# SIDHARTHA VASHISHT @ MANU SHARMA v. STATE (NCT OF DELHI)

- **Citation:** [2010] 4 S.C.R. 103
- **Court:** Supreme Court of India
- **Decided:** 2010-04-19
- **Case number:** Criminal Appeal No. 179 of 2007
- **Bench:** P. Sathasivam, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sidhartha-vashisht-manu-sharma-v-state-nct-of-delhi-26792
- **Pages:** 196

## Headnote

Penal Code, 1860/Arms Act, 1950:
A
B
Sections 302, 20111208/Section 27 - Murder - Trial c
against nine accused - Acquittal by trial court - Conviction
by High Court against three accused - A-1 sentenced to life
for murder and fine of Rs. 50, 0001-, 4 years of sentence under
the Arms Act with default stipulation - A-2 and A-3 sentenced
to four years imprisonment and fine of Rs,20001- each with· 0
default stipulation -
On appeal, Held: Prosecution has
established its case peyond doubt - Appellate court has all
the necessary powers to evaluate the evidence Jet in before
the trial court and the conclusions reached by it - High Court
has given cogent and adequate reasons for reversing the
order of acquittal - Presence of accused at the scene of crime
E
proved by ocular testimonies and corroborated by Exhibits -
Conclusions arrived at by the High Court upheld.
Code of Criminal Procedure, 1973:
Section 24 -
Public prosecutor -
Duties and
F
responsibilities -
Duty of Court to ensure that Public
Prosecutor does his duties to the utmost level of efficiency
and fair play -
Interference by Courts - Limitations -
Discussed.
Section 154 -
First Information Report - Cryptic
telephone message of a cognizable offence not to be treated
as FIR.
103
G
H
104
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
Sections 170, 172 - Conduct of investigation - Duties
of investigation officer vis-a-vis rights of accused - Discussed
- Constitution of India, Articles 14, 19.
Sections 293, 294 - Proof of documents - Documents
sought to be relied on must be originals - Photocopy of the
8 original documents - Acceptance of, procedure to be followed.
Section 313 - questions put to the accused - If accused
furnishes false answers as regards proved facts, court can draw
an adverse inference qua him -
Such inference would
C become an additional circumstance to prove the guilt of the
accused.
Evidence Act, 1872:
Sections 8, 27 -
Evidence of telephone calls -
D Admissibility of.
Section 9 - Test identification parade - Practice not
borne out of procedure, but out of prudence - Investigating
officer conducts a TIP to ensure that he has got the right
E person as an accused.
Section 165 - Expert witness - When the expert opinion
is vague, no credence could be lent to it - Court's power under
the Section - Discussed.
F
Judicial propriety - Judicial propriety and discipline
demand that strictures or lacerating language should not be
used by higher courts in exercise of their appellate or
supervisory jurisdiction - Errors of judgments to be corrected
by reasons of law - Practice of passing comments against
G lower courts deprecated.
Judicial discipline/restraint - A judgment could be set
aside preferably without offering undesirable comments,
disparaging remarks or indications which would impinge upon
the dignity and respect of the judicial system - Despite such
H restraint, if there are compelling reasons for making
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 105
(NCT OF DELHI)
comments, rule of law and principles to be adhered - View A
point of judge concerned should also be invited - In the facts
of the case, all the remarks made by the trial judge against
th.e prosecution and by the Division Bench against the trial
judge directed to be expunged - Strictures by court -
Expunging of.
B
Media Trial:
Despite significance of the print and,electronic media, it
is desirable to ensure that trial by media does not hamper fair
investigation - More importantly not to prejudice the right of C
defence of accused in any manner whatsoever - Freedom of
expression to be carefully and cautiously used, to avoid
interference in the administration of justice and leading to
undesirable results in the matters sub-judice before courts -
Caution to all modes of media to extend full cooperation to
D
ensure fair investigation, trial, defence of accused and noninterference in the administration of justice in matters
subjudice- - However, in the instant case, the media trial did
affect the accused to a very

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[2010] 4 S.C.R. 103
SIDHARTHA VASHISHT @ MANU SHARMA
v.
STATE (NCT OF DELHI)
(Criminal Appeal No. 179 of 2007)
APRIL 19, 2010
[P. SATHASIVAM AND SWATANTER KUMAR, JJ.]
Penal Code, 1860/Arms Act, 1950:
A
B
Sections 302, 20111208/Section 27 - Murder - Trial c
against nine accused - Acquittal by trial court - Conviction
by High Court against three accused - A-1 sentenced to life
for murder and fine of Rs. 50, 0001-, 4 years of sentence under
the Arms Act with default stipulation - A-2 and A-3 sentenced
to four years imprisonment and fine of Rs,20001- each with· 0
default stipulation -
On appeal, Held: Prosecution has
established its case peyond doubt - Appellate court has all
the necessary powers to evaluate the evidence Jet in before
the trial court and the conclusions reached by it - High Court
has given cogent and adequate reasons for reversing the
order of acquittal - Presence of accused at the scene of crime
E
proved by ocular testimonies and corroborated by Exhibits -
Conclusions arrived at by the High Court upheld.
Code of Criminal Procedure, 1973:
Section 24 -
Public prosecutor -
Duties and
F
responsibilities -
Duty of Court to ensure that Public
Prosecutor does his duties to the utmost level of efficiency
and fair play -
Interference by Courts - Limitations -
Discussed.
Section 154 -
First Information Report - Cryptic
telephone message of a cognizable offence not to be treated
as FIR.
103
G
H
104
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
Sections 170, 172 - Conduct of investigation - Duties
of investigation officer vis-a-vis rights of accused - Discussed
- Constitution of India, Articles 14, 19.
Sections 293, 294 - Proof of documents - Documents
sought to be relied on must be originals - Photocopy of the
8 original documents - Acceptance of, procedure to be followed.
Section 313 - questions put to the accused - If accused
furnishes false answers as regards proved facts, court can draw
an adverse inference qua him -
Such inference would
C become an additional circumstance to prove the guilt of the
accused.
Evidence Act, 1872:
Sections 8, 27 -
Evidence of telephone calls -
D Admissibility of.
Section 9 - Test identification parade - Practice not
borne out of procedure, but out of prudence - Investigating
officer conducts a TIP to ensure that he has got the right
E person as an accused.
Section 165 - Expert witness - When the expert opinion
is vague, no credence could be lent to it - Court's power under
the Section - Discussed.
F
Judicial propriety - Judicial propriety and discipline
demand that strictures or lacerating language should not be
used by higher courts in exercise of their appellate or
supervisory jurisdiction - Errors of judgments to be corrected
by reasons of law - Practice of passing comments against
G lower courts deprecated.
Judicial discipline/restraint - A judgment could be set
aside preferably without offering undesirable comments,
disparaging remarks or indications which would impinge upon
the dignity and respect of the judicial system - Despite such
H restraint, if there are compelling reasons for making
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 105
(NCT OF DELHI)
comments, rule of law and principles to be adhered - View A
point of judge concerned should also be invited - In the facts
of the case, all the remarks made by the trial judge against
th.e prosecution and by the Division Bench against the trial
judge directed to be expunged - Strictures by court -
Expunging of.
B
Media Trial:
Despite significance of the print and,electronic media, it
is desirable to ensure that trial by media does not hamper fair
investigation - More importantly not to prejudice the right of C
defence of accused in any manner whatsoever - Freedom of
expression to be carefully and cautiously used, to avoid
interference in the administration of justice and leading to
undesirable results in the matters sub-judice before courts -
Caution to all modes of media to extend full cooperation to
D
ensure fair investigation, trial, defence of accused and noninterference in the administration of justice in matters
subjudice- - However, in the instant case, the media trial did
affect the accused to a very limited extent but not tantamount
to prejudice which would weigh with the Court in taking any
E
different view - Constitution of India, 1950 - Article 19(1)(a).
Doctrines:
Doctrine of 'contra veritatem lex nunquam aliquid
permittit' - Meaning of
·
F
Doctrine ofdisclosure - Discussed.
According to the prosecution, on the night
intervening 29-30.04.1999, a 'Thursday Party' was going
on at .Qutub Colonnade once called "Tamarind Cafe".
G
Liquor was being served by the bartenders, namely, 'J'
(since deceased) and PW-2. At about 2.00 a.m., appellant
in the main appeal (A-1) along with his friends came there
and asked for two drinks. The waiter did not serve him
liquor as the party was over. Deceased and PW-6, who
H
106
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A were also present there, tried to make him understand
that the party was over and there was no liquor available
with them. On refusal to serve liquor, the appellant took
out a pistol and fired one shot at the roof and another at
the deceased which hit near her left eye as a result of
B which she fell down. PW-20 who was present there,
stopped the appellant and questioned him as to why he
had shot the deceased and demanded the weapon from
him but he did not hand over the pistol and fled away.
Deceased was rushed to Ashlok Hospital from where she
c was shifted to Apollo Hospital. On 30.04.1999, in the early
morning hours, she was declared brought dead at Apollo
Hospital.
FIR was lodged and after police investigation,
charges were framed against nine accused under
D Sections 302/202/1208/212 IPC and under Section 27 of
the Arms Act against the appellants. Trial began in May,
2001 against nine accused. In all, 101 witnesses were
examined by the prosecution and two court witnesses
were also examined. On 21.02.2006, after trial, the
E Additional Sessions Judge acquitted all the nine accused
including the appellant.
Challenging the acquittal, the prosecution filed an
appeal before the High Court.On 20.12.2006, the High
F Court convicted and sentenced the appellants. A-1 was
given life sentence for murder and a fine of Rs.50,000/-
and four years sentence under Section 27 of the Arms Act
with default stipulation. The other two appellants (A-2 and
A-3) were convicted and sentenced to four years
imprisonment and fine of Rs.2000/- each with default
G stipulation.
H
Challenging the said order of the High Court, all the
three appellants filed separate appeals before this Court.
On behalf of the appellants, it was contended that A-
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 107
(NCT OF DELHI)
1 has been denied his fundamental right to free and fair
A
trial which is guaranteed under Article 21 of the
Constitution of India; that on the very first day of
investigation i.e. on 30.04.1999, an FIR was filed against
PW-6, PW-20 and PW-24 under the Punjab Excise Act in
order to control these witnesses and to pressurise them
8
to support the prosecution case. After their deposition,
the Excise case was pre-poned and disposed of by
imposing a fine of paltry amount; that PW-6, PW-20 and
PW-24 were frequently shown the photograph of the
appellant and he was paraded before them; that the C
finding of the High Court that the appellant took out his
pistol and first fired at the ceiling and then at the
deceased is based on no evidence; that three Ballistic
Experts have concurred that empty cartridges have been
fired from two different weapons; their Report.support the 0
statement-in-chief of PW-2; there was no evidence on
record that both the shots were fired from one weapon;
and that the High Court has wrongly placed reliance
upon the testimony of PW-1, even though, he was not
present in the party and he was planted by the
prosecution; the evidence of three family members PWE
6, PW-20 and PW-24 was inadmissible in law; that the
prosecution never claimed PW-20 as an eye-witness,
however, the High Court erroneously held Iler as eyewitness to the occurrence; that the High Court failed to
consider the evidence of PW-46 and PW-47; that the High
F
Court committed an error in relying upon the testimony
of PW-24 to corroborate the evidence of PW-20; that the
First Information Report recorded on the statement of
PW-2 was not an FIR but a signed statement; that the
High Court wrongly discarded his ocular version; that the
G
Trial Court assigned good reasons for accepting his
evidence; that the High Court's observation on Ballistic
Experts from CFSL was erroneous; that the High Court
committed an error in disbelieving PW-95; that there is no
acceptable evidence/material to connect Tata Safari to the
H
108
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
allege~ occurrence; that PW-30 was a planted witness,
and there was no need for him to accompany PW-1 to the
spot when he was assigned other official work; that a
rough site plan which was prepared in the early hours of
30.04.1999 (Ex. PW 100/2) clearly showed the absence of
8 PW-20 at the alleged place of occurrence, if she was an
eye-witness, this would have been done; that the Public
Prosecutor failed to adhere the basic principles in
conducting criminal case; that the High Court committed
a grave error by reversing the well considered order of
C acquittal by the Trial Court and on conjunctures the High
Court interfered wi~h the acquittal and imposed sentence
which is not permissible under law; and that the
prosecution failed to establish the charge in respect of
the other two accused-appellants (A-2 and A-3) under
Section 201 read with 1208 of the IPC.
D
On behalf of the State, it was contended that the Trial
Judge has committed an error in acq.uitting all the
accused and the High Court being an Appellate Court is
fully justified in re-analysing the evidence and convicting
E all the three accused-appellants and awarding
appropriate sentence; and that the conviction and
sentence awarded by the High Court were acceptable and
no interference is called for by this Court.
The following points arose for consideration in these
F appeals:
G
H
(a)
Whether the prosecution has established its
case beyond reasonable doubt against all the
three accused?
(b)
Whether the trial court is justified in acquitting
all the accused in respect of charges leveled
against them?
(c)
Whether the impugned order of the High Court
imposing punishment when the trial court
I
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 109
(NCT OF DELHI)
acquitted all the accused in respect of the
A
charges leveled against them is sustainable?
Dismissing the appeals, the Court
HELD:
1.The following principles have to be kept in mind by
the Appellate Court while dealing with appeals,
particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate
Court to review the evidence upon which the order C
of acquittal is found.
(ii) The Appellate Court in an appeal ag·ainst acquittal
can review the entire evidence and come to its own
conclusions.
(iii) The Appellate Court can also review the Trial
Court's conclusion with respect to both facts and
law.
D
(iv) While dealing with the appeal preferred by the
E
State, it is the duty of the Appellate Court to marshal
the entire evidence on record and by giving cogent
and adequate reasons set aside the judgment of
acquittal.
(v)
An order of acquittal is to be interfered only
when there are "compelling and substantial reasons"
for doing so. If the order is "clearly unreasonable",
it is a compelling reason for interference.
F
(vi)
While sitting in judgment over an acquittal the
G
Appellate Court is first required to seek an answer to
the question whether finding of the Trial Court are
palpably
wrong,
manifestly,
erroneous
or
demonstrably unsustainable. If the Appellate Court
answers the above question in the negative the
H
110
A
B
c
SUPREME COURT REPORTS
(2010] 4 S.C.R.
order of acquittal is not to be disturbed. Conversely,
if the Appellate Court holds, for reasons to be
recorded, that the order of acquittal cannot at all be
sustained in view of any of the above infirmities, it
can reappraise the evidence to arrive at its own
conclusion.
(vii) When the Trial Court has ignored the evidence
or misread the material evidence or has ignored
material documents like dying declaration/report of
Ballistic Experts etc., the Appellate Court is
competent to reverse the decision of the Trial Court
depending on the materials placed. [Para 13] [168-DH; 169-A-E]
Madan Lal vs. State of J&K, (1997) 7 SCC 677; Ghurey
D Lal vs. State of Uttar Pradesh (2008) 10 SCC 450; Chandra
Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105 and
Jaswant Singh VS. State of Haryana, (2000) 4 sec 484,
referred to.
2. There is no dispute that the incidence occurred in
E a place known as "Qutub Colonnade". The open area of
"Qutub Colonnade" is known as "Tamarind Court"
whereas the closed area is called "Tamarind Cafe". In
order to establish the presence of A-1 and others,
prosecution has examined PW-1, PW-2, PW-6, PW-20,
F PW-24, PW-23 and PW-70. Apart from these ocular
witnesses, prosecution pressed into service Ex. PW12/
D-1 which is a wireless message received at Police
Station, Mehrauli. [Para 15] [170-8-C]
G
3. A close scrutiny of PW-1 's evidence clearly shows
that the deceased was friendly with him having known
him for 5-6 years. He also went to the house of her
parents twice i.e. on 30th April and 1st May 1999 to pay
condolence. Further, in categorical terms, he asserted
H and identified the presence of A-1 at the scene of offence.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 111
(NCT OF DELHI)
Since he had contact with a person having fair A
complexion with smiling face, in the Court he correctly
identified both A-1 and A-2. He also identified other
persons who accompanied these two accused. It is also
clear from his evidence that at around 1.45 a.m., he heard
a noise emerging from Tamarind Cafe to the effect that B
the deceased had been shot. It is also clear that on
hearing, he ran towards Tamarind Cafe though according
to him he could not go inside yet peeped and saw the
deceased lying on the floor. Since the High Court has
accepted his evidence which was not acceptable by the c
Trial Court, this Court analyzed his entire statement with
great care. On seeing his entire evidence, there is no
reason to either suspect his evidence or reject the same
as unacceptable. On the other hand', his evidence
supported by other witnesses clearly proves the 0
presence of accused Nos. 1-4 at the place of occurrence.
He asserted the presence of the deceased and PW-2 and
the claim of whisky by a fair complexion man who
exchanged niceties with him and introduced himself (A1 ). There is no valid reason to hold that he is a planted E
witness, though he was not an eye-witness to the actual
shooting incident but his own statement proves that
immediately on hearing the noise he peeped and noticed
the deceased lying on the floor of Tamarind Cafe. To this
extent, the evidence of PW-1 is acceptable and the High
Court has rightly believed and relied on his version. (Para
F
15] (172-G-H; 173-A-H]
4. The analysis of the evidence of PW-2 shows that
though he turned hostile but his evidence shows that he
had visited Tamarind Cafe on the night of 29.04.1999. He G
also mentioned the presence of A-1. His evidence further
shows that immediately after the shot PW-20 and others
were carrying the deceased to Ashlok Hospital. In other
words, his evidence proves the presence of A-1 at the
scene of offence. To this extent, the prosecution relied H
112
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
upon his evidence and this was rightly accepted by the
High Court. Though, the defence submitted that High
Court ought to have accepted his entire evidence in toto,
considering his earlier statement to ~he police and his
evidence before the Court, this Court is satisfied that the
B High Court is justified in holding that even if his testimony
is discarded, the case of the prosecution hardly gets
affected. His evidence amply proves the presence of
accused at the scene of occurrence at the time and date
as pleaded by the prosecution. [Para 15) [175-E-H; 176C A]
5. It is relevant to note that PW-6 (daughter of PW-20)
is not an ordinary person and it is not the case of the
defence that she is an illiterate, unable to understand
what she said to the earlier questions. She is a fashion
D designer by profession. In other words, she is highly
qualified and it is not her grievance that she was unable
to understand her earlier answers. It is clear from the
evidence of PW-6 that A-1 was very well present at the
scene of offence and she correctly identified him. Further,
E as rightly observed by the High court, though she was
not an eye-witness, she is certainly a witness identifying
A-1 along with 4 or 5 persons present at the Tamarind
Court who asked her for whisky and later misbehaved
with her. This Court agrees with the observation and the
F
ultimate conclusion about PW-6 reached by the High
Court. [Para 15] [179-H; 180-A-D]
6. If the evidence of PW-20 is analyzed along with the
sketch/map of the occurrence, when she mounted steps
of the restaurant, she heard a shot, a moment later, she
G heard another shot. It is also relevant to note that she
mentioned that the deceased was standing with the
people at the far end and she saw her falling down. She
also informed that PW-2 said that the deceased had been
shot. It is relevant to point out that she was shouting to
H the guests to call the Doctor or to take the deceased for
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 113
(NCT OF DELHI)
treatment, she reached the gate where her husband was A
standing and she told him that "this was the man who had
shot the decease,d;and to see in which car he gets into". If her
entire evidence is read she refers only to A-1. She also
correctly identified the presence of other accused
persons. Her evidence remained unchallenged, though B
the Trial Court discarded her evidence as she was not an
eye-witness to the occurrence but accepted that she is
a witness to the presence of the accused at the Qutub
Colonnade. Her statement clearly proves the prosecution
case that she had herself seen A-1 shooting the c
deceased. As rightly observed by the High Court, if the
evidence of PW-20 is analyzed in depth, it is clear that
she. not only asserted the presence of A-1 at the scene
of occurrence and heard two shots one by one but also
asked a pertinent question to PW-2 that why he {A-1) had 0
shot the deceased. For the limited purpose of proving the
presence of accused at the scene of offence, her
evidence fully supports the case of the prosecution. [Para
15] [180-F-H; 181-A-E]
·'
'.· 7. PW-24 is a Canadian citizen and according to him, E
he has been residing in India since February, 1992. PW20 is his wife. His evidence makes it clear that at the
relevant time on hearing the shot, PW-2 came running
shouting that someone shot the deceased. He reached
the door of the restaurant. It is also clear that PW- 20 was F
moving at a place ahead of him towards the left side. This
witness subsequently stated that PW-20 was addressing
a young man who was moving with someone. He also
identified the person who had come out first followed by
PW-20 and he touched A-1 as the person who was being G
followed by PW-20. His evidence also proves the
presence of A-1 at the scene of offence. [Para 15] [181-FH; 183-D-E]
8.1. PW-23 in his evidence, admitted that he had told
H
114
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
the police that he saw PW-20 going after a boy. [Para 15]
[183-F-G]
8.2. The statement of PW-70 also makes it clear that
after the shooting incident PW-20 was running behind a
8
man shouting "catch that man". [Para 15] [184-C-D]
9. The evidence of PWs 1, 2, 6, 20, 23, 24 and 70
which are all admissible in evidence clearly show the
presence of A-1 at the scene of offence. This evidence
of the ocular witnesses is duly corroborated by Ex PW
C 12/D-I, the wireless message received at PS Mehrauli. In
addition to the evidence of the above mentioned
witnesses, who were present at the party, the presence
of appellants is also proved by other evidence, namely,
3 PCR calls Ex PW 11/A, 8 and C which were received.
o The evidence of PWs 11, 12 and 13 clearly proves that
immediate and prompt action was taken. [Para 15] [184D-F]
10. PW-83 reached the scene of occurrence within
.two minutes at around 02.17 a.m. and reported back at
E 02.35 a.m. Ex. PW 12/D-1, a contemporaneous document,
clearly corroborates the testimony of ocular witnesses.
From the evidence adduced, it is clear that the appellantsaccused Nos. 1-3 were present at the scene of
occurrence. Admittedly without setting up a plea of alibi
F to show their presence elsewhere, they have flatly denied
their presence. It is relevant that the said witness reached
around 02.17 a.m., on a message from PCR to PS
Mehrauli takes around 10 minutes as from local PCR it
goes to headquarter from where it is transmitted to
G concerned district net which further transmits it to the
local police station. In this way, around 02.25 a.m., even
before the local police had arrived at the spot PW-83 had
sent the version available at the spot. The prosecution
placed specific reliance on the same. In the absence of
H rebuttal evidence, there is no reason to reject the
SIDHARTHA VASHISHT @ MANU SHARMA v. STATE 115
(NCT OF DELHI)
evidence of PW-83 as well as Ex. PW-12/D-1. In those
A
circumstances, the entire premise of the defence
argument that it was not a person in white T-shirt, stocky
and fair, who shot at the deceased over a row over the
drink and fled away from the spot and this was a planted
and concocted story of the prosecution to rope in A-1 and
B
make escape good of the tall Sikh gentleman, is wholly
erroneous and without any basis. [Para 15] [184-G-H;
185-D, G-H; 186-A-C]
11.1. The analysis of evidence of PWs 46 and 47
shows that when PW-47 heard the noise of the shots he
C
was in the office counting cash and after hearing the
noise of firing he opened the gate of his office which he
had closed at the time of counting the cash. He saw from
the gate of his office that people were coming in and
going out. At that time, he saw PW-20 on the steps of the
D
cafe, he rushed towards her and they both went inside
· the cafe. It is clear from the testimony of this witness that
he was inside his office counting the cash when he
heard the shots, thus after taking care of the cash when
he opened the gate he saw people coming in and going
E
out, which means that his act of coming out from the
office is considerably after and not immediately after the
shots were fired and, therefore, he saw people running
back and forth whereas PW-20 has stated that when she
mounted the steps of the restauraht she saw a few
F
people standing next to the counter and heard a shot. A
moment later she heard another shot. Deceased was
standing with people at the far end and she saw her
falling. It is pertinent to note that as per the scaled site
plan, the point at which PW-20 was standing was only G
four feet from the point at which the shot was fired at the
deceased. Therefore, it can never be alleged that there
was no way in which the said witness could have had any
doubt as to the identity of A-1. Thereafter, she accosted
him till the gate of Qutub Colonnade where she told PWH
116
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A 24 that this was the man who had shot the deceased and
that he should see in which car he i.e. A-1 gets into and
after that PW-20 came back to the spot. It is when she
came back to the cafe this witness PW-47 joined PW-20
entering the cafe, thus the testimony of this witness does
8 not negate the fact that PW-20 witnessed the incident. It
is relevant to mention the very fact that PW-20 followed
the appellant is a clear indication of the fact that she was
more than certain that he was the culprit responsible for
the crime, and, therefore, she did not chase anybody else
c as the person who was having the gun. It has to be borne
in mind that PW-20 had no enmity with the appellantmain accused and also the whole theory of planting of
witnesses at the instance of the police is false since the
accused has not led any defence evidence or brought on
0 record any evidence to suggest that the investigation
was motivated by mala fide. [Para 18) [188-C-H; 189-A-D]
11.2. The defence that since PW-47 in his cross
examination has stated that PW-20 stated to him as to
what had happened and who had done it, an inference
E has to be drawn that she did not witness the incident,
does not lead to the inference that PW-20 did not witness
the incident rather it could further reinforce what she had
witnessed. Even otherwise, admittedly, thus, PW-20 was
available she was not recalled to confront her with the
F testimony of PW-47. In those circumstances, the defence
cannot take advantage out of a portion of statement of
PW-47. [Para 19) [189-D-F]
11.3. A perusal of the testimony of PW-46 reveals that
when he came down, PW-20 was already there. Thus PWG 46 is not in a position to say as to what PW-20 witnessed.
It may be further pointed out that the stairs leading to the
terrace are not on the cafe but on the main building of
Qutub Colonnade which houses the shops beyond the
verandah and Tamarind Court. Hence, the testimony of
H PW-46 cannot negate the evidence of PW-20 that she
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 117
(NCT OF DELHI)
witnessed the incident. The mere absence of PW-20 in the
A
site plan also does not negate her presence or her having
not witnessed the incident, specifically when she had
given her statement to the police under Section 161 CrPC
on 30.04.1999, itself. [Para 20) [190-A-C]
11.4. This Court meticulously verified the site plan as
B
well as the evidence of PWs 20, 46 and 47. The absence
of PW-20 in the site plan does not belie her presence and
her having witnessed the incident especially when her
statement under Section 161 Cr.P.C. was recorded on
30.04.1999 in the morning itself. [Para 21] [190-E-F]
C
12.1. It has been vehemently argued that PW-20 is not
an eye witness since both Investigating Officers i.e. PWs100 and 101 admitted the same. It was submitted by the
State that this argument runs counter to the well settled · D
proposition of law that a witness cannot be discredited
without the said piece of the testimony having been put
to her. The accused had a statutory option available by
way of Section 311 of the Code to call PW-20 for the
purposes of further examination. This argument of the
E
defence also runs counter to their own argument used
to discredit the investigation that PW-6 was placed in the
'rukka' by the Police for the purposes of being shown as
F
an eye-witness. The said part of the testimony of PWs100 and 101 are at best in the nature of opinion evidence
which are inadmissible pieces of evidence and for the
aforesaid reasons cannot wipe out the unchallenged
testimony of PW-20, which is the case of the prosecution.
Further, the appellant-main accused has also been
clearly identified by PW-6 as the person in the White T G
Shirt who had asked for whisky and thereafter on her
refusal to oblige, he misbehaved with her in the most
vulgar fashion. [Para 23, 24] [192-F-H; 193-A-C]
12.2. It is pertinent to note that FIR No. 288 of 1999
at PS Mehrauli under Excise Act was registered on
H
118
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A 30.04.99 itself and thus the question of making PW-6 an
accused on 08.05.99 does not arise. Moreover, the excise
offence is a bailable offence. Further, the statement of
PW-6 was recorded under Section 161 Cr.P.C. on 03.05.99
itself vide Ex PW 6/DA and thus the contention of making
B her an accused on 08.05.99 on this count is also
fallacious. [Para 25] (193-G-H; 194-A]
12.3. As regards the argument that PW-6 was shown
as an eye-witness to the incident of shooting in the
'rukka', a perusal of the same reveals that at no point of
C time PW-2, stated either in the positive or the negative
that PW-6 was or was not there when the shots were
fired. In any case, as rightly pointed out on the side of the
State that the alleged prosecution planted PW-6 as an
eye-witness goes contrary to all reasoning, since on
D . 30.04.1999 at the time of recording the 'rukka', none of the
witnesses had disclosed the identity of A-1, therefore, to
allege that the Police had planted the witness is wholly
incorrect. [Para 26] (194-B-D]
E
12.4. As regards the argument that PW-6 was under
the influence of alcohol, therefore, could not have
identified A-1, is also wrong since she clearly stated in
her testimony, particularly, in cross-examination, that she
had consumed only one drink. [Para 27] [194-D-E]
F
12.5. The argument that deposition of PW-6 as
regards the presence of other accused, does not find
corroboration from the testimony of PW-1 is incorrect
since the said witness categorically mentioned the
presence of other accused. The grievance that the
G identification of A-1 was based on a leading question is
also wrong since even before the alleged leading
question was put to the witness, the witness, PW-6 had
positively identified A-1 by specifically pointing out and
stating that he just looks like him. It was explained by the
H State that the appellant (A-1) was not personally known
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 119
(NCT OF DELHI)
to the said witness or her family and, therefore, the
A
manner of identification in the present case wherein the
present witness by pointing out towards him stated that
he just looks like the man she saw at the party is most
conclusive and reliable. Further the argument of her
having been shown the photo, her identification is of little
B
value since her statement that she saw the photographs
prior to 05.05.1999 is most wavering and unclear. In the
same manner, she has deposed that photos were also
\
shown to PW-20 and PW-24 is of little value since neither
PW-20 nor PW-24 stated that they had be.en shown the c
photos of the accused inspite of having all the
opportunities failed to confront the said witnesses with
the said part of PW-6's testimony. Based on the statement
of PW-70, that he saw her screaming out, the defence has
sought to discredit PW-6's, statement. It is relevant. to note
0
that it is the case of PW-6 that she came to know when
she was in the courtyard, PW-2 came running towards
her screaming that the deceased had been shot.
Thereafter, PW-6 fainted, thus, in the process, if PW-70
saw her screaming in the courtyard, it cannot be said that
E
there is any contradiction in the statement of PW-6 and
PW-70. [Para 28] [194-F-H; 195-A-D]
12.6. After perusing the evidence of PW-6, it is clear
that after refusal of the drink, A-1 misbehaved in the most
vulgar fashion. The testimony of PW-23 further
F
corroborates the testimony of PW-6. As rightly pointed
out by the State that it was a case where the deceased
was murdered for a row over the drink. [Para 29] [195-E]
12.7. The evidence of these three witnesses, viz. PWs
G
6, 20 and 24, if read in whole in conjunction and in
harmony with each other, would show the chain of
circumstances of evidence leading to only one inference.
It is relevant to mention that PW-24's statement was
recorded on the same day i.e. 30.04.99. The presence of
PW-24 at the time of incident is also supported by the
H
120
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A testimony of PW-13, who deposed that a person bearing
the description of PW-24 came to the Police Station to
report about the firing incident, which fact corroborates
the testimony of PW-24 that he went to the Police Station.
PW-100 reached Ashlok Hospital and made enquiries
s from PW-20 who directed him to take the statement of
PW-2 as he was present at the bar counter and
conversant with every thing. The prosecution has
explained that in view of the statements of the eyewitnesses having been taken immediately at 03.40 a.m.
c on 30.04.99 itself on the basis of which FIR was registered
and number of other investigation processes like postmortem, site plan etc. and immediately thereafter search
for Tata Safari, ownership of the alleged vehicle, search
for A-1 in the case being made, as such even if there is
0 delay in recording of statements of other witnesses, it
cannot be fatal to the prosecution case. The said claim
of the prosecution cannot be rejected as unreasonable.
[Para 30] (195-G-H; 196-A-G]
12.8. PW-6 in categorical terms informed the Court
E about A-1 asking about the whisky, his misbehaviour
immediately before the shooting and also identified the
same person in white T-shirt asking for the whisky and
misbehaving with her. PW-6 further corroborates the
testimony of PW-20 and part testimony of PW-2 with
F regard to the presence of A-1. The scrutiny of the entire
evidence of PW-6 clearly shows that her evidence is not
only relevant but also admissible. [Para 31]
G
13.1. PW-9, who conducted post-mortem on the body
of deceased has stated that on 30.04.1999 at about 11 :20
a.m. 7 sheets of papers i.e. inquest papers, request of
post-mortem, inquest report, copy of FIR, brief facts of the
case, were submitted to him along with the dead body.
He informed that the cause of death to the best of his
knowledge and belief was head injury due to firearm,
H injury was ante-mortem in nature. He also deposed that
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 121
(NCT OF DELHI)
Injury no. 3 was sufficient to cause death in the ordinary
A
course of nature. [Para 32] [197-C-E]
13.2. Coming to the evidentiary value of PW-2, on
behalf of the defence, it was stated that PW-2 is not a
reliable witness in view of the fact that according to him
8
he made his statement in English, however, PW-100
recorded it in Hindi. In the absence of any suggestion to
the contrary, that it must be presumed that PW-100
recorded the statement correctly. It is also relevant to
mention that in his statement as a witness he said he can
understand spoken Hindi. Even if a prosecution witness
is challenged in cross-examination, that part of his
testimony which is corroborated by other witnesses or
from other evidence can clearly be relied upon to base
conviction. [Para 33] [197-E-H; 198-A-B]
c
D
13.3. With regard to the allegation that statements of
PW-6, PW-20 and PW-24 were taken under pressure as a
case under Excise Act was lodged against them. In fact,
PW-20 has denied the suggestion that she is deposing
falsely at the instance of Police. In the same way, PW-24
E
has also denied the suggestion that a deal was struck
between him and the investigation agency to make a false
statement, thereafter, the Excise case could be hatched
F
up. It is relevant to point out that the case under Punjab
Excise Act which was registered as FIR No. 288/99 on
30.04;1999 has not been withdrawn by the prosecution
against the accused. On the other hand, the fact remained
that the accused had pleaded guilty. The maximum
penalty/fine under Section 68 is Rs.200/-, therefore, the
maximum fine which could have been imposed on the
G
accused is Rs.200/-. In those circumstances, the
allegation that these three witnesses were kept under
pressure is not acceptable. [Para 34] [198-C-H; 199-A]
14.1. The information about the commission of a
cognizable offence given "in person at the Police Station"
H
122
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A and the information about a cognizable offence given "on
telephone" have forever been treated by this Court on
different pedestals. The rationale for the said differential
treatment to the two situations is, that the information
given by any individual on telephone to the police is not
B for the purpose of lodging a First Information Report, but
rather to request the police to reach the place of
occurrence; whereas the information about the
commission of an offence given in person by a witness
or anybody else to the police is for the purpose of
c lodging a First Information Report. Identifying the said
objective difference between the two situations, this Court
has categorically held in a plethora of judgments that a
cryptic telephonic message of a cognizable offence
cannot be treated as a First Information Report under the
0 Code. It has also been held in a number of judgments by .
this Court that merely because the information given on
phone was prior in time would not mean that the same
would be treated as the First Information Report, as
understood under the Code. [Para 41) [208-B-F]
E
14.2. In the instant case, the three telephonic
F
messages received by the police around 2.25 a.m. on
30.04.1999 did not constitute the FIR under Section 154
of the Code and the statement of PW-2 was rightly
registered as the FIR.[ Para 42) [208-G]
State of UP. vs. P.A. Madhu, (1984) 4 SCC 83; Tapinder
Singh vs. State of Punjab (1970) 2 SCC 113; Ranbir Yadav
vs. State of Bihar, (1995) 4 SCC 392 and Ramesh Baburao
Oevaskar and Others vs. State of Maharashtra (2007) 13 SCC
G 501, relied on.
Mehr Vajsi Deva vs. State of Gujarat, AIR 1965 Guj 143,
held per incuriam.
Superintendent of Police, CBI and Others vs. Tapan
H Kumar Singh, (2003) 6 SCC 175, held inapplicable.
SIDHARTHA VASHISHT@ MANU SHARMA v. STATE 123
(NCT OF DELHI)
State of UP. vs. Bhagwant Kishore Joshi AIR 1964 SC
A
221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18,
distinguished.
H.N. Rishbud & lnder Singh vs. The State of Delhi (1955)
SCR 1150; Damoder vs. Rajasthan (2004) 12 SCC 336;
B
Ramsinh Bavaji Jadeja vs. State of Gujarat (1994) 2 SCC
685; Zahidurddin vs. Emperor, AIR 1947 PC 75;
Superintendent and Remembrancer of Legal Affairs to the
State of WB. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cal.
348 (Para 9) and Mer Vas Deva vs. State of Gujarat, AIR C
1965 Guj. 143 (Para 9 & 10), referred to.
15.1. PW-30 has categorically stated that while he
was on duty he saw a vehicle Tata Sierra White Colour
coming slowly from the side of Qutub at about 03.40 am
or 03.45 am. There were two persons in the said vehicle
D
on the front seat. They stopped the vehicle near Tata
Safari of black colour. One boy came down from the said
vehicle and opened Tata Safari with a key. PW-30 told him
not to do so but the said boy forcibly entered the Tata
Safari and took it away. PW-30 gave a lathi blow on the
E
glass of window pane and it broke due to danda blow.
He noted down the number of the black Tata Safari as
CH-01-W-6535. The witness also identified Tata Safari
which was hit by him on that night, which is exhibit PW
30/X. PW 30 also identified that Tata Sierra was driven by
F
A-2 whereas A-3 drove away black Tata Safari. PW-101
also stated that when he came back, he was told that two
boys had come and had forcibly taken away the Tata
Safari. Out of the two boys one was Sikh, PW-30 also
informed that he had broken the right backside window
G
panel of Safari with his Danda. He also gave the number
of the Tata Safari as CH-01-W-6535. PW-100 has also
stated that two persons had got into the Tata Safari and
had driven away. The testimony of the above witnesses
is duly corroborated by document Ex PW 101/DK-1. Thus
it is clearly established by cogent evidence that on
H
124
SUPREME COURT REPORTS
(2010] 4 S.C.R.
A 30.04.1999 at about 03.40 or 03.45 am A-2 and A-3 came
in a white colour Tata Sierra Car and A-3 got down and
drove away black Tata Safari No. CH-01-6535. [Paras 43
and 44] [212-D-H; 213-A-C]
8
15.2. From the statements of PW-100, PW-101, PW87, PW-80 and PW-85, it is clear that Tata Safari vehicle
was being searched by Inspector (PW-87) and SI (PW-85)
and other police officers at various places in Delhi,
Haryana and Chandigarh. The said vehicle was found on
c 02.05.1999 at Noida and the same was taken into
possession through a seizure memo prepared by Noida
Police. The same was taken into possession by Delhi
Police on 03.05.1999 after taking appropriate orders from
the Magistrate, Ghaziabad. [Para 46] [215-B-D]
D
15.3.