IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 179 OF 2007 <NAME> @ <NAME> .... Appellant(s) Versus State (NCT of Delhi) .... Respondent(s) WITH CRIMINAL APPEAL NO. 157 OF 2007 AND CRIMINAL APPEAL NO. 224 OF 2007 JUDGMENT

<NAME>, J.

1) These statutory appeals are filed under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and under Section 379 of the Criminal Procedure Code against the final judgment and order dated 18/20.12.2006 passed by <ORG> in Criminal Appeal No. 193 of 2006 whereby <ORG> reversed the order of acquittal dated 21.02.2006 passed by the Additional Sessions Judge, Delhi, in Sessions Case No. 105 of 2001 and convicted <NAME> (appellant in Crl. A. No. 179 of 2007) under Section 302 , 201 / 120B  and Section 27 of the Arms Act and sentenced him to undergo imprisonment for life for the offence under Section 302  together with a fine of Rs.50,000/- to be paid to the family of the victim and in default of payment of fine, to undergo further imprisonment for three years and also sentenced him to undergo imprisonment for four years for the offence under Section 27 of the Arms Act with a fine of Rs.2000/- and in default to further undergo imprisonment for three months. He was further sentenced to undergo imprisonment for four years for the offence under Section 201 / 120B  together with a fine of Rs. 2,000 and, in default, to further undergo imprisonment for three months. <ORG> also sentenced <NAME> @ <NAME> (appellant in Crl.A. No. 157/2007) and <NAME> (appellant in Crl. A.No.224/2007) to undergo rigorous imprisonment for four years and a fine of Rs.2000/- each and, in default of payment of fine, to further undergo imprisonment for three months under Section 201 / 120B .

2) The case of the prosecution:

(a) 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, namely, <NAME> (since deceased) and one <NAME> (PW-2). At about 2.00 a.m., <NAME> @ <NAME> (appellant in Crl. A. No. 179 of 2007) along with his friends came there and asked for two drinks. The waiter did not serve him liquor as the party was over. <NAME> and <NAME> (PW-6), who 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 <NAME> which hit near her left eye as a result of which she fell down. <NAME> (PW-20), who was present there, stopped the appellant and questioned him as to why he had shot <NAME> and demanded the weapon from him but he did not hand over the pistol and fled away. <NAME> was rushed to <ORG> from where she was shifted to <ORG>. On 30.04.1999, in the early morning hours, <NAME> was declared brought dead at <ORG>.

(b) On the night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex. <ORG>13/A) was recorded at Police Station Mehrauli which disclosed a shooting incident at H- 5/6 Qutub Colonnade. A copy of the said DD entry was handed over to SI <NAME> (<ORG>78) who along with Ct. <NAME> left for the spot. Near about the same time, copy of the said DD entry was also given to SI <NAME> (<ORG>100) who along with Ct. <NAME> also left for the spot. On reaching the spot, <ORG>78 found that the injured had been removed to Ashlok Hospital and the floor of the Restaurant was found to be wet. SI <NAME> (<ORG>100) then left SI <NAME> (<ORG>78) at the spot to guard the same and proceeded to Ashlok Hospital along with Ct. <NAME>. The SHO Police Station Mehrauli, Inspector <NAME> (<ORG>101) along with his team also left <ORG> vide DD Entry No. 43 A and reached the spot and deputed one Home Guard <NAME> (PW 30) at the entrance of `Qutub Colonnade' to guard the vehicles. On reaching Ashlok Hospital, <ORG>100 met <NAME> (<ORG>20), who is the owner of the Restaurant, and enquired about the incident but she asked him to talk to <NAME> (<ORG>2) saying that he was inside and he knew everything. <ORG>100 then recorded the statement of <ORG>2 and made an endorsement on the same for the registration of the case under Section 307  and handed over it to Ct. <NAME> to be carried to the police station, Mehrauli. At about 4.00 a.m., FIR No. 287/99 was registered at the police station, Mehrauli. In the meantime, <NAME> had been shifted to <ORG>. When SI <NAME> came back to the spot along with <ORG>2, PW 30 informed them about the lifting of one black <ORG> Safari from the spot. On inspection of the site, two empty cartridges were seized and, in the meantime, a supplementary statement of <ORG>2 was also recorded by <ORG>100. At about 5.45 a.m., <ORG> 100 received an information by Ct. <NAME> intimating him about the death of <NAME> at <ORG>. Charge under Section 302 /201/120 B IPC and under Section 27 of the Arms Act has been framed against the accused <NAME> @ <NAME>, charge under Section 201 / 120B  has been framed against accused <NAME>, <NAME> @ <NAME> and <NAME>, charge under Section 212  has been framed against <NAME>, <NAME>, <NAME> @ <NAME> and <NAME> and charge under Section 201 / 212  against <NAME>. At about 7.00 a.m. <ORG> recorded the statement of the Manager (<ORG>47), Waiter (<ORG>46) and <NAME> (<ORG>20)- the owner of the Restaurant.

(c) The post mortem was conducted at about 11.30 a.m. at the All India Institute of Medical Sciences on the same day i.e. 30.04.1999. In the meantime, at about 11.00 a.m., SI <NAME> (PW-85) had been sent to Chandigarh to secure the black Tata Safari and to arrest the appellant. PW-100 recorded the statements of the witnesses. On 30.04.1999 at about 4.15 p.m., an FIR was registered against <NAME> (PW-6), <NAME> (PW-20) and <NAME> (PW-24) under Sections 61/68/1/14 of the Punjab Excise Act. At about 8.30 p.m., PW-100 handed over the investigation to SHO <NAME> (PW-101). On the night intervening 30.04.1999/01.05.1999, at about 2 a.m., the police raided the farm house of the appellant and on search being conducted seized a photograph of the appellant. On 02.05.1999, a list of invited guests was prepared by PW-

24. On the same day, around 10.00 p.m., <ORG>, got an information that a black Tata Safari has been found by <ORG> (Sector 24, Noida Police Station) and on the next day <ORG> went to Noida Police Station and seized the said black Tata Safari. On 05.05.1999 at about 2.30 a.m., <NAME> @ <NAME> and <NAME> were arrested and from their alleged disclosure statements, the involvement of <NAME> @ <NAME> was confirmed. On the same day, Inspector <NAME> (PW 87) who was in Chandigarh with his team intimated the lawyer of the accused- appellant that <NAME> is required in the case. On receipt of the information, on 06.05.1999, the appellant surrendered before PW-87 and was later arrested at about 2.20 p.m. and brought to Delhi. On 07.05.1999, the police produced the appellant before the Metropolitan Magistrate and sought police remand for effecting recovery of the alleged weapon of offence. An application for conducting Test Identification Parade (TIP) of the appellant was also moved. Thereafter, the appellant was remanded to five days police custody till 12.05.1999 and thereafter on 12.05.1999 extended till 17.05.1999 on the application of the I.O., but on 15.05.1999, the appellant's remand was preponed from 17.05.1999 to 15.05.1999. On 16.05.99, the appellant was sent to judicial custody. On 30.05.1999, the accused-<NAME> was also arrested. After the completion of investigation, the other accused persons were also arrested.

(d) On 03.08.1999, charge sheet was filed against ten accused persons. On 23.11.2000, the Additional Sessions Judge framed charges against the appellant/<NAME> under Sections 302 , 201 read with 120 B IPC and Section 27 of the Arms Act, accused <NAME> was charged under Section 120 read with Section 201 , accused <NAME> was charged under Section 120 read with 201 IPC as also Section 201 read with 34 IPC , accused <NAME>, <NAME>, <NAME> and <NAME> under Section 212  and accused <NAME>, <NAME> and <NAME> were discharged of all the offences. In 2000/2001, Revision Petition No. 596 of 2000 was preferred by the prosecution before <ORG> praying for the framing of charge against the accused persons and setting aside the discharge of <NAME>, <NAME> and <NAME>. Revision Petitions were also preferred by the accused persons against the framing of the charges against them. <ORG> disposed of all the revision petitions filed by the accused persons by a common order dated 13.03.2001. On 12.04.2001, charges as per the orders of <ORG> were framed and some of the charges as framed earlier were maintained. Charges under Section 120B / 201  were framed against accused <NAME>, <NAME> <NAME> and <NAME> and charges under Sections 201 and 212  were framed against accused <NAME>. Against the rest of the accused, the charges as framed on 23.11.2000 by <ORG> were maintained. Trial began in May, 2001 against nine accused. In all, 101 witnesses were examined by the prosecution and two court witnesses were also examined.

(e) On 12.12.2001, the case registered against <NAME>, <NAME> and <NAME> under the Punjab Excise Act was disposed of with a direction to pay a fine of Rs.200/- each. On 28.01.2002, the appellant was released on interim bail for a period of six weeks by the order of <ORG> dated 25.01.2002 with a direction to surrender after the expiry of the same. In compliance with the conditions of interim bail, the appellant surrendered on 11.3.2002 but again sought for and granted interim bail for a period of ten weeks starting from 20.03.2002. During the period from March 2002 to February 2006, the appellant was enlarged on bail on different occasions by various orders of <ORG>. On one occasion, against the dismissal of the bail application by <ORG> on 11.11.2003, the appellant filed a special leave petition before this Court which was dismissed by this Court on 02.12.2003. On 21.02.2006, after trial, the Additional Sessions Judge acquitted all the nine accused including the appellant- <NAME>.

(f) Challenging the acquittal, the prosecution filed an appeal before <ORG> being Crl. Appeal No. 193 of 2006. On 20.12.2006, <ORG> vide the impugned order, convicted and sentenced the appellants, as mentioned in paragraphs above. Challenging the said order of <ORG>, all the three appellants filed above mentioned separate appeals before this Court. All the appeals were heard together and are being disposed of by this common judgment.

3) Heard Mr. <NAME>, learned senior counsel for <NAME> @ <NAME>, appellant in Crl. A. No. 179 of 2007, Mr. <NAME>, learned counsel for <NAME> @ Tony Gill, appellant in Crl.A. No. 157/2007, Mr. <NAME>, learned counsel for <NAME>, appellant in Crl. A.No.224/2007, Mr. <NAME>, learned Solicitor General of India for Respondent-State in all the three appeals and Mrs. <NAME>, intervenor, who appeared in person and pleaded for acquittal of the appellant-<NAME>. Contentions of the appellants/accused:

4) Mr. <NAME>, after taking us through all the oral and documentary evidence relied on by the prosecution as well as the defence, the order of the Trial Judge acquitting all the appellants from the charges leveled against them and the impugned order of <ORG> reversing the order of acquittal raised the following contentions:-

a) The appellant (<NAME> @ <NAME>) has been denied his fundamental right to free and fair trial which is guaranteed under Article 21 of the Constitution of India.

b) On the very first day of investigation i.e. on 30.04.1999, an FIR was filed against <NAME> PW-6, <NAME> PW-20 and <NAME> under the Punjab Excise Act in order to control these witnesses and to pressurise them to support the prosecution case. After their deposition, the Excise case was pre-poned and disposed of by imposing a fine of paltry amount.

c) <NAME> PW-6, <NAME> PW-20 and <NAME> PW-24 were frequently shown the photograph of the appellant and he was paraded before them.

d) The finding of <ORG> that <NAME> @ <NAME> took out his pistol and first fired at the ceiling and then at <NAME> is based on no evidence.

e) Three Ballistic Experts have concurred that empty cartridges have been fired from two different weapons. Their Report support the statement-in-chief of <NAME> There is no evidence on record that both the shots were fired from one weapon.

f) <ORG> has wrongly placed reliance upon the testimony of <NAME>, even though, he was not present in the party and he was planted by the prosecution. The evidence of three family members <NAME>, <NAME> PW-20 and <NAME> PW-24 is inadmissible in law.

g) The prosecution never claimed <NAME> as an eye-witness, however, <ORG> erroneously held her as eye-witness to the occurrence.

h) <ORG> failed to consider the evidence of <NAME> (Waiter) PW-46 and <NAME> (Manager) PW-47.

i) <ORG> committed an error in relying upon the testimony of <NAME> PW-24 to corroborate the evidence of <NAME>.

j) The First Information Report recorded on the statement of <NAME> is not an FIR but a signed statement. <ORG> wrongly discarded his (PW-2) ocular version. However, <ORG> assigned good reasons for accepting his evidence.

k) <ORG> observation on Ballistic Experts from <ORG> is erroneous.

l) <ORG> committed an error in disbelieving <NAME>

m) There is no acceptable evidence/material to connect <ORG> Safari to the alleged occurrence.

n) <NAME> a planted witness, and there is no need for him to accompany PW-1 to the spot when he was assigned other official work.

o) A rough site plan which was prepared in the early hours of 30.04.1999 (Ex. PW 100/2) clearly shows the absence of Beena Ramani PW-20 at the alleged place of occurrence, if she was an eye-witness, this would have been done.

p) The Public Prosecutor failed to adhere the basic principles in conducting criminal case.

q) <ORG> committed a grave error by reversing the well considered order of acquittal by <ORG> and on conjunctures <ORG> interfered with the acquittal and imposed sentence which is not permissible under law.

5) The other two learned counsel submitted that the prosecution failed to establish the charge in respect of <NAME> and <NAME> under Section 201 read with 120B of the IPC .

6) The intervenor supported the case of the appellant- <NAME> and prayed for his acquittal.

Submissions on behalf of the State:

7) On the other hand, Mr. <NAME>, learned Solicitor General, after taking us through the entire materials, submitted that the Trial Judge has committed an error in acquitting all the accused and <ORG> being <ORG> is fully justified in re-analysing the evidence and convicting all the three accused- appellants and awarding appropriate sentence. After pointing out oral, documentary evidence and other legal principles, he submitted that the conviction and sentence awarded by <ORG> are acceptable and no interference is called for by this Court, and prayed for dismissal of all the three appeals.

8) We have carefully considered all the materials placed and the rival contentions.

9) Points for consideration in these appeals are:-

a) Whether the prosecution has established its case beyond reasonable doubt against all the three accused?

b) Whether <ORG> is justified in acquitting all the accused in respect of charges leveled against them?

c) Whether the impugned order of <ORG> imposing punishment when <ORG> acquitted all the accused in respect of the charges leveled against them is sustainable?

10) It is not in dispute that the following charges were framed against the appellants:-

S.No. Name of Accused Accused Charges Framed

1. Sidhartha Vashist @ 1 302 IPC , 27 Arms Act , 201 <NAME> r/w 120B IPC

2. <NAME> 2 201 r/w 120B IPC

3. <NAME> 3 201 r/w 120B IPC Powers and Duties of the Appellate Court while dealing with the order of acquittal:

11) Before analyzing the prosecution case, the defence plea and the arguments of the respective counsel, let us find out the scope of <ORG> in reversing the order of acquittal by <ORG>. Mr. <NAME>, learned senior counsel for the appellant- <NAME>, by drawing our attention to the principles laid down by this Court in <CITATION> ,  submitted that in an appeal against acquittal, it is incumbent on <ORG> to give adequate reasons for reversal. By citing <CITATION> , he further contended that <ORG> could not have reversed the judgment of <ORG> inasmuch as the view taken by <ORG> was plausible view based on the evidence on record, hence the finding of <ORG> could not have been overturned.

12) Mr. <NAME>, learned Solicitor General, by relying on the decision of this Court in <CITATION> .,  submitted that where <ORG> conclusion was based on evaluation of evidence which was not erroneous or perverse and was based on an independent analysis of evidence which fully establishes the case of the prosecution as against <ORG> conclusion, there is no reason much less the compelling reason to disagree with the finding of guilt by <ORG>. He also pressed into service another decision of this Court in <CITATION> , .

13) The following principles have to be kept in mind by <ORG> while dealing with appeals, particularly, against the order of acquittal:

(i) There is no limitation on the part of <ORG> to review the evidence upon which the order of acquittal is found.

(ii) <ORG> in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) <ORG> can also review <ORG> conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the <ORG>, it is the duty of <ORG> 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.

(vi) While sitting in judgment over an acquittal <ORG> is first required to seek an answer to the question whether finding of <ORG> are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If <ORG> answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if <ORG> 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 <ORG> has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., <ORG> is competent to reverse the decision of <ORG> depending on the materials placed.

In the light of the above principles, let us examine the impugned judgment of <ORG> with reference to the materials placed by the prosecution and the defence.

14) At the outset, Mr. <NAME>, learned senior counsel highlighted the role of public prosecutor in conducting prosecution for which he relied on the procedures being followed in United Kingdom and also cited certain passages from the books of foreign authors. In addition to the same, he highlighted how the appellant- <NAME> was prejudiced by the wild allegations that were carried by Media, both print and electronic. Since we intend to concentrate on the merits of the case, we discuss and give our reasoning at the appropriate place or at the end of our order.

15) Presence of accused <NAME> & others at the scene of offence.

There is no dispute that the incidence occurred in 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 the accused <NAME> @ <NAME> and others, prosecution has examined <NAME> PW-1, <NAME> PW-2, <NAME> PW-6, <NAME> PW-20, <NAME> PW-24, <NAME> PW-23 and <NAME> 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.

a) <NAME> PW-1 He is a resident of K-5/B, Ground Floor, Lajpat Nagar, New Delhi. According to him, in the year 1999, he had attended the place known as "Qutub Colonnade" as Thursday <ORG> four times on each Thursday and the last occasion when he attended this Thursday <ORG> was on 29.04.1999. There used to be a gathering of friends at this <ORG> and all varieties of liquor used to be served in this <ORG> besides snacks etc. He explained that coupons used to be issued for purchase of any kind of liquor. Such coupons were used to be purchased in advance from the cash counter. On 29.04.1999, he attended the Thursday <ORG> alone at about 11 o'clock in the night. In chief examination, in categorical terms, he deposed:

"I had purchased four coupons of Rs. 100/- each on that day. <NAME> (since deceased) and <NAME> (complainant) were serving liquor on that night at the bar counter. I had known <NAME> for about five or six years whereas <NAME> was introduced to me by <NAME> about a week before 29.04.1999 i.e. on the previous Thursday Party".

Apart from the above assertion, he also informed the <ORG> that <NAME> (since deceased) was working with <ORG> and was also a model by profession. He described the location of "Tamarind <ORG>" and "Tamarind Cafi". The bar counter was located in "Tamarind <ORG>" open area between the two doors of the "Tamarind Cafi", but since it was summer nobody was using the bar counter giving preference to the bar counter located outside. He also stated that <NAME> was wearing blue denim shorts and white half sleeved shirt on that night. On the same night, at about 1 o'clock (midnight), he went to the bar counter to have his third drink. He informed the <ORG> that on the suggestion of <NAME> that the liquor was getting over he handed over all the remaining coupons and purchased two pegs of whisky. While holding both the glasses of whisky, he came in the company of his friends.

The following statement of PW-1 proves the presence of accused <NAME> and his friends-

"I was moving around in the party with two glasses of whisky, when I came across a person having fair complexion who was giving smile to me. I also reciprocated. Then he came to me. We both introduced each other. He gave me his name as <NAME>. He said as to how I was holding two glasses of whisky in my hands whereas he was unable to get even one. <NAME> came into my contact after about 10-15 minutes of my purchasing two pegs of whisky.

He requested me to arrange liquor for him on which I told him that liquor was over and the bar was closed and therefore, I would not be able to arrange liquor for him. We were already introduced to each other and were about to exchange visiting cards, when one tall sikh gentleman came from behind of <NAME> and told him something and took him away towards Tamarind Cafi. Before leaving, <NAME> told me that he would come back and meet me again".

PW-1 correctly identified the photographs of both the accused persons one <NAME> and the other <NAME>. He also informed that the accused <NAME> came along with <NAME> and 2/3 of his friends. In respect of the question whether it would be possible for him to identify those 2/3 persons who were accompanying accused <NAME>, PW-1 has pointed out <NAME>, accused-<NAME> and <NAME>. We shall separately discuss about the Test Identification Parade and the validity of desk identification during time in the latter paragraphs.

About the incident, he narrated that "After about 15/20 minutes i.e. about 1:45 a.m., I heard noise from <NAME> and I heard somebody saying <NAME> was shot. At that time I was present in Tamarind Court and I was talking to my friend <NAME>. After hearing the shouts about <NAME> having been shot, I rushed towards <NAME>. I could not go inside where the incident had taken place but I peeped and saw <NAME> lying on the floor. At that time, there were about 70/80 persons gathered all around i.e. near the gate of <NAME> i.e. the gate of <NAME>."

He further informed the Court -

"......discussion was going on as to who had done this and it was also being discussed that the culprit was wearing blue denim jeans and white shirt and was fair and was little short in height then I assessed that he was the same person who had come to me to arrange drinks for him. I had told the police in Apollo Hospital that it was <NAME> who was with the similar description as was discussed amongst friends on which police had told me that they would call me." A close scrutiny of PW-1's evidence clearly shows that <NAME> was friendly with him having known him for 5- 6 years. He also went to the house of parents of <NAME> twice i.e. on 30th April and 1st May 1999 to pay condolence. Further, in categorical terms, he asserted and identified the presence of <NAME> at the scene of offence. Since he had contact with a person having fair complexion with smiling face/<NAME>, in the Court he correctly identified both <NAME> and the tall Sikh gentleman as <NAME>. He also identified other persons who accompanied <NAME> and <NAME>. It is also clear from his evidence that at around 1.45 a.m., he heard a noise emerging from <NAME> to the effect that <NAME> had been shot. It is also clear that on hearing that <NAME> had been shot, he ran towards <NAME> though according to him he could not go inside yet peeped and saw <NAME> lying on the floor. Since <ORG> has accepted his evidence which was not acceptable by <ORG>, we analyzed his entire statement with great care. Mr. <NAME>, learned senior counsel has pointed out that since PW-1's name does not figure in the list of invitees prepared by <NAME> <NAME> not mention the name of <NAME> <ORG> and of the fact that the statement of PW-1 was recorded on 14.05.1999 submitted that, first of all, he is an interested witness and his testimony is not acceptable. 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 presence of accused Nos. 1-4 at the place of occurrence. He asserted the presence of <NAME>, <NAME> and the claim of whisky by a fair complexion man who exchanged niceties with him and introduced him as <NAME>. We do not find any valid reason to hold that he is a planted 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 <NAME> lying on the floor of <NAME>. To this extent, the evidence of PW- 1 is acceptable and <ORG> has rightly believed and relied on his version.

b) <NAME> In the year 1999, he was studying in <ORG> at New Delhi doing his MBA Course. At that time, he was residing at 15/16 H. Hauz Khas, New Delhi. He informed the <ORG> that he was acquainted to <NAME> through which he started knowing about <NAME> who is the mother of <NAME>. He had visited <NAME> on the night of 29th April, 1999. It was Thursday Night. He was attending the Party at that night. Alcohol and food were being served there on paying for coupons. In categorical terms he informed the <ORG> that--

"I was attending the party there on that night. Alcohol and food was being sold there on coupons. I had met <NAME> on that night in the party. I had acquaintance with her from before. The place where the party was going on was known as Qutub Colonnade Tamarind Court. There was miniature bar counter outside in the open space where liquor was being served. Besides <NAME> and <NAME> there were other few persons who were helping in serving liquor. On that night, I did go inside the Tamarind Cafi. It might be 2 o'clock at that time, I mean 2 a.m. There were about 6-7 persons inside the cafi at that time. "

"I went inside the cafi primarily with a view to eat something as I was feeling hungry and also nothing was being served outside. I found that <NAME> was inside. At that time, no other lady was there. I went behind the counter to get something to eat. I managed to get pastry lying in the freeze and when I was taking it, a gentleman with white tea-shirt came there. He asked the waiter to serve him two drinks. The waiter did not pay attention to that gentleman and became busy in cleaning up. <NAME> was also there on the other side of the counter and she told the gentleman that the party was over and there was no alcohol to be served. At that time, that gentleman took out a pistol from the dub of the pant and fired a shot in the air. There was another gentleman on the other side of the counter, who fired a shot at <NAME> Lal and she fell down. That gentleman was also wearing light colored clothes."

Since the present statement about "another gentleman" who fired a shot at <NAME> and she fell down was not the one earlier made to the Police, after getting permission from the <ORG>, the public prosecutor cross-examined him. He stated--

"It is correct that <NAME> and other lifted <NAME> from the spot and carried her to the Hospital Ashlok. I went there later. In the Ashlok Hospital, police came there and contacted me and recorded my statement." ".....I reached the Hospital at about 3:30 a.m. and my statement was taken at about 3:45 a.m. or 4 a.m."

He also admitted that he was in Delhi for about a year or so and able to understand spoken Hindi. He is aware of <NAME> as the proprietor of <ORG>. The analysis of the evidence of PW-2 shows that though he turned hostile but his evidence shows that he had visited <NAME> on the night of 29.04.1999. He also mentioned the presence of <NAME>. His evidence further shows that immediately after the shot <NAME> and others were carrying <NAME> to <ORG>. In other words, his evidence proves the presence of accused-<NAME> at the scene of offence. To this extent, the prosecution relied upon his evidence and this was rightly accepted by <ORG>. Though, Mr. <NAME> submitted that <ORG> ought to have accepted his entire evidence in toto, considering his earlier statement to the police and his evidence before the <ORG>, we are satisfied that <ORG> is justified in holding that even if his testimony is discarded, the case of the prosecution hardly gets affected. As observed earlier his evidence amply proves the presence of accused at the scene of occurrence at the time and date as pleaded by the prosecution.

c) <NAME> She is the daughter of <NAME>. She is a fashion designer by profession. Her mother <NAME> owns a property near Qutub Minar known as Qutub Colonnade. She explained to the <ORG> that in the year 1999 they used to have parties in Qutub Colonnade and liquor used to be consumed in these parties. On 29.04.1999, there was a party at Qutub Colonnade. It was Thursday. It was a farewell party for her stepfather namely, <NAME> who was going abroad for five months. She was at the Qutub Colonnade on that evening. <NAME> was also there. <NAME> and <NAME> PW-2, were also there. According to her, the party on that night was over by midnight. Approximately at about 1.45 a.m., she went with her friend <NAME> to the restaurant to look for something to eat. At that time, she had a drink in her hand. She found that <NAME>, <NAME>, her electrician and couple of waiters were there in the restaurant. She further deposed--

"We were standing there when couple of guys went in. They were about numbering four, may be five. I am not very sure about it. One of them asked me could I have two whiskys. He was wearing jean and white t-shirt. He was in his mid twenties. He was having fair complexion. His built was on the plump side. I do not know if he had asked whisky from anybody else prior to asking from me. When he asked two whiskys from me, I showed my inability saying sorry, Bar was closed. Then he kept asking me and <NAME> for drinks, but we kept on saying that the bar was closed and whisky could not be served."

"Then he said that he had cash to pay for drink. I said it did not matter. I could not give sip even for thousand rupees it being not available. Then he said <NAME> could I have sip of you for thousand rupees. Then at that point of time, I just left the room because I was irritated about the whole incident. <NAME> and myself walked out together. When I walked out, I crossed my mother in courtyards as I was walking out. Again said, I crossed my mother, she was walking towards the restaurant. I went to the passage way where the shops were located. It was on the other side of the courtyard and I was standing next to speaker (amplifier). After about a minute and a half/two minutes, <NAME> came running to me and <NAME> and he was screaming that <NAME> had been shot. I just passed out after hearing about it and fainted. I can identify that person, who had asked drink from me and who was wearing jean and t-shirt. Witness has pointed out towards accused <NAME> @ <NAME> and said that he just look like him. I had seen this accused in the police station on 8th May. I had gone there as I was arrested in a case under Excise Act ."

"Question:- Are you certain that the person to whom you had just identified was the same person who had asked drinks from you and was wearing jean and T- shirt?

Answer:- I am sure he is the same person."

About PW-6's testimony, Mr. <NAME> criticized the question put by the public prosecutor which according to him is not permissible. It is relevant to point out that before considering her answer that "I am sure he is the same person", we have to see her statement in the previous paragraph. She identified <NAME> who had asked drinks from her who was wearing <NAME> and T-

shirt. It is also relevant to note that she pointed out towards the accused <NAME> and said that "he just looked like him." As rightly pointed by learned Solicitor General, the above mentioned question by the public prosecutor is in addition to the earlier ones relating to identity of the person who was wearing jean and T-shirt and who asked for drinks. It is relevant to note that PW-6 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. We have already noted that she is a fashion 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. In such circumstances, we are unable to appreciate the objection of Mr. <NAME>. On the other hand, it is clear from the evidence of PW-6 that the accused <NAME> was very well present at the scene of offence and she correctly identified him. Further, as rightly observed by the High court, though she was not an eye-witness, she is certainly a witness identifying <NAME> along with 4 or 5 persons present at <ORG> who asked her for whisky and later misbehaved with her. We agree with the observation and the ultimate conclusion about PW-6 reached by <ORG>.

d) <NAME> She is the wife of <NAME>. She is a Fashion Designer. She purchased the property near Qutub Minar at H-5/6 Mehrauli Road, New Delhi in the year 1995. This property is being used as a Shopping Arcade and a Restaurant. The Shopping Arcade is known as "Qutub Colonnade". The name of the Restaurant was "Tamarind Court Cafi". She had a proper license for eating house in the aforesaid complex. The license for the restaurant was in the name and style "Once Upon A Time". She admitted that the license of eating house was not valid beyond one year. She has two children namely <NAME> and <NAME>. In 1999, her daughter <NAME> was assisting her in running the restaurant. On Thursdays, there used to be special private parties where guests could come by invitation. Alcohol was never served in the Restaurant but were served only in the courtyard on Thursday Parties. She further deposed--

"I knew <NAME>, <NAME>. We had a proper staff to run the Restaurant and occasionally any of our friends could reach out and help the Thursdays Parties. <NAME> and <NAME> were friends of my daughter <NAME> and were helping her on that night"

"The date was 29th of April, 1999. On that night, apart from the normal Thursday Party, I had also organized a special farewell party for my husband who was leaving in two hours time for a World Trip. The party was over by 1 or 1:30 a.m. This Thursday Party and special party was organized jointly and was being held in the courtyard and on the roof top. After the party was over, I was anxious to clean up the place and relieve the waiters etc. so that they may take up duty next morning properly. There were few guests left in the courtyard and I also spotted some guests in the Restaurant where nobody was supposed to be. I walked towards the Restaurant. When I was walking, towards restaurant I ran into <ORG>. I mounted the steps of the restaurant. I saw a few people standing next to the counter and I heard a shot. A moment later, I heard another shot. <NAME> was standing with people at the far end and I saw her falling down. There was a door to my right. It could be swung open and <NAME> came out with another person who was either ahead of him or behind him. <NAME> said that <NAME> had been shot. I told <NAME> to call the <ORG> or doctor or ambulance and I stopped the man accompanying them. There was commotion. All the people who were with <NAME> earlier, started coming out. The companion of <NAME> was wearing white T-shirt. He was chubby and fair and I asked him as to who he was. "Why are you here and why he shot <NAME>. I also asked him to give me his gun. I thought he might be having a gun." He said that it was not him. I asked him again and he kept quiet and shaking his hand that it was not him. As all others were leaving, therefore, the companion of <NAME> also shoved me aside and went out. I ran after him. Again said behind him. All the way to the front gate of the main building. He was a few steps ahead of me and I could not catch him. In the meantime, I was shouting instructions to the guests to call <ORG> or to take <NAME>. I reached the gate my husband was standing there and I told him that this was the man who had shot <NAME> and to see in which car he gets into."

"That person who was told to be seen by my husband was with some friends at the time of occurrence inside the cafi. I think that I can identify the person whom I had tried to stop and talked to. After taking sometime and examining the accused over and over again, the witness has pointed towards accused <NAME> @ <NAME> and when asked to touch him, she touched him."

She also identified the other persons who were with <NAME>, though she has not mentioned the name of persons but on the instructions of the <ORG> she has touched those persons named by the <ORG>. She further informed--

"About a week later, at the Police Station, the name of which I do not remember, I saw that person. I saw <NAME>".

If we analyze her evidence along with the sketch/map of the occurrence, when she mounted steps of the restaurant, she heard a shot, a moment later, she heard another shot. It is also relevant to note that she mentioned that <NAME> was standing with the people at the far end and she saw her falling down. She also informed that <NAME> said that <NAME> had been shot. It is relevant to point out that she was shouting to the guests to call the Doctor or to take <NAME> for treatment, she reached the gate where her husband was standing and she told him "that this was the man who had shot <NAME> and to see in which car he gets into". If we read her entire evidence she refers only <NAME>. She also correctly identified the presence of other accused persons, namely, <NAME>, <NAME> and <NAME>. Her evidence remained unchallenged, though <ORG> discarded her evidence as she was not an eye-witness to the occurrence but accepted that she is a witness to the presence of <NAME>, <NAME>, <NAME> and <NAME> at the Qutub Colonnade. We have already quoted her own statement namely "I saw a few people standing next to the counter and I heard a shot, a moment later I heard another shot. <NAME> was standing with people at the far end and I saw her falling down." It is also relevant that on noticing <NAME> she asked him "Why are you here and why he shot <NAME>?". Her statement clearly proves the prosecution case that she had herself seen <NAME> shooting <NAME>. As rightly observed by <ORG>, if the evidence of <NAME> is analyzed in depth, it is clear that she not only asserted the presence of <NAME> at the scene of occurrence and heard two shots one by one but also asked a pertinent question to <NAME> that why he (<NAME>) shot <NAME>. Whether she has to be treated as an eye-witness to the occurrence or not is to be discussed at later point of time by analyzing her entire evidence. However, for the limited purpose of proving the presence of accused at the scene of offence, her evidence fully supports the case of the prosecution.

e) <NAME> He is a Canadian citizen and according to him, he has been residing in India since February, 1992. <NAME> his wife. Her business premises were at H-5/6 Mehrauli Road, New Delhi. This complex was popularly known as "Qutub Colonnade". It had a number of shops and a restaurant. The licence of eating place was in the name of <NAME>. He was also involved in the said business for several years before the date of occurrence. Several parties were arranged and last Thursday Party was held on April 29, 1999. On that day, he was leaving for World Trip for a few months, partly that was the occasion for that party. At the instance of the police, he prepared a list of guests who were invited in that party and gave the list to the police which was signed by him on 22.05.1999. It is Ex. PW24/A. According to him, time of occurrence might be around 2 AM. At that time he was standing in the courtyard near a large tree which is in the middle of the courtyard. This must be about 20 ft. away from the door of the restaurant. He further deposed:

"I was facing opposite side of the entrance door of the restaurant and then I heard two pop shots like balloon. I turned towards the restaurant door from where I had heard the sound and within a few seconds <NAME> came running and said to me someone shot <NAME>. I immediately went to the restaurant. When I reached the door of the restaurant I saw some people to my right to my left and ahead of me. Ms. <NAME> was moving at a place which may be described as ahead of me towards the left side. <NAME> was addressing a young man who was moving, someone whom I had not seen before. This person was moving around and Ms. <NAME> Ramani was following him and saying that you are the one give me the gun. I could see everyone present there watching that person who was being addressed to by Ms. <NAME>. The young man said that why everyone was looking at him that he did not do anything. Then I saw <NAME> lying on the floor with her head towards my feet, almost near my feet. <NAME> was looking quite in pain and not moving and there was no sign of blood. Then I saw another man standing at the door. At that time, about 2/3 people were ahead of me and are by my side in the restaurant. I was focusing on the danger point. The young man whom I saw at the door was a beard person i.e. <NAME>. He was the only one present there who was keeping/maintaining calm. Thereafter, I went to the gate of Qutub Colony leaving others in the restaurant, in search of Police man. I ran out and went into the street there was no one there. While I was in the street a number of people came up to the gate of Colonnade walking. There was a bunch of them that is a first person behind him a second person and then behind them many persons they were walking very rapidly. The first person was the one whom I had seen in the restaurant and whom <NAME> had accosted and asking for the gun. Right behind him or directly behind him was <NAME>. I focused only on first person or <NAME> I did not notice the others."

"I believe I can identify that person who had come out first and was being followed by <NAME>. The witness touched <NAME> as the person who was being followed by <NAME>."

His evidence makes it clear that at the relevant time on hearing the shot, <NAME> running shouting that someone shot <NAME>. He reached the door of the restaurant. It is also clear that <NAME> was moving at a place ahead of him towards the left side. This witness subsequently stated that <NAME> was addressing a young man who was moving with someone. He also identified the person who had come out first followed by <NAME> and he touched <NAME> as the person who was being followed by <NAME>. As rightly pointed out by learned Solicitor General, his evidence also proves the presence of the accused-<NAME> at the scene of offence.

f) Rouble Dungley PW-23:

In his evidence, he admitted that he had told the police that he saw <NAME> going after a boy. In his deposition, he mentioned that:

"It is correct that I had told the police that I saw <NAME> going after a boy. But I do not remember whether I had told the police that the said boy was a fat boy. It is correct that I had seen <NAME> going there Vol. I had seen her from a distance. It is correct that I had told the police that <NAME> was saying "Stop that Man"... "I heard that <NAME> had been shot."

g) <NAME>

He deposed that:

"<NAME> was actually running in the courtyard area shouting catch that man, catch that man, stop him or something like that pointing towards the exit and running behind someone. I saw the person being pointed out by <NAME> but I did not know him. Again said I did not see that person, being pointed out by <NAME> from face."

The above statement makes it clear that after the shooting incident <NAME> was running behind a man shouting "catch that man"

From the evidence of above mentioned witnesses, namely, PWs 1, 2, 6, 20, 23, 24 and 70 which are all admissible in evidence clearly show the presence of accused <NAME> @ <NAME> at the scene of offence. This evidence of the ocular witnesses is duly corroborated by Ex PW 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, B and C which were received. The evidence of PWs 11, 12 and 13 clearly proves that immediate and prompt action was taken.

h) <NAME> PW 83 --- In-charge of PCR Van:

He reached the scene of occurrence within two minutes at around 02.17 a.m. and reported back at 02.35 a.m. It is relevant to refer the message received that is Ex PW 12/D-1 which states:

"From E-43 (PCR Van), A party hosted by <NAME> and <NAME> was going on in Qutub Colonnade Hotel situated at the road which leads towards Mehrauli where a person had demanded whiskey from <NAME> but she (<NAME>) said that the restaurant had already been closed. At this the aforesaid person had fired shot at <NAME>, which had hit her on her chest. <NAME> has been admitted in Ashlok Hospital, Safdarjung Enclave and the person who had fired shot has fled from there."

"One person has fled after firing (at someone) 35 years, stout body 5' 4" R/F fat, T-Shirt of white colour. All the persons will search him".

Ex. PW 12/D-1, a contemporaneous document, clearly corroborates the testimony of ocular witnesses which we have already mentioned in the earlier paragraphs. From the evidence adduced, it is clear that the appellants- accused Nos. 1-3 were present at the scene of occurrence. Admittedly without setting up a plea of alibi to show their presence elsewhere, they have flatly denied their presence. It is the stand of Mr. <NAME>, learned senior counsel for the accused that the police deliberately framed <NAME> as an accused and made out a false story against him concealing the actual offender who is a tall Sikh gentleman and on this made up theory witnesses from the same family who were vulnerable were made to depose in favour of the prosecution. In an answer to the said question, it was pointed out that apart from the testimony of HC <NAME> PW-82, <ORG> in-charge, read with Ex. PW-12/D-1 clearly prove the case of the prosecution. It is relevant that the said witness reached around 02.17 a.m., on a message from <ORG> to PS <NAME> takes around 10 minutes as from local <ORG> it goes to headquarter from where it is transmitted to 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 HC <NAME> PW-83 had sent the version available at the spot. The prosecution placed specific reliance on the same. In the absence of rebuttal evidence, there is no reason to reject the evidence of PW-83 as well as Ex. PW-12/D-1. In those circumstances, the entire premise of the defence argument that it was not a person in white T-shirt, stocky and fair, who shot at <NAME> 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 <NAME> and make escape good of the tall Sikh gentleman is wholly erroneous and without any basis. Evaluation of evidence throwing light on the actual incident:

16) It is the stand of the defence that the testimony of <NAME> PW 46 and <NAME> the fact that <NAME> had seen actual shooting as the witness says that they both entered together. <NAME> PW 46 worked in Qutub Colonnade in April, 1999 as a waiter. In his evidence, he informed the Court that:

"the day of occurrence was Thursday. The occurrence took place at about 1.30 or 1.45 AM. At that time, I saw some people rushing in and some people rushing out of the restaurant and they were shouting "GOLI LAG GAI", "<NAME> KO GOLI LAG GAI".

I knew <NAME> before the incident, <NAME> was the Manager of the restaurant. I was coming downstairs, and on hearing the noise, I went to restaurant. I saw <NAME>, lying on the floor. Some guests, <NAME> and <NAME> were present there. Two - three other workers were also present, but I do not remember their names. <NAME> made a telephone call. Thereafter, <NAME> brought a sheet of cloth. <NAME>, <NAME> and I wrapped the said <NAME> in the bed-sheet. We took/carried her to an Esteem Car, parked outside. <NAME>, <NAME> and I also sat down in the Car. There was a driver in the car. We left and reached <ORG>. <NAME> was removed on a stature for medical treatment. I returned to the restaurant at about 3/3.15 a.m. Police met me there in the Restaurant."

"<NAME> and <NAME> were already, near <NAME>, when I reached there. I did not see Mr. <NAME> there, at that time. <NAME> had left at about 12.30 or 12.45 a.m. from there. When I saw <NAME> lying on the floor, I also saw that she had some injury on the left forehead, from which blood was coming out. There was also blood on the floor, where <NAME> was lying."

17) <NAME> 47 was working as a Manager-cum- Supervisor. He used to check the supplies, cash and sanitation. A system of "Thursday Parties" had been started in Qutub Colonnade. The occurrence took place on such 3rd or 4th party on 29.04.1999. It was a Thursday. Generally food was served but on Thursdays liquor was also being served. The supply of articles through coupons was made in the open space. The party, on 29.04.1999 was over at about 12.30 a.m. and he told the waiters to clean up the place. He was counting the cash and tallying the same. He narrated further:

"The time might be 2 AM. I heard the firing of two shots, and the noise of firing had come from the side of cafi. I opened the gate of my office, which I had closed, before counting the cash etc. I saw from that gate of my office that people were coming in and going out. At that time, I saw <NAME> on the stairs of cafi. I rushed towards her and we both went inside the cafi. We saw, <NAME> lying on the floor, near the counter. <NAME>, <NAME>, <NAME> and <NAME>, members of the staff and one-two guests also reached the spot. There was scratched on the forehead of <NAME>. <NAME> PW-3, brought a bed- sheet. We wrapped <NAME> in that bed-sheet. <NAME> is an electrician in Qutub Colonnade. We removed <NAME> in a car to <ORG>. Mrs. <NAME>, <NAME>, waiter, myself and driver were in that car, apart from <NAME>."

"I came out of my office, immediately, after hearing the shots of firing. I saw, `AFTRA TAFARI' at the gate of <ORG> after coming out of my office. At that time, I saw <NAME> on the steps, to which I have made reference. By the time <NAME> reached the gate of <ORG>. I reached there, by running."

18) The analysis of evidence of PWs 46 and 47 shows that when <ORG>47 heard the noise of the shots he 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 <NAME> on the steps of the cafi, he rushed towards her and they both went inside the cafi. 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 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 <NAME> <ORG>20 has stated that when she mounted the steps of the restaurant she saw a few people standing next to the counter and heard a shot. A moment later she heard another shot. <NAME> 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 <NAME> <ORG>20 was standing was only four feet from the point at which the shot was fired at <NAME>. 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 <NAME>. Thereafter, she accosted <NAME> till the gate of Qutub Colonnade where she told <NAME> this was the man who had shot <NAME> and that he should see in which car he i.e. <NAME> gets into and after that <NAME> <ORG>20 came back to the spot. It is when she came back to the cafi this witness <ORG>47 joined <ORG>20 entering the cafi, thus the testimony of this witness does not negate the fact that <ORG> 20 witnessed the incident. It is relevant to mention the very fact that <ORG>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 as the person who was having the gun. It has to be borne in mind that <NAME> had no enmity with the appellant-<NAME> 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 record any evidence to suggest that the investigation was motivated by mala fide.

19) It was argued by the defence, since PW-47 in his cross examination has stated that <NAME> PW-20 stated to him as to what had happened and who had done it, an inference has to be drawn that she did not witness the incident. As rightly pointed out, the above statement does not lead to the inference that <NAME> PW-20 did not witness the incident rather it could further reinforce what she had witnessed. Even otherwise, admittedly, thus, <NAME> was available she was not recalled to confront her with the testimony of PW-47. In those circumstances, the defence cannot take advantage out of a portion of statement of PW-47.

20) It is relevant to mention that <NAME> also stated that when the occurrence took place he was present on the stairs leading to terrace and that time he saw people rushing in and some people rushing out of the restaurant who were also shouting "Goli Lag Gai, Jessica Lal Ko Goli Lag Gai". He came downstairs after hearing the noise and went to the restaurant, thus it is evident that this witness did not hear the shots of the fire but only realized about the occurrence after people were rushing in and rushing out shouting. A perusal of the testimony of PW-46 reveals that when he came down, PW-20 was already there. Thus PW-46 is not in a position to say as to what <NAME>. It may be further pointed out that the stairs leading to the terrace are not on the cafi but on the main building of Qutub Colonnade which houses the shops beyond the verandah and <ORG>. Hence, the testimony of PW-46 cannot negate the evidence of PW- 20 that she witnessed the incident. It is submitted that the mere absence of <NAME> the 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.

21) Mr. <NAME>, learned senior counsel, by drawing our attention to Ex PW 21/A, which is a site plan and Point B is the approximate place where the deceased was shot, argued that it was impossible for PW-20 (<NAME>) to have seen the actual shooting, since they both entered together and PW-47 came in after the shot was fired. In other words, it was argued that PW-20 only saw the "fallen woman" and it is incorrectly written "falling" and PW-20 is not the person who saw the incident. We meticulously verified the site plan as 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 53  161 . was recorded on 30.04.1999 in the morning itself. It was pointed out by the prosecution that she was neither contradicted nor confronted with her statement under Section 161 . as she firmly stood to her statement in the witness box.

22) Mr. <NAME>, further submitted that due to the pressure by the prosecution for registering a case under the Punjab Excise Act against <NAME> PW-6, <NAME> PW-20 and <NAME> PW-24, virtually, they were pressurized to yield to the case of prosecution. While stoutly denying the said allegation, Mr. <NAME>, submitted that the registration of case under the Punjab Excise Act has nothing to do with their evidence in the case of death of <NAME>. He also submitted that ultimately they were fined, the said action cannot be construed as a threat to them or keeping the sword hanging for taking action either under Section 201  or the Punjab Excise Act. It was pointed out by the learned senior counsel for the appellant that <NAME> PW-6 during her statement admitted that her mother <NAME> was accused of having removed the blood from the spot. PW-6 further admitted that during the first five days of May, 1999, the interrogation of three of them "PWs 6, 20 and 24" was very intense. She also stated that for quite long hours they were kept in the Police Station and they were used to be subjected to prolonged interrogation in the <NAME>'s case as well as in other Excise Act case. It is true that SHO <NAME> PW 101, admitted that the FIR in the excise case was lodged against the above said three persons. It was also highlighted that all the three were arrested in the excise case on 08.05.1999 which was pending in <ORG>, New Delhi. In that case, application on behalf of <NAME> and <NAME> was moved for seeking permission to go abroad for treatment of <NAME> alleging that she is a cancer patient. Mr. <NAME> argued that notice of which was given to the <ORG> and instead of filing reply by the <ORG> counsel PW-101, who appeared in person, vehemently opposed on the ground that their presence may be required during the investigation of FIR No. 287 of 1999 for filing additional charge-sheet including the issue of cleaning of blood. Ultimately, the Metropolitan Magistrate rejected their application for permission and they were not allowed to go abroad because of the reason that their presence may be required for filing additional charge-sheet in FIR No. 287 of 1999. By pointing out the above information, it was argued by the learned senior counsel that the investigation agency had been pressurizing these witnesses to toe their line in their deposition in the present case, but PW-20 was not made as accused under Section 201 in the present case because they had agreed to toe the line of the prosecution but this sword was kept hanging on them to ensure that the entire family members i.e. PWs 6, 20 and 24 continue to toe the line of prosecution. All the allegations have been stoutly denied by the prosecution. It was submitted by the prosecution that the statement of <NAME> PW-100 is inadmissible on the ground that it is sought to be used as opinion evidence and, therefore, hit by the rule against hearsay evidence. Even if it is held to be admissible, it was pointed out that <NAME> was right in saying that statement of <NAME> should be recorded because <NAME> was inside the cafi and had witnessed the entire incident including conversations which occurred prior to the incident. It was further pointed out that the statement of <NAME> to this effect which she also deposed before <ORG> was recorded on the same date i.e. on 30.04.1999 that too in the morning itself. In her statement, before <ORG> PW- 20 <NAME> had clearly stated "at the hospital, the police met me. The report about the incident was lodged in my presence by <NAME>." In view of the same it was submitted that because PW-20 told PW- 100 to ask PW-2, it does not mean that she did not know anything, since her statement was recorded on the same day soon after the statement of <NAME> to which statement she stuck even in her testimony before <ORG>.

23) It has been vehemently argued that PW-20 is not an eye witness since both Investigating Officers i.e. PWs-100 and 101 admitted the same. It was submitted by the State that this argument runs counter to the well settled 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 defence also runs counter to their own argument used to discredit the investigation that PW-6 was placed in the `rukka' by the <ORG> for the purposes of being shown as an eye-witness. The said part of the testimony of PWs-100 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.

24) Further, the appellant-<NAME> has also been clearly identified by <NAME> the person in the White T Shirt who had asked for whisky and thereafter on her refusal to oblige, he misbehaved with her in the most vulgar fashion.

25) It was argued that PW-6 could not have seen anything since she was on the other side of the Colonnade and that the prosecution in fact planted her into Ex.PW- 2/A i.e. the `rukka' prepared at the instance of <NAME> as an eye witness. It has been reiterated that all the three key witnesses are planted witnesses who have deposed under pressure of false implication. It has been further argued that the deposition of PW-6 that she entered the bar for a drink is improbable as she knew that the drinks were over. It is contended by the defence that PW-6 did not say that she heard the gun shots since she was inebriated, which further supports the fact that she could not identify anybody else. Her statement that there were four or five guys at the spot is also not corroborated by <NAME>. The Prosecutor has put a leading question to her as to the identity of the appellant and, therefore, the said question and answer should be expunged from the record. The <ORG> recorded a couple of her statements but the defence was not supplied with all of them. In any case the photo of the appellant was shown to her even prior to his refusal of the Test Identification Parade. It was pointed out that these contentions are totally erroneous and contrary to the record. It is pertinent to note that FIR No. 288 of 1999 at PS Mehrauli under Excise Act was registered on 30.04.99 itself and thus the question of making her an accused on 08.05.99 does not arise. Moreover, the excise offence is a bailable offence. Further, the statement of <NAME> was recorded under Section 161 . on 03.05.99 itself vide Ex PW 6/DA and thus the contention of making her an accused on 08.05.99 on this count is also fallacious.

26) As regards the argument that <NAME> 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 time <NAME>, 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 30.04.1999 at the time of recording the `rukka', none of the witnesses had disclosed the identity of the appellant - <NAME>, therefore, to allege that the <ORG> had planted the witness is wholly incorrect.

27) As regards the argument that PW-6 was under the influence of alcohol, therefore, could not have identified the appellant - <NAME>, is also wrong since she clearly stated in her testimony, particularly, in cross- examination, that she had consumed only one drink.

28) 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 identification of the appellant-<NAME> 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 the appellant - <NAME> by specifically pointing out and stating that he just looks like him. It was explained by the <ORG> that the appellant was not personally known to the said witness or her family and, therefore, the 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 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 <NAME> PW-20 and <NAME> of little value since neither PW- 20 nor PW-24 stated that they had been shown the photos of the accused in spite 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 <NAME> that he saw her screaming out, the defence has sought to discredit PW-6's, statement. It is relevant to note that it is the case of PW-6 that she came to know when she was in the courtyard, <NAME> came running towards her and <NAME>, screaming that <NAME> 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 there is any contradiction in the statement of PW-6 and PW-70.

29) It was pointed out by the defence that the firing was not over a drink, the act to refuse supply of liquor was not the motive to murder <NAME>. After perusing the evidence of PW-6, it is clear that after refusal of the drink, the appellant-<NAME> misbehaved in the most vulgar fashion. The testimony of PW-23 further corroborates the testimony of PW-6. As rightly pointed out by the <ORG> that it was a case where the deceased <NAME> Lal was murdered for a row over the drink.

30) It was also pointed out on the side of the appellant- <NAME>, that the evidence of <NAME>, <ORG>6 and <NAME>, <ORG>24 does not corroborate the statement of <NAME>, <ORG>20. In this regard, it is relevant to note that these three witnesses have deposed on three different situations in the chain of circumstances. The evidence of these three witnesses, 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 was highlighted by the defence that PWs 46 & 47 stated that they did not see <ORG> 24 after the party was over at 12.30 a.m. By saying so, it was contended that <ORG>24 was never there at the time of the alleged incident. It was also contended that <ORG>24 reached the Mehrauli police station at around 2.25 a.m. whereas if the story of the prosecution is true then he should have reached around 2.10 a.m. It is relevant to mention that <ORG>24's statement was recorded on the same day i.e. 30.04.99. The presence of <ORG>24 at the time of incident is also supported by the testimony of ASI Kartar Singh <ORG>13, who deposed that a person bearing the description of <ORG>24 came to the Police Station to report about the firing incident, which fact corroborates the testimony of <ORG>24 that he went to the Police Station. It was urged by Mr. <NAME> that Rohit Bal <ORG>70 was a witness who have been examined first as his telephone number appears on Ex. <ORG>12/D1 which are the PCR messages. It was clarified that in the PCR only the mobile number was recorded. Further on receipt of information, police officers immediately reached the place of occurrence and came to know that the deceased had been taken to <ORG>. SI <NAME>, <ORG>100 reached <ORG> and made enquiries from <ORG>20 who directed him to take the statement of <NAME> 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 eye-witnesses having been taken immediately at 03.40 a.m. on 30.04.99 itself on the basis of which FIR was registered and number of other investigation processes like post-mortem, site plan etc. and immediately thereafter search for Tata Safari, ownership of the alleged vehicle, search for <NAME> in the case being made, as such even if there is 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.

31) In the earlier part of our judgment, we have noted that PW-20 has categorically stated that she heard the two shots, saw the people inside and <NAME> falling down, which shows that she had witnessed the entire incident as is evident from the relevant portion of her testimony extracted in paragraphs supra. <NAME> in categorical terms informed the Court about <NAME> 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 <NAME>. PW-6 further corroborates the testimony of PW-20 and part testimony of PW-2 with regard to the presence of the accused <NAME>. The scrutiny of the entire evidence of PW-6 clearly shows that her evidence is not only relevant but also admissible.

32) Coming to the cause of death, Dr. <NAME> who conducted post-mortem on the body of deceased <NAME> 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, injury was ante-mortem in nature. He also deposed that Injury no. 3 was sufficient to cause death in the ordinary course of nature.

33) 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 he made his statement in English, however, SI <NAME> recorded it in Hindi. In the absence of any suggestion to the contrary, as rightly pointed out by the counsel for the <ORG> 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 "I can understand spoken Hindi. Hindi was my third language when I was studying in the seventh standard. I was never good in Hindi." It is also pointed out that <NAME> has acted in a number of Hindi films. 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. Further it was pointed out that PW-2 was under the influence of accused <NAME> as he was accompanied by Mr. <NAME> who had appeared as proxy counsel for him i.e. accused <NAME> in his bail application dated 06.03.2000. Thus, reliance could have been placed only on that aspect of the testimony which is corroborated by other evidence on record.

34) With regard to the allegation that statements of PW-6, <ORG> and <ORG> were taken under pressure as a case under Excise Act was lodged against them and when they were to be examined, an application for pre-ponement of the case was moved where they pleaded guilty and fine of Rs. 200 was imposed on each. For this, it was pointed out that there is nothing on record to suggest that PW-6 was threatened or humiliated by the <ORG> or that she would be implicated in a case of destroying the evidence i.e. removal of blood from the spot. In fact, <ORG> has denied the suggestion that she is deposing falsely at the instance of <ORG>. In the same way, <ORG> 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 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. As rightly pointed out by the <ORG> that on the quantum of sentence for an offence, the prosecution has no role and it is the <ORG> concerned which can impose appropriate sentence considering the evidence and the role of the accused. It was also highlighted that the charge was only under Section 68 of the Punjab Excise Act to which all the three accused, namely, <NAME>, <NAME> and <NAME> pleaded guilty. The maximum penalty/fine under Section 68 is Rs. 200, therefore, the maximum fine which could have been imposed on the accused is Rs. 200. In those circumstances, the allegation that these three witnesses were kept under pressure is not acceptable. What constitutes the First Information Report

35) Let us consider whether the three telephonic messages received by the Police at around 2:25 a.m. on 30.04.1999 or the statement made by <NAME> recorded at Ashlok Hospital constitute the FIR. It is the submission of the learned senior counsel for the appellant-<NAME> that the statement of <NAME> to have been used for the purpose of registration of FIR instead of <NAME> PW-2. It was demonstrated that <NAME> had made two calls on `100' on coming to know by other persons that <NAME> has been shot inside the cafi. As against this, <NAME> PW-2 was very much within the vicinity of the place of occurrence and, therefore, the statement of <NAME> was used for the purpose of registration of FIR. It is relevant to point out that PW-70 has never claimed to have witnessed the incident. He confirmed his presence on the spot and having seen PW-20 accosting a man.

36) It was further contended by the learned senior counsel for the appellant-accused that PW-2 <NAME>'s statement could not be looked into as the same is hit by Section 162 . and on the other hand the defence seeks to rely on his testimony. In support of the above claim, the learned senior counsel for the appellant relying upon the judgments of this Court in <CITATION> AIR 1964 SC 221 and <CITATION> AIR 1945 PC 18 contended that investigation of an offence can start either on information or otherwise and that the receipt and recording of FIR is not a condition precedent to the setting in motion of criminal investigation. Placing reliance upon the said judgments, it has been further argued by the learned senior counsel for the appellant that in the present case the three cryptic telephonic messages received by the <ORG> at around 2.20 a.m. on 30.04.1999 should be treated as FIR upon which the investigation started and, therefore, the statement of PW-2 recorded by the <ORG> later on around 3.40 a.m. could not be treated as FIR but a statement under Section 162 of .

37) Insofar as the decision in <NAME> (supra), it was noted in para 8 at page 224 that the information received by the officer was not vague, but contained precise particulars of the acts of misappropriation committed by the accused and, therefore, the said information could be treated as FIR. On the contrary, it is evident from the facts established on record in the present case that none of the three telephonic messages received by police furnished any detail about the offence or the accused. The judgment in <NAME> (supra) is also distinguishable as the law laid down in the said case does not concern the issue involved in the present case. Cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Criminal Procedure Code which states that the information, if given orally, should be reduced in writing, read over to the informant, signed by the informant and a copy of the same be given free of cost to the informant. In the case on hand, the object of persons sending the telephonic messages including PW-70 <NAME> was only to bring the police to the scene of offence and not to register the FIR. Learned senior counsel for the accused- <NAME> has also relied upon a judgment of this Court in <CITATION> (1955) SCR 1150 wherein this Court has held that investigation usually starts on information relating to commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the Code. A reading of the said judgment clearly shows that investigation starts on information relating to commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. By applying the ratio of the said judgment to the case on hand, it can be clearly said that the investigation started after the recording of the statement of PW 2 as FIR around 3.40 a.m. on 30.04.1999.

38) Learned senior counsel for the appellant also relied on judgment of <ORG> in <CITATION> , AIR 1965 Guj 143. A perusal of the said judgment shows that the details of the offence given by the telephonic message in the said judgment clearly described that `one man was assaulted by means of an axe at Sudama Chowk', on the other hand, in the case on hand the telephonic message did not give any details of the offence or accused and the same was a vague information. The said judgment should be read per incuriam in view of plethora of judgments of this Court wherein it has categorically held that cryptic telephonic messages not giving the particulars of the offence or accused are bereft of any details made to the police only for the purpose of getting the police at the scene of offence and not for the purpose of registering FIR.

39) Learned senior counsel for the appellant also relied on the judgment of this Court in <CITATION> , . In the said case, detailed information was given on telephone including the offence and the whereabouts of the accused. On the other hand, in the present case, as observed earlier all the three telephone calls barely mentioned that a fire was shot and a girl was killed. The said information could only be concluded to have been given to the police to get the police to the scene of offence and not with the object of registering FIR. In those circumstances, the judgment in <NAME> (supra) has no application to the facts of the case on hand.

40) It was further pointed out by the defence that Ex.P- 12/A wherein three PCR calls were recorded is the real FIR and the statement of PW-2 which was taken during investigation and got signed by him is not the FIR and is thus to be treated as a statement recorded under Section 76  161 . and is hit by the bar under Section 162 . This argument is unacceptable since as observed in the earlier paragraph the telephone call from PW-70 was too cryptic to amount to an FIR. At this juncture, it is useful to refer to the decision of this court in the case of <CITATION> ,  wherein this Court has not accepted a similar argument and held as under:-

5. To begin with, it appears that there was some dispute about the dearness allowance claim of the labour from the management which was referred to <ORG>. The respondent, who was the Secretary of the <ORG>, was looking after the case on behalf of the workers, while PWs 5 and 7 were the officers appearing on behalf of the management before the <ORG>. The deceased, <NAME>, was Deputy Personnel Manager of the Bombay Branch of <ORG>. He was shot dead by the respondent after he (deceased), along with the other officers of the management, had come out of the <ORG>'s office at Meerut after filing their written statements. Thereafter one of the eyewitnesses, <NAME> (PW 7) asked someone to give a telephone call to the police station, which was nearby, on receipt of which the police arrived at the spot, seized the pistol and took the accused and some of the witnesses to the police station where a formal FIR was registered. The <ORG> was prepared and other formalities were, however, done at the spot.

11. <NAME>, DW 1 who was admittedly at the scene of the occurrence has stated that as the shooting started, PW 7 had given a telephonic message to the police station. <ORG> by an implied process of reasoning has observed that if PW 7 had given the telephonic message he would have mentioned the name of the assailant because he was a full-fledged eye-

witness but since his name had not been mentioned it is the strongest possible circumstance to discredit the prosecution case. We are, however, unable to agree with this somewhat involved reasoning of <ORG>. In fact, DW 1 merely says that <NAME> telephoned to the police station about the firing and said something in English. <ORG> seems to have presumed that from this the irresistible inference to be drawn is that <NAME> did not mention the name of the assailant of the deceased and on this ground alone the prosecution must fail. This argument is based on a serious error. In the first place, the telephonic message was an extremely cryptic one and could not be regarded as an FIR in any sense of the term. Secondly, assuming that <NAME> had given the telephonic message in utter chaos and confusion when shots after shots were being fired at the deceased, there was no occasion for <NAME> to have narrated the entire story of the occurrence. In fact, in his evidence <NAME> has denied that he personally telephoned the police but he stated that he asked somebody to telephone the police which appears to be both logical and natural. Moreover, such a cryptic information on telephone has been held by this Court to be of no value at all. <CITATION> this Court in identical circumstances observed thus: [SCC para 4, p. 117: SCC (Cri) p. 332] "The telephone message was received by <NAME>, ASI Police Station, City Kotwali at 5.35 p.m. on September 8, 1969. The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This was, of course, recorded in the daily diary of the police station by the police officer responding to the telephone call. But prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report."

Similar views have been expressed in <CITATION> , Damoder vs. Rajasthan (2004) 12 SCC 336 and <CITATION> . It was argued and highlighted that since PW-2 <NAME> has been confronted with his signed statement i.e. Ex.PW-2/A and B, the whole evidence goes in light of Zahidurddin vs. Emperor, AIR 1947 PC 75. Apart from the above decision reliance has further been placed on <CITATION> . AIR 1965 Cal. 348 (Para 9) and <CITATION> , AIR 1965 Guj. 143 (Para 9 & 10). We have carefully perused those decisions. We are satisfied that nothing turns on this argument since the said decisions only provide that where a statement made/given by a witness under Section 161 of the Code and signed by the same is hit by the bar prescribed under Section 162 of the Code, but nowhere do they say that the evidence deposed to in Court by the said witness becomes admissible. As a matter of fact, similar argument of the defence counsel was rejected in <CITATION> , .

"37. In assailing the above findings Mr <NAME> first contended that both the courts below ought not to have taken into consideration and relied upon the evidence of PC PW 1 as the same was clearly inadmissible. In expanding his argument Mr <NAME> submitted that while being examined in court the witness was permitted to refresh his memory from the report he lodged with the police in the morning of 12-11-1985 (Ext. 10/1), which was treated as the FIR of the second incident even though by no stretch of imagination could that report be so treated, as <ORG> had started investigation into the same the previous night. That necessarily meant that Ext. 10/1 was a statement made to a police officer during investigation which could not be read for any purpose except for contradicting the maker thereof in view of Section 162(1) of the Code, argued Mr <NAME>. In support of his contention Mr <NAME> relied upon the judgment of <ORG> in <CITATION> . It appears that the question as to whether Ext. 10/1 could be treated as an FIR was raised both before the trial court and <ORG> and it was answered in the affirmative. The courts held that in the night of 11-11-1985, <ORG> did not examine any witness in connection with the incident that took place in that afternoon and, in fact, he did not take any step towards the investigation as he and other police officers were busy in maintaining law and order in the village.

38. Having gone through the evidence of PW 96 we are constrained to say that the courts below were not justified in treating Ext. 10/1 as an FIR. Undisputedly PW 96 had reached Village Laxmipur Bind Toli in the night of 11-11-1985 to investigate into the two cases registered over the incident that took place in the morning. He deposed that after reaching the village at 10.30 p.m. he got information about the second incident also and in connection therewith he had talked to several persons. He, however, stated that he did not record the statements of the persons to whom he talked to. In cross-examination it was elicited from him that on the very night he learnt that houses of some people had been looted and set on fire, some people had been murdered and that some villagers were untraceable.

While being further cross-examined he volunteered that he had started the investigation of the case registered over the second incident in the same night. In the face of such admissions of PW 96 and the various steps of investigation he took in connection with the second incident there cannot be any escape from the conclusion that the report lodged by PC PW 1 on the following morning could only be treated as a statement recorded in accordance with Section 161(3) of the Code and not as an FIR. The next question, therefore is whether the evidence of PC PW 1 is inadmissible as contended by Mr <NAME>.

39. In the case of <NAME> the police had got the statement of the principal witness which was, admittedly, recorded during investigation signed by him. Besides, during trial, while being examined-in-chief he refreshed his memory from that statement. The trial ended in an acquittal with a finding that when a police officer obtains a signed statement from a witness in contravention of Section 162 of the Criminal Procedure Code his evidence must be rejected. In appeal <ORG> set aside the order of acquittal holding that breaches of the provisions of Section 162 Criminal Procedure Code were not in themselves necessarily fatal to the proceedings and might in appropriate circumstances be cured as the expression was under the terms of Section 537 of the Criminal Procedure Code, 1898 ( Section 465 of the Code). In setting aside the order of <ORG> <ORG> observed as under:

"... the effect of a contravention of the section depends on the prohibition which has been contravened. If the contravention consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it does not become inadmissible. There are no words either in the section or elsewhere in the statute which express or imply such a consequence. Still less can it be said that the statute has the effect of vitiating the whole proceedings when evidence is given by a witness who has signed such a statement. But the value of his evidence may be seriously impaired as a consequence of the contravention of this statutory safeguard against improper practices. The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations. The categorical prohibition of such use would be merely disregarded if reliance were to be placed on the evidence of a witness who had made material use of the statement when he was giving evidence at the trial. When, therefore, the Magistrate or presiding Judge discovers that a witness has made material use of such a statement it is his duty under the section to disregard the evidence of that witness as inadmissible. In the present case there is in the note at the end of Mr <NAME>'s examination-in-chief and, in the judgment of the Magistrate what amounts to a finding of fact that Mr <NAME> while giving his evidence made substantial and material use of the signed statement given by him to the police, and the Magistrate was accordingly bound to disregard his evidence. The Magistrate's reason for doing so is too broadly stated, for it is not the mere fact that Mr <NAME> had signed the statement but the fact that he had it before him and consulted it in the witness box that renders his evidence incompetent." (emphasis supplied)

40. In our considered view the above-quoted passage is of no assistance to the appellants herein for in the instant case after PC PW 1 testified about the incident, prosecution got the statement of PC PW 1 exhibited Ext. 10/1 as according to it Ext. 10/1 was the FIR. Such a course was legally permissible to the prosecution to corroborate the witness in view of Section 157 of the Evidence Act. Of course in a given case -- as in the present one -- the court may on the basis of subsequent materials hold that the statement so recorded could not be treated as the FIR and exclude the same from its consideration as a piece of corroborative evidence in view of Section 162 of the Code but then on that score alone the evidence of a witness cannot be held to be inadmissible. The case of <NAME> turned on its own facts, particularly the fact that during his examination- in-chief the witness was allowed to refresh his memory from the statement recorded under Section 161 Criminal Procedure Code, unlike the present one where the statement was admitted in evidence after PC PW 1 had testified about the facts from his own memory."

41) The information about the commission of a cognizable offence given "in person at the Police Station" 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 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 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 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 . This view has been reiterated in <CITATION> , that a cryptic message given on telephone by somebody who does not disclose his identity may not satisfy the requirement of Section 154 of the Code of Criminal Procedure.

42) In view of the above discussion, the 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 <NAME> was rightly registered as the FIR.

42A) Seizure of Tata Safari & broken glass pieces and live cartridge:

(i) The testimony of PW-30 has proved the presence of <ORG> Safari CH-01-W-6535 at the spot after the incident which testimony is duly corroborated by PW-83, PW-78, PW-100 and PW-101 and by documents Ex PW 101/DK-1, which shows about the PCR message about this vehicle at 6.00 a.m. on 30.04.1999. In his evidence, PW-30 has informed that he left PS Mehrauli along with Inspector <NAME> at 2.30/2.45 a.m on 30.04.1999 and reached `Qutub Colonnade' within 2-4 minutes. He further informed that SHO <NAME> directed him to keep vigil at the parking so that nobody is allowed to take away cars parked there. The following information is relevant: "When I was giving duty there, I saw a vehicle, came at about 3:40 or 3:45 a.m. It came from the side of Qutub. The vehicle came slowly. The vehicle was <ORG> Sierra of white colour. There were two persons in that vehicle, on the front seats. They went ahead and took `U' turn and stopped the vehicle near the vehicle, near which I was standing. I was standing by the side of <ORG> Safari vehicle, of black colour. One boy came down from that vehicle. He opened the vehicle <ORG> Safari, with a key. I told him not to do so, but he forcibly entered the said <ORG> Safari. He started the vehicle even though I asked him, not to do so. I gave a lathi blow on the last window-pain on the side of the driver. The number of the black <ORG> Safari, bore Registration no. CH-01-W-6535. When I gave danda- blow, the glass of window-pain broke. Both the persons, took-away the vehicles. I had seen the driver and companion on the <ORG> Sierra. The <ORG> Sierra vehicle was being driven by <NAME>. I can identify the driver of the said <ORG> Sierra and his companion.

At this stage, the witness has been sent out to examine the vehicle, parked, outside the court room, along with <NAME> of <NAME>, Advocate and <NAME>, Advocate.

It is the same <ORG> Safari vehicle, which was hit by me on that night. It is exhibited as article Ex.PW 30/X."

It is clear from his evidence that while <ORG> Safari CH-01-W-6535 was being taken away forcibly from the scene of occurrence at about 3.45 a.m. by accused <NAME> and both <NAME> and <NAME> came in a <ORG> Sierra, PW-30 gave a danda blow on the right rear side of the window of the car.

ii) The prosecution case further shows that the first police officer to reach the place of occurrence at 02.17 a.m. on 30.04.1999 was HC Devi Singh PW-83. He has stated that there was one black Tata Safari parked on the left side towards Mehrauli besides other cars on the right side of the gate. He has further stated that PW-30 was deputed by SHO near the parked vehicles at Qutub Colonnade. He further stated that SI <NAME> SI <NAME> had also visited the spot.

iii) SI <NAME> stated that on receipt of DD No 41 A Ex PW 13/A in respect of firing incident in Qutub Colonnade, he along with Ct. <NAME> reached Qutub Colonnade. SI <NAME> and Ct <NAME> also reached Qutub Colonnade almost the same time when he reached. At Qutub Colonnade on the left side near the gate a black <ORG> Safari car was parked besides other cars. SHO Insp. <NAME> also reached there. While leaving for <ORG>, the SHO asked Delhi Home Guard <NAME> to remain at the gate of the `Qutub Colonnade'. PW-100 SI <NAME> has stated that when he reached Qutub Colonnade he found a black <ORG> Safari car parked on the left side besides as he entered the colony and other vehicles were parked on the right. The PW-30 also identified the black <ORG> Safari CH-01-W-6535 to be the same which he had seen parked at the scene of crime and the same in exhibit article PW 30/X. SHO <NAME> had also reached the spot along with staff including DHG <NAME>. SHO detailed DHG <NAME> to watch the vehicle already parked there and asked him (SI <NAME>) to proceed immediately to <ORG>.

iv) <NAME> PW-101, SHO PS <NAME> has stated that on receipt of information he, ASI Kailash, Ct Ram Niwas, Ct Ramphal, Ct <NAME> left for the spot in the official gypsy. PW-30 met them at the gate of police station and he also picked him (<NAME>) up in the Gypsy and reached Qutub Colonnade. He found one black colour Tata Safari on the left side of Qutub Colonnade gate and 4 or 5 vehicles including one <ORG> Van on the right side. PW-30 was left at the gate to ensure that no vehicles leave the spot. It is clear from the above testimony that black Tata Safari was found parked near the gate of `Qutub Colonnade' when they reached at the spot on receipt of intimation regarding firing incident and <NAME> PW-30 was detailed by SHO PW-101 to ensure that no vehicle leaves the spot. It is the argument of the learned senior counsel for the appellant <NAME> that PW-30 was not present at the spot of the incident placing its reliance on DD No.40A and 43A dated 30.04.1999. A perusal of FIR 286 of 1999 dated 30.04.1999 under Section 308 / 34  PS <NAME> Ex-CW-2/B shows that the said `rukka' was sent by SI <NAME> through <NAME> from <ORG> and not from Dera Gaon. The said FIR also indicates that SI <NAME> by 2.30 a.m. had already recorded the statement of the victim at <ORG> and had not sent the same with <NAME> with `rukka' to PS, <NAME>. In those circumstances, the version of PW-30 and PW-101 that PW-30 met him at the gate of the PS when PW-101 was going out with other staff is reliable and acceptable. Further, the presence of PW-30 at the spot is corroborated by <NAME>, PW-78, HC <NAME>, PW-83, SI <NAME>, PW-100 and <NAME>, PW-101. It was also highlighted that after this incident PW-30 has been recruited to the post of Constable though he was not eligible as he was under metric and overage. Learned Solicitor General appearing for the <ORG> pointed out that instances are not unknown wherein persons other than permanent police officers when help the investigating agency in solving crimes have been recruited in <ORG> and strongly submitted that the evidence of <NAME> cannot be discredited on this point. The said submission cannot be ignored.

43) PW-30 has categorically stated that while he was on duty he saw a vehicle <ORG> 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 on the front seat. They stopped the vehicle near <ORG> Safari of black colour. One boy came down from the said vehicle and opened <ORG> Safari with a key. <NAME> him not to do so but the said boy forcibly entered the <ORG> Safari and took it away. He gave a lathi blow on the glass of window pane and it broke due to danda blow. He noted down the number of the black <ORG> Safari as CH-01-W-6535. The witness also identified <ORG> Safari which was hit by him on that night, which is exhibit PW 30/X. PW 30 also identified that <ORG> Sierra was driven by <NAME> whereas <NAME> drove away black <ORG> Safari.

44) Insp. <NAME> also stated that when he came back, he found SI <NAME> & SI <NAME> as well as <NAME>, they told him that two boys had come and had forcibly taken away the <ORG> Safari. Out of the two boys one was Sikh, PW-30 also informed that he had broken the right backside window panel of Safari with his Danda. He also gave the number of the <ORG> Safari as CH- 01-W-6535. SI <NAME> Kumar PW-100 has also stated that two persons had got into the <ORG> 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 30.04.1999 at about 03.40 or 03.45 am accused <NAME> and <NAME> came in a white colour <ORG> Sierra Car and accused <NAME> got down and drove away black <ORG> Safari No. CH-01-6535.

Tata Safari at Noida:

45) It was argued that even according to PW-100, the Tata Safari was found available in Karnal, hence seizure of the very same vehicle (Tata Safari) at Noida is not acceptable. It is true that PW-100 has stated that he discussed the case with Inspector <NAME> and who informed him that Vehicle No. CH-01-W-6535 which was lifted from the spot in the morning is found to have been registered in the name of <ORG> and it was also found in Karnal and he further informed that <NAME> alias <NAME> is the Director of the said Industries who is residing in H.No.229, Sector 9C, Chandigarh. A perusal of his entire evidence shows that he had stated that the vehicle was found registered in the name of <ORG>, Bhadson, which was also found in Karnal and SI <NAME> along with his staff has been detailed for the investigation of the aforesaid aspect of the case. As rightly pointed out by the counsel for the State, the testimony of PW-100 show that he was referring to the <ORG> having been found at Bhadson Karnal and not the vehicle/Tata Safari. It was also pointed out when <NAME> was questioned under Section 313 . particularly question No. 119 the doubt about the vehicle has been erased. Question No. 119 put to <NAME> and his answer is as follows:-

"Q.119 It is further in evidence of PW 100 that when he came back to Qutub Colonnade nearly at about 03:15 PM on 30.04.99 where he met <NAME> (PW 101) and discussed the case with SHO <NAME> who informed him that vehicle No. CH-01-W- 6535 which was lifted from the spot in the morning is found to have been registered in the name of <ORG>, Bhadson and it was also found in Karnal and he further informed him that you <NAME> <NAME> is a Director of the said industry who is residing in House No. 229, Sector 9C, Chandigarh. What you have to say in this regard?

Ans. It is correct that Vehicle No. CH-01-W-6535 is registered in the name of <ORG>, Piccadilly Cinema, Sector 34, Chandigarh."

46) Apart from this, PW-101 also stated that his senior officers found out the name of the owner and informed him that it was registered in the name of <ORG>, Sector-34, Chandigarh. He further explained that his officers informed him that this vehicle was used by <NAME> office which was at Bhadson, District Karnal. It is further seen from his evidence that he sent SI <NAME> to Chandigarh and Inspector <NAME> to Bhadson. In this regard the evidence of PW-87 <NAME> is relevant. He deposed before the Court that he was instructed that the inmates of Black Tata Safari No. CH-01-W-6535 was involved in the case and he was asked to search the same. As directed, he left Delhi on 30.04.1999 and reached Bhadson at the premises of <ORG>. According to him, he met Major <NAME> and the sugar mill was closed at that time. He also learnt that the sugar mill was not functioning because of off season since 25.04.1999. From Bhadson, he went to Kurukshetra and he tried to locate Black Tata Safari in the aforesaid sugar factory at Bhadson but did not find it. Even at Chandigarh, Tata Safari was not available in his house at Sector 229, Sector 9C, Chandigarh. SI <NAME> Malik PW-85 also deposed before the court that on 30.04.1999 he was deputed by Inspector <NAME> to trace out black colour Tata Safari car bearing Registration No. CH-01-W-6535. As rightly pointed out that the vehicle being recovered at Karnal on 30.04.1999, the question of sending SI <NAME> Malik does not arise. From the statements of <NAME> Inspector <NAME> Sharma PW-101, Inspector <NAME> PW-87, ASI <NAME> SI <NAME> Malik PW-85, it is clear that Tata Safari vehicle was being searched by Inspector <NAME> PW-87 and SI <NAME> Malik PW-85 and other police officers at various places in Delhi, Haryana and Chandigarh. As the said vehicle was found on 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 <NAME>. Recovery of Tata Safari with live bullet and broken glass pieces at Noida:

47) PW-91 SI <NAME>, in his evidence has stated that information was received that the vehicle involved in <NAME> murder case was parked at NTPC Township. They reached NTPC Township at about 06.30 p.m. on 02.05.99 and found a Safari Vehicle parked there bearing No. CH-01-W-6535. He identified the vehicle Ex. article PW 30/X in the court. Recovery memo prepared is Ex PW 74/A which is in his handwriting and bears his signatures at point C and that of <NAME> SO at point B. PW-74 stated that vehicle Tata Safari was recovered vide Ex. PW 74/A on 02.05.99. He also identified signatures of SI <NAME> & SI <NAME> on the same. Ex PW 74/A Seizure Memo of Tata Safari and live cartridge with `C' mark etc. clearly establish the recovery of the same at Noida, beyond any shadow of doubt vide Ex PW 74/C Seizure of Live cartridge by Insp. <NAME> dated 26.06.1999.

48) PW-101 in his evidence has stated that:

"On 03.05.1999 in the morning with SI <NAME> and other staff I went to Sector 24 NOIDA and found the <ORG> Safari No CH-01-W-6535 Black <ORG> Safari lying in case FIR No. 115/99 U/s 25 Arms Act . SI <NAME> handed over a pullanda of glass pieces which were found inside the vehicle by the NOIDA police. I seized the vehicle pullanda and the documents two tape recorder, one prescription of <ORG> and one letter written to <NAME>. Every thing was seized vide seizure memo Ex PW 100/DB which bears my signature at point A and of SI <NAME> at point B. The pullanda of broken glasses were sealed with the seal of BD when it was presented to me."

49) SI <NAME> PW-91 and Ct. <NAME> PW-74 of PS Sec.24, <NAME> have deposed that they found black <ORG> Safari No. CH-01-W-6535 abandoned at the NTPC Township pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide Ex. PW 74/B. The said <ORG> Safari was seized under seizure memo Ex PW 74/A. PW 101 has clearly deposed that about 10 pm on 02.05.1999 he got the information with regard to the <ORG> Safari having been found at <NAME>. On 03.05.1999, he moved an application before the <ORG>, <NAME> for the superdari of the <ORG> Safari vide Ex. PW 101/1 and in pursuance of the orders of <ORG> Ex. PW 101/2 and he seized the same vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB along with other articles including broken glass pieces which were duly sealed with the seal of BD. The seizure memo Ex. PW 100/DB is duly signed by SI <NAME>. The said <ORG> Safari and the broken glass pieces duly sealed with the seal of BD have been deposited in the Malkhana of PS <NAME> on 03.05.1999. PW-101 has also stated that SI <NAME> accompanied him to <NAME> and that seizure memo Ex. PW 101/DB was in the handwriting of SI <NAME> of PS <NAME>. Ex PW 18/DA at item no. 7 & 9 in the letter sent to <ORG> mentioned about the seal of BD on the sealed parcel containing broken glass pieces. The report of <ORG> vide Ex PW 90/A proved that on comparison of S1 and S2 the two window panes of the left and the right rear side of the said <ORG> Safari are different. Thus this convincing testimony of PW 101 duly corroborated by documents cannot be discarded simply because SI <NAME> (<NAME> Police) failed to mention the seizure of broken glass pieces on 02.05.1999.

Tata Safari being used by <NAME> on the day of occurrence:

50) From the evidence on record it has been proved by the prosecution that appellant/accused <NAME> @ <NAME> along with co-accused <NAME>, <NAME> and <NAME> were present in the said party at Tamarind Cafi on the night of occurrence. The presence of <ORG> Safari CH-01-W-6535 at the place of occurrence and its being forcibly taken at around 3.45 am after the incident has also been proved beyond reasonable doubt. <NAME> has proved that the said <ORG> Safari CH-01-W-6535 is registered in the name of <ORG>, Chandigarh. It has also been proved from the testimony of PW-25, PW-26, PW-48 and the annual report of <ORG> that accused <NAME> @ <NAME> was the director in <ORG> Agro Industries which finding has also been arrived at by <ORG> in favour of the prosecution. Thus a reasonable inference has to be drawn from the above mentioned evidence that accused <NAME> used the said <ORG> Safari for coming to Qutub Colonnade on the fateful night of 29/30.04.1999.

Non-Recovery of the weapon of offence and the evaluation of Bullets & Cartridges:

51) <NAME> proved that pistol No. B-56943 U make P. Berretta made in Italy of .22" bore was sold to accused <NAME> @ <NAME> on 31.01.1999. The relevant exhibits in this regard are Ex. PW 14/A in the stock register for purchase of P. Berrette Pistol from Smt. <NAME>, Ex. PW 14/C at Sr. No. 3350 of sale of Pistol to <NAME>, Ex. PW 14/D photocopy of cash memo, seizure memo Ex PW 14/F dated 19.05.1999 by SI <NAME> PW-76. The endorsement on the license of <NAME> regarding sale of Pistol is Ex. PW 14/B.

52) It is relevant to point out that the accused <NAME> @ <NAME>, when he surrendered on 06.05.1999, also surrendered his arms license Ex PW 7/B which has been seized vide seizure memo vide Ex. PW 80/B by Inspector <NAME> PW 87. The testimony of PW-87 is further corroborated by PW-80. The said arms license duly bears endorsement about the sale of .22" bore pistol No. B-56943 U, make P. Berretta, made in Italy. The case of accused <NAME> @ <NAME> as per his statement u/s 313 Cr.P.C . is that on the 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. As rightly pointed out by the counsel for the State that the defence of the accused is totally incorrect in view of the positive evidence adduced on record. This defence of the accused <NAME> @ <NAME> is a clear afterthought as no complaint was lodged by the 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.

53) It is the claim of the learned senior counsel for the appellant/<NAME> that the seizure memo dated 06.05.1999 with reference to the arms license is fabricated as the license has been taken from the farmhouse of the accused on 30.04.1999/01.05.1999. Learned Solicitor General appearing on the side of the <ORG> demonstrated that the above contention is false one. Since, on 06.05.1999, when the accused <NAME> surrendered, he was accompanied by the lawyer in whose presence his arrest memo was prepared and the lawyer also signed the same. However, as rightly pointed out with reference to the arms license which was also produced by them, the same does not bear the signature of the said lawyer. The learned counsel for the <ORG> further pointed out that the said lawyer declined to sign the seizure memo that was the reason that it does not bear the signature of the said lawyer. It is to be remembered that admittedly the appellant/accused nowhere came out with an explanation. His arms license was taken away by the <ORG> in 30.04/01.05.1999 with any seizure memo, why he has not lodged any report about the same. It is also relevant to point out when the accused after surrendering before the police of Chandigarh on 06.05.1999 was produced before the Magistrate in Delhi. The police sought remand on two occasions specifically for recovery of the weapon of the offence. It was pointed out by the prosecution that <NAME> was duly represented by lawyers who did not point out on both occasions that the pistol had already been taken by the <ORG>. The <ORG> also denied the said claim of the accused as false and concocted.

54) Even, <NAME>, who is the caretaker of farm house of <NAME> at Samalkha who was produced by the prosecution for the purpose of accused's visit to farm house also did not mention in his examination in chief or in cross by the Spl. PP about the pistol. It is only to a leading question put up by the counsel for accused that those articles included pistol and arms licence of <NAME>, witness stated "it is correct". The defence of the accused was for ammunition as well as for which no suggestion has been ever put. <NAME> <ORG> has deposed that he had not received any complaint of theft or loss of this P. Berretta pistol. The pistol could not be recovered despite extensive efforts made to trace the pistol pursuant to the disclosures of the accused and the arms license was however surrendered on 06.05.1999 vide seizure memo Ex. PW 80/B. It is thus the case of the counsel for <NAME> that he was in possession and custody of his P. Beretta pistol on 29/30.04.1999 as even according to him it has been taken away on 30.04.1999/01.05.1999. This was a licensed pistol and thereby the onus was on the accused to show where it was and that the possession and whereabouts of the pistol are in the special knowledge of accused <NAME> @ <NAME> and having failed to produce the same an adverse inference has to be drawn against him in terms of Section 106 of Evidence Act. In this regard reliance may be placed on <CITATION>  at page 381:

"It is pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference"

In addition, the prosecution by way of acceptable evidence has proved beyond reasonable doubt that:

a) <NAME> accused was the owner and possessed .22" P. Berretta Pistol made in Italy.

b) Two empty cartridges cases of the .22" with `C' mark recovered from the spot.

c) The mutilated lead recovered from the skull of deceased was of .22" and could have been fired from a standard .22" caliber firearm.

d) From the <ORG> live cartridge of .22" with mark `C' was recovered on 02.05.1999.

e) The two .22" cartridge cases from the spot and the .22" cartridge recovered from Tata Safari have similar head stamp of `C' indicates that they are of the same make.

f) The two .22" cartridge cases recovered from the spot are to be rim fired, rimmed steel cartridge cases.

g) The two .22" cartridge cases of `C' mark were lying near each other on the counter and so could not have been fired by 2 different persons.

The testimony of <NAME> that he sold 25 cartridges of .22" bore on 04.02.1999 is also of no relevance to the defence of the accused when PW-7 says in the witness box that he had sold 25 cartridges of .22 bore with Mark `KF' and not with `C'. The appellant/accused has relied on the testimony of PW-7 to show that the cartridges sold to appellant/accused had `KF' marking is wholly unwarranted.

55) The prosecution has established that the appellant/accused was the holder of a .22" bore Pistol; he was witnessed by <NAME> as the perpetrator of the 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 the spot, of absconding; refusal to TIP without having any basis; that he even denied his presence at the spot, clearly prove beyond reasonable doubt leaving no manner of doubt that he is guilty of the offence of murdering <NAME> by using firearm and destroying evidence thereafter.

56) It is pointed out by the State that when the accused <NAME> was arrested on 06.05.1999, the police filed an application dated 07.05.1999 for police remand of the accused for recovery of pistol. The defence filed a reply to the said application on the same day i.e., 07.05.1999 and thereupon the Metropolitan Magistrate passed an order on the same day granting seven days police custody of the accused for recovery of pistol. The accused despite forever maintaining that the police had illegally taken away the pistol from his farmhouse on 30.04.1999/01.05.1999, did not take this ground in the reply to remand application and argument to the said effect was recorded in the remand order by the Magistrate. The only inevitable conclusion that could be reached from the said turn of events is that the pistol was still in custody of the accused and had never been recovered by the police from his farmhouse. In the reply dated 07.05.1999 filed by the accused to the remand application, there are interpolations in the reply in black ink in two handwritings to the effect that the pistol had already been recovered from the person of the accused. The assertion that the words in two handwritings in black ink are interpolations gain strength from the fact that nowhere in the remand order dated 07.05.1999 has it come that the accused has taken the plea that the pistol had already been recovered. It is pointed out by the learned Solicitor General that the Courts below ought to have drawn an adverse inference from the said facts but have failed to do so. Thus this evidence coupled with the testimony of <NAME>, PW-2, that the person in white T-shirt who was asking for whisky took out a pistol from dub of his pant and fired a shot in the air and the other witnesses PWs 1,6, 20 and 24 that the person in white T-shirt was <NAME>, a positive inference beyond reasonable doubt has to be drawn that <NAME> fired from his .22" bore pistol which resulted in the death of <NAME> on the fateful night of 29/30.04.1999.

57) Mr. <NAME>, learned senior counsel, appearing for the accused pointed out that no question has been put to the accused in his examination under Section 313 . with reference to the pistol and shooting by him for this. The State has placed reliance on the following questions which were specifically put to the accused <NAME> being Question Nos. 64, 65, 66, 67 & 72 which are as under:

"Q.64 It is further in evidence of PW-20 that she had identified you <NAME> as the person whom she has tried to stop and talked to. She added further that the person who was confronted by her on the stairs was some what like you <NAME> and also identified you on 08.05.1999 at PS Mehrauli. What you have to say in this regard?

Ans. It is false and incorrect.

Q.65. It is further in evidence of PW-20 that the companion of <NAME> (you <NAME>) was wearing T-shirt and she asked you <NAME> as to why you were here and why you shot <NAME> and she also asked you to give her your gun as she thought you were having the gun. What you have to say in this regard?

Ans. It is false and incorrect.

Q.66 It is further in evidence of PW 20 that she asked you <NAME> again but you kept quiet and shaking your hands that it was not him and thereafter you pushed her aside and went out and she ran after you but should could not catch you. What you have to say in this regard? Ans. It is false and incorrect.

Q.67 It is further in evidence of PW-20 that while running behind you (<NAME>), she reached the gate where her husband was there, to whom she told that you (<NAME>) shot <NAME> and asked her husband to see in which car you (<NAME>) gets in. What you have to say in this regard?

Ans. It is absolutely false and incorrect." A perusal of above questions and answers given by <NAME> were either evasive or incorrect and as rightly pointed out by the learned Solicitor General, an adverse inference deserves to be drawn for such acts of the appellant-<NAME>.

The implication of delay in recording statements

58) Mr. <NAME>, learned senior counsel for the appellant-<NAME> by placing various decision contended that the delay in recording statements of witnesses is fatal to the case of the prosecution, when <ORG> rightly accepted the same, however, <ORG> committed an error in ignoring the said vital aspect. For this, learned Solicitor General submitted that the said contention is based on incorrect understanding of law and its wrong application to the facts of this case. The first judgment relied on by the learned senior counsel for the appellant-<NAME> is in <CITATION> , . In that case, the witnesses were known and could have been examined when the Investigating Officer visited the scene of occurrence or soon thereafter. In the present case, there were about 100 or more persons present at the party. The identity of all such persons took substantial amount of time to determine. Consequent to the large number of witnesses, their interrogation also consequently took a substantial amount of time. Unlike the said decision, in the present case, there are no concomitant circumstances to suggest that the investigator was deliberately making time with a view to give a particular shape to the case. The details of investigation conducted on each day are very clearly brought out in the evidence of the various witnesses. Furthermore, the identity of the appellant as a suspect in the present case was not the consequence of any delay. Thus, the delay, if any, in recording the evidence of witnesses in the present case cannot be considered as an infirmity in the prosecution case.

59) The judgment in <NAME> vs. State of Mahrashtra, (2003) 10 SCC 670, relied on is also distinguishable. The delay in recording the statement in that case was coupled with the unnatural conduct of the witness and that was what made the evidence of the said witness unreliable, which is not so in the present case.

60) The other judgment in <CITATION>  is also distinguishable. In that case, the delay in recording the evidence of PW-6 was coupled with several other factors which made her testimony unreliable, including the finding that she implicated the appellant only at the prompting of her father and that otherwise she had not named the appellant as an accused. Furthermore, there was no explanation regarding the delay in that case. The facts of that case are, therefore, clearly different from the present case.

61) The defence seeks to discredit the statement of PW-1 <NAME> on two counts, firstly that statement is recorded after 14 days and secondly, there are various improvements, in his statement. It is next contended by the defence to believe this man is to disbelieve <NAME>. According to him, the prosecution did not know even on 14.05.1999 the details of their story and thus resulting in various improvements in the testimony of this witness, in the witness box. This contention of the defence looses sight of the fact that much prior to 14.05.1999 <NAME> had surrendered on 06.05.1999 and had made his disclosures and thus there could be no question of not knowing the facts on 14.05.1999. Had the witnesses been planted, the witnesses would have rendered a parrot like testimony. PW-1 has explicitly stated that on 30.04.1999 he had told the police at <ORG> all that he knew. This being the case, it cannot be said that the testimony of the witness should be thrown out for the delay in recording the statement by the <ORG>. Clearly, PW-1 was not an eye witness, this fact must have been realized by PW-100 and 101, therefore, they felt no urgency in addressing this aspect of the investigation i.e., recording of the statement of PW-1. It is stated by the <ORG> that as there were number of witnesses to be examined the said examination continued for days. Witnesses <NAME> and <NAME> were also examined on 14.05.1999. Further the presence of <NAME> can also not be belied in view of the testimony of <NAME> PW- 29 and <NAME>. In any case, any defect by delay in examination of witnesses in the manner of investigation cannot be a ground to condemn the witness. Further Section 162 . is very clear that it is not mandatory for the police to record every statement. In other words, law contemplates a situation where there might be witnesses who depose in <ORG> but whose previous statements have not been recorded.

62) It is next contended by the learned senior counsel for the appellant-<NAME> that there was a delay in recording the statement of <NAME> and his name having not been found from the list of guests prepared by <NAME>, Ex. 24/A. It was further pointed out that the list was not a conclusive list and was prepared by <NAME> on the basis of remembrance and other witnesses have also admitted the presence of <NAME>. This is more so relevant as the invited guests were also entitled to bring guests with them. The statements of witnesses were recorded not only by the I.O. himself but by other officials as well who were helping him in investigation. The delay in recording the statement of <NAME> occurred due to natural flow of statements of various witnesses. The statement of <NAME> PW-1, was recorded by ACP <NAME>, who stated the name of <NAME> occurred during the course of interrogation of other guests/witnesses. The evidence of PW-1 is relevant for a limited purpose i.e., proving the presence/identity of <NAME> and his desire for liquor in the party which part of evidence has also been given by other witnesses in so many words, prior to <NAME> as well. The said witness in his evidence has categorically stated as under:

"Few of the police officials came to Apollo Hospital along with the Ambulance and few of them returned to Qutub Colonnade. I did not make any statement to the police in Apollo Hospital. Since I had not seen the incident being taking place and at Ashlok and Apollo Hospital discussion was going on as to who had done this and it was also being discussed that the culprit was wearing Blue Denim Jean and White Shirt and was fair and was little short in height then I assessed that he was the same person who came to me to arrange drinks for him. I had told the police in Apollo Hospital that it was <NAME> who was with the similar description as was discussed amongst friends on which police had told me that they would call me."

63) In <NAME> Vs. State of W.B., (2002) 7 SCC 334, this Court held that mere delay in examination of the witnesses for a few days cannot, in all cases, be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible. <CITATION> , , it was held that delay in recording the statement of the witness can occur due to various reasons and can have several explanations and that it is for the Court to assess the explanation and, if satisfied, accept the statement of the witness. The same principle has been reiterated in <CITATION> . Evaluation of Laboratory reports and examination of experts.

64) The evidence in respect of two FSL reports is as under:

By letter dated 06.07.1999, the seized material was forwarded to <ORG> for examination and expert opinion and, inter alia, the following queries were made to be opined by the <ORG> :

"5. Please examined and opine whether the two empties present in parcel mentioned at Sl No.5 have been fired from the same weapon?

6. Please examine and opine whether the bullet lead in parcel No.6 and the bullet empties in parcel No.5 have been fired from a standard five arm or a countrymade fire arm?

7. Please examine and opine whether ejector, trigger, chamber, magazine or other chamber marks are present on the live bullet empties contained in parcel Nos. 6 & 5 respectively?

8. If answer to querry No. 7 is yes then whether these marks are similar and caused by the same fire arm?" <ORG> of <ORG> gave report in respect of the queries as under:

"1) The .22" badly mutilated lead bullet (marked BC/1) of No.3 could have been fired from a standard .22" caliber firearm.

2) The two .22" cartridge cases marked C/1 and C/2 have been fired from two different .22" caliber standard firearms.

3) The .22" cartridge (marked C/3) of parcel No.5 is a live cartridge and no characteristic tool marks (i.e. firing pin, ejector, extractor, breechface, magazine or chamber marks etc.) could be observed on this cartridge.

4) The two .22" cartridge cases (marked C/1 & C/2) of parcel No.4 and the .22" cartridge (marked C/3) of parcel No.5 have similar Head Stamp of `C' indicating that they are of the same make. No opinion on their series (lot/batch) could however be given."

According to the State the same also contained inconclusive opinion. It was pointed out that the State has neither relied on the report of the expert <NAME> nor had filed it in the trial Court. An application was moved by the accused for the supply of the document and vide order dated 14.01.2000, the Metropolitan Magistrate directed that the State will have to supply all the deficient copies and also the remaining <ORG> reports sent by <ORG> to SHO. The opinion of <NAME>, Ballistic expert finally exhibited as Ex. PW 89/DB only says that "it appears that the two cartridge cases are from two different pistols." As rightly pointed out such a vague opinion of the expert can neither be relied upon nor can be any basis to come to a conclusion that there were two persons who had fired two different shots.

65) With regard to <NAME> Ballistic expert at <ORG>, Jaipur, a specific query being query No.3 that whether both the empty cartridge cases have been fired from the same firearm or otherwise. In the reply to the said query, the expert opined that no definite opinion could be given on the two .22" bore cartridge cases C-1 and C-2 in order to link with the firearm unless the suspected firearm is available to examination. It was pointed out that <ORG> puts a question to the witness and while putting the question first gives a specific fact finding that for reply to Query No. 3, the presence of the firearm was not necessary. This incorrect finding of fact given by <ORG> based on no expertise and had resulted in grave miscarriage of justice. It is well settled that while giving reports after Ballistic examination, the bullets, cartridge case and the cartridges recovered and weapon of offence recovered are carefully examined and test firing is done at the <ORG> by the said weapon of offence and then only a specific opinion is given.

66) It is contended by the learned counsel for the appellant/<NAME> that the prosecution tried their level best to suppress the report of the Ballistic expert <NAME> which was not favourable to them and that the same was exhibited at the instance of the defence as Ex. PW 89/DB. It has been further argued that while the charge sheet was filed on 03.08.1999, the police sought an expert opinion practically at the end of the investigation i.e. vide letter dated 16.07.1999, Ex. PW-89/DA. At Sl. No. 67 of the charge sheet one finds mention of the letters sent by the SHO seeking the expert opinion. The charge sheet was filed without the expert opinion. The accused on seeing Sl. No.67, approached <ORG> and asked for the expert report. It has been argued that the I.O. had received the opinion in the first week of December, 1999 but did not file the same. On 21.12.1999, the <ORG> directed the prosecution to file the report. The <ORG> objected to the same on the ground that the order required modification but the same was rejected and on 14.01.2000, the <ORG> again directed supply of the expert report. It has been argued that since the report did not favour the prosecution, the same was withheld. It has been further argued by the defence that failure on the part of the prosecution to bring on record material which is in favour of the accused is a breach of Article 21 of the Constitution. It has been argued by the defence that it was improper on the part of the prosecution to condemn a ballistic expert, i.e., <NAME> without calling him in for cross-examination. It has been further argued by the defence that by virtue of Section 293 ., the report is admissible in evidence and that the weapon is not required to show whether the two empties are fired from the same gun and the weapon is only required when one has to determine as to whether a particular weapon was responsible for firing the empties in question. The expert evidence is only good if it appeals to the judicial lines; appreciation of such evidence can only be the work of the <ORG>. Reliance has been placed on <CITATION> , AIR 1961 Calcutta 359 paras 10-14 to assert that every witness must be cross-examined before being discredited. The prosecution cannot challenge the expert at the stage of appeal when his testimony went unchallenged at the stage of the trial. 67) It has been argued that the <ORG> must lay down in clear terms the duties of a public prosecutor i.e., to tell the truth even if the same is in favour of the accused. Reliance has been placed on Rule 16 of the Bar Council of India Rules which are to the said effect. Reliance is further placed on Attorney Generals Guidelines contained in <ORG> edition 2003 to say that it is obligatory on the part of the prosecution to disclose all the material. It has been argued that even after an application under Section 391 . has been filed, the prosecution still chose not to call the expert <NAME> and cross-examine him. Ex.PW-89/DB supports PW-2 and vice versa, since his evidence is corroborated by the expert report. Attention of the <ORG> was invited to the results of the examination. As regards the 2nd opinion given by PW-95, it has been argued that this court must assume that the prosecution sought a favourable opinion from the said witness. The said witness obliged them and created confusion by saying that no conclusive opinion can be given without examining the weapon in question.

67) It was pointed out by the <ORG> that the said report of <NAME> is inadmissible in law since it is a photocopy and, therefore, does not fall within the purview of a report in terms of Section 293 of the Code. In other words, in terms of the relevant provisions of the Indian Evidence Act unless the original document is placed for the scrutiny of the <ORG>, no reliance can be placed on the photocopy without leading proper secondary evidence in this regard. In any case, both Section 293 and Section 294 of the Code which dispense with formal proof of documents under certain circumstances make it abundantly clear that the documents sought to be relied upon must be the originals. Assuming for the sake of the argument, though not admitting, that the said report of <NAME>, i.e. Ex. PW- 89/DB is admissible even though a photocopy has been placed on record and even though nowhere it has come in evidence that the same i.e. the photocopy has been compared and scrutinized with the original by the <ORG> and then placed on record, the same still looses all credence in the light of the fact that a perusal of the forwarding letter and report would show that there seems to have been some tampering with the said documents since the sequence of numbering of the parcels as between the forwarding letter and the report has been changed by somebody which fact remains unexplained as, therefore, casts a further doubt on the genuineness of the said report. The report itself with regard to query No.3 shows that "it appears that the two cartridge cases C-1 and C-2 have been fired by two different weapons". This opinion of the expert was vague and on the basis of said opinion no credence can be lent to the fact adverted to by the defence that there were two persons who fired two different shots from two different weapons. Moreover the said report is oddly silent on query No.7 of the forwarding letter wherein it was specifically asked about the various markings on the live cartridge and the bullet empties. The stand of the defence that to opine the two cartridge cases are from the same weapon or not the pistol is not required and the pistol is only required when the opinion is sought whether they are from that particular weapon or not cannot be accepted. It is well settled that when pressure is built inside the cartridge case, which results in the pushing out of the bullet from the barrel, there is difference in the marks to the extent that it may be either clear or unclear and flattened or deepened thus no opinion can be rendered on account of this dissimilarity in the absence of the weapon of offence and test firing. Further once the report of <NAME> is rendered inadmissible the two gun theory of the defence becomes wholly inadmissible and what remains is that the two empties found at the spot are .22" bore cartridges, that the live bullet found in the Tata Safari is a .22" cartridge and that the gun belonging to the appellant is a .22" bore pistol which was used for the commission of the crime of murder of <NAME>.

68) The prosecution obtained another opinion from FSL Rajasthan and the queries made are as under:

"1. Please examine and opine the bore of the two empty cartridges present in the sealed parcel.

2. Please opine whether these two empty cartridges have been fired from a pistol or a revolver.

3. Whether both the empty cartridges have been fired from the same fire arm or otherwise."

In response to these queries, the expert opinion of the <ORG>, Rajasthan is as under:

"1. The caliber of two cartridge cases (C/1 and C/2) is .22.

2. These two cartridge cases (C/1 and C/2) appear to have been fired from a pistol

3. No definite opinion could be given on two .22 cartridge cases (C/1 and C/2) in order to link with firearm unless the suspected firearm is available for examination."

It was pointed out by the <ORG> that this opinion also was inconclusive in nature. In the worksheet, it was categorically recorded that the Investigating Officer be informed to make available the suspected fire arm used for definite opinion on linking of C-1 and C-2 with the same fire arm or otherwise. The worksheet also records that the fire arm involved be sent for definite opinion. At this juncture, it is relevant to note that <ORG> posed a leading question as under:

" Q. From reply to query No.3 the presence of the fire arm was not necessary. The question was whether the two empty cartridges have been fired from one instrument or from different instruments?

Ans. The question is now clear to me. I can answer the query here and now. These two cartridge cases were examined physically and under sterio and comparison microscope to study and observe and compare the evidence and the characteristics marks present on them which have been printed during firing. After comparison, I am of the opinion that these two cartridge cases C/1 and C/2 appeared to have been fired from two different fire arms." The said witness in further cross-examination replied as under:

"There is nothing in the record of the <ORG> on my report on the basis of which I had given this finding that C/1 and C/2 were fired from two different fire arms"

The said witness in further cross-examination deposes that no photographs were taken or there is any other evidence to show the basis of opinion given by the witness before <ORG>.

69) The learned senior counsel for the appellant-accused has contended that the contention of the prosecution that the trial <ORG> could not have asked the particular <ORG> question to PW-95 is contrary to Section 165 . inasmuch as the power of Judge is very wide. It has been further argued by the defence that the duties of a Presiding officer are set out in Section 165 of the Indian Evidence Act. Reliance is sought to be placed on <CITATION> , AIR 1981 SC 1036. It has been argued that the judge knew that the issue was whether two empties were fired from the same gun. It has been further argued that the judge has seen EX. PW- 89/DB and, therefore, any judge would have noticed that the controversy was whether these two bullets were fired from the same weapon or not. The Judge also found out that this query went to the <ORG> and <ORG> answered the same. It has been argued that, therefore, the Judge knew that to answer this query weapon was not required. It has been argued that the <ORG> must read in between the lines.

70) It is pointed out by the <ORG> that the contention of the prosecution was that the trial <ORG> could not have first put a specific finding of its own opinion to the expert witness and then ask him questions. Learned Solicitor General pointed out that in the attempt of the trial <ORG> to extract the truth from the said witness, it misdirected itself in law by posing such a question. This is impermissible even as per the judgment in <NAME> (supra) relied on by the defence. This judgment is in fact in favour of the prosecution since the same clearly puts an embargo on the power of a judge to ask questions so as to frighten, coerce, confuse or intimidate the witness. The danger inherent in a judge adopting a much too stern an attitude towards witness has been duly explained in the said decision. The judge cannot ask questions which may confuse a witness. The argument that the judge knew that the issue in question was whether the two empties found on the spot were fired from the same gun is wrong and misleading. The judge knew that as per the charge framed against <NAME> it was he alone who was charged with the possession and use of a gun. The judge also knew that the first expert opinion was brought on record at the instance of the accused; the judge further knew that PW-95 had stated in no uncertain terms that no opinion can be given as regards the two empties without receipt of the weapon of offence. In spite of knowing all this, the judge first put a finding of its own to the witness that he did not need the firearm in question in order to reply as to whether the two empties were fired from the same gun i.e., a gun and not the gun. The <ORG> exceeded its power under Section 165 of the Evidence Act by putting the question after giving its own finding.

71) On behalf of the prosecution, it is pointed out that the entire argument of the accused that an expert opinion was sought at the fag end of the charge sheet to seek a favourable opinion in favour of the prosecution in fact suggests that the I.O. in question was oblivious of the fact that such an opinion could work to the detriment of the case of the prosecution i.e. two empties having been fired from the same weapon of offence belonging to accused <NAME>. The fact that the I.O. sought to mention at S.No. 67 of the list of documents in the Charge Sheet about the forwarding letter to the expert only suggests that the prosecution had no intention of carrying out the act of seeking an expert opinion, is hiding. 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 is ambiguous as it uses the term "appear" when it suggests that the two empties appear to have been fired from different weapons. Clearly the said opinion was far from conclusive and would have only created confusion in the case of the prosecution. Thereafter a second opinion was sought wherein the expert i.e. PW-95 opined that a conclusive opinion can only be given after the receipt of the weapon of offence. The argument that the weapon of offence is not required to determine whether the two bullets have been fired from the same gun is based on the wrong premise that the two empties would necessarily consist of features which would enable an expert in determining the said fact. For instance, as in the case of a handwriting expert who has to give an opinion about two different sets of near identical questioned documents and as to whether the same belong to different persons, if the argument of the accused has to be accepted then the expert should be able to give such an opinion without having in his possession the specimen handwriting and the admitted handwriting of the accused. It is stated that such an approach would render the opinion as that of a layman and not an expert. Similar would be case of a finger print expert who undertakes the process of discovering two different sets of finger print which are in question, without having the specimen or the admitted finger print of the accused in question. In other words, an expert is only an expert if he follows the well accepted guidelines to arrive at a conclusion and supports the same with logical reasoning which is a requirement of law as laid down in the Indian Evidence Act . In the present case, the moment <NAME> uses the word "appear" his opinion unsupported by reasons becomes inconclusive and stands discredited for the purpose of placing reliance on. The opinion of <NAME> was at query No.7 as to "please examine and opine whether ejector, trigger, chamber, magazine or other tool marks are present on the live bullet and the bullet empties contained in parcel Nos. 6 & 5 respectively." Though Shri <NAME> has given opinion qua query No.5 that the two .22" cartridge cases appears to have been fired from two different .22" caliber standard firearms but his opinion is completely silent on the marks i.e. ejector, trigger, chamber, magazine or other tool marks on the bullet empties (Ex. PW 89/DB). Clearly an option was available to the accused under Section 293 . to call for the witness and ascertain from his for sure that the two empties were in fact fire from two different weapons, however, the accused did not choose to do so in terms of Section 293 . In any case, the opinion of <NAME> as of today is of little use to the accused for the reasons stated above and since it is both inconclusive and unsupported by any reasoning whatsoever and, therefore, cannot appeal to the judicial mind of this <ORG>. Similar is the case with the expert opinion of PW-95 which is again inconclusive. There is no evidence on record to suggest that PW-95 gave an opinion to oblige the prosecution. On the contrary, his response to the <ORG> question reveals that he was extremely confused as to the issue which had to be addressed by him in the capacity of an expert. In the concluding part of his testimony he reaffirms the opinion given by him which is that without test firing the empties from the weapon of offence no conclusive opinion can be given.

72) It is pertinent to note that the testimony of the experts i.e., <NAME> exhibited as Ex.PW-89/DB and PW-95 Prem Sagar Minocha exhibited as Wx PW-95/C-1 in inconclusive. The expert PW-95 Prem Sagar Minocha has stated in his report that it is only on receiving the 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.

73) The defence seeks to reply upon the testimony of PW- 2 with regard to the two gun theory put forward. In this regard, the defence seeks to corroborate the said part of PW-2's testimony with the testimony of the two ballistic experts. It has also been contended by the defence that the testimony of a hostile witness must be corroborated by the other reliable evidence on record in order to be admissible. The law is very clear that where a witness for the prosecution turns hostile, the Court may rely upon so much of the testimony, which supports the case of the prosecution and is corroborated by other evidence. PW- 2's testimony as regards the identity of the person shooting, is certainly not corroborated by the testimony of the experts since both the experts have given opinions which cannot qualify as conclusive opinion of experts. Role of Public Prosecutor and his duty of disclosure:

74) It was argued by Mr. <NAME>, learned senior counsel for the appellant-<NAME> that the prosecutor had suppressed vital evidence relating to the laboratory reports which were useful for the defence in order to establish the innocence of the accused. Learned senior counsel further argued that the prosecutor had not complied with his duty thus violating fair trial and vitiating the trial itself.

75) It is thus important for us to address the role of a prosecutor, disclosure requirements if placed by the prosecutor and the role of a judge in a criminal trial.

76) A public prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a prosecutor in <CITATION> .,  as follows:

"13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in <ORG> cannot be conducted by any one other than the Public Prosecutor.

The legislature reminds the <ORG> that the policy must strictly conform to fairness in the trial of an accused in <ORG>. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the <ORG> and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the <ORG> if it comes to his knowledge, A private counsel, if allowed frees hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why <ORG> applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor."

This Court has also held that the prosecutor does not represent the investigation agencies, but the <ORG>. This Court in <CITATION> ,  held:

"22. ... A public prosecutor is an important officer of <ORG>. and is appointed by the <ORG> under the CrPC . He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation"

Therefore, a public prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused.

77) It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the prosecutor is doing his duties to the utmost level of efficiency and fair play. This <ORG>, in <CITATION> ., , has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law. It is useful to reproduce the passage in full:

They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of <ORG> to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the <ORG> has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The <ORG> cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and <ORG>s could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

44. The power of the <ORG> under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the <ORG> to examine the witness at any stage and (ii) the mandatory portion which compels the <ORG>s to examine a witness if his evidence appears to be essential to the just decision of the <ORG>. Though the discretion given to the <ORG> is very wide, the very width requires a corresponding caution. <CITATION> ,this <ORG> has observed, while considering the scope and ambit of Section 311 , that the very usage of the word such as, "any <ORG>" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the <ORG> in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code . The second part of the section does not allow any discretion but obligates and binds the <ORG> to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the <ORG> feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth.

45. It is not that in every case where the witness who had given evidence before <ORG> wants to change his mind and is prepared to speak differently, that the <ORG> concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate <ORG> with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the <ORG> can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the <ORG> can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The <ORG> can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.

46. Ultimately, as noted above, ad nauseam the duty of the <ORG> is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the <ORG> not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by <ORG>s to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case.

47. Section 391 of the Code is another salutary provision which clothes the <ORG> with the power of effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the <ORG> can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate <ORG> considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate <ORG> to call for further evidence before the appeal is disposed of. The appellate <ORG> can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a <ORG> or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.

48. The legislature intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 .

49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If <ORG> thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of <ORG>. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the <ORG> and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the <ORG> in the discharge of its judicial functions."

78) The appellants have placed heavy reliance on the position in England to argue that there is a wide duty of disclosure on the public prosecutor. It was argued that any non-disclosure of evidence, whether or not it is relied upon by the prosecution, must be made available to the defense. In the absence of this, it was argued, there would be a violation of the right to fair trial.

79) In the light of this argument, let us examine the exact nature of the duty of disclosure on the public prosecutor in ordinary cases of criminal trial. The Cr.P.C . imposes a statutory obligation on the public prosecutor to disclose certain evidence to the defense. This is brought out by sections 207 and 208 as follows:

"207. Supply to the accused of copy of police report and other documents.

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) The police report; (ii) The first information report recorded under section 154 :

(iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173 .

(iv) The confessions and statements, if any, recorded under section 164 ;

(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 :

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in court."

"208. Supply of copies of statements and documents to accused in other cases triable by court of Session. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by <ORG>, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.

(i) The statements recorded under section 200 or section 202 , or all persons examined by the Magistrate;

(ii) The statements and confessions, if any, recorded under section 161 or section 164 ;

(iii) Any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court."

"Rule 16 of the Bar Council of India Rules.

Rule 16 of the Chapter II, part VI of the Bar Council of India Rules under the Advocates Act , 1961 is as under:

16. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."

Therefore, it is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial. Mr. <NAME> argued that this duty extends beyond these provisions, and includes even that evidence which may not have been used by the prosecutor during the trial. As we have already mentioned, for this purpose, he relied upon the position in England.

80) Currently, the position in England is governed by the Criminal Procedure and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases. In <NAME> v <NAME> (Judith Theresa) (1993) 2 All E.<NAME> 577, <ORG> held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defense. Non-compliance with this duty would amount to "irregularity in the course of the trial" under Section 2(1)(a) of the Criminal Appeal Act, 1988.

81) In <NAME> v. <NAME> & <NAME>. (1993) 4 All E<NAME> 638, on which the appellants specifically relied upon, dealt with the non- disclosure of a telephonic conversation in a matter dealing with the Interception of Communications Act, 1985. The relevant material had been destroyed in pursuance of Section 6 of the same Act. In appeal, the defendants essentially argued that the non-disclosure of the contents of the call to the defense amounted to a material irregularity. The court held that it is true that the mere fact that the material was not to be used as evidence did not mean that the material was worthless, especially, when it might have been of assistance to the defendant. But at the same time, it was also held that:

"since the purpose of a warrant issued under s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under s.6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial".

Thus the position under common law is clear, i.e. subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence.

82) In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law. The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the <ORG> do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High <ORG> have monitored the investigation but again within a very limited scope. There, on the other a duty is cast upon the prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the <ORG> the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the <ORG> and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law. It is not only the responsibility of the investigating agency but as well that of the <ORG> to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society. In the case of <CITATION> . [JT 1988 (2) SC 293] it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The <ORG> have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit: implies a duty on the <ORG> to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The <ORG> is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the <ORG> Administration. The aim of criminal justice is two-fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the <ORG> and the guilty is punished in accordance with law.

83) Historically but consistently the view of this Court has been that 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 the 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. These well established principles have been stated by this Court in the case of <CITATION> . [(2007) 2 SCC (Criminal) 72], <CITATION> [(2006) 3 SCC (Criminal) 225 and <CITATION> [. <CITATION> [AIR 2009 SC 984] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to preservation of fundamental right of accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to received in accordance with law is not denied to him contrary to law.

84) It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the <ORG>. Let us examine the extent of this right of an accused in light of the statutory provisions and the manner in which the law has developed under the criminal jurisprudence. To understand this concept in its right perspective we must notice the scheme under the provisions of Section 170 to 173 of the Criminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with, information of the police and their powers to investigate. The power of the police to investigate freely and fairly is well recognized and codified in law. In terms of Section 170 , the investigating officer when satisfied that sufficient evidence or reasonable grounds exist he shall forward accused under custody to a Magistrate along with such weapons or articles which may be necessary to be produced before the <ORG>. Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal <ORG> is empowered under Section 172 (2) to send for the diaries and they could be used by the <ORG> but not as evidence in the case but to aid it in such inquiry for trial. However, Sub- section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the <ORG> uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply. Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required under this Section. Provisions of Section 173 (5) contemplates and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code . During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request. Sub-  Section 7 of the same Section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to Sub-section 5 of the Section. Section 173 (8) empowers an investigating officer to submit a further report if he is able to correct further evidence. Once this report in terms of Section 173 is received the court shall proceed with the trial of the case in accordance with law.

85) What is the significance of requiring an investigating officer/officer in charge of a police station to maintain a diary? The purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation.

86) In the case of <CITATION> , A.I.R. 1954 S.C. 51, this <ORG> stated the principle of law that the criminal court may send for the police diaries of a case under inquiry/trial in such court and may use such diaries, not as evidence in the case but to aid in such inquiry or trial. It seems to the <ORG> that the learned Judge in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The proper use of diaries he could make in terms of Section 172 . by elucidating points which need clarification. The <ORG> in this case was primarily concerned with the argument that diaries were not produced.

87) Further in the case of <CITATION> A.I.R. 1981 SC 1068 though in a writ petition this <ORG> was concerned with a question whether the documents called for by the <ORG> vide its Order dated 16th February, 1981 liable to be produced by the <ORG> or production of those documents is barred under Sections 162 & 172 of the Code and the petitioners in those cases are not entitled to see such documents. The <ORG> rejecting the contention held as under:

"It is common ground that <NAME> was directed by <ORG> under Section 3 of the Indian Police Act, 1861 to investigate into twenty four cases of blinding of under-trial prisoners where allegations were made by the under-trial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody, <NAME> through his associates carried out this investigation and submitted his reports in the discharge of the official duty entrusted to him by <ORG>. These reports clearly relate to the issue as to how, in what manner and by whom the twenty-four under-trial prisoners were blinded, for that is the matter which <NAME> was directed by <ORG> to investigate. If that be so, it is difficult to see how the <ORG> can resist the production of these reports and their use as evidence of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under Section 35 of the Indian Evidence Act."

88) In the case of <CITATION>  this <ORG> reiterated the principle that use of entries in the case diary is really of no use and is of benefit to the accused but unless the investigating officer or the <ORG> uses the entries in the case where either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 in terms of Section 145 of the Evidence Act the entries can be used by the accused as evidence. The free use thereof is not permissible under defence.

89) In case <CITATION> A.I.R. 1989 SC 144, this <ORG> clearly stated the denial to the accused of an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the <ORG> has used these entries for the purpose of contradicting such police officer cannot be said to be unreasonable. This was treated to be a very important safeguard as the <ORG> has reposed complete trust in the <ORG> which is conducting the inquiry or the trial and has empowered the <ORG> to call for these diaries therefore the right of the accused is not unfettered but in fact is limited as noticed.

90) Usefully, reference can also be made to the judgment of this <ORG> in the case of <CITATION> . A.I.R. 1995 SC 1748 wherein this <ORG> while issuing direction for requiring the State to make a general hearing in terms of Section 172 of the Code clearly stated that it was mandatory for the police officer/in charge to maintain the diary in terms of the said provision and there is jurisdiction in the criminal code to call such diaries and make use of them not as evidence but only to aid such inquiry or trial. It is generally confined to utilize the information therein as foundation for the question put to the witnesses, particularly, to the police witnesses where the police officer has used the entries to refresh his memory or if the <ORG> uses them for the purpose of contradicting such police officer then provisions of Section 161 , or 145, would be applicable. The right of the accused to cross-examine the police officer with reference to the entries in the General Diary is very much limited in extent and even that limited scope arises only when the <ORG> uses the entries for the aforestated purposes. The investigating officer has a right to refresh his memories and can refer to the general diary. The <ORG> has power to summon the case diary in exercise of its powers and for the purposes stated. The accused is vested with the power of making use of the statements recorded during investigation for the purposes of contradiction and copies thereof the accused is entitled to see in terms of Section 2 & 7 of the <CITATION>  and <CITATION> .

91) As is evident from the consistently stated principles of law, that right of the accused in relation to the police file and the general diary is a very limited one and is controlled by the provisions afore-referred. But still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a fair investigation and trial. Fairness in both these actions essentially needs to be adhered to. Under Section 170 , the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173 (5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code . The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the <ORG> is absolute and it must be adhered to by the prosecution and the <ORG> must ensure supply of documents/statements to the accused in accordance with law. Under proviso to Section 162 (1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Further, Section 91 empowers the <ORG> to summon production of any document or thing which the <ORG> considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code . Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the <ORG> for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the <ORG> has to pass a reasoned order. The liberty of an accused cannot be interfered with except under due process of law. The expression `due process of law' shall deem to include fairness in trial. The <ORG> gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused places an implied obligation upon the prosecution (prosecution and the prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in <ORG> or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. The role and obligation of the prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English System as afore-referred. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 has a material bearing on this subject and makes an interesting reading. This provision not only require or mandate that the <ORG> without delay and free of cost should furnish to the accused copies of the police report, first information report, statement, confessional statement of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173 (6) of the Code , any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Sub Section 5 of Section 173. In contradistinction to the provisions of Section 173 , where the <ORG> has used the expression `documents on which the prosecution relies' are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173 (5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170 (2) of the Code .

92) The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the <ORG>. But certain rights of the accused flow both from the codified law as well as from equitable concepts of constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207 , 243 read with the provisions of Section 173 in its entirety and power of the <ORG> under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. It will be difficult for the <ORG> to say that the accused has no right to claim copies of the documents or request the <ORG> for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bonafidely and has bearing on the case of the prosecution and in the opinion of the public prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially. The concept of disclosure and duties of the prosecutor under the English System cannot, in our opinion, be made applicable to <ORG> senso at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that 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 the 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. The accused even did not raise this issue seriously before the Trial <ORG>. Call Details:

93) The evidence of the telephone calls in the present case is admissible under Sections 8 and 27 of the Indian Evidence Act. PW-16, <NAME>, has deposed that Tel. No. 3782072 is installed at 15, BR Mehta Lane in the name of <NAME> - Ex.PW-16/C. Print out for the period 25.04.1999 to 11.05.1999 is Ex. PW-16/C-1. The evidence of PW-19 further proved that Tel. No. 4642868 was installed at Majid Chakkarawali, Mathura Road vide Ex. PW 16/D and the print out for the period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-1. PW-17, Mohd. Jaffar stated that Tel. No. 4642868 was installed at his PCO. Phone calls were made to USA from his STD Booth on 04.05.1999. Photocopy of calls made is Ex. PW-17/A. PW-16 also proved that Tel. No. 3793628 was shifted to 23, Safdarjung (Ex. PW-16/E) and print out for the period 03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is further in evidence of PW-45, <NAME>, that Tel. Nos. 660550, 660499, 705692, 741001, 741002 are installed in the various premises of Piccadilly and the same is Ex. PW- 45/B.

94) The details of the phone numbers subscribed to Piccadily group are Ex. PW 45/C and the bill printouts are 45/C were received by the police vide Ex. PW 45/D. PW- 66, Maj. AR. <NAME> has deposed that Mobile No. 9811100237, which was in the name of <NAME> and the print out of the same is exhibited PW-66/B. He also deposed that Mobile No. 9811096893 was being purchased against a cash card. The print out of the calls for the month of April, 1999 are in Ex. PW-66/D. He further proved that Mobile No. 9811068169 stood in the name of <NAME> and its print out is Ex. PW 66/C.

95) PW-32, <NAME> proved that Tel. No. 521491 was intalled at <ORG> and its print out is Ex. PW-32/B. PW-33, PV. <NAME> has corroborated the version of PW-32 and has proved that the calls were made to USA. PW-15, <NAME> stated that <ORG> Sierra No. HR-26N4348 and <ORG> Sierra MP-04-2634 were allotted to <NAME> and <NAME> respectively. Similarly Mobile Nos. 981110237 and 9811068169 were also allotted to <NAME> and <NAME> respectively. PW-51, <NAME> has stated that Te. No. 660500 was installed in the office of <NAME>. PW-39, <ORG> STD/PCO Booth Inderlok-Mittal Communication Tel. No. 5157498 is installed at this booth. Calls made remain in memory for a period of one month. Police has seized record of 04.05.1999 and 05.05.1999 in respect of Tel. No. 0017184768403 to which calls were made. Figure 00 is international access code and 171 is the code call to be made to USA. 001 is also code call for America. Print out dated 04.05.1999 is Ex. PW-39/1 and dated 05.05.1999 is Ex. PW-39/2 to 7, Seizure Memo dated 27.05.1999 is Ex. 39/A where entries Ex. PW-39/3-7 were made was present. PW-40, <NAME>, PCO/STD/ISD Booth Okhla Phase II Tel. No. 6924575 was installed on 10.05.1999. He also furnished similar details. Print out slips were seized vide Ex. PW-40.A and print out is Ex. PW-40/1-3 respectively. The testimony of PW 85, SI <NAME> also corroborates the version of the aforesaid witnesses.

96) The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harboring. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the 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 are available in Ex. PW-66/B, PW-66/D and PW-66/C.

Effect of leading question by Public Prosecutor:

97) Mr. <NAME>, learned senior counsel next contended that the Public Prosecutor in the present case had put a leading question to <NAME> regarding identification of the accused <NAME>. We verified the said question. The question put by the Public Prosecutor, was at best clarificatory, and by no stretch of imagination can be termed as a leading question favouring/eliciting an answer favouring the prosecution. The evidence of Ms. <NAME> two paragraphs prior to the leading question and two paragraphs thereafter, if read in conjunction with each other clarifies the whole scene and sequence of events. Learned senior counsel has relied upon the judgment in <CITATION> , 1993 Supp (3) SCC 745 to support his contention. The said judgment is clearly distinguishable. On the facts in that case, this Court found that the prosecutor had put leading questions, without objections by the defence, to several material and key witnesses regarding the culpability of the accused. The extent of the leading questions put, were on the facts of that case found to violate the constitutional right of a fair trial of the accused. The facts of the present appeal are wholly different. The petitioner had adequate and competent legal representation before <ORG> 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 the appellant herein by <ORG> has 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.

Efforts made to trace <NAME>:

98) It has been contended by the learned senior counsel for the appellant/<NAME> that <NAME>, friend of <NAME>, who was also present at Qutub Colonnade at the scene of offence was deliberately not examined by the Prosecution. Respondent has pointed out that <NAME> was examined during the course of investigation and his statement was recorded under Section 161 . He was also cited as a prosecution witness. During the trial summons were issued for him and it was learnt that <NAME> had left India and was residing at Hong Kong and as such could not be examined in the court. Further, it was pointed out that bare perusal of the trial Court record of the present case will clearly bring out the fallacy in the said argument of the defence. The <ORG> while filing the charge-sheet before the Magistrate had enlisted <NAME>'s name in the list of witnesses. This fact clearly shows that the prosecution had the intention to examine <NAME> as their witness. Further, the said witness was summoned by the Court for examination vide orders dated 28.11.2001, 08.02.2002, 27.11.2003 and 11.12.2003. The said sequence of events clearly show that the prosecution not only wanted to examine him as a witness, but tried serving him with the summons many times, but the same could not be achieved as <NAME> had by then shifted to Hong Kong and was not staying in India. Therefore to contend that <NAME> was deliberately not examined by the Prosecution is absolutely baseless and not founded on the basis of the record.

The conduct of Absconding:

99) From the testimony of PW-20 and PW-24, it is proved beyond reasonable doubt that accused <NAME> @ <NAME> after committing the murder of <NAME> fled away from the scene of occurrence. It is further proved from the testimony of PW-100, PW-101, PW-87 Raman Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was made for the black <ORG> Safari bearing Regn. No. CH-01-W-6535 and for <NAME> @ <NAME>, Director of <ORG> at Bhadson, Kurukshetra, Chandigarh, his farmhouse at Samalkha and Okhla Delhi. It is also proved that even after the seizure of vehicle on 02.05.1999 the search for accused <NAME> @ <NAME> continued and search was made at Piccadilly Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital where his father was subsequently admitted. However, accused <NAME> @ <NAME> was not found nor anybody informed his whereabouts and it is only on 06.05.1999 that accused <NAME> @ <NAME> surrendered at Patiala Guest House, Chandigarh in the presence of <NAME>, advocate and <NAME>. The above evidence of the witnesses clearly establishes beyond reasonable doubt that accused <NAME> absconded after committing the crime and surrendered on 06.05.1999 after extensive searches were made.

100) 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. In this regard, it is useful to refer <CITATION> AIR 1960 SC 500:-

"Circumstantial evidence in this context means a comBeenation of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.... this conduct of the accused was so knit together as to make a network of circumstances pointing only to his guilt......his methods was his own undoing; because even the long arm of coincidence could not explain the multitude of circumstances against him, and they destroyed the presumption of innocence with which law clothed him."

Thus, it has been proved beyond reasonable doubt that accused <NAME> absconded after the incident which is a very relevant conduct u/s 8 of Evidence Act . Disclosure statements of the accused persons and their admissibility u/s 27 Evidence Act :

101) PW-100 SI <NAME> and PW-101 Inspector <NAME> deposed that on the early morning of 05.05.1999 accused <NAME> @ Tony Gill was arrested and he made a voluntary disclosure vide Ex.PW 100/7 that on 29.04.1999 he had a talk with <NAME> over telephone and thereafter a telephone call was received at about 8.30 p.m. from <NAME> @ <NAME>. He has further disclosed that <NAME> came to his house in Tata Sierra car no. MP 04V 2634. He has further disclosed that he and <NAME> went to Qutub Colonnade in <NAME>'s Tata Sierra bearing No. MP-04-V-2634. Accused <NAME> surrendered on 06.05.1999 at 2.30 p.m. at Patiala Guest House, Chandigarh before Inspr. <NAME> PW-87 and ASI <NAME> After his arrest accused <NAME> had made four disclosure statements. The first was an oral disclosure made to Inspr. <NAME> wherein he said that he could recover the pistol from <NAME> at Mani Majra. However, it was pointed out that the search of the house at Chandigarh was taken and since the diary containing the address of <NAME> could not be found, no recovery could be affected.

102) On 07.05.1999, he made a disclosure to Inspr. <NAME> PW-101 which was recorded as Ex. PW 100/12. In the said disclosure, he disclosed that he was using his younger brother <NAME>'s Cellphone No. 9811096893 in making calls to his friends like <NAME>, <NAME>, <NAME> and others. He also disclosed the phone Nos. of some of the co-accused and that he handed over his cell bearing No. 9811096893 to <NAME> in Panchkula and can recover the same. Pursuant to the disclosure of <NAME> the mobile phone used by him was recovered from accused <NAME>. Vide Ex.PW 100/23.

103) The third disclosure is Ex. PW 100/ Article-1 which was video recorded on 07.05.1999 itself after the accused was produced before the Metropolitan Magistrate and copies of which were duly supplied to the accused during trial. From the disclosure Ex PW 100/ Article-1 there were further discovery of facts admissible under Section 27 of the Evidence Act. Pursuant to the disclosures of <NAME> investigations were carried out and it was that the accused were in close contact with each other over phone and accused <NAME> had made number of calls from the house of <NAME> son of DP <NAME> to his house in Chandigarh and to <NAME> at Piccadilly.

104) The fourth disclosure of accused <NAME> @ Manu Sharma was recorded by PW-101 wherein he had disclosed that <NAME> @ Titu having concealed the pistol, had gone to Manali (HP) where he met his uncle <NAME> and he very well knew the place where they concealed the pistol and that he could lead to Manali to recover the pistol used in the incident. It further came on record that calls were made to USA to <NAME>. It may not be out of place to mention that calls were exchanged between the accused and made to USA were discovered pursuant to disclosures made by the accused persons.

Test Identification Parade-Refusal:

105) The witnesses <NAME> PW-1, <NAME> PW-6, <NAME> PW-20 and <NAME> PW-24 have clearly proved beyond reasonable doubt the identification of the accused persons <NAME>, <NAME>, <NAME> and <NAME>. PW- 1 <NAME> had met <NAME> on the night of 29.04.1999 at Qutub Colonnade when <NAME> introduced himself to <NAME> and they were about to exchange visiting cards when <NAME> @ <NAME> took him away towards the cafi. Both <NAME> and <NAME> refused their TIP on 06.05.1999 and 07.05.1999 respectively before PW-79 Ld. MM <NAME> without citing any credible reason. Thereafter, photo identification was conducted in which they were duly identified by <NAME>. The said witness has also clearly identified the two of them in the Court.

106) PW-6, <NAME> has categorically stated that she identified <NAME> as the accused in the Police Station. She had seen accused in the police station on 08.05.1999 and thus the same was after 07.05.1999 when accused <NAME> refused his TIP. In cross- examination, PW-6 states that "During the first five days of May 1999, the interrogation of three of us was very intensive, and photographs were shown to us of the culprits for identification. It could be that the photograph of <NAME> had been shown to me but since I was not in good frame of mind and rather disturbed for the whole week and therefore, I do not remember whether the photograph of <NAME> was shown to me or not on 01.05.1999. It is correct that between 01.05.1999 to 05.05.1999, I had been shown the paragraph of <NAME>."

Thus she was not sure about her having been shown the photograph prior to 08.05.1999. PW-6 has nowhere stated in her testimony that photograph of <NAME> were shown to her parents. Moreover, no photographs of the other three accused were shown to her or her parents of the other accused i.e. of <NAME>, <NAME> or <NAME> as contended. Further, PW-20 has categorically identified all the four accused in the witness box and there is no cross examination of PW-20 to the effect that the photographs of the accused were shown only in the police station. Even, PW-24 has identified accused <NAME> in the court and his testimony also remains unshaken on this aspect. PW-30 has also clearly identified accused <NAME> and <NAME> in the court and the photo identification with regard to them was resorted after <NAME> @ Tony Gill had refused TIP on 06.05.1999 and <NAME> was granted anticipatory bail. That the photographs of <NAME> were taken from the Asstt. Registrar, <ORG>, PW 38 on 20.05.1999.

107) PW-2 <NAME> had left for Kolkata and thereafter, photo identification was got done when SI <NAME> PW 76 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused <NAME> though he refused to sign the same. However, in the court PW-2 <NAME> refused to recognize him. In any case, the factum of photo-identification by PW-2 as witnessed by the concerned Officer is a relevant and an admissible piece of evidence. In this regard reliance may be placed on, R vs. <NAME> (1991) 1 All ER 232. There the accused was identified by the witness in the presence of the IO who took note of the said fact, later the witness could not identify the accused in Court due to lapse of time, thus the testimony of the IO was relied upon to prove the said identification. The IO's testimony was upheld as admissible on the ground that the act of the IO was contemporaneous with the act of identification by the witness.

108) PW-78 SI <NAME> deposed "I thereafter went to Calcutta. The four photographs X1 to X4 were identified by <NAME> as those of the accused in my presence. (Objected to by <NAME>). I asked <NAME> to sign on the back of these photos but he refused to do so. Then I gave separate markings on the back of the photographs X1 to X4 and signed them. Markings and my signatures at the back of the photographs are at points A on all the four photographs. I recorded the statement of <NAME> in this regard. The photocopy of the said statement is Ex PW2/C which is in my hand and bears my signatures at point A. I correctly recorded statement of <NAME> and did not add or omit therefrom on my own. After return from Calcutta, I handed over the photographs and statement of <NAME> and other documents to SHO <NAME>".

109) PW-2 <NAME> in this regard stated, "It is correct that Delhi Police had contacted me in Calcutta at my residence but I do not remember it was on 19th May, 1999. .... ..It is correct that some photographs were shown to me by Delhi Police at Calcutta in May, 1999 at my residence"... "Police had shown me the photograph and asked me if I could identify but I did not identify any of the culprits. I was asked by the police to sign on the reverse of those four photographs but I did not sign any such photograph."

110) Mr. <NAME> next contended that identification is inherently illegal because the witnesses were not only shown the photographs but also the accused was physically shown. According to him, it was further in evidence that accused <NAME> was shown to all the three witnesses on 08.05.99 and they even admitted that it may have been on 07.05.99. It is further contended that it is not denied that the photos came in the newspaper during the prosecution. However, it was pointed out by the defence that prosecution is certainly not responsible for showing the photos. As far as refusal of TIP by accused <NAME> is concerned, there is no justification in the stand of the defence that TIP was not held due to his photo or he himself being shown to the witness. In this regard, it would be relevant to note that accused <NAME> surrendered on 06.05.99 and on 07.05.99 he was produced in muffled face before the MM Shri Rajneesh Gupta PW-79 and the proceedings thereof are recorded vide Ex PW-79/G wherein accused <NAME>'s contention for refusal of TIP is that his photograph has appeared in newspapers and his photograph has been shown to the witnesses and that he has been shown physically to the witnesses. All the three contentions of the accused <NAME> are incorrect and misconceived with regard to the appearance of the photos in the newspapers. It is submitted that vide Ex PW 101/11 to 22 the newspapers from 01.05.99 to 06.05.99 have been duly exhibited by PW-101. It was pointed out that in none of those newspapers is the photograph of accused <NAME> shown. As a matter of fact vide Ex. No. PW 101/15 photograph dated 06.05.1999 clearly shows that he is in muffled face. In the absence of any defence refusal of TIP on this ground is totally unjustified and an adverse inference ought to be drawn in this regard.

111) The next contention of the defence for refusal of TIP is that his photograph has been shown to the witnesses is also incorrect. It is not disputed that the photograph of accused <NAME> was obtained from his farmhouse located in Samalkha on the intervening night 30.04.1999 & 01.05.1999. However, it is further in evidence of PW-87 that he went to Chandigarh and he took the photograph of accused <NAME> for the purposes of identification and it was with him till 06.05.1999. Thus the photo of accused <NAME> could not have been shown to any of the witnesses because the witnesses were either in Delhi or Kolkata not in Chandigarh. The only witness who has deposed with regard to the photograph having been shown is PW-6 wherein she has stated:

"It could be that the photograph of <NAME> that had been shown to me on 01.05.1999 but since I was not in good frame of mind and rather disturbed for the whole week and therefore I do not remember whether the photograph of <NAME> was shown to me on 01.05.1999."

Her testimony on this point is clearly wavering in view of the fact that immediately after the incident she fainted and that is why her statement under Section 161 . was recorded only on 03.05.99. Moreover, it was explained that since on 02.05.99 the photograph in question was not available in Delhi itself and therefore there was no chance of showing the photograph to this witness, as on 01.05.99 she was unwell and her statement also could not be recorded and thus the issue of showing her the photograph could not arise. Further, this witness nowhere says that photographs were shown to her parents as well as being sought to be inferred by the defence. Thus refusal of TIP on this ground was unjustified by accused <NAME> in the morning of 07.05.1999. It is further submitted that after the refusal of TIP it is only thereafter that the accused <NAME> was shown to the witnesses PW-6, PW-20 and PW-24 and their statements under Section 161 . were recorded with regard to the identification of accused <NAME>. The said process of identification was necessary for the IO to be certain that this is the man that the said witnesses had witnessed/seen as the person responsible. In the light of <NAME>'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 is not justified on the ground that he has been shown to the witnesses, moreover, he was shown to the witness only after his refusal of TIP so that it is verified that he is the same person who is involved in the incident and no adverse inference on this count can be taken against the prosecution.

112) It is further pointed out that the accused <NAME> was sent to judicial custody on 15.05.1999 and the statement of witnesses continued even thereafter and thus resort to photo identification was properly taken by mixing the photograph of accused <NAME> with number of other photographs and asking the witnesses to pick up the photograph of the person they had witnessed on the fateful night and the morning thereafter i.e. 29/30.04.99. This mode of photo identification was resorted to vis-`-vis <NAME> on 24.05.1999 at Delhi, <NAME> PW-3 and <NAME> PW-4 on 29.05.99 and <NAME> on 19.05.99 at Calcutta. Thus there is no merit in the contention of the defense that the dock identification was a farce as it was done for the first time in the <ORG>.

113) It is also contended by the defence that since the photographs were shown to the witnesses this circumstance renders the whole evidence of identification in Court as inadmissible. For this, it was pointed out that photo identification or TIP before the Magistrate, are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count. It is further pointed out that photo identification is not hit by 162 Cr.P.C . as adverted to by the defense as the photographs have not been signed by the witnesses. In support of his argument the senior counsel for <NAME> relies on the judgment of <CITATION>  at page 711 wherein while dealing with Section 22 TADA the Court observed that photo TIP is bad in law. It is useful to mention that the said judgment has been distinguished in  <CITATION> ,  at page 143 where a Photo Identification has been held to be valid. The relevant extract of the said judgment is as follows:-

"10. The next circumstance highlighted by the learned counsel for the respondent is that a photo of the appellant was shown to Mr. <NAME> later and he identified that figure in the photo as the person whom he saw driving the car at the time of interception of the truck.

11. It was contended that identification by photo is inadmissible in evidence and, therefore, the same cannot be used. No legal provision has been brought to our notice, which inhibits the admissibility of such evidence. However, learned counsel invited our attention to the observations of <ORG> in <CITATION> which struck down Section 22 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. By that provision the evidence of a witness regarding identification of a proclaimed offender in a terrorist case on the basis of the photograph was given the same value as the evidence of a test identification parade. This Court observed in that context: (SCC p. 711, para 361)

361. If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspected may result. Therefore, we are inclined to strike down this provision and accordingly we strike down Section 22 of the Act.

12. In the present case prosecution does not say that they would rest with the identification made by Mr. <NAME> when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time. It must be borne in mind that the appellant is not a proclaimed offender and we are not considering the eventuality in which he would be so proclaimed. So the observations made in <NAME> in a different context is of no avail to the appellant."

Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in Court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not born out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.

114) Mr. <NAME> has further argued on the proposition that mere dock identification is no identification in the eyes of law unless corroborated by previous TIP before the Magistrate. It has been further argued that in any case, even identification in Court is not enough and that there should be something more to hold the accused liable. In support of its arguments, he placed heavy reliance on the decision of this Court in the case of <CITATION> .  and <CITATION> . . A close scrutiny of these judgments will reveal that they infact support the case of the Prosecution. These judgments make it abundantly clear that even where there is no previous TIP, the Court may appreciate the dock identification as being above-board and more than conclusive.

115) The law as it stands today is set out in the following decisions of this Court which are reproduced as hereinunder in <CITATION> . , at page 643:

"16. As was observed by this Court in <CITATION> . 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. ( <CITATION> 1973 2 SCC 406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act . It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exception, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigation agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. ( <CITATION> AIR 1958 SC 350, <CITATION> . AIR 1960 SC 1340, <NAME> Vs State of U.P.  and <NAME> vs. State of J&K )

19. <CITATION> , though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evidence. In that case it was found that the appellant and one <NAME> were absent at the time of roll call and when they were arrested on the night of 16.12.1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held: (SCC p. 481, para 4).

"In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the investigation officer ought to have held an identification parade and that the failure of <NAME> to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in <CITATION> . 17 absence of test identification is not necessarioy fatal. The fact that <NAME> did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of <NAME> am alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant."

<NAME> vs. State of M.P., (2003) 5 SCC 746 at 752 "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigation agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter fro the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."

116) Mr. <NAME> has further placed heavy reliance on two Books by foreign authors, namely, `'Proof of Guilt by Glanville Williams,' 3rd Edition and `Eye Witness Identification in Criminal Cases' by <NAME>, to urge that identification of an accused in <ORG> is a serious matter and the chances of a false identification are very high. These texts only reiterate what the various courts have held time and again. The view of the said author has been quoted by this <ORG>, the earliest judgment being <CITATION> , , at page 800:

"The evil of acquitting a guilty person light heartedly as a learned Author (<NAME> in `Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount <NAME>, that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent."

117) Learned Solicitor General submitted that, even otherwise, an adverse inference ought to be drawn against the appellants for their refusal to join the TIP. This view has found favor time and again by this Court. It is pertinent to note that it is dock identification which is a substantive piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to the case of the Prosecution. <CITATION> . 1993 Supp. (2) SCC 198, it was held that though the accused was seen by the witness in custody, any infirmity in TIP will not affect the outcome of the case, since the deposition of the witnesses in Court was reliable and could sustain a conviction. The photo identification and TIP are only aides in the investigation and does not form substantive evidence. The substantive evidence is the evidence in the court in oath.

118) The following decisions relied upon by the learned senior counsel for the appellant are clearly distinguishable from the present facts and thus are not applicable. <CITATION>  is distinguishable as there was no direct evidence on record against the accused and the prosecution's case was based on last seen evidence of accused with deceased and circumstantial evidence. The admission of witnesses in regard to showing of photographs prior to TIP was coupled with the fact that the writing of the accused did not match with the entries made in the entry register which was contrary to the case of the prosecution.

119) <CITATION> , AIR 1968 SC 938, is distinguishable as the witness whose statement was subjected to arguments as being put under pressure of prosecution and was shown photographs of the accused was infact an accomplice and her statement was also relied upon by the Court and held that her evidence is admissible.

120) <CITATION> .  is also distinguishable on facts as the accused were residing in village in the close vicinity of the village of the prosecution witness (members of house hold where dacoity was committed) and that accused and the prosecution witness had been students of the same institution was indicative of the fact that the accused were known to the prosecution witnesses while there was an omission to mention name of the accused persons in the FIR. Secondly, as it was also held that even on the premise that no prior acquaintance was there, the TIP lacked promptitude as was conducted after an unexplained delay of more than 4 months.

121) The judgment in <CITATION> , is distinguishable as the witness though admitted that he knew the two accused by face and yet he had named them while identifying them in Court, which raised element of doubt & that names of the accused were supplied to him from outside.

122) <CITATION>  is also distinguishable as the identification by the witness in court was not relied upon as the witness did not name the accused before the Police but in Court had identified and also named the accused, and as the identification was not further corroborated by either previous identification or any other evidence. While other witnesses though named the accused before the police but failed to identify him in court.

123) <CITATION> , the witness was admittedly shown the photograph of the accused before the TIP and further told to identify the tallest man in the parade, as such this TIP was discarded and in this light the dock identification of the witness was also discarded. Further according to the witness the accused was not a tall man whereas the height of the accused was more than 6 feet.

124) <CITATION> .  is not applicable on the facts of the present case in so far as the issue of photo identification is concerned. The aforesaid judgment which is sought to be relied upon by the appellant in support to their contention on the issue that absence of TIP makes the dock identification weak evidence is not applicable on the facts of the present case. In the said decision the prosecution failed to hold TIP whereas in case at hand the accused person refused TIP. The newspaper reports duly exhibited by PW 101 in the present case nowhere show photographs of the accused persons.

125) Learned senior counsel for the appellant has argued that the statement of the accused recorded under Section 313 of the Criminal Procedure Code may be treated as evidence and by doing so this <ORG> must take into consideration the stand taken by the appellant as regards his gun having been taken away by the police. In support of his argument, he relied upon the decision of this <ORG> in the case of <CITATION> , AIR 1953 SC 468. It has been further argued that the evidence of witnesses has not been put to the appellant thereby causing prejudice to the appellant. The said proposition of law is misplaced since a specific provision has been provided by way of Section 315 of the Code whereby an accused can, as a matter of right, appear as a witness on his own behalf. In the present case, the appellants exercised an option declining to do so and in such manner failed to offer any evidence to show loss/removal of his gun. Thus it cannot be urged by the defence merely in order to suit his convenience that his statement may be treated as evidence and that all facts stated therein be treated as true unless contradicted by the prosecution. While answer given by the accused to question put under Section 313 of the Code are not per se evidence because, firstly, it is not on oath and, secondly, the other party i.e., the prosecution does not get an opportunity to cross-examine the accused, it is nevertheless subject to consideration by the <ORG> to the limited extent of drawing an adverse inference against such accused for any false answers voluntarily offered by him and to provide an additional/missing link in the chain of circumstances. The judgment relied upon is of no use to the defence since the same pertains to a period where the law did not allow the accused to step into the witness box as a witness of his own innocence.

126) Regarding the contention that evidence of each witness must be put to the accused, it must be clarified that only the circumstances need to be put and not the entire testimony. It is apt to quote the following decision of this Court i.e., <CITATION> ,  at page 104:

"9. The only reason given by the learned Single Judge of <ORG> for acquitting the accused is that the evidence of PW 1 and PW 4 was not specifically put to the accused under Section 313 CrPC and it was held that in the absence of these facts in the form of questions to the accused, the evidence could not have been used against him. It is also pertinent to note in this regard that when PW 1 and PW 4 were examined as witnesses, the accused did not seriously dispute the evidence of PW 1 or PW 4. The only cross-examination was that it was incorrect to suggest that the case property was not deposited with him and he had deposed falsely. So also, the evidence of PW 4 was not challenged in the cross-examination except for a general suggestion that he had been deposing falsely and that no case property was handed over to him by PW 1 <NAME>. The accused had no case that the seal was ever tampered with by any person and that there was any case of mistaken identity as regards the sample and that the report of the chemical analyst was not of the same sample taken from the accused. Except making a general suggestion, the accused had completely admitted the evidence of PW 1 and PW 4 as regards the receipt of the sample, sealing of the same and sending it to the chemical analyst. This was pointed out only to show that the accused was not in any way prejudiced by the fact of not having been questioned by making a specific reference to the evidence of PW 1 and PW 4. As regards the questioning of the accused under Section 313 CrPC, the relevant provision is as follows:

"313. Power to examine the accused.--(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court--

(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."

10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross- examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to the accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.

15. In the instant case, the accused was not in any way prejudiced by not giving him an opportunity to answer specifically regarding the evidence of PW 1 and PW 4. If at all, the evidence of PW 1 and PW 4 was recorded in his presence, he had the opportunity to cross-examine the witnesses but he did not specifically cross-examine these two witnesses in respect of the facts deposed by them. The learned Single Judge seriously erred in holding that the evidence of PW 1 and PW 4 could not have been used against the accused. The acquittal of the accused was improper as the evidence in this case clearly established that the accused was in possession of 5 kg of opium and thereby committed the offence under Section 18 of the NDPS Act."

127) Further it is not necessary that the entire prosecution evidence need to be put to the accused and answers elicited from him/even if an omission to bring to the attention of the accused an inculpatory material has occurred that ipso facto does not vitiate the proceedings, the accused has to show failure of justice as held in <NAME> (supra) and followed in <CITATION> , (2009) 2 SCC

128) <NAME> case (supra) relied upon by the appellant is clearly distinguishable from the facts of the present case. In the said matter, the case of the prosecution was that two brothers <NAME> and <NAME> fired one shot each at the deceased who received three wounds. It was opined that three wounds which could have been from a single shot. It was the consistent stand of the <NAME> that he fired the shots (with double barrel), whose appeal was, therefore, dismissed in limine. While that of <NAME> (appellant in the said case) was that though present with a gun, he did not fire any shot (with his single barrel). That single barrel was found loaded (Article E) this fact was accepted throughout. Witnesses also saw <NAME> firing the first shot. The Court held that the fact that both the brothers absconded was given much importance by <ORG> and <ORG> but were not asked to explain it at any stage.

129) <CITATION> ,  relied upon by the appellant is also distinguishable on facts as there was no accusation specifically put in the question during examination to the accused. Adverse Inferences Against the Accused:

130) (i) False answers under Section 313 .

This Court has time and again held that where an accused furnishes false answers as regards proved facts, the 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. In this regard, the prosecution seeks to place reliance on the judgments of this Court in <NAME> vs. State of U.P., (1957) Crl.L.J. 328, <CITATION> , AIR 1994 SC 458 and <CITATION>  where this Court has drawn an adverse inference for wrong answers given by the appellant under Section 313 . In the present case, the appellant-<NAME> has, inter alia, has taken false pleas in reply to question nos. 50, 54, 55, 56, 57, 64, 65, 67, 72, 75 and 210 put to him under Section 313 of the Code.

(ii) Adverse inference qua non explanation of Pistol Appellant/Accused - <NAME> was holder of a pistol .22" bore P Berretta, made in Italy duly endorsed on his arms licence. It was his duty to have kept the same in safe custody and to explain its whereabouts. It is proved beyond reasonable doubt on record that extensive efforts were made to trace the pistol and the same could not be recovered. Moreover as per the testimony of <NAME>, PW-43, DSP/NCRB, <NAME> there is no complaint or report of the said pistol. Thus an adverse inference has to be drawn against the accused-<NAME> for non- explanation of the whereabouts of the said pistol. Similarly another plea not supported by any positive evidence led by the appellant-<NAME> is that his pistol i.e. the weapon of offence and the arms licence was recovered from his farm house on 30.04.1999, when in fact it is an established fact that the pistol could not be recovered and that the licence was surrendered on 06.05.1999 at the time of his arrest. It defies all logic and ordinary course of conduct to allege that the prosecution has withheld the pistol after seizing the same from his farmhouse. The fact that he has failed to produce the pistol, a presumption shall arise that if he has produced it, the testing of the same would have been to his prejudice. The burden thus shifts on him.

(iii) Adverse inference since no report of theft or loss of <ORG> safari CH-01-W-6535 It is the defence of the accused-<NAME> that the <ORG> Safari was taken away on 30.04.1999 from Karnal. No report or complaint of the taking away of the vehicle or the theft of the vehicle was ever lodged by the appellant/accused and hence an adverse inference has to be drawn against the accused on this count as well. Further the conduct of the appellant/accused in not taking any steps despite opportunity in reporting the alleged taking away of <ORG> Safari on 30.04.1999 and his licensed pistol on 01.05.1999 in itself is enough material to draw serious adverse inference against the accused.

(iv) Appearance of PW-2 <NAME> accompanied by <NAME>, Advocate By order dated 06.03.2000, <NAME>, advocate had appeared as proxy counsel for accused- <NAME> before the trial Court and on the same day also took copy of the report of <ORG> on behalf of accused-<NAME>. On 03.05.2001, PW-2, <NAME>, was duly accompanied by <NAME>, advocate wherein he clearly says that he has come with a lawyer for his personal security. On behalf of the <ORG>, it was contended that an adverse inference against accused- <NAME> has to be drawn for influencing the witness. It may not be out of place to mention here that PW-2, <NAME>, who is the maker of the FIR and complainant of the case, did not fully support the prosecution case though he admitted having made statement to the police and having signed the same. The stand of the <ORG> cannot be ignored, on the other hand, it is acceptable.

131) Further as per the disclosure of accused-<NAME>, the pistol was given to accused - <NAME> (PO). It has been proved by the testimony of PW- 37, <NAME> and PW-49-Inspector <NAME> that accused, <NAME> left the country by <ORG> on 04.05.1999. Accused-<NAME> surrendered on 06.05.1999 only after accused <NAME> left the country. It is pointed out by the State that calls were made from PCO, <ORG> and PCO <NAME> which have been duly proved by the testimony of PW-36, <NAME>, PW-16-<NAME>, PW-17-Mohd. Jaffar. This conduct of accused-<NAME> which is relevant and admissible under Section 8 of the Indian Evidence Act an adverse inference has to be drawn against <NAME> for this conduct.

Appeals of other accused:

132) We have already discussed the specific evidence, especially of presence at the time of incident, removal of <ORG> Safari, call details etc. as well as the evidence of PWs 30 and 101, for conviction under Section 201 read with Section 120-B  against the other two appellants, namely, <NAME> @ <NAME> and <NAME>. We are satisfied that <ORG>, on appreciation of the relevant materials, found against them and convicted accordingly. On analysis of all the materials, we agree with their conviction and sentence. Adverse remarks against prosecution and Trial Judge

133) The higher <ORG> in exercise of their appellate or original jurisdiction may find patent errors of law or fact or appreciation of evidence in the judgment which has been challenged before them. Despite this, what is of significance is that, the <ORG> should correct the error in judgment and not normally comment upon the judge. The possibility of taking a contrary view is part of the system. The judicial propriety and discipline demand that strictures or lacerating language should not be used by the higher <ORG> in exercise of their appellate or supervisory jurisdiction. Judicial discipline requires that errors of judgments should be corrected by reasons of law and practice of passing comments against the lower courts needs to be deprecated in no uncertain terms. The individuals come and go but what actually stands forever is the institution.

134) In the present case <ORG> in its judgment, on the one hand, explicitly referred to certain criticism/comments/remarks made by the trial Judge against the investigating agency, and observed that they were uncalled for and that they should have been avoided. But, on the other hand, <ORG> itself while criticizing the reasoning in the judgment under appeal made certain sweeping remarks against the trial Judge.

135) In this regard we are intentionally not referring to the criticism of appreciation of evidence in fact and on law, but are restricting ourselves to certain observations and comments which, in our humble opinion, are criticism of the Judge per se and could have been avoided easily by <ORG> of <ORG>. It is also desirable, that the language which may imply an allegation of suspicion in the performance of function of the <ORG> should be carefully examined and unless it is absolutely established on record, comments should be avoided. It will be appropriate to refer to the relevant parts of the judgment in this regard:

".............We also find the criticism against him to be a matter of meaningless hair splitting. There is a ring of truth around the deposition of PW 30 whom we find a reliable witness. <ORG>, while dealing with this witness, has, with great respect, termed him as a `planted witness'. This, we find, is not justified from material on record. The cursory manner in which the witness has been discarded shows a lack of proper appreciation of evidence. Once a reasonable explanation has been given by a witness for his presence at the spot, there was hardly any reason to stretch imagination to belie his presence. Merely, because he was assigned to deliver a DD entry to SI <NAME> which, the witness explains, he did not deliver, the explanation given is logical and ought not to have been disbelieved in this strange way of assessing the material and discarding it."

Xxxx xxxx xxxx xxxx ".........The two weapon theory appears to be a concoction to the defence and a manipulation of evidence in particular that of <NAME>, PW2 who, for the first time in court, introduced such a story. The very fact that the empties were sent for examination at such a belated stage, cannot rule out the possibility of foul play to destroy the Prosecution's case during trial. We, therefore, do not think it necessary to go into further analysis of the evidence of <NAME>."

136) Let us examine various judgments of this <ORG> which have persistently taken the view and discouraged observations or disparaging remarks by the higher <ORG>s against the other <ORG>s. In the case of <CITATION> .  the <ORG> stated the dictum that judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint , this humility of function should be constant theme of our judges. The quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is respect by the judiciary. The avoidance of even the appearance of bitterness, so important in a judge, required him not to cast aspersions on the professional conduct of the appellant and that too without an opportunity for him to meet such situation. The <ORG> set aside the disparaging remarks that had been made by the High <ORG> against the Advocate General.

137) In the case of a judicial officer approaching this Court for expunction of disparaging remarks on his conduct made by <ORG> in the matter of `K' A Judicial Officer (2001) 3 SCC 54, this Court cautioned the higher courts to use the power of superintendence with great care and circumference before making remarks on unworthy conduct of an officer, his criticism or adverse remarks in relation to judicial pronouncement should be avoided. The Court held as under:

"A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach <ORG> invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in <ORG> by virtue of its being a court of record and possessing inherent powers as also the power of superintendence. The view is settled by the law laid down in <CITATION> (1964) 2 SCR 336. However, if a similar relief is sought for against remarks or observations contained in judgment or order of <ORG> the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its jurisdiction under Articles 136 and/or 142 of the Constitution. "

138) In the case of <CITATION> .  another Bench of this Court in unambiguous terms expressed its concern about entertaining undesirable submissions against the working of an institution and adverse observations being made in the paragraphs of the judgment. The Court noticed that <ORG> had made observations and remarks about persons/constitutional bodies like <ORG> who were not before it. Proceedings of the Court normally reflect the true state of affairs. Even if it is accepted, that any such submission was made, it was not proper or necessary for the <ORG> to refer to them in the judgment to finally state that no serious note was taken of the submissions. Avoidance of such manoeuvres would have augured well with the judicial discipline. The expunction and deletion of the contents of paragraph three of the judgment except the last limb therein is ordered and it shall be always read to have not formed part of the judgment.

139) Similarly, a three Judge Bench of this Court in the case of <CITATION> . , again concerned with expunction of adverse remarks made against the Additional Sessions Judge, who was the appellant. <ORG> had observed that, ignoring of directions should imply an arrogant attitude of the learned Judge and was in breach of the canons of judicial discipline and damage the judicial system. This Court has, in several cases, deprecated the practice on the part of judges in passing strictures and in making unsavoury, undeserving, disparaging or derogatory remarks against parties, witnesses as also subordinate officers.

140) It is also worthwhile to refer to the latest judgment of this Court in the case of <CITATION> , . This Court, while considering the order of <ORG>, declining to expunge the adverse remarks against the appellant/judicial officer has observed "judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army".

Again it was pointed out, "A Judge tries to discharges his duties to the best of his capacity, however, sometimes is likely to err. It has to be noted that the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the benefits which are available in the higher courts. In those circumstances, remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings."

141) <CITATION> (1968) 1 SCR 813 the vacation Judge of <ORG> passed an interim order during vacation in a petition entertainable by <ORG>. After reopening of the Court, the matter was placed before <ORG> presided over by the Chief Justice in accordance with the High Court Rules. The learned Chief Justice made certain remarks as to "unholy haste and hurry" exhibited by the learned vacation Judge in dealing with the case. When the matter reached this Court <NAME>, observed: (SCR pp 819 F- 820A) "It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly. Such observations even about Judges of subordinate courts with the clearest evidence of impropriety are uncalled for in a judgment. When made against a colleague they are even more open to objection. We are glad that <NAME> did not associate himself with these remarks of the learned Chief Justice and was fair when he assumed that <NAME>, J. acted as he did in his anxiety todo whdat he thought was required in the interest of justice. We wish the learned Chief Justice had equally made the same assumption and had not made these observations castigating <NAME> J. for they appear to us to be without any basis. It is necessary that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible."

(emphasis supplied)

142) <CITATION>  disparaging and derogatory remarks were made by <ORG> against the State Government. When the matter came up before this Court and a complaint was made against these remarks, it was observed by this Court that the remarks were "totally unjustified and unwarranted".

<NAME>, C.J. stated: (<ORG> p.615,para 43) "43 We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must at with sobriety, moderation and restraint. They must have the humilitytorecognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice." "I have never known any judges, no difference how austere of manner, who discharged their judicial duties in an atmosphere of pure, unadulterated reason. Alas! we are "all the common growth of the Mother Earth' - even those of us who wear the long robe". (emphasis supplied) Similar was the view of <NAME>, who said: "Judges have preferences for social policies as you said and I. They form their judgments after the varying fashions in which you and I form ours. They have hands, organs, dimensions, senses, affections, passions. They are warmed by the same winter and summer and by the same ideas as a layman is".

"In the present case, however, as we have already noted in the earlier part of the judgment, whether the order passed by the appellant was correct or not, but the remarks made, strictures passed and directions issued by the learned Single Judge of <ORG> against the appellant were improper, uncalled for and unwarranted. Apart from the fact that they were neither necessary for deciding the controversy raised before the <ORG> nor an integral part of the judgment, in the facts and circumstances of the case, they were not justified. We, therefore, direct deletion of those remarks."

143) In line with the consistent view of this <ORG>, we are of the considered view that <ORG> could have avoided making such observations which directly or impliedly indicates towards impropriety in the functioning of the <ORG>, appreciation of evidence by the learned Judge and/or any other ancillary matter. The content and merit of the judgment would have remained unaffected even if such language or comments were not made against the learned trial Judge. The respect of judiciary and for the judiciary, is of paramount consideration. Every possible effort should be made and precaution taken which will help in preservation of public faith and individual dignity. A judicial consensus would require that the judgment should be set aside or affirmed as the case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system, actus curiae neminem gravabit. Despite exercise of such restraint, if, in a given case, the <ORG> finds compelling reasons for making any comments in that event it will be in consonance with the basic rule of law and adherence to the principles of natural justice that view point of the concerned learned Judge should also be invited.

144) In view of our discussion supra we direct expunction of all remarks made by the Trial Judge against the prosecution and by the Division Bench against the Trial Judge. Role of the Media and Press:

145) Mr. <NAME>, learned senior counsel for the appellant submitted that the appellant-<NAME> had been specifically targeted and maligned before and during the proceedings by the media, who proclaimed him as guilty despite even after his acquittal by <ORG>. He took us through various news items that were published in English & Hindi dailies. He elaborated that "Justice should not only be done, it should manifestly and undoubtedly be seen to be done." This common law rule can not be ignored.

146) <NAME>, one of the great Judges of <ORG> in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces. This Court has expressed a similar view in <NAME> In Re: AIR 1970 SC 1821 and <CITATION> 1988 (4) SCC 592.

147) There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the <ORG>.

148) Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

149) In the present case, certain articles and news items appearing in the newspapers immediately after the date of occurrence, did cause certain confusion in the mind of public as to the description and number of the actual assailants/suspects. It is unfortunate that trial by media did, though to a very limited extent, affect the accused, but not tantamount to a prejudice which should weigh with the <ORG> in taking any different view. The freedom of speech protected under Article 19 (1) (a) of the Constitution has to be carefully and cautiously used, so as to avoid interference in the administration of justice and leading to undesirable results in the matters sub judice before the <ORG>s.

150) A Bench of this <ORG> in the case of <CITATION> <ORG> , clearly stated it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers for the <ORG>. Media should perform the acts of journalism and not as a special agency for the <ORG>. The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt, regardless of any verdict in a <ORG> of law. This will not be fair. Even in the case of <CITATION> . , the <ORG> reiterated its earlier view that freedom of speech and expression sometimes may amount to interference with the administration of justice as the articles appearing in the media could be prejudicial, this should not be permitted.

151) 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 <CITATION> . ]. 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.

152) In the present case, various articles in the print media had appeared even during the pendency of the matter before <ORG> which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub judice.

153) Summary of our Conclusion:

1) The appellate Court has all the necessary powers to re-

evaluate the evidence let in before <ORG> as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by <ORG>. In the case on hand, <ORG> by adhering to all the ingredients and by giving cogent and adequate reasons reversed the order of acquittal.

2) The presence of the accused at the scene of crime is 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.

3) Phone calls made immediately after an incident to the police constitutes an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR. In the present case, the phone calls were vague and therefore could not be registered as the FIR. The FIR was properly lodged as per the statement of <NAME>

4) Delay in recording the statement of the witnesses do not necessarily discredit their testimonies. The court may rely on such testimonies if they are cogent and credible.

5) The laboratory reports in the present case are vague and ambiguous and, therefore, they cannot be relied upon to reach any specific conclusion regarding the incident.

6) The evidence regarding the actual incident, the testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused - <NAME>, as well as his conduct after the incident prove his guilt beyond reasonable doubt. <ORG> has analyzed all the evidence and arrived at the correct conclusion.

7) The public prosecutor is under a duty of disclosure under the Cr.P.C ., Bar Council Rules and relevant principles of common law. Nevertheless, a violation of this duty does not necessarily vitiate the entire trial. A trial would only be vitiated if non-disclosure amounts to a material irregularity and causes irreversible prejudice to the accused. In the present case, no such prejudice was caused to the accused, and therefore the trial is not vitiated.

8) 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. The right of the accused to disclosure has not received any set back in the facts and circumstances of the case.

9) <ORG> has rightly convicted the other two accused, namely, <NAME> @ <NAME> and <NAME> after appreciation of the evidence of PWs 30 and 101.

10) Normally, the judgment/order should be set aside or affirmed as the case may be but preferably without offering any undesirable comments, disparaging remarks or indications which would impinge upon the dignity and respect of judicial system.

11) Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible.

154) In the light of the above discussion, we hold that the prosecution has established its case beyond doubt against the appellants and we are in agreement with the conclusion arrived at by <ORG>, consequently, all the appeals are devoid of any merit and are accordingly dismissed.

..........................................<NAME> ..........................................J.

(<NAME>) NEW DELHI;

APRIL 19, 2010.