Jethmalani's Defence

12. Arguing on behalf of the accused, Sidhartha Vashisht @ Manu Sharma, ShriRam Jethmalani, learned Senior Advocate, submitted that Manu Sharma was notpresent at the Qutub Colonade on 29/30.4.1999. He submitted that there isnothing to prove the presence of Manu Sharma at the spot of occurrence and thatthe witnesses PW-1, PW-5, PW-6 and PW-19 do not, in any manner, show that theyknew the accused and their testimonies cannot be used by the Prosecution to takeadvantage to fix the presence of the accused at the spot of occurrence speciallywhen PW-1 already stands stamped as a 'planted witness'.

He submitted that PW-1, Deepak Bhojwani's statement is filled withimprovements and contradictions besides the fact that his statement was recordedat a very late stage, the same does not inspire confidence and cannot be reliedupon. PW-6, Malini Ramani, has been discussed by the trial court in paragraphs278 and 292 of the judgment. The findings are justified from the material onrecord. In addition, he submitted that this witness fainted on hearing thatJessica Lal had been hit and cannot, therefore, be a witness of the occurrence.He also submitted that this witness along with her parents was under extremePolice pressure. She had been interrogated intensely for five days, thephotographs were shown to her, the Police had made her to sign statements andput psychological pressure on her, as such was a pliable witness for theProsecution but not a reliable witness for the Court.

A false excise case was registered to keep the pressure alive duringdeposition which was subsequently got decided with a paltry fine. Counselsubmitted that impermissible leading questions were put to this witness asregards identification which cannot be used as evidence. In any event, thiswitness was too drunk since she had been drinking from the start up to thefinish of the party. She can hardly be expected to remember anything ofimportance.

There is no evidence to show the presence of Manu Sharma at Qutub Colonnadein the aforesaid party on the night of 29/30.4.1999. From the testimony of PW-2,Shyan Munshi, PW-3, Shiv Dass Yadav and PW-4, Karan Rajput, it is clear thatnobody saw Manu Sharma at the place of incidence nor did anybody see Manu Sharmausing fire arm to fire two shots let alone to fire the shot that killed JessicaLal.

None of these witnesses were eye witnesses to the occurrence but arewitnesses of prior and subsequent events. PW-2, Shyan Munshi, clearly statesthat two different people fired from two different weapons. His statement madeto the police which is stated to be the FIR was never dictated by him nor readover to him as it was in Hindi, a language not known to him. Counsel submittedthat the statement of the witness sought to be used by the Prosecution toestablish the guilt of the accused is hit by Section 162 Cr.P.C. since thewitnesses were made to sign their statements. The evidentiary value, therefore,has been impaired considerably and cannot be used as pure evidence.

Counsel submitted that an atmosphere of prejudicial hate had been created toimplicate Manu Sharma while the actual culprits successfully managed to divertthe investigation to a wrong direction and escaped. The theory of two personshaving fired two bullets was deliberately abandoned by the Police itself. Hesubmitted that the charge, as framed, is under Section 302 IPC, but when thereis a possibility of two bullets being fired by two different persons, there isno certainty that the bullet that killed Jessica Lal was fired by Manu Sharma.He could not, therefore, be convicted under Section 302 IPC.

He contended that Beena Ramani was not present in the party. This is evidentfrom the site plan where Beena Ramani has not been shown. Relying upon PW-4,PW-6 and PW-47, counsel submitted that these Prosecution witnesses are nothostile. From their statements it is evident that Beena Ramani did not see theshooting.

Counsel further went on to submit that the Prosecution has failed to provethat the fatal bullet was in possession of the accused, Manu Sharma, at 2.00a.m. on 29/30.4.1999. The Prosecution has not been able to get rid of the factthat there were two persons who fired two bullets. Even otherwise, there is noproof that Manu Sharma fired the fatal bullet.

The FIR based on the statement of Shyan Munshi cannot be treated as an FIR.His statement was got signed by the Police and is hit by Section 162(2) Cr.P.C.

He submitted that the Police has manufactured evidence after investigationupto the date of trial. PW-1 had stated that he had told the Police that ManuSharma was the killer but his statement was recorded on the 14.5.1999, the longdelay is fatal. This witness has made 21 improvements. He is known to thedeceased and has every reason to make a false statement. In any event, he wastoo drunk on the date of the occurrence to be a meaningful witness. There hasbeen a dishonest attempt by the Prosecution to improve the case against ManuSharma by introduction of PW-1 whose statement lacks independent corroboration.He fully supports the statement of PW-2, Shyan Munshi who, counsel submitted,cannot be relied upon by the Prosecution but the accused has every right to relyupon the same since it was not put to the accused in his statement under Section313 Cr.P.C. that the motive attributed is inadequate and is of much higherintent and intensity.

Shyan Munshi clearly states that two shots were fired by two differentpersons and there is no reason to disbelieve this witness who finds support fromthe ballistic evidence, Ex. PW-89/DA. Counsel also went on to submit that theProsecution has been dishonest and unfair in trying to withhold evidence of theballistic expert, Roop Singh, which had to be brought on record by the accusedwho made an application to that effect in the Court. Even the ballistic expertproduced by the Prosecution has clearly stated that the two empties examinedappear to have been fired from two different fire arms.

From the opinion of the expert and the statement of Shyan Munshi, it is notpossible for this Court to go against the finding that two persons had fired twoshots. According to the counsel, from the testimony of PW-23, Rouble Dunglay, itis clear that the whole story of non serving liquor being the motive of thecrime is a concoction. Jessica Lal died not because she did not give what shedid not have, but did not give what she had which had hurt the manhood of theassailant. The Prosecution must necessarily succeed as of late and cannot beallowed to create a new one.

Counsel categorically stated that there is nothing on record to show thatManu Sharma fired a shot, there is evidence which discloses that two personsfired shot and one of them had fired a shot in the air. Nobody saw Manu Sharmafiring the fatal shot. In any event, Manu Sharma was not there nor did he need adrink. Shyan Munshi is a reliable witness who states that Manu Sharma was notthe one who fired a shot in the open.

13. Attacking PW-24, George Mailhot, counsel submitted that his statement ishit by Section 163 Cr.P.C. and Section 24 of the Indian Evidence Act. Thiswitness saw a Sardar standing above the desert spot who was maintaining calm. Itwas this Sardar, according to counsel, who fired the fatal shot. He contendedthat the examination-in-chief of this witness was concluded on 18.10.2001 atwhich time the Prosecution ensured that in the excise case an application wasmoved for preponement. His supporting the Prosecution's case was the result of apackage deal prepared between the Police and the Ramani family. In the excisecase, he was allowed to plead guilty and let off with a small fine. This witnesswas under constant threat which is violative of Section 163 Cr.P.C. Histestimony is seriously impaired.

Analysing his statement, counsel submitted that taking away the omissions,the only part that is left is that Beena Ramani was following a boy. Theimprovements in the testimony have been made at the instance of the Prosecution.From the testimonies of PW-46, PW-47 and PW-86, it is evident that PW-24, GeorgeMailhot, was not at the Qutub Colonnade at the time of the occurrence. Thefinding of the trial court that George Mailhot was not a witness, cannot befaulted with.

14. Further attacking PW-6 Malini Ramani, counsel submitted that herevidence, even if taken as it is, only establishes that Manu Sharma was at thespot. Her statement was recorded after undue delay. The party was over bymidnight and at 1.45 a.m. she was still drinking and looking for more whichimplies that she was drunk and further she could not even identify any of the 40persons who were demanding liquor. She had not even seen Shyan Munshi but onlyheard shots. This witness was too drunk or was busy doing whatever she was.Counsel went on to submit that the non-examination of Mehtani should be takenagainst the Prosecution as he was a material witness. The Qutub Colonnade wastoo crowded, identification in such a crowd is impossible that too by a personwho has far drunk more than her share for that evening. He submitted that thiswitness has stated that her statement was recorded on three occasions and shewas made to sign the statements which is hit by Section 163 Cr.P.C. Thetestimony of this witness is of no use to the Prosecution.

15. Mr. Jethmalani also attacked PW-20, Beena Ramani. He submitted that thiswitness was not present at the Tamarind Court Cafe and did not see anything .Even otherwise, he submitted that if the substantive evidence given in court isweak, it is useless.

Identification in Court of the accused for the first time is useless unlessthe capacity to identify and actual identification of the culprit arecorroborated by a properly held Test Identification Parade. A TestIdentification Parade which is rendered difficult is useless by reason of nomisconduct of the accused but of the Agency and takes away the safeguards knownto law and renders the substantive evidence useless. Even the TestIdentification Parade is not enough, there must be something more to connect theaccused with the crime. If the accused or the suspect has been physically showneither before the Court hearing or before the Test Identification Parade, theevidence of identification becomes useless. He submitted that the identificationin Court is of no consequence, as has been held by the Supreme Court in HariNath and Anr. vs. State of U.P., 1988 (1) SCC 14, Budhsen and Anr. vs. State ofU.P, 1970 (2) SCC 128. Even according to the Prosecution, this witness is not aneye witness, as has been stated by PW-100 and PW-101. According to the counsel,Beena Ramani does not prove that Manu Sharma shot the fatal shot at thedeceased. Her statement regarding stopping a person is a concoction not becauseof malice or untruth but due to a compromise with truth. The truth of theincidence is given in the statements of PW-46 and PW-47 who say that BeenaRamani was with them till she took Jessica Lal to the hospital.

16. Counsel also submitted that there is a contradiction in the Prosecution'scase inasmuch as in the FIR it is mentioned that Malini Ramani was present atthe restaurant; that George Mailhot says that Shyan Munshi was with some boy butdid not say that the man shot Jessica Lal; Shyan Munshi in the FIR says that hesaw Beena Ramani, therefore, the story cooked up by Beena that she accosted theman who had shot Jessica Lal is a concoction. The entire family had been putunder great pressure by the Police who threatened to implicate them in thepresent case for removing evidence and also in a false excise case in which theywere ultimately got let off lightly. No importance can be attached to thestatement of Beena Ramani. Counsel went on to submit that on 31.5.1999, aphotograph of Manu Sharma was taken by the Police from the Farmhouse of hisfather. It was here that his pistol and ammunitions were also taken intopossession but no recovery memo was made. This was deliberately done toimplicate Manu Sharma in this case. PW-101 admits of having taken up photographsof Manu Sharma from the Farmhouse. He also admits that no recovery memo wasmade. This clearly shows that the investigation has deliberately cooked up afalse case of Manu Sharma having used his licensed gun or Manu Sharma havingused his gun to kill Jessica Lal and is now not producing that licensed weapon.

17. Mr. Ram Jethmalani in support of his contentions referred to thefollowing judgments : State of Rajasthan vs. Teg Bahadur and Others, (2004) 13SCC 300; State vs. Siddarth Vashisth@Manu Sharma and Others, 2001 III AD (DELHI)829; Sohan Lal alias Sohan Singh and Others vs. State of Punjab, (2003) 11 SCC534; Sat Paul vs. Delhi Administration, AIR 1976 SC 294; M/s. T.D. Kumar andBros. Private Ltd. vs. Iron and Steel Controller and Others, AIR 1961 Calcutta258 (V 48 C 59); R vs . R Turnbull (63 Criminal Appeal Report 132); Budhsen andOrs. vs. State vs. UP, 1970 (2) SCC 128; Duraipandi Tewar and Ors. vs. State ofTamil Nadu, 1973 (3) SCC 680; Hari Nath and Anr. vs. State of UP, 1988 (1) SCC14; Bollavaran P N Reddy and Ors. vs. State of A P, 1991 (3) SCC 434; LaxmipatChoraria vs. State of Maharashtra, AIR 1968 SC 938; Ravindra @ Ravi Bansi vs.State of Maharashtra, AIR 1998 SC 3031; The King vs. Thomas Dwyer and AllenFerguson, (1925) 2 K B 799; Sharad Birdi Chand Sharda vs. State of Maharashtra,AIR 1984 SC 1622; Ramgopal vs. State, AIR 1972 SC 656; State of H P vs. OmParkash, AIR 1972 SC 975; Mukhtar Ahmed Ansari vs. State, AIR 2005 SC 2804; RajaRam vs. State of Rajasthan, JT 2000 (7) SC 549; Emperor vs. Ardali Mian, AIR1933 Patna 496; Jagdeo Singh vs. Emperor, 24 Cr L J 69; Sukhram vs. State of M.P.,1989 C C Cases 135 (SC); Zahira Sheikh vs. State of Gujarat, 2004 (2) SCC 158;Satyajeet Banerjee vs. State of West Bengal, 2005 (1) SCC 115; Tokh Ram vs.State, 1982 Cr L J; P Varadrajulu Naidu vs. King Emperor, ILR 42 Mad 885;Kessowji Issur Great Indian Peninsula, 34 Indian Appeals 115 = ILR Vol.XXXI PC381; Arjan Singh vs. Kartar Singh, AIR 1951 SC 193; Empress of India and Anr.,ILR 5 ALL.218; Abinash Chandra Bose vs. Bimal Krishna Sen and Anr, AIR 1963 SC316; Ukha Kohle vs. State of Maharashtra, AIR 1963 SC 1531; State of Gujarat vs.Mohanlal, AIR 1987 SC 1321; Bir Singh and Ors. vs. State of UP, AIR 1978 SC 59;Rajeshwar Prasad vs. State of W B, AIR 1965 SC 1887; M P Lohia vs. State of WestBengal, JT 2005 (2) SC 105; The King vs. Parke, (1903) K B 432; Ramchander vs.State of Haryana, AIR 1981 SC 1036; Emperor vs. Ram Singh, AIR 1948 Lah. 24; RaoHarnarain vs. Gumani Ram, AIR 1958 Punjab 273; Smt. Padmavati vs. R K Karanjia,AIR 1963 SC MP 61; Sebastian vs. Karunakaran, AIR 1967 Ker. 177; Banu Singh vs.Emperor, X CWN 962; Ramanathan vs. State of Tamil Nadu, AIR 1978 SC 1204; Stateof Delhi vs. Sanjay Gandhi, AIR 1978 SC 961; M.P. Narayana Menon, 1925 MADRAS106; Mohinder Singh vs. State, AIR 1963 SC 415; Zahiruddin vs. Emperor, AIR 1947PC 75; R vs. Preston, (1993) 4 ALL E R 838; Practice Note, (1982) 1 ALL E R 734;Jagjit Singh alias Jagga Vs. State of Punjab, 2005(3)SCC 689; Maruti Rama NaikVs. State of Maharashtra, 2003(10) SCC 670; Hallu and others Vs. State of MadhyaPradesh, AIR 1974 SC 1936; Duraipandi Thevar and Others Vs. State of Tamil Nadu,1973(3) SCC 680; Somappa Vamanappa madar Shankarappa Ravanappa Kaddi Vs. TheState of Mysore, AIR 1979 SC 1831; Ganesh Bhavan Patel and another Vs. State ofMaharashtra, AIR 1979 SC 135; Tapinder Singh Vs. State of Punjab and another,AIR 1970 SC 1566; Soma Bhai Vs. State of Gujarat, AIR 1975 SC 1453; KanhaiMishra alia Kanhaiya Misar Vs. State of Bihar, 2001(3) SCC 451; Willie (William)Slaney Vs. State of Madhya Pradesh, AIR 1956 SC 116; State of Punjab Vs. SwaranSingh, 2005 (6) SCC 101; Basavaraj R.Patil and others Vs. State of Karnataka andothers, AIR 2000 SC 3214; Dal Singh Vs. King-Emperor, AIR 1917 PC 25; HabeebMohammad Vs. State of Hyderabad, AIR 1954 SC 51; State of Kerala vs. Ammini andothers, AIR 1988 Ker. 1; Sidharth and others vs. State of Bihar, 2005 (12) SCC545; Damodar Vs. State of Rajasthan, 2004 (12) SCC 336 and Budhsen and anotherVs. State of UP, 1970 (2) SCC 128. The propositions of law are well establishedand are not in dispute.

18. Factually, Mr. Jethmalani would have the court believe that SidharthaVashishta @ Manu Sharma was not present, Beena Ramani was not present, GeorgeMailhot was not present, Deepak Bhagwant was not present and the Tata Safari wasplanted. He would also have us believe that two weapons were used which hesupports with the aid of experts and Shyan Munshi.