2010 Supreme(SC) 330

2010 (3) Supreme 190
SUPREME COURT OF INDIA
P. Sathasivam and Swatanter Kumar, JJ.
Sidhartha Vashisht @ Manu Sharma — Appellant
versus
State (NCT of Delhi) — Respondent(s)
Criminal Appeal No. 179 of 2007
Decided on : 19-04-2010

IMPORTANT POINTS
1. Cryptic telephonic messages cannot be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR.
2. 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.
3. Delay in recording the statement of the witnesses does not necessarily discredit their testimonies. The court may rely on such testimonies if they are cogent and credible.
4. There is no limitation on the part of the Appellate Court to review the evidence upon which order of acquittal is found-Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
5. Evidence of phone calls is a very relevant and admissible piece of evidence.
6. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution.
7. It is not as if every single leading question would invalidate the trial. The impact of the leading questions, if any, has to be assessed on the facts of each case.
8. Where an accused furnishes false answers as regards proved facts, Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused.

Headnote:Indian Penal Code,1860-Sections 302, 201/120B r/w Section 27 of Arms Act-Prosecution of appellant accused for causing death of deceased by firing a shot at her from his pistol and of coaccused persons for screening evidence-Prosecution case that on night intervening 29-30.04.1999, a ‘Thursday Party’ was going on at Qutub Colonnade at “Once upon a time” restaurant also called “Tamarind Cafi”- The liquor was being served by the bartenders, deceased and PW-2 -At about 2.00 a.m., appellant 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 was also present there, tried to make him understand that party was over and there was no liquor available with them- On refusal to serve liquor, appellant took out a pistol and fired one shot at the roof and another at deceased which hit near her left eye as a result of which she fell down- PW-20,owner of restaurant who was present there, stopped the appellant and questioned him as to why he had shot deceased and demanded the weapon from him but he did not hand over the pistol and fled away- Deceased was rushed to Hospital but was declared brought dead –Trial Court acquitted all accused persons- On appeal High Court reversed the order of acquittal passed by Trial Court and convicted appellant along with A2 and A3-Appeals thereagainst- Evidence of prosecution witnesses amply proved the presence of accused at the scene of occurrence at the time and date as pleaded by the Prosecution-Evidence of ocular witnesses was duly corroborated by Ex PW 12/D-I, the wireless message received at PS Mehrauli- In addition to evidence of prosecution witnesses, who were present at the party, presence of appellants was also proved by other evidence, namely, 3 PCR calls Ex PW 11/A, B and C which were received –Prosecution witnesses PW20,PW6 and PW24 had deposed on three different situations in the chain of circumstances- The evidence of said three witnesses, if read in whole in conjunction and in harmony with each other, showed the chain of circumstances of evidence leading to only one inference- Perusal of evidence of PW-6, showed that after refusal of drink, appellant- misbehaved in the most vulgar fashion- Evidence on record led to a reasonable inference that accused used Tata Safari for coming to Qutub Colonnade on the fateful night- Prosecution established that appellant/accused was the holder of a .22" bore Pistol; he was witnessed by PW20 as the perpetrator of crime; a mutilated .22" lead was recovered from the skull of the deceased; two empties of .22" make with mark ‘C’ were found at the spot; a .22" live cartridge with mark ‘C’ was found in the Tata Safari of the appellant/accused which was found abandoned at Noida and for which no theft report was lodged; that his prior and subsequent conduct of having got the Tata Safari removed from spot, of absconding; refusal to TIP without having any basis; that he even denied his presence at the spot, clearly proved beyond reasonable doubt leaving no manner of doubt that he was guilty of the offence of murdering deceased by using firearm and destroying evidence thereafter-Appeals dismissed. (Paras 15 to 32, 153, 154)

       Indian Penal Code,1860-Sections 302, 201/120B r/w Section 27 of Arms Act –Criminal Procedure Code,1973-Section154-Prosecution of appellant accused along with others for causing death of deceased by firing a shot at her from his pistol -Trial Court acquitted all accused persons- Challenging the acquittal, prosecution filed an appeal before High Court-High Court reversed the order of acquittal passed by Trial Court and convicted appellant along with A2 and A3-Appeals thereagainst-Plea of appellant that in instant case the three cryptic telephonic messages received by the Police at around 2.20 a.m. on night of occurrence should be treated as FIR upon which the investigation started and, hence statement of PW-2 recorded by the Police later on around 3.40 a.m. could not be treated as FIR but a statement under Section 162 of Cr.P.C.-Instantly none of the three telephonic messages received by police furnished any detail about the offence or the accused-Again Cryptic telephonic messages cannot be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR-Instantly object of persons sending telephonic messages including PW-70 was only to bring the police to the scene of offence and not to register the FIR-Hence held that three telephonic 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 FIR. (Paras 36 to 42)

       Appeal against acquittal- Principles to be kept in mind by Appellate Court while dealing with appeals, particularly,against the order of acquittal- There is no limitation on the part of the Appellate Court to review the evidence upon which order of acquittal is found-Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions-Appellate Court can also review Trial Court’s conclusion with respect to both facts and law-While dealing with the appeal preferred by 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 judgment of acquittal- 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- While sitting in judgment over an acquittal Appellate Court is first required to seek an answer to the question whether finding of Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable- If the Appellate Court answers said question in the negative 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 infirmities, it can reappraise evidence to arrive at its own conclusion-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., Appellate Court is competent to reverse decision of Trial Court depending on the materials placed- In the instant case High Court by adhering to all ingredients and by giving cogent and adequate reasons reversed the order of acquittal. (Para 12)

       Criminal Trial- Presence of accused at the scene of crime- Presence of accused at the scene of crime was proved through the ocular testimonies of PWs 1, 2, 6, 20, 23, 24 and 70, corroborated by Ex PW 12/D-I as well as 3 PCR calls Ex PW 11/A, B and C- Evidence of prosecution witnesses,namely, PWs 1, 2, 6, 20, 23, 24 and 70 which were all admissible in evidence clearly showed the presence of accused at the scene of offence- Categorical statement of PW-20 that she heard two shots, saw the people inside and deceased falling down,which showed that she had witnessed the entire incident –PW6 in categorical terms informed the Court about appellant 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 as appellant- PW-6 further corroborated testimony of PW-20 and part testimony of PW-2 with regard to the presence of the accused – The scrutiny of entire evidence of PW-6 clearly showed that her evidence was not only relevant but also admissible-This evidence of ocular witnesses was duly corroborated by Ex PW 12/D-I, the wireless message received at PS Mehrauli- In addition to the evidence of said witnesses, who were present at the party, presence of appellants was also proved by other evidence, namely, 3PCR calls Ex PW 11/A, B and C which were received- Evidence of PWs 11, 12 and 13 clearly proved that immediate and prompt action was taken-Plea of appellant that he was not present at the spot held unacceptable. (Paras 15, 31)

       Criminal Trial-Non-recovery of the weapon of offence-Appellant when he surrendered also surrendered his arms license Ex PW 7/B which had been seized vide seizure memo Ex. PW 80/B by Inspector PW 87- Said arms license duly bore endorsement about the sale of .22" bore pistol No. B-56943 U, make P. Berretta, made in Italy- Case of accused as per his statement u/s 313 Cr.P.C. was that on night of 30.04.1999 and 01.05.1999 when a raid was conducted at his farm house at Samalkha, his pistol ammunitions and arms license were taken away- Said defence of accused was totally incorrect in view of positive evidence adduced on record-This defence of accused was a clear afterthought as no complaint was lodged by accused in this regard nor the same was mentioned when he was twice produced for police remand before the MM for recovery of the pistol employed in the incident- The pistol could not be recovered despite extensive efforts made to trace the pistol pursuant to disclosures of accused- Prosecution by way of acceptable evidence proved beyond reasonable doubt that accused was the owner and possessed .22" P. Berretta Pistol made in Italy- Two empty cartridges cases of the .22" with ‘C’ mark were recovered from the spot-Mutilated lead recovered from the skull of deceased was of .22" and could have been fired from a standard .22" caliber firearm- From the Tata Safari of accused a live cartridge of .22" with mark ‘C’ was recovered - The two .22" cartridge cases from the spot and .22" cartridge recovered from Tata Safari had similar head stamp of ‘C’ indicating that they were of the same make. (Paras 51 to 56)

       Criminal Trial-Phone calls made immediately after an incident to the police –Whether constitutes an FIR-Held Phone calls made immediately after an incident to police constitutes an FIR only when they are not vague and cryptic- Calls purely for reason of getting police to the scene of crime do not necessarily constitute FIR- In the instant case, the phone calls were vague and therefore could not be registered as the FIR- FIR was properly lodged as per the statement of PW-2. (Paras 153)

       Criminal Trial-Delay in recording the statement of the witnesses-Whether fatal to prosecution case-Held delay in recording the statement of the witnesses does not necessarily discredit their testimonies- The court may rely on such testimonies if they are cogent and credible- Instantly there were about 100 or more persons present at the party- Identity of all such persons took substantial amount of time to determine- Consequent to large number of witnesses, their interrogation also consequently took a substantial amount of time-No concomitant circumstances to suggest that investigator was deliberately making time with a view to give a particular shape to the case-The details of investigation conducted on each day were very clearly brought out in the evidence of the various witnesses- Again identity of appellant as a suspect in the instant case was not consequence of any delay- Thus, the delay, if any, in recording evidence of witnesses in the instant case could not be considered as an infirmity in the prosecution case. (Paras 58, 153)

       Constitution of India,1950-Article 21-Denial of Fair Trial- Appeals against judgment and order passed by High Court convicting appellant for causing death of deceased by firing shot at her from his pistol and other coaccused persons for destroying evidence thereafter-Plea that appellant had been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of Constitution of India-Plea of appellant that the prosecution tried their level best to suppress the report of the Ballistic expert which was not favourable to them and that same was exhibited at the instance of the defence as Ex.PW 89/DB- Contention that charge sheet was filed without the expert opinion and that since report did not favour the prosecution, same was withheld- Appellants case that failure on the part of prosecution to bring on record material which was in favour of the accused was a breach of Article 21 of Constitution-Held no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice- Some shadow of doubt upon veracity of the document had also been created by prosecution and the prosecution opted not to rely upon this document- The discretion on the part of the I.O. and the superior officers was rightly exercised when they decided not to file the expert report since they realized that the expert report was ambiguous as it used the term “appear” when it suggested that the two empties appeared to have been fired from different weapons—Clearly the said opinion was far from conclusive andwould have only created confusion in the case of prosecution- Again testimony of expert PW-95 was inconclusive as he had stated in his report that it was only on receiving weapon of offence that a conclusive opinion as to whether the two empties (cartridge cases) found at the spot were fired from the same weapon or from two different weapons could be given- In these circumstances, right of accused to disclosure had not received any set back in the facts and circumstances of the case. (Paras 71, 72, 92)

       Role of Public Prosecutor and his duty of disclosure- Appeals against judgment and order passed by High Court convicting appellant for causing death of deceased by firing shot at her from his pistol and other coaccused persons for destroying evidence thereafter-Plea that prosecutor had suppressed vital evidence relating to laboratory reports which were useful for the defence in order to establish the innocence of accused-Held concept of disclosure and duties of the prosecutor under the English System cannot be made applicable to Indian Criminal Jurisprudence stricto senso at this stage- However, held that the doctrine of disclosure would have to be given somewhat expanded application- As far as the present case is concerned, no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice- Some shadow of doubt upon veracity of the document had also been created by prosecution and the prosecution opted not to rely upon this document- In these circumstances, the right of the accused to disclosure has not received any set back in the facts and circumstances of the case. (Para 92)

       Evidence of phone calls-Admissibility of- Phone call details showed that accused were in touch with each other which resulted in destruction of evidence and harboring-Thus the finding of trial Court that in the absence of what they stated to each other was of no help to the prosecution was an incorrect appreciation of evidence on record.- A close association is a very important piece of evidence in case of circumstantial evidence- The evidence of phone calls is a very relevant and admissible piece of evidence- The details of the calls made by the various accused to one another available in Ex. PW-66/B, PW-66/D and PW-66/C hence held admissible. (Para 96)

       Criminal Trial- Effect of leading question by Public Prosecutor-Appellants case that Public Prosecutor in the instant case had put a leading question to PW6 regarding identification of the accused Manu Sharma-Held question put by the Public Prosecutor, was at best clarificatory, and by no stretch of imagination could be termed as a leading question favouring/eliciting an answer favouring the prosecution-The evidence of PW6 two paragraphs prior to the leading question and two paragraphs thereafter, if read in conjunction with each other clarified the whole scene and sequence of events- The petitioner had adequate and competent legal representation before the trial Court and leading questions, if any, put by the prosecutor were objected to by the defence and several questions were disallowed by the trial court-Furthermore, the finding of guilt of appellant by the High Court had not been on account of any of the answers elicited to any such questions- It is not as if every single leading question would invalidate the trial-The impact of the leading questions, if any, has to be assessed on the facts of each case. (Para 97)

       Criminal trial - Conduct of an accused -A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged- In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty- Conduct which destroys the presumption of innocence can alone be considered as material-Instantly evidence of witnesses clearly established beyond reasonable doubt that accused absconded after committing the crime and surrendered only after extensive searches were made which was a very relevant conduct u/s 8 of Evidence Act. (Paras 99, 100)

       Test Identification Parade-Conviction for offence of murder-Appeal against conviction on plea that identification was inherently illegal because the witnesses were not only shown the photographs but also the accused was physically shown- Held all contentions of accused were incorrect and misconceived with regard to appearance of photos in the newspapers-Evidence on record showed that in none of newspapers photograph of accused was shown-In the absence of any defence refusal of TIP on this ground was totally unjustified and an adverse inference ought to be drawn in this regard- In the light of appellant’s refusal, the police had little choice but to formally show the photo to the witnesses and record their statement in that regard-Thus, firstly his refusal was not justified on the ground that he had been shown to witnesses, moreover, he was shown to the witness only after his refusal of TIP so that it was verified that he was the same person who was involved in the incident and no adverse inference on this count could be taken against the prosecution. (Paras 110 to 112)

       Fair investigation-An investigation must be fair and effective,must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner- In some cases besides investigation being effective accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law- The investigation should be conducted in a manner so as to draw a just balance between citizen’s right under Articles 19 and 21 and expensive power of the police to make investigation-Concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of the Constitution of India. (Para 83)

       Media Trial-Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution -It is essential for the maintenance of dignity of Courts and is one of the cardinal principles of rule of law in a free democratic country, that the criticism or even the reporting particularly, in sub judice matters must be subjected to check and balances so as not to interfere with the administration of justice. (Para 151)

       Facts of the Case :

       Appellant accused was prosecuted herein in the instant case for causing death of deceased by firing a shot at her from his pistol and coaccused persons were prosecuted for screening evidence.Prosecution case that on night intervening 29-30.04.1999, a ‘Thursday Party’ was going on at Qutub Colonnade at “Once upon a time” restaurant also called “Tamarind Cafi”. The liquor was being served by the bartenders, deceased and PW-2 -At about 2.00 a.m., appellant 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 was also present there, tried to make him understand that party was over and there was no liquor available with them. On refusal to serve liquor, appellant took out a pistol and fired one shot at the roof and another at deceased which hit near her left eye as a result of which she fell down. PW-20,owner of restaurant who was present there, stopped the appellant and questioned him as to why he had shot deceased and demanded the weapon from him but he did not hand over the pistol and fled away. Deceased was rushed to Hospital but was declared brought dead .Trial Court acquitted all accused persons. On appeal High Court reversed the order of acquittal passed by Trial Court and convicted appellant along with A2 and A3.

       2.Present appeals have been filed against said order of High Court.

       Findings of the Court :

       Evidence of prosecution witnesses amply proved the presence of accused at the scene of occurrence at the time and date as pleaded by the Prosecution.Evidence of ocular witnesses was duly corroborated by Ex PW 12/D-I, the wireless message received at PS Mehrauli. In addition to evidence of prosecution witnesses, who were present at the party, presence of appellants was also proved by other evidence, namely, 3 PCR calls Ex PW 11/A, B and C which were received .Prosecution witnesses PW20,PW6 and PW24 had deposed on three different situations in the chain of circumstances- The evidence of said three witnesses, if read in whole in conjunction and in harmony with each other, showed the chain of circumstances of evidence leading to only one inference- Perusal of evidence of PW-6, showed that after refusal of drink, appellant- misbehaved in the most vulgar fashion- Evidence on record led to a reasonable inference that accused used Tata Safari for coming to Qutub Colonnade on the fateful night- Prosecution established that appellant/accused was the holder of a .22" bore Pistol; he was witnessed by PW20 as the perpetrator of crime; a mutilated .22" lead was recovered from the skull of the deceased; two empties of .22" make with mark ‘C’ were found at the spot; a .22" live cartridge with mark ‘C’ was found in the Tata Safari of the appellant/accused which was found abandoned at Noida and for which no theft report was lodged; that his prior and subsequent conduct of having got the Tata Safari removed from spot, of absconding; refusal to TIP without having any basis; that he even denied his presence at the spot, clearly proved beyond reasonable doubt leaving no manner of doubt that he was guilty of the offence of murdering deceased by using firearm and destroying evidence thereafter. Appeals having no merit dismissed.