Supreme Court of India
SATYAVIR SINGH RATHIversusSTATE THR. C.B.I
- Citation
- 2011 INSC 347
- Decided
- 2 May 2011
- Disposal
- Dismissed
- Bench
- H S BEDI
Holding
The High Court’s conviction of the police officials under IPC s.302/307 with the aid of s.34 is affirmed, and the appeals are dismissed.
Summary
In 1997 a police party, led by ACP Satyavir Singh Rathi, mistakenly identified two civilians as a notorious criminal and opened fire on their car, killing both occupants and grievously injuring a third. The father of one victim filed a complaint, leading to a CBI investigation and the conviction of ten police officials for murder, attempted murder and related offences. The High Court altered the conviction from IPC s.302/120‑B to s.302/307 with the aid of s.34 (common intention) and upheld convictions under s.193, s.201 and s.203. The Supreme Court examined whether the prosecution proved a common intention, whether the exception to s.300 for public servants applied, the relevance of s.79 IPC, the applicability of s.140 Delhi Police Act and the adequacy of the sanction under s.197 CrPC, and whether the trial court erred in its handling of s.313 statements. It held that the High Court correctly applied s.34, rejected the defence of self‑defence and the exception to s.300, found no fault with the sanction or the investigation, and dismissed all appeals.
Issues considered
- The applicability of IPC s.34 (common intention) to the police firing.
- Whether the exception to s.300 IPC for public servants applies to the accused.
- The relevance of IPC s.79 defence and whether the accused acted on superior orders.
- The effect of Section 140 of the Delhi Police Act and whether the prosecution is barred by limitation.
- The adequacy of the sanction under Section 197 CrPC and whether it was granted with sufficient material.
- The requirement to put all relevant questions to the accused under Section 313 CrPC and alleged prejudice.
- The doctrine of deemed acquittal when an alternative charge is not expressly decided.
Legislation cited
- Arms Acts. 25
- Code of Criminal Procedure, 1973s. 197, s. 313, s. 315, s. 386(b)(ii)
- Delhi Police Act, 1978s. 140
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 105, s. 120-B, s. 193, s. 201, s. 203, s. 302, s. 307, s. 34, s. 79
Subjects
police shootoutmistaken identitycommon intentionIPC s.34IPC s.302IPC s.307public servant exceptionSection 79 IPCSection 140 Delhi Police ActSection 197 CrPCSection 313 CrPCdeemed acquittalCBI investigationsanction order
Judgment
[2011] 6 S.C.R. 138
A SATYAVIR SINGH RATHI
v.
STATE THR. C.B.I.
(Criminal Appeal No. 2231 of 2009)
MAY 2, 2011
B
[HARJIT SINGH BEDI AND CHANDRAMAULI KR.
PRASAD, JJ.]
Penal Code, 1860:
c
ss. 302134, 307134, 193, 201134 and 203134 - Police
shoot out - Two innocent citizens killed in mistaken identity
of a hardcore criminal and third one grievously injured - FIR
by father of one of the deceased, against police personnel -
0 Investigation by CBI - Conviction by trial court u/ss 3021120-
B and 3071120-B of ten police officials - Two of them further
convicted u/ss 193, 201134 and 203134 -High Court
convicting the accused ulss 302 and 307 with the aid of s.34
and maintaining the sentence of imprisonment for life -
Conviction of two accused u/ss 193, 201134 and 203134 also
E maintained - HELO: It has been established that the police
party surrounded the car of the victims and fired
indiscriminately at the car due to which two occupants died
and the third one grievously injured - The defence that the
one of the occupants of the car, when asked to come out, fired
F at the police party which thereafter opened fire in self-defence
has not been supported by the evidence on record - Though
the prosecution is bound to prove its case beyond reasonable
doubt, obligation on an accused uls 105 of Evidence Act is
to prove it by preponderance of probabilities - The trial court
G and the High Court have accordingly opined on the basis of
the overall assessment that the defence version was a
concoction and that the prosecution story that it was the
unprovoked firing by the appellants which had led to the death
of the two persons and grievous gun shot injuries to the other
H 138
SATYAVIR SINGH RATH! v. STATE THR. C.B.I. 139
had been ptoved on record - Therefore, High Court rightly A
convicted the accused u/ss 302134, 307134- Evidence Act,
1872 - s.105 - Code of Criminal Procedure, 1973 - ss. 313
and 386(b)(ii).
s.300 - Exception 3 - Death caused by public servants
8
- Police shoot out - Two innocent citizen killed in mistaken
identity of a hardcore criminal - HELD: The Exception pre-
supposes that a public servant who causes death must do so
in good faith and in due discharge of his duty - The accused
police officials fired without provocation killing two innocent C
persons and injuring grievously the third one - Trial court and
High Court rightly rejected the defence.
s. 34 - Common intention - Police shoot out - A
notorious criminal being tracked by police party - A person
resembling the criminal, spotted and he along with his two D
friends in the car followed by police personnel - More police
force requisitioned - At the place of incident both the police
parties joined together in indiscriminate firing resulting in
death of two occupants of the car and grievous injuries to the
third one - HELD: The courts below have observed that E
keeping in mind the background in which the incident happed
it was pursuant to the common intention to kill the notorious
criminal - The High Court was, therefore, justified in holding
that in the light of the facts, it was not necessary to assign a
specific role to each individual accused as the firing at the F
car was undoubtedly with a clear intention to annihilate those
in it and was resorted to in furtherance of the common
intention of all the accused.
ss. 79 and 34 - Police shoot out - Ten police officials
prosecuted for two murders - Plea of some of the accused G
that they acted on the directions of superior officer - HELD:
There is absolutely no evidence that the firing had been
resorted to by seven accused on the direction of the senior
officer, but it was pursuant to the common intention of all the
H
140 SUPREME COURT REPORTS (2011) 6 S.C.R.
A accused that the incident had happened- s.315 CrPC makes
an accused a competent witness in his defence - The
accused did not choose to come into the witness box to
support their plea - Code of Criminal Procedure, 1973 -
s.315.
B
Code of Criminal Procedure, 1973:
s.386(b)(ii) read with s.220- Power of appellate court to
alter the finding of trial court while maintaining the sentence
- Charge framed by trial court u/ss 3021120-B and 3071120-
C B and alternative charge u/ss 302134 and 307134 - Conviction
by trial court uls 3021120-B, 3071120-B, 1931120-B, altered by
High Court to s.302134, 307134, 193134, while maintaining the
sentence - HELD: Justified -Charges had been framed in the
alternative and for cognate offences having similar ingredients
D as to the main allegation of murder - In the instant case, the
relevant provision is s.38(b)(ii), which empowers the High Court
to alter the finding while maintaining the sentence - Besides,
accused were aware of all the circumstances against them -
Penal Code, 1860 - ss.302134, 307134, 193134.
E
s.313 - Examination of accused - HELD: Prejudice must
be shown by an accused before it can be said that he was
entitled to acquittal over a defective and perfunctory statement
uls 313 - In the instant case, all the accused police officials
filed their written statements but no objection had been raised
F as to defective 313 statements in the trial court - Penal Code,
1860 - ss.302134, 307134, 193134.
s.197 - Sanction for prosecution of police personnel
involved in shoot out - HELD: It has come in evidence that
G request of CBI for according sanction for prosecution of
accused, alongwith the documents, was referred to Law
Department, then to Home Department, to Chief Secretary
and finally to Lt. Governor, who granted the sanction -
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 141
.-
4dequate material for sanction had been made available to A
the sanctioning authority.
Delhi Police Act, 1978:
s. 140 - Prosecution of police officials for causing death
of two persons in a police shoot out - Umitation for - HELD: 8
The date of cognizance taken by the Magistrate would be ·the
date for the institution of the criminal proceedings - However,
a case of murder would not fall within the expression 'colour
of duty' - s. 140 would, therefore, have no relevance to the
case. c
One 'MY', a hardcore criminal, wanted by the Delhi
Police and the police of other States in several serious
criminal cases, was being tracked by the Inter-State Cell
of the Crime Branch of the Delhi Police. A-1, the Assistant o
Commissioner of Police and In-charge of the Inter-State
Cell of the Crime Branch, received information that 'MY'
would be visiting the place near Mother Dairy, Patparganj,
Delhi at about 1.30 p.m. on 31.3.1997. A-2, the Inspector
of the Crime Branch was detailed by A-1 to keep a watch E
near the said Mother Dairy booth. Two youngmen,
namely, 'JS' (deceased-1) and PW-26 had come from
Haryana to the area at about the same time to meet their
friend 'PG' (deeased-2) who had his office near Mother
Dairy. But as 'PG' was not in the office, and would be
reaching there within a short time, PW-26 and 'JS' went F
to Mother Dairy and after buying Ice-cream were waiting
for 'PG'. A-2 who had a photo of 'MY' with him spotted
'JS' and PW-26 at 1.30 p.m. near Mother Dairy and as 'JS'
resembled 'MY', he was mistaken by A-2 as 'MY' and he
called for reinforcement from A-1, the ACP, who In turn G
along with a police party of 12 police personnel armed
with service weapons left to assist the police team led by
A-2. Meanwhile on PG's arrival the three friends, namely
PW 26, 'JS' and 'PG' left for connaught place in blue
H
142 SUPREME COURT REPORTS [20t1] 6 S.C.R.
A Marutl Esteem Car bearing No. UP-14-F-1580 belonging
to 'PG'. The police party led by A-2 followed them. Since
'PG' had some work in Dena Bank he went inside the
Bank. When he came out, he sat on the front seat and PW
26 sat on the rear seat. 'JS' drove the car towards
B Barakhamba Road and when they stopped at the red
light, both the police parties led by A-2, the Inspector, and
A-1, the ACP, surrounded the car and fired from almost
all the sides killing 'PG' and 'JS' instantaneously and
causing grievous injuries to 'PW 26'. On receiving
c information of the shoot out, PW-42, the SHO, Connaught
Place and other police officials reached the place of
incident. He recovered a 7.65 mm pistol loaded with 7 live
cartridges, a misfired cartridge in the breach and two
spent cartridge cases of 7.65 mm bore inside the car. A-
D 2 handed him over a written complaint stating that after
the car had stopped at the red light, he knocked at the
driver's window asking the occupants to come out, but
'JS' fired at the police party from inside the car resulting
in gun shot injuries to two Constables A-9 and A-8 and
that it was thereafter that the police personnels opened
E fire at the car with a view to immobilizing the occupants
and to prevent their escape. Consequently, FIR No. 448/
97 for offences punishable u/ss 186/353/307 IPC and 25
of the Arms Act was registered against the occupants of
the car.•
F
The following day, the father of deceased 'PG' made
a complaint to the Lt. Governor on which another FIR No.
453/97 was registered against the police personnel
involved in the shoot out for an offence punishable u/s
G 302/34 IPC. Later, the investigation was entrusted to CBI.
The trial court framed charges against 10 police officials
and found all of them guilty of the offences punishable
inter alia, u/ss 120-8, 3021120-B, 307/120-B IPC and
sentenced them to life imprisonment. A-1 and A-2 were
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 143
further convicted u/ss ~93, 201/34 and 203/34. IPC. On A
appeal, the High Court held that conviction of appellants
u/s 302/120-B IPC could not be sustained and insted
convicted all of them, u/ss 302 and 307 with the aid of s.34
IPC and sentenced each of them to imprisonment for life.
Conviction of A-1 and A-2 u/ss 193, 201/34 and 203/34 IPC B
was also maintained. Aggrieved, the accused police
officials filed the appeals.
Dismissing the appeals, the Court
HELO: 1. Several facts appear to be admitted on C
· record but are compounded by a tragedy of errors. These
relate to the place and time of incident, the presence of
the appellants duly armed with most of them having fired
into the car with their service weapons, that 'MY' was
admittedly a notorious criminal and that 'JS' (deceased) D
had been mistaken by A-2 for 'MY', and that deceased 'PG'
owned a blue Esteem Car with an Uttar Pradesh number
plate, and had his office in Patparganj near the Mother
Dairy Booth. Further, A-2 and his two associates had
followed the car driven by 'PG' to the Dena Bank Branch E
at Connaught Place and it was after 'PG' and the others
had left the Dena Bank premises and were near the
Barakhamba Road crossing that the two police parties,
one headed by A-2, and the other by A-1, had joined
forces and surrounded the car as it stopped at ared light, F
and had fired into it killing two persons and injuring one.
[para 11) [176·F·H: 177-A·B]
2.1. The case of the defence that after the car had
been surrounded, A-2 had knocked at the driver's
window asking the occupants to come out but instead G
of doing so 'JS' had fired two shots at the police which
had led to a fusillade in self defence, cannot be accepted
in view of the evidence on record. [para 11] [177-B-C]
H
144 SUPREME COURT REPORTS [2011] 6 $.C.R.
A 2.2. It is true that it Is not always necessary for the
accused to plead self· defence and If the prosecution
story itself spells it out, it would be open to the court to
examine this matter as well. (para 11) (177-C·F]
B Mohan Singh & Anr. vs. State of Punjab 1962 Suppl.
=
SCR 848 AIR 1963 SC 174; Javed Masood & Anr. vs.
State of Rajasthan 2010 (3) SCR 236 = 2010 (3) SCC 538,
relied on.
2.3. It must also be observed that though the
C prosecution is bound to prove its case beyond
reasonable doubt, the obligation on an accused u/s. 105
of the Evidence Act, 1872 is to prove it by a
preponderance of probabilities. [para 11) [177-G·HJ
o 2.4. PW 13 and another witness 'AS' did state that a
single shot had been followed by multiple shots
thereafter. 'AS', however, apparently did not receive a
bullet injury as the simple abrasion on him had been
apparently caused by a flying splinter from the tarmac but
E there is extremely independent evidence on this score as
well. However, PW-1, the Chief Photographer of the
Statesman Newspaper, which has its office adjacent to
the red light on Barakhamba Road, deposed that on the
31-03-1997 at about 2 • 2.30 p.m. while he was sitting in
F his room along with his colleagues, PWs 2 and 67 and
another person, they had heard the sound of firing from
the Barakhamba Road side and that he along with the
other PWs had come out to the crossing along with their
camera equipment and saw a blue Esteem Car standing
there with two bodies lying alongside and one injured
G person sitting on the road with a large number of police
men, including some in mufti, present. He stated that on
his directions PWs 2 and 67 took a large number of
photographs of the site and 14 of them were also
produced as Exs. P-1 to P-14. He further stated that a
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 145
reporter of the Statesman had also been present. PW-2 A
and PW-67 supported the story given by PW-1. He also
proved the photograph marked Ext. 'X' which shows that
the driver's window was intact. It has come in the
evidence of PW-26 that the car A.C. was on when the
firing took place and the windows had been drawn up. B
[para 12] [178-A-H]
2.5. Likewise, it is also to be seen that had the shots
been fired through the driver's window or the windshield
some powder residues would have been left around the C
bullet holes as the shots would have been fired from
almost a touching distance. PW-37 from the Central
Forensic Science Laboratory, who had examined the car
very minutely, detected no such residue and also testified
that the appreciable powder distance of a 7.65 mm pistol
could be one to two feet but would depend on the sitting D
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 E
exiting thereafter, although the possibility of an exit hole
being caused by a bullet fired from inside the car could
also not be ruled out. He further pointed out that as the
bullet fired at Constable A-8 remained embedded in his
body a11ct had not been taken out for medical reasons, it F
ws& not possible to give an opinion whether it was a
bullet of 7.65 mm calibre. [para 12] [178-H; 179-A-D]
2.6. The defence story that Constables A-9 and A-8
had suffered injuries on account of the firing of two shots G
from inside the car, is further belied by the medical
evidence. PW-16, the doctor, who carried out the medico
tegal examination of C•>nstable A-8 (Ext.PW16/B), found
three bullet injuries on his person, which indicated
blackening. Thc~e injuries could not have been caused H
146 SUPREME COURT REPORTS [2011] 6 S.C.R.
A by firing from inside the car as the blackel'.'ling from a
pistol would be, at the most, from a foot or two. Likewise,
PW-17 the doctor, who had examined Constable A-8, also
found three separate gun shot injuries on his person. He
also produced in evidence his treatment record (Exbt.
B 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
c different wounds of entry on each of them. On the
contrary, it appears that the injuries suffered by them
were caused by the firing amongst the policemen as they
had surrounded and fired into the car indiscriminately and
without caution ignoring that they could be a danger to
themselves on cross-fire on uncontrolled firing. It has, in
0
fact, been pointed out that A-1 had written to his
superiors pointing to the ineptitude of his team of officers
but he had been told that no other staff was available.
[para 12] [179-0-H; 180-A-B]
E 2.7. In this background, the evidence of PWs 1, 2 to
7 and the two Constables PWs 50 and 51, becomes
extremely relevant. The ASI, PW-13, who was the Officer
In-Charge of the PCR Gypsy parked near the Fire Station
Building adjoining Barakhamba Road, had undoubtedly
F supported the defence version that a single shot had
been followed by a volley. PWs 50 and 51, the two
Constables, who were present along with ASI PW-13,
categorically stated that they had not heard any single fire
and it was only the continuous firing that had brought
G them rushing to the site and having reached there, they
had taken the three victims to the ftM.L. Hospital. Their
story Is corroborated by the evidence of the three
newspaper employees. PW-26 was also categoric that no
shot had been fired from inside the car. The story
H
SATYAVIR SINGH RATH! v. STATE THR. C.B.I. 147
therefore that 'JS' had fired at the police party when A
accosted is, therefore, on the face of it, unacceptable. In
this overall scenario even if it is assumed that the driver's
window had been found broken as contended by the
defence, it would still have no effect on the prosecution
story. [Para 12] (180-B-F] B
2.8. As regards the recovery of the 7.65 mm bore
pistol allegedly used by 'JS' first and foremost, it appears
that even prior to the arrival of the SHO, PW-42, the Car
had already been searched and the site violated, as a cell C
phone belonging to one of the victims had been picked
up by appellant ASI 'A· 3' and handed over to the SHO.
The fact that undue interest had been taken by the
offending police officials is also clear from Ext. P/10 a
photograph showing A-3 looking into the car. More
significantly, however, PW-12, the official Photographer D
of the Delhi Poliee, took two photographs (Ext. PW12/28
and PW12/29) of the driver's seat from very close range
but they show no pistol or empty shells. Even more
significantly A-1 submitted a detailed written report
(Ext.D.16/8) on 1.4.1997 to his superior officer in which he E
talks about the firing by 'JS' but makes no mention as to
the recovery of a pistol from the car although as per the
defence story the weapon had been picked up by the
SHO soon after the incident. Likewise, in the report Ext.
PW-42/C lodged by the appellant A-2 with the Connaught F
Place Police immediately after the incident, there js no
reference whatsoever to the presence of a 7.65 mm pistol
in the car. It is also relevant that the pistol had been sent
to the Central Forensic Science Laboratory but PW-46,
who examined the weapon, could find no identifiable G
finger prints thereon. [Para 13] [180-G-H; 181-A-D]
2.9. The cumulative effect of the evidence adduced
reveals the starkly patent fact that the defence story
projected was a palpably false one and the police officials H
148 SUPREME COURT REPORTS [2011) 6 S.C.R.
A involved having realized almost immediately after the
incident (perhaps on questioning PW-26 that they had
made a horrific mistake, immediately set about creating
a false defence. The trial court and the High Court have
accordingly opined on the basis of the overall
B assessment that the defence version was a concoction
and that the prosecution story that it was the unprovoked
firing by the appellants which had led to the death of the
two deceased and grievous gun shot injuries to PW-26,
had been proved on record. [Para 14] [181-A-G]
c 3.1. It can not be said that the accused were entitled
to claim the benefit of Exception 3 to s. 300 IPC. This
Exception pre-supposes that a public servant who
causes death, must do so In good faith and in due
discharge of his duty as a public servant and without ill-
D will towards the person whose death is caused. In the
light of the fact that the positive case set up by the
defence has been rejected by the trial court, the High
Court as well as by this Court, the question of any good
faith does not arise. On the contrary, the appellants had
E fired without provocation at the Esteem Car killing two
innocent persons and injuring one. The obligation to
prove an exception Is on the preponderance of
probabilities but it nevertheless lies on the defence. Even
on this touchstone the defence cannot succeed. [Para
F 15] [181-G-H; 182-A-C]
3.2. It is true that the High Court has acquitted the
appellants of planting the 7.65 mm bore pistol in the car.
However, this acquittal has been rendered only on the
G ground that it was not possible to pinpoint the culprit who
had done so. This can, by no stretch of imagination, be
taken to mean that the story that the pistol had been
planted in the car has been disbelieved by the High
Court. Though, the recovery of the 7.65 mm weapon
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 149
appears to be an admitted fact, but with the rider that it A
had been planted to help the defence. [Para 15) [182-C·
F]
Mohan Singh & Anr. vs. State of Punjab 1962 Suppl.
SCR 848 =AIR 1963 SC 174; and James Martin vs. State · B
of Kera/a 2004 (2) SCC 203; and Javed Masood & Anr. vs.
State of Rajasthan 2010 (3) SCR 236 = 2010 (3) SCC 538
- held inapplicable.
4.1. As regards the plea that CBI conducted a
partisan and motivated investigation, it is true that all C
witnesses have not been examined but in the
circumstances this was not necessary. It will also be seen
that as per the prosecution story, appellants. A-9 and A-8
had been caused injuries by shots fired from the weapons
of Head Constable A-5 and the Constable A-10. As per D
the report of the CFSL Ext.P/37F, the bullet recovered
from the person of A-9 had been fired from the .380
revolver of A-5 and as per the evidence of PW-37, the
possibility that the metallic bullet which was embedded
on the person of A-8 could be the steel core portion of a E
shattered 7.62 mm bullet of the weapon of A-10. PW-37
stated in his examination-in-Chief that he had received
parcel no. 12 and when he opened it, he found one .380
calibre bullet and no other object therein and he resealed
the bullet in the parcet It appears from the evidence of F
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 G
Biology Department of the Laboratory, the 7.65 mm bullet
had not been in it. In the light of the fact that the trial court
and the High Court have already held (and also held by
this Court) that no shot had been fired from inside the car
from the 7.65 mm pistol, the possibility of a 7;65 mm bullet H
150 SUPREME COURT REPORTS [2011f 6 S.C.R. 1
A being in the parcel become~ suspect. In any case, the 1
creation of some confusion vis-a-vis the bullets, is a
matter which would undoubtedly help the defence and a
presumption can thus be raised that this had been stage '
managed by the defence. This aspect too cannot be
B ignored. [Paras 16, 18 and 19) [183-F-G; 184-A-C; F-H;
185-A]
3.2. So far as the recovery of a bullet from the ashes
of deceased 'JS', is concerned, the High Court has
C rejected the prosecution story by observing that the trial
court had ignored the evidence on this score as PW-8,
the brother of deceased 'JS' had nowhere stated that he
had picked up a bullet from the ashes and handed it over
to the Sub-Inspector and more particularly as the two
doctors who had X-Rayed the dead body had found no
D trace of bullet. This Court endorses the finding of the High
Court in the light of the uncertain evidence on this score,
but to allege that the CBI officials had a hand in planting
the bullet is unwarranted. [para 20] [185-C-G]
E 4.3. It must be seen that the police party comprised
15 personnel. Only 10 who played an active role had
been prosecuted. This background points to a fair
investigation. Therefore, no fault whatsoever can be
found in the investigation made by the CBI. [Para 20] [186-
F B·C]
5.1. As regards the primary plea of absence of
common intention in causing the murders, admittedly,
the target was 'MY', concededly a notorious criminal with
a bounty on his head, as he had been involved in a large
G number of very serious criminal matters. The incident
happened on account of a mistake as to the identity of
'JS' who could pass off as a Muslim and it is nobody's
case that the police party had intended to eliminate 'JS'
and his friends. The courts below have been very clear
H on this score and have observed that keeping in mind
SATYAVIR SINGH RATH! v. STATE THR. C.B.I. 151
was not the outcome of an act in self-defence but was A
pursuant to the common intention to kill 'MY'. As to the
role of A-1 and A-2, the High Court has found that it was
A-1 who was the leader of the police party in his capacity
as the A-1 and, therefore, it was not necessary for him to
be in the forefront of the attack on the Esteem car and A- B
2 who had admittedly knocked at the window could be
treated likewise as being the next officer in the hierarchy.
The site plan indicates that A-1 was sitting in his Gypsy
about 15 meters away from the car when the incident
happened. It has come in evidence that when A-2 had . c
conveyed the fact of presence of 'JS' and PW-26 af the
Mother Dairy Booth at Patparganj, A-1 had got together
a police party of heavily armed officers, briefed them, and
they had thereafter moved on to Connaught Place. It has
been found as a matter of fact that when A-2 had followed
0
the Car to the Dena Bank, 'JS' had been left behind in the
car alone for quite some time but A-2 and his two
associates had made absolutely no attempt to apprehend
him at that stage or to counter check his identity though
A-2 had MY's photograph with him. Even more
significantly A-2 made no attempt to identify 'PG' or PW- E
26 whatsoever, although admittedly he was in close
wireless contact with A-1. This is the pre-incident conduct
which is relevant. [Para 23) [187-A-H; 188-A-B]
5.2. The facts as brought reveal a startling state of F
affairs during the incident. The case of the defence that
the car had been surrounded to immobilize the inmates
and to prevent them from escaping and that it was with
this intention that A-2 had knocked on the driver's
window asking the inmates to get out but he had been G
answered by firing from inside the car, has already been
rejected. Moreover, PW-37 testified that there were no
bullet marks on the tyres and they remained intact even
after the incident, despite 34 shots being fired at the car,
and 29 bullet holes, most of them of entry, thereon. On H
152 SUPREME COURT REPORTS [2011] 6 S.C.R.
A the other hand, the appellants presupposed that one of
the Inmates was 'MY', the wanted criminal and that the
firing was so insensitive and indiscriminate that some of
the shots had hit A-8 and A-9. [Para 23) [188-B-E]
5.3. The post-facto conduct of the appellants Is again
8
relevant. A·2 gave a report on the 01-04-1007 immediately
after the incident, which was followed by a report by A-1
the next day giving the counter version. This has been
found to be completely untenable. The High Court was,
C therefore, justified in holding that in the light of the facts,
it was not necessary to assign a specific role to each
individual appellant as the firing at the Car was
undoubtedly with a clear intent to annihilate those In it
and was resorted to in furtherance of the common
intention of all the appellants. [Para 23) (188-E-G]
D
5.4. The appellants were, therefore, liable to
conviction u/ss 302/34 etc. of the IPC. [Para 24) [189-E·F]
Abdul Sayeed Versus State of M.P. 2010 (10) SCC 259
E • relied on.
6. So far as the argument with regard to the deemed
acquittal theory of the appellants for the offence u/ss 302,
307 read with s. 34 IPC by the trial court is concerned, it
is pertinent to note that the trial court had framed a
F charge u/ss. 302 and 307 read with s. 120-B IPC and an
alternative charge u/ss. 302 and 307 read with s. 34 IPC
but without opining on the alternative charge, convicted
the appellants u/ss. 302 and 307 read with s. 120-B IPC.
The charges had indeed been framed in the alternative
G and for cognate offences having similar ingredients as to
the main allegation of murder. Section 386 Cr.P.C. refers
to the power of the appellate court, and the provision In
so far relevant for the purpose of this case, Is sub-clause
(b) (ii) which empowers the appellate court to alter the
H finding while maintaining the sentence. It Is significant
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 153
that s.120·8 IPC is an offence and positive evidence on A
this score has to be produced for a successful
prosecution whereas s. 34 does not constitute an offence
and is only a rule of evidence and inferences on the
evidence can be drawn. Therefore; the question of
deemed acquittal in such a case where the substantive B
charge remains the same and a charge u/s 302/1208 arid
an alternative charge u/s 302/34 IPC had been framed,
there was nothing remiss in the High Court in modifying
the conviction to one u/ss. 302/307/34 IPC. It is also self·
evident that the accused were aware of all the c
circumstances against them. [Para 25 and 27) [189-F-H;
191-F-H; 192-A-8]
Lachhman Singh & Ors. Vs. The State 1952 SCR 839 =
AIR 1952 SC 167; and Dalbir Singh vs. State of U.P. 2004
(5) sec 334 - relied on D
Sangaraboina Sreenu vs. State. of A.P. 1997 (3) SCR
=
957 1997 (5) SCC 348; and Lakendra Singh vs. State of
M.P. 1999 sec (Crl) 371 stood overruled.
E
Bimla Devi & Anr. vs. State of J & K 2009 (7 ) SCR 486
= 2009 (6) sec 629 - held per incurium .
Lakhan Mahto vs. State of Bihar 1966 (3) SCR 643 -
held inapplicable.
F
Pradesh vs. Thadi Narayana 1962 (2) SCR 904 -
distinguished.
Kishan Singh vs. Emperor AIR 1928 P.C'. 254 - referred
to.
G
7. As regard the plea that the trial court failed to put
all relevant questions to the accused while recording their
statements u/s 313 Cr.P.C:, the latest position in law·
appears to be that prejudice musf be shown by an
accused before it can be held that he was entitled to H
154 SUPREME COURT REPORTS [2011) 6 S.C.R.
A acquittal over a defective and perfunctory statement u/s
313. In the course of the evidence, the entire prosecution
story with regard to the circumstances Including those
of conspiracy and common Intention had been brought
out and the witnesses had been subjected to gruelling
B and detailed cross-examinations. Besides, the Incident.
has been admitted, although the defence has sought to
say that It happened In different circumstances. It Is also
slgnally Important that all the accused had filed their
detailed written statements In the matter. All these facts
c become even more significant In the background that no
objection had been raised with regard to the defective 313
statements In the trial court. It must be assumed,
therefore, that no prejudice had been felt by the
appellants even assuming that some Incriminating
0 circumstances In the prosecution story had been left out.
[Para 28, 32] [194-D; 195-E-G]
Shivaji Sahebrao Bobde vs. State of Maharashtra AIR
1973 SC 2622, Santosh Kumar Singh vs. State thr. CBI 2010
(9) SCC 747, Shobhit Chamar & Anr. vs. State of Bihar 1998
E (2) SCR 117 =1998 (3) sec 455, relied on.
Hate Singh Bhagat Singh vs. State of Madhya Bharat
AIR 1953 SC 468, Vikramjit Singh vs. State of Punjab 2006
(9) Suppl. SCR 375 = 2006 (12) SCC 306) and Ranvir
F Yadav vs. State of Bihar 2009 (7) SCR 653 = 2009 (6) SCC
595 - referred to.
8.1. With regard to the plea that the prosecution was
barred bys. 140 of the Delhi Police Act, 1978, it is relevant
to note that s. 140 of the Delhi Police Act, 1978 postulates
G that in order to take the shelter of the period of three
months referred to therein the act done or the wrong
alleged to have been done by the police officer should
be done under the colour of duty or authority or in
excess of such duty or authority or was of such
H character, and In no other case. Though, the facts of the
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 155
instant case show that the cognizance had been taken A
by the Magistrate beyond three months from the date of
incident, In the light of the decisions of this Court, It
cannot, by any stretch of imagination, be claimed by
anybody that a case of murder would fall within the
expression 'colour of duty'. There is absolutely no B
connection between the act of the appellants and the
allegations against them. Section 140 of the Delhi Police
Act would, therefore, have absolutely no relevance in this
case. [Para 32, 36-37 and 43) [195-D-G; 196-D-F; 198-D-
H; 199-B; 203·B·D]
c
Prof. Sumer Chand vs. Union of India & Ors. 1993 ( 2 )
Suppl. SCR 123 = 1994 (1) SCC 64; The State of Andhra
Pradesh vs. N. Venugopal & Ors. AIR 1964 SC 33 State of
Maharashtra vs. Narhar Rao AIR 1966 SC 1783, State of
Maharashtra vs. Atma Ram AIR 1966 SC 1786, ~hanuprasad D
Hariprasad Dave & Anr. vs. The State of Gujarat 1969 SCR
22 =AIR 1968 SC 1323; and Jamuna Singh & Ors. vs.
Bhadai Shah 1964 SCR 37 =AIR 1964 SC 1541 - relied
on.
E
8.2. As regards the sanction u/s 197 Cr.P.C., PW-48
deposed that a request had been received from the CBI
for. according sanction for the prosecution of the
appellants along with the investigation report and a draft
of the sanction order. He further stated that on receipt of F
the documents the matter had been referred first to the
Law Department of the Delhi Administration, then
forwarded to the Home Department and thereafter to the
Chief Secretary and finally, the entire was file put up
before the Lt. Governor who had granted the sanction for
the prosecution of the ten officials. It is true that certain G
other material which was not yet available with the CBI
at that stage could not obviously have been forwarded
to the Lt. Governor, but from the various documents on
record, it is evident that even on the documents, as laid,
H
156 SUPREME COURT REPORTS [2011) 6 S.C.R.
A adequate material for the sanction was available to the
Lt. Governor. The sanction order dated 10-10- 2001 is
extremely comprehensive as all the facts and
circumstances of the case had been spelt out In the 16
pages that the sanction order runs Into. [para 46] [204-
B B·F]
State of Karnataka vs. Ameerjan 2008 (1) SCC (Crl) 130;
S.B.Saha & Ors. vs. M.S.Kochar 1980 (1) SCR 111 =AIR
1979 SC 1841 - referred to.
C 9.1. So far as the plea for acquittal of Head Constable
A-6 that as he did not fire at the car is concerned,
admittedly, as per his own showing, he had used his
service weapon and fired one shot therefrom. The
prosecution story is that he had fired at the car whereas
o the defence is that he had fired the shot in the air to keep
the crowd away. It appears that the crowd had collected
only after the shooting had ceased. There is no evidence
whatsoever to show that any crowd had collected while
the firing was going on or that a single shot had been fired
E after the volley of 34 shots. The large number of
photographs of the site show that the crowd that had
gathered after the shooting, was perfectly disciplined and
keeping a reasonable distance away from the Esteem car
and the dead bodies lying around it. Admittedly, there is
F absolutely no evidence with regard to the defence taken
by A-6. The story projected by him in his 313 statement
is not supported by any evidence whatsoever. His case,
therefore, cannot be distinguished from the other seven
accused who had admittedly fired at the car. [para 50)
G [207-8-H]
9.2. It is significant that these seven police officers
had admitted to firing into the vehicle but it is their case
in their statements u/s 313 of the Cr.P.C. as also their
written statements that they had done so only on the
H direction of A-1, a superior officer. They have accordingly
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 157
direction of A-1, a superio·r officer. They have accordingly A
sought the benefit of s. 79 IPC. However, there is
absolutely no evidence that the fl.ring had been resorted
to by the seven appellants on the_ order of A-1 as it has
been found that it was pursuant to the common intention
of all the accused that the incident had happen~d. It is B
also relevant that the statements made by these seven
appellants are not admissible in evidence against A-1,
being a co-accused. [para 52 and 54] [208-B, G-H; 209-A·
B]
Vijendrajit Ayodhya Prasad Goel vs. State of Bombay C
AIR 1953 SC 247 and SP.Bhatnagar & Anr. vs. The State
of Maharashtra AIR 1979 SC 826 - relied on
9.3. Section 315 Cr.P.C. now makes an accused a
competent witness in his defence. The seven appellants D
did not choose to come into the witness box to support
their plea based on the orders of A-1, a superior officer,
and, therefore, in the face of no evidence, the story
projected by them cannot be believed. [para 54] [209-C-
~ E
1O. On an overall view of the evidence in the case,
this Court finds no fault with the judgments of the trial
court as well as the High Court. [para 55] [209-E-F]
Ram Nath Madhoprasad & Ors. vs. State of M. P. AIR F
1953 SC 420; Lakhjit Singh & Anr. vs. State of Punjab 1994
Suppl. (1) SCC 173; Dinesh Seth vs. State of NCT of Delhi
2008 (12) SCR 113 = 2008 (14) sec 94. cited
Case Law reference: G
2010 (3 ) SCR 236 retied on para 5
AIR 1953 SC 420 cited para 5
1997 (3) SCR 957 stood overruled para 5
H
158 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 1999 sec (Crl) 371 stood overruled para 5
2009 (7 ) SCR 486 held per incurium para 5
AIR 1928 P.C. 254 referred to para 5
1966 (3) SCR 643 held inapplicable para 5
B
1962 (2) SCR 904 distinguished para 5
AIR 1953 SC 468 referred to para 5
2006 (9) Suppl. SCR 375 referred to para 5
c
2009 (7) SCR 653 referred to para 5
1964 SCR 37 relied on para 5
1993 ( 2 ) Suppl. SCR 123 relied on para 5
D 2008 (1) sec (Crl) 130 referred to. Para 5
1962 Suppl. SCR 848 relied on para 7
1994 Suppl. (1) sec 173 cited para 9
E 2004 (5) sec 334 relied on para 9
2008 (12) SCR 113 cited para 9
1998 (2) SCR 117 relied on para 9
2010 (9) sec 747 relied on para 9
F
AIR 1964 SC 33 relied on para 9
AIR 1966 SC 1783 relied on para 9
AIR 1966 SC 1786 relied on para 9
G
1969 SCR 22 relied on para 9
1980 (1) SCR 111 referred to para 9
2004 (2) sec 203 held inapplicable para 10
H 201 o (1 O) sec 259 relied on para 22
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 159
1952 SCR 839 relied on para 25 A
AIR 1973 SC 2622 relied on para 26
AIR 1953 SC 247 relied on para 53
AIR 1979 SC 826 relied on para 53
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2231 of 2009.
From the Judgment & Order dated 18.9.2009 of the High
Court of Delhi at New Delhi in Crl. Appeal No. 671 of 2007. c
WITH.
Crl. Appeal Nos. 2476, 2477-2483 & 2484 of 2009.
H.P. Raval, ASG, Amarendra Sharan, R. D
Balasubramanian, Uday U. Lalit, S. Chandra Shekhar. Manoj
Kumar, Sanchit Guru, Suraj Rathi, Somesh Chandra, Ram
Raghvendra, S. Sadashiv Reddy, S. Usha Reddy, Vineet
Dhanda, J.P. Dhanda, Raj Rani Dhanda, Amrendra Kr. Singh,
N.A. Usmani, Manu Sharma, Vinay Arora, Sanjay Jain, P.K. E
Dey, Padmalakshmi Mridul, Madhurima Mridul, Anirudh
Sharma, Harsh N. Parekh, Anando Mukherji, S.K. Saxena,
Subash Kaushik, Ranjana Narayana, Arvind Kumar Sharma,
Anil Karnwal, Chander Shekhar Ashri for the appearing parties.
The Judgment of the Court was delivered by F
HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Criminal Appeal Nos.2231of2009, 2476 of 2009 and 2477-
2484 of 2009. The facts have been taken from Criminal Appeal
No. 2231 of 2009 (Satyavir Singh Rathi vs. State thr. C.B.I.). G
2. On the 31st March 1997 Jagjlt Singh and Tarunpreet
Singh PW-11 both hailing from Kurukshetra in the State of
Haryana came to Delhi to meet Pradeep Goyal in his office
situated near the Mother Dairy Booth in Patparganj, Delhi. They
reached the office premises between 12.00 noon and 1.00 p.m. H
160 SUPREME COURT REPORTS [2011) 6 $.C.R.
A 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
B and after buying some ice-cream from the Mother Dairy Booth,
waited for Pradeep Goyal's arrival. Pradeep Goyal reached his
office at about 1.30 p.m. but told Jagjit Singh and Tarunpreet
Singh that as he had some work at the Branch of the Dena
Bank in Connaught Place, they sho1~d accompany him to that
C 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
D of gathering information of his movements, his telephone calls
were being monitored and traced by PW-15 Inspector Ram
Mehar. The appellant Satyavir Singh Rathi, Assistant
Commissioner of Police and the In-Charge of the Inter-State
Cell, received information that Mohd. Yaseen would be visiting
E 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
F 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,
G 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
H in Patparganj and that one of them, a bearded young man,
SATYAVIR SINGH RATHI v. STATE THR. C.8.1. 161
[HARJIT SINGH BEDI, J.]
resembled Mohd. Yaseen, the wanted criminal. The ACP, along A
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 B
weapons. The police officials and the weapons they were
carrying are given hereunder:
(i) ACP Satyavir Singh Rathi 9 MM Pistol No.0592
(ii) lnsp. Anil Kumar .38 Revolver No.1147 c
(iii) SI Ashok Rana .38 Revolver No.1139
(iv) SI A Abbas .38 Revolver No.1.114
(v) ASI Shamsuddin .38 Revolver No.1112 D
(vi) HC ShivKumar .38 Revolver No.1148
(vii) HC Mahavir Singh .38 Revolver No. 0518
(viii) HC Tej Pal .38 Revolver No.1137 E
(ix) Ct.Sunil Kumar SAF carbine
(x) Ct. Subhash Chand .38 Revolver No.1891
(xi) Ct. Kothari Ram AK-47 No.5418 F
(xii) Ct. Bahadur Singh AK-47 No. 2299
(xiii) Ct. Sumer Singh .38 Revolver No.1906
3. In the meanwhile, the Maruti Esteem car, which had G
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 H
162 SUPREME COURT REPORTS (2011] 6 S.C.R.
A 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
B Singh also accompanied Vikram to the Bank while Jagjit Singh
continued to sit alone in the driver's seat. Pradeep Goyal came
out from the Bank at about 2.30 p.m. and after giving
instructions to his employees, sat in the Esteem car on the front
left seat whereas Tarunpreet Singh got into the rear seat. The
c 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
D 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
E 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
F cartridge in the breech and two spent cartridge cases of 7.65
mm bore from inside the car. These items were taken into
possession. Inspector Anil Kumar also handed over a written
complaint with regard to the incident to Inspector Niranjan
Singh, who in turn sent the same to the Police Station with his
G 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
H police and that he had thereafter knocked at the driver's window
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 163
[HARJIT SINGH BEDI, J.]
asking the occupants to come out but instead of doing so, Jagjit A
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 B
incident, however, sparked a huge public outcry. The very next
day Dinesh Chand Gupta, father-in-law of Pradeep Goyal, made
a complaint to the Lt. Governor, Delhi on which another FIR No.
453/97 was registered at Police Station Connaught Place, New
Delhi against the police personnel involved in the shootout for c
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 D
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 E
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 F
accordingly found that no shot had been fired from inside the
car by Jagjit Singh, as alleged, and that the claim in this FIR
that two police officials, who were a part of the police party, had
sustained gun shot injuries as a result of firing from the Car,
was false. The investigation also found that the 7.65 MM pistol G
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 H
164 SUPREME COURT REPORTS [2011) 6 S.C.R.
A Magistrate on the 13th June 1997. The said Magistrate took
cognizance for the offences punishable under Section 302/307/
201/120-8/34 by his order dated 10th July 1997 against 10
members of the police party and in addition, under Section 193
of the IPC against Inspector Anil Kumar for having lodged a
B 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
c dated 10th July, 1997 the trial court recorded the conviction and
sentence as under:
Name of Offence for which Sentence awarded
appellant convicted
Satyavir Singh U/Sections 1208 IPC,302 IPC Under Section 1208 IPC
Rathi, ACP, read with 1208 IPC,307 IPC imprisonment for life &
D Delhi Police read with 1208 IPC, 193 IPC a fine of Rs.100/-.
read with 1208 IPC, 193 IPC, Under Section 302 IPC
201/34 IPC and 203/34 IPC read with Section 1208
IPC- imprisonment for
Life and a fine of Rs.100/-
Under Section 307 IPC
E Read with Section 1208
IPC- imprisonment for life
and a fine of Rs.100/-
Under Section 193 IPC
read with Section 1208
IPC rigorous
F 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/-.
G Under Section 302 IPC -
rigorous imprisonment for
H
SATYAVIR SINGH RATH! v. STATE THR. C.B.I. 165
[HARJIT SINGH BEDI, J.]
2 years. A
Anil Kumar, LI/Sections 120B IPC,302 IPC LI/Section 120B IPC-
Inspector Of r/w 120B IPC,3071PC r/w imprisonment for life
Police, Delhi 120B IPC 193 IPC r/w 120 B and a fine of Rs.100/-
Police IPC, 193 IPC,201/34 IPC
And 203/34 IPC
UIS 302 IPC read with 8
Section 120B IPC -
imprisonment for life and a
fine of Rs.100/-
UIS 307 IPC r/w Sec.120B
IPC-imprisonmentforlife C
and a fine of Rs.100/-.
U/S 193 IPC r/wSec.120B
!PC-rigorous
imprisonment for 7 years
and a fine of Rs.100/-. D
UIS 201 IPC - rigorous
imprisonment for 7 years
and a fine of Rs.100/-.
UIS 203 IPC - rigorous E
imprisonment for 2 years.
Ashok Rana, LI/Sections 120B IPC,3021PC UIS 120B IPC- imprison-
Sub-Inspector r/w 120B IPC,307 IPC r/w ment for life and a fine of
of Police, 120B lPC, 193 IPC r/w Rs.100/-
Delhi Police 120BIPC F
U/S 302 IPC r/w Sec.120B
IPC - imprisonment for life
and a fine of Rs.100/-
UIS 307 IPC r/w Sec.120B
IPC- imprisonment for life G
and a fine of Rs.100/-.
UIS 193 IPC r/wSec.120B
IPC- rigorous
imprisonment for 7 years
H
166 SUPREME COURT REPORTS [2011] 6 S.C.R.
A and a fine of Rs.1001-.
UIS 201 IPC - rigorous
imprisonment for 7 years
and a fine of Rs.1001-.
B UIS 203 IPC - rigorous
imprisonment for 2 years.
AshokRana, U/Sections 120B IPC,3021PC UIS 120B IPC - imprison-
Sub-Inspector rlw 120B IPC,307 IPC rlw ment for life and a
of Police, 120B IPC, 193 IPC r/w fine of Rs.1001-
C Delhi Police 120BIPC
U/s 302 IPC rlw S.120B
IPC- imprisonment for life
and a fine of Rs.1001-.
UIS 307 IPC rlw S.120B
D_ IPC- imprisonment for life
and a fine of Rs.100/-_
UIS 193 IPC rlw S.120B
IPC- rigorous
imprisonment for 7 years
E and a fine of Rs.1001-.
Shiv Kumar, 120B IPC,302 IPC r/w UIS 120B IPC- -
Head 120B IPC 307 IPC r/w 120B imprisonmentfor
Constable, IPC, 193 IPC r/w 120B IPC life and a fine of Rs.1001-
Delhi Police
F UIS 302 IPC rlw S.120B
IPC- imprisonment for life
and a fine of Rs.100/-.
UIS 307 IPC r/w S.120B
IPC- imprisonment for life
G and a fine of Rs.100/-.
UIS 193 IPC r/w S.120B
IPC- rigorous
imprisonment for 7 years
and a fine of Rs.1001-
H
SATYAVIR SINGH RATH! v. STATE THR. C,8.1. 167
[HARJIT SINGH BEDI, J.]
Taj Pal Singh, 1208 IPC,302 IPC rlw 1208 UIS 1208 IPC- A
Head IPC,307 IPC rlw 1208 IPC, imprisonment for life and
Constable, 193 IPC r/w 1208 IPC a fine of Rs. 1001-
Delhi
Police
UIS 302 IPC rlw S.1208
IPC- imprisonment for life B
and a fine of Rs.1001-
UIS 307 IPC rlw S.1208
IPC- imprisonment for life
and a fine of Rs.1001-.
c
UIS 193 IPC rlw S.1208
!PC-rigorous imprisonment
for 7 years and a fine of
Rs.1001-
Mahavir Singh, 1208 IPC,3021PC r/w UIS 1208 IPC - imprison- D
Head Const. 1208 IPC,307 IPC rlw 1208 ment for life and a fine of
Delhi Police IPC, 193 IPC r/w 12081PC Rs.1001-
UIS 302 IPC rlw S.1208
IPC- imprisonment for life
and a fine of Rs. 1001- E
UIS 307 IPC rlw S.1208
IPC- imprisonment for life
and a fine of Rs.1001-.
UIS 193 IPC rlw S.1208 F
IPC- rigorous
imprisonment for 7 years
and a fine of Rs. 1001-.
Sumer Singh, 1208 IPC,302 IPC r/w 1208 UIS 1208 IPC - imprison-
Const. IPC 307 IPC rlw 1208 IPC, ment for life and a fine G
Delhi Police. 193 IPC rlw 1208 IPC of Rs.1001-.
UIS 302 IPC rlw S.1208
IPC- imprisonment for life
and a fine of Rs.1001-.
H
168 SUPREME COURT REPORTS [2011] 6 S.C.R.
A UIS 307 IPC r/w S.120B
IPC- imprisonment for life
and a fine of Rs.100/-
UIS 193 IPC r/w S.120B
IPC - rigorous
B imprisonment for 7 years
and a fine of Rs.1001-.
Subhash 120B IPC,302 IPC rlw 120B UIS 120B IPC- impriso-
Chand, Const. IPC,307 IPC rlw 120B IPC, nment for life and a fine
Delhi Police 193 IPC r/w 120B IPC of Rs.1001-.
c
UIS 302 IPC rlw S.120B
IPC- imprisonment for life
and a fine of Rs.1001-.
UIS 307 IPC r/w S.120B
D IPC- imprisonment for life
and a fine of Rs.1001-
UIS 193 IPC rlw S.120B
IPC- rigorous
imprisonment for 7 years
E and a fine of Rs.1001-.
Sunil Kumar, 120B IPC,302 IPC r/w U/S 120B !PC-imprison-
Const. 120B IPC, 307 IPC rlw ment for life and a fine of
Delhi Police 120B IPC, 193r/w120B IPC Rs. 1001-.
F UIS 302 IPC rlw S.120B
IPC- imprisonment for life
and a fine of Rs.1001-.
UIS 307 IPC r/w S.120B
IPC- imprisonment for life
G and a fine of Rs.1001-.
UIS 193 IPC rlw S.120B
IPC - rigorous
imprisonment for 7 years
and a fine of Rs.1001-.
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 169
[HARJIT SINGH BEDI, J.]
Kothari Ram, 1208 IPC,302 IPC r/w U/S 1208 !PC-imprison- A
Const. 1208 IPC, 307 IPC r/w 1208 mentfor life and a fine of
Delhi Police IPC, 193 IPC r/w 1208 IPC Rs.100/-.
U/S 302 IPC r/w S.1208
IPC- imprisonment for life
and a fine of Rs.100/-. B
UIS 307 IPC r/w S.1208
· IPC- imprisonment for life
and a fine of Rs.100/-.
UIS 193 IPC r/w S.1208 C
IPC~ rigorous
imprisonment for 7 years
and a fine of Rs.100/-.
4. All the substantive sentences were directed to run o
concurrently. The matter was thereafter taken in appeal to the
Delhi High Court which re-examined the entire evidence and
concluded that the conviction of the appellants under Section
302/1208 of the IPC could not be sustained and they were
entitled to acquittal of that charge, but their conviction and E
sentence under Sections 302 and 307 of the IPC was liable to
be maintained with the aid of Section 34 of the IPC instead of
Section 1208 of the IPC. It was also directed that the conviction.
and sentence of ACP Rathi and Inspector Anil Kumar under
Sections 193, 201/34 and 203/34 of the IPC was liable to be
F
maintained. The appeals were accordingly allowed to this very
limited extent. It is in this background that the matter is before
us after the grant of Special leave on the 23rd November 2009.
5. We have heard the learned counsel for the parties in
extenso in arguments spread over several days. Mr. Amrendra G
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 H
170 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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,
B 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
c Javed Masood & Anr. vs. State of Rajasthan 2010 (3) SCC
538. It has also been pleaded that the fact that a single shot
had been followed by a volley had been deposed to by PW-26
Avtar Singh who was an injured witness and also by ASI Om
Bir-PW who was in a police control room Gypsy stationed
closed by. It has further been pointed out that from the evidence
0
of the aforesaid witnesses it was clear that all the window panes
of the car had been broken which indicated that a shot had
indeed been fired from inside the car. In addition, it has been
urged by Mr. Sharan that the investigation made by the CBI was
completely partisan and though a large number of independent
E 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
F mm pistol or as to how and who had planted it in the car, as
alleged. It has further been submitted that there was no common
intention on the part of ACP Rathi along with his co-accused
to commit the murders as he was sitting in his Gypsy far away
from the place of the shoot out and there was no evidence
G 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
H
SATYAVIR SINGH RATHI v. STATE THR. C.8.1. 171
[HARJIT SINGH BEDI, J.]
a corollary to this argument, the learned counsel has also A
emphasized that as the trial court had framed a charge under
Section 302/120B and in the alternative under Section 302/34
of the IPC but had chosen to record a conviction under the
former provision only and had not rendered any opinion on the
alternative charge, it amounted to a deenied acquittal of the B
.alternative charge and as the State had not challenged the
matter in appeal, the High Court was not justified in an appeal
filed by the accused in altering the conviction from one under
Section 302/1208 of the IPC to one under Section 302/34 .of
the IPC. In this connection, the learned counsel has .placed · c
primary reliance on Sangaraboina Sreenu vs. State of A.P.
1997 (5) SCC 348 and Lokendra Singh vs. State of M.P. 1999
SCC (Crl) 371 and Simla Devi & Anr. vs. State of J & K 2009
(6) SCC 629 and in addition on Kishan Singh vs. Emperor AIR
1928 P.C. 254, The State of Andhra Pradesh vs. Thadi 0
Narayana 1962 (2} SCR 904 and Lakhan Mahto vs.· State of
Bihar 1966 (3) SCR 643. The learned counsel has also urged
that it was settled beyond doubt that the provisions of Section
313 of the Code of Criminal Procedure had to be scrupulously
observed and it was obligatory on the trial court to put all the E
incriminating circumstances in the prosecution story to an
accused so as to ehable him to effectively meetthe prosecution
case and if some material circumstance was not put to an
accused, it could not be taken into account against him and had
to be ruled out of consideration in the tight of the judgments F
reported as Hate Singh Bhagat Singh vs. State Of Madhya
Bharat AIR 1953 SC 468, Vikramjit Singh vs. State of Punjab
2006 (12) SCC 306) and Ranvir Yadav vs. State of Bihar 2009
(6) sec 595. The learned counsel has also furnished a list of
15 circumstances which had not been put to the accused,
particularly to ACP Rathi, at the time when his statement had G
been recorded. It has, in addition, been pleaded that the
prosecution was barred as the cognizance in this case'.had
been taken beyond the period of 3 months as ehvisaged in
Section 140 of the Delhi Police Act, 1978 and on the tactual
aspect has referred us to various dates relevant in the matter. . H
172 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B 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.
C Ameerjan 2008 (1) SCC (Crl) 130.
6. Mr. Uday U.Lalit, the learned senior counsel appearing
for Head Constable Mahavir Singh. the appellant in Criminal
Appeal No. 2476/2009, has pointed out that there were 15
persons in all in the police party and of them only 10 persons
0 had been sent for trial and of the 5 left out, three had not used
the firearms which they had been carrying and Head Constable
Mahavir Singh (as per the evidence on record) had not fired
into the car, his case fell in the category of those who had not
been sent up for trial and, as such, he too was entitled to
E 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
F 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.
G
7. Mr. Balasubramaniam, the learned senior counsel for
Inspector Anil Kumar in Criminal Appeal No. 2484 of 2009, has
also supported the arguments raised by the other counsel with
regard to the common intention of the appellant more
H particularly as he had not fired at the car though armed. He has
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 173
[HARJIT SINGH BEOI, J.]
also pleaded that even accepting the prosecution story as it A
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. B
8. Mr. Vineet Dhanda, the learned counsel for the
appellants in Criminal Appeal Nos. 2477-2483 of 2009, has
pointed out that although the appellants in these matters had
admitted that they had fired into the car yet the fact that Mohd.
Yaseen was a dreaded criminal with 21 criminal cases against C
him including 18 of murder, the police party had to be careful
and they had fired back only after the first shot by Jagjit Singh.
The learned counsel, however, has confined his primary
argument to the fact that the appellants were actihg on the
orders of ACP Rathi, who was their superior officer, and as they D
had taken an oath at the time of induction to office to follow the
orders of superior officers, they were liable for exoneration of
any kind of misconduct as per Section 79 of the IPC. He has
also pointed out that the appellants had, in their statements
recorded under Section 313 of the Cr.P.C., unanimously stated E
that the orders for the firing had been given by ACP Rathi.
9. Mr. Harin Rawal, the Additional Solicitor General
representing the CBI has, however, controverted the
submissions made by the counsel for the appellants. It has been F
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 G
Jagjlt Singh had first resorted to firing from inside the car had
been found to be unacceptable by both the courts below and a
positive finding had been recorded that the 7.65 mm bore pistol·
1
had been surreptitiously placed in the car to create a defence.
He has further pointed out that the prosecution story with regard H
174 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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
B 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
c 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
D pursuant to their common intention and this was also supported
by the fact that a false story had been put up in defence. It has
also been pointed out that deemed acquittal theory projected
by Mr. Sharan could not be applied in the present case as the
judgment reported in Lokendra Singh's case cited by him had
E been doubted in Lakhjit Singh & Anr. vs. State of Punjab 1994
Suppl. (1) SCC 173 and the matter had thereafter been referred
to a larger Bench which in the judgment reported in Dalbir Singh
vs. State of U.P. 2004 (5) SCC 334 had over-ruled the judgment
in Lakendra Singh's case (supra) and that the judgment in
Dalbir Singh's case had subsequently been followed in Dinesh
F Seth vs. State of NCT of Delhi 2008 (14) SCC 94. It has been
highlighted that the judgment in Simla Devi's case (supra) relied
upon by Mr. Sharan had not taken note of the last two cited
cases. It has, further been contended by Mr. Rawal that though
it was a matter of great importance that all incriminating
G 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
H by the appellants at the very initial stage before the trial court
,'
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 175
[HARJIT SINGH BEDI, J.]
and as this had not happened, the prosecution was fully justified A.
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 B
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 c
police officer had to be "under the colour of duty" and as
"murder" would not come in that category, no protection
thereunder was available. In this connection, the learned ASG
has placed reliance on The State of Andhra Pradesh vs.
N.Venugopal & Ors. AIR 1964 SC 33, State of Maharashtra 0
vs. Narhar Rao AIR 1966 SC 1783, State of Maharashtra vs.
Atma Ram AIR 1966 SC 1786 Bhanuprasad Hariprasad Dave
& Anr. vs. The State of Gujarat AIR 1968 SC 1323, and Prof.
Sumer Chand's case (supra) as well. In so far as the sanction
under Section 197 of the Cr.P.C. is concerned, it has been E
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 F
sanction. In this connection, the learned ASG has placed
reliance on S.B.Saha & Ors. vs. M.S.Kochar AIR 1979 SC
1841.
10. The learned ASG has also controverted Mr. Lalit's
arguments with regard to the culpability of appellant Head G
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 H
176 SUPREME COURT REPORTS [2011) 6 S.C.R.
A the bullet before the Haryana Police after picking it up from the
funeral ashes, had not deposP.d in his evidence that he had
handed over the bullet to the Police. It has, however, been
submitted that Head Constable Mahavir Singh had indeed fired
his weapon had been admitted by him and the story that he had
B 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
c 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
D 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.
E 11. On hearing the learned counsel for the parties, several
facts appear to be admitted on record but are compounded by
a tragedy of errors. These relate to the place and time of
incident, the presence of the appellants duly armed with most
of them having fired into the car with their service weapons, that
F 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
G background that the prosecution and the defence versions have
to be examined. The prosecution story has already been
narrated above and does not require any recapitulation in detail.
Suffice it to say that Inspector Anil Kumar and his two
associates had followed the car driven by Pradeep Goyal to
H' the Dena Bank Branch at Connaught Place and it was after
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 177
[HARJIT SINGH BEDI, J.)
Pradeep Goyal and the others had left the Dena Bank A
premises and were near the Barakhamba Road crossing that
the two police parties, one headed by Inspector Anil Kumar,
and other by ACP Rathi, had joined forces and surrounded the
car as it stopped at a red light, and had fired into it killing two
persons and injuring one. It is at this stage that the prosecution B
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 truec
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 D
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. E
It is equally true that it is not always necessary for the accused
to plead self- defence and if the prosecution story itself spells
it out, it would be open to the court to examine this matter as
well, as held by this Court in Mohan Singh's case (Supra) and
in James Martin vs. State of Kerala 2004 (2) SCC 203.
Likewise, it is now well settled in the light of the judgment in F
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 G
under Section 105 of the Indian Evidence Act, 1872 is to prove
it by a preponderance of probabilities. We have, accordingly,
examined the evidence under the above broad principles.
12. As already indicated above, PW's Avtar Singh and H
178 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Ombir Singh did state that a single shot had been followed by
multiple shots thereafter. Avtar Singh, however, apparently did
not receive a bullet injury as the simple abrasion on him had
been apparently caused by a flying splinter from the tarmac but
we have extremely independent evidence on this score as well.
B PW-1 Gaeta Ram Sharma, the Chief Photographer of the
Statesman Newspaper, which has its office adjacent to the red
light on Barakhamba Road, deposed that on the 31st March
1997 at about 2 - 2.30 p.m. while he was sitting in his room
along with his colleagues PWs Sayeed Ahmed and Shah
c 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
0 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
E Statesman had also been present. Sayeed Ahmed and Shah
Nawaz aforementioned appeared as PW-2 and PW-67 and
supported the story given by PW-1 Geeta Ram Sharma. He also
proved the photograph marked Ex. 'X' which shows that the
driver's window was intact. We have perused the photograph
ourselves and find that the driver's window was definitely intact.
F 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-
G 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
H windshield some powder residues would have been left around
SATYAVIR SINGH RATH! v. STATE THR. C.8.1. 179
[HARJIT SINGH BEDI, J.]
the bullet holes as the shots woula have been fired from almost · A
a touching distance. PW-37 Roop Singh from the Central
Forensic Science Laboratory, who had examined the car very
minutely detected no such residue and also testified that the
appreciable powder distance of a 7 .65 mm pistol could be one
to two feet but would depend on the sitting posture of the person B
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 c
exit hole being caused by a bullet fired from inside the car could
also not be ruled out. He further pointed out that as the bullet
fired at Constable Subhash Chand remained embedded in his
body and had not been taken out for medical reasons, it was
not possible to give an opinion whether it was a bullet of 7.65
0
mm calibre. The defence story that Constables Sunil and
Subhash had suffered injuries on account· of the firing of two
shots from inside the car. is further belied by the medical
evidence. PW-16-Dr. Harmeet Kapur carried out the medico
legal examination of Constable Subhash Chand Ex.PW16/B.
He found three bullet injuries on his person, which indicated E
blackening. These injuries could not have been caused by firing
from inside the car as the blackening from a pistol would be,
at the most, from a foot or two. Likewise, PW-17 Dr. Neeraj
Saxena who had examined Constable Subhash Chand, also
found three separate gun shot injuries on his person. He also F
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 G
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 H
180 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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
B in the hands of an ill trained individual is often more of a danger
to himself than a means of defence. In this background, the
evidence of PW's Geeta Ram Sharma, Sayeed Ahmad and
Shah Nawaz, PW-50 Constable K.K.Rajan and PW-51
Constable Rajinderan Pilley becomes extremely relevant. PW-
C 13 ASI Ombir Singh who was the Officer In-Charge of the PCR
Gypsy parked near the Fire Station Building adjoining
Barakhamba Road, had undoubtedly supported the defence
version that a single shot had been followed by a volley.
Constable Rajan and Constable Pilley, who were present along
with ASI Ombir Singh, categorically stated that they had not
0
heard any single fire and it was only the continuous firing that
had brought them rushing to the site and having reached there,
they had taken the three victims to the R.M.L. Hospital. Their
story is corroborated by the evidence of the three newspaper
employees. Tarunpreet Singh PW was also categoric that no
E shot had been fired from inside the car. The story therefore that
Jagjit Singh had fired at the police party when accosted is,
therefore, on the face of it, unacceptable. In this overall scenario
even if it is assumed that the driver's window had been found
broken as contended by the defence, it would still have no effect
F on the prosecution story.
13. We now come to the question as to the recovery of
the 7.65 mm bore pistol allegedly used by Jagjit Singh as this
fact is intimately connected with the defence version. First and
G foremost, it appears that even prior to the arrival of PW-42 SHO
Niranjan Singh, the Car had already been searched and the site
violated as a cell phone belonging to one of the victims had
been picked up by appellant ASI Ashok Rana and handed over
to the SHO. The fact that 1.mdue interest had been taken by the
H offending police officials is also clear from Ex. P/10 a
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 181
[HARJIT SINGH BEDI, J.]
photograph showing the ASI looking into the car. More A
- 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 B
Ex.D.16/8 on the 1st of April 1997 to his superior officer in
which he talks about the firing by Jagjit Singh but makes no
mention as to the recovery of a pistol from the car although as
per the defence story the weapon had been picked up by the
SHO soon afterthe incident. Likewise, in the report Ex. PW- c
42/C lodged by Inspector Anil Kumar appellant with the
Connaught Place Police immediately after the incident, there
is no reference whatsoever to the presence of a 7.65 mm pistol
in the car. It is also relevant that the pistol had been sent to the
Central Forensic Science Laboratory but PW-46 S.K.Chadha 0
who examined the weapon, could find no identifiable finger
prints thereon.
14. The cumulative effect of the above evidence reveals
the starkly patent fact that the defence story projected was a
palpably false one and the police officials involved having E
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 F
a concoction and that the prosecution story that it was the
unprovoked firing by the appellants which had led to the death
of Jagjit Singh and Pradeep Goyal and grievous gun shot
injuries to Tarunpreet Singh, had been proved on record.
G
15. 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 H
182 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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
B 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
c on the defence. Even on this touchstone the defence cannot
succeed. It is true that the High Court has acquitted the
appellants of planting the 7 .65 mm bore pistol in the car.
However, this acquittal has been rendered only on the ground
that it was not possible to pinpoint the culprit who had done so.
D 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
E 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.
F 16. The argument that the CBI had conducted a partisan
and motivated investigation, is based largely on three premises;
firstly, that all the independent witnesses whose statements had
been recorded under Section 161 of the Cr.P.C. at the site, had
not been brought in evidence, secondly, that Constables Sunil
G 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
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 183
[HARJIT SINGH BEDI, J.]
from the weapon carried by Head Constable Mahavir Singh, A
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.
· 17. As agajnst this, the learned ASG has pointed out that B
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 C
were material had been examined. It has further been pointed
out that the bullet which had allegedly been recovered from the
ashes of Jagjit Singh, had been handed over to Sub-Inspector
Ram Dutt of the Haryana Police who in turn had handed it over
to the investigating officer of the CBI and as such, the CBI had
nothing to do with that recovery. D
18. 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 E
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 F
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 G
counsel on the evidence of PW-37 Roop Singh wherein some
doubt has been expressed as to the identity of the bullet
allegedly recovered from the hand of Constable Sunil Kumar.
He stated in his examination-in-chief that he had received
parcel No.12 along wit.h a covering letter dated 7th April, 1997
H
184 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B 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
c 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
D 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."
19. Taken aback by this unforeseen development, the
E 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
F 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
G 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-a-vis the bullets, is a
H matter which would undoubtedly help the defen.ce and a .
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 185
[HARJIT SINGH BEDI, J.]
presumption can thus be raised that this had been stage A
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 B
clarification given by PW-37 Roop Singh. Nothing ominous or
sinister can be read into this.
20. The learned counsel has also challenged the recovery
of the bullet from the ashes of Jagjit Singh. This submission is C
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 D
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 rejected by
the High Court by observing that the trial court had ignored the E
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 F
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. ft 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 G
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 Sum it
Kumar of the CBI had taken it into possession duly sealed vide H
186 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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 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.
B 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.
c 21. 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 Rath1 and Inspector Anil Kumar, it
D 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
E at Jagjit Singh's window calling upon him to step out but
instead of doing so he had fired back leading to 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.
F
22. 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
G itself, and post facto the incident, would have to be taken into
account.
23. 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
H 302 read with section 120-B of the IPC, but the High Court has
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 187
[HARJIT SINGH BEDI, J.]
acquitted them under that provision and convicted them under A .
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 np outsider had any access
to what is going on in the matter relating to Mohd. Yaseen. B
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 c
nobody's case that the police paftY 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 D
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 E
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 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 F
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 G
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 H
188 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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-
8 incident conduct which is relevant. The facts as brought 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
c 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
0
bullet holes, most of them of entry, thereon. On the other hand,
the appellants presupposed that one of the inmates was Mohd.
Yaseen, t_he 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
E 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 us to
be completely untenable. The High Court was, therefore,
F 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
G State of MP. 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
H responsible for the act of others if he has the "common
SATYAVIR SINGH RATH! v. STATE THR. C.B.I. 189
[HARJIT SINGH BEDI, J.]
intention" to commit the offence. The phrase "common A
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 B
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 c
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 D
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 Kera/a E
and Harbans Kaur v. State of Haryana".)
24. In conclusion, we must hold that the appellants were
liable to conviction under Sections 302/34 etc. of the IPC.
25. We now come to Mr. Sharan's connected argument F
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 G
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
H
190 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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
B ASG has, however, pointed out that a contrary view had been
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
c 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
0 accordingly pointed out that the very basis of Mr. Sharan's
argument on the theory of deemed acquittal was lacking.
26. 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
E 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 Court
F 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
G 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
H had over looked the judgment in Lakhjit Singh's case (supra)
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 191
[HARJIT SINGH BEDI, J.]
as in this case a Division Bench of this Court had held that a 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 B
offence, conviction thereunder could be recorded. On account
of this apparent discordance of opinion 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 c
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
0
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 E
was on its own peculiar facts.
27. 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 Cr.P.C. F
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 G
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
H
192 SUPREME COURT REPORTS [2011] 6 S.G.R.
A 167. We are, therefore, of the opinion that the question of
deemed acqui.ttal in such a case where the substantive charge
remains the same and a charge under Section 302/1208 and
an alternative charge under section 302/34 of the IPC had been
framed, there was nothing remiss in the High Court in modifying
B 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.
c 28. 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
D 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
E 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
F 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 claim that they did not
have notice of the allegations against them. In this connection,
G 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).
29. Undoubtedly, the importance of a statement under
Section 313 of the Cr.P.C. in so far as the accused is
H
SATYAVIR SINGH RATHI v. STATE THR. C.8.1. 193
[HARJIT SINGH BEDI, J.]
concerned, can hardly be minimized. This statutory provision A
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:
B
"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 C
accused in some cases but experience elsewhere has
shown that it can also be a powerfut 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 D
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.
E
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 F
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 G
fundamental approach has been ignored in this case."
30. 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
H
194 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B (supra), 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
c case (supra) this Court has undoubtedly obs.erved 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
0
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
E 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 to explain it. This is the basic fairness of
F 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
G 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
H as regards the circumstances established against him but
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 195
[HARJIT SINGH BEDI, J.]
not put to him and if the accused is unable to offer the A
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 B
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 C
to the accused."
31. 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. o
32. 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 E
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 F
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: G
"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 H
196 SUPREME COURT REPORTS [2011] 6 S.C.R.
A in this appeal cannot be entertained unless the appellants
demonstrate that the 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
B 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
C 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
D 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
E 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 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
F made by the learned counsel for the appellants, is also
repelled.
33. 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
G 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
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 197
[HARJIT SINGH BEDI, J.]
admittedly been taken beyond three months i.e. on the 10th July A
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 in the discharge B
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 c
case the police official involved had to show that the action
taken by him had been taken under colour of duty:· Tue learned
.. counsel has in this connection relied on N. Venugopa/, Narhar
Rao, Atma Ram, Bhanuprasad Hariprasad Dave and on
Professor Sumer Chand's cases (supra). D
34. 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 E
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 that the Court of the F
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 G
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 H
198 SUPREME COURT REPORTS (2011] 6 $.C.R.
A 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 unabL to find from the
proceedings recorded by the learned Chief Metropolitan
Magistrate the reason as to why instead of requiring the
B 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,
c 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."
D 35. 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.
36. Sub-Section (1) of Section 140 is reproduced below:
E
"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
F 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.
G
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.
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 199
[HARJIT SINGH BEDI, J.]
(2) ............................. . A
(3) .............................. "
37. 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 B
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 the colour of
duty and therefore, covered by Section 140 ibidem. C
38. 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 o
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 E
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 F
and it has been held that the benefit of the latter provision would
be available qua all penal statutes.
The expression 'colour of duty' must now be examined in
the facts of this case. In Venugopal's case (supra), this Court G
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. H
200 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B 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 no~ arises to bestow particular care on
its decision. In doing this it has to ascertain first what act
c 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
D
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
E between the provisions and the act. In the absence of
such a relation the act cannot be said to be done "under'
the particular provision of law."
40. This judgment was followed in Narhar Rao's case
F (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:
G
"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
H
SATYAVIR SINGH RATHI v. STATE THR. C.8.1. 201
[HARJIT SINGH BEDI, J.]
acceptance of bribe by the respondent was not an act A
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 B
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 c
of S.53 of the Madras District Police Act (Act 24of1859).
It was pointed out in that case that the effect of S.53 of that
Act was 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 0
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 E
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 5.53 of the Police Act applied and the F
accused were entitled to an acquittal. It was, however, heid
by this Court that the prosecution was not barred under
5.53 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 G
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
H
202 SUPREME COURT REPORTS [2011] 6 S.C.R.
A appeal was accordingly allowed by this Court and the
acquittal of the respondent set aside."
4. Both these judgments were followed in Atma Ram's
case (supra) where the question was as to whether the action
8 of a Police Officer in beating and confining a person suspected
of 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
C 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
D 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
E not entitled, therefore, to the mantle of protection conferred
by S. 161 (1) of the Bombay Police Act."
42. Similar views have been expressed in Bhanuprasad
Hariprasad Dave's case (supra) wherein the allegations
F 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
G appellant a police officer, taking advantage of his position
as a police officer and availing himself 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.
H The charge against the second appellant is that he aided
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 203
[HARJIT SINGH BEDI, J.]
the first appellant in his illegal activity." A
43. 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
8
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 C
Information Report and it was the duty of a Police Officer to
a
investigate the matter and to file charge-sheet, if necessary,
and that there was a discernible connection oetween the act
complained of by the appellant and the powers and duties of
the Police Officer. Th'is Court endorsed.the opinion of the High
Court that the act of the Police Officer complained offell within .D
the description of 'colour of duty'. · · • · ·
'.
44. 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 E
'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. ' F
45. 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 G
has been placed by Mr. Sharan for this argument on Ameerjan's
case (su.era). 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 Delhi Government who H
204 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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.
B
46. 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
C 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 I
Secretary and finally, the entire file had been put up before the
D Lt. Governor who had granted the sanction for the prosecution
of the ten officials. It is true that certain other material which was
not yet available with the CBI at that stage could not obviously
have been forwarded to the Lt. Governor, but we see from the
various documents on record that even on the documents, as
E laid, adequate material for the sanction was available to the Lt.
Governor. We have perused the sanction order dated 1Oth 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
F 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
G 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
H in the event that the order of sanction did not indicate a proper
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 205
[HARJIT SINGH BEDI, J.]
application of mind as to the materials placed before the A
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. B
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 c
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 D
Section 409, Indian P~nal 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, E
they criminally misappropriated or converted those goods.
Whether this allegation 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 F
are to be taken as alleged."
47. As already indicated above, the Lt. Governor had
enough relevant material before him when he had accorded
sanction on the 10th October 2001. G
.48. 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
H
206 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B 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
question No.53 put to the Head Constable by which the
c 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
D 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 ~rowd gathering and to prevent the
members of general public from coming close to the car,
E 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
F the meanwhile press photographers, police of the PS C.P.
and Sr. officers also arrived."
49. He has found support for his arguments from the
Panchnama Ex. B-67/2 prepared by P.Kailasham, Executive
G 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
away was clear from the record and as the incident had
happened in a very busy locality i.e. the outer circle of
H
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 207
[HARJIT SINGH BEDI, J.]
Connai.Jght Place, a crowd had undoubtedly collected. He has A
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 disJ:>elieved by the High Court and the falsity
of the prosecution story was, thus, clearly spelt out.
50. We have considered the arguments advanced by the B
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 C
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 D
evidence whatsoever to show that any crowd had collected
while the firing was going on or that a single shot had been fired
after the volley of 34 shots. We have also perused the large
number of photographs of the site and see that the crowd that
had gathered after the shootin~, was perfectly disciplined and E
keeping a reasonable distance away from the Esteem car and
the dead bodi.es 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 F
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 t~is aspect. We are
therefore of the opinion that the story projected by him in his
313 statement is not supported by any evidence whatsoever. G
His case, therefore, cannot be distinguished from the other
seven accused who had admittedly fired at the car.
51. 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 question H
208 SUPREME COURT REPORTS (2011] 6 S.C.R.
A of common intention and the self-defence claimed by the
appellant. No further discussion is, therefore, required in this
appeal.
52. We finally take up Criminal Appeal Nos. 2477-2483
of 2009 in which the arguments have been made by Mr. Vineet
8
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
C 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
.D 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." ·
53. In the written submissions filed by Mr. Vineet Dhanda
E long after the judgment had been reserved and beyond the time
fixed by us for the fifing 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
F 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.
G
54. 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
H was pursuant to the common intention of all the accused that
SATYAVIR SINGH RATHI v. STATE THR. C.B.I. 209
[HARJIT SINGH BEDI, J.]
.he incident had happened. It is also relevant that the A
m;tatements made by these seven appellants are not admissible
•n evidence against ACP Rathi, being a co-accused, in the light
lf the judgment of this Court reported in Vijendrajit Ayodhya
-=>rasad Goel vs. State of Bombay AIR 1953 SC 247 and
::S.P.Bhatnagar & Anr. vs. The State of Maharashtra AIR 1979 B
::SC 826. This Court in the former case has observed that a
a;tatement under Section 342 of the Cr.P.C. {now Section 313)
-:annot be regarded as evidence. The observations in the latter
-~ase are equally pertinent wherein it has been held that a
=:lefence taken by one accused cannot, in law, be treated as c
m:tvidence against his co-accused. As already observed; Section
11315 of the Cr.P.C. now makes an accused a competent witness
111 his defence. Had the appellants in this set of appeals chosen
mo come into the witness box to support their plea based on
lhe orders of ACP ·Rathi, a superior officer, and claimed the 0
m>enefit of Section 79 of the IPC, something could be said in
lheir behalf but in the face of no evidence the story projected
.,y them cannot be believed.
55. On an overall view of the evidence in the case and in
lhe light of the arguments raised by the learned counsel for the E
-iarties, we find no fault with the judgments of the trial court as
~ell as the High Court. We, accordingly, dismiss all these
.ppeals.
~.P. Appeals dismissed. F
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