43. The identification of the accused in Court by PWs. 1, 6, 20 and 24 was also challenged by counsel for the respondents on the ground that most of the witnesses admit that Police had shown them the photos of the culprits during investigation and for that reason Test Identification Parade was also refused. We think that on this ground, the evidence of PWs. 1, 6, 20 and 24 cannot be disbelieved. As per the Prosecution case, Sidhartha Vashisht @ Manu Sharma could not be traced out till 6.5.1999 on which day only he surfaced after his friends, Amardeep Singh, Alok Khanna had implicated him for the murder. The Police from 30.4.1999 itself suspected him and Manu Sharma was evading Police contacting him for interrogation, suspicion of Police got converted into a positive case of his involvement and in that event, his photo was shown to witnesses who had been claiming that they would be able to identify the culprits, there was nothing objectionable in that action of the investigating agency.
44. Regarding the allegation that Sidhartha Vashisht @ Manu Sharma was absconding, his counsel argued that it was false since the moment the co-accused implicated him on 5.5.1999, Manu Sharma himself surrendered on 6.5.1999 and before that, the Police did not have any evidence against him nor was he required to appear before the Police. This argument overlooks the fact that this accused has himself taken a plea that his farmhouse was raided on 30.4.1999 and certain articles were seized from there including his licensed pistol. This plea demolishes the argument that he was not evading the Police. If he says that his farmhouse had been raided on 30.4.1999, then he should have surrendered on the same day itself as he did six days later. He knew before 6.5.1999 that Police was looking for him from 30.4.1999 itself and if he did not surrender immediately, the only inference which can be drawn by us is that he was absconding which circumstance can be utilized by the Prosecution to strengthen its case against him.
45. Another circumstance which substantiates the Prosecution's case regarding Sidhartha Vashisht's murdering Jessica Lal, is the recovery of Tata Safari from Noida which was removed from Qutub Colonnade by Amardeep Singh Gill @ Tony Gill and Vikas Yadav.
We have evidence on record to show that Tata Safari No. CH-01-W-6535 was parked at Qutub Colonnade in the night of 29/30.4.1999. This abandoned car belonged to Piccadilly Agro Industries Limited of which Manu Sharma was admittedly a director at that time. This vehicle was stated to be surreptitiously removed and then recovered from Noida. The criticism that the vehicle was, in fact, recovered from Karnal is misreading of statement of PW-100. PW-100 does not say that he recovered the Tata Safari from Karnal but deposes to the effect that the Piccadilly Agro Industries Limited was registered in Karnal. The Tata Safari was, in fact, recovered from Noida by U.P. Police and handed over by the court to the Delhi Police on superdari. The police official from Noida police station PW-91 SI B.D.Dubey had clearly deposed that he had recovered Tata Safari from Noida area on 02-05-99. His testimony to this effect has remained unchallenged and un-controverted. His cross-examination on behalf of accused Vikas Yadav and Sidhartha Vashisht was confined only to find out whether any finger prints were lifted from the Tata Safari and whether he was questioned by Delhi Police after its recovery. Although a suggestion was put to him that he had made a false statement in connivance with Mehrauli police but we have no reason to accept that, since no motive has been alleged against this witness for falsely deposing.
It cannot be accepted that everybody on this earth had conspired to falsely implicate Sidhartha Vashisht nor he has made any such attempt to even probabilise his false implication. He has claimed that he was falsely implicated due to political influence but he has not even bothered to name the politician who could have got him falsely implicated in this case. The accused, at no point of time, made any complaint about missing of the vehicle which he now claims to have been taken into possession from Karnal.
46. There is yet another strong circumstance showing the involvement of Sidhartha Vashisht @ Manu Sharma in the murder of Jessica Lal and that circumstance is that he admits that he was having a licenced pistol of .22 bore. He is also not disputing that from the place of incident two empty cartridge cases of .22 bore were recovered by the police as also the fact that the mutilated lead bullet recovered from the skull of Jessica Lal was of .22 bore. In these circumstances and particularly when he knew that he had been implicated in this case for the offence of murder it was for him to have produced his licenced pistol as also the 25 rounds to show that he could not be involved in the murder of Jessica Lal in the manner claimed by the prosecution. He has, however, neither produced his pistol nor the cartridges of that pistol.
47. Sidhartha Vashisht @ Manu Sharma has taken a plea in his statement under Section 313 Cr.P.C. That there was no occasion for him to have produced his licensed pistol since the same had been seized by the Police along with the licence and ammunition from his farmhouse at Sambhalkha on the night of 30.4.1999 itself when a search was conducted there.
Support of this plea, which we find to be an afterthought and a concoction, was sought from the testimony of yet another hostile witness, PW-44, Shankar Mukhia who is none other than his own employee on duty at his farmhouse. This witness was examined by the Prosecution to show that in the evening of 29.4.1999 Sidhartha Vashisht had gone from the farmhouse in black Tata Safari and then did not come back. However, he turned hostile and did not support the Prosecution on this aspect. Despite the fact that he had not supported the Prosecution's allegations involving Sidhartha Vashisht @ Manu Sharma, yet he was cross-examined by defence and then it was elicited from him that the Police had visited the farmhouse and had taken away the pistol and the licence of Sidhartha Vashisht @ Manu Sharma. Credibility of this witness stood fully impeached in his cross- examination by the Public Prosecutor when he was confronted with his Police statement under Section 161 Cr.P.C. If actually any raid had been conducted in the farmhouse of Mannu Sharma on 30.4.1999 and something had been taken away by the Police, this witness would have definitely lodged a protest to the effect that the Police without giving him receipt had removed Manu Sharma's pistol and licence.
It is also significant to note that when during the investigation stage the Police was seeking Manu Sharma's police remand for recovery of weapon of offence, at which time he did not claim that the Police had already seized his pistol from his farmhouse. We find from a reading of the impugned judgment that no such plea was raised and no finding was returned on this aspect of the matter. We have no manner of doubt that if this argument had been advanced, it would have been met with. Before us it was argued by counsel for the appellant that when the Police had submitted a charge-sheet in Court and had supplied some document to him, an application was moved before the Magistrate requesting for supply of a copy of the seizure memo by which the Police had taken away the pistol from his farmhouse on 30.4.1999. Counsel drew our attention to that application dated 16.8.1999 which, according to the learned Additional Solicitor General, was clearly a plant in judicial record. There is no reference to any such application in any of the proceedings of the Magistrate. Not only that, it was submitted that even if it had been filed, it was only an eye wash, not to be pursued and, in fact, it was not pursued at all by insisting supply of such an important seizure memo. We are in full agreement with the submission of the learned Additional Solicitor General in this regard and have no hesitation in rejecting this plea of the accused. From the above, there is sufficient evidence to bring home the guilt of the accused, Sidhartha Vashisht @ Manu Sharma to the charge of murder of Jessica Lal.
48. The evidence of Ramani family, in particular of Beena Ramani as also the aforesaid circumstantial evidence have been rejected, with due respect, by the learned trial Judge, on wholly unsustainable grounds and we have no hesitation in concluding that the view taken by the learned trial Judge on the evidence of PW-20, Beena Ramani, PW-6, Malini Ramani and PW-24, George Mailhot as also regarding the presence of Tata Safari at the spot, its recovery from Noida with a live .22 bore cartridge could not have been taken at all. The view taken by the trial court is positively perverse.
49. We find that the Prosecution has led evidence in support of presence of Tata Safari at Qutub Colonnade by producing PW-30, Home Guard Constable Sharavan Kumar, who deposes that he accompanied Inspector Surender Sharma during the investigation of this case on 29/30.4.1999. He joined Inspector Surender Sharma at the gate of the police station and went to the spot in a Police gypsy. He was directed to keep vigil at the parking lot so as to ensure that no cars were removed. He saw five or six vehicles parked there, one of which was parked separately. He checked and found all the vehicles locked. At around 3.40 a.m., he noticed a vehicle coming from Qutub side. It was a Tata Siera of white colour. Two persons were in the front seat. They stopped the vehicle near the black Tata Safari and began unlocking the same. The witness tried to stop them but could not and the black Tata Safari No. CH-01-W-6535 was driven away at which time he gave a danda blow to the rear right view glass of the same. The Tata Siera was being driven by a Sikh gentleman.
He identified the Tata Safari CH-01-W-6535, Ex. PW-30/X. He also identified Vikas Yadav as the person who drove away Tata Safari and Amardeep Singh Gill as the driver of the Tata Siera. He was sought to be discredited primarily as being a planted witness since he was given regular appointment in Delhi Police as a reward for making a false statement in Court. His evidence is also sought to be discredited on the ground that he could not have been present at the place where he claims to have noticed the Tata Safari since in his cross-examination he has admitted that at the Police Station he had been assigned the duty of handing over one DD entry in respect of some other incident which was being inquired into by another Sub-Inspector at a place which was quite far away from the Police Station.
It was contended that in normal course, this witness was supposed to be doing the duty assigned to him and could not be present at the parking lot at Qutub Colonnade where he claims to have noticed the Tata Safari lying parked and then being taken away. There is no doubt that this witness admits that he was given appointment in Delhi Police later on but from this fact it cannot be inferred that he was rewarded for making a false statement in this case. We see no reason why the Police should have planted a false witness.
50. The criticism as regards his presence at the spot, has been explained by the witness himself who says that he was at the gate of the Police Station, the SHO had come there and taken him along with him to Qutub Colonnade, we find nothing abnormal in that conduct of a constable when he is being asked by the SHO to accompany him to a place other than the place for which he was asked to go by the Duty Officer in connection with some other case. The SHO, PS Mehrauli also supports PW-30, Sarvan Kumar. The presence of PW-3 is also deposed to by other Police officials present at the spot.
51. From an analysis of the deposition of PW-30, we find him to be a natural witness of the case to which he has deposed. We also find the criticism against him to be a matter of meaningless hair splitting. There is a ring of truth around the deposition of PW-30 whom we find a reliable witness. The trial court, while dealing with this witness, has, with great respect, termed him as a 'planted witness'. This, we find, is not justified from material on record. The cursory manner in which the witness has been discarded shows a lack of proper appreciation of evidence. Once a reasonable explanation has been given by a witness for his presence at the spot, there was hardly any reason to stretch imagination to belie his presence. Merely because he was assigned to deliver a DD entry to SI Rishi Pal which, the witness explains, he did not deliver, the explanation given is logical and ought not to have been disbelieved in this strange way of assessing the material and discarding it.
The findings of 'planting' are very serious observations and cannot be made in such a casual manner. There must be positive evidence to show that a witness is planted which must then result in consequential action against the Prosecution rather than using this merely to give benefit to the accused. Further observation of the trial court that PW-30 could not have been present in Dera Mandi Village and at the Qutub Colonnade at the same time, is wholly unfounded. The witness states that he did not carry the DD entry to SI Rishi Pal. Merely because Rishi Pal received the DD entry does not conclude that it was delivered to him by Sharvan Kumar.
52. The other cirticism of the learned defence counsel qua the Tata Safari is that there is no witness who has seen Sidhartha Vashisht @ Manu Sharma arriving at the Qutub Colonnade in the Tata Safari. He claimed that the Tata Safari has been falsely planted by the Prosecution to implicate Manu Sharma. This criticism, we find, is devoid of substance. PW-30, as we have already stated, is a trustworthy witness who testifies to the Tata Safari being present and having removed by the co-accused of Manu Sharma. The attempt of learned counsel to discredit PW-30 by recourse to the evidence of PW-47, Jatinder Raj and PW-86, Jagannath Jha, is of no consequence. PW-47 who states he did not see any private vehicle at the gate of the Qutub Colonnade at 3.15 a.m. only goes to show that he did not observe the presence of Tata Safari but does not rule out the presence of the Tata Safari. About PW-86's evidence, less said the better. He is thoroughly unreliable witness. He does not even know the difference between summer and winter and appears to have been won over by the defence.
53. The presence of Tata Safari at the Qutab Colonnade stands proved from the material on record. This circumstance lends assurance to the presence of Manu Sharma at the Tamarind Cafe and corroborates the type of ammunition used in the commission of the crime, empties whereof were recovered from the scene of occurrence and a similar live cartridge recovered from the Tata Safari. We have also noted that Harvinder Chopra does not claim that the Tata Safari which was allotted to him was missing on the date of incident or that he had made any report to the effect that somebody had stolen the same from Karnal. He also does not claim to be in possession of the said vehicle on the night of 29/30.4.1999.
54. From an appreciation of the material placed by the Prosecution on record, we find that the Prosecution's case that the Tata Safari was left abandoned by Manu Sharma and was subsequently removed by Vikas Yadav and Amardeep Singh Gill, stands proved.
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 occurrence 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 the Criminal Procedure Code since it was a photo copy in which case 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 work sheets in the court raises grave doubts as to the trustworthiness of this witness and genuineness of the work sheets.
We need hardly belabor 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.
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