Satyavir Singh Rathi vs State Tr.C.B.I

Satyavir Singh Rathi ....Appellant

Versus

State thr. C.B.I. ....Respondent

WITH

CRIMINAL APPEAL NOs.2476/2009, 2477-2483/2009 and

2484/2009.

J U D G M E N T

HARJIT SINGH BEDI, J.

This judgment will dispose of Criminal Appeal Nos.2231

of 2009, 2476 of 2009 and 2477-2484 of 2009. The facts have

been taken from Criminal Appeal No. 2231 of 2009 (Satyavir

Singh Rathi vs. State thr. C.B.I.).

On the 31st March 1997 Jagjit Singh and Tarunpreet

Singh PW-11 both hailing from Kurukshetra in the State of

Haryana came to Delhi to meet Pradeep Goyal in his office

situated near the Mother Dairy Booth in Patparganj, Delhi.

They reached the office premises between 12.00 noon and 1.00

Crl. Appeal No.2231/2009 etc.

2 p.m. but found

that Pradeep Goyal was not present and the office was locked.

Jagjit Singh thereupon contacted Pradeep Goyal on his Mobile

Phone and was told by the latter that he would be reaching the

office within a short time. Jagjit Singh and Tarunpreet Singh,

in the meanwhile, decided to have their lunch and after buying

some ice-cream from the Mother Dairy Booth, waited for

Pradeep Goyal's arrival. Pradeep Goyal reached his office at

about 1.30 p.m. but told Jagjit Singh and Tarunpreet Singh

that as he had some work at the Branch of the Dena Bank in

Connaught Place, they should accompany him to that place.

The three accordingly left for the Bank in the blue Maruti

Esteem Car bearing No. UP-14F-1580 belonging to Pradeep

Goyal. Mohd. Yaseen, a hardcore criminal, and wanted by the

Delhi Police and the police of other States as well, in several

serious criminal cases, was being tracked by the Inter-State

Cell of the Crime Branch of the Delhi Police and in the process

of gathering information of his movements, his telephone calls

were being monitored and traced by PW-15 Inspector Ram

Mehar. The appellant Satyavir Singh Rathi, Assistant

Crl. Appeal No.2231/2009 etc.

3 Commissioner of

Police and the In-Charge of the Inter-State Cell, received

information that Mohd. Yaseen would be visiting a place near

the Mother Dairy, Patparganj, Delhi at about 1.30 p.m. on the

31st March 1997. Inspector Anil Kumar (appellant in Criminal

Appeal No.2484 of 2009) of the Crime Branch was accordingly

detailed by ACP Rathi to keep a watch near the Mother Dairy

Booth in Patparganj and he was actually present at that place

when Tarunpreet Singh and Jagjit Singh met Pradeep Goyal in

his office. Jagjit Singh who was a cut haired Sikh (without a

turban though he sported a beard) was mistaken for Mohd.

Yaseen by Inspector Anil Kumar. As the Inspector was, at that

stage, accompanied only by two police officials, Head

Constable Shiv Kumar and Constable Sumer Singh, he called

for reinforcements from ACP Rathi who was at that time

present in his office in Chanakayapuri. On receiving the call,

ACP Rathi briefed the staff in his office and told them that two

young persons had been spotted near the Mother Dairy Booth

in Patparganj and that one of them, a bearded young man,

resembled Mohd. Yaseen, the wanted criminal. The ACP,

Crl. Appeal No.2231/2009 etc.

4 along with a

police party consisting in all of 12 persons, left the Inter-State

Cell office at 1.32 p.m. to assist the police team led by

Inspector Anil Kumar. As per the record, barring Head

Constable Srikrishna and Constable Om Niwas, all the

officials, including ACP Satyavir Singh Rathi were armed with

service weapons. The police officials and the weapons they

were carrying are given hereunder:

(i) ACP Satyavir Singh Rathi 9 MM Pistol No.0592

(ii) Insp. Anil Kumar .38 Revolver No.1147

(iii) SI Ashok Rana .38 Revolver No.1139

(iv) SI A Abbas .38 Revolver No.1114

(v) ASI Shamsuddin .38 Revolver No.1112

(vi) HC ShivKumar .38 Revolver No.1148

(vii) HC Mahavir Singh .38 Revolver No. 0518

(viii) HC Tej Pal .38 Revolver No.1137

(ix) Ct.Sunil Kumar SAF carbine

(x) Ct. Subhash Chand .38 Revolver No.1891

(xi) Ct. Kothari Ram AK-47 No.5418

Crl. Appeal No.2231/2009 etc.

5

(xii) Ct. Bahadur

Singh AK-47 No. 2299

(xiii) Ct. Sumer Singh .38 Revolver No.1906

In the meanwhile, the Maruti Esteem car, which had

been followed by Inspector Anil Kumar and the other two

officials with him, stopped at the Dena Bank at 2.00 p.m.

Pradeep Goyal then got down from the car, leaving Jagjit Singh

and Tarunpreet Singh behind. Jagjit Singh, however, on the

request of Pradeep Goyal, occupied the driver's seat so that

the car was not towed away by the police. Pradeep Goyal then

went on to the Dena Bank where two of his employees Vikram

and Rajiv were waiting for him outside the Bank. The three

then went inside the Bank whereafter Vikram returned to the

car to pick up a briefcase belonging to Pradeep Goyal.

Tarunpreet Singh also accompanied Vikram to the Bank while

Jagjit Singh continued to sit alone in the driver's seat.

Pradeep Goyal came out from the Bank at about 2.30 p.m. and

after giving instructions to his employees, sat in the Esteem

car on the front left seat whereas Tarunpreet Singh got into

Crl. Appeal No.2231/2009 etc.

6 the rear seat. The

car driven by Jagjit Singh thereafter moved on towards

Barakhamba Road. As the car halted at the red light on

Barakhamba Road, the two police parties, one headed by ACP

Satyavir Singh Rathi and other by Inspector Anil Kumar,

joined forces. The car was immediately surrounded by the

police officials who fired from almost all sides killing Pradeep

Goyal and Jagjit Singh instantaneously and causing grievous

injuries to Tarunpreet Singh. The three occupants were

removed to the RML Hospital in a Police Control Room Gypsy,

but Pradeep Goyal and Jagjit Singh were declared dead on

arrival. On receiving information with regard to the shootout,

Inspector Niranjan Singh- PW 42, the SHO of Police Station,

Connaught Place, New Delhi, rushed to the place of incident

followed by senior police officials, including the DCP. On an

inspection of the car, Inspector Niranjan Singh PW recovered a

7.65 mm pistol loaded with 7 live cartridges in the magazine, a

misfired cartridge in the breech and two spent cartridge cases

of 7.65 mm bore from inside the car. These items were taken

into possession. Inspector Anil Kumar also handed over a

Crl. Appeal No.2231/2009 etc.

7 written complaint

with regard to the incident to Inspector Niranjan Singh, who in

turn sent the same to the Police Station with his endorsement,

and an FIR No. 448/97 dated 31st March 1997 under Sections

186/353/307 of the IPC and Section 25 of the Arms Act was

registered against the occupants of the Car. In the complaint,

Inspector Anil Kumar recorded that after the Car had stopped

at the red light, it had been surrounded by the police and that

he had thereafter knocked at the driver's window asking the

occupants to come out but instead of doing so, Jagjit Singh

had started firing at the police party from inside the car

resulting in gun shot injuries to Constables Sunil Kumar and

Subhash Chand and that it was thereafter that the police

personnel had opened fire at the car in self defence with a view

to immobilizing the occupants and to prevent their escape.

The incident, however, sparked a huge public outcry. The very

next day Dinesh Chand Gupta, father-in-law of Pradeep Goyal,

made a complaint to the Lt. Governor, Delhi on which another

FIR No. 453/97 was registered at Police Station Connaught

Place, New Delhi against the police personnel involved in the

Crl. Appeal No.2231/2009 etc.

8 shootout for an

offence punishable under Section 302/34 of the IPC. In the

complaint, it was alleged that the police officials had

surrounded the car and had fired indiscriminately and without

cause, at the occupants killing the two and causing grievous

injuries to the third. The initial investigation with regard to

the incident was carried out by Inspector Niranjan Singh but

pursuant to the orders of the Government of India made on

the 1st April of 1997 the investigation was handed over to the

Central Bureau of Investigation (hereinafter called the CBI)

and the two FIRs were amalgamated for the purpose of

investigation. The CBI, on investigation, came to the

conclusion that the police party headed by ACP Satyavir Singh

Rathi and Inspector Anil Kumar had fired on the Maruti

Esteem car without provocation and that FIR No. 448/97

dated 31st March 1997, registered on the complaint of

Inspector Anil Kumar, was intended to act as a cover-up for

the incident and to justify the police action. The CBI

accordingly found that no shot had been fired from inside the

car by Jagjit Singh, as alleged, and that the claim in this FIR

Crl. Appeal No.2231/2009 etc.

9 that two police

officials, who were a part of the police party, had sustained

gun shot injuries as a result of firing from the Car, was false.

The investigation also found that the 7.65 MM pistol and

cartridges allegedly recovered from inside the car had actually

been planted therein by members of the police party with a

view to creating a defence and screening themselves from

prosecution. As a result of the investigation made in both the

FIRs, a charge sheet was filed before the Chief Metropolitan

Magistrate on the 13th June 1997. The said Magistrate took

cognizance for the offences punishable under Section

302/307/201/120-B/34 by his order dated 10th July 1997

against 10 members of the police party and in addition, under

Section 193 of the IPC against Inspector Anil Kumar for having

lodged a false report with regard to the incident. The matter

was then committed for trial. The trial court recorded the

evidence of 74 witnesses and also took in evidence a large

number of documents, including the reports of the Forensic

Science Laboratory. In the course of a very comprehensive

judgment dated 10th July, 1997 the trial court recorded the

Crl. Appeal No.2231/2009 etc.

10 conviction and

sentence as under:

Name of appellant Offence for which convicted Sentence awarded

Satyavir Singh Rathi, U/Sections 120B IPC,302 IPC Under Section 120B IPC

ACP, Delhi Police read with 120B IPC,307 IPC imprisonment for life &

read with 120B IPC, 193 IPC a fine of Rs.100/-.

read with 120B IPC, 193 IPC, Under Section 302 IPC

201/34 IPC and 203/34 IPC read with Section 120B

IPC - imprisonment for

Life and a fine of

Rs.100/-.

Under Section 307 IPC

Read with Section 120B

IPC - imprisonment for

life and a fine of

Rs.100/-

Under Section 193 IPC

read with Section 120B

IPC - rigorous

imprisonment for 7 years

and a fine of Rs.100/-

Under Section 201 IPC -

rigorous imprisonment

for 7 years and a fine of

Rs.100/-.

Under Section 302 IPC -

rigorous imprisonment

for 2 years.

Anil Kumar, Inspector U/Sections 120B IPC,302 IPC U/Section 120B IPC -

Of Police, Delhi Police r/w 120B IPC,307IPC r/w imprisonment for life

120B IPC 193 IPC r/w 120 and a fine of Rs.100/-

B IPC,193 IPC,201/34 IPC

And 203/34 IPC

U/S 302 IPC read with

Section 120B IPC -

imprisonment for life and

a fine of Rs.100/-

U/S 307 IPC r/w

Sec.120B IPC -

imprisonment for life and

a fine of Rs.100/-.

U/S 193 IPC r/w

Sec.120B IPC - rigorous

Crl. Appeal No.2231/2009 etc.

11 imprisonment for 7 years

and a fine of Rs.100/-.

U/S 201 IPC - rigorous

imprisonment for 7 years

and a fine of Rs.100/-.

U/S 203 IPC - rigorous

imprisonment for 2

years.

Ashok Rana,Sub- U/Sections 120B IPC,302IPC U/S 120B IPC -

Inspector of Police, r/w 120B IPC,307 IPC r/w 120B imprisonment for

Delhi Police IPC, 193 IPC r/w 120B IPC life and a fine of

Rs.100/-

U/S 302 IPC r/w

Sec.120B IPC -

imprisonment for life and

a fine of Rs.100/-

U/S 307 IPC r/w

Sec.120B IPC -

imprisonment for life and

a fine of Rs.100/-.

U/S 193 IPC r/w

Sec.120B IPC - rigorous

imprisonment for 7 years

and a fine of Rs.100/-.

U/S 201 IPC - rigorous

imprisonment for 7 years

and a fine of Rs.100/-.

U/S 203 IPC - rigorous

imprisonment for 2

years.

Ashok Rana,Sub- U/Sections 120B IPC,302IPC U/S 120B IPC - imprison

Inspector of Police, r/w 120B IPC,307 IPC r/w -ment for life and a

Delhi Police 120B IPC,193 IPC r/w120B IPC fine of Rs.100/-

U/s 302 IPC r/w

S.120B IPC-

imprisonment for life

and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

Crl. Appeal No.2231/2009 etc.

12

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

Shiv Kumar,Head 120B IPC,302 IPC r/w 120B IPC U/S 120B IPC- -

Constable,Delhi 307 IPC r/w 120B IPC,193 IPC r/w imprisonment for

Police 120B IPC life and a fine of Rs.

100/-

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-

Taj Pal Singh,Head 120B IPC,302 IPC r/w 120B U/S 120B IPC -

Constable,Delhi IPC,307 IPC r/w 120B IPC,193 imprisonment for

Police IPC r/w 120B IPC life and a fine of

Rs. 100/-

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 193 IPC r/w

S.120B IPC-rigorous

imprisonment for 7

years and a fine of

Rs.100/-

Mahavir Singh,Head 120B IPC,302IPC r/w U/S 120B IPC -

Crl. Appeal No.2231/2009 etc.

13 Const.Delhi Police

120B IPC,307 IPC r/w

imprisonment for

120B IPC,193 IPC r/w life and a fine of

120B IPC Rs.100/-

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

Sumer Singh, Const. 120B IPC,302 IPC r/w 120B U/S 120B IPC -

Delhi Police. IPC 307 IPC r/w 120B IPC, imprisonment for

193 IPC r/w 120B IPC life and a fine of Rs.

100/-.

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

Subhash Chand,Const. 120B IPC,302 IPC r/w 120B U/S 120B IPC -

Delhi Police IPC,307 IPC r/w 120B IPC, imprisonment for

193 IPC r/w 120B IPC life and a fine of

Rs.100/-.

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

Crl. Appeal No.2231/2009 etc.

14 and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

Sunil Kumar,Const. 120B IPC,302 IPC r/w U/S 120B IPC -

Delhi Police 120B IPC, 307 IPC r/w imprisonment for

120B IPC,193 r/w 120B life and a fine of Rs.

IPC 100/-.

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

Kothari Ram, Const. 120B IPC,302 IPC r/w U/S 120B IPC -

Delhi Police 120B IPC, 307 IPC r/w 120B imprisonment for

IPC,193 IPC r/w 120B IPC life and a fine of

Rs.100/-.

U/S 302 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

U/S 307 IPC r/w

S.120B IPC -

imprisonment for life

and a fine of

Rs.100/-.

Crl. Appeal No.2231/2009 etc.

15

U/S 193 IPC r/w

S.120B IPC - rigorous

imprisonment for 7

years and a fine of

Rs.100/-.

All the substantive sentences were directed to run

concurrently. The matter was thereafter taken in appeal to

the Delhi High Court which re-examined the entire evidence

and concluded that the conviction of the appellants under

Section 302/120B of the IPC could not be sustained and they

were entitled to acquittal of that charge, but their conviction

and sentence under Sections 302 and 307 of the IPC was

liable to be maintained with the aid of Section 34 of the IPC

instead of Section 120B of the IPC. It was also directed that

the conviction and sentence of ACP Rathi and Inspector Anil

Kumar under Sections 193, 201/34 and 203/34 of the IPC

was liable to be maintained. The appeals were accordingly

allowed to this very limited extent. It is in this background

that the matter is before us after the grant of Special leave on

the 23rd November 2009.

Crl. Appeal No.2231/2009 etc.

16 We have

heard the learned counsel for the parties in extenso in

arguments spread over several days. Mr. Amrendra Sharan,

the learned senior counsel appearing in the lead case i.e. the

appeal of ACP Satyavir Singh Rathi, has raised several

arguments in the course of the hearing. He has first pointed

out that the prosecution story and the findings of the trial

court as well as of the High Court with regard to the manner

of the incident and how it happened were erroneous and the

defence version that the appellants had fired at the car in self-

defence after Jagjit Singh had first fired a shot through the

window injuring two policemen was, in fact, the correct one in

the light of the prosecution evidence itself that a 7.65 mm bore

pistol, and two fired cartridge cases had been found and

recovered from the car itself as deposed to by PW13, PW15,

PW35, PW41 and PW57 and as these witnesses had not been

declared hostile the prosecution was bound by their

statements. In this connection, the learned counsel has

placed reliance on Javed Masood & Anr. vs. State of

Rajasthan 2010 (3) SCC 538. It has also been pleaded that

Crl. Appeal No.2231/2009 etc.

17 the fact that a

single shot had been followed by a volley had been deposed to

by PW-26 Avtar Singh who was an injured witness and also by

ASI Om Bir-PW who was in a police control room Gypsy

stationed closed by. It has further been pointed out that from

the evidence of the aforesaid witnesses it was clear that all the

window panes of the car had been broken which indicated that

a shot had indeed been fired from inside the car. In addition,

it has been urged by Mr. Sharan that the investigation made

by the CBI was completely partisan and though a large

number of independent witnesses had been examined at site,

none had been cited as witnesses, and that even Dr.

V.Tandon, who had extracted the bullet from the person of

Constable Sunil Kumar, had not been produced as a witness.

It has been highlighted that no investigation had been made

as to the ownership of the 7.65 mm pistol or as to how and

who had planted it in the car, as alleged. It has further been

submitted that there was no common intention on the part of

ACP Rathi along with his co-accused to commit the murders

as he was sitting in his Gypsy far away from the place of the

Crl. Appeal No.2231/2009 etc.

18 shoot out and

there was no evidence whatsoever to suggest that he had

either encouraged or directed the other police officials to shoot

at the car and as such his conviction with the aid of Section

34 of the IPC, could not be sustained. He has, in this

connection, cited Ram Nath Madhoprasad & Ors. vs. State of

M.P. AIR 1953 SC 420. As a corollary to this argument, the

learned counsel has also emphasized that as the trial court

had framed a charge under Section 302/120B and in the

alternative under Section 302/34 of the IPC but had chosen to

record a conviction under the former provision only and had

not rendered any opinion on the alternative charge, it

amounted to a deemed acquittal of the alternative charge and

as the State had not challenged the matter in appeal, the High

Court was not justified in an appeal filed by the accused in

altering the conviction from one under Section 302/120B of

the IPC to one under Section 302/34 of the IPC. In this

connection, the learned counsel has placed primary reliance

on Sangaraboina Sreenu vs. State of A.P. 1997 (5) SCC 348

and Lokendra Singh vs. State of M.P. 1999 SCC (Crl) 371

Crl. Appeal No.2231/2009 etc. 19 and Bimla Devi &

Anr. vs. State of J & K 2009 (6) SCC 629 and in addition on

Kishan Singh vs. Emperor AIR 1928 P.C. 254, The State of

Andhra Pradesh vs. Thadi Narayana 1962 (2) SCR 904 and

Lakhan Mahto vs. State of Bihar 1966 (3) SCR 643. The

learned counsel has also urged that it was settled beyond

doubt that the provisions of Section 313 of the Code of

Criminal Procedure had to be scrupulously observed and it

was obligatory on the trial court to put all the incriminating

circumstances in the prosecution story to an accused so as to

enable him to effectively meet the prosecution case and if some

material circumstance was not put to an accused, it could not

be taken into account against him and had to be ruled out of

consideration in the light of the judgments reported as Hate

Singh Bhagat Singh vs. State of Madhya Bharat AIR 1953

SC 468, Vikramjit Singh vs. State of Punjab 2006 (12) SCC

306) and Ranvir Yadav vs. State of Bihar 2009 (6) SCC 595.

The learned counsel has also furnished a list of 15

circumstances which had not been put to the accused,

particularly to ACP Rathi, at the time when his statement had

Crl. Appeal No.2231/2009 etc.

20 been recorded. It

has, in addition, been pleaded that the prosecution was barred

as the cognizance in this case had been taken beyond the

period of 3 months as envisaged in Section 140 of the Delhi

Police Act, 1978 and on the factual aspect has referred us to

various dates relevant in the matter. In this connection, the

learned counsel has placed reliance on Jamuna Singh & Ors.

vs. Bhadai Shah AIR 1964 SC 1541 and Prof. Sumer Chand

vs. Union of India & Ors. 1994 (1) SCC 64. It has finally

been submitted by Mr. Sharan that the sanction under Section

197 of the Code of Criminal Procedure too had been given

without application of mind and as the entire record was not

before the Lt. Governor, all relevant material had not been

considered and for this additional reason also, the prosecution

was not justified. In this connection the learned counsel has

placed reliance on State of Karnataka vs. Ameerjan 2008 (1)

SCC (Crl) 130. Mr. Uday U.Lalit, the learned senior

counsel appearing for Head Constable Mahavir Singh, the

appellant in Criminal Appeal No. 2476/2009, has pointed out

that there were 15 persons in all in the police party and of

Crl. Appeal No.2231/2009 etc.

21 them only 10

persons had been sent for trial and of the 5 left out, three had

not used the firearms which they had been carrying and Head

Constable Mahavir Singh (as per the evidence on record) had

not fired into the car, his case fell in the category of those who

had not been sent up for trial and, as such, he too was

entitled to acquittal. It has also been pointed out that after

the dead body of Jagjit Singh had been cremated, a bullet had

been recovered from his ashes allegedly fired from the weapon

of Head Constable Mahavir Singh but as the High Court had

disbelieved the evidence of this recovery, there was no

evidence against him. He has, in addition, supported Mr.

Sharan's arguments on Section 313 of the Cr.P.C. and has

contended that the scope and rigour of Section 313 remained

unchanged despite the introduction of Section 315 of the

Cr.P.C. which now made an accused a competent witness in

his defence.

Mr. Balasubramaniam, the learned senior counsel for

Inspector Anil Kumar in Criminal Appeal No. 2484 of 2009,

has also supported the arguments raised by the other counsel

Crl. Appeal No.2231/2009 etc.

22 with regard to the

common intention of the appellant more particularly as he had

not fired at the car though armed. He has also pleaded that

even accepting the prosecution story as it was, the only

inference that could be drawn was that the police party had

fired at the car in self-defence and that such an inference

could be drawn from prosecution story had been accepted by

this Court in Mohan Singh & Anr. vs. State of Punjab AIR

1963 SC 174.

Mr. Vineet Dhanda, the learned counsel for the

appellants in Criminal Appeal Nos. 2477-2483 of 2009, has

pointed out that although the appellants in these matters had

admitted that they had fired into the car yet the fact that

Mohd. Yaseen was a dreaded criminal with 21 criminal cases

against him including 18 of murder, the police party had to be

careful and they had fired back only after the first shot by

Jagjit Singh. The learned counsel, however, has confined his

primary argument to the fact that the appellants were acting

on the orders of ACP Rathi, who was their superior officer, and

as they had taken an oath at the time of induction to office to

Crl. Appeal No.2231/2009 etc.

23 follow the orders

of superior officers, they were liable for exoneration of any

kind of misconduct as per Section 79 of the IPC. He has also

pointed out that the appellants had, in their statements

recorded under Section 313 of the Cr.P.C., unanimously

stated that the orders for the firing had been given by ACP

Rathi.

Mr. Harin Rawal, the Additional Solicitor General

representing the CBI has, however, controverted the

submissions made by the counsel for the appellants. It has

been pointed out that the investigation had revealed that the

incident had happened as the police party was under the

impression that Jagjit Singh was in fact Mohd. Yaseen and in

their anxiety to get at him, had decided to eliminate him

pursuant to their common intention. It has been highlighted

that the defence that Jagjit Singh had first resorted to firing

from inside the car had been found to be unacceptable by both

the courts below and a positive finding had been recorded that

the 7.65 mm bore pistol had been surreptitiously placed in the

car to create a defence. He has further pointed out that the

Crl. Appeal No.2231/2009 etc.

24 prosecution story

with regard to the incident had been proved by independent

evidence and as the investigation was being handled by the

Delhi Police at the initial stage, some attempt had apparently

been made to help the appellants in order to create a cover-up

story. The argument that the CBI had conducted a partisan

investigation has also been controverted. It has been

highlighted that all relevant evidence had been produced

before the Court and nothing had been withheld and that in

any case allegations of a partisan investigation could be made

against an individual officer but could not be generalized

against an organization as vast as the CBI and no argument

had been addressed identifying any officer(s) of the CBI of any

misconduct. It has also been submitted that from the evidence

of the prosecution witnesses and the conduct of the appellants

pre and post-facto the incident indicated that the murders had

been committed pursuant to their common intention and this

was also supported by the fact that a false story had been put

up in defence. It has also been pointed out that deemed

acquittal theory projected by Mr. Sharan could not be applied

Crl. Appeal No.2231/2009 etc.

25 in the present

case as the judgment reported in Lokendra Singh's case

cited by him had been doubted in Lakhjit Singh & Anr. vs.

State of Punjab 1994 Suppl. (1) SCC 173 and the matter had

thereafter been referred to a larger Bench which in the

judgment reported in Dalbir Singh vs. State of U.P. 2004 (5)

SCC 334 had over-ruled the judgment in Lokendra Singh's

case (supra) and that the judgment in Dalbir Singh's case

had subsequently been followed in Dinesh Seth vs. State of

NCT of Delhi 2008 (14) SCC 94. It has been highlighted that

the judgment in Bimla Devi's case (supra) relied upon by Mr.

Sharan had not taken note of the last two cited cases. It has,

further been contended by Mr. Rawal that though it was a

matter of great importance that all incriminating

circumstances must be put to an accused, but if some

material had been left out it would not ipso-facto mean that it

had to be ruled out of consideration as it was for an accused

to show that prejudice had been suffered by him on that

account. It has been pointed out that the issue of prejudice

ought to have been raised by the appellants at the very initial

Crl. Appeal No.2231/2009 etc.

26 stage before the

trial court and as this had not happened, the prosecution was

fully justified in arguing that no prejudice had been caused.

The learned ASG has placed reliance on Shobhit Chamar &

Anr. vs. State of Bihar 1998 (3) SCC 455 and Santosh

Kumar Singh vs. State thr. CBI 2010 (9) SCC 747 for this

submission. The arguments raised by Mr. Sharan with regard

to Section 140 of the Delhi Police Act and Section 197 of the

Cr.P.C. have also been controverted. It has been submitted

that Section 140 of the Delhi Police Act would apply only to

offences committed under that Act and not to other offences

and that in any case in order to claim the protection under

Section 140, the act done by a police officer had to be "under

the colour of duty" and as "murder" would not come in that

category, no protection thereunder was available. In this

connection, the learned ASG has placed reliance on The State

of Andhra Pradesh vs. N.Venugopal & Ors. AIR 1964 SC 33,

State of Maharashtra vs. Narhar Rao AIR 1966 SC 1783,

State of Maharashtra vs. Atma Ram AIR 1966 SC 1786

Bhanuprasad Hariprasad Dave & Anr. vs. The State of

Crl. Appeal No.2231/2009 etc. 27 Gujarat AIR 1968

SC 1323, and Prof. Sumer Chand's case (supra) as well. In

so far as the sanction under Section 197 of the Cr.P.C. is

concerned, it has been pleaded that the Lt. Governor had all

relevant material before him when the order granting sanction

had been made and that the material was adequate for him to

take a decision and merely because some of the evidence had

been received by the CBI after the grant of sanction, would not

invalidate the sanction. In this connection, the learned ASG

has placed reliance on S.B.Saha & Ors. vs. M.S.Kochar AIR

1979 SC 1841.

The learned ASG has also controverted Mr. Lalit's

arguments with regard to the culpability of appellant Head

Constable Mahavir Singh. It has been pointed out that the

bullet recovered from the ashes of Jagjit Singh had been found

to have been fired from the weapon of Head Constable Mahavir

Singh but the High Court had declined to accept this part of

the prosecution story as Didar Singh PW who had produced

the bullet before the Haryana Police after picking it up from

the funeral ashes, had not deposed in his evidence that he had

Crl. Appeal No.2231/2009 etc.

28 handed over the

bullet to the Police. It has, however, been submitted that

Head Constable Mahavir Singh had indeed fired his weapon

had been admitted by him and the story that he had fired in

the air to disperse a huge and turbulent crowd that had

collected, was not borne out by the evidence. Mr.

Balasubramaniam's argument with regard to the involvement

of Inspector Anil Kumar has also been challenged by the ASG

by urging that though he admittedly had not fired his weapon

but his case did not fall in the category of those police officials

who had not been sent for trial. It has been submitted that

the appellant had in fact been the prime mover in the entire

story. Dealing with the arguments addressed by Mr. Vineet

Dhanda, the learned ASG has highlighted that there was no

evidence to suggest that it was on the orders of ACP Rathi that

the firing had been resorted to, except for the self-serving

statements made by the appellants under Section 313. It has,

accordingly, been pointed out that this set of appellants could

not claim the benefit of Section 79 of the Indian Penal Code.

Crl. Appeal No.2231/2009 etc.

29 On hearing

the learned counsel for the parties, several facts appear to be

admitted on record but are compounded by a tragedy of

errors. These relate to the place and time of incident, the

presence of the appellants duly armed with most of them

having fired into the car with their service weapons, that

Mohd. Yaseen was admittedly a notorious criminal and that

Jagjit Singh (deceased) had been mistaken by Inspector Anil

Kumar for Mohd. Yaseen, and that Pradeep Goyal owned a

blue Esteem Car with a Uttar Pradesh number plate, and had

his office in Patparganj near the Mother Dairy Booth. It is in

this background that the prosecution and the defence versions

have to be examined. The prosecution story has already

been narrated above and does not require any recapitulation

in detail. Suffice it to say that Inspector Anil Kumar and his

two associates had followed the car driven by Pradeep Goyal to

the Dena Bank Branch at Connaught Place and it was after

Pradeep Goyal and the others had left the Dena Bank

premises and were near the Barakhamba Road crossing that

the two police parties, one headed by Inspector Anil Kumar,

Crl. Appeal No.2231/2009 etc.

30 and other by ACP

Rathi, had joined forces and surrounded the car as it stopped

at a red light, and had fired into it killing two persons and

injuring one. It is at this stage that the prosecution and the

defence deviate as it is the case of the defence that after the

car had been surrounded, Inspector Anil Kumar had knocked

at the driver's window asking the occupants to come out but

instead of doing so Jagjit Singh had fired two shots at the

police which had led to a fusillade in self defence. It is true

that Avtar Singh PW, who was an injured witness and ASI

Ombir Singh, PW-13 did say that the multiple firing had been

preceded by one solitary shot which apparently is in

consonance with the defence version. Likewise, PW-13 ASI

Ombir Singh, PW15 Inspector Ram Mehar, PW-35 Inspector

Rishi Dev, PW41 Constable Samrat Lal, and PW-57 S.I. Sunil

Kumar testified that a 7.65 mm bore pistol along with two

fired cartridges and 7 live cartridges in the magazine and one

misfired cartridge in the breech, had been recovered from the

car. This story too appears to support the case of the defence.

It is equally true that it is not always necessary for the

Crl. Appeal No.2231/2009 etc.

31 accused to plead

self- defence and if the prosecution story itself spells it out, it

would be open to the court to examine this matter as well, as

held by this Court in Mohan Singh's case (Supra) and in

James Martin vs. State of Kerala 2004 (2) SCC 203.

Likewise, it is now well settled in the light of the judgment in

Javed Masood's case (supra) that if a prosecution witness is

not declared hostile by the prosecution, the evidence of such a

witness has to be accepted by the prosecution. It must also be

observed that though the prosecution is bound to prove its

case beyond reasonable doubt, the obligation on an accused

under Section 105 of the Indian Evidence Act, 1872 is to

prove it by a preponderance of probabilities. We have,

accordingly, examined the evidence under the above broad

principles.

As already indicated above, PW's Avtar Singh and Ombir

Singh did state that a single shot had been followed by

multiple shots thereafter. Avtar Singh, however, apparently

did not receive a bullet injury as the simple abrasion on him

had been apparently caused by a flying splinter from the

Crl. Appeal No.2231/2009 etc.

32 tarmac but we

have extremely independent evidence on this score as well.

PW-1 Geeta Ram Sharma, the Chief Photographer of the

Statesman Newspaper, which has its office adjacent to the red

light on Barakhamba Road, deposed that on the 31st March

1997 at about 2 - 2.30 p.m. while he was sitting in his room

along with his colleagues PWs Sayeed Ahmed and Shah

Nawaz, they had heard the sound of firing from the

Barakhamba Road side and that he along with the other PWs

had come out to the crossing along with their camera

equipment and had seen a blue Esteem Car standing there

with two bodies lying alongside and one injured person sitting

on the road with a large number of police men, including some

in mufti, present. He stated that on his directions Shah

Nawaz and Sayeed Ahmed had taken a large number of

photographs of the site and 14 of them were also produced as

Exs. P-1 to P-14. He further stated that Vijay Thakur, one of

the Reporters of the Statesman had also been present. Sayeed

Ahmed and Shah Nawaz aforementioned appeared as PW-2

and PW-67 and supported the story given by PW-1 Geeta Ram

Crl. Appeal No.2231/2009 etc.

33 Sharma. He also

proved the photograph marked Ex. `X' which shows that the

driver's window was intact. We have perused the photograph

ourselves and find that the driver's window was definitely

intact. The photograph is in black and white and has been

taken through the driver's window and the man wearing white

with a dark tie seen in the photograph has two shades of

white, the portion through the window having a dull hue and

the portion above, far brighter. It has come in the evidence of

PW-Tarunpreet that the car A.C. was on when the firing took

place and the windows had been drawn up. We can also take

notice that in this background, the windows and windshield

would be of tinted glass. Likewise, we are also of the opinion

that had the shots been fired through the driver's window or

the windshield some powder residues would have been left

around the bullet holes as the shots would have been fired

from almost a touching distance. PW-37 Roop Singh from the

Central Forensic Science Laboratory, who had examined the

car very minutely detected no such residue and also testified

that the appreciable powder distance of a 7.65 mm pistol

Crl. Appeal No.2231/2009 etc.

34 could be one to

two feet but would depend on the sitting posture of the person

firing. He also stated that in all at least 29 bullet holes had

been detected on the car of 9 mm, 7.62 mm and .380 calibre

weapons and that most of the seven exit holes in the car could

have been caused by bullets fired from the rear and left side

into the car and exiting thereafter, although the possibility of

an exit hole being caused by a bullet fired from inside the car

could also not be ruled out. He further pointed out that as the

bullet fired at Constable Subhash Chand remained embedded

in his body and had not been taken out for medical reasons, it

was not possible to give an opinion whether it was a bullet of

7.65 mm calibre. The defence story that Constables Sunil

and Subhash had suffered injuries on account of the firing of

two shots from inside the car, is further belied by the medical

evidence. PW-16-Dr. Harmeet Kapur carried out the medico

legal examination of Constable Subhash Chand Ex.PW16/B.

He found three bullet injuries on his person, which indicated

blackening. These injuries could not have been caused by

firing from inside the car as the blackening from a pistol would

Crl. Appeal No.2231/2009 etc.

35 be, at the most,

from a foot or two. Likewise, PW-17 Dr. Neeraj Saxena who

had examined Constable Subhash Chand, also found three

separate gun shot injuries on his person. He also produced in

evidence his treatment record Ex.PW17/B. This doctor was

not even cross-examined by the prosecution. It needs to be

emphasized that all the weapons used in the incident fired

single projectiles (i.e. bullets), whereas the distance between

the gun shot injuries on the two injured policemen show at

least 3 different wounds of entry on each of them. On the

contrary, it appears that the injuries suffered by them were

caused by the firing amongst the policemen as they had

surrounded and fired into the car indiscriminately and without

caution ignoring that they could be a danger to themselves on

cross-fire on uncontrolled firing. It has, in fact, been pointed

out by Mr. Sharan that ACP Rathi had written to his superiors

pointing to the ineptitude of his team of officers but he had

been told that no other staff was available. The present case

illustrates and proves the adage that a weapon in the hands of

an ill trained individual is often more of a danger to himself

Crl. Appeal No.2231/2009 etc.

36 than a means of

defence. In this background, the evidence of PW's Geeta Ram

Sharma, Sayeed Ahmad and Shah Nawaz, PW-50 Constable

K.K.Rajan and PW-51 Constable Rajinderan Pilley becomes

extremely relevant. PW-13 ASI Ombir Singh who was the

Officer In-Charge of the PCR Gypsy parked near the Fire

Station Building adjoining Barakhamba Road, had

undoubtedly supported the defence version that a single shot

had been followed by a volley. Constable Rajan and Constable

Pilley, who were present along with ASI Ombir Singh,

categorically stated that they had not heard any single fire and

it was only the continuous firing that had brought them

rushing to the site and having reached there, they had taken

the three victims to the R.M.L. Hospital. Their story is

corroborated by the evidence of the three newspaper

employees. Tarunpreet Singh PW was also categoric that no

shot had been fired from inside the car. The story therefore

that Jagjit Singh had fired at the police party when accosted

is, therefore, on the face of it, unacceptable. In this overall

scenario even if it is assumed that the driver's window had

Crl. Appeal No.2231/2009 etc.

37 been found

broken as contended by the defence, it would still have no

effect on the prosecution story.

We now come to the question as to the recovery of the

7.65 mm bore pistol allegedly used by Jagjit Singh as this fact

is intimately connected with the defence version. First and

foremost, it appears that even prior to the arrival of PW-42

SHO Niranjan Singh, the Car had already been searched and

the site violated as a cell phone belonging to one of the victims

had been picked up by appellant ASI Ashok Rana and handed

over to the SHO. The fact that undue interest had been taken

by the offending police officials is also clear from Ex. P/10 a

photograph showing the ASI looking into the car. More

significantly, however, PW-12 Sant Lal, the official

Photographer of the Delhi Police, took two photographs Ex.

PW12/28 and PW12/29 of the driver's seat from very close

range but they show no pistol or empty shells. Even more

significantly ACP Rathi submitted a detailed written report

Ex.D.16/8 on the 1st of April 1997 to his superior officer in

which he talks about the firing by Jagjit Singh but makes no

Crl. Appeal No.2231/2009 etc.

38 mention as to the

recovery of a pistol from the car although as per the defence

story the weapon had been picked up by the SHO soon after

the incident. Likewise, in the report Ex. PW-42/C lodged by

Inspector Anil Kumar appellant with the Connaught Place

Police immediately after the incident, there is no reference

whatsoever to the presence of a 7.65 mm pistol in the car. It is

also relevant that the pistol had been sent to the Central

Forensic Science Laboratory but PW-46 S.K.Chadha who

examined the weapon, could find no identifiable finger prints

thereon.

The cumulative effect of the above evidence reveals the

starkly patent fact that the defence story projected was a

palpably false one and the police officials involved having

realized almost immediately after the incident (perhaps on

questioning Tarunpreet Singh-PW) that they had made a

horrific mistake, immediately set about creating a false

defence. The trial court and the High Court have accordingly

opined on the basis of the overall assessment that the defence

version was a concoction and that the prosecution story that it

Crl. Appeal No.2231/2009 etc.

39 was the

unprovoked firing by the appellants which had led to the death

of Jagjit Singh and Pradeep Goyal and grievous gun shot

injuries to Tarunpreet Singh, had been proved on record.

This finding also completely dislodges Mr.

Subramaniam's argument that in case the defence, as laid,

was not entirely acceptable, the accused were nevertheless

entitled to claim the benefit of Exception 3 to Section 300 of

the Indian Penal Code. This Exception pre-supposes that a

public servant who causes death, must do so in good faith and

in due discharge of his duty as a public servant and without

ill-will towards the person whose death is caused. In the light

of the fact that the positive case set up the defence has been

rejected by the trial court, the High Court as well as by us, the

question of any good faith does not arise. On the contrary, we

are of the opinion that the appellants had fired without

provocation at the Esteem Car killing two innocent persons

and injuring one. As already mentioned above, the obligation

to prove an exception is on the preponderance of probabilities

but it nevertheless lies on the defence. Even on this

Crl. Appeal No.2231/2009 etc.

40 touchstone the

defence cannot succeed. It is true that the High Court has

acquitted the appellants of planting the 7.65 mm bore pistol in

the car. However, this acquittal has been rendered only on the

ground that it was not possible to pinpoint the culprit who had

done so. This can, by no stretch of imagination, be taken to

mean that the story that the pistol had been planted in the car

has been disbelieved by the High Court. The reliance of the

defence on Mohan Singh's case and James Martin's Case

(supra) is, therefore, irrelevant on the facts of this case. It is

true that the Prosecution is bound by the evidence of its

witnesses as held in Javed Masood's case. In the present

matter, however, we see that the recovery of the 7.65 mm

weapon appears to be an admitted fact, but with the rider that

it had been planted to help the defence.

The argument that the CBI had conducted a partisan and

motivated investigation, is based largely on three premises;

firstly, that all the independent witnesses whose statements

had been recorded under Section 161 of the Cr.P.C. at the site,

had not been brought in evidence, secondly, that Constables

Crl. Appeal No.2231/2009 etc.

41 Sunil Kumar and

Subhash Chand had suffered gun shot injuries but the CBI

had tried to create evidence that these injuries were as a

consequence of firing by their co-appellants in that an effort

had been made to show that the bullet recovered from the

ashes of Jagjit Singh after his cremation had been fired from

the weapon carried by Head Constable Mahavir Singh, thirdly,

that Dr. V. Tandon who had extracted the bullet from the

hand of Constable Sunil Kumar, had not been even cited as a

witness.

As against this, the learned ASG has pointed out that it

was not necessary to produce every person whose statement

had been recorded under Section 161 and as the incident was

admitted by the defence, though a counter version had been

pleaded, the Court was called upon to decide which of the two

versions was correct, and in this background all witnesses

who were material had been examined. It has further been

pointed out that the bullet which had allegedly been recovered

from the ashes of Jagjit Singh, had been handed over to Sub-

Inspector Ram Dutt of the Haryana Police who in turn had

Crl. Appeal No.2231/2009 etc.

42 handed it over to

the investigating officer of the CBI and as such, the CBI had

nothing to do with that recovery.

It is true that all witnesses have not been examined but

we find that in the circumstances this was not necessary. It

will also be seen that as per the prosecution story, appellants

Sunil Kumar and Subhash Chand, had been caused injuries

by shots fired from the weapons of Head Constable Tej Pal

Singh and Constable Kothari Ram appellants. As per the

report of the CFSL Ex.P/37F, the bullet recovered from the

person of Constable Sunil Kumar had been fired from the .380

revolver of Head Constable Tej Pal Singh and as per the

evidence of PW-37 Roop Singh, the possibility that the metallic

bullet which was embedded on the person of Constable

Subhash Chand appellant could be the steel core portion of a

shattered 7.62 mm bullet of the weapon of Constable Kothari

Ram. Much argument has, however, been made by the

learned defence counsel on the evidence of PW-37 Roop Singh

wherein some doubt has been expressed as to the identity of

the bullet allegedly recovered from the hand of Constable Sunil

Crl. Appeal No.2231/2009 etc.

43 Kumar. He stated

in his examination-in-chief that he had received parcel No.12

along with a covering letter dated 7th April, 1997 referring to

the bullet recovered from Sunil Kumar's hand. He further

stated that he had opened the parcel and had found one .380

calibre bullet and no other object therein and that he had re-

sealed the bullet in the parcel. It appears from the evidence of

PW-37 that parcel No.12 was again opened in Court and at

that stage it was found to contain not only a .380 calibre

bullet but also one fired 7.65 mm bullet. The witness,

however, stated that when the parcel had been received by

him in the Ballistics Department from the Biology Department

of the Laboratory, the 7.65 mm bullet had not been in it. A

pointed question was thereafter put to him as to how he could

explain the presence of the 7.65 mm bullet in parcel No.12. In

answer to this question, he stated as under:

"When this parcel was opened on the earlier

hearing and at that time after .380 bullet was

exhibited the other bullet i.e. 7.65 mm

(Ex.PW37/24) was found lying on the table,

and so in these circumstances the said 7.65

mm bullet was exhibited."

Crl. Appeal No.2231/2009 etc.

44

Taken aback

by this unforeseen development, the prosecution filed an

application dated 4th December 1999 for clarification. A reply

thereto was filed by the defence on the 4th of January 2000.

On re-examination, the witness suggested that the 7.65 mm

bullet had been mixed up with the .380 bullet by some

Advocate when the parcel had been opened in Court on an

earlier date during court proceedings. In the light of the fact

that the trial court and the High Court have already held (and

also held by us) that no shot had been fired from inside the

car from the 7.65 mm pistol, the possibility of a 7.65 mm

bullet being in the parcel becomes suspect and it appears that

some mischief was being played out. We must also notice that

we are dealing with appellants who are all police officials and

the trial court has clearly hinted that there appeared to be

some connivance between the appellants and the

investigation. In any case, the creation of some confusion vis-

`-vis the bullets, is a matter which would undoubtedly help

the defence and a presumption can thus be raised that this

Crl. Appeal No.2231/2009 etc.

45 had been stage

managed by the defence. This aspect too cannot be ignored.

The argument raised by the learned counsel for the appellants,

therefore, that the application filed for clarification had been

withdrawn as the prosecution was shying away from the truth

is not sustainable as this had happened in the light of the

clarification given by PW-37 Roop Singh. Nothing ominous or

sinister can be read into this.

The learned counsel has also challenged the recovery of

the bullet from the ashes of Jagjit Singh. This submission is

based on the evidence of PW-8 Didar Singh, the elder brother

of Jagjit Singh and PW-49 ASI Ram Dutt to whom the bullet

had been handed over by Didar Singh and the statements of

Dr. G.K.Sharma and PW-24 Yashoda Rani who had X-rayed

the dead body and found no image of a bullet therein. It has

accordingly been argued that this too was the brainchild of the

CBI and a crude attempt to inculpate Constable Mahavir

Singh. The trial court had accepted the prosecution story that

this spent bullet had been recovered from the ashes of Jagjit

Singh. This part of the prosecution story has, however, been

Crl. Appeal No.2231/2009 etc.

46 rejected by the

High Court by observing that the trial court had ignored the

evidence on this score as Didar Singh PW-8 had nowhere

stated that he had picked up of a bullet from the ashes and

handed it over to Sub-Inspector Ram Dutt and more

particularly as the two doctors who had X-rayed the dead body

had found no trace of a bullet. We endorse this finding of the

High Court in the light of the uncertain evidence on this score

but to allege that the CBI officials had a hand in planting the

bullet, is unwarranted. It will be seen from the evidence of

PW-49 Ram Dutt that Jagjit Singh had been cremated on the

2nd of April 1999 and the bullet had been recovered the next

day when the ashes were being collected and had been handed

over to him the same day and that it had thereafter been

sealed and deposited in the Malkhana. The CBI, at this stage,

had nothing to do with the recovery of the bullet as PW-72

Inspector Sumit Kumar of the CBI had taken it into possession

duly sealed vide Memo Ex. PW49/A dated 11th April, 1999. It

is also relevant that the weapon bearing Butt No.518 carried

by Head Constable Mahavir Singh had been seized by the

Crl. Appeal No.2231/2009 etc.

47 Delhi Police on

the 1st April 1997 itself and the CBI did not have access to it

which could have enabled it to create any false evidence on

this score. We must also recall that the police party

comprised 15 personnel. Only 10 who played an active role

had been prosecuted. This background points to a fair

investigation. We are, therefore, of the opinion that no fault

whatsoever can be found in the investigation made by the CBI.

The primary argument, however, of the appellants that

even assuming the prosecution story to be the correct, there

was no common intention on the part of the appellants to

commit murder, must now be examined. Highlighting the role

attributed to the two appellants ACP Rathi and Inspector Anil

Kumar, it has been submitted that ACP Rathi had not fired at

the car and was in fact sitting 20 meters away from the firing

site. Mr. Lalit, appearing for Inspector Anil Kumar, has also

supported this argument and submitted that Inspector Anil

Kumar too had not fired at the car and the only role attributed

to him was a knock at Jagjit Singh's window calling upon him

to step out but instead of doing so he had fired back leading to

Crl. Appeal No.2231/2009 etc.

48 a nasty shoot out.

It has, accordingly, been submitted by the learned counsel

that the finding of the High Court that all the appellants were

guilty under Section 302/34 etc. was wrong.

The learned ASG has, however, submitted that the

question as to whether Section 34 of the IPC would apply

would depend upon the facts of the case and for this reason,

the sequence of events preceding the incident, the actual

incident itself, and post facto the incident, would have to be

taken into account.

We have considered the arguments of the learned counsel

very carefully. It bears reiteration that the trial court had

convicted all the appellants on the primary charge under

Section 302 read with section 120-B of the IPC, but the High

Court has acquitted them under that provision and convicted

them under Section 302/34 etc. of the IPC instead. This

aspect would have to be examined in the background of the

defence story that had been projected and as the entire police

operation had been conducted in a secret manner as no

outsider had any access to what is going on in the matter

Crl. Appeal No.2231/2009 etc.

49 relating to Mohd.

Yaseen. Admittedly, the target was Mohd. Yaseen, concededly

a notorious criminal with a bounty on his head, as he had

been involved in a large number of very serious criminal

matters. The incident happened on account of a mistake as to

the identity of Jagjit Singh who could pass off as a Muslim and

it is nobody's case that the police party had intended to

eliminate Jagjit Singh and his friends. The courts below have

been very clear on this score and have observed that keeping

in mind the background in which the incident happened, that

it was not the outcome of an act in self defence but was

pursuant to the common intention to kill Mohd. Yaseen. The

possibility of a hefty cash reward and accelerated promotion

acted as a catalyst and spurred the police party to rash and

hasty action. As to the role of ACP Rathi and Inspector Anil

Kumar, the High Court has found that it was Rathi who was

the leader of the police party in his capacity as the ACP and

therefore, it was not necessary for him to be in the forefront of

the attack on the Esteem car and Inspector Anil Kumar who

had admittedly knocked at the window could be treated

Crl. Appeal No.2231/2009 etc.

50 likewise as being

the next officer in the hierarchy. We have seen the site plan

and notice that ACP Rathi was sitting in his Gypsy about 15

meters away from the car when the incident happened. It has

come in evidence that when Inspector Anil Kumar had

conveyed the fact of Jagjit Singh's and Tarunpreet Singh's

presence at the Mother Dairy Booth at Patparganj, the ACP

had got together a police party of heavily armed officers,

briefed them, and they had thereafter moved on to Connaught

Place. It has been found as a matter of fact that when

Inspector Anil Kumar had followed the Car to the Dena Bank,

Jagjit Singh had been left behind in the car alone for quite

some time but Inspector Anil Kumar and his two associates

had made absolutely no attempt to apprehend him at that

stage or to counter check his identity as the Inspector had

Mohd. Yaseen's photograph with him. Even more significantly

the Inspector made no attempt to identity Pradeep Goyal or

Tarunpreet Singh whatsoever, although admittedly he was in

close wireless contact with ACP Rathi. This is the pre-

incident conduct which is relevant. The facts as brought

Crl. Appeal No.2231/2009 etc.

51 reveal a startling

state of affairs during the incident. It is the case of the

defence that the car had been surrounded to immobilize the

inmates and to prevent them from escaping and that it was

with this intention that Inspector Anil Kumar had knocked on

the driver's window asking the inmates to get out but he had

been answered by firing from inside the car. This plea cannot

be accepted for the reason that the defence has already been

rejected by us. Moreover PW-37 testified that there were no

bullet marks on the tyres and they remained intact even after

the incident, despite 34 shots being fired at the car, and 29

bullet holes, most of them of entry, thereon. On the other

hand, the appellants presupposed that one of the inmates was

Mohd. Yaseen, the wanted criminal and that the firing was so

insensitive and indiscriminate that some of the shots had hit

Constables Subhash Chand and Sunil Kumar. The post-facto

conduct of the appellants is again relevant. Inspector Anil

Kumar gave a report on the 1st April 1997 immediately after

the incident, which was followed by a report by ACP Rathi the

next day giving the counter version. This has been found by

Crl. Appeal No.2231/2009 etc.

52 us to be

completely untenable. The High Court was, therefore, justified

in holding that in the light of the above facts, it was not

necessary to assign a specific role to each individual appellant

as the firing at the Car was undoubtedly with a clear intent to

annihilate those in it and was resorted to in furtherance of the

common intention of all the appellants. In Abdul Sayeed

Versus State of M.P. 2010 (10) SCC 259, it has been held as

under :

"49. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the "same intention" or "similar intention"

or "common object". The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh v. State of Punjab.)

50. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the persons concerned had shared a common intention. (Vide Krishnan v. State of Kerala and Harbans Kaur v.

Crl. Appeal No.2231/2009 etc.

53 State of

Haryana".)

In conclusion, we must hold that the appellants were

liable to conviction under Sections 302/34 etc. of the IPC.

We now come to Mr. Sharan's connected argument with

regard to the deemed acquittal theory of the appellants for the

offence under Sections 302, 307 read with Section 34 of the

IPC by the trial court. At this stage, we may recall that the

trial court had framed a charge under Section 302/307 read

with Section 120-B of the IPC and an alternative charge under

Section 302/307 read with Section 34 of the IPC but without

opining on the alternative charge, had convicted the appellants

for the offence under Section 302/307 read with Section 120-

B of the IPC. It has accordingly been contended that as the

appellants had been deemed to have been acquitted of the

charge of having the common intention of committing the

murders and there was no appeal by the State against the

deemed acquittal against under that charge, it was not open to

the High Court to alter or modify the conviction. The learned

ASG has, however, pointed out that a contrary view had been

Crl. Appeal No.2231/2009 etc.

54 expressed earlier

in Lakhjit Singh's case (supra) and as a consequence of this

apparent discordance, the matter had been referred to a

Bench of three Judges in Dalbir Singh's case (supra) which

had over ruled the judgment in Sangaraboina Sreenu's case

(supra) and by implication over-ruled Lokendra Singh's case

(supra) as well. He has further highlighted that the judgment

in Dalbir Singh's case (supra) had been followed in Dinesh

Seth's case (supra) but both these cases had not even been

alluded to in Bimla Devi's case (supra). He has accordingly

pointed out that the very basis of Mr. Sharan's argument on

the theory of deemed acquittal was lacking.

We have considered the arguments of the learned

counsel very carefully. We must, at the outset, emphasize that

the judgments referred to above and cited by Mr. Sharan are

largely on the basis that a charge for the offence of which the

appellants had ultimately been acquitted, had not been framed

and therefore, it was not possible to convict an accused in the

absence of a charge. For example, in Sangaraboina Sreenu's

case (supra) a judgment rendered in two paragraphs, this

Crl. Appeal No.2231/2009 etc.

55 Court held that

only a charge under Section 302 had been framed against the

accused, therefore, he could not be convicted under Section

306 of the IPC although the Court noticed that the offence

under Section 306 was a comparatively minor offence, within

the meaning of Section 220 of the Cr.P.C. It was also noticed

that the basic constituent of an offence under Section 302 was

homicide whereas the offence under Section 306 was suicidal

death and abetment thereof. This judgment was followed in

Lokendra Singh's case (supra) wherein a similar situation

existed. It appears, however, that both these judgments had

over looked the judgment in Lakhjit Singh's case (supra) as

in this case a Division Bench of this Court had held that a

conviction under Section 306 of the IPC could be recorded

though a charge under Section 302 had been framed. In

arriving at this conclusion, the Bench observed that the

accused were on notice as to the allegations which would

attract Section 306 of the IPC and as this section was a

comparatively minor offence, conviction thereunder could be

recorded. On account of this apparent discordance of opinion

Crl. Appeal No.2231/2009 etc. 56 over the issue

involved, the matter was referred to a Bench of three Judges in

Dalbir Singh's case (supra). By this judgment, the opinion

rendered in Sangarabonia Sreenu's case (supra) was over-

ruled, as not being correctly decided. Ipso facto, we must

assume that the decision in Lokender Singh's case (supra)

must also be read as not correctly decided. The judgment in

Dalbir Singh's (supra) has subsequently been followed in

Dinesh Seth's case (supra). We must, therefore, record that

the judgment rendered in Bimla Devi's case (supra) which

does not take into account the last two cited cases, must be

held to be per incuriam. Kishan Singh's and Lakhan

Mahto's cases (supra) were cases where no charge had been

framed for the offences under which the accused could be

convicted whereas Thadi Narayana's case was on its own

peculiar facts.

We find the situation herein to be quite different. We

must notice that the charges had indeed been framed in the

alternative and for cognate offences having similar ingredients

as to the main allegation of murder. Section 386 of the

Crl. Appeal No.2231/2009 etc.

57 Cr.P.C. refers to

the power of the appellate court and the provision in so far

relevant for our purpose is sub-clause (b) (ii) which empowers

the appellate court to alter the finding while maintaining the

sentence. It is significant that Section 120-B of the IPC is an

offence and positive evidence on this score has to be produced

for a successful prosecution whereas Section 34 does not

constitute an offence and is only a rule of evidence and

inferences on the evidence can be drawn, as held by this Court

in Lachhman Singh & Ors. vs. The State AIR 1952 SC 167.

We are, therefore, of the opinion that the question of deemed

acquittal in such a case where the substantive charge remains

the same and a charge under Section 302/120B and an

alternative charge under section 302/34 of the IPC had been

framed, there was nothing remiss in the High Court in

modifying the conviction to one under Section 302/307/34 of

the IPC. It is also self evident that the accused were aware of

all the circumstances against them. We must, therefore, reject

Mr. Sharan's argument with regard to the deemed acquittal in

the circumstances of the case.

Crl. Appeal No.2231/2009 etc.

58 The learned

counsel for the appellants have also argued on the failure of

the court in putting all relevant questions to them when their

statements under Section 313 of the Cr.P.C. had been

recorded. Mr. Sharan has also given us a list of 15 questions

which ought to have been put to the ACP as they represented

the crux of the prosecution story. It has been submitted that

on account of this neglect on the part of the court the

appellants had suffered deep prejudice in formulating their

defence. Reliance has been placed on Hate Singh Bhagat

Singh, Vikramjit Singh and Ranvir Yadav's cases (supra). It

has however been pointed out by the learned ASG that the 15

questions referred to were largely inferences drawn by the

courts and relatable to the evidence on record, and the

inferences were not required to be put to an accused. He has

further submitted even assuming that there had been some

omission that by itself would not a fortiori result in the

exclusion of evidence from consideration but it had to be

shown further by the defence that prejudice had been suffered

by the accused on that account inasmuch that they could

Crl. Appeal No.2231/2009 etc.

59 claim that they

did not have notice of the allegations against them. In this

connection, the learned ASG has placed reliance on Shivaji

Sahebrao Bobde vs. State of Maharashtra AIR 1973 SC 2622

and Santosh Kumar Singh and Shobit Chamar's cases

(supra).

Undoubtedly, the importance of a statement under

Section 313 of the Cr.P.C. in so far as the accused is

concerned, can hardly be minimized. This statutory provision

is based on the rules of natural justice for an accused must be

made aware of the circumstances being put against him so

that he can give a proper explanation and to meet that case.

In Hate Singh's case (supra) it was observed that:

"the statements of an accused person recorded

under Ss.208,209 and 342 are among the most

important matters to be considered at a trial. It

has to be remembered that in this country an

accused person is not allowed to enter the box

and speak on oath in his own defence. This

may operate for the protection of the accused in

some cases but experience elsewhere has

shown that it can also be a powerful and

impressive weapon of defence in the hands of

an innocent man. The statements of the

accused recorded by the Committing Magistrate

and the Sessions Judge are intended in Indian

Crl. Appeal No.2231/2009 etc.

60 to take the

place of

what in England and in America he would be

free to state in his own way in the witness-box.

They have to be received in evidence and

treated as evidence and be duly considered at

the trial.

This means that they must be

treated like any other piece of evidence coming

from the mouth of a witness and matters in

favour of the accused must be viewed with as

much deference and given as much weigh as

matters which tell against him. Nay more.

Because of the presumption of innocence in his

favour even when he is not in a position to

prove the truth of his story, his version should

be accepted if it is reasonable and accords with

probabilities unless the prosecution can prove

beyond reasonable doubt that it is false. We

feel that this fundamental approach has been

ignored in this case."

It must be highlighted that the judgment in this case was

rendered in the background that in the absence of any

provision in law to enable an accused to give his part of the

story in court, the statement under Section 342 (now 313) was

of the utmost important. The aforesaid observations have now

been somewhat whittled down in the light of the fact that

Section 315 of the Cr.P.C. now makes an accused a competent

witness in his defence. In Vikramjit Singh's case (supra),

Crl. Appeal No.2231/2009 etc.

61 this Court again

dwelt on the importance of the 313 statement but we see from

the judgment that it was primarily based on an overall

appreciation of the evidence and the acquittal was not

confined only to the fact that the statement of the accused had

been defectively recorded. In Ranvir Yadav's case (supra)

this Court has undoubtedly observed that even after the

incorporation of Section 315 in the Cr.P.C., the position

remains the same, (in so far as the statements under Section

313 are concerned) but we find that the judgment was one of

acquittal by the Trial Court and a reversal by the High Court

and this was a factor which had weighed with this Court while

rendering its judgment. In any case the latest position in law

appears to be that prejudice must be shown by an accused

before it can be held that he was entitled to acquittal over a

defective and perfunctory statement under Section 313. In

Shivaji's case (supra), a judgment rendered by three Hon'ble

Judges, it has been observed in paragraph 16 as under :

"It is trite law, nevertheless fundamental, that

the prisoner's attention should be drawn to

every inculpatory material so as to enable him

Crl. Appeal No.2231/2009 etc.

62 to

explain

it. This is the basic fairness of a criminal trial

and failures in this area may gravely imperil

the validity of the trial itself, if consequential

miscarriage of justice has flowed. However,

where such an omission has occurred it does

not ipso facto vitiate the proceedings and

prejudice occasioned by such defect must be

established by the accused. In the event of an

evidentiary material not being put to the

accused, the court must ordinarily eschew

such material from consideration. It is also

open to the appellate court to call upon the

counsel for the accused to show what

explanation the accused has as regards the

circumstances established against him but not

put to him and if the accused is unable to offer

the appellate court any plausible or

reasonable explanation of such circumstances,

the court may assume that no acceptable

answer exists and that even if the accused

had been questioned at the proper time in the

trial court he would not have been able to

furnish any good ground to get out of the

circumstances on which the trial court had

relied for its conviction. In such a case, the

court proceeds on the footing that though a

grave irregularity has occurred as regards

compliance with Section 342, Cr.P.C., the

omission has not been shown to have caused

prejudice to the accused."

The judgment in Santosh Kumar Singh's case (supra) is

to the same effect and is based on a large number of

judgments of this court.

Crl. Appeal No.2231/2009 etc.

63 It is clear

from the record herein that the appellants, all police officers,

had been represented by a battery of extremely competent

counsel and in the course of the evidence, the entire

prosecution story with regard to the circumstances including

those of conspiracy and common intention had been brought

out and the witnesses had been subjected to gruelling and

detailed cross-examinations. It also bears reiteration that the

incident has been admitted, although the defence has sought

to say that it happened in different circumstances. It is also

signally important that all the accused had filed their detailed

written statements in the matter. All these facts become even

more significant in the background that no objection had been

raised with regard to the defective 313 statements in the trial

court. In Shobhit Chamar's case (supra) this Court

observed:

"We have perused all these reported decisions

relied upon by the learned advocates for the

parties and we see no hesitation in concluding

that the challenge to the conviction based on

non-compliance of Section 313 Cr.P.C. first

time in this appeal cannot be entertained

unless the appellants demonstrate that the

Crl. Appeal No.2231/2009 etc.

64

prejudice has been caused to them. In the

present case, as indicated earlier, the

prosecution strongly relied upon the ocular

evidence of the eye witnesses and relevant

questions with reference to this evidence were

put to the appellants. If the evidence of these

witnesses is found acceptable, the conviction

can be sustained unless it is shown by the

appellants that a prejudice has been caused

to them. No such prejudice was demonstrated

before us and, therefore, we are unable to

accept the contention raised on behalf of the

appellants."

These observations proceed on the principle that if an

objection as to the 313 statement is taken at the earliest stage,

the court can make good the defect and record an additional

statement as that would be in the interest of all but if the

matter is allowed to linger on and the objections are taken

belatedly it would be a difficult situation for the prosecution as

well as the accused. In the case before us, as already

indicated, the objection as to the defective 313 statements had

not been raised in the trial court. We must assume therefore

that no prejudice had been felt by the appellants even

assuming that some incriminating circumstances in the

prosecution story had been left out. We also accept that most

Crl. Appeal No.2231/2009 etc.

65 of the 15

questions that have been put before us by Mr. Sharan, are

inferences drawn by the trial court on the evidence. The

challenge on this aspect made by the learned counsel for the

appellants, is also repelled.

Mr. Sharan has also referred us to Section 140 of the

Delhi Police Act, 1978 to contend that as the cognizance in the

present matter had been taken more than three months from

the date of the incident, the prosecution itself was barred.

Elaborating on this aspect, the learned counsel has submitted

that the incident had happened on the 31st March 1997 and

an incomplete charge-sheet had been filed within three

months i.e. on the 13th June 1997 but cognizance in the

matter had admittedly been taken beyond three months i.e. on

the 10th July 1997. The learned counsel has, in support of this

plea, relied on the judgment in Jamuna Singh and Prof.

Sumer Chand's case (supra) to argue that the provisions of

Section 140 of the Delhi Police Act had to be strictly applied,

more particularly where the act complained of had been done

Crl. Appeal No.2231/2009 etc.

66 in the discharge of

official duty. The learned ASG has, however, submitted that

the provisions of Section 140 of Delhi Police Act would be

applicable only to offences referred to in the Act itself and

found largely in Section 80 onwards and not to cases where

the offence was linked to any other penal provision and that in

any case the police official involved had to show that the

action taken by him had been taken under colour of duty. The

learned counsel has in this connection relied on N.

Venugopal, Narhar Rao, Atma Ram, Bhanuprasad

Hariprasad Dave and on Professor Sumer Chand's cases

(supra).

Before we examine the merits of this submission, we

need to see what the High Court has held on this aspect. The

High court has observed that an incomplete charge- sheet had

been filed within time inasmuch that the statements of the

witnesses recorded under Section 161 of the Cr.P.C. had not

been appended therewith and we quote :

"and the prosecuting agency had, therefore,

taken adequate care in filing the charge-sheet well

within time and could not, thus, have anticipated

Crl. Appeal No.2231/2009 etc.

67 that the

Court of the

learned Chief Metropolitan Magistrate would have

its own problems in taking immediate cognizance

of the offences on the charge-sheet within three

months from the date of commission of the crimes,

it could not have applied for a sanction for

prosecution under Section 140 of the Act as it was

not at all required in that situation. If the Court of

learned Chief Metropolitan Magistrate had

difficulty in taking cognizance of the offences for

absence of the copies of statements under Section

161 Cr.P.C., it could have very well posted the

case for a shorter date before expiry of three

months and could have required the CBI to make

available the copies of required material for taking

cognizance of the offences. We are unable to find

from the proceedings recorded by the learned

Chief Metropolitan Magistrate the reason as to

why instead of requiring the CBI to produce the

copies of required material within a day or two,

such a longer date was fixed for according

consideration for taking cognizance of the

offences. Whatever be the reason for delay in

taking cognizance of the offences in the facts and

circumstances of the case, we are unable to accept

the plea that any sanction under Section 140 of

the Delhi Police Act was required to sustain the

prosecution against the appellants, particularly

when the charge-sheet had been filed in the Court

well before the expiry of three months' period."

We are, however, not called upon to go into the

correctness or otherwise of the observations of the High Court,

as we intend giving our own opinion on this score.

Sub-Section (1) of Section 140 is reproduced below:

Crl. Appeal No.2231/2009 etc.

68 "Bar to

suits and

prosecutions.- (1) In any case of alleged offence

by a police officer or other person, or of a wrong

alleged to have been done by such police officer

or other person, by any act done under colour of

duty or authority or in excess of any such duty or

authority, or wherein it shall appear to the court

that the offence or wrong if committed or done

was of the character aforesaid, the prosecution or

suit shall not be entertained and if entertained

shall be dismissed if it is instituted, more than

three months after the date of the act complained

of.

Provided that any such prosecution against a

police officer or other person may be entertained

by the court, if instituted with the previous

sanction of the Administrator, within one year

from the date of the offence.

(2)..............................

(3).............................. "

This Section postulates that in order to take the shelter

of the period of three months referred to therein the act done,

or the wrong alleged to have been done by the police officer

should be done under the colour of duty or authority or in

excess of such duty or authority or was of the character

aforesaid, and in no other case. It must, therefore, be seen as

to whether the act of the appellants could be said to be under

Crl. Appeal No.2231/2009 etc.

69 the colour of duty

and therefore, covered by Section 140 ibidem.

At the very outset, it must be made clear from the

judgment of this Court in Jamuna Singh's case (supra) that

the date of cognizance taken by a Magistrate would be the date

for the institution of the criminal proceedings in a matter. The

facts given above show that the cognizance had been taken by

the Magistrate beyond three months from the date of incident.

The larger question, however, still arises as to whether the

shelter of Section 140 of the Delhi Police Act could be claimed,

in the facts of this case. We must, at the outset, reject the

learned ASG's argument that Section 140 would be available

to police officials only with respect to offences under the Delhi

Police Act and not to other penal provisions, in the light of the

judgment in Professor Sumer Chand's case (supra) which

has been rendered after comparing the provisions of the Police

Act, 1861 and Section 140 of the Delhi Police Act, 1978 and it

has been held that the benefit of the latter provision would be

available qua all penal statutes.

Crl. Appeal No.2231/2009 etc.

70 The

expression `colour of duty' must now be examined in the facts

of this case. In Venugopal's case (supra), this Court held as

under:

"It is easy to see that if the act complained of

is wholly justified by law, it would not amount to

an offence at all in view of the provisions of S.79 of

the Indian Penal Code. Many cases may however

arise wherein acting under the provisions of the

Police Act or other law conferring powers on the

police the police officer or some other person may go

beyond what is strictly justified in law. Though

Sec.79 of the Indian Penal Code will have no

application to such cases, Sec.53 of the Police Act

will apply. But Sec.53 applies to only a limited

class of persons. So, it becomes the task of the

Court, whenever any question whether this section

applies or not arises to bestow particular care on its

decision. In doing this it has to ascertain first what

act is complained of and then to examine if there is

any provision of the Police Act or other law

conferring powers on the police under which it may

be said to have been done or intended to be done.

The Court has to remember in this connection

that an act is not "under" a provision of law

merely because the point of time at which it is

done coincides with the point of time when

some act is done in the exercise of the powers

granted by the provision or in performance of

the duty imposed by it. To be able to say that

an act is done "under" a provision of law, one

must discover the existence of a reasonable

relationship between the provisions and the

act. In the absence of such a relation the act

Crl. Appeal No.2231/2009 etc.

71

cannot be said to be done "under" the

particular provision of law."

This judgment was followed in Narhar Rao's case

(supra) .

This Court, while dealing with the question as to

whether the acceptance of a bribe by a police official with the

object of weakening the prosecution case could be said under

to be under `colour of duty' or in excess of his duty, observed

as under:

"But unless there is a reasonable connection

between the act complained of and the powers

and duties of the office, it cannot be said that the

act was done by the accused officer under the

colour of his office. Applying this test to the

present case, we are of the opinion that the

alleged acceptance of bribe by the respondent was

not an act which could be said to have been done

under the colour of his office or done in excess of

his duty or authority within the meaning of

S.161(1) of the Bombay Police Act. It follows,

therefore, that the High Court was in error in

holding that the prosecution of the respondent

was barred because of the period of limitation

prescribed under Sec.161(1) of the Bombay Police

Act. The view that we have expressed is borne out

by the decision of this Court in State of Andhra

Pradesh vs. N.Venugopal, AIR 1964 SC 33, in

which the Court had construed the language of a

similar provision of S.53 of the Madras District

Police Act (Act 24 of 1859). It was pointed out in

that case that the effect of S.53 of that Act was

Crl. Appeal No.2231/2009 etc.

72 that

all

prosecutions whether against a police officer or a

person other than a police officer (i.e. a member of

the Madras Fire Service, above the rank of a

fireman acting under S.42 of the Act) must be

commenced within three months after the act

complained of, if the act is one which has been

done or intended to be done under any of the

provisions of the Police Act. In that case, the

accused police officers were charged under Ss.348

and 331 of the Indian Penal Code for wrongly

confining a suspect Arige Ramanua in the course

of investigation ad causing him injuries. The

accused were convicted by the Sessions Judge

under Ss.348 and 331 of the Indian Penal Code

but in appeal the Andhra Pradesh High Court held

that the bar under S.53 of the Police Act applied

and the accused were entitled to an acquittal. It

was, however, held by this Court that the

prosecution was not barred under S.53 of the

Police Act, for it cannot be said that the acts of

beating a person suspected of a crime or confining

him or sending him away in an injured condition

by the police at a time when they were engaged in

investigation are acts done or intended to be done

under the provisions of the Madras District Police

Act or Criminal Procedure Code or any other law

conferring powers on the police. The appeal was

accordingly allowed by this Court and the

acquittal of the respondent set aside."

Both these judgments were followed in Atma Ram's case

(supra) where the question was as to whether the action of a

Police Officer in beating and confining a person suspected of

Crl. Appeal No.2231/2009 etc.

73 having stolen

goods in his possession could be said to be under colour of

duty. It was held as under :

"The provisions of Ss.161 and 163 of the

Criminal Procedure Code emphasize the fact that a

police officer is prohibited from beating or confining

persons with a view to induce them to make

statements. In view of the statutory prohibition it

cannot, possibly, be said that the acts, complained

of, in this case, are acts done by the respondents

under the colour of their duty or authority. In our

opinion, there is no connection, in this case between

the acts complained of and the office of the

respondents and the duties and obligations imposed

on them by law. On the other hand, the alleged acts

fall completely outside the scope of the duties of the

respondents and they are not entitled, therefore, to

the mantle of protection conferred by S. 161 (1) of the

Bombay Police Act."

Similar views have been expressed in Bhanuprasad

Hariprasad Dave's case (supra) wherein the allegations

against the police officer was of taking advantage of his

position and attempting to coerce a person to give him a bribe.

The plea of colour of duty was negatived by this Court and it

was observed as under:

"All that can be said in the present case is that the

first appellant a police officer, taking advantage of

his position as a police officer and availing himself

Crl. Appeal No.2231/2009 etc.

74 of the

opportunity

afforded by the letter Madhukanta handed over to

him, coerced Ramanlal to pay illegal gratification

to him. This cannot be said to have been done

under colour of duty. The charge against the

second appellant is that he aided the first

appellant in his illegal activity."

These judgments have been considered by this Court in

Professor Sumer Chand's case (supra) which has been relied

upon by both sides. In this case, Professor Sumer Chand and

several others were brought to trial initiated on a first

information report but were acquitted by the trial court.

Professor Sumer Chand thereupon filed a suit against the

Investigating officer and other police officials for malicious

prosecution claiming Rs.3 Lacs as damages. This Court held

that the prosecution had been initiated on the basis of a First

Information Report and it was the duty of a Police Officer to

investigate the matter and to file a charge-sheet, if necessary,

and that there was a discernible connection between the act

complained of by the appellant and the powers and duties of

the Police Officer. This Court endorsed the opinion of the High

Court that the act of the Police Officer complained of fell

Crl. Appeal No.2231/2009 etc.

75 within the

description of `colour of duty'.

In the light of the facts that have been found by us above,

it cannot, by any stretch of imagination, be claimed by

anybody that a case of murder would fall within the

expression `colour of duty'. We find absolutely no connection

between the act of the appellants and the allegations against

them. Section 140 of the Delhi Police Act would, therefore,

have absolutely no relevance in this case and Mr. Sharan's

argument based thereon must, therefore, be repelled.

The learned Counsel has also raised an argument that

the sanction under Section 197 of the Cr.P.C. had been

mechanically given and did not indicate any application of

mind on the part of the Lt. Governor. It has accordingly been

prayed that the entire prosecution was vitiated on this score.

Reliance has been placed by Mr. Sharan for this argument on

Ameerjan's case (supra). This argument has been

controverted by the learned ASG who has pointed out that a

bare reading of the sanction order as well as the evidence of

PW-48 C.B. Verma, the concerned Deputy Secretary in the

Crl. Appeal No.2231/2009 etc.

76 Delhi Government

who had forwarded the file to the Lt. Governor, revealed that

all material relevant for according the sanction had been given

to the Lt. Governor. The learned ASG has placed reliance on

S.B.Saha's case (supra) as well as on Ameerjan's case above-

referred.

We have considered this argument very carefully in the

light of the evidence on record. We first go to the evidence of

PW-48 C.B. Verma. He deposed that a request had been

received from the CBI for according sanction for the

prosecution of the appellants along with the investigation

report and a draft of the sanction order. He further stated

that on receipt of the aforesaid documents the matter had

been referred first to the Law Department of the Delhi

Administration and then forwarded to the Home Department

and then to the Chief Secretary and finally, the entire file had

been put up before the Lt. Governor who had granted the

sanction for the prosecution of the ten officials. It is true that

certain other material which was not yet available with the CBI

at that stage could not obviously have been forwarded to the

Crl. Appeal No.2231/2009 etc.

77 Lt. Governor, but

we see from the various documents on record that even on the

documents, as laid, adequate material for the sanction was

available to the Lt. Governor. We have perused the sanction

order dated 10th of October 2001 and we find it to be extremely

comprehensive as all the facts and circumstances of the case

had been spelt out in the 16 pages that the sanction order

runs into. In Ameerjan's case (supra) which was a

prosecution under the Prevention of Corruption Act (and

sanction under Section 19 thereof was called for), this Court

observed that though the sanction order could not be

construed in a pedantic manner but the purpose for which

such an order was required had to be borne in mind and

ordinarily the sanctioning authority was the best person to

judge as to whether the public servant should receive the

protection of Section 19 or not and for that purpose the entire

record containing the materials collected against an accused

should be placed before the sanctioning authority and in the

event that the order of sanction did not indicate a proper

application of mind as to the materials placed before the

Crl. Appeal No.2231/2009 etc.

78 sanctioning

authority, the same could be produced even before the Court.

Admittedly, in the present case only the investigation report

and the draft sanction order had been put before the Lt.

Governor but we find from a reading of the former that it refers

to the entire evidence collected in the matter, leaving the Lt.

Governor with no option but to grant sanction. In S.B. Saha's

case (supra), this Court was dealing primarily with the

question as to whether sanction under Section 197 of the

Cr.P.C. was required where a Customs Officer had

misappropriated the goods that he had seized and put them to

his own use. While dealing with this submission, it was also

observed as under:

"Thus, the material brought on the record

up to the stage when the question of want of

sanction was raised by the appellants,

contained a clear allegation against the

appellants about the commission of an offence

under Section 409, Indian Penal Code. To

elaborate, it was substantially alleged that the

appellants had seized the goods and were

holding them in trust in the discharge of their

official duty, for being dealt with or disposed of

in accordance with law, but in dishonest breach

of that trust, they criminally misappropriated or

converted those goods. Whether this allegation

Crl. Appeal No.2231/2009 etc.

79 or

charge is true or false, is not to be gone into at

this stage. In considering the question whether

sanction for prosecution was or was not

necessary, these criminal acts attributed to the

accused are to be taken as alleged."

As already indicated above, the Lt. Governor had enough

relevant material before him when he had accorded sanction

on the 10th October 2001.

We now come to the other appeals in which some

additional arguments have been raised. In Criminal Appeal

No. 2476/2009 of Head Constable Mahavir Singh, Mr. Lalit

has argued that 15 persons in all had constituted the police

party and 10 persons had been sent up for trial including ACP

Rathi and Inspector Anil Kumar and five others, three of them

armed who had not fired any shot, and two other who had not

been armed, had not been prosecuted and as Head Constable

Mahavir Singh had also not fired at the car, his case fell

amongst the five and he was, therefore, entitled to be treated

in a like manner. In addition, it has been submitted that Head

Constable Mahavir Singh did not share the common intention

with the other nine accused. Mr. Lalit has also referred us to

Crl. Appeal No.2231/2009 etc.

80 question No.53

put to the Head Constable by which the circumstances

pertaining to the actual incident had been put to him and he

had answered as under:

"I was behind the entire team. Then the

team was left with no option but to return fire in

self defence and to save members of the public as

a large crowd had started gathering suddenly on

hearing the faring from inside the car. Some

members of our team returned fire. As I was

behind and a little away from the car, I held back

my fire. But on seeing a crowd gathering and to

prevent the members of general public from

coming close to the car, I fired one shot in the air.

In the meanwhile I heard Constable Subhash

Chand scream that he had been hurt. Then the

firing was ordered to be stopped. Within

moments a PCR Gypsy also arrived. Then the

efforts were made to take the injured out and

send them to hospital. In the meanwhile press

photographers, police of the PS C.P. and Sr.

officers also arrived."

He has found support for his arguments from the

Panchnama Ex. B-67/2 prepared by P.Kailasham, Executive

Engineer, CBI on the 11th April, 1997 on the observations of

three Shri Ohri, DSP and Sri Sree Deep. It has accordingly

been argued by Mr. Lalit that the defence taken by Head

Constable Mahavir Singh that he had fired to keep the crowd

Crl. Appeal No.2231/2009 etc.

81 away was clear

from the record and as the incident had happened in a very

busy locality i.e. the outer circle of Connaught Place, a crowd

had undoubtedly collected. He has further pointed out that

the story that a bullet fired by Head Constable Mahavir Singh

from his 7.62 mm AK-47 rifle at Jagjit Singh had been

disbelieved by the High Court and the falsity of the

prosecution story was, thus, clearly spelt out.

We have considered the arguments advanced by the

learned counsel. Admittedly, as per his own showing, Head

Constable Mahavir Singh had used his service weapon and

fired one shot therefrom. The prosecution story is that he had

fired at the car whereas the defence is that he had fired the

shot in the air to keep the crowd away. This argument is

based on a clear misconception and does not take into

account the normal tendency of a person at a crime scene,

(more particularly where indiscriminate gun fire had been

resorted to) would be to run far and away. It appears that the

crowd had collected only after the shooting had ceased. There

is no evidence whatsoever to show that any crowd had

Crl. Appeal No.2231/2009 etc.

82 collected while the

firing was going on or that a single shot had been fired after

the volley of 34 shots. We have also perused the large number

of photographs of the site and see that the crowd that had

gathered after the shooting, was perfectly disciplined and

keeping a reasonable distance away from the Esteem car and

the dead bodies lying around it. Admittedly also, there is

absolutely no evidence with regard to the defence taken by

Constable Mahavir Singh. An effort could have been made by

the defence to elicit some information about the behaviour of

the crowd from the policemen and the Statesman employees

who had appeared as prosecution witnesses. Not a single

question was, however, put to them on this aspect. We are

therefore of the opinion that the story projected by him in his

313 statement is not supported by any evidence whatsoever.

His case, therefore, cannot be distinguished from the other

seven accused who had admittedly fired at the car.

We have already dealt with Mr. Balasubramaniam's

arguments in the case of Inspector Anil Kumar who has filed

Criminal Appeal No.2484/2009 while dealing with the

Crl. Appeal No.2231/2009 etc.

83 question of

common intention and the self-defence claimed by the

appellant. No further discussion is, therefore, required in this

appeal.

We finally take up Criminal Appeal Nos. 2477-2483 of

2009 in which the arguments have been made by Mr. Vineet

Dhanda, Advocate. It is significant that these seven police

officers had admitted firing into the vehicle but it is their case

in their statements under Section 313 of the Cr.P.C. as also

their written statements that they had done so only on the

direction of ACP Rathi, a superior officer. They have

accordingly sought the benefit of Section 79 of the IPC which

provided:

"Act done by a person justified, or by

mistake of fact believing himself justified, by

law.---Nothing is an offence which is done by any

person who is justified by law, or who by reason

of a mistake of fact and not by reason of a

mistake of law in good faith, believes himself to

be justified by law, in doing it."

In the written submissions filed by Mr. Vineet Dhanda

long after the judgment had been reserved and beyond the

Crl. Appeal No.2231/2009 etc.

84 time fixed by us

for the filing of the written submissions (which have

nevertheless been taken on record) the stand taken is

completely different and in accordance with that of Mr. Sharan

and Mr. Lalit with regard to the defence claimed by the

appellants. Mr. Dhanda has also filed a large number of

judgments on this aspect. These judgments had not been

cited by the learned counsel at the time of hearing. We have

however gone through the judgments and find nothing

different therein from the judgments cited by the other learned

counsel. We, therefore, deem it unnecessary to advert to them

at this stage.

We have nevertheless examined the submissions with

regard to Sections 76 to 79 of the IPC. We see absolutely no

evidence that the firing had been resorted to by the seven

appellants on the order of ACP Rathi as we have found that it

was pursuant to the common intention of all the accused that

the incident had happened. It is also relevant that the

statements made by these seven appellants are not admissible

Crl. Appeal No.2231/2009 etc.

85 in evidence

against ACP Rathi, being a co-accused, in the light of the

judgment of this Court reported in Vijendrajit Ayodhya

Prasad Goel vs. State of Bombay AIR 1953 SC 247 and

S.P.Bhatnagar & Anr. vs. The State of Maharashtra AIR

1979 SC 826. This Court in the former case has observed that

a statement under Section 342 of the Cr.P.C. (now Section

313) cannot be regarded as evidence. The observations in the

latter case are equally pertinent wherein it has been held that

a defence taken by one accused cannot, in law, be treated as

evidence against his co-accused. As already observed, Section

315 of the Cr.P.C. now makes an accused a competent witness

in his defence. Had the appellants in this set of appeals

chosen to come into the witness box to support their plea

based on the orders of ACP Rathi, a superior officer, and

claimed the benefit of Section 79 of the IPC, something could

be said in their behalf but in the face of no evidence the story

projected by them cannot be believed.

Crl. Appeal No.2231/2009 etc.

86 On an

overall view of the evidence in the case and in the light of the

arguments raised by the learned counsel for the parties, we

find no fault with the judgments of the trial court as well as

the High Court. We, accordingly, dismiss all these appeals.

...............................J.

(HARJIT SINGH BEDI)

.........................................J.

(CHANDRAMAULI KR. PRASAD)

DATED: 2ND MAY, 2011

NEW DELHI.