Fake Encounter Infamous Case C.P. Shootout Case Judgement

7/31/2019 Fake Encounter Infamous Case C.P. Shootout Case Judgement

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SC No. 68/97 1

IN THE COURT OF SH VINOD KUMAR ADDITIONALSESSIONS JUDGE NEW DELHI

Sessions Case No. 68/97

CBI Vs:1 Satyavir Singh RathiS/o Late Sh Kaley SinghR/o C26, Anand Vihar, Delhi

(Assistant Commissioner of PoliceInter State Cell Crime Branch Delhi Police)

2 Anil Kumar S/o Mahender SinghR/o B-9-T, Delhi Police ApartmentMayur Vihar, Phase I Delhi(Inspector of police, Inter State cellCrime Branch Delhi Police)

3 Ashok Rana S/o Rampal Singh RanaR/o A10 New Police Lines, GTB Nagar

Delhi(Sub inspector of police inter State CellCrime Branch Delhi Police)

4 Shiv Kumar S/o Mehar SinghR/o VPO Asauda, District Rohtak, Haryana(Head constable, No 42 C, Inter State cellCrime Branch Delhi Police)

5 Tejpal Singh s/o Zile SinghR/o 68 Police colony, Ashok Vihar, Delhi(Head constable No 14 DRP, Inter State cellCrime Branch Delhi Police)

6 Mahavir Singh S/o Chiman SinghR/o A1/13 Chankya Place, Delhi


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Head constable No 25 DRP(Inter State cellCrime Branch Delhi Police)

7 Sumer Singh S/o Rati Ram, r/o Vill. MohnaTehsil Balabgarh, Haryana(Constable No 90 DRP Inter State cellCrime Branch Delhi Police)

8 Subhash Chand s/o Chandan SinghR/oKhanpur Kala, Distt Sonipat Haryana(constale 124-C Inter State cellCrime Branch Delhi Police)

9 Sunil Kumar s/o Ved parkashR/oF41 Arya Samaj road, Uttarm Nagar, Delhi(constable No. 292/C Inter State cellCrime Branch Delhi Police)

10 Kothari Ram S/o SribhagwanR/o 2nd Battalion, Police lines, Kingsway Camp,New Delhi

(Constable No. 1681/DAP Inter State cellCrime Branch Delhi Police)

JUDGMENT

1. At the beginning of the final arguments in thepresent case I put following questions to Sh. S. K. Saxena,Ld. Special Public Prosecutor :

Would the accused personsstill be guilty if instead the twoinnocent business man, Mohd.Yaseen a desperate criminalbeen killed by the accusedpersons ?''


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2. Ld. Special Public Prosecutor answered inaffirmative and presented the prosecution case as under :

Mohd. Yassen is a desperatecriminal and was wanted by DelhiPolice in a murder case. AccusedS. S. Rathi was heading Inter StateCrime Cell in capacity of AdditionalCommissioner of Police. His teamalong with many other teams ofDelhi Police were working to

develop information about Mohd.Yaseen ( PW70 ). Inspector RamMehar ( PW15 )was also posted inthe said Inter States Cell. Witharrangement from the Airtel, hestarted hearing the conversationsof the mobile phone of Mohd.

Yaseen on a parallel line andstarted writing a diary about the

conversations of Mohd. Yaseen withany other person. From thisconversations PW15 Ram Meharcame to know that Mohd. Yaseenwould be coming to Mother Dairy,Parparganj in a blue colour Esteemcar. Accused S. S. Rathi in capacityas Assistant Commissioner ofPolice, and Incharge of Inter StateCell directed accused Anil Kumar(Inspector) to keep a watch uponthe movements of Mohd. Yaseen.Accused Inspector Anil Kumar alongwith accused HC Shiv Kumar andaccused Ct. Sumer Singh havingtheir respective fire arms with a


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wireless set of devil net left CrimeBranch Office in a private MarutiCar and at 1:25 pm they reached atMother Dairy, Parparganj Road.

They saw two young persons eatingice-cream and talking to eachother. As per the version ofinspector Anil, one of those personswas having trimmed beard and hisdescription matched with Mohd.

Yaseen (PW70). After eating theice-cream both of these persons

went on foot on the left side of theroad and thereafter crossed theroad towards right side before thered light. At the place one MarutiEsteem car of blue colour with no.UP14F-1580 was parked. Theytalked to the driver of the saidvehicle and sat in the car. Thevehicle proceeded towards

Shakarpur. Accused Inspector AnilKumar along with his staff i.e.accused HC Shiv Kumar andaccused Ct. Sumer Singh startedfollowing the Esteem car. InspectorAnil Kumar informed accused ACPS. S. Rathi that the bearded personlooks like Mohd. Yaseen and he hastwo more boys with him. Herequested more staff to followthem. Inspector Anil also informedACP S. S. Rathi that now theEsteem car was going on VikasMarg on ITO Bridge. ACP S. S.Rathi informed Inspector AnilKumar that he was also reaching


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there with the staff. At that timethe Esteem car had crossed the ITOBridge and after passing from PHQ(Police Head Quarter) on DeenDayal Upadhyay Marg, it hadreached Minto Bridge. Thereafterthe Esteem car stopped oppositeDENA Bank at outer circle,Connaught Place. One person(later on identified as Pradeep Goelthe deceased) came out of the saidcar and went inside Connaught

Place and came back aftersometime. Thereafter the beardedperson (later on identified as JagjitSingh as deceased) started drivingthe car. At that very time ACP S. S.Rathi along with his staff reached inhis official Gypsy and in one privateMaruti Car. The staff of ACP S. S.Rathi included SI A. Abbas, SI Ashok

Rana (accused), ASI Shamshuddin,HC Shiv Kishan, HC Tejpal, HCMahavir Singh, Ct. Subhash Chand,Ct. Sunil, Ct. Kothari Ram, Ct. OmNiwas and Ct. Bahadur Singh.Except Ct. Om Niwas and Ct. ShivKishan, all these officials werehaving official arms andammunitions officially supplied tothem. ACP S. S. Rathi and InspectorAnil while talking on devil net madea plan to stop this Esteem car atthe next red light. On the next redlight all the accused personsencircled the Esteem car and underthe command and supervision of


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accused ACP S. S. Rathi andInspector Anil, the accused personsfired indiscriminately on the car.

The driver of the car namely JagjitSingh (who allegedly resembledMohd. Yaseen) and Pradeep Goelsitting on the co driver seat werepulled out of the car and were shotat. Both Jagjit Singh and PradeepGoel died at the spot. Whereas thethird boy namely Tarun (PW11)sitting on the back seat of the car

ducked himself and was saved,although he was seriously injured .One PCR Van headed by ASI Om Vir(PW 13) reached at the spot andtook all the three persons to RMLHospital. By chance a fewphotographers (PW1,2,3 andPW67 ) of Statesman newspaperwere present at the spot and took

photographs of the car almostimmediately after the incident.At the same time SHO PS

Connaught Place reached at thespot and found that one pistolItalian make, two empty cartridgesand seven bullets in a magazinewere lying in the Esteem car. Onopening it was found that onebullet was stuck up in the pistol.Inspector Anil (accused) wrote acomplaint alleging that when heknocked the driver side door of theEsteem car and asked the driver tocome out, the driver of the carwithout opening the glass of his car


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fired from inside. This bullet hit Ct.Sunil Kumar (accused) at his lefthand. The driver (i.e. Jagjit Singhthe deceased) fired a few moreshots. Therefore in thesecircumstances the police party firedin self defence to immobilize theoccupants of the car. In themeantime Ct. Subhash Chand(deceased) also shouted that hehad received a bullet injury. Onemessage was sent on devil net to

Control Room, New Delhi Districtand the firing was got stopped.

This complaint was given byInspector Anil Kumar (accused) toSHO PS Connaught Place who gotan FIR no. 448 dated 31.3.1997under Section 307/186/353/34 IPCand 25/27 Arms Act, PS ConnaughtPlace. On the complaint of Dinesh

Chand Gupta the father in law ofPradeep Goyal, another FIR no453/97 was registered in PSConnaught Place. InspectorNiranjan Singh ( PW42), SHO PSConnaught Place proceeded toinvestigate the case. On 1.4.1997the case was transferred to the CBI.CBI registered RC No. 10 ( thepresentcase) on the basis of FIRNo 453/97 lodged on the complaintof Dinesh Chand Gupta and alsoregistered another case RC no. 11on the basis of FIR No. 448/97registered on the complaint ofaccused Inspector Anil. However,


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all the investigation was conductedin RC no. 10. During investigationit was found that in one photographtaken by the photographer ofStatesman Newspaper, all theglasses of Esteem car was foundbroken except the glass of thedriver seat. This proved the factthat the glass of driver side doorwas found to be intact. Hence nofire came from inside the car asalleged in the FIR at the instance of

Inspector Anil Kumar. Further morethere was no bullet marks on theleft side door of the co driver seat,however when the door wasopened there were three bulletmarks on the rim of the door. Thiscould have only be possible if thebullets were shot after opening thedoor. Further more there are many

bullet injuries on and above justabout the buttock area of PradeepGoel and one photograph showsthat Pradeep Goel was lying on theroad at a distance of about 3 or 4feet away from Esteem car.Moreover one photograph shows

Jagjit Singh lying in such a positionwith right leg entangled in the seatof the car and remaining body outof the said car. This also showsthat he was dragged out of the carand was shot at. Ld. SpecialProsecutor argued that even if thedeceased would have been Mohd.

Yaseen instead of Jagjit Singh still it


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was a cold blooded murder by thepolice officials i.e. accused personswho had already planned to killhim. It is pointed out by Ld SpecialProsecutor that investigationproves that the Italian pistol, eightcartridges and two fired cartridgeshad been planted by the accusedpersons in the Esteem car.Furthermore, at DENA Bank,accused Jagjeet Singh was sittingalone in the Esteem car and

Inspector Anil with his staff couldhave arrested him. Furthermore,none of the police officials fired atthe tyres of the Esteem car whenthey encircled the said vehicle,rather directly shot at theoccupants of the car.

CHARGE3. All the accused persons were charged u/S

302/307 read with section 120 B IPC for committing murder

of Jagjeet Singh and Pradeep Goyal and attempting to

murder Tarun.

Apart from this all the accused persons were

charged U/S 193/120-B IPC for hatching a criminal

conspiracy and planting an Italian pistol No. 3685 of 7.65

mm and one loaded live cartridge and seven other live

cartridges in Maruti Esteem Car no UP14F-1580 and thereby

fabricated false evidence against the occupants of the car.


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Alternatively, all the accused persons were

charged U/S 302/307/193 IPC read with Section 34 IPC on

the above stated allegations.

Accused Satyavir Singh Rathi and Anil Kumar

were charged U/S 211/34 IPC for lodging an FIR no 448/97,

PS Connaught Place against deceased Jagjeet Singh and

Pradeep Goyal and injured Tarun without any just cause.

A charge U/S 193 IPC was framed against accused

Satyavir Singh Rathi for sending a false report to higher

police officers regarding the shoot out taken place on

31.3.1997 at 2.30 pm at traffic signal, Barakhamba road so

that the higher police authorities could form an erroneous

opinion about the incident and the same could be used

against deceased Jagjeet Singh, Pradeep Goyal and

injured Tarun.Another charge u/s 201/34 IPC was framed

against accused Anil Kumar and Satyavir Singh Rathi

alleging that they caused the evidence of the said offence to

disappear and intentionally gave false information of the

shoot out to police authorities with intention to screen

themselves as well as the co accused persons.

A charge U/S 203/34 IPC was framed against

accused Satyavir Singh Rathi and accused Anil Kumar

alleging that despite knowing that an offence of murder was

committed by them and their co accused persons, gave a


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false information in respect of the said offence in form of FIR

no 448/97 PS Connaught Place which they knew to be false.

A charge U/S 193 IPC was framed against accused

Anil Kumar alleging that he fabricated a false entry in the

daily diary of the office about receiving an information that

movement of suspected criminal Yaseen and thereafter

used this information for lodging false complaint for

registration of FIR no 448/97, PS Connaught Place so that the

higher police authorities make an erroneous opinion and

could use the same against the occupants of Esteem Car in

question.

All the accused persons pleaded not guilty and

claimed trial .

4. Prosecution examined 74 witnesses in all . The

summary of their testimonies is given in the list of witnessesattached herewith and the same may be read as part and

parcel of this judgment.

5. Statements of all the accused persons were

recorded U/S 313 CrPC. However, they did not prefer to lead

evidence in defence.

The final arguments were heard on about 50

hearings and Ld. Counsels for defence put a spirited

defence. I take the same one by one.


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POSSESSION PRECEEDS PLANTATION

6. Sh. R. K. Naseem, adv. for accused Mahavir argued

that if prosecution wants to prove that the pistol of 7.65 bore

was planted in the car, the prosecution must prove that the

same was in possession of the accused persons. If the

prosecution has been unable to prove the possession of the

pistol in question with the accused persons, the prosecution

theory of plantation of the fire arm by the accused persons

in the Esteem car must be discarded. I disagree with the

submissions of Ld. Defence Counsel. I am of the opinion that

once the plantation of fire arm and the ammunition is proved

beyond reasonable doubt, the same leads to only one

conclusion that the said fire arm and ammunition was in

possession of the accused persons.

7. Sh. R. K. Naseem, adv. has hit the bull's eye whenhe argued that the charge framed under Section 193 IPC is

the foundation upon which the edifice of prosecution case is

built. If the charge under Section 193 IPC goes, the

prosecution case would fall to dust. The charge under

Section 193/34 IPC was framed against all the accused

persons for planting an Italian pistol no. 3685 of 7.65 mm

loaded with one live cartridge and seven live cartridges in a

match box into Maruti Esteem car no. UP14F-1580. Another

charge under Section 193 IPC was framed against accused

Satyavir Singh Rathi and accused Anil Kumar for fabricating


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false complaints in the firing report and the FIR respectively.

8. If this charge is proved, the same would lead to

the inference that accused persons had already decided and

thereby conspired to kill Mohd. Yaseen, whether he is armed

or unarmed. But if the above stated charges are not proved,

the prosecution case would fail.

9. Ld. Defence Counsels have drawn my attention to

the testimony of PW11 Tarunpreet Singh in which he had

stated that all the glasses of the driver side had broken in

the incident. This witness is the boy who was sitting on the

back seat of the Esteem car. Ld. Defence Counsels have

drawn my attention to the testimony of PW13 ASI Omvir

Singh the Incharge of the PCR Van who reached at the spot

after hearing the gun shots. He testified in cross

examination that glass pane of the driver side door of theEsteem car was found broken. PW15 Inspector Ram Mehar

also reached at the spot soon after the incident and he

testified that the glass pane of all the four doors the said car

were found broken. It is argued by Ld. Defence Counsels

that PW26 Avtar Singh is a public person who received a

bullet injury in the firing incident. He also testified in cross

examination that glasses of all the four doors of the car were

found by him to be broken. Ld. Defence Counsels argued

that while all the other police officials reached after few

minutes from the shoot out, PW26 Avtar Singh was very


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much present at the time of incident and therefore his

testimony in cross examination that all the glasses of the car

were found broken by him should be relied upon. Ld.

Defence Counsels have drawn my attention to the testimony

of PW35 Inspector Rishidev, PW37 Roop Singh the ballistic

expert from CBI, PW41 Ct. Samrat Lal, PW42 Inspector

Niranjan Singh SHO PS Connaught Place, PW54 Ct. Jaiveer,

PW57 SI Sunil Kumar and PW73 Qamar Ahmad the then DCP

Crime who have testified that all the four glasses of the

doors of the car were found broken. It is argued that there is

sole testimony of PW45 Rajiv Gupta that he saw all the

glasses of the car broken except the glass on the side of

door of the driver seat. It is argued by Ld. Defence

Counsels that in view of overwhelming evidence of so many

witnesses including PW26 Avtar Singh, who was present atthe spot at the time of incident, the testimony of PW45 Rajiv

Gupta should be rejected.

10. I disagree with Ld. Counsels for defence. The

court does not count the witnesses rather weighs

them. A truthful testimony of a single witness will

overshadow the false evidence of numerous

witnesses. Now in this case there are two sets of

witnesses. On one side there is PW45 Rajiv Gupta and on

the other side the other witnesses referred to by Ld. Defence

Counsels above. The testimony of PW45 Rajiv Gupta is


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corroborated by the photographs Ex.P1/14, EXP1/2 and

EXP1/6. These photographs were taken by PW67

Shehnawaj and PW2 Sayeed Ahmed. The photographs

show that all the glasses of the doors of the car are broken,

however the glass of the driver's side door is intact.

It is pertinent to note that as per prosecution case, all the

glasses of the car were drawn up and were closed at the

time of incident because as per the testimony of PW11

Tarunpreet Singh, the AC of the car was on. The fact that all

the glasses of the case were drawn up has also been

admitted by the accused persons. The fact that driver side

glass of the door of Esteem car was drawn up and was intact

at the time of the incident disproves the defence version

that Jagjeet Singh (the deceased and the driver of the car)

had fired many shots from inside the car through the closedwindow and drawn up glass. Had there been any firing from

inside the Esteem car, the driver side glass of the door must

have been broken. Since the photographs clearly show that

this glass was intact, it is clear that the defence of the

accused persons is false and no such firing took place from

the side of Jagjeet Singh. PW11 Tarunpreet Singh the

surviver of the shoot out specifically testifies that

Jagjeet Singh had not fired bullet. The photograph

EXP1/2 and EXP1/14 showing the driver's side glass intact

corroborates the version of PW11 Tarunpreet Singh also.


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Therefore the testimony of PW11 Tarunpreet Singh that no

bullet was fired by Jagjeet Singh and testimony of PW45

Rajiv Gupta that he found the driver's side glass intact have

been corroborated by these photographs. Therefore in view

of the well corroborated evidence on record I place reliance

on the testimony of PW11 Tarunpreet Singh that Jagjeet

Singh had not fired from inside the car. I also place reliance

on the testimony of PW45 that the driver's side glass of the

car was intact. A careful perusal of the photographs

EXPW64/13, EXPW64/14, EXPW64/15 and EXPW64/16

and EXPW64/17 showing the inside of the car would

show that whereas the splinters of glasses of all the three

doors have fallen on their respective seats, however there is

no splinter of glass on the driver's seat. The photograph

Ex.P1/6 also shows that the splinters of the broken glasseswere lying on the corresponding places on the road.

However no splinter is lying on the road which corresponds

to the driver's side door. The makes it amply clear that the

glass of the door of driver seat was intact at the time of

shooting. Although the PW11 has stated that all the glasses

of the windows of the car had broken in the incident,

however it must be born in mind that as soon as the firing by

police officers started, he ducked himself in the car

instinctively and was seriously injured and therefore it

cannot be expected that he could have seen whether all the


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glasses were broken or not.

11. There is nothing on record to suggest that Jagjeet

Singh the deceased was having a fire arm. No suggestion

has been given to this witness by the accused persons that

Jagjeet Singh was having in his possession the Italian pistol

with ammunition. In view of these circumstances, I am of

the opinion that it stands proved that Jagjeet Singh was not

having any fire arm and ammunition and he also did not fire

through the glass of the driver side. Therefore the only

inference which can be raised in the present case is that the

fire arm, cartridges and the two empty cartridges have been

planted by the accused persons in the car. Once plantation

of fire arm and the ammunition by the accused persons has

been proved, it necessarily leads to the presumption that

this weapon and the ammunition and two empty cartridgeswere already in possession of one of the accused persons,

who were involved in commission of the offence.

12. The doctrine the possession precedes plantation

as propounded by Sh. R. K. Naseem, adv. in fact goes

against the accused persons.

13. Since it stands proved that accused persons were

having possession of an Italian pistol, seven live cartridges

and two empty cartridges, which they planted in the car, this

fact shows that accused persons had already decided and

conspired that whether Mohd. Yaseen is armed or unarmed,


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he has to be killed.

WHETHER ACCUSED PERSONS ACTED IN SELF

DEFENCE

14. The Defence Counsel have raised the plea of self

defence. The circumstances mentioned above clearly show

that there was no firing from the inside of the car, therefore

the plea of self defence taken by the accused persons stands

proved false.

WHETHER ACCUSED PERSONS ARE GUILTY OF

MURDER

15. As discussed above, the accused persons had

conspired to kill Mohd. Yaseen. This court is to see whether

there is any factor which reduces the offence from murder toculpable homicide not amounting to murder. The offence in

question does not fall in Exception 1 to Section 300 IPC as

there was no grave and sudden provocation from the side of

the occupants of the car. Exception 2 of the Section is not

applicable because it is proved that accused persons had not

acted in private defence. Exception 3 deals with a situation

where a public servant acting for advancement of public

justice kills a person by exceeding his powers. In the

present case the accused persons are public servant but the

circumstances show that they had already conspired to kill


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Mohd. Yaseen. The present case could have fallen in this

exception provided the accused persons had retaliated by

exceeding their powers in response to the fire shot by

Jagjeet Singh. However the facts of the case show that in

fact no firing took place from inside the car.

16. Exception 4 envisages a situation where murder is

committed in a sudden fight in heat of passion. This is not

the case here.

17. Therefore it is clear that offence in question does

not reduce to Section 304 IPC. Accused persons had fired

upon the occupants of the Esteem car with intention to kill

Mohd. Yaseen and therefore liable to be convicted U/S 302

IPC.

MISTAKEN IDENTITY18. It is argued by Ld. Defence Counsels that it is a

case of mistaken identity. This fact is born out of the record

that the accused persons were tracing the movements of

Mohd. Yaseen a hard core criminal. PW15 Ram Mehar had

been recording the conversation of Mohd. Yaseen in his diary

( EXPW15/B). Mohd. Yaseen was dreaded criminal and he

was examined as PW70. He testified that he was using a

mobile phone no. 9810071368. This is the phone number

which was being tapped by PW15 Ram Mehar. Ld. Special

Public Prosecutor had argued that since this diary


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Ex.PW15/B has been written in the same pen and same

flow, it means that it was fabricated later on. I am of the

opinion that the court would not be swayed by imagination

and conjectures. If this diary is fabricated then prosecution

should have brought cogent evidence to prove this fact.

Therefore I am not inclined to accept this argument of Ld.

Special Public Prosecutor. It is pointed out here that Ld.

Special Public Prosecutor had drawn my attention to the

telephone numbers written in the diary and argued that the

same do not tally with the print outs of call records. Ld.

Defence Counsels had argued that in print outs one digit is

missing otherwise the number of the mobile phone is the

same. Ld. Special Public Prosecutor was requested to verify

this fact and later on Ld. Special Public Prosecutor after

verification, withdrew this submission.19. PW17 Mohd. Yaseen has testified that on

31.3.1997 i.e. the date of incident, he was at his house in

Mandoli, Parparganj. He received a call from Hafiz that he

wanted to meet him and accordingly he asked Hafiz to meet

him at 1:00 or 1:30 pm near Mother Dairy, Parparganj.

He testified that he was having a Maruti Esteem car of blue

car at that time. Hafiz came to him at 1:15 pm at the

crossing of Mother Dairy and thereafter they went away in

the said car. He also stated that the said Maruti Esteem car

was having registration of U. P. State. He also testified that


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sometimes he grows beard and sometimes he remains clean

shaven. Although, the prosecution has assailed his testimony

to the extent that it was in contradiction to his statement

U/S 161 CrPC in which he had stated that he had no Esteem

car and that he had only a blue car in which he met Hafiz at

Anand Vihar bus stand, however, if his testimony before the

court is taken to be true, it was unfortunate for the

deceased in the present case that they also came at Mother

Dairy, Parparganj and proceeded in Esteem car of blue

colour having number plate of U.P. Ofcourse, Mohd. Yaseen

a dreaded criminal was fortunate enough. I therefore agree

with Ld. Defence Counsels that it was a case of mistaken

identity.

20. Mohd. Yaseen (PW70) is a desperate criminal. In

his cross examination he admitted that he was wanted byDelhi Police in two cases of serious nature. He also admitted

that he was a convict in a murder case of Madhya Pradesh

and was undergoing a sentence for life imprisonment.

However he escaped from the custody from the court

premises with 11 other persons on 24.2.2003 at Aligarh.

21. PW73 Qamar Ahmad, the then DCP Crime testified

that Mohd. Yaseen was wanted in many cases of Delhi as

well as of Uttar Pradesh. One of the important case in which

he was wanted was abduction and murder of one Mr. Saud

Alam, who was a resident of Panchsheel Park and was


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Engineer by professor. He also testified that a reward of

Rs.50,000/- was also announced for the arrest of Mohd.

Yaseen.

22. It is argued by Ld. Defence Counsel that the

antecedents of Mohd. Yaseen show that he is a criminal of

such a nature that he would have no compunctions in firing

at the police party and the police party also presumed that

he must be having a sophisticated fire arm with his

accomplices. Ld. Defence Counsels have drawn my

attention to the testimony of PW73 that when Mohd. Yaseen

was arrested weapon was recovered from him at one time.

On subsequent arrest also he was found in possession of fire

arm and ammunition. Ld. Defence Counsels have drawn my

attention to the fact that those were the days when the

terrorism in Punjab and Delhi was at peak. Those were thedays when it was a battle of nerves and when it came

to facing hardened criminals and the terrorists, the

one who fires first would survive. It is argued that even

if it is presumed that no fire was shot from inside the car,

still considering the nature of the criminal they were

expecting to face, the police party was fully justified in firing

first on the occupants of the Esteem car.

23. The submissions of Ld. Defence Counsels would

have some substance provided there had been some inkling

that the occupant of the car was going to use a fire arm. All


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the occupants were visible through the transparent glasses

of the Esteem car. If the driver of the car takes out his

pistol, this will also show some activity on the part of the

driver. At the cost of repetition I point out that the defence

version of Jagjeet firing from inside the car has been proved

false. There is nothing on record to show that any of the

occupants of the car did any overt act prompting the police

party to fire at them. Moreover in the present case the

information was not that of a terrorist. Mohd. Yaseen was

only a hard core criminal. Inspector Anil has taken the

defence that he knocked the driver side door of Esteem car

and asked him to come out. It shows that the accused

persons were not fearing use of any fire arm from the

occupants of the car, which is apparent from the fact that

accused Inspector Anil was standing very close to the driverside door. The entry points of bullets on wind screen show

that one of the accused had fired from the front side and

therefore the occupants of the car were fully visible to the

accused persons. The Esteem car was encircled by the

accused persons having the service weapon with them. In

such circumstances a criminal howsoever dreaded he might

be would not make a mistake of firing at the police party.

Therefore I am of the opinion that arguments raised by Ld.

Defence Counsels that it was a question as to who fires first

is not tenable.


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24. Mohd. Yaseen is a desperate criminal but still he

has right to life under the Constitution of India. This right to

life can be taken away only in accordance with the due

process of law or in exercise of right of private defence or

when actual encounter takes place. There is no other

circumstance in which the accused persons can take law in

their hands.

25. Due to this evidence coming on record, I had

asked Ld. Special Public Prosecutor to argue his case

presuming that instead of Jagjeet Singh, the dreaded

criminal Mohd. Yaseen has been killed.

26. After hearing the arguments I am convinced with

the prosecution arguments that even if, instead of Jagjeet

Singh and Pradeep Goel, the wanted criminal Mohd. Yaseen

would have been killed, the accused persons would still beguilty of murder by virtue of the doctrine of '' transferred

malice'' contained in Section 301 IPC.

RIGHT OF SELF DEFENCE

27. Section 100 IPC deals with the situation when a

person can cause death of another person in exercise of his

right of private defence. As per the first clause to Section

100 IPC, the right to private defence can extend to causing

death provided there is an assault as may reasonably

cause the apprehension that death will otherwise be


25/92

SC No. 68/97 25

consequence of such assault.

28. Therefore, if the defence version had been proved

to be true that Jagjeet Singh fired at them, the accused

persons would have definitely got the right of private

defence to kill him. However, this defence has been found

to be false as discussed above. No other overt act by the

occupants of the Esteem car has been alleged so as to reach

a conclusion that there was some activity on part of

occupants of the car, which could be termed as ''assault''.

Therefore, the right of private defence is not available to the

accused persons.

ROOP SINGH THE BALLISTIC EXPERT

29. Ld defence counsels have strongly relied upon the

testimony of PW37 Roop Singh, Principal Scientific Officer,

CFSL. This witness had inspected the Esteem car and hadalso given his opinion in respect of the fire arms including

the planted fire arm 7.65 mm pistol and the bullets. Ld

defence counsels have drawn my attention to the following

portion of his testimony recorded on 26.11.99. I reproduce

the same as under:

''At this stage another sealed packet sealed with the sealof CFSL is opened and is found to contain one deformedfire bullet of 380. I have seen this bullet. It was examinedby me and it is EXPW37/23. In the aforesaid packetthere isanother bullet head of lead of 7.65 calibre has beenfound. It isEXPW37/24.''


26/92

SC No. 68/97 26

30. It is argued by Ld defence counsels that in fact

the CBI had replaced 7.65 bullet recovered from the finger

of constable Sunil (accused ) with a .38 bullet lead. It is

argued that by mistake of CBI, the 7.65 bullet remained in

the pulanda. Therefore, the presence of bullet head of lead

of 7.65 calibre in the packet opened by PW37 Roop Singh in

the court shows that in fact Jagjeet Singh had fired from

7.65 bore pistol which hit constable Sunil and constable

Subhash ( the accused persons ).

31. I have considered the submissions of Ld defence

counsels and I disagree with them. In fact PW37 Roop

Singh has deliberately introduced this bullet head

EXPW37/24 in the court while recording his evidence.

In this regard I would like to reproduce an application moved

by Ld Special Prosecutor after some time of this evidence.The same is reproduced as under:

APPLICATION ON BEHALF OF THE PROSECUTION FOR

CORRECTION OF MISTAKES IN THE RECORD OF EVIDENCE

OF PW37 SHRI ROOP SINGH, PRINCIPAL SCIENTIFIC

OFFICER, RECORDED ON NOLVEMBER 26,1999.

The applicant aforementioned respectfully

submits as under:-

1. That further statement in examination in chiefon November 26,1999 wherein some inadvertent errorsand or mistake have crept in, which requires to be


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SC No. 68/97 27

corrected.2. That at page no. 1, line no. 1 the number of

the Maruti esteem car (UP14F-1580) have not beenmentioned.

3. That at page no. 2, line no. 9 and 10, it has beenrecorded as under:''In the aforesaid packet there is another bullethead of lead of 7.65 calibre has been found. It isEXPW37/24.''

The aforementioned bullet head was not in thepacket in which was only one bullet which has beenmarked as ExPW37/23 when the said bullet was

exhibited, Shri Vivek Singh, one of the advocaterepresenting accused S.S Rathi produced thesaidbullet head representing to the Hon'ble courtthat itwas lying on the floor. Thereupon the learneddefencecounsel enquired from the witness the calibreof the

---PAGE 2----

bullet head, whereupon the witness after examiningthe same said that it was of 7.65 calibre. The witnessatno point of time admitted or said that it was in thepacket. The bullet was recovered in parcel no. 12 markedas exhibit no. 107/97 in CFSL. It was first examinedin Biology Division.

In the aforesaid parcel no. 12 there wasonly one deformed .380 fired bullet, which was examined

by the witness and is EXPW37/23. After examinationit was put in a small envelope in which the descriptwas noted. Thereafter it was sealed in a bigger envelope


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SC No. 68/97 28

which was sealed. On this bigger sealed envelope alsodescription of the articles is mentioned. On both theenvelopes it is mentioned that it contains one bulletof .380 calbire.4 That in the circumstance it is in the interestof justice, and also as to what actually and truthfullytranspired in the Hon'ble court, it is essential thatthe record of the evidence of pw37 recorded on November26,1999 be corrected as stated herein above.

It is therefore, humbly prayed that necessarycorrections in the record of the statement of pw37Roop Singh as stated herein above may be made so that

the record truthfully represents about the proceedingsof the Hon'ble court.

December 4,1999 (Anil Kumar Gupta)New Delhi Special Public Prosecutor

32. The above stated portion of evidence of PW37

Roop Singh was recorded on 26.11.99. It is argued by Ld

defence counsels if such an incident as alleged in the

application had happened in the court, there is no

explanation as to why Ld Special Public Prosecutor did not

point out this fact to the court on that very date. In fact he

moves an application on 6.12.99 for making the corrections

in the statement of PW37.

33. Accused S.S Rathi strongly opposed this

application by filing the following reply:

Reply to application dt. 4.12.99 of prosecutionregarding correction of alleged mistakes in therecord of evidence of PW37 Sh Roop Singh


29/92

SC No. 68/97 29

Sir,The respondent accd.submits , in reply to

the aforesaid application:-1. That the application of the prosecution is wrong

to the extent that the circumstance mentionedtherein is absolutely false. The praiseworthy replyis as under:

2. That the allegation in para no. 2 isdenied. There are neither any such errors normistake. The record is correct as deposed bySh Roop Singh.

3. That the allegation in para no. 3 has nol value.It is not necessary that the number of Esteemcar may be mentioned. It was recorded as deposedby the witness. Even otherwise there cannot bemistake by omission of the number of the carone and only one esteem car is involved in this.

4. That the allegations in para no.3 are falsehence totally denied, the aforesaid bullet headwas recovered from parcel no. 12 marked as

Exb. No. 107/97 in CFSL. It is denied thatit was picked up from the ground by Sh VivekSingh, one of the defence counsel. He at nostage represented to the Hon'ble court that.... Page 2....it was lying on the floor. Court recorded as correctlymade.It is an after thought and the prosecutionis trying to cover a fact detrimental tothe case, The deposition of the PW was dictated

in open court. It is not a question of mistakeof a word, but 3 sentences were dictated. Noobjection was ever raised. On the other handobjection is raised on 4th Dec. 1999 afterdue consultation of the prosecution withinvestigating agency. The prosecution should


30/92

SC No. 68/97 30

not be allowed to correct a loop hole lateron after one week.

It is, therefore, prayed that the recordmay not be changed, as it is correct and accordingto deposition made by Sh Roop Singh.

4.1.2000 (B.L. Kalra)Counsel

for S.S Rathi.

WHEN CAUGHT, PW 37 OFFERS SOME EXPLANATION

34. In his testimony dt. 4.1.2000, he gave explanation

as to how the 7.65 bullet head got exhibited. I reproduce

his relevant testimony as under :

'' The parcel no, 12 mentioned in my report at item no. 8was received in the CFSL vide letter no. 1574/3/10(S)/97-SIU.V/

SIC II dated 7.4.97 Mark PW37/A. The description in markPW37/A at serial no. 12 of this parcel is '' one sealed parcelcontaining bullet recovered from constable Sunil Kumar'shand and sample seal''. In CFSL it was first examined in

Biology Division. Thereafter it was received in Ballisticdepartment where I examined it. In the parcel I found onedeformed .380 fire byullet which was marked by me is BC/16.There was no other object in it. It was received in sealedcondition from Biology Department. The seal was of Dr. G.D Guptaand at that time he was SSO one Biology. At this stagethe parcel no. 12 with the seal of the court is opened. It isfound to contain one .380 deform fired bullet which is already

exhibited as PW37/23. This bullet is kept in one smallenvelope. The description has been noted on the smallenvelope and is initialled by me at point A. Parcel No. 12also contains one 7.65 mm fired bullet. When the parcel was

received by me from the Biology department this 7.65 mm bulletwas not in the parcel received by me and was not examined alsoby me.


31/92

SC No. 68/97 31

Q Can you explain how this 7.65 mm bullet came in parcelno. 12?

A When this parcel was opened on the earlier hearing

and at that time after .380 bullet was exhibited the otherbullet ie of 7.65 mm ( EXPW37/24) was found lying on thetable.And so in these circumstances the said 7.65 mmbullet was exhibited.

In the envelope on which India Govt. Service is printed( which was also lying in the bigger envelope ie parcel no. 12)the bullet Expw37/23 was received from Biology Department.

After examination of the bullet the same was returned to theCBI after sealing the same in bigger envelope. The bigger

envelope is mark EXPW37/B ........''

35. In view of this explanation, the prosecution did not

press his application for correction in the statement of PW37

recorded on 26.11.99.

WAS THE BULLET HEAD 7.65 BORE PRESENT IN

PARCEL NO. 12 ?

36. It is argued by Ld defence counsels that since the

prosecution did not press their application for correction in

the testimony of PW37 recorded on 26.11.99, it means that

no correction was made in the said testimony and therefore

the same should be read in evidence in favour of the

accused persons. Ld defence counsels argue that this bullet

had 7.65 bore was extracted from the finger of constable

Sunil Kumar at RML hospital by doctor Vikas Tandon.

However, this doctor was never examined by the


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SC No. 68/97 32

prosecution although he was very much available. On

26.8.2003 prosecution examined record clerk PW69 Ram

Niwas of RML hospital and got identified the signature of Dr

Vikas Tandon on EXPW69/1 in his statement. It is argued

by Ld defence counsels that due to this reason there is no

evidence as to what bullet was extracted by the doctor and

possibility cannot be ruled out that before sending the same

to CFSL, the CBI planted one bullet of .38( which was found

in parcel no. 12) in order to falsely implicate the accused

persons. As per prosecution case, this bullet was fired from

the weapon of Tejpal Singh accused. It is argued by Ld

defence counsel that testimony of PW37 was recorded in

presence of Sh B.L. Kalra advocate, Sh KK Sood advocate

and Sh R.S Malik, advocate on behalf of accused persons

and in presence of Ld Prosecutors. It is argued that thereshould be no doubt about the fact that a bullet of 7.65 bore

was found in parcel no. 12.

37. I have considered the arguments of Ld defence

counsels. It is correct that doctor Vikas Tandon was very

much available and therefore, prosecution has erred in not

examining him. However, the faults of prosecution are many

and not only this one. At the same time this fault on part of

prosecution does not demolish the prosecution case with

regard to recovery of the bullet .38 from the hand of


33/92

SC No. 68/97 33

accused constable Sunil. It is admitted case of prosecution

as well as of the defence that constable Sunil received a

bullet injury and a bullet was extracted by the doctor at RML

hospital. PW32 constable Netar Singh testified that on

31.3.97, he was working at RML hospital as Duty Constable

and he received sealed packets one of which was stated to

contain a bullet taken out from the right hand of constable

Sunil during treatment. The accused persons have not

challenged this testimony. On this date the investigation

had not yet been transferred to CBI.

38. PW42 Niranjan Singh testified that during the

course of investigation, he went to RML hospital. Constable

Netarpal (PW32) produced sealed pulandas. PW42

inspector Niranjan Singh seized one pulanda containing

bullet head which was recovered from the left hand ofconstable Sunil Kumar and sample seal vide memo

EXPW29/C. PW74 inspector A.G.L Kaul, the Investigating

Officer of CBI testified that on transfer of investigation to

CBI, the investigation file and the case property seized by

local police was taken in possession by him. In his

testimony dt. 1.6.2005, PW74 testified that the case

property seized by him from the police station was in sealed

condition and seal of the same remained intact during

his possession and when he deposited the same in

malkhana. No suggestion has been given to these


34/92

SC No. 68/97 34

witnesses that the seals of the pulanda was tampered at

any time during their custody or during the transit to CFSL.

In view of these circumstances, even if the prosecution has

not examined Dr.Vikas Tandon, still it stands proved that the

bullet extracted from the hand of constable Vikas (accused)

reached CFSL in a pulanda with seals intact. PW37 has

testified in his explanation referred above that in parcel No.

12, there was only one deformed .380 fired bullet which

was stated to have been recovered from constable Sunil's

hand and there was no other object in it. In fact there is no

mention of 7.65 bore bullet having been examined by PW37

in his report.

39. In view of these circumstances I do not find any

substance in the argument of Ld defence counsel that

actually the bullet 7.65 bore was sent for examination byCBI. I have already discussed that this bullet was introduced

by PW37 when testifying in the court. In his testimony

dated 26.11.99, he has stated that in this packet there is

another bullet head of lead of 7.65 calibre and he exhibited

the same as EXPW37/24. Subsequently, he testified that

he exhibited the same because this bullet was lying on the

table. In his application the Public Prosecutor says that one

Sh Vivek Singh advocate pointed out that one bullet head

was lying on the floor. How PW37 could pick up the said

bullet head from the table or from the floor of the court and


35/92

SC No. 68/97 35

thereafter testify that the same is found in the packet

( number 12). It is clear that PW37 Roop Singh the

ballistic expert has knowingly and willfully given false

evidence and has fabricated false evidence in his

testimony by introducing and exhibiting a bullet

head of 7.65 calibre with intention that such

evidence should be used in evidence and with

intention to help the accused persons.

40. In view of the seriousness of this act, I deem it

necessary and expedient in interest of justice that this

witness should be tried summarily for giving and fabricating

false evidence. Let he be proceeded U/S 344 CrPC.

CONFLICTING DEFENCES

41. The shooting incident has not been denied by theaccused persons. In the present case accused persons have

taken conflicting defences. Accused S.S Rathi has taken the

defence that at the time of incident, his gypsy stopped at a

distance of about 25-30 metres behind the Esteem car while

the car of SI Ashok Rana was moving ahead of his Gypsy and

the said car of SI Ashok Rana ( accused ) stopped on the

right side of the blue Esteem car. He stated that from his

Gypsy he noticed that the Esteem car has been encircled by

Inspector Anil and SI Ashok Rana with some staff from their

vehicle. Seeing these police officials going towards Esteem


36/92

SC No. 68/97 36

car, constable Sunil and constable Kothari Ram ( both

accused persons ) got down from Gypsy and rushed towards

the car to nab Mohd Yaseen. Accused S.S Rathi stated that

the co accused persons had fired upon the occupants of the

car, while he himself was still sitting in his gypsy having no

control over the police party. Taken by surprise, he

immediately got off from Gypsy and rushed towards Esteem

car . In the meantime firing had stopped.

42. On the other hand, all other accused persons

have stated in their statements U/S 313 CrPC that accused

S.S Rathi, ACP was very much present at the spot and the

firing took place under his supervision and that they had

acted in obedience to the lawful command of their superior

ACP S.S Rathi.

43. Inspector Anil took the defence that he did not fireand his role was limited to keeping a watch upon Mohd.

Yaseen. When accused S.S Rathi directed him to stop the

Esteem car, he only knocked the door. However, when

Jagjeet Singh fired from inside the car, his staff retaliated in

self defence by firing at the occupants of the Esteem car.

DEFENCE OF ACCUSED S.S. RATHI

44. He has stated that he had instructed his staff to

arrest accused Mohd Yaseen and had never given any

command to kill him. His counsel has drawn my attention to


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SC No. 68/97 37

the fact that accused S.S Rathi has not fired even a single

shot. It is argued by Sh R.S malik, advocate for accused S.S

Rathi that the complaint EXPW42/C written by inspector

Anil Kumar accused, only mentions that S.S. Rathi

interacted with him on devil net and made a plan to stop the

Esteem vehicle on next red light. When the said vehicle

stopped after covering some distance, he (accused Inspector

Anil) along with his staff came out of their respective

vehicles and encircled the said vehicle. There is no mention

in this complaint EXPW42/C of Inspector Anil that ACP S.S

Rathi also encircled the Esteem car. In fact, after this point

there is no mention of any role of ACP S.S Rathi in the shoot

out incident. It is argued by Ld defence counsel that this

complaint squarely proves that accused S.S Rathi has no role

in the shooting incident and that entire shooting took placeunder the command of Inspector Anil. It is argued by Ld

defence counsel that Inspector Anil had filed a suit for

damages against a T.V. channel in High court and even in

that suit, accused Inspector Anil did not mention that he was

acting under the command of ACP SS Rathi. Rather

Inspector Anil testifies in the said suit that shoot out took

place under his command. These circumstances support

the defence of the accused S.S Rathi that he is innocent.

45. Sh R.K. Naseem, advocate had argued that this

complaint of Inspector Anil, upon which the FIR was


38/92

SC No. 68/97 38

registered in P.S Connaught Place, has no value in eyes of

law as the same is not a substantive piece of evidence. Ld

counsel has referred to para 15 of AIR 2005 Supreme

Court 1929 in which it was held that FIR is not a

substantive piece of evidence and can only be used to

corroborate the statement of maker and to contradict him

U/S 145 of Indian Evidence Act. It can neither be used as

evidence against the maker who is facing the trial nor to

corroborate or contradict other witnesses.

46. I am of the opinion that by referring to this

complaint written by inspector Anil, accused S.S Rathi might

be shifting his guilt upon his co accused inspector Anil

Kumar. However, at the same time if anything substantial

comes out from this document in favour of accused S.S

Rathi, the said benefit cannot be withheld on a technicalground.

47. Ld counsel for accused S.S Rathi has also drawn

my attention to the firing incident report EXPW40/E

prepared by him and submitted that this report is almost

exact translation of the complaint Expw42/c written by

inspector Anil Kumar. It is argued that in none of these

documents, it is borne out that ACP S.S Rathi was present at

the spot at the time of incident. In fact, he was in his Gypsy

at some distance from Esteem car.


39/92

SC No. 68/97 39

48. I have carefully gone through the complaint

EXPW42/C and firing incident report EXPW40/E. The

firing incident report was prepared on 1.4.1997. This report

has been written as if he himself had seen the entire

incident. Moreover, this firing report was written by ACP S.S

Rathi after one day from the incident and he was having an

opportunity to put the entire incident as it happened

according to him. ACP S.S Rathi was a very senior officer

and he could have ordered action against the police officials

who had planted the fire arm in the Esteem car. It is

argued by Sh R.S Malik,advocate that S.S Rathi prepared

the firing report exactly on the same lines of the complaint

EXPW42/C prepared by inspector Anil Kumar. However,

accused S.S Rathi has given no explanation as to why he did

not specify in this firing incident report that his co accusedindulged in firing while he was still sitting in his Gypsy at

some distance from Esteem car.

49. The perusal of the firing report Ex.PW40/C

prepared by S. S. Rathi is at variance from the defence taken

by him in his statement under Section 313 CrPC. In this

firing report he does not mention that his security guard

commando Kothari Ram and Ct. Sunil left him in Gypsy and

ran towards the Esteem car and shot at its occupant. In this

firing report he does not state that he reached at the spot

only after the firing. Accused S. S. Rathi was writing his


40/92

SC No. 68/97 40

firing report in cool contemplation of the incident. Whereas

Inspector Anil had written his complaint Ex.PW42/C after a

short interval from the incident. Therefore if there was

anything missing or incorrect in the complaint of Inspector

Anil, accused S. S. Rathi was having an opportunity to write

the correct facts in his firing report.

50. It is made clear that I am not reading the

complaint of Inspector of Anil and the firing report prepared

by accused S. S. Rathi as substantive evidence. These

documents have been referred by the accused S. S. Rathi as

a part of his defence. A perusal of the firing report prepared

by S. S. Rathi does not support his version in his statement

under Section 313 CrPC that he was still sitting in his Gypsy

when the shooting incident took place.

51. It is pertinent to note that accused S. S. Rathi wasin a position to examine five witnesses in his defence. As

per his own statement under Section 313 CrPC by accused S.

S. Rathi, SI A. Abbas (who was discharged in the present

case having not fired, though armed) who was driving the

official Gypsy of S. S. Rathi as the official driver Ct. Jaiveer

was not immediately available. Apart from SI A. Abbas, SI

Shamshudin, Head constable Shrikrishna, constable

Omniwas and constable Bahadur Singh were also the eye

witnesses of the incident. They were not prosecuted in the

present case, although they were part of the team of


41/92

SC No. 68/97 41

accused S.S Rathi. The accused S. S. Rathi could have

examined anyone of them to prove that he was sitting in his

Gypsy and that firing incident took place without any

direction from him. It was held in AIR 1975 Supreme

Court 1703 that non examination of material defence

witnesses to prove defence version in a criminal case is the

strongest possible circumstance to discard the defence

version.

52. Ld. Counsels for remaining accused persons have

drawn my attention to the specific defence taken by them in

their statements under Section 313 CrPC that they were

acting under the command and supervision of accused S. S.

Rathi and that accused S. S. Rathi was very much present at

the spot when the incident took place. However I hold that

the statement of these accused persons cannot be read tothe disadvantage of accused S. S. Rathi.

53. Therefore, I hold that there is no force in the

defence of accused S.S Rathi.

54. Now there are following facts and circumstances

which prove that accused S. S. Rathi was present at the spot

and the firing took place under his command.

1. PW73 Qamar Ahmad, the then

DCP was informed by accused

S. S. Rathi at about 1:00/1:30


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SC No. 68/97 42

pm telephonically that accused

Mohd. Yaseen would be visiting

Parparganj and Inspector Anil

had been detailed to keep

watch on the movement of

Mohd. Yaseen at 2:40 pm

PW73 received the information

on wireless set about the shoot

out. PW73 reached the spot

immediately and found ACP S.

S. Rathi, Inspector Anil Kumar

along with other staff at the

spot. PW13 ASI Omvir Singh

who was incharge of PCR

Gypsy which was parked justoutside the Fire Station

Building, Connaught Place

reached immediately after the

incident and found accused S.

S. Rathi at the spot.

2. PW73 testified that inter state

team headed by S. S. Rathi

was deputed to nab accused

Mohd. Yaseen. He also

testified that when ACP S. S.


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SC No. 68/97 43

Rathi informed him on

telephone about the fact that

Inspector Anil Kumar has

sought reinforcement, PW73

directed ACP S. S. Rathi to rush

personally with staff. This

proves that accused S. S. Rathi

along with the staff reached at

the spot.

3. Accused S. S. Rathi also admits

in his statement under Section

313 CrPC that he was following

the Esteem car along with his

staff. He also admits that

commando constable KothariRam and constable Sunil were

with him in his Gypsy.

4. As per record both constable

Kothari Ram and constable

Sunil had fired upon the

occupants. As per

EXPW40/B, accused

constable Kothari Ram was

attached with S.S Rathi, ACP

as Commando constable. The


44/92

SC No. 68/97 44

duty of a Commando is to

remain with his officer for his

security. If the commando

Kothari Ram attached with

accused S.S Rathi and his

another member of staff

namely constable Sunil are

present at the spot and are

firing at Esteem car, it leads to

only one conclusion that

accused S.S Rathi was present

at the spot and firing took

place under his supervision and

command.

5. In his statement U/S 313CrPC he has stated that SI

A.Abbas, constable Shrikishan,

constable Omniwas were still in

the gypsy of accused S.S Rathi

when the firing took place. It is

pertinent to note that these

police officials have not fired

and therefore were not

prosecuted. If all these

persons were in gypsy with


45/92

SC No. 68/97 45

accused S.S Rathi when the

offence took place, they were

the best witnesses who could

have been examined to prove

the defence of accused S.S

Rathi. The failure of accused

S.S Rathi to examine these

witnesses in defence is the

strongest possible

circumstance to discredit the

defence version ( AIR 1975,

SC1703, Gajender Singh Vs

State of UP)

55. All these facts and circumstances disprove thedefence of accused S.S Rathi. I am of the opinion the

prosecution has proved beyond reasonable doubt that

although accused S.S Rathi has not fired any shot, however

the shooting by the co accused persons was done under his

supervision and command.

56. Even for a moment it is presumed that accused

S.S Rathi was still sitting in his gypsy when his subordinates

namely commando Kothari Ram and constable Sunil left his

gypsy and rushed to the spot and fired at the occupants of

Esteem car, the same could have happened only on the


46/92

SC No. 68/97 46

directions of accused S.S Rathi. Had they not acted under

the directions of accused S.S. Rathi, accused S.S Rathi

should have recommended action against them specially

against accused commando Kothari Ram whose duty was to

remain like a shadow of accused S.S Rathi for his protection.

In fact, the presence of accused commando constable

Kothari Ram at the spot and firing by him proves that

accused S.S Rathi was also present at the spot while firing

took place.

DEFENCE OF ACCUSED INSPECTOR ANIL KUMAR

57. Accused inspector Anil Kumar has taken the

defence that he was not acting in furtherance of common

intention alongwith his co accused persons. Sh S.P.

Ahluwalia, advocate has argued that that the duty assignedto accused inspector Anil Kumar was only to keep a watch

on Mohd Yaseen. He did not apprehend the persons ( the

deceased) at DENA Bank because they were five in number (

three were the occupants of the car and two persons were

with pradeep Goyal when he was coming out of the bank ).

Since inspector Anil Kumar was having only two more

persons namely Head constable Shiv Kumar and constable

Sumer Singh ( both the accused persons ) and he

expected that Mohd Yaseen and his accomplices must be

having fire arms, instead of attempting to arrest those


47/92

SC No. 68/97 47

persons, Inspector Anil asked for reinforcement.

Furthermore, since he was acting under the command of

ACP S.S Rathi, Inspector Anil would not go beyond the

instructions of his boss and that he only encircled the

Esteem car when it was so directed by ACP S.S Rathi. It is

argued by Ld defence counsel that apart from watching the

movement of Esteem car and stopping it at red light, he had

no other instructions. Although, he was having a fire arm

but he did not fire. This shows that Inspector Anil Kumar

was not sharing the common intention with his co accused

persons. He argued that all the police officials who had

fired were acting under the command of ACP SS Rathi and

were not under the command of Inspector Anil Kumar.

58. I have considered the submissions of Ld defence

counsel. Accused Inspector Anil Kumar was having theimmediate command of two accused persons namely

accused Head constable Shiv Kumar and accused constable

Sumer Singh. It is not disputed that both of them had fired

at the occupants of the Esteem car. It is not in dispute that

Head constable Shiv Kumar fired two bullets and constable

Sumer Singh fired three bullets from their respective .38

Revolvers. Accused Anil Kumar was present at the spot and

had knocked the driver side door of the Esteem car. His

defence that driver of the Esteem car fired upon them has

already been proved false. This is a circumstance which


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goes against the innocence of accused. Although, accused

Inspector Anil had not fired but the entire circumstances

discussed above prove that he was not only a privy to the

conspiracy to commit the murder in question but also he was

acting in furtherance of prosecution of the object of the

conspiracy with his co accused persons at the time of

shooting. The falsity of his defence that Jagjeet Singh the

deceased fired one shot which hit constable Sunil and a few

more shots has further substantiated the prosecution

version about his active involvement in the present crime.

DEFENCE OF ACCUSED MAHAVIR SINGH

59. Sh R.K Naseem, advocate for this accused argued

that this accused was having one .38 Revolver and had fired

only one shot. It is argued that as per prosecution case, thebullet fired from this Revolver was lodged in the body of

Jagjeet Singh. Jagjeet Singh was cremated in Kurushetra his

native place and his elder brother Didar Singh ( PW8 ) found

the said bullet from his ashes. As per prosecution case,

Didar Singh handed over this bullet lead to SI Ram Dutt

( PW49) police station City Thanesar, Kurushetra. This

bullet lead was later on handed over to CBI and on

examination by the Ballistic Expert, the same was connected

with the fire arm of accused Mahavir. It is argued by Ld

defence counsel that although PW8 Didar Singh was


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examined by the prosecution but this witness is silent about

recovery of any bullet lead from the ashes of deceased

Jagjeet Singh. Furthermore, PW24 Dr. Yashoda Rani, who

conducted postmortem of Jagjeet Singh testified that there

were two entry wounds and two exit wounds of bullets on

the body of Jagjeet Singh. She also testified in cross

examination that the x ray of the body of Jagjeet Singh was

taken but no bullet lead was found inside the body. She

also testified that after exploration of the entire body at the

time of postmortem, no bullet or its fragment was found. Ld

defence counsel argues that neither this bullet was found

lodged in the body of the deceased Jagjeet Singh nor there

is any evidence that the same was recovered from the

ashes of the deceased shows that this bullet was planted by

CBI in order to strengthen its case. Ld defence counsel hasdrawn my attention to the defence of accused Mahavir Singh

in which he stated that when the shooting incident took

place, the public started collecting around them. In order to

disperse the public, Head constable Mahavir Singh fired one

shot in air. Ld defence counsel argues that in view of the

lack of evidence about the recovery of the bullet from the

ashes of Jagjeet Singh, the defence of accused has become

worthy of credence.

60. Ld Special Prosecutor submits that due to mistake,

PW8 Didar Singh could not be examined by the prosecution


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on the point of recovery of bullet head from the ashes of

Jagjeet Singh. However he relies upon the testimony of

PW49 SI Ram Dutt. Ld Special Prosecutor argued that

sometimes the bullet gets hidden in some bone or beneath

it. Therefore, it is not uncommon that if a bullet is lodged in

the body, the same does not come to the notice of the

autopsy doctors. Regarding two entry points on the person

of Jagjeet Singh, it is argued by Ld. Special Prosecutor that it

is possible that the two bullets might have entered from the

same hole.

61. I agree with Ld Prosecutor that the bullet in

question might have escaped the attention of the autopsy

doctors.

62. PW49 SI Ram Dutt has testified that in April

1997, he was posted as ASI in police station CityThanesar. On 5.4.97, Didar Singh and Ranjeet Singh

came to police station and produce one lead piece''

chala hua sikka'' which they claimed to have

recovered from the ashes of Jagjeet Singh after his

cremation from the cremation ground on 2.4.97. They

told him that it was recovered by them on 3.4.97. The lead

piece was sealed by him in a plastic dibbi with a seal of RD

vide seizure memo EXPW49/A written by Head constable

Dharampal on his dictation. The seizure memo bears the

signature of Didar Singh and Ranjeet Singh.


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63. In his cross examination PW49 denied the

suggestion that in connivance with CBI and Niranjan

Singh, the father of deceased Jagjeet Singh, he

deliberately and wrongly prepared bogus documents

to help CBI in framing a false case. In the entire cross

examination, it was nowhere challenged by the accused that

the bullet lead was not handed over to PW 49 by PW8 Didar

Singh, the elder brother of deceased Jagjeet Singh.

Otherwise also there is no reason the disbelieve the

testimony ofPW49. The recovery memo EXPW49/A bears

the signature of PW8 Didar Singh and other relatives of the

deceased. In cross examination the accused persons have

nowhere challenged the testimony of PW49 wherein he

testified that Didar Singh told him that the said bullet lead

was recovered from the ashes of the deceased JagjeetSingh. It is argued by Ld defence counsel that this portion of

evidence of PW49 is hearsay evidence.

64. I am of the opinion that this portion of evidence

by PW49 is relevant U/S 6 of Indian Evidence Act and

therefore admissible as the utterance of Didar Singh

regarding as to from where the bullet lead was recovered is

connected with the issue as to why PW49 seized the same.

Therefore, once this testimony has not been challenged, this

court has no reason to disbelieve as to what was stated by

Didar Singh while handing over the bullet to PW49. Since


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accused persons have not challenged this part of testimony

in cross examination, there is no hitch in accepting the same

as truthful.

65. Though, the prosecution should have examined

PW8 on this point, however, the circumstances and

statement of Didar Singh made to PW49 leave me in no

doubt about the truthfulness of the prosecution story as to

how the said bullet head was recovered. I also do not find

any reason as to why Didar Singh or the CBI would fabricate

a false defence. It is not in dispute that this bullet head was

connected with the fire arm of accused Mahavir as per the

report of ballistic expert. If accused Mahavir had fired in

air, its bullet head should have been recovered from or

around the place of incident. No suggestion has been given

to PW74 Inspector Niranjan Singh that the bullet head waspicked up from the spot and was later on planted by CBI. All

these circumstances lead to only one inference that

accused Head constable Mahavir had fired the bullet upon

Jagjeet Singh and the said bullet head was recovered from

his ashes. He has also taken defence in his statement U/S

313 CrPC that there was a sudden firing from inside the car.

This defence has been proved false and therefore, this is an

additional circumstance against the accused.

66. Further more his defence that he fired in air at the

time of shooting also does not find any support from any


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document or testimony of any witness. PW26 Avtar Singh

was very much present at that time of shooting. Present

accused has not cross examined this witness on this point.

Therefore I do not find the defence of accused Mahavir to be

reliable.

DEFENCE OF REMAINING ACCUSED PERSONS.

67. All the remaining accused persons have taken the

defence that they were acting in obedience of lawful

command of accused S.S Rathi, ACP at the time of shooting.

Moreover, they fired only when the occupant of the car fired

at them. At the cost of repetition, I point out that the

defence of the accused persons that Jagjeet Singh, the

driver of Esteem car fired at the police party has been held

to be false . Moreover, the fact that one pistol along with

eight live cartridges and two fired empties were planted bythe accused persons shows the intention of the accused

persons that they had already decided to kill Mohd. Yaseen

even if he was unarmed. It is proved that accused persons

had fired upon the occupants of the Esteem car without any

overt act from the side of the occupants of the car. Although

all the accused persons were acting under the obedience of

accused SS Rathi and inspector Anil Kumar, however, in the

present case they had acted under the unlawful command of

their superiors. In fact, the falsity of defence of the accused

persons and plantation of fire arm and ammunition and two


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empty cartridges in Esteem car shows that they had already

planned to kill Mohd Yaseen. Prosecution argues that this

was done to earn out of turn promotion. It is also possible

that they had acted with a motive to rid the society from

the menace of a dreaded criminal. Whatever the motive

they had, they were under a duty to work within the legal

limitations and they had no power to commit murder even of

a dreadful criminal.

TWO EMPTY CARTRIDGES FOUND IN THE ESTEEM CAR

68. It is argued by Ld defence counsels that no charge

was framed with regard to planting of two Khokhas ( empty

cartridges) and therefore accused persons cannot be

convicted for planting these two empty cartridges in Esteem

car. In such a situation, it has to be presumed that somefiring took place from inside the car, otherwise there was no

question of finding two empty cartridges. I partly agree with

the submission of Ld defence counsels. It is correct that the

accused persons cannot be convicted for planting two empty

cartridges. However, evidence on judicial record has proved

that these two empty cartridges were found in the Esteem

car, although no firing took place from inside the car. PW45

has specifically testified that he did not see any fire arm in

the Esteem car. Therefore, the planting of two empty

cartridges in the fire arm and ammunition in the Esteem car


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stands proved. This piece of evidence can be used against

the accused persons because these two cartridges were

planted to show that actually deceased Jagjeet Singh had

fired from inside the car.

WHO PLANTED THE FIRE ARM ETC IN THE ESTEEM CAR

69. Ld defence counsel has drawn my attention to the

recovery memo of the mobile phone of Jagjeet Singh which

was handed over to PW42 Inspector Niranjan Singh, SHO PS

Connaught Place by accused SI Ashok Rana. As per the

testimony of PW42 the same was taken in possession vide

memo Ex.PW35/J and SI Ashok Rana told him that the same

was taken out by him from the Esteem Car. It is argued that

since this accused had entered the car and had taken out

the mobile phone lying in Esteem car, it was he who couldhave planted the fire arm and ammunition. I am of the

opinion that it cannot be said definitely as to which of the

accused planted the arm and ammunition in the car.

DID THE ACCUSED PERSONS PULLED OUT PRADEEP

GOYAL AND JAGJEET SINGH AND THEREAFTER SHOT

AT THEM.

70. Ld. Public Prosecutor has drawn my attention to

the photographs Ex.PW64/4, Ex.PW64/5, Ex.PW64/6 in

which no bullet mark is seen on the left side front door.


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However when this door was opened, three bullet marks

were seen on the rim (panel) of left front door. Ld. Special

Public Prosecutor has drawn my attention to the

photographs Ex.PW64/95 and Ex.PW64/126 which show

the said bullet marks. Ld. Defence Counsel has also drawn

my attention to the sketch of co driver seat which show the

five bullet marks in a row on the upper side of the back of

the co driver seat. It is further pointed out that the

deceased Pradeep Goyal received many bullet injuries on his

left buttock. It is argued that this situation could have been

possible only when deceased Pradeep Goyal would have

been pulled out from the car and was shot. Ld. Special

Public Prosecutor has drawn my attention to the

photographs Ex.P1/12 which shows the dead body of

Pradeep Goyal lying at some distance from the Esteem car.Moreover the position of Jagjeet Singh lying on the road with

one leg inside the car also shows that he could have been

pulled out and shot.

71. In order to convince myself, I had inspected the

Esteem car myself. The bullet marks on the panel of left

side front door show that the same were fired when the door

was open. Whether accused persons opened the door or

whether deceased himself opened the door cannot be

decided in view of the evidence coming on record. PW11

Tarunpreet Singh although in ducked position could have at


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least sensed that Jagjeet Singh and Pradeep Goyal were

being dragged out by the accused persons. However he

does not make any such statement in his evidence before

this court. Although the place where Pradeep Goyal

received bullet injuries and the photographs pointed out by

Ld. Special Public Prosecutor create some suspicion against

the accused persons but still the evidence on record is not

sufficient to reach to a conclusion that accused persons had

pulled out the deceased and thereafter had shot upon him.

However one thing stands proved that firing was

resorted to by one of the accused when the left side

front door of the Esteem car was open. Due to this

reason, the left side front door did not get any bullet mark

but the rim of the said door received three bullet marks. My

observations of the bullet marks on the rim/panel is that thesame could not have received any bullet mark if the said

door were closed at the time of firing.

AN AMERICAN TRIAL

72. Sh. S. P. Ahluwalia, adv. for accused Inspector Anil

has filed in the court the complete proceedings of a shoot

out case in America. The same is available on inter net. In

the said case police fired numerous shots at one person

namely Diallo and killed him. All the police officials were

acquitted on the ground that when the deceased took out a


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purse from the pocket of his pant, the accused police

officials fired at him because due to darkness, they thought

that the deceased was taking out the weapon to fire at

them. The Jury took the view that the police officials were

trained to react in split of seconds and the manner in which

the deceased acted, it was justified for those police officers

to fire at him.

73. I have carefully perused the proceedings of the

said trial. It is not known whether any appeal was filed

against the said judgement. However the reading of entire

trial point out the weaknesses and the problems of jury trial.

In India we have forsaken this type of trial for good reasons.

ENGLISH INSTANCE

74. Sh. S. P. Ahluwalia, adv. has placed before meliterature taken from the inter net. In the said case the

British police were looking for a suspect terrorist involved in

the blast in the tube train. The police officials chased one

Brazilian youth thinking him to be the terrorist and chased

him and thereafter fired at him without any provocation. It

is argued by Ld. Counsel that British Prime Minister regretted

for the incident but he made it clear that such incidents are

possible in war against terrorism. It is argued by Ld.

Defence Counsel that the police officials involved in the said

shooting were never prosecuted rather the shooting in


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question did not come in the way of promotion of those

police officers. It is argued by Ld. Counsel that at that time

(and even now) India was facing the height of terrorism and

the police officers were trained to fire in fraction of seconds.

Therefore the fire committed by the accused persons is only

due to misjudgement of whole situation. Hence they should

be acquitted.

LAW IN INDIA

75. The American and British instances pointed out by

Sh. S. P. Ahluwalia, adv. would show that in both the

instances the police officers involved in the shooting did not

plant any weapon upon the persons killed by them. Further

more, if there is any dilution of human rights in any other

country, the same cannot become precedence in India.Even at the height of terrorism in India, the law makers as

well as the judiciary have upheld the high standards set by

the Constitution of India in Article 21 which states that no

person shall be deprived of his life or personal liberty except

according to the procedure established by law. Even a

hardened criminal and a terrorist enjoys this protection. In

the present case Jagjeet Singh and Pradeep Goyal were

killed because accused persons had conspired to kill Mohd.

Yaseen.


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76. In AIR 1998 SUPREME COURT 2443 the

Supreme Court was considering the similar facts as in the

present case. Police officers had taken the defence that the

occupants of the car had fired at them and therefore they

retaliated by firing at the occupants of the car in self

defence. The ballistic report however showed that pistols

found near the dead bodies were never used as the same

were defective. Therefore the defence of the accused

persons was found to be false and Supreme Court held that

all the police personnel developed common intention to kill

and thereby upheld the conviction of the police officials

under Section 302 IPC.

INVESTIGATION OF RC NO.11.

77. It is argued by Ld. Defence Counsels that RC No.11registered on the basis of FIR No. 448/97 lodged on the

complaint of accused Inspector Anil has never been

investigated nor the same has been cancelled. Till the said

case is cancelled and the same is accepted by Magistrate, it

cannot be said that the defence of accused persons has

been rejected by investigation. I disagree with the

submissions of Ld. Defence Counsels. In the present case

Investigating Officer has jointly investigated RC No.10 and

RC No.11 because the facts of the case are based on the

same incident. Since accused have been prosecuted in RC

Fake Encounter Infamous Case C.P. Shootout Case Judgement

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