fake encounter infamous case c.p. shootout case judgement
TRANSCRIPT
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SC No. 68/97 1
IN THE COURT OF SH VINOD KUMAR ADDITIONALSESSIONS JUDGE NEW DELHI
Sessions Case No. 68/97
CBI Vs:1 Satyavir Singh RathiS/o Late Sh Kaley SinghR/o C26, Anand Vihar, Delhi
(Assistant Commissioner of PoliceInter State Cell Crime Branch Delhi Police)
2 Anil Kumar S/o Mahender SinghR/o B-9-T, Delhi Police ApartmentMayur Vihar, Phase I Delhi(Inspector of police, Inter State cellCrime Branch Delhi Police)
3 Ashok Rana S/o Rampal Singh RanaR/o A10 New Police Lines, GTB Nagar
Delhi(Sub inspector of police inter State CellCrime Branch Delhi Police)
4 Shiv Kumar S/o Mehar SinghR/o VPO Asauda, District Rohtak, Haryana(Head constable, No 42 C, Inter State cellCrime Branch Delhi Police)
5 Tejpal Singh s/o Zile SinghR/o 68 Police colony, Ashok Vihar, Delhi(Head constable No 14 DRP, Inter State cellCrime Branch Delhi Police)
6 Mahavir Singh S/o Chiman SinghR/o A1/13 Chankya Place, Delhi
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Head constable No 25 DRP(Inter State cellCrime Branch Delhi Police)
7 Sumer Singh S/o Rati Ram, r/o Vill. MohnaTehsil Balabgarh, Haryana(Constable No 90 DRP Inter State cellCrime Branch Delhi Police)
8 Subhash Chand s/o Chandan SinghR/oKhanpur Kala, Distt Sonipat Haryana(constale 124-C Inter State cellCrime Branch Delhi Police)
9 Sunil Kumar s/o Ved parkashR/oF41 Arya Samaj road, Uttarm Nagar, Delhi(constable No. 292/C Inter State cellCrime Branch Delhi Police)
10 Kothari Ram S/o SribhagwanR/o 2nd Battalion, Police lines, Kingsway Camp,New Delhi
(Constable No. 1681/DAP Inter State cellCrime Branch Delhi Police)
JUDGMENT
1. At the beginning of the final arguments in thepresent case I put following questions to Sh. S. K. Saxena,Ld. Special Public Prosecutor :
Would the accused personsstill be guilty if instead the twoinnocent business man, Mohd.Yaseen a desperate criminalbeen killed by the accusedpersons ?''
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2. Ld. Special Public Prosecutor answered inaffirmative and presented the prosecution case as under :
Mohd. Yassen is a desperatecriminal and was wanted by DelhiPolice in a murder case. AccusedS. S. Rathi was heading Inter StateCrime Cell in capacity of AdditionalCommissioner of Police. His teamalong with many other teams ofDelhi Police were working to
develop information about Mohd.Yaseen ( PW70 ). Inspector RamMehar ( PW15 )was also posted inthe said Inter States Cell. Witharrangement from the Airtel, hestarted hearing the conversationsof the mobile phone of Mohd.
Yaseen on a parallel line andstarted writing a diary about the
conversations of Mohd. Yaseen withany other person. From thisconversations PW15 Ram Meharcame to know that Mohd. Yaseenwould be coming to Mother Dairy,Parparganj in a blue colour Esteemcar. Accused S. S. Rathi in capacityas Assistant Commissioner ofPolice, and Incharge of Inter StateCell directed accused Anil Kumar(Inspector) to keep a watch uponthe movements of Mohd. Yaseen.Accused Inspector Anil Kumar alongwith accused HC Shiv Kumar andaccused Ct. Sumer Singh havingtheir respective fire arms with a
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wireless set of devil net left CrimeBranch Office in a private MarutiCar and at 1:25 pm they reached atMother Dairy, Parparganj Road.
They saw two young persons eatingice-cream and talking to eachother. As per the version ofinspector Anil, one of those personswas having trimmed beard and hisdescription matched with Mohd.
Yaseen (PW70). After eating theice-cream both of these persons
went on foot on the left side of theroad and thereafter crossed theroad towards right side before thered light. At the place one MarutiEsteem car of blue colour with no.UP14F-1580 was parked. Theytalked to the driver of the saidvehicle and sat in the car. Thevehicle proceeded towards
Shakarpur. Accused Inspector AnilKumar along with his staff i.e.accused HC Shiv Kumar andaccused Ct. Sumer Singh startedfollowing the Esteem car. InspectorAnil Kumar informed accused ACPS. S. Rathi that the bearded personlooks like Mohd. Yaseen and he hastwo more boys with him. Herequested more staff to followthem. Inspector Anil also informedACP S. S. Rathi that now theEsteem car was going on VikasMarg on ITO Bridge. ACP S. S.Rathi informed Inspector AnilKumar that he was also reaching
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there with the staff. At that timethe Esteem car had crossed the ITOBridge and after passing from PHQ(Police Head Quarter) on DeenDayal Upadhyay Marg, it hadreached Minto Bridge. Thereafterthe Esteem car stopped oppositeDENA Bank at outer circle,Connaught Place. One person(later on identified as Pradeep Goelthe deceased) came out of the saidcar and went inside Connaught
Place and came back aftersometime. Thereafter the beardedperson (later on identified as JagjitSingh as deceased) started drivingthe car. At that very time ACP S. S.Rathi along with his staff reached inhis official Gypsy and in one privateMaruti Car. The staff of ACP S. S.Rathi included SI A. Abbas, SI Ashok
Rana (accused), ASI Shamshuddin,HC Shiv Kishan, HC Tejpal, HCMahavir Singh, Ct. Subhash Chand,Ct. Sunil, Ct. Kothari Ram, Ct. OmNiwas and Ct. Bahadur Singh.Except Ct. Om Niwas and Ct. ShivKishan, all these officials werehaving official arms andammunitions officially supplied tothem. ACP S. S. Rathi and InspectorAnil while talking on devil net madea plan to stop this Esteem car atthe next red light. On the next redlight all the accused personsencircled the Esteem car and underthe command and supervision of
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accused ACP S. S. Rathi andInspector Anil, the accused personsfired indiscriminately on the car.
The driver of the car namely JagjitSingh (who allegedly resembledMohd. Yaseen) and Pradeep Goelsitting on the co driver seat werepulled out of the car and were shotat. Both Jagjit Singh and PradeepGoel died at the spot. Whereas thethird boy namely Tarun (PW11)sitting on the back seat of the car
ducked himself and was saved,although he was seriously injured .One PCR Van headed by ASI Om Vir(PW 13) reached at the spot andtook all the three persons to RMLHospital. By chance a fewphotographers (PW1,2,3 andPW67 ) of Statesman newspaperwere present at the spot and took
photographs of the car almostimmediately after the incident.At the same time SHO PS
Connaught Place reached at thespot and found that one pistolItalian make, two empty cartridgesand seven bullets in a magazinewere lying in the Esteem car. Onopening it was found that onebullet was stuck up in the pistol.Inspector Anil (accused) wrote acomplaint alleging that when heknocked the driver side door of theEsteem car and asked the driver tocome out, the driver of the carwithout opening the glass of his car
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fired from inside. This bullet hit Ct.Sunil Kumar (accused) at his lefthand. The driver (i.e. Jagjit Singhthe deceased) fired a few moreshots. Therefore in thesecircumstances the police party firedin self defence to immobilize theoccupants of the car. In themeantime Ct. Subhash Chand(deceased) also shouted that hehad received a bullet injury. Onemessage was sent on devil net to
Control Room, New Delhi Districtand the firing was got stopped.
This complaint was given byInspector Anil Kumar (accused) toSHO PS Connaught Place who gotan FIR no. 448 dated 31.3.1997under Section 307/186/353/34 IPCand 25/27 Arms Act, PS ConnaughtPlace. On the complaint of Dinesh
Chand Gupta the father in law ofPradeep Goyal, another FIR no453/97 was registered in PSConnaught Place. InspectorNiranjan Singh ( PW42), SHO PSConnaught Place proceeded toinvestigate the case. On 1.4.1997the case was transferred to the CBI.CBI registered RC No. 10 ( thepresentcase) on the basis of FIRNo 453/97 lodged on the complaintof Dinesh Chand Gupta and alsoregistered another case RC no. 11on the basis of FIR No. 448/97registered on the complaint ofaccused Inspector Anil. However,
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all the investigation was conductedin RC no. 10. During investigationit was found that in one photographtaken by the photographer ofStatesman Newspaper, all theglasses of Esteem car was foundbroken except the glass of thedriver seat. This proved the factthat the glass of driver side doorwas found to be intact. Hence nofire came from inside the car asalleged in the FIR at the instance of
Inspector Anil Kumar. Further morethere was no bullet marks on theleft side door of the co driver seat,however when the door wasopened there were three bulletmarks on the rim of the door. Thiscould have only be possible if thebullets were shot after opening thedoor. Further more there are many
bullet injuries on and above justabout the buttock area of PradeepGoel and one photograph showsthat Pradeep Goel was lying on theroad at a distance of about 3 or 4feet away from Esteem car.Moreover one photograph shows
Jagjit Singh lying in such a positionwith right leg entangled in the seatof the car and remaining body outof the said car. This also showsthat he was dragged out of the carand was shot at. Ld. SpecialProsecutor argued that even if thedeceased would have been Mohd.
Yaseen instead of Jagjit Singh still it
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was a cold blooded murder by thepolice officials i.e. accused personswho had already planned to killhim. It is pointed out by Ld SpecialProsecutor that investigationproves that the Italian pistol, eightcartridges and two fired cartridgeshad been planted by the accusedpersons in the Esteem car.Furthermore, at DENA Bank,accused Jagjeet Singh was sittingalone in the Esteem car and
Inspector Anil with his staff couldhave arrested him. Furthermore,none of the police officials fired atthe tyres of the Esteem car whenthey encircled the said vehicle,rather directly shot at theoccupants of the car.
CHARGE3. All the accused persons were charged u/S
302/307 read with section 120 B IPC for committing murder
of Jagjeet Singh and Pradeep Goyal and attempting to
murder Tarun.
Apart from this all the accused persons were
charged U/S 193/120-B IPC for hatching a criminal
conspiracy and planting an Italian pistol No. 3685 of 7.65
mm and one loaded live cartridge and seven other live
cartridges in Maruti Esteem Car no UP14F-1580 and thereby
fabricated false evidence against the occupants of the car.
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Alternatively, all the accused persons were
charged U/S 302/307/193 IPC read with Section 34 IPC on
the above stated allegations.
Accused Satyavir Singh Rathi and Anil Kumar
were charged U/S 211/34 IPC for lodging an FIR no 448/97,
PS Connaught Place against deceased Jagjeet Singh and
Pradeep Goyal and injured Tarun without any just cause.
A charge U/S 193 IPC was framed against accused
Satyavir Singh Rathi for sending a false report to higher
police officers regarding the shoot out taken place on
31.3.1997 at 2.30 pm at traffic signal, Barakhamba road so
that the higher police authorities could form an erroneous
opinion about the incident and the same could be used
against deceased Jagjeet Singh, Pradeep Goyal and
injured Tarun.Another charge u/s 201/34 IPC was framed
against accused Anil Kumar and Satyavir Singh Rathi
alleging that they caused the evidence of the said offence to
disappear and intentionally gave false information of the
shoot out to police authorities with intention to screen
themselves as well as the co accused persons.
A charge U/S 203/34 IPC was framed against
accused Satyavir Singh Rathi and accused Anil Kumar
alleging that despite knowing that an offence of murder was
committed by them and their co accused persons, gave a
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false information in respect of the said offence in form of FIR
no 448/97 PS Connaught Place which they knew to be false.
A charge U/S 193 IPC was framed against accused
Anil Kumar alleging that he fabricated a false entry in the
daily diary of the office about receiving an information that
movement of suspected criminal Yaseen and thereafter
used this information for lodging false complaint for
registration of FIR no 448/97, PS Connaught Place so that the
higher police authorities make an erroneous opinion and
could use the same against the occupants of Esteem Car in
question.
All the accused persons pleaded not guilty and
claimed trial .
4. Prosecution examined 74 witnesses in all . The
summary of their testimonies is given in the list of witnessesattached herewith and the same may be read as part and
parcel of this judgment.
5. Statements of all the accused persons were
recorded U/S 313 CrPC. However, they did not prefer to lead
evidence in defence.
The final arguments were heard on about 50
hearings and Ld. Counsels for defence put a spirited
defence. I take the same one by one.
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POSSESSION PRECEEDS PLANTATION
6. Sh. R. K. Naseem, adv. for accused Mahavir argued
that if prosecution wants to prove that the pistol of 7.65 bore
was planted in the car, the prosecution must prove that the
same was in possession of the accused persons. If the
prosecution has been unable to prove the possession of the
pistol in question with the accused persons, the prosecution
theory of plantation of the fire arm by the accused persons
in the Esteem car must be discarded. I disagree with the
submissions of Ld. Defence Counsel. I am of the opinion that
once the plantation of fire arm and the ammunition is proved
beyond reasonable doubt, the same leads to only one
conclusion that the said fire arm and ammunition was in
possession of the accused persons.
7. Sh. R. K. Naseem, adv. has hit the bull's eye whenhe argued that the charge framed under Section 193 IPC is
the foundation upon which the edifice of prosecution case is
built. If the charge under Section 193 IPC goes, the
prosecution case would fall to dust. The charge under
Section 193/34 IPC was framed against all the accused
persons for planting an Italian pistol no. 3685 of 7.65 mm
loaded with one live cartridge and seven live cartridges in a
match box into Maruti Esteem car no. UP14F-1580. Another
charge under Section 193 IPC was framed against accused
Satyavir Singh Rathi and accused Anil Kumar for fabricating
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false complaints in the firing report and the FIR respectively.
8. If this charge is proved, the same would lead to
the inference that accused persons had already decided and
thereby conspired to kill Mohd. Yaseen, whether he is armed
or unarmed. But if the above stated charges are not proved,
the prosecution case would fail.
9. Ld. Defence Counsels have drawn my attention to
the testimony of PW11 Tarunpreet Singh in which he had
stated that all the glasses of the driver side had broken in
the incident. This witness is the boy who was sitting on the
back seat of the Esteem car. Ld. Defence Counsels have
drawn my attention to the testimony of PW13 ASI Omvir
Singh the Incharge of the PCR Van who reached at the spot
after hearing the gun shots. He testified in cross
examination that glass pane of the driver side door of theEsteem car was found broken. PW15 Inspector Ram Mehar
also reached at the spot soon after the incident and he
testified that the glass pane of all the four doors the said car
were found broken. It is argued by Ld. Defence Counsels
that PW26 Avtar Singh is a public person who received a
bullet injury in the firing incident. He also testified in cross
examination that glasses of all the four doors of the car were
found by him to be broken. Ld. Defence Counsels argued
that while all the other police officials reached after few
minutes from the shoot out, PW26 Avtar Singh was very
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much present at the time of incident and therefore his
testimony in cross examination that all the glasses of the car
were found broken by him should be relied upon. Ld.
Defence Counsels have drawn my attention to the testimony
of PW35 Inspector Rishidev, PW37 Roop Singh the ballistic
expert from CBI, PW41 Ct. Samrat Lal, PW42 Inspector
Niranjan Singh SHO PS Connaught Place, PW54 Ct. Jaiveer,
PW57 SI Sunil Kumar and PW73 Qamar Ahmad the then DCP
Crime who have testified that all the four glasses of the
doors of the car were found broken. It is argued that there is
sole testimony of PW45 Rajiv Gupta that he saw all the
glasses of the car broken except the glass on the side of
door of the driver seat. It is argued by Ld. Defence
Counsels that in view of overwhelming evidence of so many
witnesses including PW26 Avtar Singh, who was present atthe spot at the time of incident, the testimony of PW45 Rajiv
Gupta should be rejected.
10. I disagree with Ld. Counsels for defence. The
court does not count the witnesses rather weighs
them. A truthful testimony of a single witness will
overshadow the false evidence of numerous
witnesses. Now in this case there are two sets of
witnesses. On one side there is PW45 Rajiv Gupta and on
the other side the other witnesses referred to by Ld. Defence
Counsels above. The testimony of PW45 Rajiv Gupta is
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corroborated by the photographs Ex.P1/14, EXP1/2 and
EXP1/6. These photographs were taken by PW67
Shehnawaj and PW2 Sayeed Ahmed. The photographs
show that all the glasses of the doors of the car are broken,
however the glass of the driver's side door is intact.
It is pertinent to note that as per prosecution case, all the
glasses of the car were drawn up and were closed at the
time of incident because as per the testimony of PW11
Tarunpreet Singh, the AC of the car was on. The fact that all
the glasses of the case were drawn up has also been
admitted by the accused persons. The fact that driver side
glass of the door of Esteem car was drawn up and was intact
at the time of the incident disproves the defence version
that Jagjeet Singh (the deceased and the driver of the car)
had fired many shots from inside the car through the closedwindow and drawn up glass. Had there been any firing from
inside the Esteem car, the driver side glass of the door must
have been broken. Since the photographs clearly show that
this glass was intact, it is clear that the defence of the
accused persons is false and no such firing took place from
the side of Jagjeet Singh. PW11 Tarunpreet Singh the
surviver of the shoot out specifically testifies that
Jagjeet Singh had not fired bullet. The photograph
EXP1/2 and EXP1/14 showing the driver's side glass intact
corroborates the version of PW11 Tarunpreet Singh also.
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Therefore the testimony of PW11 Tarunpreet Singh that no
bullet was fired by Jagjeet Singh and testimony of PW45
Rajiv Gupta that he found the driver's side glass intact have
been corroborated by these photographs. Therefore in view
of the well corroborated evidence on record I place reliance
on the testimony of PW11 Tarunpreet Singh that Jagjeet
Singh had not fired from inside the car. I also place reliance
on the testimony of PW45 that the driver's side glass of the
car was intact. A careful perusal of the photographs
EXPW64/13, EXPW64/14, EXPW64/15 and EXPW64/16
and EXPW64/17 showing the inside of the car would
show that whereas the splinters of glasses of all the three
doors have fallen on their respective seats, however there is
no splinter of glass on the driver's seat. The photograph
Ex.P1/6 also shows that the splinters of the broken glasseswere lying on the corresponding places on the road.
However no splinter is lying on the road which corresponds
to the driver's side door. The makes it amply clear that the
glass of the door of driver seat was intact at the time of
shooting. Although the PW11 has stated that all the glasses
of the windows of the car had broken in the incident,
however it must be born in mind that as soon as the firing by
police officers started, he ducked himself in the car
instinctively and was seriously injured and therefore it
cannot be expected that he could have seen whether all the
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glasses were broken or not.
11. There is nothing on record to suggest that Jagjeet
Singh the deceased was having a fire arm. No suggestion
has been given to this witness by the accused persons that
Jagjeet Singh was having in his possession the Italian pistol
with ammunition. In view of these circumstances, I am of
the opinion that it stands proved that Jagjeet Singh was not
having any fire arm and ammunition and he also did not fire
through the glass of the driver side. Therefore the only
inference which can be raised in the present case is that the
fire arm, cartridges and the two empty cartridges have been
planted by the accused persons in the car. Once plantation
of fire arm and the ammunition by the accused persons has
been proved, it necessarily leads to the presumption that
this weapon and the ammunition and two empty cartridgeswere already in possession of one of the accused persons,
who were involved in commission of the offence.
12. The doctrine the possession precedes plantation
as propounded by Sh. R. K. Naseem, adv. in fact goes
against the accused persons.
13. Since it stands proved that accused persons were
having possession of an Italian pistol, seven live cartridges
and two empty cartridges, which they planted in the car, this
fact shows that accused persons had already decided and
conspired that whether Mohd. Yaseen is armed or unarmed,
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he has to be killed.
WHETHER ACCUSED PERSONS ACTED IN SELF
DEFENCE
14. The Defence Counsel have raised the plea of self
defence. The circumstances mentioned above clearly show
that there was no firing from the inside of the car, therefore
the plea of self defence taken by the accused persons stands
proved false.
WHETHER ACCUSED PERSONS ARE GUILTY OF
MURDER
15. As discussed above, the accused persons had
conspired to kill Mohd. Yaseen. This court is to see whether
there is any factor which reduces the offence from murder toculpable homicide not amounting to murder. The offence in
question does not fall in Exception 1 to Section 300 IPC as
there was no grave and sudden provocation from the side of
the occupants of the car. Exception 2 of the Section is not
applicable because it is proved that accused persons had not
acted in private defence. Exception 3 deals with a situation
where a public servant acting for advancement of public
justice kills a person by exceeding his powers. In the
present case the accused persons are public servant but the
circumstances show that they had already conspired to kill
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Mohd. Yaseen. The present case could have fallen in this
exception provided the accused persons had retaliated by
exceeding their powers in response to the fire shot by
Jagjeet Singh. However the facts of the case show that in
fact no firing took place from inside the car.
16. Exception 4 envisages a situation where murder is
committed in a sudden fight in heat of passion. This is not
the case here.
17. Therefore it is clear that offence in question does
not reduce to Section 304 IPC. Accused persons had fired
upon the occupants of the Esteem car with intention to kill
Mohd. Yaseen and therefore liable to be convicted U/S 302
IPC.
MISTAKEN IDENTITY18. It is argued by Ld. Defence Counsels that it is a
case of mistaken identity. This fact is born out of the record
that the accused persons were tracing the movements of
Mohd. Yaseen a hard core criminal. PW15 Ram Mehar had
been recording the conversation of Mohd. Yaseen in his diary
( EXPW15/B). Mohd. Yaseen was dreaded criminal and he
was examined as PW70. He testified that he was using a
mobile phone no. 9810071368. This is the phone number
which was being tapped by PW15 Ram Mehar. Ld. Special
Public Prosecutor had argued that since this diary
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Ex.PW15/B has been written in the same pen and same
flow, it means that it was fabricated later on. I am of the
opinion that the court would not be swayed by imagination
and conjectures. If this diary is fabricated then prosecution
should have brought cogent evidence to prove this fact.
Therefore I am not inclined to accept this argument of Ld.
Special Public Prosecutor. It is pointed out here that Ld.
Special Public Prosecutor had drawn my attention to the
telephone numbers written in the diary and argued that the
same do not tally with the print outs of call records. Ld.
Defence Counsels had argued that in print outs one digit is
missing otherwise the number of the mobile phone is the
same. Ld. Special Public Prosecutor was requested to verify
this fact and later on Ld. Special Public Prosecutor after
verification, withdrew this submission.19. PW17 Mohd. Yaseen has testified that on
31.3.1997 i.e. the date of incident, he was at his house in
Mandoli, Parparganj. He received a call from Hafiz that he
wanted to meet him and accordingly he asked Hafiz to meet
him at 1:00 or 1:30 pm near Mother Dairy, Parparganj.
He testified that he was having a Maruti Esteem car of blue
car at that time. Hafiz came to him at 1:15 pm at the
crossing of Mother Dairy and thereafter they went away in
the said car. He also stated that the said Maruti Esteem car
was having registration of U. P. State. He also testified that
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sometimes he grows beard and sometimes he remains clean
shaven. Although, the prosecution has assailed his testimony
to the extent that it was in contradiction to his statement
U/S 161 CrPC in which he had stated that he had no Esteem
car and that he had only a blue car in which he met Hafiz at
Anand Vihar bus stand, however, if his testimony before the
court is taken to be true, it was unfortunate for the
deceased in the present case that they also came at Mother
Dairy, Parparganj and proceeded in Esteem car of blue
colour having number plate of U.P. Ofcourse, Mohd. Yaseen
a dreaded criminal was fortunate enough. I therefore agree
with Ld. Defence Counsels that it was a case of mistaken
identity.
20. Mohd. Yaseen (PW70) is a desperate criminal. In
his cross examination he admitted that he was wanted byDelhi Police in two cases of serious nature. He also admitted
that he was a convict in a murder case of Madhya Pradesh
and was undergoing a sentence for life imprisonment.
However he escaped from the custody from the court
premises with 11 other persons on 24.2.2003 at Aligarh.
21. PW73 Qamar Ahmad, the then DCP Crime testified
that Mohd. Yaseen was wanted in many cases of Delhi as
well as of Uttar Pradesh. One of the important case in which
he was wanted was abduction and murder of one Mr. Saud
Alam, who was a resident of Panchsheel Park and was
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Engineer by professor. He also testified that a reward of
Rs.50,000/- was also announced for the arrest of Mohd.
Yaseen.
22. It is argued by Ld. Defence Counsel that the
antecedents of Mohd. Yaseen show that he is a criminal of
such a nature that he would have no compunctions in firing
at the police party and the police party also presumed that
he must be having a sophisticated fire arm with his
accomplices. Ld. Defence Counsels have drawn my
attention to the testimony of PW73 that when Mohd. Yaseen
was arrested weapon was recovered from him at one time.
On subsequent arrest also he was found in possession of fire
arm and ammunition. Ld. Defence Counsels have drawn my
attention to the fact that those were the days when the
terrorism in Punjab and Delhi was at peak. Those were thedays when it was a battle of nerves and when it came
to facing hardened criminals and the terrorists, the
one who fires first would survive. It is argued that even
if it is presumed that no fire was shot from inside the car,
still considering the nature of the criminal they were
expecting to face, the police party was fully justified in firing
first on the occupants of the Esteem car.
23. The submissions of Ld. Defence Counsels would
have some substance provided there had been some inkling
that the occupant of the car was going to use a fire arm. All
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the occupants were visible through the transparent glasses
of the Esteem car. If the driver of the car takes out his
pistol, this will also show some activity on the part of the
driver. At the cost of repetition I point out that the defence
version of Jagjeet firing from inside the car has been proved
false. There is nothing on record to show that any of the
occupants of the car did any overt act prompting the police
party to fire at them. Moreover in the present case the
information was not that of a terrorist. Mohd. Yaseen was
only a hard core criminal. Inspector Anil has taken the
defence that he knocked the driver side door of Esteem car
and asked him to come out. It shows that the accused
persons were not fearing use of any fire arm from the
occupants of the car, which is apparent from the fact that
accused Inspector Anil was standing very close to the driverside door. The entry points of bullets on wind screen show
that one of the accused had fired from the front side and
therefore the occupants of the car were fully visible to the
accused persons. The Esteem car was encircled by the
accused persons having the service weapon with them. In
such circumstances a criminal howsoever dreaded he might
be would not make a mistake of firing at the police party.
Therefore I am of the opinion that arguments raised by Ld.
Defence Counsels that it was a question as to who fires first
is not tenable.
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24. Mohd. Yaseen is a desperate criminal but still he
has right to life under the Constitution of India. This right to
life can be taken away only in accordance with the due
process of law or in exercise of right of private defence or
when actual encounter takes place. There is no other
circumstance in which the accused persons can take law in
their hands.
25. Due to this evidence coming on record, I had
asked Ld. Special Public Prosecutor to argue his case
presuming that instead of Jagjeet Singh, the dreaded
criminal Mohd. Yaseen has been killed.
26. After hearing the arguments I am convinced with
the prosecution arguments that even if, instead of Jagjeet
Singh and Pradeep Goel, the wanted criminal Mohd. Yaseen
would have been killed, the accused persons would still beguilty of murder by virtue of the doctrine of '' transferred
malice'' contained in Section 301 IPC.
RIGHT OF SELF DEFENCE
27. Section 100 IPC deals with the situation when a
person can cause death of another person in exercise of his
right of private defence. As per the first clause to Section
100 IPC, the right to private defence can extend to causing
death provided there is an assault as may reasonably
cause the apprehension that death will otherwise be
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consequence of such assault.
28. Therefore, if the defence version had been proved
to be true that Jagjeet Singh fired at them, the accused
persons would have definitely got the right of private
defence to kill him. However, this defence has been found
to be false as discussed above. No other overt act by the
occupants of the Esteem car has been alleged so as to reach
a conclusion that there was some activity on part of
occupants of the car, which could be termed as ''assault''.
Therefore, the right of private defence is not available to the
accused persons.
ROOP SINGH THE BALLISTIC EXPERT
29. Ld defence counsels have strongly relied upon the
testimony of PW37 Roop Singh, Principal Scientific Officer,
CFSL. This witness had inspected the Esteem car and hadalso given his opinion in respect of the fire arms including
the planted fire arm 7.65 mm pistol and the bullets. Ld
defence counsels have drawn my attention to the following
portion of his testimony recorded on 26.11.99. I reproduce
the same as under:
''At this stage another sealed packet sealed with the sealof CFSL is opened and is found to contain one deformedfire bullet of 380. I have seen this bullet. It was examinedby me and it is EXPW37/23. In the aforesaid packetthere isanother bullet head of lead of 7.65 calibre has beenfound. It isEXPW37/24.''
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30. It is argued by Ld defence counsels that in fact
the CBI had replaced 7.65 bullet recovered from the finger
of constable Sunil (accused ) with a .38 bullet lead. It is
argued that by mistake of CBI, the 7.65 bullet remained in
the pulanda. Therefore, the presence of bullet head of lead
of 7.65 calibre in the packet opened by PW37 Roop Singh in
the court shows that in fact Jagjeet Singh had fired from
7.65 bore pistol which hit constable Sunil and constable
Subhash ( the accused persons ).
31. I have considered the submissions of Ld defence
counsels and I disagree with them. In fact PW37 Roop
Singh has deliberately introduced this bullet head
EXPW37/24 in the court while recording his evidence.
In this regard I would like to reproduce an application moved
by Ld Special Prosecutor after some time of this evidence.The same is reproduced as under:
APPLICATION ON BEHALF OF THE PROSECUTION FOR
CORRECTION OF MISTAKES IN THE RECORD OF EVIDENCE
OF PW37 SHRI ROOP SINGH, PRINCIPAL SCIENTIFIC
OFFICER, RECORDED ON NOLVEMBER 26,1999.
The applicant aforementioned respectfully
submits as under:-
1. That further statement in examination in chiefon November 26,1999 wherein some inadvertent errorsand or mistake have crept in, which requires to be
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corrected.2. That at page no. 1, line no. 1 the number of
the Maruti esteem car (UP14F-1580) have not beenmentioned.
3. That at page no. 2, line no. 9 and 10, it has beenrecorded as under:''In the aforesaid packet there is another bullethead of lead of 7.65 calibre has been found. It isEXPW37/24.''
The aforementioned bullet head was not in thepacket in which was only one bullet which has beenmarked as ExPW37/23 when the said bullet was
exhibited, Shri Vivek Singh, one of the advocaterepresenting accused S.S Rathi produced thesaidbullet head representing to the Hon'ble courtthat itwas lying on the floor. Thereupon the learneddefencecounsel enquired from the witness the calibreof the
---PAGE 2----
bullet head, whereupon the witness after examiningthe same said that it was of 7.65 calibre. The witnessatno point of time admitted or said that it was in thepacket. The bullet was recovered in parcel no. 12 markedas exhibit no. 107/97 in CFSL. It was first examinedin Biology Division.
In the aforesaid parcel no. 12 there wasonly one deformed .380 fired bullet, which was examined
by the witness and is EXPW37/23. After examinationit was put in a small envelope in which the descriptwas noted. Thereafter it was sealed in a bigger envelope
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which was sealed. On this bigger sealed envelope alsodescription of the articles is mentioned. On both theenvelopes it is mentioned that it contains one bulletof .380 calbire.4 That in the circumstance it is in the interestof justice, and also as to what actually and truthfullytranspired in the Hon'ble court, it is essential thatthe record of the evidence of pw37 recorded on November26,1999 be corrected as stated herein above.
It is therefore, humbly prayed that necessarycorrections in the record of the statement of pw37Roop Singh as stated herein above may be made so that
the record truthfully represents about the proceedingsof the Hon'ble court.
December 4,1999 (Anil Kumar Gupta)New Delhi Special Public Prosecutor
32. The above stated portion of evidence of PW37
Roop Singh was recorded on 26.11.99. It is argued by Ld
defence counsels if such an incident as alleged in the
application had happened in the court, there is no
explanation as to why Ld Special Public Prosecutor did not
point out this fact to the court on that very date. In fact he
moves an application on 6.12.99 for making the corrections
in the statement of PW37.
33. Accused S.S Rathi strongly opposed this
application by filing the following reply:
Reply to application dt. 4.12.99 of prosecutionregarding correction of alleged mistakes in therecord of evidence of PW37 Sh Roop Singh
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Sir,The respondent accd.submits , in reply to
the aforesaid application:-1. That the application of the prosecution is wrong
to the extent that the circumstance mentionedtherein is absolutely false. The praiseworthy replyis as under:
2. That the allegation in para no. 2 isdenied. There are neither any such errors normistake. The record is correct as deposed bySh Roop Singh.
3. That the allegation in para no. 3 has nol value.It is not necessary that the number of Esteemcar may be mentioned. It was recorded as deposedby the witness. Even otherwise there cannot bemistake by omission of the number of the carone and only one esteem car is involved in this.
4. That the allegations in para no.3 are falsehence totally denied, the aforesaid bullet headwas recovered from parcel no. 12 marked as
Exb. No. 107/97 in CFSL. It is denied thatit was picked up from the ground by Sh VivekSingh, one of the defence counsel. He at nostage represented to the Hon'ble court that.... Page 2....it was lying on the floor. Court recorded as correctlymade.It is an after thought and the prosecutionis trying to cover a fact detrimental tothe case, The deposition of the PW was dictated
in open court. It is not a question of mistakeof a word, but 3 sentences were dictated. Noobjection was ever raised. On the other handobjection is raised on 4th Dec. 1999 afterdue consultation of the prosecution withinvestigating agency. The prosecution should
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not be allowed to correct a loop hole lateron after one week.
It is, therefore, prayed that the recordmay not be changed, as it is correct and accordingto deposition made by Sh Roop Singh.
4.1.2000 (B.L. Kalra)Counsel
for S.S Rathi.
WHEN CAUGHT, PW 37 OFFERS SOME EXPLANATION
34. In his testimony dt. 4.1.2000, he gave explanation
as to how the 7.65 bullet head got exhibited. I reproduce
his relevant testimony as under :
'' The parcel no, 12 mentioned in my report at item no. 8was received in the CFSL vide letter no. 1574/3/10(S)/97-SIU.V/
SIC II dated 7.4.97 Mark PW37/A. The description in markPW37/A at serial no. 12 of this parcel is '' one sealed parcelcontaining bullet recovered from constable Sunil Kumar'shand and sample seal''. In CFSL it was first examined in
Biology Division. Thereafter it was received in Ballisticdepartment where I examined it. In the parcel I found onedeformed .380 fire byullet which was marked by me is BC/16.There was no other object in it. It was received in sealedcondition from Biology Department. The seal was of Dr. G.D Guptaand at that time he was SSO one Biology. At this stagethe parcel no. 12 with the seal of the court is opened. It isfound to contain one .380 deform fired bullet which is already
exhibited as PW37/23. This bullet is kept in one smallenvelope. The description has been noted on the smallenvelope and is initialled by me at point A. Parcel No. 12also contains one 7.65 mm fired bullet. When the parcel was
received by me from the Biology department this 7.65 mm bulletwas not in the parcel received by me and was not examined alsoby me.
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Q Can you explain how this 7.65 mm bullet came in parcelno. 12?
A When this parcel was opened on the earlier hearing
and at that time after .380 bullet was exhibited the otherbullet ie of 7.65 mm ( EXPW37/24) was found lying on thetable.And so in these circumstances the said 7.65 mmbullet was exhibited.
In the envelope on which India Govt. Service is printed( which was also lying in the bigger envelope ie parcel no. 12)the bullet Expw37/23 was received from Biology Department.
After examination of the bullet the same was returned to theCBI after sealing the same in bigger envelope. The bigger
envelope is mark EXPW37/B ........''
35. In view of this explanation, the prosecution did not
press his application for correction in the statement of PW37
recorded on 26.11.99.
WAS THE BULLET HEAD 7.65 BORE PRESENT IN
PARCEL NO. 12 ?
36. It is argued by Ld defence counsels that since the
prosecution did not press their application for correction in
the testimony of PW37 recorded on 26.11.99, it means that
no correction was made in the said testimony and therefore
the same should be read in evidence in favour of the
accused persons. Ld defence counsels argue that this bullet
had 7.65 bore was extracted from the finger of constable
Sunil Kumar at RML hospital by doctor Vikas Tandon.
However, this doctor was never examined by the
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prosecution although he was very much available. On
26.8.2003 prosecution examined record clerk PW69 Ram
Niwas of RML hospital and got identified the signature of Dr
Vikas Tandon on EXPW69/1 in his statement. It is argued
by Ld defence counsels that due to this reason there is no
evidence as to what bullet was extracted by the doctor and
possibility cannot be ruled out that before sending the same
to CFSL, the CBI planted one bullet of .38( which was found
in parcel no. 12) in order to falsely implicate the accused
persons. As per prosecution case, this bullet was fired from
the weapon of Tejpal Singh accused. It is argued by Ld
defence counsel that testimony of PW37 was recorded in
presence of Sh B.L. Kalra advocate, Sh KK Sood advocate
and Sh R.S Malik, advocate on behalf of accused persons
and in presence of Ld Prosecutors. It is argued that thereshould be no doubt about the fact that a bullet of 7.65 bore
was found in parcel no. 12.
37. I have considered the arguments of Ld defence
counsels. It is correct that doctor Vikas Tandon was very
much available and therefore, prosecution has erred in not
examining him. However, the faults of prosecution are many
and not only this one. At the same time this fault on part of
prosecution does not demolish the prosecution case with
regard to recovery of the bullet .38 from the hand of
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accused constable Sunil. It is admitted case of prosecution
as well as of the defence that constable Sunil received a
bullet injury and a bullet was extracted by the doctor at RML
hospital. PW32 constable Netar Singh testified that on
31.3.97, he was working at RML hospital as Duty Constable
and he received sealed packets one of which was stated to
contain a bullet taken out from the right hand of constable
Sunil during treatment. The accused persons have not
challenged this testimony. On this date the investigation
had not yet been transferred to CBI.
38. PW42 Niranjan Singh testified that during the
course of investigation, he went to RML hospital. Constable
Netarpal (PW32) produced sealed pulandas. PW42
inspector Niranjan Singh seized one pulanda containing
bullet head which was recovered from the left hand ofconstable Sunil Kumar and sample seal vide memo
EXPW29/C. PW74 inspector A.G.L Kaul, the Investigating
Officer of CBI testified that on transfer of investigation to
CBI, the investigation file and the case property seized by
local police was taken in possession by him. In his
testimony dt. 1.6.2005, PW74 testified that the case
property seized by him from the police station was in sealed
condition and seal of the same remained intact during
his possession and when he deposited the same in
malkhana. No suggestion has been given to these
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witnesses that the seals of the pulanda was tampered at
any time during their custody or during the transit to CFSL.
In view of these circumstances, even if the prosecution has
not examined Dr.Vikas Tandon, still it stands proved that the
bullet extracted from the hand of constable Vikas (accused)
reached CFSL in a pulanda with seals intact. PW37 has
testified in his explanation referred above that in parcel No.
12, there was only one deformed .380 fired bullet which
was stated to have been recovered from constable Sunil's
hand and there was no other object in it. In fact there is no
mention of 7.65 bore bullet having been examined by PW37
in his report.
39. In view of these circumstances I do not find any
substance in the argument of Ld defence counsel that
actually the bullet 7.65 bore was sent for examination byCBI. I have already discussed that this bullet was introduced
by PW37 when testifying in the court. In his testimony
dated 26.11.99, he has stated that in this packet there is
another bullet head of lead of 7.65 calibre and he exhibited
the same as EXPW37/24. Subsequently, he testified that
he exhibited the same because this bullet was lying on the
table. In his application the Public Prosecutor says that one
Sh Vivek Singh advocate pointed out that one bullet head
was lying on the floor. How PW37 could pick up the said
bullet head from the table or from the floor of the court and
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thereafter testify that the same is found in the packet
( number 12). It is clear that PW37 Roop Singh the
ballistic expert has knowingly and willfully given false
evidence and has fabricated false evidence in his
testimony by introducing and exhibiting a bullet
head of 7.65 calibre with intention that such
evidence should be used in evidence and with
intention to help the accused persons.
40. In view of the seriousness of this act, I deem it
necessary and expedient in interest of justice that this
witness should be tried summarily for giving and fabricating
false evidence. Let he be proceeded U/S 344 CrPC.
CONFLICTING DEFENCES
41. The shooting incident has not been denied by theaccused persons. In the present case accused persons have
taken conflicting defences. Accused S.S Rathi has taken the
defence that at the time of incident, his gypsy stopped at a
distance of about 25-30 metres behind the Esteem car while
the car of SI Ashok Rana was moving ahead of his Gypsy and
the said car of SI Ashok Rana ( accused ) stopped on the
right side of the blue Esteem car. He stated that from his
Gypsy he noticed that the Esteem car has been encircled by
Inspector Anil and SI Ashok Rana with some staff from their
vehicle. Seeing these police officials going towards Esteem
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car, constable Sunil and constable Kothari Ram ( both
accused persons ) got down from Gypsy and rushed towards
the car to nab Mohd Yaseen. Accused S.S Rathi stated that
the co accused persons had fired upon the occupants of the
car, while he himself was still sitting in his gypsy having no
control over the police party. Taken by surprise, he
immediately got off from Gypsy and rushed towards Esteem
car . In the meantime firing had stopped.
42. On the other hand, all other accused persons
have stated in their statements U/S 313 CrPC that accused
S.S Rathi, ACP was very much present at the spot and the
firing took place under his supervision and that they had
acted in obedience to the lawful command of their superior
ACP S.S Rathi.
43. Inspector Anil took the defence that he did not fireand his role was limited to keeping a watch upon Mohd.
Yaseen. When accused S.S Rathi directed him to stop the
Esteem car, he only knocked the door. However, when
Jagjeet Singh fired from inside the car, his staff retaliated in
self defence by firing at the occupants of the Esteem car.
DEFENCE OF ACCUSED S.S. RATHI
44. He has stated that he had instructed his staff to
arrest accused Mohd Yaseen and had never given any
command to kill him. His counsel has drawn my attention to
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the fact that accused S.S Rathi has not fired even a single
shot. It is argued by Sh R.S malik, advocate for accused S.S
Rathi that the complaint EXPW42/C written by inspector
Anil Kumar accused, only mentions that S.S. Rathi
interacted with him on devil net and made a plan to stop the
Esteem vehicle on next red light. When the said vehicle
stopped after covering some distance, he (accused Inspector
Anil) along with his staff came out of their respective
vehicles and encircled the said vehicle. There is no mention
in this complaint EXPW42/C of Inspector Anil that ACP S.S
Rathi also encircled the Esteem car. In fact, after this point
there is no mention of any role of ACP S.S Rathi in the shoot
out incident. It is argued by Ld defence counsel that this
complaint squarely proves that accused S.S Rathi has no role
in the shooting incident and that entire shooting took placeunder the command of Inspector Anil. It is argued by Ld
defence counsel that Inspector Anil had filed a suit for
damages against a T.V. channel in High court and even in
that suit, accused Inspector Anil did not mention that he was
acting under the command of ACP SS Rathi. Rather
Inspector Anil testifies in the said suit that shoot out took
place under his command. These circumstances support
the defence of the accused S.S Rathi that he is innocent.
45. Sh R.K. Naseem, advocate had argued that this
complaint of Inspector Anil, upon which the FIR was
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registered in P.S Connaught Place, has no value in eyes of
law as the same is not a substantive piece of evidence. Ld
counsel has referred to para 15 of AIR 2005 Supreme
Court 1929 in which it was held that FIR is not a
substantive piece of evidence and can only be used to
corroborate the statement of maker and to contradict him
U/S 145 of Indian Evidence Act. It can neither be used as
evidence against the maker who is facing the trial nor to
corroborate or contradict other witnesses.
46. I am of the opinion that by referring to this
complaint written by inspector Anil, accused S.S Rathi might
be shifting his guilt upon his co accused inspector Anil
Kumar. However, at the same time if anything substantial
comes out from this document in favour of accused S.S
Rathi, the said benefit cannot be withheld on a technicalground.
47. Ld counsel for accused S.S Rathi has also drawn
my attention to the firing incident report EXPW40/E
prepared by him and submitted that this report is almost
exact translation of the complaint Expw42/c written by
inspector Anil Kumar. It is argued that in none of these
documents, it is borne out that ACP S.S Rathi was present at
the spot at the time of incident. In fact, he was in his Gypsy
at some distance from Esteem car.
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48. I have carefully gone through the complaint
EXPW42/C and firing incident report EXPW40/E. The
firing incident report was prepared on 1.4.1997. This report
has been written as if he himself had seen the entire
incident. Moreover, this firing report was written by ACP S.S
Rathi after one day from the incident and he was having an
opportunity to put the entire incident as it happened
according to him. ACP S.S Rathi was a very senior officer
and he could have ordered action against the police officials
who had planted the fire arm in the Esteem car. It is
argued by Sh R.S Malik,advocate that S.S Rathi prepared
the firing report exactly on the same lines of the complaint
EXPW42/C prepared by inspector Anil Kumar. However,
accused S.S Rathi has given no explanation as to why he did
not specify in this firing incident report that his co accusedindulged in firing while he was still sitting in his Gypsy at
some distance from Esteem car.
49. The perusal of the firing report Ex.PW40/C
prepared by S. S. Rathi is at variance from the defence taken
by him in his statement under Section 313 CrPC. In this
firing report he does not mention that his security guard
commando Kothari Ram and Ct. Sunil left him in Gypsy and
ran towards the Esteem car and shot at its occupant. In this
firing report he does not state that he reached at the spot
only after the firing. Accused S. S. Rathi was writing his
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firing report in cool contemplation of the incident. Whereas
Inspector Anil had written his complaint Ex.PW42/C after a
short interval from the incident. Therefore if there was
anything missing or incorrect in the complaint of Inspector
Anil, accused S. S. Rathi was having an opportunity to write
the correct facts in his firing report.
50. It is made clear that I am not reading the
complaint of Inspector of Anil and the firing report prepared
by accused S. S. Rathi as substantive evidence. These
documents have been referred by the accused S. S. Rathi as
a part of his defence. A perusal of the firing report prepared
by S. S. Rathi does not support his version in his statement
under Section 313 CrPC that he was still sitting in his Gypsy
when the shooting incident took place.
51. It is pertinent to note that accused S. S. Rathi wasin a position to examine five witnesses in his defence. As
per his own statement under Section 313 CrPC by accused S.
S. Rathi, SI A. Abbas (who was discharged in the present
case having not fired, though armed) who was driving the
official Gypsy of S. S. Rathi as the official driver Ct. Jaiveer
was not immediately available. Apart from SI A. Abbas, SI
Shamshudin, Head constable Shrikrishna, constable
Omniwas and constable Bahadur Singh were also the eye
witnesses of the incident. They were not prosecuted in the
present case, although they were part of the team of
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accused S.S Rathi. The accused S. S. Rathi could have
examined anyone of them to prove that he was sitting in his
Gypsy and that firing incident took place without any
direction from him. It was held in AIR 1975 Supreme
Court 1703 that non examination of material defence
witnesses to prove defence version in a criminal case is the
strongest possible circumstance to discard the defence
version.
52. Ld. Counsels for remaining accused persons have
drawn my attention to the specific defence taken by them in
their statements under Section 313 CrPC that they were
acting under the command and supervision of accused S. S.
Rathi and that accused S. S. Rathi was very much present at
the spot when the incident took place. However I hold that
the statement of these accused persons cannot be read tothe disadvantage of accused S. S. Rathi.
53. Therefore, I hold that there is no force in the
defence of accused S.S Rathi.
54. Now there are following facts and circumstances
which prove that accused S. S. Rathi was present at the spot
and the firing took place under his command.
1. PW73 Qamar Ahmad, the then
DCP was informed by accused
S. S. Rathi at about 1:00/1:30
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pm telephonically that accused
Mohd. Yaseen would be visiting
Parparganj and Inspector Anil
had been detailed to keep
watch on the movement of
Mohd. Yaseen at 2:40 pm
PW73 received the information
on wireless set about the shoot
out. PW73 reached the spot
immediately and found ACP S.
S. Rathi, Inspector Anil Kumar
along with other staff at the
spot. PW13 ASI Omvir Singh
who was incharge of PCR
Gypsy which was parked justoutside the Fire Station
Building, Connaught Place
reached immediately after the
incident and found accused S.
S. Rathi at the spot.
2. PW73 testified that inter state
team headed by S. S. Rathi
was deputed to nab accused
Mohd. Yaseen. He also
testified that when ACP S. S.
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Rathi informed him on
telephone about the fact that
Inspector Anil Kumar has
sought reinforcement, PW73
directed ACP S. S. Rathi to rush
personally with staff. This
proves that accused S. S. Rathi
along with the staff reached at
the spot.
3. Accused S. S. Rathi also admits
in his statement under Section
313 CrPC that he was following
the Esteem car along with his
staff. He also admits that
commando constable KothariRam and constable Sunil were
with him in his Gypsy.
4. As per record both constable
Kothari Ram and constable
Sunil had fired upon the
occupants. As per
EXPW40/B, accused
constable Kothari Ram was
attached with S.S Rathi, ACP
as Commando constable. The
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duty of a Commando is to
remain with his officer for his
security. If the commando
Kothari Ram attached with
accused S.S Rathi and his
another member of staff
namely constable Sunil are
present at the spot and are
firing at Esteem car, it leads to
only one conclusion that
accused S.S Rathi was present
at the spot and firing took
place under his supervision and
command.
5. In his statement U/S 313CrPC he has stated that SI
A.Abbas, constable Shrikishan,
constable Omniwas were still in
the gypsy of accused S.S Rathi
when the firing took place. It is
pertinent to note that these
police officials have not fired
and therefore were not
prosecuted. If all these
persons were in gypsy with
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accused S.S Rathi when the
offence took place, they were
the best witnesses who could
have been examined to prove
the defence of accused S.S
Rathi. The failure of accused
S.S Rathi to examine these
witnesses in defence is the
strongest possible
circumstance to discredit the
defence version ( AIR 1975,
SC1703, Gajender Singh Vs
State of UP)
55. All these facts and circumstances disprove thedefence of accused S.S Rathi. I am of the opinion the
prosecution has proved beyond reasonable doubt that
although accused S.S Rathi has not fired any shot, however
the shooting by the co accused persons was done under his
supervision and command.
56. Even for a moment it is presumed that accused
S.S Rathi was still sitting in his gypsy when his subordinates
namely commando Kothari Ram and constable Sunil left his
gypsy and rushed to the spot and fired at the occupants of
Esteem car, the same could have happened only on the
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directions of accused S.S Rathi. Had they not acted under
the directions of accused S.S. Rathi, accused S.S Rathi
should have recommended action against them specially
against accused commando Kothari Ram whose duty was to
remain like a shadow of accused S.S Rathi for his protection.
In fact, the presence of accused commando constable
Kothari Ram at the spot and firing by him proves that
accused S.S Rathi was also present at the spot while firing
took place.
DEFENCE OF ACCUSED INSPECTOR ANIL KUMAR
57. Accused inspector Anil Kumar has taken the
defence that he was not acting in furtherance of common
intention alongwith his co accused persons. Sh S.P.
Ahluwalia, advocate has argued that that the duty assignedto accused inspector Anil Kumar was only to keep a watch
on Mohd Yaseen. He did not apprehend the persons ( the
deceased) at DENA Bank because they were five in number (
three were the occupants of the car and two persons were
with pradeep Goyal when he was coming out of the bank ).
Since inspector Anil Kumar was having only two more
persons namely Head constable Shiv Kumar and constable
Sumer Singh ( both the accused persons ) and he
expected that Mohd Yaseen and his accomplices must be
having fire arms, instead of attempting to arrest those
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persons, Inspector Anil asked for reinforcement.
Furthermore, since he was acting under the command of
ACP S.S Rathi, Inspector Anil would not go beyond the
instructions of his boss and that he only encircled the
Esteem car when it was so directed by ACP S.S Rathi. It is
argued by Ld defence counsel that apart from watching the
movement of Esteem car and stopping it at red light, he had
no other instructions. Although, he was having a fire arm
but he did not fire. This shows that Inspector Anil Kumar
was not sharing the common intention with his co accused
persons. He argued that all the police officials who had
fired were acting under the command of ACP SS Rathi and
were not under the command of Inspector Anil Kumar.
58. I have considered the submissions of Ld defence
counsel. Accused Inspector Anil Kumar was having theimmediate command of two accused persons namely
accused Head constable Shiv Kumar and accused constable
Sumer Singh. It is not disputed that both of them had fired
at the occupants of the Esteem car. It is not in dispute that
Head constable Shiv Kumar fired two bullets and constable
Sumer Singh fired three bullets from their respective .38
Revolvers. Accused Anil Kumar was present at the spot and
had knocked the driver side door of the Esteem car. His
defence that driver of the Esteem car fired upon them has
already been proved false. This is a circumstance which
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goes against the innocence of accused. Although, accused
Inspector Anil had not fired but the entire circumstances
discussed above prove that he was not only a privy to the
conspiracy to commit the murder in question but also he was
acting in furtherance of prosecution of the object of the
conspiracy with his co accused persons at the time of
shooting. The falsity of his defence that Jagjeet Singh the
deceased fired one shot which hit constable Sunil and a few
more shots has further substantiated the prosecution
version about his active involvement in the present crime.
DEFENCE OF ACCUSED MAHAVIR SINGH
59. Sh R.K Naseem, advocate for this accused argued
that this accused was having one .38 Revolver and had fired
only one shot. It is argued that as per prosecution case, thebullet fired from this Revolver was lodged in the body of
Jagjeet Singh. Jagjeet Singh was cremated in Kurushetra his
native place and his elder brother Didar Singh ( PW8 ) found
the said bullet from his ashes. As per prosecution case,
Didar Singh handed over this bullet lead to SI Ram Dutt
( PW49) police station City Thanesar, Kurushetra. This
bullet lead was later on handed over to CBI and on
examination by the Ballistic Expert, the same was connected
with the fire arm of accused Mahavir. It is argued by Ld
defence counsel that although PW8 Didar Singh was
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examined by the prosecution but this witness is silent about
recovery of any bullet lead from the ashes of deceased
Jagjeet Singh. Furthermore, PW24 Dr. Yashoda Rani, who
conducted postmortem of Jagjeet Singh testified that there
were two entry wounds and two exit wounds of bullets on
the body of Jagjeet Singh. She also testified in cross
examination that the x ray of the body of Jagjeet Singh was
taken but no bullet lead was found inside the body. She
also testified that after exploration of the entire body at the
time of postmortem, no bullet or its fragment was found. Ld
defence counsel argues that neither this bullet was found
lodged in the body of the deceased Jagjeet Singh nor there
is any evidence that the same was recovered from the
ashes of the deceased shows that this bullet was planted by
CBI in order to strengthen its case. Ld defence counsel hasdrawn my attention to the defence of accused Mahavir Singh
in which he stated that when the shooting incident took
place, the public started collecting around them. In order to
disperse the public, Head constable Mahavir Singh fired one
shot in air. Ld defence counsel argues that in view of the
lack of evidence about the recovery of the bullet from the
ashes of Jagjeet Singh, the defence of accused has become
worthy of credence.
60. Ld Special Prosecutor submits that due to mistake,
PW8 Didar Singh could not be examined by the prosecution
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on the point of recovery of bullet head from the ashes of
Jagjeet Singh. However he relies upon the testimony of
PW49 SI Ram Dutt. Ld Special Prosecutor argued that
sometimes the bullet gets hidden in some bone or beneath
it. Therefore, it is not uncommon that if a bullet is lodged in
the body, the same does not come to the notice of the
autopsy doctors. Regarding two entry points on the person
of Jagjeet Singh, it is argued by Ld. Special Prosecutor that it
is possible that the two bullets might have entered from the
same hole.
61. I agree with Ld Prosecutor that the bullet in
question might have escaped the attention of the autopsy
doctors.
62. PW49 SI Ram Dutt has testified that in April
1997, he was posted as ASI in police station CityThanesar. On 5.4.97, Didar Singh and Ranjeet Singh
came to police station and produce one lead piece''
chala hua sikka'' which they claimed to have
recovered from the ashes of Jagjeet Singh after his
cremation from the cremation ground on 2.4.97. They
told him that it was recovered by them on 3.4.97. The lead
piece was sealed by him in a plastic dibbi with a seal of RD
vide seizure memo EXPW49/A written by Head constable
Dharampal on his dictation. The seizure memo bears the
signature of Didar Singh and Ranjeet Singh.
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63. In his cross examination PW49 denied the
suggestion that in connivance with CBI and Niranjan
Singh, the father of deceased Jagjeet Singh, he
deliberately and wrongly prepared bogus documents
to help CBI in framing a false case. In the entire cross
examination, it was nowhere challenged by the accused that
the bullet lead was not handed over to PW 49 by PW8 Didar
Singh, the elder brother of deceased Jagjeet Singh.
Otherwise also there is no reason the disbelieve the
testimony ofPW49. The recovery memo EXPW49/A bears
the signature of PW8 Didar Singh and other relatives of the
deceased. In cross examination the accused persons have
nowhere challenged the testimony of PW49 wherein he
testified that Didar Singh told him that the said bullet lead
was recovered from the ashes of the deceased JagjeetSingh. It is argued by Ld defence counsel that this portion of
evidence of PW49 is hearsay evidence.
64. I am of the opinion that this portion of evidence
by PW49 is relevant U/S 6 of Indian Evidence Act and
therefore admissible as the utterance of Didar Singh
regarding as to from where the bullet lead was recovered is
connected with the issue as to why PW49 seized the same.
Therefore, once this testimony has not been challenged, this
court has no reason to disbelieve as to what was stated by
Didar Singh while handing over the bullet to PW49. Since
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accused persons have not challenged this part of testimony
in cross examination, there is no hitch in accepting the same
as truthful.
65. Though, the prosecution should have examined
PW8 on this point, however, the circumstances and
statement of Didar Singh made to PW49 leave me in no
doubt about the truthfulness of the prosecution story as to
how the said bullet head was recovered. I also do not find
any reason as to why Didar Singh or the CBI would fabricate
a false defence. It is not in dispute that this bullet head was
connected with the fire arm of accused Mahavir as per the
report of ballistic expert. If accused Mahavir had fired in
air, its bullet head should have been recovered from or
around the place of incident. No suggestion has been given
to PW74 Inspector Niranjan Singh that the bullet head waspicked up from the spot and was later on planted by CBI. All
these circumstances lead to only one inference that
accused Head constable Mahavir had fired the bullet upon
Jagjeet Singh and the said bullet head was recovered from
his ashes. He has also taken defence in his statement U/S
313 CrPC that there was a sudden firing from inside the car.
This defence has been proved false and therefore, this is an
additional circumstance against the accused.
66. Further more his defence that he fired in air at the
time of shooting also does not find any support from any
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document or testimony of any witness. PW26 Avtar Singh
was very much present at that time of shooting. Present
accused has not cross examined this witness on this point.
Therefore I do not find the defence of accused Mahavir to be
reliable.
DEFENCE OF REMAINING ACCUSED PERSONS.
67. All the remaining accused persons have taken the
defence that they were acting in obedience of lawful
command of accused S.S Rathi, ACP at the time of shooting.
Moreover, they fired only when the occupant of the car fired
at them. At the cost of repetition, I point out that the
defence of the accused persons that Jagjeet Singh, the
driver of Esteem car fired at the police party has been held
to be false . Moreover, the fact that one pistol along with
eight live cartridges and two fired empties were planted bythe accused persons shows the intention of the accused
persons that they had already decided to kill Mohd. Yaseen
even if he was unarmed. It is proved that accused persons
had fired upon the occupants of the Esteem car without any
overt act from the side of the occupants of the car. Although
all the accused persons were acting under the obedience of
accused SS Rathi and inspector Anil Kumar, however, in the
present case they had acted under the unlawful command of
their superiors. In fact, the falsity of defence of the accused
persons and plantation of fire arm and ammunition and two
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empty cartridges in Esteem car shows that they had already
planned to kill Mohd Yaseen. Prosecution argues that this
was done to earn out of turn promotion. It is also possible
that they had acted with a motive to rid the society from
the menace of a dreaded criminal. Whatever the motive
they had, they were under a duty to work within the legal
limitations and they had no power to commit murder even of
a dreadful criminal.
TWO EMPTY CARTRIDGES FOUND IN THE ESTEEM CAR
68. It is argued by Ld defence counsels that no charge
was framed with regard to planting of two Khokhas ( empty
cartridges) and therefore accused persons cannot be
convicted for planting these two empty cartridges in Esteem
car. In such a situation, it has to be presumed that somefiring took place from inside the car, otherwise there was no
question of finding two empty cartridges. I partly agree with
the submission of Ld defence counsels. It is correct that the
accused persons cannot be convicted for planting two empty
cartridges. However, evidence on judicial record has proved
that these two empty cartridges were found in the Esteem
car, although no firing took place from inside the car. PW45
has specifically testified that he did not see any fire arm in
the Esteem car. Therefore, the planting of two empty
cartridges in the fire arm and ammunition in the Esteem car
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stands proved. This piece of evidence can be used against
the accused persons because these two cartridges were
planted to show that actually deceased Jagjeet Singh had
fired from inside the car.
WHO PLANTED THE FIRE ARM ETC IN THE ESTEEM CAR
69. Ld defence counsel has drawn my attention to the
recovery memo of the mobile phone of Jagjeet Singh which
was handed over to PW42 Inspector Niranjan Singh, SHO PS
Connaught Place by accused SI Ashok Rana. As per the
testimony of PW42 the same was taken in possession vide
memo Ex.PW35/J and SI Ashok Rana told him that the same
was taken out by him from the Esteem Car. It is argued that
since this accused had entered the car and had taken out
the mobile phone lying in Esteem car, it was he who couldhave planted the fire arm and ammunition. I am of the
opinion that it cannot be said definitely as to which of the
accused planted the arm and ammunition in the car.
DID THE ACCUSED PERSONS PULLED OUT PRADEEP
GOYAL AND JAGJEET SINGH AND THEREAFTER SHOT
AT THEM.
70. Ld. Public Prosecutor has drawn my attention to
the photographs Ex.PW64/4, Ex.PW64/5, Ex.PW64/6 in
which no bullet mark is seen on the left side front door.
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However when this door was opened, three bullet marks
were seen on the rim (panel) of left front door. Ld. Special
Public Prosecutor has drawn my attention to the
photographs Ex.PW64/95 and Ex.PW64/126 which show
the said bullet marks. Ld. Defence Counsel has also drawn
my attention to the sketch of co driver seat which show the
five bullet marks in a row on the upper side of the back of
the co driver seat. It is further pointed out that the
deceased Pradeep Goyal received many bullet injuries on his
left buttock. It is argued that this situation could have been
possible only when deceased Pradeep Goyal would have
been pulled out from the car and was shot. Ld. Special
Public Prosecutor has drawn my attention to the
photographs Ex.P1/12 which shows the dead body of
Pradeep Goyal lying at some distance from the Esteem car.Moreover the position of Jagjeet Singh lying on the road with
one leg inside the car also shows that he could have been
pulled out and shot.
71. In order to convince myself, I had inspected the
Esteem car myself. The bullet marks on the panel of left
side front door show that the same were fired when the door
was open. Whether accused persons opened the door or
whether deceased himself opened the door cannot be
decided in view of the evidence coming on record. PW11
Tarunpreet Singh although in ducked position could have at
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least sensed that Jagjeet Singh and Pradeep Goyal were
being dragged out by the accused persons. However he
does not make any such statement in his evidence before
this court. Although the place where Pradeep Goyal
received bullet injuries and the photographs pointed out by
Ld. Special Public Prosecutor create some suspicion against
the accused persons but still the evidence on record is not
sufficient to reach to a conclusion that accused persons had
pulled out the deceased and thereafter had shot upon him.
However one thing stands proved that firing was
resorted to by one of the accused when the left side
front door of the Esteem car was open. Due to this
reason, the left side front door did not get any bullet mark
but the rim of the said door received three bullet marks. My
observations of the bullet marks on the rim/panel is that thesame could not have received any bullet mark if the said
door were closed at the time of firing.
AN AMERICAN TRIAL
72. Sh. S. P. Ahluwalia, adv. for accused Inspector Anil
has filed in the court the complete proceedings of a shoot
out case in America. The same is available on inter net. In
the said case police fired numerous shots at one person
namely Diallo and killed him. All the police officials were
acquitted on the ground that when the deceased took out a
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purse from the pocket of his pant, the accused police
officials fired at him because due to darkness, they thought
that the deceased was taking out the weapon to fire at
them. The Jury took the view that the police officials were
trained to react in split of seconds and the manner in which
the deceased acted, it was justified for those police officers
to fire at him.
73. I have carefully perused the proceedings of the
said trial. It is not known whether any appeal was filed
against the said judgement. However the reading of entire
trial point out the weaknesses and the problems of jury trial.
In India we have forsaken this type of trial for good reasons.
ENGLISH INSTANCE
74. Sh. S. P. Ahluwalia, adv. has placed before meliterature taken from the inter net. In the said case the
British police were looking for a suspect terrorist involved in
the blast in the tube train. The police officials chased one
Brazilian youth thinking him to be the terrorist and chased
him and thereafter fired at him without any provocation. It
is argued by Ld. Counsel that British Prime Minister regretted
for the incident but he made it clear that such incidents are
possible in war against terrorism. It is argued by Ld.
Defence Counsel that the police officials involved in the said
shooting were never prosecuted rather the shooting in
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question did not come in the way of promotion of those
police officers. It is argued by Ld. Counsel that at that time
(and even now) India was facing the height of terrorism and
the police officers were trained to fire in fraction of seconds.
Therefore the fire committed by the accused persons is only
due to misjudgement of whole situation. Hence they should
be acquitted.
LAW IN INDIA
75. The American and British instances pointed out by
Sh. S. P. Ahluwalia, adv. would show that in both the
instances the police officers involved in the shooting did not
plant any weapon upon the persons killed by them. Further
more, if there is any dilution of human rights in any other
country, the same cannot become precedence in India.Even at the height of terrorism in India, the law makers as
well as the judiciary have upheld the high standards set by
the Constitution of India in Article 21 which states that no
person shall be deprived of his life or personal liberty except
according to the procedure established by law. Even a
hardened criminal and a terrorist enjoys this protection. In
the present case Jagjeet Singh and Pradeep Goyal were
killed because accused persons had conspired to kill Mohd.
Yaseen.
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76. In AIR 1998 SUPREME COURT 2443 the
Supreme Court was considering the similar facts as in the
present case. Police officers had taken the defence that the
occupants of the car had fired at them and therefore they
retaliated by firing at the occupants of the car in self
defence. The ballistic report however showed that pistols
found near the dead bodies were never used as the same
were defective. Therefore the defence of the accused
persons was found to be false and Supreme Court held that
all the police personnel developed common intention to kill
and thereby upheld the conviction of the police officials
under Section 302 IPC.
INVESTIGATION OF RC NO.11.
77. It is argued by Ld. Defence Counsels that RC No.11registered on the basis of FIR No. 448/97 lodged on the
complaint of accused Inspector Anil has never been
investigated nor the same has been cancelled. Till the said
case is cancelled and the same is accepted by Magistrate, it
cannot be said that the defence of accused persons has
been rejected by investigation. I disagree with the
submissions of Ld. Defence Counsels. In the present case
Investigating Officer has jointly investigated RC No.10 and
RC No.11 because the facts of the case are based on the
same incident. Since accused have been prosecuted in RC