Satyavir Singh Rathi Vs. State THR. C.B.I.
J U D G M E N T
HARJIT SINGH BEDI, J.
This judgment will dispose of Criminal Appeal Nos.2231 of 2009, 2476 of 2009 and 2477-2484 of 2009. The facts have been taken from Criminal Appeal No. 2231 of 2009 (Satyavir Singh Rathi vs. State thr. C.B.I.). On the 31st March 1997 Jagjit Singh and Tarunpreet Singh PW-11 both hailing from Kurukshetra in the State of Haryana came to Delhi to meet Pradeep Goyal in his office situated near the Mother Dairy Booth in Patparganj, Delhi.
They reached the office premises between 12.00 noon and 1.00 p.m. but found that Pradeep Goyal was not present and the office was locked. Jagjit Singh thereupon contacted Pradeep Goyal on his Mobile Phone and was told by the latter that he would be reaching the office within a short time. Jagjit Singh and Tarunpreet Singh, in the meanwhile, decided to have their lunch and after buying some ice-cream from the Mother Dairy Booth, waited for Pradeep Goyal's arrival. Pradeep Goyal reached his office at about 1.30 p.m. but told Jagjit Singh and Tarunpreet Singh that as he had some work at the Branch of the Dena Bank in Connaught Place, they should accompany him to that place.
The three accordingly left for the Bank in the blue Maruti Esteem Car bearing No. UP-14F-1580 belonging to Pradeep Goyal. Mohd. Yaseen, a hardcore criminal, and wanted by the Delhi Police and the police of other States as well, in several serious criminal cases, was being tracked by the Inter-State Cell of the Crime Branch of the Delhi Police and in the process of gathering information of his movements, his telephone calls were being monitored and traced by PW-15 Inspector Ram Mehar.
The appellant Satyavir Singh Rathi, Assistant Commissioner of Police and the In-Charge of the Inter-State Cell, received information that Mohd. Yaseen would be visiting a place near the Mother Dairy, Patparganj, Delhi at about 1.30 p.m. on the 31st March 1997. Inspector Anil Kumar (appellant in Criminal Appeal No.2484 of 2009) of the Crime Branch was accordingly detailed by ACP Rathi to keep a watch near the Mother Dairy Booth in Patparganj and he was actually present at that place when Tarunpreet Singh and Jagjit Singh met Pradeep Goyal in his office. Jagjit Singh who was a cut haired Sikh (without a turban though he sported a beard) was mistaken for Mohd. Yaseen by Inspector Anil Kumar.
As the Inspector was, at that stage, accompanied only by two police officials, Head Constable Shiv Kumar and Constable Sumer Singh, he called for reinforcements from ACP Rathi who was at that time present in his office in Chanakayapuri. On receiving the call, ACP Rathi briefed the staff in his office and told them that two young persons had been spotted near the Mother Dairy Booth in Patparganj and that one of them, a bearded young man, resembled Mohd. Yaseen, the wanted criminal. The ACP, along with a police party consisting in all of 12 persons, left the Inter-State Cell office at 1.32 p.m. to assist the police team led by Inspector Anil Kumar. As per the record, barring Head Constable Srikrishna and Constable Om Niwas, all the officials, including ACP Satyavir Singh Rathi were armed with service weapons.
The police officials and the weapons they were carrying are given hereunder:(i) ACP Satyavir Singh Rathi 9 MM Pistol No.0592(ii) Insp. Anil Kumar .38 Revolver No.1147(iii) SI Ashok Rana .38 Revolver No.1139(iv) SI A Abbas .38 Revolver No.1114(v) ASI Shamsuddin .38 Revolver No.1112(vi) HC ShivKumar .38 Revolver No.1148(vii) HC Mahavir Singh .38 Revolver No. 0518(viii) HC Tej Pal .38 Revolver No.1137(ix) Ct.Sunil Kumar SAF carbine(x) Ct. Subhash Chand .38 Revolver No.1891(xi) Ct. Kothari Ram AK-47 No.5418 (xii) Ct. Bahadur Singh AK-47 No. 2299(xiii) Ct. Sumer Singh .38 Revolver No.1906 In the meanwhile, the Maruti Esteem car, which had been followed by Inspector Anil Kumar and the other two officials with him, stopped at the Dena Bank at 2.00 p.m. Pradeep Goyal then got down from the car, leaving Jagjit Singh and Tarunpreet Singh behind. Jagjit Singh, however, on the request of Pradeep Goyal, occupied the driver's seat so that the car was not towed away by the police. Pradeep Goyal then went on to the Dena Bank where two of his employees Vikram and Rajiv were waiting for him outside the Bank.
The three then went inside the Bank whereafter Vikram returned to the car to pick up a briefcase belonging to Pradeep Goyal. Tarunpreet Singh also accompanied Vikram to the Bank while Jagjit Singh continued to sit alone in the driver's seat. Pradeep Goyal came out from the Bank at about 2.30 p.m. and after giving instructions to his employees, sat in the Esteem car on the front left seat whereas Tarunpreet Singh got into the rear seat. The car driven by Jagjit Singh thereafter moved on towards Barakhamba Road. As the car halted at the red light on Barakhamba Road, the two police parties, one headed by ACP Satyavir Singh Rathi and other by Inspector Anil Kumar, joined forces. The car was immediately surrounded by the police officials who fired from almost all sides killing Pradeep Goyal and Jagjit Singh instantaneously and causing grievous injuries to Tarunpreet Singh.
The three occupants were removed to the RML Hospital in a Police Control Room Gypsy, but Pradeep Goyal and Jagjit Singh were declared dead on arrival. On receiving information with regard to the shootout, Inspector Niranjan Singh- PW 42, the SHO of Police Station, Connaught Place, New Delhi, rushed to the place of incident followed by senior police officials, including the DCP. On an inspection of the car, Inspector Niranjan Singh PW recovered a 7.65 mm pistol loaded with 7 live cartridges in the magazine, a misfired cartridge in the breech and two spent cartridge cases of 7.65 mm bore from inside the car. These items were taken into possession.
Inspector Anil Kumar also handed over a written complaint with regard to the incident to Inspector Niranjan Singh, who in turn sent the same to the Police Station with his endorsement, and an FIR No. 448/97 dated 31st March 1997 under Sections 186/353/307 of the IPC and Section 25 of the Arms Act was registered against the occupants of the Car. In the complaint, Inspector Anil Kumar recorded that after the Car had stopped at the red light, it had been surrounded by the police and that he had thereafter knocked at the driver's window asking the occupants to come out but instead of doing so, Jagjit Singh had started firing at the police party from inside the car resulting in gun shot injuries to Constables Sunil Kumar and Subhash Chand and that it was thereafter that the police personnel had opened fire at the car in self defence with a view to immobilizing the occupants and to prevent their escape. The incident, however, sparked a huge public outcry. The very next day Dinesh Chand Gupta, father-in-law of Pradeep Goyal, made a complaint to the Lt. Governor, Delhi on which another FIR No. 453/97 was registered at Police Station Connaught Place, New Delhi against the police personnel involved in the shootout for an offence punishable under Section 302/34 of the IPC.
In the complaint, it was alleged that the police officials had surrounded the car and had fired indiscriminately and without cause, at the occupants killing the two and causing grievous injuries to the third. The initial investigation with regard to the incident was carried out by Inspector Niranjan Singh but pursuant to the orders of the Government of India made on the 1st April of 1997 the investigation was handed over to the Central Bureau of Investigation (hereinafter called the CBI) and the two FIRs were amalgamated for the purpose of investigation. The CBI, on investigation, came to the conclusion that the police party headed by ACP Satyavir Singh Rathi and Inspector Anil Kumar had fired on the Maruti Esteem car without provocation and that FIR No. 448/97 dated 31st March 1997, registered on the complaint of Inspector Anil Kumar, was intended to act as a cover-up for the incident and to justify the police action. The CBI accordingly found that no shot had been fired from inside the car by Jagjit Singh, as alleged, and that the claim in this FIR that two police officials, who were a part of the police party, had sustained gun shot injuries as a result of firing from the Car, was false.
The investigation also found that the 7.65 MM pistol and cartridges allegedly recovered from inside the car had actually been planted therein by members of the police party with a view to creating a defence and screening themselves from prosecution. As a result of the investigation made in both the FIRs, a charge sheet was filed before the Chief Metropolitan Magistrate on the 13th June 1997. The said Magistrate took cognizance for the offences punishable under Section 302/307/201/120-B/34 by his order dated 10th July 1997 against 10 members of the police party and in addition, under Section 193 of the IPC against Inspector Anil Kumar for having lodged a false report with regard to the incident. The matter was then committed for trial. The trial court recorded the evidence of 74 witnesses and also took in evidence a large number of documents, including the reports of the Forensic Science Laboratory.
In the course of a very comprehensive judgment dated 10th July, 1997 the trial court recorded the conviction and sentence as under:
Name of appellant
Offence for which convicted
Sentence awarded
Satyavir Singh Rathi, ACP, Delhi Police
U/Sections 120B IPC ,302 IPC
read with 120B IPC ,307 IPC
read with 120B IPC ,307 IPC
read with 120B IPC ,307 IPC
201/34 IPC and 203/34 IPC
Under Section 120B IPC imprisonment for life & a fine of Rs.100/-. Under Section 302 IPC read with Section 120B IPC - imprisonment for Life and a fine of Rs.100/-. Under Section 307 IPC Read with Section 120B IPC - imprisonment for life and a fine of Rs.100/- Under Section 193 IPC read with Section 120B
IPC rigorous imprisonment for 7 years and a fine of Rs.100/-
Under Section 201 IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Under Section 302 IPC - rigorous imprisonment for 2 years.
Anil Kumar, Inspector Of Police, Delhi Police
U/Sections 120B IPC ,302 IPC r/w 120B IPC ,307IPC r/w 120B IPC 193 IPC r/w 120 B IPC,193 IPC,201/34 IPC And 203/34 IPC
U/Section 120B IPC -imprisonment for life and a fine of Rs.100/- U/S 302 IPC read with
Section 120B IPC - imprisonment for life and a fine of Rs.100/- U/S 307 IPC r/w Sec.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w Sec.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-. U/S 201 IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-. U/S 203 IPC - rigorous imprisonment for 2 years.
Ashok Rana,Sub- Inspector of Police, Delhi Police
U/Sections 120B IPC ,302IPC
r/w 120B IPC ,307 IPC r/w 120B
U/S 120B IPC - imprisonment for life and a fine of Rs.100/- U/S 302 IPC r/w Sec.120B IPC - imprisonment for life and a fine of Rs.100/- U/S 307 IPC r/w Sec.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w Sec.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-. U/S 201 IPC - rigorous imprisonment for 7 years and a fine of Rs.100/- U/S 203 IPC - rigorous imprisonment for 2 years.
Ashok Rana,Sub- Inspector of Police, Delhi Police
U/Sections 120B IPC ,302IPC
r/w 120B IPC ,307 IPC r/w
120B IPC,193 IPC r/w120B IPC
U/S 120B IPC - imprison-ment for life and a fine of Rs.100/- U/s 302 IPC r/w S.120B IPC-
imprisonment for life and a fine of Rs.100/-.U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Shiv Kumar,Head Constable,Delhi Police
120B IPC,302 IPC r/w 120B IPC 307 IPC r/w 120B IPC ,193 IPC r/w 120B IPC
U/S 120B IPC - - imprisonment for life and a fine of Rs. 100/- U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-
Taj Pal Singh,Head Constable,Delhi Police
120B IPC,302 IPC r/w 120B IPC ,307 IPC r/w 120B IPC ,193 IPC r/w 120B IPC
U/S 120B IPC - imprisonment for life and a fine of Rs. 100/- U/S 302 IPC r/w S.120B IPC -
imprisonment for life and a fine of Rs.100/- U/S 307 IPC r/w
S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC-rigorous imprisonment for 7 years and a fine of Rs.100/-
Mahavir Singh,Head Const.Delhi Police
120B IPC,302IPC r/w
120B IPC,307 IPC r/w
imprisonment for 120B IPC ,193 IPC r/w 120B IPC
U/S 120B IPC - life and a fine of Rs.100/- U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Sumer Singh, Const. Delhi Police.
120B IPC,302 IPC r/w 120B IPC 307 IPC r/w 120B IPC , 193 IPC r/w 120B IPC
U/S 120B IPC - imprisonment for life and a fine of Rs. 100/-. U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-.U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Subhash Chand,Const. Delhi Police
120B IPC,302 IPC r/w
120B IPC,307 IPC r/w 120B IPC ,
193 IPC r/w 120B IPC
U/S 120B IPC - imprisonment for life and a fine of Rs.100/-.U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 307 IPC
r/w S.120B IPC - imprisonment for life and a fine of Rs.100/- U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Sunil Kumar,Const. Delhi Police
120B IPC,302 IPC r/w
120B IPC, 307 IPC r/w
120B IPC,193 r/w 120B
IPC
U/S 120B IPC - imprisonment for life and a fine of Rs. 100/-. U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
Kothari Ram, Const. Delhi Police
120B IPC,302 IPC r/w
120B IPC, 307 IPC r/w 120B
IPC,193 IPC r/w 120B IPC
U/S 120B IPC - imprisonment for life and a fine of Rs.100/-.
U/S 302 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 307 IPC r/w S.120B IPC - imprisonment for life and a fine of Rs.100/-. U/S 193 IPC r/w S.120B IPC - rigorous imprisonment for 7 years and a fine of Rs.100/-.
All the substantive sentences were directed to run concurrently. The matter was thereafter taken in appeal to the Delhi High Court which re-examined the entire evidence and concluded that the conviction of the appellants under Section 302/120B of the IPC could not be sustained and they were entitled to acquittal of that charge, but their conviction and sentence under Sections 302 and 307 of the IPC was liable to be maintained with the aid of Section 34 of the IPC instead of Section 120B of the IPC . It was also directed that the conviction and sentence of ACP Rathi and Inspector Anil Kumar under Sections 193, 201/34 and 203/34 of the IPC was liable to be maintained. The appeals were accordingly allowed to this very limited extent. It is in this background that the matter is before us after the grant of Special leave on the 23rd November 2009.
We have heard the learned counsel for the parties in extenso in arguments spread over several days. Mr. Amrendra Sharan, the learned senior counsel appearing in the lead case i.e. the appeal of ACP Satyavir Singh Rathi, has raised several arguments in the course of the hearing. He has first pointed out that the prosecution story and the findings of the trial court as well as of the High Court with regard to the manner of the incident and how it happened were erroneous and the defence version that the appellants had fired at the car in self- defence after Jagjit Singh had first fired a shot through the window injuring two policemen was, in fact, the correct one in the light of the prosecution evidence itself that a 7.65 mm bore pistol, and two fired cartridge cases had been found and recovered from the car itself as deposed to by PW13, PW15, PW35, PW41 and PW57 and as these witnesses had not been declared hostile the prosecution was bound by their statements. In this connection, the learned counsel has placed reliance on Javed Masood & Anr. vs. State of Rajasthan 2010 (3) SCC 538.
It has also been pleaded that the fact that a single shot had been followed by a volley had been deposed to by PW-26 Avtar Singh who was an injured witness and also by ASI Om Bir-PW who was in a police control room Gypsy stationed closed by. It has further been pointed out that from the evidence of the aforesaid witnesses it was clear that all the window panes of the car had been broken which indicated that a shot had indeed been fired from inside the car. In addition, it has been urged by Mr. Sharan that the investigation made by the CBI was completely partisan and though a large number of independent witnesses had been examined at site, none had been cited as witnesses, and that even Dr. V.Tandon, who had extracted the bullet from the person of Constable Sunil Kumar, had not been produced as a witness. It has been highlighted that no investigation had been made as to the ownership of the 7.65 mm pistol or as to how and who had planted it in the car, as alleged.
It has further been submitted that there was no common intention on the part of ACP Rathi along with his co-accused to commit the murders as he was sitting in his Gypsy far away from the place of the shoot out and there was no evidence whatsoever to suggest that he had either encouraged or directed the other police officials to shoot at the car and as such his conviction with the aid of Section 34 of the IPC , could not be sustained. He has, in this connection, cited Ram Nath Madhoprasad & Ors. vs. State of M.P. AIR 1953 SC 420. As a corollary to this argument, the learned counsel has also emphasized that as the trial court had framed a charge under Section 302/120B and in the alternative under Section 302/34 of the IPC but had chosen to record a conviction under the former provision only and had not rendered any opinion on the alternative charge, it amounted to a deemed acquittal of the alternative charge and as the State had not challenged the matter in appeal, the High Court was not justified in an appeal filed by the accused in altering the conviction from one under Section 302/120B of the IPC to one under Section 302/34 of the IPC.
In this connection, the learned counsel has placed primary reliance on Sangaraboina Sreenu vs. State of A.P. 1997 (5) SCC 348 and Lokendra Singh vs. State of M.P. 1999 SCC (Crl) 371 and Bimla Devi & Anr. vs. State of J & K 2009 (6) SCC 629 and in addition on Kishan Singh vs. Emperor AIR 1928 P.C. 254, The State of Andhra Pradesh vs. Thadi Narayana 1962 (2) SCR 904 and Lakhan Mahto vs. State of Bihar 1966 (3) SCR 643. The learned counsel has also urged that it was settled beyond doubt that the provisions of Section 313 of the Code of Criminal Procedure had to be scrupulously observed and it was obligatory on the trial court to put all the incriminating circumstances in the prosecution story to an accused so as to enable him to effectively meet the prosecution case and if some material circumstance was not put to an accused, it could not be taken into account against him and had to be ruled out of consideration in the light of the judgments reported as Hate Singh Bhagat Singh vs. State of Madhya Bharat AIR 1953 SC 468, Vikramjit Singh vs. State of Punjab 2006 (12) SCC 306) and Ranvir Yadav vs. State of Bihar 2009 (6) SCC 595. The learned counsel has also furnished a list of 15 circumstances which had not been put to the accused, particularly to ACP Rathi, at the time when his statement had been recorded. It has, in addition, been pleaded that the prosecution was barred as the cognizance in this case had been taken beyond the period of 3 months as envisaged in Section 140 of the Delhi Police Act, 1978 and on the factual aspect has referred us to various dates relevant in the matter.
In this connection, the learned counsel has placed reliance on Jamuna Singh & Ors. vs. Bhadai Shah AIR 1964 SC 1541 and Prof. Sumer Chand vs. Union of India & Ors. 1994 (1) SCC 64. It has finally been submitted by Mr. Sharan that the sanction under Section 197 of the Code of Criminal Procedure too had been given without application of mind and as the entire record was not before the Lt. Governor, all relevant material had not been considered and for this additional reason also, the prosecution was not justified. In this connection the learned counsel has placed reliance on State of Karnataka vs. Ameerjan 2008 (1) SCC (Crl) 130. Mr. Uday U.Lalit, the learned senior counsel appearing for Head Constable Mahavir Singh, the appellant in Criminal Appeal No. 2476/2009, has pointed out that there were persons in all in the police party and of them only 10 persons had been sent for trial and of the 5 left out, three had not used the firearms which they had been carrying and Head Constable Mahavir Singh (as per the evidence on record) had not fired into the car, his case fell in the category of those who had not been sent up for trial and, as such, he too was entitled to acquittal.
It has also been pointed out that after the dead body of Jagjit Singh had been cremated, a bullet had been recovered from his ashes allegedly fired from the weapon of Head Constable Mahavir Singh but as the High Court had disbelieved the evidence of this recovery, there was no evidence against him. He has, in addition, supported Mr. Sharan's arguments on Section 313 of the Cr.P.C. and has contended that the scope and rigour of Section 313 remained unchanged despite the introduction of Section 315 of the Cr.P.C. which now made an accused a competent witness in his defence. Mr. Balasubramaniam, the learned senior counsel for Inspector Anil Kumar in Criminal Appeal No. 2484 of 2009, has also supported the arguments raised by the other counsel with regard to the common intention of the appellant more particularly as he had not fired at the car though armed.
He has also pleaded that even accepting the prosecution story as it was, the only inference that could be drawn was that the police party had fired at the car in self-defence and that such an inference could be drawn from prosecution story had been accepted by this Court in Mohan Singh & Anr. vs. State of Punjab AIR 1963 SC 174. Mr. Vineet Dhanda, the learned counsel for the appellants in Criminal Appeal Nos. 2477-2483 of 2009, has pointed out that although the appellants in these matters had admitted that they had fired into the car yet the fact that Mohd. Yaseen was a dreaded criminal with 21 criminal cases against him including 18 of murder, the police party had to be careful and they had fired back only after the first shot by Jagjit Singh.
The learned counsel, however, has confined his primary argument to the fact that the appellants were acting on the orders of ACP Rathi, who was their superior officer, and as they had taken an oath at the time of induction to office to follow the orders of superior officers, they were liable for exoneration of any kind of misconduct as per Section 79 of the IPC . He has also pointed out that the appellants had, in their statements recorded under Section 313 of the Cr.P.C. , unanimously stated that the orders for the firing had been given by ACP Rathi. Mr. Harin Rawal, the Additional Solicitor General representing the CBI has, however, controverted the submissions made by the counsel for the appellants. It has been pointed out that the investigation had revealed that the incident had happened as the police party was under the impression that Jagjit Singh was in fact Mohd. Yaseen and in their anxiety to get at him, had decided to eliminate him pursuant to their common intention. It has been highlighted that the defence that Jagjit Singh had first resorted to firing from inside the car had been found to be unacceptable by both the courts below and a positive finding had been recorded that the 7.65 mm bore pistol had been surreptitiously placed in the car to create a defence.
He has further pointed out that the prosecution story with regard to the incident had been proved by independent evidence and as the investigation was being handled by the Delhi Police at the initial stage, some attempt had apparently been made to help the appellants in order to create a cover-up story. The argument that the CBI had conducted a partisan investigation has also been controverted. It has been highlighted that all relevant evidence had been produced before the Court and nothing had been withheld and that in any case allegations of a partisan investigation could be made against an individual officer but could not be generalized against an organization as vast as the CBI and no argument had been addressed identifying any officer(s) of the CBI of any misconduct. It has also been submitted that from the evidence of the prosecution witnesses and the conduct of the appellants pre and post-facto the incident indicated that the murders had been committed pursuant to their common intention and this was also supported by the fact that a false story had been put up in defence.
It has also been pointed out that deemed acquittal theory projected by Mr. Sharan could not be applied in the present case as the judgment reported in Lokendra Singh's case cited by him had been doubted in Lakhjit Singh & Anr. vs. State of Punjab 1994 Suppl. (1) SCC 173 and the matter had thereafter been referred to a larger Bench which in the judgment reported in Dalbir Singh vs. State of U.P. 2004 (5) SCC 334 had over-ruled the judgment in Lokendra Singh's case (supra) and that the judgment in Dalbir Singh's case had subsequently been followed in Dinesh Seth vs. State of NCT of Delhi 2008 (14) SCC 94. It has been highlighted that the judgment in Bimla Devi's case (supra) relied upon by Mr. Sharan had not taken note of the last two cited cases.
It has, further been contended by Mr. Rawal that though it was a matter of great importance that all incriminating circumstances must be put to an accused, but if some material had been left out it would not ipso-facto mean that it had to be ruled out of consideration as it was for an accused to show that prejudice had been suffered by him on that account. It has been pointed out that the issue of prejudice ought to have been raised by the appellants at the very initial stage before the trial court and as this had not happened, the prosecution was fully justified in arguing that no prejudice had been caused. The learned ASG has placed reliance on Shobhit Chamar & Anr. vs. State of Bihar 1998 (3) SCC 455 and Santosh Kumar Singh vs. State thr. CBI 2010 (9) SCC 747 for this submission.
The arguments raised by Mr. Sharan with regard to Section 140 of the Delhi Police Act and Section 197 of the Cr.P.C. have also been controverted. It has been submitted that Section 140 of the Delhi Police Act would apply only to offences committed under that Act and not to other offences and that in any case in order to claim the protection under Section 140, the act done by a police officer had to be "under the colour of duty" and as "murder" would not come in that category, no protection thereunder was available. In this connection, the learned ASG has placed reliance on The State of Andhra Pradesh vs. N.Venugopal & Ors. AIR 1964 SC 33, State of Maharashtra vs. Narhar Rao AIR 1966 SC 1783, State of Maharashtra vs. Atma Ram AIR 1966 SC 1786 Bhanuprasad Hariprasad Dave & Anr. vs.
The State of Gujarat AIR 1968 SC 1323, and Prof. Sumer Chand's case (supra) as well. In so far as the sanction under Section 197 of the Cr.P.C. is concerned, it has been pleaded that the Lt. Governor had all relevant material before him when the order granting sanction had been made and that the material was adequate for him to take a decision and merely because some of the evidence had been received by the CBI after the grant of sanction, would not invalidate the sanction. In this connection, the learned ASG has placed reliance on S.B.Saha & Ors. vs. M.S.Kochar AIR 1979 SC 1841. The learned ASG has also controverted Mr. Lalit's arguments with regard to the culpability of appellant Head Constable Mahavir Singh. It has been pointed out that the bullet recovered from the ashes of Jagjit Singh had been found to have been fired from the weapon of Head Constable Mahavir Singh but the High Court had declined to accept this part of the prosecution story as Didar Singh PW who had produced the bullet before the Haryana Police after picking it up from the funeral ashes, had not deposed in his evidence that he had handed over the bullet to the Police.
It has, however, been submitted that Head Constable Mahavir Singh had indeed fired his weapon had been admitted by him and the story that he had fired in the air to disperse a huge and turbulent crowd that had collected, was not borne out by the evidence. Mr. Balasubramaniam's argument with regard to the involvement of Inspector Anil Kumar has also been challenged by the ASG by urging that though he admittedly had not fired his weapon but his case did not fall in the category of those police officials who had not been sent for trial. It has been submitted that the appellant had in fact been the prime mover in the entire story. Dealing with the arguments addressed by Mr. Vineet Dhanda, the learned ASG has highlighted that there was no evidence to suggest that it was on the orders of ACP Rathi that the firing had been resorted to, except for the self-serving statements made by the appellants under Section 313. It has, accordingly, been pointed out that this set of appellants could not claim the benefit of Section 79 of the Indian Penal Code.
On hearing the learned counsel for the parties, several facts appear to be admitted on record but are compounded by a tragedy of errors. These relate to the place and time of incident, the presence of the appellants duly armed with most of them having fired into the car with their service weapons, that Mohd. Yaseen was admittedly a notorious criminal and that Jagjit Singh (deceased) had been mistaken by Inspector Anil Kumar for Mohd. Yaseen, and that Pradeep Goyal owned a blue Esteem Car with a Uttar Pradesh number plate, and had his office in Patparganj near the Mother Dairy Booth. It is in this background that the prosecution and the defence versions have to be examined. The prosecution story has already been narrated above and does not require any recapitulation in detail. Suffice it to say that Inspector Anil Kumar and his two associates had followed the car driven by Pradeep Goyal to the Dena Bank Branch at Connaught Place and it was after Pradeep Goyal and the others had left the Dena Bank premises and were near the Barakhamba Road crossing that the two police parties, one headed by Inspector Anil Kumar, and other by ACP Rathi, had joined forces and surrounded the car as it stopped at a red light, and had fired into it killing two persons and injuring one.
It is at this stage that the prosecution and the defence deviate as it is the case of the defence that after the car had been surrounded, Inspector Anil Kumar had knocked at the driver's window asking the occupants to come out but instead of doing so Jagjit Singh had fired two shots at the police which had led to a fusillade in self defence. It is true that Avtar Singh PW, who was an injured witness and ASI Ombir Singh, PW-13 did say that the multiple firing had been preceded by one solitary shot which apparently is in consonance with the defence version. Likewise, PW-13 ASI Ombir Singh, PW15 Inspector Ram Mehar, PW-35 Inspector Rishi Dev, PW41 Constable Samrat Lal, and PW-57 S.I. Sunil Kumar testified that a 7.65 mm bore pistol along with two fired cartridges and 7 live cartridges in the magazine and one misfired cartridge in the breech, had been recovered from the car.
This story too appears to support the case of the defence. It is equally true that it is not always necessary for the accused to plead self- defence and if the prosecution story itself spells it out, it would be open to the court to examine this matter as well, as held by this Court in Mohan Singh's case (Supra) and in James Martin vs. State of Kerala 2004 (2) SCC 203. Likewise, it is now well settled in the light of the judgment in Javed Masood's case (supra) that if a prosecution witness is not declared hostile by the prosecution, the evidence of such a witness has to be accepted by the prosecution. It must also be observed that though the prosecution is bound to prove its case beyond reasonable doubt, the obligation on an accused under Section 105 of the Indian Evidence Act, 1872 is to prove it by a preponderance of probabilities. We have, accordingly, examined the evidence under the above broad principles.
As already indicated above, PW's Avtar Singh and Ombir Singh did state that a single shot had been followed by multiple shots thereafter. Avtar Singh, however, apparently did not receive a bullet injury as the simple abrasion on him had been apparently caused by a flying splinter from the tarmac but we have extremely independent evidence on this score as well. PW-1 Geeta Ram Sharma, the Chief Photographer of the Statesman Newspaper, which has its office adjacent to the red light on Barakhamba Road, deposed that on the 31st March 1997 at about 2 - 2.30 p.m. while he was sitting in his room along with his colleagues PWs Sayeed Ahmed and Shah Nawaz, they had heard the sound of firing from the Barakhamba Road side and that he along with the other PWs had come out to the crossing along with their camera equipment and had seen a blue Esteem Car standing there with two bodies lying alongside and one injured person sitting on the road with a large number of police men, including some in mufti, present.
He stated that on his directions Shah Nawaz and Sayeed Ahmed had taken a large number of photographs of the site and 14 of them were also produced as Exs. P-1 to P-14. He further stated that Vijay Thakur, one of the Reporters of the Statesman had also been present. Sayeed Ahmed and Shah Nawaz aforementioned appeared as PW-2 and PW-67 and supported the story given by PW-1 Geeta Ram Sharma. He also proved the photograph marked Ex. `X' which shows that the driver's window was intact. We have perused the photograph ourselves and find that the driver's window was definitely intact. The photograph is in black and white and has been taken through the driver's window and the man wearing white with a dark tie seen in the photograph has two shades of white, the portion through the window having a dull hue and the portion above, far brighter.
It has come in the evidence of PW-Tarunpreet that the car A.C. was on when the firing took place and the windows had been drawn up. We can also take notice that in this background, the windows and windshield would be of tinted glass. Likewise, we are also of the opinion that had the shots been fired through the driver's window or the windshield some powder residues would have been left around the bullet holes as the shots would have been fired from almost a touching distance. PW-37 Roop Singh from the Central Forensic Science Laboratory, who had examined the car very minutely detected no such residue and also testified that the appreciable powder distance of a 7.65 mm pistol could be one to two feet but would depend on the sitting posture of the person firing.
He also stated that in all at least 29 bullet holes had been detected on the car of 9 mm, 7.62 mm and .380 calibre weapons and that most of the seven exit holes in the car could have been caused by bullets fired from the rear and left side into the car and exiting thereafter, although the possibility of an exit hole being caused by a bullet fired from inside the car could also not be ruled out. He further pointed out that as the bullet fired at Constable Subhash Chand remained embedded in his body and had not been taken out for medical reasons, it was not possible to give an opinion whether it was a bullet of 7.65 mm calibre. The defence story that Constables Sunil and Subhash had suffered injuries on account of the firing of two shots from inside the car, is further belied by the medical evidence. PW-16-Dr. Harmeet Kapur carried out the medico legal examination of Constable Subhash Chand Ex.PW16/B. He found three bullet injuries on his person, which indicated blackening.
These injuries could not have been caused by firing from inside the car as the blackening from a pistol would be, at the most, from a foot or two. Likewise, PW-17 Dr. Neeraj Saxena who had examined Constable Subhash Chand, also found three separate gun shot injuries on his person. He also produced in evidence his treatment record Ex.PW17/B. This doctor was not even cross-examined by the prosecution. It needs to be emphasized that all the weapons used in the incident fired single projectiles (i.e. bullets), whereas the distance between the gun shot injuries on the two injured policemen show at least 3 different wounds of entry on each of them. On the contrary, it appears that the injuries suffered by them were caused by the firing amongst the policemen as they had surrounded and fired into the car indiscriminately and without caution ignoring that they could be a danger to themselves on cross-fire on uncontrolled firing.
It has, in fact, been pointed out by Mr. Sharan that ACP Rathi had written to his superiors pointing to the ineptitude of his team of officers but he had been told that no other staff was available. The present case illustrates and proves the adage that a weapon in the hands of an ill trained individual is often more of a danger to himself than a means of defence. In this background, the evidence of PW's Geeta Ram Sharma, Sayeed Ahmad and Shah Nawaz, PW-50 Constable K.K.Rajan and PW-51 Constable Rajinderan Pilley becomes extremely relevant. PW-13 ASI Ombir Singh who was the Officer In-Charge of the PCR Gypsy parked near the Fire Station Building adjoining Barakhamba Road, had undoubtedly supported the defence version that a single shot had been followed by a volley. Constable Rajan and Constable Pilley, who were present along with ASI Ombir Singh, categorically stated that they had not heard any single fire and it was only the continuous firing that had brought them rushing to the site and having reached there, they had taken the three victims to the R.M.L. Hospital.
Their story is corroborated by the evidence of the three newspaper employees. Tarunpreet Singh PW was also categoric that no shot had been fired from inside the car. The story therefore that Jagjit Singh had fired at the police party when accosted is, therefore, on the face of it, unacceptable. In this overall scenario even if it is assumed that the driver's window had been found broken as contended by the defence, it would still have no effect on the prosecution story. We now come to the question as to the recovery of the 7.65 mm bore pistol allegedly used by Jagjit Singh as this fact is intimately connected with the defence version. First and foremost, it appears that even prior to the arrival of PW-42 SHO Niranjan Singh, the Car had already been searched and the site violated as a cell phone belonging to one of the victims had been picked up by appellant ASI Ashok Rana and handed over to the SHO.
The fact that undue interest had been taken by the offending police officials is also clear from Ex. P/10 a photograph showing the ASI looking into the car. More significantly, however, PW-12 Sant Lal, the official Photographer of the Delhi Police, took two photographs Ex. PW12/28 and PW12/29 of the driver's seat from very close range but they show no pistol or empty shells. Even more significantly ACP Rathi submitted a detailed written report Ex.D.16/8 on the 1st of April 1997 to his superior officer in which he talks about the firing by Jagjit Singh but makes no mention as to the recovery of a pistol from the car although as per the defence story the weapon had been picked up by the SHO soon after the incident. Likewise, in the report Ex. PW-42/C lodged by Inspector Anil Kumar appellant with the Connaught Place Police immediately after the incident, there is no reference whatsoever to the presence of a 7.65 mm pistol in the car.
It is also relevant that the pistol had been sent to the Central Forensic Science Laboratory but PW-46 S.K.Chadha who examined the weapon, could find no identifiable finger prints thereon. The cumulative effect of the above evidence reveals the starkly patent fact that the defence story projected was a palpably false one and the police officials involved having realized almost immediately after the incident (perhaps on questioning Tarunpreet Singh-PW) that they had made a horrific mistake, immediately set about creating a false defence. The trial court and the High Court have accordingly opined on the basis of the overall assessment that the defence version was a concoction and that the prosecution story that it was the unprovoked firing by the appellants which had led to the death of Jagjit Singh and Pradeep Goyal and grievous gun shot injuries to Tarunpreet Singh, had been proved on record.
This finding also completely dislodges Mr. Subramaniam's argument that in case the defence, as laid, was not entirely acceptable, the accused were nevertheless entitled to claim the benefit of Exception 3 to Section 300 of the Indian Penal Code. This Exception pre-supposes that a public servant who causes death, must do so in good faith and in due discharge of his duty as a public servant and without ill-will towards the person whose death is caused. In the light of the fact that the positive case set up the defence has been rejected by the trial court, the High Court as well as by us, the question of any good faith does not arise. On the contrary, we are of the opinion that the appellants had fired without provocation at the Esteem Car killing two innocent persons and injuring one.
As already mentioned above, the obligation to prove an exception is on the preponderance of probabilities but it nevertheless lies on the defence. Even on this touchstone the defence cannot succeed. It is true that the High Court has acquitted the appellants of planting the 7.65 mm bore pistol in the car. However, this acquittal has been rendered only on the ground that it was not possible to pinpoint the culprit who had done so. This can, by no stretch of imagination, be taken to mean that the story that the pistol had been planted in the car has been disbelieved by the High Court. The reliance of the defence on Mohan Singh's case and James Martin's Case (supra) is, therefore, irrelevant on the facts of this case. It is true that the Prosecution is bound by the evidence of its witnesses as held in Javed Masood's case. In the present matter, however, we see that the recovery of the 7.65 mm weapon appears to be an admitted fact, but with the rider that it had been planted to help the defence.
The argument that the CBI had conducted a partisan and motivated investigation, is based largely on three premises; firstly, that all the independent witnesses whose statements had been recorded under Section 161 of the Cr.P.C. at the site, had not been brought in evidence, secondly, that Constables Sunil Kumar and Subhash Chand had suffered gun shot injuries but the CBI had tried to create evidence that these injuries were as a consequence of firing by their co-appellants in that an effort had been made to show that the bullet recovered from the ashes of Jagjit Singh after his cremation had been fired from the weapon carried by Head Constable Mahavir Singh, thirdly, that Dr. V. Tandon who had extracted the bullet from the hand of Constable Sunil Kumar, had not been even cited as a witness.
As against this, the learned ASG has pointed out that it was not necessary to produce every person whose statement had been recorded under Section 161 and as the incident was admitted by the defence, though a counter version had been pleaded, the Court was called upon to decide which of the two versions was correct, and in this background all witnesses who were material had been examined. It has further been pointed out that the bullet which had allegedly been recovered from the ashes of Jagjit Singh, had been handed over to Sub-Inspector Ram Dutt of the Haryana Police who in turn had handed it over to the investigating officer of the CBI and as such, the CBI had nothing to do with that recovery. It is true that all witnesses have not been examined but we find that in the circumstances this was not necessary.
It will also be seen that as per the prosecution story, appellants Sunil Kumar and Subhash Chand, had been caused injuries by shots fired from the weapons of Head Constable Tej Pal Singh and Constable Kothari Ram appellants. As per the report of the CFSL Ex.P/37F, the bullet recovered from the person of Constable Sunil Kumar had been fired from the .380 revolver of Head Constable Tej Pal Singh and as per the evidence of PW-37 Roop Singh, the possibility that the metallic bullet which was embedded on the person of Constable Subhash Chand appellant could be the steel core portion of a shattered 7.62 mm bullet of the weapon of Constable Kothari Ram. Much argument has, however, been made by the learned defence counsel on the evidence of PW-37 Roop Singh wherein some doubt has been expressed as to the identity of the bullet allegedly recovered from the hand of Constable Sunil Kumar. He stated in his examination-in-chief that he had received parcel No.12 along with a covering letter dated 7th April, 1997 referring to the bullet recovered from Sunil Kumar's hand. He further stated that he had opened the parcel and had found one .380 calibre bullet and no other object therein and that he had re-sealed the bullet in the parcel. It appears from the evidence of PW-37 that parcel No.12 was again opened in Court and at that stage it was found to contain not only a .380 calibre bullet but also one fired 7.65 mm bullet.
The witness, however, stated that when the parcel had been received by him in the Ballistics Department from the Biology Department of the Laboratory, the 7.65 mm bullet had not been in it. A pointed question was thereafter put to him as to how he could explain the presence of the 7.65 mm bullet in parcel No.12. In answer to this question, he stated as under: "When this parcel was opened on the earlier hearing and at that time after .380 bullet was exhibited the other bullet i.e. 7.65 mm (Ex.PW37/24) was found lying on the table, and so in these circumstances the said 7.65 mm bullet was exhibited."
Taken aback by this unforeseen development, the prosecution filed an application dated 4th December 1999 for clarification. A reply thereto was filed by the defence on the 4th of January 2000. On re-examination, the witness suggested that the 7.65 mm bullet had been mixed up with the .380 bullet by some Advocate when the parcel had been opened in Court on an earlier date during court proceedings. In the light of the fact that the trial court and the High Court have already held (and also held by us) that no shot had been fired from inside the car from the 7.65 mm pistol, the possibility of a 7.65 mm bullet being in the parcel becomes suspect and it appears that some mischief was being played out.
We must also notice that we are dealing with appellants who are all police officials and the trial court has clearly hinted that there appeared to be some connivance between the appellants and the investigation. In any case, the creation of some confusion vis-`-vis the bullets, is a matter which would undoubtedly help the defence and a presumption can thus be raised that this had been stage managed by the defence. This aspect too cannot be ignored. The argument raised by the learned counsel for the appellants, therefore, that the application filed for clarification had been withdrawn as the prosecution was shying away from the truth is not sustainable as this had happened in the light of the clarification given by PW-37 Roop Singh. Nothing ominous or sinister can be read into this.
The learned counsel has also challenged the recovery of the bullet from the ashes of Jagjit Singh. This submission is based on the evidence of PW-8 Didar Singh, the elder brother of Jagjit Singh and PW-49 ASI Ram Dutt to whom the bullet had been handed over by Didar Singh and the statements of Dr. G.K.Sharma and PW-24 Yashoda Rani who had X-rayed the dead body and found no image of a bullet therein. It has accordingly been argued that this too was the br