Delhi High Court
State (Gnct Of Delhi) vs Sidhartha Vashisht on 22 May, 2013
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 08.04.2013
Decided on: 22.05.2013
+ In the matter of
COURT ON ITS OWN MOTION
In Re:
Crl.A.193/2006
STATE (GNCT OF DELHI) ....Appellant
Versus
SIDHARTHA VASHISHT @ MANU SHARMA & ORS.
.....Respondents
+ CRL.M.A.1898/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
SHYAN MUNSHI .....Respondent
+ CRL.M.A.1899/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
SHIVDAS YADAV .....Respondent
+ CRL.M.A.1900/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
ANDLEEP SEHGAL .....Respondent
+ CRL.M.A.1901/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
MANOJ KUMAR .....Respondent
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 1
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STATE ......Appellant
Versus
BALBIR SINGH .....Respondent
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STATE ......Appellant
Versus
TARSEM LAL THHAPAR .....Respondent
+ CRL.M.A.1906/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
SHANKAR MUKHIA .....Respondent
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STATE ......Appellant
Versus
CHANDER PARKASH CHABRA .....Respondent
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STATE ......Appellant
Versus
ABHIJEET GHOSAL .....Respondent
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STATE ......Appellant
Versus
BARUN SHAH .....Respondent
+ CRL.M.A.1912/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
CHETAN NANDA .....Respondent
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STATE ......Appellant
Versus
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ASHOK DUTT .....Respondent
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STATE ......Appellant
Versus
BALDEV SINGH .....Respondent
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STATE ......Appellant
Versus
ISH DEEP SHARMA .....Respondent
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STATE ......Appellant
Versus
ALI MOHAMMAD .....Respondent
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STATE ......Appellant
Versus
KULVINDER SINGH .....Respondent
+ CRL.M.A.1919/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
MANGAL SINGH .....Respondent
+ CRL.M.A.1925/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
PREM SAGAR MANOCHA .....Respondent
+ CRL.M.A.1926/2007 IN CRL.A.193/2006
STATE ......Appellant
Versus
BABU LAL .....Respondent
Appearance: Sh. Pawan Sharma, Standing Counsel (Crl) CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 3 with Sh. Harsh Prabhakar, Ms. Laxmi Chauhan, Sh. Kushagra Arora, Advocates along with Inspector Keshav Mathur, Crime Branch.
Sh. Sudarshan Rajan, Advocate, for Sh. Shyan Munshi. Sh. Ritesh Khatri, Advocate, for Sh. Shivdas Yadav. Sh. H.J.S. Ahluwalia, Advocate, for Sh. Tarsem Lal Thhapar.
Sh. Amit Chadha, Advocate, for Sh. Barun Shah.
Ms. Savita Prabhakar, Advocate, for Sh. Prem Sagar Manocha.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE G.P. MITTAL MR. JUSTICE S. RAVINDRA BHAT %
1. This common judgment will dispose of proceedings initiated on the Court‟s Motion, to examine whether the respondents had prima facie committed perjury and if the circumstances warrant their cases to be referred for consideration and further proceedings under Section 340 Cr.PC.
2. During the night intervening 29/30.04.1999 - which was a Thursday- a party was on at Qutub Colonnade, in the restaurant "Once upon a time". The open space of that restaurant was known as "Tamarind Café". Liquor was served for coupons purchased; two of the bartenders serving there were Jessica Lal (since deceased; hereafter called "Jessica") and Shyan Munshi (PW-2). At around 02.00 AM, Sidhartha Vashisht @ Manu Sharma (the appellant in Crl.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 4 A. 179 of 2007 (Supreme Court) hereafter called "Manu Sharma") and his friends went to the café and asked for two drinks. The waiter did not serve him liquor since the party had ended. Jessica and Malini Ramani (PW-6), who were there, tried to make him understand that the party was over and no liquor was available. He took out a pistol and fired one shot at the roof and another at Jessica; it hit near her left eye. She fell down. Beena Ramani (PW-20), who was present, stopped Manu Sharma and questioned him why he had shot Jessica and demanded the weapon from him. He did not hand over the pistol and fled from the spot. Jessica was rushed to Ashlok Hospital; she was shifted to Apollo Hospital from there, where, in the early hours of the morning of 30.04.1999, she was declared "brought dead".
3. The crime was recorded as DD Entry No. 41-A (Ex. PW-13/A), Police Station Mehrauli, on the night intervening 29/30.04.1999 at 02.20 AM. It mentioned a shooting incident at H- 5/6 Qutub Colonnade. The FIR (287/99) was later recorded at 4 AM, after PW- 100 met Beena Ramani (PW-20), owner of the café, and enquired about the incident. She, in turn asked him to talk to Shyan Munshi (PW-2) saying that he was inside and he knew everything. PW-100 then recorded the statement of PW-2 and made an endorsement on the same for the registration of the case under Section 307 IPC and handed it over to Ct. Subhash to be carried to the police station, Mehrauli. At about 4.00 AM, FIR No. 287/99 was registered at the police station Mehrauli. SI Sunil Kumar returned to the spot with PW- 2; PW-30 informed them about the seizure of one black Tata Safari CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 5 from the spot. On inspection of the site, two empty cartridges were seized and, later, a supplementary statement of PW-2 was recorded by PW-100. At 05.45 AM, PW- 100 received information from Ct. Satyavan about death of Jessica at Apollo Hospital. The post mortem was conducted at about 11.30 AM at the All India Institute of Medical Sciences (AIIMS) on 30.04.1999. At about 11.00 AM, SI Pankaj Malik (PW-85) went to Chandigarh to secure the black Tata Safari and to arrest Manu Sharma. PW-100 recorded the statements of the witnesses. During the night intervening 30.04.1999/01.05.1999, at 2 AM, the police raided Manu Sharma‟s farm house and seized his photograph. On 02.05.1999, a list of invited guests was prepared by PW- 24. That day, around 10.00 PM, PW-101 was informed that a black Tata Safari was found by the U.P. Police (Sector 24, Noida Police Station).The next day he went to Noida Police Station and seized that black Tata Safari. On 05.05.1999 at about 02.30 AM, Amardeep Singh Gill @ Tony Gill and Alok Khanna were arrested and from their alleged disclosure statements, Manu Sharma‟s involvement was confirmed. On 06.05.1999, Manu Sharma surrendered before PW-87 and was later arrested at about 02.20 PM, and brought to Delhi. On 07.05.1999, the police produced him before the Metropolitan Magistrate and sought police remand for effecting recovery of the alleged weapon of offence. An application for conducting Manu Sharma‟s Test Identification Parade (TIP) was also moved. Later, he was remanded to five days police custody till 12.05.1999 and thereafter on 12.05.1999 extended till 17.05.1999 on the application of the I.O., but on 15.05.1999, his remand was CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 6 shortened till the next day, i.e 16.05.1999, when he was sent to judicial custody. On 30.05.1999, Vikas Yadav was also arrested. After the completion of investigation, the other accused persons were also arrested.
4. On 03.08.1999, charge sheet was filed against ten accused persons. On 23.11.2000, the Additional Sessions Judge (ASJ) framed charges against the appellant/Manu Sharma under Sections 302, 201 read with 120B 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 were charged under Section 212 IPC and accused Alok Khanna, Shyam Sunder Sharma and Amit Jhingan were discharged of all the offences. This order was attacked in revisional proceedings before this Court; the revisions were disposed of by a common order on 13.03.2001. On 12.04.2001, charges further to orders of this Court were framed and some of the charges framed earlier were maintained. Against the rest of the accused, the charges framed by the Trial Court were maintained.
5. During the trial - which began in May, 2001- in all 101 witnesses were examined by the prosecution and two court witnesses too were examined. On 21.02.2006, after completion of trial, the Additional Sessions Judge (ASJ) acquitted all the nine accused, including Manu Sharma.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 7
6. The prosecution challenged the acquittal, through an appeal before this Court, being Crl. Appeal 193 of 2006. On 20.12.2006, the Court by its judgment convicted and sentenced the accused. The accused, including Manu Sharma, challenged the judgment and conviction recorded by this Court before the Supreme Court, which by its judgment dismissed their appeals. The acquittal of some of the accused, viz. Harvinder Chopra, Vikas Gill, Yograj Singh, Raja Chopra, Alok Khanna and Shyam Sunder Sharma were upheld.
7. The Court initiated the present proceedings suo motu by order dated 20.12.2006. At that stage, the Court was of the opinion that since 32 witnesses had not supported the initial case of the prosecution, at least for the purpose of notices, they ought to explain their conduct and accordingly they were called upon to show cause why proceedings be not initiated. The order initiating present proceedings reads as follows:
―COURT ON ITS OWN MOTION Today we have disposed of Crl.A. No. 193/2006 (State vs. Siddharth Vashisht @ Manu Sharma etc. which was filed by the State against the judgment dated 21.02.96 passed by learned Additional Sessions Judge, New Delhi in SC No. 45/2000 whereby all the accused tried of different offences including that of murder and causing of disappearance of evidence of the crime were acquitted. Vide our judgement dated 18.12.2006 we have reversed the acquittal of accused Siddharth Vashisht @ Manu Sharma, who was tried for the commission of offences punishable under Sections 302 IPC, 201/120-B IPC and Section 27 of the Arms Act. He has been held guilty in appeal for all these offences. The acquittal of accused Amardeep Singh Gill @ Tony Gill and Vikas CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 8 Yadav, both of whom along with Siddharth Vashisht @ Manu Sharma were tried under Section 201/120-B IPC has also been set-aside by us and they stand convicted for this offence. They have been appropriately sentenced vide our separate order passed today in the appeal.
While hearing the appeal we had the occasion to examine the trial Court proceedings. The prosecution in support of its case had examined 101 witnesses in all which included eye witnesses of the murder of Jessica Lal. To our utter surprise we found that during the trial as many as 32 witnesses including three eye witnesses of the murder and one ballistic expert had to be got declared hostile by the prosecution. That is definitely a sad state of affairs. Witnesses turning hostile appears to be the order of the day. The Courts must put an end to this kind of attitude of witnesses turning hostile in order to thwart the course of justice. In the facts and circumstances of the present cases we are of the view that it is expedient in the interest of justice to take recourse to Section 340 of the Code of Criminal Procedure, which this Court as an Appellate Court can do in exercise of the powers under Section 340(2) Cr.PC since the trial Court has chosen not to invoke this provision of law despite taking note of the fact that a large number of witnesses had turned hostile. We, therefore, direct that a show cause notice be issued to the following witnesses who had appeared during the trial and had turned hostile to show cause as to why action be not taken against them as per the provisions of Section 340 Cr.PC:
1. PW-2 Shyan Munshi
2. PW-3 Shiv Das Yadav
3. PW-4 Karan Rajput
4. PW-5 Parikshat Sagar
5. PW-19 Andleep Sehgal CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 9
6. PW-25 Manoj Kumar
7. PW-26 Balbir Singh
8. PW-31 Narain
9. PW-34 Tarsem Lal Thhapar
10. PW-35 Birbal
11. PW-44 Shankar Mukhia
12. PW-50 Harpal Singh
13. PW-52 Chander Parkash Chabra
14. PW-53 Abhijeet Ghosal
15. PW-54 Barun Shah
16. PW-55 Mukesh Saini
17. PW-56 Chetan Nanda
18. PW-57 Ashok Dutt
19. PW-60 Baldev Singh
20. PW-61 Ishdeep Sharma
21. PW-62 Ali Mohammad
22. PW-64 Ravinder Singh Gill
23. PW-65 Kulvinder Singh
24. PW-67 Niranjan Ram
25. PW-68 Mangal Singh
26. PW-69 Rakesh Kumar Atri
27. PW-71 Harminder Singh
28. PW-72 Lal Singh
29. PW-77 Gajender Singh CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 10
30. PW-87 Jagan Nath Jha
31. PW-95 Prem Sagar Manocha
32. PW-98 Babu Lal The show cause notices be served on these witnesses through the SHO concerned who will ensure that they are served before the next date of hearing.
These persons are required to be present in Court in person on the next date of hearing.
List on 1st February, 2007.‖
8. During the pendency of the appeals before the Supreme Court, the Court after considering the cases of some of the noticee/respondents, i.e. PW-31 Narain, PW-35 Birbal, PW-50 Harpal Singh, PW-55 Mukesh Saini, PW-67 Niranjan Ram, PW-69 Rakesh Kumar Atri, PW-71 Harminder Singh, PW-72 Lal Singh, PW-77 Gajender Singh, PW-87 Jagan Nath Jha, directed that the notices issued against them be discharged. As a consequence, the applications, being Crl. (M) 1903/2007, 1905/2007, 1907/2007, 1911/2007, 1918/2007, 1920/2007, 1921/2007, 1923/2007 and 1924/2007 were disposed of by the said order dated 19.02.2007. This Court had in its judgment and order dated 18.12.2006 dealt with and disposed of the appeal preferred by Manu Sharma as well as the accused charged of having committing other offences. It would be material to extract some relevant parts of the said judgment which convicted Manu Sharma for the charge of having committed offences punishable under Section 302 IPC and also under Section 27 Arms Act in addition of convicting Vikas Yadav, Amardeep Singh Gill and Manu Sharma for the offences punishable under Sections 201/120-B CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 11 IPC. The Court had by the same judgment upheld the acquittal of Shyam Sunder Sharma under Section 211/202 IPC as well as that of Harvinder Chopra under Section 212 IPC. The Court also upheld the acquittal of Yograj Singh, Vikas Gill and Raja Chopra for the offences charged against them under Section 212 IPC. The Court also upheld dismissal of the appeal in respect of Alok Khanna who had been charged with committing offences under Section 120B/201 IPC. The relevant extracts of judgments of this Court are as follows:
―56. In the totality of circumstances adduced from material on record, the judgment under challenge appears to us to be an immature assessment of material on record which is self-contradictory, based on misreading of material and unsustainable. We find that Beena Ramani has identified Sidhartha Vashisht@ Manu Sharma, Amardeep Singh Gill, Alok Khanna and Vikas Yadav to be the persons present at the Tamarind Café at the time of the incidence. She also saw Manu Sharma firing the fatal shot which hit Jessica Lal. Her testimony finds corroboration from the testimony of Malini Ramani and George Mailhot. There is evidence on record to show that Manu Sharma had a licensed pistol of .22 bore which he has not produced to establish his innocence and on the contrary has taken false plea that the pistol, its ammunition and license had been removed by the Police on 30.04.1999. We also find from the material on record that Manu Sharma abandoned his vehicle while making good his escape. We also find that the ammunition used in the causing of the firearm injury to Jessica Lal was of .22 bore which Manu Sharma admittedly possessed and a similar live cartridge was recovered from the abandoned Tata Safari. From this, we have no hesitation in holding that Manu Sharma is guilty of an offence under Section 302, IPC for having committed the murder of Jessica Lal on 29/30.4.1999 at the Tamarind Café as also under CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 12 Section 27, Arms. Act.
57. Coming to the case put up by the prosecution as regards Vikas Yadav and Amardeep Singh Gill, we have noted above that both these accused were present at the Tamarind Café when Manu Sharma caused firearm injuries to Jessica Lal. These two persons subsequently were seen by PW-30 Sharvan Kumar, coming in a while Tata Siera driven by Amardeep Singh Gill from which Vikas Yadav alighted and surreptitiously removed the Tata Safari which was being guarded by Sharvan Kumar.
The very fact that Vikas Yadav removed the Tata Safari from Qutub Colonnade is sufficient to bring home his guilt under Section 201 IPC since he and Amardeep Singh Gill both knowing that an offence has been committed at the Tamarind Café by Manu Sharma caused the Tata Safari, which is part of the evidence, to be removed with an intention to screening Manu Sharma. From these circumstances, it is evident that the Tata Safari was removed from outside Qutub Colonnade pursuant to a conspiracy between Vikas Yadav, Amardeep Singh Gill and Manu Sharma. Therefore, these three accused are guilty of having conspired to remove the Tata Safari from Qutub Colonnade and are held guilty under Section 201 read with Section 120-B IPC.
58. As regards Shyam Sunder Sharma, he was charged for an offence under Section 212, IPC for harbouring Ravinder Krishan Sudan. We find there is no incriminating evidence to suggest that Shyam Sunder Sharma ever harboured Ravinder Krishan Sudan. Even otherwise, Ravinder Krishan Sudan has been declared a Proclaimed Offender and has not faced trial. This charge against Shyam Sunder Sharma cannot be sustained. Consequently, we uphold his acquittal under Section 212 IPC as also 201 IPC and dismiss the appeal qua Shyam Sunder Sharma due to lack of evidence.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 13
59. The case against Harvinder Chopra is that he arranged for the stay of Sidhartha Vashisht @ Manu Sharma at the house of PW-52, Chander Prakash Chopra, thereby committing an offence under Section 212, IPC. From the material on record, we find there is no evidence to suggest that Harvinder Chopra arranged for stay of Manu Sharma at the house of PW-52, Chander Prakash Chopra. Chander Prakash Chopra himself has not supported the prosecution's case. We, therefore, find no evidence to convict Harvinder Chopra of the offence under Section 212, IPC. Consequently, we uphold his acquittal under Section 212 IPC and dismiss the appeal qua Harvinder Chopra.
60. The case against Yog Raj Singh is that he facilitated Sidhartha Vashisht @ Manu Sharma being taken to Khera, Muktsar in Punjab and harboured Sidhartha Vashisht @ Manu Sharma. To substantiate this case, the prosecution examined PW-53, PW-64 and PW-
65. We find that none of these witnesses have supported the prosecution's case and there is no other evidence on record which suggests that Yog Raj Singh is guilty of harbouring Sidhartha Vashisht @ Manu Sharma at Khera in Muktsar (Punjab). Consequently we uphold his acquittal under Section 212 IPC and dismiss the appeal qua Yog Raj Singh.
61. The case against Vikas Gill was that he was charged for escorting Sidhartha Vashisht @ Manu Sharma to Panchkula between 30.04.1999 and 01.05.1999 and harboured him with the intention to screening him from legal punishment. We find from the record that there is no evidence to the effect that Vikas Gill took Sidhartha Vashisht @ Manu Sharma to Panchkula from Delhi and/or harboured him at any place. Consequently, we uphold his acquittal under Section 212 IPC, and dismiss the appeal qua Vikas Gill.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 14
62. The case against Raja Chopra is that he provided a conveyance to Sidhartha Vashisht @ Manu Sharma within the meaning of Section 52A IPC in order to screen him from legal punishment. From the material on record we find no admissible evidence to substantiate the charge against this accused. Consequently we uphold his acquittal under Section 212 IPC and dismiss the appeal qua Raja Chopra.
63. As regards the case against Alok Khanna, he was charged under Section 120B read with Section 201, IPC for causing disappearance of Tata Safari from Qutub Colonnade. We find there is no evidence to link Alok Khanna with the conspiracy to remove or destroy evidence. No doubt, his car was used by Amardeep Singh Gill and Vikas Yadav to go to Qutub Colonnade to remove the Tata Safari, but this in itself is not sufficient to hold that Alok Khanna consented to or was a part of the conspiracy shared by Amardeep Singh Gill with Vikas Yadav to remove the Tata Safari from the Qutub Colonnade. In that view of the matter, we find that the prosecution has not been able to bring home its case against Alok Khanna. The appeal qua Alok Khanna is dismissed.‖
9. Counsel for the noticee/respondent - who had individually moved applications for discharge - urged that the action, to the extent it is based on previous statements made to the police during investigation, cannot be sustained. Elaborating on the submission, it was argued that the statements recorded by the police, or attributed to the witnesses, who were treated as hostile and cross examined by the prosecution cannot be made the basis of the proposed action under Section 340. It was submitted that this is on account of the bar imposed by Section 162 Cr. PC. Counsel relied on the decision CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 15 reported as Hazari Lal v. State 1980 (2) SCC 290 where it was held that:
―The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross- examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.‖ The said Applicant/noticee also relied on the decision in Omkar Namdev Jadhao v. Second Additional Sessions Judge 1996 (7) SCC 498, where it was observed, in the context of an order made under Section 340, Cr.PC, that:
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 16 ―It is seen that the observation made by the Sessions Judge, as confirmed by the Bombay High Court, Nagpur Bench in the impugned Judgment dated 10.3.1992 made in Criminal Application No. 20/91 is based on Section 161 statements recorded during the investigation.
Admittedly, no evidence has been recorded. The court should not come to the conclusion on the basis of Section 161 statements which are not evidence. It can be used at the trial only for contradictions or omissions when the witness was examined. Nor it could be contradicted by looking at the physical features of the accused even before they are examined. The Additional Sessions Judge and discharged them concluding that the police officers had fabricated the record. It would appear that the learned Sessions Judge had overstepped his jurisdiction in recording a finding, while looking at the physical features of the accused, that the police had fabricated the record. The High Court has also not properly considered the matter while going into the question regarding discharge of the accused for other offences. Under these circumstances, we hold that in view of the finding recorded by the Sessions Judge of fabrication of the record and that the case is false one, issuance of notice Under Section 340, Cr. P.C. is wholly unjustified. The said order of the Sessions Judge is accordingly quashed.‖
10. It was submitted that the Court, in a proceeding under Section 340 of the Cr. PC, has to give fair and adequate opportunity to those whom it intends to refer for trial. Counsel contended that since the noticee/ respondents can be adversely affected, and might have to face a long drawn out trial, the proceeding which is adopted should be fair and reasonable. Therefore, the Court should be circumspect in its approach, and should afford opportunity to answer all the material which may be considered to be adverse to the noticees. Counsel CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 17 stressed upon the fact that the use of materials which are inadmissible in evidence, and cannot be looked into on account of a bar in law, should be altogether eliminated from consideration.
11. It was argued that the Court should be alive further to the fact that unlike other public offences, the law mandates a special procedural safeguard in the form of Section 195 Cr.PC, which requires sanction (of the Court) as a pre-condition before any prosecution in relation to public justice or proceedings in court. The object of this, submitted counsel, is to avoid frivolous and vengeful action by disgruntled complainants or informants.
12. Mr. Pawan Sharma, learned Standing counsel appearing for the State, argued that the Court should take cognizance of the fact that during the trial as many as 32 witnesses had turned hostile. Although the Court discharged notices issued in respect of some of such respondents/noticees, the role played by some of the respondents - especially PW-2 and PW-86 were aimed at deliberately assisting the accused, who succeeded in his efforts, and secured an acquittal after trial, from the Additional Sessions Judge. However, this was reversed by this Court, and the appeals to the Supreme Court were dismissed.
13. The Standing Counsel contended that the Court‟s approach is only to be satisfied whether it would be ―expedient in the interests of justice‖ to make a complaint under Section 195(1)(b) Cr.PC. This cannot be confused with whether conviction under Section 193 IPC for tendering false evidence before the Court can be obtained. Therefore, stressed the learned Standing Counsel, the merits of the case cannot be looked into and the exercise of comparing statements CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 18 made by witnesses under Section 161 Cr. PC, with their court depositions should be eschewed. In this regard, learned counsel relied on the decision of the Supreme Court reported as M.S. Sheriff v State of Madras AIR 1954 SC 397. Relying on the observations of the Supreme Court in Swaran Singh v State of Punjab 2000 (5) SCC 668 and Mahila Vinod Kumari v State of Madhya Pradesh 2008 (8) SCC 34, it was contended that in the present case innumerable witnesses were won over at the accused‟s behest and influenced to project a version, tactically designed by them to secure an acquittal, which requires to be dealt with stringently and with a heavy hand. Counsel submitted that preservation of purity of administration of criminal justice system is one of paramount public concern, and the Court should direct a complaint against the noticees, in accordance with law. Legal provisions
14. The relevant provision which criminalizes perjury is Section 193 of the Indian Penal Code, 1860, which reads as follows:
―193.Punishment for false evidence.- Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1.-A trial before a Court-martial 1****is a judicial CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 19 proceeding.
Explanation 2.-An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.‖
15. Section 195 of the Code of Criminal Procedure, 1973, reads as follows:
―Section 195 - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence (1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 20 inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate].
(2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 21 (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.‖
16. Section 340 of the Code of Criminal Procedure mandates the procedure to be followed in respect of an application or action taken by the Court concerned, under Section 195. It reads as follows:
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 22 ―340.Procedure in cases mentioned in Section 195.-
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 23
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.‖ Perjury was a common law offence; the first penal statute in England was enacted in the fifteenth century. It was known as "forswearing"
and has always been viewed as a serious challenge to the sanctity of judicial proceedings. In Mohan Singh v. Late Amor Singh through LRs. AIR 1999 SC 482 , the Supreme Court observed, while sending up a litigant before it, for trial for perjury, that:
―Tampering with the record of judicial proceedings and filing of false affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity..‖ Earlier, rejecting a plea that Courts should record admission of earlier false pleas, in the context of challenge to a conviction for perjury (since, according to the argument, it promoted justice, as the original felon would ultimately receive his just deserts), the US Supreme Court had observed, in the decision of Justice Robert Jackson, in United States v Norris 300 US 564 (1937), as follows:
―Perjury is an obstruction of justice; its perpetration well may affect the dearest concerns of the parties before a tribunal. Deliberate material falsification under oath constitutes the crime of perjury and the crime is complete when a witness' statement has once been made. It is argued that to allow retraction of perjured testimony CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 24 promotes the discovery of the truth and, if made before the proceeding is concluded, can do no harm to the parties. The argument overlooks the tendency of such a view to encourage false swearing in the belief that if the falsity be not discovered before the end of the hearing it will have its intended effect, but, if discovered, the witness may purge himself of crime by resuming his role as witness and substituting the truth for his previous falsehood. It ignores the fact that the oath administered to the witness calls on him freely to disclose the truth in the first instance and not to put the court and the parties to the disadvantage, hinderance, and delay of ultimately extracting the truth by cross-examination, by extraneous investigation, or other collateral means.‖ Very recently, the Scottish Court of Appeals had, in Singh v HM Advocate 2005 SCCR 604 said that:
―Perjury must always be seen as a serious crime, since it strikes at the fundamental basis of our system of justice and at the integrity and accuracy of the decisions reached in courts. It follows that when perjury is established, it must be dealt with seriously for the benefit of the courts and the public generally. Everyone should be made fully aware that, when an oath is taken in a court of law to tell the truth, that is what must be done.‖ The importance given to a trial where witnesses depose truthfully, and fearlessly, cannot be undermined. Where witnesses perjure - either out of lure or under fear, the result is a judgment not based on truth, no less, no more. And yet, having said that, Courts have to be mindful of the complex and manifold reasons why witnesses are unwilling or unable to depose truthfully. The phenomenon of witnesses deposing falsely is not new; it was observed and commented upon in 'The Problem of Proof' by Albert S. Osborn, (Published by New York, CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 25 Methew Bender & Co. 1926 pp. 226. 393) nearly a century ago as follows:
"The astonishing amount of perjury in courts of law is a sad commentary on human veracity. In spite of the oath, more untruths are probably uttered in court than anywhere else. This deviation from veracity ranges from mere exaggeration all the way to vicious perjury. Much of this untrue testimony grows directly out of human nature under unusual stress and is not an accurate measure of truth speaking in general. In order to shield a friend, or help one to win in what is thought to be a just cause, or because of sympathy for one in trouble, many members of the frail human family are inclined to violate the truth in a court of law as they will not do elsewhere,."
17. Law makers were of the view that having due regard to the serious nature of the offence and the challenge it poses to the judicial system, the Courts should have a say in the prosecution of those suspected of perjury. Consequently, Section 195 was enacted. The rationale for this provision was explained by the Supreme Court, as follows, in Budhu Ram v State of Rajasthan [(1963) 3 SCR 376]:
"The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents These offences have been selected for the courts control because of their direct impact on the judicial process. It is the judicial process in other words the administration of public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 26 justice that the ultimate object of harming the private party is designed to be realized. As the party of the proceedings of the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognised by Section 190 Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party."
18. The procedure to be adopted by the Court while deciding whether to go ahead and accord approval to initiate proceedings for perjury, outlined in Section 340 of the Cr. PC, was discussed by the Supreme Court, in Pritish v. State of Maharashtra, (2002) 1 SCC 253, where the Court observed that:
―9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 27 expedient in the interests of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interests of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interests of justice to inquire into the offence which appears to have been committed
13.... The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the magistrate for initiating prosecution proceedings. ...
14. ... But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 28 persons against whom the complaint would be made) to be heard prior to making the complaint. ...
15. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not...‖ As to the nature of enquiry, which the court would undertake, under Section 340, was outlined by the Supreme Court, in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr.(2005) 4 SCC 370:
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 29 effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint..."
In the light of the above principles, the Court now would deal with the cases of each individual notice respondent.
Crl. M.A 1898/2007- Shyan Munshi
19. The prosecution alleges that this witness recorded his statement on 30.04.1999 (Ex. PW-2/A) when he stated that he used to study at IIPM, and was residing at Hauz Khas. He stated that he knew Bina Ramani‟s family. On 29.04.99 he was attending a party at Qutub Colonnade, Mehrauli. At about 2 AM, when people were leaving, he was present near the counter in Tamarind Café, situated in Qutub Colonnade. Five or six others, with a waiter were present there at that time. According to him, a stout, round faced, fair complexioned man, aged 30-32 years, dressed in jeans and a white T-shirt entered the bar from across the counter and demanded two drinks from the waiter, soon after he entered. The waiter did not serve him. Jessica Lal and Malini Ramani, d/o Bina Ramani who were there tried to persuade him stating that the party was over and there was no more liquor left. At this, that man said, that he would now tackle the matter on his own. Again Jessica tried to persuade him and asked him not to get annoyed. That man took out a pistol from his trouser and fired a shot at the ceiling and another shot at Jessica Lal. She was shot above the left eye; as a result, she fell down then and there. He also stated that Bina Ramani went to the spot and he immediately went out from the bar to call the police and ambulance. He said that Bina Ramani took CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 30 Jessica to Ashlok Hospital, Safdarjung Enclave in her car. Later, he went to that hospital. He alleged that the man who fired at Jessica intended to kill her and that he could identify him.
20. Shyan Munshi‟s supplementary statement was recorded on 30.04.99 (Ex.PW2/B). In this, he corroborated his previous statement which had been incorporated in the F.I.R. He said that on his pointing out, a spot examination has been conducted in Tamarind Café where Jessica Lal was shot.
21. He stated that a red turbaned 32/33 year old tall Sikh male, had stood in front of the bar counter with 2/3 of his friends at the time of occurrence and that he (the said Sikh gentleman) knew Jessica Lal and was talking to her. Malini Ramani was also there with her friend Sanjay Mehtani and both of them were holding liquor glasses in their hands. In this statement, it was recorded that at the same time, a boy dressed in a white T-Shirt asked for a drink. Malini Ramani responded that liquor had finished. The boy (in the white T-shirt) asked why he could not get liquor, particularly when they (Malini and her friend) were drinking. Malini Ramani replied, ―You cannot even have a sip of my drink even if you pay 1000 Rupees.‖ The boy then said, ―I can pay 1000 Rupees for a sip of you‖. Malini Ramani felt bad at this remark and left the place with her friend Sanjay Mehtani. The witness allegedly stated that after the shooting, the boy (in the white T-shirt), escaped from the spot with the red turbaned Sikh and his 2/3 friends. That boy (in white T-shirt) was leading them, others following him. Shyan claimed that he could identify all those individuals.
22. The prosecution stated that a second supplementary statement CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 31 was made by Shyan Munshi on 19.05.99 (Ex.PW2/C) in which he admitted the correctness of his previous statement and also stated that the police had shown him 15 photographs and asked him to identify the individuals present at the time of the occurrence. He picked up one photograph from the 15 photographs given to him and it was of the boy who fired the shot at Jessica Lal on the fateful day at Tamarind Café. He said that he was told that the said boy was Siddhartha Vashisht alias Manu Sharma. He stated that "Mark A"
was written at the back of the said photograph and the police officer appended his signature on it. He said that thereafter, he identified one more person (i.e. the boy standing in front of the bar counter) from the aforesaid photographs. He was told that the said boy was Amit Jhingan. "Mark B" was written at the back of Amit Jhingan‟s photograph and the police officer signed on it. Likewise, he also picked up the photograph of a Sikh gentleman from the aforesaid photographs and identified him as being the gentleman who was standing at the front of the bar counter and wearing a red turban. "Mark C" was allotted on the back of the photograph and the police officer appended his signature thereon. He was told that the Sikh gentleman was Amardeep Gill alias Tony Gill. He identified one more person from the said photographs; that person was also standing at the front of the Tamarind Café bar counter. He was told that the said boy was Alok Khanna. "Mark D" was written at the back of the photograph and the police officer appended his signature thereon. He said that all photographs identified by him were appended with the police officer‟s signature and the same were kept separately in a white CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 32 envelope.
23. In his deposition, Shyan Munshi stated that in 1999, he was studying at IIPM, Delhi and was residing at Hauz Khas. He was an acquaintance of Malini Ramani, as a result of which he knew Bina Ramani. He had visited Qutub Colonnade, at Tamarind Café on the night of 29.04.99 and was attending a party there. Alcohol and food were sold through coupons. He was acquainted with Jessica Lal and met her that night at the party. He deposed that there was a miniature bar counter outside in the open space where liquor was served. He deposed that besides Jessica Lal and Malini Ramani, there were four others helping to serve liquor; he did not serve liquor to the gathering. He reached the party at around 12 or 12.15 at night and went there alone. He said that there was an indoor place also with a counter but that was not a working counter and nothing was happening there. He said that the liquor may have been served till 01.15 or 01.30 AM, but he was not certain about it. He deposed to going inside Tamarind Café at around 2 AM when there were about 6-7 persons. He went inside the café to eat something as nothing was being served outside. There was a waiter behind the counter. He says no other woman except Jessica Lal was inside Tamarind Café at that time. He went behind the bar counter to get something to eat and managed to get pastry lying in the freezer. When he was taking the pastry, a gentleman wearing a white t-shirt came there and asked the waiter to serve him two drinks. The waiter did not pay attention to him and was busy cleaning up. Jessica was there at the other side of the counter and she told the man that the party was over and no alcohol could be served. The man took CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 33 out a pistol from his pant and shot in the air. Another man on the other side of the counter fired a shot at Jessica and she fell down. He said that the man who shot Jessica also wore light coloured clothes.
24. The prosecution sought liberty to cross examine the witness PW-2; during the cross examination, he said that Bina and Malini Ramani were not present inside the café while he was there. He encountered Bina Ramani when he was coming out of the café. He deposed that Bina Ramani and others lifted Jessica from the spot and carried her to Ashlok Hospital, Safdarjung Enclave. He went to the hospital a little later though. He said that the police contacted him in the hospital itself and recorded his statement. He also said that he narrated everything to the police, in English as he was not familiar with Hindi. He stated that the statement was prepared in Hindi and was signed by him. He reached the hospital at about 03.30 AM and the statement was recorded around 03.45 AM or 04.00 AM. He admitted to having been born in Kolkata and completed his schooling there. He had been in Delhi only for a year or so and says that he could understand spoken Hindi. He deposed that the statement he signed had not been read out to him. He also deposed that Hindi was his third language when he was in 7th standard and he said that he was never good at it. He testified that he had told the police that at about 2AM in the night when the party was over and people were going back to their homes, he was present near the counter in Tamarind Café. At that time 5/6 persons and a waiter were present. But he later changed his statement and said that he never told the police that people were going back to their homes but only said that a few people CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 34 were going. He said that he told the police that at that time one person wearing a T-shirt aged 30/32 years, fair complexion, round face and hefty, came inside the bar and asked the waiter to serve two drinks. However, he said that he never told the police that the waiter did not serve liquor. He stated that he told the police about Jessica‟s presence there but denied telling the police about Malini Ramani‟s presence. He claimed that he did not know if the person in white T-shirt, to whom drinks were denied said that he would devise his own ways. He later deposed that the man in white T-shirt wearing who asked for the drinks was not present amongst the accused in the court. He also denied the suggestion that Manu Sharma was the individual wearing the white T-shirt, who had demanded liquor from Jessica. He stated that the man was much taller than the accused Manu Sharma.
25. It was argued on behalf of this respondent, PW-2, that there can be no scope for action under Section 340 Cr.PC, because he did not make any statement on oath, which he contradicted or resiled from. Counsel appearing for this respondent also was at pains to point out from the judgment of this Court, as well as the judgment of the Supreme Court, that no adverse comment was made against the respondent and directing him to face charges would be extremely unfair under the circumstances. Counsel underlined the fact that a contradiction between the statement made under Section 161 Cr. PC, and the deposition in court, cannot the basis of a prosecution for perjury, in the absence of any adverse comment or finding. Reliance was placed on the judgment in Onkar Namdeo Jadhao and Ismail Khan v State 1992 Crl. LJ 3566.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 35
26. The learned Standing Counsel for the State, on the other hand, argued that PW-2‟s deposition of two shots by two different individuals transparently was meant to help the accused. Highlighting that this witness deposed that two shots were fired by different individuals, it was submitted that this also coincided with the testimony of PW-95, the expert, whose deposition contradicted his written report. It was submitted that this kind of evidence was sought to be introduced in tandem, to help the accused. Counsel for the state also argued that the witness, PW-2 had been accompanied by Counsel for the accused, which established a prima facie nexus. It was submitted that the totality of evidence, of PW-1, PW-6, PW-20 and other witnesses clearly established that both the accused and PW-2 were present at the spot, along with several others. There was no avoiding the fact that the respondent PW-2 sought to aid the accused, and also introduced elements which he had never spoken about, which clearly amounted to perjury.
27. It would be relevant, at this stage itself, to extract the reasoning and analysis of the evidence of this witness, from the judgment of the Supreme Court, in this case, which is as follows:
"b) Shyan Munshi PW-2:
In the year 1999, he was studying in Indian Institute of Planning and Management at New Delhi doing his MBA Course. At that time, he was residing at 15/16 H, Hauz Khas, New Delhi. He informed the Court that he was acquainted to Malini Ramani through which he started knowing about Beena Ramani who is the mother of Malini Ramani. He had visited Tamarind Cafe on the night of 29th April, 1999. It was Thursday Night. He was attending the Party at that night. Alcohol and food were CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 36 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 Cafe. It might be 2 o-- clock at that time, I mean 2 a.m. There were about 6-7 persons inside the cafe at that time.
I went inside the cafe primarily with a view to eat something as I was feeling hungry and also nothing was being served outside. I found that Jessica was inside. At that time, no other lady was there. I went behind the counter to get something to eat. I managed to get pastry lying in the freeze and when I was taking it, a gentleman with white tea-shirt came there. He asked the waiter to serve him two drinks. The waiter did not pay attention to that gentleman and became busy in cleaning up. Jessica was also there on the other side of the counter and she told the gentleman that the party was over and there was no alcohol to be served. At that time, that gentleman took out a pistol from the dub of the pant and fired a shot in the air. There was another gentleman on the other side of the counter, who fired a shot at Jessica Lal and she fell down. That gentleman was also wearing light coloured clothes.' Since the present statement about 'another CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 37 gentleman' fired a shot at Jessica Lal and she fell down was not the one earlier made to the Police, after getting permission from the Court, the public prosecutor cross-examined him. He stated-
―It is correct that Beena Ramani and other lifted Jessica from the spot and carried her to the Hospital Ashlok. I went there later. In the Ashlok Hospital, police came there and contacted me and recorded my statement.' '....I reached the Hospital at about 3:30 a.m. and my statement was taken at about 3:45 a.m. or 4 a.m.' He also admitted that he was in Delhi for about a year or so and able to understand spoken Hindi. He is aware of Beena Ramani as the proprietor of Qutub Colonnade.
The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited Tamarind Cafe on the night of 29.04.1999. He also mentioned the presence of Manu Sharma. His evidence further shows that immediately after the shot Beena Ramani and others were carrying Jessica Lal to the Ashlok Hospital. In other words, his evidence proves the presence of accused- Manu Sharma at the scene of offence. To this extent, the prosecution relied upon his evidence and this was rightly accepted by the High Court. Though, Mr. Ram Jethmalani submitted that High Court ought to have accepted his entire evidence in toto, considering his earlier statement to the police and his evidence before the Court, we are satisfied that the High Court is justified CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 38 in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. As observed earlier his evidence amply proves the presence of accused at the scene of occurrence at the time and date as pleaded by the prosecution.‖
28. The Court also observed that:
―(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 ignored, on the other hand, it is acceptable.‖ The witness had during his cross examination, denied familiarity with the Hindi language and that he had never visited Qutub Colonnade prior to that night and he denied as incorrect that he was a frequent visitor to that place and that he even used to serve liquor.
29. The evidence of PW-1 Deepak Bhojwani - who was found to CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 39 be a reliable witness, was that PW-2 knew Jessica Lal and had in fact introduced him to her, a week before the incident. In this context, his (PW-2‟s) assertion that he had not visited Qutab Colonade prior to the incident, somewhat rings hollow; his admitted conduct in entering the counter and trying to take something edible from the freezer when according to him the party was over, and the place was shutting down, betrays familiarity which cannot be acquired during the first outing. He admitted to witnessing the entire episode, and yet declined to identify the real offender. The witness had no explanation for this volte face. He did not qualify his witnessing the incident, by saying that the given time for observing the man was inadequate or anything of that sort. In these circumstances, his attempt to mention about two persons firing in the air, and his conduct in relying on the accused‟s counsel, in the initial stages, is prima facie indicative of his attempting to not stating all the facts, suppressing it, with a view to help the accused. For these reasons, the Court is of opinion that action under Section 340, Cr. PC, is prima facie warranted against this respondent, i.e. PW-2 Shyan Munshi. A direction is accordingly issued. Crl. M.A. No. 1898/2007 is accordingly disposed of in terms of the said direction.
Crl. M.A.1899/2007:
30. The prosecution alleged that Shiv Dass, the electrician, (respondent/noticee under this application) whose statement was recorded on 29.05.1999, was on duty at Qutub Colonnade on 29.04.1999. It was alleged that he had installed a number of electric CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 40 bulbs, and had to remove them. He said that on 29.04.1999 at about 02.00 AM, the party was over, people started moving towards their houses and only 70/80 persons were still present in Qutub Colonnade. At that point of time, on feeling hungry, he left for the kitchen. On entering the bar counter of Tamarind Café for a cold drink, he saw a boy named Shyan, a model, standing at a counter and standing beside him was a fair complexioned stout boy aged 28/30 in a white t-shirt and blue jeans. He further said that the boy and Jessica Lal, who was standing in front of the Bar, were talking. He could not follow what they were talking and all of a sudden, the boy in the white t-shirt took out a pistol from his pant and fired a shot at the ceiling and another at Jessica Lal while targeting her, after which, she fell down on the floor after sustaining bullet injury. Thereafter he ran away towards the kitchen because of fear. A panic situation had arisen over there. Shiv Dass further said that when he came out of the kitchen, Bina Ramani, Jitender Raj etc. had already reached the place by that time. He then brought a bed sheet and he, Jitender Raj, Madan (the waiter) and some other persons wrapped Jessica Lal in the bed sheet and took her to a Maruti Esteem Car parked outside Qutub Colonnade. She had sustained a bullet injury on the left side of the forehead. Jitender Raj, Bina Ramani, Madan (Waiter) and the Driver of the aforesaid car then took Jessica Lal to Ashlok Hospital, Safdarjung Enclave. The prosecution further alleged that in his statement he further said that "Today you have kept 10 photographs in front of me at PS Mehrauli and have asked me to identify the photographs. Thereupon, I picked up a photograph and disclosed to you that this was the same boy who CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 41 had shot at Jessica Lal on the night of 29.04.99 at about 2:00 AM, who was standing in front of the Bar Counter at Tamarind Café. Before firing a shot at Jessica Lal, he had fired a shot at the ceiling. You have now told me that the name of the aforesaid person is Siddharth Vashishath alias Manu Sharma. You have appended your signature on the back side of the said photograph identified by me and have kept the same in an envelope.
31. The witness in his deposition, during the trial, admitted to being electrician and was on duty on 29.04.1999 but denied that he went to Tamarind Café to eat something after feeling hungry. He deposed that he did not enter Tamarind Café before the incident in question. He also denied telling the police that at about 02.00 AM, he felt hungry. He further said in his deposition that on 29.04.1999 he was present at the terrace of Qutub Colonnade at about 02.00 AM and was disconnecting temporary lights after the party was about to be over. He further said that he had gone to the Café only after hearing some noise like bursting of two crackers and saw Bina Ramani ahead of him, he followed her inside, and saw Jessica Lal lying injured on the floor. He denied having seen anybody firing a shot at Jessica Lal. He further denied seeing Jessica Lal conversing with a boy in a white t- shirt and telling police that hefty boy in a white T-shirt took out a pistol from his pant and fired one shot towards ceiling and another at Jessica Lal. He also denied having seen Jessica Lal falling on the floor after sustaining bullet injury and running away towards kitchen out of fear and panic. He had admitted presence of Bina Ramani and Jitender Raj there, bringing of bed sheet, wrapping Jessica Lal in it CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 42 and taking her to the Ashlok Hospital, Safdarjung Enclave in an Esteem car parked outside the Qutub Colonnade. The driver of the said car also accompanied Jitender Raj, Bina Ramani and Madan (waiter) to the hospital. The witness further denied in its entirety the statement of keeping 10 photographs in front of him at PS Mehrauli, asking him to identify the same, picking up the photograph of the boy who had shot at Jessica Lal at the night of 29.04.1999 at about 02.00 AM, the firing incident, telling him the name of the boy as Siddhartha Vashishath alias Manu Sharma, signing by anybody on the back of the photograph identified by him and keeping it in an envelope.
32. The learned Standing Counsel argued that PW-3 deserves to be sent up for further proceedings since he had deliberately resiled from his earlier statement. It was highlighted that there can be no denial of the fact that this witnesses‟ statement (Ex. PW-3/A) was recorded by PW-101, who deposed about it, and also deposed to what Shiv Dass had said. Furthermore, submitted the Standing Counsel, in the cross examination at the request of the prosecution, the respondent/noticee did not deny that he was present at the scene, and had assisted in wrapping Jessica‟s body. In these circumstances, stated counsel, this witness should be sent up for trial. Counsel for the noticee/respondent, on the other hand, submits that the witness did not make any statement on oath and the basis for a reference under Section 340 cannot be a statement attributed to him under Section 161 Cr. PC.
33. It is evident from the above discussion that the prosecution is banking heavily, if not almost entirely on the statement made by PW- 3 on 29th May, 1999. It is rather strange that the statement in the first CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 43 place was allegedly recorded almost after a month of the commission of the crime. Courts have repeatedly emphasized that if the presence of potential witnesses at the crime scene is known to the police, utmost dispatch and expedience has to be displayed in recording those versions. This is to avoid the danger of an accusation that the witnesses‟ statement cannot be truthful, or even that fading memories and faulty recollection would impair the deposition of such witness. These apart, there is no doubt that the prosecution version was not supported at all by the witness, during his deposition at the trial. The prosecution is entirely relying on his statement made under Section 161 Cr.PC after a month of the incident. This Court, consistent with the approach adopted in the case of other applications, is of the opinion that despite the minor contradictions elicited during the prosecution‟s cross examination of the witness, no prima facie case has been made out for action under Section 340 Cr. PC. The notice to this respondent is accordingly discharged; Cr MA No. 1899/2007 is therefore dismissed.
Crl.M.P. No. 1900/2007 - Andaleeb Sehgal
34. This respondent/noticee had deposed during the trial as PW-19. The prosecution had alleged that in the statement recorded under Section 161 - on 14.05.1999, this witness mentioned about having gone on 29.04.1999, at about 11.00 PM, to Qutub Colonnade with his wife and further added that he had attended the Thursday parties earlier, on 2-3 occasions. He mentioned having met Mrs. and Mr. Amardeep Singh Gill, Parikshat Sagar, Manu Sharma, Amit Jhingan, Alok Khanna and Vikas Yadav. In the said statement, the witness CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 44 mentioned about his acquaintance with Manu Sharma for 3-4 years and that on that day, he was wearing a white T-shirt and blue jeans. He further stated in the Section 161 statement that he saw Jessica Lal, whom he knew before, behind the bar counter. He also stated that he was introduced to Vikas Yadav by Amardeep Singh Gill and that he stayed there till 01.00 AM after which he went back home. At that time, Manu Sharma, Amardeep Singh Gill, Amit Jhingan, Alok Khanna and Vikas Yadav were still present at the party.
35. In his deposition in Court, while PW-19 confirmed certain particulars, such as the Thursday parties in Tamarind Court and that he attended the special party of last Thursday of April 1999 with his wife and that he knew Amardeep Singh Gill @ Tony Gill, Manu Sharma and others, i.e. Mrs. and Mr. Amardeep Singh Gill, Parikshat Sagar etc. He denied knowing Vikas Yadav and Alok Khanna. He also stated that he did not meet Manu Sharma and Tony Gill on that day. As a consequence, the witness was declared hostile and was permitted to be cross-examined. In the suggestions put forward by the prosecutor, he denied having stated earlier during investigation under Section 161 that he had met Manu Sharma and the others. He admitted to knowing Manu Sharma for the last 2-3 years and denied that he had described to the police the clothes worn by Manu Sharma on that night. He also admitted knowing Jessica Lal but had no personal acquaintance with her and added that he had seen her in the café on that day. He admitted that the police had contacted him 13-14 days after the incident. He denied having given the statement, Ex.PW- 19/A. CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 45
36. Learned Standing Counsel had placed strong reliance on the statement of PW-92, Durga Prasad, an Inspector with Delhi Police who deposed that he had recorded the statement of PW-19 correctly. It was submitted that PW-19 deliberately omitted any mention of Manu Sharma in order to assist him escape justice and that this hostility warranted prosecution for perjury. Learned counsel for the respondent PW-19, on the other hand, pointed-out that the statement recorded under Section 161 was not confirmed by the witness and that at the first available opportunity, PW-19 mentioned the true facts. It was argued that while the witness clearly stated about his having visited the Tamarind Court on the day of the incident and also mentioned the presence of some of the accused and his acquaintance with others; the evidence on oath in Court was not consistent and at no stage did he admit - even in the cross-examination by the Prosecutor - that Manu Sharma was present when he left the premises.
37. In the earlier part of this judgment, while considering the law relating to perjury and the standard to be adopted while pressing evidence under Section 195(1)(b) Cr.PC, the Court had noticed the decision in Hazari Lal v. State 1980 (2) SCC 290 and Omkar Namdev Jadhao v. Second Additional Sessions Judge 1996 (7) SCC 498. Clearly in case of PW-19, there was no inconsistency between his examination-in-chief and the cross-examination. The fact that PW-92 merely mentioned about having recorded accurately the prior statement of PW-19, i.e. Ex.PW-19/A would, in the opinion of the Court, fall grossly short of the governing standard. The earlier statement under Section 161 was not made under oath and is by the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 46 plain terms of that provision, inadmissible. That the person who recorded it deposed to its veracity would not add weight or establish the untruthfulness of PW-19‟s deposition in Court. Such being the position, proceedings under Section 340 Cr.PC against this witness are not warranted. The said respondent is hereby discharged. Crl.M.A. 1901/2007 - Manoj Kumar (PW-25)
38. The prosecution had, during the trial alleged that Manoj Kumar had, during the investigation made a statement under Section 161, on 20.05.1999, that he was a driver employed by Piccadily Agro, Bhadro, Karnal for about 6 months and that the black Tata Safari with registration no. CH-01-W-6535 was in possession of Manu Sharma, the owner of the company, who used to drive it himself. In his deposition in Court dated 01.01.2001, PW-25 did not support his statement about knowledge of the said Tata Safari; he also stated that he had never seen Manu Sharma driving that vehicle. He further denied having made the statement, Ex.PW-25/A and also denied the suggestion that it was read over to him.
39. Learned Additional Standing Counsel relied upon the testimony of PW-76, SI Vijay Kumar. He deposed to having recorded the statement, Ex.PW-25/A, of PW-25 after finding that the Tata Safari belonged to Piccadily Agro. He also relied upon Ex.PW-18/A-2 to say that it was the original report of the registering authority at Chandigarh which established that the vehicle had been duly registered. Learned counsel highlighted that the false testimony by PW-25 was never with the intention of aiding the accused Manu Sharma. Learned counsel for the respondent submitted that the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 47 Division Bench of this Court in its judgment referred to the testimonies of PW-s 2, 3, 4, 5 and 86 as "material witnesses" and the others as "formal witnesses". It was also emphasized that the Division Bench did not make any adverse comments against the witnesses, who did not support the prosecution, except PW-86 about whom it was stated that he was thoroughly unreliable. Learned counsel submitted that the said statement made under Section 161 cannot be relied upon solely for the purpose of alleging perjury and referring the case for further proceeding to the competent court. It is evident from the previous narrative that the statement was attributed to PW-25 about his being employed with Piccadily Agro and that he had seen Manu Sharma driving it. However, in his deposition in Court the witness did not stand by this statement and even went to the extent of deposing that the statement was not recorded by the Delhi Police. After Ex.25/A was read-over during the trial, the witness nevertheless denied its contents. This Court is of the opinion that by applying the standards which govern initiation of proceedings for perjury, the witness cannot be said to have prima facie committed the offence. Notice in respect of this respondent/witness is hereby discharged. Crl.M.A. 1902/2007: PW-26 - Balbir Singh
40. Like in the case of PW-25, the police had alleged that Balbir Singh, PW-26 made a statement on 20.05.1999 about his being a security supervisor with Piccadily Agro Industries and that the Tata Safari bearing registration no. CH-01-W-6535 was in possession of the company‟s owner, Manu Sharma, who used to drive it. During the trial, this witness did not support the prosecution and denied the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 48 suggestion that he was deposing falsely; he also denied the exhibit PW-26/A-A, the statement attributed to him. Like in the case of PW- 25, learned standing counsel relied upon the testimony of PW-76. For the reasons given by the Court, in the case of PW-25, the notice in respect of this respondent, PW-26 too requires to be and is hereby discharged.
Crl. M.P. No. 1904/2007 - Tarsem Lal Thhapar
41. The prosecution had alleged that on 15.07.1999, this witness had stated under Section 161 that he had been working as a Private Secretary to Manu Sharma‟s father, Vinod Sharma, since 1995 and that on 30.04.1999, he had telephonically connected Vinod Sharma to Vikas Gill @ Ruby at the instance of the former. The statement recorded was that the telephone call at the other end was attended to by Vikas Gill‟s wife, Amrita. He further stated that after a short while, Vikas Gill arrived at the residence of Vinod Sharma, at 02.00 PM and thereafter they (Vinod Sharma and Vikas Gill) left in a Mercedez car, bearing no. CHK-2.
42. In the deposition in Court, PW-34 confirmed he was working as a Private Secretary to Vinod Sharma since 1995. He, however, denied knowledge of anyone calling Vikas Gill and stated that a police officer had only come to him and asked his residential address. He denied his statement, Ex.34/A or that it was recorded on 15.07.1999. He also denied about the visit of Vikas Gill to Vinod Sharma in Chandigarh. Learned standing counsel also relied upon the statement of PW-85, Pankaj Malik, who stated that he had recorded the statements of PWs-34 and 35, who had voluntarily mentioned about CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 49 their relationship with the accused and how PW-34 - in the statement under Section 161 had mentioned about the telephonic conversation between Vinod Sharma and Vikas Gill and the latter‟s visit to his house.
43. This Court has considered the material evidence, i.e. the statement under Section 161 (Ex.PW-34/A) and the deposition of PW- 34 and his cross-examination after he was declared hostile as well as the deposition of PW-85. Apart from the fact that the Court cannot proceed merely on the basis of Section 161 statement, what is immediately striking is that the prosecution sought to establish a telephonic conversation between Vinod Sharma and Vikas Gill @ Rabbi. For that purpose, it was open to it to rely upon the objective findings in the nature of call particulars from concerned telecom service providers. It is unclear from the record whether any such evidence was marshalled at all much less presented to the Court. For these reasons, the Court is of the considered opinion that no case for proceeding further against PW-34 has been made-out. It is also worthwhile mentioning that similar facts were alleged in respect of another noticee/Applicant in Crl.M.A No. 1905/2007; the court had discharged notice against him. Notice issued in respect of this respondent is therefore, discharged.
Cr. M.A No. 1906/2007-Shankar Mukhiya
44. The prosecution alleged that Shanker Mukiya, PW-44 a respondent/noticee (also applicant in Cr. MA. 1906/2007) was working as a cook for 5 years before the incident at Devi Kunj Farms, Samhalka, which was owned by Vinod Sharma and he used to reside CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 50 in the servant quarters, with his children. His Section 161 statement (recorded on 14.07.1999) was that in the morning of 29 th April, 1999, Manu Sharma reached the farm house in a black "Tata Safari" bearing Reg. No. CH-01-W-6535 and had left the farm house at about 08.00/08.30 PM in the same car. He said that thereafter neither Manu Sharma nor the vehicle came to the farm house. He said that he came to know about the murder, after 2 days. He said that after about 4-5 days, Vinod Sharma‟s brother, Shyam Sunder, went to the farm house at about 11.00AM in a Mercedes car (the registration of which he did not remember) and that Shyam Sunder, after taking a bath, had left the farm house at about 01.30 PM. The prosecution alleged that PW-44 also gave a supplementary statement, which was recorded 17.07.1999 in which he corroborated his earlier statement. He also said that Manu Sharma was the son of his employer Vinod Sharma and that Manu Sharma had a cell phone, with registration Number 9811096893. He said that on 29.04.1999, Manu Sharma was carrying his phone with him and that he spoke to him from the said mobile phone at about 05.30/06.00 PM. He also stated that on 29.04.1999, he had dialled the number and had spoken to Manu Sharma.
45. During the trial, PW-44 agreed that he used to work for Vinod Sharma for 6-7 years, and was working at the farmhouse of that employer for the last 2 ½ years. He deposed that Manu Sharma had a white Esteem car and that he did not have any black Tata Safari. He also deposed that he has not seen Manu Sharma with a mobile phone. This witness said that the police had questioned him after the incident but he had not given any statement to the police on 14.07.1999 or on CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 51 any other date. He said that the police had interrogated him. He deposed that he was called to PS Mehrauli.
46. In cross-examination by the prosecutor, he denied having stated to the police that on 29.04.1999 morning, Manu Sharma s/o Vinod Sharma had arrived at the farm house in a black ―Tata Safari‖ bearing Reg. No. CH-01-W-6535 and had left the farm house at about 08.00/08.30 PM in the said black car and that he did not return to the farm house thereafter. He admitted to knowing accused Shyam Sunder Sharma (brother of Vinod Sharma) who was in Court. He denied having told the police that he learnt about the incident two days after the incident. He said that the police had told him about the incident. He denied having told the police that after 4-5 days of the murder, Shyam Sunder Sharma had gone to the farmhouse at about 11.00 AM in a Mercedes car and had left the place at about 01.30 PM and had returned there after a few days. He denied having been interrogated by the police on 17.07.1999 and having told the police that Manu Sharma had cell phone no. 9811096893 and that on 29.04.1999 he had spoken to him from his cell phone with Manu Sharma, on that cell number.
47. The learned Standing Counsel relied on the testimony of PW- 94, who deposed that Manu Sharma‟s call details had been procured. It was submitted that such evidence corroborated the truth of the statement recorded under Section 161 Cr. PC and that PW-44 should consequently be sent up for further proceedings and trial. This Court is of the opinion that the contention in this regard is meritless. The witness did not corroborate the statement attributed to him, under CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 52 Section 161 Cr. PC in the entirety of the trial; the fact that some part of it was supported by external evidence does not in any manner establish that Section 161 Cr. PC statements are to be made the basis for perjury action or proceedings. The principles remain unchanged; that statement was not made by the noticee under oath. He cannot be said to have given false testimony. Nor can the deposition of PW-94 or anyone who claimed to have recorded the Section 161 Cr. PC statement, provide any comfort to the prosecution in this regard. Consequently, the notice as against PW-44, the applicant in Crl. MA 1906/2007 is hereby discharged.
Crl. M.A. No. 1926/2007- Babu Lal Yadav PW-98
48. The allegation against this notice/applicant is identical to what was alleged against PW-44. He too was the employee of a security agency and deployed in Vinod Sharma‟s farm house in Delhi, at Samhalka. It was alleged that in the statement recorded by this witness, under Section 161 he mentioned having seen Manu Sharma driving into the farmhouse in a black Tata Safari, bearing Reg. No. CH-01-W-6535 and saw him leave the farm house at about 08.00 PM in the same car on 29.04.1999 and that he had not returned since then. In his deposition during trial, he did not support the statement attributed to him, and stated that Manu Sharma used to drive a white Maruti car. In the cross examination, with permission of Court, he denied the material suggestions made to him pointedly with reference to the statement under Section 161 (Ex. PW-98/1). Like in the case of PW-44, the prosecution tried to rely on the deposition of other police CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 53 witnesses. However, the fact remains that the witness/noticee did not contradict, or resile from a sworn testimony in respect to a material fact. Therefore, for the reasons mentioned in the case of the applicant in Crl. M.A No. 1906/2007, the notice in respect of Babu Lal has to be and is hereby discharged.
Cr M.A No. 1908/2007: Chander Prakash Chhabra PW-52
49. Chander Prakash Chhabra u/s 161 Cr.PC on 08.05.1999 recorded his statement, according to the prosecution, on 08.05.1999 and said that he resided at J-65, Saket, New Delhi and his son-in-law Harvinder Chopra was a Chartered Accountant in Picadilly Group of companies, Chandigarh. He said that on 30.04.1999 at about 04.00/04.30 PM, he received a phone call from Chandigarh from his son-in-law Harvinder Chopra saying that his boss, Vinod Sharma‟s (father of Manu Sharma) son would come to his house with some friends as some defect has occurred in their car. Harvinder Chopra told him to give them (Vinod Sharma‟s son and his friends) sufficient facilities in the house and said that somebody would come to take them once the car was repaired. According to the prosecution, he said that soon after the said call, Manu Sharma along with his friend Ravindra Sooden alias Tittoo, came to his residence and he served them food. Ravindra Sooden alias Tittoo was aged about 40 years, fair complexioned, his height was about 5.6" and he was bald. In his statement under Section 161, Chhabra also mentioned that on the same night one Vikas Gill came in a white Ford car and soon after his arrival, took Manu Sharma and Ravinder Sooden alias Tittoo along with him in the Ford and left for Chandigarh. He is reported to have CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 54 identified Manu Sharma as that person who had gone to his house on 30.04.1999 with Titoo, and that later both of them left with Vikas Gill.
50. In a supplementary statement, recorded on 15.05.1999, he confirmed his earlier statement, and said that upon entering the police station, where he had been called, two persons namely, Manu Sharma and Vikas Gill alias Rubby were present there and he identified Vikas Gill and said that he was the same person, who on the intervening night of 30.04.1999 and 01.05.1999 had gone to his house in a Ford car and had taken Manu Sharma and Ravindra Sooden along with him to Chandigarh.
51. In the Court, during trial, this noticee/respondent confirmed details like his residence in Delhi, and that he was the father-in-law of Harvinder Chopra. He denied other facts, and was cross-examined by the prosecution with Court‟s permission when he denied receiving a phone call from his son-in-law on 30.04.1999 to the effect that he should make arrangements for the stay of his boss‟s son. He denied having given the statement Ex.PW52/A. He also denied all the statements attributed to him, when they were pointed out; he also denied having gone to the police station on 15.05.1999, or having identified Manu Sharma and Ravinder Sooden @ Titto.
52. The learned Standing counsel submitted that the respondent Chander Prakash Chhabra wilfully resiled from the truth of his statement, solely with the object of shielding his son-in-law Harinder Chopra and others, who had aided in the commission of the offence punishable under Section 212 IPC. It was submitted that the witness CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 55 PW-52 deliberately denied his previous statements under Section 161, the accuracy and veracity of which were vouchsafed by PW-101, in his deposition. That testimony was not contradicted. Furthermore, the witness even sought to deny that he was served with notice under Section 160, Cr. PC, which was exhibited as Ex. PW-52/B. Counsel submitted that the main accused in the trial were able to thwart the logical outcome of the trial, in respect of charges levelled against some of the accused of shielding and aiding the escape of Manu Sharma, and ensuring he successfully evaded justice for some time, before his arrest.
53. Learned counsel for the noticee/ PW-52 argued, on the other hand, that the statement sought to be relied upon as the correct and true version, was not under oath. Moreover, this Court and the Supreme Court did not adversely comment on the testimony of PW- 52, whose son-in-law was acquitted of the charges levelled against him. It was argued that no role in respect of the main offence was even alleged against PW-52‟s son-in-law, and it would be futile to send him up for trial, now that he is over 74 years of age.
54. This Court has carefully considered the materials on record; it is quite evident that like in the other cases, the prosecution is, in the case of this witness, seeking to rely on the previous testimony of the noticee under Section 161. It is an undeniable fact that the witness did not resile from any testimony made under oath. Furthermore, no objective material was put to him, to contradict his deposition in court, and establish that the statement recorded during investigation was true. Apart from the two statements - the first, and the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 56 supplementary statement, the prosecution did not produce anything to give a lie to the witnesses‟ testimony. Furthermore, that the witness did not support the police case about his deposing further to a summons under Section 160, Cr PC, is no doubt a matter of concern; however, considering that the testimony was recorded over three years after the alleged event, that it was overlooked by the witness, can be put to loss of recollection as a result of passage of time. For these reasons, the Court is of the opinion that no case has been made out to send PW-52 for further proceedings for perjury, under Section 340, Cr.PC. The notice regarding PW-52 is accordingly, discharged. Cr. M.A No. 1909/2007- Abhijit Goshal PW-53
55. The allegation against PW-53, applicant, seeking discharge in Cr. MA. No. 1909/2007, is that in his statement under Section 161 (dated 15-07-1999) he mentioned that on 01.05.1999 at about 8 o‟clock morning, Manu Sharma, along with someone, went in a Tata Sumo vehicle to his neighbour‟s (Yograj Sharma‟s) house. The man accompanying Manu Sharma was talking to Yograj Sharma. During trial, the witness did not support the prosecution case, except identifying Yograj Sharma correctly. He was declared hostile, and during his cross-examination, he denied the statements attributed to him. The learned Standing Counsel sought to rely on the testimony of PW-85 to say that he had truthfully recorded the statement of PW-53, and that the latter perjured himself in court. This Court is of the opinion that since the prosecution is relying essentially on a statement attributed to the witness, which was not made under oath, and is inadmissible, no case for initiation of proceedings is made out. The CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 57 notice as against PW-53 Abhijit Goshal is hereby discharged. Cr. M.A No. 1910/2007: Barun Shah, PW-54
56. The prosecution alleged that PW-54, Manager of a resort, Shakti Tourist Resorts Complex, Behror, (Raj), had, in his statement (Ex. PW-54/C) recorded under Section 161, on 10-5-1999, after joining the investigation, called one of the waiters (PW-55) in the proceedings. In his statement, PW-54 said that the waiter, Mukesh Saini, had served the accused Vikas Yadav, who had stayed in the premises, calling himself Suresh Shekhar, a resident of Gwalior. The witness also stated under Section 161 that the Guest Register bore the signatures of that person. The guest register was seized by the police. In his court deposition, however, the witness did not support the prosecution story about being joined in the investigation in the manner suggested, or that Vikas Yadav had identified the room where he stayed. He also denied that Vikas Yadav had been identified by Mukesh Saini in the investigations.
57. Learned counsel submitted that the witness deposed falsely in court, because he did not deny having signed on the seizure memo and the statement under Section 161 Cr. PC. It was also submitted that PW-81 Inspector S.S. Gill vouchsafed the truthfulness of the statement recorded by PW-54, in his deposition.
58. This Court is of the opinion that the witness PW-54‟s evidence has to be read in totality. Even in the statement attributed under Section 161, Cr. PC, he did not mention having recognized Vikas Yadav as the one who called himself Suresh Shekhar or identified him as someone who stayed in the resort. While the witness no doubt CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 58 agreed that the memo contained his signature, he also added that the contents of the document were unknown to him. Having regard to this conspectus of circumstances, it cannot be said that the witness ever claimed to have personal knowledge about Vikas Yadav, or having seen him earlier. This Court, as well as the Supreme Court did not adversely comment on the testimony of the witness, nor was any part of the statement under oath contradictory, or amount to a false statement, calling for action under Section 340. The notice as against Barun Shah, PW-54 is therefore discharged.
Cr. M.A No. 1912/2007: Chetan Nanda, PW-56
59. According to the prosecution, PW-56 stated, under Section 161, Cr.PC, that on 02.05.1999, his friend Ashok Dutt was staying with him, after coming from Gurgaon. He said that at about 6/7.00 PM in the evening, his friend Shyam Sunder Sharma who resided in Chandigarh, made a telephone call and asked to speak with Ashok Dutt whereupon he gave the phone to Ashok Dutt. Soon after the said phone call, Ashok Dutt left, saying that he was going to Shyam Sunder.
60. During the trial, PW-56 denied acquaintance with Ashok Dutt and Shyam Sunder Sharma. He further stated that the Delhi Police never interrogated him about this case and denied having made statement to police at Ex.PW-56/A. He said he does not know any Vinod Sharma and further did not know if any son of Vinod Sharma is an accused, in this case. He said that his father name is not Chander Lal but is "Chaman Lal". He said it is correct that he is not Chetan Nanda s/o Chander Lal to whom the summons are issued, however the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 59 address on the summons was correctly mentioned.
61. This court has carefully considered the submissions. It can be seen from the preceding discussion in respect of PW-52 that he is supposed to have stated that on 02.05.1999, Ashok Dutt (who was charged with abetting the abscondance of Mannu Sharma) went to his place, and made a telephone call to Shyam Sunder Sharma; however, during trial, he resiled from that statement attributed to him, under Section 161 Cr. PC. That statement was unsigned and not made under oath. Therefore, it cannot be said that this noticee/respondent prima facie perjured himself. The notice as against PW-56, Chetan Nanda, is therefore discharged.
Cr. M.A No. 1913/2007: PW-57 Ashok Dutt
62. It was alleged that this noticee recorded a statement on 09.05.1999 under Section 161 to SI Brijender Singh in which he mentioned doing work of furnaces installation in factories and that he was friendly with Shyam Sunder Sharma (Chacha or paternal uncle of Manu Sharma); they had both studied together in DAV School, Chandigarh. He also stated that whenever he went to Chandigarh in connection with business he stayed in Hotel Samrat owned by Shyam Sunder Sharma; as a result the hotel staff and other people there knew him well and could identify him. In a statement he also said that on 02.05.1999 he went to Chandigarh for business and stayed in that hotel from where he placed a phone call to Shyam Sunder Sharma asking about his welfare and further mentioning to him that Manu Sharma‟s name was the topic of the day, on account of the killing of CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 60 Jesicca Lal. Then Shyam Sunder Sharma called him home where he was given Rs.70,000/- (Rupees Seventy thousand) to be handed over to Ravinder Soodan @ Titoo in Mani Mazra. Shyam Sunder Sharma asked him to go to Hotel Samrat and from there along with Mangal, the Manager to hand over the amount to Titoo at Mani Mazra since Titoo had to be sent to America. PW-57 also stated that Shyam Sunder Sharma sent him in his elder brother Vinod Sharma‟s car from where he and Mangal rented a Tata Sumo car and reached Mani Mazra where he asked the Titoo to take the amount. He thereupon told Titoo that he would be at Hotel Samrat till 10.00 AM and thereafter would go to Zeto factory. The next day, Titoo took the amount of Rs.70,000/- from Zeto factory.
63. PW-57 also mentioned in his Section-161 statement that whilst in Hotel Samrat, Shyam Sunder Sharma visited him and was annoyed as to why he did not go to Delhi with Titoo and see him boarding the flight. Shyam Sunder Sharma said that Titoo would be in India and asked him to accompany him to Delhi immediately. Shyam Sunder Sharma thereafter returned to Hotel Samrat from where both of them left in his (Shyam Sunder‟s) Mercedes car to Delhi. They stopped at Ambala at a restaurant for tea from where he spoke to Titoo‟s brother Bitoo from a STD booth and told him that Titoo had not reached America, after which, they reached Delhi, where Shyam Sunder Sharma again spoke to someone in America from STD booth in Nizamuddin mentioning that Titoo had not reached there. Shyam Sunder Sharma dropped him at Jivan Vihar and told him that he was going to his father-in-law Shri S.D. Sharma‟s place who was then the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 61 President. Shyam Sunder Sharma instructed him to enquire whether Titoo had reached America or not. PW-57 then stated that late that evening at 09.00-10.00 PM, Shyam Sunder Sharma telephoned him and scolded him that Titoo had not still reached America and asked him to make an enquiry from Chandigarh and inform him. The witness stated that he did not go to Chandigarh and instead went to his office. On 05.05.1999, he placed a telephone call to America whereupon Bitoo told him that Titoo had departed from Delhi to the US by Gulf Air. He also stated that Shyam Sunder Sharma did not give him any information regarding the murder of Jessica Lal and Manu Sharma‟s arrest and that he read Titoo‟s name in the newspaper and learnt that Manu Sharma had given the murder weapon to Titoo. He also said that it was then that he realized that Shyam Sunder Sharma had taken his undue advantage. He also claimed that he can identify Titoo very well.
64. In a supplementary statement said to have been recorded on 10.05.1999 upon being summoned by the police, he went there and went to the STD booth at Okhla and made a call from telephone no.6924575 to another number, i.e. 0017184768403. That number had been disconnected; he then placed another call to Titoo in New York on the telephone no.0015167751236, and spoke to him first at 09.15 in Punjabi, again at 09.36 for 44 seconds and the last time at 09.38 for 178 seconds. He mentioned that the police officers had taped the conversation between him and Titoo in Punjabi in a tape recorder and they kept the taped cassette in their possession.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 62
65. Deposing as PW-57 in Court, Ashok Dutt denied that he knew Vinod Sharma and that he had any knowledge about his being Manu Sharma‟s father. He also denied contacting Titoo at the instance of Shyam Sunder Sharma; he also denied his acquaintances with Shyam Sunder Sharma. In fact he denied the statement made on 09.05.1999 under Section 161 altogether. He said that whenever he visited Chandigarh on business he stayed with his sister and also denied that he had ever been to Samrat Hotel or that he knew Shyam Sunder Sharma. He also denied as incorrect that he stayed in Samrat Hotel on 02.05.1999 and that Shyam Sunder Sharma had given him Rs.70,000/- to be given to Titoo in Mani Mazra. He denied the entire statement attributed to him about his going to Mani Mazra, Titoo taking the money from him at Zeto factory, Shyam Sunder getting annoyed with him on 04.05.1999, their leaving for Delhi, etc.
66. During the cross-examination with the permission of the Court by the prosecution, he stated that he had telephoned from a PCO on 04.05.1999 and 05.05.1999 but could not remember to whom the calls were made and also does not remember the telephone numbers. He stated that he called to the USA and that the American number to which he placed a call was given by his Consultant Vinod Katyal. He agreed that he had made calls on 05.05.1999 to number 0017184768403 and added that he was enquiring about the equipment needed for his furnace manufacturing company. He denied having made any telephone calls thereafter. He denied the rest of the statements altogether. PW-57 also denied the supplementary statement attributed to him on 10.05.1999 and denied having signed CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 63 any document that day or the previous day when the first Section 161 statement was recorded. He denied that the police ever met him on 09.05.1999 or 10.05.1999 and he stated that he was prepared to give voice sample for comparison. During cross-examination, however, he refused to give voice sample. He also refused the suggestion that if in fact he gives a voice sample that would tally with the conversation allegedly recorded by the police on 10.05.1999 between him and Titoo in America. The witness also claimed he could not recognize the voice recording on the tape when played in Court and stated that it was not his voice.
67. It was argued on behalf of the State that the testimony of PW- 94 gives a complete life to the deposition of PW-57. Counsel submitted that PW-94 SI Brijender Singh met the witness on 09.05.1999 and 10.05.1999. Counsel relied upon the cross- examination of PW-57 during which he agreed that initially he had shown willingness to give his sample voice and went back upon it later upon legal advice. It was argued that the conduct of PW-57 in assisting Titoo to flee the country and also in assisting the other accused to abate the justice was apparent in the initial statement recorded to the police, which was proved through the testimony of PW-94. The accused did not cross-examine that witness. As a result, the truth relating to the facts narrated by PW-57 had been established. Consequently, his omission and failure to support the prosecution case during the trial was a deliberate one solely aimed at assisting the accused.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 64
68. This Court is of the opinion that the arguments of the prosecution with regard to whether PW-57 should be sent up for trial for further proceedings are insubstantial. Both the statements were not made under oath or in judicial proceedings. They were recorded under Section 161. Undoubtedly, during the Court proceedings, the witness‟ attention was drawn to particular portions in his previous statements and he was confronted with them. However, he did not support the prosecution case at all. The only portion which he corroborated was with regard to placing certain telephone calls. Even if that were to be proved for that matter, the opinion of the expert with regard to his voice sample were to be accepted, the same would not amount to substantive or material evidence pointing to PW-57‟s complicity and his being an offender prima facie under Section 193 IPC. As a result of this discussion, it is held that no case is made out against PW-57 Ashok Dutt. The notice as against him is hereby discharged.
Crl. M.A.1914/2007: PW-60 Baldev Singh
69. The prosecution alleged that Baldev Singh made a statement to the police during investigation on 16.07.1999 saying that he owned a general store called M/s Manju General Store in the main market in Moonter. He said that his friend Ishdeep Sharma, S/o M.L. Sharma who belonged to the same village was involved in construction business and about 2½ months earlier, Ishdeep was given the work of renovation in Piccadilly Resort; he used to go to meet him there. The CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 65 owner of Piccadilly Resort Shyam Sunder Sharma used to reside in Chandigarh. He used to meet Shyam Sunder Sharma many times when he went to Manali to meet Ishdeep. When he went to Piccadilly Resort, Manali on 02.05.1999, about 9 o‟clock in the morning to meet Ishdeep, he saw the said Shyam Sunder Sharma along with a semi- balding friend aged about 40 years. Shyam Sunder Sharma and his friend sat in a car and left. The witness was made to see ten photographs and asked to identify that of Shyam Sunder Sharma. He could identify Shyam Sunder Sharma and that of his friend whose name was disclosed to him by the police, i.e., Ravinder Krishan Soodan @ Titoo.
70. In their deposition in Court PW-60 Baldev Singh did not support the prosecution case at all apart from mentioning his business as owner of Manju General Store. With the permission of the Court he was cross-examined, during which he denied that the Delhi Police officials had ever met him in connection with the investigation or that on 16.07.1999. He also denied that his statement was recorded. He further denied that the police had shown the photographs of Shyam Sunder Sharma and ten others from which he could identify his photograph and also the photograph of Titoo. Upon being shown photographs Ex.16/B, he denied knowing that individual.
71. Having considered the totality of circumstances under which this noticee is alleged to have committed the offence of perjury, the Court is of the opinion that previous statements relied upon by the witnesses regarding his knowledge of Shyam Sunder Sharma or having seen Titoo with the former on 02.05.1999, were made only CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 66 under Section 161 Cr.P.C. Apart from this important aspect, the witness would, even if he had supported the prosecution, have played an extremely peripheral role.
72. In view of this discussion, it is held that case alleged against PW-60 has not been prima facie established. The notice issued to him is accordingly discharged.
Cr. M.A No. 1915/2007: Ishdeep Sharma, PW-61
73. The prosecution alleged that Ishdeep Sharma, PW-61 made a statement under Section 161, Cr.PC on 16.07.1999, that he was engaged in construction work. In the month of April/May, renovation work was going on in Piccaddily Resorts, Manali; the premises belonged to Shyam Sunder Sharma, a resident of Chandigarh. He says that from 26.04.1999 to 02.05.1999, Shyam Sunder Sharma, the owner of the resort was present there, in connection with renovation work. He also said that on 02.05.1999 at about 9:00 AM, Shyam Sunder Sharma left with his friend Titoo, whom he knew as he often used to visit Shyam Sunder Sharma. He said that at that time, his friend Baldev Singh was also with him as he had gone to visit the witness.
74. During the trial, PW-61 said that he was a shopkeeper and had never worked as a construction contractor. He deposed that he never did renovation work in Piccaddily Resort, Manali owned by Shyam Sunder Sharma and that the police never met him in connection with the case and had not interrogated him. He deposed that he did not make any statement to the police on 16.07.1999. He denies having made the statement on 16.07.1999 in its entirety.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 67
75. The learned standing counsel submitted that the witness perjured himself, and relied on the testimony of PW-85, who deposed as to the truth of what was stated by PW-61, and also deposed that the latter had in fact recorded the statement under Section 161. Applying the ratio in Hazari Lal and Onkar Namdeo Jadav, this Court holds that the statements made under Section 161 cannot be pressed by the prosecution to allege that the witnesses lied in court. There is no external corroboration; also there is no finding. Consequently, the notice issued to this noticee/respondent, i.e. Ishdeep Sharma, PW-61 (Applicant in Cr. M.A No. 1915/2007) is discharged. Cr. M.A No. 1916/2007: Ali Mohammed, PW-62
76. This noticee/respondent, according to the prosecution, had narrated, in the statement recorded by the police on 14.07.1999, that he used to drive a Tata Sumo taxi, owned by Mohan Singh Juge, at Samalkha taxi stand. In the statement, he also said that on 02.05.1999, at 8 AM his taxi had been used by the Manager of Samrat Hotel, i.e. Mangal Singh, who was accompanied by someone else, to Mani Majra, from where they returned to the hotel after two hours.
77. During the trial, the witness resiled from his statement, and said that he never knew any Mohan Singh, nor had he ever worked as a taxi driver. All the statements attributed to him were denied.
78. This court is of the opinion that the prosecution has not been able to allege a prima facie case against PW-62; the previous statement relied on by it, was made under Section 161, and not on oath. Furthermore, no corroborative material in the form of identification of Mangal or someone else such as Titoo, was placed on CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 68 the record. It is unclear if the witness was made to sign on the previous statement; it was not confronted to him, during the cross- examination by the prosecution, with permission of court. For these reasons, the notice issued to PW-62 Ali Mohammed, is hereby discharged.
Cr. M.A No. 1917/2007: Kulwinder Gill: PW-65
79. PW-65 reportedly stated, during the investigation under Section 161 Cr.PC, that he worked in Punjabi films and that Yograj, a popular cricketer in the past, also used to act in Punjabi films. Yograj was well known to him, and used to visit him in his village. He also stated that on 02.05.1999 Yograj brought a boy to his house and told him that his name was Harkeerat Singh and that he was from America. Yograj further told him that, the boy wanted to invest money in Punjabi films and would, therefore, stay with him for 3/4 days, to see the atmosphere of the place. The witness reportedly said that the police had visited him, with the boy Harkeerat Singh whose real identity Sidhartha Vashisht alias Manu Sharma was revealed by the police. He confirmed that the said boy had stayed in their farm house from 02.05.1999 till the early morning of 06.05.1999. He claimed to be unaware of Manu Sharma or his involvement in a murder case.
80. During deposition in court, PW-65 said that though Yograj Singh and he were professionally known to each other, they were not on visiting terms. In the prosecution‟s cross-examination, with permission of court, he said that they met each other when they were acting in the same Punjabi film. He denied having told the police that they were good friends and that Yograj had visited his farm several CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 69 times. He deposed that Yograj Singh did not visit his house with anyone, in May 1999. He denied having made any statement to the police that on 02.05.1999 Yograj brought a boy to his house and told him that his name was Harkeerat Singh and that he was from America and that Yograj further told him that the boy wanted to invest money in Punjabi films and for this reason would stay with him for 3/4 days, to see the atmosphere of the place. He denied that any SHO from Mehrauli, Delhi had gone to his house on 11.05.1999 with any Sidhartha Vashisht alias Manu Sharma. He further denied having stated to the police, that they brought along with them the same person who resided at his place from 02.05.1999 to 06.05.1999.
81. The learned standing counsel relied on the testimony of PW- 101 Surinder Kumar who said that on 11.05.1999 after affixing a notice on the house entrance of Vikas Gill‟s house at Mohali under Section 160 Cr.PC, for his appearance on 13.05.1999 at Delhi, they affixed another notice at the house of Yograj at Panchkula. Thereafter accused Manu Sharma led the police party to Mahani Khera, district Mukhtsar Punjab where he (Manu Sharma) had stayed when he was absconding. Manu Sharma himself led the police to that house and there the statement of Kulwinder Gill and Rupender Gill (owners of the farm house) was recorded. He says that Kulwinder and Rupender Gill knew Yograj Singh and states that Manu Sharma had been taken to the farm house by Yograj. He says he recorded their statements and the same are available at Ex.PW64/A and Ex.PW65/A. He says that they were correctly recorded by him and nothing was added or deleted by him.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 70
82. As in the case of the previous noticee/ respondents, the court notices that the primary statement relied on to establish perjury, was made by the witness, under Section 161 Cr. PC. Moreover, the complicity of Yograj and Manu Sharma, and the latter‟s evading arrest was the charge for which the witness would at best have been able to depose. However, the prosecution was unable to prove that charge as against Yograj. Therefore, the notice as against PW-65 (Applicant in Crl. M.A No. 1917/2007) cannot be sustained; it is hereby discharged.
Crl. M.A.1919/2007 PW-68 Mangal Singh
83. The prosecution alleged that Mangal Singh was the Manager of Hotel Samrat owned by Shyam Sunder Sharma whose statement was recorded on 09.05.1999 in which he said that on 01.05.1999 in the evening at 07.00 PM Ravinder Krishan Soodan @ Titoo telephoned the hotel and asked him whether Shyam Ji (Shyam Sunder Sharma) was present there. Mangal Singh said that Shyam Ji is in Manali, after hearing which, Titoo disconnected the phone. On 02.05.1999 at 08.00 PM Ashok Dutt, a resident of Delhi and a good friend of Shyam Sunder Sharma, the hotel owner went there and asked him regarding the whereabouts of Shyam Sunder Sharma. He also asked the witness to take him to Titoo‟s house in Mani Mazra. At the instance of Ashok Dutt, the witness called for a Tata Sumo car from the taxi stand opposite the hotel and both of them went to Mani Mazra Town where Ashok Dutt talked to Titoo for about half an hour. Mangal Singh was not privy to the conversation; he noticed that Ashok Dutt tried to give Titoo an envelope which the latter did not take. Thereafter Ashok CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 71 Dutt and he returned to the hotel. Tata Sumo was hired for a rent of Rs.200/-. Ashok Dutt stayed in Samrat Hotel itself. On 04.05.1999 in the early morning around 07.30/08.00 AM, Shyam Sunder Sharma went to the hotel and met Ashok Dutt in his room. He left the hotel in an angry mood and returned there at 10.30 AM. Soon after, he left with Ashok Dutt in his Mercedes car. PW-68 was aware of Ashok Dutt‟s telephone number in Delhi, i.e., 3347484.
84. The witness in his deposition, during the trial, admitted to being Manager of Samrat Hotel for five years and also admitted to his acquaintance with Shyam Sunder Sharma, Managing Director of hotel. He, however, resiled from all other parts of his statement and also denied acquaintance with Ashok Dutt and Ravinder Krishan Soodan @ Titoo. In the cross-examination by the prosecution, the witness was confronted with the previous statement recorded by the police. He, however, denied it as incorrect and was consistent with what he mentioned in the examination-in-chief.
85. The learned Standing Counsel argued that PW-68 deserves to be sent up for further proceedings since he had deliberately resiled from earlier statement. Counsel relied upon the testimony of PW-101 who deposed that statement of Mangal Singh, PW-68/A, was recorded accurately and also that upon the identification of Titoo‟s photograph by Mangal Singh, it was seized. The photograph was produced as Ex.60/D. The witness also deposed that the telephone number of Ashok Dutt, i.e, 3347484 mentioned by Mangal Singh was correctly recorded.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 72
86. In this case too, the prosecution has sought to place reliance exclusively on the previous statement of PW-68 Mangal Singh recorded under Section 161 Cr. P.C. Such statement not being on oath cannot be the basis for an allegation that the witness perjured himself in Court during trial. Furthermore, the Court notices that PW- 101 admitted in the cross-examination that Ex.PW-60/D, the photograph of Titoo seized from Ashok Dutt and identified by PW- 68, was not under a memo. The witness was unable to explain how he got hold of it. Also, there is nothing to suggest that telephone number 3347484 was in fact that of Ashok Dutt and that the police had verified this fact from independent source. Having regard to these facts, this Court is of the opinion that the noticee Mangal Singh who deposed as PW-68 and who is applicant in Crl.M.A.1919/2007 has to be discharged. Consequently, notice in respect of PW-68 Mangal Singh is hereby discharged.
Crl. M.A.1925/2007 PW-95 - Prem Shankar Manocha
87. PW-95 was a ballistic expert. He received a reference for his expert report through a letter by the Addl. DCP of Delhi Police (Ex.PW-95/1). Three queries were addressed to him (Ex.PW-95/1B). These were replied by him in the report (produced as Ex.PW-95/2) and proved by him in the Court after examination. The witness corroborated that he had in fact dictated the report which contained his signatures. The first query pertained to the bore of the two empty cartridges; the second query was whether the empty cartridges were fired from pistol or revolver and the third query was whether the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 73 empty cartridges had been fired from the same firearm or otherwise.
88. After confirming that he had prepared the signed report, the witness proceeded to depose in Court and answered the questions put to him. It would be relevant to extract his deposition made in examination-in-chief.
"XXXXXX XXXXXX XXXXXX And after examination the report was prepared with reference to the queries. My report is Ex.PW-95/2 which was typed at my dictation and bears my sign. at point A. On examination I came to the conclusion as under:-
(i) In answer to querry no.1, in Ex.PW-95/1B regarding the bore of two empty cartridges I came to the conclusion that the caliber of two cartridge cases (mark C1 and C2) by me is .22 Bore.
(ii) Regarding querry no.2 the two cartridge cases in question I came to the conclusion that these two cartridge cases appear to have been fired from pistol.
The querry at no.2 was "please opine whether these two empty cartridges have been from pistol or revolver‖.
(iii)Querry No.3 was 'whether both the empty cartridges have been fired from the same fire arim or otherwise'. In reply to the querry I came to the conclusion that as the suspected fire arm which had not been sent for examination in order to link the cartridge cases with that so my conclusion that no definite opinion could be given on two .22 bore cartridge cases (C/1 and C/2) in order to link with the firearm unless the suspected fire arm is available for examination.
Court question CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 74 Q. For reply to querry no.3 the presence of the fire arm was not necessary. The question was whether the two empty cartridges have been fired from one instrument or from different instruments?
Ans. The question is now clear to me. I can answer the querry here and now. These two cartridge cases were examined physically and under sterio and comparison microscope to study and observe and compare the evidence and the characteristic marks present on them which have been printed during firing. After comparison I am of the opinion that these two cartridge cases C/1 and C/2 appeared to have been fired from two different fire arms.
XXXXXX XXXXXX XXXXXX"
The witness was treated as hostile and permission was granted to cross-examine him, to the prosecution. The relevant portions of his cross-examination are as follows:
"XXXXXX XXXXXX XXXXXX There is nothing in the record of the Court on my report on the basis of which I have given this finding that C1 and C2 were fired from two different fire arms. I had not sent the copy of the worksheet. I have given the opinion on the basis of the worksheet which I have brought today with me.
Q. Can you produce the photographs of the microscopic views of the two cartridges were fired from different firearms so that the same can be examined by the Court?
Ans. I have not taken any photographs. The opinion is formed on the basis of examination under stereo and CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 75 comparison microscope which I have already stated.
Q. Can you produce any record to substantiate that you examined C1 and C2 under microscope or by any other instrument and to prove what you actually observed?
Ans. The worksheet on which the details of examination about two cartridge cases are observed and noted on the basis of which opinion has been formed can be produced in the Court.
Q. When there was no querry as to whether C1 and C2 have been fired from one instrument or from more than one instrument why did you examined that aspect at all?
Ans. Even if the querry was to link C1 and C2 with the firearm used on the offence, the marks on C1 and C2 had to be examined under sterio and comparison microscope to group them whether they appeared to be similar or different.
8. It is correct that in my report I have used the word pistol and not pistols because the querry was whether the firearm used was a revolver or a pistol.
The worksheet does not carry any date of examination as per practice. I can give the worksheet to the Court (worksheet be filed). The handwriting in portion A to A is in the handwriting of my Junior Mr. Satinder Singh Sr. Scientific Officer, the portion B to B is in my handwriting. On the reverse side also portion A to A is in the handwriting of Sr. Scientific Officer Mr. Satinder Singh and the portion C to C is in my handwriting. The figures in the worksheet are drawn by Mr. Satinder Singh.
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 76 Q. Is it correct that according to your own notings at pt. C to C on worksheet you were of the view that definite opinion as to whether the fired cases C1 and C2 have been fired from the same firearm i.e. one firearm or from two different weapons can be given only if the fire arm involved in the question is produced otherwise not.
Ans. I have already stated that these two cartridge cases appeared to have been fired from two different firearm definite opinion would have been given once the weapon is given to me for examination.
The worksheet is Ex.PW95/C-1.
Further cases deferred.
R.O. & A.C.‖
89. In the judgment of this Court, whereby the accused's acquittal was reversed, the Court importantly noticed the discrepancy between the opinion of the expert, Ex.PW-95/2 and his deposition in the Court. This is what the Division Bench had to say in its judgment dated 18.12.2006 (State v. Sidhartha Vashisht & Ors.) 135 (2006) DLT 465:
―XXXXXX XXXXXX XXXXXX
55. Much was sought to be made of the report of the ballistic expert, Roop singh, who opined that the empties recovered from the spot of the occurence appear to have been fired from two weapons. We find from the material on record that the empties from the spot recovered vide recovery Memo Ex.100/1 as also the live cartridge recovered from the Tata Safari, Ex.PW-74/A sent for examination in July, 1999. The report of Roop Singh Ex. PW-89/DB is not evidenced per se under Section 293 of CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 77 the Criminal Procedure Code since it was a photo copy in which it was incumbent upon the defence to examine Roop Singh, if they wished to rely upon his opinion. This having not been done, document Ex.PW-89/DB cannot be pressed into service to put up a case that two weapons had been used in the commission of the crime. As regards the second opinion of PW-95, Prem Sagar Manocha, we find that the opinion categorically states that it is not possible to say whether the cartridges have been fired from two different weapons. However, following a Court question, the witness seems to have rattled out everything to the contrary to his own report to support the two weapon theory which was being pressed by the defence. This witness does not appear to be a trustworthy witness. Once having rendered an opinion that it was not possible to give a report regarding the empties being fired from two separate weapons, he could not have testified to the contrary without specifically carrying out tests for that purpose afresh. The sudden emergence of the worksheets in the Court raises grave doubts as to the trustworthiness of this witness and genuineness of the work sheets. We need hardly belabour over this so-called scientific evidence since its veracity is not beyond doubt. The two weapon theory appears to be a concoction to the defence and a manipulation of evidence in particular that of Shyan Munshi, PW-2, who, for the first time in Court, introduced such a story. The very fact that the empties were sent for examination at such a belated stage, cannot rule out the possibility of foul play to destroy the Prosecution's case during trial. We, therefore, do not think it necessary to go into further analysis of the evidence of Prem Sagar Manocha.
XXXXXX XXXXXX XXXXXX"
90. It was argued on behalf of the State by the learned Standing Counsel that the ballistic expert's deposition, Ex. PW-95 was CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 78 calculated to let the accused Manu Sharma off the hooks. It was submitted that the witness had stated that no definite opinion could be given whether the two empty cartridges were fired from the same weapon. However, on the basis of the same material, he took a somersault and gave a completely contrary opinion in the Court saying that they appear to have been fired from different weapons. It was submitted that by the time this witness stepped on to the box, the defence had formed its definite plan about a "two-weapon theory". The deposition of this witness was sought to support the "two-weapon theory". That this Court and the Supreme Court rejected the theory did not in any way undermine the fact that Ex.PW-95 gave false evidence.
91. Learned counsel for the noticee, PW-95 argued that the deposition given by him was in the capacity as an expert and a professional. There was no material on record to suggest that it was for any other purpose or that the opinion in the form of his court deposition was not honest.
Position of expert witness
92. It would be instructive to notice that an expert witness who deposes in an area of professional expertise, be it medical, forensic, engineering, pharmaceutical, or any other science, owes a duty to the court to state an honest opinion. The effect of such expert testimony during criminal trials cannot be undermined; though not conclusive on matters that an expert deposes, or gives an opinion, it can form a crucial component in the Court‟s conclusions. The onerousness of the task thus, cannot be understated. At the same time, the expert, as a man of professional competence and ability has to be assured CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 79 autonomy and independence, so as to ensure that he is able to fearlessly discuss, and even change his opinion for a good reason. In the UK, for some time, there was a debate whether an expert had to be granted immunity in regard to matters on which he deposes. Departing from a century old established rule that experts are immune from liability for their opinions, in Jones v Kaney 2011 (2) All.ER. 271 (SC), speaking for a majority of five judges, the President of the UK Supreme Court, Lord Phillips, said:
―48. In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818 Laddie J, at p 841, quoted from an article, ―The Expert Witness: Partisan with a Conscience‖, in the August 1990 Journal of the Chartered Institute of Arbitrators by a distinguished expert who suggested that it was appropriate for an expert to act as a ―hired gun‖ unless and until he found himself in court where ―the earlier pragmatic flexibility is brought under a sharp curb, whether of conscience, or fear of perjury, or fear of losing professional credibility. It is no longer enough for the expert like the ‗virtuous youth' in the Mikado to ‗tell the truth whenever he finds it pays': shades of moral and other constraints begin to close up on him.‖
49. Laddie J was rightly critical of the approach of this expert. There is no longer any scope, if indeed there ever was, for contrasting the duty owed by an expert to his client with a different duty to the court, which replaces the former, once the witness gets into court. In response to Lord Woolf's recommendations on access to justice the CPR now spell out in detail the duties to which expert witnesses are subject including, where so directed, a duty CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 80 to meet and, where possible, reach agreement with the expert on the other side. At the end of every expert's report the writer has to state that he understands and has complied with his duty to the court.
...................... ................. ................. An expert's initial advice is likely to be for the benefit of his client alone. It is on the basis of that advice that the client is likely to decide whether to proceed with his claim, or the terms on which to settle it. The question then arises of the expert's attitude if he subsequently forms the view, or is persuaded by the witness on the other side, that his initial advice was over-optimistic, or that there is some weakness in his client's case which he had not appreciated. His duty to the court is frankly to concede his change of view. The witness of integrity will do so. I can readily appreciate the possibility that some experts may not have that integrity. They will be reluctant to admit to the weakness in their client's case. They may be reluctant because of loyalty to the client and his team, or because of a disinclination to admit to having erred in the initial opinion. I question, however, whether their reluctance will be because of a fear of being sued - at least a fear of being sued for the opinion given to the court. An expert will be well aware of his duty to the court and that if he frankly accepts that he has changed his view it will be apparent that he is performing that duty. I do not see why he should be concerned that this will result in his being sued for breach of duty. It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.‖
93. The testimony of an expert in India is no different; it differs from deposition of other witnesses, only to the extent that the others‟ testimony is based on their observation and the first-hand experience they experience, whereas in the case of the expert, the testimony is CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 81 based on the opinion he forms on the basis of the wealth of experience he gains, in the field. And yet, there is no difference in the character and content of the duty both kinds of witnesses, owe to the Court.
94. In the present case, PW-95 Prem Sagar Minocha had clearly stated his inability to give an opinion about the weapon and if it had fired the two empty cartridges that had been examined by him. However, he said, during court deposition, that the cartridges appeared to have been fired from two separate weapons - a clear departure and contradictory to what he said in his report. He testified as to the correctness of his report in the earlier part of his deposition. On confrontation, the witness was unable to say how he could be definite that the cartridges were fired from two weapons. As this court noticed, in its judgment, this conduct helped the defence urge the two weapon theory which was accepted by the Trial Court.
95. This court has considered the rival submissions. While undoubtedly an expert witness deposes on the basis of his observations, and renders an opinion, there is no bright line which segregates his testimony from those of other witnesses. It cannot be vouchsafed definitively - as in most other matters - that expert opinion cannot ever be untrue, or dishonest. An expert may not be accurate or correct - expecting that of any human being, at all times, is to expect an impossibility. What the law expects from an expert is to give an honest opinion, based on the observation she or he makes, of the matters presented to her or him, and more crucially substantiate it in an objective manner. This court is of the opinion that prima facie, PW-95 appears to have failed in that duty, and his action in resiling CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 82 from the position he took in the report (Ex. PW-95/2) is suspect, and questionable. In the circumstances, a case for further proceedings against this witness (PW-95) has been made out. Crl. M.A No. 1925/2007 is accordingly dismissed.
The deleterious effect of perjury
96. In the earlier part of this judgment, this Court had dwelt upon the origins of the offence of perjury and its adverse impact on the criminal justice system. Forswearing, as perjury was once called, challenges the fairness of the judicial system, and undermines the credibility of the process. In Swaran Singh v. State of Punjab, (2000) 5 SCC 668, the Supreme Court lamented the practice of perjury and further observed that:
―The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail. Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.‖
97. Courts in India have noticed the reluctance of members of the public to report crimes, and volunteer to depose in trials. The reasons vary vastly; it can be the sheer uncertainty of conclusion of CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 83 proceedings, the perception that one who is willing to depose in trials, is often unduly harassed by the police, and later, through systemic delays in Courts. This results in strange situations where the Courts of law have to, pre-dominatingly rely on testimonies of police witnesses.
98. The more serious concern faced by courts is perjury. A trend observed is that in an alarmingly large number of criminal proceedings in the country public witnesses have turned hostile. These have led to contradictory testimonies resulting in acquittal of the offenders. The course of the present case itself has revealed that a large number of public witnesses turned hostile. Whilst the standards which courts apply for sending individuals for a prosecution under Section 340 Cr. PC are clear, it would be necessary to recount the reasons why public witnesses often do not support the prosecution.
The first, and most obvious reason is that statements recorded under Section 161 Cr. PC are not deemed admissible; if the witness resiles from those statement it is open to the prosecution to have her (or him) declared hostile, and conduct cross- examination, including indicating the previous statements, in order to elicit what it considers true facts. In such a situation, if the witness still does not support the prosecution, undoubtedly he cannot be deemed to have even prima facie perjured himself. There are strong public policy considerations for this course; the statement under Section 161 is not under oath; nor is the witness expected to sign the statement. The second situation is where the witness states one thing during examination-in-chief and the other during cross-examination. Here, the court could possibly take a view - given the surrounding circumstances, that the witness CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 84 prima facie perjured himself. However, beyond the bare fact of the hostility of the witness, and the application or administration of penal law (perjury) the legal regime in India does not recognize the underlying causes for this malaise, which has plagued criminal prosecutions.
99. There cannot be any doubt that in many criminal cases, the accused possess and wield considerable power and influence, be it in terms of office, or money. The perception of such power being wielded liberally and without compunction, to harass, intimidate, or oftentimes win over witnesses, is wide spread; there is no gainsaying that such perception is borne out in case after case, when witnesses who are considered bulwarks of the prosecution version "turn turtle"
and do not support the state. A case by case approach, to contain, prevent, and eliminate altogether, such events, has to be adopted. Witnesses who need to be supported, and protected from threats of harm to themselves, or their family members or even their business interests, should be given wholehearted and unconditional protection. Those who cynically abuse the system, by turning hostile, for monetary or other extraneous consideration, have to be dealt with severely, and made to stand trial for perjury and other such offences.
100. In the order of the Supreme Court reported as National Human Rights Commission v. State of Gujarat and Others, 2003 (9) SCALE 329, the referred to the need for legislation on the subject (of witness protection):
―No law has yet been enacted, not even a scheme has been framed by the Union of India or by the State CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 85 Government for giving protection to the witnesses. For successful prosecution of the criminal cases, protection to witnesses is necessary as the criminals have often access to the police and the influential people. We may also place on record that the conviction rate in the country has gone down to 39.6% and the trials in most of the sensational cases do not start till the witnesses are won over. In this view of the matter, we are of opinion that this petition (by NHRC) be treated to be one under Art. 32 of the Constitution of India as public interest litigation.‖ In PUCL v. Union of India, 2003 (10) SCALE 967 while dealing with the validity of Section 30 of the Prevention of Terrorism Act, 2002, the Supreme Court referred to in detail to witnesses protection and to the need to maintain a just balance between the rights of the accused for a fair trial (which includes the right to cross-examine the prosecution witnesses in open court) and to the need to enable (a) prosecution witnesses whose identity is known to the accused to give evidence freely without being overawed by the presence of the accused in the Court and (b) protection of the identity of witnesses who are not known to the accused, - by means of devices like video- screen which preclude the accused from seeing the witness even though the Court and defence counsel will be able to see and watch his demeanour. Zahaira Habibulla H. Sheikh & Another v. State of Gujarat and Others AIR 2004 SC 346 (the Best Bakery Case), dealt with an instance of 37 prosecution witnesses, including several eye witnesses- many relatives of the deceased - turning hostile during the trial. The 21 accused persons were all acquitted. The State‟s appeal CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 86 was dismissed by the High Court. Reversing the acquittal and ordering a retrial outside Gujarat, in the State of Maharashtra, the Supreme Court made several observations on the question of protection of witnesses. There too, the Supreme Court observed that, ―Legislative measures to emphasise prohibition against tampering with witnesses, victim or informant, have become the imminent and inevitable need of the day‖. The Court also referred to "Witness Protection Programmes" formulated in various countries and observed: ―The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses‖. These were again reiterated in National Human Rights Commission v. State of Gujarat and Ors 2009 (6) SCC 342.
101. Sakshi v. Union of India, 2004 (5) SCC 518 underlined that in matters relating to such sexual offences there is need to provide victim protection at the time of recording statement made before the Court. On the need for legislation, the Supreme Court again observed:
―We hope and trust that Parliament will give serious attention to the points highlighted by the petitioner and make appropriate suggestions with all the promptness it deserves.‖
102. In the judgment of this Court (dated 14th October 2003, in W.P (Crl).247 of 2002) in Ms. Neelam Katara v. Union of India, certain directions and guidelines on witness protection were been issued, pending the enactment of legislation. The guidelines suggested by the Court, are applicable to cases where an accused is punishable with death or life imprisonment. The significance of the guidelines is that they are not confined to cases of rape, or sexual offences or terrorism CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 87 or organized crime. The Court suggested the following scheme:
―Definitions:(1)
(a) ―'Witness' means a person whose statement has been recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure pertaining to a crime punishable with death or life imprisonment.
(b) ‗Accused' means a person charged with or suspected with the commission of a crime punishable with death or life imprisonment.
(c) ‗Competent Authority' means the Secretary, Delhi Legal Services Authority.
(d) Admission to protection: The Competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration.
(2) Factors to be considered:
In determining whether or not a witness should be provided police protection, the Competent Authority shall take into account the following factors:
(i) The nature of the risk to the security of the witness which may emanate from the accused or his associates.
(ii) The nature of the investigation in the criminal case.
(iii) The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.
(iv) The cost of providing police protection to the witness.
(3) Obligation of the police:
(i) While recording statement of the witness under Sec.
161 of the Code of Criminal Procedure, it will be the duty of the Investigating Officer to make the witness aware of the ‗Witness Protection Guidelines' and also the fact that in case of any threat, he can approach the Competent Authority. This, the Investigating Officer will CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 88 inform in writing duly acknowledged by the witness.
(ii) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.‖
103. The above guidelines made by this Court are the first of their kind. They deal with one aspect of the matter, namely, protection of the witnesses, but the Court had no occasion to consider the confidentiality and protection of a witness‟s identity before or during trial or the safeguards necessary to ensure that the accused‟s right to a fair trial is not jeopardized.
Law Commission Reports on Witness Protection: 14th Report of Law Commission (1958): ‗inadequate arrangements' for ‗witnesses':
104. In the 14th Report of the Law Commission (1958), „witness protection‟ was considered from a different angle. The Report referred to inadequate arrangements for witnesses in the Courthouse, the scales of travelling allowance and daily batta (allowance) paid to a witness for attending the Court in response to summons from the Court. This aspect too is important if one has to keep in mind the enormous increase in the expense involved and the long hours of waiting in Court with tension and attending numerous adjournments. Here the question of giving due respect to the witness‟s convenience, comfort and compensation for his sparing valuable time is involved. If the witness is not taken care of, he or she is likely to develop an attitude of indifference to the question of bringing the offender to justice. Fourth Report of the National Police Commission (1980): handicaps of witnesses:
CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 89
105. In June 1980, in the Fourth Report of the National Police Commission, certain inconveniences and handicaps from which witnesses suffer have been referred to. The Commission again referred to the inconveniences and harassment caused to witnesses in attending courts. The Commission referred to the contents of a letter received from a senior District and Sessions Judge to the following effect:
―A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‗foolish' enough to remain there till the arrival of the police.‖ The Police Commission also referred to the meagre daily allowance payable to witnesses for appearance in the Courts. It referred to a sample survey carried out in 18 Magistrates' Courts in one State, which revealed that out of 96,815 witnesses who attended the Courts during the particular period, only 6697 were paid some allowance and even for such payment, an elaborate procedure had to be gone through.
154th Report of the Law Commission (1996): Lack of facilities and wrath of accused referred:
106. In the 154th Report of the Commission (1996), in Chapter X, the Commission, while dealing with „Protection and Facilities to Witnesses‟, referred to the 14th Report of the Law Commission and the Report of the National Police Commission and conceded that there was ‗plenty of justification for the reluctance of witnesses to come CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 90 forward to attend Court promptly in obedience to the summons‖. It was stated that the plight of witnesses appearing on behalf of the State was pitiable not only because of lack of proper facilities and conveniences but also because witnesses have to incur the wrath of the accused, particularly that of hardened criminals, which can result in their life falling into great peril. The Law Commission recommended, inter alia, as follows:
(a) Realistic allowance should be paid to witnesses for their attendance in Courts and there should be simplification of the procedure for such payment.
(b) Adequate facilities should be provided to witnesses for their stay in the Court premises. Witnesses must be given due respect and it is also necessary that efforts are made to remove all reasonable causes for their anguish.
(c) Witnesses should be protected from the wrath of the accused in any eventuality.
(d) Witnesses should be examined on the day they are summoned and the examination should proceed on a day-to-day basis.
172nd Report of the Law Commission (2000): Reference by Supreme Court to the Law Commission: screen technique:
107. In March 2000, the Law Commission submitted its 172nd Report on „Review of Rape Laws‟. The Law Commission took the subject on a request made by the Supreme Court of India (vide its CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 91 order dated 9th August, 1999, passed in Criminal Writ Petition (No. 33 of 1997), Sakshi vs. Union of India. The Law Commission gave its 172nd Report on 25th March, 2000. In respect of the suggestion that a minor who has been assaulted sexually should not be required to give his/her evidence in the presence of the accused and he or she may be allowed to testify behind the screen, the Law Commission referred to Section 273 of the Cr.P.C., which requires that ‗except as otherwise expressly provided, all evidence taken in the course of a trial or other proceeding, shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader'. The Law Commission took the view that his general principle, which is founded upon natural justice, should not be done away with altogether in trials and enquiries concerning sexual offence. However, in order to protect the child witness the Commission recommended that it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused, while at the same time providing an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his advocate for an effective cross- examination. Accordingly, the Law Commission in Para 6.1 of its 172nd Report recommended for insertion of a proviso to section 273 of the Cr.P.C. 1973 to the following effect:
―Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 92 ensure that such person is not confronted by the accused while at the same time ensuring the right of cross- examination of the accused‖.
108. In December, 2001, the Commission gave its 178th Report for amending various statutes, civil and criminal. That Report dealt with hostile witnesses and the precautions the Police should take at the stage of investigation to prevent prevarication by witnesses when they are examined later at the trial. The Commission recommended three alternatives, (in modification of the two alternatives suggested in the 154th Report). They are as follows:
―1. The insertion of sub-section (1A) in Section 164 of the Code of Criminal Procedure (as suggested in the 154th Report) so that the statements of material witnesses are recorded in the presence of Magistrates. [This would require the recruitment of a large number of Magistrates].
2. Introducing certain checks so that witnesses do not turn hostile, such as taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer.
3. In all serious offences, punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded, at the earliest, by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973. For less serious offences, the second alternative (with some modifications) was found viable.‖ The Law Commission, in the above Report, did not suggest any measures for the physical protection of witnesses from the ‗wrath of the accused' nor dealt with the question whether the identity of CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 93 witnesses can be kept secret and if so, in what manner the Court could keep the identity secret and yet comply with the requirements of enabling the accused or his counsel to effectively cross-examine the witness so that the fairness of the judicial procedure is not sacrificed. Witness protection laws and policies the world over
109. Under the English law, threatening a witness from giving evidence is contempt of court. So also any act of threat or revenge against a witness after he has given evidence in Court, is also considered as contempt. Recently the U.K. Government enacted a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping with or could help with the investigation of a crime. Under a similar law in Hong-Kong, Crimes Ord. (Cap 200) HK, if the threat or intimidation is directed even as against a friend or relative of the witness, that becomes a punishable offence. In the United States, the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control Act, 1984 have authorized the Witness Security Program. The Witness Security Reform Act, 1984 provides for relocation and other protection of a witness or a potential witness in an official proceeding concerning an organized criminal activity or other serious offence.
Protection may also be provided to the immediate family of, or a person closely associated with, such witness or potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding. The Attorney CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 94 General takes the final decision whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person. In a large number of cases, witnesses have been protected, relocated and sometimes even given new identities. The Program assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient. The Attorney General shall not provide protection to any person if the risk of danger to the public, including the potential harm to innocent victims, overweighs the need for that person's testimony. A similar program exists in Canada under the Witness Protection Act, 1996. The purpose of the Act is "to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters" [Section 3]. Protection given to a witness may include relocation, accommodation and change of identity as well as counselling and financial support to ensure the security of the protectee or to facilitate his becoming self- sufficient. Admission to the Program is determined by the Commissioner of Police on a recommendation by a law enforcement agency or an international criminal court or tribunal [Sections 5 and 6]. The extent of protection depends on the nature of the risk to the security of the witness, the value of the evidence and the importance in the matter. The Australian Witness Protection Act, 1994 establishes the National Witness Protection Program in which (amongst others) the Commissioner of the Australian Federal Police arranges or provides protection and other assistance for witnesses [Section 4]. The CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 95 witness must disclose a wealth of information about himself before he is included in the Program. This includes his outstanding legal obligations, details of his criminal history, details of his financial liabilities and assets etc. [Section 7]. The Commissioner has the sole responsibility of deciding whether to include a witness in the Program.
110. The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this office is responsible for the protection of witnesses and related persons and exercises control over Witness Protection Officers and Security Officers [Section 4]. Any witness who has reason to believe that his safety is threatened by any person or group or class of persons may report such belief to the Investigating Officer in a proceeding or any person in-charge of a police station or the Public Prosecutor etc. [Section 7] and apply for being placed under protection. The application is then considered by a Witness Protection Officer who prepares a report, which is then submitted to the Director [Section 9]. The Director, having due regard to the report and the recommendation of the Witness Protection Officer, takes into account the following factors, inter alia, [Section 10] for deciding whether a person should be placed under protection or not, i.e. the nature and extent of the risk to the safety of the witness or related person; the nature of the proceedings in which the witness has given evidence or may be required to give evidence and the importance, relevance and nature of the evidence, etc. In European countries such as Italy, Germany and CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 96 Netherlands, the Witness Protection Programme covers organised crimes, terrorism, and other violent crimes where the accused already know the witness/victim.
111. Apart from public interest considerations of ensuring a proper and fair trial, where witnesses can depose without fear of intimidation, or threat, the right of such witnesses, who do step forward and courageously depose, to a life free from harassment, during and after conclusion of trial, has to be considered in the backdrop of Article 21. Obviously, this right has to be appropriately balanced with other considerations. As discussed previously the subject of witness protection and its felt need has been commented widely in judgments of courts, including the Supreme Court. It has been the subject of comment, and recommendations of several law Commissions and other official bodies. The executive has not, however, evolved any policy nor has Parliament or any state legislature brought in any appropriate legislation. The continuation of such status quo has resulted in subversion of the judicial process in a large number of cases. Though this Court is conscious of its limitation, in that general directions which implicate with policy issues should be generally not issued, having regard to the limitation of the judicial process, yet, at the same time, the Court recollects that in such situations involving executive or legislative inaction or vaccum, the courts can, in matters of public importance, issue orders and directions which are appropriate to meet the challenges. Thus, in Vishaka v. State of Rajasthan (1997) 6 SCC 241 the Supreme Court prescribed guidelines for universal application, to deal with the menace of sexual CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 97 harassment at the workplace, stating this was essential in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places." In Vineet Narain v. Union of India 1998 (1) SCC 226, again, the Court noticed that in the absence of enacted law or policies, guidelines and directions had been issued in a large number of cases; and that such practise had taken root in our the country‟s Constitutional jurisprudence; it was essential to fill the void in the absence of suitable legislation to cover the field. The Court commented that:
―As pointed out in Vishakha (supra), it is the duty of the executive to fill the vacuum by executive orders because its field is co-terminus with that the legislature, and where there is inaction even by the executive for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.‖ The other instances where the Court issued directions to fill a legislative or policy void, are Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244 (regulating inter-country adoptions), Common Cause v. Union of India (1996) 1 SCC 753 (regulating collection, storage and supply of blood for blood transfusions), M.C. Mehta v.
State of Tamil Nadu (1996) 6 SCC 756 (enforcing prohibition on child labour).
112. The Court is conscious that the Supreme Court issued CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 98 directions in exercise of its powers under Article 32 and Article 142. In the present instance, the Court‟s perspective is its suo motu action in considering appropriate directions in regard to the large number of witnesses who turned hostile, and whether action under Section 340 Cr. PC is warranted. This Court cannot obviously issue directions for universal application; nor does it possess overarching power akin to the one under Article 142 of the Constitution. Yet, acting within the scope of its power, it is of the opinion that suitable directions to the executive, particularly the concerned officials and authorities of the NCT to evolve a witness protection program which would ensure fairness of the trial process, secure the public interest in protection of witnesses, and at the same time take care that none of the accused‟s rights to a fair trial are compromised, are evolved and implemented.
113. In view of the above discussion, the following directions are issued:
(1) The Govt of NCT shall immediately and in any event within ten weeks from today, issue a Witness Protection Policy which shall provide the principles and guidelines that the Police, the prosecution and executive agencies shall follow. The guidelines shall incorporate the material elements indicated in the various reports of the Law Commission, court directions, and any other recommendations of any official committee in that regard.
(2) In any event, the law enforcement agencies (Police, Central Bureau of Investigation or the National Investigation Agency) shall conduct an assessment of the threat or potential for danger to any witness or witnesses, cited in criminal trials (this shall include the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 99 victim of a crime, as well as his or her family member or members, as well as family members of other witnesses). The assessment would include analysis of the extent the person or persons making the threats appear to have the resources, intent, and motive to implement the threats; seriousness and credibility of the threats. If such threats are assessed to be sufficiently serious, and the witnesses request law enforcement assistance, witness protection funds can be used to provide assistance to witnesses which helps law enforcement keep witnesses safe and help ensure witnesses appear in court and provide testimony.
(3) For the purposes of direction (2) above, gradation of the risk or threat can be categorized. Threat perception would be highest and ranked A if the witness, victim, or his or her family members run the risk of danger to their lives or normal way of living for a substantial period, extending beyond the trial and its conclusion. The second category can be ranked B, where the risk extends to the witness and his or her family members only during the investigation process and/or trial. The third category, C can be where the risk is moderate, and extends to harassment or intimidation of the witness during the investigation process. These instances are merely illustrative and the executive agencies can formulate better approaches, having regard to the nature of the case and the kind of threat perceptions that are encountered.
(4) Depending on the categorization of threat perception, the agency concerned shall ensure that all appropriate security cover is extended to the witness, victim, or his or her family members for the CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 100 appropriate duration, i.e. the investigation, trial and post-trial periods.
Adequate measures to ensure that the lives of such individuals are free from threat for sufficiently long period or periods, including but not limited to extending security cover to them, shall be taken. The agencies concerned shall also ensure that the witnesses or victims are transported to safety during investigation and trial, and proper security is given to them.
(5) The above security measures shall be independent of other action, such as granting funds and resources to the witnesses to relocate and start a new life, engage in new avocations or professions, as the case may be. These may be one time funds, or proper and full assistance for such relocation. The agencies concerned shall also factor in and include new identity for witnesses and victims. (5) In the event of any change in witness identity, it shall be the responsibility of the state to ensure that the knowledge and details of such move is restricted to the barest minimum number of people, and such new identity is fully protected. Access to such information shall be limited, and all methods of securing it shall be deployed. (6) As long as any individual is the subject of such program the agencies shall ensure that an officer or given set of officers is made available to each such individual, to cater to any emergent situation, including the eventuality of such cover or identity getting exposed. (7) The above scheme or program shall be applicable in the first instance, to capital crimes or those punishable with life imprisonment, including the offence of rape. In any other case, depending on the gravity of the threat perception, the provisions of the program shall be CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 101 made applicable.
(8) Adequate budgetary assessment to implement this programme shall be made and a separate fund, to implement the scheme, shall be created, within the said period of ten weeks by the Finance Department of the Govt. of Delhi, in consultation with all the stake holders, i.e. police agencies, Department of Home and the Law Department. The fund shall be operable in the manner prescribed by the said departments, through applicable guidelines, for the purpose of proper effectuation of this scheme.
(9) The programme shall include a provision whereby witnesses are informed of its existence, whenever their statements are to be recorded under the Code of Criminal Procedure, both during investigation or during trial, to enable them to seek protection. It is open to the court concerned also to entertain applications in that regard, and forthwith seek the response of the prosecuting agency. The latter shall conduct threat analysis with utmost expedition and in any event within three days of receiving it. Pending such analysis, the agency shall consider and grant minimum security cover as may be appropriate in the circumstances.
(10) The above directions shall bind and govern the Govt. of NCT of Delhi, till it is replaced by suitable legislation. (11) The Govt of Delhi shall prepare an Action Taken Report, and place it before the Court, at the end of ten weeks. (12) The matter shall be placed before an appropriate Bench, to be nominated by the Hon‟ble Chief Justice who may consider treating it as a public interest litigation, to be dealt with as such, regarding CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 102 suitable monitoring of the scheme till it gets underway in an appropriate manner.
114. In view of the above discussion, Crl. M.A.Nos.1899- 1902/2007, 1904/2007, 1906/2007, 1908-1910/2007, 1912- 1917/2007, 1919/2007 and 1926/2007 are hereby dismissed. Crl. M.A 1898/2007 and Crl. M.A 1925/2007 are hereby disposed of with a direction to the Registrar General of this Court to file a complaint before the competent court having jurisdiction to consider and take action under Section 340 Cr.PC against the respondents in the above applications. All rights and contentions of such individuals to defend themselves are expressly kept open; it is expressly stated that nothing mentioned in this judgment shall be reflective of the merits of the matter.
115. The Registry is directed to list the matter next on 8th July, 2013 before an appropriate Bench, after obtaining orders from the Hon‟ble Chief Justice, and subject to his order, registering the present proceedings as a public interest litigation, for the purpose of monitoring implementation of the directions contained in Para 110 above.
S. RAVINDRA BHAT (JUDGE) G.P. MITTAL (JUDGE) MAY 22 2013 CRL.M.A.1898/2007 and connected Crl.M.A.s in CRL.A.193/06 Page 103