This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
State Vs. Sidhartha Vashisht etc.page no.1
IN THE COURT OF SHRI S.L. BHAYANA Addl. Sessions Judge, New Delhi
r/o H.No.5546 Modern Complex Manimajra,ChandigarhPresent address17-15, Wood Side Avenue Newyork,11373(USA) & 4122, 75 Street Almherst Newyork (USA)
11.Dhanraj s/o Hugli (PO)r/o village Mandhi Post Bhesai,Distt. Gopajganj, BiharPresent addressIV grade employees, SK Inter College,Garhi Chaukhandi, Distt. Gautam BudhNagar,UP
12 Raja Chopra r/o E-29-Am Lajpat Nagar III, New Delhi
'' Credibility of testimony, oralcircumstantial, dependsconsiderably on a judicialevaluation of the totality, notisolated scrutiny. While it isnecessary that proof beyondreasonable doubt should beadduced in all criminal cases,it is not necessary that itshould be perfect. If a case isproved too perfectly, it is
State Vs. Sidhartha Vashisht etc.page no.46
argued that it is artificial; if acase has some flaws,inevitable because humanbeings are prone to err, it isargued that it is too imperfect.One wonders whether in themeticulous hypersensitivity toeliminate a rare innocent frombeing punished many guiltymen must be callously allowedto escape. Proof beyondreasonable doubt is aguideline, not a fetish andguilty man cannot get awaywith it because truth sufferssome infirmity when projectedthrough human processes,Judicial quest for perfect proofoften accounts for policepresentation of fool-proofconcoction. Why fake up?Because the court asks formanufacture to make truthlook true? No, we must berealistic.''
(iii) AIR 1992 SC Page 840 in Re State of UP
Vs. Ashok Kumar, wherein it has been held as
under :-
'' The circumstance reliedupon must be found to havebeen fully established and thecumulative effect of all thefacts so established must beconsistent only with thehypothesis of guilt. But this isnot to say that the prosecutionmust meet any and everyhypothesis put forward by theaccused however far-fetched
State Vs. Sidhartha Vashisht etc.page no.47
and fanciful it might be. Nordoes it mean that prosecutionevidence must be rejected onthe slightest doubt becausethe law permits rejection if thedoubt is reasonable and nototherwise.''
(iv) AIR 1975 SC 856 in Re Ravinder Singh Vs.
State of Haryana wherein it has been held as
under :-
'' Once the evidence of awitness has been rejected bythe court it should not be madea basis for judging the veracityof other evidence by theyardstick of that unreliableevidence.''
(v) 1985 Crl. L.J. 1700 Delhi High Court in Re
Harishanker Vs. State wherein it has been held as
under:-
'' That apart, the appellantDharam Raj has failed to bringany material on the recordwhich would render hisidentification by thecomplainant in court ofdoubtful value. As stated above,he declined to participate in theidentification parade althoughhe was produced on the verynext day of his arrest and,therefore, an adverse inferencecan be ligitimately drawnagainst him''.
HELD that where cross-examination is not directedagainst the positive materialassertion affecting the oppositeparty, it would amount to theaffected party accepting thetruthfulness of that assertionunless there is some exceptionproof to the contrary.''
I have gone through the aforesaid
judgments. All the aforesaid judgments have been
relied upon by the prosecution. The facts of all the
aforesaid judgments are different from the facts of
the present case and they are not applicable to the
facts of the present case. However there is no
dispute about the law laid down by the Hon'ble
Judges in the aforesaid judgments.
132. Ld. Counsel for the accused has
submitted that the prosecution has failed
to prove its case beyond reasonable doubt
State Vs. Sidhartha Vashisht etc.page no.49
against the accused persons. He has
submitted that all the three eye witnesses
examined in this case by the prosecution
have turned hostile. The eye witnesses
are PW2 Shyan Munshi, PW3 Shiv Dass and
PW4 Karan Rajput. All these three eye
witnesses have categorically stated that
they did not see accused Sidhartha
Vashisht @ Mannu Sharma firing a shot from
his pistol at Jessica Lal. All three of
them were declared hostile and in their
cross examination by ld. Special PP also
they denied the suggestion that Sidhartha
Vashist @ Mannu Sharma had fired a shot at
Jessica Lal from his pistol as a result of
which she died. These are the only three
eye witnesses produced by the prosecution
in this case and all three of them have
not supported the case of prosecution, the
accused persons are, therefore, liable to
be acquitted.
133. Ld. Counsel for accused has
further submitted that the case of the
prosecution is that one person fired two
shots from one pistol. One shot was fired
at the roof and the other shot was fired
at Jessica Lal which struck her on her
head as a result of which she died. These
State Vs. Sidhartha Vashisht etc.page no.50
two empty cartridges were taken into
possession by the IO and were sent to the
FSL. The Ballistic Expert report is
Ex.PW89/DB. In the said Ballistic Expert
report it is opined that these two
cartridges have been fired from two
different arms so the theory of the
prosecution that both the shots were fired
from the same pistol stands contradicted
with the Ballistic expert report. So the
story of the prosecution that one person
had fired two shots has also been
falsified by the FSL report, the accused
persons are, therefore, liable to be
acquitted on this ground alone.
134. The counsel for accused persons
has further submitted that on the night of
4/5/5-99 accused Amardeep Singh Gill @
Tony Gill was arrested by the police. This
was the first accused arrested in this
case by the police and police recorded his
disclosure statement on the same night
which is Ex.PW100/7. In the said
disclosure statement the names of other
accused persons had figured. Consequently
on the morning of 5/5/99 accused Alok
Khanna was arrested and he also made
disclosure statement before the police and
State Vs. Sidhartha Vashisht etc.page no.51
police also seized the Tata Sierra car
from him. For the first time the names of
accused persons were disclosed to the
police by Amardeep Singh Gill and Alok
Khanna on the night of 4/5/5-99. On
5/5/99 notice was served on the father of
accused Sidhartha Vashist @ Mannu Sharma
by PW87 Insp. Raman Lamba to produce the
accused. Consequently accused Sidhartha
Vashisht @ Mannu Sharma surrendered before
the police on 6/5/99 at Chandigarh. After
his arrest the police recorded his
disclosure statement. The police for the
first time had come to know from the
disclosure statement of accused Amardeep
Singh Gill @ Tony Gill & Alok Khanna about
the involvement of accused Sidhartha
Vashisht on the night of 4/5/-5-99 and
on 5/5/99 the notice was served on the
father of Sidhartha Vashisht @ Mannu
Sharma. On 6/5/99 in response to the said
notice accused Sidhartha Vashisht @ Mannu
Sharma surrendered before the police. The
accused at no point of time had absconded
from his house and he surrendered before
the police immediately after notice was
served on the father of the accused. So
the argument of the ld. Special PP that
State Vs. Sidhartha Vashisht etc.page no.52
the accused had absconded immediately
after the commission of crime has no basis
and it does not stand proved on record
that the accused had absconded after the
commission of crime and was evading
arrest.
135. The counsel for accused has
further submitted that the weapon of
offence i.e. Pistol used in the commission
of crime has not been recovered from
accused Sidhartha Vashisht @ Mannu Sharma.
The accused Mannu Sharma was arrested on
6/5/99. His police remand was obtained
from the court upto 12/5/99 and thereafter
it was got extended to 17/5/99 but despite
obtaining remand upto 17/5/99 the police
failed to get recovered the pistol from
accused Sidhartha Vashisht @ Mannu Sharma
which was used in the commission of
offence. The police got the police remand
preponed to 15/5/99 as they failed to get
the arm recovered from him. So a very
important link in the story of prosecution
is missing as the arm i.e. Pistol could
not be recovered from accused Mannu Sharma
which could have connected him with the
commission of crime. Accused persons are,
therefore, liable to be acquitted on this
State Vs. Sidhartha Vashisht etc.page no.53
ground.
136. Counsel for accused has further
submitted that even PW2 Shyan Munshi has
deposed before the court that two persons
had fired shots at the time of incident
from two different pistols. One person
had fired a shot in the roof while the
other person fired a shot at Jessica Lal.
He has denied that the accused Sidhartha
Vashisht @ Mannu Sharma has fired both the
shots one in the roof and another at
Jessica Lal. The theory put forward by
PW2 Shyan Munshi that two persons had
fired from two different weapons stands
corroborated from the evidence of
Ballistic Experts. The prosecution had
sent two fired cartridges recovered from
the spot to CFSL New Delhi and the CFSL
New Delhi had opined that both the fired
cartridges were different in size and they
were having different characteristics and
from these characteristics they opined
that these two cartridges were fired from
two different weapons. The prosecution
then sent these two cartridges to FSL
Jaipur and even the Ballistic expert at
Jaipur also opined that both these
cartridge were of different size and they
State Vs. Sidhartha Vashisht etc.page no.54
were having different characteristics and
these two cartridges were fired from two
different weapons. So both the FSL
reports support the version given by PW2
Shyan Munshi that two persons had fired
the shot from two different arms. The
story of the prosecution that one person
had fired two shots stands falsified. The
CFSL New Delhi Ballistic expert report is
Ex.PW89/DB whereas the FSL Jaipur
Ballistic Expert report is Ex.PW95/2.
137. Counsel for accused has further
submitted that PW2 Shyan Munshi has stated
that SI Sharad Kumar had come to him with
15 photographs and he was asked to
identify the accused persons from these
photographs who had come to Tamarind Cafe
on the date of occurrence and also about
the accused who had fired a shot at
Jessica Lal but he had not identified
those photographs to be that of accused
persons as these photographs were not of
those accused persons who had come to
Tamarind Cafe, on the night of occurrence.
138. Counsel for accused has further
submitted that PW2 Shyan Munshi has stated
that he can neither speak Hindi nor he
knows how to write in Hindi. He had made
State Vs. Sidhartha Vashisht etc.page no.55
statement to the police only in English
but the police had translated his
statement into Hindi and same was not read
over to him before he signed the same and
he signed his statement in good faith.
PW2 Shyan Munshi has stated before the
court that he and Jessica Lal were not
serving liquor at the said party on
29/4/99. Even PW23 Rouble Dunglay says
that Shyan Munshi always talked to him in
English as Shyan Munshi did not know
Hindi.
139. The counsel for accused has
further submitted that the police had
decided in the morning of 30/4/99 to frame
accused Sidhartha Vashisht @ Mannu Sharma
in this case. PW101 Insp. Surender Kumar
Sharma has deposed before the court that
on 30/4/99 in the morning he had received
information from the senior police
officers about the involvement of accused
Sidhartha Vashisht @ Mannu Sharma in this
case. He had also come to know that black
Tata Safari found at Tamarind Cafe
belonged to Sidhartha Vashisht @ Mannu
Sharma. So he had sent SI Pankaj Malik to
Chandigarh on 30/4/99 to secure the Tata
Safari and to arrest accused Sidhartha
State Vs. Sidhartha Vashisht etc.page no.56
Vashisht @ Mannu Sharma in this case which
means that on 30/4/99 itself police had
taken a decision to secure the vehicle
black Tata Safari and also to arrest the
accused Sidhartha Vashisht @ Mannu Sharma
in this case which means that on 30/4/99
itself police had taken a decision to
frame the accused Sidhartha Vashisht @
Mannu Sharma in this case. Though on
30/4/99 there was no evidence available
with the police against accused Sidhartha
Vashisht @ Mannu Sharma at all but PW101
Insp. Surender Kumar Sharma had been
instructed by senior police officers to
frame the accused Sidhartha Vashisht @
Mannu Sharma in this case which is clear
from his evidence before the court.
140. Counsel for accused has further
submitted that the presence of PW30 Delhi
Home Guard Sharwan Kumar at the spot on
the night of 29-30/4/99 is doubtful
because he never went with the SHO PW101
Insp. Surinder Kumar Sharma. It is
recorded in DD no.40A that at 2.20am the
Delhi Home Guard Sharwan Kumar leaves the
police station along with the DD to give
the copy of DD to SI Rishi Pal who was
present at village Dera which is 12 km
State Vs. Sidhartha Vashisht etc.page no.57
away from the police station. So as per
DD no.40A this witness PW30 Delhi Home
Guard Sharwan Kumar left the police
station at 2.20am for village Dera along
with copy of DD. Whereas PW101 has stated
that he took Sharwan Kumar Delhi Home
Guard along with him in his Gypsy at
2.25am to Qutub Colonnade as he was
available at the gate of Police station.
The version of PW101 stands contradicted
with the contents of DD no.40A.
141. Ld. Counsel for the accused has
further submitted that PW100 SI Sunil
Kumar has deposed before the court that PW
101 Insp. Surender Sharma main IO met him
at 3.15pm on 30/4/99 and informed him that
the vehicle no.CH-01-W-6535 which was used
in the commission of crime by accused
Mannu Sharma had been found by the police
in Karnal and they had taken possession of
the said vehicle in Karnal. So from the
evidence of PW 100 Sunil Kumar it has
become clear that vehicle no.CH-01-W-6535
was seized by the police on 30/4/99 itself
in Karnal and the story put forward by
the police that the vehicle was seized at
NTPC colony at Noida has been concocted
and introduced by the police. The police
has also falsely introduced the false
story of recovery of one live cartridge of
.22 bore from the Tata Safari at Noida.
Once this vehicle has already been seized
by the police at Karnal there is no
question of the same being again seized by
the UP police at NTPC chowk Noida. It
State Vs. Sidhartha Vashisht etc.page no.58
appears that after seizing the vehicle at
Karnal the Delhi police in connivance with
the UP Noida police got this vehicle
seized by Noida police in order to show
that the said vehicle was seized by Noida
police and not by Delhi police at Karnal
on 30/4/99.
142. Ld. Counsel for accused has
further submitted that there are 5
witnesses examined on the point of parking
of black Tata Safari and about its
presence at Qutub Colonnade at the time of
incident and its removal from Qutub
Colonnade by the accused persons after the
incident. These 5 witnesses are PW78 SI
Sharad Kumar, PW83 Devi Singh, PW100 S.I.
Sunil Kumar, PW101 Insp. Surender Sharma
and PW30 Delhi Home Guard Sharwan Kumar.
He has further pointed out that PW78
Sharad Kumar has deposed before the court
that his statement u/s 161 Cr.PC was
recorded by the IO on 30/4/99 after the
sunset at the police station. In his
statement u/s 161 Cr.PC he has nowhere
stated about the presence of Black Tata
Safari at the spot i.e. Qutub Colonnade
nor he has stated about its removal by the
accused persons from Qutub Colonnade in
State Vs. Sidhartha Vashisht etc.page no.59
his statement recorded u/s 161 Cr.PC. He
has deposed for the first time before the
court about these facts which is an
improvement. He has further pointed out
that PW83 Devi Singh has deposed before
the court that his statement was recorded
by the police u/s 161 Cr.PC but in the
said statement he has nowhere stated about
the presence of Black Tata Safari at the
spot i.e. Qutub Colonnade nor he says
about the removal of Black Tata Safari
from the spot by the accused. He has
stated for the first time in the court
which is an improvement made by him.
Similarly PW100 SI Sunil Kumar has
deposed before the court that when he went
to the spot he asked SI Sharad Kumar about
the removal of Black Tata Safari by the
accused persons from the spot but SI
Sharad Kumar did not know about this fact
Since SI Sharad Kumar who had been present
at the spot at the relevant time had no
knowledge about the presence of Black Tata
Safari at the spot i.e. Qutub Colonnade
nor he has stated about its removal by the
accused persons from Qutub Colonnade in
his statement recorded u/s 161 Cr.PC. He
has deposed for the first time before the
State Vs. Sidhartha Vashisht etc.page no.60
court about these facts which is an
improvement. He has further pointed out
that PW8 Devi Singh has deposed before
the court that his statement was recorded
by the police u/s 161 Cr.PC but in the
said statement he has nowhere stated about
the presence of Black Tata Safari at the
spot i.e at Qutub Colonnade nor he says
about the removal of black Tata Safari
from the spot by the accused persons. He
has stated for the first time in the court
which is an improvement made by the
witness. Similarly PW100 has deposed
before the court that when he went to the
spot he asked SI Sharad Kumar about the
removal of Black Tata Safari by the
accused persons from the spot but SI
Sharad Kumar did not know about this fact.
Since SI Sharad Kumar who had been present
at the spot at the relevant time had no
knowledge about the presence of Black Tata
Safari at the spot it shows that neither
the Black Tata Safari was present at the
spot nor the same was removed by the
accused persons as alleged. PW100 SI
Sunil Kumar in the cross examination has
stated that he had written about the Black
Tata Safari in the case diary. He opened
State Vs. Sidhartha Vashisht etc.page no.61
the case diary in the court and after
looking at the first page he closed the
same and he told the court that he does
not want to see the case diary which
further confirms that there was no mention
of Black Tata Safari even in the case
diary as alleged by SI Sunil Kumar so
there was no question of presence of Black
Tata Safari at the spot or its removal by
the accused persons.
143. It is further submitted by ld.
Counsel for the accused that PW30 Delhi
Home Guard Sharwan Kumar has deposed
before the court that he had given the
information about the presence of Black
Tata Safari and its removal by accused
persons to one Head Constable who was
present at Qutub Colonnade at 3.40-3.45am.
He does not remember if he has met SI
Sharad Kumar at Qutub Colonnade while SI
Sharad Kumar claimed that he reached the
spot in the morning on the date of
incident but PW30 Delhi Homeguard Sharwan
Kumar does not endorse his presence at the
spot which further shows that PW30 Delhi
Home Guard Sharwan Kumar was not present
at the spot at that time.
144. Ld. Counsel for accused has
State Vs. Sidhartha Vashisht etc.page no.62
further submitted that PW101 Insp.
Surender Sharma has deposed before the
court that when he came back at the spot
he found SI Sharad, SI Sunil Kumar and
Delhi Home guard PW30 Sharwan Kumar at the
spot and all of them told him about the
removal of Black Tata Safari from the spot
by one Sikh gentleman and one another
person.
145. Ld. Counsel for accused has
further submitted that PW47 Jitender Raj
has deposed before the court that he was
working as a Manager at Qutub Colonnade.
He was present in his room at the time of
incident and he helped Bina Ramani in
removing the injured Jessica Lal to the
Ashlok hospital. He came back from the
Ashlok hospital to Qutub Colonnade at
3.15am in the morning and at that time he
only found one guard of Qutub Colonnade
and one police gypsy. He did not find any
police official guarding the spot. He has
further deposed that there was no black
Tata Safari present at Qutub Colonnade at
that time, nor he has stated about the
removal of Black Tata Safari by two
persons from the spot.
State Vs. Sidhartha Vashisht etc.page no.63
146. Ld. Counsel for accused has
further submitted that PW30 Delhi Home
guard Sharwan Kumar has been introduced as
a false witness in this case. In the
cross examination PW30 has admitted that
he is 27 years old. He was not eligible to
become a constable as he was not
Matriculate and for these two reasons he
was not eligible to be appointed as a
constable.
147. Ld. Counsel for accused has
further submitted that for becoming a
constable one should be minimum
Matriculate and his age should be between
18 to 21 years. He has also stated in
cross examination that he has never
applied for appointment as a constable in
the Delhi police. He was made a constable
in Delhi police after the registration of
this case and on the recommendation of the
IO of this case. It is further submitted
that PW30 Delhi Home Guard Sharwan Kumar
was made constable out of the way although
he was not eligible to become a constable
on account of his being overage and his
not being even matriculate but still he
was made a constable as he has been made
an important witness in this case by the
State Vs. Sidhartha Vashisht etc.page no.64
Delhi police.
148. Ld. Counsel for accused has
further submitted that in view of the
foregoing discussions it has become
evident that the story of presence of
Black Tata Safari at the spot was
introduced by the police and the story of
removal of Black Tata Safari by the
accused persons has also been introduced
by the police in order to falsely
implicate the accused persons in this
case.
149. Ld. Counsel for accused has
further submitted that PW86 Jagan Nath Jha
was working as a waiter at Qutub Colonnade
restaurant on the night of incident. He
has deposed before the court that he was
working as a waiter at the time of
incident. He had not seen any Black Tata
Safari at Qutub Colonnade on the night of
29-30/4/99. There is no mention of Black
Tata Safari even in his statement u/s 161
Cr.PC. He has further deposed that on the
night of 29/4/99 there was no police
official available on duty at Qutub
Colonnade and there was only guard of the
restaurant who was on duty at the spot.
150. Ld. Counsel for accused has
State Vs. Sidhartha Vashisht etc.page no.65
further submitted that it has come in the
cross examination of SI B.D.Dubey PW91 of
PS Sector 24 Noida that on 2.5.99 on
receipt of information at Police station
at Sector 24, Noida UP on telephone that
the vehicle involved in Jessica Lal murder
case was parked at NTPC township. He went
there at about 6.30pm and seized the
vehicle. He also conducted the search of
the black Tata Safari which was parked
there and he found one live cartridge of
.22 bore. In the cross examination he has
categorically stated that he did not find
any broken pieces of glass inside the
vehicle and there is no mention of the
broken pieces of glass in the seizure memo
Ex.PW101/1 vide which he has seized the
articles lying in the black Tata Safari.
He has further deposed that when he
reached back to the police station Noida
he found police of PS Mehrauli along with
media team present at the police station.
He joined the police officials of PS
Mehrauli in the investigation and recorded
their statement. Whereas PW 101 Insp.
Surender Sharma has deposed before the
court that on 2.5.99 he came to know from
senior police officers that Black
State Vs. Sidhartha Vashisht etc.page no.66
Tata Safari wanted in this case had been
seized by the police of Sector 24, Noida
UP. On 3/5/99 he went to Noida and after
getting the orders from the Judicial
Magistrate Ghaziabad he was handed over
the articles seized by the police along
with Tata Safari which also included
broken glass pieces which were found in
Black Tata Safari whereas SI B.D.Dubey has
stated that he had never handed over Black
Tata Safari alongwith any broken pieces
of glass seized in the car to Mehrauli
police on 3/5/99 but he handed over the
vehicle and articles only on 2/5/99. He
has categorically denied about handing
over of the broken pieces of glass to
police of PS Mehrauli. He has
categorically stated that no pieces of
glass were recovered from Black Tata
Safari nor the same were handed over by SI
Dubey to PW101. The broken glass pieces
have been planted by the police in order
to falsely implicate the accused in this
case. He has also drawn my attention to
the application Ex.PW101/1 which was moved
by Insp. Surender Sharma before the
Magistrate Gaziabad and in that
application he has only made request to
State Vs. Sidhartha Vashisht etc.page no.67
hand over the Tata Safari vehicle seized
by the UP police. The application is made
on 3/5/99 and ld. Magistrate has issued
orders for releasing only Black Tata
Safari No.CH-01-W-6535 to Insp. Surender
Sharma and no other articles have been
ordered to be released in the said order
dated 3/5/99. Since the Judicial
Magistrate at Gaziabad had only ordered
for the release of Black Tata Safari to
Insp. Surender Sharma PW101 so the police
of PS Sector 24 Noida was directed only to
release Black Tata Safari to the said Insp
and no other article was handed over to
the IO as deposed by him in this court
much less the pieces of glass as alleged
by him. Even PW91 SI B.D. Dubey of PS
Sector 24, Noida has no where stated that
he had recovered broken pieces of glass
from Black Tata Safari, so the question
of handing over of Black Tata Safari along
with the broken pieces of glass does not
arise. Nor the pieces of glass are
mentioned in the seizure memo Ex.PW74/A
vide which articles were recovered and
seized by SI BD Dubey from the Tata
Safari. So this story of taking into
possession broken pieces of glass by Insp.
State Vs. Sidhartha Vashisht etc.page no.68
S.K. Sharma from the police of Noida has
been concocted and planted in order to
create false evidence against the accused
persons in this case and the same cannot
be believed to be true and trustworthy.
151. Ld. Counsel for accused has
further submitted that PW100 SI Sunil
Kumar had conducted inquest
proceedings on 30/4/1999 but he has not
mentioned about the presence of Black Tata
Safari at the spot. PW100 has further
deposed that he had recorded the statement
of Delhi Home guard PW30 Sharwan Kumar as
soon as he reached the spot at about
4.30am about the removal of Black Tata
Safari from the spot. He has further
deposed that when he recorded the
statement of Delhi Home Guard PW30 Sharwan
Kumar the case was still u/s 307 IPC and
the information about the death of Jessica
Lal has not been received by him but the
perusal of the statement u/s 161 Cr.PC of
Home Guard PW30 Sharwan Kumar shows that
section 302/201 are mentioned on the top
of the statement recorded u/s 161 Cr.PC.
152. In the cross examination PW100
has also admitted that he had mentioned in
the case diary about the details of
State Vs. Sidhartha Vashisht etc.page no.69
presence of Black Tata Safari at the spot
and its removal by someone from there.
This witness was ordered to see the case
diary but after going through the first
page of case diary he closed the same by
saying that he does not want to see the
case diary. So it is evident that after
going through the case diary he finds that
there was no mention of removal of Black
Tata Safari from there so he has refused
to see the case diary. Even otherwise the
testimony of PW30 Delhi Home Guard Sharwan
Kumar is a purchased version as he has
been made constable in Delhi police
despite the fact that he was ineligible to
become a constable as he was over age and
was under qualified. PW30 Delhi Home Guard
Sharwan Kumar was recruited as a constable
against rules so that he will depose in
favour of Delhi Police and against the
accused persons. So the testimony of PW30
has been purchased by Delhi Police. His
testimony is not genuine and truthful
testimony.
153. Counsel for accused has further
stated that prosecution has also failed to
prove that accused Mannu Sharma and other
accused persons came to the spot in Black
State Vs. Sidhartha Vashisht etc.page no.70
Tata Safari bearing no.CH-01-W-6535. The
prosecution has also failed to prove that
this car was being used by accused Mannu
Sharma at the relevant time. The
prosecution examined PW48 Shanti Swaroop
who has deposed before the court that
Black Tata Safari belongs to M/s
Piccadilly Agro Industries Ltd. and this
car was alloted to Harvinder Chopra who
was working as Executive Director of the
company at the relevant time. PW101 Insp.
Surender Sharma has admitted in the cross
examination that he did not record
statement of any witness to the effect
that Mannu Sharma was using the Black Tata
Safari at the relevant time. None of the
prosecution witnesses has deposed before
the court that accused Mannu Sharma had
been using Black Tata Safari at the
relevant time or at the time of incident.
So the prosecution has failed to prove
that accused Mannu Sharma or any other
accused had come to the spot in Black Tata
Safari and there is no evidence to prove
about the removal of the same by the
accused persons from the spot.
154. The counsel for accused has
further submitted that prosecution has
State Vs. Sidhartha Vashisht etc.page no.71
alleged that accused Mannu Sharma had been
using mobile phone no.9811096893 in order
to contact the other accused persons after
the commission of crime but it has not
been proved on record that this mobile
phone belongs to Mannu Sharma nor any
witness has been produced to show that
this phone was being used by Mannu Sharma.
The only evidence against the accused is
disclosure statement of accused Mannu
Sharma wherein he has stated that he has
been using the aforesaid mobile phone.
PW101 Insp.Surender Sharma has stated that
the aforesaid mobile phone or its sim card
has not been recovered from accused Mannu
Sharma. Since the mobile phone and sim
card has not been recovered from accused
in this case nor any evidence has been
produced by the prosecution to prove that
this phone was being used by accused Mannu
Sharma so it is unsafe to say that accused
Mannu Sharma was using the said mobile
phone for contacting the other accused
persons from this mobile phone.
Prosecution has failed to connect the
mobile phone no.9811096893 with the
accused Mannu Sharma.
155. The prosecution has examined PW1
State Vs. Sidhartha Vashisht etc.page no.72
Deepak Bhojwani who claims that he was
present at the spot in the said party at
the time of incident but PW24 George
Mailhott has deposed before the court that
he had submitted a list of guests who had
attended the party on 29/4/99 at Tamarind
Cafe at Qutub Colonnade. The list
submitted by him to the police is
Ex.PW24/A. In the said list Ex.PW24/A the
name of Deepak Bhojwani does not find
mention at all. PW1 Deepak Bhojwani has
also deposed before the court that he had
been very friendly with Jessica Lal and
used to visit her house before her death
and he was acquainted with sisters and
parents of Jessica Lal deceased but PW
Sabrina Lal, who is sister of the deceased
Jessica Lal has categorically stated that
when she went to Ashlok hospital she met
few persons present there but she no where
mentioned the name of Deepak Bhojwani who
was present there. It shows that PW1
Deepak Bhojwani was not present at the
spot on that day although he claims that
he had gone to Ashlok hospital after the
injured was removed to the said hospital.
PW1 Deepak Bhojwani has further deposed
that from Ashlok hospital he went to
State Vs. Sidhartha Vashisht etc.page no.73
Apollo hospital. At Apollo hospital
he met the police and he gave the
description of the person who was involved
in the commission of crime to the police.
He has further deposed that after the
Doctor declared Jessica Lal as dead he
went to his house and before going to his
house he gave all the relevant information
to the police whereas PW100 SI Sunil Kumar
has deposed before the court that at
5.35am he got the DD regarding death of
Jessica Lal and he sent SI Sharad Kumar
and SI Rishi Pal to Apollo hospital. This
means that these two policemen must have
reached the Apollo hospital at about
7am.PW 78 SI Sharad Kumar has nowhere
deposed that he met Deepak Bhojwani at the
hospital or that Deepak Bhojwani told
anything about Mannu Sharma to him. PW29
Shahana Mukherjee has also deposed before
the court that she did not see the police
at the Apollo hospital although she met
police at Ashlok hospital. Similarly
Sabrina Lal PW73 has deposed that police
was not present at Apollo hospital
although she met police at Ashlok hospital
which shows that PW1 Deepak Bhojwani is
telling a lie when he says that he met the
State Vs. Sidhartha Vashisht etc.page no.74
police at Apollo hospital and had told the
police about the facts of the case and
about the description of the accused
persons. Since the police had reached
Apollo hospital only after 7am so the
question of meeting Deepak Bhojwani with
the police at the hospital is out of
question and the testimony of Deepak
Bhojwani seems to be unreliable and
untrustworthy. PW92 ACP Durga Prasad has
also deposed before the court that name of
Deepak Bhojwani was not found in the list
Ex.PW24/A but it occurred during
interrogation of some witnesses. The
police recorded the statement of PW Deepak
Bhojwani on 14/5/99 i.e. After 15 days of
the occurrence. Since this witness was
known to the family of deceased so he was
introduced later on as a false witness in
order to falsely implicate the accused
persons. It has come on record that PW1
Deepak Bhojwani has been summoned by the
police at the police station on 14/5/99
and on that day accused Mannu Sharma was
also on police remand and was present in
the police station. This accused was shown
to Deepak Bhojwani who was later on
introduced as a witness in this case.
State Vs. Sidhartha Vashisht etc.page no.75
Moreover the photographs of the accused
were published in the leading newspaper
dated 7/5/99 of Tribune so the conducting
of TIP of accused after the publication of
photographs in the newspaper is
meaningless. The police has also not
given any satisfactory explanation as to
why statement of PW1 Deepak Bhojwani was
recorded after 15 days of the occurrence.
PW1 Deepak Bhojwani has made several
improvements in the statement made before
the court so his statement cannot be
believed to be trustworthy. PW1 Deepak
Bhojwani has stated that he met accused
Mannu Sharma at 1am at Tamarind court and
in 15 minutes he heard about the firing
of the shots while this incident had taken
place after 2am. A leading question was
put to PW1 by Special PP if he can
identify 2-3 persons accompanying accused
Mannu Sharma and PW1 gave the names of
Tony Gill and Alok Khanna. This is an
improvement in his statement made by him
before the court over the statement made
to the police u/s 161 Cr.PC So the
evidence of PW1 is not trustworthy and
same is liable to be rejected.
156. Counsel for accused has further
State Vs. Sidhartha Vashisht etc.page no.76
submitted that PW6 Ms. Malini Ramani has
deposed that the person who had asked for
two drinks from her and Jessica Lal just
looks like Sidhartha Vashisht. This is no
identification in the eyes of law. In
the cross examination she has admitted
that she had seen accused Mannu Sharma in
the police station. She has also admitted
in the cross examination that photograph
of the accused Mannu Sharma was shown to
her between 1/5/99 to 5/5/99. If the
photograph of accused has been shown to
the accused before holding TIP of accused
then the conducting of TIP of accused
becomes meaningless. PW6 has also admitted
in cross examination that on 7/5/99 she
had visited the police station along with
her parents and the accused Mannu Sharma
was shown to her and to her parents at
the interrogation centre. So the refusal
to join the TIP by accused Mannu Sharma is
justified. She has further stated that
her statements were recorded on several
dates by police which were signed by her
but ld. Special PP has told the court that
there are only two statements of Malini
Ramani on the record and there is no
other statement on record.
State Vs. Sidhartha Vashisht etc.page no.77
157. Counsel for accused has further
submitted that PW20 Beena Ramani has
stated before the court that Jessica Lal
was standing along with some person when
she heard one shot and a moment later she
heard another shot being fired Shyan
Munshi came to her along with one more
person and told her that Jessica Lal had
been shot. She stopped the companion of
Shyan Munshi, she has pointed out that
accused Sidhartha Vashisht was some what
like that person. She has again deposed
that it does not satisfy her that
Sidhartha Vashisht is the same person
which means that Sidhartha Vashisht is not
the same person who was accompanying Shyan
Munshi whom she had stopped at that time.
If we read the statement of Beena Ramani
PW20 in between the lines it is clear that
she has categorically stated that
Sidhartha Vashisht is not the same person
who was accompanying Shyan Munshi. So she
has failed to identify accused Sidhartha
Vashisht as the accused in the court. She
has further deposed that she thinks that
Amardeep Gill, Alok Khanna and Vikas Yadav
were also with him. She has further
deposed that she was at the stairs of the
State Vs. Sidhartha Vashisht etc.page no.78
restaurant when she heard two shots and
she saw Jessica Lal falling on the ground.
So the evidence of PW20 Beena Ramani is of
no help to the prosecution.
158. Ld. Counsel for accused has
further submitted that PW24 George
Mailhott has deposed before the court that
he was present at Tamarind cafe when he
heard two shots upon which he entered the
Tamarind cafe and he saw Beena Ramani
chasing a person inside the restaurant.
He, thereafter went to the gate outside to
look for the police.
159. Counsel for accused has further
submitted that accused George Mailhott
, Beena Ramani and Malini Ramani were also
booked by the prosecution under the
Excise Act and a deal was struck between
the prosecution and the accused persons
that if they help them in the
investigation then the prosecution will
help them in getting a lenient view in the
Excise Act case against them. Examination
in chief of PW24 was started on
17/10/2001 and was concluded on
18/10/2001. Ld. SPP had filed an
application for early hearing and for pre-
poning the Excise Act case filed by them
State Vs. Sidhartha Vashisht etc.page no.79
against the aforesaid accused persons and
that case was fixed for 2/2/2002. This
application was heard by MM on 31/10/2001
and the case was preponed to 24/11/2001.
On 24/11/2001 the case was again
adjourned to 12/12/2001. On 12/12/2001
all the accused persons namely George
Mailhot, Malini Ramani and Bina Ramani
pleaded guilty and they were let off after
imposing a fine of Rs.200/- each on these
accused persons. On account of this deal
between accused persons and prosecution
all the three witnesses have deposed in
favour of the prosecution against the
accused persons and PW24 George Mailhott
has admitted in the cross examination that
excise case was pending against him and he
had asked his lawyer to get it preponed.
160. Counsel for accused has further
submitted that PW 24 George Mailhott was
not present at the time of this incident
and he has been examined by the
prosecution as a false witness. It is
stated that PW86 has deposed before the
court that George Mailhott had gone out of
Qutub Colonnade at 12.30 midnight on the
date of occurrence and came back to the
State Vs. Sidhartha Vashisht etc.page no.80
restaurant Qutub Colonnade after Jessica
Lal had been removed to the hospital. PW
46 Madan Kumar who was waiter in the
restaurant has also deposed that George
Mailhott left at 12.30 night and he did
not see George Mailhott thereafter at the
restaurant nor he saw George Mailhott
present at the time of this incident.
161. It is further submitted by ld.
Counsel for the accused that the
cartridges recovered from the spot of
crime were having a word 'c' on the cap of
each cartridge and the same was
manufactured by CCI company of USA whereas
the prosecution has proved that accused
Sidhartha Vashisht had purchased 25
cartridges of make KF from Sonu Gun house
Haryana on 4/2/99 at Ambala. These 25
rounds were manufactured at Kirki Factory
in India as KF was written on the cap of
the shell and KF stands for Kirki factory.
It has come in the evidence of Naveen
Chopra PW7 that all these rounds were made
in India and were manufactured in Kirki
factory. They have no authority to sell
cartridges which are foreign made. The
cartridges which were used in the
commission of crime were manufactured by
State Vs. Sidhartha Vashisht etc.page no.81
CCI company of USA. This fact has been
established by the CFSL expert namely PW95
Prem Sagar Minocha who was examined in the
court and he categorically stated that the
cartridges which were sent for analysis to
the CFSL were having mark 'C' on its cap
and these were manufactured by CCI company
of USA which means that cartridges which
were used in the commission of crime were
neither purchased by accused Sidhartha
Vashisht at any point of time nor were
used by him in the commission of crime in
this case.
162. It is further submitted by
counsel for the accused that PW87 Insp.
Raman Lamba has deposed before the court
that on 6/5/99 accused had handed over
the arms licence to him which was seized
vide memo Ex.PW80/B. This memo does not
bear the signatures of Harish Ghai
advocate who was present when the accused
was produced before the police and Mr.
Ghai even signed the arrest memo of
accused Sidhartha Vashisht which is
Ex,.PW80/A but the memo with regard to
seizure of arms licence has not been
signed by Mr.Ghai. PW87 has stated that
State Vs. Sidhartha Vashisht etc.page no.82
Harish Ghai had refused to sign the
seizure memo whereas PW80 SI Nirbhay Singh
has stated that only Insp. Raman Lamba can
explain as to why Harish Ghai had not
signed the seizure memo but he does not
remember anything. It is very evasive
reply given by PW87 and it shows that the
arm licence was never seized from accused
Sidhartha Vashisht as it does not bear the
signatures of Harish Ghai who was present
at the time of seizure of the same and the
same has been planted on the accused in
this case.
163. Ld. Counsel for accused has
further submitted that arms licence which
was seized by Insp. Raman Lamba had been
deposited along with other articles on
6/5/99 seized from accused Mannu Sharma
with the malkhana muharir of PS Mehrauli
but PW96 HC Chajju Ram Malkhana Muharir
has stated that Insp. Raman Lamba had
deposited with him on 6/5/99 only one
purse containing his photo, diary, video
cassette etc. but there is no mention of
deposit of arm licence in the malkhana
register having been deposited on 6/5/99
by Insp. Raman Lamba. This further proves
that no such arms licence was ever seized
State Vs. Sidhartha Vashisht etc.page no.83
by Insp. Raman Lamba on 6/5/99.
164. It is further submitted by ld.
Counsel for the accused that police has
failed to prove its case beyond reasonable
doubt and the accused persons. The
accused persons are liable to be
acquitted.
165. It is further submitted by ld.
Counsel for accused that PW94 SI Brijender
Singh has been examined by the police who
has deposed that he had taken Ashok Dutt
to the telephone booth and Ashok Dutt had
a talk to Ravinder Sudan @ Titoo at USA
and he made three telephone calls and had
a detailed conversation with him with
regard to the pistol which was handed over
to him by the accused Mannu Sharma which
was used in the commission of crime.
Accused Ravinder Sudan @ Titu told him
that the said pistol was with Shyam Sunder
Sharma but in cross examination this
witness has stated that he had not
verified as to whether the telephone
no.001-526-7751-236 was installed in the
name of Ravinder Sudan at USA or not. Nor
he had made enquiry about the other
telephone number bearing no.001-7184768403
about its ownership and about its
State Vs. Sidhartha Vashisht etc.page no.84
installation at the house of Ravinder
Sudan. So it has not been proved on record
that the telephone which was dialed from
India to America was in fact installed in
the name of Ravinder Sudan or not. In the
cross examination PW94 SI Brijender Singh
has further stated that there is no
documentary proof to show that the phone
of the person in America was that of
Ravinder Sudan @ Titu as the audio tape
was not sent for examination to CFSL to
prove that the said phone voice belonged
to Ravinder Sudan @ Titu. So it is not
proved on record that person called in
America was actually Ravinder Sudan or
not. PW57 Ashok Dutt who had dialed the
telephone at America has also turned
hostile and has stated that he never
dialed any telephone at America and he had
not talked with any Ravinder Sudan @ Titu.
166. It is further submitted by ld.
Counsel for the accused that there is not
even an iota of evidence against the
accused persons which can connect them
with the commission of crime. So the
accused persons are, therefore, liable to
be acquitted.
167. It is further submitted by ld.
State Vs. Sidhartha Vashisht etc.page no.85
Counsel for accused Vikas Yadav that there
is no force in the arguments advanced by
ld. Special PP that accused Vikas Yadav
had absconded immediately after the
commission of offence from the
jurisdiction of police. PW 27 Pratap
Malik has stated that accused Vikas Yadav
is one of the Directors in the company
namely Yadu Overseas Limited which has got
its registered office at Delhi and its
place of business is also in Imphal and
other North East states. Accused Vikas
Yadav is one of the Director of the
company and he had gone to Manipur Imphal
in connection with the business of the
company. When he came to know about his
involvement in this case he applied for
anticipatory bail in the court of law at
Imphal and he was granted anticipatory
bail by the said court. However on 26/5/99
the Gauhati High Court stayed the bail
order granted by the court at Imphal on
29/5/99. The accused Vikas Yadav came to
Delhi and he surrendered before the court
of MM New Delhi. Ld. Court of MM New Delhi
granted him bail in this case. On an
application moved by the prosecution, the
Hon'ble High Court of Delhi cancelled the
State Vs. Sidhartha Vashisht etc.page no.86
bail granted to accused Vikas Yadav on
7/7/99. On 7/7/99 itself accused Vikas
Yadav surrendered before court of Ld. MM
New Delhi. Thereafter a Special Leave
Petition was filed by the accused before
Hon'ble Supreme Court which was dismissed
on 13/8/99. However the Hon'ble Supreme
Court ordered him to apply for fresh bail
before Sessions Court. He approached the
Sessions Court and he was granted bail by
the Sessions Court thereafter. At no
point of time the accused has absconded
from the jurisdiction of the police and
the court. Rather he had applied for
anticipatory bail before the court of law
when he came to know about his involvement
in this case so the arguments of ld.
Special PP on this point is without any
basis.
168. Ld. Counsel for accused Vikas
Yadav has further submitted that PW20
Beena Ramani has deposed before the court
that she thinks accused Amardeep Singh
Gill, Alok Khanna and Vikas Yadav were
also present along with accused Sidhartha
Vashisht in the party on the night of
incident at the time of commission of
offence. But she is not sure about the
State Vs. Sidhartha Vashisht etc.page no.87
presence of all these three accused
persons. She has further deposed in the
cross examination that she had seen the
photographs of all the three accused
persons in the newspaper and in the
Television. Ld. Counsel for accused has
further submitted that this incident took
place on the night of 29/4/99 while PW
Beena Ramani identified accused Vikas
Yadav for the first time on 15.10.01 i.e.
after 2 and a half years. This
identification by PW20 of the accused
persons in the court after 2 and a half
years is no identification in the eyes of
law as nobody can remember the identity of
a person after 2 and a half years if one
had only a glimpse of those persons for a
very short period about 2 and a half years
back. Such an identification is bound to
be rejected.
169. Ld. Counsel for accused Vikas
Yadav has further submitted that PW30
Delhi Home Guard Sharwan Kumar has made
lot of improvements in his statement made
before the court.
170. Ld. Counsel has drawn my
attention towards the statement of PW30
State Vs. Sidhartha Vashisht etc.page no.88
Sharwan Kumar has deposed before the court
that he had told before the police that 3-
4 vehicles were standing on one side of
the road while one vehicle Black Tata
Safari was standing separately. This
portion was got confronted with his
statement u/s 161 Cr.PC wherein it was
not so recorded.
171. PW30 has further deposed
before the court that he had checked up
all the vehicles and they were found
locked, This portion was also got
confronted with his statement u/s 161
Cr.PC wherein it was not so recorded.
172. PW30 has further deposed before
the court that there was light at the
place where black Tata Safari was parked,
this portion was got confronted with his
statement u/s 161 Cr.PC wherein it was
not so recorded.
173. PW30 has further deposed before
the court that he had told the police that
he had joined the SHO at the gate of
police station, this portion was got
confronted with his statement u/s 161
Cr.PC wherein it was not so recorded.
174. PW30 has further deposed before
the court that he has told the police that
State Vs. Sidhartha Vashisht etc.page no.89
he was instructed by SHO that nobody
should remove any vehicle from there,
this portion was got confronted with his
statement u/s 161 Cr.PC wherein it was not
so recorded.
175. PW 30 has further deposed before
the court that he had stated before the
police that SHO had left the spot leaving
him at the spot, this portion was got
confronted with his statement u/s 161
Cr.PC wherein it was not so recorded.
176. PW30 has further deposed before
the court that he had stated before the
police that vehicle Tata Siera came slowly
and took a U-turn. This portion was got
confronted with his statement u/s 161
Cr.PC wherein it was not so recorded.
177. PW30 has further deposed before
the court that he had told the police that
Tata Safari was attempted to be opened
with a key, this portion was got
confronted with his statement u/s 161
Cr.PC wherein the word key was not
recorded.
178. PW30 has further deposed before
the court that he had told the police
that he had asked that person not to open
the black Tata Safari but he opened it
State Vs. Sidhartha Vashisht etc.page no.90
forcibly and entered the vehicle,this
portion was got confronted with his
statement u/s 161 Cr.PC wherein it was
not so recorded.
179. PW30 has further deposed before
the court that he had told the police
that the photographs of accused Vikas
Yadav and other accused persons had
appeared in print media as well as visual
media. This portion was got confronted
with his statement u/s 161 Cr.PC wherein
it was not so recorded.
180. PW30 has further deposed before
the court that he had told the police
that he does not know how many police
officers were present inside Qutub
Colonnade at that time, this portion was
got confronted with his statement u/s 161
Cr.PC wherein it was not so recorded.
181. PW30 has further deposed before
the court that he had told the police that
at the time of removal of Black Tata
Safari from the spot one Head Constable
was present there but he does not know the
name of that Head Constable nor does he
know from which police station he had
come, this portion was got confronted
with his statement u/s 161 Cr.PC wherein
State Vs. Sidhartha Vashisht etc.page no.91
it was not so recorded.
182. PW30 has further deposed before
the court that he had told the police
that he does not know if actually glass of
Black Tata Safari was broken or not. He
had not handed over the danda used by him
which he struck on the window pane of
Black Tata Safari to the police. This
danda was a very important piece of
evidence and IO should have seized the
same and sent it to CFSL to prove that
this danda was used in striking on the
window pane of Black Tata Safari, this
portion was got confronted with his
statement u/s 161 Cr.PC wherein it was not
so recorded.
183. PW30 has further deposed before
the court that he had told the police that
when he was appointed as a constable in
the Delhi police no advertisement had
appeared in any newspaper. He has also
admitted that he was not eligible to
become a constable. He was under qualified
and overage. So the evidence of this
witness has been purchased by Delhi Police
in order to falsely implicate the accused
persons in this case.
184. Ld. Counsel for accused Vikas
State Vs. Sidhartha Vashisht etc.page no.92
Yadav has further submitted that TIP of
accused Vikas Yadav was not got conducted
by the prosecution. However PW30 Home
guard Sharwan Kumar has submitted that on
24/5/99 he had picked up the photographs
of accused Vikas Yadav, Amardeep Singh
Gill and Alok Khanna from the photographs
shown to him by the IO. This is no
identification in the eyes of law.
185. Counsel for accused has further
stated that PW90 C.K.Jain expert CFSL New
Delhi has been examined and he has deposed
before the court in his cross examination
that he had not received glass pieces for
conducting examination of the same.
Monogram S2 and S1 are of the same
company. He has not examined the vehicle
from where the glass pieces have been
recovered, he cannot say from which
vehicle the glass pieces have been taken.
So it has not been proved on record that
glass pieces are of the said Black Tata
Safari.
186. Counsel for accused has further
submitted that no chance prints were
lifted from Black Tata Safari by PW91 SI
BD Dubey. PW91 has categorically stated
that he has not lifted any chance prints
State Vs. Sidhartha Vashisht etc.page no.93
from Black Tata Safari seized by him
although he has admitted that he had come
to know that this vehicle was involved in
the murder of Jessica Lal. Had he seized
the chance prints from Black Tata Safari
this would have been the best evidence
available with the police to fix the
accused persons in this case but they
deliberately did not lift the chance
prints from the vehicle because they knew
that this vehicle was not used by the
accused persons in the commission of
offence.
187. Counsel for accused Vikas Yadav
has further submitted that prosecution
has examined PW72 on the point of
absconsion of accused Vikas Yadav from his
house but PW72 Lal Singh who is Deputy
Manager in Sariska Palace hotel has
categorically stated that accused Vikas
Yadav had never stayed in Sariska Palace
hotel on 9th and 10th May 1999. Similarly
PW77 Gajender Singh has also deposed
before the court that Vikas Yadav had
never stayed in Sariska Palace Hotel. Both
these witnesses have turned hostile and
have not supported the case of
prosecution. Similarly PW54 Varun Shah
State Vs. Sidhartha Vashisht etc.page no.94
has also categorically stated that he was
working as a Manager at Shakti Resort and
one Suresh Shekhar had visited the resort
on 10/5/99. He has denied that accused
Vikas Yadav had stayed at Shakti resort on
the said day.
188. Counsel for accused has further
submitted that PW81 Insp.SS Gill who is
part IO in this case has only deposed
against the accused Vikas Yadav that he
stayed at Shakti Tourist complex on
10/5/99 but he was not able to collect any
cogent evidence in this regard.
189. Counsel for accused has further
submitted that PW100 SI Sunil Kumar has
deposed that he had not put any barricade
near the Qutub Colonnade so that the
vehicle could be checked and stopped while
leaving Qutub Colonnade. He has also
stated that accused Vikas Yadav was
interrogated at PS Mehrauli and he had not
been taken to any interrogation center at
Anti terrorist center at Lodhi Colony
whereas PW101 Surender Kumar Sharma has
stated that accused Vikas Yadav was taken
to interrogation center at Lodhi Colony.
This is a very serious contradiction which
has come on record with regard to the
State Vs. Sidhartha Vashisht etc.page no.95
place of interrogation of the accused
Vikas Yadav.
190. Ld. Counsel for accused has
further submitted that PW101 Insp.
Surender Kumar Sharma IO has not seized
the lathi which was used by PW30 Delhi
Home Guard, Sharwan Kumar with which he
had broken the window pane of Black Tata
Safari.
191. Ld. Counsel for accused has
further submitted that PW101 Surender
Kumar Sharma claims that he had sent a
message about Black Tata Safari having
been taken away by two persons to PCR
through Duty officer but no such message
has been sent to the PCR as is apparent
from the evidence.
192. Ld counsel for accused has
further submitted that PW101 has not
collected any record regarding flashing of
message of Black Tata Safari having been
taken away by two persons. However, PW101
has stated that a message was flashed
about Black Tata Safari only giving the
registration number in the said DD entry
vide Entry no.101/DK1 but this entry has
State Vs. Sidhartha Vashisht etc.page no.96
not been proved by any person in whose
handwriting the entry was made and in
which DD register it was made.
193. Ld counsel for accused has
further submitted that PW101 has admitted
that he did not record statement of any
witness to the effect as to who had
brought Black Tata Safari to the Qutub
Colonnade. So it has not been proved on
record that accused persons had brought
Black Tata Safari at Qutub Colonnade
194. Ld counsel for accused has
further submitted that PW13 ASI Kartar
Singh from PS Mehrauli has been examined
and he has categorically stated that there
is no reference of breaking of side glass
of Black Tata Safari from 2.25am to 8am
in any of the DD entries as per record. He
had also stated that there is no DD entry
regarding removal of Black Tata Safari in
any Daily diary register upto 8am. There
is no reference of any Sardarjee or any
mona admi removing the Tata Safari in the
Daily diary register. So all these facts
regarding presence of Black Tata Safari,
regarding breaking of window pane and
regarding removal of Black Tata Safari
State Vs. Sidhartha Vashisht etc.page no.97
have been introduced by the IO in order to
falsely implicate the accused persons in
this case.
195. Ld counsel for accused Raja
Chopra has submitted that charge u/s 212
IPC for harbouring the accused and for
providing the vehicle to the accused
persons was framed against this accused
but all the three witnesses examined by
the police namely PW 52 Chander Prakash,
PW69 Rakesh Atri and PW71 Harminder Singh
have turned hostile and have not supported
the case of the prosecution. So the charge
against accused Raja Chopra does not stand
proved by the prosecution. PW71 Harminder
Singh has categorically stated that he was
working at Petrol pump and no vehicle had
come to take petrol on the relevant day
nor any vehicle had broken down at the
petrol pump. So the charge against
the accused Raja Chopra has not been
proved by the prosecution.
196. Ld. counsel for accused Amardeep
Singh Gill @ Tony Gill and Alok Khanna has
submitted that they were working as
Manager at Cocacola factory at the
relevant time. The only witness who could
State Vs. Sidhartha Vashisht etc.page no.98
have deposed anything against accused Alok
Khanna was PW Dinesh Kumar but he was not
produced by the prosecution in the court
so the charge framed against Alok Khanna
has not been proved on record by the
prosecution.
197. Ld counsel for accused has
further submitted that accused Alok Khanna
and accused Sidhartha Vashisht were not
even known to each other prior to the date
of occurrence. He has been implicated in
this case only because he was working
along with accused Amardeep Singh Gill as
Manager at Coca Cola company.
198. Ld counsel for accused has
further submitted that PW1 Deepak Bhojwani
has stated in his examination in chief
before the court that accused Alok Khanna
had accompanied accused Tony Gill at the
place of occurrence. In his cross
examination he states that he does not
remember if he had told the police that he
would be able to identify the person who
had accompanied Tony Gill at the spot.
This portion of the statement was got
confronted with his statement u/s 161
Cr.PC wherein it was not so recorded. So
PW1 has made statement in the court by
State Vs. Sidhartha Vashisht etc.page no.99
saying for the first time that accused
Alok Khanna was accompanying accused Tony
Gill at the relevant time. This statement
has no value in the eyes of law and this
statement is bound to be rejected.
199. Ld counsel for accused has
further submitted that car Tata Siera used
by the accused persons for going to the
spot has not been connected with the
accused Alok Khanna as no car number of
Tata Sierra has been given by any
witness. So this evidence of prosecution
that he had provided Tata Sierra car to
the accused persons Vikas Yadav and Tony
Gill for going to the spot also does not
stand proved.
200. Ld. counsel for accused has
further submitted that even if it is
presumed for the sake of arguments that
accused Alok Khanna was present in the
party still he is not connected with the
commission of crime as no overtact is
shown to have been performed by accused
Alok Khanna in the commission of offence
nor any charge has been framed in this
regard against the accused.
201. Ld. counsel for accused has
State Vs. Sidhartha Vashisht etc.page no.100
further submitted that conduct of the
accused Alok Khanna also shows that
accused had not run away from the
jurisdiction of police. When police
visited his house he was available at his
house. It also proves that accused is not
involved in the commission of crime at
all.
202. Ld. counsel for accused has
further submitted that even otherwise the
witnesses examined by the prosecution are
highly interested witnesses.
203. PW1 Deepak Bhojwani is a highly
interested witness as he has stated before
the court that Jessica Lal was friendly
with him for 5-6 years and he went to the
house of Jessica Lal on 30/4/99 and on
1/5/99 to pay his condolences. He has
been introduced as a witness by the
prosecution because his name does not
figure in the FIR Ex.Pw2/A His name is
also not mentioned in the list of guests
ExPW24/A given by George Mailhott. This
list contained the names of those persons
who had attended the Thursday party on the
night of occurrence. Nor his name has been
mentioned in the MLC of deceased Jessica
Lal. This witness claims that he was very
State Vs. Sidhartha Vashisht etc.page no.101
close to Jessica Lal then he should have
lifted the injured to the car for taking
her to the hospital which should have
proved that he was present at the spot at
the time of occurrence. PW Beena Ramani,
Malini Ramani and George Mailhott who were
known to this witness have nowhere stated
in their statements that PW1 was also
present at the party although he was
known to them.
204. Ld. counsel for accused has
further submitted that PW20 Beena Ramani
is also a highly interested witness. She
has made substantial improvements in her
statement made by her in the court over
the statement made by her before the
police. She has deposed that Jessica Lal
was friend of her daughter Malini Ramani
and used to help her daughter at the party
organised at Qutub Colonnade and that
Jessica Lal was helping her daughter
Malini Ramani on that night in the party.
205. Ld counsel for accused has
further submitted that PW George Mailhott
has stated that he cannot identify
Sardarjee who came along with accused
persons at Qutub Colonnade because he had
State Vs. Sidhartha Vashisht etc.page no.102
seen him only for a short duration. Even
if Amardeep Singh Gill and Alok Khanna
were present at the spot at Tamarind Cafe
on the night of occurrence but there is no
allegation that they had entered into a
conspiracy to murder Jessica Lal nor any
such charge has been framed against them.
Their presence simplicitor at the spot is
of no help to the prosecution. Nor does it
prove that they are involved in the
commission of crime in any manner.
206. Ld. counsel for accused has
further submitted that PW1 has made
substantial improvement in the statement
made by him in the court over the
statement made by him before the police.
In the court he has stated that one tall
Sikh gentleman behind Mannu Sharma told
him something. This portion was got
confronted with his statement recorded u/s
161 Cr.PC wherein it was not so recorded
by the police. He has further deposed
that he can identify 2-3 friends of Mannu
Sharma with whom Tony Gill and Mannu
Sharma had gone, this portion of the
statement was got confronted with his
statement recorded u/s 161 Cr.PC wherein
it was not so recorded by the police. He
State Vs. Sidhartha Vashisht etc.page no.103
has further deposed that he does not
remember if he had told the police that he
will be able to identify those persons who
were accompanying Mannu Sharma. This
portion was got confronted with his
statement recorded u/s 161 Cr.PC wherein
it was not so recorded by the police. PW1
has made substantial improvements in his
statement made before the court and there
are very serious omissions and
contradictions in his statement made
before the court. Statement of this
witness may be rejected outright.
207. Ld. Counsel for accused has
further submitted that PW30 Delhi Home
Guard Sharwan Kumar is also a highly
interested witness. His statement has to
be read with great caution. He has deposed
before the court that one Sardar was
driving Tata Sierra but he has not given
any description or features of that
sardar. There was no light inside the
car. It is only when there is light inside
the car that someone from outside can see
the driver of the car at 3am in the night
when the car entered the Qutub Colonnade.
Which means that PW30 had not seen the
inmates of the car and it was impossible
State Vs. Sidhartha Vashisht etc.page no.104
to identify the driver of the car who was
sitting inside the car. So PW30 Delhi Home
Guard Sharwan Kumar being an interested
witness has identified that Sikh Gentleman
Tony Gill at the instance of IO as there
was no occasion for him to see the driver
of the vehicle who was sitting inside the
car.
208. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has deposed before the court
that he had given the description of Vikas
Yadav and Amardeep Singh Gill in his
statement before the police. This portion
was got confronted with his statement u/s
161 Cr.PC wherein it was not so mentioned
there.
209. Counsel for accused has
further submitted that PW30 Delhi Home
Guard Sharwan Kumar has stated before the
court that he cannot tell the number of
other vehicles which were parked there. He
does not remember if he had told the IO
that 3-4 vehicle were standing on one side
and one Black Tata Safari was standing on
the other side, this portion was got
confronted with his statement u/s 161
State Vs. Sidhartha Vashisht etc.page no.105
Cr.PC wherein it does not find mention
there.
210. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has stated before the court
that there was light at the place where
vehicle was parked, this portion was got
confronted with his statement u/s 161
Cr.PC wherein it was not so mentioned
there.
211. Counsel for accused has further
submitted that no light or light pole has
been shown in the site plan Ex.PW21/A or
in the rough site plan Ex.PW 100/2 which
further shows that there was no light at
the place where car was parked and this
witness has tried to make improvements in
his statement.
212. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has stated before the court
that he was told by the SHO to remain at
the spot when the SHO left the spot, this
portion was got confronted with his
statement u/s 161 Cr.PC wherein it was
not so mentioned there.
213. Counsel for accused has further
submitted that PW30 Delhi Home Guard
State Vs. Sidhartha Vashisht etc.page no.106
Sharwan Kumar has further deposed before
the court that Tata Sierra took a U turn
and then came near him, this portion was
got confronted with his statement u/s 161
Cr.PC wherein it was not so mentioned
there.
214. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has stated before the court
that Black Tata Safari was attempted to be
opened with a key, this portion was
confronted with his statement u/s 161
Cr.PC where the word key was not
mentioned there.
215. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has stated before the court
that he has started his duty on the side
of Black Tata Safari, this portion was got
confronted with his statement u/s 161
Cr.PC wherein it was not so mentioned
there.
216. Counsel for accused has further
submitted that PW30 Delhi Home Guard
Sharwan Kumar has stated before the court
that he had checked all the cars which
were parked there and all the cars were
State Vs. Sidhartha Vashisht etc.page no.107
locked, this portion was confronted with
his statement u/s 161 Cr.PC where it was
not so mentioned there.
217. Counsel for accused has further
submitted that it shows that PW30 Delhi
Home Guard Sharwan Kumar has made
substantial improvements in his statement
when he deposed before the court and all
these improvements were not mentioned in
his statement u/s 161 Cr.PC which shows
that he is totally a false witness and he
has made statement in the court at the
instance of IO in order to falsely
implicate the accused persons.
218. Counsel for accused has further
submitted that Smt. Beena Ramani PW20 and
PW24 George Mailhot were booked by the
police in the Excise Act. An application
was moved by two accused persons in the
court of MM seeking permission to go
abroad. In reply to the application filed
by the prosecution on 16/8/99 the
prosecution alleged that additional charge
sheet has to be filed against these
accused persons as they are also guilty of
the offences of destroying the evidence of
State Vs. Sidhartha Vashisht etc.page no.108
this case and they should not be allowed
to go abroad. It was further alleged that
they have removed the blood of the
deceased from the spot which amounts to
destruction of evidence. Ld. MM passed the
order dated 29/10/99 dismissing the
application of these two accused persons
Beena Ramani and George Mailhot for going
abroad. The ld. MM also observed in the
order that the accused persons may be
required for filing an additional
chargesheet against them in the present
murder case.
219. Counsel for accused has further
submitted that it appears that a deal was
struck between the prosecution and police
on one side and accused Beena Ramani and
George Mailhot on the other side and it
was agreed by these two persons that they
will make statement in the court in their
favour and that the police will not file
additional charge sheet against them and
consequent upon this agreement these
witnesses made a false statement in the
court against accused persons as a result
of which additional chargesheet was not
filed by the police against them.
State Vs. Sidhartha Vashisht etc.page no.109
220. Counsel for accused has further
submitted that a deal was also struck
between the prosecution and the police on
one side and PW30 Delhi home guard Sharwan
Kumar on the other side and he was asked
to make a false statement in the court and
in response to the same he was rewarded by
the police. He got a very handsome reward
as he was promoted to the post of
Constable although he was neither eligible
nor competent to become a constable. He
was under matric and overage still he was
made constable out of turn as a reward
for giving false evidence against accused
persons in this case.
221. Counsel for accused has further
submitted that accused Alok Khanna has
examined R.K.Khanna, who is father of
accused Alok Khanna as DW1, who has
deposed before the court that on 4/5/99 at
about 7.30pm the police had come to his
house and inquired about his son Alok
Khanna. He told the police that he had
gone to office. The police took away
photographs of Alok Khanna and Tony Gill
from their album. After sometime Alok
Khanna came, he was also taken away by the
State Vs. Sidhartha Vashisht etc.page no.110
police with them with the assurance that
they will make some inquiries and then he
will be let off. The evidence of this
witness finds corroboration from the
evidence of witness PW6 Malini Ramani
who has stated that during the first five
days of the investigation photographs of
the culprits were shown to her by the
police at the police station.
222. Counsel for accused has further
submitted that accused Tony Gill and Alok
Khanna have rightly refused to participate
in the TIP as they were shown to the PWs
and their photographs were also shown to
the witnesses in the police station.
PW30 Delhi Home guard Sharwan Kumar has
admitted before the court that after
arrest of the accused persons they were
detained in the lockup of PS Mehrauli.
The other witnesses have also supported
this version of PW30. In the lockup they
were shown to all the witnesses.
223. Counsel for accused has further
submitted that LD. MM passed an order on
5/5/99 wherein it is mentioned as under:-
'' Both the accused in police custody.
Case file perused.
State Vs. Sidhartha Vashisht etc.page no.111
Accused are remanded to JC in view of the TIP to be conducted against them.''
This order does not reflect
that accused were produced in muffled
faces. There is no mention of the same in
the remand order dated 5/5/99.
224. PW 79 Rajneesh Kumar Gupta
MM has deposed before the court that as
per the endorsement Ex.PW79/A it is not
reflected in the order that accused Alok
Khanna and Amardeep Singh Gill are
produced in muffled face or not.
225. Counsel for accused has further
submitted that PW101 Insp. Surender Kumar
Sharma has deposed before the court that
he had not recorded in the arrest memo and
Jamatalashi memo of accused Alok Khanna
and Amardeep Singh Gill @ Tony Gill that
they should keep their faces muffled vide
arrest memo and Jamatalashi memo
Ex.PW100/8 and 100/9 of Alok Khanna and
Ex.PW 100/5 and 100/26 of Amardeep Singh
Gill respectively.
226. Counsel for accused has further
submitted that an application was moved by
the counsel for accused on 6/5/99
Ex.PW101/X stating therein that
State Vs. Sidhartha Vashisht etc.page no.112
photographs of the accused persons have
been taken away by the police from their
house on 5/5/99. PW1 Deepak Bhojwani has
also admitted that photographs of the
accused persons involved in this case
appeared in the newspaper within 1 week of
the incident. PW6 Malini Ramani has also
admitted that during the first 5 days of
her interrogation she was shown
photographs of the culprits. PW30 has
admitted in the cross examination that the
photograph of all the accused persons have
appeared in print media as well as in
visual media.
227. Counsel for accused has further
submitted that the police has filed record
of the mobile phones of accused Amardip
Singh Gill and Alok Khanna. Although these
mobile phones belong to accused Amardeep
Singh Gill and Alok Khanna but it does not
mean that these mobile phones cannot be
used by other persons nor does it prove
that these mobile phones were only used by
these accused persons. What actually
transpired on mobile phones and what
conversation took place between the
State Vs. Sidhartha Vashisht etc.page no.113
accused persons has not been filed by the
police on record.
228. Ld. Counsel for accused Shyam
Sunder Sharma has submitted that
prosecution has examined five witnesses
namely PW56 Chetan Nanda, PW57 Ashok Dutt,
PW60 Baldev Singh, PW61 Ishdeep and PW68
Mangal Singh who were witnesses with
regard to involvement of accused Shyam
Sunder Sharma in this case. All these
witnesses have turned hostile and have not
uttered a single word against Shyam Sunder
Sharma implicating him in the commission
of crime. Therefore, case against the
accused Shyam Sunder Sharma for destroying
the evidence and for harbouring the
accused does not stand proved. He is
therefore, liable to be acquitted.
Counsel for accused has further
submitted that all the witnesses who have
been produced by the prosecution against
accused Yograj Singh, Vikas Gill,
Harwinder Chopra and Raja Chopra have
turned hostile. Witnesses PW52 Chander
Prakash Chabra, PW 64 Ravinder Singh Gill,
PW65 Kulwinder Singh, PW69 Rakesh Kumar
Atri and PW71 Harminder Singh have turned
State Vs. Sidhartha Vashisht etc.page no.114
hostile and have not uttered even a single
word against the accused implicating them
in the commission of crime. All the
remaining witnesses also examined on the
point of harbouring of accused Sidhartha
Vashisht @ Mannu Sharma have also turned
hostile. There is not even an iota of
evidence to implicate these accused with
the commission of crime.
Ld. Counsel for the accused has reliedupon the following judgments:-
(i) 1987(1) Crimes page 198 Orissa In ReSubas @ Sabakhia Bhoi and others Vs. State.
''The third circumstancerelied upon by theprosecution is the fact thatappellants Subas andDukhishyam were notavailable in their housesuntil their arrest on 2.2.1983and appellant Udia Bhoicould not be traced until27/4/83. The fact that theappellants were not presentfor some time after theoccurrence in their respectivehouses cannot by itself leadto the irresistible conclusionthat they had abscondedwith a view to shieldthemselves from the arms oflaw. Without proof ofanything more such conductis quite compatible withinnocence as well.''
State Vs. Sidhartha Vashisht etc.page no.115
(ii) II (1997) CCR 191 Bombay High Court inRe State of Maharashtra Vs. HarishchandraTukaram Awatade wherein it has been held asunder :-
''(v)Evidence Act, 1872 -Section 3-Hostile witness-Law-Testimony of hostilewitness - Not to be rejectedaltogether - Extent towhich corroborated byreliable witness -Acceptable.''
(iii) 2001 Crl.LJ 487, SC in Re Gura Singh Vs.State of Rajasthan wherein it has been held asunder :-
(A) Evidence Act (1 of1872) S.154 - Hostilewitness - Testimony of-Not to be excludedentirely or renderedunworthy ofconsideration.''
(iv) AIR 2005 SC 2804 In Re Mukhtiar AhmedAnsari Vs. State of Delhi, wherein it has beenheld as under:-
'' (D) Evidence Act (1 of1872), S.154-Hostilewitness - Prosecutionwitness not supportinggenesis of prosecution-Accused can rely on hisevidence''.
(V) AIR 1933 Patna 496 in Re Emperor Vs.Ardali Mian and others wherein it has been heldas under:-
(a) Criminal Trial-Identification of accusedshould be beyondreasonable doubt- The
State Vs. Sidhartha Vashisht etc.page no.116
evidence as to identificationof accused must besufficient to exclude withreasonable certainty thepossibility of mistake.''
(vi) AIR 1995 SC 2128, Andhra Pradesh
in Re A. Jayaram and Another Vs. State of
Andhra Pradesh, wherein it has been held as
under:-
'' ....Conviction cannot be basedon circumstances indicatingthat the prosecution case isquite likely to be true. Forbasing the conviction in a casegoverned by circumstantialevidence, the facts establishedmust rule out any likelihood ofinnocence of the accused.''
(vii) AIR 1972 SC 110 In Re Rahman Vs. State
of UP, wherein it has been held as under:-
(A) Evidence Act (1872), S.3-Circumstantial evidence- Thecircumstances formingevidence must be conclusivelyestablished and even when soestablished, they must formsuch a complete chain that itis not only consistent with theguilt but is inconsistent withany reasonable hypothesis ofinnocence.(B) Evidence Act(1872), S.8-Subsequent conduct of accused- Absconding by itself is notconclusive either of guilt or ofguilty conscience.''.
(viii) 2002 (2) JCC SC 1304 in Re ToranSingh Vs. State of Madhya Pradesh, wherein it
State Vs. Sidhartha Vashisht etc.page no.117
has been held as under:-
''... Sole eye witness did not try tosave his father and ran to his villagewithout raising any hue and cry -Delay in lodging complaint -Whether trial Court and High Courtrightly convicted the appellant -Held (No) - Held : that son ofdeceased is an interested witnessand his evidence ought to have beenscrutinized with greater care andcaution - Held : that conduct ofonly eye witness is highly unnaturaland improbable - Held : that verypresence of eye witness at the placeand time of occurrence itselfdoubtful and incredible - Appellantacquittal.''
(ix) 41(1990) DLT (SN) 32 Delhi in Re RajinderParshad & Anr. Vs. State (Delhi Admn wherein ithas been held as under :-
'' Where the behaviour of thewitness is not in keeping with thenormal human conduct, histestimony as eye witness would bedoubtful.''
(x) AIR 2004 SC 4660 in Re State ofRajasthan Vs. Bhanwar Singh wherein it hasbeen held as under:-
(A) Criminal P.C. (2 of 1974),Ss.378, 386, 154 - Penal Code(45 of 1860) Ss.300 - Appealagainst acquittal - Veracity ofprosecution case - Presence ofprosecution witness at place ofoccurrence doubtful -Unexplained delay of one day inlodging FIR - Medical evidencetotally at variance with ocular
State Vs. Sidhartha Vashisht etc.page no.118
evidence - All these factors effectcredibility of prosecution case -Acquittal, proper.
(xi) AIR 1979 SC 1410 in Re State of
Maharashtra Vs. Annappa Bandu Kavatage
wherein it has been held as under:-
''Before a court can act oncircumstantial evidence thecircumstances proved must becomplete and of a conclusivenature so as to be fullyinconsistent with the innocence ofthe accused and are notexplainable on any otherhypothesis except the guilt of theaccused.''
(xi) AIR 1975 Crl. L.J. 870 SUPREME COURT1026 In Re Ram Kumar Pande Vs. The State ofMadhya Pradesh wherein it has been held asunder :-
'' No doubt, an FIR is a previousstatement which can, strictlyspeaking, be only used tocorroborate or contradict themaker of it. But omissions ofimportant facts, affecting theprobabilities of the facts, affectingthe probabilities of the case, arerelevant under Section 11 of theEvidence Act in judging theveracity of the prosecution case.''
(xii) 2002(4) RCR (Crl.) SC 95 in Re Balu SonbaShinde Vs. The State of Maharashtra wherein ithas been held as under:-
''B. evidence Act, Section 154...Criminal Trial... Hostile witness...Declaration of a witness to behostile does not ipso facto reject the
State Vs. Sidhartha Vashisht etc.page no.119
evidence... Portion of evidence beingadvantageous to the parties may betaken advantage of... But the Courtbefore whom such a reliance isplaced shall have to be extremelycautious and circumspect in suchacceptance.
C. Indian Penal Code, Section 302...Murder... Case based oncircumstantial evidence... Accusedis entitled to benefit of doubt ifchain is snapped.
D. Indian Penal Code, Section302... circumstantial evidence...Law summed up :-
1. There must be a chain ofevidence so far complete as notto leave any reasonable groundfor a conclusion consistentwith the innocence of theaccused and it must be suchas to show that within allhuman probability the actmust have been done by theaccused.
2. Circumstantial evidence can bereasonably made the basis ofan accused person's convictionif it is of such a character thatit it wholly inconsistent withthe innocence of the accusedand is consistent only with hisguilt.
3. There should be no missinglinks but it is not that everyone of the links must appearon the surface of the evidence,since some of these links mayonly be inferred from theproven facts.
State Vs. Sidhartha Vashisht etc.page no.120
4. On the availability of twoinferences, the one in favour ofthe accused must be accepted.''
(xiii) AIR 1981 Cr.LJ SC 1014 in Re WakilSingh and others Vs. State of Bihar wherein it
has been held as under:-
'' Penal Code (45 of 1860), S.396... Dacoity with murder...Appreciation of evidence... Noneof witnesses gave anydescription of dacoits in theirstatements or in oral evidencenor gave any identificationmarks, such as stature ofaccused or whether they werefat or thin or of fair colour orblack colour ... Only one witnessidentified dacoits after certaindays from T.I. Parade ...Conviction cannot be based onlyon identification by singlewitness. (Evidence Act (1872),Ss.3, 134 and S.9). 1977 Cri.LJNOC 80(Pat), Reversed.''
(xiv) AIR 1991 SC 1468 in Re Bollavaram Pedda
Narsi Reddy and others Vs. State of Andhra
Pradesh wherein it has been held as under:-
'' Penal Code (1860), S.300...Murder... Appreciation ofevidence... Witnesses, strangers toaccused... No natural light wasavailable and street light was at adistance from place of occurrence...No cogent evidence that witnesseshad clear vision of action ofaccused persons in order that their
State Vs. Sidhartha Vashisht etc.page no.121
features could get impressed intheir mind to enable them torecollect the same and identifyaccused even after lapse of longtime... Identification parade notconducted properly... Testimony ofwitnesses not acceptable... Identityand involvement of accused notestablished beyond reasonabledoubt... Accused entitled toacquittal.''
(xv) 1998 Cri.LJ 4059 SC in Re Ravindra alias
Ravi Bansi Gohar Vs. State of Maharashtra and
others wherein it has been held as under:-
''(B) Penal Code (45 of 1860),S.300... Murder... Proof... eyewitness who was Police constablenot disclosing details aboutaccused in his statement beforepolice as to fix up identity ofaccused... Witness also notasserting that person whom henamed in FIR was accused beforeCourt... Police showingphotographs of accused to witnessbefore identification parade... Factthat witness was attached to policestation where the accused was inlock-up for some time prior toincident in question... Would notestablish probability of witnessesknowing accused persons...Conviction of accused on basis ofsole identification of suchwitnesses... Not sustainable.''
(xvi) 2000 Cri.LJ 698 HP in Re Sukesh Kumar
State Vs. Sidhartha Vashisht etc.page no.122
Vs. State of Himachal Pradesh wherein it has
been held as under:-
'' Evidence Act (1 of 1872), S.9...Punjab Police Rules (1938), Vol.3,Chap.26, R.26, 32... Offence ofrape... Test identification paradenot conducted in terms of rules...Outcome of such parade becomesunreliable piece of evidence.
Where the order passed by theMagistrate makes it clear that theMagistrate did not ask the accusedas to whether his face was keptmuffled from the time of his arresttill the production before theMagistrate, and that the order ofthe Magistrate does not containanything to show that when theaccused was produced before him,his face was muffled, theMagistrate while remanding theaccused to the judicial custody canbe said to have committed twoirregularities leaving room tosuspect the very foundation of thetest identification parade inquestion.''
(xvii) AIR 1996 SC 607 in Re Balwinder Singh
Vs. State of Punjab wherein it has been held as
under:-
''4. In a case based oncircumstantial evidence, it is nowwell settled that the circumstancesfrom which the conclusion of guiltis to be drawn should be fullyproved and those circumstances
State Vs. Sidhartha Vashisht etc.page no.123
must be conclusive in nature toconnect the accused with thecrime. All the links in the chain ofevents must be established beyonda reasonable doubt and theestablished circumstances shouldbe consistent only with thehypothesis of the guilt of theaccused and totally inconsistentwith his innocence. In a casebased on circumstantial evidencethe Court has to be on its guard toavoid the danger of allowingsuspicion to take the place of legalproof and has to be watchful toavoid the danger of being swayedby emotional considerations,however, strong they may be, totake the place of proof. It is in thecontext of the above settledprinciples, that we shall analysethe evidence led by theprosecution.''
(xviii) AIR 1976 SC 975 in Re Bhagirath Vs.
State of Madhya Pradesh wherein it has been
held as under:-
'' The prosecution can succeed bysubstantially proving the very storyit alleges. It must stand on its ownlegs. It cannot take advantage ofthe weakness of the defence. Norcan the court, on its own, makeout a new case for the prosecutionand convict the accused on thatbasis.''
(xix) AIR 1953 Calcutta 160 in Re Tulsiram
Shaw Vs. R.C. Pal Ltd. Wherein it has been held
as under:-
State Vs. Sidhartha Vashisht etc.page no.124
'' (a) Evidence Act (1872), S.154...Hostile witness... Testimonyagainst party calling him ...Witness is not necessarily hostileon this ground alone... Sectiondoes not say anything regardingdeclaring witness hostile.
A witness is not necessarily hostileif in speaking the truth as heknows and sees it, his testimonyhappens to go against the partycalling him. There is noproposition in the law of evidencethat a witness who is not partial orpartisan in favour of the partycalling him is on that ground aloneto be treated as hostile. The courtalways aspires to find if thewitness desires to tell the truth.That aspiration is the yardstickwhich measures the appreciationof the evidence of a witness. It iswith that object that the Court isgiven the discretion to permit theperson who calls a witness to putany question to the witness whichmight be put to him in cross-examination... But that is far fromsaying that a witness is hostilewhether his testimony is such thatit does not support the case of theparty calling him. Such a viewwould seriously undermine theindependence, integrity and dignityof a witness in a court of law. AIR1922 PC 409, Ref.Anno:Evid.Act,S.154 N.1, 3.''
(xx) AIR 1970 MYSORE 157 (V 57 C 38) in Re
Saraswathamma and another Vs. Bhadramma
and another wherein it has been held as under:-
State Vs. Sidhartha Vashisht etc.page no.125
''(A) Evidence Act (1872), S. 154...Fact that witness has becomehostile... Fact to be established byeliciting information givingindication of hostility.
A witness cannot be treatment ashostile merely because hisevidence is favourable to the otherside, and the fact that the witnesshas become hostile has to beestablished by eliciting informationsuch as could give an indication ofhostility.''
(xxi) 1978 CLR (SC) 75 in Re State of Haryana
Vs. Jagbir Singh etc. wherein it has been held as
under:-
'' (C) Criminal Trial ... Caseinvolving murder charge dependingwholly upon circumstantialevidence... Circumstancesappearing from prosecutionevidence, however, showingexistence of ''padding'' inprosecution case and certainevidence having been fabricated toimplicate the accused... Accusedheld entitled to acquittal on thatscore.''
(xxii) AIR 1929 Lahore 344 FB in Re Sukhan
Vs. Emperor wherein it has been held as under:-
'' (a) Evidence Act, S.27... Only thatportion of information which isimmediate and proximate cause ofdiscovery of fact can be proved
State Vs. Sidhartha Vashisht etc.page no.126
(c ) Evidence Act, S.27... Factdiscovered refers to material factand not mental fact.
The expression ''fact'' as defined inS.3 includes not only the physicalfact but also the psychological factor mental condition of which anyperson is conscious. It is in theformer sense that the word is usedin S.27.''
(xxiii) AIR 1972 (SC) 975 in Re Himachal
Pradesh Administration Vs. Om Prakash wherein
it has been held as under :-
''(B) Evidence... Appreciation of...Criminal case... That theevidence is legally admissiblemust be ensured by Court.
In appreciating the evidenceagainst the accused the primeduty of a court is firstly toensure that the evidence islegally admissible, that thewitnesses who speak to it arecredible and have no interest inimplicating him or have ulteriormotive.
(E) A fact discovered within themeaning of Section 27 must referto a material fact to which theinformation directly relates.That information which does notdistinctly connect with the factdiscovered or that portion of the
State Vs. Sidhartha Vashisht etc.page no.127
information which merelyexplains the material thingdiscovered is not admissibleunder Section 27 and cannot beproved.''