cl:ire:•specially·on behalf F
1
1
"
' of 'fh~·rpro'secutfoii 'i'est f'ttie ·a(fmis'sion' of·laaditional'
11 0

'. evide'rrc~'''for the pr6s'ecutlon 'operates in·'a'."' man her
. ' pr~j~dlclarto'fhe. 1def~n'te1 ofttie accused. Ttii{piimary
{ '\ -
1 ,
' .. ,
:. l . <''j ·- , .· ! ,' ,
, . 1 o ·., , ,,., I". - t I _ l } _ •r

· object of Section 391 is the' prevention of guilty mans
escape through some careless or ignorant proceedings' G
·~; b~forEil,.a
,..)~~ •.
Court or· ..•vindicati.on
•.• :1 •. •Ii •.. ~},Jc;; .. ,, ' · ' · ... ~.1l
of. an.
"-''· . '
iftnocent
_!·~
person
, , ,jyf;<?.n~if,u.~ly 1 ,~~F~s.e,~ .)~'-~~~~}~~o court through some
,, .. i.9~E~l~~~"~e~?. 1 o~)ignor~.~9e}~s Pr:tiitted to record the
·. _ . circumstances
~,,,.,.. .i .;•._/
.,._ "i'
essential
• , - .
to elucidation
1 .. r
of truth, the exercise
"" _ • I ·•
0

?J o( pm~~~s,u~.~~L.Secti<;m 391 is 9e~iS~bl,e.,, ,.> , . .. , u' H
244 SUPREME COURT REPORTS [2010] 4 S.C.R.

A 48. The legislature intent in enacting Section 391 appears
to be the empowerment of the appellate court to see that
justice is done between the prosecutor and the persons
prosecuted and if the appellate Court finds that certain
evidence is necessary in order to enable it to give a correct
B and proper findings, it would be justified in taking action
under Section 391.

49. There is no restriction in the wording of Section 391
either as to the nature of the evidence or that it is to be
taken for the prosecution only or that the provisions of the
c Section are only to be invoked when formal proof for the
prosecution is necessary. If the appellate Court thinks that
it is necessary in the interest of justice to take additional
evidence it shall do so. There is nothing in the provision
limiting it to cases where there has been merely some
D formal defect. The matter is one of the discretion of the
appellate Court. As re-iterated supra the ends of justice
are not satisfied only when the accused in a criminal case
is acquitted. The community acting through the State and
the public prosecutor is also entitled to justice. The cause
E of the community deserves equal treatment at the hands
of the Court in the discharge of its judicial functions."

78. The appellants have placed heavy reliance on the
position in England to argue that there is a wide duty of
F disclosure on the public prosecutor. It was argued that any non-
disclosure of evidence, whether or not it is relied upon by the
prosecution, must be made available to the defense. In the
absence of this, it was argued, there would be a violation of
the right to fair trial.

G 79. In the light of this argument, let us examine the exact
nature of the duty of disclosure on the public prosecutor in
ordinary cases of criminal trial. The Cr.P.C. imposes a statutory
obligation on the public prosecutor to disclose certain evidence
to the defense. This is brought out by sections 207 and 208
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 245
(NCT OF DELHI) [P. SATHASIVAM, J.]
as follows: A

"207. Supply to the accused of copy of police report and
other documents.

In any case where the proceeding has been instituted on
a police report, the Magistrate shall without delay furnish B
to the accused, free of cost, a copy of each of the following.

(i) The police report;

(ii) The first information report recorded under section
154:
c
(iii) The statements recorded under sub-section (3) of
section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding
there from any part in regard to which a request for D
such exclusion has been made by the police officer
urider sub- section (6) of section 173.

(iv) The confessions and statements, if any, recorded
under section 164; E
(v) Any other document or relevant extract thereof
forwarded to the Magistrate with the police report
under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any F
such part of a statement as is referred to in clause
(iii) and considering the reasons given by the police
officer for the request, direct that a copy of that part
of the statement or of such portion thereof as the
Magistrate thinks proper, shall be furnished to the G
accused:

Provided further that if the Magistrate is satisfied
that any document referred to in Clause (v) is
Voluminous, he shall, instead of furnishing the
H
2.46 SUPREME COURT REPORTS [2010] 4 S.C.R.

A accused with a copy thereof, direct that he will only
be allowed to inspect it either personally or through
pleader in court."

"208. Supply of copies of statements and
documents to accused in other cases triable by
B
court of Session.

Where, in a case instituted otherwise than on a
police report, it appears to the Magistrate issuing
process under section 204 that the offence is triable
c exclusively by the Court of Session, the Magistrate
shall without delay furnish to the accused, free of
cost, a copy of each of the following.

(i) The statements recorded under section 200 or
D section 202, or all persons examined by the
Magistrate;

(ii) The statements and confessions, if any, recorded
under section 161 or section 164;

E (iii) Any documents produced before the Magistrate on
which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any
such document is voluminous, he shall, instead of
furnishing the accused with a copy thereof, direct
F
that he will only be allowed to inspect it either
personally or through pleader in court."

"Rule 16 of the Bar Council of India Rules.

G Rule 16 of the Chapter 11, part VI of the Bar Council
of India Rules under the Advocates Act, 1961 is as
under:

16. An advocate appearing for the prosecution of
a criminal trial shall so conduct the prosecution that
H
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 247
(NCT OF DELHI) [P. SATHASIVAM, J.]
it does not lead to conviction of the innocent. The A
suppression of material capable of establishing the
innocence of the accused shall be scrupulously
avoided."

Therefore, it is clear that the Code & the Bar Council of India B
Rules provide a wide duty of disclosure. But this duty is limited
to evidence on which the prosecutor proposes to place reliance
during the trial. Mr. Ram Jethmalani argued that this duty
extends beyond these provisions, and includes even that
evidence which may not have been used by the prosecutor
during the trial. As we have already mentioned, for this purpose, C
he relied upon the position in England.

80. Currently, the position in England is governed by the
Criminal Procedure and Investigations Act, 1996. Prior to this
enactment, the position was squarely covered by common law. D
This position comes out primarily in two cases. In R. v Ward
(Judith Theresa) (1993) 2 All E.R. 577, Court of Appeal held
that it was the duty of the prosecution to ensure fair trial for both
the prosecution and the accused. The duty of disclosure would
usually be performed by supplying the copies of witness E
statements to the defense and all relevant experiments and
tests must also be disclosed. It was held that the common law
duty to disclose would cover anything which might assist the
defense. Non-compliance with this duty would amount to
"irregularity in the course of the trial" under Section 2(1 )(a) of F
the Criminal Appeal Act, 1988.

81. In R v. Preston & Ors. (1993) 4 All ER 638, on which
the appellants specifically relied upon, dealt with the non-
disclosure of a telephonic conversation in a matter dealing with
the Interception of Communications Act, 1985. The relevant G
material had been destroyed in pursuance of Section 6 of the
same Act. In appeal, the defendants essentially argued that the
non-disclosure of the contents of the call to the defense
amounted to a material irregularity. The court held that it is true
that the mere fact that the material was not to be used as H
248 SUPREME COURT REPORTS [2010] 4 S.C.R.

A evidence did not mean that the material was worthless,
especially, when it might have been of assistance to the
defendant. But at the same time, it was also held that:

"since the purpose of a warrant issued under s.2(2)(b) of
the 1985 Act did not extend to the amassing of evidence
B
with a view to the prosecution of offenders, and since the
investigating authority was under a duty under s.6 of the
Act to destroy all material obtained by means of an
interception as soon as its retention was no longer
necessary for the prevention or detection of serious crime,
c the destruction of the documents obtained from the
interception and their consequent unavailability for
disclosure could not be relied upon by Defendants as a
material irregularity in the course of their trial".

D Thus the position under common law is clear, i.e. subject to
exceptions like sensitive information and public interest
immunity, the prosecution should disclose any material which
might be exculpatory to the defence.

E 82. In the Indian Criminal jurisprudence, the accused is
placed in a somewhat advantageous position than under
different jurisprudence of some of the countries in the wor1d. The
criminal justice administration system in India places human
rights and dignity for human life at a much higher pedestal. In
our jurisprudence an accused is presumed to be innocent till
F proved guilty, the alleged accused is entitled to fairness and
true investigation and fair trial and the prosecution is expected
to play balanced role in the trial of a crime. The investigation
should be judicious, fair, transparent and expeditious to ensure
compliance to the basic rule of law. These are the fundamental
G canons of our criminal jurisprudence and they are quite in
conformity with the constitutional mandate contained in Articles
20 and 21 of the Constitution of India. A person is entitled to
be tried according to the law in force at the time of commission
of offence. A person could not be punished for the same
H offence twice and most significantly cannot be compelled to be
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 249
(NCT OF DELHI) [P. SATHASIVAM, J.]
a witness against himself and he cannot be deprived of his A
personal liberty except according to the procedure established
by law. The law in relation to investigation of offences and rights
of an accused, in our country, has developed with the passage
of time. On the one hand, power is vested in the investigating
officer to conduct the investigation freely and transparently. B
Even the Courts do not normally have the right to interfere in
the investigation. It exclusively falls in the domain of the
investigating agency. In exceptional cases the High Courts have
monitored the investigation but again within a very limited
scope. There, on the other a duty is cast upon the prosecutor c
to ensure that rights of an accused are not infringed and he gets
a fair chance to put forward his defence so as to ensure that a
guilty does not go scot free while an innocent is not punished.
Even in the might of the State the rights of an accused cannot
be undermined, he must be tried in consonance with the 0
provisions of the constitutional mandate. The cumulative effect
of this constitutional philosophy is that both the Courts and the
investigating agency should operate in their own independent
fields while ensuring adherence to basic rule of law. It is not
only the responsibility of the investigating agency but as well E
that of the Courts to ensure that investigation is fair and does
not in any way hamper the freedom of an individual except in
accordance with law. Equally enforceable canon of criminal law
is that the high responsibility lies upon the investigating agency
not to conduct an investigation in tainted and unfair manner. The
investigation should not prima facie be indicative of bias mind F
and every effort should be made to bring the guilty to law as
nobody stands above law de hors his position and influence in
the society. In the case of Kashmeri Dev v. Delhi
Administration and Anrs. [JT 1988 (2) SC 293] it has been held
that the record of investigation should not show that efforts are G
being made to protect and shield the guilty even where they are
police officers and are alleged to have committed a barbaric
offence/crime. The Courts have even declined to accept the
report submitted by the investigating officer where it is glaringly
unfair and offends basic canons of criminal investigation and H
250 SUPREME COURT REPORTS [2010) 4 S.C.R.

A jurisprudence. Contra veritatem lex nunquam aliquid permittit:
implies a duty on the Court to accept and accord its approval
only to a report which is result of faithful and fruitful investigation.
The Court is not to accept the report which is contra legem but
to conduct judicious and fair investigation and submit a report
B in accordance with Section 173 of the Code which places a
burden and obligation on the State Administration. The aim of
criminal justice is two-fold. Severely punishing and really or
sufficiently preventing the crime. Both these objects can be
achieved only by fair investigation into the commission of crime,
c sincerely proving the case of the prosecution before the Court
and the guilty is punished in accordance with law.

83. Historically but consistently the view of this Court has
been that an investigation must be fair and effective, must
proceed in proper direction in consonance with the ingredients
D of the offence and not in haphazard manner. In some cases
besides investigation being effective the accused may have to
prove miscarriage of justice but once it is shown the accused
would be entitled to definite benefit in accordance with law. The
investigation should be conducted in a manner so as to draw
E a just balance between citizen's right under Articles 19 and 21
and expensive power of the police to make investigation. These
well established principles have been stated by this Court in
the case of Sasi Thomas vs. State & Ors. [(2007) 2 SCC
(Criminal) 72), State Inspector of Police vs. Surya Sankaram
F Karri [(2006) 3 SCC (Criminal) 225 and T. T. Antony vs. State
of Kera/a [(2001) 6 SCC 181. In NirmalSingh Kah/on vs. State
of Punjab [AIR 2009 SC 984) this Court specifically stated that
a concept of fair investigation and fair trial are concomitant to
preservation of fundamental right of accused under Article 21
G of the Constitution of India. We have referred to this concept
of judicious and fair investigation as the right of the accused
to fair defence emerges from this concept itself. The accused
is not subjected to harassment, his right to defence is not unduly
hampered and what he is entitled to received in accordance
H with law is not denied to him contrary to law.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 251
(NCT OF DELHI) [P. SATHASIVAM, J.]
84. It is pertinent to note here that one of the established A
canons of just, fair and transparent investigation is the right of
defence of an accused. An accused may be entitled to ask for
certain documents during the course of enquiry/trial by the
Court. Let us examine the extent of this right of an accused in
light of the statutory provisions and the manner in which th·e law B
has developed under the criminal jurisprudence. To understand
this concept in its right perspective we must notice the scheme
under the provisions of Section 170 to 173 of the Criminal
Procedure Code. All these provisions fall under Chapter XII of
the Code which deals with, information of the police and their c
powers to investigate. The power of the police to investigate
freely and fairly is well recognized and codified in law. In terms
of Section 170, the investigating officer when satisfied that
sufficient evidence or reasonable grounds exist he shall forward
accused under custody to a Magistrate along with such
0
weapons or articles which may be necessary to be produced
before the Court. Section 172 of the Code has a meaningful
bearing on the entire investigation by a police officer. It is
mandatory for him to maintain a diary under this chapter where
he shali enter day-by-day proceedings in the investigation E
carried out by him. He is expected to mention time of events
and his departure, reporting back and closing of the
investigation, the place/places he visited and the statements
he recorded during investigation. The statement of the witness
is recorded during the investigation under Section 161 shall be
inserted in that diary. A Criminal Court is empowered under F
Section 172 (2) to send for the diaries and they could be used
by the Court but not as evidence in the case but to aid it in such
inquiry for trial. However, Sub-section 3 of the same Section
provides that neither the accused nor his agents shall be entitled
to call for such diaries, nor they are entitled to see them but it G
is only where the police officer who makes them to refresh his
memory or the Court uses them for the purposes of
contradicting such police officers in terms of Section 172 than
Sections 161 or 145 provisions would apply. Section 173
H
252 SUPREME COURT REPORTS [2010] 4 S.C.R.

A commands the investigating agency to complete the
investigation expeditiously without unnecessary delay and when
such an investigation is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of offence on a police report with the details in the
s form as may be prescribed by the State Government and
provide the information required under this Section. Provisions
of Section 173 (5) contemplates and make it obligatory upon
the investigating officer where the provisions of Section 170
apply to forward to the Magistrate along with his report, all
c documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate
during investigation in terms of Section 170 (2) of the Code.
During investigation the statement recorded under Section 161
of all the persons whom the prosecution proposes to examine
as witnesses shall also .be sent to the Magistrate. Some
0
element of discretion is vested with the police officer under
Section 173 (6) where he is of the opinion that any. such
statement is not relevant to the subject matter of the
proceedings or its disclosure to accused is not essential in the
E interest of justice and is expedient in the public interest he shall
indicate that part of the statement refusing a Magistrate that part
from the copies to be granted to the accused and stating his
reason for making such a request. Sub-Section 7 of the same
Section is indicative of another discretion given to the police
officer under law that where he finds it convenient, he may•
F furnish the copy of documents refer to Sub-section 5 of the
Section. Section 173 (8) empowers an investigating officer to
submit a further report if he is able to correct further evidence.
Once this report in terms of Section 173 is received the court
shall proceed with the trial of the case in accordance with law.
G
85. What is the significance of requiring an investigating
officer/officer in charge of a police station to maintain a diary?
The purpose and the object seems to be quite clear that there
should be fairness in investigation, transparency and a record
H should be maintained to ensure a proper investigation.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 253
(NCT OF DELHI) [P. SATHASIVAM, J.]
86. In the case of Habeeb Mohammad v. State of A
Hyderabad, A.LR. 1954 S.C. 51, this Court stated the principle
of law that the criminal court may send for the police diaries of
a case under inquiry/trial in such court and may use such
diaries, not as evidence in the case but to aid in such inquiry
or trial. It seems to the Court that the learned Judge in error in B
making use of the police diaries at all in his judgment and in
seeking confirmation of his opinion on the question of
appreciation of evidence from statements contained in those
diaries. The proper use of diaries he could make in terms of
Section 172 Cr.P .C. by elucidating points which need c
clarification. The Court in this case was primarily concerned
with the argument that diaries were not produced.

87. Further in the case of Khatri v. State of Bihar A.l.R.
1981 SC 1068 though in a writ petition this Court was
concerned with a question whether the documents called for by D
the Court vide its Order dated 16th February, 1981 liable to be
produced by the State or production of those documents is
barred under Sections 162 & 172 of the Code and the
petitioners in those cases are not entitled to see such
documents. The Court rejecting the contention held as under: E

"It is common ground that Shri L.V. Singh was
directed by the State Government under Section 3 of the
Indian Police Act, 1861 to investigate into twenty four cases
of blinding of under-trial prisoners where allegations were F
made by the under-trial prisoners and First Information
Reports were lodged that they were blinded by the police
officers whilst in police custody, Shri L.V. Singh through
his associates carried out this investigation and submitted
his reports in the discharge of the official duty entrusted G
to him by the State Government. These reports clearly
relate to the issue as to how, in what manner and by whom
the twenty-four under-trial prisoners were blinded, for that
is the matter which Shri L.V. Singh was directed by the
State Government to investigate. If that be so, it is difficult H
254 SUPREME COURT REPORTS (2010] 4 S.C.R.

A to see how the State can resist the production of these
reports and their use as evidence of these reports and
their use as evidence in the present proceeding. These
reports are clearly relevant under Section 35 of the Indian
Evidence Act."
B
88. In the case of Malkiat Singh and Ors. v. State of
Punjab (1991) 4 SCC 341 this Court reiterated the principle
that use of entries in the case diary is really of no use and is of
benefit to the accused but unless the investigating officer or the
Court uses the entries in the case where either to refresh the
C memory or contradicting the investigating officer as previous
statement under Section 161 in terms of Section 145 of the
Evidence Act the entries can be used by the accused as
evidence. The free use thereof is not permissible under
defence.
D
89. In case Mukund Lal v. Union of India A.l.R. 1989 SC
144, this Court clearly stated the denial to the accused of an
unfettered right to make roving inspection of the entries in the
case diary regardless of whether these entries are used by the
E police officer concerned to refresh his memory or regardless
of the fact whether the Court has used these entries for the
purpose of contradicting such police officer cannot be said to
be unreasonable. This was treated to be a very important
safeguard as the Legislature has reposed complete trust in the
F Court which is conducting the inquiry or the trial and has
empowered the Court to call for these diaries therefore the right
of the accused is not unfettered but in fact is limited as noticed.

90. Usefully, reference can also be made to the judgment
of this Court in the case of Shamshul Kanwar v. State of U.P.
G A.l.R. 1995 SC 1748 wherein this Court while issuing direction
for requiring the State to make a general hearing in terms of
Section 172 of the Code clearly stated that it was mandatory
for the police officer/in charge to maintain the diary in terms of
the said provision and there is jurisdiction in the criminal code
H to call such diaries and make use of them not as evidence but
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 255
(NCT OF DELHI) [P. SATHASIVAM, J.]
only to aid such inquiry or trial. It is generally confined to utilize A
the information therein as foundation for the question put to the
witnesses, particularly, to the police witnesses where the police
officer has used the entries to refresh his memory or if the Court
uses them for the purpose of contradicting such police officer
then provisions of Section 161, or 145, would be applicable. B
The right of the accused to cross-examine the police officer with
reference to the entries in the General Diary is very much limited
in extent and even that limited scope arises only when the Court
uses the entries for the aforestated purposes. The investigating
officer has a right to refresh his memories and can refer to the c
general diary. The Court has power to summon the case diary
in exercise of its powers and for the purposes stated. The
accused is vested with the power of making use of the
statements recorded during investigation for the purposes of
contradiction and copies thereof the accused is entitled to see D
in terms of Section 2 & 7 of the Code State of Kera/a v. Babu
(1999) 4 SCC 62.1 and State of Kamataka vs. K. Yarappa
Reddy (1999) a sec 715.

91. As is evident from the consistently stated principles of
law, that right of the accused in relation to the police file and E
the general diary is a very limited one and is controlled by the
provisions afore-referred. But still the accused has been
provided with definite rights under the provisions of the Code
and the constitutional mandate to face the charge against him
by a fair investigation and trial. Fairness in both these actions F
essentially needs to be adhered to. Under Section 170, the
documents during investigation are required to be forwarded
to the Magistrate, while in terms of Section 173 (5) all
documents or relevant extracts and the statement recorded
under Section 161 have to be forwarded to the Magistrate. The G
investigating officer is entitled to collect all the material, what
in his wisdom is required for proving the guilt of the offender.
He can record statement in terms of Section 161 and his power
to investigate the matter is a very wide one, which is regulated"
by the provisions of the Code. The statement recorded.under. H
(. f-':-• -~ :i:·; ·.> . ~bl .i·~1 t1
256 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Section 161 is not evidence per se under Section 162 of the
Code. The right of the accused to receive the documents/
statements submitted before the Court is absolute and it must
be adhered to by the prosecution and the Court must ensure
supply of documents/statements to the accused in accordance
B with law. Under proviso to Section 162 (1) the accused has a
statutory right of confronting the witnesses with the statements
recorded under Section 161 of the Code thus indivisible.
Further, Section 91 empowers the Court to summon production
of any document or thing which the Court considers necessary
C or desirable for the purposes of any investigation, inquiry, trial
or another proceeding under the provisions of the Code. Where
Section 91 read with Section 243 says that if the accused is
called upon to enter his defence and produce his evidence
there he has also been given the right to apply to the Court for
issuance of process for compelling the attendance of any
0
witness for the purpose of examination, cross-examination or
the production of any document or .other thing for which the
Court has to pass a reasoned order. The liberty of an accused
cannot be interfered with except under due process of law. The
expression 'due process of law' shall deem to include fairness
E in trial. The Court gives a right to the accused to receive all
documents and statements as well as to move an application
for production of any record or witness in support of his case.
This constitutional mandate and statutory rights given to the
accused places an implied obligation upon the prosecution
F (prosecution and the prosecutor) to make fair disclosure. The
concept of fair disclosure would take in its ambit furnishing of
a document which the prosecution relies upon whether filed in
Court or not. That document should essentially be furnished to
the accused and even in the cases where during investigation
G a document is bona fide obtained by the investigating agency
and in the opinion of the prosecutor is relevant and would help
in arriving at the truth, that document should also be disclosed
to the accused. The role and obligation of the prosecutor
particularly in relation to disclosure cannot be equated under
H our law to that prevalent under the English System as afore-
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 257
(NCT OF DELHI) [P. SATHASIVAM, J.]
referred. But at the same time, the demand for a fair trial cannot A
be ignored. It may be of different consequences where a
document which has been obtained suspiciously, fraudulently
or by causing undue advantage to the accused during
investigation such document could be denied in the discretion
of the prosecutor to the accused whether the prosecution relies B
or not upon such documents, however in other cases the
obligation to disclose would be more certain. As already
noticed the provisions of Section 207 has a material bearing
on this subject and makes an interesting reading. This provision
not only require or mandate that the Court without delay and c
free of cost should furnish to the accused copies of the police
report, first information report, statement, confessional
statement of the persons recorded under Section 161 whom
the prosecution wishes to examine as witnesses, of course,
excluding any part of a statement or document as contemplated 0
under Section 173 (6) of the Code, any other document or
relevant extract thereof which has been submitted to the
Magistrate by the police under Sub Section 5 of Section 173.
In contradistinction to the provisions of Section 173, where the
Legislature has used the expression 'documents on which the E
prosecution relies' are not used under Section 207 of the Code.
Therefore, the provisions of Section 207 of the Code will have
to be given liberal and relevant meaning so as to achieve its
object. Not only this, the documents submitted to the Magistrate
along with the report under Section 173 (5) would deem to
include the documents which have to be sent to the Magistrate F
during the course of investigation as per the requirement of
Section 170 (2) of the Code.

92. The right of the accused with regard to disclosure of
documents is a limited right but is codified and is the very G
foundation of a fair investigation and trial. On such matters, the
accused cannot claim an indefeasible legal right to claim every
document of the police file or even the portions which are
permitted to be excluded from the documents annexed to the
report under Section 173(2) as per orders of the Court. But H
258 SUPREME COURT REPORTS [2010] 4 S.C.R.

A certain rights of the accused flow both from the codified law as
well as from equitable concepts of constitutional jurisdiction, as
substantial variation to such procedure would frustrate the very
basis of a fair trial. To claim documents within the purview of
scope of Sections 207, 243 read with the provisions of Section
B 173 in its entirety and power of the Court under Section 91 of
the Code to summon documents signifies and provides
precepts which will govern the right of the accused to claim
copies of the statement and documents which the prosecution
has collected during investigation and upon which they rely. It
c will be difficult for the Court to say that the accused has no right
to claim copies of the documents or request the Court for
production of a document which is part of the general diary
subject to satisfying the basic ingredients of law stated therein.
A document which has been obtained bonafidely and has
. bearing on the case of the prosecution and in the opinion of
0
the public prosecutor, the same should be disclosed to the
accused in the interest of justice and fair investigation and trial
should be furnished to the accused. Then that document should
be disclosed to th~ accused giving him chance of fair defence,
particularly when non-production or disclosure of such a
E document would affect administration of criminal justice and the
defence of the accused prejudicially. The concept of disclosure
and duties of the prosecutor under the English System cannot,
in our opinion, be made applicable to Indian Criminal
Jurisprudence stricto senso at this stage. However, we are of
F the considered view that the doctrine of disclosure would have
to be given somewhat expanded application. As far as the
present case is concerned, we have already noticed that no
prejudice had been caused to the right of the accused to fair
trial and non-furni~~in~ of me copy of one of the ballistic reports
G had not hamp~req'tl1e Jnds of justice. Some-shadow of doubt
upon veracity of'the document had also been created by the
prosecution arid the prosecution opted not to rely upon this
document. rn these circumstances, the right of the accused to
disclosure h.as not received any set back in the facts and
H circumstances of the case. The accused even did not raise this
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 259
(NCT OF DELHI) [P. SATHASIVAM, J.]
issue seriously before the Trial Court. A

Call Details:

93. The evidence of the telephone calls in the present case
is admissible under Sections 8 and 27 of the Indian Evidence
Act. PW-16, Raj Narain Singh, has deposed that Tel. No. B
3782072 is installed at 15, BR Mehta Lane in the name of O.P.
Yadav - Ex.PW-16/C. Print out for the period 25.04.1999 to
11.05.1999 is Ex. PW-16/C-1. The evidence of PW-19 further
proved that Tel. No. 4642868 was installed at Majid
Chakkarawali, Mathura Road vide Ex. PW 16/D and the print C
out for the period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-
1. PW-17, Mohd. Jaffar stated that Tel. No. 4642868 was
installed at his PCO. Phone calls were made to USA from his
STD Booth on 04.05.1999. Photocopy of calls made is Ex. PW-
17/A. PW-16 also proved that Tel. No. 3793628 was shifted to D
23, Safdarjung (Ex. PW-16/E) and print out for the period
03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is further in
evidence of PW-45, Sanjay Garg, that Tel. Nos. 660550,
660499, 705692, 741001, 741002 are installed in the various
premises of Piccadilly and the same is Ex. PW-45/B. E

94. The details of the phone numbers subscribed to
Piccadily group are Ex. PW 45/C and the bill printouts are 45/
C were received by the police vide Ex. PW 45/D. PW-66, Maj.
AR. Satish has deposed that Mobile No. 9811100237, which F
was in the name of Amardeep Singh Gill and the print out of
the same is exhibited PW-66/B. He also deposed that Mobile
No. 9811096893 was being purchased against a cash card.
The print out of the calls for the month of April, 1999 are in Ex.
PW-66/D. He further proved that Mobile No. 9811068169 stood
in the name of Alok Khanna and its print out is Ex. PW 66/C. G

95. PW-32, Ved Prakash Madan proved that Tel. No.
521491 was intalled at PCO, Ambala and its print out is Ex.
PW-32/B. PW-33, PV. Mathew has corroborated the version
of PW-32 and has proved that the calls were made to USA. H
260 SUPREME COURT REPORTS [2010] 4 S.C.R.

A PW-15, Sumitabh Bhatnagar stated that Tata Sierra No. HR-
26N4348 and Tata Sierra MP-04-2634 were allotted to
Amardeep Singh Gill and Alok Khanna respectively. Similarly
Mobile Nos. 981110237 and 9811068169 were also allotted
to Amardeep Singh Gill and Alok Khanna respectively. PW-51,
B Sh. Rajiv Talwar has stated that Te. No. 660500 was installed
in the office of Harvinder Chopra. PW-39, Mansvi Mittal STD/
PCO Booth lnderlok-Mittal Communication Tel. No. 5157498
is installed at this booth. Calls made remain in memory for a
period of one month. Police has seized record of 04.05.1999
c and 05.05.1999 in respect of Tel. No. 0017184768403 to which
calls were made. Figure 00 is international access code and
171 is the code call to be made to USA. 001 is also code call
for America. Print out dated 04.05.1999 is Ex. PW-39/1 and
dated 05.05.1999 is Ex. PW-39/2 to 7, Seizure Memo dated
27.05.1999 is Ex. 39/A where entries Ex. PW-39/3-7 were
0
made was present. PW-40, Ayub Khan, PCO/STD/ISD Booth
Okhla Phase II Tel. No. 6924575 was installed on 10.05.1999.
He also furnished similar details. Print out slips were seized
vide Ex. PW-40.A and print out is Ex. PW-40/1-3 respectively.
The testimony of PW 85, SI Pankaj Malik also corroborates the
E version of the aforesaid witnesses.

96. The above phone call details show that the accused
were in touch with each other which resulted in destruction of
evidence and harboring. Thus the finding of the trial Court that
F in the absence of what they stated to each other is of no help
to the prosecution is an incorrect appreciation of evidence on
record. A close association is a very important piece of
evidence in the case of circumstantial evidence. The evidence
of phone calls is a very relevant and admissible piece of
G evidence. The details of the calls made by the various accused
to one another are available in Ex. PW-66/B, PW-66/D and
PW-66/C.

Effect of leading question by Public Prosecutor: ·

H 97. Mr. Ram Jethmalani, learned senior counsel next
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 261
(NCT OF DELHI) [P. SATHASIVAM, J.]
contended that the Public Prosecutor in the present case had A
put a leading question to Malini Ramani regarding identification
of the accused Manu Sharma. We verified the said question.
The question put by the Public Prosecutor, was at best
clarificatory, and by no stretch of imagination can be termed
as a leading question favouring/eliciting an answer favouring B
the prosecution. The evidence of Ms. Malini Ramani two
paragraphs prior to the leading question and two paragraphs
thereafter, if read in conjunction with each other clarifies the
whole scene and sequence of events. Learned senior counsel
has relied upon the judgment in Varkey Joseph vs. State of c
Kera/a, 1993 Supp (3) SCC 745 to support his contention. The
said judgment is clearly distinguishable. On the facts in that
case, this Court found that the prosecutor had put leading
questions, without objections by the defence, to several material
and key witnesses regarding the culpability of the accused. The .
0
extent of the leading questions put, were on the facts of that
case found to violate the constitutional right of a fair trial of the
accused. The facts of the present appeal are wholly different.
The petitioner had adequate and competent legal
representation before the trial Court and leading questions, if
any, put by the prosecutor were objected to by the defence and E
several questions were disallowed by the trial court.
Furthermore, the finding of guilt of the appellant herein by the
High Court has not been on account of any of the answers
elicited to any such questions. It is not as if every single leading
question would invalidate the trial. The impact of the leading F
questions, if any, has to be assessed on the facts of each case.

Efforts made to trace Sanjay Mehtani:

98. It has been contended by the learned senior counsel G
for the appellant/Manu Sharma that the Sanjay Mehtani, friend
of Malani Ramani, who was also present at Qutub Colonnade
at the scene of offence was deliberately not examined by the
Prosecution. Respondent has pointed out that Sanjay Mehtani
was examined during the course of investigation and his
H
262 SUPREME COURT REPORTS [2010] 4 S.C.R.

A statement was recorded under Section 161 Cr.P.C. He was
also cited as a prosecution witness. During the trial summons
were issued for him and it was learnt that Sanjay Mehtani had
left India and was residing at Hong Kong and as such could
not be examined in the court. Further, it was pointed out that
8 bare perusal of the trial Court record of the present case will
clearly bring out the fallacy in the said argument of the defence.
The Police while filing the charge-sheet before the Magistrate
had enlisted Sanjay Mehtani's name in the list of witnesses.
This fact clearly shows that the prosecution had the intention
c to examine Sanjay Mehtani as their witness. Further, the said
witness was summoned by the Court for examination vide
orders dated 28.11.2001, 08.02.2002, 27.11.2003 and
11.12.2003. The said sequence of events clearly show that the
prosecution not only wanted to examine him as a witness, but
D tried serving him with the summons many times, but the same
could not be achieved as Sanjay Mehtani had by then shifted
to Hong Kong and was not staying in India. Therefore to
contend that Sanjay Mehtani was deliberately not examined by
the Prosecution is absolutely baseless and not founded on the
basis of the record.
E
The conduct of Absconding:

99. From the testimony of PW-20 and PW-24, it is proved
beyond reasonable doubt that accused Sidharth Vashisht @
F Manu Sharma after committing the murder of Jessica Lal fled
away from the scene of occurrence. It is further proved from the
testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-
85 and PW-80 that from afternoon of 30.04.1999 search was
made for the black Tata Safari bearing Regn. No. CH-01-W-
G 6535 and for Sidharth Vashisht @ Manu Sharma, Director of
Piccadilly Sugar Industries at Bhadson, Kurukshetra,
Chandigarh, his farmhouse at Samalkha and Okhla Delhi. It is
also proved that even after the seizure of vehicle on 02.05.1999
the search for accused Sidharth Vashisht @ Manu Sharma
H continued and search was made at Piccadilly Cinema,
. SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 263
(NCT OF DELHI) [P. SATHASIVAM, J.]
Piccadilly Hotel, his residence at Chandigarh, PGI Hospital A
where his father was subsequently admitted. However, accused
Sidharth Vashisht @ Manu Sharma was not found nor anybody
informed his whereabouts and it is only on 06.05.1999 that
accused Sidharth Vashisht @ Manu Sharma surrendered at
Patiala Guest House, Chandigarh in the presence of Shri B
Harish Ghai, advocate and Sh. Vinod Dada. The above
evidence of the witnesses clearly establishes beyond
reasonable doubt that accused Manu Sharma absconded after
committing the crime and surrendered on 06.05.1999 after
extensive searches were made.
c
100. A criminal trial is not an enquiry into the conduct of
an accused for any purpose other than to determine whether
he is guilty of the offence charged. In this connection, that piece
of conduct can be held to be incriminatory which has no
reasonable explanation except on the hypothesis that he is D
guilty. Conduct which destroys the presumption of innocence
can alone be considered as material. In this regard, it is useful
to refer Anant Chaintaman Lagu vs. State of Bombay AIR
1960 SC 500:-
E
"Circumstantial evidence in this context means a
comBeenation of facts creating a network through which
there is no escape for the accused, because the facts
taken as a whole do. not admit of any inference but of his
guilt.. ... this conduct of the accused was so knit together as
F
to make a network of circumstances pointing only to his
guilt.. .. his methods was his own undoing; because even the
long arm of coincidence could not explain the multitude of
circumstances against him, and they destroyed the
presumption of innocence with which law clothed him."
G
Thus, it has been proved beyond reasonable doubt that
accused Manu Sharma absconded after the incident which is
a very relevant conduct u/s 8 of Evidence Act.

Disclosure statements of the accused persons and their H
264 SUPREME COURT REPORTS [2010] 4 S.C.R.

A admissibility u/s 27 Evidence Act:

101. PW-100 SI Sun ii Kumar and PW-101 Inspector
Surender Kumar Sharma deposed that on the early morning
of 05.05.1999 accused Amardeep Singh Gill @ Tony Gill was
arrested and he made a voluntary disclosure vide Ex.PW 100/
8 7 that on 29.04.1999 he had a talk with Alok Khanna over
telephone and thereafter a telephone call was received at about
8.30 p.m. from Sidharth Vashisht @ Manu Sharma. He has
further disclosed that Alok Khanna came to his house in Tata
Sierra car no. MP 04V 2634. He has further disclosed that he
C and Alok Khanna went to Qutub Colonnade in Alok Khanna's
Tata Sierra bearing No. MP-04-V-2634. Accused Manu
Sharma surrendered on 06.05.1999 at 2.30 p.m. at Patiala
Guest House, Chandigarh before lnspr. Raman Lamba PW-87
and ASI Nirbhay Singh PW-80. After his arrest accused Manu
D Sharma had made.four disclosure statements. The first was an
oral disclosure made to lnspr. Raman Lamba wherein he said
that he could recover the pistol from Ravinder Sudan at Mani
Majra. However, it was pointed out that the search of the house
at Chandigarh was taken and since the diary containing the
E address of Ravinder Sudan could not be found, no recovery
could be affected.

102. On 07.05.1999, he made a disclosure to lnspr.
Surender Kumar Sharma PW-101 which was recorded as Ex.
PW 100/12. In the said disclosure, he disclosed that he was
F using his younger brother Kartik's Cellphone No. 9811096893
in making calls to his friends like Tony Gill, Alok Khanna, Amit
Jhingan and others. He also disclosed the phone Nos. of some
of the co-accused and that he handed over his cell bearing No.
9811096893 to Yograj Singh in Panchkula and can recover the
G same. Pursuant to the disclosure of Sidharth Vashisht @ Manu
Sharma the mobile phone used by him was recovered from
accused Yograj Singh. Vide Ex.PW 100/23.

103. The third disclosure is Ex. PW 100/Article-1 which
H was video recorded on 07.05.1999 itself after the accused was
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 265
(NCT OF DELHI) [P. SATHASIVAM, J.]
produced before the Metropolitan Magistrate and copies of A
which were duly supplied to the accused during trial. From the
disclosure Ex PW 100/Article-1 there were further discovery of
facts admissible under Section 27 of the Evidence Act.
Pursuant to the disclosures of Manu Sharma investigations
were carried out and it was that the accused were in close B
contact with each other over phone and accused Manu Sharma
had made number of calls from the house of Vikas Yadav son
of DP Yadav to his house in Chandigarh and to Harvinder
Chopra at Piccadilly.

104. The fourth disclosure of accused Sidharth Vashisht C
@ Manu Sharma was recorded by PW-101 wherein he had
disclosed that Ravinder Sudan @ Titu having concealed the
pistol, had gone to Manali (HP) where he met his uncle Shyam
Sunder and he very well knew the place where they concealed
the pistol and that he could lead to Manali t6 recover the pistol D
used in the incident. It further came on record that calls were
made to USA to Ravinder Sudan. It may not be out of place to
mention that calls were exchanged between the accused and
made to USA were discovered pursuant to disclosures made
by the accused persons. E

Test Identification Parade-Refusal:

105. The witnesses Deepak Bhojwani PW-1, Malini
Ramani PW-6, Beena Ramani PW-20 and George Mailhot
PW-24' have clearly proved beyond reasonable doubt the F
identification of the accused persons Manu Sharma,
Amardeep Singh Gill, Alok Khanna and Vikas Yadav. PW-1
Deepak Bhojwani had met Manu Sharma on the night of
29.04.1999 at Qutub Colonnade when Manu Sharma
introduced himself to Deepak Bhojwani and they were about G
to exchange visiting cards when Amardeep Singh Gill @ Tony
Gill took him away towards the cafe. Both Amardeep Singh Gill
and Ma nu Sharma refused their Tl P on 06.05.1999 and
07.05.1999 respectively before PW-79 Ld. MM Sh. Rajnish
Kumar Gupta without citing any credible reason. Thereafter, H
266 SUPREME COURT REPORTS [2010] 4 S.C.R.

A photo identification was conducted in which they were duly
identified by Deepak Bhojwani. The said witness has also
clearly identified the two of them in the Court.

106. PW-6, Malini Ramani has categorically stated that
she identified Manu Sharma as the accused in the Police
8
Station. She had seen accused in the police station on
08.05.1999 and thus the same was after 07.05.1999 when
accused Manu Sharma refused his TIP. In cross-examination,
PW-6 states that

C "During the first five days of May 1999, the interrogation
of three of us was very intensive, and photographs were
shown to us of the culprits for identification. It could be that
the photograph of Manu Sharma had been shown to me
but since I was not in good frame of mind and rather
D disturbed for the whole week and therefore, I do not
remember whether the photograph of Manu Sharma was
shown to me or not on 01.05.1999. It is correct that
between 01.05.1999 to 05.05.1999, I had been shown the
paragraph of Manu Sharma."
E
Thus she was not sure about her having been shown the
photograph prior to 08.05.1999. PW-6 has nowhere stated in
her testimony that photograph of Manu Sharma were shown to
her parents. Moreover, no photographs of the other three
accused were shown to her or her parents of the other accused
F i.e. of Vikas Yadav, Amardeep Singh Gill or Alok Khanna as
contended. Further, PW-20 has categorically identified all the
four accused in the witness box and there is no cross
examination of PW-20 to the effect that the photographs of the
accused were shown only in the police station. Even, PW-24
G has identified accused Manu Sharma in the court and his
testimony also remains unshaken on this aspect. PW-30 has
also clearly identified accused Amardeep Singh Gill and Vikas
Yadav in the court and the photo identification with regard to
them was resorted after Amardeep Singh Gill @ Tony Gill had
H refused TIP on 06.05.1999 and Vikas Yadav was granted
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 267
(NCT OF DELHI) [P. SATHASIVAM, J.]
anticipatory bail. That the photographs of Vikas Yadav were A
taken from the Asstt. Registrar, Ghaziabad Authority RTO, PW
38 on 20.05.1999.

107. PW-2 Shyan Munshi had left for Kolkata and
thereafter, photo identification was got done when SI Sharad
8
Kumar PW 76 went to Kolkata to get the identification done
by picking up from the photographs wherein he identified the
accused Manu Sharma though he refused to sign the same.
However, in the court PW-2 Shyan Munshi refused to recognize
him. In any case, the factum of photo-identification by PW-2 as
witnessed by the concerned Officer is a relevant and an C
admissible piece of evidence. In this regard reliance may be
placed on, R vs. McCay (1991) 1 All ER 232. There the
accused was identified by the witness in the presence of the
10 who took note of the said fact, later the witness could not
identify the accused in Court due to lapse of time, thus the D
testimony of the 10 was relied upon to prove the said
identification. The IO's testimony was upheld as admissible on
the ground that the act of the 10 was contemporaneous with the
act of identification by the witness.
E
108. PW-78 SI Sharad Kumar deposed

"I thereafter went to Calcutta. The four photographs X1 to
X4 were identified by Shyan Munshi as those of the
accused in my presence. (Objected to by Sh. R.K.
Naseem). I asked Shyan Munshi to sign on the back of F
these photos but he refused to do so. Then I gave
separate markings on the back of the photographs X1 to
X4 and signed them. Markings and my signatures at the
back of the photographs are at points A on all the four
photographs. I recorded the statement of Shyan Munshi in G
this regard. The photocopy of the said statement is Ex
PW2/C which is in my hand and bears my signatures at
point A. I correctly recorded statement of Shyan Munshi
and did not add or omit therefrom on my own. After return
from Calcutta, I handed over the photographs and H
268 SUPREME COURT REPORTS [2010] 4 S.C.R.

A statement of Shyan Munshi and other documents to SHO
Surender Kumar''.

109. PW-2 Shyan Munshi in this regard stated,

"It is correct that Delhi Police had contacted me in Calcutta-
8 at my residence but I do not remember it was on 19th May,
1999....... It is correct that some photographs were shown
to me by Delhi Police at Calcutta in May, 1999 at my
residence" ... "Police had shown me the photograph and
asked me if I could identify but I did not identify any of the
C culprits. I was asked by the police to sign on the reverse
of those four photographs but I did not sign any such
photograph."

110. Mr. Jethmalani next contended that identification is
. inherently illegal because the witnesses were not only shown
0
the photographs but also the accused was physically shown.
According to him, it was further in evidence that accused Manu
Sharma was shown to all the three witnesses on 08.05.99 and
they even admitted that it may have been on 07.05.99. It is
further contended that it is not denied that the photos came in
E the newspaper during the prosecution. However, it was pointed
out by the defence that prosecution is certainly not responsible
for showing the photos. As far as refusal of TtP by accused
Manu Sharma is concerned, there is no justification in the stand
of the defence that TIP was not held due to his photo or he
F himself being shown to the witness. In this regard, it would be
relevant to note that accused Manu Sharma surrendered on
06.05.99 and on 07.05.99 he was produced in muffled face
before the MM Shri Rajneesh Gupta PW-79 and the
proceedings thereof are recorded vide Ex PW-79/G wherein
G accused Manu Sharma's contention for refusal of TIP is that his
photograph has appeared in newspapers and his photograph
has been shown to the witnesses and that he has been shown
physically to the witnesses. All the three contentions of the
accused Manu Sharma are incorrect and misconceived with
H regard to the appearance of the photos in the newspapers. It
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 269
(NCT OF DELHI) [P. SATHASIVAM, J.]

is submitted that vide Ex PW 101/11 to 22 the newspapers A
from 01.05.99 to 06.05.99 have been duly exhibited by PW-
101. It was pointed out that in none of those newspapers is the
photograph of accused Manu Sharma shown. As a matter of
fact vide Ex. No. PW 101/15 photograph dated 06.05.1999
clearly shows that he is in muffled face. In the absence of any B
defence refusal of TIP on this ground is totally unjustified and
an adverse inference ought to be drawn in this regard.

111. The next contention of the defence for refusal of TIP
is that his photograph has been shown to the witnesses is also c
incorrect. It is not disputed that the photograph of accused Manu
Sharma was obtained from his farmhouse located in Samalkha
on the intervening night 30.04.1999 & 01.05.1999. However, it
is further in evidence of PW-87 that he went to Chandigarh and
he took the photograph of accused Manu Sharma for the
purposes of identification and it was with him till 06.05, 1999. D
Thus the photo of accused Manu Sharma could not have been
shown to any of the witnesses because the witnesses were
either in Delhi or Kolkata not in Chandigarh. The only witness
who has deposed with regard to the photograph having been
shown is PW-6 wherein she has stated: E

"It could be that the photograph of Manu Sharma that had
been shown to me on 01.05.1999 but since I was not in
good frame of mind and rather disturbed for the whole
week and therefore I do not remember whether the F
photograph of Manu Sharma was shown to me on
01.05.1999."

Her testimony on this point is clearly wavering in view of the
fact that immediately after the incident she fainted and that is G
why her statement under Section 161 Cr.P.C. was recorded
only on 03.05.99. Moreover, it was explained that since on,
02.05.99 the photograph in question was not available in Delhi
itself and therefore there was no chance of showing the
photograph to this witness, as on 01.05.99 she was unwell and
her statement also could not be recorded and thus the issue H
270 SUPREME COURT REPORTS [2010] 4 S.C.R.

A of showing her the photograph could not arise. Further, this
witness nowhere says that photographs were shown to her
parents as well as being sought to be inferred by the defence.
Thus refusal of TIP on this ground was unjustified by accused
Ma nu Sharma in the morning of 07 .05.1999. It is further
· B submitted that after the refusal of TIP it is only thereafter that
the accused Manu Sharma was shown to the witnesses PW-
6, PW-20 and PW-24 and their statements under Section 161
Cr.P.C. were recorded with regard to the identification of
accused Manu Sharma. The said process of identification was
c necessary for the 10 to be certain that this is the man that the
said witnesses had witnessed/seen as the person responsible.
In the light of Manu Sharma's refusal, the police had little choice
but to formally show the photo to the witnesses and record their
statement in that regard. Thus, firstly his refusal is not justified
D on the ground that he has been shown to the witnesses,
moreover, he was shown to the witness only after his refusal of
Tl P so that it is verified that he is the same person who is
involved in the incident and no adverse inference on this count
can be taken against the prosecution.
E 112. It is further pointed out that the accused Manu Sharma
was sent to judicial custody on 15.05.1999 and the statement
of witnesses continued even thereafter and thus resort to photo
identification was properly taken by mixing the photograph of
accused Manu Sharma with number of other photographs and
F asking the witnesses to pick up the photograph of the person
they had witnessed on the fateful night and the morning
thereafter i.e. 29/30.04.99. This mode of photo identification
was resorted to vis-a-vis Deepak Bhojwani PW-1 on
24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput PW-
G 4 on 29.05.99 and Shyan Munshi PW-2 on 19.05.99 at Calcutta.
Thus there is no merit in the contention of the defense that the
dock identification was a farce as it was done for the first time
in the Court.
113. It is also contended by the defence that since the
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 271
(NCT OF DELHI) [P. SATHASIVAM, J.]
photographs were shown to the witnesses this circumstance A
renders the whole evidence of identification in Court as
inadmissible. For this, it was pointed out that photo identification
or TIP before the Magistrate, are all aides in investigation and
do not form substantive evidence. Substantive evidence is the
evidence of the witness in the court on oath, which can never B
be rendered inadmissible on this count. It is further pointed out
that photo identification is not hit by 162 Cr.P.C. as adverted
to by the defense as the photographs have not been signed
by the witnesses. In support of his argument the senior counsel
for Manu Sharma relies on the judgment of Kartar Singh vs. c
Union of India (1994) 3 SCC 569 at page 711 wherein while
dealing with Section 22 TADA the Court observed that photo
TIP is bad in law. It is useful to merition that the said judgment
has been distinguished in Umar Abdul Sakoor Sorathia vs.
Intelligence .Officer, Narcotic Control Bureau, (2000) 1 SCC D
138 at page 143 where a Photo Identification has been held
to be valid. The relevant extract of the said judgment is as
follows:-
"10. The next circumstance highlighted by the learned
counsel for the respondent is that a photo of the appellant E
was shown to Mr. Albert Mkhatshwa later and he identified
that figure in the photo as the person whom he saw driving
the car at the time of interception of the truck. ·

11. It was contended that identification by photo is
inadmissible in evidence and, therefore, the same cannot F
be used. No legal provision has been brought to our
notice, which inhibits the admissibility of such evidence.
However, learned counsel invited our attention to the
observations of the Constitution Bench in Kartar Singh vs.
State of Punjab which struck down Section 22 of the G
Terrorist and Disruptive Activities (Prevention) Act, 1987.
By that provision the evidence of a witness regarding
identification of a proclaimed offender in a terrorist case
on the basis of the photograph was given the same value
as the evidence of a test identification parade. This Court H
272 SUPREME COURT REPORTS [2010] 4 S.C.R.

A observed in that context: (SCC p. 711, para 361)
361. If the evidence regarding the identification on
the basis of a photograph is to be held to have the
same value as the evidence of a test identification
parade, we feel that gross injustice to the detriment
B
of the persons suspected may result. Therefore, we
are inclined to strike down this provision and
accordingly we strike down Section 22 of the Act.
12. In the present case prosecution does not say that they
c would rest with the identification made by Mr. Mkhatshwa
when the photograph was shown to him. Prosecution has
to examine him as a witness in the court and he has to
identify the accused in the court. Then alone it would
become substantive evidence. But that does not mean that
D at this stage the court is· disabled from considering the
prospect of such a witness correctly identifying the
appellant during trial. In so considering the court can take
into account the fact that during investigation the
photograph of the appellant was shown to the witness and
E he identified that person as the one whom he saw at the
relevant time. It must be borne in mind that the appellant
is not a proclaimed offender and we are not considering
the eventuality in which he would be so proclaimed. So the
observati.ons made in Kartar Singh in a different context
is of no avail to the appellant."
F
Even a TIP before a Magistrate is otherwise hit by Section 162
of the Code. Therefore to say that a photo identification is hit
by section 162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of section 9 of the Evidence Act
G that the same i.e. the act of identification becomes admissible
in Court. The logic behind TIP, which will include photo
identification lies in the fact that it is only an aid to investigation,
where an accused is not known to the witnesses, the 10
conducts a TIP to ensure that he has got the right person as
H an accused. The practice is not born out of procedure, but out
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 273
(NCT OF DELHI) [P. SATHASIVAM, J.]
of prudence. At best it can be brought under Section 8 of the A
Evidence Act, as evidence of conduct of a witness in photo
identifying the accused in the presence of an 10 or the
Magistrate, during the course of an investigation.

114. Mr. Jethmalani has further argued on the proposition
8
that mere dock identification is no identification in the eyes of
law unless corroborated by previous TIP before the Magistrate.
It has been further argued that in any case, even ident[fication
in Court is not enough and that there should be something
more to hold the accused liable. In support of its arguments,
he placed heavy reliance on the decision of this Court in the C
case of Hari Nath & Ors vs. State of U.P. (1988) 1 SCC 14
and Budhsen & Others vs. State of U.P. (1970) 2 SCC 128.
A close scrutiny of these judgments will reveal that they infact
support the case of the Prosecution. These judgments make it
abundantly clear that even where there is no previous TIP, the D
Court may appreciate the dock identification as being above-
board and more than conclusive. ·

115. The law as it stands today is set out in the following
decisions of this Court which are reproduced as hereinunder E
in Munshi Singh Gautam vs. State of MP. (2005) 9 SCC 631,
at page 643:

"16. As was observed by this Court in Matru vs. State of
U.P. 1971 2 SCC 75 identification tests do not constitute
substantive evidence. They are primarily meant for the F
purpose of helping the investigating agency with an
assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification
can only be used as corroborative of the statement in Court.
(See Santokh Singh vs. lzhar Hussain 1973 2 SCC 406.) G
The necessity for holding an identification parade can arise
only when the accused are not previously known to the
witnesses. The whole idea of a test identification parade
is that witnesses who claim to have seen the culprits at the
time of occurrence are to identify them from the midst of H
274 SUPREME COURT REPORTS [2010] 4 S.C.R.

A other persons without any aid or any other source. The test
is done to check upon their veracity. In other words, the
main object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses
based upon first impression and also to enable the
B prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code and the
Evidence Act. It is desirable that a test identification
c parade should be conducted as soon as after the arrest
of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses
prior to the test identification parade. This is a very
common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no
D
scope for making such an allegation. If, however,
circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the
E evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
F As a general rule, the substantive evidence of a witness
is the statement made in court. The evidence of mere
identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character.
The purpose of a prior test identification, therefore, is to
G test and strengthen the trustworthiness of that evidence. It
is, accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused who
are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 275
(NCT OF DELHI) [P. SATHASIVAM, J.]
exception, when, for example, the court is impressed by a A
particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification
parades belong to the stage of investigation, and there is
no provision in the Code which obliges the investigation
agency to hold or confers a right upon the accused to claim B
a test identification parade. They do not constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a
test identification parade would not make inadmissible the
evidence of identification in court. The weight to be C
attached to such identification should be a matter for the
courts of fact. In appropriate cases it may accept the
evidence of identification even without insisting on
corroboration. (See Kanta Prashad vs. Delhi
Administration Al R 1958 SC 350, Vaikuntam
0
Chandrappa vs. State of A.P. AIR 1960 SC 1340,
Budhsen Vs State of U.P. (1970) 2 SCC 128 and
Rameshwar Singh vs. State of J&K (1971) 2 SCC 715)
19. In Harbhajan Singh vs. State of J&K (1975) 4 SCC
480, though a test identification parade was not held, this E
Court upheld the conviction on the basis of the
identification in court corroborated by other circumstantial
evidence. In that case it was found that the appellant and
one Gurmukh Singh were absent at the time of roll call and
when they were arrested on the night of 16.12.1971 their F
rifles smelt of fresh gunpowder and that the empty
cartridge case which was found at the scene of offence
bore distinctive markings showing that the bullet which
killed the deceased was fired from the rifle of the appellant.
Noticing these circumstances this Court held: (SCC p. 481, G
para 4).
"In view of this corroborative evidence we find no
substance in the argument urged on behalf of the
appellant that the investigation officer ought to have
held an identification parade and that the failure of H
276 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Munshi Ram to mention the names of the two
accused to the neighbours who came to the scene
immediately after the occurrence shows that his
story cannot be true. As observed by this Court in
Jadunath Singh vs. State of U.P. 17 absence of test
B identification is not necessarioy fatal. The fact that
Munshi Ram did not disclose the names of the two
accused to the villages only shows that the accused
were not previously known to him and the story that
the accused referred to each other by their
respective names during the course of the incident
c contains an element of exaggeration. The case
does not rest on the evidence of Munshi am alone
and the corroborative circumstances to which we
have referred to above lend enough assurance to
the implication of the appellant."
D
Malkhansing vs. State of M.P., (2003) 5 SCC 746 at 752

"7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
E in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness
is the statement made in court. The evidence of mere
F identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character.
The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence to
G generally look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused who
are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the court is impressed by
H a particular witness on whose testimony it can safely rely,
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 277
(NCT OF DELHI) [P. SATHASIVAM, J.]

without such or other corroboration. The identification A
parades belong to the stage of investigation, and there is
no provision in the Code of Criminal Procedure which
obliges the investigation agency to hold, or confers a right
upon the accused to claim a test identification parade.
They do not constitute substantive evidence and these B
parades are essentially governed by Section 162 of the
Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter fro the c
courts of fact. In appropriate cases it may accept the
evidence of identification even without insisting on
corroboration."
116. Mr. Ram Jethmalani has further placed heavy reliance
on two Books by foreign authors,· namely, "Proof of Guilt by D
Glanville Williams,' 3rd Edition and 'Eye Witness Identification
in Criminal Cases' by Patrick M. Wall, to urge that identification
of an accused in Court is a serious matter and the chances of
a false identification are very high. These texts only reiterate
what the various courts have held time and again. The view of E
the said author has been quoted by this Court, the earliest
judgment being Shivaji Sahabrao Bobade vs. State of
Maharashtra, (1973) 2 SCC 793, at page 800:
"The evil of acquitting a guilty person light heartedly as a
F
learned Author (Glanville Williams in 'Proof of Guilt') has
sapiently observed, goes much beyond the simple fact that
just one guilty person has gone unpunished. If unmerited
acquittals become general, they tend to lead to a cynical
disregard of the law, and this in turn leads to a public
demand for harsher legal presumptions against indicted G
persons and more severe punishment of those who are
found guilty. Thus, too frequent acquittals of the guilty may
lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. For all these reasons it is true
to say, with Viscount Simon, that a miscarriage of justice H
278 SUPREME COURT REPORTS [2010] 4 S.C.R.

A may arise from the acquittal of the guilty no less than from
the conviction of the innocent."

117. Learned Solicitor General submitted that, even
otherwise, an adverse inference ought to be drawn against the
appellants for their refusal to join the TIP. This view has found
8 favor time and again by this Court. It is pertinent to note that it
is dock identification which is a substantive piece of evidence.
Therefore even where no TIP is conducted no prejudice can be
caused to the case of the Prosecution. In Mul/agiri Vajram vs.
State of A.P. 1993 Supp. (2) SCC 198, it was held that though
C the accused was seen by the witness in custody, any infirmity
in TIP will not affect the outcome of the case, since the
deposition of the witnesses in Court was reliable and could
sustain a conviction. The photo identification and TIP are only
aides in the investigation and does not form substantive
D evidence. The substantive evidence is the evidence in· the court
in oath.

118. The following decisions relied upon by the learned
senior counsel for the appellant are clearly distinguishable from
E the present facts and thus are not applicable. N.J. Suraj vs.
State (2004) 11 sec 346 is distinguishable as there was no
direct evidence on record against the accused and the
prosecution's case was based on last seen evidence of
accused with deceased and circumstantial evidence. The
F admission of witnesses in regard to showing of photographs
prior to TIP was coupled with the fact that the writing of the
accused did not match with the entries made in the entry
register which was contrary to the case of the prosecution.
119. Laxmipat Chararia vs. State of Maharashtra, AIR
G 1968 SC 938, is distinguishable as the witness whose
statement was subjected to arguments as being put under
pressure of prosecution and was shown photographs of the
accused was intact an accomplice and her statement was also
relied upon by the Court and held that her evidence is
H admissible.
SIDHARTHA VASHISHT @ MANU SHARMA v. 279
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]
120. Hari Nath & Anr vs. State of U.P. (1988) 1 SCC 14 A
is also distinguishable on facts as the accused were residing
in village in the close vicinity of the village of the prosecution
witness (members of house hold where dacoity was committed)
and that accused and the prosecution witness had been
students of the same institution was indicative of the fact that B
the accused were known to the prosecution witnesses while
there was an omission to mention name of the accused
persons in the FIR. Secondly, as it was also held that even on
the premise that no prior acquaintance was there, the TIP
lacked promptitude as was conducted after an unexplained c
delay of more than 4 months.

121. The judgment in Kanan & Ors vs. State of Kera/a
(1979) 3 sec 319, is distinguishable as the witness though
admitted that he knew the two accused by face and yet he had
named them while identifying them in Court, which raised D
element of doubt & that names of the accused were supplied
to him from outside.

122. Dana Yadav vs. State of Bihar (2002) 7 SCC 295
is also distinguishable as the identification by the witness in E
court was not relied upon as the witness did not name the
accused before the Police but in Court had identified and also
named the accused, and as the identification was not further
corroborated by either previous identification or any other
evidence. While other witnesses though named the accused
before the police but failed to identify him in court.
F

123. In Vijayan vs. State of Kera/a (1999) 3 SCC 54, the
witness was admittedly shown the photograph of the accused
before the TIP and further told to identify the tallest man in the
parade, as such this TIP was discarded and in this light the G
dock identification of the witness was also discarded. Further
according to the witness the accused was not a tall man
whereas the height of the accused was more than 6 feet.

124. George & Ors. vs. State of Kera/a & Anr. (1998) 4
H
280 SUPREME COURT REPORTS [2010] 4 S.C.R.

A sec 605 is not applicable on the facts of the present case in
so far as the issue of photo identification is concerned. The
aforesaid judgment which is sought to be relied upon by the
appellant in support to their contention on the issue that absence
of TIP makes the dock identification weak evidence is not
B applicable on the facts of the present case. In the said decision
the prosecution failed to hold TIP whereas in case at hand the
accused person refused TIP. The newspaper reports duly
exhibited by PW 101 in the present case nowhere show
photographs of the accused persons.

C 125. Learned senior counsel for the appellant has argued
that the statement of the accused recorded under Section 313
of the Criminal Procedure Code may be treated as evidence
and by doing so this Court must take into consideration the
stand taken by the appellant as regards his gun having been
D taken away by the police. In support of his· argument, he relied
upon the decision of this Court in the case of Hate Singh
Bhagar Singh vs. State of Madhya Bharat, AIR 1953 SC 468.
It has been further argued that the evidence of witnesses has
not been put to the appellant thereby causing prejudice to the
E appellant. The said proposition of law is misplaced since a
specific provision has been provided by way of Section 315
of the Code whereby an accused can, as a matter of right,
appear as a witness on his own behalf. In the present case,
the appellants exercised an option declining to do so and in
F such manner failed to offer any evidence to show loss/removal
of his gun. Thus it cannot be urged by the defence merely in
order to suit his convenience that his statement may be treated
as evidence and that all facts stated therein be treated as true
unless contradicted by the prosecution. While answer given by
G the accused to question put under Section 313 of the Code are
not per se evidence because, firstly, it is not on oath and,
secondly, the other party i.e., the prosecution does not get an
opportunity to cross-examine the accused, it is nevertheless
subject to consideration by the Court to the limited extent of
H drawing an adverse inference against such accused for any
SIDHARTHA VASHISHT@ MANU SHARMA v. 281
STATE (NCT OF DELHI) [P. SATHASIVAM, J.]

false answers voluntarily offered by him and to provide an A
additional/missing link in the chain of circumstances. The
judgment relied upon is of no use to the defence since the same
pertains to a period where the law did not allow the accused
to step into the witness box as a witness of his own innocence.
B
126. Regarding the contention that evidence of each
witness must be put to the accused, it must be clarified that only
the circumstances need to be put and not the entire testimony.
It is apt to quote the following decision of this Court i.e., State
of Punjab vs. Swaran Singh, (2005) 6 SCC 101 at page 104:
c
"9. The only reason given by the learned Single
Judge of the High Court for acquitting the accused is that
the evidence of PW 1 and PW 4 was not specifically put
to the accused under Section 313 CrPC and it was held
that in the absence of these facts in the form of questions o
to the accused, the evidence could not have been used
against him. It is also pertinent to note in this regard that
when PW 1 and PW 4 were examined as witnesses, the
accused did not seriously dispute the evidence of PW 1
or PW 4. The only cross-examination was that it was E
incorrect to suggest that the case property was not
deposited with him and he had deposed falsely. So also,
the evidence of PW 4 was not challenged in the cross-
examination except for a general suggestion that he had
been deposing falsely and that no case property was
F
handed over to him by PW 1 Harbhajan Singh. The
accused had no case that the seal was ever tampered with
by any person and that there was any case of mistaken
identity as regards the sample and that the report of the
chemical analyst was not of the same sample taken from
the accused. Except making a general suggestion, the G
accused had completely admitted the evidence of PW 1
and PW 4 as regards the receipt of the sample, sealing
of the same and sending it to the chemical analyst. This
was pointed out only to show that the accused was not in
any way prejudiced by the fact of not having been H
282 SUPREME COURT REPORTS [2010] 4 S.C.R.

A questioned by making a specific reference to the evidence
of PW 1 and PW 4. As regards the questioning of the
accused under Section 313 CrPC, the relevant provision
is as follows:
"313. Power to examine the accused.-(1) In every
B
inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him, the court -
(a) may at any stage, without previously warning the
c accused, put such questions to him as the court considers
necessary;
(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defence,
question him generally on the case:
D
Provided that in a summons case, where the court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination under
clause (b).
E (2) No oath shall be administered to the accused
when he is examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
F giving false answers to them.
(4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into, or trial
for, any other offence which such answers may tend to show
G he has committed."
10. The questioning of the accused is done to enable
him to give an opportunity to explain any circumstances
which have come out in the evidence against him. It may
H be noticed that the entire evidence is recorded in his
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 283
(NCT OF DELHI) [P. SATHASIVAM, J.]
presence and he is given full opportunity to cross-examine A
each and every witness examined on the prosecution side.
He is given copies of all documents which are sought to
be relied on by the prosecution. Apart from all these, as
part of fair trial the accused is given opportunity to give his
explanation regarding the evidence adduced by the B
prosecution. However, it is not necessary that the entire
prosecution evidence need be put to him and answers
elicited from the accused. If there were circumstances in
the evidence which are adverse to the accused and his
explanation would help the court in evaluating the evidence c
properly, the court should bring the same to the notice of
the accused to enable him to give any explanation or
answers for such adverse circumstance in the evidence.
Generally, composite questions shall not be asked to the
.accused bundling so many facts together. Questions .must
0
be such that any reasonable person in the position of the
accused may be in a position to give rational explanation
to the questions as had been asked. There shall not be
.failure of justice on account of an unfair trial.
15. In the instant case, the accused was not in any E
way prejudiced by not giving him an opportunity to answer
specifically regarding the evidence of PW 1 and PW 4. If
at all, the evidence of PW 1 and PW 4 was recorded in
his presence, he had the opportunity to cross-examine the
witnesses but he did not specifically cross-examine these F
two witnesses in respect of the facts deposed by them. The
learned Single Judge seriously erred in holding that the
evidence of PW 1 and PW 4 could not have been used
against the accused. The acquittal of the accused was
improper as the evidence in this case clearly established G
that the accused was in possession of 5 kg of opium and
thereby committed the offence under Section 18 of the
NDPS Act."
127. Further it is not necessary that the entire prosecution
evidence need to be put to the accused and answers elicited H
284 SUPREME COURT REPORTS [2010) 4 S.C.R.

A from him/even if an omission to bring to the attention of the
accused an inculpatory material has occurred that ipso facto
does not vitiate the proceedings, the accused has to show
failure of justice as held in Swaran Singh (supra) and followed
in Harender Nath Chakraborty vs. State of West Bengal,
8 (2009) 2 sec 758.

128. Hate Singh's case (supra) relied upon by the
appellant is clearly distinguishable from the facts of the present
case. In the said matter, the case of the prosecution was that
two brothers Hate and Bheru fired one shot each at the
C deceased who received three wounds. It was opined that three
wounds which could have been from a single shot. It was the
consistent stand of the Bheru that he fired the shots (with double
barrel), whose appeal was, therefore, dismissed in limine.
While that of Hate (appellant in the said case) was that though
D present with a gun, he did not fire any shot (with his single
barrel). That single barrel was found loaded (Article E) this fact
was accepted throughout. Witnesses also saw Bheru firing the
first shot. The Court held that the fact that both the brothers
absconded was given much importance by the High Court and
E Sessions Court but were not asked to explain it at any stage.
129. Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595
relied upon by the appellant is also distinguishable on facts as
there was no accusation specifically put in the question during
examination to the accused.
F
Adverse Inferences Against the Accused:
130) (i) False answers under Section 313 Cr.P.C.

This Court has time and again held that where an accused
G furnishes false answers as regards proved facts, the Court
ought to draw an adverse inference qua him and such an
infereRce shall become an additional circumstance to prove the
guilt of the accused. In this regard, the prosecution seeks to
place reliance on the judgments of this Court in Peresadi vs.
H State of U.P., (1957) Crl.L.J. 328, State of M.P. vs. Ratan Lal,
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 285
(NCT OF DELHI) [P. SATHASIVAM, J.]
AIR 1994 SC 458 and Anthony D'Souza vs. State of Kamataka A
(2003) 1 SCC 259 where this Court has drawn an adverse
inference for wrong answers given by the appellant under
Section 313 Cr.P.C. In the present case, the appellant-Manu
Sharma has, inter alia, has taken false pleas in reply to question
nos. 50, 54, 55, 56, 57, 64, 65, 67, 72, 75 and 210 put to him B
under Section 313 of the Code.

(ii) Adverse inference qua non explanation of Pistol

Appellant/Accused - Manu Sharma was holder of a pistol
.. 22" bore P Berretta, made in Italy duly endorsed on his arms c
licence. It was his duty to have kept the same in safe custody
and to explain its whereabouts. It is proved beyond reasonable
doubt on record that extensive efforts were made to trace the
pistol and the same could not be recovered. Moreover as per
the testimony of CN Kumar, PW-43, DSP/NCRB, RK Puram D
there is no complaint or report of the said pistol. Thus an
adverse inference has to be drawn against the accused-Manu
Sharma for non-explan;3tion of the whereabouts of the said
pistol. Similarly another plea not supported by any positive
evidence led by the appellant-Manu Sharma is that his pistol E
i.e. the weapon of offence and the arms licence was recovered
from his farm house on 30.04.1999, when in fact it is an
established fact that the pistol could not be recovered and that
the licence was surrendered on 06.05.1999 at the time of his
arrest. It defies all logic and ordinary course of conduct to
allege that the prosecution has withheld the pistol after seizing F
. the same from his farmhouse. The fact that he has failed to
produce the pistol, a presumption shall arise that if he has
produced it, the testing of the same would have been to his
prejudice. The burden thus shifts on him.
G
(iii) Adverse inference since no report of theft or loss of
Tata safari CH-01-W-6535
It is the defence of the accused-Manu Sharma that the Tata
Safari was taken away on 30.04.1999 from Kamal. No report
or complaint of the taking away of the vehicle or the theft of the H
286 SUPREME COURT REPORTS [2010] 4 S.C.R.

A vehicle was ever lodged by the appellanUaccused and hence
an adverse inference has to be drawn against the accused on
this count as well. Further the conduct of the appellanUaccused
in not taking any steps despite opportunity in reporting the
alleged taking away of Tata Safari on 30.04.1999 and his
B licensed pistol on 01.05.1999 in itself is enough material to
draw serious adverse inference against the accused.

(iv) Appearance of PW-2 Shyan Munshi accompanied by
Shri Ashok Bansal, Advocate

c By order dated 06.03.2000, Shri Ashok Bansal, advocate
had appeared as proxy counsel for accused-Manu Sharma
before the trial Court and on the same day also took copy of
the report of FSUJaipur on behalf of accused-Manu Sharma.
On 03.05.2001, PW-2, Shyan Munshi, was duly accompanied
by Shri Ashok Bansal, advocate wherein he clearly says that
0
he has come with a lawyer for his personal security. On behalf
of the State, it was contended that an adverse inference against
accused-Manu Sharma has to be drawn for influencing the
witness. It may not be out of place to mention here that PW-2,
Shyan Munshi, who is the maker of the FIR and complainant of
E the case, did not fully support the prosecution case though he
admitted having made statement to the police and having
signed the same. The stand of the State cannot be ignored,
on the other hand, it is acceptable.

F 131. Further as per the disclosure of accused-Manu
Sharma, the pistol was given to accused - Ravinder Sudan @
Titu (PO). It has been proved by the testimony of PW-37, Martin
Raj and PW-49-lnspector Mahender Singh Rathi that accused,
Ravinder Sudan @ Titu left the country by Gulf Airways on
G 04.05.1999. Accused-Manu Sharma surrendered on
06.05.1999 only after accused Ravinder Sudan@ Titu left the
country. It is pointed out by the State that calls were made from
PCO, Ambala and PCO Hazrat Nizamuddin which have been
duly proved by the testimony of PW-36, Ram Lal Jagdev, PW-
H 16-Raj Narain Singh, PW-17-Mohd. Jaffar. This conduct of
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 287
(NCT OF DELHI) [P. SATHASIVAM, J.]

accused-Manu Sharma which is relevant and admissible under A
Section 8 of the Indian Evidence Act an adverse inference has
to be drawn against Manu Sharma for this conduct.

Appeals of other accused:

132. We have already discussed the specific evidence, B
especially of presence at the time of incident, removal of Tata
Safari, call details etc. as well as the evidence of PWs 30 and
101, for conviction under Section 201 read with Section 120-
8 IPC against the other two appellants, namely, Amardeep
Singh Gill@ Tony Gill and Vikas Yadav. We are satisfied that c
the High Court, on appreciation of the relevant materials, found
against them and convicted accordingly. On analysis of all the
materials, we agree with their conviction and sentence.

Adverse remarks against prosecution and Trial Judge
D
133. The higher Courts in exercise of their appellate or
original jurisdiction may find patent errors of law or fact or
appreciation of evidence in the judgment which has been
challenged before them. Despite this, what is of significance
is that, the Courts should correct the error in judgment and not . E
normally comment upon the judge. The possibility of taking a
contrary view is part of the system. The judicial propriety and
discipline demand that strictures or lacerating language should
not be used by the higher Courts in exercise of their appellate
or supervisory jurisdiction. Judicial discipline requires that F
errors of judgments should be corrected by reasons of law and
practice of passing comments against the lower courts needs
to be deprecated in no uncertain terms. The individuals come
and go but what actually stands forever is the institution.
134. In the present case the High Court in its judgment, G
on the one hand, explicitly referred to certain criticism/
comments/remarks made by the trial Judge against the
investigating agency, and observed that.they were uncalled for
and that they should have been avoided. But, on the other hand,
the Division Bench itself while criticizing the reasoning in the H
288 SUPREME COURT REPORTS [2010] 4 S.C.R.

A judgment under appeal made certain sweeping remarks against
the trial Judge.

135. In this regard we are intentionally not referring to the
criticism of appreciation of evidence in fact and on law, but are
restricting ourselves to certain observations and comments
8 which, in our humble opinion, are criticism of the Judge per se
and could have been avoided easily by the Division Bench of
the High Court. It is also desirable, that the language which may
imply an allegation of suspicion in the performance of function
of the Court should be carefully examined and unless it is
C absolutely established on record, comments should be
avoided. It will be appropriate to refer to the relevant part$ of
the judgment in this regard:

"........ We also find the criticism against him to be a matter
D 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
E 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 ~D entry to SI Rishi Pal
F 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."

G Xxxx xxxx xxxx xxxx
".....The two weapon theory appears to be a concoction to
the defence and a manipulation of evidence in particular
that of Shyam Munshi, PW2 who, for the first time in court,
introduced such a story. The very fact that the empties were
H
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 289
(NCT OF DELHI) [P. SATHASIVAM, J.]

sent for examination at such a belated stage, cannot rule A
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."
B
136. Let us examine various judgments of this Court which
have persistently taken the view and discouraged observations
or disparaging remarks by the higher Courts against the other
Courts. In the case of A.M. Mathur vs. Pramod Kumar Gupta
& Ors. (1990) 2 SCC 533 the Court stated the dictum that
judicial restraint and discipline are as necessary to the orderly C
administration of justice as they are to the effectiveness of the
army. The duty of restraint , this humility of function should be
constant theme of our judges. The quality in decision making
is as much necessary for judges to command respect as to
protect the independence of the judiciary. Judicial restraint in D
this regard might better be called judicial respect, that is
respect by the judiciary. The avoidance of even the appearance
of bitterness, so important in a judge, required him not to cast
aspersions on the professional conduct of the appellant and that
too without an opportunity for him to meet such situation. The E
Court set aside the disparaging remarks that had been made
by the High Court against the Advocate General.

137. In the case of a judicial officer approaching this Court
for expunction of disparaging remarks on his conduct made by F
the High Court in the matter of 'K' A Judicial Officer (2001) 3
SCC 54, this Court cautioned the higher courts to use the power
of superintendence with great care and circumference before
making remarks on unworthy conduct of an officer, his criticism
or adverse remarks in relation to judicial pronouncement should
be avoided. The Court held as under: G
"A Subordinate Judge faced with disparaging and
undeserving remarks made by a court of superior
jurisdiction is not without any remedy. He may approach
the High Court invoking its inherent jurisdiction seeking H
290 SUPREME COURT REPORTS [2010] 4 S.C.R.

A expunction of objectionable remarks which jurisdiction
vests in the High Court by virtue of its being a court of
record and possessing inherent powers a~ also the power
of superintendence. The view is settled by the law laid
down in Raghubir Saran (Dr) vs. State of Bihar (1964) 2
B SCR 336. However, if a similar relief is sought for against
remarks or observations contained in judgment or order
of the High Court the aggrieved judicial officer can, in
exceptional cases, approach this Court also invoking its
jurisdiction under Articles 136 and/or 142 of the
c Constitution."
138. In the case of Zahira Habibul/a H. Sheikh & Anr. vs.
State of Gujarat & Ors. (2004) 4 SCC 158 another Bench of
this Court in unambiguous terms expressed its concern about
entertaining undesirable submissions against the working of an
D institution and adverse observations being made in the
paragraphs of the judgment. The Court noticed that High Court
had made observations and. remarks about persons/
constitutional bodies like NHRC who were not before it.
Proceedings of the Court normally reflect the true state of affairs.
E Even if it is accepted, that any such submission was made, it
was not proper or necessary for the High Court to refer to them
in the judgment to finally state that no serious note was taken
of the submissions. Avoidance of such manoeuvres would have
augured well with the judicial discipline. The expunction and
F deletion of the contents of paragraph three of the judgment
except the last limb therein is ordered and it shall be always
read to have not formed part of the judgment.
139. Similarly, a three Judge Bench of this Court in the
case of Samya Sett vs. Shambhu Sarkar & Anr. (2005) 6
G SCC 767, again concerned with expunction of adverse remarks
made against the Additional Sessions Judge, who was the
appellant. The High Court had observed that, ignoring of
directions should imply an arrogant attitude of the learned
Judge and was in breach of the canons of judicial discipline
H and damage the judicial system. This Court has, in several
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 291
(NCT OF DELHI) [P. SATHASIVAM, J.]
cases, deprecated the practice on the part of judges in passing A
strictures and in making unsavoury, undeserving, disparaging
or derogatory remarks against parties, witnesses as also
subordinate officers.

140. It is also worthwhile to refer to the latest judgment of
this Court in the case of Parkash Singh Teji vs. Northern India B
Goods Transport Company Private Limited and Another, (2009)
12 sec 577. This Court, while consid~ring the order of the High
Court, declining to expunge the adverse remarks against the
appellanVjudicial officer has observed
c
"judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the
effectiveness of the army".

Again it was pointed out,
D
"A Judge tries to discharges his duties to the best of his
capacity, however, sometimes is likely to err. It has to be
noted that the lower judicial officers mostly work under a
charged atmosphere and are constantly under
psychological pressure. They do not have the benefits E
which are available in the higher courts. In those
circumstances, remarks/observations and strictures are to
be avoided particularly if the officer has no occasion to put
forth his reasonings."

141. In Alok Kumar Roy vs. Dr. S.N. Sharma (1968) 1 F ·
SCR 813 the vacation Judge of the High Court of Assam and
Nagaland passed an interim order during vacation in a petition
entertainable by the Division Bench. After reopening of the
Court, the matter was placed before the Division Bench
presided over by the Chief Justice in accordance with the High G
Court Rules. The learned Chief Justice made certain remarks
as to "unholy haste and hurry" exhibited by the learned vacation
Judge in dealing with the case. When the matter reached this
Court Wanchoo C.J., observed: (SCR pp 819 F-820A)
H
292 SUPREME COURT REPORTS [2010] 4 S.C.R.

A "It is a matter of regret that the learned Chief Justice thought
fit to make these remarks in his judgment against a
colleague and assumed without any justification or basis
that his colleague had acted improperly. Such observations
even about Judges of subordinate courts with the clearest
B evidence of impropriety are uncalled for in a judgment.
When made against a colleague they are even more open
to objection. We are glad that Goswami J. did not
associate himself with these remarks of the learned Chief
Justice and was fair when he assumed that Dutta, J. acted
c as he did in his anxiety todo whdat he thought was required
in the interest of justice. We wish the learned Chief Justice
had equally made the same assumption and had not made
these observations castigating Dutta J. for they appear to
us to be without any basis. It is necessary that judicial
decorum has to be maintained at all times and even
D
where criticism is justified it must be in language of
utmost restraint, keeping always in view that the person
making the comment is also fallible."
(emphasis supplied)
E
142. In State of MP. vs. Nandlal Jaiswal (1986) 4 SCC
566 disparaging and derogatory remarks were made by the
High Court against the State Government. When the matter
came up before this Court and a complaint was made against
, F these remarks, it was observed by this Court that the remarks
were "totally unjustified and unwarranted".
Bhagwati, C.J. stated: (SCC p.615,para 43)
"43 We may observe in conclusion that judges should not
use strong and carping language while criticizing the
G conduct of parties or their witnesses. They must at with
sobriety, moderation and restraint. They must have the
humilitytorecognise that they are not infallible and any harsh
and disparaging strictures passed by them against any
party may be mistaken and unjustified and if so, they may
H do considerable harm and mischief and result in injustice."
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 293
(NCT OF DELHI) [P. SATHASIVAM, J.]

"I have never known any judges, no difference how austere A
of manner, who discharged their judicial duties in an
atmosphere of pure, unadulterated reason. Alas! we are "all
the common growth of the Mother Earth' - even those of us
who wear the long robe". (emphasis supplied)
Similar was the view of Thomas Reed Powell, who said:
B

"Judges have preferences for social policies as you said
and I. They form their judgments after the varying fashions
in which you and I form ours. They have hands, organs,
dimensions, senses, affections, passions. They are c
warmed by the same winter and summer and by the same
ideas as a layman is".

"In the present case, however, as we have already noted in the
earlier part of the judgment, whether the order passed by the
appellant was correct or not, but the remarks made, strictures D
passed and directions issued by the learned Single Judge of
the High Court against the appellant were improper, uncalled
for and unwarranted. Apart from the fact that they were neither
necessary for deciding the controversy raised before the Court
nor an integral part of the judgment, in the facts and E
circumstances of the case, they were not justified. We,
therefore, direct deletion of those remarks."

143. In line with the consistent view of this Court, we are
of the considered view that the Division Bench could have
F
avoided making such observations which directly or impliedly
indicates towards impropriety in the functioning of the Court,
appreciation of evidence by the learned Judge and/or any other
ancillary matter. The content and merit of the judgment would
have remained unaffected even if such language or comments
were not made against the learned trial Judge. The respect of G
judiciary and for the judiciary, is of paramount consideration.
Every possible effort should be made and precaution taken
which will help in preservation of public faith and individual
dignity. A judicial consensus would require that the judgment
should be set aside or affirmed as the case may be but H
294 SUPREME COURT REPORTS [2010] 4 S.C.R.

A preferably without offering any undesirable comments,
disparaging remarks or indications which would impinge upon
the dignity and respect of judicial system, actus curiae neminem
gravabit. Despite exercise of such restraint, if, in a given case,
the Court finds compelling reasons for making any comments
B in that event it will be in consonance with the basic rule of law
and adherence to the principles of natural justice that view point
of the concerned learned Judge should also be invited.

144. In view of our discussion supra we direct expunction
of all remarks made by the Trial Judge against the prosecution
C and by the Division Bench against the Trial Judge.

Role of the Media and Press:
145. Mr. Ram Jethmalani, learned senior counsel for the
appellant submitted that the appellant-Manu Sharma had been
D specifically targeted and maligned before and during the
proceedings by the media, who proclaimed him as guilty
despite even after his acquittal by the Trial Court. He took us
through various news items that were published in English &
Hindi dailies. He elaborated that "Justice should not only be
E done, it should manifestly and undoubtedly be seen to be
done." This common law rule can not be ignored.
146. Cardozo, one of the great Judges of American
Supreme Court in his "Nature of the Judicial Process"
F observed that the judges are subconsciously influenced by
several forces. This Court has expressed a similar view in P.C.
Sen In Re: AIR 1970 SC 1821 and Reliance Petrochemicals
Ltd. v. Proprietors of Indian Express 1988 (4) SCC 592.
147. There is danger, of serious risk of prejudice if the
G media exercises an unrestricted and unregulated freedom such
that it publishes photographs of the suspects or the accused
before the identification parades are constituted or if the media
publishes statements which out rightly hold the suspect or the
accused guilty even before such an order has been passed by
H the Court.
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 295
(NCT OF DELHI) [P. SATHASIVAM, J.]
148. Despite the significance of the print and electronic A
media in the present day, it is not only desirable but least that
is expected of the persons at the helm of affairs in the field, to
ensure that trial by media does not hamper fair investigation
by the investigating agency and more importantly does not
prejudice the right of defence of the accused in any manner B
whatsoever. It will amount to travesty of justice if either of this
causes impediments in the accepted judicious and fair
investigation and trial.

149. In the present case, certain articles and news items
appearing in the newspapers immediately after the date of C
occurrence, did cause certain confusion in the mind of public
as to the description and number of the actual assailants/
suspects. It is unfortunate that trial by media did, though to a
very limited extent, affect the accused, but not tantamount to a
prejudice which should ·weigh with the Court in taking any D
different view. The freedom of speech protected under Article
19 (1) (a) of the Constitution has to be carefully and cautiously
used, so as to avoid interference in the administration of justice
and leading to undesirable results in the matters sub judice
before the Courts. E
150. A Bench of this Court in the case of R.K. Anand v.
Delhi High Court (2009) 8 SCC 106, clearly stated it would
be a sad day for the court to employ the media for setting its
own house in order and the media too would not relish the role
of being the snoopers for the Court. Media should perform the
F
acts of journalism and not as a special agency for the Court.
The impact of television and newspaper coverage on a person's
reputation by creating a widespread perception of guilt,
regardless of any verdict in a Court of law. This will not be fair.
Even in the case of M.P. Lohia v. State of W.B. & Anr. (2005) G
2 sec 686, the Court reiterated its earlier view that freedom
of speech and expression sometimes may amount to
interference with the administration of justice as the articles
appearing in the media could be prejudicial, this should not be
permitted. H
296 SUPREME COURT REPORTS [2010] 4 S.C.R..

A 151. Presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very threshold
through the process of media trial and that too when the
investigation is pending. In that event, it will be opposed to the
very basic rule of law and would impinge upon the protection
B granted to an accused under Article 21 of the Constitution
[Anukul Chandra Pradhan v. Union of India & Ors. (1996) 6
sec 354]. It is essential for the maintenance of dignity of Courts
and is one of the cardinal principles of rule of law in a free
democratic country, that the criticism or even the reporting
c particularly, in sub judice matters must be subjected to check
and balances so as not to interfere with the administration of
justice.

152. In the present case, various articles in the print media
had appeared even during the pendency of the matter before
D the High Court which again gave rise to unnecessary
controversies and apparently, had an effect of interfering with
the administration of criminal justice. We would certainly caution
all modes of media to extend their cooperation to ensure fair
investigation, trial, defence of accused and non interference in
E the administration of justice in matters sub judice.

153. Summary of our Conclusion:
(1) The appellate Court has all the necessary powers
to re-evaluate the evidence let in before the trial
F Court as well as the conclusions reached It has a
duty to specify the compelling and substantial
reasons in case it reverses the order of acquittal
passed by the trial Court. In the case on hand, the
High Court by adhering to all the ingredients and
G by giving cogent and adequate reasons reversed
the order of acquittal.
(2) The presence of the accused at the scene of crime
is proved through the ocular testimonies of PWs 1,
2, 6, 20, 23, 24 and 70, corroborated by Ex PW 12/
H 0-1 as well as 3 PCR calls Ex PW 11/A, B and C.
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 297
(NCT OF DELHI) [P. SATHASIVAM, J.]

(3) Phone calls made immediately after an incident to A
the police constitutes an FIR only when they are not
vague and cryptic. Calls purely for the reason of
getting the police to the scene of crime do not
necessarily constitute the FIR. In the present case,
the phone callswere vague and therefore could not B
be registered as the FIR. The FIR was properly
lodged as per the statement of Shyan Munshi PW-
2.

(4) Delay in recording the statement of the witnesses
do not necessarily discredit their testimonies. The c
court may rely on such testimonies if they are
cogent and credible.

(5) The laboratory reports in the present case are
vague and ambiguous and, therefore, they cannot D·
be relied upon to reach any specific conclusion
regarding the incident.

(6) The evidence regarding the actual incident, the
testimonies ofwitnesses, the evidence connecting
the vehicles and cartridges to the accused - Manu E
Sharma, as well as his conduct after the i(lcident
prove his guilt beyond reasonable doubt. The High
Court has analyzed all the evidence and arrived at
the correct conclusion.
F
(7) The public prosecutor is under a duty of disclosure
under the Cr.P.C., Bar Council Rules and relevant
principles of common law. Nevertheless, a violation
of this duty does not necessarily vitiate the entire
trial. A trial would only be vitiated if non-disclosure
amounts to a material irregularity and causes G
irreversible prejudice to the accused. In the present
case, no such prejudice was caused to the
accused, and therefore the trial is not vitiated.

(8) No prejudice had been caused to the right of the H
298 SUPREME COURT REPORTS [2010] 4 S.C.R.

A accused to fair trial and non-furnishing of the copy
Of one of the ballistic reports had not hampered the
ends of justice. The right of the accused to
disclosure has not received any set back in the
facts and circumstances of the case.
B (9) The High Court has rightly convicted the other two
accused, namely, Amardeep Singh Gill @ Tony Gill
and Vikas Yadav after appreciation of the evidence
of PWs 30 and 101.

c (10) Normally, the judgmenUorder should be set aside
or affirmed as the case may be but preferably
without offering any undesirable comments,
disparaging remarks or indications which would
impinge upon the dignity and respect of judicial
D system.
(11) Every effort should be made by the print and
·electronic media to ensure that the distinction
between trial by media and informative media
should always be maintained. Trial by media should
E be avoided particularly, at a stage when the
suspect is entitled to the constitutional protections.
Invasion of his rights is bound to be held as
impermissible.

F 154. In the light of the above discussion, we hold that the
prosecution has established its case beyond doubt against the
appellants and we are in agreement with the conclusion arrived
at by the High Court, consequently, all the appeals are devoid
of any merit and are accordingly dismissed.

G G.N. Appeals dismissed.