TaxTMI 
TaxTMI 
2010 (4) TMI 1095
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....s. 50,000/- to be paid to the family of the victim and in default of payment of fine, to undergo further imprisonment for three years and also sentenced him to undergo imprisonment for four years for the offence under Section 27 of the Arms Act with a fine of Rs. 2000/- and in default to further undergo imprisonment for three months. He was further sentenced to undergo imprisonment for four years for the offence under Section 201/120B IPC together with a fine of Rs. 2,000 and, in default, to further undergo imprisonment for three 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 a....
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....ion, 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 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. ....
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....filed against ten accused persons. On 23.11.2000, the Additional Sessions Judge framed charges against the appellant/Manu Sharma under Sections 302, 201 read with 120 B IPC and Section 27 of the Arms Act, accused Amardeep Singh Gill was charged under Section 120 read with Section 201 IPC, accused Vikas Yadav was charged under Section 120 read with 201 IPC as also Section 201 read with 34 IPC, accused Harvinder Chopra, Vikas Gill, Yograj Singh and Raja Chopra under Section 212 IPC and accused Alok 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 maintain....
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....te in all the three appeals and Mrs. Mamta Dhody Kalra, intervenor, who appeared in person and pleaded for acquittal of the appellant-Manu Sharma. Contentions of the appellants/accused: 4) Mr. Ram Jethmalani, after taking us through all the oral and documentary evidence relied on by the prosecution as well as the defence, the order of the Trial Judge acquitting all the appellants from the charges leveled against them and the impugned order of the High Court reversing the order of acquittal raised the following contentions:- a) The appellant (Sidhartha Vashisht @ Manu Sharma) has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India. b) On the very first day of investigation i.e. on 30.04.1999, an FIR was filed against Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 under 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....
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....nd 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 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. 9) ....
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....n 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 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 Cou....
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....ast 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", but since ....
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....wal. 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 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 ....
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....9. 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 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 ....
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....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 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 f....
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....es 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 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 ....
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....r, 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....
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....t 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 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 cou....
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....houting 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. 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 Rama....
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....ir 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 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....
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.... been started in Qutub Colonnade. The occurrence took place on such 3rd or 4th party on 29.04.1999. It was a Thursday. Generally food was served but on Thursdays liquor was also being served. The supply of articles through coupons was made in the open space. The party, on 29.04.1999 was over at about 12.30 a.m. and he told the waiters to clean up the place. He was counting the cash and tallying the same. He narrated further: "The time might be 2 AM. I heard the firing of two shots, and the noise of firing had come from the side of cafi. 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 cafi. I rushed towards her and we both went inside the cafi. We saw, Jessica Lal lying on the floor, near the counter. Shiv Dass, Madan Lal, Surender and Wiplub, members of the staff and one-two guests also reached the spot. There was scratched on the forehead of Jessica Lal. Shiv Dass PW-3, brought a bed- sheet. We wrapped Jessical Lal in that bed-sheet. Shiv Dass is an electrician in Qutub Colonnade. We removed Jessica Lal in a car to....
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....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 Ramani had no enmity with the appellant-Manu Sharma and also the whole theory of planting of witnesses at the instance of the police is false since the accused has not led any defence evidence or brought on record any evidence to suggest that the investigation was motivated by mala fide. 19) It was argued by the defence, since PW-47 in his cross examination has stated that Beena Ramani PW-20 stated to him as to what had happened and who had done it, an inference has to be drawn that she did not witness the incident. As rightly pointed out, the above statement does not lead to the inference that Beena Ramani PW-20 did not witness the incident rather it could further reinforce what she had witnessed. Even otherwise, admittedly, thus, Beena Ramani was available she was not recalled to confront her with the testimony of PW-47. In those circumstances, the defence cannot take advantage out of a portion of statement of PW-....
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.... Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24, virtually, they were pressurized to yield to the case of prosecution. While stoutly denying the said allegation, Mr. Gopal Subramanium, submitted that the registration of case under the Punjab Excise Act has nothing to do with their evidence in the case of death of Jessica Lal. He also submitted that ultimately they were fined, the said action cannot be construed as a threat to them or keeping the sword hanging for taking action either under Section 201 IPC or the Punjab Excise Act. It was pointed out by the learned senior counsel for the appellant that Malini Ramani PW-6 during her statement admitted that her mother Beena Ramani was accused of having removed the blood from the spot. PW-6 further admitted that during the first five days of May, 1999, the interrogation of three of them "PWs 6, 20 and 24" was very intense. She also stated that for quite long hours they were kept in the Police Station and they were used to be subjected to prolonged interrogation in the Jessica Lal's case as well as in other Excise Act case. It is true that SHO S.K. Sharma PW 101, admitted that the FIR in the excise case was lodged a....
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....hi." In view of the same it was submitted that because PW-20 told PW- 100 to ask PW-2, it does not mean that she did not know anything, since her statement was recorded on the same day soon after the statement of Shyan Munshi to which statement she stuck even in her testimony before the trial Court. 23) It has been vehemently argued that PW-20 is not an eye witness since both Investigating Officers i.e. PWs-100 and 101 admitted the same. It was submitted by the State that this argument runs counter to the well settled proposition of law that a witness cannot be discredited without the said piece of the testimony having been put to her. The accused had a statutory option available by way of Section 311 of the Code to call PW-20 for the purposes of further examination. This argument of the defence also runs counter to their own argument used to discredit the investigation that PW-6 was placed in the `rukka' by the Police for the purposes of being shown as an eye-witness. The said part of the testimony of PWs-100 and 101 are at best in the nature of opinion evidence which are inadmissible pieces of evidence and for the aforesaid reasons cannot wipe out the unchallenged testimon....
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.... of the State that the alleged prosecution planted PW-6 as an eye-witness goes contrary to all reasoning, since on 30.04.1999 at the time of recording the `rukka', none of the witnesses had disclosed the identity of the appellant - Manu Sharma, therefore, to allege that the Police had planted the witness is wholly incorrect. 27) As regards the argument that PW-6 was under the influence of alcohol, therefore, could not have identified the appellant - Manu Sharma, is also wrong since she clearly stated in her testimony, particularly, in cross- examination, that she had consumed only one drink. 28) The argument that deposition of PW-6 as regards the presence of other accused, does not find corroboration from the testimony of PW-1 is incorrect since the said witness categorically mentioned the presence of other accused. The grievance that the identification of the appellant-Manu Sharma was based on a leading question is also wrong since even before the alleged leading question was put to the witness, the witness, PW-6 had positively identified the appellant - Manu Sharma by specifically pointing out and stating that he just looks like him. It was explained by the State that t....
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....47 stated that they did not see PW- 24 after the party was over at 12.30 a.m. By saying so, it was contended that PW-24 was never there at the time of the alleged incident. It was also contended that PW-24 reached the Mehrauli police station at around 2.25 a.m. whereas if the story of the prosecution is true then he should have reached around 2.10 a.m. It is relevant to mention that PW-24's statement was recorded on the same day i.e. 30.04.99. The presence of PW-24 at the time of incident is also supported by the testimony of ASI Kartar Singh PW-13, who deposed that a person bearing the description of PW-24 came to the Police Station to report about the firing incident, which fact corroborates the testimony of PW-24 that he went to the Police Station. It was urged by Mr. Ram Jethmalani that Rohit Bal PW-70 was a witness who have been examined first as his telephone number appears on Ex. PW-12/D1 which are the PCR messages. It was clarified that in the PCR only the mobile number was recorded. Further on receipt of information, police officers immediately reached the place of occurrence and came to know that the deceased had been taken to Ashlok Hospital. SI Sunil Kumar, PW-100 r....
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....d it in Hindi. In the absence of any suggestion to the contrary, as rightly pointed out by the counsel for the State that it must be presumed that PW-100 recorded the statement correctly. It is also relevant to mention that in his statement as a witness he said "I can understand spoken Hindi. Hindi was my third language when I was studying in the seventh standard. I was never good in Hindi." It is also pointed out that Shyan Munshi has acted in a number of Hindi films. Even if a prosecution witness is challenged in cross-examination, that part of his testimony which is corroborated by other witnesses or from other evidence can clearly be relied upon to base conviction. Further it was pointed out that PW-2 was under the influence of accused Manu Sharma as he was accompanied by Mr. Ashok Bansal who had appeared as proxy counsel for him i.e. accused Manu Sharma in his bail application dated 06.03.2000. Thus, reliance could have been placed only on that aspect of the testimony which is corroborated by other evidence on record. 34) With regard to the allegation that statements of PW-6, PW-20 and PW-24 were taken under pressure as a case under Excise Act was lodged against them and wh....
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....on of FIR. It is relevant to point out that PW-70 has never claimed to have witnessed the incident. He confirmed his presence on the spot and having seen PW-20 accosting a man. 36) It was further contended by the learned senior counsel for the appellant-accused that PW-2 Shyan Munshi's statement could not be looked into as the same is hit by Section 162 Cr.P.C. and on the other hand the defence seeks to rely on his testimony. In support of the above claim, the learned senior counsel for the appellant relying upon the judgments of this Court in State of U.P. vs. Bhagwant Kishore Joshi AIR 1964 SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18 contended that investigation of an offence can start either on information or otherwise and that the receipt and recording of FIR is not a condition precedent to the setting in motion of criminal investigation. Placing reliance upon the said judgments, it has been further argued by the learned senior counsel for the appellant that in the present case the three cryptic telephonic messages received by the Police at around 2.20 a.m. on 30.04.1999 should be treated as FIR upon which the investigation started and, therefore, the statem....
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....j 143. A perusal of the said judgment shows that the details of the offence given by the telephonic message in the said judgment clearly described that `one man was assaulted by means of an axe at Sudama Chowk', on the other hand, in the case on hand the telephonic message did not give any details of the offence or accused and the same was a vague information. The said judgment should be read per incuriam in view of plethora of judgments of this Court wherein it has categorically held that cryptic telephonic messages not giving the particulars of the offence or accused are bereft of any details made to the police only for the purpose of getting the police at the scene of offence and not for the purpose of registering FIR. 39) Learned senior counsel for the appellant also relied on the judgment of this Court in Superintendent of Police, CBI and Others vs. Tapan Kumar Singh, (2003) 6 SCC 175. In the said case, detailed information was given on telephone including the offence and the whereabouts of the accused. On the other hand, in the present case, as observed earlier all the three telephone calls barely mentioned that a fire was shot and a girl was killed. The said informati....
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.... full-fledged eye-witness but since his name had not been mentioned it is the strongest possible circumstance to discredit the prosecution case. We are, however, unable to agree with this somewhat involved reasoning of the High Court. In fact, DW 1 merely says that Gui telephoned to the police station about the firing and said something in English. The High Court seems to have presumed that from this the irresistible inference to be drawn is that Gui did not mention the name of the assailant of the deceased and on this ground alone the prosecution must fail. This argument is based on a serious error. In the first place, the telephonic message was an extremely cryptic one and could not be regarded as an FIR in any sense of the term. Secondly, assuming that Gui had given the telephonic message in utter chaos and confusion when shots after shots were being fired at the deceased, there was no occasion for Gui to have narrated the entire story of the occurrence. In fact, in his evidence Gui has denied that he personally telephoned the police but he stated that he asked somebody to telephone the police which appears to be both logical and natural. Moreover, such a cryptic information on ....
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....is argument Mr Jethmalani submitted that while being examined in court the witness was permitted to refresh his memory from the report he lodged with the police in the morning of 12-11-1985 (Ext. 10/1), which was treated as the FIR of the second incident even though by no stretch of imagination could that report be so treated, as PW 96 had started investigation into the same the previous night. That necessarily meant that Ext. 10/1 was a statement made to a police officer during investigation which could not be read for any purpose except for contradicting the maker thereof in view of Section 162(1) of the Code, argued Mr Jethmalani. In support of his contention Mr Jethmalani relied upon the judgment of the Privy Council in Zahiruddin v. Emperor. It appears that the question as to whether Ext. 10/1 could be treated as an FIR was raised both before the trial court and the High Court and it was answered in the affirmative. The courts held that in the night of 11-11-1985, PW 96 did not examine any witness in connection with the incident that took place in that afternoon and, in fact, he did not take any step towards the investigation as he and other police officers were busy in mainta....
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.... contravention of the section depends on the prohibition which has been contravened. If the contravention consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it does not become inadmissible. There are no words either in the section or elsewhere in the statute which express or imply such a consequence. Still less can it be said that the statute has the effect of vitiating the whole proceedings when evidence is given by a witness who has signed such a statement. But the value of his evidence may be seriously impaired as a consequence of the contravention of this statutory safeguard against improper practices. The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations. The categorical prohibition of such use would be merely disregarded if reliance were to be placed on the evidence of a witness who had made material use of the statement when he 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 evide....
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....ss or anybody else to the police is for the purpose of lodging a First Information Report. Identifying the said objective difference between the two situations, this Court has categorically held in a plethora of judgments that a cryptic telephonic message of a cognizable offence cannot be treated as a First Information Report under the Code. It has also been held in a number of judgments by this Court that merely because the information given on phone was prior in time would not mean that the same would be treated as the First Information Report, as understood under the Code. This view has been reiterated in Ramesh Baburao Devaskar and Others vs. State of Maharashtra (2007) 13 SCC 501, that a cryptic message given on telephone by somebody who does not disclose his identity may not satisfy the requirement of Section 154 of the Code of Criminal Procedure. 42) In view of the above discussion, the three telephonic messages received by the police around 2.25 a.m. on 30.04.1999 did not constitute the FIR under Section 154 of the Code and the statement of Shyan Munshi PW-2 was rightly registered as the FIR. 42A) Seizure of Tata Safari & broken glass pieces and live cartridge: ....
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....ows that the first police officer to reach the place of occurrence at 02.17 a.m. on 30.04.1999 was HC Devi Singh PW-83. He has stated that there was one black Tata Safari parked on the left side towards Mehrauli besides other cars on the right side of the gate. He has further stated that PW-30 was deputed by SHO near the parked vehicles at Qutub Colonnade. He further stated that SI Sarath Kumar PW-78 and SI Sunil Kumar PW-101 had also visited the spot. iii) SI Sharad Kumar PW-78 has stated that on receipt of DD No 41 A Ex PW 13/A in respect of firing incident in Qutub Colonnade, he along with Ct. Meenu Mathew reached Qutub Colonnade. SI Sunil Kumar and Ct Subhash Chand also reached Qutub Colonnade almost the same time when he reached. At Qutub Colonnade on the left side near the gate a black Tata Safari car was parked besides other cars. SHO Insp. Surender Kumar Sharma also reached there. While leaving for Ashlok Hospital, the SHO asked Delhi Home Guard Shrawan Kumar to remain at the gate of the `Qutub Colonnade'. PW-100 SI Sunil Kumar has stated that when he reached Qutub Colonnade he found a black Tata Safari car parked on the left side besides as he entered the colo....
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....ring 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. 43) PW-30 has categorically stated that while he was on duty he saw a vehicle Tata Sierra White Colour coming slowly from the side of Qutub at about 03.40 am or 03.45 am. There were two persons in the said vehicle on the front seat. They stopped the vehicle near Tata Safari of black colour. One boy came down from the said vehicle and opened Tata Safari with a key. PW-30 told him not to do so but the said boy forcibly entered the Tata Safari and took it away. He gave a lathi blow on the glass of window pane and it broke due to danda blow. He noted down the number of the black Tata Safari as CH-01-W-6535. The witness also identified Tata Safari which was hit by him on that night, which is exhibit PW 30/X. PW 30 also identified that Tata Sierra was driven by Amardeep Singh Gill whereas Vikas Yadav drove away black Tata Safari. 44) Insp. Surender K....
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....case with SHO Surinder Sharma who informed him that vehicle No. CH-01-W- 6535 which was lifted from the spot in the morning is found to have been registered in the name of Piccadilly Agro Industries, Bhadson and it was also found in Karnal and he further informed him that you Sidharth Vashist @ Manu Sharma is a Director of the said industry who is residing in House No. 229, Sector 9C, Chandigarh. What you have to say in this regard? Ans. It is correct that Vehicle No. CH-01-W-6535 is registered in the name of Piccadilly Agro Industries Ltd., Piccadilly Cinema, Sector 34, Chandigarh." 46) Apart from this, PW-101 also stated that his senior officers found out the name of the owner and informed him that it was registered in the name of Piccadilly Agro Industries Ltd., Sector-34, Chandigarh. He further explained that his officers informed him that this vehicle was used by Manu Sharma's office which was at Bhadson, District Karnal. It is further seen from his evidence that he sent SI Pankaj to Chandigarh and Inspector Raman Lamba to Bhadson. In this regard the evidence of PW-87 Raman Lamba is relevant. He deposed before the Court that he was instructed that the inmates o....
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....ish the recovery of the same at Noida, beyond any shadow of doubt vide Ex PW 74/C Seizure of Live cartridge by Insp. Surender Kr. Sharma dated 26.06.1999. 48) PW-101 in his evidence has stated that: "On 03.05.1999 in the morning with SI Vijay Kumar and other staff I went to Sector 24 NOIDA and found the Tata Safari No CH-01-W-6535 Black Tata Safari lying in case FIR No. 115/99 U/s 25 Arms Act. SI BD Dubey handed over a pullanda of glass pieces which were found inside the vehicle by the NOIDA police. I seized the vehicle pullanda and the documents two tape recorder, one prescription of Nagpal Nursing Home and one letter written to Vijay Sharma. Every thing was seized vide seizure memo Ex PW 100/DB which bears my signature at point A and of SI BD Dubey at point B. The pullanda of broken glasses were sealed with the seal of BD when it was presented to me." 49) SI BD Dubey PW-91 and Ct. Satish Kumar PW-74 of PS Sec.24, Noida have deposed that they found black Tata Safari No. CH-01-W-6535 abandoned at the NTPC Township pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide Ex. PW 74/B. The said Tata Safari was seized under seizure memo Ex PW 74/A. PW 1....
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....ccused Manu Sharma used the said 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: 51) Sh. Surender Singh PW-14 has proved that pistol No. B-56943 U make P. Berretta made in Italy of .22" bore was sold to accused Sidhartha Vashisht @ Manu Sharma on 31.01.1999. The relevant exhibits in this regard are Ex. PW 14/A in the stock register for purchase of P. Berrette Pistol from Smt. Azra Javed, Ex. PW 14/C at Sr. No. 3350 of sale of Pistol to Sidharth Vashisht, Ex. PW 14/D photocopy of cash memo, seizure memo Ex PW 14/F dated 19.05.1999 by SI Vijay Kumar PW-76. The endorsement on the license of Manu Sharma regarding sale of Pistol is Ex. PW 14/B. 52) It is relevant to point out that the accused Sidharth Vashisht @ Manu Sharma, when he surrendered on 06.05.1999, also surrendered his arms license Ex PW 7/B which has been seized vide seizure memo vide Ex. PW 80/B by Inspector Raman Lamba PW 87. The testimony of PW-87 is further corroborated by PW-80. The said arms license duly bears endorsement about the sale of .22" bore pistol No. B-56943 U, make P. Berretta, made in Ita....
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....r of farm house of Manu Sharma at Samalkha who was produced by the prosecution for the purpose of accused's visit to farm house also did not mention in his examination in chief or in cross by the Spl. PP about the pistol. It is only to a leading question put up by the counsel for accused that those articles included pistol and arms licence of Manu Sharma, witness stated "it is correct". The defence of the accused was for ammunition as well as for which no suggestion has been ever put. C.N. Kumar PW-43, Dy. SP NCRB has deposed that he had not received any complaint of theft or loss of this P. Berretta pistol. The pistol could not be recovered despite extensive efforts made to trace the pistol pursuant to the disclosures of the accused and the arms license was however surrendered on 06.05.1999 vide seizure memo Ex. PW 80/B. It is thus the case of the counsel for Manu Sharma that he was in possession and custody of his P. Beretta pistol on 29/30.04.1999 as even according to him it has been taken away on 30.04.1999/01.05.1999. This was a licensed pistol and thereby the onus was on the accused to show where it was and that the possession and whereabouts of the pistol are in the spec....
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.... of the crime; a mutilated .22" lead was recovered from the skull of the deceased; two empties of .22" make with mark `C' were found at the spot; a .22" live cartridge with mark `C' was found in the Tata Safari of the appellant/accused which was found abandoned at Noida and for which no theft report was lodged; that his prior and subsequent conduct of having got the Tata Safari removed from the spot, of absconding; refusal to TIP without having any basis; that he even denied his presence at the spot, clearly prove beyond reasonable doubt leaving no manner of doubt that he is guilty of the offence of murdering Jessica Lal by using firearm and destroying evidence thereafter. 56) It is pointed out by the State that when the accused Manu Sharma was arrested on 06.05.1999, the police filed an application dated 07.05.1999 for police remand of the accused for recovery of pistol. The defence filed a reply to the said application on the same day i.e., 07.05.1999 and thereupon the Metropolitan Magistrate passed an order on the same day granting seven days police custody of the accused for recovery of pistol. The accused despite forever maintaining that the police had illegally tak....
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....e companion of Shyan Munshi (you Manu Sharma) was wearing T-shirt and she asked you Manu Sharma as to why you were here and why you shot Jessica and she also asked you to give her your gun as she thought you were having the gun. What you have to say in this regard? Ans. It is false and incorrect. Q.66 It is further in evidence of PW 20 that she asked you Manu Sharma again but you kept quiet and shaking your hands that it was not him and thereafter you pushed her aside and went out and she ran after you but should could not catch you. What you have to say in this regard? Ans. It is false and incorrect. Q.67 It is further in evidence of PW-20 that while running behind you (Manu Sharma), she reached the gate where her husband was there, to whom she told that you (Manu Sharma) shot Jessica and asked her husband to see in which car you (Manu Sharma) gets in. What you have to say in this regard? Ans. It is absolutely false and incorrect." A perusal of above questions and answers given by Manu Sharma were either evasive or incorrect and as rightly pointed out by the learned Solicitor General, an adverse inference deserves to be drawn for such acts....
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....pting 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 that case are, therefore, clearly different from the present case. 61) The defence seeks to discredit the statement of PW-1 Deepak Bhojwani on two counts, firstly that statement is recorded after 14 days and secondly, there are various improvements, in his statement. It is next contended by the defence to believe this man is to disbelieve Beena Ramani. According to him, the prosecution did not know even on 14.05.1999 the details of their story and thus resulting in various improvements in the testimony of this witness, in the witness box. This contention of the defence looses sight of the fact that much prior to 14.05.1999 Manu Sharma had surrendered on 06.05.1999 and had made his disclosures and thus there could be no question of not knowing the facts on 14.05.1999. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30.04.1999 he had told the police at the Apollo Hospital all that he knew. This being the case, it cannot be said that the....
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....e officials came to Apollo Hospital along with the Ambulance and few of them returned to Qutub Colonnade. I did not make any statement to the police in Apollo Hospital. Since I had not seen the incident being taking place and at Ashlok and Apollo Hospital discussion was going on as to who had done this and it was also being discussed that the culprit was wearing Blue Denim Jean and White Shirt and was fair and was little short in height then I assessed that he was the same person who came to me to arrange drinks for him. I had told the police in Apollo Hospital that it was Manu Sharma who was with the similar description as was discussed amongst friends on which police had told me that they would call me." 63) In Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334, this Court held that mere delay in examination of the witnesses for a few days cannot, in all cases, be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible. In Prithvi vs. Mam Raj , (2004) 13 SCC 279, it was held that delay in rec....
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....2000, the Metropolitan Magistrate directed that the State will have to supply all the deficient copies and also the remaining CFSL reports sent by CFSL to SHO. The opinion of Sh. Rup Singh, Ballistic expert finally exhibited as Ex. PW 89/DB only says that "it appears that the two cartridge cases are from two different pistols." As rightly pointed out such a vague opinion of the expert can neither be relied upon nor can be any basis to come to a conclusion that there were two persons who had fired two different shots. 65) With regard to Prem Sagar Manocha PW-95, Ballistic expert at FSL, Jaipur, a specific query being query No.3 that whether both the empty cartridge cases have been fired from the same firearm or otherwise. In the reply to the said query, the expert opined that no definite opinion could be given on the two .22" bore cartridge cases C-1 and C-2 in order to link with the firearm unless the suspected firearm is available to examination. It was pointed out that the trial Court puts a question to the witness and while putting the question first gives a specific fact finding that for reply to Query No. 3, the presence of the firearm was not necessary. This incor....
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....only good if it appeals to the judicial lines; appreciation of such evidence can only be the work of the Court. Reliance has been placed on A.E.G. Carapiet vs. A.Y. Derderian, AIR 1961 Calcutta 359 paras 10-14 to assert that every witness must be cross-examined before being discredited. The prosecution cannot challenge the expert at the stage of appeal when his testimony went unchallenged at the stage of the trial. 67) It has been argued that the Court must lay down in clear terms the duties of a public prosecutor i.e., to tell the truth even if the same is in favour of the accused. Reliance has been placed on Rule 16 of the Bar Council of India Rules which are to the said effect. Reliance is further placed on Attorney Generals Guidelines contained in Archbold Criminal pleadings edition 2003 to say that it is obligatory on the part of the prosecution to disclose all the material. It has been argued that even after an application under Section 391 Cr.P.C. has been filed, the prosecution still chose not to call the expert Rup Singh and cross-examine him. Ex.PW-89/DB supports PW-2 and vice versa, since his evidence is corroborated by the expert report. Attention of the Court was invit....
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....opine the two cartridge cases are from the same weapon or not the pistol is not required and the pistol is only required when the opinion is sought whether they are from that particular weapon or not cannot be accepted. It is well settled that when pressure is built inside the cartridge case, which results in the pushing out of the bullet from the barrel, there is difference in the marks to the extent that it may be either clear or unclear and flattened or deepened thus no opinion can be rendered on account of this dissimilarity in the absence of the weapon of offence and test firing. Further once the report of Rup Singh is rendered inadmissible the two gun theory of the defence becomes wholly inadmissible and what remains is that the two empties found at the spot are .22" bore cartridges, that the live bullet found in the Tata Safari is a .22" cartridge and that the gun belonging to the appellant is a .22" bore pistol which was used for the commission of the crime of murder of Jessica Lal. 68) The prosecution obtained another opinion from FSL Rajasthan and the queries made are as under: "1. Please examine and opine the bore of the two empty cartridges present in the se....
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....stion to PW-95 is contrary to Section 165 Cr.P.C. inasmuch as the power of Judge is very wide. It has been further argued by the defence that the duties of a Presiding officer are set out in Section 165 of the Indian Evidence Act. Reliance is sought to be placed on Ram Chander vs. State of Haryana, AIR 1981 SC 1036. It has been argued that the judge knew that the issue was whether two empties were fired from the same gun. It has been further argued that the judge has seen EX. PW- 89/DB and, therefore, any judge would have noticed that the controversy was whether these two bullets were fired from the same weapon or not. The Judge also found out that this query went to the CFSL and CFSL answered the same. It has been argued that, therefore, the Judge knew that to answer this query weapon was not required. It has been argued that the Court must read in between the lines. 70) It is pointed out by the State that the contention of the prosecution was that the trial Court could not have first put a specific finding of its own opinion to the expert witness and then ask him questions. Learned Solicitor General pointed out that in the attempt of the trial Court to extract the truth from t....
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.... it uses the term "appear" when it suggests that the two empties appear to have been fired from different weapons. Clearly the said opinion was far from conclusive and would have only created confusion in the case of the prosecution. Thereafter a second opinion was sought wherein the expert i.e. PW-95 opined that a conclusive opinion can only be given after the receipt of the weapon of offence. The argument that the weapon of offence is not required to determine whether the two bullets have been fired from the same gun is based on the wrong premise that the two empties would necessarily consist of features which would enable an expert in determining the said fact. For instance, as in the case of a handwriting expert who has to give an opinion about two different sets of near identical questioned documents and as to whether the same belong to different persons, if the argument of the accused has to be accepted then the expert should be able to give such an opinion without having in his possession 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 cas....
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....-1 in inconclusive. The expert PW-95 Prem Sagar Minocha has stated in his report that it is only on receiving the weapon of offence that a conclusive opinion as to whether the two empties (cartridge cases) found at the spot were fired from the same weapon or from two different weapons could be given. 73) The defence seeks to reply upon the testimony of PW- 2 with regard to the two gun theory put forward. In this regard, the defence seeks to corroborate the said part of PW-2's testimony with the testimony of the two ballistic experts. It has also been contended by the defence that the testimony of a hostile witness must be corroborated by the other reliable evidence on record in order to be admissible. The law is very clear that where a witness for the prosecution turns hostile, the Court may rely upon so much of the testimony, which supports the case of the prosecution and is corroborated by other evidence. PW- 2's testimony as regards the identity of the person shooting, is certainly not corroborated by the testimony of the experts since both the experts have given opinions which cannot qualify as conclusive opinion of experts. Role of Public Prosecutor and his duty of ....
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....in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others, (1994) 4 SCC 602 held: "22. ... A public prosecutor is an important officer of the State Govt. and is appointed by the State under the CrPC. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation" Therefore, a public prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties incl....
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....Mohan Lal v. Union of India,this Court has observed, while considering the scope and ambit of Section 311, that the 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 terms and do not limit the discretion of the Court in any way. However, as noted 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 discretion but obligates and binds the Court to take 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 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 exerci....
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.... 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 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 considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission o....
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....he defense. This is brought out by sections 207 and 208 as follows: "207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following. (i) The police report; (ii) The first information report recorded under section 154: (iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173. (iv) The confessions and statements, if any, recorded under section 164; (v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy....
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....re and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases. In R. v Ward (Judith Theresa) (1993) 2 All E.R. 577, Court of Appeal held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defense. Non-compliance with this duty would amount to "irregularity in the course of the trial" under Section 2(1)(a) of the Criminal Appeal Act, 1988. 81) In R v. Preston & Ors. (1993) 4 All ER 638, on which the appellants specifically relied upon, dealt with the non- disclosure of a telephonic conversation in a matter dealing with the Interception of Communications Act, 1985. The relevant material had been destroyed in pursuance of Section 6 of the same Act. In appeal, the defendants essentially argued that the non-disclosure of the contents of the call to the defense amounted to a materi....
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....as developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the Courts do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the Courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law. It is not only the responsibility of the investigating agency but as well that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of a....
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....al) 72], State Inspector of Police vs. Surya Sankaram Karri [(2006) 3 SCC (Criminal) 225 and T.T. Antony vs. State of Kerala [(2001) 6 SCC 181. In Nirmal Singh Kahlon vs. State of Punjab [AIR 2009 SC 984] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to received in accordance with law is not denied to him contrary to law. 84) It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the Court. Let us examine the extent of this right of an accused in light of the statutory provisions and the manner in which the law has developed under the criminal jurisprudence. To understand this concept in its right....
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....reof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request. Sub- Section 7 of the same Section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to Sub-section 5 of the Section. Section 173 (8) empowers an investigating officer to submit a further report if he is able to correct further evidence. Once this report in terms of Section 173 is received t....
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....t to investigate. If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under Section 35 of the Indian Evidence Act." 88) In the case of Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341 this Court reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the investigating officer or the Court uses the entries in the case where either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 in terms of Section 145 of the Evidence Act the entries can be used by the accused as evidence. The free use thereof is not permissible under defence. 89) In case Mukund Lal v. Union of India A.I.R. 1989 SC 144, this Court clearly stated the denial to the accused of an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the Court has used thes....
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....date to face the charge against him by a fair investigation and trial. Fairness in both these actions essentially needs to be adhered to. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173 (5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of documents/statements to the accused in accordance with law. Under proviso to Section 162 (1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Fu....
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.... require or mandate that the Court without delay and free of cost should furnish to the accused copies of the police report, first information report, statement, confessional statement of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173 (6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Sub Section 5 of Section 173. In contradistinction to the provisions of Section 173, where the Legislature has used the expression `documents on which the prosecution relies' are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173 (5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170 (2) of the Code. 92) The right of the accused with regard to disclosure of documents is a lim....
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....n and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any set back in the facts and circumstances of the case. The accused even did not raise this issue seriously before the Trial Court. Call Details: 93) The evidence of the telephone calls in the present case is admissible under Sections 8 and 27 of the Indian Evidence Act. PW-16, Raj Narain Singh, has deposed that Tel. No. 3782072 is installed at 15, BR Mehta Lane in the name of O.P. Yadav - Ex.PW-16/C. Print out for the period 25.04.1999 to 11.05.1999 is Ex. PW-16/C-1. The evidence of PW-19 further proved that Tel. No. 4642868 was installed at Majid Chakkarawali, Mathura Road vide Ex. PW 16/D and the print out for the period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-1. PW-17, Mohd. Jaffar stated that Tel. No. 4642868 was installed at his PCO. Phone calls were made to USA from his STD Booth on 04.05.1999. Photocopy of calls made is Ex. PW-17/A. PW-16 also proved that Tel. No. 3793628 was shifted to 23, Safdarjung (Ex. PW-16/E) and print out for the period 03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is further in evidence of PW-45, Sa....
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....g. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence. The details of the calls made by the various accused to one another are available in Ex. PW-66/B, PW-66/D and PW-66/C. Effect of leading question by Public Prosecutor: 97) Mr. Ram Jethmalani, learned senior counsel next contended that the Public Prosecutor in the present case had put a leading question to Malini Ramani regarding identification of the accused Manu Sharma. We verified the said question. The question put by the Public Prosecutor, was at best clarificatory, and by no stretch of imagination can be termed as a leading question favouring/eliciting an answer favouring the prosecution. The evidence of Ms. Malini Ramani two paragraphs prior to the leading question and two paragraphs thereafter, if read in conjunction with each other clarifies the whole scene and sequence of events. Learned senior counsel has relied upo....
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....a witness, but tried serving him with the summons many times, but the same could not be achieved as Sanjay Mehtani had by then shifted to Hong Kong and was not staying in India. Therefore to contend that Sanjay Mehtani was deliberately not examined by the Prosecution is absolutely baseless and not founded on the basis of the record. The conduct of Absconding: 99) From the testimony of PW-20 and PW-24, it is proved beyond reasonable doubt that accused Sidharth Vashisht @ Manu Sharma after committing the murder of Jessica Lal fled away from the scene of occurrence. It is further proved from the testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was made for the black Tata Safari bearing Regn. No. CH-01-W-6535 and for Sidharth Vashisht @ Manu Sharma, Director of Piccadilly Sugar Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at Samalkha and Okhla Delhi. It is also proved that even after the seizure of vehicle on 02.05.1999 the search for accused Sidharth Vashisht @ Manu Sharma continued and search was made at Piccadilly Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital where his father was sub....
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....lok Khanna's Tata Sierra bearing No. MP-04-V-2634. Accused Manu Sharma surrendered on 06.05.1999 at 2.30 p.m. at Patiala Guest House, Chandigarh before Inspr. Raman Lamba PW-87 and ASI Nirbhay Singh PW-80. After his arrest accused Manu Sharma had made four disclosure statements. The first was an oral disclosure made to Inspr. Raman Lamba wherein he said that he could recover the pistol from Ravinder Sudan at Mani Majra. However, it was pointed out that the search of the house at Chandigarh was taken and since the diary containing the address of Ravinder Sudan could not be found, no recovery could be affected. 102) On 07.05.1999, he made a disclosure to Inspr. Surender Kumar Sharma PW-101 which was recorded as Ex. PW 100/12. In the said disclosure, he disclosed that he was using his younger brother Kartik's Cellphone No. 9811096893 in making calls to his friends like Tony Gill, Alok Khanna, Amit Jhingan and others. He also disclosed the phone Nos. of some of the co-accused and that he handed over his cell bearing No. 9811096893 to Yograj Singh in Panchkula and can recover the same. Pursuant to the disclosure of Sidharth Vashisht @ Manu Sharma the mobile phone used by him ....
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....ccused 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 "During the first five days of May 1999, the interrogation of three of us was very intensive, and photographs were shown to us of the culprits for identification. It could be that the photograph of Manu Sharma had been shown to me but since I was not in good frame of mind and rather disturbed for the whole week and therefore, I do not remember whether the photograph of Manu Sharma was shown to me or not on 01.05.1999. It is correct that between 01.05.1999 to 05.05.1999, I had been shown the paragraph of Manu Sharma." Thus she was not sure about her having been shown the photograph prior to 08.05.1999. PW-6 has nowhere stated in her testimony that photograph of Manu Sharma were shown to her parents. Moreover, no photographs of the other three accused were shown to her or her parents of the other accused i.e. of Vikas Yadav, Amardeep Singh Gill or Alok Khanna as contended. Further, PW-20 has categorically identified all the four accused in the witness box and there is no cross examination of PW-20 to the effect th....
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....uments to SHO Surender Kumar". 109) PW-2 Shyan Munshi in this regard stated, "It is correct that Delhi Police had contacted me in Calcutta at my residence but I do not remember it was on 19th May, 1999. .... ..It is correct that some photographs were shown to me by Delhi Police at Calcutta in May, 1999 at my residence"... "Police had shown me the photograph and asked me if I could identify but I did not identify any of the culprits. I was asked by the police to sign on the reverse of those four photographs but I did not sign any such photograph." 110) Mr. Jethmalani next contended that identification is inherently illegal because the witnesses were not only shown the photographs but also the accused was physically shown. According to him, it was further in evidence that accused Manu Sharma was shown to all the three witnesses on 08.05.99 and they even admitted that it may have been on 07.05.99. It is further contended that it is not denied that the photos came in the newspaper during the prosecution. However, it was pointed out by the defence that prosecution is certainly not responsible for showing the photos. As far as refusal of TIP by accused Manu Sharma is concerned, the....
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....er 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 of showing her the photograph could not arise. Further, this witness nowhere says that photographs were shown to her parents as well as being sought to be inferred by the defence. Thus refusal of TIP on this ground was unjustified by accused Manu Sharma in the morning of 07.05.1999. It is further submitted that after the refusal of TIP it is only thereafter that the accused Manu Sharma was shown to the witnesses PW-6, PW-20 and PW-24 and their statements under Section 161 Cr.P.C. were recorded with regard to the identification of accused Manu Sharma. The said process of identification was necessary for the IO to be certain that this is the man that the said witnesses had witnessed/seen as the person responsible. In the light of Manu Sharma's refusal, the police had little choice but to formally show the photo to the witnesses and re....
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....nsel for the respondent is that a photo of the appellant was shown to Mr. Albert Mkhatshwa later and he identified that figure in the photo as the person whom he saw driving the car at the time of interception of the truck. 11. It was contended that identification by photo is inadmissible in evidence and, therefore, the same cannot be used. No legal provision has been brought to our notice, which inhibits the admissibility of such evidence. However, learned counsel invited our attention to the observations of the Constitution Bench in Kartar Singh vs. State of Punjab which struck down Section 22 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. By that provision the evidence of a witness regarding identification of a proclaimed offender in a terrorist case on the basis of the photograph was given the same value as the evidence of a test identification parade. This Court observed in that context: (SCC p. 711, para 361) 361. If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspect....
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....vs. State of U.P. (1988) 1 SCC 14 and Budhsen & Others vs. State of U.P. (1970) 2 SCC 128. A close scrutiny of these judgments will reveal that they infact support the case of the Prosecution. These judgments make it abundantly clear that even where there is no previous TIP, the Court may appreciate the dock identification as being above-board and more than conclusive. 115) The law as it stands today is set out in the following decisions of this Court which are reproduced as hereinunder in Munshi Singh Gautam vs. State of M.P. (2005) 9 SCC 631, at page 643: "16. As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identificatio....
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.... of investigation, and there is no provision in the Code which obliges the investigation agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad vs. Delhi Administration AIR 1958 SC 350, Vaikuntam Chandrappa vs. State of A.P. AIR 1960 SC 1340, Budhsen Vs State of U.P. (1970) 2 SCC 128 and Rameshwar Singh vs. State of J&K (1971) 2 SCC 715) 19. In Harbhajan Singh vs. State of J&K (1975) 4 SCC 480, though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on th....
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.... example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigation agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter fro the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration." 116) Mr. Ram Jethmalani has further placed heavy reliance on two Books by foreign authors, namely, `'Proof of Guilt by Glanville Williams,' 3rd Edition and `Eye Witness Identification in Criminal Cases' by Patrick M. Wall, to urge that identification of an accused in Court is a serious matter and the chances of a false identification are very high. Th....
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....s prior to TIP was coupled with the fact that the writing of the accused did not match with the entries made in the entry register which was contrary to the case of the prosecution. 119) Laxmipat Chararia vs. State of Maharashtra, AIR 1968 SC 938, is distinguishable as the witness whose statement was subjected to arguments as being put under pressure of prosecution and was shown photographs of the accused was infact an accomplice and her statement was also relied upon by the Court and held that her evidence is admissible. 120) Hari Nath & Anr vs. State of U.P. (1988) 1 SCC 14 is also distinguishable on facts as the accused were residing in village in the close vicinity of the village of the prosecution witness (members of house hold where dacoity was committed) and that accused and the prosecution witness had been students of the same institution was indicative of the fact that the accused were known to the prosecution witnesses while there was an omission to mention name of the accused persons in the FIR. Secondly, as it was also held that even on the premise that no prior acquaintance was there, the TIP lacked promptitude as was conducted after an unexplained delay of more ....
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....has not been put to the appellant thereby causing prejudice to the appellant. The said proposition of law is misplaced since a specific provision has been provided by way of Section 315 of the Code whereby an accused can, as a matter of right, appear as a witness on his own behalf. In the present case, the appellants exercised an option declining to do so and in such manner failed to offer any evidence to show loss/removal of his gun. Thus it cannot be urged by the defence merely in order to suit his convenience that his statement may be treated as evidence and that all facts stated therein be treated as true unless contradicted by the prosecution. While answer given by the accused to question put under Section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e., the prosecution does not get an opportunity to cross-examine the accused, it is nevertheless subject to consideration by the Court to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances. The judgment relied upon is of no use ....
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....ecessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." 10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross- examine each and every witness examined on the prosecution side. He is given copies of a....
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....ed one shot each at the deceased who received three wounds. It was opined that three wounds which could have been from a single shot. It was the consistent stand of the Bheru that he fired the shots (with double barrel), whose appeal was, therefore, dismissed in limine. While that of Hate (appellant in the said case) was that though present with a gun, he did not fire any shot (with his single barrel). That single barrel was found loaded (Article E) this fact was accepted throughout. Witnesses also saw Bheru firing the first shot. The Court held that the fact that both the brothers absconded was given much importance by the High Court and Sessions Court but were not asked to explain it at any stage. 129) Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 relied upon by the appellant is also distinguishable on facts as there was no accusation specifically put in the question during examination to the accused. Adverse Inferences Against the Accused: 130) (i) False answers under Section 313 Cr.P.C. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference sha....
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....ount 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 inference against the accused. (iv) Appearance of PW-2 Shyan Munshi accompanied by Shri Ashok Bansal, Advocate By order dated 06.03.2000, Shri Ashok Bansal, advocate had appeared as proxy counsel for accused- Manu Sharma before the trial Court and on the same day also took copy of the report of FSL/Jaipur on behalf of accused-Manu Sharma. On 03.05.2001, PW-2, Shyan Munshi, was duly accompanied by Shri Ashok Bansal, advocate wherein he clearly says that he has come with a lawyer for his personal security. On behalf of the State, it was contended that an adverse inference against accused- Manu Sharma has to be drawn for influencing the witness. It may not be out of place to mention here that PW-2, Shyan Munshi, who is the maker of the FIR and complainant of the case, did not fully support the prosecution case though he admitted having made statement to the police and having signed the same. The stand of the State cannot be ig....
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....gment, on the one hand, explicitly referred to certain criticism/comments/remarks made by the trial Judge against the investigating agency, and observed that they were uncalled for and that they should have been avoided. But, on the other hand, the Division Bench itself while criticizing the reasoning in the judgment under appeal made certain sweeping remarks against the trial Judge. 135) In this regard we are intentionally not referring to the criticism of appreciation of evidence in fact and on law, but are restricting ourselves to certain observations and comments which, in our humble opinion, are criticism of the Judge per se and could have been avoided easily by the Division Bench of the High Court. It is also desirable, that the language which may imply an allegation of suspicion in the performance of function of the Court should be carefully examined and unless it is absolutely established on record, comments should be avoided. It will be appropriate to refer to the relevant parts of the judgment in this regard: ".............We also find the criticism against him to be a matter of meaningless hair splitting. There is a ring of truth around the deposition of PW 3....
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.... approaching this Court for expunction of disparaging remarks on his conduct made by the High Court in the matter of `K' A Judicial Officer (2001) 3 SCC 54, this Court cautioned the higher courts to use the power of superintendence with great care and circumference before making remarks on unworthy conduct of an officer, his criticism or adverse remarks in relation to judicial pronouncement should be avoided. The Court held as under: "A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence. The view is settled by the law laid down in Raghubir Saran (Dr) vs. State of Bihar (1964) 2 SCR 336. However, if a similar relief is sought for against remarks or observations contained in judgment or order of the High Court the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its jurisdiction under Articles 1....
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.... mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the benefits which are available in the higher courts. In those circumstances, remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings." 141) In Alok Kumar Roy vs. Dr. S.N. Sharma (1968) 1 SCR 813 the vacation Judge of the High Court of Assam and Nagaland passed an interim order during vacation in a petition entertainable by the Division Bench. After reopening of the Court, the matter was placed before the Division Bench presided over by the Chief Justice in accordance with the High Court Rules. The learned Chief Justice made certain remarks as to "unholy haste and hurry" exhibited by the learned vacation Judge in dealing with the case. When the matter reached this Court Wanchoo C.J., observed: (SCR pp 819 F- 820A) "It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly. Such observations even about Judges of subordinate courts with the clearest evide....
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....nt was correct or not, but the remarks made, strictures passed and directions issued by the learned Single Judge of the High Court against the appellant were improper, uncalled for and unwarranted. Apart from the fact that they were neither necessary for deciding the controversy raised before the Court nor an integral part of the judgment, in the facts and circumstances of the case, they were not justified. We, therefore, direct deletion of those remarks." 143) In line with the consistent view of this Court, we are of the considered view that the Division Bench could have avoided making such observations which directly or impliedly indicates towards impropriety in the functioning of the Court, appreciation of evidence by the learned Judge and/or any other ancillary matter. The content and merit of the judgment would have remained unaffected even if such language or comments were not made against the learned trial Judge. The respect of judiciary and for the judiciary, is of paramount consideration. Every possible effort should be made and precaution taken which will help in preservation of public faith and individual dignity. A judicial consensus would require that the judgment s....
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.... travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial. 149) In the present case, certain articles and news items appearing in the newspapers immediately after the date of occurrence, did cause certain confusion in the mind of public as to the description and number of the actual assailants/suspects. It is unfortunate that trial by media did, though to a very limited extent, affect the accused, but not tantamount to a prejudice which should weigh with the Court in taking any different view. The freedom of speech protected under Article 19 (1) (a) of the Constitution has to be carefully and cautiously used, so as to avoid interference in the administration of justice and leading to undesirable results in the matters sub judice before the Courts. 150) A Bench of this Court in the case of R.K. Anand v. Delhi High Court (2009) 8 SCC 106, clearly stated it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers for the Court. Media should perform the acts of journalism and not as a special agency for the Court. The impact o....
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....and C. 3) Phone calls made immediately after an incident to the police constitutes an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR. In the present case, the phone calls were vague and therefore could not be registered as the FIR. The FIR was properly lodged as per the statement of Shyan Munshi PW-2. 4) Delay in recording the statement of the witnesses do not necessarily discredit their testimonies. The court may rely on such testimonies if they are cogent and credible. 5) The laboratory reports in the present case are vague and ambiguous and, therefore, they cannot be relied upon to reach any specific conclusion regarding the incident. 6) The evidence regarding the actual incident, the testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused - Manu Sharma, as well as his conduct after the incident prove his guilt beyond reasonable doubt. The High Court has analyzed all the evidence and arrived at the correct conclusion. 7) The public prosecutor is under a duty of disclosure under the Cr.....