Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) [2010] INSC 289 (19 April 2010)
Judgement
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 179 OF 2007 Sidhartha Vashisht @ Manu Sharma .... Appellant(s) Versus State (NCT of Delhi) .... Respondent(s) WITH CRIMINAL APPEAL NO. 157 OF 2007 AND CRIMINAL APPEAL NO. 224 OF 2007
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 1 Criminal Procedure Code against the final judgment and order dated 18/20.12.2006 passed by the High Court of Delhi in Criminal Appeal No. 193 of 2006 whereby the High Court reversed the order of acquittal dated 21.02.2006 passed by the Additional Sessions Judge, Delhi, in Sessions Case No. 105 of 2001 and convicted Sidhartha Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) under Section 302, 201/120B IPC (Indian Penal code, 1860) and Section 27 of the Arms Act and sentenced him to undergo imprisonment for life for the offence under Section 302 IPC together with a fine of Rs.50,000/- to be paid to the family of the victim and in default of payment of fine, to undergo further imprisonment for three years and also sentenced him to undergo imprisonment for four years for the offence under Section 27 of the Arms Act with a fine of Rs.2000/- and in default to further undergo imprisonment for three months. He was further sentenced to undergo imprisonment for four years for the offence under Section 201/120B IPC together with a fine of Rs. 2,000 and, in 2 default, to further undergo imprisonment for three months. The High Court also sentenced Amardeep Singh Gill @ Tony Gill (appellant in Crl.A. No. 157/2007) and Vikas Yadav (appellant in Crl. A.No.224/2007) to undergo rigorous imprisonment for four years and a fine of Rs.2000/- each and, in default of payment of fine, to further undergo imprisonment for three months under Section 201/120B IPC.
2) The case of the prosecution:
(a) On night intervening 29-30.04.1999, a `Thursday Party' was going on at Qutub Colonnade at "Once upon a time" restaurant also called "Tamarind Cafi". The liquor was being served by the bartenders, namely, Jessica Lal (since deceased) and one Shyan Munshi (PW-2). At about 2.00 a.m., Sidhartha Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) along with his friends came there and asked for two drinks. The waiter did not serve him liquor as the party was over. Jessica Lal and Malini Ramani (PW-6), who were also present there, tried to make 3 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 Jessica Lal which hit near her left eye as a result of which she fell down. Beena Ramani (PW-20), who was present there, stopped the appellant and questioned him as to why he had shot Jessica Lal and demanded the weapon from him but he did not hand over the pistol and fled away. Jessica Lal was rushed to Ashlok Hospital from where she was shifted to Apollo Hospital. On 30.04.1999, in the early morning hours, Jessica Lal was declared brought dead at Apollo Hospital.
(b) On the night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex. PW-13/A) was recorded at Police Station Mehrauli which disclosed a shooting incident at H- 5/6 Qutub Colonnade. A copy of the said DD entry was handed over to SI Sharad Kumar (PW-78) who along with Ct. Meenu Mathew left for the spot. Near about the same time, copy of the said DD entry was also given to SI Sunil 4 Kumar (PW-100) who along with Ct. Subhash also left for the spot. On reaching the spot, PW-78 found that the injured had been removed to Ashlok Hospital and the floor of the Restaurant was found to be wet. SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78) at the spot to guard the same and proceeded to Ashlok Hospital along with Ct. Subhash. The SHO Police Station Mehrauli, Inspector S.K. Sharma (PW-101) along with his team also left the Police Station vide DD Entry No. 43 A and reached the spot and deputed one Home Guard Shravan Kumar (PW 30) at the entrance of `Qutub Colonnade' to guard the vehicles. On reaching Ashlok Hospital, PW-100 met Beena Ramani (PW-20), who is the owner of the Restaurant, and enquired about the incident but she asked him to talk to Shyan Munshi (PW-2) saying that he was inside and he knew everything. PW-100 then recorded the statement of PW-2 and made an endorsement on the same for the registration of the case under Section 307 IPC and handed over it to Ct. Subhash 5 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 informed them about the lifting of one black Tata Safari from the spot.
On inspection of the site, two empty cartridges were seized and, in the meantime, a supplementary statement of PW-2 was also recorded by PW-100. At about 5.45 a.m., PW- 100 received an information by Ct. Satyavan intimating him about the death of Jessica Lal at Apollo Hospital.
Charge under Section 302 IPC /201/120 B IPC and under Section 27 of the Arms Act has been framed against the accused Sidhartha Vashisht @ Manu Sharma, charge under Section 201/120B IPC has been framed against accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok Khanna, charge under Section 212 IPC has been framed against Harvinder Chopra, Raja Chopra, Vikas Gill @ Ruby Gill and Yograj Singh and charge under Section 6 201/212 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.
(c) The post mortem was conducted at about 11.30 a.m.
at the All India Institute of Medical Sciences on the same day i.e. 30.04.1999. In the meantime, at about 11.00 a.m., SI Pankaj Malik (PW-85) had been sent to Chandigarh to secure the black Tata Safari and to arrest the appellant. PW-100 recorded the statements of the witnesses. On 30.04.1999 at about 4.15 p.m., an FIR was registered against Malini Ramani (PW-6), Beena Ramani (PW-20) and George Mailhot (PW-24) under Sections 61/68/1/14 of the Punjab Excise Act. At about 8.30 p.m., PW-100 handed over the investigation to SHO S.K. Sharma (PW-101). On the night intervening 30.04.1999/01.05.1999, at about 2 a.m., the police raided the farm house of the appellant and on search being conducted seized a photograph of the appellant. On 7 02.05.1999, a list of invited guests was prepared by PW-
24. On the same day, around 10.00 p.m., PW-101, got an information that a black Tata Safari has been found by the U.P. Police (Sector 24, Noida Police Station) and on the next day PW-101 went to Noida Police Station and seized the said black Tata Safari. On 05.05.1999 at about 2.30 a.m., Amardeep Singh Gill @ Tony Gill and Alok Khanna were arrested and from their alleged disclosure statements, the involvement of Sidhartha Vashisht @ Manu Sharma was confirmed. On the same day, Inspector Raman Lamba (PW 87) who was in Chandigarh with his team intimated the lawyer of the accused- appellant that Manu Sharma is required in the case. On receipt of the information, on 06.05.1999, the appellant surrendered before PW-87 and was later arrested at about 2.20 p.m. and brought to Delhi. On 07.05.1999, the police produced the appellant before the Metropolitan Magistrate and sought police remand for effecting recovery of the alleged weapon of offence. An application for 8 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 I.O., but on 15.05.1999, the appellant's remand was preponed from 17.05.1999 to 15.05.1999. On 16.05.99, the appellant was sent to judicial custody. On 30.05.1999, the accused-Vikas Yadav was also arrested.
After the completion of investigation, the other accused persons were also arrested.
(d) On 03.08.1999, charge sheet was filed against ten accused persons. On 23.11.2000, the Additional Sessions Judge framed charges against the appellant/Manu Sharma under Sections 302, 201 read with 120 B IPC and Section 27 of the Arms Act, accused Amardeep Singh Gill was charged under Section 120 read with Section 201 IPC, accused Vikas Yadav was charged under Section 120 read with 201 IPC as also Section 201 read with 34 IPC , accused Harvinder Chopra, Vikas Gill, Yograj Singh and 9 Raja Chopra under Section 212 IPC and accused Alok Khanna, Shyam Sunder Sharma and Amit Jhingan were discharged of all the offences. In 2000/2001, Revision Petition No. 596 of 2000 was preferred by the prosecution before the High Court of Delhi praying for the framing of charge against the accused persons and setting aside the discharge of Alok Khanna, Shyam Sunder Sharma and Amit Jhingan. Revision Petitions were also preferred by the accused persons against the framing of the charges against them. The High Court disposed of all the revision petitions filed by the accused persons by a common order dated 13.03.2001. On 12.04.2001, charges as per the orders of the High Court were framed and some of the charges as framed earlier were maintained. Charges under Section 120B/201 IPC were framed against accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok Khanna and charges under Sections 201 and 212 IPC were framed against accused Shyam Sunder Sharma.
Against the rest of the accused, the charges as framed on 10 23.11.2000 by the trial Court were maintained. Trial began in May, 2001 against nine accused. In all, 101 witnesses were examined by the prosecution and two court witnesses were also examined.
(e) On 12.12.2001, the case registered against Malini Ramani, Beena Ramani and George Mailhot under the Punjab Excise Act was disposed of with a direction to pay a fine of Rs.200/- each. On 28.01.2002, the appellant was released on interim bail for a period of six weeks by the order of the High Court dated 25.01.2002 with a direction to surrender after the expiry of the same. In compliance with the conditions of interim bail, the appellant surrendered on 11.3.2002 but again sought for and granted interim bail for a period of ten weeks starting from 20.03.2002. During the period from March 2002 to February 2006, the appellant was enlarged on bail on different occasions by various orders of the High Court.
On one occasion, against the dismissal of the bail application by the High Court on 11.11.2003, the 11 appellant filed a special leave petition before this Court which was dismissed by this Court on 02.12.2003. On 21.02.2006, after trial, the Additional Sessions Judge acquitted all the nine accused including the appellant- Manu Sharma.
(f) Challenging the acquittal, the prosecution filed an appeal before the High Court being Crl. Appeal No. 193 of 2006. On 20.12.2006, the High Court vide the impugned order, convicted and sentenced the appellants, as mentioned in paragraphs above. Challenging the said order of the High Court, all the three appellants filed above mentioned separate appeals before this Court. All the appeals were heard together and are being disposed of by this common judgment.
3) Heard Mr. Ram Jethmalani, learned senior counsel for Sidhartha Vashisht @ Manu Sharma, appellant in Crl. A. No. 179 of 2007, Mr. Nitin Sangra, learned counsel for Amardeep Singh Gill @ Tony Gill, appellant in Crl.A. No. 157/2007, Mr. Ranbir Yadav, learned counsel for 12 Vikas Yadav, appellant in Crl. A.No.224/2007, Mr. Gopal Subramanium, learned Solicitor General of India for Respondent-State in all the three appeals and Mrs. Mamta Dhody Kalra, intervenor, who appeared in person and pleaded for acquittal of the appellant-Manu Sharma.
Contentions of the appellants/accused:
4) Mr. Ram Jethmalani, after taking us through all the oral and documentary evidence relied on by the prosecution as well as the defence, the order of the Trial Judge acquitting all the appellants from the charges leveled against them and the impugned order of the High Court reversing the order of acquittal raised the following contentions:- a) The appellant (Sidhartha Vashisht @ Manu Sharma) has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India.
b) On the very first day of investigation i.e. on 30.04.1999, an FIR was filed against Malini Ramani PW-6, 13 Beena Ramani PW-20 and George Mailhot PW-24 under the Punjab Excise Act in order to control these witnesses and to pressurise them to support the prosecution case.
After their deposition, the Excise case was pre-poned and disposed of by imposing a fine of paltry amount.
c) Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 were frequently shown the photograph of the appellant and he was paraded before them.
d) The finding of the High Court that Sidhartha Vashisht @ Manu Sharma took out his pistol and first fired at the ceiling and then at Jessica Lal is based on no evidence.
e) Three Ballistic Experts have concurred that empty cartridges have been fired from two different weapons. Their Report support the statement-in-chief of Shyan Munshi PW-2.
There is no evidence on record that both the shots were fired from one weapon.
f) The High Court has wrongly placed reliance upon the testimony of Deepak Bhojwani PW-1, even though, he was not present in the party and he was planted by the prosecution.
The evidence of three family members Malini Ramani PW-6, 14 Beena Ramani PW-20 and George Mailhot PW-24 is inadmissible in law.
g) The prosecution never claimed Beena Ramani PW-20 as an eye-witness, however, the High Court erroneously held her as eye-witness to the occurrence.
h) High Court failed to consider the evidence of Madan Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47.
i) The High Court committed an error in relying upon the testimony of George Mailhot PW-24 to corroborate the evidence of Beena Ramani PW-20.
j) The First Information Report recorded on the statement of Shyan Munshi PW-2 is not an FIR but a signed statement. The High Court wrongly discarded his (PW-2) ocular version. However, the Trial Court assigned good reasons for accepting his evidence.
k) The High Court's observation on Ballistic Experts from CFSL is erroneous.
l) The High Court committed an error in disbelieving P.S. Manocha PW-95.
15 m) There is no acceptable evidence/material to connect Tata Safari to the alleged occurrence.
n) Shravan Kumar PW-30 is a planted witness, and there is no need for him to accompany PW-1 to the spot when he was assigned other official work.
o) A rough site plan which was prepared in the early hours of 30.04.1999 (Ex. PW 100/2) clearly shows the absence of Beena Ramani PW-20 at the alleged place of occurrence, if she was an eye-witness, this would have been done.
p) The Public Prosecutor failed to adhere the basic principles in conducting criminal case.
q) The High Court committed a grave error by reversing the well considered order of acquittal by the Trial Court and on conjunctures the High Court interfered with the acquittal and imposed sentence which is not permissible under law.
5) The other two learned counsel submitted that the prosecution failed to establish the charge in respect of 16 Amardeep Singh Gill and Vikas Yadav under Section 201 read with 120B of the IPC .
6) The intervenor supported the case of the appellant- Manu Sharma and prayed for his acquittal.
Submissions on behalf of the State:
7) On the other hand, Mr. Gopal Subramanium, learned Solicitor General, after taking us through the entire materials, submitted that the Trial Judge has committed an error in acquitting all the accused and the High Court being an Appellate Court is fully justified in re-analysing the evidence and convicting all the three accused- appellants and awarding appropriate sentence. After pointing out oral, documentary evidence and other legal principles, he submitted that the conviction and sentence awarded by the High Court are acceptable and no interference is called for by this Court, and prayed for dismissal of all the three appeals.
8) We have carefully considered all the materials placed and the rival contentions.
17 9) Points for consideration in these appeals are:- a) Whether the prosecution has established its case beyond reasonable doubt against all the three accused? b) Whether the trial Court is justified in acquitting all the accused in respect of charges leveled against them? c) Whether the impugned order of the High Court imposing punishment when the trial Court acquitted all the accused in respect of the charges leveled against them is sustainable? 10) It is not in dispute that the following charges were framed against the appellants:- S.No. Name of Accused Accused Charges Framed
1. Sidhartha Vashist @ 1 302 IPC , 27 Arms Act, 201 Manu Sharma r/w 120B IPC
2. Vikas Yadav 2 201 r/w 120B IPC
3. Amardeep Singh Gill 3 201 r/w 120B IPC Powers and Duties of the Appellate Court while dealing with the order of acquittal:
11) Before analyzing the prosecution case, the defence plea and the arguments of the respective counsel, let us find out the scope of the Appellate Court in reversing the order of acquittal by the Trial Court. Mr. Ram Jethmalani, learned senior counsel for the appellant- 18 Manu Sharma, by drawing our attention to the principles laid down by this Court in Madan Lal vs. State of J&K, (1997) 7 SCC 677 submitted that in an appeal against acquittal, it is incumbent on the Appellate Court to give adequate reasons for reversal. By citing Ghurey Lal vs.
State of Uttar Pradesh (2008) 10 SCC 450, he further contended that the High Court could not have reversed the judgment of the Trial Court inasmuch as the view taken by the Trial Court was plausible view based on the evidence on record, hence the finding of the Trial Court could not have been overturned.
12) Mr. Gopal Subramanium, learned Solicitor General, by relying on the decision of this Court in Chandra Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105 submitted that where the High Court's conclusion was based on evaluation of evidence which was not erroneous or perverse and was based on an independent analysis of evidence which fully establishes the case of the prosecution as against the trial Court's conclusion, there 19 is no reason much less the compelling reason to disagree with the finding of guilt by the High Court. He also pressed into service another decision of this Court in Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484.
13) The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by 20 giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
21 (vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.
In the light of the above principles, let us examine the impugned judgment of the High Court with reference to the materials placed by the prosecution and the defence.
14) At the outset, Mr. Ram Jethmalani, learned senior counsel highlighted the role of public prosecutor in conducting prosecution for which he relied on the procedures being followed in United Kingdom and also cited certain passages from the books of foreign authors.
In addition to the same, he highlighted how the appellant- Manu Sharma was prejudiced by the wild allegations that were carried by Media, both print and electronic. Since we intend to concentrate on the merits of the case, we discuss 22 and give our reasoning at the appropriate place or at the end of our order.
15) Presence of accused Manu Sharma & others at the scene of offence.
There is no dispute that the incidence occurred in a place known as "Qutub Colonnade". The open area of "Qutub Colonnade" is known as "Tamarind Court"
whereas the closed area is called "Tamarind Cafe". In order to establish the presence of the accused Sidhartha Vashisht @ Manu Sharma and others, prosecution has examined Deepak Bhojwani PW-1, Shyan Munshi PW-2, Malini Ramani PW-6, Beena Ramani PW-20, George Mailhot PW-24, Rouble Dungley PW-23 and Rohit Bal PW- 70. Apart from these ocular witnesses, prosecution pressed into service Ex. PW12/D-1 which is a wireless message received at Police Station, Mehrauli.
a) Deepak Bhojwani PW-1 He is a resident of K-5/B, Ground Floor, Lajpat Nagar, New Delhi. According to him, in the year 1999, he 23 had attended the place known as "Qutub Colonnade" as Thursday Party four times on each Thursday and the last occasion when he attended this Thursday Party was on 29.04.1999. There used to be a gathering of friends at this Party and all varieties of liquor used to be served in this Party besides snacks etc. He explained that coupons used to be issued for purchase of any kind of liquor. Such coupons were used to be purchased in advance from the cash counter. On 29.04.1999, he attended the Thursday Party alone at about 11 o'clock in the night.
In chief examination, in categorical terms, he deposed:
"I had purchased four coupons of Rs. 100/- each on that day. Jessica Lal (since deceased) and Shyan Munshi (complainant) were serving liquor on that night at the bar counter. I had known Jessica lal for about five or six years whereas Shyan was introduced to me by Jessica Lal about a week before 29.04.1999 i.e. on the previous Thursday Party".
Apart from the above assertion, he also informed the Court that Jessica Lal (since deceased) was working with Oberoi Hotel and was also a model by profession. He described the location of "Tamarind Court" and "Tamarind Cafi". The bar counter was located in "Tamarind Court"
open area between the two doors of the "Tamarind Cafi", 24 but since it was summer nobody was using the bar counter giving preference to the bar counter located outside. He also stated that Jessica Lal was wearing blue denim shorts and white half sleeved shirt on that night.
On the same night, at about 1 o'clock (midnight), he went to the bar counter to have his third drink. He informed the Court that on the suggestion of Jessica Lal that the liquor was getting over he handed over all the remaining coupons and purchased two pegs of whisky. While holding both the glasses of whisky, he came in the company of his friends.
The following statement of PW-1 proves the presence of accused Manu Sharma and his friends- "I was moving around in the party with two glasses of whisky, when I came across a person having fair complexion who was giving smile to me. I also reciprocated. Then he came to me. We both introduced each other. He gave me his name as Manu Sharma. He said as to how I was holding two glasses of whisky in my hands whereas he was unable to get even one. Manu Sharma came into my contact after about 10-15 minutes of my purchasing two pegs of whisky.
He requested me to arrange liquor for him on which I told him that liquor was over and the bar was closed and therefore, I would not be able to arrange liquor for him. We were already introduced to each other and were about to exchange visiting cards, when one tall sikh gentleman came from behind of Manu Sharma and told him something and took him away towards Tamarind Cafi. Before leaving, 25 Manu Sharma told me that he would come back and meet me again".
PW-1 correctly identified the photographs of both the accused persons one Manu Sharma and the other Tony Gill. He also informed that the accused Tony Gill came along with Manu Sharma and 2/3 of his friends. In respect of the question whether it would be possible for him to identify those 2/3 persons who were accompanying accused Tony Gill, PW-1 has pointed out Alok Khanna, accused-Manu Sharma and Tony Gill. We shall separately discuss about the Test Identification Parade and the validity of desk identification during time in the latter paragraphs.
About the incident, he narrated that "After about 15/20 minutes i.e. about 1:45 a.m., I heard noise from Tamarind Cafi and I heard somebody saying Jessica was shot. At that time I was present in Tamarind Court and I was talking to my friend Arash Aggarwal. After hearing the shouts about Jessica having been shot, I rushed towards Tamarind Cafi. I could not go inside where the incident had taken place but I peeped and saw Jessica lying on the floor. At that time, there were about 70/80 persons gathered all around i.e. near the gate of Tamarind Cafi i.e.
the gate of Tamarind Cafi."
He further informed the Court - "......discussion was going on as to who had done this and it was also being discussed that the culprit was wearing 26 blue denim jeans and white shirt and was fair and was little short in height then I assessed that he was the same person who had come to me to arrange drinks for him. I had told the police in Apollo Hospital that it was Manu Sharma who was with the similar description as was discussed amongst friends on which police had told me that they would call me."
A close scrutiny of PW-1's evidence clearly shows that Jessica Lal was friendly with him having known him for 5- 6 years. He also went to the house of parents of Jessica Lal twice i.e. on 30th April and 1st May 1999 to pay condolence. Further, in categorical terms, he asserted and identified the presence of Manu Sharma at the scene of offence. Since he had contact with a person having fair complexion with smiling face/Manu Sharma, in the Court he correctly identified both Manu Sharma and the tall Sikh gentleman as Tony Gill. He also identified other persons who accompanied Manu Sharma and Tony Gill.
It is also clear from his evidence that at around 1.45 a.m., he heard a noise emerging from Tamarind Cafi to the effect that Jessica Lal had been shot. It is also clear that on hearing that Jessica Lal had been shot, he ran towards Tamarind Cafi though according to him he could not go 27 inside yet peeped and saw Jessica Lal lying on the floor.
Since the High Court has accepted his evidence which was not acceptable by the Trial Court, we analyzed his entire statement with great care. Mr. Ram Jethmalani, learned senior counsel has pointed out that since PW-1's name does not figure in the list of invitees prepared by George Mailhot PW-23 and Sabrina Lal PW-73 did not mention the name of Deepak Bhojwani PW-1 at Ashlok Hospital and of the fact that the statement of PW-1 was recorded on 14.05.1999 submitted that, first of all, he is an interested witness and his testimony is not acceptable.
On seeing his entire evidence, there is no reason to either suspect his evidence or reject the same as unacceptable.
On the other hand, his evidence supported by other witnesses clearly proves the presence of accused Nos. 1-4 at the place of occurrence. He asserted the presence of Jessica Lal, Shyan Munshi and the claim of whisky by a fair complexion man who exchanged niceties with him and introduced him as Manu Sharma. We do not find any 28 valid reasons to hold that he is a planted witness, though he was not an eye-witness to the actual shooting incident but his own statement proves that immediately on hearing the noise he peeped and noticed Jessica Lal lying on the floor of Tamarind Cafi. To this extent, the evidence of PW- 1 is acceptable and the High Court has rightly believed and relied on his version.
b) Shyan Munshi PW-2 In the year 1999, he was studying in Indian Institute of Planning and Management at New Delhi doing his MBA Course. At that time, he was residing at 15/16 H. Hauz Khas, New Delhi. He informed the Court that he was acquainted to Malini Ramani through which he started knowing about Beena Ramani who is the mother of Malini Ramani. He had visited Tamarind Cafi on the night of 29th April, 1999. It was Thursday Night. He was attending the Party at that night. Alcohol and food were being served there on paying for coupons. In categorical terms he informed the Court that-- "I was attending the party there on that night. Alcohol and food was being sold there on coupons. I had met Jessica Lal on that night in the party. I had acquaintance with her from before. The place where the party was going on was known as Qutub Colonnade Tamarind Court. There was miniature bar counter outside in the open space where liquor was being served. Besides Jessica Lal and Malini there were other few persons who were helping in serving 29 liquor. On that night, I did go inside the Tamarind Cafi. It might be 2 o'clock at that time, I mean 2 a.m. There were about 6-7 persons inside the cafi at that time. "
"I went inside the cafi primarily with a view to eat something as I was feeling hungry and also nothing was being served outside. I found that Jessica was inside. At that time, no other lady was there. I went behind the counter to get something to eat. I managed to get pastry lying in the freeze and when I was taking it, a gentleman with white tea-shirt came there. He asked the waiter to serve him two drinks. The waiter did not pay attention to that gentleman and became busy in cleaning up. Jessica was also there on the other side of the counter and she told the gentleman that the party was over and there was no alcohol to be served. At that time, that gentleman took out a pistol from the dub of the pant and fired a shot in the air.
There was another gentleman on the other side of the counter, who fired a shot at Jessica Lal and she fell down.
That gentleman was also wearing light colored clothes."
Since the present statement about "another gentleman"
who fired a shot at Jessica Lal and she fell down was not the one earlier made to the Police, after getting permission from the Court, the public prosecutor cross-examined him. He stated-- "It is correct that Beena Ramani and other lifted Jessica from the spot and carried her to the Hospital Ashlok.
I went there later. In the Ashlok Hospital, police came there and contacted me and recorded my statement." ".....I reached the Hospital at about 3:30 a.m. and my statement was taken at about 3:45 a.m. or 4 a.m."
He also admitted that he was in Delhi for about a year or so and able to understand spoken Hindi. He is aware of Beena Ramani as the proprietor of Qutub Colonnade.
30 The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited Tamarind Cafi on the night of 29.04.1999. He also mentioned the presence of Manu Sharma. His evidence further shows that immediately after the shot Beena Ramani and others were carrying Jessica Lal to the Ashlok Hospital. In other words, his evidence proves the presence of accused-Manu Sharma at the scene of offence.
To this extent, the prosecution relied upon his evidence and this was rightly accepted by the High Court. Though, Mr. Ram Jethmalani submitted that High Court ought to have accepted his entire evidence in toto, considering his earlier statement to the police and his evidence before the Court, we are satisfied that the High Court is justified in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. As observed earlier his evidence amply proves the presence of accused at the scene of occurrence at the time and date as pleaded by the prosecution.
31 c) Malini Ramani PW-6 She is the daughter of Beena Ramani PW-20. She is a fashion designer by profession. Her mother Beena Ramani owns a property near Qutub Minar known as Qutub Colonnade. She explained to the Court that in the year 1999 they used to have parties in Qutub Colonnade and liquor used to be consumed in these parties. On 29.04.1999, there was a party at Qutub Colonnade. It was Thursday. It was a farewell party for her stepfather namely, George Mailhot PW-24, who was going abroad for five months. She was at the Qutub Colonnade on that evening. Jessica Lal was also there. Beena Ramani PW-20 and Shyan Munshi PW-2, were also there.
According to her, the party on that night was over by midnight. Approximately at about 1.45 a.m., she went with her friend Sanjay Mehtani to the restaurant to look for something to eat. At that time, she had a drink in her hand. She found that Jessica Lal, Shyan Munshi, her 32 electrician and couple of waiters were there in the restaurant. She further deposed-- "We were standing there when couple of guys went in.
They were about numbering four, may be five. I am not very sure about it. One of them asked me could I have two whiskys. He was wearing jean and white t-shirt. He was in his mid twenties. He was having fair complexion. His built was on the plump side. I do not know if he had asked whisky from anybody else prior to asking from me. When he asked two whiskys from me, I showed my inability saying sorry, Bar was closed. Then he kept asking me and Jessica for drinks, but we kept on saying that the bar was closed and whisky could not be served."
"Then he said that he had cash to pay for drink. I said it did not matter. I could not give sip even for thousand rupees it being not available. Then he said O.K. could I have sip of you for thousand rupees. Then at that point of time, I just left the room because I was irritated about the whole incident. Sanjay Mehtani and myself walked out together.
When I walked out, I crossed my mother in courtyards as I was walking out. Again said, I crossed my mother, she was walking towards the restaurant. I went to the passage way where the shops were located. It was on the other side of the courtyard and I was standing next to speaker (amplifier).
After about a minute and a half/two minutes, Shyan Munshi came running to me and Sanjay Mehtani and he was screaming that Jessica had been shot. I just passed out after hearing about it and fainted. I can identify that person, who had asked drink from me and who was wearing jean and t-shirt. Witness has pointed out towards accused Siddhartha Vashisht @ Manu Sharma and said that he just look like him. I had seen this accused in the police station on 8th May. I had gone there as I was arrested in a case under Excise Act."
"Question:- Are you certain that the person to whom you had just identified was the same person who had asked drinks from you and was wearing jean and T- shirt? Answer:- I am sure he is the same person."
33 About PW-6's testimony, Mr. Ram Jethmalani criticized the question put by the public prosecutor which according to him is not permissible. It is relevant to point out that before considering her answer that "I am sure he is the same person", we have to see her statement in the previous paragraph. She identified Manu Sharma who had asked drinks from her who was wearing Jean and T- shirt. It is also relevant to note that she pointed out towards the accused Manu Sharma and said that "he just looked like him." As rightly pointed by learned Solicitor General, the above mentioned question by the public prosecutor is in addition to the earlier ones relating to identity of the person who was wearing jean and T-shirt and who asked for drinks. It is relevant to note that PW-6 is not an ordinary person and it is not the case of the defence that she is an illiterate, unable to understand what she said to the earlier questions. We have already noted that she is a fashion designer by profession. In other words, she is highly qualified and it is not her 34 grievance that she was unable to understand her earlier answers. In such circumstances, we are unable to appreciate the objection of Mr. Ram Jethmalani. On the other hand, it is clear from the evidence of PW-6 that the accused Manu Sharma was very well present at the scene of offence and she correctly identified him. Further, as rightly observed by the High court, though she was not an eye-witness, she is certainly a witness identifying Manu Sharma along with 4 or 5 persons present at the Tamarind Court who asked her for whisky and later misbehaved with her. We agree with the observation and the ultimate conclusion about PW-6 reached by the High Court.
d) Beena Ramani PW-20 She is the wife of George Mailhot PW-24. She is a Fashion Designer. She purchased the property near Qutub Minar at H-5/6 Mehrauli Road, New Delhi in the year 1995.
This property is being used as a Shopping Arcade and a Restaurant. The Shopping Arcade is known as "Qutub 35 Colonnade". The name of the Restaurant was "Tamarind Court Cafi". She had a proper license for eating house in the aforesaid complex. The license for the restaurant was in the name and style "Once Upon A Time". She admitted that the license of eating house was not valid beyond one year. She has two children namely Malini Ramani and Geetanjali. In 1999, her daughter Malini Ramani was assisting her in running the restaurant. On Thursdays, there used to be special private parties where guests could come by invitation. Alcohol was never served in the Restaurant but were served only in the courtyard on Thursday Parties. She further deposed-- "I knew Jessica Lal, Shyan Munshi. We had a proper staff to run the Restaurant and occasionally any of our friends could reach out and help the Thursdays Parties.
Jessica Lal and Shyan Munshi were friends of my daughter Malini and were helping her on that night"
"The date was 29th of April, 1999. On that night, apart from the normal Thursday Party, I had also organized a special farewell party for my husband who was leaving in two hours time for a World Trip. The party was over by 1 or 1:30 a.m. This Thursday Party and special party was organized jointly and was being held in the courtyard and on the roof top. After the party was over, I was anxious to clean up the place and relieve the waiters etc. so that they may take up duty next morning properly. There were few guests left in the courtyard and I also spotted some guests in the Restaurant where nobody was supposed to be. I walked towards the Restaurant. When I was walking, towards restaurant I ran into Malini. I mounted the steps of the 36 restaurant. I saw a few people standing next to the counter and I heard a shot. A moment later, I heard another shot.
Jessica Lal was standing with people at the far end and I saw her falling down. There was a door to my right. It could be swung open and Shyan Munshi came out with another person who was either ahead of him or behind him. Shyan Munshi said that Jessica Lal had been shot. I told Shyan Munshi to call the Police or doctor or ambulance and I stopped the man accompanying them. There was commotion. All the people who were with Jessica Lal earlier, started coming out. The companion of Shyan was wearing white T-shirt. He was chubby and fair and I asked him as to who he was. "Why are you here and why he shot Jessica Lal. I also asked him to give me his gun. I thought he might be having a gun." He said that it was not him. I asked him again and he kept quiet and shaking his hand that it was not him. As all others were leaving, therefore, the companion of Shyan also shoved me aside and went out. I ran after him. Again said behind him. All the way to the front gate of the main building. He was a few steps ahead of me and I could not catch him. In the meantime, I was shouting instructions to the guests to call Hospital or to take Jessica Lal. I reached the gate my husband was standing there and I told him that this was the man who had shot Jessica Lal and to see in which car he gets into."
"That person who was told to be seen by my husband was with some friends at the time of occurrence inside the cafi. I think that I can identify the person whom I had tried to stop and talked to. After taking sometime and examining the accused over and over again, the witness has pointed towards accused Sidhartha Vashisht @ Manu Sharma and when asked to touch him, she touched him."
She also identified the other persons who were with Manu Sharma, though she has not mentioned the name of persons but on the instructions of the Court she has touched those persons named by the Court. She further informed-- 37 "About a week later, at the Police Station, the name of which I do not remember, I saw that person. I saw Manu Sharma".
If we analyze her evidence along with the sketch/map of the occurrence, when she mounted steps of the restaurant, she heard a shot, a moment later, she heard another shot. It is also relevant to note that she mentioned that Jessica Lal was standing with the people at the far end and she saw her falling down. She also informed that Shyan Munshi PW-2 said that Jessica Lal had been shot. It is relevant to point out that she was shouting to the guests to call the Doctor or to take Jessica Lal for treatment, she reached the gate where her husband was standing and she told him "that this was the man who had shot Jessica Lal and to see in which car he gets into". If we read her entire evidence she refers only Manu Sharma. She also correctly identified the presence of other accused persons, namely, Amardeep Singh Gill, Alok Khanna and Vikas Yadav. Her evidence remained unchallenged, though the Trial Court discarded her 38 evidence as she was not an eye-witness to the occurrence but accepted that she is a witness to the presence of Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas Yadav at the Qutub Colonnade. We have already quoted her own statement namely "I saw a few people standing next to the counter and I heard a shot, a moment later I heard another shot. Jessica Lal was standing with people at the far end and I saw her falling down." It is also relevant that on noticing Shyan Munshi she asked him "Why are you here and why he shot Jessica Lal?". Her statement clearly proves the prosecution case that she had herself seen Manu Sharma shooting Jessica Lal. As rightly observed by the High Court, if the evidence of Beena Ramani is analyzed in depth, it is clear that she not only asserted the presence of Manu Sharma at the scene of occurrence and heard two shots one by one but also asked a pertinent question to Shyan Munshi that why he (Manu Sharma) shot Jessica Lal. Whether she has to be treated as an eye-witness to the occurrence or not is to be 39 discussed at later point of time by analyzing her entire evidence. However, for the limited purpose of proving the presence of accused at the scene of offence, her evidence fully supports the case of the prosecution.
e) George Mailhot PW-24 He is a Canadian citizen and according to him, he has been residing in India since February, 1992. Beena Ramani PW-20 is his wife. Her business premises were at H-5/6 Mehrauli Road, New Delhi. This complex was popularly known as "Qutub Colonnade". It had a number of shops and a restaurant. The licence of eating place was in the name of Beena Ramani. He was also involved in the said business for several years before the date of occurrence. Several parties were arranged and last Thursday Party was held on April 29, 1999. On that day, he was leaving for World Trip for a few months, partly that was the occasion for that party. At the instance of the police, he prepared a list of guests who were invited in that party and gave the list to the police which was signed 40 by him on 22.05.1999. It is Ex. PW24/A. According to him, time of occurrence might be around 2 AM. At that time he was standing in the courtyard near a large tree which is in the middle of the courtyard. This must be about 20 ft. away from the door of the restaurant. He further deposed:
"I was facing opposite side of the entrance door of the restaurant and then I heard two pop shots like balloon. I turned towards the restaurant door from where I had heard the sound and within a few seconds Shyan Munshi came running and said to me someone shot Jessica. I immediately went to the restaurant. When I reached the door of the restaurant I saw some people to my right to my left and ahead of me. Ms. Beena was moving at a place which may be described as ahead of me towards the left side. Beena was addressing a young man who was moving, someone whom I had not seen before. This person was moving around and Ms. Beena Ramani was following him and saying that you are the one give me the gun. I could see everyone present there watching that person who was being addressed to by Ms. Beena. The young man said that why everyone was looking at him that he did not do anything. Then I saw Jessica lying on the floor with her head towards my feet, almost near my feet. Jessica was looking quite in pain and not moving and there was no sign of blood. Then I saw another man standing at the door. At that time, about 2/3 people were ahead of me and are by my side in the restaurant. I was focusing on the danger point. The young man whom I saw at the door was a beard person i.e.
Sardarji. He was the only one present there who was keeping/maintaining calm. Thereafter, I went to the gate of Qutub Colony leaving others in the restaurant, in search of Police man. I ran out and went into the street there was no one there. While I was in the street a number of people came up to the gate of Colonnade walking. There was a bunch of them that is a first person behind him a second person and then behind them many persons they were walking very rapidly. The first person was the one whom I had seen in the restaurant and whom Beena had accosted 41 and asking for the gun. Right behind him or directly behind him was Beena. I focused only on first person or Beena I did not notice the others."
"I believe I can identify that person who had come out first and was being followed by Beena. The witness touched Siddhartha Vashist as the person who was being followed by Beena."
His evidence makes it clear that at the relevant time on hearing the shot, Shyan Munshi PW-2 came running shouting that someone shot Jessica. He reached the door of the restaurant. It is also clear that Beena Ramani PW- 20 was moving at a place ahead of him towards the left side. This witness subsequently stated that Beena Ramani was addressing a young man who was moving with someone. He also identified the person who had come out first followed by Beena and he touched Manu Sharma as the person who was being followed by Beena.
As rightly pointed out by learned Solicitor General, his evidence also proves the presence of the accused-Manu Sharma at the scene of offence.
42 f) Rouble Dungley PW-23:
In his evidence, he admitted that he had told the police that he saw Beena Ramani going after a boy. In his deposition, he mentioned that:
"It is correct that I had told the police that I saw Beena Ramani going after a boy. But I do not remember whether I had told the police that the said boy was a fat boy. It is correct that I had seen Beena Ramani going there Vol. I had seen her from a distance. It is correct that I had told the police that Beena Ramani was saying "Stop that Man"... "I heard that Jessica had been shot."
g) Rohit Bal PW-70:
He deposed that:
"Beena Ramani was actually running in the courtyard area shouting catch that man, catch that man, stop him or something like that pointing towards the exit and running behind someone. I saw the person being pointed out by Beena Ramani but I did not know him. Again said I did not see that person, being pointed out by Beena Ramani from face."
The above statement makes it clear that after the shooting incident Beena Ramani was running behind a man shouting "catch that man"
From the evidence of above mentioned witnesses, namely, PWs 1, 2, 6, 20, 23, 24 and 70 which are all admissible in evidence clearly show the presence of accused Sidhartha Vashisht @ Manu Sharma at the scene of offence. This evidence of the ocular witnesses is duly 43 corroborated by Ex PW 12/D-I, the wireless message received at PS Mehrauli.
In addition to the evidence of the above mentioned witnesses, who were present at the party, the presence of appellants is also proved by other evidence, namely, 3 PCR calls Ex PW 11/A, B and C which were received. The evidence of PWs 11, 12 and 13 clearly proves that immediate and prompt action was taken.
h) HC Devi Singh PW 83 --- In-charge of PCR Van:
He reached the scene of occurrence within two minutes at around 02.17 a.m. and reported back at 02.35 a.m. It is relevant to refer the message received that is Ex PW 12/D-1 which states:
"From E-43 (PCR Van), A party hosted by Malini and Beena was going on in Qutub Colonnade Hotel situated at the road which leads towards Mehrauli where a person had demanded whiskey from Jessica Lal but she (Jessica Lal) said that the restaurant had already been closed. At this the aforesaid person had fired shot at Jessica Lal, which had hit her on her chest. Jessica Lal has been admitted in Ashlok Hospital, Safdarjung Enclave and the person who had fired shot has fled from there."
"One person has fled after firing (at someone) 35 years, stout body 5' 4" R/F fat, T-Shirt of white colour. All the persons will search him".
44 Ex. PW 12/D-1, a contemporaneous document, clearly corroborates the testimony of ocular witnesses which we have already mentioned in the earlier paragraphs. From the evidence adduced, it is clear that the appellants- accused Nos. 1-3 were present at the scene of occurrence.
Admittedly without setting up a plea of alibi to show their presence elsewhere, they have flatly denied their presence.
It is the stand of Mr. Ram Jethmalani, learned senior counsel for the accused that the police deliberately framed Manu Sharma as an accused and made out a false story against him concealing the actual offender who is a tall Sikh gentleman and on this made up theory witnesses from the same family who were vulnerable were made to depose in favour of the prosecution. In an answer to the said question, it was pointed out that apart from the testimony of HC Devi Singh PW-82, PCR in-charge, read with Ex. PW-12/D-1 clearly prove the case of the prosecution. It is relevant that the said witness reached around 02.17 a.m., on a message from PCR to PS 45 Mehrauli takes around 10 minutes as from local PCR it goes to headquarter from where it is transmitted to concerned district net which further transmits it to the local police station. In this way, around 02.25 a.m., even before the local police had arrived at the spot HC Devi Singh PW-83 had sent the version available at the spot.
The prosecution placed specific reliance on the same. In the absence of rebuttal evidence, there is no reason to reject the evidence of PW-83 as well as Ex. PW-12/D-1. In those circumstances, the entire premise of the defence argument that it was not a person in white T-shirt, stocky and fair, who shot at Jessica Lal over a row over the drink and fled away from the spot and this was a planted and concocted story of the prosecution to rope in Manu Sharma and make escape good of the tall Sikh gentleman is