Aguiar Commission

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The Aguiar Commission Report on the Extra Judicial Executions by the Bombay

Police

Alarmed at the growing number of police encounters in Mumbai, in which invariably dreaded armed

gangsters were killed by police without the latter getting injured, two civil rights bodies: the

Committee for the Protection of Democratic Rights (CPDR) and the People's Union of Civil Liberties

(PUCL) petitioned the High Court for an inquiry into these encounters last year. The Samajwadi party

also filed a petition asking for an inquiry into the killing of a criminal Javed Fawda, who they claimed

was actually a peanut vendor called Abu Sayama.

The High Court took up the 3 petitions jointly and finding prima facie evidence of a disturbing patternin the encounters, ordered an inquiry into 2 of them: the killing of Javed Fawda and that of Sada

Pawle and Vijay Tandel, in August and September 97 respectively. The inquiry was carried out by

Judge A S Aguiar, principal judge of the Bombay Sessions Court. It was held in February-March 98.

The Samajwadi Party presented Abu Sayama's sister Rubina as its main witness, and the CPDR

presented four eye-witnesses to the killing of Sada Pawle and Vijay Tandel. Three of them, Sada's

immediate family, turned hostile, while one, a family friend, stood his ground. Advocates P A

Sebastian, Lalit Chari and Majeed Memon appeared for the petitioners, while Srikant Bhat and

Harshad Ponda appeared for the police.The National Human Rights Commission intervened, and

was represented by Advocate P M Pradhan and Advocate Misar.

Judge Aguiar presented his report to the High Court in July. It was made public on September 28. He

found the encounters to be fake. One of them may never have taken place, he said; while in the

other, the victims did not appear to have been armed.

The Aguiar Commission Report

IN THE HIGH COURT OF SESSIONS FOR GREATER BOMBAY

ENQUIRY N0. 1 OF 1998

(CRIMINAL WRIT PETITION N0. 1032 OF 1997)

WITH

ENQUIRY N0. 2 OF 1998


AND


I N D E X Pg. No.

FINDINGS 1-A.

I. PRELIMINARIES. 3-30

II. CASE OF MISTAKEN IDENTITY. 3-74

III. DEATH OF ABU SAYAMA @ JAVED

ABU TALIB SHAIKH. 75-129

IV. DEATH OF SADA PAWALE

AND VIJAY TANDEL. 129-223

F I N D I N GS

I. CASE OF MISTAKEN IDENTITY:

There is no substance in the Petitioners case that the police have killed Abu Sayama @ Javed Abu Talib Shaikh, mistaking

him for some other notorious gangster called Javed Fawda. There is no case of mistaken identity.

II. DEATH OF ABU SAYAMA @ JAVED ABU TALIS SHAIKH:

The deceased Javed Fawda @ Abu Sayama @ Javed Abu Talib Shaikh, was not killed in the encounter as claimed by the

police. It is doubtful whether any such encounter took place.

III. DEATH OF SADA PAWALE AND VIJAY TANDEL:

The encounter in which Sada Pawale and Vijay Tandel were killed, cannot be said to be a genuine encounter.

Principal & Sessions Judge, Gr. Bombay

15.7.1998.

IN THE COURT OF SESSIONS FOR GREATER BOMBAY. ENQUIRY NO.1 OF 1998


l. Abu Asim Azmi )

2. Smt. Shaila Satpute. )

3. Waqarunnisa Ansari. ) ... Petitioners.

V/s.

State of Maharashtra. )

R. H. Mendonca ) Commissioner of Police, )

Mumbai )

3. Vasant Raghunath Dhobale, )

Inspector of Police, )

Crime Branch, C.I.D.) ... Respondents.

WITH

ENQUIRY N0.2 OF 1998.

(CRIMINAL WRIT PETITION N0. 1146 OF 1997).

l. Peoples Union for Civil Liberties. )2. Shri Yogesh Vadilal Kamdar ) ... Petitioners.

V/s.

bay Police http://www.oocities.org/indianfascism/fascism/bom

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. .

l. Peoples Union for Civil Liberties. )

2. Shri Yogesh Vadilal Kamdar ) ... Petitioners.

V/s.

The State of Maharashtra. )

The Director General of Police, Maharashtra, Mumbai. )

The Commissioner of Police, Mumbai. )

Coroner of Mumbai. )

5. The National Human Rights Commission, New Delhi-110 001 )

AND

CRIMINAL WRIT PETITION N0. 1064 OF 1997.

The Committee for the Protection of Democratic Rights, Mumbai 400 005. ) ... Petitioners.

V/s.

The Government of Maharashtra )The Director General of Police, Maharashtra, Mumbai. )

3. The Commissioner of Police, Mumbai. ) ... Respondents.

Coram: His Honour The Principal and

Sessions Judge, Shri A.S.Aguiar.

Date: 15th July 1998.

Shri A.Majeed Memon with Shri S.G.Abbas Kazmi for

-3

the Petitioner in Writ Petition No.1032 of 1997.

Shri Srikant Bhatt - Special Public Prosecutor with

Shri S.Golkar for Respondent Nos.l, 2 and 3 in Writ

Petition No. 1032 of 1997:

Shri Lalit Chari with Miss Z. Cooper and Shri F. M. Saldanha for

the Petitioners in Writ Petition No.1146 of 1997.

Shri H.H.Ponda with Ms.Usha Kejriwal - Special Public

Prosecutor for Respondent Nos.l to 4, in Writ Petition

No.1146 of 1997.

Shri P.M.Pradhan with Shri H.G.Misar for Respondent No.5in Writ Petition No.1146 of 1997.

Shri P.A.Sebastian with Miss Adenwalla for the Petitioners in Writ Petition No.1064 of 1997.

Shri H.H.Ponda with Ms.Usha Kejriwal - Special Public Prosecutor for Respondent Nos.l to 3 in Writ Petition No.1064 of

1997.

PRELIMINARIES :

The enquiry is held pursuant to the directions of the Honble High Court (Coram: A. P. Shah & J. A. Patil, JJ. ) in order a

dated l0th December 1997, directing the Principal Judge, City ,Civil and Sessions Court to hold an enquiry into the death of

Abu Sayama Javed Talib Shaikh in police encounter on 28thAugust 1997 and also the identity of the deceased Abu

Sayama @ Javed Talib Shaikh, who is alleged to have been killed on a mistaken identity as Javed Fawda, and in the deaths

of Sada Pawale and Vijay Tandel killed in the encounter on 26.9.1997 and also, to find out whether the encounters in which

the above persons died, were genuine, or stage-managed encounters. By the said order, the Honble High Court directed the

Principal and Sessions Judge to record evidence of relevant witnesses and to submit report within three months from the

date of receipt of the Writ. The Honble High Court also directed that copies of the relevant Writ Petitions and Affidavits along

with the enclosed/annexed documents and Affidavits be forwarded to the Sessions Judge who is required to examine the

deponents of such Affidavits as well as the concerned officers. By the said order, the Honble High Court clarified that the

Petitioners-Organisations will be entitled to be heard in the enquiry to be conducted by the Sessions Judge. By the said

order, the Respondents were directed to file in the Honble High Court all the original papers pertaining to the encounter

deaths of the said three persons within two days and the Registrar, High Court, was directed to forward the same to the

Sessions Judge along with a copy of the said order and other relevant papers in a sealed cover. By the said order, the

Honble High Court directed the Sessions Judge to send notice to the Petitioners as well as the Respondents.

2. The Learned Registrar, High Court, by his Letter dated 23rd/29th December 1997, bearing No. R.1611/204/97 forwarded

to this Court the original papers which were delivered to him by the Addl. Public Prosecutor, High Court in two sealed

envelopes marked as C. R. No.363 of 1997, ( M. R. A. Marg Police Station) and C.R.No.268 of 1997 (Tilak Nagar Police

Station). On receipt of the said letter from the Registrar of the Honble High Court along with the papers as stated above, this

Court issued notice dated 9.1.1998 to the Petitioners and the Respondents including the Human Rights Commission to

present themselves before the Court The notice was made returnable on 16.1.1998. The notice was duly served on the

parties. On the said date i.e. 16.1.1998, the Petitioners in Criminal Writ Petition No.1032 of 1997, were present with their

Advocate Mr. Majeed Memon. Respondent No.3, API Dhobale was personally present Respondent Nos. l and 2; namely, the

State of Maharashtra and the Commissioner of Police respectively were not represented. The Petitioners in Writ Petition

No.1146 of 1997 were represented by Advocate Lalit Chari while the Petitioners in Writ Petition No.1064 of 1997 were

represented by Advocate Mr. P. A. Sebastian. The Registrar Mr. U. D. Waghmare of the Coroners Court was present. None

appeared for the State and none appeared for N. H. R. C. though served. A fax message dated 14.1.1998 received from N.H. R. C. Respondent No.5 was received, requesting for copies of the Writ Petition.

3. At the said hearing it was agreed that the Court may commence examining deponents who have filed Affidavits in the Writ

Petitions in the High Court and for the said purpose, the Registrar (Sessions) was directed to call for the original

proceedings filed in the Honble High Court. It was decided that the enquiry be split in two parts as the enquiry pertained to

two separate incidents of police encounters - (i)the incident dated 28.8.1997 pertaining to the death of Abu Sayama @

Javed Talib Shaikh in which the identity of the person shot in the encounter is also in question, the said incident is the

subject matter of Enquiry No.l. The incident pertaining to the death in police encounter on 26.9.1997 of Sada Pawale and

Vijay Tandel is the subject matter of Enquiry No.2. The proceedings on both the dates were held in the chambers of the

Principal/ Sessions Judge. Since none represented the State and the police, the Chief Public Prosecutor, Mr. Paranjpe, was

required to remain present. He, however stated that he had no instructions and prayed for time. Learned Advocate for the

respective parties stated that they would decide the witnesses whom they would examine and would submit a list of such

witnesses. The enquiry was adjourned to 23.1.1998 with directions to the respective parties to keep their witnesses present.

Advocate Sebastian for the Petitioners in Writ Petition No.1064 of 1997 and Advocate Chari for the Petitioners in Writ

Petition No.1146 of 1997, pointed out that no Affidavits of witnesses have been filed by the Petitioners in the said Writ

Petitions, Adv. Sebastian further pointed out that since the encounter on 26.9.1997 had taken place in public view in the

middle of the road in broad daylight, it is possible that there are some eye-witnesses who would want to depose about the

incident in which Sada Pawale and Vijay Tandel were killed. He therefore prayed that notice be issued in the press informing

the public of the said enquiry requiring witnesses to come forward and depose before the Court. This Court did not accede to

the request However, liberty was granted to the Petitioners to move the Honble High Court for necessary orders/directions


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m e o t e roa n roa ay g t, t s poss e t at t ere are some eye-w tnesses w o wou want to epose a out t e

incident in which Sada Pawale and Vijay Tandel were killed. He therefore prayed that notice be issued in the press informing

the public of the said enquiry requiring witnesses to come forward and depose before the Court. This Court did not accede to

the request However, liberty was granted to the Petitioners to move the Honble High Court for necessary orders/directions

for public notice in the newspapers. The enquiry was thereupon adjourned to 23.1.1998.

4. On the said date, Advocate Mr. Majeed Memon appeared for the Petitioners in Writ Petition No.1032 of 1997 while

Advocate Mr. Srikant Bhatt appeared for Respondents Nos.l, 2 and 3 in the said Writ Petition No.1032 of 1997. Advocate Mr.

Bhatt submitted copy of notification dated 25.1.1998 appointing him

Special Public Prosecutor in the enquiry on behalf of the State of Maharashtra. In Writ Petition No.1146 of 1997, the

Petitioners were represented by Advocate Mr. Lalit Chari while Advocate Mr. Sebastian appeared for the Petitioners in Writ

Petition No.1064 of 1997 and Advocate Mr. Raje for the Respondents

in Writ Petition Nos.1146 of 1997 and 1064 of 1997. Advocate I Mr. Raje stated that he represented all the three

Respondents, viz. the State of Maharashtra, Commissioner of Police and the Director General of Police and produced a

copy of the letter appointing him Special Public Prosecutor in Writ Petition Nos.1064/97 and 1146/97 on behalf of the State

of Maharashtra. He however stated that his appearance was restricted only to the Respondents in Criminal Writ Petition

Nos. 1146/97 and 1064/97 i.e. Enquiry No.2/98. None was present on behalf of the N. H. R. C. How ever, Registrar of the N.

H. R. C. had earlier telephoned the Court stating that the N. H. R. C. had applied to the Honble High Court for copies of the

Writ Petitions, praying that the enquiry be adjourned to enable the N.H.A.C. to appoint Counsel to represent N.H.R.C. at the

enquiry. Advocate Mr. Sebastian on behalf of the C.P.D.R. in Writ

Petition No.1146/97 stated that he had applied to the Honble High Court for directions regarding issue of public notice in the

newspapers. However, since the Bench which passed the order dated 10.12.1997 was not sitting, he prayed that the matter

be adjourned. Advocates Mr. Raje and Mr. Bhatt for the

Respondents stated that the Notification appointing them as Public Prosecutors was received by them only the previous

evening. They therefore applied for three weeks time to study their briefs. They further prayed for time to move the High

Court for clarification in connection with the order dated 10.12.1997 passed by the Honble High Court Advocate Mr. Majeed

Memon on behalf of the Petitioners in Writ Petition No.1032/97, stated that he had kept his witnesses, namely the persons

whose Affidavits were filed in the Honble High Court present However, since there was some controversy whether thewitnesses of the Respondents or the Petitioners were to be examined first, I directed the Petitioners in Enquiry No.l/98 to

examine the witnesses on the next date and adjourned the enquiry to 6.2.1998. A letter dated 3.9.1997 addressed to the

Chief Justice was received from the wife of the deceased Meenakshi Tandel, a copy of which was forwarded to this Court

and was taken on record. Similarly, letter dated 30.9.1997 addressed to N. H. R. C. was also taken on record. Registrar

(Sessions) was directed to issue summonses to Meenakshi Tandel and Hausabai Tawade.

5. On 6.2.1998, Advocate Mr. Memon appeared for the Petitioners in Writ Petition No.1032/97 while Advocate Mr. P. A.

Sebastian appeared for the Petitioners in Writ Petition No.1064/97.

The Respondents in all the three Writ Petitions were represented. (Advocate Mr.S. Bhatt in Writ Petition

No. 1032/97 and Advocate Mr. Raje in Writ Petition Nos.1064/97 and 1146/97 were also present). Registrar Mr. R.S. Jain

from the N. H. R. C. was also present along with Advocate Mr. Pradhan and Advocate Mr. Misar for N.H.R.C. Advocate

Pradhan with Advocate Misar for N. H. R. C. prayed that the Respondents-N. H. R. C. be allowed to intervene in the present

enquiry No. 1/98 although N. H. R. C. was not a party to the Writ Petition No.1032/97. The application was allowed.

Similarly, Advocate Mr. Sebastian for the Petitioners in Writ Petition No. 1064/97 prayed that although the C. P. D. R. was not

a party to the Writ Petition No.1032/97, the C.P.D.R. be allowed to intervene in Enquiry No.l/98 as the death of Abu Sayama

Javed Talib Shaikh was allegedly a death in fake encounter. The application was granted. Advocate Mr. S. Bhatt on behalf ofthe Respondents filed an application being Misc.Appln.No.3/98 requiring this Court to lay down the procedure for conducting

the enquiry. For reasons recorded separately, the application was rejected. Advocate Mr. S. Bhatt also filed application being

Misc. Appln. No.4/98 requiring the Court to first examine Abu Azmi the Petitioner No. l in Writ Petition No.1032/97. The said

application was rejected.

6. The points that arise for consideration in the said Enquiry No.1/98 were discussed,

settled and framed. The same are marked as Ex.5. Advocate Mr. Majeed Memon for the Petitioners

stated that his witness, Rubina wife of Javed was present and was ready to depose before the Court.

However, Advocate Bhatt prayed for time to move the Hon ble High Court for clarifying the procedure,

which application was rejected. Advocates Mr. Raje for the Respondents and Mr. Sebastian for the

Petitioners in Writ Petition Nos.1064/97 and 1146/97 stated that the application made to the Honble

High Court for issuing public notice in the newspapers inviting witnesses to depose before this

Court was adjourned to 16.2.1998. In view thereof, the witness summonses directed to be

issued to the witnesses was stayed and Misc. Appln. No. I /98 was disposed off. On the said date, since the witness on

behalf of the Petitioners in Writ Petition No.1032/97 viz. Rubina wife of Sayed Javed (PW 1 ) who claimed to be the sister of

the deceased Abu Sayama @ Javed Talib Shaikh was present, she was examined and thereafter, partly cross examined by

Advocate for the Respondents, Mr. Bhatt and the matter was adjourned to 9.2.1998. The matter thereafter continued from

day to day and evidence of witnesses was recorded. On 18.2.1998, Advocate for the respective parties stated that the High

Court had passed certain orders in connection with the further progress of the enquiry. However, copy of the said order was

not received and hence the matter was adjourned. The said order of the Honble High Court dated 17.2.1998 was received

by this court on 19.2.1998. By the said order dated 17.2.1998, the time for submitting the report of this Court was extended

by one month. By the said order, the Hon ble High Court clarified that the enquiry was an informal enquiry. It was further

clarified that the statements made by the police officers in the said enquiry was not to be used against them in any other

proceedings including a possible criminal prosecution against them.

7. By the said order, the Court however directed that the questions to whether the examination of Abu Asim Azrni and the

other Petitioners is necessary or not, is to be decided by the Sessions Judge. Regarding the enquiry into the death of Sada

Pawale and Vijay Tandel, the court recorded the statements made by Advocate Mr. Rane ; and Advocate Mr. Sebastian that

they would give a list of witnesses whom they proposed to examinee and also file their Affidavits within two weeks from thesaid date and the Sessions Judge was directed to give reasonable time to the other side in order to prepare for cross

examination. By the said order, by consent of all the parties, the Honble High Court-was pleased to adjourn the enquiry to


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, . .

they would give a list of witnesses whom they proposed to examinee and also file their Affidavits within two weeks from the

said date and the Sessions Judge was directed to give reasonable time to the other side in order to prepare for cross

examination. By the said order, by consent of all the parties, the Honble High Court-was pleased to adjourn the enquiry to

2.3.1998.

8 On 2.3.1998, this Court heard the arguments by learned Advocates for the respective parties on the point of examining

the Petitioner Abu Asim Azmi and reserved orders on the said application till 27.3.1998,on which date this Court rejected the

application for examining Petitioner Abu Asim Azmi. On 1231998, Learned Advocates for the Petitioners Mr. Majeed

Memon, filed application Ex.l6, praying that the Respondents be directed to examine Respondent No.2, Commissioner of

Police, Mr. Mendonca and Respondent No.3, API Dhobale. On 1731998, Advocate Mr.Memon for the Petitioners inquire

whether the Respondents would be examining API Dhobale and the Commissioner of Police, Mr.Mendonca, as prayed for in

the application Ex.l6. Advocate Bhatt stated that he would be examining API Dhobale but he will not examine the

Commissioner

of Police. In view of this statement, Advocate Memon did not press for examining the Commissioner of Police and hence

application Ex.l6 was disposed off. On 18.3.1998, two see packets containing papers in C.R.No.360/97 of M.R.A.Marg

Police Station and C.R.No.368/97 of Tilak Nagar Police stn. were opened in the Court and inspection was taken. On

20.3.1998, an application Ex.l9 was made by Advocate Majeed Memon for viewing and taking on record, video-recorded

item "Khabar Khoj" recorded and televised by Mumbai Mail In Mumbai T.V.channel. said . The application which was

opposed by Advocate Bhatt for the respondents was rejected.

9. On 27.3.1998,Advocate Memon for the Petitioners stated that witness John Fernandes was not available and therefore

did not desire to examine him. Advocate for the Respondent Mr. Srikant Bhatt stated that the Respondent did not insist on

the said witness John Fernandes being examined and with that statement evidence in Enquiry No.1/98 was closed. In this

enquiry, three witnesses were examined on be of the Petitioners and seven witnesses on behalf of the Respondents. The

Petitioners witnesses are Rubina Banu @ Javed (PW 1), the sister of the deceased Abu Sayama Javed Talib Shaikh who

filed a xerox copy receipt of the missing persons complaint (Ex.A-1) given to her by the police and the ration card Ex.A and

who took charge of the dead body of her brother Abu Sayama Javed Talib Shaikh from the J.J.Morgue. Nanu Machhan Khan

(PW Z) and Anwarkhan Mehboob Khan (PW 3) a painter, were examined in support of the Petitioners contention that the

deceased Abu Sayama was a peanut vendor and that they along with Abu Sayama were plying their trade outside the

Bandra Railway Station.

11. The Respondents have examined seven witnesses. Laxman Shankar Ekilwale (RW 1) is the police constable bearing

badge No.25713 who was on remand duty on 1.9.1997 at the Killa Court when the accused in the Gulshan Kumar murder

case were produced before the Magistrate. P.C.No.25713 (RW 1) has stated that out of the six accused, two of them namely,

Javed Wahid Khan Javed Kaliya and Rafiq Ansari were in his custody and were produced by him before the Magistrate.

P.C.No.25713 (RW 1) has emphatically denied that any lady approached the accused Javed Kaliya in his presence in the

Court or that any lady approached him while the two accused were in his custody in the compound or building of the

Esplanade Court. He further stated that at no time the two accused who were in his custody were separated from him.

,Bandu Bhau Bhosale (RW 2) is the Police Sub-Inspector attached to Bandra Police Station who has recorded the Missing

Persons Complaint lodged by Rubina (PW 1) and made the entry in the Missing Persons Diary Ex.J-1 and also the entry in

the station diary Ex.H-1. Vijay Harishchandra Kelvekar (RW 3) is the medical officer attached to the Coroners Court J. J.

hospital, Mumbai, who has proved the

memorandum of the post mortem examination Ex.O held at the J.J.Morgue on 28.8.1997 in respect of the dead body of

Javed Fawda (Body No.3469/22). Sudhakar Haribhau Ramteke (RW 4) the Asst. Chemical Analyser was examined as the

Ballistics Expert in connection with the firearms used in the said encounter. Netaji Ramchandra Tambvekar (RW 5) the

Senior Police Inspector attached to Matunga Police Station and Vasant Raghunath Dhobale (RW 7) Addl.Police Inspector

attached to C.I.U.D.C.B.C.I.D., have deposed about the encounter in which the deceased was killed on the night of27th/28th August 1997 at Sprott Road, Ballard Pier and also about the events, preparatory and subsequent to the encounter.

API Dhobale (RW 7) is the police officer who allegedly shot the deceased in the said incident. Rampyara Gopinath Rajbhar

(RW 6) is the Police Sub Inspector attached to Shivaji Park Police Station who has deposed about the arrest of Javed Talib

Shaikh along with one Maharaja Mandiran Pillai on 27.11.1996 at Antop Hill in C.R.No.339/96 registered by the Shivaji Park

Police Station.

12. After the evidence was recorded in Enquiry No.1/98 pertaining to the encounter at Sprott Road, Ballard Pier, in which

Abu Sayama Javed Talib Shaikh was killed, evidence was recorded in respect of the second incident which took place on

25.9.1998 at Rajawadi junction, Ghatkopar (East), in which the alleged sharp-shooter of the Arun Gawli gang, Sada Pawale

and Vijay Tandel were killed. So far as this incident is concerned, no Affidavits are filed in support of the Writ Petitions filed in

the High Court, viz. Writ Petition Nos.1064/97 and 1146/97. However, Affidavits-in-reply and supplementary Affidavits have

been filed by the Commissioner of Police Mr.R.Mendonca as well as the Director General of Police Mr.A.S.Inamdar and API

V.R.Dhobale in the High Court Writ Petition. Before the enquiry commenced, the sister of Sada Pawale, Hausabai Tawade

and his sister-in-law Anita 19 Pawale, had sent letters to the N.H.R.C. and Chief Justice, copies of which were sent to this

Court. Before Enquiry No.2/98 commenced Advocate Sebastian on behalf of the Petitioners also filed Affidavits of Hausabai

Tawade, Anita Pawale and Anand Pawale on 2.3.1998 before this Court. The Affidavit of Baldev Singh dated 3.3.1998, was

filed on 3.3.1998.

13. At the start of the enquiry, Advocate Chari for P.U.C stated that the P.U.C.L. does not desire to examine any witness on

its behalf and the P.U.C.L. will restrict itself to cross examining the witnesses produced by the Respondents-police. On

30.3.1998, Advocate Sebastian for the C.P.D.R. stated that none of his witnesses were available on that day and alleged

that the witnesses had been kept back a prevented from coming to the Court. He further alleged that in all probability, the 4

witnesses whom he proposed to examine had been approached or instructed by the police and that he therefore expected

them to turn hostile. Advocate Sebastian prayed that non-bailable warrants be issued again the said witnesses. Advocate

Ponda for the Respondents refuted the allegation made by Advocate Sebastian and state that the police were not in a

position to produce the said witnesses. He however, had no objection to the Court issuing non-bailable warrants to the four

witnesses proposed to be examined by the P petitioners.

14. At that stage, Advocate Sarogi came to Court and stated that he appeared on behalf of the witnesses Hausabai Tawade

and Anita Pawale and tendered Affidavit dated 27.3.1998 on behalf of the said witnesses. He stated that the witnesses are

ready to come to the Court and that they have now by

their Affidavit dated 27.3.1998, retracted their statements made in the earlier Affidavits dated 2.3.1998. On being asked to

produce the witnesses, Advocate Sarogi immediately sent for the two witnesses, viz. Hausabai Tawade and Anita Pawale

and in a short while, the said witnesses stepped into the Court. Since the other two witnesses, viz. Anand Pawale and

Baldev Singh were not present, bailable warrants were directed to be issued. The first witness Smt.Hausabai Gundu Tawade

(PW 1) was put in the box but within a short while,Advocate Sebastian declared her hostile and permission was granted to

him to cross examined the said witness. However, in view of these developments and fresh Affidavits filed by the witnesses,


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and in a short while, the said witnesses stepped into the Court. Since the other two witnesses, viz. Anand Pawale and

Baldev Singh were not present, bailable warrants were directed to be issued. The first witness Smt.Hausabai Gundu Tawade

(PW 1) was put in the box but within a short while,Advocate Sebastian declared her hostile and permission was granted to

him to cross examined the said witness. However, in view of these developments and fresh Affidavits filed by the witnesses,

on the application of Advocate Sebastian, the matter was adjourned for cross examination to 31.3.1998 on which date the

witness pleaded in the Court that she could not continue to bear the questioning. She wept and asked to be pardoned for

making the earlier Affidavit and further stated that she was not in a position to face the cross examination, and this Court

after taking physical and mental state of the witness into consideration, directed Advocate Sebastian not to continue the

cross examination and to just put his case to the witness. (See Notes of Evidence, PW/4) At the conclusion of her cross

examination, Hausabai Tawade (PW 1) pleaded that her brother and sister-in-law should not be harassed by the police. (See

foot-note in Notes of Evidence at PW1/Sl. On the same day, Advocate Sarogi stated that he now appeared for all the four

witnesses. He further stated that the witnesses required police protection as they were being pressurised from all sides and

that they are being prevented from coming to the Court. He was directed to file a written application. Thereafter, Anita Anand

Pawale (PW 2) was examined by Advocate Sebastian for the C.P.D.R. who declared the witness hostile and was grantedpermission to cross examine the witness.

15. On the next date i.e. 1.4.1998, Advocate Sarogi for the witness stated that the witness did not wish to make any written

application for police protection. However, Advocate Sebastian for the C.P.D.R. stated that in view of the statement recorded

yesterday by Hansabai Tawade (PW 1) that her sister-in-law Anita Anand Pawale and brother Anand Pawale, should not be

harassed by the police, the Court should grant police protection to the said witness. However, in view of the fact that the

evidence of Hausabai Tawade (PW 1) and Anita Pawale (PW 2) was almost completed and they would therefore not be

required to attend the Court again, the said witnesses agreed that they would not require police protection. On the said date,

Advocate Sarogi tendered the Affidavit: dated 31.3.1998 of Anand Pawale (PW 3) and Baldevsingh Jaswantsingh Panesar

(PW 4) retracting the earlier Affidavits. The next witness Anand Bhimrao Pawale (PW 3) who stepped in the witness box was

declared hostile and cross examined with the permission of the Court. for permission to permit Ms.Priyanka Kakodkar, a

journalist from the Times of India to file an Affidavit confirming what was stated in the Report in the Times of India, titled

"Police Killed Sada Pawale in Fake Encounter, alleges his sister". He further prayed that she may be summoned to depose

before the Court. Advocate Ponda prayed for time to file a written reply. Advocate Sarogi on behalf of the four witnesses filed

an application praying for police protection of the four witnesses alleging that according to him the four witnesses had been

kidnapped from their residence. The said application was summarily rejected. Since the fourth witness, Shri Baldevsingh

Jaswantsingh Panesar who had been issued a bailable warrant was not present, a non-bailable warrant came to be issuedagainst him, returnable on 3.4.1998.

17. On 3.4.1998, PI Sawant from Tilak Nagar Police Station stated that the non-bailable warrant issued against Baldevsingh

Jaswantsingh Panesar, could not be issued as he was not available at his last known address. Time for executing the said

warrant was extended upto 30.4.1998. Thereafter, on account of some intervening holidays, the enquiry was adjourned to

13.4.1998 on which day, the said witness Baldevsingh Jaswantsingh Panesar, was present in the Court and Advocate Shri

Sarogi after conferring with the

witness, prayed that the instructing Advocate Shri Shirdhonkar be discharged. Accordingly, Advocate Shirdhonkar was

discharged. On the said date, PI Sawant of Tilak Nagar Police Station stated that non-bailable warrant could not be

executed as Balwantsingh was not available at his residence as well as at his place of work. As the witness was present

non-bailable warrant was directed to be cancelled. The said witness Baldevsingh Jaswantsingh Panesar, however prayed

that he be granted police protection at his residence as well as during his journey to and from the Court as he apprehended

danger, to his life. P I Sawant of Tilak Nagar Police Station was directed to provide the necessary protection to the witness till

his deposition was completed in the Court. On the next date i.e. 15.4.1998, the examination-in-chief of Balwantsingh

Jaswantsingh Panesar (PW 4) was commenced and completed. On 21.4.1998, Advocate Sebastian for the Petitioners

stated that he did not press the application for examination of Ms.Priyanka Kakodkar, journalist with the Times of India, who

had filed a report dated 24.10.1997.. The Petitioners were however granted liberty to file the Affidavit of Ms.PriyankaKakodkar in the Court. It must be pointed out that till date, the same has not been filed.

18. As stated earlier, the Petitioners had proposed to examine four witnesses, namely, Hausabai Tawade, Anita Pawale,

Anand Bhimrao Pawale and Baldevsingh Jaswantsingh who had filed Affidavits before this Court. However, in view of the

subsequent Affidavits retracting their earlier Affidavits, the witnesses except Baldevsingh Jaswantsingh Panesar, were

declared hostile and allowed to be cross examined. So far as the Respondents are concerned, they, have examined six

witnesses, namely, Avinash Bhalchandra Sawant (RW 1), Satish Ganpat Mayekar (RW 2), Hemant Rajaram Desai (RW 3)

and police constable No.t642 Arun Dada Jadhav (RW 4). Al1 the aforesaid policemen were involved in the encounter at the

junction of Rajawadi Road and M.G.Road in which Sada Pawale and Vijay Tandel were killed. The other witnesses

examined are Advocate Sarogi (RW 5) in connection with the instructions received by him from the witnesses Hausabai

Tawade (PW 1) and others, for filing their Affidavits as well as for filing their subsequent Affidavits which were retracted.

Ashok Bhausaheb Kamble (RW 6) was examined in connection with the application for the post of fire officer with the

Bombay Fire Brigade by Baldevsingh Jaswantsingh Panesar (PW 4).

19. After the witnesses were examined, oral submissions were made on behalf of the Petitioners and Respondents in both

Enquiry No.1 and Enquiry No.2 and they were directed to file written submissions on behalf of their respective clients, which

they have done. They are on record as Ex.l7 to Ex.20 in Enquiry No. and as Ex.20 in Enquiry No. 2 and as Ex. 23,24 to Ex.

26,27 in enquiry no. 1

SCOPE OF ENQUIRY:

20. As stated earlier, this enquiry is being conducted as per the directions of the Hon'ble High Court order dated 10.12.1997.

By the said order, the Learned Judges have set out the scope of enquiry and the exact points for determination. The said

order came to be passed by the Hon'ble High Court in the above Writ Petitions. In view of the averments contained therein,

namely, that during the last couple of years, many incidents have taken place which have been described as "encounters" by

the police authorities. It is the contention of the Petitioners that they are not genuine encounters but they are executions by

the police authorities, without following the due process of law. It is further contended that the police version of the encounter

invariably says that the "police received a tip off" that a certain dreaded criminal would come to a specific place for some

work of his own and hence the police laid a trap for his arrest. As expected the criminal arrived at the scene and the police

called him by his name and asks him to surrender but he refuses to surrender. On the contrary, he opens fire. It is further

stated that the so-called criminal had the most modern and lethal weapon, such as Ak-47 or AK-56 and that he opens fire on

the police. It is further stated that the police have only indigenously made weapons which could not match the weapons of

the criminals. Despite the same, the police did not suffer any casualties. However, the so-called dreaded criminal died on the

spot. It is further pointed out that according to the Petitioners, the police picked up certain people who they thought were

criminals and shot them dead in cold blood. It is admitted that it is possible that some of the persons who were shot dead

were criminals while some others were innocent. The Petitioners have highlighted the case of Abu Sayama Javed in order to

show that an innocent Youth became a victim of the encounter stage-managed by the police. The Petitioners have alleged

that there is a general pattern in 11 the reports which had appeared in the newspaper in respect of all the encounters as


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cr m na s an s o em ea n co oo . s a m e a s poss e a some o e persons w o were s o ea

were criminals while some others were innocent. The Petitioners have highlighted the case of Abu Sayama Javed in order to

show that an innocent Youth became a victim of the encounter stage-managed by the police. The Petitioners have alleged

that there is a general pattern in 11 the reports which had appeared in the newspaper in respect of all the encounters as

given by the police themselves and reproduced by the media. The Petitioners submit that the encounters are fake

encounters and that in every encounter, the criminals sought to be arrested, dies. It is further pointed out that all the persons

who were fired upon by the police were not hit below the naval, but on other parts of the body and that no person survives

before he is taken to the hospital. It is alleged that the encounters have grossly violated the right of life guaranteed by Article

21 of the Constitution, and in view thereof, the Court has directed that the present enquiry into these incidents be held.

21. By order dated 17.2.1998, the Hon'ble High Court laid down certain parameters for holding the enquiry such as clarifying

that the enquiry was only an informal enquiry, intended to facilitate the decision on the aforesaid writ petitions pending before

the Hon'ble High Court and that the statements made by the police officers in the enquiry, shall not be used against them in

any other proceedings, Civil or Criminal and that the Petitioners will file their Affidavits within two weeks and reasonable timeought to be given to the other side to prepare their case.

22. This enquiry was conducted, keeping in view the guidelines contained in the orders of the Honble High Court dated

10.12.1997 and 17.2.1998 and this Court is required by the Honble High Court to submit its report and findings on the

issues set out by the Honble High Court by its order dated 10.12.1997.

ENQUIRY N0.1:

23. Keeping in view the directions of the Honble High Court contained in its order dated 10.12.1997 and by consent of

Learned Advocates for the respective parties, this Court has split the enquiry into two parts, being Enquiry No.1/98 and

EnquiryNo.2/98 and framed points for determination in Enquiry No.1/98 as follows:

(1) Whether the person killed in the encounter on 28.8.1997 viz. Abu Sayama Javed s/o Abu Talib

Shaikh is the notorious gangster known as "Javed Fawda" as claimed by the police?

(2) Whether the encounter on 28.8.1997, in which the alleged gangster "Javed Fawda" was killed, was a fake or genuine

encounter?

II. CASE OF MISTAKEN IDENTITY

JAVED FAWDA .- AN ENIGMA .

24. A case of mistaken identity arises when one person is mistaken for another. This necessarily pre-supposes the existence

of at least two persons. One person may be mistaken for another due to several factors such as similarity in looks, physical

characteristics or peculiarities, voice, gait, name, etc. or a combination of these factors.

25. It is the case of the Petitioners in Writ Petition No.1032/97 that Abu Sayama Javed Talib Shaikh, an innocent peanut

vendor, was killed by the police in cold blood, mistaking him to be the notorious gangster called Javed Fawda. On the other

hand, the police say that the person who was killed in the police encounter at Sprott Road, Ballard Pier, was indeed the

notorious gangster known as Javed Fawda and there is no case of mistaken identity.

26. From the above contrary positions, the following propositions arise:

i) Whether Abu Sayama Javed Abu Talib Shaikh, the innocent peanut vendor and the alleged notorious

gangster known to the police as Javed Fawda, are two different persons or one and the same person?

(ii) Whether Abu Sayama Javed Abu Talib Shaikh was

an innocent peanut vendor?

(iii) Whether the person whom the police referred to Javed Fawda was a notorious gangster/criminal?

(iv) Whether Abu Sayama Javed Abu Talib Shaikh, the brother of Rubina (PW.l) killed by the police in the encounter, is the

same person known to the Police as Javed Fawda, the notorious gangster?

27. A case of mistaken identity could arise only if it is established that Abu Sayama Javed Abu Talib Shaikh and Javed

Fawda, are two separate and distinct persons. About the existence of Abu Sayama Javed Abu Talib Shaikh, there is no

However, serious doubts have arisen about the existence of Javed Fawda as a person, distinct from Abu Sayama Javed

Abu Talib Shaikh. According to the Petitioners, Javed Fawda is a distinct person from Abu Sayama Abu Sayama was never

known as Javed Fawda. Since the two persons according to the Petitioners are separate persons, the possibility of one

being mistaken for the other, cannot be ruled out. On the other hand, the police maintain that Abu Sayama Javed Talib

Shaikh, is none other than the notorious gangster whom they know as Javed Fawda. In other words, there is only one

person known as Abu Sayama Javed Abu Talib Shaikh @ Javed Fawda and hence there is no question of a case of

mistaken identity having arisen.

28. In view of the above, it is necessary to find out if the names Abu Sayama Javed Abu Talib Shaikh and Javed Fawda refer

to two or three distinct persons or to one and the same person. The following discussion on the various aspects on the

question of mistaken identity that emerge from the evidence of the witnesses examined by the Petitioners as well as the

Respondents, will enable us to answer this question.

ABU SAYAMA @JAVED ABU TALIB SHAIKH @ JAVED FAWDA:

29. According to the Petitioners, Abu Sayama Javed Abu Talib Shaikh, who admittedly was killed in an encounter with the

police on the night of 26.8.1997 at Sprott Road, Ballard Pier, is not the notorious gangster Javed Fawda. He is an innocent

person. He was earning his livelihood by selling peanuts at the Bandra Railway Station, Bandra (West). According to Rubina

(PW 1) who claims to be the sister of the deceased, Abu Sayama was 18 years of age at the time of his death. Abu Sayama

was picked up by the police from outside the-mosque near the Bandra Railway Station, Bandra -(West). where he had gone

for namaz on 26.8.1997. According to Rubina (PW 1), she was informed by a boy who came and told her:

"Deedi, tumare Bhai Ko Char Police Pakad Ke Le Gaye." Rubina (PW 1) claims that she immediately rushed to the Bandra

Police Station and from there to the Crime Branch which is just behind the Bandra Police Station and made enquiries but

was told that her brother was not there and to make enquiries at other Police Stations. Rubina (PW 1) further claims thatthereafter she made enquiries at the Santacruz, Vile Parle, Andheri, Goregaon and other Police Stations but her brother was

not at these police stations. Rubina (PW 1) claims that the next day again she went to the Bandra Police Station and was


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was told that her brother was not there and to make enquiries at other Police Stations. Rubina (PW 1) further claims that

thereafter she made enquiries at the Santacruz, Vile Parle, Andheri, Goregaon and other Police Stations but her brother was

not at these police stations. Rubina (PW 1) claims that the next day again she went to the Bandra Police Station and was

again informed that her brother was not there and was told to look for him at some other place. Again on the next day, i.e.

the third day, she went to the Bandra Police Station and begged the concerned police officer to record her complaint. Rubina

says "I touched his feet and pleaded with him to record my complaint of my missing brother", and it appears that the officer

recorded the said missing persons complaint in the station diary as well as in the missing persons diary. The same are on

record as Ex.H-1 and Ex.J-1. Rubina (PW 1) further claims that for eight days thereafter, she made enquiries at all the police

stations which she had visited

earlier and only on the eighth day, she went to the Killa Court. (However, she corrected herself and said that she went to

Killa Court on the 1st).

WHATS IN A NAME :

30. The question might otherwise be dismissed as mere rhetoric, but not in the present case, because thereupon hangs the

answer to another vexed question, namely, whether the names Abu Sayama, Javed Abu Talib Shaikh and Javed Fawda,

refer to one person or to different persons.

31. Throughout her examination-in-chief, Rubina (PW 1) has referred to her brother as Abu Sayama. Rubina (PW 1) claims

that after much persuasion, the Bandra police recorded the missing persons complaint Ex.H-1 on 28.8.1997. A perusal of

the missing persons complaint Ex.H-1 and the diary entry Ex.J-1, shows that Rubina (PW 1) has given the name of her

missing brother as Javed Talib Shaikh. Nowhere in the missing complaint, has the name Abu Sayama been used. However,

in her evidence, Rubina (PW 1) has throughout referred to her deceased brother only as Abu Sayama and not

Javed Abu Talib Shaikh. It is only in cross examination that Rubina (PW 1) has reluctantly admitted that her deceased

brother was affectionately referred to as "Javed". The absence of the name "Abu Sayama" in the missing persons complaint

Ex.H-1 and the diary entry Ex.J-1 and the failure on the part of Rubina (PW 1) to refer to her deceased brother as "Javed

Talib Shaikh" in her evidence is perplexing. Are they the names of Rubina's two brothers or do the two names refer to only

one brother who was aged 18 years at the time of the incident or is there an attempt to obfuscate the issue?

32. It is an admitted position that Rubina's brother ,Javed Abu Talib Shaikh was arrested by the Shivaji Park Police Station inC.R.No.339/96 on a charge of attempt to murder. Nowhere in the police papers in the said C.R., does the name Abu

Sayama appear. ln fact, in his statement recorded in the said C.R., the accused named Abu Talib Shaikh has given the

name of his brother as Abu Sayama and sister as Rubina.

33. According to the police, the fingerprints of Javed Abu Talib Shaikh arrested in C.R.No.339/96 of Shivaji Park Police

Station, tally with the fingerprints of the deceased obtained by the M.R.A.Marg Police Station after the incident. The

deceased according to the police was known as "Javed Fawda". The opinion of the fingerprint expert is annexed to the

petition and has not been challenged either by the Petitioners or the Respondents.

34. The body of the deceased referred to by the police as Javed Fawda was claimed by Rubina (PW 1) as the sister. Rubina

(PW 1) alleges that she was forced to refer to her brother as Javed Fawda while claiming the body and was told that unless

she referred to the body as that of Javed Fawda, the same would not be handed over to her. There is therefore no dispute,

and it is established beyond doubt, that the body claimed by Rubina (PW 1) was that of her brother Abu Talib Shaikh, who

was arrested by Shivaji Park Police Station in C.R.No.339/96 on a charge of attempt to murder. Rubina (PW 1) in her cross

examination at PW1/6 has admitted that her brother was arrested by Shivaji Park Police

Station in a case of murder or attempt to murder.

35. The absence of the name Abu Sayama in the entire police papers in C.R.No.339/96 of Shivaji Park Police Station and

the fact that the accused in the. said C.R.has signed his name on the vakalatnama and the two bail bonds Ex.C and Ex.D,

as "Javed", indicates that Abu Sayama is not the alias of Javed Abu Talib Shaikh and therefore, the name Abu Sayama

could possibly be the name of another brother of Rubina

(PW 1). This is also the suggestion and possible explanation given by Learned Advocates for the Respondents. Rubina (PW

1) has referred to the official name of the deceased as Abu Sayama and she has also admitted in the cross examination that

he was called "Javed" out of love and affection. This would indicate that Abu Sayama was the official name of her brother.

However, the ration card shows that one Abu Sayama is the son of Mohammed Sabir and Rubina (PW 1) is also shown as

the daughter of Mohammed Sabir on the ration card. The name Mohammed Sabir was not given as the name of the father of

the deceased either in the Missing Persons Complaint registered at the Bandra Police Station or in the C.R.No.339/96

registered at the Shivaji Park Police Station. Further the ration card gives the age of Abu Sayama in 1993 as 20 years.

Rubinas elder brother Mohammed Sabir is shown as 26 years of age. Another brother Jahabas is shown as 25 years of age

and lastly another brother by name Abu Gaffar is shown as 15 years of age. The ration card thus indicates that Abu Sayama

and Rubina (PW 1) are the children of Mohammed Sabir and not Abu Talib.36. Further in the ration card, the name of Abu

Talib aged 65 years, appears as the brother of Mohammed Sabir, the ration card holder. No other relation of Abu Talib has

been shown in the ration card. On 23.1.1998, the names of Abu Talib Shaikh as the brother of Moammed Sabir, Jahabas,and Abu Gaffar as sons of Abu Talib, Samshad as daughter-in-law and Abu Ashwad as the grand-daughter of Mohammed

Shabir have been added in the ration card. It is contended by Learned Advocate for the Respondents that the ration card

nowhere mentions the name "Javed". Therefore, it is quite possible that the person known as "Javed" was not residing at the

Bandra address as alleged by Rubina (PW 1).

37. From a perusal of the rationcard, it is clear that no person by name of Javed or Javed Abu Talib Shaikh is referred to

therein and therefore Javed Abu Talib Shaikh whose body was claimed by Rubina (PW 1) from the J.J.Morgue could not

address at Bandra. This would also explain why Rubina (PW 1) approached the police and the J.J.Morgue for claiming the

body of her brother with the ration card giving the name of her deceased brother as Abu Sayama. It also explains the refusal

of the police to hand over the body on the basis of the ration card since the name "Javed" did not appear anywhere in the

ration card.

39. The allegation of Rubina (PW 1) that the police refused to hand over the body to her unless she referred to her deceased

brother as "Javed Fawda", would indicate that the police only knew the deceased by name of Javed Fawda and not be any

other name and it is ultimately admitted by Rubina (PW t) that the body was handed over to her only after she identified it as

the body of her brother Javed Fawda.

It is an admitted position that the body of the deceased was claimed by Rubina (PW 1) as that of her brother. It is also thecase of the police that the body of the person whom they claimed to be that of Javed Fawda, is that of Abu Talib Shaikh who

was arrested in C.R.No.339/96 of Shivaji Park Police Station. Of course, the police came to know of this fact only after the

body was claimed by Rubina (PW 1) on 2.9.1997 as deposed to by API Dhobale (RW 7) at RW7/23 (para 15). In the


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It is an admitted position that the body of the deceased was claimed by Rubina (PW 1) as that of her brother. It is also the

case of the police that the body of the person whom they claimed to be that of Javed Fawda, is that of Abu Talib Shaikh who

was arrested in C.R.No.339/96 of Shivaji Park Police Station. Of course, the police came to know of this fact only after the

body was claimed by Rubina (PW 1) on 2.9.1997 as deposed to by API Dhobale (RW 7) at RW7/23 (para 15). In the

proceedings of Sessions Case No.366/97 (C.R:No.339/96), the name Javed Fawda does not appear but it is admitted by

Rubina (PW 1)that her brother Javed Abu Talib Shaikh was arrested in the said C.R.of Shivaji Park Police Station. The bail

bonds Ex.C and D in the said C.R.No.339J96, are signed by one Javed. That the person who was shot in the police

encounter and known to the police as Javed Fawda, is Javed Abu Talib Shaikh, who was arrested in C.R.No.339/96 of

Shivaji Park Police Station, is also based on the identity of the fingerprints of Javed Abu Talib Shaikh in C.R.No.339/96 and

the fingerprints taken from the dead body by the M.R.A.Marg Police Station, with whom the F.I.R. was lodged about the

encounter.

41. There is therefore no dispute that the deceased was known as Javed Abu Talib Shaikh and that Javed Abu Talib Shaikh

was killed in the encounter. The body claimed and taken for the last rites by Rubina (PW 1) was that of Javed Abu TalibShaikh. The contention of the Petitioners that the body claimed was that of Abu Sayama, brother of Rubina (PW 1) is

rebutted by the fact that the Missing Persons Complaint, nowhere refers to the missing person as Abu Sayama but as Javed

Abu Talib Shaikh. The ration card shows that Abu Sayama and Rubina (PW 1) are the children of Mohammed Shabir and

not Abu Talib. Therefore, Abu Talib Shaikh is not the alias of Abu Sayama. The age of the missing person; is given as 18

Years. However, according to the ration card, the age of Abu Sayama in1993, is shown as 20 years. Therefore at the time of

the incident, Abu Sayama would be 24 years, and not 18 years as claimed by Rubina (PW 1). The C.R.No.339/96 of Shivaji

Park Police Station nowhere refers to the name of Abu Sayama but of Javed Abu Talib Shaikh. Therefore, the person killed

in the encounter could not be said to be Abu Sayama, the so-called innocent peanut vendor.

BUCK-TOOTHED - FAWDA

42. We may again ask the question "What's in a Name?" more specifically in the name of "Javed Fawda". Much of the

confusion arising in this case out of the charge of killing a wrong person, can be cleared if we analyse what the words

"Javed Fawda", mean. Rubina (PW 1) has in the Missing Persons Complaint Ex.H-1, referred to her brother as Javed Abu

Talib Shaikh. In her evidence before the Court, for reasons best known to her, Rubina (PW 1) has referred to her brother as

"Abu Sayama". However, in her cross-examination, Rubina (PW1) has very reluctantly admitted that they affectionately

referred to her brother as "Javed". The name "Javed" is a term of endearment or a pet name used by Muslims and those

who are closely associated or related to a person would refer to him as "Javed". On the other hand, nick-names like "Fawda"

are epithets that get attached to a person on account of peculiar physical traits or abnormalities. The near and dear ones

would naturally not like to refer to him by such a disparaging name that highlights physical disability or abnormality. The

name "Fawda" is used to describe a person with protruding teeth. It will thus be seen that the name "Javed Fawda" is an

Enigma, a paradox, a combination of nick-name and pet name but is not the actual or official name of a person. API Dhobale

(RW 7) has in his evidence at RW1/3 admitted that "Javed" is a common Muslim name and that: "...Javed Fawda means

Javed with "protruding teeth". Javed Fawda is not a complete name as the surname and fathers name are missing...

Advocate Memon for the Petitioners melodramatically asserted before the Court that there are several Javed Fawdas, that is

7 " Jade's with protruding teeth" in the city of Mumbai and even threw a challenge that he would produce half a dozen Javed

Fawdas in the Court on the very next day, if required! The pet-nick name gets tagged on to a person over a period of time

and in the process, the real or official name disappears due to non-use and the pet-nick name becomes the name by which

the person is identified. Javed Fawda being only a pet-nick name, the person concerned, must therefore, have an official

name, i.e. a name by which he was christened immediately after birth.

43. According to the police, Javed Fawda was a notorious gangster and his official name is Javed Abu Talib Shaikh, who

was arrested in C.R.No.339/96 of Shivaji Park Police Station and whose body was claimed by Rubina (PW 1) as that of her

brother. Thus, according to the police, there is no case of mistaken identity and that they have shot and killed the personwho was a notorious gangster, namely, Javed Fawda alias Javed Abu Talib Shaikh.

44. The failure of Rubina (PW 1) to refer to her missing brother in Ex.H-1 and in her examination-in-chief, as "Fawda", can

be understood as the reluctance of a loving sister to refer to her brother by a name that only draws contempt or ridicule. This

is further high-lighted by the fact that she has, in the Missing Persons Complaint Ex.H-1, given the name of her missing

brother as "Javed". She has in the cross-examination admitted that her brother was often ref erred to as "Javed" out of

affection. It is therefore not understood why Rubina (PW 1) has throughout her examination-in-chief, failed to refer to her

missing brother as "Javed" but used the name "Abu Sayama". Rubina (PW 1) has also in the cross examination, admitted

that her brother Abu Sayama had protruding gums. In the light of the above discussion, it seems highly probable that

Rubina's missing brother was called and known as "Javed Fawda".

INNOCENTS BROAD OR CRIMINALS AT LARGE :

45. According to Rubina (PW 1), her missing brother was an innocent peanut vendor hawking at the Bandra Railway Station

and at times doing carpentry jobs. Rubina (PW 1) has admitted that her missing brother was arrested by Shivaji Park Police

Station in connection with an attempt to murder case. He was arrested in November 1996 and was in custody upto

30.1.1997 in connection with C.R.No.339/96 of Shivaji Park Police Station. Rubina (PW 1) has stated that her brother has

signed his name in Urdu as Javed in the vakalatnama as well as in the bail bonds Ex.C and Ex.D. Rubina (PW 1) has alsoadmitted that another brother Shahabaz @ Jahabas was arrested by Santacruz Police Station in C.R.No.ll4/92 for murder.

46. While maintaining that her brother was a peanut vendor, Rubina (PW 1) states that her brother used to do petty

carpentry jobs in households - a very unlikely combination. If Abu Sayama was a skilled carpenter and not just a helper as

claimed by Rubina (PW 1), it is only natural that Abu Sayama would have put his skill to better use to make a decent living

as a skilled carpenter, rather than be content with earning "peanuts" by selling peanuts (shengdana). Apparently, Rubina

(PW 1) was not aware about the real occupation of her brother and serious doubts therefore arise whether her brother was

only a peanut vendor

or even a skilled carpenter or, whether he was involved in some anti-social activities with gangsters.

47. Rubina (PW 1) has in her evidence, admitted that the Missing Persons Complaint was filed by her on 28.8.1997 that is

two days after she learnt that her brother was taken by the police. The reason given by her for not filing the complaint on

26th August 1997 itself, when she learnt that her brother was picked up by the police, was that she thought that her brother

was visiting friends. This would indicate that her so-called missing brother often left home without informing the family and

that the family members, including Rubina (PW 1) were not aware of his actual activities. At Pg. l4 of her evidence, it has

been suggested to Rubina (PW 1) that her brother stayed away from home for about 3 to 4 weeks at a time, which

suggestion Rubina (PW 1) has not without reason denied. Rubina (PW 1) has also stated that while giving the MissingPersons Complaint, she gave the name of her brother but not his occupation and the havaldar did not ask her for her

brothers occupation as the police knew that he was hawking peanuts. This would indicate that Rubina's brother was well

known to the police. The Petitioners claim therefore that the deceased Javed Abu Talib Shaikh alias Abu Sayama was an


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suggestion Rubina (PW 1) has not without reason denied. Rubina (PW 1) has also stated that while giving the Missing

Persons Complaint, she gave the name of her brother but not his occupation and the havaldar did not ask her for her

brothers occupation as the police knew that he was hawking peanuts. This would indicate that Rubina's brother was well

known to the police. The Petitioners claim therefore that the deceased Javed Abu Talib Shaikh alias Abu Sayama was an

innocent peanut vendor, stands rebutted.

JAVED FAWDA - BOGEY MAN?

48. The case of the police as disclosed in the evidence of API Dhobale (RW 7) and PI Tambavekar (RW S) is that Javed

Fawda was a notorious gangster and therefore a terrifying person. It is alleged that he was a member of the dreaded Abu

Salem gang and was wanted in the Gulshan Kumar murder case and in cars of several police stations, and that he was

arrested by the Shivaji Park Police Station in C.R.No.339/96 in a case of attempt to murder. Admittedly, the dead body

claimed by Rubina (PW 1) was that of her missing brother Javed Abu Talib Shaikh whom the police referred to as Javed

Fawda. There is nothing to show that the M.R.A.Marg police within whose jurisdiction the encounter took place, were awareof the official name of Javed Fawda. It is not uncommon to find that members of a gang are often referred to by their

outstanding physical traits, such as taklya, lambu, kaliya etc. as Javed Kaliya in the Gulshan Kumar

Murder case in C.R.No.572/97 of DCB CID and Sessions Case No.15/98. It is the case of the police that Javed Fawda is a

wanted accused in several cases. In fact it is the positive case of the police that Javed Fawda is an accused in the Gulshan

Kumar murder case and the death of Javed Fawda occurred when the police fired at him in retaliation after Javed Fawda

first fired at the police when the police had gone to arrest him at Sprott Road, Ballard Pier. However, a perusal of the

charge-sheet and other papers in the Gulshan Kumar murder case, shows that the name "Javed Fawda" does riot appear in

the charge-sheet. The name of one Javed only appears, i.e. as Javed Kaliya. According to the police, it is Javed Kaliya who

during his interrogation by the police disclosed the involvement of Javed Fawda in the Gulshan Kumar murder case. The

names "Javed Fawda", or "Abu Sayama" or "Abu Talib Shaikh" or "Abu Gaffar" do not appear in the charge-sheet. It is

therefore obvious that Javed Fawda @ Abu Talib Shaikh Abu Sayama Abu Gaffar, is not an accused in the Gulshan Kumar

murder case and therefore, was not part of the Abu Salem gang, that allegedly killed Gulshan Kumar. Learned Advocate Mr.

Memon for the Petitioners in Writ Petition No.1032/97 has submitted that there is no evidence showing the involvement of

Javed Fawda in the Gulshan Kumar murder case (S.C.No.l5/98). He has pointed out that from the charge-sheet filed in the

said case, it is seen that accused Nos.1 to 13 are arrested while accused Nos.l4 to 26 are shown as absconding and

accused No.27 has turned approver. The name of Javed Fawda nowhere appears in the said C.R. among the names of

accused Nos.1 to 27 in the charge-sheet filed by the police. He has further argued that even the charge submitted by the

police before the Court, the name of Javed Fawda, is nowhere seen and hence the charge-sheet and proceedings in the

said C.R. rule out the possibility of Javed Fawda being an accused in the Gulshan Kumar murder case.

49. In fact API Dhobale (RW 7) has denied the suggestion that the operation of 28.8.1997 to arrest Javed Fawda was

primarily due to his involvement in the Gulshan Kumar murder case. API Dhobale (RW 7) has submitted that Javed Fawda

was required to be arrested in respect of crimes registered at Kurla, Dharavi, and Dadar. Even if the involvement of Javed

Fawda in the Gulshan Kumar murder case is ruled out and his involvement in the other crimes not proved, it is beyond doubt

that he was involved in the Shivaji Park Police Station attempt to murder case in C.R.No.339/96. Therefore it cannot be said

that the person killed in the encounter on the night of 27th and 28th August 1997 whom the police referred to as "Javed

Fawda" was just an innocent peanut vendor.

50. According to the Petitioners, the Javed Fawda who was required by the police for serious offences, was lodged in the

Arthur Road prison and the killing of Abu Sayama is purely a case of mistaken identity. However, it is the case of the

Respondents that one Javed Wahid Khan Javed Kaliya was arrested by Unit 10 of the D.C.B. C.I.D. on 16.8.1997 in

C.R.No.421/97 u/s. 457, 380, and 347 I.P.C., of the Bhoiwada Police Station and in C.R.No.71/97 for D.C.B. C.I.D., Mumbai,

better known as the Gulshan Kumar murder case. According to the police, the said Javed Wahid Khan Javed Kaliya (not

Javed Fawda), is still in-judicial custody and that the said Javed Khan is an associate of Javed Fawda and belongs to theAbu Salem gang.

51. As can be seen from the charge-sheet and other papers in the Gulshan Kumar murder case, there is only one accused

among the 27 accused having the name of Javed and that is accused No.1, Javed Kaliya. According to the police, it was

Javed Kaliya during his interrogation on 21.8.1997, who gave the police information about the involvement of Javed Fawda

in the Gulshan Kumar murder case. Advocate Memon for the Petitioners has vehemently argued that this piece of

information/evidence brought out by the police in the evidence of PSI Tambavekar (RW S) and API Dhobale (RW 7) is not

correct. According to the police, Javed Kaliya was arrested in the Gulshan Kumar murder case on 31.8.1997. Therefore, he

could not have given the information on Javed Fawda on 29.8.1997. It is however, pointed out by the police that Javed

Kaliya was in custody of the police from 16.8.1997 as he was arrested by the D.C.B. C.I.D. in a case of house-breaking.

Hence the contention of Advocate Memon is without substance.

52. It is also the case of the Respondents-police, that they were not aware of the existence of any criminal by the name of

Javed Fawda and his involvement in the murder of Gulshan Kumar and that they became aware of this only on or about 27th

August 1997, when they received information from a source about the involvement of Javed Fawda. According to the police,

this explains why Javed Fawdas name does not appear in the police records prior to 27th August 1997 in C.R.No.339/96 of

Shivaji Park Police Station or the F.I.R. filed in the M.R.A.Marg Police Station, Nagpada Police Station C.R.No.491/97 or the

F.I.R. of Dharavi Police Station C.R.No.683/97. Just because the name Javed Fawda does not appear in the proceedings inthe above C.Rs., there is no reason to disbelieve the police when they say that they had definite information about the

person whom they later on came to know as Javed Fawda being involved in several police cases. Javed Fawda therefore

was no bogey raised by the police.

THE MISSING, LINK - EX. H-1 AND EX.J-1:

53. According to the Petitioners, Abu Sayama who was killed by the police in a fake encounter, is not the notorious gangster

Javed Fawda, but an innocent peanut vendor, who used to ply his trade near Bandra Railway Station and was picked up by

the police after he was returning from namaz at the masjid at Bandra Railway Station on 26.8.1997. According to Rubina

(PW 1),sister of the deceased and Nanu Machhan Khan (PW 2),Anwar Khan Mehboob Khan (PW 3) friends/acquaintances

of the deceased, Abu Sayama was picked up by the police from near the Bandra Railway Station, after he was returning

from namaz at the masjid near the Bandra Railway Station, It is however, pertinent to note that none of these witnesses

personally saw Abu Sayama being picked up. Their evidence on the point, is mere hearsay. Rubina (PW 1) says that a

Young boy came and told her:

".,.Deedi,Tumare Bhai Ko Char Police Pakad Ke Le Gaye..."

Nanu Machhan Khan (PW 2) who sold footwear near the Bandra Railway Station, has stated that he last saw Abu Sayama,whom he used to refer to as "Javed" at his cart, on 25.8.1997 and about 7-8 days later, he learnt that Javed was taken away

by the police and was missing thereafter and that he learnt of this from the discussion that took place at his place of work.

On the other hand, Anwar Khan Mehboob Khan (PW 3), a painter, has stated that Abu Sayama Javed Fawda was with him


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Nanu Machhan Khan (PW 2) who sold footwear near the Bandra Railway Station, has stated that he last saw Abu Sayama,

whom he used to refer to as "Javed" at his cart, on 25.8.1997 and about 7-8 days later, he learnt that Javed was taken away

by the police and was missing thereafter and that he learnt of this from the discussion that took place at his place of work.

On the other hand, Anwar Khan Mehboob Khan (PW 3), a painter, has stated that Abu Sayama Javed Fawda was with him

for namaz at the masjid on 26.8.1997 at noon. He states as follows: "...Abu Sayama left little earlier as I took a minute or two

for searching my footwear..." None of the witnesses have stated that any of them actually saw Abu Sayama being taken

away by the police. The only person who has done so, is one John Fernandes who has in his Affidavit filed in the Writ

Petition in the High Court, stated that he was present when the police took away Abu Sayama. However, the said John

Fernandes, has for reasons best known to the Petitioners, not been examined. Advocate Memon had, after Nanu Machhan

Khans evidence was completed, submitted that he had proposed to examine the said John Fernandes who had filed the

Affidavit in the High Court Criminal Writ Petition. However, the said John Fernandes is not available at his last known

address and is not now traceable. So much for the credibility of the Petitioners witnesses!

Rubina (PW 1) states that after she was informed that her brother Abu Sayama was taken away by the police, she rushed tothe Bandra Police Station and to the office of the Crime Branch situated behind the Bandra Police Station but was told by the

police that her brother was not there. She then virtually launched a man-hunt and enlisted the help of the neighbours to trace

her brother Abu Sayama at different police stations, but to not avail. On the 2nd day, i.e. 24.8.1997, she again went to the

Bandra police station to make enquiries and she was again told that her brother was not there and to look for him

somewhere else. On the 3rd day, i. e. 23. 8. 1 997, she again went to ,the police station and again got the same answer.

Rubina (PW 1) claims that she then begged the concerned police officer to record a complaint of her missing brother and the

police officer wrote something on a piece of paper and gave her the piece of paper (Ex.A-1 which is the number of the

missing complaint. In her cross examination, Rubina (PW 1) at PW1/13, has admitted that the police havaldar recorded the

complaint and description and other details given of her brother to the police.

55. From the above, it is seen that the missing complaint was lodged on the 3rd day i.e. 28.8.1997. It is not understood why

the complaint could not be lodged on the 1st day itself, i.e. 26.8.1997, after Rubina (PW 1) had learnt that her brother was

picked up by the police. Rubina (PW 1) has explained this by saying that she thought that her brother Abu Sayama had gone

to visit his friends for 2-3 days. If this be so, then the conduct of a desperate sister looking for her brother at different police

stations and launching a manhunt for him, is not understood. Moreover, as poignantly pointed out by Advocate Bhatt for the

Petitioners, the complaint which ought to have been recorded, should have been a complaint of kidnapping and not a

missing persons complaint.

56. From the missing complaint, it is seen that the name of the missing person given, is Javed Abu Talib Shaikh (male, 18

years, occupation: carpenter and description). It is pertinent to note that the name Abu Sayama nowhere appears in the

missing complaint but the name Javed is mentioned. Rubina (PW 1) has in her cross examination, reluctantly admitted that

they sometimes referred to her missing brother as Javed, out of affection. Nanu Machhan Khan (PW 2) and Anwar Khan

Mehboob Khan (PW 3) companion-hawkers of the missing person, have also freely referred to the missing person as

"Javed". It is also pertinent to note that the description of the missing person given in Ex.H-1 and Ex.J-1 is as follows:

Height 56", slim build, fair complexion curly hair and teeth coming out (dath phudhe aalele ).

Rubina (PW 1) in her cross examination, has denied that her brother had protruding teeth but admitted that his upper gums

were protruding.

57. From the evidence of Rubina (PW 1) read with Ex.H-1 and Ex.J-1, it is clear that her brother was also known as "Javed".

It is also established that her brother had protruding teeth or protruding gums. Therefore, it does not appear unreasonable to

accept that Rubina's brother was also known as "Javed Fawda" and, as pointed out earlier, "Javed Fawda" is a pet/nick

name and not the name he was christened at his birth.

58. According to Ex.H-1, the name of Rubinas missing brother is Javed Abu Talib Shaikh. Rubina, in her evidence in Court,

has referred to her missing brother as "Abu Sayama" but admitted he was called "Javed" out of affection. Ex.H-1 gives the

description of Javed Abu Talib Shaikh and his occupation as carpenter. However, in her evidence, Rubina (PW 1) says that

she did not give the description of her brother to the havaldar while giving the Missing Persons Complaint. She further states

she did not give the occupation of her brother, as the police knew that he was hawking peanuts (PW1/12). Rubina (PW1)

would want us to believe that the police havaldar who recorded Ex.H-1 noted the description and occupation of her missing

brother out of his own imagination It is however, pertinent to note that she admits that:

"...I had given the name of my brother to the havaldar at the time of giving missing persons complaint. I gave his age.

Thus, the name of her missing brother given in Ex.H-1, namely, Javed Abu Talib Shaikh, aged 18 years, is to be taken as the

name and correct age of her brother.

COMPLAINT (EX.H-1) MOTIVATED

59. While the name of Rubina's missing brother as Javed Abu Talib Shaikh is established and it seems highly probable that

her missing brother was also known as "Javed Fawda", the fact of his missing from 26.8.1997 onwards, is far from

established. If Rubina's brother was missing from (26.8.1997 , after being picked up by the police as claimed by Rubina and

if Rubina (PW 1) learnt of the same on the 26th of August itself, it remains unexplained why the complaint Ex.H-1 was notfiled on 26th August 1997 but on 28th August 1997. As stated earlier, the explanation given by Rubina (PW 1) for not filing

Ex.H-1 earlier, is most unsatisfactory. The evidence of Rubina (PW 1), Nanu Machhan Khan (PW 2) and Anwar Khan

Mehboob Khan (PW 3), examined by the Petitioners on the point of Abu Sayama being picked up by the police on

26.8.1997, is found unacceptable. The failure of the Petitioners to examine John Fernandes, who has filed an Affidavit in the

Honble High Court Criminal Writ Petition station that he was present when Abu Sayama was picked up by three or four

policemen from the Crime Branch, requires that an adverse inference be drawn against the Petitioners. There is therefore,

no basis for us to accept that:

(i) Abu Sayama was missing only from 26th August 1997 and not before or after 26th August 1997.

(ii) that he was picked up or kidnapped by the police.

The question that therefore arises, is whether Rubina (PW 1) had any reason or motive for filing Ex.H-1 only on 28.8.1997

and not before and for alleging that the police had kidnapped her brother.

GENESIS OF THE CONTROVERSY

60. The answer to these questions may be found if we go into the genesis of the case and find out how and when thecontroversy of mistaken identity, in the first place, arose. The Petitioners allege that an innocent peanut vendor has been

killed by the police under the mistaken impression that he was the notorious gangster Javed Fawda. Admittedly, Javed Abu

Talib Shaikh Abu Sa ama Javed Fawda was killed a little after midni ht of 27th/28th Au ust 1997. Admittedl the


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60. The answer to these questions may be found if we go into the genesis of the case and find out how and when the

controversy of mistaken identity, in the first place, arose. The Petitioners allege that an innocent peanut vendor has been

killed by the police under the mistaken impression that he was the notorious gangster Javed Fawda. Admittedly, Javed Abu

Talib Shaikh @ Abu Sayama @ Javed Fawda, was killed a little after midnight of 27th/28th August 1997. Admittedly, the

Missing Persons Complaint was filed by Rubina (PW 1) on 28th August 1997 at 12.05 p.m. that is in the afternoon. After the

incident of shooting, API Dhobale (RW 7) and other policemen including, S.I. Tonpe, and S.I. Bhosle-Patil rushed the injured

Javed Fawda to St.George Hospital where he was declared dead before admission. P.I. Devkar and S.I. Thorat of M.R.A.

Marg Police Station came to St.George Hospital where API Dhobale narrated the incident to them and his statement was

recorded. (F. I. R. dated 28. 8.1997 at 0. 50 hours). The spot panchanama was drawn at the scene of offence. The inquest

panchanama was drawn of the body at the hospital and the body was sent for post-mortem examination. After the incident of

shooting till the Missing Persons Complaint Ex.H-1, was lodged, there was sufficient time and ample opportunity for the

information of the death of Javed Abu Talib Shaikh @ Javed Fawda to have leaked out and to have come to the ears of

Rubina (PW 1) or the social workers in the locality who had been keenly monitoring the so-called encounters in which

gangsters belonging to the minority community re allegedly being eliminated. John Fernandes has in his Affidavit dated 3rd

September 1997, filed in the High Court in Writ Petition No.1032/97, stated:

...On 29.8.1997, I read a newspaper report in Sanj Jansatta that one Javed Phavda (Fawda) was killed in

an encounter with M.R.A. Police Station..."

Similarly, in the Affidavit dated 9.9.1997, Ex.A to the Writ Petition No.1032/97, John Fernandes has stated:

"...on 29.8.97 it was published in SANDHYA JANSATTA that one Mr.Javed Fawda was encountered by MRA Police Station.

I enquired about the same to MRA.Police Station but they refused to say that no any Javed has been encountered..."

If the news of Javed Fawdas death in an encounter with the police, was published on 29.8.1997 as claimed by John

Fernandes, it would mean that the information was on 28.8.98 itself available. In fact the news report of the encounter

appeared in the Sanj Jansatta on 28.8.1997 itself. Therefore, the news was out on the evening of 28.8.1997 itself. In his

Affidavit, Ex.A, filed in the Hon'ble High Court in Writ Petition No.1032/97, John Fernandes says that he lodged the missing

complaint no.48J97 dated 28.8.1997. It is clear therefore that either John Fernandes had accompanied Rubina (PW 1) at the

time of filing Ex.H-1 or had along with the others, instigated Rubina (PW 1) to do so after he learnt from the newspaper

report of the death of Javed Fawda in the police encounter. Ex.H-l, it will be noted, is filed on 28.8.1997 at 12.25 p.m. IfRubina (PW 1) had been so anxious about her missing brothers whereabouts, she would not have gone to Bandra Police

Station so late in the day to lodge the complaint. Moreover, as pointed out earlier, Rubina's failure to lodge the Missing

Persons Complaint on 26th and 27th August 1997, is not

understood. The explanation given by her for not filing the Missing Persons Complaint earlier, is found unacceptable. The

reluctance and/or failure of the Petitioners to examine John Fernandes who has filed the Affidavit in the Hon'ble High Court

is therefore not surprising.

61. The entire evidence of Rubina (PW 1) regarding efforts made by her to trace her missing brother after filing the Missing

Persons Complaint Ex.H-1, till she was allowed, to enter the morgue after stating under compulsion that she was looking for

her missing brother "Javed Fawda" appears contrived. If Rubina (PW 1) was not already aware of the death of her so-called

missing brother then she would have been shocked when the police officer at Palton Road Police Station directed her to be

taken to the. J. J. Morgue to identify her brother. Rubina (PW 1) did not show any signs of such shock or grief as would be

expected of anyone who learns for the first time of the death of his/her near or dear one. In fact Rubina (PW 1) states:

"...At the Morgue, I asked whether my , brother Abu Sayama was there in the Morgue . It was only after seeing her brothers

dead body in the Morgue which she has alleged to have personally removed from the heap of other bodies, that she fainted.

Since no shock or grief was felt by Rubina (PW 1) when she was directed to be taken to the Morgue, it appears probablethat she was aware of his death prior to that day. The visits to the Morgue took place on 1.9.1997. From the above

discussion, it seems unlikely that Ex.H-1 was filed on 28.8.1997 at 12.25 a.m. after news of the death of Rubina's brother

became known to Rubina and the others.

62. Rubina (PW 1) claims that she kept enquiring at the Palton Road Police Station whether her brother Abu Sayama was

there and she was told by the police officers at the Palton Road Police Station that if she gave the name"Abu Sayama" ;he

would not find her brother, but if she gave the name as "Javed Fawda" they would take her to him. It appears unreasonable

and highly improbable that Rubina (PW 1) would go looking for her brother giving his name as "Abu Sayama" when in fact

on 28.8.1997, she had filed the Missing Persons Complaint giving his name as "Javed Abu Talib Shaikh".

63. The evidence regarding the police picking up Javed Fawda @ Javed Abu Talib Shaikh on 26.8.1997, is not satisfactory

and unacceptable and the alleged visits of Rubina (PW 1) to the Bandra Police Station on 26th/27th August 1997, are

doubtful. The only certainty is the lodging of the missing complaint on 28.8.1997 at 12.25 p.m. In view of the above, the

news of Javed Fawda Javed Abu Talib Shaikhs death having, reached the ears of Rubina (PW 1) or John Fernandes before

the afternoon of 28.8.1997, seems very probable and this explains why the Missing Person s Complaint was lodged on the

afternoon of 28.8.1997 and not before.

JAVED FAWDA OF, BEHRAMPADA

64. Rubina (PW 1) claims that after she lodged Ex.H-1, the Missing Persons Complaint, she continued to make enquiries

about her missing brother for eight days and on the eighth day, she visited the Killa Court (Esplanade Court. However, she

immediately corrects herself and states that she went to the Killa Court on 1.9.1997. She has further stated in her evidence

that six accused persons were brought in burkhas to the Court. One of them was of the height of her brother Abu Sayama.

After much persuasion, the police at her request uncovered the face of her brother. She states as under: "...The police then

uncovered the face of that person but he was not my brother. That person was Javed Fawda. I told the police Ye Javed

Fawda Hai Mera Bhai Kidar Hai. I know Javed Fawda. Some time back Javed Fawda of Behram Pada had damaged the

eye of one person and there was a crowd there and some people said that he was Javed Fawda.

I had seen him at that time...."

The above evidence of Rubina (PW 1) is clearly an attempt by her to bring into picture some third person who she claims is

the real Javed Fawda. This is with a view to dispel the allegation that her deceased brother was "Javed Fawda" and that

Javed Fawda was a known criminal wanted in several cases, including the Gulshan Kumar murder case and that her

missing brother was an innocent man. It must here be stated that the six persons produced in burkha in the Esplanade Court

(Killa Court) are the accused in the Gulshan Kumar murder case (C.R.No.572/97). The evidence of Rubina (PW 1) on this

aspect lacks credibility as she has admitted that she learnt about Javed Fawda because he had damaged the eye of some

person

Aguiar Commission

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