PW-2: Shyan Munshi

31. PW-2, Shyan Munshi, is the maker of the FIR. His testimony has beenattacked as being hit by Section 162 Cr.P.C. on the ground that his statement tothe Police was signed, it was used to cross-examine the witness by theProsecution itself and, therefore, his evidence cannot be relied upon. It wasthe submission of Mr. Jethmalani that really the FIR was the phone call fromRohit Bal or PCR message to the concerned Police Station which set the criminalprocess into motion.

32. We have gone through the testimony of this witness. He has admitted hispresence at the Tamarind Cafe at the time of the incident. He has also admittedthat Jessica Lal was shot at by someone on her refusing to oblige him with adrink. To this extent, there is no doubt that he has supported the Prosecution'sversion. He has, however, deviated from his earlier version before the Policegiven by him in the form of his first information statement, Ex. PW-2/A inasmuchas at that time he had claimed that there was one person only who had demandedwhisky from Jessica Lal and on her refusal to give him whisky he had first firedtowards the ceiling and then a second shot at her while now in Court he hastaken a somersault and come out with a version that there were two gentlemen atthe bar counter, one of whom was wearing a white T- shirt, which, as per theProsecution case, Sidhartha Vashishta @ Manu Sharma was wearing, who demandedwhisky from Jessica Lal and when Jessica Lal refused to give him whisky, hefired a shot towards the ceiling and at that time another gentleman fired atJessica Lal which injured her. 

The witness also claimed in court that SidharthaVashisht @ Manu Sharma was not the person who either fired towards the ceilingor at Jessica Lal. Because of this changed version, he was cross-examined by theSpecial Public Prosecutor. In his cross-examination, he was duly confronted withhis signed statement, Ex. PW-2/A, wherein he had categorically claimed that itwas only one person who had fired both the shots. Of course he denied havingmade any such statement to the Police.

However, we have no manner of doubt thaton this aspect he is telling a complete lie. He has admitted his signatures onthe said statement. He has not claimed that Police officials had exerted anypressure on him to put his signatures on that statement. All that he is nowclaiming is that the said statement was recorded in Hindi while he had narratedthe whole story in English as he did not know Hindi at all. We do not find thisexplanation of this witness to be convincing. Whether he had dictated hisversion to PW-100, SI Sunil Kumar, in English or not has no significance becauseSI Sunil Kumar has categorically stated during his evidence that he had reducedinto writing whatever had actually been narrated to him by this witness. We haveno reason to disbelieve SI Sunil Kumar on this aspect of the matter. We cannotaccept that SI Sunil Kumar would have concocted such a detailed statement on hisown without the witness having actually told the facts to him. 

There is anotherreason also for not accepting the version of Shyan Munshi and that is that evenBeena Ramani says that Shyan Munshi's statement was recorded by the Police inher presence. Apart from that, it is significant to note that the statement ofthis witness was recorded on 30th April, 1999 itself and thereafter he neverraised any grievance at any time before any authority that the Police hadrecorded incorrect version in his statement Ex. PW-2/A. He has come out withthis explanation for the first time in Court and we have no manner of doubt fromthe facts and circumstances of this case that he was won over by the accused,Sidhartha Vashisht @ Manu Sharma. 

Learned Additional Solicitor General hadpointed out to us the trial court record, about which no dispute was raised onbehalf of the accused, Sidhartha Vashisht @ Manu Sharma, where in one of theproceedings recorded by the Additional Sessions Judge at the time of hearing ofbail application of Sidhartha Vashisht @ Manu Sharma, the presence of oneAdvocate , Ashok Bansal was recorded on behalf of Sidhartha Vashisht @ ManuSharma. Shyan Munshi, during his cross-examination by the Public Prosecutor, hashimself admitted that while coming to Court to depose in this case was escortedby his counsel Mr. Ashok Bansal who had earlier appeared as counsel forSidhartha Vashisht @ Manu Sharma and also appeared at the time of pronouncementof judgment on 21.2.2006 for Manu Sharma and other accused as well. 

This telltale circumstance leaves no doubt that the new story this witness has introducedduring trial is an 'afterthought' as also a total lie at the instance of theaccused. His credibility was totally impeached during his cross-examination bythe Public Prosecutor. In these circumstances, we cannot consider this witnessto be of any worth, although we agree with the submission of Mr. Jethmalani thatsome part of the evidence of even a hostile witness can be taken intoconsideration provided it inspires confidence and he is considered to be areliable witness. We do not consider this witness to fall in that category ofwitnesses. We, therefore, do not find that the testimony of Shyan Munshi, in anyway, can be utilised to the benefit of the accused, Sidhartha Vashisht @ ManuSharma. Even if the deposition of PW-2 is discarded, the case of the Prosecutionhardly gets affected. In this view of the matter we feel it unnecessary to gointo the argument of Mr. Jethmalani that Ex. PW-2/A cannot be treated as an FIR.