31. PW-2, Shyan Munshi, is the maker of the FIR. His testimony has been attacked as being hit by Section 162 Cr.P.C. on the ground that his statement to the Police was signed, it was used to cross-examine the witness by the Prosecution itself and, therefore, his evidence cannot be relied upon. It was the submission of Mr. Jethmalani that really the FIR was the phone call from Rohit Bal or PCR message to the concerned Police Station which set the criminal process into motion.
32. We have gone through the testimony of this witness. He has admitted his presence at the Tamarind Cafe at the time of the incident. He has also admitted that Jessica Lal was shot at by someone on her refusing to oblige him with a drink. To this extent, there is no doubt that he has supported the Prosecution's version. He has, however, deviated from his earlier version before the Police given by him in the form of his first information statement, Ex. PW-2/A inasmuch as at that time he had claimed that there was one person only who had demanded whisky from Jessica Lal and on her refusal to give him whisky he had first fired towards the ceiling and then a second shot at her while now in Court he has taken a somersault and come out with a version that there were two gentlemen at the bar counter, one of whom was wearing a white T- shirt, which, as per the Prosecution case, Sidhartha Vashishta @ Manu Sharma was wearing, who demanded whisky from Jessica Lal and when Jessica Lal refused to give him whisky, he fired a shot towards the ceiling and at that time another gentleman fired at Jessica Lal which injured her.
The witness also claimed in court that Sidhartha Vashisht @ Manu Sharma was not the person who either fired towards the ceiling or at Jessica Lal. Because of this changed version, he was cross-examined by the Special Public Prosecutor. In his cross-examination, he was duly confronted with his signed statement, Ex. PW-2/A, wherein he had categorically claimed that it was only one person who had fired both the shots. Of course he denied having made any such statement to the Police.
However, we have no manner of doubt that on this aspect he is telling a complete lie. He has admitted his signatures on the said statement. He has not claimed that Police officials had exerted any pressure on him to put his signatures on that statement. All that he is now claiming is that the said statement was recorded in Hindi while he had narrated the whole story in English as he did not know Hindi at all. We do not find this explanation of this witness to be convincing. Whether he had dictated his version to PW-100, SI Sunil Kumar, in English or not has no significance because SI Sunil Kumar has categorically stated during his evidence that he had reduced into writing whatever had actually been narrated to him by this witness. We have no reason to disbelieve SI Sunil Kumar on this aspect of the matter. We cannot accept that SI Sunil Kumar would have concocted such a detailed statement on his own without the witness having actually told the facts to him.
There is another reason also for not accepting the version of Shyan Munshi and that is that even Beena Ramani says that Shyan Munshi's statement was recorded by the Police in her presence. Apart from that, it is significant to note that the statement of this witness was recorded on 30th April, 1999 itself and thereafter he never raised any grievance at any time before any authority that the Police had recorded incorrect version in his statement Ex. PW-2/A. He has come out with this explanation for the first time in Court and we have no manner of doubt from the facts and circumstances of this case that he was won over by the accused, Sidhartha Vashisht @ Manu Sharma.
Learned Additional Solicitor General had pointed out to us the trial court record, about which no dispute was raised on behalf of the accused, Sidhartha Vashisht @ Manu Sharma, where in one of the proceedings recorded by the Additional Sessions Judge at the time of hearing of bail application of Sidhartha Vashisht @ Manu Sharma, the presence of one Advocate , Ashok Bansal was recorded on behalf of Sidhartha Vashisht @ Manu Sharma. Shyan Munshi, during his cross-examination by the Public Prosecutor, has himself admitted that while coming to Court to depose in this case was escorted by his counsel Mr. Ashok Bansal who had earlier appeared as counsel for Sidhartha Vashisht @ Manu Sharma and also appeared at the time of pronouncement of judgment on 21.2.2006 for Manu Sharma and other accused as well.
This tell tale circumstance leaves no doubt that the new story this witness has introduced during trial is an 'afterthought' as also a total lie at the instance of the accused. His credibility was totally impeached during his cross-examination by the Public Prosecutor. In these circumstances, we cannot consider this witness to be of any worth, although we agree with the submission of Mr. Jethmalani that some part of the evidence of even a hostile witness can be taken into consideration provided it inspires confidence and he is considered to be a reliable witness. We do not consider this witness to fall in that category of witnesses. We, therefore, do not find that the testimony of Shyan Munshi, in any way, can be utilised to the benefit of the accused, Sidhartha Vashisht @ Manu Sharma. Even if the deposition of PW-2 is discarded, the case of the Prosecution hardly gets affected. In this view of the matter we feel it unnecessary to go into the argument of Mr. Jethmalani that Ex. PW-2/A cannot be treated as an FIR.
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