SATYAVIR SINGH RATHI v. STATE THR. C.B.I

Citation: [2011] 6 S.C.R. 138

Court: Supreme Court of India

Bench: H.S. BEDI, C.K. PRASAD

Case summary

SATYAVIR SINGH RATHI v. STATE THR. C.B.I.pdf

Judgment text

[2011] 6 S. C. R. 138 SATYAVIR SINGH RATHI v. STATE THR. C. B. I. (Criminal Appeal No. 2231 of 2009) MAY 2, 2011 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ. ] Penal Code, 1860: ss. 302134, 307134, 193, 201134 and 203134 - Police shoot out - Two innocent citizens killed in mistaken identity of a hardcore criminal and third one grievously injured - FIR by father of one of the deceased, against police personnel - Investigation by CBI - Conviction by trial court u/ss 3021120- 0 B and 3071120-B of ten police officials - Two of them further convicted u/ss 193, 201134 and 203134 -High Court convicting the accused ulss 302 and 307 with the aid of s.

34 and maintaining the sentence of imprisonment for life - Conviction of two accused u/ss 193, 201134 and 203134 also maintained - HELO: It has been established that the police party surrounded the car of the victims and fired indiscriminately at the car due to which two occupants died and the third one grievously injured - The defence that the one of the occupants of the car, when asked to come out, fired at the police party which thereafter opened fire in self-defence has not been supported by the evidence on record - Though the prosecution is bound to prove its case beyond reasonable doubt, obligation on an accused uls 105 of Evidence Act is to prove it by preponderance of probabilities - 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 the two persons and grievous gun shot injuries to the other SATYAVIR SINGH RATH!

v. STATE THR. C. B. I. 139 had been ptoved on record - Therefore, High Court rightly convicted the accused u/ss 302134, 307134- Evidence Act, 1872 - s. 105 - Code of Criminal Procedure, 1973 - ss. 313 and 386(b)(ii). s. 300 - Exception 3 - Death caused by public servants 8 - Police shoot out - Two innocent citizen killed in mistaken identity of a hardcore criminal - HELD: The Exception presupposes that a public servant who causes death must do so in good faith and in due discharge of his duty - The accused police officials fired without provocation killing two innocent persons and injuring grievously the third one - Trial court and High Court rightly rejected the defence. s.

34 - Common intention - Police shoot out - A notorious criminal being tracked by police party - A person resembling the criminal, spotted and he along with his two friends in the car followed by police personnel - More police force requisitioned - At the place of incident both the police parties joined together in indiscriminate firing resulting in death of two occupants of the car and grievous injuries to the third one - HELD: The courts below have observed that keeping in mind the background in which the incident happed it was pursuant to the common intention to kill the notorious criminal - The High Court was, therefore, justified in holding that in the light of the facts, it was not necessary to assign a specific role to each individual accused as the firing at the car was undoubtedly with a clear intention to annihilate those in it and was resorted to in furtherance of the common intention of all the accused. ss.

79 and 34 - Police shoot out - Ten police officials prosecuted for two murders - Plea of some of the accused that they acted on the directions of superior officer - HELD: There is absolutely no evidence that the firing had been resorted to by seven accused on the direction of the senior officer, but it was pursuant to the common intention of all the accused that the incident had happened- s. 315 CrPC makes an accused a competent witness in his defence - The accused did not choose to come into the witness box to support their plea - Code of Criminal Procedure, 1973 s. 315. Code of Criminal Procedure, 1973: s. 386(b)(ii) read with s. 220- Power of appellate court to alter the finding of trial court while maintaining the sentence - Charge framed by trial court u/ss 3021120-B and 3071120- B and alternative charge u/ss 302134 and 307134 - Conviction by trial court uls 3021120-B, 3071120-B, 1931120-B, altered by High Court to s.

302134, 307134, 193134, while maintaining the sentence - HELD: Justified -Charges had been framed in the alternative and for cognate offences having similar ingredients as to the main allegation of murder - In the instant case, the relevant provision is s. 38(b)(ii), which empowers the High Court to alter the finding while maintaining the sentence - Besides, accused were aware of all the circumstances against them - Penal Code, 1860 - ss. 302134, 307134, 193134. s. 313 - Examination of accused - HELD: Prejudice must be shown by an accused before it can be said that he was entitled to acquittal over a defective and perfunctory statement uls 313 - In the instant case, all the accused police officials filed their written statements but no objection had been raised as to defective 313 statements in the trial court - Penal Code, 1860 - ss. 302134, 307134, 193134. s.

197 - Sanction for prosecution of police personnel involved in shoot out - HELD: It has come in evidence that request of CBI for according sanction for prosecution of accused, alongwith the documents, was referred to Law Department, then to Home Department, to Chief Secretary and finally to Lt. Governor, who granted the sanction - . - 4dequate material for sanction had been made available to the sanctioning authority. Delhi Police Act, 1978: s. 140 - Prosecution of police officials for causing death 8 of two persons in a police shoot out - Umitation for - HELD: The date of cognizance taken by the Magistrate would be·the date for the institution of the criminal proceedings - However, a case of murder would not fall within the expression 'colour of duty' - s. 140 would, therefore, have no relevance to the case.

One 'MY', a hardcore criminal, wanted by the Delhi Police and the police of other States in several serious criminal cases, was being tracked by the Inter-State Cell of the Crime Branch of the Delhi Police. A-1, the Assistant o Commissioner of Police and In-charge of the Inter-State Cell of the Crime Branch, received information that 'MY' would be visiting the place near Mother Dairy, Patparganj, Delhi at about 1. 30 p. m. on 31. 3. 1997. A-2, the Inspector of the Crime Branch was detailed by A-1 to keep a watch near the said Mother Dairy booth. Two youngmen, namely, 'JS' (deceased-1) and PW-26 had come from Haryana to the area at about the same time to meet their friend 'PG' (deeased-2) who had his office near Mother Dairy. But as 'PG' was not in the office, and would be reaching there within a short time, PW-26 and 'JS' went to Mother Dairy and after buying Ice-cream were waiting for 'PG'. A-2 who had a photo of 'MY' with him spotted 'JS' and PW-26 at 1. 30 p. m.

near Mother Dairy and as 'JS' resembled 'MY', he was mistaken by A-2 as 'MY' and he called for reinforcement from A-1, the ACP, who In turn along with a police party of 12 police personnel armed with service weapons left to assist the police team led by A-2. Meanwhile on PG's arrival the three friends, namely PW 26, 'JS' and 'PG' left for connaught place in blue Marutl Esteem Car bearing No. UP-14-F-1580 belonging to 'PG'. The police party led by A-2 followed them. Since 'PG' had some work in Dena Bank he went inside the Bank. When he came out, he sat on the front seat and PW 26 sat on the rear seat. 'JS' drove the car towards Barakhamba Road and when they stopped at the red light, both the police parties led by A-2, the Inspector, and A-1, the ACP, surrounded the car and fired from almost all the sides killing 'PG' and 'JS' instantaneously and causing grievous injuries to 'PW 26'.

On receiving information of the shoot out, PW-42, the SHO, Connaught Place and other police officials reached the place of incident. He recovered a 7. 65 mm pistol loaded with 7 live cartridges, a misfired cartridge in the breach and two spent cartridge cases of 7. 65 mm bore inside the car. A- 2 handed him over a written complaint stating that after the car had stopped at the red light, he knocked at the driver's window asking the occupants to come out, but 'JS' fired at the police party from inside the car resulting in gun shot injuries to two Constables A-9 and A-8 and that it was thereafter that the police personnels opened fire at the car with a view to immobilizing the occupants and to prevent their escape. Consequently, FIR No. 448/ 97 for offences punishable u/ss 186/353/307 IPC and 25 of the Arms Act was registered against the occupants of the car. • The following day, the father of deceased 'PG' made complaint to the Lt. Governor on which another FIR No.

453/97 was registered against the police personnel involved in the shoot out for an offence punishable u/s 302/34 IPC. Later, the investigation was entrusted to CBI. The trial court framed charges against 10 police officials and found all of them guilty of the offences punishable inter alia, u/ss 120-8, 3021120-B, 307/120-B IPC and sentenced them to life imprisonment. A-1 and A-2 were further convicted u/ss ~93, 201/34 and 203/34. IPC. On appeal, the High Court held that conviction of appellants u/s 302/120-B IPC could not be sustained and insted convicted all of them, u/ss 302 and 307 with the aid of s. 34 IPC and sentenced each of them to imprisonment for life. Conviction of A-1 and A-2 u/ss 193, 201/34 and 203/34 IPC was also maintained. Aggrieved, the accused police officials filed the appeals. Dismissing the appeals, the Court HELO: 1. 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 'MY' was admittedly a notorious criminal and that 'JS' (deceased) had been mistaken by A-2 for 'MY', and that deceased 'PG' owned a blue Esteem Car with an Uttar Pradesh number plate, and had his office in Patparganj near the Mother Dairy Booth. Further, A-2 and his two associates had followed the car driven by 'PG' to the Dena Bank Branch at Connaught Place and it was after 'PG' and the others had left the Dena Bank premises and were near the Barakhamba Road crossing that the two police parties, one headed by A-2, and the other by A-1, had joined forces and surrounded the car as it stopped at ared light, and had fired into it killing two persons and injuring one. [para 11) [176·F·H: 177-A·B] 2. 1.

The case of the defence that after the car had been surrounded, A-2 had knocked at the driver's window asking the occupants to come out but instead of doing so 'JS' had fired two shots at the police which had led to a fusillade in self defence, cannot be accepted in view of the evidence on record. [para 11] [177-B-C] 2. 2. It is 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. (para 11) (177-C·F] Mohan Singh & Anr. vs. State of Punjab 1962 Suppl. SCR 848 =AIR 1963 SC 174; Javed Masood & Anr. vs. State of Rajasthan 2010 (3) SCR 236 =2010 (3) SCC 538, relied on. 2. 3. It must also be observed that though the prosecution is bound to prove its case beyond reasonable doubt, the obligation on an accused u/s. 105 of the Evidence Act, 1872 is to prove it by a preponderance of probabilities. [para 11) [177-G·HJ o 2. 4.

PW 13 and another witness 'AS' did state that a single shot had been followed by multiple shots thereafter. 'AS', 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 there is extremely independent evidence on this score as well. However, PW-1, the Chief Photographer of the Statesman Newspaper, which has its office adjacent to the red light on Barakhamba Road, deposed that on the 31-03-1997 at about 2 • 2. 30 p. m. while he was sitting in his room along with his colleagues, PWs 2 and 67 and another person, 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 saw 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 PWs 2 and 67 took 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 a reporter of the Statesman had also been present. PW-2 and PW-67 supported the story given by PW-1. He also proved the photograph marked Ext. 'X' which shows that the driver's window was intact. It has come in the evidence of PW-26 that the car A. C. was on when the firing took place and the windows had been drawn up. [para 12] [178-A-H] 2. 5. Likewise, it is also to be seen 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 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 A-8 remained embedded in his body a11ct had not been taken out for medical reasons, it ws& not possible to give an opinion whether it was a bullet of 7. 65 mm calibre. [para 12] [178-H; 179-A-D] 2. 6. The defence story that Constables A-9 and A-8 had suffered injuries on account of the firing of two shots from inside the car, is further belied by the medical evidence.

PW-16, the doctor, who carried out the medico tegal examination of C•>nstable A-8 (Ext. PW16/B), found three bullet injuries on his person, which indicated blackening. Thc~e injuries could not have been caused by firing from inside the car as the blackel'. 'ling from a pistol would be, at the most, from a foot or two. Likewise, PW-17 the doctor, who had examined Constable A-8, also found three separate gun shot injuries on his person. He also produced in evidence his treatment record (Exbt. 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 0 fact, been pointed out that A-1 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. [para 12] [179-0-H; 180-A-B] 2. 7. In this background, the evidence of PWs 1, 2 to 7 and the two Constables PWs 50 and 51, becomes extremely relevant. The ASI, PW-13, 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.

PWs 50 and 51, the two Constables, who were present along with ASI PW-13, 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 ftM. L. Hospital. Their story Is corroborated by the evidence of the three newspaper employees. PW-26 was also categoric that no shot had been fired from inside the car. The story SATYAVIR SINGH RATH! v. STATE THR. C. B. I. 147 therefore that 'JS' had fired at the police party when A 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. [Para 12] (180-B-F] B 2. 8. As regards the recovery of the 7.

65 mm bore pistol allegedly used by 'JS' first and foremost, it appears that even prior to the arrival of the SHO, PW-42, the Car had already been searched and the site violated, as a cell C phone belonging to one of the victims had been picked up by appellant ASI 'A· 3' and handed over to the SHO. The fact that undue interest had been taken by the offending police officials is also clear from Ext. P/10 a photograph showing A-3 looking into the car. More significantly, however, PW-12, the official Photographer D of the Delhi Poliee, took two photographs (Ext. 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 A-1 submitted a detailed written report (Ext. D. 16/8) on 1. 4. 1997 to his superior officer in which he E talks about the firing by 'JS' 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 Ext. PW-42/C lodged by the appellant A-2 with the Connaught F Place Police immediately after the incident, there js 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, who examined the weapon, could find no identifiable G finger prints thereon. [Para 13] [180-G-H; 181-A-D] 2. 9. The cumulative effect of the evidence adduced reveals the starkly patent fact that the defence story projected was a palpably false one and the police officials H involved having realized almost immediately after the incident (perhaps on questioning PW-26 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 the two deceased and grievous gun shot injuries to PW-26, had been proved on record. [Para 14] [181-A-G] 3. 1. It can not be said that the accused were entitled to claim the benefit of Exception 3 to s. 300 IPC. 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 illwill towards the person whose death is caused. In the light of the fact that the positive case set up by the defence has been rejected by the trial court, the High Court as well as by this Court, the question of any good faith does not arise. On the contrary, the appellants had fired without provocation at the Esteem Car killing two innocent persons and injuring one.

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. [Para 15] [181-G-H; 182-A-C] 3. 2. 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. Though, the recovery of the 7. 65 mm weapon SATYAVIR SINGH RATHI v. STATE THR. C. B. I. 149 appears to be an admitted fact, but with the rider that it had been planted to help the defence. [Para 15) [182-C· F] Mohan Singh & Anr. vs. State of Punjab 1962 Suppl. SCR 848 =AIR 1963 SC 174; and James Martin vs. State · of Kera/a 2004 (2) SCC 203; and Javed Masood & Anr. vs.

State of Rajasthan 2010 (3) SCR 236 = 2010 (3) SCC 538 - held inapplicable. 4. 1. As regards the plea that CBI conducted a partisan and motivated investigation, it is true that all witnesses have not been examined but in the circumstances this was not necessary. It will also be seen that as per the prosecution story, appellants. A-9 and A-8 had been caused injuries by shots fired from the weapons of Head Constable A-5 and the Constable A-10. As per the report of the CFSL Ext. P/37F, the bullet recovered from the person of A-9 had been fired from the . 380 revolver of A-5 and as per the evidence of PW-37, the possibility that the metallic bullet which was embedded on the person of A-8 could be the steel core portion of a shattered 7. 62 mm bullet of the weapon of A-10. PW-37 stated in his examination-in-Chief that he had received parcel no. 12 and when he opened it, he found one .

380 calibre bullet and no other object therein and he resealed the bullet in the parcet 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. In the light of the fact that the trial court and the High Court have already held (and also held by this Court) 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 become~ suspect. In any case, the 1 creation of some confusion vis-a-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.

[Paras 16, 18 and 19) [183-F-G; 184-A-C; F-H; 185-A] 3. 2. So far as the recovery of a bullet from the ashes of deceased 'JS', is concerned, the High Court has rejected the prosecution story by observing that the trial court had ignored the evidence on this score as PW-8, the brother of deceased 'JS' had nowhere stated that he had picked up a bullet from the ashes and handed it over to the Sub-Inspector and more particularly as the two doctors who had X-Rayed the dead body had found no trace of bullet. This Court endorses the finding of the High Court in the light of the uncertain evidence on this score, but to allege that the CBI officials had a hand in planting the bullet is unwarranted. [para 20] [185-C-G] 4. 3. It must be seen that the police party comprised 15 personnel. Only 10 who played an active role had been prosecuted. This background points to a fair investigation. Therefore, no fault whatsoever can be found in the investigation made by the CBI. [Para 20] [186- B·C] 5. 1.

As regards the primary plea of absence of common intention in causing the murders, admittedly, the target was 'MY', concededly a notorious criminal with a bounty on his head, as he had been involved in a large number of very serious criminal matters. The incident happened on account of a mistake as to the identity of 'JS' who could pass off as a Muslim and it is nobody's case that the police party had intended to eliminate 'JS' and his friends. The courts below have been very clear on this score and have observed that keeping in mind SATYAVIR SINGH RATH! v. STATE THR. C. B. I. 151 was not the outcome of an act in self-defence but was pursuant to the common intention to kill 'MY'.

As to the role of A-1 and A-2, the High Court has found that it was A-1 who was the leader of the police party in his capacity as the A-1 and, therefore, it was not necessary for him to be in the forefront of the attack on the Esteem car and A- 2 who had admittedly knocked at the window could be treated likewise as being the next officer in the hierarchy. The site plan indicates that A-1 was sitting in his Gypsy about 15 meters away from the car when the incident happened. It has come in evidence that when A-2 had . conveyed the fact of presence of 'JS' and PW-26 afthe Mother Dairy Booth at Patparganj, A-1 had got together a police party of heavily armed officers, briefed them, and they had thereafter moved on to Connaught Place.

It has been found as a matter of fact that when A-2 had followed 0 the Car to the Dena Bank, 'JS' had been left behind in the car alone for quite some time but A-2 and his two associates had made absolutely no attempt to apprehend him at that stage or to counter check his identity though A-2 had MY's photograph with him. Even more significantly A-2 made no attempt to identify 'PG' or PW- 26 whatsoever, although admittedly he was in close wireless contact with A-1. This is the pre-incident conduct which is relevant. [Para 23) [187-A-H; 188-A-B] 5. 2. The facts as brought reveal a startling state of affairs during the incident. The case of the defence that the car had been surrounded to immobilize the inmates and to prevent them from escaping and that it was with this intention that A-2 had knocked on the driver's window asking the inmates to get out but he had been answered by firing from inside the car, has already been rejected.

Moreover, PW-37 testified that there were no bullet marks on the tyres and they remained intact even after the incident, despite 34 shots being fired at the car, and 29 bullet holes, most of them of entry, thereon. On the other hand, the appellants presupposed that one of the Inmates was 'MY', the wanted criminal and that the firing was so insensitive and indiscriminate that some of the shots had hit A-8 and A-9. [Para 23) [188-B-E] 5. 3. The post-facto conduct of the appellants Is again 8 relevant. A·2 gave a report on the 01-04-1007 immediately after the incident, which was followed by a report by A-1 the next day giving the counter version. This has been found to be completely untenable.

The High Court was, therefore, justified in holding that in the light of the facts, it was not necessary to assign a specific role to each individual appellant as the firing at the Car was undoubtedly with a clear intent to annihilate those In it and was resorted to in furtherance of the common intention of all the appellants. [Para 23) (188-E-G] 5. 4. The appellants were, therefore, liable to conviction u/ss 302/34 etc. of the IPC. [Para 24) [189-E·F] Abdul Sayeed Versus State of M. P. 2010 (10) SCC 259 • relied on. 6. So far as the argument with regard to the deemed acquittal theory of the appellants for the offence u/ss 302, 307 read with s. 34 IPC by the trial court is concerned, it is pertinent to note that the trial court had framed a charge u/ss. 302 and 307 read with s. 120-B IPC and an alternative charge u/ss. 302 and 307 read with s. 34 IPC but without opining on the alternative charge, convicted the appellants u/ss. 302 and 307 read with s. 120-B IPC.

The charges had indeed been framed in the alternative and for cognate offences having similar ingredients as to the main allegation of murder. Section 386 Cr. P. C. refers to the power of the appellate court, and the provision In so far relevant for the purpose of this case, Is sub-clause (b) (ii) which empowers the appellate court to alter the finding while maintaining the sentence. It Is significant that s. 120·8 IPC is an offence and positive evidence on this score has to be produced for a successful prosecution whereas s. 34 does not constitute an offence and is only a rule of evidence and inferences on the evidence can be drawn. Therefore; the question of deemed acquittal in such a case where the substantive charge remains the same and a charge u/s 302/1208 arid an alternative charge u/s 302/34 IPC had been framed, there was nothing remiss in the High Court in modifying the conviction to one u/ss. 302/307/34 IPC.

It is also self· evident that the accused were aware of all the circumstances against them. [Para 25 and 27) [189-F-H; 191-F-H; 192-A-8] Lachhman Singh & Ors. Vs. The State 1952 SCR 839 = AIR 1952 SC 167; and Dalbir Singh vs. State of U. P. 2004 (5) sec 334 - relied on Sangaraboina Sreenu vs. State. of A. P. 1997 (3) SCR 957 =1997 (5) SCC 348; and Lakendra Singh vs. State of M. P. 1999 sec (Crl) 371 stood overruled. Bimla Devi & Anr. vs. State of J & K 2009 (7 ) SCR 486 = 2009 (6) sec 629 - held per incurium . Lakhan Mahto vs. State of Bihar 1966 (3) SCR 643 held inapplicable. Pradesh vs. Thadi Narayana 1962 (2) SCR 904 distinguished. Kishan Singh vs. Emperor AIR 1928 P. C'. 254 - referred to. 7. As regard the plea that the trial court failed to put all relevant questions to the accused while recording their statements u/s 313 Cr. P.

C:, the latest position in law· appears to be that prejudice musf be shown by an accused before it can be held that he was entitled to acquittal over a defective and perfunctory statement u/s 313. In the course of the evidence, the entire prosecution story with regard to the circumstances Including those of conspiracy and common Intention had been brought out and the witnesses had been subjected to gruelling and detailed cross-examinations. Besides, the Incident. has been admitted, although the defence has sought to say that It happened In different circumstances. It Is also slgnally Important that all the accused had filed their detailed written statements In the matter. All these facts become even more significant In the background that no objection had been raised with regard to the defective 313 statements In the trial court.

It must be assumed, therefore, that no prejudice had been felt by the appellants even assuming that some Incriminating circumstances In the prosecution story had been left out. 0 [Para 28, 32] [194-D; 195-E-G] Shivaji Sahebrao Bobde vs. State of Maharashtra AIR 1973 SC 2622, Santosh Kumar Singh vs. State thr. CBI 2010 (9) SCC 747, Shobhit Chamar & Anr. vs. State of Bihar 1998 (2) SCR 117 =1998 (3) sec 455, relied on. Hate Singh Bhagat Singh vs. State of Madhya Bharat AIR 1953 SC 468, Vikramjit Singh vs. State of Punjab 2006 (9) Suppl. SCR 375 = 2006 (12) SCC 306) and Ranvir Yadav vs. State of Bihar 2009 (7) SCR 653 = 2009 (6) SCC 595 - referred to. 8. 1. With regard to the plea that the prosecution was barred bys. 140 of the Delhi Police Act, 1978, it is relevant to note that s.

140 of the Delhi Police Act, 1978 postulates that in order to take the shelter of the period of three months referred to therein the act done or the wrong alleged to have been done by the police officer should be done under the colour of duty or authority or in excess of such duty or authority or was of such character, and In no other case. Though, the facts of the instant case show that the cognizance had been taken by the Magistrate beyond three months from the date of incident, In the light of the decisions of this Court, It cannot, by any stretch of imagination, be claimed by anybody that a case of murder would fall within the expression 'colour of duty'. There is absolutely no connection between the act of the appellants and the allegations against them. Section 140 of the Delhi Police Act would, therefore, have absolutely no relevance in this case. [Para 32, 36-37 and 43) [195-D-G; 196-D-F; 198-D- H; 199-B; 203·B·D] Prof. Sumer Chand vs. Union of India & Ors. 1993 ( 2 ) Suppl.

SCR 123 = 1994 (1) SCC 64; 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, ~hanuprasad Hariprasad Dave & Anr. vs. The State of Gujarat 1969 SCR 22 =AIR 1968 SC 1323; and Jamuna Singh & Ors. vs. Bhadai Shah 1964 SCR 37 =AIR 1964 SC 1541 - relied on. 8. 2. As regards the sanction u/s 197 Cr. P. C. , PW-48 deposed that a request had been received from the CBI for. according sanction for the prosecution of the appellants along with the investigation report and a draft of the sanction order. He further stated that on receipt of the documents the matter had been referred first to the Law Department of the Delhi Administration, then forwarded to the Home Department and thereafter to the Chief Secretary and finally, the entire was file put up before the Lt. Governor who had granted the sanction for the prosecution of the ten officials.

It is true that certain other material which was not yet available with the CBI at that stage could not obviously have been forwarded to the Lt. Governor, but from the various documents on record, it is evident that even on the documents, as laid, adequate material for the sanction was available to the Lt. Governor. The sanction order dated 10-10- 2001 is extremely comprehensive as all the facts and circumstances of the case had been spelt out In the 16 pages that the sanction order runs Into. [para 46] [204- B·F] State of Karnataka vs. Ameerjan 2008 (1) SCC (Crl) 130; S. B. Saha & Ors. vs. M. S. Kochar 1980 (1) SCR 111 =AIR 1979 SC 1841 - referred to. 9. 1. So far as the plea for acquittal of Head Constable A-6 that as he did not fire at the car is concerned, admittedly, as per his own showing, he had used his service weapon and fired one shot therefrom.

The prosecution story is that he had fired at the car whereas o the defence is that he had fired the shot in the air to keep the crowd away. It appears that the crowd had collected only after the shooting had ceased. There is no evidence whatsoever to show that any crowd had collected while the firing was going on or that a single shot had been fired after the volley of 34 shots. The large number of photographs of the site show that the crowd that had gathered after the shooting, was perfectly disciplined and keeping a reasonable distance away from the Esteem car and the dead bodies lying around it. Admittedly, there is absolutely no evidence with regard to the defence taken by A-6. The story projected by him in his 313 statement is not supported by any evidence whatsoever. His case, therefore, cannot be distinguished from the other seven accused who had admittedly fired at the car. [para 50) [207-8-H] 9. 2.

It is significant that these seven police officers had admitted to firing into the vehicle but it is their case in their statements u/s 313 of the Cr. P. C. as also their written statements that they had done so only on the direction of A-1, a superior officer. They have accordingly direction of A-1, a superio·r officer. They have accordingly sought the benefit of s. 79 IPC. However, there is absolutely no evidence that the fl. ring had been resorted to by the seven appellants on the_ order of A-1 as it has been found that it was pursuant to the common intention of all the accused that the incident had happen~d. It is also relevant that the statements made by these seven appellants are not admissible in evidence against A-1, being a co-accused. [para 52 and 54] [208-B, G-H; 209-A· B] Vijendrajit Ayodhya Prasad Goel vs. State of Bombay AIR 1953 SC 247 and SP. Bhatnagar & Anr. vs. The State of Maharashtra AIR 1979 SC 826 - relied on 9. 3. Section 315 Cr. P. C.

now makes an accused a competent witness in his defence. The seven appellants did not choose to come into the witness box to support their plea based on the orders of A-1, a superior officer, and, therefore, in the face of no evidence, the story projected by them cannot be believed. [para 54] [209-C- ~ 1O. On an overall view of the evidence in the case, this Court finds no fault with the judgments of the trial court as well as the High Court. [para 55] [209-E-F] Ram Nath Madhoprasad & Ors. vs. State of M. P. AIR 1953 SC 420; Lakhjit Singh & Anr. vs. State of Punjab 1994 Suppl. (1) SCC 173; Dinesh Seth vs. State of NCT of Delhi 2008 (12) SCR 113 =2008 (14) sec 94. cited Case Law reference: 2010 (3 ) SCR 236 retied on para 5 AIR 1953 SC 420 cited para 5 1997 (3) SCR 957 stood overruled para 5 1999 sec (Crl) 371 stood overruled para 5 2009 (7 ) SCR 486 held per incurium para 5 AIR 1928 P. C.

254 referred to para 5 1966 (3) SCR 643 held inapplicable para 5 1962 (2) SCR 904 distinguished para 5 AIR 1953 SC 468 referred to para 5 2006 (9) Suppl. SCR 375 referred to para 5 2009 (7) SCR 653 referred to para 5 1964 SCR 37 relied on para 5 1993 ( 2 ) Suppl. SCR 123 relied on para 5 2008 (1) sec (Crl) 130 referred to. Para 5 1962 Suppl. SCR 848 relied on para 7 1994 Suppl. (1) sec 173 cited para 9 2004 (5) sec 334 relied on para 9 2008 (12) SCR 113 cited para 9 1998 (2) SCR 117 relied on para 9 2010 (9) sec 747 relied on para 9 AIR 1964 SC 33 relied on para 9 AIR 1966 SC 1783 relied on para 9 AIR 1966 SC 1786 relied on para 9 1969 SCR 22 relied on para 9 1980 (1) SCR 111 referred to para 9 2004 (2) sec 203 held inapplicable para 10 201o (1 O) sec 259 relied on para 22 1952 SCR 839 relied on para 25 AIR 1973 SC 2622 relied on para 26 AIR 1953 SC 247 relied on para 53 AIR 1979 SC 826 relied on para 53 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2231 of 2009.

From the Judgment & Order dated 18. 9. 2009 of the High Court of Delhi at New Delhi in Crl. Appeal No. 671 of 2007. WITH. Crl. Appeal Nos. 2476, 2477-2483 & 2484 of 2009. H. P. Raval, ASG, Amarendra Sharan, R. Balasubramanian, Uday U. Lalit, S. Chandra Shekhar. Manoj Kumar, Sanchit Guru, Suraj Rathi, Somesh Chandra, Ram Raghvendra, S. Sadashiv Reddy, S. Usha Reddy, Vineet Dhanda, J. P. Dhanda, Raj Rani Dhanda, Amrendra Kr. Singh, N. A. Usmani, Manu Sharma, Vinay Arora, Sanjay Jain, P. K. Dey, Padmalakshmi Mridul, Madhurima Mridul, Anirudh Sharma, Harsh N. Parekh, Anando Mukherji, S. K. Saxena, Subash Kaushik, Ranjana Narayana, Arvind Kumar Sharma, Anil Karnwal, Chander Shekhar Ashri for the appearing parties. The Judgment of the Court was delivered by HARJIT SINGH BEDI, J. 1. This judgment will dispose of Criminal Appeal Nos. 2231of2009, 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. ).

2. On the 31st March 1997 Jagjlt 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 sho1~d 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, SATYAVIR SINGH RATHI v. STATE THR. C. 8. 1. 161 [HARJIT SINGH BEDI, J. ] resembled Mohd. Yaseen, the wanted criminal. The ACP, along with a police party consisting in all of 12 persons, left the Interstate 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) lnsp. Anil Kumar . 38 Revolver No. 1147 (iii) SI Ashok Rana . 38 Revolver No. 1139 (iv) SI A Abbas . 38 Revolver No. 1. 114 (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 3. 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 [HARJIT SINGH BEDI, J. ] 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/ 201/120-8/34 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 Offence for which Sentence awarded appellant convicted Satyavir Singh U/Sections 1208 IPC,302 IPC Under Section 1208 IPC Rathi, ACP, read with 1208 IPC,307 IPC imprisonment for life & Delhi Police read with 1208 IPC, 193 IPC afine of Rs. 100/-. read with 1208 IPC, 193 IPC, Under Section 302 IPC 201/34 IPC and 203/34 IPC read with Section 1208 IPC- imprisonment for Life and a fine of Rs. 100/- Under Section 307 IPC Read with Section 1208 IPC-imprisonment for life and afine of Rs. 100/- Under Section 193 IPC read with Section 1208 IPC rigorous imprisonment for 7years and afine of Rs. 100/- Under Section 201 IPCrigorous imprisonment for 7 years and a fine of Rs. 100/-. Under Section 302 IPC rigorous imprisonment for SATYAVIR SINGH RATH! v. STATE THR. C. B. I. 165 [HARJIT SINGH BEDI, J. ] 2 years.

Anil Kumar, LI/Sections 120B IPC,302 IPC LI/Section 120B IPC- InspectorOf r/w 120B IPC,3071PC r/w imprisonment for life Police, Delhi 120B IPC 193 IPC r/w 120 B and a fine of Rs. 100/- Police IPC,193 IPC,201/34 IPC And 203/34 IPC UIS 302 IPC read with 8 Section 120B IPC imprisonment for life and a fine of Rs. 100/- UIS 307 IPC r/w Sec. 120B IPC-imprisonmentforlife and a fine of Rs. 100/-. U/S 193 IPC r/wSec. 120B ! PC-rigorous imprisonment for 7 years and afine of Rs. 100/-. UIS 201 IPC - rigorous imprisonment for 7 years and afine of Rs. 100/-. UIS 203 IPC - rigorous imprisonment for 2years. Ashok Rana, LI/Sections 120B IPC,3021PC UIS 120B IPC- imprison- Sub-Inspector r/w 120B IPC,307 IPC r/w ment for life and a fine of of Police, 120B lPC, 193 IPC r/w Rs. 100/- Delhi Police 120BIPC U/S 302 IPC r/w Sec. 120B IPC - imprisonment for life and afine of Rs. 100/- UIS 307 IPC r/w Sec. 120B IPC- imprisonment for life and a fine of Rs. 100/-. UIS 193 IPC r/wSec.

120B IPC- rigorous imprisonment for 7 years and afine of Rs. 1001-. UIS 201 IPC - rigorous imprisonment for 7 years and a fine of Rs. 1001-. UIS 203 IPC - rigorous imprisonment for 2years. AshokRana, U/Sections 120B IPC,3021PC UIS 120B IPC - imprison- Sub-Inspector rlw 120B IPC,307 IPC rlw ment for life and a of Police, 120B IPC,193 IPC r/w fine of Rs. 1001- Delhi Police 120BIPC U/s 302 IPC rlw S. 120B IPC- imprisonment for life and a fine of Rs. 1001-. UIS 307 IPC rlw S. 120B D_ IPC- imprisonment for life and afine of Rs. 100/-_ UIS 193 IPC rlw S. 120B IPC- rigorous imprisonment for 7 years and a fine of Rs. 1001-. Shiv Kumar, 120B IPC,302 IPC r/w UIS 120B IPC- - Head 120B IPC 307 IPC r/w 120B imprisonmentfor Constable, IPC,193 IPC r/w 120B IPC life and a fine of Rs. 1001- Delhi Police UIS 302 IPC rlw S. 120B IPC- imprisonment for life and a fine of Rs. 100/-. UIS 307 IPC r/w S. 120B IPC- imprisonment for life and a fine of Rs. 100/-. UIS 193 IPC r/w S.

120B IPC- rigorous imprisonment for 7 years and afine of Rs. 1001- SATYAVIR SINGH RATH! v. STATE THR. C,8. 1. 167 [HARJIT SINGH BEDI, J. ] Taj Pal Singh, 1208 IPC,302 IPC rlw 1208 UIS 1208 IPC- Head IPC,307 IPC rlw 1208 IPC, imprisonment for life and Constable, 193 IPC r/w 1208 IPC a fine of Rs. 1001- Delhi Police UIS 302 IPC rlw S. 1208 IPC- imprisonment for life and afine of Rs. 1001- UIS 307 IPC rlw S. 1208 IPC- imprisonment for life and afine of Rs. 1001-. UIS 193 IPC rlw S. 1208 ! PC-rigorous imprisonment for 7 years and a fine of Rs. 1001- MahavirSingh, 1208 IPC,3021PC r/w UIS 1208 IPC - imprison- Head Const. 1208 IPC,307 IPC rlw 1208 ment for life and a fine of Delhi Police IPC,193 IPC r/w 12081PC Rs. 1001- UIS 302 IPC rlw S. 1208 IPC-imprisonment for life and a fine of Rs. 1001- UIS 307 IPC rlw S. 1208 IPC- imprisonment for life and a fine of Rs. 1001-. UIS 193 IPC rlw S. 1208 IPC- rigorous imprisonment for 7 years and a fine ofRs. 1001-.

Sumer Singh, 1208 IPC,302 IPC r/w 1208 UIS 1208 IPC - imprison- Const. IPC 307 IPC rlw 1208 IPC, ment for life and a fine Delhi Police. 193 IPC rlw 1208 IPC ofRs. 1001-. UIS 302 IPC rlw S. 1208 IPC- imprisonment for life and afine of Rs. 1001-. UIS 307 IPC r/w S. 120B IPC- imprisonment for life and afine of Rs. 100/- UIS 193 IPC r/w S. 120B IPC - rigorous imprisonment for 7 years and afine of Rs. 1001-. Subhash 120B IPC,302 IPC rlw 120B UIS 120B IPC- impriso- Chand, Const. IPC,307 IPC rlw 120B IPC, nment for life and a fine Delhi Police 193 IPC r/w 120B IPC of Rs. 1001-. UIS 302 IPC rlw S. 120B IPC- imprisonment for life and a fine of Rs. 1001-. UIS 307 IPC r/w S. 120B IPC- imprisonment for life and afine of Rs. 1001- UIS 193 IPC rlw S. 120B IPC- rigorous imprisonment for 7 years and a fine of Rs. 1001-. Sunil Kumar, 120B IPC,302 IPC r/w U/S 120B ! PC-imprison- Const. 120B IPC, 307 IPC rlw ment for life and afine of Delhi Police 120B IPC,193r/w120B IPC Rs. 1001-. UIS 302 IPC rlw S.

120B IPC- imprisonment for life and a fine of Rs. 1001-. UIS 307 IPC r/w S. 120B IPC- imprisonment for life and afine of Rs. 1001-. UIS 193 IPC rlw S. 120B IPC - rigorous imprisonment for 7 years and a fine of Rs. 1001-. [HARJIT SINGH BEDI, J. ] Kothari Ram, 1208 IPC,302 IPC r/w U/S 1208 ! PC-imprison- Const. 1208 IPC, 307 IPC r/w 1208 mentfor life and afine of Delhi Police IPC,193 IPC r/w 1208 IPC Rs. 100/-. U/S 302 IPC r/w S. 1208 IPC- imprisonment for life and afine of Rs. 100/-. UIS 307 IPC r/w S. 1208 · IPC- imprisonment for life and afine of Rs. 100/-. UIS 193 IPC r/w S. 1208 IPC~ rigorous imprisonment for 7 years and afine of Rs. 100/-. 4. All the substantive sentences were directed to run o 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 302/1208 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 1208 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. 5. 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 0 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 SATYAVIR SINGH RATHI v. STATE THR. C. 8. 1. 171 [HARJIT SINGH BEDI, J. ] 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 deenied 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 302/1208 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 Simla 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 0 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 ehable him to effectively meetthe 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 tight 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) sec 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 ehvisaged in Section 140 of the Delhi Police Act, 1978 and on the tactual 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. 6. 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 15 persons in all in the police party and of them only 10 persons 0 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. 7. 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 [HARJIT SINGH BEOI, J. ] 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. 8. 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 actihg 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. 9. 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 Jagjlt 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 Lakendra 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 Simla 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 ,' [HARJIT SINGH BEDI, J. ] 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 0 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. 10. 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 deposP. d 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. 11. 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 H' the Dena Bank Branch at Connaught Place and it was after [HARJIT SINGH BEDI, J. ) 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. 12. 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 Gaeta 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. 0 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 SATYAVIR SINGH RATH!

v. STATE THR. C. 8. 1. 179 [HARJIT SINGH BEDI, J. ] the bullet holes as the shots woula 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 0 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 0 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. 13. 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 1. mdue interest had been taken by the offending police officials is also clear from Ex. P/10 a [HARJIT SINGH BEDI, J. ] 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 afterthe 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 0 who examined the weapon, could find no identifiable finger prints thereon. 14.

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 a