28. We have heard counsel for the parties and, with their assistance, have gone through the voluminous record. The case set up by the Prosecution is that on 29.4.1999, a party was organized at the Tamarind Court inside Qutub Colonade. This party was a private one where people were invited and the invitees could further invite guests. Liquor was being served. Jessica Lal and Shyan Munshi were in-charge of the bar. At this party, respondents 1 to 4 came after the party was over and began looking for liquor. They were refused liquor since the bar was closed. Not being satisfied with this explanation, they went around in pursuit thereof and ultimately came back to the restaurant where they were once again refused liquor, here Sidhartha Vashisht @ Manu Sharma took out a pistol and fired the first shot into the ceiling and the next shot at Jessica Lal. The shot hit Jessica Lal in the head and proved fatal. Manu Sharma was, more or less, simultaneously stopped by Beena Ramani and questioned as to why he had shot Jessica Lal? She also demanded he give her the gun. She followed the assailant in an attempt to corner him but then told her husband to identify the vehicle in which he may make his escape.
To prove this part of the case, the Prosecution pressed into service PW-1, Deepak Bhojwani, PW-2, Shyan Munshi, PW-6, Malini Ramani, PW-19, Andleep Sehgal, PW-20, Beena Ramani, PW-24, George Mailhot, PW-23, Rouble Dunglay, PW-70 Rohit Bal, PW-9, Dr. R.K. Sharma, PW-46 Madan Lal and PW-47, Jatinder Raj.
PW-1, Deepak Bhojwani
29. PW-1, Deepak Bhojwani has deposed that on 29.4.1999 he had gone to attend the aforesaid party at about 11.00 p.m. at the open area of Qutub Colonnade known as 'Tamarind Court', the closed area called as 'Tamarind Cafe'. He had purchased four coupons of Rs.100/- each on that day. Jessica Lal and Shyan Munshi were serving liquor on that night at the bar counter. He knew Jessica Lal for the past six years whereas Shyan Munshi was introduced by Jessica Lal to this witness about a week before. The bar counter was located in Tamarind Cafe open area between the two doors of Tamarind Court.
He has deposed that there is a permanent bar counter in Tamarind Cafe but being summer, nobody was using the bar counter giving preference to the bar counter located outside. A large crowd was in attendance at the aforesaid party. At around 1 O'clock midnight, the witness went to the bar counter to have his third drink when Jessica Lal told him to encash all his coupons since the liquor was running out. The witness then handed over another coupon and purchased two pegs of whisky. While he was holding two glasses of whisky, he came in contact with a person having fair complexion who was smiling. The witness reciprocated and both introduced each other. This fair complexion person gave his name as 'Manu Sharma' and inquired as to how the witness had two glasses of whisky when Manu Sharma was unable to get even one. Manu Sharma requested the witness to arrange liquor for him. But this witness showed his inability as the bar had closed.
Just about that time, a tall Sikh gentleman whispered something to Manu Sharma and took him away towards Tamarind Cafe. The witness says he can identify Manu Sharma and the tall Sikh gentleman referred to above. In court, the witness correctly identified both Manu Sharma and the tall Sikh gentleman as 'Tony Gill'. The witness also identifies the other person accompanying Tony Gill. In Court he pointed towards Alok Khanna. The witness goes on to depose that Manu Sharma, Tony Gill and Alok Khanna and others had gone towards Tamarind Cafe even though it was closed and the waiters were in the process of removing the empty bottles. After about 10-20 minutes i.e. around 1.45 a.m. he heard noise emerging from Tamarind Cafe to the effect that Jessica Lal had been shot. At that time, the witness was present at Tamarind Court and was talking to his friend, Arash Aggarwal.
On hearing that Jessica Lal had been shot, he rushed towards Tamarind Cafe but could not go inside, yet peeped and saw Jessica lying on the floor. The witness says that about that time 70-80 persons gathered around the gate of Tamarind Cafe. Jessica Lal was carried to Ashlok Hospital, Safdarjang Enclave and this witness followed in his car. He remained there for about and-and-half hours. Jessica Lal was then shifted to Apollo Hospital. This witness went along to Apollo Hospital. At the hospital, Jessica Lal was declared 'brought dead'. The witness says about 10 photographs were shown to him to identify the fair complexion person and the Sardar. From amongst them he identified the photographs of Manu Sharma and Tony Gill. The photograph of Manu Sharma was marked 'A' and that of Tony Gill was marked 'B'. The Investigating Officer put his signature behind the photographs. These photographs were then identified by the witness in court as Ex. PW-1/A and PW- 1/B.
30. In cross-examination, the witness's credibility was sought to be questioned by contradicting him with his previous statements. In other words, the exact wording used in his 161 Cr.P.C. statement were put to him which differ from the statement made in Court but the overall impact of the statement was not such as could show the witness in poor light. The criticism of the trial court to the deposition of this witness appears to be self-contradictory. The learned Judge relies upon PW-1, Deepak Bhojwani, to establish the presence of accused 1 to 4 at the spot of occurrence on the night of 29/30.4.1999, yet goes on to agree with the counsel for the accused that PW-1, Deepak Bhojwani, has been introduced as a false witness in this case.
The reasoning is that he does not find mention in the list of invitees prepared by PW-2, George Mailhot although Deepak Bhojwani is stated to have been very friendly with Jessica Lal. Another aspect is that PW-73, Sabrina Lal, did not mention that PW-1, Deepak Bhojwani, was present at Ashlok Hospital. Further that the statement of Deepak Bhojwani was recorded on 14.5.1999 and that Deepak Bhojwani is an interested witness.
With very great respect to the learned Judge, we may point out that this manner of testing the credibility of the witness is hardly a rule of appreciation of evidence. It is not necessary that every witness must see the other and only then can they be relied upon. Each witness deposes to what he saw or what he did. Merely because out of 100 people present, some witness does not see the other witness is no ground to discard his evidence. Even if his name did not figure in the list of invitees is of no consequence since the list was not exhaustive. Deepak Bhojwani has deposed to the factual aspect to which he was a witness. This part has been sufficiently corroborated in its own way by other witnesses, namely, the presence of accused 1 to 4 at the place of occurrence. The trial court itself relies upon this witness to show the presence of the accused persons and yet goes on to hold him as bad witness. Obviously, this reflects total lack of application of mind and suggests a hasty approach towards securing a particular end, namely, the acquittals.
This witness states that Jessica Lal and Shyan Munshi were serving liquor on that night at the bar counter which stands corroborated by other witnesses. He met the fair complexion man who exchanged niceties with him and introduced himself as Manu Sharma. The presence of Manu Sharma is corroborated by PW-20, Beena Ramani, PW-6, Malini Ramani and PW-24, George Mailhot. There is nothing to suggest that this witness had any motive to falsely implicate any of the accused persons. The witness was wrongly discarded by the trial court. Further, the trial court, if it actually entertained the issue of Bhojwani being a planted witness could not have stopped at this. The consequences of false implantation must necessarily have followed such a finding. In fact, we find from the evidence of Bhojwani that he did not claim himself to be an eye witness of firing which he could have claimed if he was to depose falsely at the instance of the Police.
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