[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2231 OF 2009

Satyavir Singh Rathi                                  ….Appellant

Versus

State thr. C.B.I.    ….Respondent   

WITH

CRIMINAL APPEAL NOs.2476/2009, 2477-2483/2009 and  2484/2009.

                           J U D G M E N T

HARJIT SINGH BEDI, J.

This judgment will dispose of Criminal Appeal Nos.2231  

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

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

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

On  the  31st March  1997  Jagjit  Singh  and  Tarunpreet  

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

Haryana came to Delhi  to  meet Pradeep Goyal  in his  office  

situated near  the  Mother  Dairy  Booth in  Patparganj,  Delhi.  

They reached the office premises between 12.00 noon and 1.00

p.m.  but  found  

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

Jagjit Singh thereupon contacted Pradeep Goyal on his Mobile  

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

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

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

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

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

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

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

Connaught Place, they should accompany him to that place.  

The  three  accordingly  left  for  the  Bank  in  the  blue  Maruti  

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

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

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

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

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

of gathering information of his movements, his telephone calls  

were  being  monitored  and  traced  by  PW-15  Inspector  Ram  

Mehar.  The  appellant  Satyavir  Singh  Rathi,  Assistant  

Crl. Appeal No.2231/2009 etc.

2

Commissioner  of  

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

information that Mohd. Yaseen would be visiting a place near  

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

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

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

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

Booth in Patparganj and he was actually present at that place  

when Tarunpreet Singh and Jagjit Singh met Pradeep Goyal in  

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

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

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

stage,  accompanied  only  by  two  police  officials,  Head  

Constable Shiv Kumar and Constable Sumer Singh, he called  

for  reinforcements  from  ACP  Rathi  who  was  at  that  time  

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

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

young persons had been spotted near the Mother Dairy Booth  

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

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

Crl. Appeal No.2231/2009 etc.

3

along  with  a  

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

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

Inspector  Anil  Kumar.   As  per  the  record,  barring  Head  

Constable  Srikrishna  and  Constable  Om  Niwas,  all  the  

officials, including ACP Satyavir Singh Rathi were armed with  

service weapons.   The police officials and the weapons they  

were carrying are given hereunder:

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

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

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

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

(v) ASI Shamsuddin .38 Revolver No.1112

(vi) HC ShivKumar .38 Revolver No.1148

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

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

(ix) Ct.Sunil Kumar  SAF carbine

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

(xi) Ct. Kothari Ram  AK-47 No.5418

Crl. Appeal No.2231/2009 etc.

4

(xii) Ct.  Bahadur  

Singh  AK-47 No. 2299

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

In  the  meanwhile,  the  Maruti  Esteem car,  which  had  

been  followed  by  Inspector  Anil  Kumar  and  the  other  two  

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

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

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

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

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

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

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

then went inside the Bank whereafter Vikram returned to the  

car  to  pick  up  a  briefcase  belonging  to  Pradeep  Goyal.  

Tarunpreet Singh also accompanied Vikram to the Bank while  

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

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

after giving instructions to his employees, sat in the Esteem  

car on the front left seat whereas Tarunpreet Singh got into  

Crl. Appeal No.2231/2009 etc.

5

the rear seat.  The  

car  driven  by  Jagjit  Singh  thereafter  moved  on  towards  

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

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

Satyavir  Singh  Rathi  and  other  by  Inspector  Anil  Kumar,  

joined forces.   The car  was immediately  surrounded by the  

police officials who fired from almost all sides killing Pradeep  

Goyal and Jagjit Singh instantaneously and causing grievous  

injuries  to  Tarunpreet  Singh.   The  three  occupants  were  

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

but  Pradeep Goyal  and Jagjit  Singh were  declared dead on  

arrival.  On receiving information with regard to the shootout,  

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

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

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

inspection of the car, Inspector Niranjan Singh PW recovered a  

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

misfired cartridge in the breech and two spent cartridge cases  

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

into  possession.   Inspector  Anil  Kumar  also  handed over  a  

Crl. Appeal No.2231/2009 etc.

6

written  complaint  

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

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

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

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

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

Inspector Anil Kumar recorded that after the Car had stopped  

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

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

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

had  started  firing  at  the  police  party  from  inside  the  car  

resulting in gun shot injuries to Constables Sunil Kumar and  

Subhash  Chand  and  that  it  was  thereafter  that  the  police  

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

to  immobilizing  the  occupants  and to  prevent  their  escape.  

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

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

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

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

Place, New Delhi against the police personnel involved in the  

Crl. Appeal No.2231/2009 etc.

7

shootout  for  an  

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

complaint,  it  was  alleged  that  the  police  officials  had  

surrounded the car and had fired indiscriminately and without  

cause, at the occupants killing the two and causing grievous  

injuries to the third.  The initial investigation with regard to  

the incident was carried out by Inspector Niranjan Singh but  

pursuant to the orders of the Government of India made on  

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

Central  Bureau  of  Investigation  (hereinafter  called  the  CBI)  

and  the  two  FIRs  were  amalgamated  for  the  purpose  of  

investigation.   The  CBI,  on  investigation,  came  to  the  

conclusion that the police party headed by ACP Satyavir Singh  

Rathi  and  Inspector  Anil  Kumar  had  fired  on  the  Maruti  

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

dated  31st March  1997,  registered  on  the  complaint  of  

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

the  incident  and  to  justify  the  police  action.   The  CBI  

accordingly found that no shot had been fired from inside the  

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

Crl. Appeal No.2231/2009 etc.

8

that  two  police  

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

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

The  investigation  also  found  that  the  7.65  MM  pistol  and  

cartridges allegedly recovered from inside the car had actually  

been planted therein by members of the police party with a  

view  to  creating  a  defence  and  screening  themselves  from  

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

FIRs, a charge sheet was filed before the Chief Metropolitan  

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

cognizance  for  the  offences  punishable  under  Section  

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

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

Section 193 of the IPC against Inspector Anil Kumar for having  

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

was  then committed  for  trial.   The  trial  court  recorded the  

evidence  of  74  witnesses  and also  took in  evidence  a  large  

number of documents, including the reports of the Forensic  

Science Laboratory.   In the course of  a very comprehensive  

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

Crl. Appeal No.2231/2009 etc.

9

conviction  and  

sentence as under:

Name of appellant          Offence for which  convicted               Sentence awarded

Satyavir Singh Rathi,   U/Sections 120B  IPC,302 IPC        Under Section 120B IPC  ACP, Delhi Police      read with 120B IPC,307 IPC         imprisonment for life  &

    read with 120B IPC, 193 IPC        a fine of Rs.100/-.      read with 120B IPC, 193 IPC,       Under Section 302 IPC        201/34 IPC and 203/34 IPC      read with Section 120B

IPC – imprisonment for  

Life  and  a  fine  of  Rs.100/-. Under Section 307 IPC Read with  Section 120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/- Under  Section  193  IPC  read  with  Section  120B  IPC  –  rigorous  imprisonment for 7 years  and a fine of Rs.100/- Under Section 201 IPC –  rigorous  imprisonment  for 7 years and a fine of  Rs.100/-. Under Section 302 IPC –  rigorous  imprisonment  for 2 years.

Anil Kumar, Inspector    U/Sections 120B IPC,302 IPC           U/Section 120B IPC – Of Police, Delhi Police     r/w 120B IPC,307IPC r/w                imprisonment for life  

       120B IPC 193 IPC r/w 120          and a fine of Rs.100/-          B IPC,193 IPC,201/34 IPC          And 203/34 IPC

U/S  302  IPC  read  with  Section  120B  IPC  –  imprisonment for life and  a fine of Rs.100/-

U/S  307  IPC  r/w  Sec.120B  IPC  –  imprisonment for life and  a fine of Rs.100/-.

U/S  193  IPC  r/w  Sec.120B IPC –  rigorous  

Crl. Appeal No.2231/2009 etc.

10

imprisonment for 7 years  and a fine of Rs.100/-.

U/S  201  IPC  –  rigorous  imprisonment for 7 years  and a fine of Rs.100/-.

U/S  203  IPC  –  rigorous  imprisonment  for  2  years.

Ashok Rana,Sub- U/Sections 120B IPC,302IPC            U/S 120B IPC – Inspector of Police, r/w 120B IPC,307 IPC r/w 120B imprisonment for  Delhi Police              IPC, 193 IPC r/w 120B IPC life and a fine of  

Rs.100/-

U/S  302  IPC  r/w  Sec.120B  IPC  –  imprisonment for life and  a fine of Rs.100/-

U/S  307  IPC  r/w  Sec.120B  IPC  –  imprisonment for life and  a fine of Rs.100/-.

U/S  193  IPC  r/w  Sec.120B IPC –  rigorous  imprisonment for 7 years  and a fine of Rs.100/-.

U/S  201  IPC  –  rigorous  imprisonment for 7 years  and a fine of Rs.100/-.

U/S  203  IPC  –  rigorous  imprisonment  for  2  years.

Ashok Rana,Sub- U/Sections 120B IPC,302IPC                 U/S 120B IPC – imprison Inspector of Police,   r/w 120B IPC,307 IPC r/w       -ment for life and a Delhi Police  120B IPC,193 IPC r/w120B IPC            fine of Rs.100/-

U/s  302  IPC  r/w  S.120B  IPC-  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

Crl. Appeal No.2231/2009 etc.

11

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

Shiv Kumar,Head 120B IPC,302 IPC r/w 120B IPC U/S 120B IPC- - Constable,Delhi 307 IPC r/w 120B IPC,193 IPC r/w imprisonment for Police 120B IPC life and a fine of Rs.

100/-

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-

Taj Pal Singh,Head 120B IPC,302 IPC r/w 120B U/S 120B IPC –  Constable,Delhi IPC,307 IPC r/w 120B IPC,193 imprisonment for  Police IPC r/w 120B IPC life and a fine of  

Rs. 100/-

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  193  IPC  r/w  S.120B  IPC-rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-

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

Crl. Appeal No.2231/2009 etc.

12

Const.Delhi Police   120B  IPC,307  IPC  r/w

imprisonment for    120B IPC,193 IPC r/w            life and a fine of      120B IPC Rs.100/-

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

Sumer Singh, Const. 120B IPC,302 IPC r/w 120B U/S 120B IPC – Delhi Police. IPC 307 IPC r/w 120B IPC, imprisonment for

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

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

Subhash Chand,Const. 120B IPC,302 IPC r/w 120B U/S 120B IPC – Delhi Police IPC,307 IPC r/w 120B IPC, imprisonment for

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

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  

Crl. Appeal No.2231/2009 etc.

13

and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

Sunil Kumar,Const. 120B IPC,302 IPC r/w U/S 120B IPC – Delhi Police 120B IPC, 307 IPC r/w imprisonment for  

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

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

Kothari Ram, Const. 120B IPC,302 IPC r/w U/S 120B IPC – Delhi Police 120B IPC, 307 IPC r/w 120B imprisonment for  

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

U/S  302  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

U/S  307  IPC  r/w  S.120B  IPC  –  imprisonment  for  life  and  a  fine  of  Rs.100/-.

Crl. Appeal No.2231/2009 etc.

14

U/S  193  IPC  r/w  S.120B IPC – rigorous  imprisonment  for  7  years  and  a  fine  of  Rs.100/-.

     All  the  substantive  sentences  were  directed  to  run  

concurrently.  The matter was thereafter taken in appeal to  

the Delhi High Court which re-examined the entire evidence  

and  concluded  that  the  conviction  of  the  appellants  under  

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

were entitled to acquittal of that charge, but their conviction  

and  sentence  under  Sections  302  and  307  of  the  IPC  was  

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

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

the conviction and sentence of ACP Rathi and Inspector Anil  

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

was liable  to be maintained.   The appeals  were accordingly  

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

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

the 23rd November 2009.

Crl. Appeal No.2231/2009 etc.

15

We  have  

heard  the  learned  counsel  for  the  parties  in  extenso  in  

arguments spread over several days.  Mr. Amrendra Sharan,  

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

appeal  of  ACP  Satyavir  Singh  Rathi,  has  raised  several  

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

out  that  the  prosecution story  and the  findings of  the  trial  

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

of the incident and how it happened were erroneous and the  

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

defence after Jagjit Singh had first fired a shot through the  

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

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

pistol,  and  two  fired  cartridge  cases  had  been  found  and  

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

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

declared  hostile  the  prosecution  was  bound  by  their  

statements.   In  this  connection,  the  learned  counsel  has  

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

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

Crl. Appeal No.2231/2009 etc.

16

the  fact  that  a  

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

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

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

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

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

window panes of the car had been broken which indicated that  

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

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

by  the  CBI  was  completely  partisan  and  though  a  large  

number of independent witnesses had been examined at site,  

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

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

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

It has been highlighted that no investigation had been made  

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

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

submitted that there was no common intention on the part of  

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

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

Crl. Appeal No.2231/2009 etc.

17

shoot  out  and  

there  was  no  evidence  whatsoever  to  suggest  that  he  had  

either encouraged or directed the other police officials to shoot  

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

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

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

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

learned counsel has also emphasized that as the trial  court  

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

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

record a conviction under the former provision only and had  

not  rendered  any  opinion  on  the  alternative  charge,  it  

amounted to a deemed acquittal of the alternative charge and  

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

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

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

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

connection, the learned counsel has placed primary reliance  

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

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

Crl. Appeal No.2231/2009 etc.

18

and Bimla Devi &  

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

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

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

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

learned  counsel  has  also  urged  that  it  was  settled  beyond  

doubt  that  the  provisions  of  Section  313  of  the  Code  of  

Criminal  Procedure had to  be scrupulously  observed and it  

was obligatory on the trial court to put all the incriminating  

circumstances in the prosecution story to an accused so as to  

enable him to effectively meet the prosecution case and if some  

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

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

consideration in the light of the judgments reported as  Hate  

Singh Bhagat Singh vs. State of Madhya Bharat  AIR 1953  

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

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

The  learned  counsel  has  also  furnished  a  list  of  15  

circumstances  which  had  not  been  put  to  the  accused,  

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

Crl. Appeal No.2231/2009 etc.

19

been recorded.  It  

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

as  the  cognizance  in  this  case  had been taken  beyond the  

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

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

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

learned counsel has placed reliance on Jamuna Singh & Ors.  

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

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

been submitted by Mr. Sharan that the sanction under Section  

197 of  the  Code  of  Criminal  Procedure  too  had been given  

without application of mind and as the entire record was not  

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

considered and for this additional reason also, the prosecution  

was not justified.  In this connection the learned counsel has  

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

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

counsel  appearing  for  Head  Constable  Mahavir  Singh,  the  

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

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

Crl. Appeal No.2231/2009 etc.

20

them  only  10  

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

not used the firearms which they had been carrying and Head  

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

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

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

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

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

been recovered from his ashes allegedly fired from the weapon  

of Head Constable Mahavir Singh but as the High Court had  

disbelieved  the  evidence  of  this  recovery,  there  was  no  

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

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

contended that the scope and rigour of Section 313 remained  

unchanged  despite  the  introduction  of  Section  315  of  the  

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

his defence.

Mr.  Balasubramaniam,  the  learned  senior  counsel  for  

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

has also supported the arguments raised by the other counsel  

Crl. Appeal No.2231/2009 etc.

21

with regard to the  

common intention of the appellant more particularly as he had  

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

even  accepting  the  prosecution  story  as  it  was,  the  only  

inference that could be drawn was that the police party had  

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

could be drawn from prosecution story had been accepted by  

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

1963 SC 174.

Mr.  Vineet  Dhanda,  the  learned  counsel  for  the  

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

pointed out that although the appellants in these matters had  

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

Mohd. Yaseen was a dreaded criminal with 21 criminal cases  

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

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

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

primary argument to the fact that the appellants were acting  

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

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

Crl. Appeal No.2231/2009 etc.

22

follow  the  orders  

of  superior  officers,  they  were  liable  for  exoneration  of  any  

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

pointed  out  that  the  appellants  had,  in  their  statements  

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

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

Rathi.

Mr.  Harin  Rawal,  the  Additional  Solicitor  General  

representing  the  CBI  has,  however,  controverted  the  

submissions made by the counsel for the appellants.  It has  

been pointed out that the investigation had revealed that the  

incident  had  happened  as  the  police  party  was  under  the  

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

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

pursuant to their common intention.  It has been highlighted  

that the defence that Jagjit Singh had first resorted to firing  

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

the courts below and a positive finding had been recorded that  

the 7.65 mm bore pistol had been surreptitiously placed in the  

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

Crl. Appeal No.2231/2009 etc.

23

prosecution  story  

with regard to the incident had been proved by independent  

evidence and as the investigation was being handled by the  

Delhi Police at the initial stage, some attempt had apparently  

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

story.  The argument that the CBI had conducted a partisan  

investigation  has  also  been  controverted.   It  has  been  

highlighted  that  all  relevant  evidence  had  been  produced  

before the Court and nothing had been withheld and that in  

any case allegations of a partisan investigation could be made  

against  an  individual  officer  but  could  not  be  generalized  

against an organization as vast as the CBI and no argument  

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

misconduct. It has also been submitted that from the evidence  

of the prosecution witnesses and the conduct of the appellants  

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

been committed pursuant to their common intention and this  

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

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

acquittal theory projected by Mr. Sharan could not be applied  

Crl. Appeal No.2231/2009 etc.

24

in  the  present  

case  as  the  judgment  reported  in   Lokendra  Singh’s  case  

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

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

thereafter  been  referred  to  a  larger  Bench   which  in  the  

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

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

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

had subsequently been followed in  Dinesh Seth vs. State of  

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

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

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

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

matter  of  great  importance  that  all  incriminating  

circumstances  must  be  put  to  an  accused,  but  if  some  

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

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

to  show  that  prejudice  had  been  suffered  by  him  on  that  

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

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

Crl. Appeal No.2231/2009 etc.

25

stage  before  the  

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

fully justified in arguing that no prejudice had been caused.  

The learned ASG has placed reliance on  Shobhit Chamar &  

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

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

submission.  The arguments raised by Mr. Sharan with regard  

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

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

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

offences committed under that Act and not to other offences  

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

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

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

category,  no  protection  thereunder  was  available.   In  this  

connection, the learned ASG has placed reliance on The State  

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

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

State  of  Maharashtra  vs.  Atma  Ram AIR  1966  SC  1786  

Bhanuprasad  Hariprasad  Dave  &  Anr.  vs.  The  State  of  

Crl. Appeal No.2231/2009 etc.

26

Gujarat AIR 1968  

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

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

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

relevant material before him when the order granting sanction  

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

take a decision and merely because some of the evidence had  

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

invalidate the sanction.  In this connection, the learned ASG  

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

1979 SC 1841.

The  learned  ASG  has  also  controverted  Mr.  Lalit’s  

arguments  with  regard  to  the  culpability  of  appellant  Head  

Constable Mahavir Singh.  It  has been pointed out that the  

bullet recovered from the ashes of Jagjit Singh had been found  

to have been fired from the weapon of Head Constable Mahavir  

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

the prosecution story as Didar Singh PW who had produced  

the bullet before the Haryana Police after picking it up from  

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

Crl. Appeal No.2231/2009 etc.

27

handed  over  the  

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

Head Constable Mahavir Singh had indeed fired his weapon  

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

the  air  to  disperse  a  huge  and  turbulent  crowd  that  had  

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

Balasubramaniam’s argument with regard to the involvement  

of Inspector Anil Kumar has also been challenged by the ASG  

by urging that though he admittedly had not fired his weapon  

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

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

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

story.  Dealing with the arguments addressed by Mr. Vineet  

Dhanda, the learned ASG has highlighted that there was no  

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

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

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

accordingly,  been pointed out that this set of appellants could  

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

Crl. Appeal No.2231/2009 etc.

28

On  hearing  

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

admitted  on  record  but  are  compounded  by  a  tragedy  of  

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

presence  of  the  appellants  duly  armed  with  most  of  them  

having  fired  into  the  car  with  their  service  weapons,  that  

Mohd. Yaseen was admittedly a notorious criminal and that  

Jagjit Singh (deceased) had been mistaken by Inspector Anil  

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

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

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

this background that the prosecution and the defence versions  

have to be examined.     The prosecution story has already  

been narrated above and does not require any recapitulation  

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

two associates had followed the car driven by Pradeep Goyal to  

the Dena Bank Branch at Connaught Place and it was after  

Pradeep  Goyal  and  the  others  had  left  the  Dena  Bank  

premises and were near the Barakhamba Road crossing that  

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

Crl. Appeal No.2231/2009 etc.

29

and other by ACP  

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

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

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

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

car had been surrounded, Inspector Anil Kumar had knocked  

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

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

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

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

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

preceded  by  one  solitary  shot  which  apparently  is  in  

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

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

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

Kumar testified that  a  7.65 mm bore  pistol  along with two  

fired cartridges and 7 live cartridges in the magazine and one  

misfired cartridge in the breech, had been recovered from the  

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

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

Crl. Appeal No.2231/2009 etc.

30

accused  to  plead  

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

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

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

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

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

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

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

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

observed that though the prosecution is  bound to prove its  

case beyond reasonable doubt, the obligation on an accused  

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

prove  it  by  a  preponderance  of  probabilities.   We  have,  

accordingly,  examined  the  evidence  under  the  above  broad  

principles.

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

Singh  did  state  that  a  single  shot  had  been  followed  by  

multiple shots thereafter.   Avtar Singh, however,  apparently  

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

had  been  apparently  caused  by  a  flying  splinter  from  the  

Crl. Appeal No.2231/2009 etc.

31

tarmac  but  we  

have  extremely  independent  evidence  on this  score  as  well.  

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

Statesman Newspaper, which has its office adjacent to the red  

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

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

along  with  his  colleagues  PWs  Sayeed  Ahmed  and  Shah  

Nawaz,  they  had  heard  the  sound  of  firing  from  the  

Barakhamba Road side and that he along with the other PWs  

had  come  out  to  the  crossing  along  with  their  camera  

equipment and had seen a blue Esteem Car standing there  

with two bodies lying alongside and one injured person sitting  

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

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

Nawaz  and  Sayeed  Ahmed  had  taken  a  large  number  of  

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

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

the Reporters of the Statesman had also been present.  Sayeed  

Ahmed and Shah Nawaz aforementioned appeared as  PW-2  

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

Crl. Appeal No.2231/2009 etc.

32

Sharma.   He also  

proved the photograph marked Ex. ‘X’ which shows that the  

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

ourselves  and  find  that  the  driver’s  window  was  definitely  

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

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

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

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

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

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

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

notice that in this background, the windows and windshield  

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

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

the  windshield  some powder  residues  would  have  been left  

around the bullet  holes as the shots would have been fired  

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

Central Forensic Science Laboratory, who had examined the  

car very minutely detected no such residue and also testified  

that  the  appreciable  powder  distance  of  a  7.65  mm  pistol  

Crl. Appeal No.2231/2009 etc.

33

could  be  one  to  

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

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

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

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

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

into the car and exiting thereafter, although the possibility of  

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

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

bullet fired at Constable Subhash Chand remained embedded  

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

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

7.65 mm calibre.    The defence story that Constables Sunil  

and Subhash had suffered injuries on account of the firing of  

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

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

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

He found three bullet injuries on his person, which indicated  

blackening.   These  injuries  could  not  have  been caused by  

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

Crl. Appeal No.2231/2009 etc.

34

be,  at  the  most,  

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

had examined  Constable  Subhash Chand,  also  found three  

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

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

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

emphasized  that  all  the  weapons used in the  incident  fired  

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

the gun shot injuries on the two injured policemen show at  

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

contrary, it appears that the injuries suffered by them were  

caused  by  the  firing  amongst  the  policemen  as  they  had  

surrounded and fired into the car indiscriminately and without  

caution ignoring that they could be a danger to themselves on  

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

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

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

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

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

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

Crl. Appeal No.2231/2009 etc.

35

than  a  means  of  

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

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

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

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

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

Station  Building  adjoining  Barakhamba  Road,  had  

undoubtedly supported the defence version that a single shot  

had been followed by a volley.  Constable Rajan and Constable  

Pilley,  who  were  present  along  with  ASI  Ombir  Singh,  

categorically stated that they had not heard any single fire and  

it  was  only  the  continuous  firing  that  had  brought  them  

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

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

corroborated  by  the  evidence  of  the  three  newspaper  

employees.  Tarunpreet Singh PW was also categoric that no  

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

that Jagjit Singh had fired at the police party when accosted  

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

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

Crl. Appeal No.2231/2009 etc.

36

been  found  

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

effect on the prosecution story.

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

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

is intimately connected with the defence version.  First  and  

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

SHO Niranjan Singh, the Car had already been searched and  

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

had been picked up by appellant ASI Ashok Rana and handed  

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

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

photograph  showing  the  ASI  looking  into  the  car.   More  

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

Photographer  of  the  Delhi  Police,  took two photographs Ex.  

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

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

significantly  ACP  Rathi  submitted  a  detailed  written  report  

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

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

Crl. Appeal No.2231/2009 etc.

37

mention as to the  

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

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

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

Inspector  Anil  Kumar  appellant  with  the  Connaught  Place  

Police  immediately  after  the  incident,  there  is  no  reference  

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

also  relevant  that  the  pistol  had  been  sent  to  the  Central  

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

examined the weapon, could find no identifiable finger prints  

thereon.

The cumulative effect of the above evidence reveals the  

starkly  patent  fact  that  the  defence  story  projected  was  a  

palpably  false  one  and  the  police  officials  involved  having  

realized  almost  immediately  after  the  incident  (perhaps  on  

questioning  Tarunpreet  Singh-PW)  that  they  had  made  a  

horrific  mistake,  immediately  set  about  creating  a  false  

defence. The trial court and the High Court have accordingly  

opined on the basis of the overall assessment that the defence  

version was a concoction and that the prosecution story that it  

Crl. Appeal No.2231/2009 etc.

38

was  the  

unprovoked firing by the appellants which had led to the death  

of  Jagjit  Singh  and  Pradeep  Goyal  and  grievous  gun  shot  

injuries to Tarunpreet Singh, had been proved on record.

This  finding  also  completely  dislodges  Mr.  

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

was  not  entirely  acceptable,  the  accused  were  nevertheless  

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

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

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

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

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

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

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

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

are  of  the  opinion  that  the  appellants  had  fired  without  

provocation at the Esteem Car killing two innocent persons  

and injuring one.  As already mentioned above, the obligation  

to prove an exception is on the preponderance of probabilities  

but  it  nevertheless  lies  on  the  defence.   Even  on  this  

Crl. Appeal No.2231/2009 etc.

39

touchstone  the  

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

acquitted the appellants of planting the 7.65 mm bore pistol in  

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

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

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

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

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

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

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

true  that  the  Prosecution  is  bound  by  the  evidence  of  its  

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

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

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

it had been planted to help the defence.

The argument that the CBI had conducted a partisan and  

motivated  investigation,  is  based  largely  on three  premises;  

firstly,  that all  the independent witnesses whose statements  

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

had not been brought in evidence, secondly, that Constables  

Crl. Appeal No.2231/2009 etc.

40

Sunil  Kumar  and  

Subhash Chand had suffered gun shot injuries but the CBI  

had  tried  to  create  evidence  that  these  injuries  were  as  a  

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

had been made to  show that  the  bullet  recovered from the  

ashes of Jagjit Singh after his cremation had been fired from  

the weapon carried by Head Constable Mahavir Singh, thirdly,  

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

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

witness.  

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

was not necessary to produce every person whose statement  

had been recorded under Section 161 and as the incident was  

admitted by the defence, though a counter version had been  

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

versions  was  correct,  and  in  this  background  all  witnesses  

who were material had been examined.  It has further been  

pointed out that the bullet which had allegedly been recovered  

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

Inspector Ram Dutt of the Haryana Police who in turn had  

Crl. Appeal No.2231/2009 etc.

41

handed  it  over  to  

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

nothing to do with  that recovery.

It is true that all witnesses have not been examined but  

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

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

Sunil Kumar and Subhash Chand, had been caused injuries  

by shots  fired from the  weapons of  Head Constable  Tej  Pal  

Singh  and  Constable  Kothari  Ram  appellants.   As  per  the  

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

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

revolver  of  Head  Constable  Tej  Pal  Singh  and  as  per  the  

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

bullet  which  was  embedded  on  the  person  of  Constable  

Subhash Chand appellant could be the steel core portion of a  

shattered 7.62 mm bullet of the weapon of Constable Kothari  

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

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

wherein some doubt has been expressed as to the identity of  

the bullet allegedly recovered from the hand of Constable Sunil  

Crl. Appeal No.2231/2009 etc.

42

Kumar.  He stated  

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

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

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

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

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

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

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

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

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

however,  stated  that  when the parcel  had been received by  

him in the Ballistics Department from the Biology Department  

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

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

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

answer to this question, he stated as under:

“When this parcel was opened on the earlier  hearing and at that time after .380 bullet was  exhibited  the  other  bullet  i.e.  7.65  mm  (Ex.PW37/24) was found lying on the table,  and so in these circumstances the said 7.65  mm bullet was exhibited.”

Crl. Appeal No.2231/2009 etc.

43

Taken  aback  

by  this  unforeseen  development,  the  prosecution  filed  an  

application dated 4th December 1999 for clarification.  A reply  

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

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

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

Advocate when the parcel  had been opened in Court  on an  

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

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

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

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

bullet being in the parcel becomes suspect and it appears that  

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

we are dealing with appellants who are all police officials and  

the trial  court  has clearly  hinted that there appeared to be  

some  connivance  between  the  appellants  and  the  

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

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

the defence and a presumption can thus be raised that this  

Crl. Appeal No.2231/2009 etc.

44

had  been  stage  

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

The argument raised by the learned counsel for the appellants,  

therefore, that the application filed for clarification had been  

withdrawn as the prosecution was shying away from the truth  

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

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

sinister can be read into this.

The learned counsel has also challenged the recovery of  

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

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

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

had been handed over by Didar Singh and the statements of  

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

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

accordingly been argued that this too was the brainchild of the  

CBI  and  a  crude  attempt  to  inculpate  Constable  Mahavir  

Singh.  The trial court had accepted the prosecution story that  

this spent bullet had been recovered from the ashes of Jagjit  

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

Crl. Appeal No.2231/2009 etc.

45

rejected  by  the  

High Court by observing that the trial court had ignored the  

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

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

handed  it  over  to  Sub-Inspector  Ram  Dutt  and  more  

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

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

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

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

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

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

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

day when the ashes were being collected and had been handed  

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

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

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

Inspector Sumit Kumar of the CBI had taken it into possession  

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

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

by  Head  Constable  Mahavir  Singh  had  been  seized  by  the  

Crl. Appeal No.2231/2009 etc.

46

Delhi  Police  on  

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

which could have enabled it to create any false evidence on  

this  score.   We  must  also  recall  that  the  police  party  

comprised 15 personnel.  Only 10 who played an active role  

had  been  prosecuted.   This  background  points  to  a  fair  

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

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

The primary argument, however, of  the appellants that  

even assuming the prosecution story to be the correct, there  

was  no common intention  on  the  part  of  the  appellants  to  

commit murder, must now be examined.  Highlighting the role  

attributed to the two appellants ACP Rathi and Inspector Anil  

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

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

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

supported this  argument and submitted  that  Inspector  Anil  

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

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

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

Crl. Appeal No.2231/2009 etc.

47

a nasty shoot out.  

It  has,  accordingly,  been submitted  by  the  learned  counsel  

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

guilty under Section 302/34 etc. was wrong.

The  learned  ASG  has,  however,  submitted  that  the  

question  as  to  whether  Section  34  of  the  IPC  would  apply  

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

the  sequence  of  events  preceding  the  incident,  the  actual  

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

taken into account.

We have considered the arguments of the learned counsel  

very  carefully.   It  bears  reiteration  that  the  trial  court  had  

convicted  all  the  appellants  on  the  primary  charge  under  

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

Court has acquitted them under that provision and convicted  

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

aspect would have to be examined in the background of the  

defence story that had been projected and as the entire police  

operation  had  been  conducted  in  a  secret  manner  as  no  

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

Crl. Appeal No.2231/2009 etc.

48

relating  to  Mohd.  

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

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

been  involved  in  a  large  number  of  very  serious  criminal  

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

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

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

eliminate Jagjit Singh and his friends.  The courts below have  

been very clear on this score and have observed that keeping  

in mind the background in which the incident happened, that  

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

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

possibility of a hefty cash reward and accelerated promotion  

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

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

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

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

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

the attack on the Esteem car and Inspector Anil Kumar who  

had  admittedly  knocked  at  the  window  could  be  treated  

Crl. Appeal No.2231/2009 etc.

49

likewise  as  being  

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

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

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

come  in  evidence  that  when  Inspector  Anil  Kumar  had  

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

presence at the Mother Dairy Booth at Patparganj,  the ACP  

had  got  together  a  police  party  of  heavily  armed  officers,  

briefed them, and they had thereafter moved on to Connaught  

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

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

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

some time but Inspector Anil Kumar and his two associates  

had made  absolutely  no  attempt  to  apprehend him at  that  

stage or to counter check his identity  as the Inspector  had  

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

the Inspector made no attempt to identity Pradeep Goyal or  

Tarunpreet Singh whatsoever, although admittedly he was in  

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

incident  conduct  which  is  relevant.   The  facts  as  brought  

Crl. Appeal No.2231/2009 etc.

50

reveal  a  startling  

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

defence that the car had been surrounded to immobilize the  

inmates and to prevent them from escaping and that it was  

with this intention that Inspector Anil Kumar had knocked on  

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

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

be accepted for the reason that the defence has already been  

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

bullet marks on the tyres and they remained intact even after  

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

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

hand, the appellants presupposed that one of the inmates was  

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

insensitive and indiscriminate that some of the shots had hit  

Constables Subhash Chand and Sunil Kumar.  The post-facto  

conduct  of  the  appellants  is  again relevant.   Inspector  Anil  

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

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

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

Crl. Appeal No.2231/2009 etc.

51

us  to  be  

completely untenable.  The High Court was, therefore, justified  

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

necessary to assign a specific role to each individual appellant  

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

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

common  intention  of  all  the  appellants.   In  Abdul  Sayeed  

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

under :

“49. Section  34  IPC  carves  out  an  exception  from  general law that a person is responsible for his own  act,  as  it  provides  that  a  person  can  also  be  held  vicariously responsible for the act of others if he has  the  “common  intention”  to  commit  the  offence.  The  phrase “common intention” implies a prearranged plan  and acting in concert pursuant to the plan. Thus, the   common  intention  must  be  there  prior  to  the  commission of the offence in point of time. The common  intention  to  bring about a particular  result may also   well  develop  on  the  spot  as  between  a  number  of   persons, with  reference to  the facts  of the case and  circumstances existing thereto. The common intention   under Section 34 IPC is to be understood in a different  sense from the “same intention” or “similar intention”   or  “common  object”.  The  persons  having  similar   intention  which  is  not  the  result  of  the  prearranged  plan cannot be held guilty of the criminal act with the   aid  of  Section  34 IPC.  (See Mohan Singh v. State  of   Punjab.) 50. The  establishment  of  an  overt  act  is  not  a  requirement  of  law  to  allow  Section  34  to  operate   inasmuch this section gets attracted when a criminal   act is done by several  persons in furtherance of the   common intention  of  all.  What  has,  therefore,  to  be  established by the prosecution is that all the persons  concerned  had  shared  a  common  intention.  (Vide  Krishnan  v.  State  of  Kerala  and  Harbans  Kaur  v.   

Crl. Appeal No.2231/2009 etc.

52

State  of   Haryana”.)

In  conclusion,  we  must  hold  that  the  appellants  were  

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

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

regard to the deemed acquittal theory of the appellants for the  

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

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

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

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

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

opining on the alternative charge, had convicted the appellants  

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

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

appellants  had been deemed to  have  been acquitted  of  the  

charge  of  having  the  common  intention  of  committing  the  

murders and there  was no appeal  by the  State  against  the  

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

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

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

Crl. Appeal No.2231/2009 etc.

53

expressed  earlier  

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

apparent  discordance,  the  matter  had  been  referred  to  a  

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

had over ruled the judgment in Sangaraboina Sreenu’s case  

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

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

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

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

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

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

the theory of deemed acquittal was lacking.   

 We  have  considered  the  arguments  of  the  learned  

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

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

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

appellants had ultimately been acquitted, had not been framed  

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

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

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

Crl. Appeal No.2231/2009 etc.

54

Court  held  that  

only a charge under Section 302 had been framed against the  

accused, therefore, he could not be convicted under Section  

306 of  the IPC although the Court  noticed that the offence  

under Section 306 was a comparatively minor offence, within  

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

that the basic constituent of an offence under Section 302 was  

homicide whereas the offence under Section 306 was suicidal  

death and abetment thereof.  This judgment was followed in  

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

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

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

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

conviction  under  Section  306 of  the  IPC could  be  recorded  

though  a  charge  under  Section  302  had  been  framed.   In  

arriving  at  this  conclusion,  the  Bench  observed  that  the  

accused  were  on  notice  as  to  the  allegations  which  would  

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

comparatively minor offence, conviction thereunder could be  

recorded.  On account of this apparent discordance of opinion  

Crl. Appeal No.2231/2009 etc.

55

over  the  issue  

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

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

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

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

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

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

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

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

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

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

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

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

framed  for  the  offences  under  which  the  accused  could  be  

convicted  whereas  Thadi  Narayana’s  case was  on  its  own  

peculiar facts.

We find the situation herein to be quite  different.   We  

must notice that the charges had indeed been framed in the  

alternative and for cognate offences having similar ingredients  

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

Crl. Appeal No.2231/2009 etc.

56

Cr.P.C.  refers  to  

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

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

the appellate court to alter the finding while maintaining the  

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

offence and positive evidence on this score has to be produced  

for  a  successful  prosecution  whereas  Section  34  does  not  

constitute  an  offence  and  is  only  a  rule  of  evidence  and  

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

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

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

acquittal in such a case where the substantive charge remains  

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

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

framed,  there  was  nothing  remiss  in  the  High  Court  in  

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

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

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

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

the circumstances of the case.  

Crl. Appeal No.2231/2009 etc.

57

The  learned  

counsel for the appellants have also argued on the failure of  

the court in putting all relevant questions to them when their  

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

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

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

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

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

appellants  had  suffered  deep prejudice  in  formulating  their  

defence.   Reliance  has  been placed  on  Hate Singh Bhagat  

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

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

questions  referred  to  were  largely  inferences  drawn  by  the  

courts  and  relatable  to  the  evidence  on  record,  and  the  

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

further submitted even assuming that there had been some  

omission  that  by  itself  would  not  a  fortiori  result  in  the  

exclusion  of  evidence  from  consideration  but  it  had  to  be  

shown further by the defence that prejudice had been suffered  

by  the  accused  on  that  account  inasmuch that  they  could  

Crl. Appeal No.2231/2009 etc.

58

claim  that  they  

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

connection,  the learned ASG has placed reliance on  Shivaji  

Sahebrao Bobde vs. State of Maharashtra AIR 1973 SC 2622  

and  Santosh  Kumar  Singh  and  Shobit  Chamar’s  cases  

(supra).  

Undoubtedly,  the  importance  of  a  statement  under  

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

concerned, can hardly be minimized.  This statutory provision  

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

made aware of  the circumstances being put against him so  

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

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

“the statements of an accused person recorded  under Ss.208,209 and 342 are among the most  important matters to be considered at a trial. It   has to be remembered that in this country an  accused person is not allowed to enter the box  and  speak on  oath  in  his  own  defence.  This  may operate for the protection of the accused in  some  cases  but  experience  elsewhere  has  shown  that  it  can  also  be  a  powerful  and  impressive weapon of defence in the hands of   an  innocent  man. The  statements  of  the   accused recorded by the Committing Magistrate   and the Sessions Judge are intended in Indian  

Crl. Appeal No.2231/2009 etc.

59

to  take  the  place  of  what in England and in America he would be  free to state in his own way in the witness-box.  They  have  to  be  received  in  evidence  and  treated as evidence and be duly considered at   the trial.

This  means  that  they  must  be  treated like any other piece of evidence coming  from the  mouth  of  a  witness  and  matters  in  favour of the accused must be viewed with as   much deference and given as much weigh  as  matters  which  tell  against  him.  Nay  more.   Because of the presumption of innocence in his  favour  even  when  he  is  not  in  a  position  to   prove the truth of his story, his version should  be accepted if it is reasonable and accords with   probabilities  unless the  prosecution  can prove  beyond reasonable  doubt  that  it  is  false.  We  feel that  this  fundamental  approach has been  ignored in this case.”

It must be highlighted that the judgment in this case was  

rendered  in  the  background  that  in  the  absence  of  any  

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

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

of the utmost important.  The aforesaid observations have now  

been  somewhat  whittled  down in  the  light  of  the  fact  that  

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

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

Crl. Appeal No.2231/2009 etc.

60

this  Court  again  

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

the  judgment  that  it  was  primarily  based  on  an  overall  

appreciation  of  the  evidence  and  the  acquittal  was  not  

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

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

this  Court  has  undoubtedly  observed  that  even  after  the  

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

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

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

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

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

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

appears to be that prejudice must be shown by an accused  

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

defective  and perfunctory statement under  Section  313.   In  

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

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

“It is trite law, nevertheless fundamental, that   the  prisoner’s  attention  should  be  drawn  to  every inculpatory material so as to enable him  

Crl. Appeal No.2231/2009 etc.

61

to   explain   it.  This is the basic fairness of a criminal trial   and failures in this area may gravely imperil   the validity of the trial  itself, if  consequential   miscarriage  of  justice  has  flowed.  However,   where such an omission has occurred it does  not  ipso  facto  vitiate  the  proceedings  and  prejudice occasioned by such defect must be  established by the accused. In the event of an   evidentiary  material  not  being  put  to  the   accused,  the  court  must  ordinarily  eschew  such  material  from  consideration.  It  is  also  open  to  the  appellate  court  to  call  upon  the   counsel  for  the  accused  to  show  what   explanation  the  accused has  as  regards  the   circumstances established against him but not  put to him and if the accused is unable to offer  the  appellate  court  any  plausible  or  reasonable explanation of such circumstances,   the  court  may  assume  that  no  acceptable   answer  exists  and  that  even  if  the  accused  had been questioned at the proper time in the  trial  court  he  would  not  have  been  able  to   furnish  any  good  ground  to  get  out  of  the  circumstances  on  which  the  trial  court  had  relied for  its  conviction.  In  such  a case,  the  court  proceeds  on  the  footing  that  though  a  grave  irregularity  has  occurred  as  regards  compliance  with  Section  342,  Cr.P.C.,  the   omission has not been shown to have caused  prejudice to the accused.”

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

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

judgments of this court.

Crl. Appeal No.2231/2009 etc.

62

It  is  clear  

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

had  been  represented  by  a  battery  of  extremely  competent  

counsel  and  in  the  course  of  the  evidence,  the  entire  

prosecution story with regard to the circumstances including  

those of conspiracy and common intention had been brought  

out  and the witnesses  had been subjected  to  gruelling  and  

detailed cross-examinations.  It also bears reiteration that the  

incident has been admitted, although the defence has sought  

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

signally important that all the accused had filed their detailed  

written statements in the matter.  All these facts become even  

more significant in the background that no objection had been  

raised with regard to the defective 313 statements in the trial  

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

observed:

“We have perused all these reported decisions  relied upon by the learned advocates for the   parties and we see no hesitation in concluding  that the challenge to the conviction based on  non-compliance  of  Section  313  Cr.P.C.  first   time  in  this  appeal  cannot  be  entertained  unless  the  appellants  demonstrate  that  the  

Crl. Appeal No.2231/2009 etc.

63

prejudice  has  been  caused  to  them.  In  the  present  case,  as  indicated  earlier,  the   prosecution  strongly  relied  upon  the  ocular  evidence  of  the  eye  witnesses  and  relevant   questions with reference to this evidence were   put to the appellants. If the evidence of these  witnesses is found acceptable, the conviction   can  be  sustained  unless it  is  shown by the   appellants that  a prejudice has been caused  to them. No such prejudice was demonstrated   before  us  and,  therefore,  we  are  unable  to   accept the contention raised on behalf  of the   appellants.”

These  observations  proceed  on  the  principle  that  if  an  

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

the court can make good the defect and record an additional  

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

matter  is  allowed to  linger  on and the  objections are  taken  

belatedly it would be a difficult situation for the prosecution as  

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

indicated, the objection as to the defective 313 statements had  

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

that  no  prejudice  had  been  felt  by  the  appellants  even  

assuming  that  some  incriminating  circumstances  in  the  

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

Crl. Appeal No.2231/2009 etc.

64

of  the  15  

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

inferences  drawn  by  the  trial  court  on  the  evidence.   The  

challenge on this aspect made by the learned counsel for the  

appellants, is also repelled.

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

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

present matter had been taken more than three months from  

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

Elaborating on this aspect, the learned counsel has submitted  

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

an  incomplete  charge-sheet  had  been  filed  within  three  

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

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

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

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

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

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

more particularly where the act complained of had been done  

Crl. Appeal No.2231/2009 etc.

65

in the discharge of  

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

the  provisions  of  Section  140  of  Delhi  Police  Act  would  be  

applicable  only  to  offences  referred  to  in  the  Act  itself  and  

found largely in Section 80 onwards and not to cases where  

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

any  case  the  police  official  involved  had  to  show  that  the  

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

learned  counsel  has  in  this  connection  relied  on  N.  

Venugopal,  Narhar  Rao,  Atma  Ram,  Bhanuprasad  

Hariprasad  Dave and  on  Professor  Sumer  Chand’s  cases  

(supra).

Before  we  examine  the  merits  of  this  submission,  we  

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

High court  has observed that an incomplete charge- sheet had  

been filed within time inasmuch that the statements of  the  

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

been appended therewith and we quote :

“and  the  prosecuting  agency  had,  therefore,  taken adequate care in filing the charge-sheet well   within time and could not, thus, have anticipated   

Crl. Appeal No.2231/2009 etc.

66

that  the  Court  of  the  learned Chief Metropolitan Magistrate would have  its own problems in taking immediate cognizance  of  the  offences on the  charge-sheet  within  three  months from the date of commission of the crimes,   it  could  not  have  applied  for  a  sanction  for  prosecution under Section 140 of the Act as it was   not at all required in that situation. If the Court of   learned  Chief  Metropolitan  Magistrate  had  difficulty in taking cognizance of the offences for  absence of the copies of statements under Section   161  Cr.P.C.,  it  could  have  very  well  posted  the  case  for  a  shorter  date  before  expiry  of  three  months and could have required the CBI to make  available the copies of required material for taking  cognizance of the offences.  We are unable to find  from  the  proceedings  recorded  by  the  learned  Chief  Metropolitan  Magistrate  the  reason  as  to   why instead of  requiring the  CBI to  produce the  copies of  required material  within  a day or two,   such  a  longer  date  was  fixed  for  according   consideration  for  taking  cognizance  of  the   offences.  Whatever  be  the  reason  for  delay  in  taking cognizance of the offences in the facts and   circumstances of the case, we are unable to accept  the plea that  any sanction under Section 140 of   the  Delhi  Police  Act  was  required to sustain  the   prosecution  against  the  appellants,  particularly   when the charge-sheet had been filed in the Court  well before the expiry of three months’ period.”

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

correctness or otherwise of the observations of the High Court,  

as we intend giving our own opinion on this score.  

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

Crl. Appeal No.2231/2009 etc.

67

“Bar  to  suits  and  prosecutions.- (1) In any case of alleged offence  by a police officer or other person, or of a wrong  alleged to have been done by such police officer  or other person, by any act done under colour of  duty or authority or in excess of any such duty or  authority, or wherein it shall appear to the court  that the  offence or wrong if committed or done  was of the character aforesaid, the prosecution or  suit  shall  not be entertained and if  entertained  shall be dismissed if it is instituted, more than  three months after the date of the act complained  of.

Provided  that  any  such  prosecution  against  a  police officer or other person may be entertained  by  the  court,  if  instituted  with  the  previous  sanction  of  the  Administrator,  within  one  year  from the date of the offence.

(2)…………………………

(3)…………………………  ”

This Section postulates that in order to take the shelter  

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

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

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

excess  of  such  duty  or  authority  or  was  of  the  character  

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

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

Crl. Appeal No.2231/2009 etc.

68

the colour of duty  

and therefore, covered by Section 140 ibidem.  

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

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

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

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

facts given above show that the cognizance had been taken by  

the Magistrate beyond three months from the date of incident.  

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

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

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

learned ASG’s argument that Section 140 would be available  

to police officials only with respect to offences under the Delhi  

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

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

has been rendered after comparing the provisions of the Police  

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

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

available qua all penal statutes.   

Crl. Appeal No.2231/2009 etc.

69

The  

expression ‘colour of duty’ must now be examined in the facts  

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

under:   

“It is easy to see that if the act complained of   is wholly justified by law,  it would not amount to   an offence at all in view of the provisions of S.79 of   the Indian Penal Code. Many cases may however  arise  wherein  acting  under  the  provisions  of  the   Police  Act  or  other  law  conferring  powers  on  the  police the police officer or some other person may go  beyond  what  is  strictly  justified  in  law.  Though  Sec.79  of  the  Indian  Penal  Code  will  have  no  application to such cases, Sec.53 of the Police Act   will  apply.  But  Sec.53  applies  to  only  a  limited   class  of  persons.   So,  it  becomes the  task  of  the  Court, whenever any question whether this section   applies or not arises to bestow particular care on its   decision.  In doing this it has  to ascertain first what   act is complained of and then to examine if there is   any  provision  of  the  Police  Act  or  other  law  conferring powers on the police under which it may   be said to have been done or intended to be done.   The Court has to remember in this connection  that an act is not “under” a provision of law  merely because the point of time at which it is  done  coincides  with  the  point  of  time  when  some act is done in the exercise of the powers  granted by the provision or in performance of  the duty imposed by it. To be able to say that  an act is done “under” a provision of law, one  must  discover  the  existence  of  a  reasonable  relationship  between  the  provisions  and  the  act.  In the absence of such a relation the act  

Crl. Appeal No.2231/2009 etc.

70

cannot  be  said  to  be  done  “under”  the  particular provision of law.”

This  judgment  was  followed  in  Narhar  Rao’s  case  

(supra)  .    This  Court,  while  dealing  with  the  question  as  to  

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

object of weakening the prosecution case could be said under  

to be under ‘colour of duty’ or in excess of his duty, observed  

as under:

“But  unless  there  is  a  reasonable  connection  between  the  act  complained  of  and  the  powers   and duties of the office, it cannot be said that the   act  was  done  by  the  accused  officer  under  the  colour  of  his  office.  Applying  this  test  to  the   present  case,  we  are  of  the  opinion  that  the   alleged acceptance of bribe by the respondent was   not an act which could be said to have been done  under the colour of his office or done in excess of   his  duty  or  authority  within  the  meaning  of   S.161(1)  of  the  Bombay  Police  Act.   It  follows,  therefore,  that  the  High  Court  was  in  error  in   holding  that  the  prosecution  of  the  respondent  was  barred  because  of  the  period  of  limitation   prescribed under Sec.161(1) of the Bombay Police  Act. The view that we have expressed is borne out  by the  decision of  this  Court  in  State  of  Andhra  Pradesh  vs.  N.Venugopal,  AIR  1964  SC  33,  in   which the Court had construed the language of a  similar  provision  of  S.53  of  the  Madras  District   Police Act (Act 24 of 1859).  It was pointed out in  that  case that  the effect of S.53 of that Act was   

Crl. Appeal No.2231/2009 etc.

71

that   all  

prosecutions whether against a police officer or a  person other than a police officer (i.e. a member of   the  Madras  Fire  Service,  above  the  rank  of  a  fireman  acting  under  S.42  of  the  Act)  must  be  commenced  within  three  months  after  the  act   complained of, if  the  act  is  one which  has been  done  or  intended  to  be  done  under  any  of  the  provisions  of  the  Police  Act.  In  that  case,  the  accused police officers were charged under Ss.348  and  331  of  the  Indian  Penal  Code  for  wrongly  confining a suspect Arige Ramanua in the course  of  investigation  ad  causing  him  injuries.  The  accused  were  convicted  by  the  Sessions  Judge  under Ss.348 and 331 of the Indian Penal Code  but in appeal the Andhra Pradesh High Court held   that the bar under S.53 of the Police Act applied  and the accused were entitled to an acquittal.  It   was,  however,  held  by  this  Court  that  the  prosecution  was  not  barred  under  S.53  of  the   Police Act,  for it  cannot be said  that  the  acts  of  beating  a person suspected of a crime or confining  him or sending him away in an injured condition  by the police at a time when they were engaged in  investigation are acts done or intended to be done  under the provisions of the Madras District Police  Act or Criminal Procedure Code or any other law  conferring powers on the police. The appeal was   accordingly  allowed  by  this  Court  and  the   acquittal of the respondent set aside.”  

Both these judgments were followed in Atma Ram’s case  

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

Police Officer in beating and confining a person suspected of  

Crl. Appeal No.2231/2009 etc.

72

having  stolen  

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

duty.  It was held as under :   

“The  provisions  of  Ss.161  and  163  of  the  Criminal  Procedure Code emphasize the fact that a  police officer is prohibited from beating or confining  persons  with  a  view  to  induce  them  to  make  statements.  In  view  of  the  statutory  prohibition  it   cannot,  possibly, be said that  the acts,  complained  of, in  this  case,  are  acts  done by the  respondents   under  the  colour  of  their  duty  or  authority.  In  our  opinion, there is no connection, in this case between  the  acts  complained  of  and  the  office  of  the   respondents and the duties and obligations imposed  on them by law. On the other hand, the alleged acts   fall completely outside the scope of the duties of the  respondents and they are not entitled, therefore, to  the mantle of protection conferred by S. 161 (1) of the   Bombay Police Act.”

Similar  views  have  been  expressed  in  Bhanuprasad  

Hariprasad  Dave’s  case  (supra) wherein  the  allegations  

against  the  police  officer  was  of  taking  advantage  of  his  

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

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

was observed as under:

“All that can be said in the present case is that the   first appellant a police officer, taking advantage of  his position as a police officer and availing himself   

Crl. Appeal No.2231/2009 etc.

73

of  the  opportunity   afforded by the letter Madhukanta handed over to   him, coerced Ramanlal  to pay illegal gratification   to  him.  This  cannot  be  said  to  have  been  done  under  colour  of  duty.  The  charge  against  the   second  appellant  is  that  he  aided  the  first  appellant in his illegal activity.”

These judgments have been considered by this Court in  

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

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

several  others  were  brought  to  trial  initiated  on  a  first  

information  report  but  were  acquitted  by  the  trial  court.  

Professor  Sumer  Chand  thereupon  filed  a  suit  against  the  

Investigating  officer  and  other  police  officials  for  malicious  

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

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

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

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

and that there was a discernible connection between the act  

complained of by the appellant and the powers and duties of  

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

Court  that  the  act  of  the  Police  Officer  complained  of  fell  

Crl. Appeal No.2231/2009 etc.

74

within  the  

description of ‘colour of duty’.

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

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

anybody  that  a  case  of  murder  would  fall  within  the  

expression ‘colour of duty’.  We find absolutely no connection  

between the act of the appellants and the allegations against  

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

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

argument based thereon must, therefore, be repelled.

The learned Counsel has also raised an argument that  

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

mechanically  given  and  did  not  indicate  any  application  of  

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

prayed that the entire prosecution was vitiated on this score.  

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

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

controverted by the learned ASG who has pointed out that a  

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

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

Crl. Appeal No.2231/2009 etc.

75

Delhi Government  

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

all material relevant for according the sanction had been given  

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

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

referred.  

We have considered this argument very carefully in the  

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

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

received  from  the  CBI  for  according  sanction  for  the  

prosecution  of  the  appellants  along  with  the  investigation  

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

that  on  receipt  of  the  aforesaid  documents  the  matter  had  

been  referred  first  to  the  Law  Department  of  the  Delhi  

Administration and then forwarded to the Home Department  

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

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

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

certain other material which was not yet available with the CBI  

at that stage could not obviously have been forwarded to the  

Crl. Appeal No.2231/2009 etc.

76

Lt.  Governor,  but  

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

documents,  as laid,  adequate  material  for  the  sanction was  

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

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

comprehensive as all the facts and circumstances of the case  

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

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

prosecution  under  the  Prevention  of  Corruption  Act  (and  

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

observed  that  though  the  sanction  order  could  not  be  

construed in a pedantic  manner but the purpose for  which  

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

ordinarily  the  sanctioning  authority  was the  best  person to  

judge  as  to  whether  the  public  servant  should  receive  the  

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

record containing the materials collected against an accused  

should be placed before the sanctioning authority and in the  

event  that  the  order  of  sanction  did  not  indicate  a  proper  

application  of  mind  as  to  the  materials  placed  before  the  

Crl. Appeal No.2231/2009 etc.

77

sanctioning  

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

Admittedly, in the present case only the investigation report  

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

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

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

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

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

question  as  to  whether  sanction  under  Section  197  of  the  

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

misappropriated the goods that he had seized and put them to  

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

observed as under:

“Thus, the material brought on the record  up to the stage when the question of  want of  sanction  was  raised  by  the  appellants,  contained  a  clear  allegation  against  the  appellants about the commission of an offence  under  Section  409,  Indian  Penal  Code.  To  elaborate, it was substantially alleged that the  appellants  had  seized  the  goods  and  were  holding them in trust in the discharge of their  official duty, for being dealt with or disposed of  in accordance with law, but in dishonest breach  of that trust, they criminally misappropriated or  converted those goods. Whether this allegation  

Crl. Appeal No.2231/2009 etc.

78

or  charge is true or false, is not to be gone into at  this stage. In considering the question whether  sanction  for  prosecution  was  or  was  not  necessary, these criminal acts attributed to the  accused are to be taken as alleged.”

As already indicated above, the Lt. Governor had enough  

relevant material before him when he had accorded sanction  

on the 10th October 2001.

We  now  come  to  the  other  appeals  in  which  some  

additional arguments have been raised.  In Criminal Appeal  

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

has argued that 15 persons in all had constituted the police  

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

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

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

been armed, had not been prosecuted and as Head Constable  

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

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

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

Constable Mahavir Singh did not share the common intention  

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

Crl. Appeal No.2231/2009 etc.

79

question  No.53  

put  to  the  Head  Constable  by  which  the  circumstances  

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

had answered as under:

“I  was  behind  the  entire  team.  Then  the  team was left with no option but to return fire in  self defence and to save members of the public as  a large crowd had started gathering suddenly on  hearing  the  faring  from  inside  the  car.   Some  members  of  our  team returned  fire.   As  I  was  behind and a little away from the car, I held back  my fire.  But on seeing a crowd gathering and to  prevent  the  members  of  general  public  from  coming close to the car, I fired one shot in the air.  In  the  meanwhile  I  heard  Constable  Subhash  Chand scream that he had been hurt.  Then the  firing  was  ordered  to  be  stopped.   Within  moments  a PCR Gypsy also  arrived.   Then the  efforts  were  made  to  take  the  injured  out  and  send them to hospital.  In the meanwhile press  photographers,  police  of  the  PS  C.P.  and  Sr.  officers also arrived.”

He  has  found  support  for  his  arguments  from  the  

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

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

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

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

Constable Mahavir Singh that he had fired to keep the crowd  

Crl. Appeal No.2231/2009 etc.

80

away  was  clear  

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

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

had undoubtedly collected.  He has further pointed out that  

the story that a bullet fired by Head Constable Mahavir Singh  

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

disbelieved  by  the  High  Court  and  the  falsity  of  the  

prosecution story was, thus, clearly spelt out.   

We  have  considered  the  arguments  advanced  by  the  

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

Constable  Mahavir  Singh had used his  service  weapon and  

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

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

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

based  on  a  clear  misconception  and  does  not  take  into  

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

(more  particularly  where  indiscriminate  gun  fire  had  been  

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

crowd had collected only after the shooting had ceased.  There  

is  no  evidence  whatsoever  to  show  that  any  crowd  had  

Crl. Appeal No.2231/2009 etc.

81

collected while the  

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

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

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

gathered  after  the  shooting,  was  perfectly  disciplined  and  

keeping a reasonable distance away from the Esteem car and  

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

absolutely  no evidence with regard to  the  defence taken by  

Constable Mahavir Singh.  An effort could have been made by  

the defence to elicit some information about the behaviour of  

the crowd from the policemen and the Statesman employees  

who  had  appeared  as  prosecution  witnesses.   Not  a  single  

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

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

313 statement is not supported by any evidence whatsoever.  

His  case,  therefore,  cannot  be distinguished  from the other  

seven accused who had admittedly fired at the car.   

We  have  already  dealt  with  Mr.  Balasubramaniam’s  

arguments in the case of Inspector Anil Kumar who has filed  

Criminal  Appeal  No.2484/2009  while  dealing  with  the  

Crl. Appeal No.2231/2009 etc.

82

question  of  

common  intention  and  the  self-defence  claimed  by  the  

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

appeal.

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

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

Dhanda,  Advocate.   It  is  significant  that  these  seven police  

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

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

their  written statements that they had done so only on the  

direction  of  ACP  Rathi,  a  superior  officer.   They  have  

accordingly sought the benefit of Section 79 of the IPC which  

provided:

“Act  done  by  a  person  justified,  or  by  mistake of fact believing himself justified, by  law.---Nothing is an offence which is done by any  person who is justified by law, or who by reason  of  a  mistake  of  fact  and  not  by  reason  of  a  mistake of law in good faith, believes himself to  be justified by law, in doing it.”

In the written submissions filed by Mr. Vineet Dhanda  

long after  the  judgment  had been reserved and beyond the  

Crl. Appeal No.2231/2009 etc.

83

time  fixed  by  us  

for  the  filing  of  the  written  submissions  (which  have  

nevertheless  been  taken  on  record)  the  stand  taken  is  

completely different and in accordance with that of Mr. Sharan  

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

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

judgments  on  this  aspect.   These  judgments  had not  been  

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

however  gone  through  the  judgments  and  find  nothing  

different therein from the judgments cited by the other learned  

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

at this stage.

We  have  nevertheless  examined  the  submissions  with  

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

evidence  that  the  firing  had  been resorted  to  by  the  seven  

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

was pursuant to the common intention of all the accused that  

the  incident  had  happened.   It  is  also  relevant  that  the  

statements made by these seven appellants are not admissible  

Crl. Appeal No.2231/2009 etc.

84

in  evidence  

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

judgment  of  this  Court  reported  in  Vijendrajit  Ayodhya  

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

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

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

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

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

latter case are equally pertinent wherein it has been held that  

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

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

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

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

chosen  to  come  into  the  witness  box  to  support  their  plea  

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

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

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

projected by them cannot be believed.

Crl. Appeal No.2231/2009 etc.

85

On  an  

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

arguments raised by the learned counsel for the parties, we  

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

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

 ...............................J. (HARJIT SINGH BEDI)

…………………………………..J. (CHANDRAMAULI KR. PRASAD)   

DATED: 2ND MAY, 2011 NEW DELHI.

Crl. Appeal No.2231/2009 etc.

86